Fluent Essays

Should the United States ratify the Law of the Sea Convention? 3 pages. 12 pt. font and double-space. Assignments will be graded using a rubric (see attached).All references should be cited in Chicago/Turabian author/date format, which entails including page numbers.Be sure to make a clear thesis statement and argument and use examples to support your analysis.**Do not research beyond the class materials. You should not conduct outside research and must concentrate on using the course readings to display that youve completed them and understand their general arguments. (See attached). week_5_lesson_co3.docx sea_1.pdf sea_2.pdf sea_3.pdf sea_4.pdf Unformatted Attachment Preview International Courts and Legal Regimes INTRODUCTION This weeks lesson combines the International Court and legal regimes - specifically, the International Court of Justice (ICJ) and the Law of the Sea Convention (1982) are presented in Merrills chapters 6, 7, and 8. The lesson covers quite a bit of information and it would be helpful to review the lesson prior to any other reading for the week as they contain important conceptual and legal definitions that will be useful in your reading. Lesson Topics: • The United States and the International Court of Justice • • • • • • Regimes United Nations Convention on the Law of the Sea (UNCLOS) Overview of International Courts Courts and Sovereignty Other Courts and Tribunals Important Terms and Definitions for International Courts and Legal Regimes Key Terms • International Court of Justice (ICJ) • Soering vs. United Kingdom • Legal Regimes The United States and the International Court of Justice The readings in Merrills this week are quite substantial, with two chapters on the international court, a term used to denote the original Permanent Court of Justice (1919) from the League of Nations system and its successor, the International Court of Justice (ICJ - 1945) under the United Nations. The topics of discussion include the jurisdiction of the ICJ and membership, as well as the decision-making process of the Court and enforcement of decisions. The third chapter concerns the Law of the Sea Convention (1982) and its representation of an international legal regime. The terms convention and regime can be confusing in international law. A convention is merely the instrument that results from a treaty-making process. Regimes International regimes are trickier and their definition has evolved as they have become more prevalent ways of organizing international activity. Stephen Krasner (1983) defined regimes as implicit or explicit principles, norms, rules, and decision-making procedures around which actors expectations converge within a specific issue. Robert Keohane (1989) simplified the definition of regime by focusing only on explicit rules. So with Law of the Sea Treaty, we not only have a convention but a regime. As Merrills indicates, the Law of the Sea Convention contains 307 articles and took eight years to negotiate (Merrills 2011, 167). Listen to the story about why, in spite of being an early supporter of the regime, the US has not ratified the treaty. United Nations Convention on the Law of the Sea (UNCLOS) Along with the tribunals listed below (many whose primary focus is on crimes against humanity in postconflict situations), the International Tribunal for the Law of the Sea is of interest to us this week because it demonstrates many principles and techniques of dispute resolution of the Courts, what some of the disputes are, and how decisions are made and enforced against and among its members. Merrills (2011) explains the principle of compulsory settlement, exceptions to it, and the use of conciliation and arbitration within the UNCLOS framework - all in Chapter 8. Focus particularly on the Sea-Bed Disputes Chamber. This is the primary argument of the United States’ refusal to join UNCLOS. Overview of International Courts • • • • • International Court of Justice (ICJ) Advisory jurisdiction Opinio juris Optional clause The Law of the Sea Convention During World War II, when the Allied Powers created new international institutions, the International Court of Justice (ICJ) became the successor to the old Permanent Court of International Justice under the League of Nations system. The ICJ was created in 1945 and operates in the Netherlands at Den Haag (The Hague). Article 2(3) of the Charter of the United Nations sets out the provision for the Courts operation: States shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered (UN Charter). Watch this brief video for an overview of the Courts role and function in international law ( View video transcript ). Since 1945, several other courts have become prominent in facilitating international negotiations and conflict resolution. For example, one of the newest is the International Criminal Court (ICC), which is independent of the United Nations system. The ICC is located at The Hague, too. Principles o o o o o o Compulsory settlement Common heritage of humankind Collective security International legal personality