International OrganizationsMurphy – Spring_2003

Legal Status of International Organizations and of associated Persons and Premises What is an International Organization?

Organization in which its members are states. Seems to be excluding non-state formed organizations – ie Green Peace.

Purposes or Goals stated in Charter – ie. states will come together and use some legal purpose to create organization.

Not governed by national law, but international law. Organs – permanent bodies that are a part of it – ie UN General Assembly,

Sec. Council

Types of Int’l Organizations that exist 189 members in the UN and 191 countries in world. Most recent member Swiss and East Timor.

Subject matter covered UN – just about everything IAEA – narrow definition of what it does. KEDO – very narrow of what it does with respect to subject matter

Why do states join IO’s? Further mutual interests Creates legitimacy Continuity Security Financial reasons – economic and technical resources What about giving up some part of sovereignty under obligations created by

IO?

Dichotomy of sociological v. economic theory Econ theory – individual motivated to advance own material interest. If

possible to do that by simply engaging with other persons then economic theory would suggest we do that. Problem is that if you want something and you have to call each part supplier and then get computer built – no good. Imperfect market and K problems.

o So, Dell does it all as long as you call and pay. o National setting organizations exist. o Imperfect Market.

Economic approach v. sociologic approach. o IO’s exist even when not very efficient or when don’t serve members. o Soc – say economic theory ignores social rules and moral content that

will exist once IO exists. States create these IO’s in field b/c might be necessary, but

then comes a different normative and cultural force not explained by economic analysis.

World Court example. More costly to prosecute in Int’l Court.

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Say economist aren’t asking right questions or making right observations or noticing cultural and moral forces that are often different than beliefs or values in particular country.

Efficiency of IO’s.

Historical Background 1800’s really began to appear – especially in time of Industrial revolution –

b/c greater ability of communication and transportation across borders. IO’s – labor organizations—developed, then vote, postal service

1815 – until WWI – creation of many non… Kirgis and two systems

(1) Conference system – ad hoc temporary conferences, which are convened for a specific purpose and which come to an end once the subject matter is agreed upon to a stage of permanent IOs that function permanently and meet periodically -- led to UN and other IO’s. (2) International Union – river system, certain acts had to be attacked and dealt with. IOs whose scope of activities, though predominantly political, extends to all aspects of international co-operation

UN – important, b/c or specialized agencies 1944 Dumbarton Oaks, then 1945 Conference in S.F. – results in UN Charter Key organs of UN? – committees. Art 23 - 15 members on Security council – 5 permanent members – US, UK,

FR, CH, RUS. Veto power to each.(fill in about the UN, basic info on who is who is UN and what branches there are with in it) from supplement Claude Chapter 1 – basic UN Facts.

Legal Personality and Legal Capacity of IO’s What is the concept of legal personality in the context of IOs IOs can be sued – can IOs sue?

o Why can IOs be sued? FIRST, Ask if the IO is authentic as a legal entity or personality – This is

especially relevant in the international setting where an IO has not gone through a process to give itself credibility or been officially enacted as an IO.

What should the court be asking when trying to figure out if there is some sort of legal personality to the IO – what does the court look at?

(1) IOs charter - How the IO was created –A statement giving IO a legal personality

Constitution on Food and Ag – pg 72 supp Page 80 – article 16 –Legal Status -- organization shall have

the capacity of a legal person to perform any legal act appropriate for its purpose which is not beyond the powers granted to it by this constitution.

(good indication that member states had in mind IAO would have legal personality)

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(2) Look at other powers given IO (3) Look at relationship b/w organization and member states as evidence of personality or power

the level of independence of the entity if not independent then not likely legal personality, but if IO

can bind states even if the states resist then begins to look like a separate person.

Enforcement of members to comply – independence issue Ability to make treaties Ability to sue and be sued

o Examples of other powers – UN Charter Chapter 12 - p 28. International Trustee System (out of operation since 1994). Interesting b/c in various articles, like 79 it talks about trusteeship and membership concern…

Article 83 trusteeship agreements approved by security council Art. 85 – general assembly responsible for approval of

trusteeships Looks like separate legal personality b/c of what charter gives

IO power to doo Ex: common wealth of UK states – forum in which states come

together – ie to impose sanctions on another state – but common wealth doesn’t have power to enter in to treaties

o Ex.– Art. 57 – talks about specialized agencies being brought into relationship with UN. p 24

o Art. 63 – ability to enter into agreements with any agency in art. 57. UN can enter into agreement with IAO. P 26

Steps in determining if IO has legal personality: First look at whether clause or charter makes it a legal person Second, If not explicit, then look at express powers that might make it a legal

person Third, If not there then look at implied powers that might make it a legal

persono Most cases are on implied powers – if clear it is a legal person, then

likely won’t be before the courto Look at purposes and functions of IO, asking if there is some

concept of functional necessity – can the entity do what it is doing – or would it not be able to if it wasn’t a legal personality

Cts usually want to see if implied powers are really flowing from purpose of the IO – don’t just make this up – show connection b/w implied powers and express terms of the entity

This is the concept of legal personality – might help; might not. Cts do consistently want to resolve this issue before moving on. Even if you do have legal personality it doesn’t answer the questions of the following still need to analyze it

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o Can it sue or be suedo Can it make treatieso Can it create an administrative tribunal.

Advisory opinion on Reparation of Injuries – p 7. What is the ICJ and advisory opinion -- Chapter 14, Article 69 – p 32-33 Sits in the Hague, Netherlands – with 15 judges – one from each permanent

member of SC – and ten other judges elected from various regions of world When join UN you are automatically party to statute of ICJ – tricky thing is

the mere fact that you are party to statute of ICJ does not mean that you are exposed to jurisdiction of ICJ

o China is party to UN and statute, but has never participated before ICJ How do you get before ICJ – cases b/w states – not individual and state. ICJ

only has jurisdiction when two countries have consented to ICJ’s jurisdictiono Can consent ad hoc when dispute arises – after dispute ariseso Can consent in advance that if dispute arises will go to court – ie bi-

lateral treaty – Iran and US signed in 1955 – disputes under treaty go to ICJ. Example Murphy and blown up oil platforms in late 1980’s.

Legal arm of UN for adjudication and power for UN GA to get an opinion Advisory opinion is when an entity requests an opinion from ICJ

o GA or the Security Council may request ICJ to give advisory opinion on any legal opinion.

Reparation case - GA was asking if UN could sue for an aid worker killed in Palestine – assassinated purportedly by Israeli agents. Wanted to know if UN can act as a state. State can sue another state, but what about IO bringing claim against state. Question is can IO sue to recover (1) IO’s damages or (2) can they recover on

behalf of victim’s family for suffering Does UN’s claim have to be based solely on IO’s suffering or can they bring it

on suffering on behalf of agent. UN probably just suffered loss of dignity – might only get

apology Whereas the guy lost his life and has family who now doesn’t

have income – (where money is). Count Bernadotte – Swedish citizen – why not let Sweden deal with issue –

traditionally state brings claim against other state. If want person to be neutral, then perhaps it is not best to have

state decide if it should bring the claim – want organization that can operate on its own – keep Sweden out

Legal personality – not explicitly in charter, but for UN to function and to fulfill purposes and functions it has to have a legal personality. Looks at member states being separate from UN, and ability for SC to bind members and under Art 25 states have to obey. P 8-9

o Still don’t know if IO can bring claim on behalf of agent or UN

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Why UN needs to be able to sue members – P 10 and injury directly to UNo To defend its own rights as IO. Ct is conclusory o All members of IO can’t be found to combine together to bring a claim

– it is impractical to have all the members of UN combine to bring a claim against damages to all the members.

o UN can bring case against the state (unanimous) Injury to the Count – pages 10-12.

o Can’t have agents relying on own nationality to protect them (four dissents) – expect Sweden to bring a claim

Non-member states – 12-13 – if state is not member of UN. Should be able to bring a claim against non-members as well - yes.

o What about reasoning behind this rationale (theme)o Should states be bound only to what they have consented to?

Positivism. Capacity to be sued – from the reasoning of the court does it follow that

states can also bring claims against the organization if organization can bring claims against the states

o Lets say the Count had blown up the Israeli defense ministry can the Israeli gov’t bring a claim against the UN?

o If we say this is a distinct entity separate from members and has ability to bring claim

o Then if state has a complaint about what UN has done should it have to sue each member – not practical and as functional necessity – state should be able to go after organization. Even if no legal instrument that provides for such a claim – in practice UN does accept responsibility for agent’s actions – can still raise immunities.

Ex. International Tin Council – entity based in UK engaged in maintenance of international tin trade by buying and selling to keep price stable. In 1980’s market collapses and council is left holding bag for claims – and they say go after states that formed us – ITC was found finally to be right body to sue.

CAPACITY TO MAKE TREATIES – pages 14 and 18 – discussed in context of IAEA

Can enter into agreements with states – that is clearly expressed as part of IAEA statute – can enter into safeguards agreements with states, but can it enter into agreements with other IO’s – ie the OAS.

o Lets say it would say IAEA would strengthen safeguards in LA, by giving inspections and things of that nature – can IAEA do that w/IO

EXPRESS POWER - First – look at IAEA statute to see if it is given the power to expressly enter into agreements with other IO’s.

IAEA – Art. 16 – Relationship w/other Organizations. p 90 suppo It says can enter into agreement establishing appropriate relationship

b/w UN and other organization as long as:(1) other agency’s work is related to UN work and(2) appropriate relationship – what does that mean.

o Other articles – express powers and implied powers

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o Express powers – page 84 of supplement – Art. 5(e)(7) – General conference can approve agreements b/w Agency and the UN and other orgs as provided in Art 16 or return such agreements w/its recommendations to the bd for resubmission to the general conference

Compare that with page 90 art 16(a) (these are the only articles expressly contemplating agreements w/IAEA)

two provisions saying you can enter into agreements, but other articles about nuclear safeguards

article 3(A)5 or 3(B) 1 or 3(D) – p 83 – all talk about safeguard agreements – treating it as a special agreement b/w IAEA and states

12(a)(6) – talks about inspections as part of safeguard agreements – so, in looking at express agreement mainly talking about ability to enter into relationship with other states – but then talking about organizations with similar character or is the agreement being proposed more like safeguard agreement entered into with states? Where does proposal fit – this is all under express powers

o IMPLIED powers If IAEA can’t enter into agreement w/ OAS will it affect

ability to function? IAEA and relationship with other orgs.

OAS charter – page 84 of supplement – do same type of analysis – can it enter into agreement – expressly?

o Article 9(d) of OAS Charter - page 191 in supp – says permanent council can prepare draft agreements to facilitate….

Problem is that the charter is b/w OAS and UN or OAS and other American systems – is IAEA part of UN. No, b/c IAEA is not part of core UN and not a UN specialized agency.

It is an entity created in mid 1950’s that has a relationship with UN, but not considered UN subsidiary.

o Does UN include specialized agencies in OAS charter – probably not, b/c art. 53(c) on page 188 – b/c when wants to talk about specialized agencies it specifically does that. Can’t do it b/w specialized agency and OAS.

Administrative Tribunal – should IO be able to create an admin tribunal to hear complaints by own staff against the organization.

o ICJ said even though nothing in UN charter expressly, it nevertheless is the necessary intendment that such a charter exist.

ILC and international Orgs – International Law Commission – experts who meet regularly in Geneva – to sort through Int’l law and draft treaties.

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Relevant to three different areas of IO: IOs and Treaties:

o 1986 Vienna Convention on law of treaties of states and IO’s –p 233 supp – (know it). Not yet in force.

Regarded as customary international law – art. 6 of treaty on p 236. Capacity of IO to conclude treaty is governed by rules of that organization. General rule of IL as reflected in Convention

o Vienna Convention on Law of Treaties b/w states– (consider it with 1986 as well). Page 216

Important, b/c instead of reproducing much of treaty in later treaty on page 233 – need to read together. (prevents duplicity).

Involves organizations in negotiating process and organizations entitled to sign and then thereafter confirm adherence to it later – as well as those joined later. Ratified by IO’s and states

Privileges and immunities to nations – page 243 – Vienna Convention on subject – not yet in force and considerable opposition to it, including US.

o Look at other instruments like UN General Convention on P&I of IOs. Legal personality and legal capacity at international law level

o Treaties and cases before ICJo Usual issues of interest in area are of a national legal proceeding or a

national dialogue b/w host state and IO – think of status and capacity in context of national law.

US Law – Can IO’s sue in US Courts?-- context of it relating to IOs Jurisdiction must first be established: International Refugee Organization v. Republic S.S. Corp. -- P 21

o The Portuguese national defrauded the IRO o lower court dismissed it for lack of jurisdiction – person v. IO. o Circuit court thought it error and justified it via – the fact that the IRO

is part or agency of UN and when we look at Art. 104 of UN Charter – pg 34 supp – UN shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.

First, legal capacity – does the IO have it – ct looks at charter. Second, Jurisdiction to hear case – ct uses the statutory grant of power to

give it a right to hear case:(1) International Organizations Immunities Act (IOIA)(2) 28 USC § 1331 – federal question jurisdiction – constitution, laws, treaties of the US.

(contrast with diversity jurisdiction) – US citizens v. foreign citizens or states.

IOIA – p 213 supp. –(treaty states: IO’s shall possess capacity to institute legal proceedings – ct says this is the statutory grant of jurisdiction to US

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Courts) – here statute doesn’t explicitly give grant of jurisdiction as normally done when President gives jurisdictional authority to go into particular US cts.

o Osborn v. Bank page 22-23 – did the court play with the facts to reach conclusion?

o one grant of jurisdiction court found IOIA 28 USC § 1331 – case arising under laws or treaties of the US – ask is this

action – defrauding of IRO really arising under treaties or statute? o Doubts – wouldn’t this open up anyone to file suit in US courts, just

b/c US is party to treaty? o In what sense does this civil action arise under UN Charter – action for

fraud pursuant to a K – does this civil action really arise under statutory incidence.

o Verlinden - Sct said any time sue a foreign state’s instrumentality – bank or state – involves the FSIA. Dutch corporation suing Nigeria Central Bank.

FSIA – is the exclusive basis in US courts under which you can sue foreign states.

Exempts foreign States from jurisdiction unless State: explicitly waives or commercial act.

o Ask again – is the IRO suing on the basis of US law or treaty and if so which one is it?

o Question if court was finding jurisdiction b/c IO’s now can find it under their own charters……etc…..tape

International Finance Corp v. GDK - P25- 26 -- federal ct has jurisdiction over a particular suit b/c grant given by statute from Cong.

What about suits by other entities against IO’s in US courts UNEP – based in Nairobi Kenya, created by UN resolution.

o Suppose Exec Dir enters into K with CA firm to do a project and K provides for arbitration of disputes and UNEP declines to go to arbitration and so CA corp sues in US court to compel arbitration.

o Is there a statutory or other kind of grant of jurisdiction that would support a federal court from handling this case.

What about IOIA – p 213 supp – why is it might have worked in IRO case, but unlikely to work here – not under treaty, but UN GA resolution – (this is a program of UN, we would want to see in section 1 of IOIA if UN is there and it is, so UNEP is part of UN)

UNEP probably fits definition of part of IO Problem in § 2 – talks about capacity of IO to enter into legal

proceedings – in IRO capacity to institute legal proceedings, might try to say that it must be case that if IO can sue in US federal court there must be an ability to sue the IO in US courts.

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(immunities side – separate out does jurisdiction exist from immunity)

o Federal Question Jurisdiction – need to find a treaty or statute in case – CA corp has to point to something under which case can arise – need a treaty or statute of US – could you say this arises under UN Charter – sounds like just UNEP and Corp – can try to stretch it.

o Diversity Jurisdiction – page 27 – 28 USC § 1332 – usually suits by US cit against a foreign nation – but this is not a foreign nation – IO. Can’t assume this includes IOs.

Not sure CA corp can sue in US federal court – if there is a specific statutory grant of jurisdiction against IO then could bring it, but don’t assume you always get fed ct jurisdiction b/c IO and US corp.

How treaties become part of US law Starting point is Art. 6 § 2 of US Const – all treaties are part of the supreme

law of the land. o Is a treaty just like a statute in US – nope.

Sct held some treaties are not self executing – that do not ipso facto, on their own, become valid and part of US law.

o Need to look at intent of drafters of treaty – what did Cong and President want when adopting treaty – if you can show it was intended to pass directly into US law – it will be self-executing and can use it in court.

o If language of treaty is vague or statements made by drafters – president or senate – saying need to take further steps to put treaty into force – not self executing.

Immunity – if can file suit against entity in ct, need to check to see if immunities. Is UNEP immune from suit in our example Good place to start is: UN Charter – look at art 104 and 105 – p 34-35 supp.

o Organization gets legal capacity to fulfill purposeso Org shall have privileges and immunities as are necessary for

fulfillment of purposes Doesn’t answer question in hypo? What about organization – does that include UNEP or just immediate UN

o Page 28 – bodies and organs of Organization. Does this immunity include all suits brought against IO?

o UN General Convention on Privileges and Immunities – p 196 of supp – adopted in 1946 – took US until 1972 to ratify.

NOTE: this applies to UN, but not specialized agencies – doesn’t apply to IAEA for example. UNEP is part of UN and does fall w/in scope

o Art. II § 2 – immunity from every form of legal process except insofar as in any particular case it has expressly waived it immunity.

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Only exception is express waiver – therefore, this seems like a strong point for UNEP – is this self-executing – is Art II section 2.

