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Final Exam POLI 483 Flashcards

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1
Q

Foundation International Law Opinions

A
  • international law not as a legal system
  • Nicolas Luhrman: modern law closed self referential system. international law lacks authority, operates through outside influences
  • HLA Hart: itnernational law as a set of primary rules that lack secondary rules (constitutional legal provisions)
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2
Q

Ancient Rome

A
  • jus civile: domestic civil law
  • jus gentium: laws of nations. ideals of justice observe in all countries. Romans and foreigners. (foundation for international law)
  • jus naturale: law of nature, implanted in free men and accessible through reason.
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3
Q

Midevil Period

A
  • further development of jus gentium
  • prior to protestant reformation, Catholic church as an institution provided supranational authority. Ecclesiastical law covered some international law issues such as right of conquest.
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4
Q

Peace of Westphalia

A
  • end of 30 years war provided necessary foundation for international law through the rise of modern nation states.
  • jus foederationis (states formally equal). states primary legal actors with full suite of rights
  • lasting distribution of power in Europe and decline of the Catholic church as an international authority
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5
Q

First Evolutionary Stage of International Law

A

Cassesse (chief justice for international criminal tribunal on the former yugoslavia)

  • 1648-1918
  • Grotian: set of rules in pursuit of self interest. descriptive
  • European domination , American isolationism and Latin American independence
  • Must show: effective occupation, de factor control of territory, intent to appropriate resources to legally acquire colonial territories.
  • Group 1: Siam (Thailand), Persia (Iran). capitulation system, unequal legal relationship. European nationals living in these states had special legal privileges that contravened state sovereignty.
  • Group 2: seen as available for conquest, legal under international laws. terrae nullius: empty territory
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6
Q

Treaty of Paris

A
  • any monarch removed by a revolutionary uprsiging gets removed from the concert and the treaty
  • new revolutionary states not recognized as states by others
  • use force to put down revolutions. military intervention
  • dispure resolution meetings through concert of Europe. measure to enhance peace, security and economy.
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7
Q

Main Legal Features of International Law in Stage 1

A
  • legal right sanction colonialism.
  • no restraint on the use of force
  • extraterritorial protection of nationals abroad
  • emergence of humanitarianism 1899 Hague Conference: Martens clause in the preamble. resort to force needs to be in accordance with principle of humanity with respect to civilized nations. prohibition on weapons causing unnecessary suffering. laws of humanity and dictates of public conscience accepted as customary law without usus (general practice).
  • Berlin Conference 1878 protection of minority rights for Christian Armenians in ottoman Empire.
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8
Q

Second Evolutionary Stage of International Law

A

Cassesse (chief justice for international criminal tribunal on the former yugoslavia)

  • interwar years
  • WWI strong motivation to restrict the use of force. end of colonial expansion and rise of the US
  • Bolshevik Revolution, reject international law as it is capitalist and protects the bourgeoisie
  • collective security: attack on one is an attack on all
  • League of Nations: weak enforcement. Permanent Court of International Justice as a dispute resolution mechanism. arbitrate before armed conflict
  • Pact of Paris/Kellogg Briand Pact: prohibition on aggressive war, only permissible for self defense. no enforcement mechanisms. GB wide definition of self defense. threat to the entire empire. Monroe Doctrine and American hegemony for US as well. Italy/Ethio walk away from Pact
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9
Q

Third Evolutionary Stage of International Law

A

Cassesse (chief justice for international criminal tribunal on the former yugoslavia)

  • Kantian, principles ought to be upheld by international law: peace, human rights, self determination
  • UN Charter to End of Cold War
  • Immediate Post War Goals: end aggressive war, punish wrong doing, end colonialism
  • UN Charter 1945. Declaration of Human Rights extend to all individuals. Cold War kneecaps Security Council
  • London Charter (IMT) Nazi leadership Nuremburg
  • UNGA venue for new states to advance self determination and racial equality.
  • codification of customary rules in to treaty law
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10
Q

Fourth Evolutionary Stage of International Law

A

Cassesse (chief justice for international criminal tribunal on the former yugoslavia)

  • End of Cold War to Now
  • trend towards military alliances and regionalism. NATO
  • transnational terrorism, legal modification of self defence post 9/11 controversial.
  • slower pace of treaty proliferation
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11
Q