Pact sunt servanda Reciprocity o Exceptions to the principle of compulsory settlement Techniques o o o o o Law of the Sea o o o o o o Conciliation Arbitration Special arbitration International Tribunal for the Law of the Sea The Sea-Bed Disputes Chamber Continental shelf Deep seabed area EEZ High seas Territorial waters Internal waters Courts and Sovereignty SOERING VS. UNITED KINGDOM In the European context, there are two primary international courts - the Court of Justice of the European Union and the European Court of Human Rights. Sometimes these two courts are confused but they are indeed two separate institutions with their own histories. The ECHR began operation in 1959 and is predominantly responsible for monitoring human rights among the 800+ million population of Europe (not just the European Union members). Individuals are able to apply directly to the ECHR. Sometimes rulings of the ECHR override state sovereignty. A good example is the case of Jens Soering in Soering vs. United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989). Soering was a German national, a college student studying in Virginia, when his girlfriends parents were murdered at their home in March 1985. About a year later, after Soering and the couples daughter had been living in the UK, Soering was charged with capital murder by the Commonwealth of Virginia. The UK, holding an extradition treaty with the United States, agreed to send Soering back. But Soering took the case to the ECHR, stating that standing trial in Virginia for capital murder would lead to a violation of Article 3 of the European Convention on Human Rights - which guarantees the right against inhumane and degrading punishment. The ECHR sided with Soering - and it looked at first like he was home free. The UK, as a member of the ECHR, was bound to the Courts decision against extradition. But then the Commonwealth of Virginia dropped the capital murder charge and replaced it with manslaughter. Soering was on the next plane home, so to speak. INTERNATIONAL COURTS With some irony, Soerings case gets at the heart of the operation of international courts as they come faceto-face with state sovereignty. As youll read in Merrills, the ICJ (and other international courts) have jurisdiction over states and in some cases, individuals. But international law is malleable; foreign policy even more so. Ku and Diehl argue that international law is both an operating system and a normative system. As an operating system, international law functions much as a constitution does in a domestic legal system by setting out the consensus of its constituent actors (states) on distribution of authority, responsibilities in governing, and the units that will carry out specific functions (Ku and Diehl 2003, 3). But somewhere between the operational and the normative, political pressure is applied that means a dispute falls in neither camp. Within the context of international negotiation, the four components of the operating system are sources of law, actors, jurisdiction, and the courts or institutions. But there also are political processes that come into play in disputes, sometimes involving intervention by the United Nations. An interesting case on that point is Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, Judgment, [1984] ICJ Rep. p. 392 as quoted in Merrills 2011, 231. Advisory Jurisdiction In this important function of the International Court of Justice, parties are not traditional claimants and defendants as in contentious jurisdiction of the Court (Merrills 2011, 116). The Court basically writes an opinion on a particular issue and invites states to participate in the process. As a source of international law, these opinions would be used as arguments in other cases. The authority for the ICJ to create these advisory opinions is found in Article 96 of the UN Charter. When an advisory opinion is sought upon a question actually pending between two states each of them is entitled to have an ad hoc judge on the bench. The request for an advisory opinion must be made by the United Nations to assist it in the discharge of its function; provided the opinion relates to a legal question it is immaterial that it affects political issues (Admission of New Members Case [1948] ICJ Rep 57). Consent is not required for an advisory opinion. Among the International Court of Justices most prominent advisory opinions are UN Admissions (Competence of General Assembly) Case [1950] ICJ Rep 15; Genocide Reservations Case [1951] ICJ Rep 15; and PLO UN Mission Case [1988] ICJ Rep 12 (Martin and Law 2006, n.p.). Deep Seabed Area Under the 1982 United Nations Law of the Sea Treaty, this is defined as being the ocean floor and its subsoil beyond the limits of national jurisdiction. Thus, it constitutes that area beneath the oceans that does not come within any of the coastal zones. The resources within such an area are the common heritage of [hu]mankind. Under the Treaty an organization nominated the International Seabed Authority will control deep seabed mining in the area (Martin and