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Saddam May Hang Within 24 Hours

Are the polititians doing a good job could you do better, debate your views with others
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102 posts • Page 3 of 7 • 1, 2, 3, 4, 5, 6, 7
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Postby one_irish_rover » Wed Jan 03, 2007 11:11 pm

mundheim wrote:
one_irish_rover wrote:
mundheim wrote:
"The Bush White House openly rejects International Law. They make up their own laws."

What bullshit.

What do you know about international law?

What are the specific sources of international law?

Where is international law memorialized?

Who interprets international law?

Who decides whether a country has violated international law?

How specifically does "the Bush White House openly reject[] International Law"?

How specifically did the Bush White House "make up their own laws"?


I posted a link, read it. Here's a google search, dimwit. Plenty of scholarship on the topic. I can't even believe you seriously bothered to write the questions you did.

http://www.google.com/search?q=bush+international+law&start=0&ie=utf-8&oe=utf-8&client=firefox-a&rls=org.mozilla:en-US:official

I am not surprised at your inability to answer my questions.

I know the answers to my questions without resort to google.

Opinions -- "scholarly" or otherwise -- are of no moment to whether a state has violated international law or "openly rejects International Law."

You have no clue what "international law" is.

Here's a hint: "International law" is not set forth in one place like U.S. Code.

You are in water above your head; now wade back to the baby pool.


Okay pee wee. World opinion (among international law scholars and "commonfolk" alike) is that Bush has violated numerous international laws, agreements, and treaties, so the onus is on you to refute those claims. Plus it gives you a marvellous opportunity to indulge your massive ego and show off your dazzling intellect. As you implied, I'm nothing but a simpleton who's way out of his league and area of expertise.

Here is a list of America's violations under the Bush presidency. You may address as many as you'd like, but I'm very interested in how you defend his record on torture and the justification for the invasion of Iraq.

"INTERNATIONAL LAW ON THE USE OF FORCE

The international legal rules governing the use of force take as their starting point Article 2(4) of the U.N. Charter, which prohibits any nation from using force against another. The charter allows for only two exceptions to this rule: when force is required in self-defense (Article 51) or when the Security Council authorizes the use of force to protect international peace and security (Chapter VII)."


I suppose you will try to argue that the US was justified under some broad interpretation of Article 51 and that "terrorists" are not military personnel of any state and are thus exempt from the Geneva Convention's code for the treatment of prisoners of armed conflict.

Here's what Bush himself said, in his National Security Strategy ("The Bush Doctrine," Sept 17 2002):

The United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country….Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries' choice of weapons, do not permit that option. We cannot let our enemies strike first….For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries….The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively."

Bush clearly does not want to be bound by internationally agreed upon laws (which America has signed).

Here is that list. It's a statement of facts, no "left-wing propaganda" here. Go on then, please explain to me how these are not violations of international laws and agreements. On many occasions Bush and the Republican congress have framed their own laws in violation to those they've already signed onto.

"1. In December 2001, the United States officially withdrew from the 1972 Antiballistic Missile Treaty, gutting the landmark agreement-the first time in the nuclear era that the US renounced a major arms control accord.

2. 1972 Biological and Toxin Weapons Convention ratified by 144 nations including the United States. In July 2001 the US walked out of a London conference to discuss a 1994 protocol designed to strengthen the Convention by providing for on-site inspections. At Geneva in November 2001, US Undersecretary of State John Bolton stated that "the protocol is dead," at the same time accusing Iraq, Iran, North Korea, Libya, Sudan, and Syria of violating the Convention but offering no specific allegations or supporting evidence.

3. UN Agreement to Curb the International Flow of Illicit Small Arms, July 2001: the US was the only nation to oppose it.

4. April 2001, the US was not re-elected to the UN Human Rights Commission, after years of withholding dues to the UN (including current dues of $244 million)-and after having forced the UN to lower its share of the UN budget from 25 to 22 percent. (In the Human Rights Commission, the US stood virtually alone in opposing resolutions supporting lower-cost access to HIV/AIDS drugs, acknowledging a basic human right to adequate food, and calling for a moratorium on the death penalty.)

5. International Criminal Court (ICC) Treaty, to be set up in The Hague to try political leaders and military personnel charged with war crimes and crimes against humanity. Signed in Rome in July 1998, the Treaty was approved by 120 countries, with 7 opposed (including the US). In October 2001 Great Britain became the 42nd nation to sign. In December 2001 the US Senate again added an amendment to a military appropriations bill that would keep US military personnel from obeying the jurisdiction of the proposed ICC.

