IL Midterm 2

UN Charter Art. 45

"In order to enable the UN to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action."

UN Charter Art. 2(7)

"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state ... but this principle shall not prejudice the application of enforcement measures under Chapter VII."

UN Charter Art. 42

"Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security."

UN Charter Art 2(1)

"The organization is based on the principle of the sovereign equality of all its Members"

UN Charter Art. 47

1. "There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament. 2. "The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council."

Anticipatory self-defense

An atextual concept of self-defense that is not directly written into the UN Charter. Exists in IL (the Caroline case between the US and Canada) but is limited. Can be used in cases of "palpable and imminent threat," presenting the "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Can be used when a state knows it's about to be invaded.

Self-defense

An exception to Article 2(4) which says states can use force if an armed attack occurs against them. It is time-limited; once the UNSC does something about the armed attack the attacked state can't do anything about it. States are subordinate to the UNSC. Can be engaged in individually or collectively. Can have allies come in and assist.

EITI

Extractive Industries Transparency Initiative. A set of principles about national resource extraction. Governments publish information about licensing, standards, pricing, taxes, etc. There is a commitment to share information, but no sanctions. Publishing information will make civil society actors put pressure on government to expose crime and corruption. No sanctions.

Responsibility to Protect

From UN report "A more secure world" (2004), which does not call for a change in the jus ad bellum. It fits into the existing scope of Art. 39, but provides a set of principles to govern how the UNSC deals with intra-state conlict. States have a responsibility to protect their own civilians, as a precondition of sovereignty. Failure to protect means a partial forfeiture of sovereign rights.

German Federal Constitutional Court

Had a case about Syria. Case of intervention by one state (Germany) on the territory of another (Syria) in order to fight an NSA (ISIS). Germany arguing collective self-defense, specifically the right to collective self-defense when an NSA conducts an armed attack while occupying the territory of another state. Doesn't fit into the definition of self-defense, so they need an exception to Art. 51. The court found that because Syria can't make sure ISIS's territory isn't used for "harmful cross-border purposes," there is a threat to international peace and security. If Syria can't keep ISIS from holding this territory, it's "unable" to protect its own civilians.

Porportionality

IHL principle which states that risk to civilian life must be proportional to the military value of the target, and that every feasible precaution must be taken to protect civilians.

ICRC

International Committee of the Red Cross. Has limited international legal personality granted by Geneva Conventions and Additional Protocols. Has the right to protect victims of armed conflict. Has near-ubiquity in conflict zones, does not have to request permission, but does have to negotiate logistics. Coordinated both the Hague and Geneva Conferences.

Contemporary trade challenges

New types of goods in the market like AI-powered products; unsure of what category they go under. How to regulate services, ISDS agreements, and to what extent private companies should be able to sue states.

NSA

Non-state actor. Now most conflicts are civil conflicts, or civil conflicts with foreign state intervention. The jus ad bellum assumes interstate conflict, which does not happen as much. Now NSAs play a big role. Attacking NSAs in other states is necessarily an armed attack on that state and is prohibited by 2(4). For armed attacks by NSAs across state lines, attribution can be found, but it's a high bar to clear. The host country can also be relied on to crack down on NSAs, but sometimes hosts are unwilling or unable.

Pros of principles

Positive side of these bedrocks of IHL; They are almost universally accepted- specific principles are not contested. They are very flexible, adaptable to new technologies and types of warfare (like cyber warfare).

Transparency

The trade principle that trade rules are openly published.

Safety values

Trade law principles that allow states to exit agreements in emergencies. Used to justify trade wars.

Kimberley Process

UN-sponsored process since 2000 to monitor trade in rough diamonds. Arises after HR abuses were revealed and rebel warlords were funding violence. Countries certify diamond profits do not finance rebels, or "any other entity seeking to overthrow a UN-recognized government." There is a commitment from other states not to allow import of non-certified diamonds. NGOs monitor and attempt to encourage compliance.

Cons of principles

Why relying on principles might not be a good idea; they are necessarily subjective interpretations and have imprecise standards, especially to apply to hot-blooded conflict situations. They are prone to human error and hard to apply in every situation. Also not a codified body

tariff

tax on imported goods

Hague Conventions

1899 and 1907 conventions that codified existing CIL and what states can or cannot do in armed conflict. Put new regulations on emerging weapons technologies. Had specific provisions on a range of issues, like: discharge of weapons from balloons (1899), gas weapons (1899), soft-point and cross-tipped bullets (1899), merchant shipping (1907)

4th Hague Convention Art. 22

1907: the right of belligerents to adopt means of injuring the enemy is not unlimited.

UN Charter Chapter VII

Includes Articles 39-51 of the UN Charter and lays out the authority of the UNSC to authorize the use of force and otherwise take action in instances of conflict.

