ICJ

Way that ICJ can hear a case:

1. Two states that agree to have jurisdiction
2. Treaty can bring compulsory jurisdiction
3. The optional clause: compulsory jurisdiction an out in design. Court doesn't have
compulsory jurisdiction unless you accept the founding agreement that your state allows
jurisdiction.

ICJ: only cases dealing with states
Functions:
1. Dispute settlement SUBMITTED BY STATES Judgments of the court are binding.
2. Advisory Opinions BY INTERNATIONAL ORGANS AND AGENCIES. Advisory
opinions not binding.

Composition
-Current court makeup
Judges:
5 members of the Security Council can only have 1 from each state: 15 total.
Currently, all BRIC countries, Somalia?
Judges are supposed to be independent and not represent interests of their own countries.
Raises questions of power?
General Assembly and Security Council approves judges...

Enforcement:
Enforcement: Security Council can make recommendations
No enforcement, but not a problem.


New Courts (Not ICJ, other courts such as WTO court,):
Dispute settlement: ICs adjudicate legal disagreements between contracting parties,
helping the two sides resolve disagreements that turn on definitions of law.
Administrative review: ICs review the legal validity of contested administrative
decisions, creating legal remedy for the subjects of those decisions.
Enforcement: ICs in their enforcement role assess state compliance with an international
agreement, naming violations of the law and thereby increasing the costs of
noncompliance.
Constitutional review: ICs hold international and state actors accountable to
constitutional procedural and rule of law expectations, invalidating legislative acts that
conflict with higher order legal requirements.

Jurisdiction:
24 ICs, 80% have compulsory jurisdiction

Design Changes
1) Compulsory jurisdiction: when you can bring complaints against other states
Is it good? Yes without CJ the ICs are influenced by powerful states. CJ might make
courts more independent
Weak states can sue rich states
2) Non-state actors
Allow court to be more independent of states. The two design changes work together,
Source of power for International Judges


ICC

International criminal law is a new thing. After ww2, took 50 years until ICC.

WW2, holocaust created a push for development of international law
Victors of WW2, (including Stalin), looking for way to bring justice. Options include
mass execution or war crimes trials.
- Nuremberg could only try axis powers, only after specific date
Strengths: justice, official process, quickly (because had support from victors),
enforcement was not a problem
Weaknesses: overlooking crimes committed by anyone not in the axis powers, and
particular set of dates
Legitimacy? Things enforced in arbitrary matter. Double standard
- Taking orders no longer an excuse

1990s (after soviet union crumbles, everything has to go through Security Council,
Russia and US disagree little progress)

After WW2, individual responsibility, before only states. Nuremburg, first case of trying
individual crimes against humanity. Nuremburg is separate from universal jurisdiction.
Organizational responsibility: leaders held responsible for the atrocities committed
because of their policies and orders.


Weaknesses of ICC, finding criminals, slow process but young and new

Tribunals come from Security Council: ad hoc tribunals, Yugoslavia, Sierra Leone,
Uganda (taking long because no enforcement to bring them in)
Nuremberg vs. ad hoc tribunals, Nuremberg was World War so many actors effective etc.
small regions not relevant to US and major players no importance (lack of political will).

ICC Facts***
140 governments met to establish International Criminal Court for the most horrible
crimes: genocide, war cries, and crimes against humanity.

ICC has delegated jurisdiction and territorial jurisdiction

Rome statue: constitution of Court, vote overruled overwhelmingly

Unlike ICJ, where jurisdiction was limited to disputes between countries, the ICC was
envisioned as a court that would assert jurisdiction directly over individuals, for certain
crimes not otherwise punished in national courts.

Cases can be heard 3 ways
1) Security Council referral (3 members of the Security Council are not members of the
ICC (US, China, Russia))
2) Prosecutor can start investigation with approval from 2 judges
3) State referral


The enforcement problem is finding the criminals. ICC detention center in Hague. Not
enforcement problem with conviction many states accept international criminals.

Benefits of ICC: when they are able to try people, trials are just. Independence.
Legitimacy.
Weaknesses: not everyone signed Rome statute, ICC is bias towards the West (only
issued warrants from African states), ICC is funded by states parties to the ICC members
pay Japan pays the most, US not parties to the treaty. Security Council issue. Western
tool? Slow: The ICC has convicted only 1 person from Congo. All other cases are still in
progress. Expensive.

*****complementarity principal, court can only take cases when countries are unable or
unwilling to try criminals domestically.


