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Public International Law
University of Toledo School of Law
Davis, Benjamin G.

INTERNATIONAL LAW
DAVIS
FALL 2011
 
 
PART I: INTRO TO I-LAW AND LAW MAKING
I.            Chapter I: EVOLUTION OF INTERNATIONAL LAW
·         When the Prof says I-law, we should think:
o    Treaties
o    Custom I law (general practices of states accepted as law
o    General principles
o    Treaties crystallize rules that are customary
1.       Libya/Chad
a.        Current Situation in Libya:
                                                                                       i.      Gaddafi was in charge of the Gov. for 42 years.
                                                                                      ii.      TNC – Transitional – National Council  the official rebel group of Libya (Libya's interim anti-Gaddafi government .) The Libyan Rebels (TNC) got recognized by the govs of other countries, they get access to the money preserved in the UN treasury as the Libyan fund.
                                                                                    iii.      No-fly zone- once the UN council has spoken, all the countries who are the members of UN have to follow (Libya is a UN member.) (China and Russia abstained from no-fly zone)
                                                                                    iv.      Why would Libya be a concern to NATO? – Oil, which goes to Europe and China. So what happens in Libya is a strategic interest to European countries
                                                                                      v.      Gaddafi – says that if you remove him, the illegal immigration from Libya is going to start, b/c he is the “warden” of the borders
b.       Chad-Libya war over the Aouzou Strip
                                                                                       i.      The land is not really valuable
                                                                                      ii.      Chad claims it’s their land, their arguments:
1.       1955 Treaty b/in Libya and France (which recognized validity of previous agreements b/in France and previous colonial powers in Libya’s area: Italy and Britain)
                                                                                    iii.      Libya wants the land; Libya's arguments:
1.       1955 treaty is invalid b/c Libyan king was coerced by France into signing it. It was signed by the King, and under the colonial power, and now it's the Gaddafi gov., so we are not bound by it.
2.       that treaty never recognized any border b/in Chad and Libya
3.       Inhabitants of the region claim allegiance to Libya
4.       Ottoman Empire (predecessor to Libya) had title to this territory
5.       We have occupied it.
6.       It is “our place”
                                                                                    iv.      Libya supports the Rebels in Chad (Gaddafi wanted to be the King of the whole Africa, he spent money all over it)
                                                                                      v.      Gaddafi won't go into Egypt (too strong), it won't go to Algeria (what reason ? – I didn't write it down- I think it's that the French  are in there)
                                                                                    vi.      Chad is backed by the French; Libya asks for help from Soviets and is backed by the Soviet Union; French ask for help from US
                                                                                   vii.      Organization of African Unity – now all the countries in Africa are upset with Libya
                                                                                 viii.      African Union wants to keep stability, so they want to keep the boundary lines and only allow to be changed by a treaty
                                                                                    ix.      No one wants to get into nuclear war over it
                                                                                      x.      Chad makes an appeal to UN security council. (It has the power to …)
                                                                                    xi.      Chad and Libya agree to submit the case to the International Court of Justice (ICJ) to be decided by an impartial court pursuant to the Intn'l law, but what's international law?
                                                                                  xii.      ISSUES (look at all to decide validity of treaty):
1.       Was there the power to enter the treaty – did the party who entered the treaty have the power to enter the treaty (e.g., Libya asserting they did not have the power to enter)?
2.       What should be the rule for looking into treaties under Colonial rule?
3.       What was the purpose of that treaty?
4.       Did they denounce the treaty before the conflict arose or did they follow along but now they are claiming that it's inconvenient for them? – No, Libya never opposed the Libyan-French treaty before, until now.
5.       Did Chad approve the treaty? – yes
6.       Did Libya object to UN drawing maps and boundary lines? NO
                                                                                 xiii.      The question of the Frontiers – if this treaty is considered to have been coerced, then what about every other treaty done in the other countries? (The stability of the colonial borders would be violated)
                                                                                 xiv.      The ICJ looked at all of these and decided that it would be a better policy for the stability of borders to preserve that treaty and ultimate decision is that the Aouzou Strip belongs to Chad.
                                                                                   xv.      Libya complied with it – it preserved its face, claiming that it defended its land, but it has to submit to the ICJ's ruling.
c.        Lessons from this case:
                                                                                       i.      In spite of them being in dispute, it is still possible to use international law to resolve their issues. The states actually agreed to send the case to ICJ (states have to agree to allow sth to go to ICJ. (In the Iraq-Iran war, lasted 8 years, both countries complied with the Geneva Convention. That's an example of a rule making sense.)
                                                                                      ii.      Two areas of law are involved and looked at:
1.       The treaty (the rule of what to do with those borders) (it was the 1955 treaty that gave the strip to Chad (Libya-France treaty))
2.       Customary rights over the area, historically, rights of possession, rights which have been there and are not disturbed
                                                                                    iii.      the idea that sometimes to resolve disputes, look at treaties and sometimes at customary law
                                                                                    iv.      The idea of respecting boundaries, every state is sovereign in its own territory
2.       The Rainbow Warrior Affair, p. 17 (1978)
a.        The Greenpeace ship gets sunk in New Zealand by members of the French gov.
b.       Greenpeace is an NGO
c.        2 French spies  get caught
d.       New Zealand has jurisdiction, b/c under its laws such action is a crime, so they won’t give out the French nationals; they want to make sure the spies get punished and they don’t trust that France will do that.
e.       But other countries (after France’s influence) started imposing burdens on trade with NZ, so NZ agrees to settle
f.         Neither country wants to lose face (and there are elections going on in France on top of that); they can’t agree
g.        That's a game.
h.       So they submit to ICJ („impartial arbiter”)
i.         The Ct's decision:
                                                                                       i.      First, there needs to be an apology.
                                                                                     ii.      ISSUE: Is apology important?
1.       (every time Japanese go into China or Korea, they apologize for the genocides of the wars)
2.       The power of apology as a remedy is big
3.       New Zealand seeks apology,
4.       France is prepared to give one (it is very subtle – as far from an apology as it can be)
5.       But France doesn't apologize on its own; it is ordered to do that (and it will do it in a private writing b/in the parties), and it will save its face…
                                                                                    iii.      Second, the amount for compensation is 7 million (it was agreed to before) although each party formally claimed more/less
                                                                                    iv.      The two spies:
1.       They are ordered to a “prison” on an island, where they will live w their families for 3 years.
2.       If there are any problems, the parties will be submitted to arbitration
j.         (Secretary General is serving as a “cover” which represents the solution which the countries agreed to.)
k.        This is a Treaty – a settlement of dispute.
l.         What happens with the obligation? Did they comply with the obligations??? NO.
m.      Was there an excuse?
                                                                                       i.      ISSUE: Are there any excuses for not complying w. the treaty?
1.       Necessity (Sickness)
2.       Impossibility
·         There are certain conditions which Intn'l law recognizes excuses
·         But there are some treaties for which there are no excuses, e.g., Genocide
                                                                                     ii.      The first (Major Mafart) spy gets sick –
                                                                                    iii.      Secondly, Captain Prieur gets pregnant and her father is dying.
1.       Necessity – protect the baby, and see the father who is dying
2.       Is this enough to violate the treaty?
n.       So, the dispute should be settled again:
                                                                                       i.      The tribunal stated that it was ok to get them out of the island, but a breach to not return them back.
                                                                                     ii.      It was also a breach that they didn't obtain consent of NZ before they send them off the island
                                                                                    iii.      But by now the three years have passed, and it's over.
                                                                                    iv.      This decision was not unanimous (2 out of three arbitrators agreed on that – French and the chair while the NZ arbitrator was against)
 
