one or more states advises another that formal state of war exists between them

ex. WWI

two or more states participate in hostilities that have not been declared as war

(ex. Vietnam)

old days: a coercive measure that typically involves State-authorized seizures of property or persons

today: retaliation for a prior wrong to State or its citizens

-a nonmilitary form of sanction usually taken in response to another state's conduct

-unilateral use of countermeasures is illegal

(ex. freezing of assets, boycotts, embargo)

threatening conduct by one state to intimidate another

-Corfu Channel Case (UK vs. Albania)

-US military build-up in the Persian Gulf

a form of small-scale war between states below conventional war and above routine, peaceful competition

-boarder wars (India/Pakistan, Ethiopia/Eritrea)

-interventions (humanitarian, to restore demo. govts.)

-subversion (training/equipping paramilitary rebels)

the use of the coercive economic measures to bring about political change

-Arab boycott of Israel

-UN imposed boycott of South Africa

1. war

2. reprisal

3. countermeasures

4. Gunboat Diplomacy

5. low-intensity conflicts

6. economic sanctions

-1814

-the first attempt to make war illegal

-Austria, Prussia, Russia, France

-1899, 1907

-Russia's Czar Nicholas led a EU effort to limit the use of force

-no international military force to enforce the limits

-established PCA to settle disputes

Pre-UN Charter : League of Nations

-1919

-established first collective security measures ever by an international organization

-mutual defense system: "war against one member = war against all"

-1928

-US & France led treaty condemning war

-required only peaceful means to settle disputes

1.  states may not use or threaten use of force (Art.2(4))

2.  states may use force defensively when there is an "armed attack" (Art 51)

3.  UN SC possesses a legal monopoly on the use of force

1.  Article 39: SC determines the existence of any threat to the peace, breach of the peace, or act of aggression

2.  Article 41: SC authorizes the use of nonmilitary measures to restore international peace and security (economic sanctions, sever diplomatic ties)

3.  Article 42: if SC determines Art. 41 measures to be inadequate, it may authorize the use of military force to restore international peace/security

-principle of customary international law

-use of force must be "necessary" for defensive purpose

-Caroline Case, 1842

-"proportional" in its execution: if necessity is satisfied, the defensive response must be "proportional" to initiator's attack

-diplomatic issue btw. US and Britain about whether Britain could blow up a US ship that was going to be used in combat the next day against the British

-British: said they were just acting in self-defense

-US Sec. of State: an impending use of vessel was not enough; no certainty there was going to be a battle--no justification to violate American soverignty

-RESULT: "threat, or perceived use of force must be instant, overwhelming, and leaving no choice of means and moment for delineation"

-Article 51: right of self-defense under UN charter

- use of force in s-d can only be justified in response to an "armed attack"

-placement of nuclear missiles?  training of rebel forces?

-rule: states retain the "inherent right of s- d"

-the right of s-d may be invoked only until the SC has undertaken measures against the aggressor

-Victim State is required to immediately report any defensive activity to SC

-classic example of self-defense

-GB vs. Argentina

-British citizens lived on the Falklands and have for years = they claim sovereign control

-BUT, under Argentina's "dirty war" campaign claims that it has jurisdiction and sovereignty over its land

-GB pushed out Argentinean troops (power trip for GB, had lost a lot of power over past 100 years)

-the notion that an armed attack on one member of a particular org of states constitutes an attack on all = a collective response to the aggressor (NATO)

-Article 51

-ICJ position: principle of nonintervention trumps right of collective s-d in cases overthrowing regimes

-rather than awaiting an armed attack pursuant to Art. 51, a state takes what it its describes as a defensive action to avoid some mounting aggression or threat by another state

(ex. Cuban Missile Crisis, US War against Iraq and War on Terror)

the use of force of other action across state lines aimed at alleviating grave human suffering due to starvation, disease, atrocity, widespread dispossession or an imminent threat of such

-often misused by states unilaterally in the affairs of another state

-prohibits international intervention in matters which are essentially within the domestic jurisdiction of any state

-exception: shall not prohibit SC from enacting enforcement measures under Chapter VII

