Fluent Essays

Midterm needs to be done by March 8, 2021 by 5pm. 1. This exam has an allocated total value of thirty (30) points and constitutes thirty percent (30\%) of your final grade in this course. 2. You must fully respond to the two (2) discussion exercises that are included below. Each of these exercises have an assigned individual value of fifteen (15) points. 3. Your answers to each exercise shall be at least two (2) pages long - letter size (8-1/2 x 11); no individual answer shall exceed three (3) pages. 4. Write your answers in letter size (Font) twelve (12), in single-spaced paragraphs. 5. Identify each answer provided, with the roman number assigned to the exercise to which each answer responds to.1 Restatement of the Law, Third, Foreign Relations Law of the United States Copyright (c) 1987, The American Law Institute Case Citations Rules and Principles Part 1 - International Law and Its Relation to United States Law Chapter 1 - International Law: Character and Sources Restat 3d of the Foreign Relations Law of the U.S., § 101 § 101 International Law Defined International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. COMMENTS & ILLUSTRATIONS: Comment: a. International law and remedies: cross-references. The character and general content of international law are discussed in the Introductory Note to this chapter. The sources of international law are set forth in § 102. The remedies for violation of international law are dealt with in Part IX. b. State and international organization: cross-references. State is defined in § 201, international organization in § 221. c. Private international law (or conflict of laws). International law, which in most other countries is referred to as public international law, is often distinguished from private international law (called conflict of laws in the United States). Private international law has been defined as law directed to resolving controversies between private persons, natural as well as juridical, primarily in domestic litigation, arising out of situations having a significant relationship to more than one state. See Restatement, Second, Conflict of Laws § 2. In some circumstances, issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial international significance and therefore may be considered foreign relations law, § 1. In recent years, private international law has been coordinated and harmonized among states, and many of its rules are the subject of international agreements. The concepts, doctrines, and considerations that inform private international law also guide the development of some areas of public international law, notably the principles limiting the jurisdiction of states to prescribe, adjudicate and enforce law. See Introductory Note to Part IV, Chapter 1, and § § 402-403, 421, and 431. Increasingly, public international law impinges on private international activity, for example, the law of jurisdiction and judgments (Part IV) and the law protecting persons (Part VII). To the extent that conflict of laws in the United States refers to laws of two or more States of the United States, or conflicts between federal and State law, it is, except as otherwise noted, beyond the scope of this Restatement. d. General iCRS Report for Congress Prepared for Members and Committees of Congress International Law and Agreements: Their Effect Upon U.S. Law Michael John Garcia Legislative Attorney March 1, 2013 Congressional Research Service 7-5700 www.crs.gov RL32528 International Law and Agreements: Their Effect Upon U.S. Law Congressional Research Service Summary This report provides an introduction to the roles that international law and agreements play in the United States. International law is derived from two primary sources—international agreements and customary practice. Under the U.S. legal system, international agreements can be entered into by means of a treaty or an executive agreement. The Constitution allocates primary responsibility for entering into such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executive agreements are not self-executing, meaning that implementing legislation is required to provide U.S. bodies with the domestic legal authority necessary to enforce and comply with an international agreement’s provisions. The status of an international agreement within the United States depends on a variety of factors. Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and inferior to the Constitution. Depending upon the nature of executive agreements, they may or may not have a status equal to federal statute. In any case, self-executing executive agreements have a status that is superior to U.S. state law and inferior to the Constitution. Treaties or executive agreements that are not self-executing have been understood by the courts to have limited status domestically; rather, the legislation or regulations implementing these agreements are controlling. The effects of the second source of international law, customary international practice, upon the United States are more ambiguous and controversial. While there is some Supreme Court jurisprudence finding that customary international law is part of U.S. law, U.S. statutes that conflict with customary rules remain controlling. Customary international law is perhaps most clearly recognized under U.S. law via the Alien Tort Statute (ATS), which establishes federal court jurisdiction over tort claims brought by aliens for violations of “the law of nations.” Recently, there has been some controversy concerning references made by U.S. courts to foreign laws or jurisprudence when interpreting domestic statutes or constitutional requirements. Historically, U.S. courts have on occasion looked to foreign jurisprudence for persuasive value, particularly when the interpretation o~1 ~~ The Evolution of International Law: colonial and postcolonial realities ANTONY ANGHIE ABSTRACT The colonial and postcolonial realities of international law have been obscured by the analytical frameworks that governed traditional scholar- ship on the subject. This article sketches out a history of the evolution of international law that focuses in particular on the manner in which imperialism shaped the discipline. It