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I) C&D: International Arbitration, Investment, Trade, and Development
Development of International Arbitration

Slide Notes
The 1899/1907 The early 20th century saw the development of an international peace movements to limit the resort
Hague Peace to war through the exploration of alternatives, like peaceful dispute resolution.
Conferences ● The idea behind arbitration is to offer an alternative way of settling disputes between states
★ International through setting up an obligation to attempt to resolve disputes before resorting to force of war.
peace movement (Lessafer’s Peace through Law)
★ 1899 First Hague ● The idealism of the international peace movement reflected in the Hague Conventions, but this
Peace was nuanced by statesmen and realpolitik that guarded sovereignty
Conference
★ 1907 Second 1899 First Hague Peace Conference convened by Tsar Nicholas II’s initiative, addressed the peace
Hague Peace movement’s objectives.
Conference Initial ● The Conference had the initial primary objective of binding treaties on the limitation of arms and
main goal: disarmament.
disarmament ● However, while the initial objective wasn’t fulfilled, the Conferences achieved (1) the attending
★ Achievements: States codified laws and customs of war in binding treaties, and (2) conclusion of Convention
Codification of on Pacific Settlement of Disputes, which laid down rules of international arbitration.→ Permanent
laws and customs Court of Arbitration and codification of default arbitration procedure as an important step
of war, pacific towards development of international arbitration
settlement of ○ *Up until the point, was already practiced but not standardized or codified. [1871 Alabama
disputes Claims Arbitration between the US and Great Britain is an example of the use of
★ Permanent Court international arbitration prior to codification]
of Arbitration ○ PCA is not a permanent court, but just comes into action when needed. Not really a legal
institution, because its judgment is not based on law.
1907 Second Hague Peace Conference

What is the historical significance of the Hague Conventions for the development of international
law? The Hague Peace Conferences contributed to the revolution of the use of force from ius ad
bellum to ius contra bellum, but stayed largely within the confines of traditional doctrine and practice
which gave legitimacy the resort to force of war, (Lessafer’s Peace through Law)

Other Courts Several attempts for the establishment of international courts.

● Two initiatives at the 2nd Hague Peace Conference:
○ (1) International Prize Court, would hear appeals from prize courts of belligerent states
○ (2) Court of Arbitral Justice, differed from the PCA in two way: determination of disputes by
application of international law and a permanent bench of judges.
○ Third plan: Central American Court of Justice, first standing international tribunal in the
world.
● All three initiatives failed.

1899 Convention on The 1899 Convention contains arbitration rules that are still relevant in our contemporary setting.
the Pacific Settlement ● Parties decide who the arbitrators/judges are, and which rules are applicable to their case.
of Disputes These parties can lay down these rules and their disputes in arbitration agreements. [similar to
compromis in Article 31 Convention on Pacific Settlement of Dispute]
● Many treaties, particularly bilateral investment treaties, that include a specific arbitration
procedure as a dispute settlement mechanism.
○ *If there is an applicable treaty, there is no need to conclude a separate arbitration
agreement

Developments in When was the Permanent Court of Arbitration established (on what legal basis) and what was its
international role over the course of the 20th century?
arbitration Permanent Court of Arbitration
★ Permanent Court 1. In 1935, the PCA accepted its first mixed arbitration case. Mixed arbitration refers to arbitration
of Arbitration between States and private entities (e.g corporations).
★ UNCITRAL 2. From between ~1940-1988, the Permanent Court of Arbitration was dormant. Two cases in this
Arbitration rules time period! Wow!
★ NY Convention 3. In 1962, the Permanent Administrative Council of the PCA adopted specific rules for dispute
★ Further arbitration settlement between a State and a private entity.
institutions: 4. Currently, the PCA settles disputes involving States, State entities, intergovernmental orgs,
International private entities
Court of
Arbitration, There are various other arbitral tribunals and rules.
London Court of ● The UN GA established the 1966, UN Commission on International Trade Law (UNCITRAL) →
International adoption of rules on commercial arbitration
Arbitration, ○ In 1976, UNCITRAL arbitration rules were initially adopted → Currently, there are two revised
International versions of these rules.
Center for ○ In 1985, to assist countries in the reform of their national arbitration laws, the Commission
Settlement of adopted a model law on international commercial arbitration.
Investment ● The New York Convention is important and widely-ratified, and concerns the recognition and
Disputes enforcement of foreign arbitral awards. The idea was to ensure that both foreign arbitral awards
would be recognized and enforced to the same extent as its domestic counterparts.