Probably self-executing b/c not stated otherwise and no contradictions to it being so. (for specialized agencies look at its statute or charter)

o Check page 33, Italian case and International Tin case There are some cases where cts strip away immunity and assert

there is a waiver of some kind. Could we say UNEP entered into K with US entity and said

there could be arbitration and maybe court could say this is some form of waiver – but Art II § 2 says express waiver – certainly not done here, but FAO case – Italian court doesn’t give immunity and similar type of case

o Keep in mind if UNEP entering into K was a waiver that is not a waiver to an execution of a judgment against it

Art II §2 – no waiver of immunity shall extend to any measure of execution – so can’t execute judgment against UN.

Can pressure via State or public policy. As atty for CA corp – need to get explicit waiver of immunity in US courts –

and should get waiver of execution. How do you protect client – go after assets after disputes arise – better to get paid up front or some type of collateral or security you can revert to.

US Law Always worry about US law – b/c treaties and statutes in US – if conflict

b/w the two – the court follows which ever one is the later in time – will be considered as governing law, presumption that legislatures wanted to change the law and did so.

P and I in US law historical perspective – p 29 - 30o Until mid-20th century states had absolute immunity, but changed

no immunity for private acts of foreign states and this is embodied in FSIA.

Actions against foreign states – relevant to IO’s - P 30-32 – FSIA portions.o § 1604 – Foreign states are immune for jurisdiction in US cts, except

as in § 1605 – which gives exceptions to abs immunity from suit (a)(1) no immunity if waiver of that immunity.

Did UNEP implicitly waive immunity in K with CA corp – commercial activity exception or exception if agreement to submit any disputes to arbitration

o § 1609 – immunity from attachment and execution of judgment to foreign state’s property – blanket immunity except for 1610

o § 1610 – can go after property used for commercial activity in certain situations. Embassy property or central bank accounts can’t attach to.

This statute just deals with foreign states, but go to IOIA and back to FSIA

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IOIA -- Section 1page 213 bottom – go to section 2(b) – IO’s enjoy same immunity from suit as is enjoyed by foreign governments.

o Some have argued that when enacted Cong was only referring to states in existence at that time – no ct has addressed that issue – not best interpretation says Murphy.

Page 38 – look at immunities of foreign states as they exist today.

Can CA corp go after UNEP:-FSIA and IOIA – would they be able to sue successfully?-Arbitration clause should be a winner for CA corp, could imply commercial activity, what about waiver?-we have a general convention that still says UNEP is immune, but we have US statutes that seem to allow the suit. Probably likely that FSIA is later and trumps the general convention. What about the IOIA – that is the statute that brings in the FSIA – IOIA is just using the FSIA. IOIA was 1945 and General Convention entered into force in US in 1970 – that would be governing law and take precedent over FSIA and IOIA. -maybe best argument would be trying to claim some waiver to general convention – not express, but can use FAO case and such.

Hypo suit against World Bank: Research project on effect of pollution controlling equipment used by WB UN Charter is not particularly relevant here, b/c this is a specialized agency –

a separate creature not subsidiary body. General convention is not relevant p 39 – Art. 7 § 3 – actions may be brought against bank only where member

has office, agent or guaranteed securities.o FSIA and IOIA important as well.

Where would this end up – no waiver in contract – so, need to figure out if WB article itself is some type of waiver that would allow suit by research firm

o Lutcher – just provision saying where it was might bring suit, not general waiver – lost in case. DC Cir – said Bank wrong waiver of immunity. Bank then tried to say partial waiver of immunity and only waives suits by bond holder’s and creditors and such. Lost here too – ct said drafters where clear in waiving immunities and not so here

o Might lead us to believe CA corp can sue WBo Mendaro – immunity necessary to enhance functions of WB. If

creditors need confidence that can sue bank, then no immunity. But, here it is internal problem and need to not take immunity away for bank to be able to function. WB can have immunity in certain cases, not here

o IS CA research project more like Lutcher or Mendaro – doing things with external entities (Lutcher) or is it a K internal function to analyze bank – no immunity (Mendaro)

(set up check list of steps to go through depending on agency)

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Status of Persons and Premises Associated with International Organizations Talking about the missions – people working with organization – distinguish

it from Embassy and Consulateo Embassy – diplomats - here in DC – home gov’ts means of

communicating with US gov’to Consulate –consular officials -- typically somewhere else, SF,

Chicago… visas, passports, where Americans can go to sort out travel, commercial issues with country

o Mission – IO Officials -- would be where there is a particular IO, which the country is dealing with. Not IO, but part of country’s gov’t.

Sources of law – instruments in play – those that cover:o Diplomats -- Vienna Conventiono Consular officials – Vienna Convention on Consular Officials

P 55 – (a) UN Charter, (b) Head-quarter’s Agreement, (c) Convention on P and I ….

Not listed on page 55 – 1978 Diplomatic Relations Act

Mission Premises – issues where something is happening in or around the mission Demonstrations – how much protection should host country give to the

mission o P 56-57 – UN Host Country Committee – tension b/w missions and

US (host). Russia worried about protests and US saying 1st Amend

protects free speech. o How do we sort out these issues – [ go through list of instruments on

page 55] UN Charter Bilateral Agreement b/w US and UN Convention on P & I of UN Vienna Convention on the Representation of States in Their

Relations w/ IOs Convention on the Prevention and Punishment of Crimes

Against Internationally Protected Persons – including Diplomatic Agents.

International Organizations Immunities Act (IOIA) Act for the Prevention and Punishment of Crimes Against

Internationally Protected Persons.

Hypo Demonstration – group of law students going to Sudanese Mission to protest slavery of women and children.

o Is this ok? Does Sudan have any arguments it could use to make US stop it and does US have anything it can say that we don’t have to stop it?

Headquarters agreement –Headquarters Protection of District protect tranquility of mission from unauthorized entry of groups of persons. Section 16(a) – NO GOOD HERE.

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UN Charter pp 34-35 – treaty enforce b/w US and Sudan. Art 105.2 – seems to deal with premises of mission not people, and we’re not talking privileges and immunities (execute against assets, sue). NO GOOD

Vienna Convention on Diplomatic Relations – not diplomats -- NO GOOD

Vienna Convention on the representation of the states in their relations with international organizations of a universal character – Art. 23 - P 248 supp. Problem is that this is not in force, but customary international law analysis would be applicable. However, there are a significant number of states that object to this treaty and don’t recognize it to make it not so customary. You need to note a comparable provision in another charter to help this out. Ex. Tie this into Embassy relations and that there is no resistance to applying similar principles to Embassy premises and therefore, it could apply here as well.

Convention on the Prevention and Punishment of Crimes Against Internationally protected person – violent attacks against protected persons, so N/A.

Art 23.2(a) – does it have to be violent for it to be violated. Same provision in Vienna Convention on Diplomatic relations

no problem for US, so wouldn’t it work here as well. Does Sudan have a good argument?

Wouldn’t US Ct apply 1st Amendment stronger than international law or treaty.

UN Legal Counsel – might say it does impair dignity or not?

Jewish Youth Case – upheld restrictions on where could protest.

Question here is complete ban. Boos v. Barry -- P 61 – we will strike down shutting down

complete protest – b/c content based limitation. If problem is the message, then court won’t let stop it, provided no violence.

Act for the Prevention and Punishment of Crimes against internationally protected persons – Page 59 – if going after a person holding a sign getting ready to riot – ok, but what if just protesting – content based.

Eviction – what if mission doesn’t pay its rent? 767 3 rd Avenue v. Zaire – Page 62 – on what ground did district court say no

grounds for immunity for conviction?o Vienna Convention of Diplomatic Relations – land inviolable

(shouldn’t cover this to begin with, b/c mission).o UN Charter

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o Vienna Convention - None protect from eviction, why? Prompted by matters other than eviction. Then to protect from violence or harassment, unannounced

seizures and intrusion in privacy. Not worried about legal process that leads to eviction.

Fairness – not so much to let private landlord bear burdeno Circuit Ct – said District Ct – wrong and focuses on Vienna

Convention Art. 22 on top 64:(1) Mission premises shall be inviolable, except for consent;(2) Host state has special duty to take all appropriate steps to

protect the premises of the mission. Therefore, no restriction that this only applies on mob violence

or whatever, but a flat out prohibition on going in to missions. Cir Ct was concerned about creating opportunities for host countries to go into premises – thinking world wide and considerable hardships on missions and embassies.

o What if in rental contract that waiving any immunity may have – that would make a difference – or if take a security deposit.

o Vienna Convention on Diplomatic Relations – not directly applicable to missions, but under US law consider:

o Diplomatic Relations Act – Pp 71-73 – applying these provisions as a matter of US law to missions.

o Vienna Convention on Rep. of States – customary international law analysis – similar protection for missions making it hard to evict.

o If can’t evict – what can LL do? Go to State and complain Go for Monetary damages – get a judgment against Zaire. Civil

Judgment against Zaire for back rent FSIA – commercial exception. Immunity of foreign

governments, exception if commercial activity such as leasing property.

Execution against Mission’s Bank Account

o Can you execute judgment, civil?o Foxeworth – struck by member of mission and P wins Civil Judgment

and P gets writ of execution against Gambia Court says out of luck. UN Charter and Vienna Convention

Convention – mission needs certain items to accomplish function

Charter – certain P and I to function and judgment would bankrupt mission

Charter effects decision in this case – not really discussed why applies to mission.

Easier way to decide the case – FSIA – p 31, § 1609, property of foreign states in US is immune except certain reasons – not including bank accounts.

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Immunities always look at FSIA if suing the state!Civil Suit Against UN Delegate/Official

Check Art. 15 of Headquarters Agreement or section 16 of the UN Charter. Hypo on p 70 – French Official hitting US Citizen. Senior French mission

official, Advisor to delegation for Conference, Frenchman who is member of UN Secretariat.

o US citizen sues in court and go after insurer and person in car – advisor to UN permanent member

o Ask first is there Jurisdiction, and will tort law allow it, and then immunity. Jurisdiction in US Court – Diplomatic Relations Act

Immunities – where find them and scope of immunitieso 1978 Diplomatic Relations Act – p 71-73.

Empowers President to increase or decrease powers being accorded to missions based on Reciprocity. Also, requires liability insurance for mission members and families. Might be immune, but should have insurance. Insurance typically just covers official acts. Allows suit in Fed Ct against members of a mission defined...

o 28 USC § 1351 – bottom p 71 – Diplomatic Relations Act that gives Federal Court jurisdiction to go after member of mission.

Issue is whether French Mission is within scope of statute Diplomatic Relations act covers Embassies, what about missions.

Does this fall under §245(a) (3) definition of mission – yes, it does. Missions to IO are picked up under this section.

o French Advisor – member of the mission under Diplomatic Relations Act – is this with in the scope?

§ 245(a) (1)(B) – admin and technical staff (of a mission) – is this person who is in for a conference considered part of the mission – Murphy says doubtful, but unresolved.

o Other passengers are they considered members of mission senior official fits under (1) (A), person employed by UN Secretariat – not member of the

mission – so can’t use this statute to get jurisdiction Note the further you get away from Mission the less

statute applies. UN Secretariat Member – Jurisdiction of Federal Court?

Need diversity, federal question or go to state court and look? Assume we get jurisdiction over all three jokers Next, look at possible immunities – will they succeed in raising it?

o French Advisor – visiting - - UN General Convention on P and I on pp 197-198 supp.

Representatives of Members – § 11 (a) – all acts done by them in their capacity as reps – to and from duty

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Definition of Representatives - § 16 – Reps include delegates and advisors, technical experts, and secretaries of delegations

There are valid arguments that receptions are in fact were a great deal of official business is carried out. (p 71parenthetical)

o Senior Official of Mission – UN Gen Convention on P and I § 16 definition and then § 11 picks him up too Art. 5 § 15 – para. 1 or 2, likely to get picked up. page 207.

(if permanent resident might be able to go to UN Gen Con and pick him up there)

o Secretariat – not rep of member, but page 199, Art. 5 on immunities for UN Officials, when in their official capacity

UN Special Rapporteur -- ICJ Advisory Opinion (in supplement) Independence of judges Malaysia – report said not independent, can be bribed

o Some Malaysian citizens sued in Malaysian court for libel – UN Gen Sec’t found him under official duties and therefore, immune. Malaysian gov’t conflict in that didn’t want to tell their own courts that citizen was immune.

o Malaysian cts say not bound by UNo ECOSOC to which report goes and requests ICJ advisory opinion

Request for opinion was based on general convention supp 201 – section 30 – all differences arising out of the

interpretation or application …. ICJ shall be decisive in relation to UN and member legal question.

This was the first time advisory opinion requested under general convention

o Whether these immunities in fact exist was the question for the ct. Ct looks UN Charter, Art VI – Experts on Missions for the UN-

sec 22 p. 200. Immunity in the course of performance of duties (official acts).

Was interview part of official acts – he was charged with going out and investigating for preparing report to UNCHR. Nothing in his mandate that said interviews with media – was this with in scope? Not preparing report, but talking with media.

What does ICJ say about that? It is within scope.o Interviewer was talking to HRC Special Rapporteur

and identified him as such. o Custom as part of what they are doing. o (what about fact that report would become public

regardless of interview). Para 51, 52, 53, and 55 – often talk with media and SEG

has to protecto Art. V and VI are conferred w/view to ensuring the

indep of int’l officials and experts in the interests of the UN.

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o Section 22 is applicable to persons to whom a mission has been entrusted by the UN and who are therefore entitled to P and I…w/view to the independent exercise of their functions.

o Importance of special rapporteurs in generalo Status is neither that of a representative of a

member state nor that of a UN official, and since they carry out such research independently for the UN – they must be regarded as experts on missions within the meaning of Sec 22.

o ICJ – Malaysia failed under Gen Convention not to inform courts about position taken by Sec’t General.

o US did appear before the Ct in proceedings – US case law on issues How do our courts re-act to views of heads of IO speaking on

whether official capacity US Cts do give deference to heads of IOs on determining if in

scope of official duty – goes for people on mission too Also, if any uncertainty about what head of agency says – will look

at other criteria. Rep of Embassy or Consoler official – subjective intent of person doing act, does act further function of IO or gov’t, absence or presence of malicious motive, seriousness of act (if very serious matter that person is undertaking might get greater deference than something else).

Host Government Restrictions What happens if host gov’t wants to some how limit the activities of the members

to the mission or IO? How far can they go? Imprisonment of staff members – is it ok? In context of host gov’t or other

gov’t – off on mission and placed in prison. Polish National Alicja Wesolowska Page 79 – in route to new assignment stops at

home and is arrested, secret trial and sentenced to 7 years. o Can she be punished by own gov’t without the UN having any ability to

second guess why staff member being punished? Speculation that she got job without Polish Gov’t approval and this

was setting an example to not do this.o What immunities and Rights come into play – what instruments?o UN Charter – Art. 100 – Staffing Issues (p. 33 supp, para 2)

each member undertakes to respect the exclusively international character of the responsibilities of Sect Gen and staff and not to seek to influence them in discharge of their responsibilities.

o Art 105, but keep looking o General Convention on P and I

Art. V – Officials Sections 18, 19 (P 199) Section 18 – officials of UN shall be immune from legal

process in respect to… acts performed by them in their official capacity.

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Is she a UN Official? Kirgis p 80-81 – everyone, but those both locally

recruited and employed at hourly rates.

o What about UN access to individuals? (we don’t know if on official duties, so we want to talk to her)

Sec Gen pp 82-83 – states no express right in Charter what about implied right to have access to individual to find out

what the act is that they committed to be charged under local law? Use the Reparations for Injuries case/ certain expenses – if

UN can bring claim on right of individual harmed, maybe implied that need access to individual to determine claim.

o Mazilu - What about Experts on Mission – page 200 supp Art. VI. Romanian National sent to prepare report on human rts and youth for UN.

Does he fit in scope of expert on mission? Romania says he doesn’t have to travel, so he is not expert on

mission, but a special rapp. (expert on mission wasn’t in job title). Here going back to home country and not going to mission in other

countryo ICJ – Advisory Opinion – expert on mission not defined in Gen Conv,

but not nature of mission or admin details – it is important what person is doing in general sense and here engaged in activities for the UN. ICJ doesn’t see why the person would have to be on travel – as long as the person is on work for UN – doesn’t go in favor of Romania.

o Romania expresses concerns about someone being their own national and ct hasn’t found that compelling argument that states can over-ride immunities simply b/c person is their national – goes to need of IO to not have person worried about what host country would do to them.

US Security Measures – how to balance rights of US to protect itself with the ability of UN to exercise functions necessary for it to function

o Abuse of privileges of Residence – p 92 – o Vietnam Head of mission asked to leave – accused of spying.

UN Headquarters Agreement - 13(b) on 206 supp. – Look at section 11 first which says US shall not impose impediments on UN Officials, Experts on mission, or other individuals on application of US laws and regs.

13 first talks about entry of aliens – coming into the US – Arafat. 13(b) residence of Aliens – Vietnamese Head of Mission – can’t

use laws to interfere with residence, but in case of abuse can do certain things.

Sets a process for how to go about and deal with situation. Not to institute proceedings against person, unless Sec’t

State first concurs. Bureaucracy and limiting it.

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No person can be forced to go other than in accordance with diplomatic procedures accredited to US envoys.

o Ex. Russian accused of being engaged in espionage PNG – persona non-grata – Vienna Convention – receiving state

is capable on its own of declaring person not welcome and giving a reasonable time to get out, they have to go.

Vietnamese official – withdrawn by his country. Ivory Coast says rt is US alone, but should be process to it.

o Ex. Iraqi delegate ordered to leave UN by US in that was recruiting intelligence sources.

Headquarters Agreement Art. 105 para 2 (page 34 doc supp) – idea that rep to UN- P and I as necessary for exercise of functions in connection with organization – not direct, but could try it.