Use of Force: War
1. What are the legal arguments one would make to justify the use of military force in
either case?
1. Self-defense
2. Security Council Approval
3. Consent of territorial state
Jus ad bellum: rules governing the resort to armed conflict, whether conflict is lawful or
unlawful
Jus as Bello: rules determining the correct conduct of war itself
Kellogg-Briand Pact: condemnation of the initiation of war in the event of international
controversy/ dispute (like assassinations)
UN Charter: use of force is not allowed if it threatens the territorial integrity or political
independence of any state, however protecting human rights is ok
Right of self-defense
- Does not include armed reprisals
- Force used in self-defense must be necessary, immediate and proportional to the
seriousness of the armed attack.
- Limitations of self-defense: proportionality and necessity
Preemptive self-defense: imminent
Preventative self-defense: not necessarily imminent (Ch. 19)
Claims to territory unlawful
Armed protection of national abroad, not allowed without consent of the foreign
government
Civil wars: no rule in international law against civil wars

There is no definite answer regarding anticipatory self-defense. But most agree that it is
important the attack be "imminent." If an attack is imminent it falls under "preemptive
self-defense." If an attack is not imminent, but rather could prove threatening in the
future (but the threat has not fully emerged) then it is preventive. Most see "preventive"
as not meeting the imminent criterion required for legal self-defense.


Russia/Ukraine: Crimea
Legality
Russias argument: Protecting nationals abroad, but international law does not allow this,
states and national citizens must be treated separately in order to protect sovereignty.
What they could argue instead: Consent of territorial state. Yanukovych is still the
legitimate President of the Ukraine, he requested help to reestablish peace and security.
As the new government does not have full control of the state and the vote to impeach
Yanukovych fell short of the necessary votes to remove him from office.



Mandated territories: After WWI Allies want to annex Germanys colonies, so mandate
systems allows for each territory to be administered by one of the allies, with Supervision
of League of Nations with right of self determination in future.

Trust territories: United Nations Charter provides for a trustee system modeled on LoN
mandate system.

The mandate and trust territory systems the way the League of Nations and UN dealt with
states that were former colonies but still deemed "not ready for independence." It was
supposed to be a transitional phase, and was, although it took longer than expected for
many.

Use of Force: HI and RTP

RTP aims to solve two problems:
1. Inaction:
Rwanda
Kosovo (8,000 killed, first massacre since holocaust)
Sudan- Darfur (400,000 people killed)
2. Powerful states abuse intervention to their interests
Unjust interventions.

How does RTP target these issues?

RTP written after 1990 cases Balkan, Rwanda, humanitarian crises with inaction.
In 2000s Kofi Annan
Cant use sovereignty for intervention

Shift language from right to intervention to responsibility to protect.

In Libya in 2011, Security Council "responsibility to protect" citing human rights
violations.
RTP has been used as a reason for intervention.
Customary, treaty and soft law.

How does RTP solve inaction/ inappropriate action?
Name change from right to intervene to responsibility to protect. Shift focus from violate
sovereignty to discussion of victims.

"Just Cause"

How does RTP solve powerful states abuse intervention to their interests? Only intervene
if youre going to save more lives.
"Precautionary principles:
1. Right intention: avoids unilateralism
2. Last resort: nothing else could work
3. Proportional means: must be proportional no state building
4. Reasonable prospects: should be successful, can't be worse than before. (Dont
intervene in Russia or China because it would start a big war)

Whose authority?
Who gets to decide, who has "right authority"? The Security Council according to RTP.
Alternatives? When Security Council can't act, General Assembly can act (Suez canal
issue between Egypt)

How successful is RTP whether customary, treaty, soft law, in preventing inappropriate
interventions?
Does it solve inaction? Security Council's endorsement is good.
Does it stop powerful states from abusing? US Iraq in 2003, not really

Fragmentation and Int Env Law

Fragmentation: No hierarchy of laws, climate change treaty, treaty about ozone. "Messy"
Fragmented IL creates all kinds of strategies on parts of states.

1. CC versus IEL
- Climate Change governance vs. International Environmental Law

IEL:
1. Treaties
2. Customary Principles, but debatable
3. 1,200 multilateral international treaties (international law)
4. 1,500 bilateral international treaties (also international law)
5. Endangered species, Freshwater resources, shared resources, regional agreements
to deal with over fishing etc. (Examples of international environmental law)

****Flexibility in IEL
A. Phasing in treaty obligations (collective flexibility)
1. Identifies problems
2. Start talking about potential changes
3. Vienna convention case, a binding agreement with no behavioral change
requirement

B. Special and differential treatment (collective flexibility)
1. For developing countries
2. Kyoto protocol (Annex 1 and Annex 2 states, Annex 1 industrialized group have
commitments, Annex 2 still developing)
3. Allows for variation if states don't agree

C. Different paths to compliance
1. Kyoto provides different ways to reach goals, if too costly you can fund projects in
developing states to reduce their emissions


*****Dealing w/ managerial problems in IEL
(Emissions reductions require new technologies, difficult to monitor, IEL managerial
problems are largest)
- "Common but differentiated responsibilities"
Common goal, acknowledging the problem know the goal, variation in capacity to
comply, historical difference
- Montreal Protocal:
Technology transfer from North to South
Phasing in 10-15 years
Created Montreal Fund to help with technology
- Kyoto Protocal: binding
Annex 1 and Annex 2 distinction. (Annex 2 must report on emissions no obligations to
reduce).