Consequences of market inference

There are trade-offs to this. Government can either support a concentrated set of producers, or can support lower prices across the board for everyone. There are concentrated benefits and diffuse costs. Dairy farmers will notice if tariffs are removed, while consumers won't notice that milk costs $.20 more. Political decision- there are always winners and losers. Mexican consumers have access to reasonably priced dairy, while Canadian farmers have a stable job.

Necessity

IHL principle which states attacks must be militarily necessary, and no more force should be used than is necessary.

ICJ Statute Art. 38(1)(c)

States that limited individual legal personality is a "general principle of law recognized by civilized nations"

UN Charter Art. 43(1)

"All Members of the United Nations... undertake to make available to the Security Council, on its call... armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security." the UNSC can take action itself, and states agree to supply the UNSC in keeping international peace.

UN Charter Art 2(3)

"All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."

UN Charter Art. 26

"In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating... plans to be submitted to the Members of the UN for the establishment of a system for the regulation of armaments." Never used by the UN, but a way to tell countries what weapons they can and can't have.

GCCA3

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms ... shall in all circumstances be treated humanely ... To this end, the following acts are and shall remain prohibited at any time and in any place ...: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 2. The wounded and sick shall be collected and cared for. A backstop: even if nothing else applies, these provisions do. Applies to NIACs and NSAs.

UN Charter Art. 51

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace security." The only provision that lets states use self-defense. Says it's a right that exists independently of the UN Charter.

UN Charter Art. 41

"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures" Allows states to do things.

UN Charter Art. 39

"The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security."

Martens Clause

"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience." Does not provide new rights, but reiterates new weapons covered by existing law. It's a preamble to the Hague Conventions but is non-binding. Says how the Conventions don't regulate every weapon, reiterates that new weapons are still covered by law.

SALT II

1979 failed negotiations arms control treaty over missiles between US and Russia.

Nicaragua v. US

1986 ICJ case where Nicaragua took the US to the ICJ for supporting rebel contra groups against Nicaragua. ICJ had jurisdiction in this case because the US submitted to compulsory jurisdiction of the ICJ for violations of customary international law. ICJ finds the principle of non-interference to be CIL. The US claimed to be acting in collective self-defense of Honduras, El Salvador, and Costa Rica, where Nicaragua was sponsoring armed groups in all three countries. US invoked self-defense for provision of arms to Nicaraguan contras. Would be sufficient grounds to invoke collective self-defense if an armed attack actually occurs. Attacks by Nicaraguan-sponsored rebels are uses of force, but they cannot be effectively attributed to Nicaragua because they are independent groups. There is not an "armed attack" so the US can't claim self-defense. Test of "effective control" and attribution is not met; the US encouraged violations of IL by the contras, but those violations are not directly attributable to the US. Although the actions of the contras were not directly attributable to the US, the US still engaged in military interference within Nicaragua, which violates non-intervention and violates Nicaraguan sovereignty. US encouraged severe interference in Nicaraguan domestic affairs. Afterwards, the Nicaraguan government planned to sue the US government in US courts for $1b in damages, which went nowhere because ICJ decisions are not enforceable in US courts. Takeaways: interpreting compliance with laws around uses of force is tricky. Even something like defining an armed attack requires detailed analysis. Shows how the jus ad bellum is unsatisfactory, and most alleged violations of the laws of war and peace won't go to a DSM.

Nuclear Weapons

1996 ICJ advisory opinion where they found the use of nuclear weapons could be legal. 7-7 tied court, decisive vote cast by ICJ president. Not enforceable because it's non-binding. There is no treaty law prohibiting the use of nuclear weapons. There is general practice of non-use, but the court can't find opinio juris. States don't avoid their use because they think it's illegal. The court discusses that their use might not be legal because of principles of IHL like distinction, unnecessary suffering, proportionality, and necessity. Nuclear weapons are limited in their ability to distinguish combatants and non-combatants. Court found they might be legal under cases of extreme self-defense because each state has the right to survival. "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake"

Geneva Conventions

4 Conventions in 1949 that are a response to human suffering of World Wars. A supplement to the UN Charter, lays out the jus in bello. 1) Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 2) Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 3) Treatment of Prisoners of War 4) Protection of Civilian Persons in Time of War Major provisions of this and Hague are already customary. Treaties are designed to codify existing practice, with mild new extensions to new weapons.

Trade-off

A necessary component of trade law. Cannot have the ideal where the government gets the best of both worlds (except maybe where there are power imbalances), and has high tariffs on imports, with another country having low or no tariffs. In this case, the government would not have to choose between consumers and producers. States mostly negotiate a middle ground compromise. Tariff rates are equivalent to each other, have common approaches to subsidies, quotas, etc. There might be some harm to national producers, but consumers get cheaper prices.

