International law take home exam, The exam is attached, all the instructions are attached below you just have to key word the questions, If u take anything from the slides make sure you add the chapter and slide number, also there is 4 short questions at
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20190415202017chpt_14_promoting_compliance.pptxPromoting Compliance with Law and Preventing or Settling Disputes
Chpt 14 Cassese
14.1 Introduction
In domestic municipal legal systems there are:
Rules establishing the authority of courts of law to adjudicate disputes (give jurisdiction)
B/c of these rules a person can be brought to trial unwillingly
Dichotomy b/w civil and criminal law
Most criminal offenses can be submitted to a court by a prosecutor or enforcement officer
Decisions are enforced by the State
Laws, Police, Courts, Jails
consequences/punishment for breaking the laws
How does international law compare?
IL is rudimentary, lacking in almost all of these areas
14.2 Traditional Mechanisms for Promoting Agreement b/w Disputants
What is the most elementary method for settling disputes?
Negotiation
Can you describe what a negotiation entails?
B/w two parties (victim and responsible State)
No outside pressure/3rd party
No loser or winner, both sides should gain from diplomatic exchange
14.2 Traditional Mechanisms for Promoting Agreement b/w Disputants
What are some drawbacks to using negotiations as a traditional way to handle disputes?
1) Negotiations seldom lead to an in-depth determination of facts
2) Stronger party likely to apply pressure on other/ not necessarily fair
14.2 Traditional Mechanisms for Promoting Agreement b/w Disputants
What if the 2 parties decide not to negotiate, traditionally what are other methods they can use to handle a dispute?
Inquiry
Good offices
Mediation
Conciliation
14.2 Traditional Mechanisms for Promoting Agreement b/w Disputants
Can you describe each method?
Inquiry
Hague Convention for the Peaceful Settlement of Disputes 1899
Contending parties agree to set up an international body of independent/impartial individuals for the limited purpose of ‘elucidating the facts’ in dispute
Contestants decide if the findings are legally binding on them
14.2 Traditional Mechanisms for Promoting Agreement b/w Disputants
What if the 2 parties decide not to negotiate, traditionally what are other methods they can use to handle a dispute?
Good offices
3rd State or IO is asked or offers to induce contending parties to negotiate a settlement
Mediation
3rd party takes a more active role in settling the dispute, participating in negotiations
Conciliation
3rd party takes an even more active role, considers factual elements of case and proposes terms for a settlement
14.3 Traditional Mechanisms for Settling Disputes by a Binding Decision
Courts and Arbitration in traditional IL are consent based—what does this mean?
States have to consent to arbitration
Modern Era:
Nothing compels/forces a state to abide by the courts unless they have consented through treaty to be bound by the court
If a state voluntarily participates, on an ad hoc basis, their participation indicates their willingness to abide by the decision of the court
14.4 The New Law: An Overview
When does the new law period begin?
Post WWII
Why?
B/c states want to prevent future wars, find ways to settle disputes peacefully
14.4 The New Law: An Overview
What are distinguishing traits of the modern IL period?
1) with UN Charter ban on force, comes obligation to settle disputes peacefully
Article 2.3 of UN Charter
1970 UN Declaration on Friendly Relations
2) more permanent bodies for settling disputes
UN SC or GA
3) new mechanisms developed to monitor compliance
both with settlements and with laws
To prevent violations by deterring illegal acts
Issues of peace—UN Peacekeepers
14.6 Resort to Traditional Means
What has happened in the modern era as of a result on the ban of the use of force and obligation to settle disputes peacefully?
States have returned to use of traditional law to settle disputes
Examples?
Inquiry or fact-finding increasingly used
Used by IOs and UN
Mediation
3rd Party
Arbitration and adjudication
After end of Cold War—bc independent/impartiality of 3rd party can be obtained
Proliferation of permanent or semi-permanent international courts and tribunals (ICJ, ICC etc)
The International Legal System continued…
Adjudication of the Law
How the system resolves disputes b/w actors
International Courts
International Court of Justice (aka World Court)
Permanent Court of Arbitrationlink
International Criminal Court (ICC)
European Court of Justice (ECJ)
UN Special Tribunals
International Criminal Tribunal for the former Yugoslavia (ICTY)
International Criminal Tribunal for Rwanda (ICTR)
International Court of Justice (ICJ)
International Court of Justice (ICJ)
ICJ-The Hague, Netherlands
15 Judges elected to 9yr terms
States submit legal disputes to the ICJ and agencies of the UN can ask the ICJ for an advisory opinion.
1946-2005—averaged 2 cases per year
Problem: nothing compels states to attend or abide by ICJ decisions
Optional Clause—whether and under what conditions states would be subject to ICJ jurisdiction
http://www.icj-cij.org/information/index.php?p1=7&p2=2
http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3
14.7.1 Strengthening and Institutionalization of Traditional Means
What is compulsory conciliation or adjudication?
UN Charter--States must handle disputes peacefully…which means through conciliation or adjudication
What is conciliation?
3rd Party takes active role in settling disputes…finds facts, suggests settlement
Are the proposals binding on States?
NO
14.7.2 The Increasing Dispute-Settlement Role of UN Organs
How does the UN SC or GA help to settle disputes?
Call States to explain their position
Try to narrow differences b/w States
Provide space for States to meet
Recommend equitable solution
Any party to a dispute or 3rd party can bring situation or dispute to GA or CS
In particular what areas do the UNSC have an important role?
Disputes that threaten peace or have become violent
14.8 The Establishment of More Flexible Mechanisms for Either Preventing or Settling Disputes 14.8.1 Quasi-judicial compulsory settlement of trade disputes
Example of the WTO link
What is the WTO? link
The World Trade Organization
How do they handle trade disputes?
14.8 The Establishment of More Flexible Mechanisms for Either Preventing or Settling Disputes
How does the WTO handle trade disputes?
1) Each contracting State must notify the WTO of trade measures, consultation…use good offices or conciliation to come to acceptable settlement
2) if NO conciliation is made, then a State can submit a formal complaint
3) Complaint to panel of experts on trade
4) Panel hears submissions on complaint
5) Panel’s decision is adopted
6) Appellate Body
7) Appellate reports are adopted
8) Monitoring Compliance
9) Arbitration
*whole process is a mixture of conciliation, negotiation, and adjudication
14.8.2 International Supervision Pg 293
How does supervision act to support international law and peace?
It is different than adjudication, and its main goal is to deter breaches of law as a monitoring agent
At present what are the fields in which supervision of IL is most widespread?
A) International labor conventions
B) treaties and other int. standards on human rights
C) peaceful use of atomic energy (IAEA)
D) Antarctic and outer space
F) International economic law
G) International and internal armed conflict
14.8.2 International Supervision
How is supervision done?
1) Examination of periodic reports
2) Inspections
3) Contentious procedure, or examination of alleged misdeeds
4) ‘preventative’ supervision—mostly in areas of peaceful atomic energy and the environment
