Precautionary Principle

Polluter Pays

Sustainability Principle

Common heritage

Bon Voisonage

Example common heritage// of non damage to neighboring countries

-U.K/U.S agreement over boundaries

-Stipulated neither country can damage enviroment of other, if does gives right to state responsibility.

- 1926- fumes from Smelter (UK) rising, cuasing damage to U.S.

- U.S files case- cases so complicated , hard to measure

- ruling issued in 41' U.S wins, Brits owe damages

Incrimental- happen slowly

sudden- happen right before us on the headlines

-can both give rise to state responsibility? when did it arise?

- states responsible to notify those around of danger

-Chernobel, violated b/c russians didnt notify when one country building something,dam,etc.

- Once breach occurs, the damage is done, hard to un-contaiminate air/water

-damage enviromentally is to multiple states in many un-direct ways. --> broad impact ; in diff. ways over time

-france/spain divided by pyrones mts --> dealing with bon voisonage

-lake in question runs in both directions, lake is exclusively in France territory

-France notifies spain they are changing the direction of the river and the French promised they would compensate Spain by building a subetrranean canal

-Spain filed a lawsuit 

-Question: did France violate bon voisonage?

- NO- lake in france, france's behavior would not cause pollution and some amount of water would have been given same amount of water

-concluded in the mid 40's to late 80's- Cold War Treaties; limited scope, narrow challenges and problems, limited parties present

-Approach = consentual 

i.e some want low regulation , some want high regulation,so they agree on the lowest acceptable point of agreement

-lead way to 2nd gen.

-1990-more universal/global , everyone participates to address large subjects of enviro concern

-i.e potable water,population,climate change

-basis->compromise // both equally unhappy but compromise

- often framework documents

-large treaty with specifics w/ specific protocals later added--i.e Earth Summit --? every nation goes to Rio w/ vague agreement w/ many longterm goals to extend the sustainability w/o specific agreements embedded in them-> later with protocals

Kyoto- atmospheric conditions, air quality

-requires specific outputs of c02 , so specific when Rio is so broad

1.self-reporting

2.inspections

3.non-compliance procedures

All of these are non mutually exclusive

-option for all treaties, if a party to treaty, every (6months) amount of time, parties are required to report on progress/on provisions in treaty

-get the buracracies involved-whp draft reports

-creates memory and movement&institutional incentives for reporting

-but bad b/c can lie about it

-may not look progressive, doesnt mean not impacting

-may be delegated to states themselves -- i.e Antartic Treaty

-usually specific check offs-->external inspections?external groups responsibility for verifying

-IAEA= responsible for chem. energy

-bering sea-seperates u.s from Russian empire narrow, 14 mi. wide--> all terr. sea now but back then it was an 8 mi. wide Inthernational high sea

-The seals reside off coast of Alaska but great swimmers, for food, once leave U.S terr. Seas enter res comunis00> so killed them for fur, meat, industry , etc.

-U.S began to protest the killing

-position of u.s- trustee of pacific fur seals

-b/c domiciled in the u.s, i.e considering serves as protectors of them since they just leave the terr. sea to look for food and play.

-the Brits argued mare liberum- high sea fair game

-tribunal ruled- MARE LIBERUM - fair game!

-u.s court of appeals

-whales may disapeer forever-1946 treaty drafter (whaling treaty)-to manage the harvesting of whales so they can sustain themselves

-group of big whalers(u.s,canada,Japan, Norway,Russia, etc) will determine the quotas for each country

- used 3/4th rule where if 3/4 of the countries vote yes on proposed quota on the country, than that is their quota

- no enforcement mechanisms- non-self executing treaty

-u.s developed domestic legistlation in 67' b/c concerned if countries routinely violate it -- The Pelly Amendment

- problem with pelly ( see pelly card)

-passed legislation made--Packwood

-81' under strong senate pressure, quota set to 0

-u.s led the way, 3/4th @ least followed

-Japan submitted an appeal to the treaty commission , then killed a lot of whales

-lawsuit in U.S ciurts to make Packwood mandatory on pres. --> straight to treasury

- NO not , under appeal, under treaty removed, old quota until appeal is fully heard to make 0 before the sanction can be mandated since technically Japan isn't violating treaty yet.