Attribution

A principle from the Tehran Hostages case: endorsement, support, or inactivity may lead to transformation into acts of the state. In terms of armed activity, the relevant test is "effective control," where the bar is high and the country needs to control the military activities of a certain group. In Nicaragua, the test is not met on either side: "The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras" Assistance does not equate to attributability.

Non-intervention

A principle substantively similar to Art. 2(4), where states have a customary obligation to not interfere in another state's sovereignty or territory. In Nicaragua, the US violated this, and the ICJ states "... the support given by the United States, up to the end of September 1984, to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention" One state can't interfere in another state's domestic affairs.

Distinction

A principles of IHL which states that combatants are legitimate targets, but non-combatants can never be targeted. No weapon can be used which cannot distinguish civilians.

Combatants

Actors in armed conflict who are entitled to use armed force (Art. 42, AP-1). Not everyone who has arms has this title. Members of national armed forces are combatants, and are entitled to PoW status (Art. 4(A)(1), GC3). Members of "dissident armed forces" are combatants (AP-II), but not entitled to PoW status. Engaging in hostilities without combatant status is illegal (like terrorism).

GCAP-1

Additional Protocol that deepened the provisions that apply to IACs, like saying that wars of national liberation (colonization) are IACs.

GCAP-II

Additional protocol that deals with NIACs. Expands fundamental guarantees for non-combatants (Art. 4), anad minimum safeguards for prisoners (not PoWs) (Art. 5). Has procedures for legitimate punishment, including some independent review (Art. 6). There is a prohibition on attacking legitimate target if it unduly affects civilians (Art. 13-18). Until this point, only CA3 applied. Goes beyond uncontroversial CIL. Provisions related to NIACs are not already customary. In part due to previous infrequency of such conflicts, outside colonial context. Provisions are observed, at least not contested, most of the time, so we don't necessarily look at treaty ratification to determine legal status.

The War on Terror

After 9/11 there was an enormous range of problems with very little precedent. One of them was the question of what to do with captured fighters from the Taliban and al-Qaeda. There was a policy problem of how the US would fight global terrorism. If the conflict with al-Qaeda/Taliban is an IAC, it would be covered by the full provisions of IHL and GC4, which protects noncombatants (typically civilians). Gives a minimum standard of treatment, until tried under DL of capturing treatment. CA3 applies to NIACs, and there is a provision against cruel treatment and torture, and the passing of sentences and carrying out executions without proper judicial proceedings. Even rebel combatants are eligible for these protections. They may be found guilty, but they cannot be tortured and must face a legitimate trial. Bush administration found detainees to be combatants that were not eligible for PoW status. They were engaging in hostilities, but were not part of national armed forces. Argued detainees were not covered by IHL at all because they were unlawful enemy combatants (term with no prior history or grounding in IL). Said al-Qaeda and Taliban were not states, so the War on Terror is not an IAC and most GC provisions don't apply. They are also transnational NSAs, so conflict against them is not a NIAC. CA3 does not apply. IHL does not apply to them and they have no rights.

GCCA2

Applies "to all cases of declared war or of any other armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." Countries can't escape the jus in bello because they don't recognize a war is happening.

Disputement Settlement Board

Board of the WTO that adjudicates disputes, primarily via 3-person panels. Panels are drawn from a roster of judge at random. Each panel is assembled ad-hoc, and dissolved after each dispute is resolved. Decisions can be appealed to "Appellate Body": 7 judges, with 3 required for each case. Issue with this right now because US is refusing to appoint new judges. Judges for Appellate Body are chosen by consensus, and the US is refusing to sign off on new judges since August 2017 because there is conflict over interpretations of anti-dumping rules. US is seeking to obtain most favorable interpretations of WTO law. Not compatible with rules-based trade order. Their goal is to paralyze the dispute system, enabling rules violations without leaving the WTO. With all states unconstrained, the US would have more economic power to force concessions by others. Other states are working on potential alternatives, but they are not legally binding. Now there is only 1 judge on the appellate body, and they cannot hear any appeals without at least 3 judges. its panel is knee-capped because the US is refusing to approve new appointments.

Harmonization

Business conditions becoming more alike internationally. Now there is a convergence of regulatory environments. FTAs establish similar investment climates. They have common regulations, shared standards of health and safety, reduced costs of operating across borders with tariffs, protections for intellectual property like trademarks and copyright, and ISDS mechanisms give this teeth.

Catalan Separatism

Catalonia wanted to secede from Spain. Might have CA3 rights because it is not a state. Extradition of Catalan leaders was refused because they were accused of sedition, or rebelling against a state. This is a political offense. Other actions, however, like misappropriation of public funds, are not political. In terms on IL on a larger scale, extradition constitutes compliance via mutual self-interest. But sometimes states choose not to extradite people.

