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Lecture

POL340

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Department
Political Science
Course
POL340Y1
Professor
Studin
Semester
Fall

Description
September 21, 2011  Hedley Bull: Australian who wrote the anarchical society  What role does int’l law play in modern int’l society  Anarchical world, no central policing authority, so what keep us from taking each others lives  Hedley believed that int’l law does play a significant role: institutions play varying roles in disciplining  Other institutions include; war, diplomacy, great powers and balance of power  Int’l law are the rules that bind states and pose certain obligation to conduct of actors  Int’l law isn’t sufficient to preserve int’l order’ it may be used interventionally to advance interests, or conversely it’ll be created by great powers again to advance preferences- never irrelevant rather hyper-relevant War: the use of force b/w 2 or more states to advance certain strategic political economic end Diplomacy: the use of diplomatic force to achieve diplomatic ends Balance of force: Coalitions- keep world from going into major chaos Great Powers: USA – China:  States almost never participate in int’l affairs decision for no reason  In order to make a decision like war or signing a treaty int’l or imposing multilateral sanction these all affect different parts of the system (state)  H. Bull: int’l law is only a number of factors that influences a states decision  Constitutional Law (Canada) : its relevance in int’l and domestic municipal law  The backbone of a country-Supreme Law: Richard Gwynn –T.Star recently wrote a biography – Canada’s origins BNA Act by J.A. MacDonald (1867)  Talks in sec 91-92  Division of powers and Queen as Commander in Chief  Legislature passes law/Executive enforces law(PM and Cab)/Courts- Judiciary  On int’l affairs it says nothing – because it was controlled in affairs through Britain- Westminster  Sec 132. Imperial treaties (obsolete clause)  Charter- 1982- in concert with decisions of courts is a part of the constitution What is supreme law for international community?  Conventions/treaties/customary laws- may or may not be constitutional- unwritten- relate to decisions of courts  No legal order int’lly that covers all aspect of int’l life b/w states  States and non-state actors  Environmental violations- UN CHARTER:  Gen assembly passes resolutions not laws  Sec council when it passes resolution (in 2 ways) on procedural matter by major vote  Or by majority vote on war and peace matters not vetoed by any 5 major powers  ICJ-ICC Security Council:  Charter has an annexed document that talks about the int’l court of justice  To maintain int’l peace and security because ( it was immediately drafted post WWII) war as an instrument of international affaires  Maintaining peace and vigilant to threats  Sec.8 art.1:- enunciate sources of int’l law relevant today that are controversial  An int’l convention is a treaty-int’l agreement  If particular then b/w a small group of actors –states: if general my be b/w UN Charter  Legal applications in int’l law exist  States abide and respect int’l law and expect other states to do the same  Geneva convention and Hague have taken status of international law  ICJ has the right to make decisions only for disputes before it  Disputes from all over the world have own peculiarities- they in making the decision draw from highly publicized jurists from world  charter reaffirms the sovereignty of states within their territorial boundaries  Membership open to all peace loving states***  Art.51 – right to self defense **- permitted to go to war if decide so Readings States and Sovereignty Ch.2-4-5 Read Charter and BNA Act 1867 September 28, 2011 STATES & SOVEREIGNTY  5 institutions of domestic order in society:  Hedley refers to how to be defensive maintenance of preservation of order with some sort of justice  Int’l order mirrors to a certain  Security Council 11 members; 5 permanent; each of who yield a veto; within which they have the int’l geo political power and int’l political power  Russia, France, UK, China, US  Why do they have power to pass resolutions (including those that authorize use of force to restore int’l peace and security) exception Art. 51. Russia and US are unlikely to go to war  Allowing Balance of power to prevent war i.e. to neutralize power of other great powers  Int’l realm is order, justice & realm of strategy where states: protagonists will advance their goals and values through use of power (hard, soft)  Strategy: politics is competition for legit constitutional power within states: Policy is what governments do when in power, States: WEBER: “monopoly of order based violence”. States have a monopoly to promulgate law.  