Public International Law

law that governs relationships between, or among, nationstates

International Law Historically and Presently

Law that applies to conduct of nationstates and of international organizations Law that applies to relationships between nation-states and international organizations Law that applies to some relationships between nation-states or international organizations and persons see Restatement (Third) of Foreign Relations Law of the United States ' 101 (1987)

The Nature of International Law

Supremacy of International Law

Intl. Law supersedes national law

Supremacy of International Law

Internationally, national law never supersedes international law Domestically, national law may take precedence over international law

Enforcement and Compliance

When international law is enforced on national level, it follows the same principles as domestic law But International courts do not have jurisdictions over national/domestic affairs, cannot enforce without cooperation

History of International Law

Hugo Grotius (1583-1645), De Jure Belli Ac Pacis (1625) systematic overview of the international law of war and peace Emmerich de Vattel (1714-1767), The law of Nations (1758) practical and cited guide to international law

History of International Law

Positivism Richard Zaouch (1590-1660) Actual state practices as a source of international law law emerges as a consent of states cf. social contract)

 Article 38(1) of the Statute of the International Court of Justice (UN) Restatement (Third) of 102(2) International conventions, agreements, treaties International custom customary international law General principles of law Judicial decisions (international and national) and the teachings of qualified publicists

Sources of Public International Law

Article 38 (1) of ICJ

A rule cannot be deemed international law unless it is: International convention or treaty International custom or General principle of law But do they have the same hierarchical value?

Source: Treaties

depends on whether U.S. is a party and whether multilateral or bilateral List of treaties US is a party to Treaties in Force in 2007 http://www.state.gov/s/l/treaty/trea

Source: Treaties
List of treaties US is not a party to http://untreaty.un.org/ENGLIS H/Summary.asp (more research is necessary)

International Treaties
Bilateral a treaty involving 2 parties

 Multilateral a treaty involving many parties

International Treaties

International Treaties
"This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty."

 evidence of state practice in: records of a states foreign relations and diplomatic practices (as set forth in official statements, diplomatic exchanges) states domestic court decisions states internal legislation concerning its international obligations resolutions, declarations & legislative acts of intergovernmental organizations

Source: Customary International Law

Opinio Juris
Its not enough for a practice to be widely followed It must come from sense of obligation followed by significant number of states and not rejected by significant number A shared conviction that the rule is obligatory Once practice becomes the law, it is obligatory to all states that have not objected to it

International Customary Law and Newly Independent States

Are new states bound by international customary law in force, since they did not have a chance to object to it? Yes, according to Restatement of 102(2)

General principles of international law recognized by civilized nations

Historically more important - now, modern international law relies less upon general principles than on conventional and customary sources

General principles of international law recognized by civilized nations

The lines blur between custom and general principles: often, general principles will establish norms that then become custom look to decisions of international tribunals for a determination of what are general principles

Secondary sources on International Law

judicial decisions teachings of publicists: recognized authorities on international public law Both serve as proof of existence of a rule of international law

International Law, States, and International Organizations

States: When is a State a State Internationally?

Recognition of new state Old: defined territory, permanent population, effective government, capacity to enter into relations with others Now: degree of governmental control may be weak in the beginning, if consentual change of government Also additional conditions

Ex. of New Recognition of States: Dissolution of USSR

 New guidelines:

Ex. of New Recognition of States: Dissolution of USSR

Recognition in US practice
Stems from presidential power to receive Ambassadors and other public ministers Exclusively an executive branch prerogative (not banks, or companies) Recognized states have a right to: Bring a law suit in US courts Claim sovereign immunity in US courts and receive diplomatic protection

International Organizations: Characteristics

Institutions established by treaty Composed by states and/or international organizations Regulated by international law Have legal rights as organization

International Organizations: Legal Issues

Membership criteria Voting issues Budgetary issues

 October 24, 1945 multilateral treaty and charter which is UN constitution Initially 54, now @ 200 ind. states Universal organization (in scope and function) Responsibilities:

UN

UN
Debate over intervention in internal affairs of member-states: prohibited unless authorized by Security Council UN charter has supremacy over all other states international obligations Voting procedures: SC: unanimous, GA: 2/3 for important decisions, >50% for all others

UN
Very few UN resolutions adopted by GA are binding (decisions on budgetary matters), all others are recommendations UN resolutions adopted by SC are biding for all if all SC members agree there is a threat to peace or act of aggression: UN SC resolution to impose sanctions on Iraq in 1990

Regional International Organizations

Same as Intergovernmental organizations, except their mandate is to deal with regional problems (general or specific) Council of Europe, NATO, OAS, African Union, ASEAN Issues of membership

Supranational organizations
Unlike other intergovernmental organizations has power to bind its members by its decisions

