built on a larger treaty- dosenn't stand alone

party of the protocal have to be party to the treaty

-not only dealing with international isses but domestic as well

ex: geniva used protocal

The Geneva Conventions (1949) – armed conflict between nation states, however, it does not apply to non-international law. Non-traditional conflict (like Vietnam War) became problematic because the issue was do these laws apply? Protocol treaties are later added.

The Earth Summit – 150 heads of state attended, they drafted a complex treaty on climate change. The treaty is usually general, then protocols more specific.

KYOTO – protocol (atmospheric conditions – gives specific percentages)

CLIMATE CHANGE- (relatively vague treaty – open to all nation states)

Vienna Convention (1966) –

DEATH PENALTY – a violation of human rights (for those that are party)

HUMAN RIGHTS – does not address the death penalty, or else the Americans would not have agreed.

Treaty Construction Steps

PREP                             DRAFTING                                           ADOPTION

RATIFICATION                ENTRY INTO FORCE                         REGISTRATION

1.       when the decision is made that a conference should be made. Meeting of State representatives with the intention of drafting a treaty. some nation state will go before the national assembly and invite the various countries. One country starts the process. If it is a universal treaty, then every nation state is invited.

- general assembly-debate of an issue- explorig -gather a global census

-extremly formal- academicsconfreses that produce clear guidlines

-law commison-tunk - russian legal ming part of the law commision draft whaT LOOKS LIKE A  treaty- suggestion

red cross in geniva - intvits to host many treaties- drafting what looks like treat consently inviting scholors and goverment offical to take about treaty

invitation go out stat that intended to be party to the treaty

1.       open debate about the topic. What is the problem and how to Regulate. The more restrictive the treaty, the less countries will be involved. Articles are drafted (debated) then redrafted into other languages. Revisions are made, then ultimately the document is made. *Rome Convention (ICC): a few weeks  *UN Charter: months    *LOS convention: years

- more watered down more countries will sign

-divide in to articles then debated

-final product looks like a treaty

Congress of Vienna (1815) – it followed two world wars, both European wars. It was famous b/c it was multi-lateral. It was a prevention of another world war (at least it was the expectation)

1.       the simplest of all of them. Those that vote yes are adopted (they agree to the text of the conference) by signing the document you are not agreeing to it. Sometimes lawyers say that signing the treaty is viewed as a commitment.  -soft law

-until signed not law

 -

1.       the step by which signers ratify the treaty. In the US, it takes (2/3rds of the US Senate to ratify a treaty) bipartisan

-legislation or parliment as to make domestic law to follow

The Ratification Process: Problems

a.       Time – 85 have been withdrawn due to Senate delay. president give to commitee

b.      Politics

c.       Reservations

 as a resut of the 3 th executive and Congress - struggles to control foreign policy) – treaty can be lost in the process, 43 treaties have failed to reach 2/3rds of the vote.

US Senate: Ratification Options

APPROVE WITHOUT CHANGES      CHANGE     NO ACTION LEAVE PENDING

Approval As Is:  ABM Treaty        (anti-ballistic missiles)

-they are never suppose to be used, but each country only gets one ABM to ensure that if one is fired, that country will be destroyed. Then we can fire back, destroy their country as well.

Changes: LON Covenant – there were 2 votes in the Senate, the Supporters and the Reservationists could never vote at the same time. Then there were the Irreconcilables that would never vote for European affairs because they said that Europeans were always at war.

Pending: Genocide Convention (40 years)                                                                                                          *Senator William Proxmire would argue to sign this treaty for years. The concern was that the US would become accountable or be forced to intervene. It was emcompassing so we did not want to ratify.

Panama Canal Treaty – horse trading, it’s when you trade dissimilar items for future gains. In the late 60’s there was talk about giving it back. Jimmy Carter asked the Senate to ratify. As it turns out, it was divided 2-1 (pretty much the last vote decides) and it was eventually ratified.

FAST TRACK AUTHORITY

CONGRESSIONAL-EXEC AGREEMENT (CEA)

SOLE EXECUTIVE AGREEMENT (SEA)

Fast Track Authority – When Congress gives the President a great deal of authority. The party in power is usually the one that benefits from this.

-yes or no vote by congress only- if one party is in power

US President  à               TREATY                 à           House of Reps

Foreign HOS                                                                       Senate

CONGRESSIONAL-EXEC AGREEMENT (CEA)

Congressional-Executive Agreement – the treaty is never ratified. The President goes back to the Senate and suggests we draft domestic law that looks just like the treaty. We don’t need a super-majority.