1. consent of target state

2. SC authorization

-unilateral: prohibited unless SC authorized

-"danger invites rescue" exception: to rescue hostages (self-defense, Entebbe Incident)

-collective: preferred method of intervention; UN charter does not undertake collective humanitarian intervention without UN approval

Article 55: UN shall promote "universal observance of human rights and fundamental freedoms of all without distinction as to race, sex, language, or religion"

Article 56: UN members should take "joint and separate action in cooperation with the UN for achievement of humanitarian purposes"

-nonmilitary intervention by nongovernmental actors in the internal affairs of a sovereign state for humanitarian purposes

-states must either provide humanitarian assistance to their own people or accept external assistance

-1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field

-the first laws of war treaty

-laws of war developed overtime to keep up with technology

-naval captors may not deny quarters to or kill a defenseless enemy

-belligerents have a right to "visit and search" merchant vessels flying the flags of neutral states

-persons other than lawful combatants who are in the midst of conflict and are captured by a party to the conflict of which they are not nationals

-must be treated humanely and guaranteed basic rights

1.  wounded on battle field

2.  rules at sea

3.  suspected al Queda members injured during battle

4.  civilians caught in cross fire

-limits the president's power to introduce military forces into foreign conflict in certain circumstances

-when Congress has already declared it, during a national emergency created by attack on US

-requires the president to consult with Congress before and after introducing armed forces into war

1. 1st Generation: Political and Civil Rights (negative)

-right to life, liberty, property

-due process of law

-nondiscrimination (race, gender, etc)

-1st amendment rights

2. 2nd Generation: EcoSoc Rights (positive)

-right to food, shelter, decent standard of living

-right to work, health care, edu, SS

3. 3rd Generation: Solidarity Rights

-rights to: self-determination, development, environment, free from occupation, humanitarian assistance

-enforcement of H.R.s are reserved exclusively to the states for implementation

-ex. countries that have the death penalty

-the world looks to Europe about human rights

-broad statement of principles and objectives

-non self-executing

-first global human rights treaty, unanimously adapted

-statement of aspirations only (nonbinding)

-categories of rights: 1st and 2nd generation

-consult treaty when deciding what h.r.s are today

-legally binding, self-executing treaty

-requires states to establish enforcement machinery for dealing with human rights violations

-may not derogate from genocide, torture, slavery, etc.

-US ratification in 1992: reservation that defeats the object and purpose--the death penalty issue

-legally binding, self-executing treaty

-requires a state to establish enforcement machinery for dealing with h.r. violations

-requires states to report to the UN EcoSocCul committee

-gives the treat teeth with UN oversight

-organ of UN is relevant to treaty = power

-has never been challenged under US law

-signed by US in 1979

-deals with civil and political rights

-European social charter: EcoSoc rights

-EU court of human rights

-compulsory jursidiction

-state and individual can sue and be sued

-inter-American Commission on HR

-individuals can file petitions against the state

-US did not ratify ACHR

-cant suspend habeas corpus

-denied in other countries

-law in US = right of habeas corpus must be granted

-OAU = nonbinding declaration of principles

-Charter = African commission on HR/monitors HR

-a long way to go to try people, a beg of state

-state and individuals can report violations

-publicize human rights violations

-major NGO's have consultative status in intl. orgs (UNESCO, OAS, Council of Europe)

-may be used in US countries for HR violations in foreign countries

-Doe vs. Unocal (Union Oil Company of CA)

-allows citizens suit in US court btw. foreign citizen or human rights violation committed abroad; are civil claims

-defendant must be served in the US

-parties must be aliens

-must be a violation of established, recognized norms of international law (piracy, slave trading, genocide)

-a state who wages "aggressive" war commits the supreme international crime

-the crime of aggression is punishable by any other nation who is able to bring the perpetration to justice

-the responsible leader incurs "individual" crime liability directly under international law

Yugo Tribunal 1993 (same as Rwanda)

-established by UN SC

-located in the Hague (next to ICJ)

-to try persons responsible for serious violation of humanitarian law committed in the FRY since '91

