Sources and Development of International Law

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1 Sources and Development of International Law Sources: - Dimensions of Law JSTOR - International Criminal Court

2 Development of International Law There are many sources of law that the international community relies on to implement legal decisions, but how did these structures come to be? What are some of the factors/key events lead to the international law we know today? Let s look at six of them

3 1. Treaty of Westphalia This treaty ended the 30 years War ( in Europe; 194 states involved in its negotiation); Although one of the central parts of the conflict was fueled by a religious schism, many states fought for their ability to sustain their sovereignty Set up what it means to be a sovereign nation principles of sovereignty (Not original ideas, but reinforced and solidified old ones)

4 1. Treaty of Westphalia A state s authority could be limited by other states the Holy Roman Empire s authority was limited by the Peace of Westphalia For peace to happen, nations had to undermine this authority and become independent, sovereign nations Holy Roman Empire had to scale back its ambitions Nations must develop themselves, and contribute to the global economic well-being

5 1. Treaty of Westphalia Wasn t the end for the Empire, but marked the beginning of its end in 1808 forced to seemingly accept Protestantism even though it did not formally recognize it No more was there a hierarchy of authority with God/Pope at the top states developed their own and ruled in their own right Confirmed right to reform added the rights to emigrate, freedom of conscience/worship Westphalia limited state sovereignty by guaranteeing these rights to people

6 1. Treaty of Westphalia Three types of sovereignty apply today, defined over time State Sovereignty the lawful control by a state over its territory, right to govern in that territory, and authority to apply law there to the exclusion of other states (Dimensions of Law, 2004) Internal Sovereignty power over subjects living within the state (unhampered by outside influences) External Sovereignty right of the state to forge trade agreements and participate in the international community - Recognizes that independent states are free to enter into relationships with other states

7 2. Geneva Conventions, 1949 Intention of Geneva Conventions was to limit the impact of wars on combatants and minimize the damage for civilians 196 countries have signed Essentially, this places limits on what a country can do during war The conventions cover: 1. Improvement for treatment of the wounded and sick 2. Improved care for the wounds/shipwrecked members of the armed forces at sea 3. Parameters for the treatment of Prisoners of War 4. Parameters for the treatment of Civilian Persons

8 3. League of Nations Established after WWI to maintain peaceful International Relations and collective security; based in Switzerland Had a mandate system in place, authorization for a group to govern over a former German or Turkish colony; (A) Countries in the Middle East were formally created; allied administered until they could establish their own stable government (B and C) Territories redistributed among nations or superpowers Included 63 State members

9 3. League of Nations Included a council, assembly, and secretariat Council: met 4 times a year, and comprised major powers [Britain, France, Italy, Japan, and Germany] as permanent members, plus non-permanent members elected by assembly; approved major decisions through unanimous vote Assembly: consisted of all states, met annually Secretariat: carried out administrative tasks of the LoN

10 3. League of Nations Were able to solve some international disputes (post WWI territorial claims, territorial disputes, responses to situations requiring humanitarian aid, prevented a conflict from erupting between Greece and Bulgaria 1925); mainly solved through arbitration Failed to prevent many military conflicts (Italian invasions of territories, post-wwi border disputes; most involved Poland, Russia, and Germany in some respect)

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12 4. United Nations The mandate of the UN is founded on its charter (26 June 1945) with 51 original member states; allows members to express its views through the main bodies of the UN and solve world issues In modern day and in the past, the organization covers issues confronting humanity (security, climate change, sustainable development, human rights, disarmament, terrorism, emergencies, equality, etc.)

13 4. United Nations - unanswered questions Why the Hague, Netherlands? Known as the International City of Peace and Justice ; since the late 1800s, peace negotiations have taken place there. Oldest International Courts also resided there (1920s) There are many offices in other nations in the world

14 4. United Nations The five (some say six for ICJ) main organs and the purpose/role of each: General Assembly: comprised of 193 member states (195 or 196 countries in the world depending on your point of view; Palestine, Vatican, and Taiwan not in the UN as a full member or AT ALL); each year they meet for a General Assembly session, general debate, which hears many types of issues or questions. GA president elected for one year term (based on regional proposed candidates; need a majority of votes) ( =A/RES/33/138 )

