Political Science 102: Introduction to Political Science

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XII. International Law
A. Foundations
1. Roots in W. Europe Rome. a. Rome was an
empire-- two systems 1. jus civile (for Roman
citizens) administered by Praetor urbanus (city
manager) 2. jus gentium ("law of peoples" among
citizens foreigners) administered by Praetor
Peregrinus. b. Romans conquered lands barbaric
(jus civile is useless). Praetor Peregrinus
sent out to find similarity among cultural
legal principles.
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XII. International Law
A. Foundations
2. Islamic tradition
a. dar al Islam IL between Islamic states
b. dar al harb IL between Islamic non-Islamic
states
3. Suzerain-vassal treaty (2000 B. C.) Contract
between lord peasants. Rights obligations.
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XII. International Law
B. Natural law An external set of universal
principles that govern behavior, which transcend
time context.
1. 3rd Century Greek Stoics reason sets us apart
from animals
2. Hinduism (dharmastrasas) rely on conscience
for answers.
3. Other critical concepts a. Reparations duty
to pay injured party (obligation to repair the
relationship). b. pacta sunt servanda promises
must be kept
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XII. International Law
C. IL is positivistic IL is what we make of it
1. Independence states cannot be bound to laws
to which they cannot consent
2. based on what state says it will do through
treaty (black letter) behavior
3. Jus inter gentes as jus gentium evolved,
natural law was considered to go beyond the state.
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XII. International Law
D. Is IL law? Yes, but why ignored?
1. IL lacks the 5 Cs
a. Congress
b. Code
c. Court
d. Cop
e. Clink
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XII. International Law
D. Is IL law? Yes, but why ignored?
1. IL lacks the 5 Cs
2. IL cant be domestic law no subordinates
agreement among equals
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XII. International Law
D. Is IL law? Yes, but why ignored?
1. IL lacks the 5 Cs
2. IL cant domestic law no subordinates
agreement among equals
3. Santa Claus Syndrome - wont become what we
want
4. descriptive vs. prescriptive law
5. Law is an expectation of behavior if everyone
behaves, then why have laws?
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XII. International Law
E. Sources of IL
1. Primary sources
a. conventions or treaties (positivist)
b. custom (long-standing)
c. general principles of civilized nations
2. Secondary sources
a. Judicial decisions stare decisis
b. IL experts teachers interpret, not create
3. ex aequo et bono - basis of justice fairness
(toss out traditional IL court decides)
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XII. International Law
E. Sources of IL
4. Custom becomes law
a. opinio juris act a certain way b/c believe it
to be a law.
b. wide-spread representative state particip.
c. If you dont accept law, must annually provide
written statements affirming so.
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XII. International Law
E. Sources of IL
5. Treatiesa written physical manifestation of
a statement of a states willingness to be bound
in an issue area
a. When treaty says X but acts Y 1. The more
specific of the two will prevail (lex specialis
derogat generali). 2. If you can't tell which
is more specific then we look _at_ which came later
in time.
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XII. International Law
E. Sources of IL
5. Treatiesa written physical manifestation of
a statement of a states willingness to be bound
in an issue area
b. Getting out of a treaty
1. Error 2. Fraud 3. Coercion 4. Jus cogens Very
small set of peremptory norms from which no
deviation is ever permitted (genocide, torture,
slavery, etc.)
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
1. Prescriptive principles
a. Territorial principle of prescriptive
jurisdiction do what you want within your own
borders (just dont violate jus cogens!!)
b. objective territorial activity outside the
state has impact within the state -- requires
clear, physical effects. U.S. uses most.
c. subjective territorial starts in another
state but ends in your state
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
1. Prescriptive principles
d. protective principle can prescribe laws
against action that can threaten govt operation
(must be recognized as a crime internationally)
e. nationality principle state has rights over
its own citizens
f. passive personality state asserts
jurisdiction based on victims involved
(English-speaking countries France ignore,
except in terrorism)
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
1. Prescriptive principles
g. universality principle all states have
jurisdiction in violations of jus cogens
h. by agreement U.S. Cuba -- GITMO
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
2. Enforcement jurisdiction right to enforce
principles -- need to have valid PJ to execute EJ
a. territorial right to enforce within own
borders requires permission outisde borders.
b. universality VERY narrow requires PJ of
universality individual must be beyond
jurisdiction of another state
c. by treaty
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
3. What happens when two states have jurisdiction?
a. interest balancing Ex Al Queda (UK vs. US)
b. comity politeness
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XII. International Law
F. Principles of Jurisdiction ability to affect
legal interests over people, events, property,
goods, technology.
4. How do we take action?
a. Retortion act that is punitive but legal ex
economic sanctions or cutting off diplomatic
relations
b. Reprisal must be proceeded by demand for
redress.
c. Retorsions reprisals are only a peacetime
measure. If nations declare war then RR does
not apply.
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Osama bin Laden as an example of PJ 1.
territorial gives US "absolute and exclusive
authority" to make laws over its territory, but
since Osama was not thought to be on US territory
at the time of the attacks (could have been
applied to any surviving hijacker b/c they were
on US territory _at_ time of the attacks). No
case. 2. Objective Territorial Gives US
authority to invoke jurisdiction on the basis of
activity outside the state, but having or
intended to have substantial effect w/in the
state. IF Osama directed the terrorist
conspiracy from Afghani soil that resulted in the
destruction of the 2 WT towers, part of the
Pentagon, 4 airplanes 4,000 people, the US can
claim this basis of jurisdiction on the basis
that the state making the claim can show "clear
physical effects". International community
widely supports the application of this principle
when the Jennings standard applies, if intent can
be "demonstrated by some activity" and the effect
produced is "substantial and foreseeable". Yes, a
case.