-crimes of murder, rape, torture, ethnic cleansing

-impartial tribunal: not composed of victors' judges

-NO death penalty

-pace of trials = VERY SLOW

-first global intnl criminal court to try those accused of:

-genocide

-international and internal "war crimes" committed as a policy or large-scale commission

-crimes against humanity directed against civilians

-ONLY applies to inds not corps; and no death penalty

-doesn't apply to nuclear/bio/chem weapons

-ICC investigation = not part of UN but they have a relationship

-case cannot be heard when a state with jurisdiction is already investigating a crime unless:

-state is unwilling/unable to investigate the same crime

-the accused has already been tried for same crime

-bans US involvement in arrest and extradition of person, seized property and the taking of evidence

-no ICC agent can conduct an investigation in US even if accused is not a US citizen

-that not owned by any state because of its special status

-Palau in South Pacific = trust territory under US until 1994 when indigenous people rebelled

-territory capable of being owned by not yet under sovereign control

-ex. the Arctic: no one owns it, but ice is melting and now people want underwater oil resources

-territory that cannot be owned by any nation

-Antarctica, high seas, outer space

-community land

-using force to take land

-is prohibited under IL

-peaceably acquiring and maintaining exclusive control over territory

-discovery followed by occupation: "finders keepers" rule

-no longer the rule of law = too much conflict

Rule of Effective Occupation

continuous, peaceful occupation of the land 

• Ex: Island of Palmas Case 
• Ex: Permanent Stat us of Eastern Greenland Case 

Cession 

An International agreement that deeds land from one nation to another

• Cedant State must have proper claim to the land to cede it to the grantee (Ex: Island of Palmas case). 

Prescription

Accretion

A method for obtaining legal title to land as it slowly changes naturally (legal)

• Avulsion: a sudden change caused by natural events 
  • does not affect the prior legal boundaries 
  • EX: Chamizal arbitration (US/Mexico) 

Renunciation 

A State voluntarily or involuntarily relinquishes title to territory without the formality of a cession treaty 

• Ex: Italy renunciates if African colonies in 1947 

Joint Decision

War victors jointly claim right to dispose of land that defeated States conquered

• Ex: forced German reduction of territory after WWI 

Adjudication

A state or states ask a court of arbitrator to resolve a land dispute 

• parties agree to adhere to the decision
• most ICJ cases have been territorial disputes 

Ways of acquiring land/control of land

• conquest
• occupation
• prescription
• joint decision
• adjudication
• renunciation
• cession
• accretion

"Tragedy of the Commons"

"free rider" problem

• Freedom of the seas: freedom of navigation and fishing on the seas (beyond 3 mile territorial sea)- now law extend 12 miles beyond the coast
• Sovereignty of the flag state: The State under whose flag the ship was sailing had exclusive jurisdiction over all activities aboard the ship. 

1982 Law of the Sea Treaty (UNCLOS) - on Internal Waters

The Global Maritime Constitution 

• predominant treaty in this area (US has signed but not ratified this treaty)
• Internal Waters: A state has the sovereign right to control its bays, rivers, lakes and internal waters
  • coastal baseline: the point where the sea intersects with the edge of the land at the seacoast 

UNCLOS- on ports

• ports: each State has the absolute right to control the internal waters contained within its ports 
  • foreign warships: port authorities cannot board a foreign warship. But these warships have to have permission to enter by calling ahead.
    • subs need to surface and be visible to enter
  • private commercial vessel: can enter internal waters without permission but port authorities may board the ship. 
  • sailors subject themselves to jurisdiction of port State when they go ashore 

Port Tranquility Doctrine

Either the laws other flag state or the laws of the port State apply depending on whether the crime "affects the port's tranquility" 

- flag state has primary jurisdiction

• ex: Wildenbus Case 

UNCLOS - on bays

Bays: An indentation as large or larger than a semicircle whose diameter is a line drawn across the mouth. 

