Session 2: Aouzou strip



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Session 2:

Aouzou strip: strip of land in between Chad and Libya. Border dispute: each side claims strip as own. No value whatsoever to strip, just countries showing their balls. Former colonial powers (France and Italy) had treaties setting strip in Chad. Libya says French treaty setting strip in Chad was coerced from Libya. Libya supported rebels in strip and even invaded Chad, installing pro-Libya gov’t. Libya continued to occupy strip. Parties referred matter to ICJ (after Africa Union mediations).
Great quote on irrelevance of int’l law: p7
Positivism: law is created by men and custom

Naturalism (Grotius): there is a natural order, and man can implement it thru law – natural law

Grotius’ examples of natural law: don’t steal, making right on things we steal, making good on loss we created, etc. – maintain social order
Book says: Int’l law was geared largely towards colonial system
Back to Aouzou: Court awards whole strip to Chad, relying wholly on 1955 treaty b/w France and Libya. Book implies: relying on a colonial treaty that may have been coerced is problematic (calls into question legitimacy of decision?). Nonetheless, Libya fully complies and withdraws from strip

Take-away: Int’l law draws heavily on legacy of colonialism; classic example of int’l law in action – two states, territory dispute, int’l judicial body resolves dispute
After WWI int’l law changed: 3 developments:

1 - devastation caused states to realize war should be avoided, last recourse of foreign policy

2- ethnic minorities should have own states and protection (this does not apply to colonies or minorities at home)

3- there should be int’l forum to maintain peace thru developing int’l law (league of nations, later UN)

WWII called into question whether these int’l legal norms could stand, but in the end was a catalyst for their implementation

Other developments: collapse of colonial empire


Rainbow Warrior: French agents blow up Greenpeace ship in New Zealand harbor that has been annoying French commercial interests; kill a crew member.

-New Zealand arrests and charges to French agents. Dispute b/w France and NZ on what to do with agents (agents would not face punishment in France)

-France claims responsibility and says agents should not be held personally responsible (smells like Nuremberg defense – just following orders)

-France economically pressures NZ, NZ files complaints with trade orgs

-France and NZ submit dispute to UN secretary general for binding ruling; UN says France will imprison agents, compensate NZ, apologize and remove trade sanctions

-In fact this deal had been negotiated earlier between NZ and France behind closed doors; UN ruling was just political cover for both sides’ concessions



Take-away: int’l law has become very relevant and flexible in modern era (powerful state compensates int’l NGO); int’l law is sometimes just diplomacy (UN is good cover for political exposure – UN made me do it!)

Also, neither French agent actually served full sentence, so another take-away: the big guys always win?


Modern developments of int’l law:
-int’l institutions: general (UN), specialized (IMF, GATT, WTO), regional (EU, AU)

-Non-state actors: NGOs, armed political groups, corporations, all profoundly influence global policy



Session 3: Treaties
Ways int’l law is made:

-Treaties - advantages: usually clear; formal consent of states bound (easier enforcement); more familiar (easier to sell to public)

-Custom – advantage: broader application (does not require formal consent of parties)

custom emerges from state practices, and binds all states who have not objected

custom and treaties coincide to a large extent

-“soft law”: norms of conduct, legally non-binding

Treaties have exploded in recent years
Cyprus: Greek and Turkish population that don’t like each other. Passed off back and forth between Turkey and Britain. In 1959, Treaty b/w mainland Greece and Turkey est. power sharing gov’t on Cyprus. No Cypriots participate in treaty-draftng and negotiation, but Cypriot community leaders accept treaty and Cyprus becomes independent.

-UK, Greece and Turkey reserve right to intervene if treaty provisions are breached (joint action preferred, but each can intervene solo if joint action is not possible).

-Treaty, of course, falls apart, Turkey and Greece both intervene, island is carved in half. Although secession of Turkish part of island is illegal, this still stands today (UN peacekeepers patrol the line of demarcation).

Take-away: There is no int’l police to enforce treaties, so powerful states sometimes break treaties when it becomes convenient?
“almost all states fulfill almost all their international obligations almost all the time”
realist view: int’l system in anarchic; states pursue their interest, outcome determined by power of state

States will enter into treaty when convenient, interpret as they wish, and break treaty when it becomes inconvenient.


Institutionalist view: states enter treaties to pursue mutual benefit, forsaking short-term power for broader long-term goal

Treaties allow states to make commitments credible.

Charles Lipson: effect of treaties is to raise political costs of noncompliance (breaking treaty detracts from legitimacy, even if not enforced)

Although threat of loss of reputation can’t guarantee treaty compliance, it promotes it


Vienna Convention: codifies norms of treaties; all of its provisions have become customary int’l law

Although US has not signed treaty, gov’t has called it defining authority on treaties


Back to Cyprus: Cypriots argue that cuz no Cypriots were involved in drafting of treaty, and the Cypriots who approved were unelected leaders of community, treaty is not legit.’