Further arbitral institutions

● International Court of Arbitration operates underneath the auspices of the International
Chamber of Commerce.
● The London Court of International Arbitration
● International Center for Settlement of Investment Disputes
Investment, Trade, and Development Law

Slide Notes

Investment law Investment law seeks to protect foreign investments against host state interference, and to set
★ Protection of investment incentives to stimulate investment and economic development.
foreign ● Typically, host states were at the mercy of foreign investors. This is part the reason why developing
investments countries wanted a “new economic order” and permanent sovereignty over natural resources. →
★ NIEO & movements was not successful
permanent ● → from 1980s onwards, developing countries changed their legal framework as to attract foreign
sovereignty over investment
natural resources
★ bilateral The main sources within investment law are (1) bilateral investment treaties, (2) multilateral treaties,
investment (3) investment contracts between investor and host state.
treaties, ● International arbitration was a frequent way of resolving disputes, as the foreign investor prefers
multilateral not to settle the dispute in domestic courts where they would probably be disadvantaged.
treaties,
investment
contracts

International trade During and after WWII, the Allies discussed the possibilities of a post-war economic system.
law 1. 1944 Bretton Woods Conferences → International Monetary Fund + World Bank
★ Bretton Woods 2. Allies wanted to establish an international trade regime. → International Trade Organization +
instis adoption of general agreement on tariffs and trade in 1947 and 1948
★ GATT
★ World Trade Org In 1995, World Trade Organization was established as the successor of the general agreements,
★ WTO agreements and deals with trade agreements and disputes between states.
on goods, ● Developed into international organization over time, headquartered at Geneva.
services, ● WTO centered on agreements on goods, services, intellectual property
intellectual ○ Most-favored nation principle ensures that trading partners are treated equally. If a country
property gives a trading partner a special favor (e.g lower custom duty), then it must also apply or be
★ Most favored given to other WTO members.
nation principle ● WTO has its own dispute settlement mechanism.
★ WTO dispute
settlement

International 1964, UN Conference on Trade and Development (UNCTAD), initially created as an organ of the
development law UN GA, has the objective of helping the least developed countries to reach their socioeconomic
★ UNCTAD goals via investment, finance, trade, technology.
★ Relationship with ● In 1965 first , A Philip implored developed, industrial nations to take action to help developing
decolonization countries
★ IDLO ● Anglo-American jurists were reticent, while French were enthusiastic [French thought that they
★ Sustainable were helping in civilizing developing]
development
Because of the decolonization of the 60s and 70s, international development law became
important.
● Decolonization reoriented the UN towards a new economic issues and economic development
● *Some argue the international development law is not necessarily positivist international law,
but deals with other issues like human rights and the rule of law.
● International development law still deals with legal challenges to economic growth and
sustainable development.
● 1988, International Development Law Organization was created to promote rule of law and
sustainable development.

In previous 3 decades, there has been a push towards sustainable development.

● 2000, Millennium Development Goals
● In 2015, the UN had a sustainable development summit → adoption of Sustainable
Development Goals
Relationship Between Decolonization And Development

Slide Notes

Decolonization Post-WWII saw rapid decolonization efforts by formerly imperial powers of Britain, France, Italy.
● *building upon an older, slower trend of decolonization from the 1800s-early 1900s, with the
★ Long process dissolution of the Spanish Empire and the Austro-Hungarian Empire after WWI

In 1955, 29 different African and Asian states went to 1955 Bandung Conference to establish their
★ 1955 Bandung relations in the Cold War [non-alignment :-)] and political self-determination → condemnation of all colonial
Conference manifestation

What was the United Nations' role in the process of decolonisation?