Syrian Civil War

Conflict where US takes the side of one of the warring parties, like the SDF. If the US recognizes that party as the legitimate government of Syria, it can invoke collective self-defense to aid that party militarily as long as there is an armed attack. If it does not recognize that party as the government of Syria, it cannot invoke collective self-defense because it can only be invoked in support of other states. The actions of ISIS can't be attributed to Syria. You could violate Syrian territory to attack ISIS with UNSC authorization or collective self-defense. However, the SDF is not a state.

Canadian dairy

Country with a substantial amount of government involvement in the dairy industry. Tariffs on most imported dairy: 245% of cheese, 298% on butter. Quotas for dairy production: total volume set by government, allocated to specific farms. The effect is price stabilization. Exports from US to Canada have only increased gradually, with the imports from Canada to the US. Farming is more difficult to enter into because there are higher barriers. Canadian farmers are unlikely to be efficient, or innovative, because they know the government is helping them. Dairy prices are more expensive than in the US, which harms low-income Canadian families. Canadian dairy farmers have greater certainty in business decisions; stable investment environment, limits likelihood of bankruptcies, industry stays local and is not bought out by foreigners. Has little import competition. Price is more stable.

International Atomic Energy Agency

Created in 1957 to promote peaceful use and inhibit military uses of nuclear weapons. Trusted with monitoring and peaceful implementation.

Humanitarian Intervention

Defined as "coercive action by States involving the use of armed force in another State without the consent of its government, with or without authorisation from the United Nations Security Council, for the purpose of preventing or putting to a halt gross and massive violations of human rights or international humanitarian law." Involves threat or use of force, interference in internal affairs of a sovereign state, motivated by humanitarian goals, not strategic interests.

Bybee Memo

Defined torture very narrowly, policy decision of the executive branch to engage in self-defense.

WTO DSM

Dispute Settlement Mechanism of the WTO. Available to all WTO members when they believe another member is violating WTO rules, still only states. Only acceptable retaliation to rule violation is WTO DSM. States cannot act unilaterally. Adjudication body: decisions are binding on participants. Precedents are binding within the WTO system. Consequences are that illegal trade policies may remain in place, but affected countries may impose sanctions on offending states, equal to dollar value of harm caused. States may use revenue raised by tariffs to aid affected industries, but don't have to. Self-help system; no collective action to punish a rules violator, nor an independent prosecutor.

Corporations

Entities largely absent from public IL, but play an enormous role in contemporary life. Defined in ICJ case Barcelona Traction (1970). Protection of shareholders in a company. Has limited individual legal personality. Their treatment is similar to that of individuals. Not direct legal personality under IL, with ICL exception. But there is an obligation for states to treat them in specific ways. Cannot violate many laws because they mostly bind states (jus ad bellum) or others don't apply (jus in bello). Can violate international restrictions, like arms control. May also be complicit in committing crimes, like facilitating violations of IHL. But the standard for complicity is high, aiding and abetting must be found. It must be proven that the corporation sought out the abusive outcome or benefitted from it. They are regulated through states, lack of legal personality reflects absence of obligations. They only have rights or obligations where they are granted by states. Not inherently self-enforcing, but under the laws that govern them are self-enforcing issue areas. Creating stable investment environments sees economic growth. Issue areas that are not self-enforcing see little hard IL, like environmental law. Politics play a role in how they are governed, and why corporate IL has more teeth than other types of IL.

UNSC authorization

Exception to Article 2(4) which allows the UNSC to recommend the use of force in order to keep international peace and security. Laid out in UN Charter Article 39. Is a treaty law obligation for all states, and is also probably custom. When there is a threat to the peace, the UNSC can decide what to do because they make their own rules. UNSC has blanket authorization to sanction uses of force, based on Chapter VII of the UN Charter and built on a principle of collective security. Typically operates as a permissive mechanism, rather than directly using force. Collective security is unrealistic, but rules need a minimum degree of legitimacy.

Dumping

Export of a product at a lower price than usually is charged in a home market. Can lead to monopoly and oligopoly. Poses a threat to long-term competition in global markets. Reducing prices in short term is costly, but costly to all producers. The Goal of the firms in country A that are exporting cheap goods will outlast the firms in country B that are importing. Country B will eventually go out of business and without competition, country A can raise their prices. Very complex to identify and prove. Country alleging violation must show price differential between markets, must show harm to affected domestic industry, and must quantify how much harm this action creates. Then has to prove this to WTO DSM.

GCAP

Geneva Convention Additional Protocols. Agreed in 1977 as a product of global circumstances. Their primary focus was civilian and non-combatant protection.