-Vienna convention: legit representatives of states for treaty purposes are “representatives accredited by States” to int’l conference. If treaty is not signed by legit representative of state, treaty is void

-Greek Cypriots also claim coercion, their representative was forced to accept treaty, which would also invalidate treaty
Great example in book: NATO used airstrikes and economic pressure to force Serbia to come to bargaining table at Dayton. Bosnia felt it had no choice but to sign Dayton Accords to avoid more bloodshed. Could parties claim treaty was coerced and does not bind them? Sure, but why would they want to? Treaty is uneasy ceasefire. Example of how int’l law is just diplomacy
-question over interpretation of treaty: does the treaty permit military intervention on parts of UK, Turkey and Greece? Cyprus is deeply troubled by this, claims sovereignty of territory, and claims that if treaty authorized use of force it contradicts UN charter (UN charter trumps all, and Vienna Convention says a treaty is void if it conflicts with preemptory int’l law norms)

take-away: treaty is invalid if coerced; only certain state representatives are legit; treaty is invalid if violates other norms
Situation in Cyprus still stands today; partitioned with UN peacekeepers. No resolution.


Session 4: Soft Law: Custom
Nationalization: After colonialism collapsed, balance of power between developing and developed states shifted. Previously, Western corps would build facilities and exploit natural resources in developing world. But after WWII, states demanded more equitable relationship and some states nationalized foreign property.

-Mexico nationalized lots of US investor property in early 1900s. US demanded compensation. Mexico claimed that not paying compensation goes hand in hand with social justice that is behind expropriation.

-In 1963 UN passes resolution that says states can nationalize/expropriate resources, for reasons of “security, public utility or national interest which overrides private interest,” but previous owner must be paid appropriate compensation. Disputes settled thru int’l arbitration

-In 1973 UN passes a much different resolution: sovereign states have inalienable right to control natural resources, settlement of disputes will be done thru domestic law of expropriating state. (this is probably cuz more postcolonial states in early 70s?)


Custom: State practices that form into rules thru practice and acquiescence. Binding on all states unless a state objects to rules while they are forming. (So, post-colonial states were bound by custom that emerged while they were not sovereign)

-state practice becomes customary law when states follow them out of a sense of legal obligation (opinio juris – belief of law; although int’l law assoc. says opinio juris is not necessary)


US Supreme Court Case: Paquete Habana:

US seized Spanish fishing vessels during Spanish American war, trial court held boats were not exempt from seizure and could be sold

-Supreme Court says no no no, ancient custom among civilized nations dictates that fishing boats are exempt from seizure

-long custom against capturing fishing boats… court delves into history

-100 years prior an English judge said that fishing boats are exempt from seizure by courtesy… but S Court says now that over 100 years this courtesy/custom has evolved into firm law

-Court says US must observe int’l law, and, as here, where there is no treaty, must look at custom, and guiding customary law is that fishing vessels exempt from seizure



take-away: customary int’l law rules, applicable to domestic law; where there is no treaty, look to custom; a customary law can “ripen” out of old practices
alt view: Posner realpolitik: states do what is convenient; it just happened to be convenient not to seize fishing vessels, no sense of legal obligation at play here
Iranian nat’lization of US Interests:

-After revolution, Iran nationalizes property of US corp

-Corp demands compensation, dispute over what standard of compensation

-corp claims standard is “full” – good faith assessment of fair market value of assets, plus lost future earnings

-Iran says compensation must be assessed with unjust enrichment as guiding principle

-Court says before WWII, compensation was required as per full value of property seized (corp’s interp.), only recently that this tradition has been challenged

-court looks to1963 resolution for guidance

-customary int’l law dictates that Iran pay full compensation, whether or not expropriation was lawful



take-away: customary int’l law dictated outcome, based on pre-WWII principles
another example from class: torture: custom prohibits torture, but many statues torture, but all states try to hide their torture, so state practice affirms custom while contravening
Joan says: distinction between hard law and soft law: hard law is binding (treaties, arbitral decisions, binding customary law), soft law is non-binding (GA resolutions, ICJ decisions, customs while they are being formed)

Session 5: actors (formation and recognition of states):
Most traditional actor is the state. States have sovereignty, which Krasner (a scholar) says is ticket of admission to int’l arena (e.g., by Vienna Convention, only states can enter formal treaties (there are exceptions))
Other actors too: NGOs, int’l corporations, int’l orgs, armed political groups

Matthews (scholar) says: non-state actors becoming more important because problems are more global, and technology has broken gov’ts monopoly on information


States:

New states are born from:

-decolonization (e.g. India, mostly complete)

-secession (e.g. Bangladesh)

-Dissolution (e.g. former Soviet Union, Yugoslavia)