State in a legal sense: 1933 Uruguay (Montevideo Convention) signed by not all states, mostly plurality American states; it established criteria for what a state is; if not signed by all states its hard to say that it qualifies as int’l law, but the treaty puts into writing customary int’l law (it has a lot of malleability) 1. A territory (territorial disputes in Canada: native claims) , micro dispute with the US over certain areas around border 2. A population (state w/o it doesn’t exist) 3. Government that has effective authority in executive and legislative sense, 4. States must have capacity to enter into relation with other states; diplomatic affaires with other states 5. Political policy and strategic policies (5.not in stone)  Four sources of int’l law: Treaties; Customary Law; Int’l Principles (broadly recognized); Writings of eminent legal scholars; Political/policy discretion at state level  Criteria 3 and 4 gives states a lot of wiggle room to make decisions because it’s non- specific  Customary international law: ICJ panel; the defacto law that’s calcified over time as a result of states in habit of a routine  Recognition of states is necessary and significant to int’l law, it is dynamic Government:  Explicit recognition: a state comes into power and request recognition through int’l law  Implicit recognition: non recognition at every claim of government, however if you continue to do business as always consider yourself recognized  Existence of states approach: will not be recognized so long as a gov. it there, in exception we may protest and reject recognition if processes like election were unfair, leading to cancellation of business.  Vatican agreement w/Italy constitutionally, it also has special status although it is a state, yet customary int’l law applies to it  Why do most countries mostly obey Int’l Law?  Like postal regulations, int’l food regulations, in a states own interest  Can affect image, trust of other states  Koh’s arguments: because the world is not only just international anymore, transnational that is all forces and actors, MNC’s, media, bloggers, NGO’s, writers etc. that affect the transnational relations, and states begin to internalize a lot of these norms and come to obey int’l law, through assimilation not necessariy through international law  Koh: international norms overtime develop persuasive power, the reason why countries obey int’l law  A pressure to conform and the costs that come with disobeying  (Thomas Frank): States believe in the fairness in the int’l rule accepting their legitimacy overtime and therefore obey  Bull’s managerial approach: Int’l law makes the world go round  States have formal mechanism for formalizing int’l law, after implementing it into a treaty it becomes domestic  US 2/3 senate majority to have a treaty to become a law (federally) War & Peace Reading UN Charter October 5, 2011 MIGHRS- MICHAEL MORGAN  War is a continuation of (politics) by other means  War is public policy by other means (politics; a joust for power)  The word war is not used in the UN Charter  Policy is about ends and means, war is a way to advance those ends  States go to war for certain purposes; military is an instrument to advance those means  Reasons for intervention through war include (ends), economic interests, impose values like democracy, religious, political alliance  Means (military apparatus): one side is Military, other diplomacy  Diplomacy: Bull- an imperfect substitute, consists of reps of national power internationally operating in concert with military  War is also a response to injustice  Clinical view because it forms the base of UN Charter  Canadian law; going to war requires permission of the Privy Council, Crown prerogative; PM has power to declare war when he wishes, military must respond  Intelligence, why war, how to win it, PM even in minority government has the power to decide whether or not to go to war  Exec, moves faster than legislative branch: object of un charter is to decide the speed and brutality and why states go to war, and how to tame that; restore order in aftermath  Art24. In relation to first point forcing states to observe int’l law: strict prohibition of use of force  When one state is at aA.24 other member states comply  No use of force/you have the right to defend your self  Sec. Council highest decision making body in the int’l system of UN  Sec Council resolutions are not reviewable by int’l courts  Unline domestic law, laws can be deemed unconstitutional and prevent implementation  1951- sec council authorizes use of force- in virtue of mutually negating decision by west & Russia  Countries use A.24 & A.51 – key articles of violent legal order  SUnion dissolved 1991-  Ch.7 authorizes (humanitarian) intervention by UN authorized force to stop the war  Most controversial chapter: gives sec council autonomy to determine use of force against a state to realize its decisions  War is to be tamed and brought within the legal order, by first making it illegal in int’l law (customary) because you need to defend yourself  Use ad bellum – the law leading up to war vs. use in bellum  Legal and strategic decision making that involves going to and deploying forces  Global armed conflict vs. the threat of use of armed conflict  A.2(4)- territorial integrity: ability to control territory through government in its totality  A.51- any action if declared in self-defense can be presumably in concert with A.51- loophole  Conflicts: Gulf War (CH7 intervention), Balkan Wars (Yugoslavia), Rwanda 1994, Kosovo intervention in memory of Rwandan failure  Why/why no intervention?  