SOLE EXECUTIVE AGREEMENT (SEA)

Sole Executive Agreement – Since the president is the HOS the president can bind the US to certain actions. Executive Agreements greatly outweigh treaties today.

1.       every treaty has an entry into force threshold   (X number of parties required) *once the threshold is reached à usually a six month delay à treaty- treaty is binding to all signatories

Process of Accession – those that are bound to the treaty (they ratify) after the treaty has been entered into force. Some countries wait until the number is almost to the threshold.

Invalid Treaties                (reasons a treaty may be later invalid)

PREMPTORY NORM

-JUS COGEN

FRAUD, MISUNDERSTANDING, CORRIPTION, COERSION

Ultra Virus – (latin for beyond the legal parameters)

RESERVATIONS(two views)

TRADITIONAL – affects all parties                             MODERN – affects only 1 party

*A unilateral statement before ratification

*Modifies the treaty – treaties may limit reservation rights

*May not contradict the nature or object of the treaty

The legal right to adopt the reservation of another country during a court hearing with that country. Designed to level the playing field, If State B and State A get into a legal confrontation, state B it allowed to use the reservation against them.

STATE  A                               TREATY                                 STATE  B

STATE  C                               ----------                                               STATE  D

When Others Object to Reservations: Contending Schools of Thought

-The state making the reservation is no longer bound to the treaty

-The reservation is dismissed                                            

-The state making the reservation is bound only to other parts of the treaty (most common)

UNDERSTANDINGS         INTERPRETATIONS          DECLARATIONS

Changing a Treaty

(4 principle ways)

AMENDMENT                                 EMERGENCE OF A NEW JUS COGENS

REPLACEMENT                                        IMPOSSIBILITY OF PERFORMANCE

1.       – used to replace an existing treaty, must be accepted by all parties to the convention of the treaty. Renegotiation à Re-ratified à Amended Treaty                                     *If any party of the convention refuse: two separate treaties exist                                                   *only  common parts are binding  (original treaty with modification)

NATO Treaty (Enlargement) – here are the 12 nation states that are party to this convention. They later had to amend the treaty because the countries involved could vote against re-ratification.

1.       the parties to this convention draft a new treaty, in that treaty it states that it replaces the previous treaty. All countries involved must ratify. If you don’t have 100% then again you just have two different treaties. Ex: Hague Treaties 1899-1907

1.       – the original treaty states one thing, jus cogens overrides a few parts of that treaty à you either need an International Court or all parties involved to come to an agreement. As we know, Compelling law (International Law) overrides Treaty Law.

1.       – if we promise access to a river, we may not be able to follow through with our promise because the river no longer exists. Suspension (temporary) or permanent because the treaty no longer exists.

Terminating a Treaty              (5 ways)

EXPIRATION               WITHDRAWAL                   TERMINATION BY CONSENT

DISCHANCE VIA MATERIAL BREACH                REBUS SIC STANTIBUS

1.       when a party to a convention leaves.

*Treaty Forbids Withdrawal      *Treaty is Silent on Withdrawal   *Treaty Allows Withdrawal

1.       multiple withdrawals because they simply agree that the treaty is no longer useful. *state withdrawal                                                                                                   Warsaw Pact: terminated by consent     ABM Treaty: Russians feared the termination

Senate drafted a resolution that stated that the president could not cut ties with Taiwan. Before the Senate could vote, the President unilaterally nullified the treaty. The USSC did not hear the case - the previous ruling stood which was in favor of the President.

1.       – some treaties stipulate that the treaty ends if certain actions take place. *State B must present the breach to a judge. Or else the judge decides if the breach is sufficient.

Fundamental change of circumstance that renders treaty invalid.

Treaty of Paris (1919) - usque ad coelum– sovereignty reaches all the way to the heavens. The evasion of Sputnik (1957) Rebus Sic Stantibus led to Res Communis because the times have changed.

International Law Rulings

NATIONAL COURTS – more often used, even here locally

International Courts                               

PERMANENT – ICC, Permanent Court of Arbitration

                AD HOC – sometimes a court is made for one dispute (claims tribunal)

International Courts: Subjects

STATES ONLY                     STATES AND NON-STATES                                                                            *matter of jurisprudence

Arbitration – a legal tribunal (court)

*established ad hoc or permanently, used frequently in domestic law.                                                                *More efficient and less expensive than going to court.                                                                                               *Disputes are brought before it - each side selects the same number of arbiters

Arbitration came out of the late 18^th century out of necessity, the divide between British-Canada and the United States. Jay Treaty comes from (John J) in which each side would appoint commissioners to collect information, ultimately resolving the dispute. If they could not agree, then all would pick a new arbiter to cast the deciding vote.