6. Land Mine Treaty, banning land mines; signed in Ottawa in December 1997 by 122 nations. The United States refused to sign, along with Russia, China, India, Pakistan, Iran, Iraq, Vietnam, Egypt, and Turkey. President Clinton rejected the Treaty, claiming that mines were needed to protect South Korea against North Korea's "overwhelming military advantage." He stated that the US would "eventually" comply, in 2006; this was disavowed by President Bush in August 2001.

7. Kyoto Protocol of 1997, for controlling global warming: declared "dead" by President Bush in March 2001. In November 2001, the Bush administration shunned negotiations in Marrakech (Morocco) to revise the accord, mainly by watering it down in a vain attempt to gain US approval.

8. In May 2001, refused to meet with European Union nations to discuss, even at lower levels of government, economic espionage and electronic surveillance of phone calls, e-mail, and faxes (the US "Echelon" program),

9. Refused to participate in Organization for Economic Co-operation and Development (OECD)-sponsored talks in Paris, May 2001, on ways to crack down on off-shore and other tax and money-laundering havens.

10. Refused to join 123 nations pledged to ban the use and production of anti-personnel bombs and mines, February 2001

11. September 2001: withdrew from International Conference on Racism, bringing together 163 countries in Durban, South Africa

12. International Plan for Cleaner Energy: G-8 group of industrial nations (US, Canada, Japan, Russia, Germany, France, Italy, UK), July 2001: the US was the only one to oppose it.

13. Enforcing an illegal boycott of Cuba, now being made tighter. In the UN in October 2001, the General Assembly passed a resolution, for the tenth consecutive year, calling for an end to the US embargo, by a vote of 167 to 3 (the US, Israel, and the Marshall Islands in opposition).

14. Comprehensive [Nuclear] Test Ban Treaty. Signed by 164 nations and ratified by 89 including France, Great Britain, and Russia; signed by President Clinton in 1996 but rejected by the Senate in 1999. The US is one of 13 nonratifiers among countries that have nuclear weapons or nuclear power programs. In November 2001, the US forced a vote in the UN Committee on Disarmament and Security to demonstrate its opposition to the Test Ban Treaty.

15. In 1986 the International Court of Justice (The Hague) ruled that the US was in violation of international law for "unlawful use of force" in Nicaragua, through its actions and those of its Contra proxy army. The US refused to recognize the Court's jurisdiction. A UN resolution calling for compliance with the Court's decision was approved 94-2 (US and Israel voting no).

16. In 1984 the US quit UNESCO (UN Educational, Scientific and Cultural Organization) and ceased its payments for UNESCO's budget, over the New World Information and Communication Order (NWICO) project designed to lessen world media dependence on the "big four" wire agencies (AP, UPI, Agence France-Presse, Reuters). The US charged UNESCO with "curtailment of press freedom," as well as mismanagement and other faults, despite a 148-1 in vote in favor of NWICO in the UN. UNESCO terminated NWICO in 1989; the US nonetheless refused to rejoin. In 1995 the Clinton administration proposed rejoining; the move was blocked in Congress and Clinton did not press the issue. In February 2000 the US finally paid some of its arrears to the UN but excluded UNESCO, which the US has not rejoined.

17. Optional Protocol, 1989, to the UN's International Covenant on Civil and Political Rights, aimed at abolition of the death penalty and containing a provision banning the execution of those under 18. The US has neither signed nor ratified and specifically exempts itself from the latter provision, making it one of five countries that still execute juveniles (with Saudi Arabia, Democratic Republic of Congo, Iran, Nigeria). China abolished the practice in 1997, Pakistan in 2000.

18. 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. The only countries that have signed but not ratified are the US, Afghanistan, Sao Tome and Principe.

19. The US has signed but not ratified the 1989 UN Convention on the Rights of the Child, which protects the economic and social rights of children. The only other country not to ratify is Somalia, which has no functioning government.

20. UN International Covenant on Economic, Social and Cultural Rights, 1966, covering a wide range of rights and monitored by the Committee on Economic, Social and Cultural Rights. The US signed in 1977 but has not ratified.