Travel Restrictions – p 98 – set radius, procedures. o UN Sec says can’t do it b/c of Art 100 para 2 – independence of UN

officials; sovereignty of states; Headquarters Agreement § 11 (205 supp) – shall not impose

impediments within headquarters district – US would say just have to check with State Dept., restrictions not impeding travel per se – can still travel.

Agreement that all nationalities would tell State where they are traveling. Non-discriminating and no impediment to travel.

In more recent years restrictions have been loosened – depends on political situation of time.

Size of mission or whether it can even existo USSR told to reduce size of mission – 1975 Convention of the

Representation of States in Their Relations w/ IO – Art 14-P 248 Supp Reasonable and normal, having reared to the functions of the

Organization, the needs of particular mission and the circ and conditions in the host state.

Gives common ground on which discourse can be based on whether US can reduce size of mission

o [cf 1961 Convention art. 11] – relates to convention not being in force and not binding. So, how do you use it against someone – customary international law.

Relate it to Vienna Convention on Diplomatic Relations – look page 243 – 1961 Convention – identical article in there, which US is party to.

Note other articles around this – art 13 – who can be there, art. 20 facilities, 23 premises, 24 exemption from taxation.

o Headquarters Agreement – transit and communications art. 14 – need to maintain mission at certain size in order to provide adequate representation before UN. More compelling argument, rather than saying close mission entirely.

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Section 11 – need to allow for appearances before UN and the only way to really do that is to have a permanent representation based in NY

PLO Case – US on verge of shutting down the mission. In 1974 PLO allowed to be an observer, then in 1984 US passes ATA – not allowing PLO to have offices in US. On face looks like US should have to shut down mission. PLO says it won’t shut down under headquarters agreement. US goes into Federal court to get order to shut it down.

o headquarters agreement -- Is there an obligation under ito Does ATA supercede headquarters agreemento Headquarters agreement dispute obligates US to arbitration – US says no

point in arbitration Premature – let cts decide – and US said we will follow Congress

no matter what arbitration says. ICJ says does have to arbitrate, but before that gets to far along the Dist. Ct. gives its decision.

Court held: not enough Cong intent to supercede Headquarters Agreement, therefore US must interpret law as HQA having more force, and therefore PLO office stays open.

o Transit to and from the UN or Rep and other persons invited (P 205 supp) – section 11 – Doesn’t say you can have a permanent mission in NYC – Nothing says PLO gets mission, but US has conceded that section 11 has held that permanent mission can exist. Ct said we shouldn’t read that right out.

o Was it a good decision? Why or why not? Does seem to uphold international law on some sense.

US Security reservation to HQA – 211 supp – section 6 of the US note to the UN accepting the HQA.

o Can the US prevent people from coming to the US – ie Arafat. o On the law it seems to be a valid reservation of the US entering into this

agreement. The HQA appears to want unimpeded entrance.o If you read it closely you might say the section by US is unambiguous –

US - can’t harm our security and control over access of aliens? Independent or read together – HQA and Security Reservation.

independent – US can say Arafat threat to security so no enter

together – then US can prevent people from coming unless coming directly to HQ district or vicinity.

What level of balance does the US need? Can’t do it arbitrarily, but US does have security issues.

Lodge article on 117 – that Sec’t Gen. of UN has merit to argument that Cong never intended Section 6 (security reservation) to have the meaning being attributed to it today, and such meaning was never made known in 1947.

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o Page 118 – level of balance – can protect US if only to come to HQ district and then go home – allow access and take account of US security.

US turned Arafat down when he wanted to come to HQ District – US never articulated the threat to US – change since Sept 11, 2000.

IO Administrative Tribunals Types of claims:

o International civil service law – principles of equity, due process, employment law.

o Art. 101 para 3 – P 34 supp – paramount consideration in the employment of the staff…shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Regard to geographical basis. (hire good and diverse geographic -- two conflict?

o Basic contract issues, type of wages, discrimination, pensions, independence of UN.

Chinese Translator case – p 123 – Whether interpreters can be of UN – be independent and not taking orders from any state. Secondment from Chinese gov’t

Disputes of employment go before committee first and then it is decided if case goes to ICJ. o 3 translators graduated from language school in China – on 5 yr K for UN,

host of Chinese government for use during time period. Chinese didn’t want them to stay on b/c protested official Chinese government action. They weren’t employees of the Chinese government – so that is part of complaint??

o Sect Gen and Sec Con. Says don’t want to renew it.o ICJ – Translators win, translators have the right to be renewed. The hook

they have is that the General Assembly set up a standard and that was a reasonable consideration of UN staff members under fixed term appointment to be appointed permanently.

UN Charter – Art. 101.3 UN legal counsel – got off on the secondment and said when they

are wanted back they go back ICJ – said this isn’t really secondment and this will impair the

proceedings for permanent appointment if we allow this to happen.

Admission to Membership In the beginning – 1945 -- Those that signed the charter, ratification.

o Art. 110 – signatory states ratify, deposited with US, Charter comes into force. 191 member states today – 51 original states signed.

o Ukraine and Belarus – USSR wanted more votes. o Article 4 – who can join (page 13) – paragraph 1 and specifications, para

2 and substantive requirements. “state” – and “peace loving”

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o issues: -- Kirgis – RS Foreign Law – p 139:(1) territory, population, government, ability to enter into foreign

affairs. (2) able and willing to carry out obligations under charter

o Bangladesh – not allowed in b/c still had Pakistanis held as prisoners, obligations – eventually let them go and allowed in

o Angola – Cuban troops – US issue and let go after a while. US could have continued vetoing it, but it was a weak argument

(3) can you impose obligations on the entity that wants to join other than those set forth in charter – can you add on to Art. 4.

Huge cold war issue – east/west. USSR wants deal – both sides let some in. US says this is

additional requirement beyond peace loving states and can’t do it. ICJ held – can’t look at what is beyond Art. 4 – b/c would add

on requirements set by member nations on non-member nations. Others said - this would politicize the membership requirements – the ICJ said if we let the political committees decide the issues then what would the point of the Charter be? It says there are limits on what certain organs can do and if you act outside the purported powers you act illegitimately.

In the end, the countries cut a package deal and did what court said can’t do.

o Second advisory opinion on p 158-9 Is it possible for GA to go forth on this matter if can’t get a SC

recommendation ICJ – said this would take away all power of the SC and

that would re-write the charter. o Why would US never ask this question today

Anti-American sentiment and less domination of UN by US – in 1940’s and ‘50’s more US controlled v. now – not as allied. Risk losing control of its power in SC.

Succession of Membership – states taking over other state’s responsibilities, states fragmented coming into one,

o Ex. Russia wants to be the successor state to USSR – important for veto power. Deemed as such by UN.

o Ex. Serbia and Montenegro Republics – part of Socialist Republic of Yugoslavia. Serbia and Montenegro try to claim they are the successor to SFRY. This would avoid reapplying for membership and keep control of SFRY. UN says nope. In this case all of the republics said no we don’t want it, war going on in area, and human rights abuses. Much of war blame to Serbia – SFRY not member until Milosevic fell in 2001.

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Admission to Specialized Agencieso Keep in mind – fact that admitted member of UN doesn’t make you

automatically admitted to UN Specialized Agencies. There is a relationship. However, if you are a member of the UN the process to become part of agency might be easier.

o Ex. ILO – p 115 – Art. 1. 2 – members of ILO shall be states which are members of UN in 1945 – original members of UN, any state admitted to UN can communicate its acceptance of formal obligations of ILO.

Para 4 – if not member of UN – vote in the General Conference of ILO – 2/3 voting process.

o USSR – p 150-151- applied to be in ILO – with reservations about dispute settlement. ILO didn’t accept them, so USSR changed and accepted

o Namibia – S. Africa had a mandate over area from league of nations and in 1966 mandate was terminated. S. Africa declines to see Namibia as independent state – UN asks all agencies to grant membership. ILO Legal Adviser has misgivings about letting Namibia in and Namibia on the other.

They get in, but as for physical occupation of territory – control of area – ICJ says no express requirement in ILO Constitution that have physical control – legal advisor says yeah, but you have to be a state and that means control.

How do they go back and forth on this issue – Art. 4 – definition of state. Legal advisor looks at ILO constitution and then what it implicitly means to be part of ILO – how can council of Namibia perform the functions required under ILO. Case Law – Free City of Danzig – not allowed in, b/c no control of territory.

Namibia puts up its argument – and politics come into play letting Namibia in to the UN.

o PLO admission to WHO – not state, no gov’t control over lando EEC Admission to FAO – Brussels Conference v. member state

obligations – within competence of EEC v. individual states voting.

Observer Status and Non-voting Participation If not admitted as member to UN or specialized agencies – observer status. Only one State that is not member of UN, but is an observer – Vatican. League of Arab States, EU, OAS, African Union, all not states, but have observer

status. PLO – 1974 – observer – meant that able to participate in debates in GA on

matters relating to Palestine. In 1976 wanted to be able to participate in other situations

o UN legal counsel initially said no, but procedurally, the PLO is given a right to reply.

President ruled and relied on it as precedent…evolution over time o 1988 – PLO changes name to Palestine and wants to be able to circulate

statements as official document of UN.

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o Handout by GA – PLO can now fully participate in GA debates and can co-sponsor draft resolutions

Can’t vote.o No other observer has such robust rts as does the PLO of 1998 – handout. o UN has said that Palestine has recognized it self as a state, but UN has not

recognized it. o PLO involvement on security council – wanted to be able to come and

participate in discussions – Rule 39 (p 170 K) States or other persons deemed necessary. SC still operating under provisionary rules

Representation –if you are a member state who gets to show up and be there. o Book doesn’t deal w/ credentials o Rules set by GA, and at beginning of GA each year the delegation is

supposed to show up w/paper issued by Head of State or Foreign Minister declaring them as official representatives of the state – presented to Sec General and everyone is seated provisionally.

o Credentials committee – 9 members, who check credentials. o The problem comes when two competing parties show up claiming to

represent the state. How do you pick b/w rival governments – p 177.o Sec. Gen sets standard of who is in control of the territory of that state

– very easy to define, (objective) but not always being used – look at 178, goes beyond standard – willingness to carry out UN objectives and extent to which authority has been established through internal processes in the member state. (subjective standard)

Resolution 396 – neither standard was adopted – just said going to consider it

o Situation with China Nationalist forces – in mainland, eventually moved to Taiwan v.

Communist Party in Beijing. Until 1971 - under objective standard – People’s Republic,

communist Instead seated the nationalist until 1971, when seated communist Until that time this issue was just an “important question” from

40’s until 70’s. Relevance? Would require a 2/3 vote in GA Art. 18.2 – important questions shall be made by 2/3

majority - P 16 supp. If important or not is supposed to be thought of in

categories – look at 18.3 – other questions

o Cambodia – Vietnamese invade it – Polpot ousted and V puts in own gov’t Objective standard would credential new gov’t in Cambodia. Vietnamese have to leave and then peace process b/4 agreeing to

seat a coalition gov’t. Obj standard influences decision, but subj legitimacy of gov’t is a

concern.

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o Specialized Agencies – keep in mind GA decision on credentialing doesn’t bind these agencies – similar to admission of states issue.

Decision Making in UN Security Council Basic Decision Making Process

o 5 permanent and 10 not 5 – China, US, France, UK, and Russia Art 23 (17 s)

o 10 non-permanent members elected in GA – by Art. 18.2 – 2/3 vote on floor elected staggered fashion – five every year for two year terms.

o Art. 23 para 1 – supposed to draw from states willing and able to contribute – equitable geographic distribution.

1963 resolution that carved the world up Africa, Asia, Western Europe and Other Group (WEOG) –

Australia, S. Africa, Eastern Europe, Latin America) – 3 Asia – 2 Western Europe and other group – 2 Eastern Europe – 1 Latin America – 2

Most countries map it out and decide in which time frame who is going to get what. Middle East is in a few groups – Israel - WEOG

o Voting – one country one vote. Procedural matters – 9 votes Substantive matters – 9 votes

Procedural Gray areaso Procedural v. substantive votes – both 9 votes, but if procedure don’t

need 5 permanent members to concur. o What is procedural and what is substantive?

There are some agreements on some things always being procedural and instead a general rule that if not sure which it is, then it is a substantive issue.

Double veto – if something on whether procedural it has to have concurrence and becomes issue – so it is substantive and then can be blocked at that point.

o Concurring or is an abstention enough when have to have concurring vote of permanent members

What if abstention – considered concurring vote. Overtime through state practice, there has been a change in how article is interpreted – and therefore, new rule that concurring allowed

Abstention by a party to a disputeo Art. 27.3 – decisions under Chapter VI, and under para 3 of art. 52, a party

should abstain from voting if part of dispute VI – peaceful settlement Art. 52 – dispute

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o Basically parties to dispute shall abstain from voting.o Ex. Suez Canal – page 194-195. Egypt saying vessels to Israel not

allowed – issue raised in SC. Egypt says how can France, US, and UK vote – there is a dispute b/w us and you guys.

Said dispute is b/w Israel and Egypt and although parties are concerned doesn’t mean they can’t vote.

o Ex. Comoro Island issue – admitted as a state and France isn’t sure about one of the islands – FR wants a referendum. C.Is says this is aggression. Is France part of dispute and can’t vote.

This is after the fact and FR voted – most said they were a member of dispute and shouldn’t have voted. FR vetoed resolution.

FR responds saying precedent with Panama – dispute and parties voted.

Was this a dispute? And they shouldn’t have voted?

o Ex. Iraq and US – b/w two or all UN and Iraq?

Failure to Elect Memberso GA is supposed to elect the ten non-permanent memberso 1981 – LA group couldn’t decide b/w Colombia and Cuba delegations

being a member to SC.o How do you determine if it should function – if look at UN Charter –

literally, would have to have all 15 UN Legal Counsel says that it would effectively make SC not able

to function and invalidate control it was supposed to have – subrogating SC to GA. Even w/gap SC should still function

If paralyze SC, wouldn’t be able to maintain peace. Compromise – Cuba withdrew and Mexico put in.

Substantive Grey Areaso Breadth - “Threat to the Peace” – Art 39 – Chapter VII – heavy lifting

part of Charter. Authorizing use of force. SC shall determine threat to peace and shall take action in

accordance with 41 and 42 to maintain or restore peace This is more than trans-national issues (more than just armies

crossing borders)– originally thought this way, but not case now. Ex. Aristide ousted by Coup – although military forces didn’t cross

borders and not lots of refugees at first Ex. Somalia and Rwandan Refugees.

o Delegation of Military Authority – Art. 42-43 42 – deployment of force 43 – countries agree to provide forces to UN and when UN wants

to call up forces it can do so. o SATO Article – gives language for UN going off to war – bottom of 318,

top 319. SC authorizes UN to use all means necessary to meet objective.

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o No art. 43 agreements – UN has zero capability to call up forces – so isn’t this an unlawful delegation of authority.

o So we give states UN authority to go off and do what is necessary – w/o many limitations.

o READ SATO ARTICLE CLOSELY – goes past Kirgis.

o Creation of Quasi Judicial Tribunals – SATO War Crimes Tribunal based in Hague – ability to investigate and

indict individuals for crimes committed there since 1991. Outside powers v. broad discretionary powers.

One view for not allowing SC to form such tribunals: Says that SC going past the powers it actually has. Look at chapter 7 – nothing that expressly talks of creating such a sub-council to do this.

Serbs under Milosevic say this Other view: Art. 39 and 41 can be construed as giving SC broad

discretion in deciding what is needed to maintain peace and security

39 – broad – can maintain peace and security. 41 – measures not involving use of force – SC can decide

without limitation. SATO – decision, where first person taken into custody

challenged legitimacy of Tribunal. – ct says no limitation under Chapter 7.

ICJ is not creature of SC – does that say anything about legitimacy of tribunals for Yugoslavia and Rwanda? – didn’t want to ram it through via SC – needed individual states to ratify the treaty

SC says - Iraq has to compensate for damages caused by invasion – commission set up in Geneva to handle claims. Again, this looks like an adjudicative process set by SC. All gov’t reps

Compare to tribunals, which are not gov’t reps – independent judges. Does that make it more legitimate?

Future Reform Types of Reform

o Currently fifteen member states – should we change it up? o Permanent member change – are they not as powerful today as in 40’s.

Should we make it Nuclear power based, regional, economy, military strength?

Does Permanent membership have to go hand in hand w/veto power.

There is regional representation, but not a permanent member from some regions.

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Adding germany, japan w/o veto power. Adding India and Pakistan, or Israel – one south American or African nation.

Drop france or u.k. Do we get rid of veto power all together – more democratic, not

needed, etc. What about preventing UN from doing something that one

SC member wouldn’t like causing a greater conflict. Weighting the voting on SC – veto plus one. Expand the votes – allocate differently Ratio of SC members to that of General Assembly – expand it. In 1946 – 11 SC and 51 UN; 1963 – 15 SC and 113UN; 15 SC and

191 members (should number now be closer to 21 or so). What about efficiency.

Why not somebody second-guessing what SC does – we do have the ICJ.

Ex. SC wants to go into Iraq, would it be worth while to let Iraq take action in ICJ? What about politicizing ICJ?

Lockerbie case – UK and US ordering Libya to hand over people – ICJ had to decide rights of Libya – didn’t take a stand on SC righs. ???

Do we want the ICJ to strike down the SC – or does that hurt SC legitimacy and power. The UN is not a tri-parte form of government. Do the other states influence the SC and its decisions – do we still need a judicial branch overlooking SC.