★ Relevant UNGA The UN became active in decolonization efforts through the use of resolutions
Resolutions 1. 1960: GA resolution 1514 (XV) - Granting of independence to colonial countries and peoples
a. “The subjection to alien subjugation, domination, and exploitation” constitutes a denial of
human rights and contrary to UN Charter
b. “All peoples have right to self-determination”
2. 1965: GA resolution 2105 (XX) - Implementation of above declaration

More decisive language

3. 1970: GA 2621 (XXV)
a. MS shall [→ suggests mandatory obligation]render all necessary moral and material assistance to the
peoples of color and their territories in their struggle to attain freedom and independence
4. 1973: GA 3103 (XXVIII)
a. “Any attempt to suppress the struggle against colonial and alien domination and racist
regimes is incompatible with IL”

Decolonization was sometimes peaceful, and sometimes the result of “wars of national liberation”
● Wars of national liberation were armed conflicts aiming for independence and*colonial racist
regime

Decolonization and International humanitarian law developed special rules with regards to national liberation
international law movements
● → 1977, Additional Protocols to Geneva Convention increased protection of liberation fighters
● → presumption of legality for these wars, special rule to Article 2(4) prohibition on use of force

Legally-speaking, the right to self-determination and principle of sovereign equality were important
bases for decolonization.
● *However, even if the UN Charter had both principles, it did not explicitly prohibit colonialism +
Woodrow Wilson’s 14 Points Speech (*he referred exclusively to peoples under Central Powers) → the
human rights movement offered arguments in favor of decolonization ⇒ still misplaced to say they aimed
for colonialism if that was never the intent

Uti possidetis had a lasting impact on newly-independent states

● Uti possidetis, originated from Roman law, meant that newly-created and independent states
would maintain the borders that were drawn for them previously under colonial rule
● Problematic because these were created at the 1884-1885 Berlin Conference, and did not take
into account local geopolitical dynamics

What is the relationship between development law and decolonisation?

● Even when, on paper, they were perceived to be sovereign equals, they were perceived by
Western countries as “underdeveloped”
International Development Law (Mahiou)

Section Notes

Aims of IDL Aims oscillate between revising or completely revamping the sources, institutions, principles, norms
of international law.
● IDL challenges typical sources of IL (customs, treaties, general principles) that were made
secondary to agreements. IDL challenges this framework and aims to mitigate excessive
formalism and rigidity and tries to modify the hierarchy of sources
● IDL asserts that inter-State cooperation in the form of institutions can only properly function if
they tackle the key problem of underdevelopment.
● IDL sees the problems of underdevelopment as structural phenomena
● IDL advocates for a dynamic rereading of the law. Meanwhile jurists from the Third World
advocate for radical transformation
● IDL challenges postulate of an abstract legal equality by confronting with real and objective
situation

Results of IDL New economic order created three groups of countries

● Countries where industrialization has been harnessed for a fully-fledged policy of development
and growth (e.g Asian dragon economies)
● Countries where industrialization has started and aims to join the first group
● Countries that don’t have sufficient natural resources nor the means for industrialization

Normative and institutional changes

● Reform of the greater part of rules relating international commerce: Part IV GATT, World Trade
Organization, Doha Round
● Easing of existing rules or introduction of new set of regulations to facilitate the financing of
development within the framework of the World Bank: International Bank for Reconstruction and
Development, International Monetary Fund
● Overhaul of existing international cooperation and assistance mechanisms: association
agreements between different regions
● Creation of new institutions: UN Development Program, UNCTAD, UN Industrial Development
Organization, International Fund for Agricultural Development, Common Fund for Commodities
● Elaboration of certain international regimes: law of the sea, International Seabed Area,
environment and international protection, technology transfer, investment codes
II) C: War, Peace and Decolonization in the 20th Century
From Efforts To Limit The Resort To War To The Prohibition Of The Use Of Force
● The prohibition on the threat and use of force was achieved incrementally, from the Hague conferences, to the Versailles
Treaty, Kellogg-Briand Pact, to UN Charter

Slide Notes
Hague Peace ● International peace movements were trying to limit the right to resort to war.
Conferences ● Goals: limit resort to war, disarmament, laws of war codification
● The Hague Peace Conferences was partially successful, because while the PCJ was
established, arbitration was not mandated, and the resort to war was still legal despite the
addition of new conditions.