CH.8-  Interstate use of armed force 4/51 aimed at interstate war  Domestic is not to concern int’l players – in trying to maintain international order  CH7 restore civilized order intra state (libya)  How to stop bloody conflict w/o creating more of it  October 12, 2011  20 century brought warfare to all continents except North America  21 century may be more difficult, like due to land warfare  Post 1945 legal framework is premised on the idea that great powers/states should not go to war when avoidable (ad bellum), because they haven’t on a long term  Unpredictable asymmetrical warfare and drone attack and other unanticipated forms of violence may mean warfare can return  Is it the job of int’l law to anticipate or reflect what is possibly coming in the world in the future  UN Charter that is utopian is now bound to have zero effect on int’l behavior  Int’l law working alongside int’l practice to maintain growth and mould m  ILC – can only have relevance when the world moves forward  Al-Awlaki (American) drone attack in Yemen- by Washington Post: justified the killing to president from dept. of justice, leaving out exactly what the legal justification was  Legal advisors are more in numbers and sophistication to someone like president  This evolution in int’l warfare using advanced weapons to kill even their own citizens out of the country  Advance states go to war not for reasons of hate, rather to advance ends of which military is a means  Awlaki case: justifying arguments at int’l law: Art.51 UNCH, notwithstanding UNC domestic law trumps, could be diplomatic reason, legally it makes a case of assassinating a citizen internationally w/drone,  Can it be done without judicial findings, due process? use ad bellum: the conditions under which it is legal to go to war?; In bello, how to go to war once is has begun nwst. Who goes to war; can you kill someone who is unarmed? Civilian/not with an army?  Alleged Saudi diplomat assassination attempt plot of Iran: Iran can use Art.51 to say SA was planning some preempting attack  Legal advisors find legal bases for action, without legal basis there can be sanctions imposed  Canadian Constitution: decision to o to war is PMs, sec.9/sec.15 the command in chief of the land is the military who are given direction by PM,  In Canadian law what prevents PM from going to armed war? Pm and cabinet must always command confidence of the house of commons, thus, losing confidence is a political sanction. PM could be ousted as party leader,  Canada has assimilated int’l law into domestic law, e.g. treaties, charter, Rome statute- ICC  Sec.51:logic in launching warfare in int’l e.g. State A declares war on state B and begins an attack then state B has to retaliate proportionately, unquestionably  Proportionality relates to adequate armed response to eliminate threat, not beyond or supplementary or peripheral thereto  Temporal argument 51: preemptive posture of defense, the other argument: the defense continues well after the initial attack has occurred  Many countries defend themselves and advance other interests at the same time e.g. appropriating advances  By this they are sending a message to the entire region, not only attacking  What is the threshold for armed attack? It should have an equal affect of that of the other state  Under 51 States cannot declare war if its citizens are being threatened abroad  increased interdependence, and expansion of civilization- expansion and proliferation of international institution have made the world relatively peaceful and capable of unprecedented and chaotic destruction at both individual and int’l level, not only through nuclear weapons but other psychological and social. Paradox: democratizing the weapons and force, to diminish and tame the military instrument and the penchant for war you have to have a mechanism to enforce the order, policing function is weak, intelligence function is absent  UNC: Art.39, 40- CHVI: Sec. Council can recommend all sorts of measure including sanction, it may take air, land, sea measures to resolve and restore peace and stability  Sec council assumes monopoly on int’l action to enforce int’l order which is at the core of its purpose  Post 1945: only once was sec council involved in enforcing resolution i.e. in Korean war  Law abiding nation 1953-99 could not have remained stationary: 1956:Suez Crisis (Nasr-followed by saadat-mubarak): nasir nationalized Suez canal which was British property- France, UK, and Israel intervened to re-appropriate the canal  Pearson used peacekeeping as a substitute for CHVI. Innovation to