• Less than 24 mile rule: if semicircle diameter of the bay's mouth is less than 24 miles, the bay consists solely of internal waters
• More than 24 mile rule: if it's more than 24 miles, the bay contains high seas in the center of the mouth and territorial waters as far as 12 miles from coastline that forms the land boundary
  • Exception: large historic bays where STate may claim exclusive sovereignty (EX: Libya's line of death")

Territorial Sea

• extends outward 12 miles from the baseline
  • Baseline: where ocean's edge meets coastline
  • Anglo-Norwegian Fisheries case
• coastal state has exclusive sovereignty
• coastal state must exercise sovereignty
  • sovereignty includes from the airspace to above seabed blow, including subsoil within. 

Right of Innocent Passage

Passage through territorial waters that doesn't disturb the peace or security of coastal state should not be impaired

• passing vessels may not stop and anchor
• passing vessel must comply with coastal state regulations (ex: customs, immigration)
• military vessels not permitted unless authorized (subs visible at all times)

Straight Passage

vessels passing through straits wider than 24 miles across are permitted free passage thru the high seas portion of such strait

• may not be repugnant to interest of coastal state's CZ and EEZs
• vessels not subject to restrictive rules of coastal state. 
• military and commercial vessels entitled to free transit

Transit Passage

Transit thru straits containing only territorial waters, but once contained high seas

• Ex: The Bering Strait 

Contiguous Zone

• Extends outward 24 miles from the baseline
• coastal state has limited jurisdiction over the CZ
  • customs, immigration, fiscal/sanitary law
  • "hovering laws" to counter drug trafficking
• Coastal state cannot limit free passage in the CZ
• Coastal state has to expressly declare its claim to jurisdiction over CZ

Exclusive Economic Zone

• extends outward 200 miles from the baseline
• coastal state has limited jurisdiction over the EEZ
  • regulation of fishing and deep seabed mining
• Coastal state cannot limit free passage 

Continental Shelf

• seabed and subsoil of submarine areas extending thru the natural prolongation of its land territory
• extends outward 200-350 nautical miles from the baseline depending on the natural extension of the coastal state's underwater land masses.

Deep Seabed ("The Area")

• The ocean floor and subsoil beyond State jurisdiction
• the Area is the "common heritage of mankind"
• governed by the Intl Seabed Authority
  • regulates deep seabed mining in the area

1967 Outer Space Treaty

• activities in outer space are governed by intl law
• res comunnis: cannot be owned or claimed and is thus open to peaceful use by all states
  • includes space and celestial bodies
  • OS shall be used for peaceful and scientific purpose 

Mercantilism

• pre-industrial economic doctrine
• state power is determined by wealth (gold and silver)
• primary goal: to achieve "self-sufficiency" thru the pursuit of wealth and power 
• primary means: expand exports/decrease imports 
• Sates engage in "beggar-thy neighbor" policies (beg others to buy your stuff) 

Alexander Hamilton

• advocates economic nationalism and protectionism to strengthen national security 
• government intervention to establish industrial base
• protectionist policies included tariffs, quotas, subsidaries
• keep the economy open to foreign technology, capital and "skilled" labor. 

Friedrich List

• Advocates economic nationalism and protectionism 
• government investment in human capital development
• protectionist policies required in the short-term to bolster infant industries
• once you are competitive, no protectionism 

Treaty of Westphalia 1648

• enshrined the sovereignty and territorial integrity of states 

State power depends on accumulating wealth through...

• accumulation of gold and silver
• increase exports of manufactured goods
• limit exports of raw materials/technology
• increase imports of raw materials
• restrict imports of manufactured goods. 

Forms of Liberalism

• orthodox
• interventionist 
• institutional 

Orthodox Liberalism and its Players

• free enterprise, free trade, and minimal government interference maximize human welfare
• Adam Smith 
  • let the market alone
  • invisible hand- (self-regulation market)
  • Free Trade (theory of absolute adv)
• David Ricardo
  • theory of comparative adv 

Trade Theory (Advantage v Comparative)

Absolute Advantage: States benefit by specializing in goods they produce best and trade with each other

Comparative Advantage: states benefit from specialization and trade even if one has an absolute advantage in producing all the products traded 

• criticism: comparative advantage results on from differences in labor productivity. 

