International Law Final

Sources of the Law of State Responsibility

1. ILC Draft articles on State Responsibility

2. Customary international law

2 requirements needed to established state responsibility

1. Attribution (can the conduct be attributed to the state?)

2. Wrongful act (did a violation occur?)

2 types of attribution (+ their results)

1. State official/organization conduct → attributed to the state (because it was an act on behalf of the state)

2. Not a state official/organization →

   1. narrow approach: need to show that one was acting on the instructions of, direction or control of the state

      1. Favored by the World Court, more demanding

   2. broad approach: show that party was under “overall control” of the state

      1. easier to meet

2 types of harms sufficient to trigger liability for a wrongful act

1. Moral harm

2. Material harm

6 circumstances precluding wrongfulness (+ explanation)

1. Consent of the wronged party

2. Self-defense

3. Lawful countermeasures: adopted by the accused state in response to a wrongful act committed by the injured state

4. Force majuere: an unforeseen event occurred so that it made impossible for the accused state to comply

5. Distress: the act was necessary to save lives of those who committed the act

6. Necessity: the act was necessary to safeguard a state interest against a grave perial

3 obligations of the “responsible” state of a wrongful act

1. Cease the violation

2. Offer reassurance that the action is discontinued and will not be repeated

3. Reparations (restitution, compensation, satisfaction)

For what excuses are reparations (still) owed?

• Force majeure

• Distress

• Necessity

What does the UN Charter say about solving international disputes?

2.3: Must solve disputes peacefully

2.4: Disputes must not be solved via war (threats or force)

33: lists the ways to solve disputes peacefully

51: Self-defense can be used

5 (non-legally binding) methods of settling disputes peacefully

1. Negotiation

2. Good offices: states communicate through a third party

3. Inquiry: a neutral third party finds facts for a solution

4. Mediation: a third party facilitates a solution with the two states

5. Conciliation: quasi-interview to determine who was right for a solution

2 (legally binding) methods of settling a dispute peacefully

1. Arbitration: quasi-private organization in which parties go to for a tribunal that decides who is right

2. Adjudication: a court

How are judges chosen for arbitration?

Arbitrators, the judges, are chosen by each party. Then those 2 chosen arbitrators pick a 3rd arbitrator.

PCA

Permanent Court of Arbitration

• Created in 1899 at the Hauge Conference

Examples of adjudication courts: global and regional

• Global: PCIJ, ICJ, ITLOS (International Tribunal for the Law of the Sea)

• Regional: CJEU (Court of Justice of the EU), ECHR (European Court of Human Rights)

ICJ: founded when, by whom, founding treaty, who can accede to the ICJ

International Court of Justice

• Founded in 1945 with the UN

• Founding treaty = Statue of the International Court of Justice

• Only states can accede to the ICJ

ICJ judges: how many, elected by whom, composition, ad hoc judge, who breaks a tie

• 15 judges

• Nominated and elected by UNGA and UNSC

• All are from different countries

• Ad hoc judge: judge called on to represent a country to appear before the court if that state is not represented in the 15 judges

• President of the ICJ can break a tie

3 grounds for exercise of jurisdiction over a case by the ICJ (+ describe)

1. Special agreement (“compromis”), or “consent ad hoc”

   1. Both parties have agreed in writing to go to court for a specific dispute

2. Consent ante hoc based on a “compromissory clause” in a treaty

   1. The clause states a disputes go before the ICJ, but the disputes can also be far-fetched

3. Optional declaration

   1. A state grants the court jurisdiction in the future despite the dispute

   2. Can add reservations

What types of reservations may be added to an optional declaration?

Timing, certain types of issues, question of reciprocity

ICJ’s “contentious activity” (+ 4 steps)

When ICJ must grant jurisdiction over a case

4 stages:

1. Court decides whether or not it has jurisdiction over a case

2. If a party asks for them, the court decides if “interim measures of protection” are required

3. Court tries the case and issues a decision on merits

4. If appropriate/required, the court decides compensation measures

ICJ’s advisory opinions (+ who can ask for them)

Non-legally binding, but very influential, open-ended opinion by the ICJ

• Only UNGA or UNSC can ask for them

4 types of responses (countermeasures) of states

1. Non-performance: There is no obligation to perform when the other party is not

2. Retorsion: Legal, but unfriendly, response to an unfriendly illegal act

3. Lawful countermeasures: Illegal act in response to another illegal act

4. Collective security: Collective self-defense

6 requirements for lawful countermeasures

1. There needs to be an international law violation

2. Aggrieved/wronged state must give notice of offense

3. And notice of possible countermeasures

4. Countermeasures must be proportional to injury

5. Suspend countermeasures if arbitration or adjudication has began

6. Terminate countermeasures when all demands are met

UNSC’s 4 responses to crises

1. Enforcement actions

   1. Forcible (ex: military)

   2. Non-forcible (ex: sanctions)

2. Peacekeeping operations*

   1. Traditional (low-key, thin blue line)

   2. Multi-dimensional (with state-building)

*refer to notes for characteristics of each

UNGA’s “Uniting for Peace Resolution”: year passed, what it does, binding?