21. UN Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The US finally ratified in 1988, adding several "reservations" to the effect that the US Constitution and the "advice and consent" of the Senate are required to judge whether any "acts in the course of armed conflict" constitute genocide. The reservations are rejected by Britain, Italy, Denmark, the Netherlands, Spain, Greece, Mexico, Estonia, and others."
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Postby Nefarious » Thu Jan 04, 2007 12:46 am

The 'we will act pre-emptively in self-defense' bit is my favourite :lol:

Hello? 'You hit me, I hit you back' - that's self defence

Not 'you might hit me so I'll hit you first just in case'
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Postby one_irish_rover » Thu Jan 04, 2007 1:17 am

Nefarious wrote:The 'we will act pre-emptively in self-defense' bit is my favourite :lol:

Hello? 'You hit me, I hit you back' - that's self defence

Not 'you might hit me so I'll hit you first just in case'


Exactly
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Postby one_irish_rover » Thu Jan 04, 2007 1:19 am

. wrote:
mundheim wrote:Your betrayed your ignorance by supporting your tripe with a link to Global Policy Forum, a partisan left-wing activist group: http://www.globalpolicy.org/security/issues/iraq/attack/lawindex.htm

If this is your idea of an adjudicative body or even of "scholarship," then you don't even belong in the baby pool on this subject.


Haha i Couldn't agree more. Did you click on the 'about us' tab and have a look at the board members? There is one in there whos credit included something to do with real estate!!!
Sure, they are all people with degrees, but even some KKK leaders have degrees and that sure as heck doesn't make their opinions right.
Lets face it, the guy is an idiot and that is why he cannot answer your questions re: international law


You are so full of sh.it it's pathetic. All the board members are people with relevant experience and expertise.

http://www.globalpolicy.org/visitctr/about/staff.htm

http://www.globalpolicy.org/eu/en/about.htm#staff

It's not left-wing, it's a nonpartisan group of scholars. You can find the same information from numerous other sources.
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Postby mundheim » Thu Jan 04, 2007 12:00 pm

You may not be a "simpleton" in other disciplines, but you clearly have no knowledge, much less expertise, in international law -- and there is no way that you are a lawyer.

The seemingly simple questions I posed to you are in fact very complicated and the subject of hundreds of United States Supreme Court and federal appeals court decisions, volumes upon volumes of treatises and law review articles.

Consequently, I will have to proceed in two posts: (a) in this post I will provide you with a primer on International Law; and (b) in the next post, I will dissect your cut and paste job above and refute it in toto.

Let's begin the clinic :

I. What Is International Law?

International law, or the law of nations, consists of those rules and principles which govern the relations and dealings of nations and of international organizations with each other, as well as with some of their relations with persons, whether natural or juridical. See Restatement (Third) of Foreign Relations Law of the United States § 101; State of New Jersey v. State of Delaware, 291 U.S. 361, 54 S. Ct. 407, 78 L. Ed. 847 (1934).

The "law of nations," which is also known as "international customary law," is formed by the general assent of civilized nations. Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3 (D.D.C. 1998).

Norms of the "law of nations" are found by consulting juridical writing on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law. Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).

International law is closely entwined with domestic laws which affect the international situation. The name given to this phase of law is "Foreign Relations Law," which consists of international law as it applies to the United States; and domestic law that has substantial significance for the foreign relations of the United States or has other substantial international consequences.

II. Who Decides What Is International Law?

A rule of international law or a provision of an international agreement derives its status as law in the United States from its character as an international legal obligation of the United States.

A rule of international law or an international agreement has no status as law of the United States if the United States is not in fact bound by it.

For example, any rule of customary law from which the United States may have dissociated itself during the process of its formation or a provision in a treaty that is invalid or has been terminated or suspended.

Thus, if states generally accept the principle that mining in the deep sea-bed is permitted only pursuant to the international regime established by the 1982 Convention on the Law of the Sea, the United States will not be bound by that principle, having continued to dissent from it.

See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment b.

Cases arising under treaties to which the United States is a party, as well as cases arising under customary international law, or under international agreements of the United States other than treaties, are "Cases . . . arising under . . . the Laws of the United States, and Treaties made . . . under their Authority," and therefore within the Judicial Power of the United States under Article III, Section 2 of the Constitution.

Civil actions arising under international law or under a treaty or other international agreement of the United States are within the jurisdiction of the United States district courts. 28 U.S.C. § 1331.

