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International law and the Environment

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  1. International law and the Environment Lecture 30 April 6

  2. Conference of World 1717 The International Rule of Law 3:00-4:20 on MondayApril 6, 2009 Wolf Law Wittemyer Courtroom 2163 The Future of the UN and Why it Matters 9:30-10:50 on Tuesday April 7, 2009 UMC Center Ballroom 2450A PLENARY Yes, The UN Can! 12:30-1:30 on Tuesday April 7, 2009 UMC Center Ballroom 2613 Genocide: Beyond Outrage 2:00-3:20 on Tuesday April 7, 2009 UMC Center Ballroom 3318 U.S. and UN: Can This Marriage Be Saved 11:00-12:20 on Wednesday April 8, 2009 Wolf Law Wittemyer Courtroom 4500A Climate Threat to the Planet: Implications for Intergenerational and Environmental Justice, Jim Hansen, 1:00-1:50pm, Thursday, April 10, 2009 Macky Auditorium

  3. ASSIGNMENTS Wednesday, April 8 Finish Trail Smelter Case Rio Declaration Stratospheric Ozone Layer, p.642 Find and review the Vienna Convention and Montreal Protocol on the internet: • Climate Change Legal Regimes – – MUST READ – not in textbook – just note 9 on page 654 1.- UNFCCC 2.- Kyoto Protocol Wednesday, April 8 - Quiz-4 Final exam: May 4, 4:30-7pm, HUMN 1B50 Today: UN Reform p. 610 - A More Secure World: Our Shared Responsibility p. 569 International law rules on jurisdiction – slides only Introduction International Environmental Law Trail Smelter Case

  4. Student Presentations Attendance is compulsory • Attendance sheet will be sent around randomly • Exam questions are possible from the presentations • – Use other sources (internet: to read up on areas that are being presented (topics will be posted the previous class) – I’ll post the topics on Wednesday. • -HAVE YOUR QUESTIONS READY FOR THE PRESENTERS –

  5. Presentations • E-mail me your title, your name, and 3 main points 2 days before your presentation • - 5-10 minutes, succinct, write 3 main points on blackboard, no reading of papers- only notes • - If you like, you can e-mail me a power-point presentation 2 days before your presentation which I can put on my computer

  6. Humanitarian Intervention-1 • The Responsibility to Protect – see A More Secure World - • How extensive should the human rights violations be? - extreme, grave • More legitimacy if several states intervene? • Conditions? – no other means to rectify the violations • Supported by the beneficiaries • Least destructive • The States that intervene withdraw when the objective is reached Carried out under the auspices of the UN. KOSOVO 1999 – No UNSC authorization

  7. Humanitarian Intervention-2 In considering whether to authorize or endorse the use of military force, the Security Council should always address - whatever other considerations it may take into account - at least the following five basic criteria of legitimacy: (a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie (at first sight) the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended? (b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

  8. Humanitarian Intervention-3 (c) Last resort. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed? (d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question? (e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction? 208. The above guidelines for authorizing the use of force should be embodied in declaratory resolutions of the Security Council and General Assembly. 209. We also believe it would be valuable if individual Member States, whether or not they are members of the Security Council, subscribed to them.

  9. UN activities relating to peace and security • Changed after Cold War – how???? • - beyond monitoring cease-fires or observing boundary lines • - in numbers • - qualitatively • 1) Intra-state conflicts • 2) Humanitarian purposes • 3) Nature of the operations • - After the cease-fire – AND After the conflict has been settled see p. 554, para.21 • - instruments for peace and security • Preventive diplomacy and peacemaking • Peace-keeping • Post-conflict peace-building – nation-building

  10. UNSCCHANGING THE CHARTER – more legitimacy? • 1. Not just look at military power, also economic power – add Germany, Japan, Brazil, India • 2. Democratic deficit – Ch.VII – “Consultation Committee”? – 21 members of GA • 3. – Overly secretive “informal consultations” – more transparency • 4. Normative deficits – normative justification – when does the SC act? • 5. The ICJ role in the constitutionality of acts by the SC and GA – judicial review • ICJ Advisory opinions

  11. Jurisdiction We will not cover the jurisdiction chapter in the book – only these slides and earlier references (like the Lotus Case) will constitute the coverage in this class. • Authority to effect legal interests • Relationship to sovereignty • Under what power can a state exercise its sovereign powers beyond its borders? • 3 Kinds of jurisdiction: 1) legislative/prescriptive, 2)judicial/adjudicatory, and 3)executive/enforcement jurisdiction • Jurisdiction is defined under municipal law • Intl law – defines limits states may not exceed • Not well developed rules- Focus on criminal issues

  12. 5 bases for jurisdiction in INTERNATIONAL LAW • 1. The territorial principle - subjective (internal) - location of defendant’s act - objective (external) – effects principle – Lotus case • 2. The nationality principle - active (nationality of the defendant) – Blackmer case (not assigned – you can read it if you like, but not required) - passive (nationality of victim) • 3. The protective principle – national security

  13. 5 bases for jurisdiction in INTERNATIONAL LAW - 2 • 4. Universality principle – universal concern (genocide, piracy) all states have an interest in exercising jurisdiction– even if no other base of jurisdiction is present – just custody of the suspect • 5. Jurisdiction based on agreement – treaties - Guantanamo The exercise of jurisdiction on any basis must be REASONABLE The bases of jurisdiction frequently overlap - Reconcile conflicts of Jurisdiction

  14. TRAIL SMELTER CASE • Issue: Does a state always owe a duty to protect other states against injurious acts by individuals from within its jurisdiction?