International Relations Theory and Law John Austin

A
  • Command Theory of Law. not divine or moral, legal positivism only commands of the sovereign.
  • hostile to international law. law as command of the sovereign, no supranational authority so IL not law.
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12
Q

Realism and IL

A
  • rational actor, power maximization. treaty too high a cost. leave, don’t sign or defect
  • realists who accept it exists: Morgenthau cynical legal agreements: only sign for national interest to defect bc not enough of a restraining effect. treaties only work in the short run. international law leads to security bc it reflects a states’ national interest. military power is the number one determinant.
  • English School: IL useful it states have shared purpose and norms
  • Waltz: relative power distribution, IL no capacity to impact behavior.
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13
Q

Liberal Institutionalism and IL

A
  • international law as regimes
  • rational actors with long term interests and a focus on absolute gains
  • proliferation of IL post 1945, higher rate of compliance.
  • reputation stakes
  • Krasner: move away from IL bc negative connotations so use international regimes: rules norms, decision making procedures and collective expectations.
  • practical reciprocity constrains use of force and treaty defection.
  • Guzman: reputational stakes. signal to other states that you are a good international citizen to build reputation. modern treaties facilitate this through clear obligations, mandatory dispute resolution and monitoring.
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14
Q

Constructivism and IL

A
  • Rendt
  • accept anarchy, but states not rational cost benefit actors. actors engaging in social interactions-shared meaning, relationship and identity
  • international drawn from and reflects shared meaning. see yourselves as partners. NATO based on shared meaning
  • norm generation: international law responds to a situation which results in the creation of a norm. ex) Genocide convention.
  • norm internalization is the ideal outcome, over time adopt the norm as part of state identity
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15
Q

Lotus Principle

A

1926 PCIJ Lotus Case

  • France and Turkey on the high seas
  • possible for LON members to register and refuse to apply or comply with a customary rule at the point of its inception.
  • unless an act is prohibited, state free to do it. hyperlegal positivist decision.
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16
Q

General Principles for Treaty and Customary Law

A
  1. later law repeals earlier one in the same subject
  2. later general law does not derogate from an earlier special law
    - special law prevails over a general one.
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17
Q

Customary Law Definition

A
  • ICJ statue: evidence of general practices accepted as law
  • general practics: show suffieint evidence. objective element
  • general conviction or agreement: opinion juris or opinion necessitates. equally important, show one of the other. subjective element
  • opinion juris: states believe they are bound by law. general conviction
  • opinion necessitates: econ, social, pol, security necessity inherently.
  • Hans Kelsen: unconscious and unintended law making
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18
Q

Features of Customary Law

A
  • practice extensive and uniform (ICJ North Sea Continental Shelf 1969). narrow and high bar for usus (general practice).
  • over rides 1969. practice not perfectly uniform. ICJ nicaragua 1986. more flexible. possible instances of non compliance does not mean the rule does not exist.
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19
Q

Development of Customary Law

A
  • early practice: self interest/needs were the opinion necessitates. normal course of intl politics subjective element that first appears.
  • later practice: opinion juris. no longer tied to specific circumstances. ex_ UN declaration of Human rights customary law due to longevity and acceptance. usus backseat now if customary law has yet to evolve enough. ex) US/USSR Space Arms Race. no nukes in space, became treaty.
  • end of tacit agreement. the persistent objector thesis has been abandoned (if state can show that at no gimte it engaged in the stated practice, exempt).
  • CL for all
  • need tacit agreement (engage in practice = consent) for regional (state invoking must prove)
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20
Q

Customary Law in the Present

A

-retrenchment:
new states reject the old. prefer treaty law as it was not used to exploit or disadvantage them.
lack of responsiveness: new states need results asap
lack certainty: treaty making process. hard to clarity customary
-acceleration: new customary law develops quickly. role of UN and IO’s, greater interaction encourages new customary laws
greater agreement/pressure to come to consensus.
less formal process for issues that cannot be clearly settled by treaties
regulation without treaty

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21
Q

Codification of Customary Laws into Treaties

A
  • laws of state responsibility, laws of state succession and law of the seas
  • international law commission sixth committee of the UNGA
  • declaratory effect: take what states have already been doing and make it in to a treaty
  • crystallizing effect: customary rule that is forming, opinion necessitate calls for immediate codification
  • generating effect: strong sense that a violation is a violation of core basic laws, ex Geneva Conventions
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22
Q

