Cases.docx

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Department
Political Science
Course Code
POL340Y1
Professor
Gerard J Kennedy

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Cases How to approach a case in general  Know the facts  Merit facts: fact of the dispute  Procedural facts: how did the case get to the court;  Issues: what does the court really have to decide  Holding  Reasons (binding – not ICJ)  Obiter dictum (“said in passing”) – not essential to the reasons, but said anyways, not binding, but highly persuasive The Palestinian Wall Case (Sources of International Law)  pp.240 + Printed excerpt  Relevant sources: The UN Charter Article 10, 12, 14, 24  The GA passed a resolution to ask ICJ a question  The interested parties state that the General Assembly acted ultra vires by requesting an advisory opinion on the legal consequences of Israel constructing the wall in the Occupied Palestinian territory  What would happen if the GA did something when they were supposed to do nothing? – ICJ cannot answer the question – it is important for actors in international laws to act within their authority. If the GA asked the question that is not in their authority, ICJ would act inappropriately by answering.  Solution: answer in para.27-28 on the book (pp.240); SC and GA are acting in parallel;  Article 10: the Assembly and discuss and make recommendation  Article 12: Article 10, except for when the Security Council is dealing with the same issue;  Article 14: Except for Article 12, the Assembly may recommend measures for the peaceful adjustment of any situation…  Article 24: the Security Council has the “primary responsibility for the maintenance of international peace and security.”  The above is a pure jurisdiction question – whether the GA has the jurisdiction to ask or not;  The ICJ portion is more of a judicial propriety – is it appropriate for the court to answer the question;  Five arguments for asking/answer the question  (46) Lack jurisdiction. ICJ should not answer this question because of the lack of consent to the Court’s contentious jurisdiction by interested States. No ground. This is an advisory opinion not a party-to-party dispute; the opinion is not for the states, it’s for organs within the UN.  (51) An advisory opinion from the Court on the legality of the wall and the legal consequences of its construction could impede a political, negotiated solution of the Israeli-Palestinian conflict. Participants in the proceedings have differing views on this thus it could be regarded as a compelling reason to decline to answer the question  (55) The Court does not have at its disposal the requisite facts and evidence to enable it to reach its conclusions. The Court says it has enough information.  (59) Such opinion lacks useful purposes. It’s not for the ICJ to decide whether an opinion will be useful – it’s the GA’s right to decide that.  (63) Good faith and “Clean hands”; Palestine, given its responsibility for acts of violence against Israel and its population which the wall is aimed at addressing, cannot seek from the Court a remedy for a situation resulting from its own wrongdoing. Same as above, it’s not something for the ICJ to decide. The GA decides to request an advisory opinion; the ICJ gave one. Issues: • Was the ICJ just in providing an opinion? • Did the GA have the authority to even as the question in the first place • The GA took a restricted view of Section 12, manipulated it to serve their interest o Article 12 o While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. o The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters. • The court ignored the wishes of the Major power who all but China did not want the question answered Why is this case before the ICJ? • Because the GA requested the opinion of the ICJ on the matter of the construction of the wall on opposition territory • The court is responding to the argument that why the court should not be giving the advisory opinion and did they have the right to ask the question in the first place If Palestine was accepted as a state would this even become a party party issue ? • NO, because it would violate official boundaries, as well it would not qualify to any of the three party to party sub categories The arguments against answering this question ? • Palestine was using this as a justification for violence • Request of the GA not Palestine • And aggressor cannot put another country on trial the GA must do it • There is a due process/road map that should be utilized in this case o The court should not be waiting into live political disputes o The advisory does not require consent of the parties o ICJ was making an uneducated decision with limited factual information Dispute is too complex Pg 29 para 55 • An opinion would be of little benefit because it is not binding it is more persuasive and can taint the circumstance Does the court have jurisdiction in the first place?? • The court rarely turns down the chance to provide an opinion - was the court being used for legal consult? - the evidence and the participants that were involved in the case were already partially bias in their response most of the states that participated already refuse to acknowledge that Israel is a state The result of the case or opinion was nothing.. there was no action or enforcement on Israel. Israel continued as they wanted Background: In a time of continuing unrest in Jerusalem, Israel began to build a wall in