-tuna swims around dolphins because dolphins protect them from sharks but when people fish for tuna, the dolphin get caught in the nets and drown (mammals need air)

- they could design the net for them to escape which made the number of dolphin deaths go from 133,00 to 27,000

- subsequent treaty--> Inter-American Tropical Tuna Treaty-reduced the # to 5,000

- if kill more than 5,000 as a whole, the number will be made even stricter

-The U.S implemented domestic legistlation to make it 8--

- looked at every tuna importer to make sure they are dolphin friendly to access American Markets

-E.U filed in G.A.T.T. and won

-u.s in violation in free trade rules, can impose treaty but no implement their domestic legislation, uni-lateraly imposing

- around subtropical/tropical areas and are extremely affected by human behavior, pollution, and by efforts to harvest fish/wildlife of ocean, 73' domestic legislation places them on endangered list.

-shrimping industry heavily affected -->U.S drafts domestic legislation requiring certain techniques for shrimping

- India,Pakistan, etc sued in WTO

-ruling-India won--> U.s has right to legislation on our shrimpers but can't discriminate foreign// not our laws

Held the following:

-The secretary of commerce certifies if countries are respecting the treaty

-The pres. certifies the certification

-if they afree on violation,secretary of the treasury can prohibit the importation of fish to that country

-provides teeth to treaty

-Problem with treaty = Pres. routinely did not certify the violators and everytime the memo was sent, the pres. would wait

Enviromental issues on ( specialization) to address rise on enviro. cases

-The first case was Nauru V. Australia

- 1st Case in ICJ for specialization for enviro. issues

-smallest island in Pacific (and world) under law mandate, previously german terr. but after war= U.N trustee, gained independence in 1968

- called a "rentier state" because derives all of it's income from selling it's resources(export)

-phosphate rich-used in fertilizers

-Australia=main commercial contractor for digging up of phosphate 

* richest country in world in 70'

--problem->int. destruction of land became a total destruction of land-people of island sued in W.C

-sued saying recieved too little compensation for extradition from Australia 

-no ruling b/c the 2 reached a settlement prior

-Slovakia v. Hungary

-1st contentious ruling by court on Enviro issues

-1977->budapest treaty b/t Hungary and Czechloslovakia agreeing to build a dam project on Danube to prevent flooding and to improve river navigation and produced electricity

-Slovak side completed when in 89', Hungary announced they were not building and 3 yrs later announced they were withdrawing from the treat

-Czechoslovakia=Slovakia= predecessor state,sued Hungary in ICJ for breach of contract

-Hungary said they are sovereign state and can pull out of a treaty

-court ruled-hungary not allowed to stop/abandon share of work--> empowered czech to build in other way so they can benefit from its investment

-in event that Hungary couldn't compensate ( with a building,etc) , they would owe them money

-devised new treaty where they'd agree on new principles, leading again to non-compliance,maybe leading to another ICJ case?

-sometimes when 1 treaty fails , bring up in other .

- you can make it part of Montreal , Kyoto is largely publicized when Montreal is not

-provides words and institutions

-87'

-aerosals(eliminate) , the chemicals create holes in ozone

-universal--everyone ratified unanimously

-creates a commission meeting annually

-most "succesful treaty in history"

-eliminated 97 of 100 chemicals that are ozone depleting, saved 5 yrs of global emissions, 

-its reductions , mandatory,respected,and easily measurable

-97'

-atmosphere -climate treaty

-limited membership

-when meets,destructive diplomacy and Int. relations

-requires domestic legislation for reductions-->leads to more politics

-HFC's (domain) -- in fridges all over the world so the world must agree, so maybe should bring up in Montreal for a better outcome?

-questions of law

-legal,difference between nation states reduce judicial communication

-emotions,politics matters

- What do we do to win?

i.e Kashmir

Palestinians

-must absorb peaceful conflict techniques, then crisis-laws deal with cohersion,laws of armed conflict with right to go to war and behavior in war, post-war -- wartime agreement and war criminal prosecution

-diffuse a dispute and return relations to normal level

Non-legally binding--->

1. Diplomatic negotiations

2.good office

3.proximity talk

4.shuttle diplomacy

5.mediation

6.Commission of Inquiry

7.Commission of Conciliation

-------------------------------------------

Legally Binding->>>

8.Arbitration

9.Adjudication

10.I.O

-oldest/most commonly used peaceful settlement technique

-Gratius:requesite for legal armed conflict

-2 actors, aim of actors probably overlap

-limited political aims

-happen all the time, U.S enters into over 200 treaties in a single year

-applicable when 2 parties to a dispute ( state, non-state actor) for some reason will not meet eachother in anything but neutral ground

- UN S.G usually provides good offices

-if can't meet or talk

-2 parties near eachother but not speaking directly

-good office where it happens, person(SG) moves between two parties all day for info exchange

-won't see or be proximate

-neutral is shuttling between two on a sizable distance

i.e -Kissinger-put words in peoples mouths-israel , egypt, pakistan.