Versailles Peace 1. In 1919, a peace conference was created to end WWI.

Treaty 2. Par suggestion of France, the Peace conference was divided into two phases
★ 1919 peace a. First phase, Anton pairs negotiating the peace terms among themselves.
conference b. Second phrase, these peace terms were relayed to Germany.
★ Two phases c. Germany was only given a couple of weeks to respond and request changes.
d. No changes were accepted
3. On 10 Jan 1920, Versailles treaty came into force.
★ Diktat von 4. During interwar years, due to oppressive terms + Article 231 war guilt clause → Versailles Treaty seen as
Versailles Diktat von Versailles, due to oppressive terms
★ War guilt clauses a. Article 231 war guilt clause gave Germany responsibility for the war, [with just war theory;
(Art 231) → Germany held as the unjust side]
reparations "The Allied and Associated Governments affirm and Germany accepts the responsibility of
Germany and her allies for causing all the loss and damage to which the Allied and
Associated Governments and their nationals have been subjected as a consequence of the
war imposed upon them by the aggression of Germany and her allies."
b. Clause about the prosecution of the German emperor

Versailles peace There were a number of steps towards the prohibition of the use of force in Article 2(4) of the UN
treaty & international Charter. Identify two primary sources that can count as steps towards the prohibition.
law
What impact did the Versailles Treaty have on the further development of international law?
Provisions relevant to development of international law
● Part I: Covenant of League of Nations established system of collective security → automatic
sanctions
○ The idea behind establishing a system of collective security was to prevent future wars by
putting up a system under which a resort to war (that disregards given provisions) to one
member would constitute as a resort to war against all.
○ Articles 10-16 established the duty of league members to first refer a dispute to arbitration
or League’s Council. After receiving the arbitration award of Council’s response as well as
waiting 3 months, they may resort to war.
■ Article 16 gave automatic economic sanctions if League members did not comply with
Articles 12,13,15
○ Article 14 established the Permanent Court of International Justice [precursor to ICJ]
● Part XIII: the International Labor Organization (ILO)

League failed to meet its expectations because:

● US refused to join the League and other States were initially excluded from membership. → League’s
weakening
● In practice, the League did not take actions, especially in the 1931 Japanese Invasion of
Manchuria and the 1935 Italian Invasion of Abyssinia/Ethiopia

1928 Kellogg-Briand The 1928 Kellogg-Brian Pact renounced war as
Pact an “instrument of national policy in their relations
with one another” [contrast with League
Covenant, which gave some conditions for the
resort to war]
● Kellogg-Brian Pact did not provide sanctions
for members who broke the provisions, but
was important for Article 2(4) UN Charter
*Kellogg-Briand Pact was controversial because
it wasn’t certain what “war” means
● → self-defense still allowed → states used self-
defense as argument
Article I: The High Contracting Parties solemnly
declare in the names of their respective peoples
that they condemn recourse to war for the
solution of international controversies and
renounce it as an instrument of national policy in
their relations with one another.
Article II: The High Contracting Parties agree
that the settlement or solution of all disputes or
conflicts of whatever nature or of whatever origin
they may be, which may arise among them,
shall never be sought except by pacific means.
[contrasted with Article 2(4), this only specifically
focuses on war, not use of force]

UN Charter The drafters of the UN Charter responded to the controversies of its predecessor pact and limited
the use of war to a narrow conditions:[Intro:Exemptions to the Prohibition]
● Article 51 UN Charter: limited self defense, if attack is imminent.
 ○ *Preemptive self-defense and self-defense after attack is not within scope!
● UN SC authorization