Anti-dumping

Hard rule of WTO membership against dumping that binds all members. Article VI of the GATT and subsequent Anti-Dumping agreement.

Compliance

How the jus in bello, extradition, and jus ad bellum are similar. Works when enforcement is less present. All are built on a collective determination of what is appropriate. There is no impartial external enforcement but the law is still followed. The content of IL reflects consensus on what "ought" to happen. Behavior concentrates around standards.

IHL

International Humanitarian Law: "A set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities[,] and restricts the means and methods of warfare." Includes protection of those not engaged in combatants (civilians, wounded, etc.) and restrictions on means and methods of warfare to make them more humane. Rules of IHL are usually followed without external enforcement. The rules are normally followed, and this is highlighted by the clear finding by the ICJ of CIL principles in Nuclear Weapons. It's rare that any entity, state or not, rejects CA3 as a minimum. Respect for IHL can be expected to be weakest in NIACs. There are fewer opportunities for reciprocity, you're dealing with NSAs and whether they are legit or not, and they deal with sensitive topics like civil war. Provisions in AP-II for NIACs are weaker, and the full range of IHL does not apply. Even in CIL, NIAC rights are more limited than IAC rights. But acceptance that these rules apply are almost never rejected. Even when they are not perfectly observed, it is significant that rules of law are accepted. Therefore, emphasis should be placed on compliance rather than enforcement. Observing compliance is separate to the question of whether legal standards are sufficient. Some argue standards should be higher, like no uses of force when civilians can be killed, ever. But higher standards would need to be observed for them to work. IL relies on consensus, and artificially imposing norms won't stick. Interpreting principles of IHL can also be hard, and defining terms like proportionate and torture can be unclear. But pressure exists regardless of if laws are strictly enforced. Mutually agreed-upon standards constitute both a source of IL and a means of promoting compliance with IL. Matters because IL represents the framework for inter-state relations that countries around the world have agreed upon. To act in accordance with law is to act within accepted behavioral boundaries. Violating law is doing something unacceptable. Degree to which IHL is accepted as legitimate, & degree to which it is followed in practice, are intimately connected.

Arms control

International restrictions upon development, production, stockpiling, proliferation, and/or usage of small arms, conventional weapons, and weapons of mass destruction. Primarily prior to armed conflict, use of certain weapons in conflict is IHL. Shapes entry and conduct in war. Various forms include full disarmament, which is rare, prohibitions on specific arms, restrictions on the development, production, and/or stockpiling of specific arms, restrictions on proliferations of specific arms. Incentives to restrict arms include humanitarian reasons, economic costs, trust building to avoid arms races. Disincentives include status quo bias, export profits, alliance settlement, testing/future-proofing, geostrategic uncertainty, and an enhanced likelihood of war. There are real potential mutual benefits to arms control, but there are high consequences of betrayal for things like unilateral disarmament. States who disarm are less capable of launching or resisting attack and may encourage attacks due to weakness. We should expect to see no arms control agreements. No agreements have been legally enforced in courts, and the law would likely be unable to enforce them. There are jurisdiction barriers, and courts like the ICJ would be unlikely to be granted jurisdiction over national security. Domestic courts, especially in dualist countries, are typically excluded from foreign affairs. See Marshall Islands. Additionally, most treaties allow for withdrawal. Even if domestic courts had jurisdiction, executives can withdraw. Also, ignoring international court decisions has minimal costs. Compliance with arms agreement is often strong- see NPT, missile agreements, and landmines. They can work without external compulsion. Monitoring, self-interest, activism keeps states constrained to act within the normative boundaries. Ambition of these treaties is constrained, conservative issue area because treaties reflect what states believe is in their own interests. We only see treaties states believe will be respected. Negotiations and public pressure can push states to accept slightly more restrictions than they would otherwise. Techniques like stringent monitoring can increase confidence treaties will be respected. Structure of arms control treaties reflect and shape political consensus.

ISDS

Investor State Dispute Settlement. Treaties usually have investment dispute provisions that are able to be heard under this. Hears companies vs. state disputes, doesn't have a permanent settlement body. Bypasses domestic courts. Can help businesses by giving them similar conditions and allowing them to move between countries. Disputes that usually involve foreign businesses claiming a foreign businesses claiming that a host government abused them by expropriating their assets, discriminating against them, or otherwise treating them unfairly. Venezuela example: a Canadian gold mining company claimed that Venezuela's nationalization of the gold industry in 2011 violated an investment treaty between the two countries. A tribunal found that while Venezuela had the legal right to nationalize private sector industries, it failed to properly compensate the company for the expropriated assets. Shows how provisions can be positive when governments treat corporations unfairly. Can also have backlash; for example, when countries tried to run public health campaigns against smoking, the tobacco companies threatened to sue them in the ISDS. Some countries could not afford to be sued, and the corporations were able to effectively control domestic policy.