deal with interstate conflict-  Which led to Canadians mythologizing the idea of peacekeeping  UN Charter is silent on war and peacekeeping  CHVI led to: Intrastate understanding of peacekeeping followed post cold war  15 former soviet states crumbled into interstate war, African empires followed  peacekeeping exploded in the period of the first Iraq war  PK to discipline international players, as assessed by sec. council- civil wars and intrastate warfare  R2P and civil wars,  International humanitarian law post WWII took on a new state  If UNCHARTER was premised on the premise of stopping states from going to war and killing each other  Int’l law cannot be silent on the conduct of the war, and what is and isn’t sacred when a war is in play  Use in bello: history of societies and civilizations caring about how to go to war, how to rivals will fight an honorable battle  Use in bellum law before war; use in bello, how to act in war nwst, who the parties are  Why to fight if I didn’t start the war, why fight honorably? How do we know who is defending and who is attacking ? acting in self defense  4 Geneva protocols non use of poison in war,  hague conventions of Hague  at odds with good strategy: October 19, 2011  key moments in history, concepts, charter, conventions Humanitarian intervention and mitigating factors CASE: Kiev, Ukraine (Babiyar) greatest massacre of the second world war. 35000 people  Ought to do vs. what can actually be done legally  What precedence does intervention set: global effect-perpetrators may refuse intervention-sending forces in may create a greater number of casualties that may have worse affect-who can intervene and how with whom? Can we afford to, and why should we- multilateral engagement and who is involved? What’s the trade off and how many casualties justifies intervention, what goals are you going in for, how long will the stay be, is a threat sufficient to intervene, type of intervention, what if you have economic ties with the country- if sanctioned the degree of inervention can have a serious impact on economy of the state  Many complication, strategic, diplomatic, economic  Intervention is to be Legal under chapter 7  Canadian charter is a part of the constitution, built on the ideas post WWII, premised on the rights, dignities. Individuals have rights vis-à-vis the state  Constitutional inclusion of the charter of rights and freedoms was unheard in commonwealth countries particularly  Charter can be invoke in relation to the states  Freedoms in Charter – right as are described and can be proscribed as stated by the charter Khadr Case:  Involved in a firefight with US forces, killed n and to date is in Guantanamo  Interviewed by American and Canadian Intelligence  CSIS is not an equivalent of CIA  We only have security intelligence in our structure; domestic security agency-CSIS may provide intelligence functions overseas to the extent that a threat touches Canada  Peculiarity; CSIS interrogated hi w/ permission of US and shared the details of the interrogation with the Americans  He was being held under v difficult conditions  How to address his rights being violated  Minimal jurisprudence related to charter and international affairs  About you and your state not others  Except in cases with Khadr, but war related sided with the state and charter  Courts deicide not to try even  Over time there has been succession to judicial action when the case incorporates charter violation  Does the interviewee have charter rights when on US soil and interviewed by CSIS  Courts agree in lieu of sec.7 life and security were breached  Khadr 2008: 2009 federal court of appeal decision: Canadians breached Khadr’s charter rights sec.7, by releasing details to US for repatriation. Remedy rights breached where remedy “ is a vague term.  Detainees as not having protection because they were non -combatants, was very problematic. US held they had been illegally been denied access to procedural rights at common law and the procedure they weld held by violate Geneva Convention  Another case: Hamdan vs. Rumsfeld: the detention was illegal under American law and Geneva conventions.  Claims: POW conventions applying to Khadr; when CSIS acting abroad on behalf of Canadians acted illegally based on sec7 of Charter and where POW conventions also applied to him and he was not giving protection of the Geneva convention  Revolutionary because charter has extra-territorial application  Charter is applied when an int’l convention is breached that triggers charter right violation  This results in a union b/w international law and Canadian constitutional law  Cannot still dictate another state what action to take although his constitutional rights were breached Case of John Rawls:  His writing interested in int’l political world what he alls a realistic utopia in which there are laws hoping to achieve a liberal democratic states  A Kantian belief: perpetual peace- expansion of int’l law, int’l institutions, democracies, wealth, communication together have conspired to make the world more peaceful  Democracies don’t go to war with one another-democratic peace theory October 26, 2011 ESSAYS: Define it through a comprehensive thesis, tie your position to mobilize a persuasive thesis.  