Israel-occupied Palestinian territory. The wall departed from the Armistice Line of 1949. The finished wall would almost completely encircle communities, push residents out of their homes and limit the occupied persons' access to lands, wells and means of subsistence. Issue and resolution: Is it legal for an occupying force to construct a wall in the occupied territory and, if not, what are the consequences for doing so? The construction of the wall violates international law. Israel, the occupier, must end the illegal act. It must stop building the wall and dismantle the wall that has been built within the occupied territory, repeal or render ineffective all legislative and regulatory acts adopted to support the wall's construction, and make reparations for damage caused to natural or legal persons by the construction of the wall. Court reasoning: The wall violates the right of peoples to self-determination since it limits the movements of the occupied persons. The wall was part of a practice of populating the occupied territory with persons from the occupier territory, thereby illegally contributing to demographic changes in the occupied territory. The wall limits access to health services, schools, and an adequate standard of living, and therefore violates the economic, social, and cultural human rights of those in the territories. In the case of children, these violations are especially pronounced given Israel’s ratification of the CRC and its clear obligations to respect the human rights of all children under its control. Excerpts citing CRC and other relevant human rights instruments: 113. As regards the Convention on the Rights of the Child of 20 November 1989, that instrument contains an according to which "States Parties shall respect and ensure the rights set forth in the … Convention to each child within their jurisdiction…". That Convention is therefore applicable within the Occupied Palestinian Territory. … 130. As regards the International Covenant on Economic, Social and Cultural Rights, that instrument includes a number of relevant provisions, namely: the right to work (Arts. 6 and 7); protection and assistance accorded to the family and to children and young persons (Art. 10); the right to an adequate standard of living, including adequate food, clothing and housing, and the right “to be free from hunger” (Art. 11); the right to health (Art. 12); the right to education (Arts. 13 and 14). 131. Lastly, the United Nations Convention on the Rights of the Child of 20 November 1989 includes similar provisions in Articles 16, 24, 27 and 28. … 134. To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of lsraeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above. Follow Up: Israel continues to pursue building the wall, despite its consideration of the ICJ opinion, stating that the ICJ is not the appropriate forum for discussing the wall. The path of the wall has changed since the time of the opinion and the new path is claimed to result in "improvement in the consideration of the fabric of life of Palestinian residents." Israel states that it has the right and obligation to build the wall to protect its citizens from terrorism perpetrated by Palestinians. It states that the wall is consistent with international law and Israeli domestic law. Additional information may be found athttp://www.seamzone.mod.gov.il/Pages/ENG/news.htm#news49. CRIN Comments: CRIN believes that this decision is consistent with the CRC. Where a country has ratified the CRC, it must apply to all children under that country’s control at all times. In this case, Israel’s construction of a security fence to separate and enclose certain areas would be a clear violation of many of the rights contained in the CRC, as recognized by the court in this case. CRIN finds it unfortunate that Israel continues to pursue the construction of a security fence and hopes that the government will re-examine its international obligations to uphold and respect children’s rights as required by the CRC. Prosecutor v. Dusko Tadic (Source of International Law)  pp. 252  Tadic was the first person to be charged against war crime & crime against humanity after Nuremberg.  The SC decided to establish a tribunal to persecute individuals. Tadic doesn’t represent a state. If the SC doesn’t have the authority to establish a tribunal, this trial is invalid, Tadic would have gotten away.  The establishment of the International Criminal Tribunal was argued to be invalid; this power did not flow from Chapter VII – its outside of Article 41, 42, not mentioned among the enforcement measures;  It was argued that only the legislative body has the authority to establish a judicial legal actor;  The Appeal Chamber concluded that all Article 41 requires is that the measure does not involve “use of force” therefore the establishment of International Criminal Tribunal is valid. Aerial Incident at Lockerbie (Source of International Law)  pp. 256  The U.S. and the UK demanded that Libya extradite two Libyan nationals suspected of causing explosion of planes on the coast of Scotland;  Libya’s argument: depending on how you read the Montreal Convention (a treaty on aviation), this request is inappropriate; sought provisional measures again the U.S. and the UK  While this argument was going on, the SC revoked Chapter VII with Resolution 748 (Article 25 & 103), declaring that the Lockerbie bombing/Libya’s failure to extradite the two nationals a violation of international peace and security;  ICJ found it binding even if it contradicts the Montreal Convention. South Africa vs. Namibia (Source of International Law)  pp. 257  Apartheid-era South Africa continued to occupy Namibia under a League of Nations “mandate” that had been terminated by the GA  SC adopted Resolution 276 (1970) which demanded that South Africa withdrew from Namibia and respect Namibia’s right of self-determination.  