This is an extract of our Basics document, which we sell as part of our International Humanitarian Law Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
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Basic information 1) International Law a) Traditional: law governing interactions between states. Only states were liable. i. Treaty of Westphalia: 1648. End of the the 30 years war in Europe. (a) Westphalian system: (i) Sovereignty of states. Territorial integrity (you must be able to protect your boundaries), and the right of political self determination (ii) Legal equality between states (iii) Principle of non intervention in the internal affairs of another state. ii. Pacta Sunt Servanda - "treaty must be served." = assumption of good faith agreement. iii. Grotius (a) Founder of IL (b)"On the Law of War and Peace." 1625. Principle of Just War. b) Modern: law that deals with the conduct of states, international organizationas, and some of their relations, as well as relations with persons. i. Public International Law areas most linked to IHL (a) Refugee law: persons outside their country & lacking the protection of their state must get international protection. Refugees must show targeted prosecution, can't "just" be fleeing from armed conflict. (i) Refugee Convention (1951) and Protocol (1967). (b)Human Rights Law: how states treat people on their own territory. (i) Violations of HRL threaten other states. If state is willing to commit human rights violations against their own citizens, then they will also be willing to engage in such violations outside of their borders. Threat to peace and stability. (ii) States have an interest in not having refugees fleeing to their country. (iii) International Covenants on Civil and Political Rights (iv) International Covenant on Economic, Social and Cultural Rights (no US ratification) (v) Conventions against Torture, genocide, refugee (vi) Conventions on child rights, disabled persons (US not ratified) (vii) 3 regional systems: Europe, Africa, Americas (US not a party) 2) Sources
a) Treaties: Legal and binding on those who have ratified. Chief source of IL. i. Signing without ratifying = you will not take actions contrary to the objectives of the treaty, but you are not bound to the treaty. ii. Ratification in the US: President signs, then goes to Senate for "advice and consent." iii. Executive Agreement: President can enter without Congress. Same weight as a treaty. iv. Examples (a) UN Charter (i) Governs jus ad bellum - when do we go to war?
(b)Geneva Conventions (i) Governs jus in bello - how do we act when in war?
(ii) 4 in 1949 + APs of 1977
1. GCI: injured, on land
2. GCII: injured, at sea
3. GCIII: POWs
4. GCIV: civilians
5. API: IAC
6. APII: NIAC
7. APIII: adds red diamond to ICRC a. Supplement and codify the GCs (c) Regional treaties regarding alliances in defense, like NATO (d)Hague Conventions (1905, 1907) (e) Landmine Convention (1998) (f) Rome Statute of ICC (1998) (g)Cluster Munitions (2009) b) Declarations - not binding. Political statement. Can't sign. i. Universal Declaration of Human Rights (1948) (later put into treaty form, in the HRL treaties listed above) c) Custom i. ICJ definition of "customary" (38.1(b)) (a) General and consistent practices (b) followed by a sense of legal obligation ii. Governments rarely agree that something is CIL, don't want to be bound. Governments argue that they carry out the rule only because it is good policy, not because they think it's a legal rule. (a) Especially important in IHL because we are in a period of normative shift iii. Used primarily with respect to NIAC d) Jus Cogans: norms/things that are per se bad. You can't have a treaty that would violate a jus cogans norm. CIL rule cannot violate jus cogans. i. Prohibitions against: genocide, slavery, torture, wars of aggression e) ICJ opinions
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