Legitimacy v. Effectiveness o Promoting legitimacy is important w/IOs b/c they are inherently weak as

compared to national systems of gov’t. Therefore, need to promote that the acts are legit and within the scope of what charter says. Keep all actions in legit area to not foster illegitimacy.

o Balance this against effectiveness – is you insisted that need all vote of all members of SC – it would be ineffective- by allowing abstention gave room to work and not cause deadlocks.

If take away veto power completely – would countries push away from UN or would adding members cause more difficulty in UN functioning.

o How should Charter operate and how could we reform?

Decision Making in the UNGA and Other BodiesBasic UNGA Decision Making Process

Composition / election / term of memberso Charter Ar. 9 – always a member, no termo Art. 10 – scopeo Art. 10, 11, 13 – recommendations – non-binding. GA can’t generally

bind states with respect to decisions it makes

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o Art 12 – GA can’t make recommendations on things SC is working on or addressing. If SC isn’t addressing a peace and security issue GA can make recommendations

o Art 17 – the Budget – GA can bind. SC gets to approve budget

Votingo Art. 18 para 1 – each member gets one voteo 18.2 – when important questions it is a 2/3 vote. Specifies certain things –

peace and security, election of non-permanent members, ecsoc, election of new members. Super majority

o 18.3 – other questions are a simple majority ex. China’s representation – until 1971 – GA said important

question requiring 2/3 vote and then changed and simple majority. o Important questions – United for Peace Resolution – if SC deadlocked or

not addressing matters of peace or security we can go ahead and do it. Legal counsel says it is an important question

Techniques for Effective Decision Makingo Unanimity? Should UNGA require it before adopting a decision – why

not have it? Would be almost impossible to get with so many different nations

and world views. League of Nations – didn’t work very well. Jenks exert.

o Super-majority on important questions or simple on othero Consensus – instead of just having a one hundred vote win, w/ 89 not in -

lets say – why has the GA not liked doing this – sizeable minority. Why try to get the consensus – b/c if a sizeable minority don’t like

decision, then its legit and credibility will be hurt and who is going to enforce it. Try to get most happy or willing to go along.

Avoid tyranny of the majority. Different than national system – there is the law and it is followed How do you get that consensus

Small negotiating sessions to get expert views Koh – UNCLOS – problems with transparency, to avoid

problems – use informal groups (dinner and don’t invite everyone), allow people to sit in.

Note rules of procedure – (Koh article) extremely important whether you want them to be very broad or leave a few gray areas.

o 223-233 in Kirgis – sense of how there is the UNGA (big body) and the ECOSOC and others that report to GA, not operational bodies. But, UNDP and UNEP are actual operational bodies – report to ECOSOC to UNGA. Plus, special agencies – FAO, IAEA, ILO – policy and operation.

Is this the best way to organize – many decision-making bodies, different functions that sometimes overlap?

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o What could we do to make it better? – most have fizzled, but demonstrate some regularity in what types of proposals are being offered.

Create a new organizational regime from scratch – but some states are in some orgs and not all, and gov’t sometimes like the decentralized strategy. (usually pushed to the side)

Make current bodies work better together – 228 K – ad hoc panel to report on ways for entities to work together

Nordic proposal p. 230 – small governing bodies that meet with each other and help coordinate.

o Reforming Peace Keeping operations – in post cold war era explosion of peace keeping activities – but there are many different bodies involved – human rights, food, refugees

o Bahrimi Report – issued in 2000 – improvement ideas for peace keeping – in large existing department at UN, make it more professionalized – not just politicians, but use soldiers and experts; make rapid deployment force – instead of having to go to states on ad hoc basis.

Budget ProcessCharter Basics Art. 17 (p.16) – GA approves Budget, and 17.2 members pay proportionally Art 18.2 – important questions 2/3 vote – including budgetary questions.

o Can’t veto the budget. “tyranny of the majority” Provision might lead you to think that GA has strong power of the purse to direct

what UN does by appropriations – the check in the UN only goes so far – b/c the legal theology is that the UN is obligated to pay expenses incurred by its organs. So, if SC orders peace-keeping operation that is an expense of UN and the GA must fund it – no option.

o As long as within powers of organ – appears GA has to fund it. Art. 19 – if in arrears in amount that equals or exceeds contributions for

preceding two years you can lose your vote.

Administrative Process governing the budget process UN rules of procedure, then rules and regs at UN relating to budget Undersecretary of management has principal responsibility for handling budget

o He makes proposal that goes to committee of member states – Advisory Committee on Administrative and Budgetary Questions (ACABQ).

Extremely important voice on how budget comes out 16 persons elected by GA – usually heavy in representation from

donor states. A way for large donating states to safeguard interest. Voting by consensus.

o From committee to fifth committee and the GA. o There was a time when adoption of budget process involved just a 2/3 vote

in GA, by 1980’s became clear that 2/3 could be voting in favor of budget of which those 2/3 was only contributing 30%.

o P 235 – GA resolution 41-213 “broadest possible agreement” general consensus. Where – does anybody disagree – nope, good. Passed.

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It has really shifted so that if one or two major contributing donors withhold, the budget could be stalled – so really not so much consensus anymore.

Financing – comes from three sources(1) Assessed contributions for the operating budget

All of the admin costs of employees, plus some small program accounts – cultural, economic funds

Operating budget is roughly 2.5 billion dollars(2) Assessed contributions for the peace keeping budget

Around 2.6 billion dollars(3) Voluntary donations – can earmark funds for certain projects

For instance – US wanted war crimes tribunals – so US dumped lots of money into developing tribunals, building courts, etc.

Some say this messes up the process – not so collective and can through it off

o Assessment scale – different for regular budget than for peace keeping Dependent on relative capacity of a country to pay – using GNP

and other factors Greater expectations for peace keeping budget come from

permanent members than others. Many of the specialized agencies use the same assessment scale for

GA as for their own budgetso US pays of operating budget – 22% - highest of all major contributors

Japan is second at 19.6 % Germany 9.8 % France 6.5 % and drops off UK, Italy, Spain…etc.

o US pays 26% of peace keeping budget

Refusal to Payo What happens when a state refuses to pay?o If can’t afford it, b/c of economic situations – not pressed by UNo What if withhold b/c of UN decisions or wants UN reform

o Certain Expenses – 248K and packet 298. Two peacekeeping operations – the UN emergency force and the

UN operation in the Congo. Both set up by GA and SC – both UN expenses and regarding

these two France and USSR said not within scopeo Congo – force was suppose to just separate, and then it evolved so that UN

was supporting one group over the other – France said bad – can’t interfere with internal matters – withholding

o GA asks ICJ for Advisory Opinion on whether within scope ICJ held within the scope. What if one organ does something that should be in scope of other

– what to do with expenses – seems to say doesn’t matter if some

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internal problem – theory is that expenses are still owed to 3rd party and internal. But, left door open to say possibly not UN expense – if 3rd party should have known outside scope of organ.

ICJ stays out more or less – saying no process for determining if one organ is working within scope or not

ICJ didn’t say states are obligated to pay dues – not q – the question was whether expenses were within scope.

o France, USSR, and others don’t pay – they could have been denied vote in GA – US was pushing this. Consensus in GA so never had to call a vote. Got past issue – both started to pay back dues.

o Legal theories justifying withholding – why can it If reservation to treaty Unforeseen change of circumstance – Vienna Convention Art 62

(228 supp). I.e. peacekeepers supporting one side over other. Can’t

foresee all the evolutions in activities within UN when you join Charter. Vienna Convention also says you can suspend treaty obligations when unforeseen change in circumstances.

Disuse – Vienna Convention Art 31 – 3(b) (221 supp) Goldberg Reservation – if France and USSR don’t have to

pay and no repercussions then true for everyone – if can build practice that we should interpret Charter this way then that should hold for future. Question is when is it just a violation or a new rule.

State memo – saying have to pay obligations (251 K). Assessments is a legal binding obligation. Implications from Certain Expenses case have to pay UN dues.

Material Breach – Art. 60 Vienna Convention – if other party is in material breach then can terminate or suspend operation of treaty.

Failing to pay – breach, so other states excused from paying. Art. 60 Drafted so states couldn’t cavalierly disregard treaties, but must have a material breach. Is failure to pay dues enough to bring whole UN down? Stretch to say material breach.

o Material breach seems to lead to suspension or termination under this Art, and is US suspending participating – no US says just wants same rights as France and USSR.

Non-enforceable reprisal (Packet) – if willing to go to arbitration or settle it, then non-breaching parties shouldn’t breach.

US/UN Financial Relationshipo Current annual payments of US funds for entire UN system for 2001 –

$3.5 billion.

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1 For regular budget of UN and Specialized agencies $612 million2 UN peace keeping $716 million3 Voluntary contributions $2.2 billion

o Money not given to UN – in late 80’s US withheld funds it was assessed – 1-2.

Resistance b/c US felt as if it were losing control Kasselbaum Amendment – idea that US should push UN to

develop weighted voting – would essentially give more votes to those that contribute more than other countries. Never worked – one state one vote.

o US Arrears to UN US at one point by 1998 – US was on verge of losing vote in GA –

about 1 billion dollars in arrearages. The UN said about 7 billion owed. Conflict on what US contributed and how it was assessed in contribution to UN. At least 1 billion was agreed upon.

Nation loses vote, if it owes more than past two years dues. Helms – gave series of reforms they wanted the UN to implement.

Helms / Biden Legislation 1999 – US would pay 926 million in three stages, with each requiring a certification from State to Cong that certain types of reforms had been completed.

First stage money went right away. Stage one, payment 150 million stayed off loss of vote.

Stage two, required dropping of US assessments for peace keeping and operating expenses. 582 million in Oct. 2001.

Stage three, 241 million paid past fall – reforms involving creating inspector general positions at UN and other agencies that would review expenses and any questionable things….

Ted Turner’s donation – stage two. Today on annual basis – US still falling short on payments.

Withdrawal from Membership -- p 238 – sometimes IO Charters allows for it and sometimes doesn’t

Withdrawal When Charter is Silento UN Charter – when can a state get out.o Negotiating history 239-40. It was discussed when Charter was drafted.

Decided not to say anything at all. History was that general sentiment was that states shouldn’t withdraw, but wouldn’t prohibit it, b/c exceptional circumstances might be necessary

Ex. new amendment and state wants out.o Practice of States under Charter:

Indonesia -withdrawal b/c UN going to seat Malaysia on SC. p. 241 Letter on 242 – acknowledge that has stopped cooperation,

doesn’t explicitly say withdrawal.

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In ’66 Indonesia resumes cooperation and doesn’t have to re-apply. The GA President says never withdrew, and will have to pay appropriate amount of unpaid dues.

What really happened here? How would you characterize this action – is it precedent for a state withdrawing and coming back in or something else

o Schwelb – can’t withdraw unless exceptional circumstance – and this was not one.

Where to look and see if Schwelb is right? What legal instrument? Vienna Convention 56 and 57

56 – if treaty contains no provision regarding withdrawal – (a) parties intended to admit possibility of it or (b) right of it may be implied by nature of treaty –

[(a) not satisfied, not exceptional – (b) obligations of treaty is such that you need way out – counter would be the UN Charter itself – we don’t want states to get out, we want them plugged into security forming situation].

o Can Iraq withdraw from UN? Withdrawal – yes / no – nothing in charter that allows this action

Exceptional circumstances – Schwelb. Art 56, Vienna Convention. What about notice?

Obligations under Charter – would withdrawal relieve them of obligations already entered into? No, can’t opt out

Page 12 Art. 6 – UN shall ensure that states which are not members of UN act in accordance w/ principles so far as may be necessary for the maintenance of international peace and security

Can a state withdraw from WHO – p 254 – nothing in charter about ito US specifically reserved right to withdraw when joining.o USSR stopped participating and then came back and paid token dues.

What’s the legal standard for withdrawal if organization is silent about it?o p 257 bottom – standard for Withdrawal - WHO – absence of provision in

constituent instrument on withdrawal or suspension of participation, a member state may suspend its participation at any time and w/o cause, subject to a duty to pay at least a portion of its budgetary assessment for the time it was away.

o Vienna Convention – 56 and 57.

Withdrawal when charter is not silento Can a state withdraw form UNESCO – p. 165 supp. and p 264.

Can withdraw, but must give notice. US gave reasons such as poor organization, mismanagement. President of UNESCO – response – more universality, US just

mad that not main power in organization. For past 20 years hasn’t

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had UNESCO participation, until this year when we announced we would rejoin UNESCO.

Under talks about rejoining. Funding issues, what owed. US Withdrawal from other agencies ILO…

Rule Making By UN Specialized Agencies Are IOs Acting as Legislatures? What gives IOs right to bind themselves?

o 275 – ex. legislative act – (1) unilateral in form – promulgated by particular body; (2) Act has some sort of legal norm, content to it – not a mere suggestion; (3) general in nature and acting upon a variety of entities non-discriminatorily.

Look at nature of acts: Through Convention

o ICAO Treaty – once adopted up for states to ratify it and once that occurs the treaty becomes binding on ratifying states. This is not a legislative act by IO, b/c here these states affirmatively consented to this treaty – so it is their own choice whether to be bound or not.

o ILO – has generated 184 conventions, most recent in 2001 – safety and health in agriculture.

How does ILO adopt conventions – General Conference of ILO (plenary organ – every state represented);

2- government; 1 labor rep; 1 employer rep – four reps from each country – votes are not tied together – everyone votes separate, but two gov’t reps, who are bound usually by state.

All employer reps could bind together or labor reps could bind together.

2/3 majority of entire conference - -Art. 19(2) – supp 122 (read it closely)

Once adopted then the obligation with respect to convention – must take it to legislature of each state – 19(5)(b).

Once at national authority 5(d) – if get consent of national authority, then have to ratify it. Even if, for example, the State Dept and White House hate it they must send it to Congress and if passed, must be ratified by Executive. US law doesn’t make Executive sign it, but treaty does

If national authority doesn’t approve of it 19(5)(e) – must give updates on it if not approved and to what extent state has implemented provisions. This allows you not to adhere to convention, but you must justify it and show how if at all you abide by it. Designed to shame you into joining the resolutions.

Reservations – ILO – can’t enter reservations when ratifying it 278-79. Why:

Avoid race to bottom Avoid power going to government – which would off-set

balance of government –

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Flexibility Clauses – p 285 – Art. 1 para 2 – safety and health of construction – read it closely – can only change with prior consultation of workers and employee, problems must be substantial and at end of day must have safe working environment – different than gov’t reps just putting a few add-ons in treaty – shame them into accepting it.

All reps who were in forming of convention – or at least 2/3 had to think it is a good idea – where as in a reservation only one state can change treaty or convention.

Is this an example of legislative acts – what would you look at?o Once adopted gets rammed through to Congress that normal treaty process

is passed through. (unilateral act, that has a legal content to it, that effects state different than what it might otherwise do).

o Denunciation – countries can’t get out of treaties easily – after 10 years of in force – page 288 – Art. 39 safety and health.

Conventions – normal way is adopting it in context of IO, but up to states to submit it to their own legislatures

o ILO –puts more constraints on states in convention making process Standards – certain ones issued by ICAO and ILO

ICAO – setting standards for aviation Chicago Conv. is the ICO Constitution. o Plenary body – all states participate in assembly –meets every three years

– can set general policy, but not in position to do anything on daily basiso ICAO Council – 33 member states, elected by Assembly. Certain

standards looked for when electing states – those that have chief importance in air transport, those with large facilities for air transport, and geographic representation. Represents global community, but oriented towards those that effect aviation.

o P. 304 – allows ICAO council to set legislation for air safety rules. The standard the form takes is an annex to the Chicago Convention

o P 99 Supp – Chicago Convention. Art. 37 – adoption of the international standards and procedures – lists areas where standards would be expected to be adopted.

o P. 104 – 105. -- Art. 54 – mandatory functions of the council. (l) – in accordance with the provisions of Chapter VI of Convention

o Art. 90 – p. 111 – adoption by council in (l) of Art 54 is by a 2/3 vote. Becomes effective in 3months once adopted, unless a majority of

states express their disapproval. o 2/3 of Council can adopt a standard binding entire body, but there is a

standard by which the majority can express disapproval and get out – never happened, b/c standards are reasonable and major countries have representation on Council. Not highly political either.

Ex. of standard – bottom 306 – Annex 11 – 3.7.1 – Air Traffic Control Clearances.

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o The question is can states opt out of standard after 3 months and is in effect?

Page 100 – Art 38 – Can notify Council if you think it is impracticable to abide by the Council.

US being unhappy with standard regarded a standard as a recommendation and didn’t follow it

Was dealing with state aircraft – aftermath of Korean Airline tragedy.

Ultra vires – action of Chicago Convention – b/c ICAO was for civil air regulation only.

US had legal ground to say can’t do it, so standard is n/a – but to say not going to opt out under 38 and just regard it as a recommendation seems to be a bit more shaky.

Is this International Legislation? Smaller group of states creating their standards that are imposed

upon other / larger groups and the disapproving groups have to opt out under strong pressure.

Or – not binding – left with whether want to join or not.o There is a question as to whether the standards are technically binding –

Art. 12 ICAO – looks that way, but not certain. o Ex. what if air traffic incident and deviation from standard, which led to

harm could you use Convention as a standard that a state should be held? If yes, then some legislative effect – if it is creating a legal

standard by which we are holding states.

o Recommendations – accepted by everyone as non-binding. Therefore, a lot easier to develop and change.

ICAO – can adopt a recommended practice in addition to standards – o 304 K – desirable in the interest of safety, regularity or efficiency of

international air navigation. Members should endeavor to conform with it

o 307 – Annex 11 – more details about clearance standard – departure and arrival routes – what goes in to standard on which you will hold states and what may not – recs.

