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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20190415202143chpt_15_enforcement.pptxEnforcement
Chpt 15 Cassese
15.1 Traditional Law
Under the traditional law system, what was enforcement of IL like? Was there centralized authority etc?
No central authority
Self-help system….aggrieved State must take matters into their own hands and decide how they wish to enforce breaches of IL
“even when a State resorted to armed force in order to react to a wrongful behavior by another state, no prior exhaustion of peaceful remedies was requested; much less was the State required to wait for a third party to pronounce on whether international law had actually been broken.”
Traditional law has not entirely been superseded
15.1.2 Traditional Law
Traditionally, what types of enforcement measure are available to aggrieved States?
Forcible Intervention
Reprisals
War
15.1.3 Forcible Intervention
How is forcible intervention defined?
Threat or use of force used to compel another State to do something in the interest of the intervening State
What types of forms can forcible intervention take?
Military occupation, naval demonstrations, naval blockade, embargo (seizure of ships belonging to other State or its nationals), armed intervention
15.1.3 Forcible Intervention
Describe with Caroline incident
US aiding Canadian Rebels against Britain
US used Caroline (ship) to take supplies and soldiers from US to Canada
Britain attacked Caroline, killed shipmates, set on fire and sent towards Niagra Falls
What excuse did Britain give for their attack?
Britain had violated US sovereignty due to their fundamental right of ‘self-defense and self-preservation’
15.1.3 Forcible Intervention
As a result US Secretary of State Daniel Webster 1837 had this to say about preemptive attack?
argued preemptive attack is justified only in circumstances that are “instant, overwhelming, leaving no choice of means and moment for deliberation. Preemptive War has legal sanction…Preventative War has none…preventative war is indistinguishable from aggression.”
15.1.4 Reprisals
What is a reprisal?
Acts or actions which are violations of IL, but because they are a reaction to a delinquent State they become lawful
Used to impel the delinquent State to stop the wrongdoing, or to punish (or both)
Can be peaceful or through military
15.1.4 Reprisals
Can you describe the Naulilaa case?
2 German officers killed in Angola by Portuguese….Germany retaliated by authorizing German troops to destroy Portuguese posts and kill their soldiers in Angola
What was the question at the heart of this case?
Was Germany’s reprisal legal?
15.1.4 Reprisals
What did the Special Arbitral Tribunal determine as guidelines for proper reprisals?
1) Comprise acts that would normally be illegal, but are lawful bc they are responses to international delinquency
2) must be limited by considerations of humanity
3) must not be excessive
4) they must be preceded by a request for peaceful settlement
5) must attempt to demand reparation, and avoid new offenses….not escalate tensions
Were the German reprisals proper or unjust?
Unjust
Why, they violate number 3, 4, 5
15.1.5 War
Until 1919 States could engage in War whenever they considered fitting
Pursue National Interest
Reaction to IL wrong
*States cloaked interest in IL wrong
League of Nations 1919
Kellogg-Brand Pact 1928
Customary law against aggression started to develop
15.2 New Trends following the first World War
How is this different in the modern period?
Article 2.4 of UN Charter—against threat or use of force, required to handle disputes peacefully
Can only use force in exceptional circumstances
Self-defense of State or nationals abroad
15.3 Enforcement of International Rules in Modern International Law
Because of the ban on force, what is the predominant enforcement measure used by States?
Reprisals
Presently, because force is banned, we often call reprisals countermeasures
15.3.1 Countermeasures
What conditions must be met for the use of countermeasures?
1) Injured state cannot use countermeasures immediately following wrongdoing, must first request wrongdoing to cease and request reparations
2) IF the wrongdoing does not end, or reparations are not paid, then the injured State must endeavor to make negotiations
Peaceful settlement of disputes
***NOT until all this is tried in good faith can countermeasures be taken
15.3.1 Countermeasures
What are some limitations on the use of countermeasures?
1) State have duty to refrain from threat or use of force
2) countermeasures cannot disregard IL on human rights; consequences cannot befall all the innocent people
3) CM may not disregard norms of jus cogens
4) CM cannot breach rights of third party States
Is the US Helms Burton Act 1996 a legal countermeasure?
5) CM must be in proportion to wrong
15.3.1 Countermeasures
What about in cases of aggravated responsibility? What kind of countermeasures are usually taken in these cases?
economic sanctions
15.3.2 Can national courts enforce international rules?
Can national courts enforce international rules? By a) denying legal domestic recognition to acts performed by foreign States contrary to IL, or b) in the event of a breach of IL the y make decisions on behalf of their nationals?
Depends
Conflict: sovereign equality of States and respect of IL—additionally court procedures may endager peace
15.4 Retortion
What is retortion?
Retaliatory act by which a State responds, by an unfriendly act NOT amounting to a violation of IL
Retortion: should be proportionate; must end when the unfair or unfriendly act ceases
Examples?
breaking off of diplomatic relations; non-recognition of acts of law-breaking States; withholding economic assistance; discontinuance or reduction of trade or investments; curtail of migration from the offending State; heaving duties on goods from offending State; require visas for entry etc
15.5.1-2 Collective Enforcement (sanctions properly so called)
How is collective enforcement used?
By international organizations for gross breaches of IL
Sanctions often prescribed/authorized/ordered
Problem?
Often hurt vulnerable populations