Nature of Treaties

A
  • any written agreement between states. merger of wills. voluntary
  • Vienna Convention on the Law of Treaties, regulate treaty formation to avoid disadvantaging the global south. democratization, great powers cannot impose on weaker states
  • no perverted purpose such as forbidden activities
  • jus cogens: principles that cannot be violated under any purpose
  • must comply with all levels of international law, implemented 1980, customary law now.
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23
Q

Solemn v.s Simple form Treaty

A

In Solemn Form
-diplomatic negotiation/signature. someone with full diplomatic power
-final test, signature but treaty not in effect till ratification
In Simple Form
-often small bilateral or regional
-technical/specific issues, lower level diplomats and tech experts without full diplomatic powers.
-do not need ratification.

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24
Q

Reservations Traditionally

A

Traditional Era

  • when sign the treaty, state don’t want to be bound by certain provisions
  • conditions: different interpretation and application.
    acceptance: all other states explicitly accept exclusions and conditions. gave all other states veto power to help ensure integrity of treaty (contrary to legal equality of states).
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25
Q

Reservations Currently

A

Current

  • Vienna Convention
  • states can reserve but in some cases it is expressly prohibited
  • no reservations can be fundamentally incompatible with the object and purpose of the treaty
  • can object to a reservation but cannot veto, more flexible. treaty can still be ratified
  • respects state sovereignty and makes domestic ratification easier but undermines the treaty making process
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26
Q

Grounds for Invalidity of a Treaty Traditionally.

Termination

A
  • gunboat diplomacy: ignore duress and coercion. not reason to invalidate treaty
  • corruption of state officials, inducement, not reason to invalidate
  • any content, even perverted content was permissible
  • Termination: frequently abandoned, denounced in public statement
  • earlier treaties had no termination clause, denunciation often results in diplomatic crisis
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27
Q

Vienna Convention on the Law of Treaties and Termination

A

-termination clauses ( not the same as withdrawal)
Can revolve around:
Article 60 Material Breach
-repudiation: claim the treaty is not being upheld by critical mass in its entirety, need evidence of material breach
-violation: parties violating resulting in loss of structural integrity of the treaty. must be core object of treaty
Article 62 Change in Basic Conditions
-change in circumstances that formed the essential basis of consent
-the change must radically transform the extent of the obligations. not possible due to material conditions
-exceptions: border disputes, change due to state’s conduct

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28
Q

Peremptory Norms

A
  • special class of customary norms from which there can be no derogation. no violation under any circumstances
  • violation = gravest moral wrong. designed to have deterrent effect
  • Emerges in the late 1960’s from new states and socialist states to preserve their gains post colonial rule
  • Western states not so keen to accept, fear violations of their sovereignty
  • domestic laws must also comply with jus cogens
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29
Q

Scope of Jus Cogens

A

Vienna Conventions 69 and 86

  • Article 53: no derrogation, only modified by general norm of international law of same general character or evolve over time
  • consent by important and representative states
  • limited scope to dissent
  • peremptory norms because they have the quality of jus cogens (compelling law)
  • but still do not cause a massive threat to sovereignty so states still violate them
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30
Q

Instances of Jus Cogens and its Limitations

A
  • no exhaustive lsit
  • ILC Draft Article on State Responsibility
  • prohibition on aggression. can use force to defend self
  • Four Laws of Armed Conflict principles as peremptory norms: war crimes, crimes against humanity, genocide
  • Invalidation of treaties only available to parties to treaty and Vienna Convention
  • customary law: invalidation/termination of treaties. cannot even denunciate.
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31
Q

Current Grounds for Invalidity of a Treaty

A
  • absolute grounds: coercion, use or threat of force, implied prohibition on political/economic coercion
  • relative grounds: errors in fact, selective invalidation, fraud or corruption, violation of domestic law, restrictions on negotiating state representative: must have power to sign, represent state and not self interest. victim state can continue in the treaty if so choose. not so for absolute groudns.
32
Q

Legal Interpretation of Treaties Traditional

A
  • rules of logic, no formal rules
  • general character of IL, how its understood at the time
  • purpose of interpretation: finding intention
  • Pre Vienna Convention-subjective interpretation approach (US, France, Italy) framers of treaty to figure it out through the travaux preparatoir
  • Objective interpretation (UK, Common Wealth)
  • not concerned with political debate because does not give info about the law. text of treaty final version, look at that to interpret law
  • International systems used both subjective and objective, led to incompatibilities at times
33
Q