-Merger (Germany, Vietnam)

-Peace Treaties? (new states created in central Europe after WWI)
Yugoslavia:

-Yugoslavia after WWI, carved out of austro-hungarian and ottoman empire; experiment on self-determination of people

-ruled by a strongman (Tito) after WWII who suppressed nationalism and held country together, balancing power b/w ethnic groups

-when Tito died, nat’list leaders rose up – enter Milosevic, who wanted to ensure Serb dominance

-Croatia and Slovenia secede

-Western states try to create conferences and arbitration to deal with Yugoslavia; Security Council imposes arms embargo on all of former Yugoslavia

-Nonetheless, things get violent quickly

-debate in West on whether to recognize new states (Slovenia and Croatia) – Germany urged quick recognition, US and UN Sec. Gen. urged delaying recognition until fighting stops (UN expresses opinion – non-state actor)

-Bosnia secedes, Bosnian Serbs try to carve out Republika Srbska
raises issues of what is a state?

1933 Montevideo convention: state must have:

-permanent population

-defined territory

-government

-capacity to enter relations with other states

these requirements interpreted flexibly – e.g., disputed boundaries (Israel)

what happens when state loses one requirement, e.g., gov’t (Kuwait, Chile, etc.)?


continual thread in this book: int’l law that emerged from 17th century was handmaiden of colonialism; how much of it should be adapted to post –WWII decolonized world?

Colonized lands became protectorate/colony if leaders signed agreement (usually coerced) with colonizing state

League of Nations: people “who cannot yet stand by themselves under stress of modern world” shall be put under protection of colonizing states – doctrine of colonialism wrapped in language of benefactor

WWI: Wilson’s idea of peoples of Europe governing selves – minorities in empires should get their own states


Aaland Islands: Finland was originally part of Sweden, but conquered by Russia. Took with Finland Aaland Islands – islands are populated by Swedish people who speak Swedish language, want to be part of Sweden. During Russian Revolution, Finland declares independence, and Aaland Isl. declare independence from Finland…

-dispute referred to League of Nations, which convenes panel of int’l jurists

-Panel says: despite growing importance of right of self-determination, it is not right of every people to secede from state; to do so would put int’l security and the idea of a unified state in jeopardy

-Panel says: Finland is not oppressed Aalanders; is allowing Aalanders autonomy in preserving culture and setting school curriculum. Quit yet bitchin, Aalanders!



Take-away: right of self-determination limited by need for unified states; can’t let every minority secede
-Hitler invoked self-determination as justification for invading Czech, Poland (rescue German minority there)

-Self-determination in UN charter is limited because some states wanted to cling to colonies, so principle limited mostly to existing states

-Both UN Charter and League of Nations mandate contain duties colonizers must follow (preserve local culture, futher colonies towards development and self-govt), but essentially see no problem with colonialism

-by 1960 enough former colonial states had been freed that they became dominant voice in general assembly, and passed a resolution expressing right of all people to self-determination, that lack of development is never excuse for subjugation, ban colonialism

-Alston on 1960 resolution: this is emergence of soft law norm, not binding but it dispelled all this “colonialism is sacred trust” bullshit and expressed how world would view colonialism henceforth

-in 1970 general assembly passed summary of UN principles, exalted decolonization but was reserved on secession



take-away from this history: decolonization vs. secession: after WWII, decolonization came to be seen as a legitimate way to gain statehood, but int’l community still had reservations on secession as means to statehood (this is probably cuz many postcolonial states had minority areas that wanted to secede)

Note in book: states came to recognize some seceded states, such as Bangladesh, mostly when the dominant state was no longer able to militarily control territory. So is there any method to the madness? P126




Back to Yugoslavia:

-queston over whether territories are seceding (Serbia’s interp.) or state of Yugoslavia is dissolving (new republics’ interp.) – arbitral committee says state is dissolving, new republics (croatia, bosnia, slovenia) should form own gov’ts as they see fit

-arbitral committee says Bosnain serbs might have right to choose own nationality – stupid fuck doesn’t answer question definitively, and 4 years of war ensue over this question!

Take-away: when it comes to minorities seceding, right of self-determination is legally uncertain
Another dispute arising from self-determination: territory

Where should borders lie when colonies are freed?

African Union says that borders at time state becomes independent are borders all states must respect

This principle of Uti Possidetis – borders are set at time of independence – used to resolve border disputes, stated by ICJ as basic principle of borders (dispute between Mali and Burkina Faso)


Yugloslavia again: Something that pisses me off:

-Arbitration commission hands down yet another opinion that borders of Bosnia, Croatia, Serbia cannot be altered except by free agreement.