Non-Governmental International Organizations

Third type of subject of International law

Territorial Sovereignty and Methods Used in Settling Disputes between States

Priority given to peaceful means: Solution by negotiation Enquiry Mediation Conciliation Arbitration and adjudication Judicial settlement

Peaceful Non-Judicial Means of Conflict Settlement

Negotiation: through diplomatic correspondence or face-to-face negotiations US and Japan trade policy Inquiry: designation of impartial group to do fact-finding mission, unambiguous finding may put an end to disputes over facts Conciliation: more formal, parties are not obligated to accept recommendations of third, formal party, but existence of report makes more difficult to disregard it

Peaceful Quasi-Judicial Means of Conflict Resolution

Arbitration and Adjudication: binding to parties involved, not subject to appeal, ruling may be challenged in national court, but only in very few special circumstances Deference: Arbitration is ad hoc panel, agreed upon by parties Adjudication: permanent court with fixed composition and preexisting rules of procedure and jurisdictional standards

Special Case: International arbitration and individual

Arbitration between the state and the individual (corporation)

Special Case: International arbitration and individual

International Chamber of Commerce (Paris) International Center for Settlements of Investment Disputes

Iran-US Claims Tribunal

Judicial Methods of Peaceful Conflict Resolutions

Rulings of international courts Relatively new phenomenon Central American Court of Justice (1908-1918) International Court of Justice International Tribunal for the Law of the Sea

Judicial Methods of Peaceful Conflict Resolutions

Ad hoc international crime tribunals International criminal curt Court of Justice of the European Community European Court of Human Rights Inter-American Court of Human Rights African Court of Human and Peoples rights

Jurisdiction and Immunities from Jurisdiction

ICJ
Part of UN All UN members are ipso facto members of ICJ 15 judges from 15 different states Elected by UN GA and SC with absolute majorities in both Contentious jurisdiction and advisory jurisdiction

Contentious jurisdiction
Only to disputes between states which have accepted courts jurisdiction (on ad hoc, through treaty provision, or unilaterally)

US and ICJ jurisdiction

US nominally accepts ICJ jurisdiction over its actions and actions of its nationals but with very serious reservations Connally Amendment (Texas Senator) US excludes from jurisdiction of ICJ disputes over matters in domestic jurisdiction of US as determined by US Self-judging rule: US and not ICJ decides what is a domestic and what is in international dispute

US and ICJ jurisdiction

1985: declaration of US termination of acceptance of ICJ jurisdiction

US, ICJ and National Security Considerations

US claims that matters related to national security and self-defense must be excluded from ICJ jurisdiction (hence its decision to withdraw after US-Nicaragua litigation) Problem: when is a matter a security concern?

Other Important Courts and Their Jurisdictions

Ad Hoc International Criminal Tribunals ICTY (Hague) and ICTR (Arusha, Tanzania)

Other Important Courts and Their Jurisdictions

2000 Treaty of Rome, ICC created in 2002 100 states signed and agreed that ICC will have jurisdiction to prosecute their nationals suspected in genocide, crimes against humanity, war crimes, and aggression

Other Important Courts and Their Jurisdictions

2005: UN SC referred Sudan to ICC for Darfur US withdrew in 2002

Other Important Courts and Their Jurisdictions: European Court of Human Rights
Established in 1959 Now all members of Council of Europe are parties to it (Russia too) Constitutional Court of Europe

International Law and Specific International Issues

International Law and Human Rights

International Human Rights Law

Two applicable laws 1. International law of human rights: protects regardless of nationality 2. Law on responsibilities of states for injuries to aliens: protects individuals against violation of their rights only when their nationality is not that of offending state If stateless or national of offending state, individual has protection only of international law of human rights

International Law of Human Rights: History

doctrine of humanitarian intervention (DHI) Grotius Peace treaties after WWI formal protection of national, religious, linguistic minorities under League of Nations International Labor Organization international standards for protetion of workers

International Law of Human Rights: History

UN charter (art. 55) protection of individuals for their intrinsic value UN member obligations: promote universal respect and observance of human rights for all without distinction as to race, gender, religion, or language UN members to take joint and separate action to guarantee these rights

International Law of Human Rights: History

Universal Declaration of Human Rights (GA Res. 217A, 1948): non-binding, but acquired status of customary international law (esp. freedom from torture, slavery, arbitrary detention, discrimination) But also positive rights to work, education, health care (not specific enough)

International Law of Human Rights: History

1966: UN International covenant on Civil and Political Rights: rights of selfdetermination and other, much more precisely delineated rights (required ratification) US ratified only in 1992 1966: UN International Covenant on Economic, Social, and Cultural Rights positive rights guaranteed only if resources are available not ratified by US

European Human Rights Law and Institutions

European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) European Court of Human Rights