Law 2006, n.p.) The United States objects to the principles of UNCLOS for the deep seabed areas. Exclusive Economic Zone (EEZ) In this important function of the International Court of Justice, parties are not traditional claimants and defendants as in contentious jurisdiction of the Court (Merrills 2011, 116). The Court basically writes an opinion on a particular issue and invites states to participate in the process. As a source of international law, these opinions would be used as arguments in other cases. The authority for the ICJ to create these advisory opinions is found in Article 96 of the UN Charter. When an advisory opinion is sought upon a question actually pending between two states each of them is entitled to have an ad hoc judge on the bench. The request for an advisory opinion must be made by the United Nations to assist it in the discharge of its function; provided the opinion relates to a legal question it is immaterial that it affects political issues (Admission of New Members Case [1948] ICJ Rep 57). Consent is not required for an advisory opinion. Among the International Court of Justices most prominent advisory opinions are UN Admissions (Competence of General Assembly) Case [1950] ICJ Rep 15; Genocide Reservations Case [1951] ICJ Rep 15; and PLO UN Mission Case [1988] ICJ Rep 12 (Martin and Law 2006, n.p.). High Seas Under Article 13(1)(a) of the 1958 Geneva Convention on the High Seas, all parts of the sea that are not included in the territorial waters or the internal waters of a state. Article 87 of the UN Convention on the Law of the Sea 1982 guaranteed the principle of freedom of the high seas for both coastal and landlocked states. The high seas as defined by Article 86 of the UN Convention exclude the exclusive economic zone. However, the freedoms of all states to fly over, navigate, lay submarine cables, etc., in the exclusive economic zone, as stated in the earlier Geneva Convention on the High Seas 1958, have been preserved in Article 58 (1) of the UN Convention (Martin and Law 2006, n.p.). Click on the link to read about how the United States defines its rights on the high seas. Law of the sea The historical and legal rights and responsibilities in several different areas: internal waters (like lakes, rivers, canals, etc. within a state); territorial waters; the high seas; and the continental shelf. The law of the sea is contained in customary international law and in the four Geneva Conventions of 1958. Since 1982, when the United Nations Convention on the Law of the Sea came into force, there is a comprehensive code governing the whole of this law, which includes some completely new rules (Martin and Law 2006, n.p.). For current information on signatories, click on the link. Territorial Waters The band of sea between the limit of the internal waters of a state and the high seas, over which the state has certain specified rights. These rights are governed by a 1958 Geneva Convention, which is taken to represent the position under customary international law (Martin and Law 2006, n.p.). At the heart of the South China Seas dispute are the overlapping territorial waters. China has extended its territorial waters by building up reefs and rocks (below sea level). This is explained in detail in the Dutton (2011) article in your reading this week. Other Courts and Tribunals CURRENT INTERNATIONAL COURTS AND TRIBUNALS • • • • Extraordinary Chambers in the Courts of Cambodia (ECCC) International Criminal Tribunal for the former Yugoslavia (ICTY) International Criminal Tribunal for Rwanda (ICTR) ( View video transcript ) Special Tribunal for Lebanon • Iran-United States Claims Tribunal Conclusion The International Court of Justice is the judiciary body of the United Nations, whereby states adhere to international law and a set of agreed upon principles to settle disputes. There is some tension; however, between state sovereignty and the ability of international courts to carry out operations. References Ku, Charlotte and Paul F. Diehl. 2003. International Law as Operating and Normative Systems: An Overview. In International Law: Classic and Contemporary Readings, by Charlotte Ku, & Paul F. Diehl. Boulder, CO: Lynne Rienner Publishers. Martin, Elizabeth A. and Jonathan Law. 2006. A Dictionary of Law. Oxford: Oxford University Press. Online. Merrills, J. G. 2011. International Dispute Settlement. 