Called upon all states to refrain from dealings with South Africa  “All states” – non-UN states are not bound by Article 25, but since South Africa’s mandate is terminated, South Africa’s continued presence in Namibia is illegal  erga omnes obligation Nicaragua vs. United States of America (Duty of non-interference)  pp.217  Background: in the 1980s Nicaragua was in the midst of a civil war; the U.S. supported rebels and provided assistance; Nicaragua brought the U.S. in front of ICJ and argued that it violated “non-interference”  US objected the jurisdiction of the court;  Court observed that this is a violated based on the customary international law reflected in the UN Charter. “opinio juris” Reference Re the Secession of Quebec (Rights to self-determination)  Readings  A very highly regarded case in with respect to people’s rights of self-determination  What court made the decision: Supreme Court of Canada;  3 Questions are asked:  1. Under the Constitution of Canada, can Quebec secede unilaterally  2. Under international laws, is there right of self-determination that allow Quebec to secede unilaterally  3. If there is a conflict, who would win  This is written not by any individual judge on his/her behalf; it was from the court as a unified voice;  This happens either because the case is too small and they want to send out a decision quickly;  Or that the case is too significant and the court wanted to stress “one voice”;  The reference was “of immense practical utility”; since this is not a lawsuit/dispute;  Amicus curiae (“friend of the court”) has made submission; Attorney of General made submission; supposed to assist the court make a decision;  The amicus’s objections on the court’s jurisdiction on answering these questions:  1. The Supreme Court has no right to hear the case; not a court of first instance, the case wasn’t brought up from a lower court – this is on a purely domestic ground, doesn’t concern us;  2. The Court of Appeal shouldn’t be answering advisory questions – never been the case for Canada before (para.19 – 23);  Argument: This is a question of pure international law, the Supreme Court of Canada has no right answering it; international law cannot be applied in the domestic court.  Response: “We aren’t trying to impose our opinion on what international is on other players in the international legal order”; “if we don’t have the rights to answer this question, who will do it? We are not interfering other states, we are just trying to see how international law would play out here in Canada.”  3. The questions themselves are not justiciable: - they are too theoretical, they are political in nature; the questions are not yet ripe for judicial consideration  References questions are by nature theoretical, and not ripe.  Court is asked the exercise “legal” power, so if the question is too political, the court will try to do leave that part out and just look at the legal part; if this is too hard to do/question is purely political, the court will not answer that. But this is not the case – the question is clearly asking about legal rights are under constitution and international law.  The Court’s Response on Question 1  On the ground of constitutional principles:  An brief history on Confederation;  Federalism: federal-provincial division – political power is shared, not federal undermining provincial autonomy;  Democracy: not only a simple majority; it’s true that democracy expresses the sovereign will of the people; but “the relationship between federalism & democracy is that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less “legitimate” than the others.”  Constitutionalism and the Rule of Law: The law is supreme over the acts of both government and private persons.  Protection of minorities  (para.83) talks about what “secession” is; requires negotiation  Conclusion of question 1 – Reject Quebec’s unilateral secession;  If Quebec were to secede unilaterally which is unconstitutional, it is highly likely that other states won’t recognize it. But if other states recognized it, it becomes a de facto state; but this is not what the Constitution says.  The Court’s Response on Question 2  2 primary arguments were put forward in favor for unilateral secession right;  Since secession is not prohibited under international law, it must inferentially be allowed.  Self-determination.  Self-determination  This idea of people having rights to self-determination is so prevalent in international laws; UN Charter (treaty); International Human Rights Law (Civil & Political Rights, and Economic and Social Rights); UN Resolutions – overwhelming evidence that there is such a right.  But that doesn’t grant automatic right of secession. Most authorities they look at contemplate the right of self- determination being done within a context of whatever country people happen to found it in; territorial integrity of state is actually quite … and right of self-determination does not equal to right of secession.  Why? If everyone has the right to secede – it would create continuity problem, etc.  