User:John Z/drafts/international law notes

http://www.walter.gehr.net/default.html for excellent intro to international treaty law and links

http://www.lse.ac.uk/collections/alumniRelations/events/20050106t1205z001.htm

Jerusalem, golan not annexed

http://www.passia.org/jerusalem/meetings/98/J1.htm

better:

http://www.mepc.org/public_asp/journal_vol5/9701_lustick.asp

http://64.233.187.104/search?q=cache:T2XfC-dbrlsJ:www.ciaonet.org/olj/sa/sa_99kup02.html+%22golan+heights%22+begin+annex+what+belongs+to+you&hl=en&ie=UTF-8

151 The binding nature of decisions is not determined by whether they are taken under Chapter VI or Chapter VII, but by whether they were intended to bind all member states. See, for example, Rosalyn Higgins, "The Advisory Opinion on Namibia: which Resolutions are Binding under Article 25 of the Chapter?," International and Comparative Law Quarterly, vol.21, p.280. The author states that the Charter offers no support for the view that Article 25 applies only to measures under Chapter VII, but rather applies to "all decisions of the Security Council adopted in accordance with the Charter." The ICJ's advisory opinion on the "Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Notwithstanding Security Council Resolution 276," 1971 ICJ Rep.4-345 (1970), indicates that a range of factors may point to the intention to bind member states of the U.N., and that the Chapter under which it is passed is not definitive of the binding nature of a resolution.

152 Moreover, the intention to bind would be more readily assumed if the decision were made under Chapter VI. This is particularly so in the light of the "Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Libya v.USA) 1998," International Court of Justice, February 29, 1998. The International Court of Justice, while not stating that only decisions under Chapter VII are binding, clearly considered the fact that it was an exercise of Chapter VII power a relevant factor in determining whether or not a particular resolution was intended to bind.

The Court did not elaborate on how the general powers of the Security Council applied to its establishment. Unlike the resolutions [27] creating the ICTY and the ICTR which specifically invoked Article Chapter VII of the UN Charter, the Security Council did not expressly state that it was acting under Chapter VII when it authorized the Secretary-General to conclude a treaty to create the Special Court for Sierra Leone. The Appeals Chamber noted that the lack of a Chapter  VII mandate "does not by itself define the legal status of the Special Court," [28] but a question remains whether mere  reiteration in the preamble to Resolution 1315 that the situation in Sierra Leone continued to constitute a threat to the   peace carries the same weight as the unequivocal language contained in the resolutions establishing the ICTY and ICTR.

If the Security Council does not clearly state the nature and the scope of the authority under which it is acting, [29] states  may question, or perhaps even challenge, its authority to create criminal tribunals that were not contemplated by the   framers of the UN Charter. [30] This is particularly so given the active role that the Security Council has assumed since  the end of the Cold War to formulate and enforce decisions with serious ramifications for States and individuals as well as

[29] While there is general consensus among international lawyers that the most robust of the Security Council's powers are grounded in Chapter VII, the ICJ has held that the binding force of Council resolutions is not limited to measures  taken pursuant to Chapter VII, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (Advisory Opinion of June 21). For the implications of that decision in relation to Article 25 of the UN Charter, see Rosalyn Higgins, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter? (1972) 21 INT'L & COMP. L.Q. 270.

http://www.globalpolicy.org/wldcourt/roberts.htm

70. The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.

71. Examined in their totality, the General Assembly resolutions put before the Court declare that the use of nuclear weapons would be "a direct violation of the Charter of the United Nations"; and in certain formulations that such use "should be prohibited". The focus of these resolutions has sometimes shifted to diverse related matters; however, several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons.

Shaw's Int Law

incl pss excerpt

http://assets.cambridge.org/052182/4737/excerpt/0521824737_excerpt.pdf

45. The situation with respect to Security Council decisions on the other hand is clear. Article 25 of the Charter states that:

"The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."

Thus decisions of the Security Council are legally binding on the members of the United Nations and under paragraph 6 of Article 2 may be enforced not only with respect to Members but also with respect to States that are not Members of the United Nations. There has, however, been a view expressed that Article 25 applies only to decisions on enforcement measures under Chapter VII of the Charter. The International Court of Justice has rejected this view:

"It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to 'the decisions of the Security Council' adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter." 95/

The Court consequently held that decisions of the Security council taken in accordance with its general powers under Article 24 Of the Charter were legally binding and that States were under an obligation to accept and carry them out. 96/ The principal question with respect to Security Council resolutions is whether the Council adopted them as decisions, in which case they are binding, or merely as recommendations.