Legal Interpretation of Treaties (Current)

A

-meaning doctrine
-interpretation in good faith, how it is read is how it is, ordinary meaning.
-linked to object and purpose
-purposive doctrine: should be clear, any interpretation should further purpose not undermine it.
-effectiveness principle: effective and useful, no point in interpreting treaty that leads to no action or use
Travaux to confirm meaning if there is confusion
-Art 32 when to use travaux

34
Q

Legal Subjects in International Law

A
  • states
  • insurgents
  • others such IO’s and individuals
35
Q

Requirements for Legal Recognition of other States

A
  • effectiveness principle: central structure capable of exercising control over pop and territory. political authority. exclusive control to show effective possession.
  • recognition by other states, does not confer legal statehood but important politically. undermines the sovereign equality of states, old approach but current effectiveness approach: statehood independent of recognition.
  • significance of recognition: political willingness to interact with a new state and proof of factual conditions of statehood. confirmation not conferring. recognition of en estoppel.
  • premature recognition is unlawful interference in domestic affairs. ex) secessionist movements
36
Q

Changing Conditions and Timing of State Recognition

A
  • current: effective control plus good behavior. unsettled but growing movement towards.
  • Unwritten rule for the EU. if violate international law, should not be recognized
  • Timing: usually slow (ex: Cad recognition of Kosovo), non recognition of ‘bad states’. when two entities claim statehood, must choose Israel//Palestine or Taiwan//China
37
Q

Changes in Territory of a State Can lead to…

Non Localized Treaties

A

-dismemberment: complete break up such as USSR Yugoslavia. must apply to IO
-merger, 1871 Germany, original state ceases to exist and a brand new one is created. take over membership in IO
-incorporation: existing takes in part/whole of another. 1990 German unification
-secession. must apply to IO
Non Localized treaties: newly independent states have a clean slate ex) post colonial states, however non newly independent states such as successor states continuity principle. ex) USSR Russia

38
Q

Traditional Spacial Dimensions of State Activity

A
  • Earth, sea and theoretically air (as high as an aircraft can fly, must have prior agreement to use except for emergency/refuel) divided up and subject to sovereign authority
  • must have legal title, possession of territory and effective control, actual display of sovereignty through actual activity, intention to wield authority
  • high seas exception then and now. res communis omnium, a good that belongs to everyone. communal access so long as do not hinder another’s access to resources
39
Q

Territory

A

-land subject to sovereign authority of a state: all powers inherent in their sovereignty with some constraints
-nexus territory//sovereignty
acquisition of territory:
occupation: terrae nullius (earlier period)
cessation: France sells Louisiana
conquest: use of aggressive force (earlier period)
accretion: water replaced by land
-current practice: state boundaries are fixed all only peaceful ways

40
Q

Delimiting of Territorial Boundaries

A
  • uti possidetis doctrine: show effective control, authority and physical exercise of sovereignty
  • newly independent states and old colonial boundaries borrowed from customary law in South America
41
Q

Seas

A 
-Territorial Seas (12 nautical miles)
measurement disputes
1982 Convention on the Law of the Seas
Normal baseline using low tide mark
jagged cose, straight baseline but not full agreement
-full sovereignty, enforce all laws
-exception respect right of innocent passage, foreign vessels don't need prior agreement, abide by common rules, peace good order or security. 
-no right of innocent passage:
threat or use of force
spying
propaganda
custom laws 
immigration
sanitation 
coastal communities
willful serious pollution
-coastal state must prove breach (ICJ Corfu Channel Case) but do not have criminal jurisdiction on board the ship. flag = jurisdiction
-subs must surface
42
Q

Contiguous Zone

Exclusive Economic

A 
Contiguous zone (24 nautical miles)
-if ship out of territorial waters pursuit vessel enforce international laws
Exclusive Economic (200 nautical miles) 
-resource exploitation and resources. if overlap bilateral treaty
43
Q