For the purpose of Section 1331, all valid international agreements of the United States, whatever their designation and whatever the form by which they are concluded, are "treaties of the United States."

See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment e.

III. Treaties

Treaties, which sometimes are entitled “conventions”or “covenants,”are proper evidence of customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the States parties to them. Like contracts, these instruments are legally binding only on States that become parties to them by consenting to be bound. See Lord McNair, The Law of Treaties 162 (1961) (“N]o State can be bound by any treaty provision unless it has given its assent ....”.

Under general principles of treaty law, a State's signing of a treaty serves only to “uthenticat[e]”its text; it “does not establish [the signatory's] consent to be bound.” Ian Brownlie, Principles of Public International Law 610-11 (5th ed. 1999).

A State only becomes bound by-that is, becomes a party to-a treaty when it ratifies the treaty. See id. at 611; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35, 19 L.Ed. 571 (1869) (observing that the United States is bound by a treaty only once “he Senate, in whom rests the authority to ratify it, ... agree[s] to it.”; Dreyfus v. Von Finck, 534 F.2d 24, 27 n. 3 (2d Cir.1976) (stating that the United States is not a party to an unratified treaty).

Accordingly, only States that have ratified a treaty are legally obligated to uphold the principles embodied in that treaty, and the treaty only evidences the customs and practices of those States.

In the United States, ratification occurs when “two thirds of the Senators present concur”in ratifying a signed treaty presented by the Executive. U.S. Const. art. II, § 2, cl. 2.

Thus, the United States becomes a “party” to a treaty - that is, becomes contractually bound to obey its terms - only after a treaty has been ratified by the Senate.

IV. Decisions of Multinational Tribunals

With respect to the International Court of Justice, Article 59 of the ICJ Statute expressly states that “t]he decision[s] of the Court ha[ve] no binding force except between the parties and in respect of that particular case.” ICJ Statute, June 26, 1945, art. 59, 59 Stat. 1055, U.S.T.S. 993.

With respect to the European Court of Human Rights, the Court is only empowered to “interpret[ ]”and “appl[y]”the rules set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (“European Convention”-an instrument applicable only to its regional States parties-not to create new rules of customary international law. See European Convention art. 32 (stating that the Court's jurisdiction “extend[s] to all matters concerning the interpretation and application of the Convention”; see also ICJ Statute art. 38 (listing judicial decisions as “subsidiary,”rather than primary, sources of customary international law).

Neither the International Court of Justice, nor the European Court of Human Rights, a regional institution, is empowered to create binding norms of customary international law, and thus their decisions are not primary sources of international law; however, decisions of European Court may constitute subsidiary or secondary sources of customary international law insofar as they restate and reapply regional convention. Flores v. Southern Peru Copper Corp., 406 F.3d 65 (2d Cir. 2003), republished at, 414 F.3d 233 (2d Cir. 2003).

Neither of these tribunals is empowered to create binding norms of customary international law.

V. United Nations General Assembly

The United Nations General Assembly has been described aptly as “he world's most important political discussion forum,”but it is not a law-making body. I The Charter of the United Nations: A Commentary 248, 269 (Bruno Simma ed., 2d ed.2002). UN General Assembly resolutions and declarations do not have the power to bind member States because the member States specifically denied the General Assembly that power after extensively considering the issue-first at the Dumbarton Oaks Conference, held in Washington in 1944, then at the Yalta conference in 1945, and finally at the United Nations' founding conference, held in San Francisco in 1945. Id. at 269 (describing the rejection at Dumbarton Oaks and San Francisco of proposals to accord General Assembly resolutions the power to bind member States); cf. Stanley Meisler, United Nations: The First Fifty Years 13-14 (1995) (discussing the Yalta voting formula and the veto power in the Security Council, which alone would be empowered to issue resolutions binding on States).

The authority to make pronouncements that could be legally binding was reserved to the Security Council, in which each of the identified Great Powers of the post-war era would be permanent members and hold a veto power. See, e.g., Dolivet, The United Nations: A Handbook on the New World Organization at 45-57 (discussing the composition and function of the Security Council); Meisler, United Nations: The First Fifty Years at 14 (noting that acceptance at the Yalta Conference of the veto power in the Security Council was a sine qua non of the founding of the United Nations); Francis O. Wilcox, The Rule of Unanimity in the Security Council, 40 Am. Soc'y Int'l L. Proc. 51, 52 (1946) (same, discussing the San Francisco Conference).