• Passed in 1950

• UNGA makes appropriate recommendations for collective measures when UNSC fails to keep peace

• Not binding

Jus ad bellum

The right to go to war

Jus in bello (+ another name for it)

The right in war; how force can be used

• Humanitarian law

6 efforts (historical milestones) to limit the use and frequency of wars (+ their importance)

1. PCA (created in 1899 at the first Hague conference; gave options other than war)

2. Hague-Drago/Porter Treaty (1907; state resort to arbitration instead of war to get debts repaid)

3. League of Nations (1919; must resort to arbitration and adjudication before war, promoted collective security and peaceful resolutions)

4. Kellogg-Briand Pact of 1928 (states signed to renounce and condemn war)

5. Atlantic Charter (1941; declaration between the US and UK that outlined the right to self-government for all people and condemned territorial gains in war)

6. UN Charter (1945; outlines attempts to achieve international disputes by peaceful means)

UN charter & the use of force: Articles 2.3, 2.4 (+ its problem), 51 (+ its problem)

2.3: members shall settle their disputes by peaceful means

2.4: members shall refrain in their international relations from the threat or use of force

• Problem: its tail is too vague and can be interpreted differently

51: nothing in the Charter shall impair the inherent right of the individual/collective self-defense

• Problem: inherent brings 2 interpretations (1- armed attack must have already happened, 2- no attack is required)

5 requirements for lawful self-defense

1. Must have suffered an armed attack

2. Response is proportional (principle of proportionality)

3. Principle of distinction (only military targets are attacked)

4. No territorial occupation by defending state

5. Terminate the use of force immediately and refer the matter to UNSC

Anticipatory self-defense & its 2 types: definition, example, most legitimate

Self-defense before attack occurs

2 types:

1. Preemptive: attack is certain and imminent (ex: military on border)

   1. Most legitimate & favored

2. Preventive: sense of attack due to unfriendly behaviors (ex: US invading Iraq in 2003)

“Caroline Doctrine’s” 3 requirements for legitimate anticipatory self-defense

1. Imminence of threat

2. Necessity of use of force

3. Proportionality of response to threat

Caroline doctrine: what it tells & is it binding?

• Answers the question of when self-defense is allowed

• Developed into customary international law

5 instances in which force might be justified as self-defense (according to the Caroline Doctrine)

1. Collective self-defense

2. Use of force to protect one’s citizens abroad (with or without state consent)

3. Armed intervention in another state with its consent

4. Military reprisals in response to small-scale use of force

5. Humanitarian Military Intervention (HMI)*

*refer to cases in notes, specifically when HMI in a foreign state is allowed, under what treaties, and examples

3 pillars of the “Responsibility to Protect” doctrine

1. Responsibility of state government to protect its own population

2. Responsibility of international community to help a state protect its population from violence and abuse

3. Responsibility of International community to intervene in a country where civilians are suffering from extreme abuse

Example of a collective self-defense mechanism

North Atlantic Treaty

NATO: Founding treaty, passed when, Article 5

• Founding treaty: North Atlantic Treaty

• Passed in 1949, at the outset of the Cold War

• Article 5 of the North Atlantic Treaty = “musketeers clause”

  • “All for one, one for all”

3 key objectives of a self-defense mechanism

1. Deterrence

2. Protection/assistance

3. Punishment

3 key objectives of NATO

1. Protect Western Europe from the Eastern bloc & deter a communist/USSR-led attack

2. Preserve peace/prevent disputes among West European powers

3. Prevent spread of Communism in Western Europe

3 ways to contain brutality of war

1. Weapon restrictions

2. Principle of distinction

3. Principle of proportionality

5 key historical milestones of jus in bello

1. Lieber Code (1863; manual instructions for soldiers in the American Civil War, regulated what the Union troops could do)

2. St. Petersburg Declaration & Hague Conventions (1868 & 1899-1907; restricts use of specific weapons and sets general principles of behaviors)

3. Martens Clause* (included in the Hague Conventions, fills in holes in treaties about general behavior in war)

4. 1921 Llandovery castle opinion (the excuse of ‘superior orders’ is invalid)

5. 4 Geneva Conventions (establish rules for humane treatment during armed conflict)