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Osama bin Laden as an example of PJ 3.
Subjective Territorial Gives a state
jurisdiction if an action begins in its territory
even if it is consummated abroad. Since the
action does not appear to have begun in the US
finished abroad No Case. 4. Protective state
may prescribe laws outside its territory when
this behavior threatens state security or the
integrity or integrity of government operations,
provided that the crime is generally regarded as
a crime internationally. US can apply its law if
we can show "obvious potential effects" of his
actions threatened US state security. We can
link Pentagon Osama, it can demonstrate
jurisdiction. Yes, a case. 5. Nationality Only
if the accused is a national of the state
asserting jurisdiction. Osama is not an American
citizen. No Case.
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Osama bin Laden as an example of PJ 6. Passive
Personality can apply law to acts committed
outside territory by a person not its national
where the VICTIM of the act is a national. Most
English-speaking countries France reject this
principle, but US accepts in cases of terrorism.
YES Not all states accept it. 7. Universality
allows states to assert jurisdiction over "de
licta juris gentium" (crimes against family of
nations). Yes (note all states which have not
rejected this principle can assert
jurisdiction). 8. By agreement NO b/c no
agreement w/ Afghanistan. No Case.
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Osama bin Laden as an example of PJ RESULT US
may assert one of four bases of prescriptive
jurisdiction objective territorial, protective,
passive personality or Universality. NEXT STEP
Enforcement 1. Territorial right to enforce laws
w/in its own territory. And you can't enforce it
outside your borders. NO b/c Osama is not w/in
our borders. If we go into Afghanistan we
violate UN Charter - Article 2(4). 2.
Universality 1) Must assert universality in
prescriptive jurisdiction AND 2) individual in
question is beyond jurisdiction of any state.
No- he is in another state's jurisdiction. 3. By
Agreement No, b/c Taliban did not agree to let
us in.
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Osama bin Laden as an example of PJ RESULT NO
ground for US enforcement jurisdiction. But we
can become involved in retorsions (through
freezing assets. Retorsions are not physical
acts. Reprisals must be proceeded by demand for
redress. Retorsions reprisals are only a
peacetime measure. If nations declare war then
RR does not apply.
Our war in Afghanistan is ILLEGAL!!
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XII. International Law
G. Diplomatic Immunity.
1. One of oldest forms of IL
2. Protects diplomats each state defines own
diplomats with bona fides
3. Vienna Conv. on Diplomatic Relations (1961)
a. Embassies are inviolable (without permission)
b. Residences, docs pouch are inviolable
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XII. International Law
G. Diplomatic Immunity.
3. Vienna Conv. on Diplomatic Relations (1961)
c. Diplomats are inviolable (not subject to
arrest)
1. Verify credentials detain until verified only
2. If diplomat poses public threat, may detain
until threat removed protect their dignity.
d. No liability in civil actions unless outside
of duties (rare) sending state can waive this.
e. blank
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XII. International Law
G. Diplomatic Immunity.
3. Vienna Conv. on Diplomatic Relations (1961)
f. Family is inviolable (until 21 23 if in
college)
g. Embassy shall not be used inconsistent w/ IL.
h. Immunity can be waived by sending state
i. persona non grata host declares visitor
unwelcome rare b/c is often reciprocal
j. Some staff (clerks, etc.) have limited
immunity only acts performed in official duty
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XII. International Law
H. Extradition formal process of retrieving an
accused or convicted criminal from another state.
1. Often reciprocal by agreement
2. Usually smooth w/ conditions (death penalty)
3. If denied
a. Host country must prosecute if in treaty
b. If no treaty, requesting state has no recourse
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XII. International Law
H. Extradition formal process of retrieving an
accused or convicted criminal from another state.
3. If denied
a. Host country must prosecute if in treaty
b. If no treaty, requesting state has no recourse
c. Getting around this
1. Adolf Eichmann Israel tracked volunteers
kidnapped returned him
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XII. International Law
H. Extradition formal process of retrieving an
accused or convicted criminal from another state.
3. If denied
c. Getting around this
2. U.S. Ker-Frisbee Doctrine
a. Ker Frisbee cases Both Fled U.S. and we
brought back U.S. Sup Ct. said issue is not how
he got here can prosecute anyway (male captus,
bene detentus)
b. Exceptions brutality OR kidnappers are public
agents
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XII. International Law
I. Law of the Seas, Air Space
1. LoS Oldest body of IL
2. Hugo Grotius seas should be open to the world
3. U.N. Convention on Seas (Jamaica, 1973-1982)
a. State has ownership of 12 nautical miles
b. If landlocked, have right of innocent passage
c. EEZ 200 miles (may exploit, but dont own)
must provide stewardship responsibility for
waters.
d. High seas everything beyond is wide-open
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XII. International Law
I. Law of the Seas, Air Space
4. Air space
a. Vertical craft must have visible markings
b. Debate over airspace vs. outerspace
1. 1963 Tokyo Convention crime outside of
airspace is intl jurisdiction
2. 1970 Hague Convention outlawed hi-jacking
states must prosecute or extradite
3. 1967 Outer Space Treaty States retain
jurisdiction over objects they launch
(prescriptive enforcement jurisdiction
responsibility). No WMDs or bombs.