Trade law

Laws governing international trade. Premised on the assumption of mutual gains from reducing barriers to inter-state trade. States negotiate rules about what type of actions are accepted. Potentially self-enforcing, benefits of compliance outweigh defection. Everyone is better off if they comply. Conditional upon enforcement mechanisms to identify and punish defection (why WTO DSM is important). System is predicated on a buy-in to the assumption of mutual benefits. Based on specific principles to work. A state that rejects an agreement has mutual benefits will withdraw, or will sabotage agreement from within.

Jus ad bellum

Laws governing resort to use of force, states when it is permissible to go to war. There is no consensus on how to update this, which is fundamentally a political problem. The law cannot dictate where political consensus is absent. There is some enforcement, but only really via self-help and/or power politics. Collective security is a relative failure.

jus in bello

Laws governing what you can do in an armed conflict. What can be done in wartime. There is very little strict enforcement, the effects of IL come from defining acceptable standards that it makes sense for states to abide by.

MFN

Most Favored Nation status. A principle of non-discrimination. Privileges for one state are granted to all other states. "The MFN principle stipulates that each Member grant the same treatment to like products originating in all other Members that it extends to its most favoured trading partner; in other words, Members are forbidden from discriminating among their trading partners."(World Trade Report 2007, 132). States can't pick and choose who benefits, and this prevents against being undercut later on. Principle that is enforced because complaints can be brought to WTO DSM. There are exceptions, like preferential treatment of developing countries, regional free trade areas, and customs unions. Says you can't discriminate against trading partners or give some countries lower tariffs on imports than others.

NPT

Nuclear Non-proliferation Treaty, went into force 1968. A bargain that non-nuclear-weapon states agree never to acquire nuclear weapons. Nuclear weapon states agree to share peaceful technology and pursue disarmament. Goes along with status-quo-bias: prohibits weapons proliferation, not weapons possession. States have an obligation to negotiate. An unprecedented structure, no other arms control treaty is similarly structured. Has been pretty successful, only 4 additional nuclear weapons states and no use of nuclear weapons. There has been peaceful use of nuclear technologies. There have been NW sacrifices in South Africa, Belarus, Kazakhstan, and Ukraine. There have been some limits, like global intellectual property transfer. There have also been nuclear incidents and failures (like Chernobyl).

UN purpose

Possible, but not solid, exception to prohibition on the use of force. Article 2(4) says states can't use force that is inconsistent with the purpose of the UN. The purposes of the UN in Art. 1 says "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." This purpose could provide a way out of the prohibition laid out in 2(4). However, "collective measures" is probably covered by the UNSC, and Art. 2(7) says nothing in the Charter can be read with loopholes except the UNSC for its own rules. And there is often UNSC gridlock.

Collective security

Presumption that there is a shared interest in maintaining the peace.

Unnecessary suffering

Principle of IHL which states that even if one can legitimately target certain combatants, no weapons should be used which can cause them unnecessary suffering.

Reciprocity

Principle of trade that you cannot accept concessions without offering others.

UN Charter Art 2(4)

Prohibits use of force. "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN." Is probably custom, according to the ICJ in the Nicaragua case: "It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule." General practice is not perfect, considering states use force all the time, but rules should be treated like rules and there is a customary prohibition on the use of force even if compliance is not perfect.

New START

Ratified in 2011 between US and Russia, regulated 700 missiles/bombers and 1,550 warheads.

Carousel tariffs

Rotation of retaliatory tariffs among many types of products. Goal is to increase the producers feeling economic pain and enhance uncertainty about what is next. Producers then may be pushed to go against elected officials.

SALT I

Strategic Arms Limitation Talks between the US and Russia. 1969- Anti-Ballistic Missile Treaty limited the total number of BMs each side had, but the US withdrew in 2002.

START I

Strategic Arms Reduction Treaties between US and Russia, ratified in 1991 that regulated 6,000 warheads on 1,600 missiles. Removed approximately 80% of all deployed nuclear weapons. START II was never ratified by the US.

Hamdan v. Rumsfeld (2006)

Supreme Court case that decided the US must follow the Geneva Conventions, even in domestic law. Hamdan was a detainee captured in Afganistan and was brought to Guantanamo Bay. He was charged before a military commission and filed for a writ of habeas corpus, or the right to be brought before a judge, claiming his GC rights had been violated. He argued he should be treated as a PoW, and hence subject to the same trial procedures as US service people. Even if he was not a PoW, he should've gotten protection under CA3. Government argument: Geneva Conventions are IL, not domestic law, so Hamdan cannot invoke them. Even if the GCs are domestic law, Hamdan gets no protection because he is an unlawful enemy combatant, according to Rumsfeld and the Bush administration. GCs can be applied by a domestic court through self-executing treaties, non-self-executing treaties, enacted by Congress, CIL that does not conflict with an existing statute, and if GC provisions are explicitly referenced by a domestic statute. The Supreme Court interpreted the Uniformed Code of Military Justice, which stipulates that any military tribunals must abide by the laws of war. Includes the GCs, which are also part of CIL. The court found that Hamdan cannot be excluded from the GCs; as soon as the GCs apply, we deal with IACs or NIACs, no third choice. Being a rebel combatant is not illegal; even if a combatant does something unlawful, they are covered by CA3. The military commission is unlawful whether Hamdan was a PoW or not (even though he was subsequently found not to be). Now "enemy combatant" means a non-protected combatant who is granted minimum rights under CA3. Takeaways: GCs are part of CIL and part of domestic law. No category permits an escape from IHL (like an unlawful enemy combatant) The bare minimum provisions of IHL come from CA3, like a right to a trial and prohibition on torture.

Unwilling and unable

The idea that a host country cannot or will not deal with a threat in their territory, so other countries have an obligation to intervene and maintain peace. Like anticipatory and pre-emptive self-defense, this could only be legal under CIL. States have a responsibility to prevent all uses of force, not just their own armed attacks. An atextual reading of 2(4). There might be an implied responsibility to prevent uses of force by NSAs. Failing to prevent these uses of force means a country forfeits the right to non-interference. Controversial, boundaries are not clear.

Mutual benefits from common strategies

The theory guiding trade law. Consumers have access to a greater range of products, and cheapest source of each individual product. Also, producers can export to more markets. Benefits will be greater the larger the size of this common economic area. Leads to a push for large, multilateral trade agreements. Globally, there is the WTO. Regionally, there is the TPP (Trans-Pacific Partnership) and RCEP (Regional Comprehensive Economic Partnership). You want countries to sign onto the rules you make. States must affirmatively agree to create new rules. Trade is self-enforcing because continued participation in trade agreements is mutually beneficial to all. But there are still incentives to defect (free riding, advantages without disadvantages). States can protect domestic markets without telling other states. Trade agreements have to impose costs for defection. Compensate for any economic benefits gained by violating rules and threatening future participation in the trade regime.

Corporate IL

Type of law that applies to corporations. Is often soft law, quasi-legal, not binding but persuasive. Corporations are guided under codes of conduct or principles. Expectations, norms, responsibilities, instead of binding rules. Many issues related to corporate behavior like taxes and lobbying are not regulated globally. There is perceived self-interest of states in greater business freedom. Now IL has a neoliberal interpretation (laissez-faire economic liberalism and free market capitalism). States perceive self-interest in fewer restrictions on corporate activity. Pushback from Australia, US, and UK on ISDS. Shows how politics leads to law. States have a desire to govern their own corporations. We see laws governing corporations at the national level despite similar conditions internationally because coordination at the international level requires compromising national control. The requirement for consensus is give and take. IL action is mostly in smaller groups of like-minded countries, like with regional trade agreements. Where states can agree there are rules. Usually they can't agree. Also, if states are not governing their own corporations, no one is.

Hard law

Type of law that grants rights rather than imposing obligations. Granted by treaty; CIL mostly does not apply to corporations. Overwhelmingly in trade and investment treaties, has an economic focus. Ex: ISDS provisions of FTAs give explicit rights to corporations, they are able to sue governments for adverse policy changes. No equivalent requirement under IL with environment, HRs, etc. States may have domestic laws, but these are not harmonized and codified internationally.

Pre-emptive self-defense

Type of self-defense that is against a development that is not yet operational, but if permitted to mature, could have high costs. Not necessarily imminent or existential. "could... be neutralized only at a higher and possibly unacceptable cost." Example is US invasion of Iraq. US said UNSC was unable to act, but if this type of self-defense is allowed, there must be state practice. It is probably not a right beyond the charter because there is not enough evidence to prove it's custom.

Missiles

Type of weapon that does not have a multilateral, open-entry arms control treaty. Has high-profile bilateral agreements, like with the US and USSR with SALT and START. There are still enough warheads to destroy the world many times over. Agreements reduce costs, reduce potential for mistakes, and build confidence through monitoring procedures, as there are troops in each others' countries. Many agreements failed because many negotiations failed due to a lack of consensus on end goals. Money shifted to other areas, like "star wars" or ballistic missile defense. Additionally, the US and Russia are no longer the only relevant actors and there are few multilateral treaties.