*remember what clause looks like

4 Geneva Conventions: what they are, who they protect, Article III

• Establish rules for humane treatment during armed conflict

• Protect 4 categories of people:

  • Wounded soldiers

  • Wounded or shipwrecked sailors

  • Prisoners of war

  • Civilians in time of war

• Common Article 3: extends some protections to internal conflicts, covers conflicts not of international character

WMDs + types

Weapons of mass destruction

3 types:

1. Nuclear

2. Chemical

3. Biological

Nuclear proliferation + 5 reasons why it is bad

An increase in the number of states having nuclear weapons

Why it is bad:

1. Arms race: result of feeling threatened and wanting your own

2. Non-state actor may purchase or steal nuclear weapons with bad intentions

3. Nuclear weapon malfunction or accidental use, mistaken response, etc.

4. Nuclear weapon in storage can be stolen or sold

5. A state may not have adequate safety measures or logistical capacity

NPT + its 5 key provisions

Nuclear non-provision treaty

5 key provisions:

1. If you are a non-nuclear weapon state, do not make a nuclear weapon or purchase one

2. If you are a nuclear weapon state, do not sell, transfer, or help states develop them

3. All countries should have access to nuclear technology for peaceful purposes

4. Inspection regime - all countries must be open to inspection to ensure you are not developing a nuclear weapon

5. All states should negotiate to try to achieve disarmament

Nuclear weapons states (+ which ones did not sign the NPT) + states under sanctions

• US

• Russia

• PRC (People’s Republic of China)

• France

• UK

• India (did not sign NPT)

• Pakistan (did not sign NPT)

• Israel (did not sign NPT)

States under sanctions:

• DPRK (North Korea)

• Iran

Principal sources of the Law of the Sea

• Customary international law

• 1982 UN Convention of the Law of the Sea (UNCLOS)

7 maritime zones (+ mi; logic)

1. Internal waters (inside of state; is the state’s)

2. Territorial waters (~12mi; closet to the state, so belongs to the state)

3. Contiguous zones (~24mi; state can enforce laws for customs, immigration, fiscal means, etc.)

4. Exclusive economic zone (~200mi; the state has a right over managing marine resources)

5. Continental shelf (seabed, 200-350mi; gives the state sovereign over marine resources)

6. Deep seabed (beyond continental shelf; common heritage)

7. High seas (>200mi; common heritage)

These zones help distinguish the tights of the coastal state and 3rd parties

Equidistance principle

How to handle overlapping territories; equal distances

Airspace: how much belongs to the territorial state?

Up to 100km of altitude

Outer space: who does it belong to?

Everyone: res communis omnium

Regulations for the South & North Poles

South Pole: Antarctic Treaty System

• includes 1959 Antarctic Treaty (no mineral exploitation) and the 1991 Madrid Protocol (40-year long protocol for no drilling)

North Pole: res communis omnium

• The Arctic is melting due to global waiting, so tensions for exploitation will rise

5 International crimes (+ description)

• Torture (intentional infliction of severe physical or lethal pain by an official)

• Crimes against humanity (large-scale attacks against any civilian population in times of peace)

• Genocide (the intent to destroy, in whole or in part, a national, ethical, racial, or religious group)

• War crimes (violations of laws of war during war times)

• Crime of aggression (constitutes a manifest violation of the UN Charter)

2 legal effects of international crimes under PIL

1. Universal jurisdiction: can be tried anywhere, including domestic courts

2. Individual responsibility: the individual is prosecuted, easier

2 good reasons “special regimes” are needed for international crimes

1. They are brutal (heinous)

2. Those who commit these crimes are powerful and often go unpunished

IMT: what it is, founding treaty, Nuremberg Trials, structure, crimes prosecuted, 5 contributions to PIL, why organized, movie facts?

• International Military Tribunal

• Founding treaty: London Charter

• Nuremberg Trials (1945-1946)

• Organized by the US, Soviet Union, UK, and France (the 4 victorious allied powers); 4 judges and 4 prosecutors, 1 from each

• Crimes prosecuted: war crimes, crimes against humanity, crimes against peace

• 5 contributions to the development of PIL:

  • Give clear definition of crimes against humanity

  • Created “crimes against peace”

  • Set out “individual responsibility” for international crimes

  • Excluded immunities

  • Excluded (almost completely) the defense of obeying superior orders

• Organized to try individuals guilty of horrible crimes

• Movie used photographic and video evidence from death camps in court; Hermann Goring was the highest ranking Nazi official to stand trial

4 international courts that address international crimes

1. IMT (International military tribunal)

2. ICTY (international criminal tribunal for the former Yugoslavia)

3. ICTR (international criminal tribunal for Rwanda)

4. ICC (international criminal court)

ICC: what it is, what it does, key source of law, why US is reluctant to join, what it restricts (+ 3 exceptions)