Sui Generis Entities

A
  • very few with limited legal status
  • legal status from historical circumstances
  • territory not a requirement
  • very limited legal personality
    ex) Holy Sea: Vatican City, diminutive legal personality because have legal rights, obligations and capacity. humanitarian multilateral treaties and UN observer
    ex) Intl Committee of the Red Cross. no territory but buildings are involiable. cannot be entered by Swiss authorities without prior consent. multilateral humanitarian treaties. protecting power, uphold rights of victims of war, rights of soldiers and prisoners of war
44
Q

Outer Space

A
  • good available to all like the seas. 100 km above sea lvl Karman line
  • prohibition on expropriation. can’t clain sovereignty or occupation
  • Treaty on Principles Governing Activities of States in Exploration and Use of Outer Space
  • Agreement Governing Activity of States on the Moon and other Celestial Bodies
  • sovereignty of manning
  • prohibition on nuclear weapons/WMD, orbital space is militarized
45
Q

International Organizations

A
  • expediency and practicability
  • peace and stability
  • distinct centers of action with legal capacity. autonomy delegated by members. conferred by states upon IO
  • but not full capacity
  • ICJ Legal Personality of IO’s Nuclear Weapons Opinion
  • ancillary because instruments in the hands of states, personality by states, no personality on their own
  • limited competency and field of action: principle of specialty of organization itself (NATO field of security)
  • ICJ test, not all have legal personality , must be legal agreement by states or infer intention from pattern of actions.
46
Q

Customary Law and IO Legal Personality

A

Customary Rights of IO’s

  • enter in to agreements with non member states with respect to core function of the org
  • immunity from jurisdiction of states’ courts ex) bureaucrats
  • protection for IO’s agents
  • caveat: lack of capacity to enforce rights, procedural rights but not a lot of capacity to exercise, ICJ limited venue because not all states are party to it
47
Q

Individuals as Legal Entities

A
  • conferred on individuals by states
  • individuals under control of states, states as legal persons
  • agreements about individual rights as agreements between states: only states exercising capacity with regard to HR treaties. states make it a reality. individuals do not hold the rights themselves.
  • procedural right to petition rights violations but not substantive right of enforcement (states do not like this argument, want to keep all legal capacity in the hands of the state).
48
Q

Traditional Conception of the Individual in IL

A
  • Pre 20th century
  • individual under exclusive control of the state. no debate regarding legal personality
  • as beneficiaries of agreements with no legal individual legal personality
  • PCIJ on status of ind Danzig Railway Officials
  • no direct rights for private individuals
  • but may be intention to create individual rights enforceable by national governments
  • confer on state capacity for redress
  • pre WWI, ind rights tied to nationality
49
Q

Traditional State Responsibility

A

-response to wrongful act
-mostly customary law; few treaty rules
-self help, forcible actions (use of force, forceful reappraisals not really possible anymore illegal).
-restitution: act that tries to restore status quo ante. difficult. bi lateral relationship only
- compensation (payment) often go to
- satisfaction, symbolic ex) public apology
-armed force- forcible reprisals
NO HIERARCHY
-collective responsibility, state held responsible, limited individual responsibility for SR officials (bc reasons of state)

50
Q

Current State Responsibility

A
  • ILC Draft Articles on Responsibility of States for Wrongful Acts- Adopted UNGA 2001
  • primary rules: substantive obligations of states. constitutional laws
  • secondary rules: breaches and responses. when breach, proper legal response
  • ILC use HLA Hart definitions
  • includes subjective element, willfulness/intention
51
Q

Two Forms of State Responsibility

A

Ordinary (breach of reciprocity)
-breach custom/treaty don’t harm larger international community
-harmed state responds (similar to bi lateral traditional)
-subject element connects to individual agents, attributes to states not just state nationals. state agents, ind in governance, de facto state organs (under instruction and overall control of state) **acting in their official capacity
Aggravated
-violation of community obligations that could potentially harm the international community as a whole
-suite of rights, all states can respond.