3.       (pp. 28-30) Why do the states comply with the law? (the answer will be in Ch. 14)
a.       Realists claim that states comply only when it is in their interest –> powerful states decide to comply and ensure that weaker states comply
b.       Institutionalists also comply when in their interest but they convince others by reducing transaction costs, etc… “positive reinforcement…??” focus on creating inst. which will regulate and resolve
c.        Constructivists – states achieve shared understandings & alter perception of own interests
d.       Kantian – it is a function of legitimacy of the law and achieving targets (a bit of both)
e.        Managerial – cooperation
f.         Georges Scelle – dual function – if I don't comply, then there is a risk that others won't comply
4.       What about the different regimes and different states?
a.       Each country has its own interpretation of the intn'l law and its rules
5.       Pp. 30-31 How do you approach Intn'l law?
a.       Different kinds of rose-colored lenses – theoritians w different ways of looking at IL
b.       Prof's approach – take them all together
                                                                                       i.      Is the rule efficient?
                                                                                     ii.      Is it fair?
                                       

  If not a full power, then you have to have some kind of document saying what kind of powers you have.
4.       (d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;
5.       (e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;
6.       (f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force;
7.       (g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force;
8.       (h) “third State” means a State not a party to the treaty;
9.       (i) “international organization” means an intergovernmental organization.
10.    The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.
                                                                                                                                    iii.      Article 3: If you don’t have all the above things, this convention doesn’t apply.
                                                                                                                                    iv.      Article 5: Applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an internal organization without prejudice to any relevant rules of the organization. (So this applies to the UN Charter even).
b.       ENTERING & PERFORMING TREATY
                                                                                                                                       i.      Article 6; Every State possesses capacity to conclude treaties.
                                                                                                                                      ii.      Article 7. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
1.       (a) he produces appropriate full powers; OR
2.       (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
a.        In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
                                                                                                                                                                                                               i.      (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
                                                                                                                                                                                                              ii.      (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
                                                                                                                                                                                                            iii.      (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
                                                                                                                                                                                                            iv.      (Makarios and Kutchuk were not heads of state. Did they have the power to represent a state?)
                                                                                                                                    iii.      Article 8: Subsequent confirmation of an act performed without authorization. An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.-à THIS is what people were arguing said was what made it in Cyprus; they acted pursuant to the 1959 agreement for 2,5 years, this could be the confirmation
                                                                                                                                    iv.      Article 9: Adoption of the text