Golden Age of Arbitration – that period following the Jay Treaty of 1794 in which arbitration came a common feature in world politics.

Characteristics of Arbitration

FREE SELECTION OF ARBITERS                    LIMITED BY IL                     PARTIES ACCEPT AWARDS

COMPROMIS                     NO APPEAL

– a very small treaty which transfers jurisdiction to a court states. (3 parts)

1.       Parties to a compromise (dispute)

2.       State the dispute

3.       Acknowledge the Courts Jurisdiction

Free Selection of Judges

Aaroo Mountain Dispute (1932)

- Involves the Mountain range near Saudi Arabia and Yemen. The Yemen troops went into the Aaroo mountains and the Saudi King demanded they leave. The Yemen leader said a court (arbitration) to make the decision legally binding. The Saudi King declined. However, the Yemen leader said that the Saudi King would be the Arbiter. The dispute was around mis-information and dispute,

Confines of International Law

Northern Boundary Dispute (1831)

LEGAL PARAMETERS

Valid Decision / Invalid Decision (not within the legal parameters)

– upper St. John River Valley - It was a dispute that was born out of the American Revolution and was never settled. Each side selected a commission to draw maps and come up with a conclusion. The US and Britain chose the King of the Netherlands (William the Silent)                               *missed the last part

Advantages of Arbitration

Flexibility – can choose the arbiters, the seat, and certain limits

Confidentiality – usually it is up to the parties of the dispute whether it is private.

State and Non-State Action – can both atttend

Efficiency – less expensive than going to the world court

- oldest Court of Arbitration in the Modern Court (also has a location in New Delhi. They go anywhere in the world to hold the arbitration, most efficient. Established in 1891. It has 35 members (judge) of those 35 no more than 6 can be British Citizens

*Confidentiality is its Rule – binding rulings that no one will know about.

American Homes (not in hurricane zones) are made with lumber. Imported from Canada, very easy to work with and very strong. The US had an issue with Canada subsidizing the lumber to sell cheaply. The US places a Tariff against the Canadians. This case goes to court to court - the US usually rejects it if it is not in their interest. The final ruling is in favor of the United States.

-wto-nafta-lca

– it’s been around for 30 years and issued thousands of claims. Created at the height of animosity between the US and Iran, established out of necessity because of sanctions that were placed against Iran. Assets were frozen – the claims tribunal was established. There were 9 judges to sit each time, 2.5 billion dollars have been released.

3 Iran 3 us 3 chosen

created in 1983 to resolve disputes around sports. Its headquarters in Switzerland, but have locations elsewhere. 24 hour ruling as opposed to several months.

– during the Olympic Games in Greece. Germany’s horse jumped early so they should have been penalized. US was moved from 4^th place to 3^rd.

– made International headlines, South African man. He was the world’s fastest man without legs. The International Federation for Athletes (IFA) changed his rules, many believe in ways to exclude him. He appealed to the CAS - they heard the case and reversed the ruling. The IFA had not proved advantage. He was able to compete and did not make the Olympics.

tennis has a very high standard for drug contamination. Richard Quet (top 10 in the world at the time of the case) he was suspended for 2 ½ months for testing + for cocaine. This could be very problematic for him, so he appealed to the CAS. His claim was he kissed a girl that was taking cocaine and it entered his blood stream that way.

established in 1899 through the Hague Convention. It addresses Jus Gentium Privatum and Publicum. It has 97 Parties (member states) including the US. Each one of those 97 gets to pick four members (judges) for the Court. Most brilliant IL arbiters of the world.

PCA International Bureau

SG (Secretary General)

Member States                                LEGAL STAFF (all legal professionals)                       Arbiters (388 of those)

ADMINISTRATIVE STAFF

The Peace Palace – building of the PCA. Made possible because of Andrew Carnegie, mostly all comes from gifts from various countries. The Peace Palace is on the second floor.

the very first case heard before the PCA. Pious – means religious, a bank account for religious purposes. A 200 year deposit made by the Jesuits, the fund was being used in California. It was located down in Mexico, so they would refuse to release funds because of the border issue. Mexico decided to go to the PCA, the ruling was in favor of the Jesuits. It allowed the Mexican government to say to its citizens that they abide to International Law, unlike the Americans.