Global North vs. Global South
Right to develop vs. protection of environment

Rio conference:
1. Agenda 21, non-binding aspirational document resolution
2. Financial assistance to developing countries


******Keohane & Victor on CC "complex regime"
- UNFCCC United Nations Framework Convention on Climate Change

Regime complex of climate change:
Lack of hierarchy, benefits: flexible and adaptable, drawbacks: difficult to manage not
effective

What forces drive fragmentation?
1. Diverse interests: The distribution of interests helps explain why no single institution
has emerged.
2. Uncertainty: Uncertainty has made most governments wary about making costly
commitments to global institutions when they are unsure of the benefits and whether
other countries will make and honor promises to implement comparable efforts.
3. Issue linkages governments are still struggling to find productive linkages, although in
a few areas those linkages are tight and deep, such as the links between emission trading
systems and compensation.

Hard law: bilateral agreements, UN Legal regimes, Montreal Protocol, Financial Market
Rules, International Trade Regime, Intellectual Property Rules
Soft law: adaptation initiatives, multilateral development assistance, clubs (G8, G20),

Climate is different that IEL it is not representative of IEL. IEL is broad. Climate is
recent and diferent.

Int Trade Law and Precedent

IMF: To aid in development of international monetary system, to facilitate expansion and
balanced growth of international trade
- If states cannot repay debts, and no one is willing to lend money, IMF is "lender of last
resort".
- Loans come with conditionality (loan if you restructure economy in this way
liberalizing economy)- not binding

World Bank:
International Bank for Reconstruction and Development (World Bank): IO to States,
original part of World Bank that lends to developing/ middle income countries
International Development Association (IDA) (World Bank): IO to States, least
developed country, grants rather than loans or very generous terms
International Finance Corporation (IFC) (World Bank): IO to private companies,
lending to private companies
-World Bank comes out of WW2 immediate aim to rebuild Europe.
-After ww2, loans for projects for infrastructure good rates loans, and technical
assistance.
-Does everything, health, environment. Now a poverty alleviation institution

Both IMF and World Bank have the same member states
Treaties are binding but not legally binding not international law
Largest states have most votes. US: 16% Not making international law

GATT: mostly just a treaty, not a formal organization
-Purpose is to reduce tariff and non-tariff barriers to trade, and increase global trade.
-Successful in first three decades
- GATT regulated products not services
- New states slow down progress
MFN Status: "Most favored nation" must give same treatment to all other members.
WTO: at the end of the Uruguay Round, restructuring of the GATT.
Dispute resolution: compliance starts to be a problem as more types of trade are
regulated. So WTO created dispute resolution can file dispute at WTO. WTO sets up
meeting with other state and tries to negotiate. If that fails they take the case to a panel.
Case is heard and decision made. Decision can be appealed to Appellate Body, which has
final say.
Doha Round: started in 2001 concerning improving market access to developing
states. Involved subsidies. 1 country 1 vote Global trade law has not developed since
2001.
- Increased dependence on multilateral and bilateral agreements.

Each Round of the GATT is new international law. More trade under GATT rules.

Pelc Article
No binding precedent in international law. Precedents could affect many states; it would
be problematic to accept it.
No formal authority but states still rely on it.
Although not legally binding states act as if it is legally binding.

Get case decided in a particular way.
Small cases affect larger cases in the future.

Case study of how it worked in European safeguard
Safeguards: type of flexibility, escape clause, countries were using this without credible
reason for doing so
EU not doing safeguards, get frustrates
-Bring small case against Korea-Dairy about Powdered milk, and Argentina-Footware,
under unforeseen developments
- Panels throw out cases, but Appellate Body decides in EU favor
- Cases small but later, EU sues US in regards to its steel tariffs. WTO decides in
European Unions favor, and US gets rid of tariffs.
- This is important because it would not have been accomplished without litigation.
Developing international law in way that states alone could not have done it.
Despite the lack of formal binding precedent, for all intents and purposes,
Europe obtained a rule change through litigation that it could never have obtained
through negotiation.
What is evident is that despite their commercial insignificance, Korea|Dairy (DS98)
and Argentina|Footwear (DS121), have disproportional jurisprudential impact.
And it did so in a specific way, by setting the precedent through a series of low
commercial value disputes, and then relying on this precedent.

Distributional consequences of power: bigger states start these litigations, largest state
pursue more legal action.

International law is brittle: because the powerful states uphold it.