Inter-American Human Rights Law and Institutions

Charter of the OAS and American Convention on Human Rights US, Canada, and Commonwealth of Caribbean states did not ratify Convention

International Human Rights: International Humanitarian Law

Applies to situations of international armed conflict and (occasionally) internal armed conflict 1949 Geneva Convention ratified by > 190 states: protection to victims of war Applies mostly to international armed conflict For internal conflict only art. 3 government and insurgents to treat each other humanely

Humanitarian Law: War Crimes and Crimes Against Humanity

ICTY and ICTR based on Geneva Convention and Nuremberg Tribunal International Human right law thus has practical applicability, even in US (next slide)

Human Rights and Humanitarian Law: Practice

Handan vs. Rumsfeld (2006)

International Environmental Law

Principles of International Environmental Law

1. Common Heritage and Common Concern of Humankind 2. Prevention of Environmental Harm

Principles of International Environmental Law

3. Precautionary Principle

Principles of International Environmental Law

4. Polluter pays 5. Principle of Common but Differentiated Responsibilities

Principles of International Environmental Law

6. Principle of Intergenerational Equity

International Environmental Law: History

Late 19th century: first interstate agreements regulating international fishing, protecting flora and fauna Regulation of use of water But bulk of environmental law -- 1960s

 1972 UN Stockholm Conference (113 heads of states) Declaration on Human Environment: politically binding principles to be followed by governments in preserving human environment, but recognized economic realities limiting environmentalism Also adopted politically binding Action Plan: creation of UNEP Numerous more specific conventions in 1970s and 1980s

International environmental law: History

International Environmental Law: History

1992 Rio Conference (172 heads of states): conventions on climate change and diversity, Agenda 21 1997: ICJ addresses dilemmas of economic development and environmental protection (Gabcikovo project of dams and locks on Danube) not enough to claim ecological necessity in closing economic project Need to practice sustainable development

Ecodevelopment Sustainable Development

2002 Johannesburg Conference Prospects

Ozone Depletion Treaty

1987: Montreal Protocol on Substances that Deplete the Ozone layer Reduction of production of ozonedepleting chemicals Non-compliance procedure: if having a difficulty in meeting requirement, country can be reported to committee Warning, suspension of rights and privileges and assistance

 Reduction of carbon dioxide emissions by 5.2% below 1990 levels by 2012 Controversies emission trading, how to count carbon sinks (forests, rangeland, farmland) which reduce emissions, problem of noncompliance US: treaty is not scientifically-based, unfair burdens, not environmentally effective With Russia signing it in 2005, in effect

Kyoto Protocol

1992 Pact on Biodiversity

Protection of biodiversity is responsibility of national governments But genetic resources have economic value (biotechnology) States should provide access to such resources for environmentally sound uses States should share in a fair and equitable way results of biotechonology with the state providing resource (US objected)

International Law and the Use of Force

General Principles
The use of force is prohibited in international relations Article 2(4) of UN Charter: All members shall refrain I their international relations from the threat of use of force against territorial integrity or political independence of any State

What it means
Armed reprisal by a state to punish unlawful act of another state is not permissible under international law Or As long as it does not threaten territorial integrity and political independence, force can be used for protection of human rights (few agree with this)

 ICJ ruled against UK, Eritrea, and Uganda in violating sovereignty of other states even then motives were good

What it means

Another General Principle

Inherent Right of Self Defense Recognized as legitimate (article 51 of UN Charter) Nature of initial attack does not need to be conventional (one state or government attacking the other) Al Qaeda in Afghanistan US exercised a right of self-defense UN and intl. community supportive SC passed 2 resolutions recognizing US actions as self-defense

Preemptive War as SelfDefense

With WMDs states and scholars assert a right of anticipatory selfdefense Doubts about ability to predict future attacks, also intent vs. means

Peace Enforcement
UN has a primary responsibility under UN charter Originally envisioned that states will enter into agreement with US for their forces to be called up by SC in case of armed conflict

UN Security Operations, 1945-1989

Rarely invoked because of ideological divide The only SC authorization to use force in case of breach of peace was in 1950 (N.Korea attacked S. Korea), when USSR boycotted SC

UN Security Operations in the 1990s

More active in authorization 1990 Iraqs Invasion of Kuwait: UN authorized states to use all necssary means to uphold its resolution for immediate withdrawal 2003 US and UK invasion of Iraq: plausible, but unpersuasive justification

UN Security Operations in the 1990s

1990s: authorizations to use force to address human rights violations 1992 UN authorization for US-led intervention in Somalia 1993 UN authorization for NATO air strikes in Bosnia 1994 UN authorization for France to intervene in Rwanda 1994 UN authorization for US to intervene in Haiti

What do you think about International Law and US foreign Policy