-(overlap) further than just offering good office

-actively participating opposed to just being a messenger

-mediator has authority to offer concrete proposals

-engage parties//reach accomodation

-used when disagreement over basic underlying facts

-want material fact , law,interests,leverage-points of fact=emerged late 1800's to avoid armed conflict

- commission of inquiry --Great Brit. V. Russia

-Brit. fishing vessels in far east and attacked by Russian subs; one vessel lost and one heavily damaged

-immedietely wanted compensation stating--"state responsibility"

-russians said=war zone,shit happens, mis-identification

-create commission of 5 admirals - rus,brit,and 3 others

-undertook investigation-->issued report, found two things:

1.no japanese boats in area

2. weather not bad to justify mis-identification

-as result, russians aknowledged unjustified,paid brits $

- Like "inquiry" except"

a. usually pre-exisiting (inquiry usually ad-hoc related)

b. in addition to uncovering facts, offers a solution

-techniques have no binding authority! just ways of helping nations help themselves

-i.e The Goldstone Report--> gaza war 08'-09' by HRC- even if not officially designatied as C.O.C

-golstone suggested to start own investigations and decide if laws of armed conflict were violated

- beggining in 20'

- most all disputes can be rationally resolved and identifiable cause of dispute and if isolated/adressed , can successfully be disolved

-"LON": The cooling off period"-- WW1

-parties instructed to wait 30 days before initiating armed conflict

-UN: Education

-UNESCO-> the defenses to war built in people's mind until educated will not

-communications-->parliamentary diplomacy-continual

-use of Int. Forces to precent dispute from rising or come afterwards to prevent a return to armed confict

-perpetually makes cold peace among the disputes

- deals with expenses of a PKO

-ONUC- in Congo , midway

-emerged from colonization 2 yrs prior

-began to break into pieces

-UN ,support/provide for PKO

-UN op, found itself on other side of Russians, so Russians said wont pay for it

-lawsuit filed in ICJ-advisory opinion

*asked if PKO was part of regular budget of the UN

* it was under the regular budget so Russia has to pay-- 9 to 5 decision

-a P.K budget was created b/c of this ruling

- nation-states find self in dispute , find degree of leverage

-not balanced-imbalance in power, more powerful trying to exploit its power

1. condemnation

2.rupture of relations

3.withdrawal from an IO

-verbal statement of disaproval used so much it lost its punch

-says disapproval

-clear formal statement creating historical record

-that's the point

-exist diplomatic among N.S's-this is sharp diplomatic retort to an action

-can withdraw an ambassador-public event

-"we don't except policies,etc."--replaced with someones less accommodating

-doesnt do pernament damage

-close an embassy-take everyone out ( no dip. cloak for your people!)

-sever relations-most servere , stop talking to other country i.e Cuba, Iran

-then need to find new way to communicate

-never a good idea, usually designed for domestic consumption

-sends message that an org. has exhibited unacceptable behavior, so theyre going to leave

-in constitutional treaty , would have clause

- behavior of targeted state so reprehensible it merits refusal ( apartheid in South africa)

-lack of any sheild ( of an ally)

the commision of an unfriendly(legal) act in response to a prior action (often illegal)

i.e diplomatic expulsions -legal of tanks in Afghanistan

-louder/more hurtful than condemnation

- may be illegal depending on your juris prudence

-illegal action taken in response to an illegal action

1. counter-action ceases as soon as sending state ends it's illegal action

2.reprisals can not be issued againist reprisals

3. no harm to the 3rd party

4. proportionality- must not be out of proportion

5. last resort

1.non performance of a treaty obligation

2.the capture of offending country's nationalities

3.seizure of property of the offending state

-how did we avoid 3rd party harm? Iran US claims tribunal

4. aerial assault

5.invasion

-portugal v. germany ; deals with reprisals

-Portugal designated neutral in WW1

-germans in S.A-extends up to Angola,approach boundary , met with ort, communication broke down

-portuguese believed under attack so fired

- 2 officers killed ( germans)

-governer ordered attack againist strong holds

-germans withdrew, Portugal claimed territory violated

-germany-said its reprisal

-court ruled-->germany in violation of I.L., not reprisal-> the initial act was not illegal(viewed as self defense), the germans had not attempted any other remedy(not last resort) so state responsibility of germans, they are liable

-1976- air france plane (flight from Israel to france) hijacked, plane landed in Uganda , airport in Entebbe, made demands for release of terrorists , some passengers released

-Ugandan gov. did nothing to facilitate end to crisis

-July 3rd Israelis attacked, took out terrorists made sure civilians went home

-Israel's argument--> illegal act occurred and acting as reprisals ( last resort!), and proportionality seems to be satisfied

- U.N. -->immediate condemnation of Israel? in the U.N. (art. 2 para 4-> charter,traditional I.L->said focus on initial illegal act)

- look for the fence sitters!