• First permanent International court; no geographic limit; tries individuals

• Resolves ad hoc tribunals

• Key source of law: 1988 Rome Statute

• US is conferenced about the vague definition of ICC and does not want its president/soldiers/diplomats to be prosecuted because the US is the #1 super power

• Greatly restricts defense of obeying superior orders, unless all 3 conditions are met:

  • Suspect was under legal obligation to comply with order

  • Order was not manifestly illegal

  • Suspect did not know order was illegal

ICC: what kind of jurisdiction, 2 ways it exercises jurisdiction

• Complementary jurisdiction: only tries if domestic courts cannot/are not willing to prosecute the defendant

• 2 ways ICC exercises jurisdiction:

  • If a member state refers the case to the ICC prosecutor OR prosecutor takes on a case on her own impulse (“proprio moot”), AND

    • Suspect is a citizen of the member state, OR

    • Crime was committed in territory of member state

  • UNSC refers a case to the ICC pursuant to the UNSC’s powers under Chapter 7 of the UN Charter

How could the US be committed of a crime under the ICC if it is not part of the ICC? Israel?

• If an American committed a crime in an ICC member state

• Palestine is an ICC member; Israel is under an arrest warrant of ICC

Key sources of immunity

• International customary law

Where international crimes are defined

International customary law

Crimes against humanity

• London Charter

• 1998 Rome Statute

War crimes

• Any violation of “Laws of war” found in the 4 Geneva Conventions

Genocide

• Genocide Convention

• 1998 Rome Statute (as part of crimes against humanity)

Crime of aggression

• Article 8B amendment to the 1998 Rome Statute

6 obligations of signatories of the Genocide Convention

1. Prevent it & punish those responsible

2. Punish even government officials

3. Enact domestic laws to implement the convention & provide remedies

4. The accused shall be 1) tried in the state the crime was committed in, 2) extradited in accordance with treaties and laws, or 3) tried by competent international court

5. UN may be called upon by states to take action for prevention or suppression

6. ICJ has jurisdiction over disputes about the convention

According to the Nuremberg movie, who was the chief American prosecutor? The highest ranking Nazi official to stand trial?

American = Justice Robert H Jackson

Nazi = Hermann Goring

Who is the head of the office of the prosector of the ICC?

Karin Khan (UK)

8 key environmental problems

• climate change

• harmful chemicals including POPs

• whale hunting

• long-range and transboundary air pollution

• stratospheric ozone depletion

• deforestation

• desertification

• endangered species

4 tools used by international community to address global environemtnal problems

1. Treaties (MEAs)

2. Soft law (i.e., declarations, practices, UNGA resolutions)

3. Global environmental conferences (1972 Stockholm Conference & 1992 Rio Earth Summit)

4. IGOs (UNEP, IPCC)

“Framework convention provided by a protocol” model

Framework is often less restrictive and not binding, thus more states are willing to try it out. Protocols are binding and require restrictions, but states are more willing to try them after a framework.

COPs/MOPs

Conferences/Meetings of parties

Are regular meetings for an MEA

Sustainable Development (+its importance)

Development that meets the needs of the present without compromising the ability of future generations to meet their needs (balances needs for economic development and environmental protection)

5 pillars of the CBDR principle

Common but differentiated responsibilities

5 pillars:

1. All counties share a common responsibility to protect the environment

2. Wealthy countries are primarily responsible for historical/accumulated environmental degradation

3. Wealthy counties have greater capabilities (financial, technological, administrative)

4. Wealthy counties should take on stricter and tougher environmental obligations than developing countries

5. Wealthy countries should assist with developing countries to meet their environmental commitments with financial, technological, and administrative aid

3 milestones of international environmental law (+ description)

1. Bering Sea Arbitration (1893): Though US lost against the UK, they claimed they were acting for the ‘common good’ but trying to save fur seals from extinction.

2. Trail Smelter Arbitration (1941): Between US and Canada, no state has the right to use or permit the use of its territory in ways that harm the environment of another state.

3. Pulp Mills Case (2010): Between Argentina and Uruguay, when there is a risk of transboundary environmental harm, one should prepare an Environmental Impact Assessment.

4 MEAs (Multilateral environmental agreements)

1. Ocean pollution and fish stock depletion

2. Endangered species

3. Air Pollution

4. Hazardous waste

Where are the ICJ and ICC located?

The Hague, Netherlands

ICC: 4 types of crimes it tries

1. Genocide

2. Crimes against humanity

3. War crimes

4. Crimes of aggression