Humanitarian intervention/R2P is an example of justifying the use of force beyond what was laid out
in the UN Charter.
● R2P was a political commitment by UN MS during 2005 World Summit, to put an end to grave
violations of human rights.
● *Members still need UN SC authorization
● While humanitarian interventions on the basis of R2P may sound unproblematic and legitimate,
it’s rare that States would intervene for purely humanitarian reasons
● Libyan Intervention was done under R2P → more violence, armed conflict, regime change → →
international reluctance around humanitarian interventions, especially with Syria

Collective universality of United Nations

● A new world parliament: League of Nations succeeded to the United Nations (UN) → Collective security now on a political
instead of legal basis.
● Decisions on collective action based on ad hoc decisions by the Un Security council.
● UN charter general prohibition on the threat and use of force:
○ This included forcible reprisals.
● Furthermore was a new world court established. -> later the ICJ
● One of the tasks of the UN general assembly: the progressive development of international law and its codification.
● From hope to paralysis: there was hope that the UN might take effective steps to prevent future tragedies. → self-determination,
human rights, accountability
○ Activities in ILH and international criminal law.
○ Creation of a convention against genocide.
○ Creation and adoption of the UDHR
○ Create a permanent international criminal tribunal.
○ Geneva conventions.
○ Convention of refugees.
● *Hopes of post-war period largely unfulfilled however due to the difficulties of defining aggression and lack of urgency
on human rights.
The Codification Of International Human Rights Law

Slide Notes

Post-WWII Human International Bill of Human Rights is composed of:

Rights Movement ● 1948 Universal Declaration of Human Rights → 300 translations + many constitutions based
fundamental rights section on UDHR
● 1966 saw UN GA adopt International Covenant on Civil and Political Rights (ICCPR) &
International Covenant on Economic, Social, Cultural Rights (ICESCR)
○ ICCPR: Right to life, right of peaceful assembly
○ ICESCR: right to work, right to adequate standard of living, right to education, right to health

Many more human rights treaties over the years

Debate over "Human rights are unequivocally universal". Do you agree with this statement? No.
universality of HR v ● Cultural relativism: the differences between legal traditions and cultures are difficult to reconcile
cultural relativism under human rights or for it to be equal applicable
● Draftsmen came from 9 countries *those from non-Western countries were educated at American
universities → UDHR as being too Western?
● Language analogous to 1789 Declaration of French Revolution

In response to criticisms of Western-centrism, regional human rights systems cropped up,

integrating both Western and non-Western notions of human rights.

Changing Nature Of Wars And Corresponding Change In Peace-making Practice

Slide Notes

Colonialism & Armed Armed conflicts within postcolonial countries were facilitated by colonial-era practices and histories.
Conflicts ● 1994 Rwandan Genocide: the Belgian practice of identity cards that stated ethnicity of individual →
Tutsis were easier identified by Hutus
● Somalia was split into a British protectorate (Somaliland) and an Italian colony → the current conflict
originated in the 80s-90s → de facto independence of Somaliland
● Balfour Declaration by British that promised Jews a home in Palestine contradicted another British
agreements with Arabs → Israeli-Palestine Conflict

Cold War & Post-Cold ● The Cold War power blocs → paralyzed Security Council + only intervene in non-Power bloc related
War conflicts
● After the Cold War, SC became more involved in international peace and security efforts
● Changed nature of wars: non-international armed conflicts instead of international armed conflict
● More focus on peace treaties with non-State actors + modern peace treaties are not binding
under IL
III) W&P: The Origins of International Criminal Law

Origin and Cause of International Criminal Law

Slide Notes
Paris Peace Legal issues played a greater role now than they did before.
Conference ● Considerable number of international lawyers present
● A number of the most prominent political figures had international law background

Chief legal task: punishment for wrongdoing

● To advise on this the allied governments created a Commission on the Responsibility of the
authors of the war and on the enforcement of penalties:
● Outbreak of war rested primarily on Germany and Austria-hungary and secondary on Bulgaria
and Turkey
● Personal responsibility of the German leader for causing the war
● Enemy nationals accused of war crimes should be tried by panels established by the Allied
powers.