Smoot-Hawley Tariff Act of 1930

• in 1930, saw negative effects of raising tariffs to the outside world 
• shut out European and Asian exports and other countries retaliated by doing the same to the US
• when Roosevelt was elected, he changed the tariff quickly 

Interventionist Liberalism and Players 

• advocate limited government interference 
• rejects "laissez faire" doctrine
• John Maynard Keynes
  • Government should support full employment
  • implement fiscal/monetary policies to increase consumer demand 

The Interwar Period (1919-1939) and Liberalism

• Rise of US leadership
  • The New Deal (Roosevelt) 
    • limited government intervention in the market
    • work relief, welfare, AAA, social security
  • WWII and US Involvement

Reciprocal Trade Agreements Act of 1934

• shifted tariff setting policy to president
• led to bilateral trade agreements with 27 countries and lowered tariffs by 44% 

Institutional Liberalism

• favors strong international institutions
• post WWII period 
  • International Organizations: UN, IMF (promote monetary stability), World Bank
  • Agreements: GATT
  • European Recovery Program (1948)
    • Marshall Plan: need people to buy from you oversees in order to be productive. US self interest to rebuild Europe because we needed to sell goods to them in order to avoid a recession. 

Havana Charter

• multilateral negotiations for an ITO 
• US never ratified it
• Truman withdrew the charter

GATT Principles

• Trade Liberalizations 
• Nondiscrimination
• Reciprocity
• Safeguards
• Development Principle
• Enforcement Measures

GATT: Trade Liberalization

• GATT to lower "tariffs" thru successive "rounds"
• Art 11: calls for elimination of import quotas
  • exceptions: BOP problems, national security, LDC infant industry, health, agriculture
• non-tariff barriers (NTBs): replaced tariffs  
  • subsidies, government procurement, import licensing 

Nondiscrimination

• Most-Favored Nation (MFN) principle: 
  • Article 1: requires equal treatment of imports from CPs
  • Exceptions: RTAs, colonial preferences, BOP problems, and national security
• National Treatment
  • requires equal treatment of foreign products with domestic products (once inside the market, Walmart has to sell Japan's and American's equally)

Reciprocity

• A state benefiting from trade concessions should provide equal benefits in return
• limits free riding under the MFN principle
• states joining the GATT/WTO must agree to liberalize market access to its own market.

Safeguards

• Government actions to limit imports that may cause harm to industry or the economy. 
• permanent safeguard measures:
  • national security, health, public morals
• temporary measures (BOP problems, protect infant industry)

Safeguard: General Escape Clause

• General Escape Clause (Art 19): permits a state to counter import surges that cause or are likely to cause serious injury to a domestic industry
  • Must be applied to all GATT/WTO members
  • affected states can request compensation

Development Principle

• Article 28: permits LDCs to impose import quotas to protect infant industries/alleviate BOP problems. 
• GSP (1971): permits discriminatory lowering of tariffs on LDC import only
  • Enabling clause: established during Tokyo Round and authorized GSP/preferential trade agreements
• Doha Round (Development Round): priority on agriculture/textile exports from developing countries. 

Enforcement Measures: Antidumping Duties

Antidumping Duties (ADDs)

• Dumping: when a firm sells a product in an export market cheaper than what it costs in the home market or below production cost
  • lower price short term to get people hooked on the price and then raise later
• WTO permits ADDs if foreign goods are dumped and dumping threatens material injury to domestic producers

Enforcement Measures: Countervailing Duties

Uruguay Round

• disputes over agriculture almost killed it
• North v South- (CAP, farm subsidies, tariffs/quotas)
• US v EU (CAP was a sticking point) 

Marrakech Agreement 1994

• cut tariffs on manufactured products by 1/3
• elimination of textile/apparel quotas (10 years)
• replaced quotas with tariffs on agriculture
• established the WTO
• Dispute Settlement Understanding
• GATs, TRIPs, TRIMs, Safeguards and CVDs

WTO Formation

• Legally constituted IO
• incorprated all previous GATT agreements
• WTO oversees trade rules under UR agreements
• GATs, TRIMs, TRIPs established

WTO structure

• 1 nation 1 vote principle
• decision-making: consensus followed by majority vote
• direct-general (any member country)
• ministerial conference (meets every 2 years)
• General Council (overseas GATs, GATT, TRIPs)
• all sessions closed to the public. 