– dispute deals with an archipelago between Yemen and Ethiopia. Based upon Terra Firma – it should belong to Yemen. Ethiopia lost a part of its territory (Eritrea) which was its coastal. After the Eritrean Independence, the Germans are building a hotel. The Yemen’s bring over 200 military individuals for security. Facts on the Ground – physically changing the demeanor of something.  It is about Yemen claiming sovereignty over the land - the Eritrean troops invade and won the battle. The PCA ruled in favor of Yemen, Eritea must refrain from future claims.

– state centered, only nations can go before it. The question was of Compulsory Jurisdiction – if you are a member of the league you are compelled to come before the court. CJ became optional, 11 judges and 4 deputy judges. No two from the same nationality, the US was not a member of the League of Nations, however, one of our judges sat on the court. There were 83 decisions over time. Ceases to exist in October of 1945.

) - it has 15 judges, no two from the same nationality. No stare decisis, the concept instead of jurisprudence constante– defined as the tendency of judges to rule similar fashion over time. Judges are predominantly men.

COMPROMIS – an agreement between two parties to come before the court to decide upon an issue.

TREATY CLAUSE – if there is an existing treaty clause that gives them jurisdiction.

COMPULSORY JURISDICTION – any time moving forward, this court has jurisdiction. Sometimes there are Reservations attached to these filings.

Three Types of ICJ Cases

ARBITER – acts like an Arbiter when the Compromis is signed, that means the parties are willingly coming before it for a legal ruling. It is better to lose rather than the issue continue.

COURT –When Compulsory Jurisdiction or a Treaty forces them to come. They would rather the issue continue than lose the court case.

LEGAL ADVISOR – An International Organization asks the PCJ for advice - Non-binding decisions. Usually only the Security Council and the General Assembly can ask for this.

*Elected by the GA and the SC, but they must first be referred to the United Nations.                                 * Committee of Experts that provides the names – goes through a process - 15 judges.                                   * Each of the ICJ judges serve 9 years. Every 3 years 5 of its judges expire. Usually re-elected.

*They make about $170,000/year            *President receives a $15,000 stipend                                           *Full Diplomatic Immunity                            *5 of the 15 come from the Permanent Members

+15 seat, 10 are open to the remaining 177 States of the World.

Case Phrases in the ICJ

PRE-COURT PHASE – before the dispute is filed, ends with application

APPLICATION – formal filing of the case - compromis, treaty clause, or compulsory jurisdiction

WRITTEN PHASE – will take 3 months to a year depending on its complexity. *Material Fact and Law

ORAL PHASE – take a few weeks, to argue a case before the court. Public address by the Lawyers

DELIBERATION – the court deliberating on the evidence and the law.

RULING – one shot, if the court lacks jurisdiction then the ruling will not stand

ICJ Rulings

JUDICIAL DECISIONS                       ARBITRAL AWARDS

Judicial Decisions – is the behavior legal/illegal

Arbitral Awards – financial damages because of your actions

Impact of the Court Rulings

ICJ Statute Article 94(1) – by accepting these rules, you respect its rulings

Security Council – authority to implement by the Security Council

Third Party Reactions – reactions by States that are not involved in the dispute

Basis for Negotiations – between nation states if you don’t get what you want

Internal Pressure to Adhere – if the President doesn’t adhere they can be brought to court

– Nicaragua brought the case to the Security Council, the US rejected the ruling claiming the court did not have the competence or the jurisdiction to rule. In 1979, the US invaded the country because there was a revolution. The Sandonistas were the rebel group led by Daniel Ortega. The fear that was Communism would start in Central America and spread to other third world countries.  US provided money, guns, and assist to the Contras (believed to be led by Reagan) Iran-Contra Affair 1983-1988.  The court ruled the US was in violation through the arming of the Contras but also in the mining of the Contras. Steps were being taken by the Boland Amendment1982-1984 set of restrictions placed on US aid to the Contras. US position was that Nicaragua was attacking Guatemala, support for Contras.

– advisory opinon- legal advisor, GA came to the court for advice. South-West Africa was a German Colony end of world war 1, the mandate system was taken away from Germany and given to South Africa. The expectation was of eventual Independence, butexport- apartheid rules- incorporated.  ga was conserened about south africans absorbtion. ask the court if south africa had the legal right. Namibia was eventually welcomed.

Australia v. France (1973) (NUCLEAR WEAPONS test CASE) New Zealand v.

1973) –

a & z afraid  of inviormental concequence– New Zealand sues France for testing nuclear weapons because of the environmental consequences in    icj. The court ruled with two clauses: 1) France has the right to test their weapons on their land, sovereign nations- no legal probithin 2) France is responsible for all environmental consequences.established- Principle of Good Neighborliness – environmental damage to neighboring state is the responsibility of the acting state.