Under the Charter of the United Nations, the Security Council was afforded the power (in circumstances where no veto is exercised by a “permanent member” to issue binding resolutions, United Nations Charter, ch. VII, whereas the General Assembly was granted the power only to “make recommendations to the Members of the United Nations or to the Security Council or to both,”United Nations Charter, ch. IV, art. 10 (emphasis added).

In sum, as described in The Law of Nations, the classic handbook by Professors Brierly and Waldock of Oxford University:

“A]ll that the General Assembly can do is to discuss and recommend and initiate studies and consider reports from other bodies. It cannot act on behalf of all the members, as the Security Council does, and its decisions are not directions telling the member states what they are or are not to do.”

J.L. Brierly, The Law of Nations 110 (Sir Humphrey Waldock ed., 6th ed. 1963) (second emphasis added).

VI. Customary International Law

“Custom is the oldest and the original source of international law as well as of law in general,”the substance of which “s to be found in the practice of states.” 1 Oppenheim's International Law 25-26 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996).

The practice of states, in turn, “embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic dspatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.” [i]Id. at 26.

In short, customary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.

First, in order for a principle to become part of customary international law, States must universally abide by it. Filartiga, 630 F.2d at 888 (holding that customary international law includes only “ell-established, universally recognized norms of international law” (emphasis added); see also Kadic, 70 F.3d at 239 (quoting Filartiga, 630 F.2d at 888); id. at 243 n. 8 (addressing whether a principle had “ripened into universally accepted norms of international law”(emphasis added)).

Of course, States need not be universally successful in implementing the principle in order for a rule of customary international law to arise. If that were the case, there would be no need for customary international law. But the principle must be more than merely professed or aspirational.

Furthermore, a principle is only incorporated into customary international law if States accede to it out of a sense of legal obligation. See, e.g., Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 307-08 (2d Cir.2000) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”(quoting Restatement (Third) § 102(2)) (internal quotation marks omitted) (emphasis added)).

Practices adopted for moral or political reasons, but not out of a sense of legal obligation, do not give rise to rules of customary international law. See Hain v. Gibson, 287 F.3d 1224, 1243-44 (10th Cir.2002) (noting that customary international *81 law does not include those practices that States have adopted “or moral or political reasons (as opposed to any sense of legal obligation)”(internal quotation marks and citation omitted)); North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), 1969 I.C.J. 3, 44 (“n]ot only must the acts concerned amount to a settled practice, but they must also be ... carried out in such a way[ ] as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it”.

Finally, customary international law addresses only those “wrong[s]”that are “mutual, and not merely several, concern” to States. Filartiga, 630 F.2d at 888 (emphases added); see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975) (Friendly, J.) (defining customary international law as those “standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se”(citation and internal quotation marks omitted)).FN23 Matters of “mutual”concern between States are those involving States' actions “performed ... towards or with regard to the other,”X Oxford English Dictionary 154 (2d ed.1989) - matters that, as Judge Friendly aptly noted, concern the dealings of States “inter se,”Vencap, 519 F.2d at 1015. Matters of “several”concern among States are matters in which States are separately and independently interested. See XV Oxford English Dictionary 97 (2d ed.1989) (defining “several”as having “ position, existence, or status apart[,] separate, [or] distinct”from one another).

In sum, those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern, constitute the body of customary international law. But where the customs and practices of States demonstrate that they do not universally follow a particular practice out of a sense of legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law.

And no -- I didn't copy the above fromone place.

Do you get the sense that you may be in above your head, N?


(To Be Continued with Part II, The Dissection and Refutation)
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Postby mundheim » Thu Jan 04, 2007 12:27 pm

mundheim wrote:You may not be a "simpleton" in other disciplines, but you clearly have no knowledge, much less expertise, in international law -- and there is no way that you are a lawyer.

The seemingly simple questions I posed to you are in fact very complicated and the subject of hundreds of United States Supreme Court and federal appeals court decisions, volumes upon volumes of treatises and law review articles.

Consequently, I will have to proceed in two posts: (a) in this post I will provide you with a primer on International Law; and (b) in the next post, I will dissect your cut and paste job above and refute it in toto.