Territorial integrity; continuity; what about the obligations that Canada has, if Quebec secedes?  What kind of people “qualify” for such a right:  Colonized people  Oppressed people  People who are denied equal access to government.  The Court decides that Quebec does not have right to secede unilaterally under international law because they are not colonized, oppressed or denied equal access to government. In other words, Quebec has internal self-determination and thus does not need external self-determination.  The Court is not downplaying the importance of protecting Quebec’s culture, they are saying that they don’t have the “need” to secede the country.  “Political reality will ultimately rule the day”: it’s possible that this could happen; but it’s not the question that was being asked. 2 arguments were put forward in favor  Well-researched opinion;  If you read in between the lines, Aboriginal people MIGHT have a right to secession.  Definition of “People” – the Reference did not set the criteria for what constitutes as “People” – because it doesn’t need to and it doesn’t matter to the result. Canada’s Artic Sovereignty (Territory)  Reading  Land (Archipelago)  Canada claims that it has sovereignty over the Archipelagos;  Arguments: historical precedent; cession from Britain; Canada also occupied the land (how well this is done is debatable); self-determination (people in the area wanted to be governed by Canada)  None of these arguments is air tight; yet no one disputes; no one wants the land;  Small exception: Hans Island  Water (Maritime)  Key issue: the Northwest Passage; the Beaufort Sea; the Continental Shelf;  Internal Water (Canada claims): Canada would have the right to exclude other states from using it; claim to better control environmental issue; but Canada really wants to control who goes through the water in event that it becomes an easy passage due to global warming.  Argument: historical title + straight baselines; Historical title (geography): the Archipelagos with the exception of Hans Island clearly belongs to Canada, therefore this passage should be treated as an extension of Canada;  U.S, Russia, Norway objects;  Coastal Water: Canada can exclude states/entities within certain degree of space (12 miles from the coast), except “right of innocent passage” – but that’s not really helpful to other states;  International strait (U.S. claim): States/entities can go through the strait whenever they want; Canada has no right to exclude them at all; geographical & functional requirement for international strait; Malacca Strait (e.g.) is a well- accepted international strait.  This could end up going to ICJ through either compulsory jurisdiction or treaties.  Continental Shelf  Convention of Law of the Sea;  Two problem:  U.S. is not a party;  Is Russia & Norway making stuff up  This case shows on one hand the boundary where states begin & end their territory, but also to show that a lot of it is really uncertain – only becoming important because of global warming; much of it was pretty much irrelevant (only of academic concern) when it was first discussed, but now states actually want to use them; for avoidance of economic disadvantages. The Case of the S.S. “Lotus” (France v. Turkey) (“Lotus Case”) (1927), P.C.I.J. Series A, No.10  State jurisdiction; pp.433 & 442 & 121  Collision of French & Turkish vessels; the Turkish vessel sank with 8 deaths, and Turkish authorities tried & convicted a French officer with involuntary manslaughter under Turkish law in a Turkish court.  France claimed that Turkey exceeded its jurisdiction under customary international law.  The Court holds that the states’ enforcement jurisdiction was strictly territorial, but the state can exercise prescriptive jurisdiction. A. G. Israel v. Eichmann (1961), 36 I.L.R.5 (Dist. Ct. Jerusalem)  State jurisdiction; pp.435  Nazi Adolf Eichmann was apprehended in Argentina by persons most likely acting on behalf of the Israeli government. He was then removed to Israel without the consent of the Argentine government. In Israel, he was put on trial for his role in the Holocaust.  Eichmann objects and claim that the Court has no jurisdiction; he was kidnapped and forcibly brought to Israel by the state, and sovereignty of Argentina is violated.  British law suggests that the domestic court should try Eichmann, but no precedents;  American judgements established that only states can plead violation of the sovereignty of a state. The accused has no right to represent the rights of that state.  Argentina waived the violation of sovereignty, including claims to return the accused;  Eichmann was convicted. R. v. Libman, [1985] 2 S.C.R.178  Prescriptive jurisdiction with matters connected to state territory (pp.445)  International fraud ring by Libman (a Canadian criminal solicited American investments in Costa Rica); argued that Canadian Criminal Code did not apply because the court doesn’t have jurisdiction  There is a “real and substantial link” between an offence and Canada;  The Court holds that the fraud can be prosecuted in Canada. Rasul v. Bush, 124 S. Ct. 2686 (2004)  A state deny itself prescriptive jurisdiction (pp.448)  Facts: After 911, U.S. armed forces went into Afghanistan; two Australians and twelve Kuwaitis were captured and held in Guantanamo Bay. The lease over Guantanamo Bay gives the U,S, complete jurisdiction and cont
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