Analyzing Ghaddafi’s death: Questions at international law What rights did he have? Rights to legal council – fair trial  In non-legal manner: did he have POW status; legal protection under the Geneva Convention section 4 in particular  Arrest warrant issued at the Hague against 4 people on the basis of crimes against humanity  Issues w.r.t jurisdiction of ICC; how would he have been tried given that Libya was not a signatory to the ICC  Non-legal considerations: basic standing of international council, at international affairs What do the bombing say about NATO’s allies who participated in the attacks, are they compromised  R2P Conference 2011 Montreal  R2p has no standing at int’l law:  Libyan intervention prime case of this era  Does mass media have a role in preventing mass atrocities or genocide?  The media is an instrument o warn, inform and alert communities to what is going on in other countries, yet media may also be an instrument of a political party in conflict, therefore advancing a particular interest  E.g. Rwandan radio during Hutu regime and used to mobilize the genocide  Social Media; provides the analytical thrust, where the reaction is from cultural receptacles  International affairs lacks in culture, so media and other gov’t or non-gov’t players causes reaction in cultured areas, through instincts of masses  R2P will flourish in a culture of foreign affairs; Canada doesn’t  Why are we ought to have it? How do you motivate the country to do things of consequence outside our borders  How do we buid steps to be able to conduct interventions supreme manner    Factors: domestic gravity, costs of war, refugees, global image, in our interest  We as a country level have a personal level to intervene  Where intervention is not necessarily military, diplomacy, incentive based diplomacy, threat of intervention, sanctions etc.  How o build blocks for extra-cultural excellence  jus soli does not apply in some countries in as in Italy; Jus sanguini does apply  Most of the world applies use soli, why ?  A federal power under sec.91 in Canada  In competence of Sovereign authority what are states trying to guard?  In hopes that none becomes stateless  If nationality is a domestic affair then what is the interest of the nationality of question outside the border; meaningful link with Canada  Gilad Shalid, Zahra Kazemi  Diplomatic protection: an effective line b/w the State and citizens whether within and without  When there is a clash in claims then who has the duty and obligation to or to no protection  w/in state the constitution is supreme, everyone outside the state the state provides diplomatic protection Khadr & cases w.r.t rights and freedoms extraterritorial  with Khadr: how does jurisdiction extraterrestrial through constitution conflict with jurisdiction of foreign territory  what is the nature of protection afforded to Canadians abroad? Diplomatic? Constitutional?  In Supreme court of Canada jurisdiction Q is there a breach of Canadian officials in conduct abroad? If yes, then it does apply  In Zahra Kazemi’s case Iran didn’t recognize her renunciation of the nationality  You can be a national and not a citizen, but when there is a conflict b/w two states to whom the individual belongs, he/she may not enjoy the rights under national states  Do criminal in foreign land enjoy legal rights of state  RCMP executed, does the charter apply in extra-territory; only when conduct is of a Canadian official and the foreign state gives consent of ascent to the application of charter on foreign soil (comty)  Post Islamic revolution in Iran, a claims commission was established b/w Jimmy Carter and then Iran president  What are expropriation claims, diplomatic claims?  Nationality vs. citizenship: Nationality more global the later more narrow being a function of laws of state, where only nationality is relevant at int’l law  Citizenship Act & in part by Immigration and Refugee Act  Permanent Residents also profit from the Nationality provisions  Statelessness: why is it in the interest of states to not have the status: refugee status, who is responsible for their actions   November 2, 2011 Law of State Succession/R2P Is state succession an area of the law that can and will be codified in Internation law What is a State?  Treaty/ Geneva Convention defines legal definition of a state qualifying 4 criteria  2 theories-  3 legal instrument 1. 1933 Montevideo Convention  Art3. Definition of state  Constitutive theory: states have to be recognized by other actors  Formation: UN has no authority to provide recognition to a state  2-tiers to for membership- a formal application stating acceptance … Why is State succession important: 
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