1979 iranian revolution aiatola came back frome exile in france american hostages taken an american compounds invaded- President Carter sued Iran in the ICJ reperations. The Iranians did not show up not only because they could not win, but because the Revolution was against all things Western (including the ICJ)- in favor of us

– Portugal was the administering power of East Timor. It sued Australia in the ICJ because it got involved in a contractual agreement with East Timor. The court did not hear the case because Indonesia did not show up. The courts jurisdiction collapsed.

Compulsory Jurisdiction Reservations

JURISDICTIONAL              AUTOMATIC                      CATEGORICAL

-          Jurisdictional - In the event that the case falls under the domestic jurisdictional of our country, the court does not have jurisdiction over that case.

-          Automatic cancels out jurisdictional compulsory jurisdiction. The court always has rule

-          In the event that the court wants to see the case based on a certain category, then that case is transferred to another court based on that reservation.

– the compulsory jurisdiction of the Court shall not apply to disputes with regard to matters which are essentially within the domestic jurisdiction of the USA…as determined by the USA.

– issue of reciprocity – when Bulgaria shot down an Iranian airplane. It killed a lot of Americans so they shot down the plane. Went in front of the court and they determined that the case was under the jurisdiction of Bulgaria.

- France purchased a number of Norwegian bonds. The Norwegians refused. France sued Norway in the ICJ, they signed Compulsory Jurisdiction. The Norwegians adopted it by the principle of reciprocity, they adopted it, and the case was dismissed.

Recent Developments in the ICJ

SPECIAL CHAMBERS                        TRUST FUND

Special Chambers – When the docket is modest, they can hear all cases. However, when the docket is much more burdensome, special chambers are created. Ex: three judges are selected and they will render an assessment, or you can wait 12 months. The country usually will agree because there is less than 9 judges. The outcome will ultimately be the same, just saves a lot of time.

Trust Fund – realization that poor countries don’t have a fair shot with the court because court costs and IL lawyers are expensive. Rich countries donate then poor countries can take from the fund.

The Big Five International Courts

PCA                        ICJ                          ITLOS (International Tribunal for the Law of the Sea)

WTO                      ICC

1.       sits in Hamburg, Germany. It hears any and all cases dealing with the Law of the Sea Convention, very large original treaty. Its rulings tend to fall within two categories:

 PROVISIONAL MEASURES – stop doing the illegal act.

PROMPT RESPONSE – The release of an arrested ship when it does something illegal, but must be released when an appropriate bond is paid. A court date is then made, they can

): Ireland v. UK (provisional measures case) – stop operating the plant because it will poison the water. The court rules that Ireland and the UK shall exchange further information regarding the possible pollution of the Irish seas, will monitor the risks and operations of the plant, and will devise measures to prevent the pollution. The court did not meet the Irish demands, because there was not yet much pollution that was evidential to the court. They didn’t have to stop, just work together

Panama v. France (prompt response) – In 1999 France arrested a Panamanian ship named Camouco for fishing in their territory off the Crozes Archipelago off the coast of S. Africa. They accused the Panamanians of shipping, hiding their bait, and running when they saw France. They seized the ship and placed a bond of 20M. The LOS Treaty does not specify of how much the bond should be, a ‘reasonable amount’. The decision was of 8M instead of 1M that the Panamanians wanted.

Regional International Courts

EUROPE               AMERICAS                                          AFRICA

ECJ                         IACHR                                                   ACHPR (African Court of Human and Peoples Rights)

ECHR                     ANDEAN COURT                               SADC

COA                       CARRIBEAN COURT

European Union Court System

COURT OF JUSTICE          COURT OF HUMAN RIGHTS         COURT OF AUDITORS

European Court of Justice – It has two principle functions: 1) Interprets European Union Law  2) the laws are applied evenly. It has a judge for each member 27 judges, hears about 1300 cases per year.

– (supremacy) – SOLAR company - an Italian citizen that owns shares in the company. The Italian government nationalizes it, he stops paying his Energy Bill. The court (ECJ) ruled that community law is supreme and cannot be overridden by domestic law.

Romeo was charged with assault with violence and murder, he put a cinder block in another man’s head. He entered a plea of guilty, but to a lesser charge. The judge gave him a sentenced of 6 years, he was given no credit for the three years he was in jail. The ruling was he should be given credit for time served.

The Genocide Case (1951)