-anticipatory reprisal--> traditionalists ( if self defense = charter term) it is lefal to preempt on illegal action--> going to beat you to the punch

-67' israeli argument w/ evidence- ominous threat therefore justified in anticipatory self defense

-took out a specific building -> said developing WMD-- they say for medicinal purposes

- we wee wrong

- jus ad bellum-fundamentally changed since 45'

-jus ad bello- in war time-- geneva law 45'-mainly individuals

-hague law(1899,1907)--the behavior of states//has remained static developments are mainly of specificity

-Human Rights=during peacetime ..since 45' has emerged,threw field.

1. long history of sovereignity of right to determine state action

-competence de guerre- based on state

2. viewed as premptory part of state survival-nessicary option for state survival

- the means of surviving in world politics

-1st legal point of application

-when does war begin?

-I.L--> must have definitive point of commencement

right to go to war would be limited

- 30 yrs war--treaty of west phalia (end)

- religion no longer legal recourse to war

-each N.S had sovereign right to determine own religion, thus limiting other states to rights of armed conflict

-=

Treaty of Versailles - concluding WW1

-art 277- provided provisions for criminal prosecution

-1st systematic effort to brind ind. to account for minaly jus ad bello principles

-kellogg briand pact

-multilateral-agreed would not be the 1st to initiate armed conflict - 65 nations parties

UN Charter0 dramatic drop

first doctorine to assert doctorin of intervention and limit competence de guerre

-self defense

-collective self defense

-s.c authorization

-all other is illegal under charter; clash between traditional and charter I,L

-problem- term aggression ( made illegal) but not defined at all

74'- definition provided by G.A so not legally binding--profoundly vague.

-provides a list of prohibited actions

- 8 items listed-not exhausted

-added a caviot- where anything else (in un charter)

air tight, resolutions, east

-kossovo 99' - not authorizing and yet after war authorization action(?)

- one of probems- process is highly subjective. the question is whether action can survive VETO and get 9 votes

-wars of aggression- one state to another

-wars of conquest- can not grow in terr. size through armed conflict--> i.e israel 48'- attacked w.b but israelis expanded terr. banks--terre nullius?

-wars to change the foreign gov.

-to apprehend war criminals

-abatement

-humanitarian intervention

-just war theory

 once was prevailing but now is questionable b/c the charter, when conditions in a neighboring country appraoch anarchy. aim of intervention must be only to prevent spillover! can't be self promotion or territorial aqquisition

i.e Insia 70's- bangladesh monsoon, pakistanees not response, e. pakistan elected own people, military breakdown going in all directions,

-indias againist pakistanees,HAULT on refugees

-traditionalists say YES good, UN charter less than thourough b/c no armed conflict

- military intervention into another state without permission , aim-to prevent further widespread suffering, requires no correction with the two states

-intent- illeviate/prevent further suffering

- nato, african un, OAS-regional orgs have authority

- Since 2nd WW, increases pressure to add this as a right to go to war -we have clear documents

-mass comm. eram inter connectiveness of the world

A. conscience of humanity is shocked

-subjective/general

B. No other remedies to resolve the problem

- time consideration if a factor/given rate of killing / devastation etc

C. Limited purposes

-sole aim must be to alleviate suffering

-cambodia target, vietnam invaded them

- conscience of humanity was shocked, no other remedies weere left to resolve the problem, however there were not limited purposes

- additional aims because Vietnam also violated Lous--> Success, yes. Stopped massacres immedietely.

- They were conscience of humanity being shocked( death zones, etc), There were no other remedies to reslove the problem( not a lot we could do b/c negotiations took too long and wouldnt be too successful), AND there were limited purpposes( no interest or history of interest, only wanted to feed the starving!)

-Success?- NO. All died later after saved

- Nato Power

-The conscience of humanity was shocked??- questionable. more images frightened us.

- Were no other remedies left to resolve the problem?--

no. shut door on alternatives 'madelyns war', more about defining U.S/Russia relationship for 21st cent.

-Was it a success--YES.extension is r2P -almost extension of H.I.