Let's begin the clinic :


I. What Is International Law?

International law, or the law of nations, consists of those rules and principles which govern the relations and dealings of nations and of international organizations with each other, as well as with some of their relations with persons, whether natural or juridical. See Restatement (Third) of Foreign Relations Law of the United States § 101; State of New Jersey v. State of Delaware, 291 U.S. 361, 54 S. Ct. 407, 78 L. Ed. 847 (1934).

The "law of nations," which is also known as "international customary law," is formed by the general assent of civilized nations. Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3 (D.D.C. 1998).

Norms of the "law of nations" are found by consulting juridical writing on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law. Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).

International law is closely entwined with domestic laws which affect the international situation. The name given to this phase of law is "Foreign Relations Law," which consists of international law as it applies to the United States; and domestic law that has substantial significance for the foreign relations of the United States or has other substantial international consequences.


II. Who Decides What Is International Law?

A rule of international law or a provision of an international agreement derives its status as law in the United States from its character as an international legal obligation of the United States.

A rule of international law or an international agreement has no status as law of the United States if the United States is not in fact bound by it.

For example, any rule of customary law from which the United States may have dissociated itself during the process of its formation or a provision in a treaty that is invalid or has been terminated or suspended.

Thus, if states generally accept the principle that mining in the deep sea-bed is permitted only pursuant to the international regime established by the 1982 Convention on the Law of the Sea, the United States will not be bound by that principle, having continued to dissent from it.

See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment b.

Cases arising under treaties to which the United States is a party, as well as cases arising under customary international law, or under international agreements of the United States other than treaties, are "Cases . . . arising under . . . the Laws of the United States, and Treaties made . . . under their Authority," and therefore within the Judicial Power of the United States under Article III, Section 2 of the Constitution.

Civil actions arising under international law or under a treaty or other international agreement of the United States are within the jurisdiction of the United States district courts. 28 U.S.C. § 1331.

For the purpose of Section 1331, all valid international agreements of the United States, whatever their designation and whatever the form by which they are concluded, are "treaties of the United States."

See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment e.


III. Treaties

Treaties, which sometimes are entitled “conventions”or “covenants,”are proper evidence of customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the States parties to them. Like contracts, these instruments are legally binding only on States that become parties to them by consenting to be bound. See Lord McNair, The Law of Treaties 162 (1961) (“N]o State can be bound by any treaty provision unless it has given its assent ....”).

Under general principles of treaty law, a State's signing of a treaty serves only to “authenticat[e]”its text; it “does not establish [the signatory's] consent to be bound.” Ian Brownlie, Principles of Public International Law 610-11 (5th ed. 1999).

A State only becomes bound by - that is, becomes a party to - a treaty when it ratifies the treaty. See id. at 611; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35, 19 L.Ed. 571 (1869) (observing that the United States is bound by a treaty only once “the Senate, in whom rests the authority to ratify it, ... agree[s] to it.”; Dreyfus v. Von Finck, 534 F.2d 24, 27 n. 3 (2d Cir.1976) (stating that the United States is not a party to an unratified treaty).

Accordingly, only States that have ratified a treaty are legally obligated to uphold the principles embodied in that treaty, and the treaty only evidences the customs and practices of those States.

In the United States, ratification occurs when “two thirds of the Senators present concur”in ratifying a signed treaty presented by the Executive. U.S. Const. art. II, § 2, cl. 2.

Thus, the United States becomes a “party” to a treaty - that is, becomes contractually bound to obey its terms - only after a treaty has been ratified by the Senate.


IV. Decisions of Multinational Tribunals

With respect to the International Court of Justice, Art. 59 of the ICJ Statute expressly states that “[t]he decision[s] of the Court ha[ve] no binding force except between the parties and in respect of that particular case.” ICJ Statute, June 26, 1945, art. 59, 59 Stat. 1055, U.S.T.S. 993.

With respect to the European Court of Human Rights, the Court is only empowered to “interpret[ ]” and “appl[y] the rules set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (“European Convention” - an instrument applicable only to its regional States parties - not to create new rules of customary international law. See European Convention art. 32 (stating that the Court's jurisdiction “extend[s] to all matters concerning the interpretation and application of the Convention”; see also ICJ Statute art. 38 (listing judicial decisions as “subsidiary,”rather than primary, sources of customary international law).