ILOo Tripartite entity – will adopt recommendations using same process. But,

here not just non-binding resolution. Looking at ILO Const – rec needs to be passed through the normal authorities

o Page 123 – Art. 19 – para 6 – (b) – within one year from closing of Conference bring Rc before authority within whose competence the matter lies for enactment of legislation

Goes further than what orgs do in adopting non-binding resolutions Also note you have to report back to ILO Sec’t Gen on what you

have done to implement rec. Easier to develop when lost of countries and differences exist.

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o Convention on Equal work for men and women – P. 281-84 – pretty general – really have to read rec with convention to get what is going on.

If you are faced with convention and rec and you want to say that once ratified convention you will be bound by what recommendation says – how would you do that?

Negotiating history argument. Art 2 para 1 – means appropriate to the methods in

operation for determining rates of remuneration Draw analogy to broad general statute and specifics given

by recommendations? Not so likely Look at convention and if says must do appropriate thing –

what is the appropriate thing – a, b, or c? push recommendation into one of those categories.

Constitution of ILO – 5(b) – and say that the specific language that says a state must implement the convention.

o P. 293 – Luard – International Agencies: the Emerging Framework of Interdependence -- is the ILO making too many recommendations? And that it is hard to develop the uniform standards or recommendations where there are radically different approaches from states.

Developed countries v. non-developed. o Are non-binding recs legislation – doesn’t purport to be, but if it has

some kind of effect on legal obligations that states haven’t signed on to or asked for, then maybe it is soft legislation – something more than just non-binding statements

Directed Action – IMF experience – p. 295.o Created to address what to do when a country is in bad economic

circumstances – low productivity or high inflation, and b/c of those conditions it is unable to sell products to other countries. No exports going out and the country has no foreign currency intake. But by contrast the country needs equipment and expertise from other countries – how will it buy those items if country has no currency from other countries. No one will want X country’s currency – X won’t be able to deal with balance of payments problem.

o IMF was created to give X access to hard currency on a short-term basis when there is an economic crisis.

o IMF – forces certain conditions on X – must be a member. Requires that X participate by proving IMF with currency. Must provide quota in your currency and hard currency. Creates

IMF pool of currency. Also must adhere to IMF code of conduct for dealing with

exchange rate and balance of payment problems. IMF forces macro-economic tools on country X.

o Being member allows X to purchase hard currency from IMF – X gives IMF local currency and IMF gives X hard currency.

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Terms are negotiated and you will have to buy back your own currency within 3 to 5 years. Just enough time to get your country over the economic crisis.

o Currently 70 billion in credits and loans out. Hard currency or special drawing rights.

o As an institution the IMF – via articles of agreement – it is set up with a board of governors – meet once a year – policy issues. All main powers are delegated over to the executive board.

There are 24 Executive Directors – 5 appointed by five biggest contributors – US, Japan, Ger, France, and UK. Others are elected by whole membership for two year terms. Governing board – executive board, and managing director.

o Executive board – what do they do decision 5392. P 298. Gives core procedures for board and executive director to use

when dealing with Country X. Reports to exec board and it can take decision on that – Exec board

operates by weighted voting – five countries get more on board and more votes.

o Exec brd can decide what X has to do to get funds – what the terms are on X’s repayment, can take decisions from governing brd and change them. The executive brd can suspend ability to get funds from IMF as well

o P 161 supp – Art 27 – Temporary Suspension - emergency provision Think about the power the 24 states have. Even more power of

larger countries w/weighted vote and ability to cut off access to money and intrusiveness of telling sovereign what to do w/ macro- rts.

o Is this a legislative power? More like a loan agreement, K.

Rule Making By the General AssemblySpectrum of Views: UNGA resolutions are… Per Se Binding Law (no one) – nope – UN Charter Chapter 6 Clarifying UN Members’ Obligations (Castaneda) – 335 K – states are

members of UN, they agreed on certain purposes of UN and to fulfill those purposes – these resolutions clarify those purposes and in some sense the states have a juridical obligation to abide by them.

o Piggybacks on the binding fact of being a member of the UN Able to Identify Emergent Law (Castaneda) – Int’l Law is changing over time –

not bound by treaties unless ratify – but customary law or general principals of law – how do we know when they are valid Int’l law – if there is a general assembly resolution – then you have lots of countries adopting a view of state practice. We don’t have courts in Int’l law doing this, so why not look here.

Just one of many Indicators of state practice – more skeptical approach – Schwebel – look at other indicators besides resolution. First look at resolution language, see if it is vague or indeterminate – if so not law. If language says it reflects law, then maybe more force or credence. But, still skeptical, b/c states

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often vote for things they don’t know they are voting for, or care about, or care about reflecting law, or just follow politics.

o Look beyond the language of the resolution – ie practice surrounding adoption of resolution.

o What states where saying before and after resolution, what did drafts look like, what was vote count – unanimous or consensus or majority – not so convincing. Small minority, but important minority that might say something as well.

o Willing to accept a resolution as one factor in legal analysis on whether new law has emerged.

Meaningless for the law – purist – UN passes resolutions and not binding law – states can accept or reject. Tells us nothing about law

Cast studies Here are resolutions – compensation on expropriations and does a state have a

duty to consult when going to take action that will harm other state.o TOPCO – court looks at resolutions and analyzes vote count – saying

vocal minority wasn’t agreeing with compensation, but in ’62 majority – so effect goes to ’62 not ’74 resolutions

Duty to Consult – Stockholm, no duty to consult, but in Rio Convention duty to consult. Did Rio make obligation to consult – Rio is non-binding, but suggests considerable consensus emerging on duty to consult. Since 1992 duty to consult is in on a lot of treaties.

Rule Making and autonomous organizations not created by IO’sIntro to autonomous Treaty Regimes More flexible, more individualized, although operate under rules and regs of

international law Created by treaty to do certain things and treaty needs autonomous bodies to carry

out convention Ex. Convention on International Trade and endangered Species (CITES) –

worrying about dangerous species being sold on black market and losing environmental diversity and animals.

o Set up a series of appendixes (1), (2), (3) – and when species listed on one of three – the species gets certain protection, and when imported into country certain obligations follow with the country.

o Convention created some independent bodies under CITES to promote compliance with it.(1) One party (body) coming out of CITES is COP (MOP) – all member

states are part of COP, likely to meet infrequently – once every two years – depends on treaty language. Meets all over the world – not set to one place like IO. Where ever it is hosted, that country pays the costs of the COP – instead of parties generally. COP allows opportunity to hold conference in developing nation v.

being based in developed world Powers that COP has

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(2) Another body created is a Secretariat – CITES is in Geneva that handles the administrative affairs of COPs, keeps records, communications. Sometimes convention asks other organization to set up secretariat, such as UNEP. Sets a tie to UN, but also by locating Secretariat in other city signals that it is not a part of UN, but own creature. Other times it is set up by Convention or COP.

(3) Subsidiary body – usually relates to scientific matters of convention or transfer of developmental aid. CITES doesn’t have subsidiary body.

These three bodies aren’t IOs, but they are quasi permanent organizations

Why not use existing International Organizations – why not say UNEP is going to run it for us.

o B/c only want the countries participating in it to run it. UNEP has 160 nations in it, and CITES might only get 60 nations to sign it—why let others run it that aren’t abiding by it?

o Why not create a new IO? These organizations can adopt quicker, less bureaucracy, more

flexibility, less lethargic, cheaper to run – more streamlined and focused on the infrequent COP and not an entity on its own that gins up business to justify existence.

What Powers do Autonomous Treaty Regimes Have? – begin to look more like IOs here (four key powers)

(1) Internal Powers – all the issues discussed in course about membership, withdrawal, credentials can come up with regard to COP and it is the COP that decides the issues, not the states alone. So, it seems like they have powers that IOs would have. They have had to adopt rules of procedure in order to function and run programs. COP develops financial rules for conference as a whole, internal processes to make regime work – based on specific articles of the treaty, but usually a bit farther – implied powers.

a. Such as a catch-all provision or secretariat implies certain powers.(2) Lawmaking Function – amend the convention, to alter convention itself. In a

normal treaty regime you would have to call a whole new ad hoc inter-governmental conference to amend it. Here, this can be discussed every two yrs at COP and COP can decide to adopt an amendment or protocol that has to be ratified - usually need super majority or consensus, but easier process than just a normal treaty process. Once passed, only means it can now go to all member states to be ratified. So, it is more streamlined to get amendment adopted, but traditional in sending it to parties for adoption.

There are also other methods to change Convention. o Ex. CITES – COP can decide what should be in one of three appendix –

merely by COP acting, which influences states. Can alter treaty, placing more constraints on members to Convention. CITES binds members after 90 days and you can opt-out if send affirmative message to sec’t saying don’t want it applied to you. If say nothing automatically applies to you.

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Way different than amendment process. This process looks more like IO, than traditional convention or treaty.

Questions about what Convention is doing. o Ex. African Elephant listed on appendix 1 – covering elephant tusks and

other parts – placing a ban on the export of elephant parts – this went past what CITES was intended for – not meant to give outright ban. Signatory countries said, hey our herds are too big and we need to use money from tusks to maintain program. Eventually, certain states where given quotas on Ivy – outside COP, but they did it. If like IO, look at doctrine of implied powers – in IO law there is a sense that in order to be able to achieve the purpose and goals of IO you have implied powers – back to reparations. If the COP is like IO then makes sense – outside scope, but implied. But, if not viewed as IO and more as just a treaty, then look at text, ordinary meaning, which makes it much less likely that would have implied powers not specified.

(is it like IO or just treaty interpretation issue) Interpretations of treaty – another way to make law Soft Law– guidelines that at some point become law, but start out not as law.

(3) Power to supervise implementation / compliance P 643 supp. Most treaties do have req’d to provide reports to the COP on their

compliance with the treaties. Typically, annual basis on what country has done to live up to convention regulations and noting deviations – litigation. Monitoring function – enforcement depends on regime (later). Such as sanctions – COP deciding particular state shouldn’t be able to engage in trade under a certain regime – ie can’t trade in haz waste.

Compliance procedures – if one country thinks other is not abiding by obligations – country can complain at COP and trigger a compliance procedure

o Montreal protocol – committee on complaints – considers views of both states, gathering information and reporting to COP on issue. Can lead to sanctions, but this process is also designed to figure out why the state is failing to comply – if it is lack of funds or trained people – looks for solutions.

o (Murphy – don’t view these complaints as always contentious matters – trying to sort it out and fix it – not just sanction).

(4) Power to Action - International Plane treaties in this area are generally silent on this issue – so do COP/MOP have

international personality to interact with other states Churchill – yep, Sec’t completes agreements with host state on P and I. The

COP might enter into treaties with other organizations, the GEF for example. o Not international treaties in the classic sense – Murphy says not clear –

they can be argued to be so or not. No one has pressed the point. It does look like these bodies have power to act on an international claim as an international actor.

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Dispute Settlement and Interpretive Powers: The ILO – international labor organization. What if there is an ambiguity and states are arguing on how to resolve the issue –

how do you bring to bear interpretive powers on it? P 388 – not nec case that distinction b/w two areas – you can find processes that

fall under both rule making and interpreting – M likes to break it down this way. Issues:

o What are the mechanisms in worko what is the jurisdiction of mechanism – mandate.o Are the mech good, impartial, likely to lead to good result or skewed

towards one agenda or the other, or just an inquiry with no teeth. Must bring complaint – then goes before governing body, then they decide if

complaint merits a commission of inquiry – usually ask gov’t charged with response first and then decide whether to form a commission.

ILO – four principal procedures in this area:(1) Complaints before commissions of Inquiryo If state not living up to convention what can it do – 126 –127 supp.

Art. 26 – Art. 33-34 – commissions of inquiry part of ILO Const. A complaint can be filed against a member that one member thinks isn’t abiding by a treaty.

Who can file the complaints? Member state or governing body. Member state has to be

party to treaty that it is charging other state has violated. Any delegate can bring a complaint

o delegates to ILO are two gov’t reps, one for employers, one from labor. Individuals who aren’t even gov’t reps can now bring charges against a state – huge departure from precedent in IOs.

o ILO doesn’t want governments alone to run the show – input from others important.

o What does commission of inquiry lead to – commission will ask for charged gov’ts cooperation obtaining evidence

Commission issues report and that goes to governing body that gives it to charged body.

Art 29 the charged gov’t can accept report or reject it and in theory say it should go to ICJ.

If complaint was brought by an individual and it is to go before ICJ how will that work procedurally – ICJ hears complaints against states only.

Art. 30 if government fails to act can go before total ILO membership

Art. 22 – can take action – enforcement. Interviewing people – privately, confidential to protect witnesses.

Depends on situation – if worried about protection or not.

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o Ex. Solidarity – polish trade movement wanting to assert itself indep from gov’t – Poland cracks down. Who brings this claim – two workers delegates – France and Norway

Was it just a factual analysis of situation or go further into legal analysis – yes, talked about gov’t

P 126 supp Art. 28 – fact gathering and recommendations. Doesn’t sound like should do extensive legal analysis, but ILO commission does do that. Fact-finding is usually not assessing if a state has violated a convention – but as saying what state should do to meet complaint and legality of issue.

o Who has burden of proof – the government. P 402 – paragraph 514 – incumbent on gov’t to show measures taken by it were not occasioned by the trade union activities of these persons.

o Legal analysis in itself – state in emergency has to take actions – but that doesn’t justify a wholesale suppression of the union movement. Compelling argument b/c shut down the whole movement in the country.

Communist gov’t that traditionally states it is for the workers and now the ILO commission in Geneva based on three individuals not gov’t that Poland is preventing workers from improving themselves. The commissioners were all pro-labor, was this stacked against the gov’t and any adverse effects on labor – did it undermine credibility?

Do voices like this make a difference or not? Human rights ideas and pressure to meet these standards.

(2) Representations Against Memberso Entities that can bring reps include associations of employers and workers

generally, not necessarily members of ILO.o ILO Const Art 24 and 25 – representation by an association of employers

or workers that member has failed to observe its obligations Doesn’t require that a state bring process No requirement that representation bringing the violation be

harmed by the action.o Rules of procedure to go forward – appointment of three members of

specific groups: Government, employer, and labor member appointed to committee

that investigates and reports back to governing body. o Ex. Czechoslovakia P 409 – the International Federation of Trade Unions

– a global organization brought complaint. In Czech, gov’t isn’t complying with discrimination in

employment convention. They were repressing, firing from state jobs for protesting gov’ts human rts records. Charter 77 Manifesto

Czech gov’t gives a very broad defense that these actions are aimed at violating the public order.

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The committee assess this and says – criticism of gov’t doesn’t endanger safety of state and that Czech didn’t provide enough proof ( para 21 of report) that these activities are against the security of the state.

Procedural note – Art 25 of ILO Constitution – tells what is supposed to happen that the governing body is supposed to publish the representation and the government’s reply, but not more. However, here the committee recommended the governing body take steps to remedy situation – is this ultra vires or is it ok?

Strict constructionist or implied powers determines answer. Over time has it become established practice of ILO to do

this? No enforcement measures came from representation

process – moral representation, not sure if had effect – but, did have respected committee saying communist regime not acting in best interest of workers.

(3) Special Procedures on Freedom of Associationo P 413 – important right in labor area – there are relevant conventions

about this, but some countries have not joined these conventions. So, ILO set up a special procedure to try to force governments to abide by convention via this commission

o Complaints can be brought by gov’t, workers, employees, GAo Problem is that there is no convention and this process forces state to

consent before being brought before this particular commission. o ILO also created a committee on freedom of association that was supposed

to be the first stop on filing a complaint before going to commission – assuming state will consent to go there. No states have really consented so this body has taken on a semi-judical body – going on to fact-finding and recommendations to committee or governing body and reporting its report in ILO official bulletin. This commission has taken on life of its own and looks to be outside scope of what ILO intended to create.

Instead commission to ascertain whether complaint was valid and then see if it should move on.

The process never really got on and so it mutated into a quasi-judicial committee.

Makes recommendations on what should be done to implement / remedy problems

o Ex. Tiananmen Square and WAF Brought by free standing international labor organization. Committee goes into investigation of whole matter China – responds – steps in response:

This process is illegitimate And on merits China acted appropriately (could have just not responded)

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Why did they respond – moral persuasion, and press coverage. And, until this point the Chinese gov’t had never said the ILO was acting ultra vires via these recommendations. So, China goes on to say it is acting on national security.

Did this process help Chinese workers? Probably not much, but gov’t had to respond.

What law can commission use? Customary law? ILO Constitution – that China is a member of this

document.o P 114 supp – Preamble – protection of workerso Art. 1 – establishing organization and concern with

aims and purposes of Phily declaration – P. 130 supp – Phily declaration – I(b) freedom of

expression and of association are essential to sustain progress.

If you combine all of this with the decisions of prior commissions and their decisions – then you have precedent in setting workers rights – you go from saying state hasn’t signed up and isn’t bound to arguing that China is bound

Committee can go after China based on substance of what it did.

o Should have rights to express freedom and committee said violent acts were acceptable b/e they were forced to do that? (far reaching).

o Ex. Canada and Postal Workers – p 421 – Committee says need to have postal services continuously running doesn’t outweigh rights of trade union to strike? good or bad decision?

Compare the two situations – does it hurt or harm Committee in short/long run. What effects on credibility, force of proclamations…

(4) Interpretations of Conventions – in ILO context: Art. 37 of ILO Const – ability for dispute about interpretation to be referred to

ICJ. Never done in ICJ history, but about five in PCIJ. Why?o Other procedures available that are quicker and more effective.