argues that colonialism, rather than being a peripheral concern of the discipline, is central to the formation of international law and, in particular, its founding concept, sovereignty. It argues that international law has always been animated by the civilising mission, the project of governing and transforming non-European peoples, and that the current war on terror is an extension of this project. The colonial and postcolonial realities of international law have been obscured and misunderstood as a consequence of a persistent and deep seated set of ideas that has structured traditional scholarship on the history and theory of international law. This article seeks to identify these structures, suggesting ways in which they have limited the understanding of the relationship between imperialism and international law. It then sketches a set of alternative perspectives that may offer a better appreciation of the imperial aspects of international law, and their enduring effects on the contemporary international system. 1 My purpose, then, is to sketch a history of the relationship between imperialism and international law in the evolution of international law from the 16th century to the present, and to suggest a set of analytic and conceptual tools that are adequate for the purposes of illuminating this history. The traditional understanding of international law regards colonialism- and, indeed, non-European societies and their practices more generally-as peripheral to the discipline proper because international law was a creation of Europe. The explicitly and unquestionably European character of interna- tionallaw has been powerfully and characteristically asserted by historians of the discipline such as JHW Verzijl: Now there is one truth that is not open to denial or even to doubt, namely that the actual body of international law, as it stands today, not only is the product of the conscious activity of the European mind, but also has drawn its vital Antony Anghie is in the SJ Quinney School of Lalv, University of Utah, 332 South, 1400 East, Salt Lake City, UT 84112-0730, USA. Email: [email protected] ISSN 0143-6597 print/ISSN 1360-2241 online/06/050739-15 © 2006 Third World Quarterly 001: 10.1080/01436590600780011 739 ANTONY ANGHIE essence from a common source of beliefs, and in both of these aspects it is mainly of Western European origin. 2 International law in this view consists of a series of doctrines and principles that were developed in Europe, that emerged out of European history and experience, and that1 The nature and development of international law In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these be hunting animals, growing food or simply making money. Law is that element which binds the members of the community to- gether in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases, individuals. International law itself is divided into conflict of laws (or private inter- national law as it is sometimes called) and public international law (usually just termed international law).1 The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising ques- tions as to the application of foreign law or the role of foreign courts.2 1 This term was first used by J. Bentham: see Introduction to the Principles of Morals and Legislation, London, 1780. 2 See e.g. C. Cheshire and P. North, Private International Law, 13th edn, London, 1999. 1 2 i n te r nat i o na l l aw For example, if two Englishmen make a contract in France to sell goods situated in Paris, an English court would apply French law as regards the validity of that contract. By contrast, public international law is not sim- ply an adjunct of a legal order, but a separate system altogether,3 and it is this field that will be considered in this book. Public international law covers relations between states in all their myr- iad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geograph- ically or ideologically may recog/ (/) Issue: 5Volume: 1 By: Pieter H.F. Bekker Date: November 11, 1996 Home (/) / Insights (/insights) / Advisory Opinions of the World Court on the Legality of Nuclear Weapons Advisory Opinions of the World Court on the Legality of Nuclear Weapons On July 8, 1996, the International Court of Justice (ICJ), popularly known as the World Court, delivered two advisory opinions on separate requests received from the World Health Organization and the General Assembly of the United Nations, respectively, relating to the legality of nuclear weapons under international law. The principal judicial organ of the United Nations, whose Statute forms an integral part of the UN Charter, consists of 15 judges representing the different regions and principal legal systems of the world. In addition to the Courts function of delivering judgments in contentions cases submitted to it by states, it may issue non-binding advisory opinions at the request of certain UN organs and agencies. Legality of the Threat or Use of Nuclear Weapons On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory opinion on the question: Is the threat or use of nuclear weapons in any circumstance permitted under international law? At the outset, the ICJ confirmed the Assemblys broad competence to make such a request, deriving from the UN Charter and the Assemblys longstanding activities regarding disarmament and nuclear weapons. The Court also found that the request related to a legal question within the meaning of the ICJ Statute and the UN Charter and that there were no compelling reasons to refuse the request, even though the question put to it did not relate to a specific dispute and was couched in abstract terms. In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ decided that the most directly relevant applicable law governing the Assemblys question https://www.asil.org/ https://www.asil.org/ https://www.asil.org/insights / consisted of (1) the provisions of the UN Charter relating to the threat or use of force, (2) the principles and rules of international humanitarian law that form part of the law applicable in armed conflict and the law of neutrality, and (3) any relevant specific treaties on nuclear weapons. In applying this law, the Court considered it imperative to take into