Neither the International Court of Justice nor the European Court of Human Rights, a regional institution, is empowered to create binding norms of customary international law. Consequently, their decisions are not primary sources of international law. However, decisions of the European Court may constitute subsidiary or secondary sources of customary international law insofar as they restate and reapply regional conventions. Flores v. Southern Peru Copper Corp., 406 F.3d 65 (2d Cir. 2003), republished at, 414 F.3d 233 (2d Cir. 2003).

Neither of the aforesaid tribunals is empowered to create binding norms of customary international law.


V. United Nations General Assembly

The United Nations General Assembly has been described aptly as “the world's most important political discussion forum,”but it is not a law-making body. I The Charter of the United Nations: A Commentary 248, 269 (Bruno Simma ed., 2d ed.2002).

UN General Assembly resolutions and declarations do not have the power to bind member States because the member States specifically denied the General Assembly that power after extensively considering the issue - first at the Dumbarton Oaks Conference, held in Washington in 1944, then at the Yalta conference in 1945, and finally at the United Nations' founding conference, held in San Francisco in 1945. Id. at 269 (describing the rejection at Dumbarton Oaks and San Francisco of proposals to accord General Assembly resolutions the power to bind member States); cf. Stanley Meisler, United Nations: The First Fifty Years 13-14 (1995) (discussing the Yalta voting formula and the veto power in the Security Council, which alone would be empowered to issue resolutions binding on States).

The authority to make pronouncements that could be legally binding was reserved to the Security Council, in which each of the identified Great Powers of the post-war era would be permanent members and hold a veto power. See, e.g., Dolivet, The United Nations: A Handbook on the New World Organization at 45-57 (discussing the composition and function of the Security Council); Meisler, United Nations: The First Fifty Years at 14 (noting that acceptance at the Yalta Conference of the veto power in the Security Council was a sine qua non of the founding of the United Nations); Francis O. Wilcox, The Rule of Unanimity in the Security Council, 40 Am. Soc'y Int'l L. Proc. 51, 52 (1946) (same, discussing the San Francisco Conference).

Under the Charter of the United Nations, the Security Council was afforded the power "in circumstances where no veto is exercised by a “permanent member” to issue binding resolutions, United Nations Charter, ch. VII, whereas the General Assembly was granted the power only to “make recommendations to the Members of the United Nations or to the Security Council or to both.” United Nations Charter, ch. IV, art. 10 (emphasis added).

In sum, as described in The Law of Nations, the classic handbook by Professors Brierly and Waldock of Oxford University:

“A]ll that the General Assembly can do is to discuss and recommend and initiate studies and consider reports from other bodies. It cannot act on behalf of all the members, as the Security Council does, and its decisions are not directions telling the member states what they are or are not to do.”

J.L. Brierly, The Law of Nations 110 (Sir Humphrey Waldock ed., 6th ed. 1963).


VI. Customary International Law

“Custom is the oldest and the original source of international law as well as of law in general, ”the substance of which “is to be found in the practice of states.” 1 Oppenheim's International Law 25-26 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996).

The practice of states, in turn, “embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic dspatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.” [i]Id. at 26.

In short, customary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.

First, in order for a principle to become part of customary international law, States must universally abide by it. Filartiga, 630 F.2d at 888 (holding that customary international law includes only “well-established, universally recognized norms of international law” (emphasis added); see also Kadic, 70 F.3d at 239 (quoting Filartiga, 630 F.2d at 888); id.[/] at 243 n. 8 (addressing whether a principle had “ripened into universally accepted norms of international law” (emphasis added)).

Of course, States need not be universally successful in implementing the principle in order for a rule of customary international law to arise. If that were the case, there would be no need for customary international law. But the principle must be more than merely professed or aspirational.

Furthermore, a principle is only incorporated into customary international law if States accede to it out of a sense of legal obligation. [i]See, e.g., Chubb & Son, Inc. v. Asiana Airlines,
214 F.3d 301, 307-08 (2d Cir.2000) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”(quoting Restatement (Third) § 102(2)) (internal quotation marks omitted) (emphasis added)).