WTO dispute settlement body

• establishes panels to investigate complaints and adjudicate disputes
• panel decisions are binding
• requires a consensus to block a panel report, not just one single vote

Steps in the WTO Dispute Settlement Process

1. WTO member breaks rule
2. A WTO member files a formal complaint
3. A panel is established and decision is rendered 
4. Losing member can implement decision or appeal to WTO appellate body for a review
5. If decision upheld, DSB may authorize complaint to retaliate

Future WTO Issues (bicycle must keep moving)

• Enlargement- Russia still not a member
• Agriculture (LDC priority)
• Services (US priority)
• Singapore issues: competition/investment policy, government and customs procedures
• RTAs: building blocks or stumbling blocks to multilateral trade liberalization?
• labor, environment and human rights issues (ex: china)

WTO and Agriculture

• Goal: to promote growth and reduce poverty in LDCs
• background:
  • 1955 GATT waiver
  • Enabling Clause (Tokyo Round)
    • authorized preferential treatment
  • Tarification (Uruguay Round)
    • UN uruguay round established a committee that focuses on agricultural industrialization 
  • Agreement on Agriculture
    • Article 20: requires WTO members to start negotiations on agriculture 
    • 3 pillars:
      • market access
      • cuts in domestic producers subsidies 
      • reduction in export subsidies 
  • starting points for doha success 

GATT Principle: Article XXI (National Security)

• a party may take any action necessary for the protection of its essential security interests
• exceptions:
  • drug-trafficking
  • harboring terrorists
  • human rights violations

GATT Principle: Article XXV (Waiver)

• Allows a member with a 2/3 majority vote to waive a GATT obligation
• The Kimberley Process 
  • a number of WTO member countries pulled together and were allowed to discriminate against the diamond trade industry (because so many countries were using child-labor and violent wars in the industry)

Arguments for RTAs

• breaks down national trade barriers
• gains from increased efficiency outweigh costs
• strengthens political/security ties
• speedier than GATT/WTO in freeing trade
• improves competitiveness of MNCs

Arguments against RTAs

• divides the world into competing trade blocs
• "race to the bottom": MNCs move production to state with low wages and taxes and poor environment standards. 
• displaced workers lose out )move to obtain work)
• reinforces "dependence" of poor states on rich

Exceptions to the GATT/WTO (RTAs and FTAs)

• Article 1: Unconditional MFN treatment
• Article 24: permits formation of FTAs and CUs
  • Condition 1: must remove tariffs and other trade barriers on substantially all trade among members within reasonable period
  • Condition 2: must not raise tariffs and other barriers on the average toward non-members
    • FTAs: individual members cannot raise their average level of duties
    • CUs: Common external tariff may not "on the whole" be higher than Member's separate duties before CU 

Free Trade Agreements in the US

• US-Mexico relations
  • NAFTA
• US- Central American relations
  • DR-CAFTA
• The Free Trade Area of the Americas
  • rejected by the Bolvarian countries.
• Bilaterial FTAs

NAFTA

• The North American Free Trade Agreement
• An expansion of the Canada-US agreement
• congressional-executive agreement under US law
• unlike the EU
  •  NAFTA does not create a set of suprnational government bodies
  • no body of law superior to its national law
• eliminates the majority of tariffs b/t US, Canada, and Mexico 

The Stockholm Declaration (1972)

• beginning of interest by the intl community 
• "No Harm" Principle: States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states.
  • a country can do whatever they want as long as it doesn't cause harm to other states. 
• Established the UN Environment Program (UNEP): a permanent institutional arrangement within the UN for the protection and improvement of the environment 

The Principle of Sustainable Development

The notion that continued economic growth and population growth can take place in a manner that will bring the global population to an acceptable overall standard of living without damaging the earth’s life

The Principle of Common but Differentiated Responsibility

All countries are responsible for global environmental problems but some countries are more responsible than others

The Precautionary Principle

Where there is a treat of irreversible environmental damage, lack of full scientific certainty shall not be used as a reason to postpone measures to prevent environmental degradation