Allied governments at Versailles agreed:

● War guilt clause of Germany in treaty of Versailles: great war was illegal act of aggression on
the part of Germany and had the duty to compensate those who were injured
● Reparations payments of 132 billion gold marks
● Trails by victorious powers established

Attempt to prosecute First attempt to prosecute/hold someone criminally responsible under international crime was on
German Emperor German Kaiser Wilhelm II.
★ Article 227 ● Article 227 Versailles Treaty aimed to prosecute the Kaiser “for the supreme offense against
Versailles → international morality and the sanctity of treaties”, with a special tribunal to be established.
attempt to try ○ Meanwhile, Kaiser Wilhelm II fled for asylum in the Netherlands. When the Allies asked the Dutch
Wilhelm II to extradite him, they refused → matters dropped
★ Special tribunal ● Article 228 Versailles Treaty also aimed to try others for violations against laws and customs of
★ Asylum in the war.
Netherlands ○ → 1921 Leipzig War Crimes trials to prosecute German war criminals
★ Versailles Treaty: ○ → lenient sentencing of the accused, either sentenced to a couple months of prison or even acquitted
Article 228 →
Leipzig War Small step towards international criminal law
Crimes trials

Nuremberg and "The Nuremberg Tribunal was a case of victor's justice and applied ex post facto laws". Do you
Tokyo Trials agree with this statement? Why (not)?
Nuremberg and Tokyo Trials most famous predecessor to modern day international criminal law.’
● The goal was to prosecute German and Japanese accused of crimes against peace, war
crimes, crimes against humanity.
● Tribunals at Nuremberg and Tokyo adopted similar charges.
● Putting war criminals on highly-publicized trials were largely at the instigation of the Americans
● International Military Tribunal was established via treaty among the 4 Allied powers.
★ Crimes against Nuremberg Charter was included in the Aug 1945 London Agreement by Allied powers.
humanity ● Crimes under Nuremberg Tribunal’s jurisdiction included (1) crimes against peace, (2) war
crimes, (3) crimes against humanity (art 6 Nuremberg Charter)
○ Crimes against peace is defined as the “preparation, initiation, or waging” of wars of
★ Crimes against aggression or war in violation of international treaties. (e.g 1939 German Invasion of
peace Poland)
○ War crimes are defined as violations of laws and customs of war (e.g murder of POWs).
★ War crimes ○ Crimes against peace and crimes against humanity were specifically created at the trials.
■ *Genocide not included because Tribunal did not have jurisdiction to try Nazis on this → crimes
done against Holocaust victims were instead charged as crimes against humanity
○ International lawyer and judge Hersch Lauterpacht suggested the inclusion of the crimes
against humanity charge in the Charter.

Similar trials happened in Japan, but the Nuremberg Trials had a larger bench

Trials acknowledged foundation of modern international criminal law, but also acknowledged
individual criminal responsibility [contrast to responsibility of the State]
● Nuremberg’s greatest contribution was that it sought to eliminate the source of the most
devastating human rights violations: war-making itself (Ferencz)
● Tribunal went further by stating that personal criminal liability of the leaders was actually more
fundamental than the civil liability of the state.
Development of International Criminal Law

Slide Notes

Subsequent Aside from the Nuremberg Trials, the US had their own military tribunals from 1946 to 1949. While
Nuremberg trials they weren’t as important or known, they were equally important for the development of
★ US military international criminal law.
tribunals, not intl ● Subsequent Nuremberg trials were split into 12 different trials, dealing with different accused
★ 12 different trials individuals.
○ For example, the Doctors’ trials dealt with 23 Nazi doctors. The Judges’ trials dealt with 16.