52
Q

Steps for Breach of State Responsibility

A

legal regulative ideal, not always the case
1. request for reparations, no response/inadequate
2. peaceful dispute mechanisms
negotiation
conciliation (third party help)
arbitration (third party decision)
3. If fails, peaceful countermeasures (sanctions, expel diplomats)

53
Q

Subjective and Objective Elements of State Responsibilty

A

Subjective

  • intent or recklessness
  • only important when state facing accusation: force majeure: major force resulting in a state being unable to fulfill obligations
  • control by another state
  • coercion

Objective

  • clear violation, conduct inconsistent with an international obligation. non retro activity principle. can also be failure to act.
  • can be material damage, debate if it can be moral (violation of honour or dignity) states usually bring action when material
54
Q

Circumstances Precluding Wrongful Acts

A

consent
-if state has given consent to another to act in wrongful way. must be freely given and cannot violate jus cogens
self defense and countermeasures
-use of force if facing use of aggressive force by another state
force majeure
-unforeseen or irresistible force beyond state control. cannot uphold international law. failed state does not count
distress
-no other reasonable way to save lives of self and those under your protection, not the same as duress.
necessity
-state of danger that has nothing to do with the state itself, cannot be pre-emptive and cannot create the circumstances yourself. state safeguard an essential interest. grave and immediate peril. cannot imperil essential interests of another state

55
Q

Consequences of Wrongful Acts

A

Ordinary
-cease and desist
-assurances, guarantee won’t do it again
-restitution (material damages)
-potentially arbitration
-if responsible state is not doing what they should: last resort to peaceful countermeasures. embargos, tarrifs, expel diplomats etc.
Aggravated
-more of an academic debate
-violation of community obligations owed to everyone (erga omnes)
-restitution owed by practically inconsequential

56
Q

Traditional Dispute Resolution Mechanisms

A
  • settle using binding decisions through arbitration.
  • early treaty provisions for arbitral courts, especially during the interwar years
  • League of Nations and the Permanent Court International Justice arbitration, different than ICJ. not about dispensing justice.
57
Q

Contemporary Dispute Resolution Mechanisms

A
  • prohibition on the use of force to end disputes
  • strengthen traditional
  • monitoring compliance to ensure deterrence
  • no requirements to follow specific mechanisms
  • Inquire, fact finding,mediation arbitration or adjudication most common
  • since end of cold war ad hoc tribunals such as the ICTY/ICTIR for specific fact situations
  • Statute of Rome est ICC
58
Q

Early Evolution of Intl Human Rights Law

A
  • human rights as a purely domestic issue
  • stats concerned with sovereignty, no conception of international human rights
  • exceptions were regarding how foreign nationals were treated. tied to citizenship, individual was secondary
  • second exception: workers rights. International Labour Org first labour rights group
  • Labour and slavery, both tied to the economy
59
Q

Post WWII Human Rights Law

A
  • first movements tied to individuals as human beings
  • prevent states with exclusionary and abusive policies form doing things not seen on that scale before
  • abusive at home, threat to other states.
  • Kant: ind can’t treat other ind as a means to an end. instrumentalization is a denial of their humanity
  • leads to criminalization of certain acts
  • guidelines with harder obligations tied to individuals through criminalization
  • IHRL foundational to post world order
60
Q

Human Rights and the United Nations

A

FDR four freedoms

  1. freedom of speech and expression everywhere in the world
  2. worship good in own way everywhere in the world
  3. freedom from want, economic understanding. secure healthy peaceful life
  4. freedom from fear, reduction of armaments. no agression
    - made it in to UN charter in diminished form
61
Q

UN Charter Nego

A
  • Latin American states, New Zealand and the Nordic countries want stronger human rights obligations
  • Western states rhetorically in favour but no specific rights or obligations
  • Soviet Union and E. Europe, protect sovereignty. press for self determination of peoples as a way to confront colonialism. right to work and education.
  • End product, no specific requirements to promote human rights but right to self determination
62
Q

Five Phases of Post War Evolution of International Human Rights Law

A
  1. Western Liberal influence 1940-1050’s. individual autonomy free of state
  2. Rising Eastern Bloc. 1960’s. social and economic rights. basic necessities (now human security)
  3. Global South. 1974-1990. universal or culturally relative rights. come organically from society based on culture
  4. Cold War 1990’s. Global Age of Human Rights. more responsible bc no gridlock in security council
  5. Post 9/11 Balancing human rights with security. democratic backslide and the rise of instability
63
Q

United Nations Declaration of Human Rights

A

1948
30 Articles
Foundations: relationship between individuals and the state. narrow conception. basic human rights
-non binding at the time. declaration not treaty.
-set of recommendations that reflect western conception liberty and civil rights
-life liberty and security of persons, procedural and legal rights and freedoms.
-harm principle

64
Q

Regional Compliance Monitoring of Human Rights

A

European Court of Human Rights

  • Council of Europe and Euro Convention on HR
  • reference via petition
  • complaints against other members
  • investigation, possible adjudication. petitioners play role as full participants
  • judgement internationally binding, but not above domestic laws because not apex court
  • violating states can get suspended or expelled
65
Q

Domestic Litigation of Human Rights

A

Atomic Bob in Japan

  • Tort Law
  • unlawful ceding of Japanese citizenship capacity to launch class action
  • sue Japanese government
66
Q

Is Anticipatory Self Defense Legal?