- 3rd cent. A.D - writings of St. Thomas Aquinas- asks 4 questions:

1- has a wrong been commited ( no clear definition of wrong)<--past tense not now

2- wrong can be corrected by war

3-have all non-military avenues been exhausted?

4- is a reasonable chance of success? ( reasonable? define?)

-all must result in yes before a military intervention is considered (ww1)

U.S V. IRAQ 91' -> 1st ?, yes, 2nd ? yes, 3rd ? yes

-weakest of 4 =? #3 , GIve time and let sanctions take effect? - powell, at peak of effectiveness? very unlikey to be success if wait. #4 -- yes extremely high ( no aerial capability , etc)

Just WAR if except #3

U.S V. IRAQ 2003-> ?#1 yes - invasions, general bad behavior by Sadaam, ?#2 yes , can be corrected? b/c can knock out leader, ?#3 no , so many options available, ?#4 no- not well defined objective

- #1 questionsable because everyone commits a wrong, not impressive, #2 questionable because depends on what wrong we were discussing, #3 no, #4 yes waging war againist police force

not all yes, unjust

-Israel

-question #1 is questionable, questins #2 yes, question #3 yes (probably) , #4 yes (very high!)

Just war!

- discrimination ( conduct of soldiers)

-proportionality

-prohibition on unessacary suffering

-Prohibition on Perfidy ( Perfidy Prohibition)

( FIRST FOUR ARE SPECIFIC WHILE #5 IS A CATCH ALL!)

-Marten's Clause

-conduct of soldiers

-Hague protects-combatants (individuals)--> takes up arms, insignia ( identifiable), operates under a chain of command, obeys L.O.A.C and if violated = war criminal as opposed to lawful combatant.

-Geneva law protects non combatants-civilian, humanitarian, personal

- To capture instead of injure and to injure instead of killing

-non combantants are respon. of offupying power; if legal power- than occupying power is responsible

- 2003--> sec. of defense -showed 95% of Iraq under military control - hard to retract it b/c enormous legal implications-> would assume rep. of all!

- can move them but only for own protection/ out of harms way

-using force to achieve goals but not too much force

-intent behind action is important to measure

-look @ :

1- initial offense

2- overall size of military response/length of campaign

3- geography of the response - limited response to vast geography?

4- military arms

5- outcome of response

i,e of violation---> attacking soldiers in retreat (depending on situation) destruction of infrastructure

--1999 kosovo-bombing electric grid twice, the neighboring case, etc.

- usually under proportionality or discrimination

- combatants ,lawful- POW or unlawful- war criminals

-non comcatant-can move

-if pow(geneva law) you are occupying//controlling power, you are obligated to treat them "humanely" for example, like USA soldiers

-treat the POW on par with your own forces, but you can not lower their standard

- must be lawful combatant to be POW, can be required to work (minsu officers) but must be compensated

-pow is responsible for respecting the laws of the captor

-resp. of controlling power to make identification/determination of POW if unable, turns to the american red cross , also ICRC enjoys access rights as POW detention facility

-pernament means stationary not in transit.

-pow case

-germand soldier captured on field, detained as p.o.w-->held until end of armed conflict

-moved to canada in 43' for detention

-hid in mailbag on a mailtrain, got out, opened packages -> determined he stole 3 items//watch gum perfume

-war ends, prosecuted, convicted for stealing only the gum/cigg--logic of court saying he needed perfume to permit him to excape( so no violation b.c no harm)

-harm caused above/beyond military nessecity

-hors de combat - out of military operation

-so any harm done intentionally gives rise to war criminal charges so denies this principle

-if a bullet designed to tumble inside body--diff problem because unessacary suffering and a violation of L.O.A.C - bullets that splinter as well

- weapons non detectable by xray , uses of certain gases and chemicals ( prior to chemical weapon treaty) considered unessacary suffering

- must fight fairly if using

-i.e if use ambulance to transport weapons= violation; using opposing sides uniforms to gain access; using a false flag

-part of preamble of Hague 1957

- sort of a catch all

-States--> until a more complete system of rules is drafted, civilians and combatants are protected by the laws of humanity and public conscience

i.e mutilation of the dead, using chemicals to change skin and eye color , using nat'l education for propoganda purposes

-depleted uranium shells -- not regulated by int. treaty, have 4.5 bill yr life 1/2 life= 1 bill yrs, takes on super hardening effect- spin, self sharpen, penetrate, spew acid-->most effective tank killing tactic, emit radiation-> is it a violation of discrimination b/c those shells can not discirminate between combatant or non combatant.