1948 Genocide In which context was the concept and term of 'genocide' coined, when was it first used? Which
Convention treaty contains the main definition of the crime of genocide? Is it still used in the same form today?
★ Raphael Lemkin 1. Genocide is an amalgam of the Greek genos/tribe, and Latin cide/killing. The term genocide
was coined by Polish prosecutor and lawyer Raphael Lemkin. Lemkin tried to get the term
genocide into the Nuremberg trial, but was unsuccessful.
2. Later, the term genocide was later in the Nuremberg Indictment.
a. Here, genocide was defined as the extermination of racial and national groups against the
civilian populations of certain occupied territories in order to destroy particular races and
classes of people and national, racial, or religious groups -- particularly Jews, Poles, and
Gypsies, and others.
★ 1946 GA b. *However, here the term genocide did not constitute a separate category of crime, but was
Resolution instead included as a war crime.
3. In 1946, the UN GA adopted a resolution with a different definition of genocide
a. “Genocide is the denial of the right of existence of an entire human group, as homicide is
the denial of the right to live of individual human beings”
★ 1948 adoption of b. Genocide as a matter of international concern, and invited Member States to adopt national
Genocide legislation for prevention and punishment against genocide
Convention 4. In 1948, the UN GA adopted the Genocide Convention.
★ Article 6 a. The Convention defined genocide as act with the intention to destroy “a national, ethnical,
racial, or religious group.” (e.g forced sterilization, extermination, etc.)
b. Article 6: Such crimes should be tried to national courts of international criminal tribunal
i. *Despite optimism, such an international criminal tribunal would take decades to be
established

1990s ICTY and What is meant by the term ad hoc tribunals in international criminal law? Describe the context of
ICTR (ad hoc their creation.
tribunals) In the 1990s, the UN SC created ad hoc international criminal tribunals via UN SC resolutions → ad hoc
★ ICT former (responsive) characteristic
Yugoslavia ● *Mandate limited by geographical and temporal scope
★ ICT Rwanda ● In 1993, par recommendation of a commission of experts, the UN SC adopted a resolution →
★ Created by UN International Criminal Tribunal for the former Yugoslavia (ICTY) for the purpose of dealing with crimes
SC res. done during the events leading up to the break-up of Yugoslavia
★ Ad hoc ● In 1994, the UN SC created the International Criminal Tribunal for Rwanda (ICTR), dealing with
characteristic the war crimes and crimes against humanity done during the Rwandan Genocide
● To save money, the Tanzanian-based ICTR was administratively linked to the ICTY that was
headquartered in the in the Hague. The idea here is that if the UN SC wanted to do it, they
could.
★ Hybrid tribunals Other hybrid or internationalized tribunals combined international and national legal structures (i.e
composed of both laws and both judge composition)
● Extraordinary Chambers of the Courts of Cambodia tried leaders of the Khmer Rouge
● Special Tribunal for Lebanon tried peoples involved with 2005 Beirut Attack (that killed 22
peoples including PM Rafic Hariri)

Limited to a specific situation that needs immediate attention!

International Criminal Court [read more]

Aspect Notes

Establishment of ICC 1. The UN GA asked the International Law Commission to accelerate their work → Preparatory Committee
(Ferencz)
a. The differences between states in their legal and social traditions were apparent. While
smaller countries wanted an independent tribunal, larger countries wanted a more effective
legal mechanism and were generally content with the existing legal order based on military
might.

The International Criminal Court is the only international criminal tribunal with permanent and
universal mandate.
● In 1998, the 6-week long diplomatic Rome Conference → adoption of a Rome Statute for the
establishment of a permanent ICC *Rome Statute entered into force 1 July 2002

Jurisdiction of ICC ICC jurisdiction over “most serious crimes of concern to the international community” (see Art 5-8)
● Genocide as act with the intention to destroy “a national, ethnical, racial, or religious group”
● Crimes against humanity are crimes committed as part of widespread or systematic operations
against civilians
● War crimes are grave breaches of the Geneva Conventions and other serious violations of laws
of war
● Crime of aggression is the modern iteration of crime against peace as outlined in Nuremberg.
“Planning, naming, initiation, or execution by a person in a position, effectively to exercise
control or to direct a military or political action of a state”

Who can be ● The ICC can prosecute any individual is over 18yrs at time of crime. ICC cannot try child
prosecuted soldiers, for example.
● ICC can only prosecute individuals. ICC cannot try multinational corporations.
● ICC has temporal jurisdiction over crimes only after entry into force of treaties that deemed
such acts as crimes. The ICC cannot try anything before 1 July 2002

How do cases end up ● Proprio motu: If the conditions as stated on Article 12(2) are met -- the accused is a national of
at the ICC? an ICC member state OR the crime is committed on member state territory -- then ICC
prosecutor on their own volition.
● Member states can refer cases to ICC under same conditions
● UN SC can refer cases to ICC, irrespective of whether Article 12(2) are met.