15 United Nations Membership over time

16 4. United Nations The five (some say six for ICJ) main organs and the purpose/role of each: Security Council: 5 permanent, 10 non-permanent members who have 1 vote. They determine how to address threats to peace and acts of aggression. They may be called to to settle a dispute peacefully, or, impose sanctions or authorize use of force to restore international peace and security. Security Council: Permanent Members (Article 23) France, Russia, Great Britain, United States, China; - all viewed as significant empires or contributors of victory in WW2

17 How the Security Council works 1. Need 9 votes out of Doesn t work if any permanent member votes no. They can also abstain from a vote. Veto works simply by a voting of all Security Council members; if one of them votes against a resolution, it fails. Takes 9 votes to pass a resolution. 3. Only way to remove a permanent member is to persuade two thirds of the general assembly to suspend or expel a country from the UN entirely...however, the Security Council would need to ratify this...so they can block their own expulsion. 4. Any reform (including addition) of the Security Council would require: 2/3rds of state member votes, 2/3rds to formally sign off on the reform, and for the Security Council to approve it through a standard resolution style vote.

18 Security Council Case Study 1990: Iraq invades Kuwait Security Council votes to try economic sanctions first Then votes to use all means necessary to restore peace and security to Kuwait. UK, US, France, Russia vote yes on this measure, China abstains. Result: invade Kuwait, restore peace in 6 months.

19 4. United Nations The five (some say six for ICJ) main organs and the purpose/role of each: Economic and Social Council: has 54 members elected by overlapping 3 year terms. Body that is charged with discussion and implementation of internationally agreed development goals (social and environmental issues). Think of it as an international social workers group. Trusteeship Council: established in 1945 through the charter, it provided international supervision for 11 trust territories until, in 1994, these territories became self-sufficient; no longer needs mandatory meetings; only when required or as needed basis (many territories were reorganized or created after historical conflicts or changes in empires/nations)

20 4. United Nations The five (some say six for ICJ) main organs and the purpose/role of each: Secretariat: comprised of UN staff members who carry out day-to-day work of the UN as mandated by the organization (recruited internationally and locally) International Court of Justice (expanded on next slides)

21 5. International Court of Justice The ICJ takes two types of cases: 1. Cases submitted by states to settle a legal dispute 2. To fulfill advisory requests on legal opinions (submitted by states) Because states submit to the court, it is rare that decisions are not implemented (This is also a mandate as a member state of the UN to comply with judicial rulings.) Sources of Law the ICJ draws from: international treaties and conventions in force; international custom; the general principles of law; and judicial decisions and the teachings of the most highly qualified publicists Have heard over 150 cases since its creation ICJ -

22 5. International Court of Justice Judges elected to 9 year terms by the General Assembly and Security Council (but separately) Elections held in New York Each state member can propose 4 candidates for election through a group of arbitrators that represent them during an election period; only one per state is elected If a judge dies, a special election is held ASAP When elected, they agree that they are to be NEUTRAL, and not represent or be bias to their origin nation Have the equivalent of diplomatic immunity Can be dismissed by the unanimous vote of the other judges

23 6. International Criminal Court Became a permanent fixture of the UN with the adoption of the Rome Statute - July 17, countries Independent, permanent, and treaty-based; not a part of the UN Established to prosecute most serious crimes for the international community ICC - bout%20the%20court.aspx Rome Statute - DC7CF02886/283503/RomeStatutEng1.pdf

24 6. International Criminal Court Judges: 18 judges elected for 9 year non-renewable terms organized into 3 divisions: Pre-Trial, Trial, and Appeals. must be fluent in either English or French Candidates must be nationals of states that are state parties to the Rome Statute; each State can put forward any candidate from their state or otherwise Secret ballot is held; 18 candidates picked must have obtained highest number of votes and a two thirds majority of the States present and voting It s the aim that this will reflect most member states. Source (International Criminal Court, 2018)

25 For your reference: Compare and Contrast Chart Differentiates the ICJ from the ICC similarities/differences, mandates, jurisdiction, legal scope, power. See below:

26 Questions 1. Assessment of Historical Record Answer in your own notes Despite successes and failures of the International Court of Justice and International Criminal Court, how do these structures maintain an international forum for law and order? ICJ - ICC In your opinion, which agreement or organization has had the most significant impact with respect to changing international law? Which has had the least of an impact? (this answer may change through the unit)