A
  1. pre-emptive strives as legal: high level of certainty, imminent as in 24 hours. overwhelming necessity
  2. pre-emptive and preventative strikes as legal: weeks or months in advance, advances in military tech means little time to defend against missiles. 2003 Iraq, US argues legal, rest argue it isn’t
    customary law, right to engage in anticipatory self defense
  3. Argue illegal drawing on Hans Kelsen and Richard Browlie. political no legal basis. Article 51 UN Charter wiped away customary law so it does not exist anymore
67
Q

ICJ Nicaragua

A
  • pre existing customary inherent right to self defense as foundation of Article 51
  • Article 51 and customary law exist in parallel
  • did not specify the content of the customary law.
  • no opinio juris, no concentration in one area of practice
68
Q

Armed Infiltration

A
  • one state to another or
  • non state actor backed by another state. low lvl, hard to ascertain
  • gravity of attack, justifies self defense if attack made by armed groups bands irregulars mercenaries or sent on behalf of another state. state must be in peril

indirect armed aggression

  • ICJ Nicaragua US fund contras,
  • threat to US bc region
  • rebels training econ mil and logistical assistance
  • not infiltration
69
Q

Traditional International Criminal Law

A

Traditional
-little scope for personal relationship
-domestic courts punish violations against foreigners.
-reasons of state so cannot charge an individual
Modern
-individual criminal responsibility. can have individual and state
-most serious moral wrongs
-customary international law: jus cogens
-treaty laws based on general principles contained in customary law
-no link between where/who committed and where/who prosecute but there used to be.
War Crimes
Crimes Against Humanity
Genocide
Torture
Crimes of Aggression
Terrorism (lack of consensus)

70
Q

War Crimes

A
  • First attempt at codification in the Liber Code
  • combatant status, humane treatment of those captured and civilians
  • serious infringement with grave consequences of Geneva Conventions I, II, III, IV
  • can only take place during armed conflict as defined by GConventions. international armed conflict 2 or more high contracting parties (states)
  • Common article 2 (1-4 triggered)
  • Common Art 3 (internal) against armed non state actor (civil war) only III enacted.
  • need intensity of use of force and duration.
  • actus reus (objective) and mens rea (subjective)
  • mens rea can be intent, knowledge, recklessness, willfulness or wantonness
  • can be committed by commanders, soldiers or civillians
71
Q

Crimes Against Humanity

A

-out of short falls of war crimes
-definition in IMT Charter, crimes against peace, aggressive war. murder extermination enslavement persecution on pol racial religious grounds even if not in violation of domestic law.
-must be connected to war crimes or crimes against peace
-metanational concerns of intl community
actus reus and mens rea

72
Q

Pre 1945 Attempts to try International Crimes

A
  • IMT (international military tribunal) 1945-1946
  • prosecute and punish international crimes
  • Greek genocide
  • 1943 Tehran Conference- what to do with Nazi leadership
  • end impunity, condemnation, deterrence and rule of law. mass execution too brutal.
73
Q

Nuremburg Principles

A
  • final judgement:
  • state defence not acceptable
  • cannot claim that only following orders
  • command responsibility. those who plan and oversee are the most responsible and responsible for subordinates even if did not directly order
  • life sentences, death sentence
  • controversy = victor’s justice. no victorious charged and politicization of indictees. violation of non retroactivity principle
74
Q

Torture

A
  • as a war crimes: art 2 or 3 armed conflict. detained individuals
  • as a crime against humanity: widespread. large systemic plan by state officials and or private actors
  • as a distinct act: in peace and war. does not include private individuals, must be public officials
  • depends on the fact situation
  • objective element and subjective element (as punishment, intimidation/coercion, etc).
75
Q

Responsibility to Protect

A
  • protect civilians form human rights abuses
  • residual responsibilities
  • World Summit Document

Political Science (34 decks)

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