ILO Legal office – you can bring a question before it and they will give a legal opinion. May have usurped ICJ somewhat.

o Has issued about 100 legal opinionso Ex. Tunisia – discrimination – can you discriminate b/w your own

nationals and foreigners. ILO Labor Office says you can discriminate b/w your nationals

and foreign nationals – sensible; published in ILO Bulletin, and then other parties can react or object before becomes part of regulations of convention – customary.

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Dispute Settlement and Interpretive Powers: The IMF and ICAO IMF – Art. 29 on Interpretation – any question b/w members of fund goes to

Exec Bd for decisiono Exec Dir is subset of overall members of IMF – 24 directors for Exec Bd

and engage in weighted voting with top five contributors always on bd. o From Exec Bd, matter can be referred to bd of governors – and when

that committee decides something it can only be over turned in 85% of the bd of governors decides to overturns it.

o Disputes basically go before a political body at IMF and are decided. This method is used b/c issues are complex and need to be

consistent, so you want people close to the process making the decisions.

o Ex. Art. 9, section 7 – Bank v. All Cables Radio – What does treatment mean?

Do the rates have to be the same b/w US gov’t and foreign countries and b/w gov’t and IMF? Or does it mean not censoring them?

Goes to exec directors to interpret it – does rate fall under treatment.

Yes, it did – not surprising. Before FCC proceeding:

State weighed in saying would defer to Exec committee P 433 – Bretton Woods Act when US joined IMF – says

self-executing treaty with full force and effect. So, US precedent gives weight to what IMF says.

Policy issues – uniformity in interpretation – that all states would take these interpretations, so that have conformity and efficiency on way IMF conducts work.

o Are these interpretations really binding – in Art of Treaty just says “final” not binding – does this just mean within IMF and not binding on member states. Possibly yes or no…

P. 435 – 436 – K suggests it would be binding. Callejo v. Bancomer – letter from IMF legal department, not

formal interpretation -didn’t help IMF that much?

o Ex. Art. VIII § 2(b) – contrary to exchange rates set by IMF will not be enforceable

o Peruvian National who contracts with NY Bank -- Deal is that Peruvian can borrow in Peruvian Inti’s and pay it back in US$. Problem is that IMF has approved exchange controls on Dollars leaving Peru, such that the hard currency can’t get out of Peru – such that under Peruvian law this would be seen as unlawful.

If after this is signed the NY bank realizes there is a problem with contract – ie exchange rates changing. If bank backs out and Peruvians sue in NY Ct – the NY bank will say it is unenforceable

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b/c IMF Art. 2(b) US can’t enforce K inconsistent with exchange controls of IMF.

o Ex. lets say IMF interprets a K as non-binding – is decision binding on US as adhering to agreement and federal law trumping state law? It might be

J. Gold. – yep Kirgis – possibly, maybe NY law doesn’t have to follow IMF

interpretation Pink , Challoner, Miller ..etc p 441. More of should strike down as respect for IMF, but not as directly

applied. US might be obligated to apply Art 8 §(2)(b), but not follow it?? IF you are the Peruvian Bank – you want to look at IMF art of

interpretation – sect 12 and 13 – doesn’t say you must follow interpretations, just gives general weight to them.

ICAO – And Interpretation. Chicago Convention – Art. 84-86 –p 109-110 suppo If disagreement b/w interpretation and application – this can be decided by

ICAO Council – which is subset of overall assembly (council 33 member states elected by overall assembly).

o Political organ taking on judicial decision – can appeal to ICJ Rules of procedure p 445 –447 – majority decision of council decides Ex. India v. Pakistan – hijacked airliner taken from India to Pakistan an blown up.

India felt Pakistan didn’t do enough to prevent blowing up of plane – so, India prevent over-flight of its territory b/w east and west Pakistan.

o Pakistan has to file app, memorial, India can respond with preliminary obj to jurisdiction

o India appeals jurisdiction to ICJ – and ICJ says ICAO does have jurisdiction

o What was odd about this jurisdiction? ICAO – says we can decide this Pakistan says can’t appeal this to ICJ b/c interlocutory.

ICJ says we can decide it – complicated and has relation to merits.

o Is this good or bad ICJ very slow and still have problem b/w two nations during

appeal Shouldn’t ICAO sort out the tough questions – and decide

jurisdiction later? Murphy says – India is arguing relevant treaties that Pakistan is

trying to hold us to are suspended – the real issues aren’t interpretation of convention that are at issue – it is whether the treaties exist at all. ICAO council doesn’t discuss this at all in its decision. And, the ICJ doesn’t really get in to it either.

The outcome of ICJ decision is to say ICAO has jurisdiction, now it will be hard for India to raise these arguments.

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Problem is that ICAO council didn’t do a full blown jurisdictional decision and ICJ says do have it – not best way to resolve it. Strange process.

KAL Flight 007 of 1983 – Soviet Shoot down of Korean Airline. p 407o Fact-finding – does it lead to decision within Art 84-86 of Convention

should there be better due process guards for the Soviets. The fact finders in addition to finding some of the facts usually make decisions on law.

o ICAO did condemn the Soviets.o Was this art. 84 process under Convention – b/c it didn’t play out that way

– each side didn’t give pleadings and so forth. Note fact that soviets didn’t participate or want to pay victims at all

Iran Airbus Flight 655 of 1988 – shoot down by US Military Vessel thinking it was dealing with approaching F-14.

o ICAO launches an investigation and ultimately ICAO issues resolution p. 473-474 – it doesn’t condemn the US, but urges better safety measures.

o Iran files case against US in ICJ and part of that case is predicated on it being an appeal of ICAO decision made under Art. 84. So, Iran is trying to keep it within dispute settlement process of ICAO to give jurisdiction to the court.

US raises concerns about jurisdiction – and ICJ says not art. 84 contest, b/c ICAO is just investigating or taking up a matter under Art. 54 and this is not a dispute before the ICAO Council. US points out it participated in dispute and it shouldn’t have if it was a dispute.

o US and Iran reach settlement – negotiated by Murphy . US paid 130 million dollars and other claims before Iran-US Claims tribunal

o Creative settlement b/c:(1) US didn’t want to pay anything directly to gov’t of Iran.

Money sent to Swiss bank to go to victims of Airbus incident. Other chunks went into securities account in Hague used to pay

claims from US on Iran. Federal Reserve bank in NY to fund operation of Tribunal in

Hague.(2) US didn’t want to pay for damage to the plane – US didn’t apologize for incident – expressed regret. And, only wanted to pay to family of victims, not for loss of aircraft.

Lumped claim w/others – let each side say what they want….

Dispute Settlement and Interpretive Powers: UN All UN Organs Engage in interpretation – the SC debates issues of resolutions

and the GA does the same. In the course of the debate it is common for a country to have a problem with the new resolution and the charter. Then the SC will issue resolution based on art – interpreted.

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o Negotiating history behind UN Charter – 483-84. Should there be some final court that will be the arbitrator of issues that come up, drafters said no, and decided each organ can do it.

If everyone thinks organ has made a bad decision – then, it ultimately wouldn’t be adhered to – legitimized based on general acceptance and reactions.

Judicial review isn’t always practiced world-wide.o Why not put judicial review in charter - -why not let ICJ do it.

Countries wouldn’t join UN – states don’t want to submit themselves to binding judicial decision-making. States will allow themselves to be bound under certain interpretations, not every issue.

Enforcement – if states don’t adhere then how would you enforce decisions.

Speed – time it takes for court to come out with a decision. Checks and balances – aren’t necessarily there. Weakens power of SC and five main states

o Result in greater emphasis of how organs interpret their powers – certain expenses and Competence of the General Assembly 484. This becomes a key factor in interpreting means of charter -- ?? put in issue.

ICJ -- key characteristics 15 judges from around the world – always one from five permanent members as

custom; Art. 92 of UN Charter – begins ICJ Chapter. Art. 93 – all members of UN join statute. Art. 94 – members undertake to comply with decision of ICJ.

o Art. 94(2) if one party doesn’t comply recourse to SC by other party. Art. 96 – court can issue advisory opinions ICJ Statute on p 37 supp

Advisory Opinion v. Contentious cases Contentious cases -- b/w two or more states, need to establish ICJ jurisdiction,

mere factor that party is sign. To charter doesn’t give jurisdictiono Jurisdiction

state submits declaration accepting jurisdiction as general matter – referred to as a compulsory declaration of jurisdiction. Other state must submit a declaration accepting compulsory jurisdiction of court.

State agreeing to treaty and in that treaty is a clause that says disputes before convention, treaty goes to ICJ

Ex. ICAO – art. 84 and interpretations of convention itself States doing it ad hoc after dispute has arisen the states can agree

to take matter before ICJ. About half come to ICJ this way. Binding decision.

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Advisory opinion – requested by competent UN organ or spec. agency. o Jurisdiction – is whether it was a competent UN organ that asked the

question – can the organ ask it Ex. in 1994 – the WHO asked ICJ whether nuclear weapons were

unlawful – the ICJ said WHO was incompetent to ask question. In contrast the GA asked that issue – and ICJ said GA had competence in issues relating to nuclear arms and WHO did not.

Opinions are non-binding unless treaty states it is seen as binding.o Southwest Africa / Namibia Saga – League of Nations Mandate of

German colony to South Africa – result of WWI – idea was to put them under the tutelage of a successful independent country. UK to S. Africa. Things sour when S. Africa begins to institute apartheid and thoughts of annexing the territory.

o Ethiopia and Liberia – Contentious case – to sue S.A. in ICJ and ICJ says they do have standing to do this. (8-7 decision).

Ct doesn’t allow them to seek a decision on issue merits before the ICJ b/c they don’t have a legal interest. (8-7 decision in 1966) how to square it? Who knows? Bad for ICJ reputation.

Then GA Resolution Terminating the Mandate p 489 Then SC declares S. Afr presence in territory is illegal 490. Now, SC asks ICJ for advisory opinion. Issues that come up:

o Think about fact that it was an advisory opinion, but more so that it was a IO v. State – looks like a dispute and if it was then it raises issues that courts decision talks about and then should S. Afr have been present during SC debate, should S.A have been allowed to have a judge on the court – here it didn’t, should an advisory opinion even be issued in situation where there is a dispute in place? East, Court gets around a lot of these issues by saying it is State v. IO and also that it is not a dispute, b/c would ICJ be able to give an advisory opinion.

Why shouldn’t S.Afr be able to have ad hoc judge on ICJ Ago’s piece – we should be thinking about IO v. State issues as

being like disputes, and if we have to amend charter we should do it, but stop the fiction that it is not a dispute b/c it is an IO on one side. He would say there should be advisory opinions – when is it a question before court is a dispute or not.

o Mazilu – links back to p 86 – ICJ calls this not a dispute – is it saying things that are disputes are not --- allow advisory opinions to go on when not necessarily should.

Current Example ICJ case: Iran av. US Oil Platforms Case Facts, jurisdiction, key issues – Murphy’s case. Arising from the 1980-88 war b/w Iraq and Iran – Oil tanker war – b/c tankers

were calling in the southern Iranian ports and Iraq was attacking the oil tankers and facilities to cut off Iranian revenue from the oil. Iran wanted to respond in some fashion – so Iran started to attack tankers in Saudi and Kuwaiti ports. US

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reflagged some of the Kuwaiti tankers w/US flags. Attacking tankers calling at neutral ports. Two Iranian missiles hit Kuwaiti oil terminal hitting and damaging 2 US flagged tanker. In response, the US attacked two Iranian oil platforms – that the US said were being used in an effort to assist in attacking the tankers

o In April of 1988 similar situation, US military takes out platform.o Ironically we were supporting Iraq at the timeo Iran filed in ICJ in 1992 – saying attacks violated int’l law obligations

Ct finds Jurisdiction and then merits phase. If you are council for Iran and we want to sue US at ICJ – jurisdictional basis

o Compulsory jurisdiction – pg 44 – Art 36 para 2 – has the US deposited with compulsory jurisdiction with Sec’t General? Nope, we had submitted to it, but pulled out in Nicaragua case. We would also have to see if Iran had filed for compulsory jurisdiction

o Treaty or Convention that both parties have signed giving rights to ICJ – p 44 supp – Art. 36 (1) treaties and conventions in force.

Friendship Commerce and Navigation (FCN) or Amity treaties 1955 Amity treaty with Iran – art 10 that deals with

maritime commerce – 1st paragraph says there shall be freedom of commerce and navigation b/w the territories of the two parties.

To get that Art to cover the current situation you would argue – that the attack on oil fits into commerce – that Iran sells oil which is selling a product to the US or which goes b/w the two countries and the US is obstructing that commerce.

Voluntary submission – not likely.

o Treaty obligations – after Shah fell, hostages held for year until Algiers Accord – at this point US has severed diplomatic relations, and we haven’t resumed yet – two reasons:

(1) we had used this treaty to protect the hostages – US brought a case before ICJ based on this treaty giving ICJ jurisdiction.

(2) Algiers Accord set up Hague tribunal and that Tribunal got its source of law from the Amity Treaty – if you gut it, then it might question whether US citizens can invoke rights before Hague.

Treaties protect nationals of one nation going into other nation

If US Lawyer you want to attack jurisdiction o If platforms are used for military actions – not commerce – any duel use

takes away the shield – self defense.o Argue that Amity Treaty doesn’t fit at all – Platforms outside territorial

waters of Iran and extracts very crude oil, which is then piped to Iran where gases can be removed and only at that point can it be loaded on

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tanker – not really commerce b/w states, but extraction for natural resource that goes to Iran. (Murphy says weak argument – look at entire process)

o Treaty said no measures taken within State’s essential security interest and treaty can’t restrict that.

o Self-defense actions and no treaty can prevent you from doing that. Discussion of how would decide issue

o Was it essential security – defer to US on deciding thiso US role in Iraq during waro Re-flagging vessels – US just responding to bitterness over hostage

situation. US Counter claim – on Iran attacking vessels, using Amity Treaty – Iran said not

b/w Iran and us, but Kuwait or Saudi and U.S.

Dispute Settlement and Interpretive Powers: The WTOBackground

Origins of WTO After WWII – countries wanted to stop origins of war – great depression that

preceded the war that gave rise to Hitler and Mussolini? Many thought that lowering tariff barriers would relieve chance of another depression

1947 GATT – designed to begin the reduction of tariff barriers b/w states to avoid economic problems.

o Stays enforce for next 47 years – during that time there are negotiations where states come together to reduce tariff barriers and expand GATT scope

1986 – Uruguay Round – ends in 1994 with the Marrakech Agreement that has o attached to it a ton of other agreements, including GATT – called covered

agreements o Agreements significantly widen and deepen the scope of the trade

agreement – TRIPS; TRIMS; TSA – all put into the M. Agreemento WTO created. Prior to this time there was just an informal GATT office

in Geneva. Now – Ministerial Conference that meets every two years. General Council created as well.

Other bodies and councils – dispute settlement body – DSB. It is really just a special meeting of the general council.

Secretariat – agenda – paper pushers, headed by a sec’t generalo Dispute Settlement Process – for the first time a process that is much more

robust than what existed under GATT.

Core WTO Obligations GATT National Treatment Standard – treat foreign nationals the same as host

nationals. MFN status – can’t treat one state better than another. Quantitative restriction requirements not allowed.Problems that arise:

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Similarity -- Ex. US beef raised from hormone cow – is a ib of that beef the same as one in France w/ no hormones – are they like products, enough for comparison?

Art. 20 which allows exceptions to protect human health

Dispute Settlement / InterpretationsProcess Consultations first, then Panel appointed from candidates suggested by sec’t,

Panel gets pleadings, holds hearings, issues decision – all within 6 months. Appeal to appellate body – standing body, appointed by DSB – once those

decisions are final – adopted by DSB – unless there is a consensus of objections case is final and automatically adopted.

Once adopted – if for example US wins -- then there are three possible outcomes:o Conformo Compensateo Retaliate – through WTO authorized retaliation – US could invoke barriers

on EU goods to coerce implication of decision. Pretty quick process – about year and half.

Sources of Law – art. 38 of the ICJ – where you look to determine applicable law(1) Treaties – GATT covered agreements, that are the basic fundamental obligations

the panel is supposed to address Copyright conventions, TRIPS, Basel, CITES – all of which impose trade

sanctions for not complying with treaty – that runs counter to GATT/WTO Later in time treaty that is more general in scope shouldn’t, arguably, displace a

more specific earlier in time treaty.

(2) Judicial Decisions – (one of the two subsidiary sources named in Art. 38): Panel decisions – are seen as not binding, but most appellate bodies won’t rule

against themselves – so they place the burden on the party appealing the decision to support why view should be changed.

o Classic international law theory is that if two states go before forum – only those two are bound. And, in theory if two other states go before same forum on same issue the outcome could be different.

o Strong persuasive authority is what these could be considered.o Cited as precedent that needs to be followed – why do that:

Consistency, credibility, IOs have a somewhat tenuous authority and rely greatly on their established credibility, then it is less likely states will adhere to decisions.

To convince states to abide by decisions of IO –need to have credibility.

Also, provides for more efficiency. Due Process, fairness – can be used to guide in how decisions will

be determined and concluded.

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(3)Custom –principles states have accepted as binding – state practice of some kind – and that practice is regarded as legally compelled.

Vienna convention on treaties.??? Custom is not used that often – some types of treaty interpretation or general

custom is used Precautionary principle – take steps to prepare to prevent developmental threats.

Ie – climate change – global warming – even if not issue now, can be in future and we should act in advance.