Principle of complementarity ensures ICC can only investigate cases if state that has jurisdiction
over case is unable or unwilling to give accused a fair trial
● In certain cases, even, a defendant could not be indicted unless the state of his nationality
consented to the trial (Ferencz)
First Half

Changes to how we approached law, flexible understanding of modern vs postmodern

● Modern period was centered around modernism and enlightenment-style modernism and rationalism.
○ Codification as an example of certainty → law perceived as certain
● Postmodern was responsive to shortcomings of modern period; for certain thinkers, certainty was just an ideal and not
practicable. Postmodernism was the fabric of the 20th century.
○ There was no certainty but rather probability (i.e Heisenberg principle)
○ Multiple realities coexisting at the same time, domains of knowledge and their shifts are porous.
○ Within the law, every claim to truth is now given nuance. Every truth has a history, a context in which it
emerges. It is not inherent.

Codification of international law starts at the beginning of the 20th century.

● The century of treaties (“codification project”) : Between 1914-1945 1 4.9k. After 1945 60k treaties concluded
○ *Prior to 1914, there was 8k treaties in force.
● The project of a few expanded to a vast number of people. What started as law of imperialism and colonial territories
expanded to persuasive normativity
● The whys of the people behind codification

Before WWI

MORE NOTES ON HAGUE CONFERENCES

● 1907 Hague Conferences
○ Elihu Root, former Sec. of State, won the Nobel Peace Prize

PCIJ brought different experts (esp. From South America), it still is an American project because it adopted as an aspect of foreign
policy that sought a permanent international court. → move from old diplomacy to American century
● In 1910, leading international lawyer James Brown Scott, Pres. Taft, Andrew Carnegie set up the American Society for
the Judicial Resolution of International Disputes
○ With Elihu Root and James Brown Scott, we have international legal experts.
○ Diplomatic clout with Root and Taft
○ Carnegie for financing
○ → push for Third Hague Peace Conference
● Idea of “American century” was a spiritual exercise to combine democracy, free trade, rule of law → spread of American value.
Idea was for soft power!
● 1920, PCIJ was set up, with Elihu Root and Lord Phillimore. In Anglo-American circles believed it to only be a project
applicable to them. It was true to the extent that …
● PCIJ important for codification
*all of them were American elite lol

Zeitgeist in hope and reconstruction with modernist principles & Manley o Hudson
● Manley O Hudson was professor of IL at Harvard. He asserted the that the philosophical basis of IL must be changed,
and that we need to concern ourselves with how to legislate international law.
○ Hudson asked how to respond to trauma of war. The law did not do anything about it to begin with, it was
complacent!!
○ We respond to the trauma of war through codification: Hudson made the Harvard Research Institute for
Codification, with the idea of selecting 9-10 codifying topics of IL to be codified (e.g damages, law of the sea,
etc.)
● *Not actually lawyer, he was a socializer more than an international lawyer lol that’s some clout. Hudson got castigated
by the Dean at Harvard more controversy
● The idea behind the Institute was to present the codification work at the next large meeting at the League of Nations. It
was acclaimed.
○ → The idea is that laws would be linked to institutions (think positivism)

After WWII
● 1948 by English professor James Brierly
Second Half

Root Brierly

Purpose of conciliation, for the friendly expression of outside
codification opinion, for the cooling effect of deliberation, for
a realization of other points of view, and for
reflection upon the results of braving the public
opinion of the world
When we codify, we do not regard the task as
one of substance of the law, but as one of
collecting the existing them concisely (*some
lacunas)
Continental lawyers unified disparate through
codification, while codification was a matter of
creating new rules for Anglo-American lawyers

Problems faced by Choice between competing rules, filling lacunas,

codifiers precision to the abstract principles
Those codifying will be subject to the scrutiny of
politics and the government
To Engage With: