To Be or Not To Be

As mentioned in class, the Palestinian Authority looks set to apply to both the U.N. Security Council for membership in the U.N., and to the General Assembly for observer status. Both are aimed at gaining recognition of Palestine as a state  under international law. News reports on its bid, and the opposition by the U.S. government are can be found here, here, and here. There is much more on the web if you are interested. Here is also a Crisis Group report on the issue.

Consider the application in the context of your readings for next week on the nature of states as subjects of international law, and the criteria for determining whether an entity is or is not a state.

Other Sources of International Law

Once finished with Customary International Law, we will turn to examine other sources, namely general principles of law, judicial decisions and publicists, and ancilliary sources such as UN General Assembly resolutions.

In doing the reading, focus on the following sections:

- Section 1 (A), Tadic, and the Schacter piece;
- Section 1 (B) Equity and Good Faith, and the Friedman piece; and "proportionality" beginning on p.252., and Corfu Channel (p.253);
- Section 2 (A), Judicial Decisions (whole section).
- Section 2 (B), teachings of publicists - just skim;
- Section 3 (A), UN resolutions, and Filartiga v. Pena-Irala;
- Section 3 (B), skim Security Council lawmaking;
- Section 6, Unilateral Act, Nuclear Test case (New Zealand v. France).

Dueling Reports on Israeli Blockade

As reported here last week, a U.N. panel released a report on the Israeli actions in boarding the flotilla of largely Turkish vessels bound for Gaza, in which 9 people were killed by Israeli forces. While finding that Israeli use of force was excessive, the panel held that the Israeli blockade itself was consistent with international law. This week, a committee of the U.N. Human Rights Council came to the opposite conclusion. This is likely going to lead to another round of debate on the issue. Examples of earlier analysis can be found here , here, and here. Below is a new report shortly after the incident.

Customary International Law Continued

As we continue our examination of customary international law, we will focus on the  North Sea Continental Shelf case, Nicaragua v. U.S.A., and the various pieces on jus cogens norms and normative hierarchies within custom. Finally, by the end of the week we will be looking at the relationship between treaty and custom, in Section 3 of Chapter 2. Review the Schachter piece briefly, but focus on part C and the notes thereto.

Some questions to consider as you go through the material, are:

- to what extent does the court's position in the Nuclear Weapons case depart from and overturn the presumptions in the SS Lotus case?

- How is the element of time dealt with by the court in North Sea Continental Shelf? How would that support or negate the more recent arguments for "instant custom" (see note 8 on p.89 and note 3 on p.95)?

- We will return to look at Nicaragua v. U.S.A. several times during the course. What you have here is only a very short excerpt. You may want to familiarize yourself with the context of this excerpt by looking at the summary of the case, which you can find at the ICJ website, a link for which is in the right margin.

- Why is it that the court in Nicaragua spends less time examining evidence of widespread state practice?

- How can a state resist the obligations of customary international law that might emerge from the widespread adherence to a treaty that the state specifically decided not to agree to? How does that impact on the issue of consent? Conversely, should we permit states to opt out of norms that are becoming increasingly universal? Should South Africa, for instance, have been permitted to opt out of norms prohibiting racial discrimination?

Customary International Law

On Friday we will begin our examination of customary international law. We will discuss the cases Paqete Habana, the SS Lotus (France v. Turkey), the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,  and we may have time to begin discussion of North Sea Continental Shelf (Germany v. Denmark v. Netherlands). So, in addition to reviewing the introductory material on customary international law, pay particular attention to these cases.

International Law Round-up

The former Army Chief of Staff in the Former Yugoslavia, Momcilo Perisic, was convicted this week of crimes against humanity and war crimes, for the attacks of Serb forces on civilians, and for the support he provided to the Bosnian Serb forces that, among other things, were responsible for the massacre in Srebrenicia.

Last week the U.N. panel reviewing the legality of the Israeli use of force against the Turkish flotilla in international waters last year, released its report last week. News stories on the release, and the impact on the deteriorating relations between Israel and Turkey, can be found here and here, while the report itself is here. We may touch on this when we get to the Use of Force. There is a lot of scholarship, both pro and con, on the issue of the legality of the Israeli actions, for those interested in the issue.

Finally, an issue that is looming like a runaway freight train this month, is the intention of the Palestinian Authority to seek recognition of the state of Palestine and its admission to the United Nations. The U.S. has indicated its intention to veto any such application in the Security Council, but it cannot block a vote in the General Assembly, where the application is expected to win majority support. You should follow this, as we will discuss it when we come to issues of state recognition, the essential criteria for the existence of a state, and U.N. membership.

Wikileaks and International Law

As most of you will have seen, the Wikileaks issue is back in the news, as a new and large batch of diplomatic cables has been released, and reports surface that the entire cache of cables is actually available somewhere on the web.

An investigation is ongoing in the U.S. to determine whether Julian Assange, the principal and founder of Wikileaks, should be prosecuted under U.S. law, specifically the 1917 Espionage Act. (For those interested in reading more on the entire sage of the Wikileaks disclosure of classified military and diplomatic cables, a useful collection can be found on the New York Times website here).

There are obvious constitutional issues raised by such a prosecution (1st amendment); but what issues would such a prosecution raise from an international law perspective? We will address this later in the course, but give it some thought. What principle of international law might be implicated?