5th ed. Cambridge : Cambridge University Press. Global Conflict Resolution AND THE International Court of Justice Naranjo, Dan A . The Judges Journal ; Chicago Vol. 55, Iss. 3, (Summer 2016): 16-20. ProQuest document link ABSTRACT 5 The International Court of Justice (ICJ), seated in The Hague, Netherlands, is the primary U.N. body tasked with settling legal disputes between U.N. member states in accordance with the international law governing the disputed The ICJ plays a central role in the promotion of the rule of law on an international level, which the courts former president, Hisashi Owada, affirmed before the U.N. General Assembly, stating that ICJ judges are a collegial body of judges who are dedicated to the cause of promoting justice in the contemporary world. [...]the ICJ is the worlds most important intergovernmental organization for resolving legal disputes. FULL TEXT Todays world is becoming smaller as a result of technology and globalization. With improvements in modem technology, transportation, and communication, the nations of the world must have a common venue to settle disputes peacefully-a venue that provides an impartial, and neutral, judiciary and that follows the United. Nations mandate to attempt to mediate, arbitrate, and negotiate in order to solve disputes. This venue exists, and it is referred to as the International Court of Justice at The Hague, Netherlands. As the United States becomes more diverse, there is an increasing need to find ways to both embrace and nurture its diversity.1 The increase in diversity in our nation creates new ways of thinking and provides unique opportunities to increase the global connectivity2 of the United States and the world abroad. Our country is experiencing a dynamic shift in the makeup of our population. In 2011, for the first time in the history of the country, more minority babies than white babies were born in a year.3 This increases the need for diverse judiciaries in order to better understand the mindset of the disputants. And if changes are made and planned properly, these demographic changes will allow the country to face the future with growth and vitality as it reinvents the classic American melting pot for a new era.4 Background Historically, each nation played by its own international rules. This often led to confusing and stalemated disagreements. Today, it is the United Nations objective to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.5 The International Court of Justice (ICJ), seated in The Hague, Netherlands, is the primary U.N. body tasked with settling legal disputes between U.N. member states in accordance with the international law governing the disputed The ICJ plays a central role in the promotion of the rule of law on an international level, which the courts former president, Hisashi Owada, affirmed before the U.N. General Assembly, stating that ICJ judges are a collegial body of judges who are dedicated to the cause of promoting justice in the contemporary world.7 The ICJ hears cases involving member states worldwide-not individuals or companies-with subject matters ranging from classical issues such as diplomatic protection and sovereign immunity to issues of contemporary relevance such as international environmental law.8 Due to the immense macro-level legal issues that can arise between intergovernmental organizations and PDF GENERATED BY SEARCH.PROQUEST.COM Page 1 of 8 international agreements, the ICJ is often best suited to handle these types of disputes because it works to maintain an even-handed and unbiased stance. In essence, the ICJ acts as an arbitration panel for international disputes brought before it by the U.N. member nations. An example of the ICJ acting as an arbitration panel can be seen when it applies the international Law of the Sea, which is essential because more than two-thirds of all internationally transported goods are shipped via water transport. In short, the ICJ is the worlds most important intergovernmental organization for resolving legal disputes. This architecturally magnificent court, with extraordinary international reach, and which I have personally visited on numerous occasions, actually has some U.S. origins. The ICJ s home-in Dutch, Vredespaleis, or Peace Palace-was completed in 1913 after American philanthropist Andrew Carnegie (born in Scotland) donated more than $1 million to the construction of the magnificent mock-Gothic palace that hosts the ICJ, as well as the Permanent Court of Arbitration, at The Hague, Netherlands. Judicial Structure Set up by the United Nations, the ICJ s major purpose is to settle civil disputes between U.N. member nations, though at times the court will issue advisory opinions to the United Nations and its selected agencies.10 The ICJ differs from the International Criminal Court, which handles cases against individuals accused of serious offenses such as genocide, war crimes, and transgressions against humanity. In stark contrast, the ICJ does not deal with criminal cases of any sort. Instead, the ICJ is a venue where countries may bring grievances against one another. It is the world s highest authority on international law and international dispute resolution. The U.N. General Assembly and Security Council elect 15 judges to the court, each with a nine-year renewable tenure.11 By electing three judges from Africa, two from Latin America, three from Asia, five from Western Europe and North America, and two from Eastern Europe, the ICJ ensures that all legal systems are represented.12 Once elected, ICJ judges must take an oath of impartiality and are expected to rule independently of the nation from which they were elected. The ICJ cannot resolve a dispute without the consent ... Purchase answer to see full attachment