-Fat lot of good this does for Bosnia – people continue getting slaughtered! In an ongoing violence conflict, there must be enforcement mechanism for all this “law” to mean anything.
Recognition: some view it as irrelevant to statehood, simply a political act; some view recognition as essential element of statehood

-European states recognized Croatia and Slovenia

-Arbitral Commission recommended against recognizing BiH in 1992 because Bosnian Serbs don’t agree that there should be a Bosnia. Europe recognized Bosnia anyway

take-away: recognition, I think, is mostly political – no legal effect

Session 6 – role of int’l organizations
Apartheid:

South Africa: classes of citizenship divided by race

World organizes against this; US and Soviet Union actually agree on something at height of cold war

-S Africa imposes apartheid, reshapes entire society in pursuit of racist utopia ripping apart society and whole communities

-S Africa has rich metal and gem resources; significant economic ties with other states
Book delves into structure of UN – Secretariat, General Assembly, Security Council

Legal personality: how much independent legal authority an entity has

UN has basic legal personality (to pay bills, hire a plumber, etc.)
UN agent (mediator) is killed in Jerusalem in 1948. Does UN have legal personality to recover damages?

ICJ says yes, because UN agents must be able to rely on protection of organization to maintain independence

UN is international person – subject of int’l law, has rights and duties and can seek redress of rights
Back to Apartheid: UN issues weak resolution against apartheid in 1952

-in 1960 S Africa forces massacre dozens of peaceful protesters at Sharpville

-UN Security Council responds, slowly but surely, with sanctions

-general assembly recommends sanctions, security council implements arms embargo

-S Africa simply developed its own arms industry and continued apartheid

-France, Britain and US still had economic ties with S Africa, so further security council action was difficult (tried to expel S Africa from UN but these states vetoed)

-States independently intensified sanctions, calling for divestment and suspension of sports/cultural activities

-ultimately apartheid regime caved under domestic and int’l pressure. Nelson Mandela, during first year in office, thanked UN and member states for pressuring gov’t



Take-away: In Apartheid, world came together and applied non-violent pressure thru UN and ultimately unjust regime fell

Also, ways UN can apply pressure and get something done
UN has also become forum for treaty-making – a UN body created convention against apartheid, for example

Session 7: int’l law in domestic arena
Theories of int’l law and domestic law:

Monist v dualist

-Monist: int’l law and domestic law are bound together, both form law – int’l law is just as much law as is the nation’s tax system or contracts regime. Int’l law trumps domestic law

-Dualist: int’l law and domestic law are separate trees in the branch of law, and it’s up to each state to determine to what extent the two interact or coincide

-most states fall somewhere between these systems
US: Constitution trumps any other law

EU: laws of EU have direct effect on members, and can be acted on in nat’l courts; trumps domestic law


US enters treaties in 3 ways:

-Article II treaty: by president, with 2/3 majority of Senate

-congressional-executive: by president, with simple majority of house and senate

-sole executive: by president alone


Nafta: Nafta approved thru “fast-track” legislation – President negotiates treaty, while consulting congressional committees, and then submits legislation to congress with limited floor debate and no amendments, and if treaty passes, int’l laws are incorporated into domestic law – expedited process

-does this encroach on US constitution/domestic law?


Some US Supreme Ct cases:

Missouri v Holland: US and Britain (Canada) make treaty to protect migratory birds

-to be implemented thru US domestic law

-is treaty void cuz it interferes with powers ordinarily reserved to states?

-Tenth Amendment reserves any other powers to the states – does some “invisible radiation” from these general terms preclude this treaty? Hell no!

-these birds are migratory, are not in states long enough to be a subject of state, and also the goal of preserving bird life is really important

-treaty does not directly contradict anything in constitution, just possibly some vague language in 10th, so treaty stands

take-away: there are limits to treaty power of gov’t, but this case didn’t reach them
Reid v Covert:

-American woman killed her husband on military base in England

-tried in military court – suing for lack of jurisdiction (she says she shouldn’t have been tried in military court, without the protections of the bill of rights)

take-away: not sure what happened in this case, but important thing is:

constitution reigns supreme; constitution trumps any treaty

also congress can null treaty provisions thru statute (statute on parity with treaties)


back to NAFTA: after WWII, remembering that a minority of isolationist senators kept US out of league of nations, ppl thought that supermajority requirement for treaties was unwise and passed by constitutional amendment permitting executive-congressional int’l agreements

-this went unchallenged until NAFTA – opponents said Nafta had to be submitted as article II treaty

-constitution allows congress to regulate foreign commerce, doesn’t limit to treaties (congressional-executive agreement considered congressional act)

-Nafta prevails



take-away: congressional-executive agreements are legit


Session 8: conflicting domestic and int’l law
-Cherokee Tobacco (S Ct case): in US, treaty may supersede prior statute, and vice versa

-Congress has power to violate treaties, but US is not excused from consequences (whatever those are…)

-thus, courts try to interpret statutes not to violate int’l law

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