ECH 4355 Midterm

Sources of International Law

ICJ Article 38(1)

* International Conventions
* International Customary Law
* General Principles of Law recognized by civilized nations (secondary)
* Judicial Decisions and Legal Writings (secondary)

International Conventions

* can be bilateral, multilateral, trilateral, etc.
* Ex. UN Charter
* binds those who have signed it and no one else
* must be ratified to be binding
* punishments for non-compliance are built into the treaty
* treaties are written in state interest, language is either vague or the thresholds are high to meet
* written by states for states

International Customary Law

* not written
* treaties are codifications of treaties
* needs: general practice (consistent behaviour) and opinio juris (sense of obligation)
* applies to all states, not just those who have signed a treaty
* jus cogens are customary law
* can be problematic because some state's behaviours is weighed more significantly than others
* has to already be a sense of obligation for customary law to exist (embedded paradox)

General Principles of Law recognized by civilized nations (secondary)

* establishment of UN Charter - Victors of WW1 would gain administrative powers over regions and would be considered civilized nations
* Civilized nations: Western centric idea that some principle of behaviour has metabolized in the West and not elsewhere (problematic)
* can help find legal action in cases

Judicial Decisions and Legal Writings (secondary)

* from highly qualified publicists (DWM)
* secondary source of IL

Jus Cogens

* set of principles that compel and limit behaviour, peremptory norms
* no treaty or state domestic law can go against jus cogens
* difficulty in implementation (like R2P)
* some have conventions (like Genocide) - high thresholds to be met
* right to self-determination of people, aggression, torture, genocide, slavery, racial discrimination, segregation, piracy

Montevideo Convention

1933

* codifies definition of statehood
* customary IL
* a state needs: territory, government, population, ability to participate in relations with other states and entities

UN Charter and Use of Force in IL

Article 2(4) of the Charter: protects from the threat of use of force - to prevent coercion/manipulation \n Article 51: self-defence if an armed attack occurs \n Chapter 6: requires states to settle disputes by peaceful means \n Chapter 7: enables UNSC to take coercive action for threats of peace

Article 2(4) of UN Charter

All 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.

* even those who have not signed are bound by jus cogens (principle of non-aggression)
* jus ad bellum (law that governs the use of force, law that regulates war)

Article 51 of the UN Charter

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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.

* have the right to attack back and report it to the UNSC and then allow UNSC to take over to restore international peace
* 1991 Sadam Hussain attacked Kuwait, Kuwait defended itself and reported it to the UNSC, UNSC established a path forward (sanctions, diplomatic pressure, use of force against Iraq)
* sets self-defence as at time of attack

Chapter 6 (UN Charter)

peaceful settlement of disputes

Chapter 7 of UN Charter

sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security".

What the UN Charter does not discuss about use of force

* anticipatory self-defence
* humanitarian intervention

Caroline Affair

* dispute between the United States and Great Britain concerning an American steamship chartered by Canadian rebels
* letter exchange after the ship was sunk set basis for customary IL
* set of principles now known as the Caroline Test
* basis for anticipatory self-defence

Caroline Test

* threat must be imminent
* unavoidable, all other avenues must be exhausted (last resort)
* force used must be proportionate to the threat

Six Days War and Caroline Test

* war was imminent and avoidable
* movement of troops, expulsion of UN troops, etc.
* Israel's attack on June 5 was considered proportionate
* passed the Caroline Test

How does the Bush Doctrine challenge the Caroline test?

* says that Americans should not wait to be attacked, but proactively disrupt and defeat terrorists


* challenges imminent danger principle
* not pre-emptive military strikes, but preventative war

Humanitarian Intervention

* Intervention for humanitarian purposes to prevent gross violations of human rights without the consent of the country
* falls into a gray area of IL
* need to protect human rights, issue of sovereignty
* R2P doctrine - soft law, set of guiding principles (customary IL)
* 7 criteria of humanitarian intervention

Issues in Humanitarian Intervention

* scope of atrocities
* responsibility of atrocities (effort at identification)
* exhaustion of peaceful and consent-based remedies
* authorization and legitimization of intervention
* interests and concerns of intervening powers
* purpose and results of intervention
* observance of humanitarian norms by intervening forces

Elements in R2P

* element of influence
* element of responsibility
* element of proximity

Libya and R2P

* clear example of adoption of R2P
* 2011, Gaddafi crackdown on protesters against regime
* UN Security council adopts R2P resolution
* establishes a no-fly zone and authorises members states to take any measures to protect individuals -> air strikes

Concerns for Humanitarian action

* use of armed force to protect civilians
* politicization of the protection of civilians
* public positioning of humanitarians to use force

Justifications for intervention for Iraq War (2003)

US: tried to get the UNSC to adopt a new resolution to use force to stop production of weapons of mass destruction, argued a case for the Bush Doctrine for pre-emptive self-defence, and humanitarian intervention to protect the Kurds \n UK: no need for new resolution, can use the 1990 resolution because this is a ceasefire as well \n - reviving the 1990 resolution (Iraq-Kuwait) does not hold because it was only for the Kuwait case

What are sanctions in Canada?

* to punish countries that are taking actions we do not agree with without actually going to war
* meant to hurt the economy to change the country's behaviour
* can be: military-related, export or import bans, list of people/entities that you cannot do anything with,
* asset freezes of property belonging to designated persons, restrictions on financial and other transactions, limited export bans (and import bans), or bans on facilitation of prohibited transactions

Who do Sanctions in Canada apply to?

* people in Canada and Canadians outside of Canada
* Canada does not have any extra-territorial application to our laws (like US)

Sanctions Acts in Canada

* Special Economic Measures Act (SEMA): Canada imposes our own sanctions based on our own decision-making, often consistent with allies. In an absence a UNSC resolution, SEMA allows Canada to impose sanctions
* United Nations Act (UNA): Enables the Government of Canada to give effect to decisions passed by the United Nations Security Council("UNSC"), where it has decided a measure shall be taken to restore or maintain international peace and security (domestic legislation)
* Justice for Victims of Corrupt Foreign Officials Act (JVCFOA): Allows Canada to impose an asset freeze and a dealings prohibition against individuals who are responsible or complicit in gross violations of internationally-recognized human rights, or• are foreign public officials, or their associates, who are responsible for or complicit in acts of significant corruption (specific individuals)

Uncertainty of Sanctions

* have to have pretty much all countries to impose sanctions to have an impact
* broad and no guidance in implementation
* permit system is inconsistent and backlogged
* no enforcement measures towards sanctions
* a lot of technical uncertainties (threshold of ownership, intellectual property rights, anti-facilitation clause, payment of taxes/paying employees)
* a lot of Canadian businesses have pulled out entirely to not risk violating sanctions

4 Key principles in International Law

1. Sovereignty
2. In treaty law, treaties have to be implemented in good faith
3. Reparations - obligation is to put the way things were before the violation (status quo ante)
4. International law has different cultures that exist and recourse mechanisms

* recourse mechanisms: name and shame, facilitative mechanisms, third party monitoring, international tribunals, international criminal accountability (after Nuremburg)

Pillars of R2P

* every country has the responsibility to protect
* international community has to encourage and assist states in that responsibility
* failure to do so leads to collective action in accordance with UN charter

Justifications of R2P

* seriousness of harm
* last resort
* balance of consequences (likelihood of success)
* purpose of intervention
* proportionate means