(4) General Principles of International Law – national systems – most common law or civil law systems – if there is a concept of principle operating in those systems – or ex. if exceptions to a rule shall be narrowly construed – if this is a concept that operates in most legal systems then that should operate. WTO tries to avoid using this – page 408, not a major part. (5) Teachings of qualified publicist – academics. Not relied on that much. Note that most people on the appellate body are diplomats and might not be

familiar to the judges. Note that in the core decisions – no individual scholars have been cited, deference to state relations, judicial decisions and

are these like a cipher that go down the line looking at everything below – less likely to look at these sources

Techniques for Enforcement: Measures short of Sanctions Luard article – does it matter if they can enforce the rules that they generate?

Does it matter that you have a good system imposing compliance on states?o Does the fear of other nations cause us to obey or is it a moral matter –

that society will stink without everyone abiding by the conventionso Democratic system v. authoritarian regime o Respecto Fear that it will unravel and dominos will topple

Look back to first day why form IOs – to be a good state, to develop norms or rules

Non-Sanctions that can be used to comply enforcement Reporting Requirements

o ILO Art. 19 – P 123 supp - lays out how if a treaty is developed by the ILO – have to take it back to national legislature. (e) calls for member to report to steps taken with respect to a treaty that the state hasn’t ratified.

o Art. 22 p 125 supp – annual reports on treaties that they have ratified. o Reports are circulated to all other states. States don’t want to publicly

report bad things – so can (1) not report (2) report bad things (3) try to ratify it and implement and report that.

Theory is that this has some conditioning effect on way states report and on treaties not yet ratified.

Informal Persuasion – case book doesn’t note it, but M says Sec’t Generals are extremely important in interface b/w IO and member States. If some sense not complying the SG job is to remind state of convention and state’s obligations.

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o Ex. IMF – p 158-159 supp – Art 12 – fund can communicate informally to any member state relating to exchange rate policies taken by gov’t and as to the fund as to how it will effect state. This provision has never been invoked in sense that communications have never been made public.

Most times once fund talks to member state that is all necessity. States don’t want info to become public. Fund tells state reform economy or exchange measures in this way…

o Ex. ILO Committee of experts – p 524 – considers reports submitted by member states and can persuade gov’t to do better.

Procedure on 538-529 – committee prepares reports heard by ILO general assembly.

ILO committees to receive reports, read, comment, and reply.

Capacity Building - financial or technical assistanceo In context of multi-lateral agreements. o Idea is that if country X reports not abiding by rules, and sec’t gen goes to

discuss issue with X, the question is why is it that they haven’t done those things

Either X doesn’t care or X understands but just can’t b/c of resources or lack of expertise.

o One measure short of sanctions – is to make available to that country methods in which X can get technical assistance.

“Mobilization of Shame”o IOs can pass resolutions condemning behavior. Doesn’t always work -

Iraq, but nations don’t like negative int’l publicity and usually conform. IAEA – resolution condemning Iraq - p 549

WHO – issue – politicalization of the issue –o Calls for return of border, Geneva Convention applications, unsettling of

settlements.o Question is whether this is within realm of WHO to make these

statements. Is it playing towards one side or the other and is that going to hurt credibility – will that hurt its powers.

o WHO – Resolution – some of the components are within the resolution, but some seem to be ultra vires.

Condemnation – doesn’t have to be embedded in entire work of whole organization, but can be on part of a committee – ie ILO committee of experts, which makes statements in effort to informally persuade and then shame country into doing it.

What are those mechanism – refer it to general conference; Committee of experts – will put you on their list

o At one time there were 7 categories of default (used by USTR) Designed as a signaling process b/w ILO and role of state.

Ex. UK effort to prevent civilian employees from unionizingo Exert on 538 from committee report and 539.

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o Note, special list of 7 categories becomes overtaken by an appraisal in the country in the annual report – 3 categories – progress made, special cases, continued failure to implement.

o What about the UK reaction to this – compare to how USSR just blew off the ILO. The UK did not conform – notwithstanding year after year of shaming – why do you think this is the case

No enforcement mechanism Benefits outweighed the cost Conservative gov’t didn’t want to pay attention to labor groups.

o UK – we don’t think you have mandate, we don’t agree with principle laid out, government should be deferred to on nat’l security issues not the labor expert committee, national courts made decision.

For effectiveness – look at IO itself – is it operating on solid foundation when using mobilization of shame – if solid ground, then more strength.

o Look at how state rejects IO – just ignoring it or supplying reason. If IO is strong and state stiffs them – credibility is there for IO If state supplies reason then weakens IO position? Possibly.

Why did UK get to vote in process – b/c it was a quasi-judicial process

Global SanctionsUN Security Council – under chapt 7 has power to issue biding decisions (does it conflict with chapter 51 – inherent right to self defense – context of Serbia v. Croatia and Bosnia Sanctions). Mandatory sanctions if country is threat to peace or hasn’t abided by what SC has

asked or ordered country to do; or Could be for military force.Sanction Regime: Since cold war there has been a robust use of sanctions – Libya, Yugoslavia,

Rwanda, Liberia, Ivory Coast, Sudan, Sierra Leone. Comprehensive economic sanctions – no trade, aircraft – usually order from SC

that all other countries of world have to abide by these sanctions. Ex. Iraq – all other countries have to implement decision. Has deleterious effect on economy.

o Usually regime elites don’t care about suffering of country and continues on doing what they want.

o Effects on third countries – Jordan complained about trade relations with Iraq – port usage.

Targeted Sanctions – no aircraft in or out or no oil or no diplomatic relations or military hardware.

Smart Sanctions – figure out who the leaders of power really are and engage in a sanction that will actually hurt them

o Ex. Identify the assets held by regime elite rulers and their families and friends and if they are outside target country freeze the assets pending compliance with SC demands.

Sanctions committees that deal with Sanctions regimes imposed on particular countries to see if country is implementing sanctions. It also will determine

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exactly what sanctions cover. Ex. Iraq had comprehensive sanctions, except food and medicine. Would check by reports and country notification of good being sent for approval.

o Working group on setting reforms in sanctions committee.

Autonomous Quasi IOs in Environmental. Treaty Regimes Standing entities created under multilateral environmental agreement, not full

standing IOs – sanctions that would require a decision by COP Once decided non-compliant, then COP can cut off all trade on type of substance

or product that is at issue in the regime (not comprehensive).o Ex. CITES – if country non-compliant, then effect can say that no trade of

endangered species can go on with State – CITES allows some trade under circumstances.

o Ex. Montreal Protocol in environmental degradation and B convention on waste.

Trade and environment debate – trade obligations to always continue and more specific regime that interferes – how do you sort out the two.

Authorized Bilateral Sanctions: WTO Folsom, Gordon, Spanogle exert – if non-compliant with WTO obligations and

don’t conform – effect is that either you pay money to other side to continue with noncompliant behavior or the other side can retaliate with countervailing measures sanctioned by WTO.

Loss of Voting RightsUN Art. 19 p 16 supp – if don’t pay amounts due can go into losing vote

o Arises in a lot of cases in 1980’s 90’s on debate over whether peace keeping missions are valid

o certain expenses p 233-34o US not paying and then 3 tranche system.o Should this be an automatic sanction or should you have to go before GA

before being stripped. Most say don’t need a vote – so you would have thought that

USSR and France would have lost vote in GA – the countries both got around it b/c GA didn’t take a vote in GA for a few years – only voted on consensus issues, so no need to call for vote.

Seems like this practice modified art. 19, b/c both were able to participate and there was no clear sanction that differentiated the countries from others. Keep in mind Cold War time

P 558 –561 (not assigned) shows how US was aggressive and wanted to strip countries of their votes and US showed history of article…. But didn’t get support.

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Specialized Agencies (loss of voting rights con’d) Similar to what is in Art. 19 in other organizations ILO p. 120 supp – Art. 13 para 4:

o Similar to 19 of UN in that voting cut off and may permit to vote if due to uncontrolled conditions – by 2/3 vote – UN important questions require 2/3 vote

o Much broader – not just plenary organ – hits committees, elections of members of governing body.

o Art. 56 Marine Environment Protection p 141 supp – gives more discretion – other ways to get back it.

Stricter – if you owe and don’t pay all of it within one year – you are out.

Loss of BenefitsIMF – p 565 – imposes sanctions on formal way and informal manner

o To correct balance of payments – each state has to put in quota of 75% in soft currency and 25% hard currency. If you have problems you can buy back or draw on the money to certain limits

Formal sanction is it stops drawing rightso P 160 supp – Art. 26(2) IMF – ineligible to use the general resources of

the Fund if fail in obligations. Informal sanction – Conditionality – setting criteria on government policy (not

written in agreement). Once you draw first time not so strict performance requirements, but as you draw more and more the conditions get tougher and tougher – set harsher conditions. Sanctions – yep, b/c won’t get resources unless you conform your behavior. If you take money and fail to conform then you will get formal sanctions

IMF guidelines -567 – (i) Macroeconomic variables – big picture stuff – supply of currency, exchange rates – not micro decisions such as product offered at certain price. The distinction b/w two isn’t always clear

o can IMF set condition on no subsidies of milk or gasoline – probably macro-economic condition, although that takes it far down the chain on personal level of affecting daily lives of individuals – controversial on if macro or micro

Word Bank – 569 – similar, but lends money for developmental projects – dams, power plant.

o Just like any bank it wants its money back and wants a credit worth borrower – but it also gets into whether country’s policy will be conducive to getting money repaid – need to comply to WB requirements.

o Different in that these are not funds of the country – just money available from countries via capital market equity.

Issue arises in that should WB be getting into conditions that relate to conditions such as human rights.

o If country isn’t providing basic protection for people is it fair to condition loan on it. Tian Sq

Is this being done to get paid back or is it for human rights reasons

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If it is credit-worthiness, then within banks authority If not that and just promoting morality, then that is not within

scope of banks charter. P 570 – not to be influences by political character of

member state. Can the member states direct representatives to vote against

lending to a country based on human rights recordo Statute passed by US on 571-572. human rights – is that allowed.

Argument is that not a good faith compliance w/ Charter of WB.UNESCO – p 576 – Res condemning Israel for archeological excavations – can they do this?

o Art 2 paragraph 2 -, 3 – territories can be admitted 4 – how members can be suspended – if suspended from UN out of UNESCO as well.

This resolution invited SG to suspend Israel’s rights. Not following article 2 structure – is it ultra vires.

o Political or legal statement by passing itIAEA – p 581 – withhold assistance to States civilian nuclear programs if not abiding to IO’s requirements. What if it is built and then you stop abiding to safeguards – the IAEA is limited in what sanctions will actually do to country.

o Ex. N.Korea – IAEA monitors went in, but then kicked out after facilities running and capable of building nuclear weapons.

o Politicization – Israel attack on Iraq nuclear reactor. IAEA calls it act of aggression and this is outside scope and not contemplated in IAEA statute.

International Criminal Court Historical Background 1948 – first interest in UNGA – law commission looks into issue. Stalled during

Cold War for myriad reasons. Nuremburg and Tokyo Tribunals – but UN wanted less victory justice Until end of cold war 89, not brought up again ILC started to work on issue – independent jurist provided draft to UNGA in 1994 GA took draft and started basis with Prepcom (prepatory committee) to place

draft statute before diplomatic conference. Diplomatic conference 1998 – July Rome Conference – adopted statute for ICC

o US opposed Rome Statute when adopted at Conference by other nations. Clinton waited until last day that could sign treaty until Dec 2000.

Clinton Administration signed statute, but didn’t send it to Senate. Bush tossed it; unsigned treaty – US informed SG of UN that US

has no intention of pursuing ratification – thereby taking US out of any obligations it might have as a signatory to treaty.

July 2002 – Treaty entered into force and is binding on countries that ratified it 139 signed and 89 have ratified.

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Structure / jurisdiction / procedure -- ICC Presidency – Chief Judge Chambers – judges themselves – 18 judges – elected for staggered terms 3 year

terms, 6 year terms, 9 year terms. Assembly of the Parties elects judges; meets regularly to consider issues of ICC Prosecutor’s Office – elects prosecutor. Luis Moreno Ocampo de Argentina. Registry – Secretariat of institution.Jurisdiction of crimes(1) Grave breaches of 1949 Geneva Conventions – torture(2) Crimes against humanity – wide spread or systematic attacks against civil

population(3) Genocide Crime of Aggression not yet in force. (couldn’t define it, so still in workings – at

2007 hope to adopt definition that will allow it to become part of jurisdiction of ctPeople jurisdiction over Person who committed offense in territory of party to treaty or territory of

someone who has sent in notification saying they accept jurisdiction to particular crimes on territory or person indicting to from nationality of signatory to treaty (ad hoc acceptance allowed).

o Ex. Iraq – war crimes – suppose that American and Australian – both charged. Iraq is not party to ICC – so no jurisdiction. US not party – no jurisdiction based on nationality. Australian is party to treaty via country adopting treaty. Could get US via ad-hoc – if Saddam for example says Iraq accepts submission to crimes committed in territory by US.

Procedure Complimentary – (made up word) supposed to defer to national courts.

o Ex. US or Australian being investigated the prosecutor must alert their country that it is doing this. If nation says they want to prosecute it and investigate in US or Australia – the ICC is supposed to say fine, you have the right to do that. This was method to get US in – hey you have full military court of justice – this doesn’t require prosecution, but submission to prosecution.

o Issue for US is that it is ultimately up to ICC to decide if you are generally willing and capable to do it – fear that politically motivated prosecutor might go after high ranking official.

If ICC does think it has jurisdiction o Investigationo Indictment conferment by judgeso Seek surrendero Once in custody, can proceed with prosecution

Principal US Objections US felt SC should be trigger before ICC pursued any investigations or indictments Complimentary regime doesn’t go far enough for US A country that has not ratified treaty could have one of its citizens prosecuted

before the ICC or in some sense bind US

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Current Events US has enacted American Servicemen’s Protection Act (ASPA) – restrictions:

o No US funding for ICCo No US federal or state courts or federal or state governments may

cooperate with the ICCo No ICC investigations allowed on US territoryo Beginning July 1, 2003 – no US military aid to states that have ratified the

treaty unless it is a NATO country, major non-NATO ally, or President has waived the restriction

o No US peacekeepers to go to countries where they would be exposed to ICC

o Authorizes the President to use all means necessary of US nationals detained by the ICC.

B/c of no US peacekeepers allowed in ICC ratified countries – US went to UN saying that UN should pass resolution exempting all UN peacekeepers from ICC jurisdiction. Refused, but requested that for the next 12 months the UN is asking the ICC not to investigate any UN peacekeepers – allowed in Rome Convention.

US has been negotiating bilateral agreements with countries that have ratified the Rome Statute – and it says both sides agree they will not surrender nationals of the other to the ICC. B/c Art. 98 of Rome Statute says a country party to it need not surrender person if have obligation to 3rd state – first have to get consent of 3rd State before surrender.

Suspension / Expulsion from MembershipUnited Nations

Charter – 5 and 6o 5 suspension – if SC has taken preventative or enforcement action, SC has

to recommend suspension, and GA has to vote.o 6 – persistent violation of charter, SC recommendation, GA vote to

expel. o 18(2) – important questions need 2/3 majority vote – including suspension

and expulsion.o These are fairly high hurdles to surpass. Pattern of violations. Action

taken by UN – SC has to act in formal manner under Chapter 7 – more than a SC Resolution saying or recommending to do something. Must invoke Chapter 7.

o Do you think these possibilities would deter a state from doing something – context of sanctions coerce behavior?

If carry out threat then don’t have much influence The threat is what might coerce behavior – when would that induce

behavior When country will lose benefits from UN to the State.

o Why would IO not want to do this Promoting universal membership – can’t kick people out Lose money by kicking out

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South Africao Heinous policy of apartheid and by 70’s building of global

condemnation. 1970-73 first round of skirmishes. Credential committee passes on to GA that should approve credentials.

o The UNGA – approved all credentials except S. Africa. You would think that delegation loses rights, but the President of UNGA interprets the wording of the GA amendment to have effect that SA could still be seated and present. – policy statement, but no legal effect of taking vote away.

o Does this make sense No, b/c they shouldn’t be able to participate Yes, b/c Here GA wanted to make a political statement and should

be allowed to sit.o Was this an abuse of credentials committee authority – difference b/w

verifying credentials – are the papers right - legitimacy of government and whether should be seated.

o Undermine SC in Art. 5 and 6 – no SC recommendation (if it is the functional equivalent of a suspension).

o 1974 – SC votes not to expel – vetoed by France, UK, and US – argument as to not expel to work with them – other side pushes to expel on human rights and other violations (Namibia, Charter, SC sanctions violations). SC says “seized” of the matter – means still on agenda to be brought up later. If SC still engaged in matter, then UNGA is preempted from making recommendations regarding dispute or situation, under Art. 12. (is this a dispute or situation – no enforcement action)? Also, SC wasn’t voting on expulsion of SA, but on Credentials.

Then, Credentials committee says no to SA. UNGA votes and denies credentials. This time the Sec’t General says not allowed to participate in UN.

SG has effectively kicked SA out and shouldn’t this be done by 2/3 vote, not majority.

US forwards arguments against new interpretation – thinks constructive engagement is better – outside scope, political function and credentials committee is supposed to just say did government issue them. Precedent states otherwise. Procedural Rule 71 – objection that has to be overruled by majority vote.

Ultra vires act by UNGA, b/c no rec from SC. Work it through article 5 Article 6 – persistent violations of the principles contained

in UN Charter – where does it prohibit what SA was doing Art. 1 – purposes – (2) equal rights of self determination of peoples. Art. 2 – principles - (4) territorial integrity – Namibia. (2) members shall fulfill obligations under charter – go into Art. 55 and 56. Still have problem that SC didn’t recommend – ultra vires.