Practices adopted for moral or political reasons, but not out of a sense of legal obligation, do not give rise to rules of customary international law. See Hain v. Gibson, 287 F.3d 1224, 1243-44 (10th Cir.2002) (noting that customary international law does not include those practices that States have adopted “for moral or political reasons (as opposed to any sense of legal obligation") (internal quotation marks and citation omitted)); North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), 1969 I.C.J. 3, 44 (“n]ot only must the acts concerned amount to a settled practice, but they must also be ... carried out in such a way[ ] as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”

Finally, customary international law addresses only those “wrong[s]” that are “mutual, and not merely several, concern” to States. Filartiga, 630 F.2d at 888 (emphases added); see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975) (Friendly, J.) (defining customary international law as those “standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se” (citation and internal quotation marks omitted)). Matters of “mutual”concern between States are those involving States' actions “performed ... towards or with regard to the other,” X Oxford English Dictionary 154 (2d ed.1989) - matters that, as Judge Friendly aptly noted, concern the dealings of States “inter se,” Vencap, 519 F.2d at 1015. Matters of “several”concern among States are matters in which States are separately and independently interested. See XV Oxford English Dictionary 97 (2d ed.1989) (defining “several” as having “position, existence, or status apart[,] separate, [or] distinct” from one another).

In sum, those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern, constitute the body of customary international law. But where the customs and practices of States demonstrate that they do not universally follow a particular practice out of a sense of legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law.

And no -- I didn't copy the above from one place.

Do you get the sense that you may be in above your head, N?


(To Be Continued with Part II, The Dissection and Refutation)


I just fixed a few typos.
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Postby Guest » Fri Jan 05, 2007 11:55 pm

The whole thing is completely unbelivable. For instance.....people in Iraq mobile videoing the hanging. WTF? Are they allowed mobiles in Ieaq now?
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Postby Guest » Sat Jan 06, 2007 12:02 am

. wrote:The whole thing is completely unbelivable. For instance.....people in Iraq mobile videoing the hanging. WTF? Are they allowed mobiles in Ieaq now?


Yeah, they are even allowed cars instead of having ride camels - no lie! :roll:
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Postby animallover15 » Sat Jan 06, 2007 2:26 am

:lol:
In the words of Ms Bouncy
'If you don't like this place, f*ck off and be miserable somewhere else.'

"You, yes you. You are full of your own self importance!!!"
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Postby Captain » Sun Jan 07, 2007 1:32 am

guest0209 wrote:
How many Iraqi deaths are on America's and George Bush's balance sheet for the "war against terror." Hundreds of thousands. That's what I call hypocricy


Clearly you are lacking an education like all the other Bush critics.
According to International law, The deaths of Iraqis/Afghans are the fault of Saddam Hussein and the Taliban (note: not Osama Bin Laden).
It is the responsibility of the defending force to ensure that their civilians are placed away from areas of conflict. But Saddam and the Taliban did not do this. Instead, they placed forces amongst civilians to use them as a Human Shield.
By rights, An attacking force is allowed to engage any area/region where there are 'hostiles', and any civilian casualties are added to Saddams/Talibans list, not Americas.

However, If the USA or any attacking force targets an area populated with civilians and that area has no military significance, the death of any civilians are the responsibilty of the attacking force.
In Americas defence, there has been very few accounts of such incidents, therefore they have commited no war crime.

Sure, there have been coalition troops abusing and killing civilians, but this is an individual act which has not been sanctioned by the military.

There are also laws justifying 'collateral damage'. In that, damage to infrastructure and human casualties.
For example, if the coalition dropped a 1000 pound bomb on 100 civilians in order to kill one terrorist or just to destroy his home, that would be illegal.
However, If they dropped a 1000 pound bomb on 10 civilians in order to kill 3 terrorists, that would be acceptable.

You will find that the US military are very very strict when it comes to following the Rules of Engagement, which are based on International Law.

If you have a problem with the actions of the US, then perhaps your thread should be attacking International Law, not those who obide by it.


:wub:
Im a girl.
Always rooting for the underdog..
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Postby Guest » Sun Jan 07, 2007 11:59 am

Can ya just suck the guy off and be done with it?

This hero whore-ship is wearing thin.
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Postby Guest » Sun Jan 07, 2007 12:00 pm

lady being a replacement for w.h.o.r.e.
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Postby Guest » Sun Jan 07, 2007 12:01 pm

F*** off Miss NZ S*** stick - silly slut
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Postby Captain » Mon Jan 08, 2007 10:31 pm

:shock:
Im a girl.
Always rooting for the underdog..
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Postby Guest » Tue Jan 09, 2007 11:53 am

Sorry - was very drunk
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