account certain unique characteristics of nuclear weapons, in particular their destructive capacity that can cause untold human suffering for generations to come. The Court first considered the provisions of the UN Charter relating to the threat or use of force. Although Article 2(4) (generally prohibiting the threat or use of force), Article 51 (recognizing every states inherent right of individual or collective self-defense if an armed attack occurs) and Article 42 (authorizing the Security Council to take military enforcement measures) do not refer to specific weapons, the Court held that they applyElectronic copy available at: http://ssrn.com/abstract=2594729 General Principles of Law, Judicial Creativity and the Development of International Criminal Law Fabián O. Raimondo* I. Introduction The International Criminal Tribunals have often invoked Article 38 of the International Court of Justice Statute and the ‘usual sources of international law’ in order to identify the law applicable to their operations. 1 As is well known, the principal sources of international law are international treaties, custom, and general principles of law. 2 In international criminal law, the expression ‘general principles of law’ is by and large used to mean legal principles generally recognized in national law. This understanding is present in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), 3 as well as by the text of Article 21(1)(c) of the Rome Statute of the International Criminal Court (ICC). 4 Classically, general principles of law as a source of international law are deemed to be subsidiary in nature; subsidiary, in the sense that if there exists an applicable conventional or customary rule, this shall prevail. 5 The ad hoc Tribunals have resorted to general principles of law in their decisions in order to fill legal gaps, to interpret unclear legal rules, and to reinforce their legal reasoning by applying a conventional or a customary rule of international law and a general principle of law simultaneously. 6 In contrast with the Internatioanl Court of Justice (ICJ) for instance, the ad hoc Tribunals have frequently had recourse to general principles of law in order to address legal gaps. This may be largely due to the fact that international criminal law at the time of the creation of the Tribunals was a fairly new field of international law and was thus considerably under-developed. 7 It is worth observing that the gap-filling function of * Assistant Professor of Public International Law, Maastricht University. Member of the List of Counsel before the International Criminal Court. 1 See, for example, Prosecutor v. Delalić et al., Judgment, Case No. IT-96-21-T, T.Ch. IIquater, 16 November 1998, § 414; and Prosecutor v. Tadić, Judgment on Allegation of Contempt against Prior Counsel, Milan Vujin, Case No. IT-94-1-A-AR77, App.Ch., 31 January 2000, §13. 2 Cf. Article 38 of the Statute of the International Court of Justice (ICJ). According to Pellet and Daillier, international lawyers agree that that legal provision reflects general international law. See Pellet, Alain and Daillier, Patrick, Droit international public, 7 th edition, Paris, Librairie Générale de Droit et Jurisprudence, 2002, p. 114, § 59. 3 For an examination of the case law of the ad hoc tribunals on general principles of law see generally Raimondo, FabiINTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS ADVISORY OPINION OF 8 JULY 1996 1996 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRETS, AVIS CONSULTATIFS ET ORDONNANCES LICEITE DE LA MENACE OU DE LEMPLOI DARMES NUCLEAIRES AVIS CONSULTATIF DU 8 JUILLET 1996 Official citation: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C.l. Reports 1996, p. 226 Mode officie1 de citation: Lichte de fa menace ou de lemploi darmes nucleaires, avis consultatif, C.I. I. Recueil 1996, p. 226 ISSN 0074-4441 ISBN 92-1-070743-5 Sales number N° de vente: 679 1996 8 July General List No. 95 226 INTERNATIONAL COURT OF JUSTICE YEAR 1996 8 July 1996 LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS Jurisdiction of the Court to give the advisory opinion requested - Article 65, paragraph 1, of the Statute - Body authorized to request an opinion - Article 96, paragraphs 1 and 2, of the Charter - Activities of the General Assembly - Legal question - Political aspects of the question posed - Motives said to have inspired the request and political implications that the opinion might have. Discretion of the Court as to whether or not it will give an opinion - Article 65, paragraph 1, of the Statute - Compelling reasons - Vague and abstract question - Purposes for which the opinion is sought - Possible effects of the opinion on current negotiations - Duty of the Court not to legislate. Formulation of the question posed - English and French texts - Clear objective - Burden of proof Applicable law - International Covenant on Civil and Political Rights - Arbitrary deprivation of life - Convention on the Prevention and Punishment of the Crime of Genocide - Intent against a group as such - Existing norms relating to the safeguarding and protection of the environment - Environmen- tal considerations as an element to be taken into account in the implementation of the law applicable in armed conflict - Application of most directly relevant law: law of the Charter and law applicable in armed conflict. Unique characteristics of nuclear weapons. Provisions of the Charter relating to the threat or use offorce - Article 2, paragraph 4 - The Charter neither expressly prohibits, nor permits, the use of any specific weapon - Article 51 - Conditions of necessity and proportionality - The notions of threat and use of force stand together - Possession of nuclear weapons, deterrence and threat. Specific rules regulating the lawfulness or unlawfulness of the recourse to nuclear weapons as such - Absence of specific prescription authorizing the threat or use of nuclear weapons - Unlawfulness per se: treaty law - Instru- ments prohibiting the use of poisoned weapons - Instruments expressly pro- hibiting the use of certain weapons of mass destruction - Treaties concluded in order to limit the acquisition, manufacture and possession of nuclear weapons, the de