Is this the functional equivalent of expulsion or suspension – Art. 5 and 6 not invoked. Not allowed in GA, but still in SC or other

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agencies. Dues, still required to pay, so neither expelled nor suspended.

o Credentials – not representative of people. (what about other authoritarian governments).

Israelo Movement among Arab states to Shame Israel – didn’t work. Why?

B/c US threatened to cut off funding Democratic and represents the people.

Yugoslaviao Really not a suspension or expulsion situation, but SC and GA reinterpret

it into one of recognition of a gov’t – saying Fed. Rep of Yugo (Serbia and Montenegro) are not successor to Socialist Government – so have to be admitted as new state. Not suspending or expelling FRY, but saying not a member. Other was, you’re not. After Milosavic fell the FRY did re-apply.

o Why didn’t they expel them – why non-recognition? Human rights Other republics didn’t agree that FRY was the rep for Bosnia,

Croatia, Slav, Macedonia…these countries didn’t want to be included under FRY and didn’t want FRY to get all the assets included in old gov’t. This way the other governments can get assets.

Other Global Organizations ITU Legal Adviser opinion to not suspend Israel for attacking Iraq, under ITU

charter. Concepts relevant to all instruments. P 615 -

IAEA – provisions for suspension WMO - UPU – no provision for suspension

Regional Organizations OAS – different arguments – UN universal scope, but take into account is there a

default setting that states should be in and takes a lot to kick out, but OAS doesn’t have provision that says can expel – is it ultra vires, or can you say for regional organization you are grouping for common poli, econ, values and Cuba is allying self with outsider should there be an applied ability to expel? – not precedent from UPU.

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Enforcement Action: Iraq – Kuwait CrisisStructure of Chapter VII p 20 supp

o Notes in book 39 – ID threat 40 Provisional Measures 41 Non-forcible Measures 42 – Forcible Measures 43 & 45 – Member State Agreements with UN 46 & 47 Military Staff Committee

Iraq’s Invasion of KuwaitInvaded in 1990 and forced out eventually in early 1991. UN hasn’t had many enforcement actions – Iraq is a nice case study – other than Korea. Additionally, this is a robust use of Chapter VII – right after Cold-War ended. Coalition to build a new world order against a very aggressive country, Iraq that purported to annex it. 660 – demand for withdrawal – p 644

o condemns what Iraq has done and notes breach of peace under Art. 39 and 40. Didn’t say act of aggression in effort not to inflame situation

o demands withdrawal and calls upon intense negotiations. At this point, UN is saying there might be a dispute, but that Iraq

has gone about solving it in a wrong manner. Doesn’t seem to be a position on where the boundaries are set, but clear message don’t solve it this way.

Did Iraq have a valid claim to Kuwait? Is there an estoppel argument – colonial drawn boundaries

should be left in place to prevent chaos. Agreed minutes – no ratification? But Iraq had acquiesced

to drawn borders. B/w 1939 and 69 had been set. 661 – Imposition of Economic Sanctions

o All States – members and nonmembers. Can UN (15 SC States) bind both What gives them the right to bind the UN states:

Chapt 7 Art. 41, non-forcible measures. The art. Doesn’t say it binds all member states – but that it may call upon members to take actions.

Art. 25 – Members agree to accept and carry out the decisions of the SC in accordance with the Charter

What about nonmember states: Vienna Convention 35 and 38 (rules binding on 3rd party

states via int’l custom). UN Art. 2(6) – UN shall ensure that States which are not

members of UN act in accordance with principles – question where UN can bind non-ratifying states.

o What actions can UN take Sanctions imposed obligations on collateral states as well – Jordan

and Turkey. Art. 50 results in Committee to hear concerns – bottom line is that nothing has really been done about the sanctions

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effecting other countries. Where would UN draw line on who would get funds from being damaged via sanctions?

US starts to enforce measures before SC has taken actions. Uses article 51 inherent right to self-defense. Attack must have occurred and Kuwait requests assistance. Seems to fit within Nicaragua decision that it is self-defense.

Why not self defense – sanctions had been imposed – Rhodenisia. Art. 51 says not impairing it until SC has taken measures to maintain peace and security. US is disrupting the situation. However, has SC stepped in and vacated the field taken necessary measures to restore peace and security – has sanctions resolved the situation. And in 661 – didn’t SC leave inherent right to self defense as an option.

665 – Enforcement of Sanctionso SC authorizes states to use force to implement sanctions – does this

sanction what US was already doing? US said we could do it regardless of SC resolutions. Other states doubted exercise of right of self-defense.

o Paragraph 4 reference to Military Staff Committee – but never gave committee control or direction to multinational course – this was led by US with numerous states.

670 – Strengthening of sanctions (aircraft)o Sanctions regime – issue: trade was cut off, but what about airlifts.o Orders states not to allow planes to land or take off from their land going

to Iraq, unless certain specifications are met – humanitarian aid, supplying UN forces.

o Countries had bilateral air service agreements with Iraq via ICAO or other conventions to regulate air transport. How do the countries get out of other agreements or are they in breach.

Art. 103 – in conflict b/w SC Resolution and other international agreements – UN prevails.

What about private contracts? 103 doesn’t speak to that, but that the country has an obligation to make sure private contract is not fulfilled and private international law will deal with who pays for breach of contract.

o Can you shoot down an aircraft you know is carrying goods to Iraq? Probably not under ICAO – Chicago Convention – doesn’t UN 103

trump that? The resolution in para 7 says measures must be consistent

with IL and that would include custom not to shoot down civil aircraft.

674 – Protection of Nationals: determination of liabilityo statement about liability for lost and damaged property – is this binding on

Iraq that it has violated the treaties and is liable? Does it impose duty for Iraq to stop?

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Can SC decide damages are do – this appears to be a threat – “Demands” and “Reminds” – not decides or determines.

678 - Authorization to USE Force – p 662o No sooner than Jan 15, to implement 660 – get out of Kuwait, and all

subsequent resolution and to restore all peace and security in the area.o If you think Kuwait had a right to self –defense – has it now lost that right

b/w date of this resolution and Jan 15th? Is this saying that Kuwait and US under self defense can go after

Iraq anytime want, but not formal approval until 15th

Art. 51 – right of self defense until SC acts.

Or was it giving Iraq a time limit – one last shot to get out. – no use of force until this date.

o The resolution doesn’t say just to uphold 660 – can UN go past just kicking out Iraq of Kuwait – does it limit UN to just passed resolutions or any future ones – and what about restore peace and security in the region.

Does the wording “relevant” in 1st paragraph limit it?o What is basis in Chapter 7 for this resolution – Art. 42 – force via UN, but

this wasn’t UN deploying force. Argument that UN wasn’t set up to deputize countries to go off and

take action, but for the UN to collectively take action. Not to delegate power to nations?

As necessary – in next line can deputize troops – but when read with Art. 43 – that members are to make troops available – does this contradict that interpretation.

Or do you look at chapt 7 as a whole and say that UN can act in this manner

Or is it pure art. 51 and not chapter 7 issue.

686 – Interim Cease fireo para 4 left out of text – recognizes that during the period required for Iraq

to comply with 2 and 3 above, the provisions of para 2 of 678 shall remain valid. Is 678 a loaded gun just waiting to be picked up.

Doesn’t this seem to be saying that 678 is only valid until Iraq complies w/ para 2 and 3 of this resolution – would this end 678?

687 – Permanent Cease Fire Agreemento no precedent in terms of breadth and deptho (a) boundary delimitation – commission set up to demarcate boundary –

SC making an authoritative decision on 1963 Minutes set boundary. o (b) regime for eliminating WMD – inspections commission. o (e) payment of claims for loss, damage, or injury via compensation

commission – set up in Geneva by 15 members of SC – no liability determination that was already done, just determine damages.

o (f) maintenance of sanctions regime o (h) renunciation of terrorismo (i) requires Iraq to accept resolution.

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US / UK 2003 Theory for Use of Force Is Res 678 Reawakened Predicated on authorization that pre-existed. Is that convincing?

o Does it open up the opp in other situations to use of forceo Other resolutions typically have termination or renewal sentences – this

doesn’t have oneo 678 – until have complied with 686, which doesn’t talk about WMD

consider 2002-03 SC resolutions or members who didn’t think this argument was strong enough for action – this argument goes back to 1993 SG statement. Should later in time or most recent prevail?

Peace Keeping: The UN Emergency ForceBasis within UN Charter Not stated anywhere in charter and doesn’t fit in chapter 7 – enforcement power;

and chapter 6 –pacific settlement of disputes – doesn’t talk about deployment of forces.

SC description – based on chapter 6 ½ - Dag Hammarskjold Now pretty much understood to be allowed under Charter.

Salient Characteristics Consent – are you there only at the peril of the host nation?

o Ex. Egypt withdrawing consent to UNEF presence Impartiality

o Ex. Somalia and supplying food to one faction Civil Personnel – admin support – can only have light arms or not at all Military Forces are voluntary from State – come from non security-council

member states. Limit troops from members that might have relation to dispute Self defense only – only as last resort. Lightly armed Different Objectives

First generation peace keeping – monitoring cease fires or withdrawal of forces, buffer zone.

Second generation peace-keeping – monitoring elections in country, rebuilding infrastructure, building a democratic society – nation building.

Troops are handed over to UN control – and then reimbursed for costs by UN per year per person on rates comparable to what other states are getting paid. States do use this as moneymaking scheme.

Bilateral Agreement b/w host nation and UN before deploying troops

Status Of Forces Arrangement (SOFA) p. 720 Privileges and immunities issues – obligations on host state and peace keepers to

respect local laws and regulations Communications Freedom of movement Facilities provided by host state without cost

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Local jurisdictional issues relating to crimes – jurisdiction rests with sending state on criminal side, on civil side goes to local if ok by sending nation

UN Emergency Force Why created?

o Israel and Egyptian situation in 1955-56. Deteriorating relationship. Palestinians infiltrating Israel from Gaza. Egypt restricts shipping. 1956 Suez Crisis p. 732. French, UK, and Israel go into Sinai.

o SC asked by GA to take action – Matter raised in SC, but vetoed by France and UK asking Israel to withdrawal.

o GA adopts resolutions – 997 and 998 – demands cease fire, withdrawal, and reopening of canal – asks for peace keeping deployment. Uniting for Peace Resolution – p 212. (link up to this) – when SC doesn’t act, the GA can take steps.

o Exert from SC report in deploying force – initial discussions of what it means to deploy forces 735-737. Three concepts for approaching operation:

UNEF – picks first one – independenceo GA adopts resolution for UNEF to operate under. o Contrast UNEF I with UNEF II (1973 deployment).

Differences: UNEF I – GA authorization and UNEF II SC authorization UNEF I – not too much over-site by GA, UNEF II – SC remains

engaged in important decisions – relates to consent issue – before forces can be withdrawn SC must give its consent?

How Created? Certain expenseso Basis on which countries like FR and USSR challenged UNEF I – saying

usurption of Charter and not expenses and shouldn’t have to pay them. o ICJ – says they have to pay – Art. 17(2) – budget.

Art. 14 – subject to art. 12 GA can recommend measures for peaceful adjustment of any situation. To recommend measures (not explicitly action) – sounds like more than just resolution, more like an action and as long as at consent of host state not enforcement

Art. 12 – if SC has matter – if exercising in respect to dispute or situations assigned to it – here there was a veto, so no issue.

Doesn’t SC have primary responsibility – Art. 24(1). Not exclusive – not sole responsibility – Primary sounds like someone else must have secondary authority – SC couldn’t act, so GA can

Art. 11(2) – recommendations – peace keeping more than that – under this article at end sounds like need to refer recommendation to SC.

The Problem of Consent

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Certain Expenses - came up during deployment of force to Middle East – GA authorized deployment with consent of Egypt and Israel. France and USSR don’t want to pay – advisory opinion of ICJ –saying there is an obligation to pay expenses – and are in meaning of UN Charter.

o Art. 17 – GA’s ability to decide upon budget of UNo Art. 11(2) – recommendations – can’t anchor it there – referral to SCo Art. 14 – GA can adopt or recommend measures – which encompasses

deployment of peacekeeping forces.o Art. 12 – reference from 14 – if SC is engaged in matter GA has to stand

down. Here SC failed to act and was enough for ICJ to satisfy Art. 12o ICJ was hazy on whether this was GA adopting a decision or adopting a

recommendation. You would think for something to bind states it would be a

decision and not recommendation, yet ICJ and Charter provisions in play talk about recommending measures and it looks like recommendation – then it shouldn’t be binding. ICJ doesn’t clarify it. ICJ at end of day says GA can recommend certain measures and these are them, and having created certain expenses then can get paid via GA resolutions.

o Is this a good decision to let GA recommend measures in expenses we all have to pay? Why should we be bound by GA?

Doesn’t Art. 18 say what GA can do, and sending peace keepers isn’t one of them? Can they force states to do things?

Is this a living document – like the US Constitution – couldn’t foresee this act, it is a good thing to be advanced, and when primary organ is stopped there should be some way for other organ to act and move things forward. An ability for a court to fill in gaps and expand things a bit.

Choices are to invalidate the act and strictly interpret the constitution; or

Be creative and thoughtful – be flexibleo as long as don’t distort the authorization/document

or allow GA to act freely or arbitrarily. Is this just part of the process to let the UN evolve over time?

The Problem of Consento Dag article from 1956 when UNEF I was deployed – withdrawal would

only happen with both UN, Egypt, and Israel agreed no longer needed. He didn’t give a copy to Egypt.

o 1967 Egypt wants peace keepers out – UN is in weak position if you think of being deployed solely with consent that when consent withdrawn then have to pull out. SG didn’t consult with anyone, just informed advisory committee – he took criticism for pulling them out.

o Frank exert – bilateral agreement memorialized in memoir – once join bound by terms of arrangement when UNEF deployed.

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o Political and practical reasons for pulling troops out – once consent disappears you can make legal arguments, but troops are in a tough situation. What if countries pull own troops out w/o going through UN

o Model agreement – can write into it that there needs to be advance notice, but that doesn’t solve the situation.

ARE IOs Legitimate? Stein articleTraditional view

Governments represent states, states join IOs and most of IOs have plenary organ so all states who join are represented – and decisions by majority, 2/3, or consensus – idea is general participation by states – might even be smaller organs on which can be elected. Looks legitimate and democratic and should be comfortable with the UN

o UN – GA – everyone gets to vote. SC – smaller in scope, just like ECOSOC – get elected on rotating basis – only retrograde is five permanent members with veto. Could say this is to nod to power differentials that exist in world and without it wouldn’t get UN – but doesn’t make it not legitimate.

Modern Challenges That by internationalizing more – creating IOs, we are decreasing democracy –

creating things that are further and further away from individual voters. If accord IO powers and the president alone, example, can send off representative

to vote – 1 vote of 191 – individual vote seems to be almost negligible – looks less democratic.

Or – NGOs – who are able to participate in the process of IOs –make arguments, lobby. What’s there legitimacy – who appointed them? Are they special interests with radical agenda’s – where do they get support from? Are we really represented by NGOs? Or do they take more into account money

Correlation b/w Integration and discourse Re Legitimacy Stein – level of integration and level of discourse that challenges the legitimacy of

the organization.o High integration high levels of discourse challenging ito Low level of integration low level of discourse challenging it

Talking about integration of different states into a consolidated unit handing over power to a single unit that can create through some type of coherent system a level of power to the organization

How do we know if there is a high level of power?o Normative institution – what are the types of areas the organization can

deal with – is it a broad level of what IO can do EU – broad or WHO – narrow sector oriented. Also composition of IO’s organs and whether it can generate or

enforce ruleso Empirical social factors – cultural differences that do or don’t exist among

states coming together – if high level of coming together as cultural matter

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high level of integration. If each state has its own cultural attitude, lower integration.

o Discourse challenging integration – what is it? Challenges brought in courts, by gov’t, by academics and others

resisting.Types of Problemo Legitimacy – it will be if closely connected to citizen participation, or if

expert body running show. Less legit if controlled by a few states acting in political fashion Democracy helps confer legitimacy on system.

Free election, majority rule, basic rights, separation of power

o WHOo WTOo NAFTAo EU

For each says use different factors and see where it fits and look at discourse and say how much it is legitimate. Greater level of integration greater level of discourse.

Not surprising – more power IO has more questions raised. Ex. Iraq – people started to question if it was legit for it to do – it

was more integrated – wielding more power and use. He highlights problems with organization and why people say

illegitimate Lack of transparency – World Trade Organization closed

door nature. WTO dispute settlement panels – two governments in the room deciding what it should be is viewed as lack of transparency

Why do big states have same voting power as large state. Participation - IOs often deal with items outside scope –

trade, but then go into patents, health, and other areas not represented.

o Trade org. - Determination at administration level – and appealed to bi-national panel that might not have challenging country’s member as rep.

o EU – intrusive org into national law areas. Separation of powers, judicial review

What if state doesn’t represent people – at what point can they represent their people

Potential Reforms P 532 – supp – different measures at national level P 533 – supp - Different measures at international level

o Should measures be taken in effort to give greater voice to people in IOs that are gov’t oriented

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--------------Review – see cover of supplement.

Think in an integrated manner – apply everything – answer question (duh) – bring in all parts of course related to issue.

o Ex. certain expense case – three different parts of course.

(know generally where to look for any issue that might arise – pick up general knowledge) Always worth noting where would need to check for facts on issue – even if we don’t have it – Red Cross issue – need to look at their headquarters agreement.

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