ATT

UN Arms Trade Treaty of 2014. Comprehensive, tells states to regulate when ammunition leaves, and when you are not allowed to export. 103 parties, 32 signatories. Includes the UK, France, Germany, Italy, and Spain. Does not include China, Russia, Israel, S. Korea (other top 10 countries). USA signed but Trump announced it would be withdrawing in 2019. Treaty does not regulate domestic arms sales or carry policies, ban export of any weapon type, or influence legitimate right to self-defense. It applies to everything, though: small arms to battle tanks to attack helicopters. Says "Each state party shall establish and maintain a national control system to regulate: the export of ammunition/munition (Art. 3) the export of parts and components (Art. 4)." States can't export arms if in violation of a UNSC resolution (Art. 6(1)) or if they know arms "would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes" (Art. 6(3)), nor if they think arms exports would lead to violations of IHL, IHRL, support terrorism, organized crime, etc. (Art. 7). Its success is heavily dependent on normative change because it is not built on monitoring or enforcement. Large part of this is the normative push before the treaty, because there was a drive to develop a treaty, and there are extended negotiations over consensus in treaty text. It could be a substantial achievement in laying out a standard, or is just a fluffy document with no teeth.

Mexican dairy

Under NAFTA, has free trade for dairy products. Domestic producers are in direct competition with foreign imports, and they have cheap domestic dairy prices. US exports to Mexico increased significantly.

US Dairy

Uses protectionism in a less extreme form than Canada. Tariffs on much imported dairy, but an average of 30%. This is sufficient enough to discourage most imports. Product of negotiating leverage and political priorities. Price fluctuates a lot.

UN Global Compact

Voluntary commitment by CEOs of large companies (13,000+ participants) that includes 10 principles, encompassing socially responsible business practices. 1. Businesses should support and respect the protection of internationally proclaimed human rights 2. Make sure they are not complicit in HR abuses 10. Businesses should work against corruption in all its forms, including extortion and bribery. No regulations, but discussions over best practices, legal changes, etc. No independent enforcement, and no ability to kick people out.

Principles

Way of looking at IHL that moves away from specific restrictions and towards general ideas that govern all armed conflicts.Built on the model of the Martens Clause, but not specifically derived from treaty.

Monitoring

Way to enforce success of treaties, specifically arms control treaties. Protects against defection. Can have independent monitors, like with the IAEA, national monitors from different countries like SALT, and remote monitoring via satellite.

Ottowa Treaty

Way to regulate land mines. Formally called the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. There are 164 state parties, 1 signatory, and 32 non-signatories. Excludes the US, China, Russia, S. Korea, and N. Korea. Structure is similar to the ATT, where there is no monitoring or independent verification, and is dependent on normative change. Has a narrower target. Tighter focus means it might be easier to reach consensus. More normative agreement than on small arms. Widely seen as a success, because 29 polities cleared all land mines, 51 million mines were destroyed, and deaths from land mines went down. Might be example of a successful process of stigmatization. Example of normative success is in US Army's Program Executive Office Ammunition, 2017: US policy on land mines is driven by the "Ottawa accord, even though we have not signed it."

Land mines

Weapons with similar characteristics to small arms. They are cheap, difficult to attribute, and common worldwide.

Arms control success

What factors must be considered in determining whether controlling arms will work. More states that are involved, the harder it is to reach an agreement about regulation. It's harder to constrain cheap and widely available arms, while costlier arms are easier to manage. Easily identified arms are easier to control (attributability). Limited use can be easier to agree on in a trade agreement, like with landmines. Need mutual self-interest: agreements sustain as long as they are useful, and will be ignored or exited if they are not beneficial. Ability to leave might also encourage entry.

The Golden Straitjacket

When areas of disharmony among policies for corporations internationally create opportunities for regulatory arbitrage (the practice of taking advantage of a price difference between two or more markets). Corporations choose jurisdictions with favorable rules and threaten to leave without policy change. The result is that government are forced to adopt similar regulations. Leads to greater business investment but limits policy freedom. Shows how IL is set up to constrain states, not businesses. Shows that a prerequisite for existence of law is that there must be consensus among states that certain activities should be prohibited. Absence of consensus means there is a permissive regulatory environment.

WTO

World Trade Organization. Makes the rules for global trade. Membership involves states, and there are 164 members and 23 observers. Came from the GATT (General Agreement on Tariffs and Trade) of 1948. Governs national policies, not specific actions of individual firms. Built on legally binding principles, like non-discrimination, reciprocity, safety values, binding and enforceable commitments, and transparency. Has its own DSM, also oversees multilateral "rounds" of trade negotiations separate from the structure of the organization itself. Most recent successful round was Uruguay in 1994, current Doha round started in 2001, negotiations have not been agreed upon yet.

Selective tariff imposition

Wronged states choose what products are hit with retaliatory tariffs. Goal is to maximize domestic political pressure on governments.