46. It is of course for member States, the General Assembly and the Security Council and, if requested, the International Court of Justice to determine the effect of particular United Nations resolutions.

http://domino.un.org/UNISPAL.NSF/0/6d55c7f840e6da06052567c9004b75de?OpenDocument

95/ Namibia Advisory Opinion, I. C. J. Reports, 1971, p. 53.

96/ Ibid., p. 53. See p. 52 for the power of the Security Council to take decisions under Article 24. See Rosalyn Higgins, "The Advisory opinion on Namibia: which United Nations resolutions are binding under Article 25 of the Charter?", The International and Comparative Law Quarterly, vol. 21 (1972), pp. 270-28

PBS's idiosyncratic view
for listmilocc

This site http://worldatwar.net/timeline/other/diplomacy39-45.html lists lots of declarations of war, and breaks in diplomatic relations during World War II. Under Hauge "Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised". So if the Germans put in a quisling government and no longer has troops on the street it is no longer under military occupation whether or not those civilian authorites are recognised internationally or not. The whole point of Article 6=> Article 47 of the Fourth Geneva Convention was to stop an occupier benefiting from an act of agression which lead to occupation. Before 1949 there was no international agreement on this, only what Hague said about the mechanics of military occupation. Which proceedings at the Nuremberg trials do you think contradicts this reading of Hague 42? Philip Baird Shearer 13:42, 8 May 2005 (UTC)

I disagree with this reading of the Hague definition; it is clearer on when occupations start than end. (And there were usually plenty of German troops in the quisling governed areas.) This  (4GC art 47 commentary) has more towards the similar issue of wartime annexation, but  points out "Such practices were incompatible with the traditional concept of occupation as defined in Hague Art. 43 ..."  I agree that matters were not then as clear-cut as they are now, for international law was changing rapidly, but the direction was clearly against restricting the scope of "occupation." The Germans

Of course the Stimson doctrine, applying to Manchukuo is exactly the quisling case, so I am outlining the US view before the war.

"Military occupation" of East Jerusalem and Golan Heights
By definition a territory can only be militarily occupied if it has not been annexed. Once it is annexed, it is no longer militarily occupied. You might want to argue that the annexation was illegal, but that is an argument for a different article. Jayjg |  (Talk)  22:40, 17 Jan 2005 (UTC)

Israel considers the Golan Heights to be annexed, the rest of the International Community considers the annexation to be null and void. Palestine-info 22:53, 17 Jan 2005 (UTC)


 * It doesn't really matter; once a country officially annexes a territory, the status is no longer one of a "military" or "belligerent" occupation:
 * Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional. On the other hand, subjugation or conquest implies a transfer of sovereignty, which generally takes the form of annexation and is normally effected by a treaty of peace. When sovereignty passes, belligerent occupation, as such, of course ceases, although the territory may and usually does, for a period at least, continue to be governed through military agencies. . Jayjg |  (Talk)  22:57, 17 Jan 2005 (UTC)

So the argument is that since East Jerusalem and the Golan Heights are no longer under military rule and are quite peaceful areas they are no longer occupied? Palestine-info 23:07, 17 Jan 2005 (UTC)
 * Um, no, that's not the argument. Please read what I've said. Also, you keep claiming that "the International Community" has said something, without any evidence it has done so. Jayjg  |  (Talk)  23:20, 17 Jan 2005 (UTC)

Does UN GA resolutions count? Note that the note does not say belligerent occupation, which may or may not be something other than occpuation. Palestine-info 23:25, 17 Jan 2005 (UTC)


 * If there were unanimous they might be mildly interesting, at least. Somehow I doubt they were.  More importantly, UNGA resolutions have absolutely no impact on International Law.  And "Belligerent occupation" is just the legal term for "Military occupation". Jayjg  |  (Talk)  23:43, 17 Jan 2005 (UTC)


 * GA Resolution
 * SC Resolution:

The SC Resolution was passed 12 Yes to 0 No. The GA Resolution seems to have been passed without a vote. What that means is that the resolution had a very large majority in the GA. Palestine-info 00:02, 18 Jan 2005 (UTC)


 * What are you talking about? GA resolutions are never passed without a vote. In this case it Part A of the resolution was adopted by 94 in favor, 16 against and 28 abstentions. On part B of the resolution, 121 voted in favor, 2 against and 20 abstained.  Not that it's relevant, since GA resolutions are not "the International community".  Nor is the Security Council, or its resolutions, so your text is still false. Jayjg  |  (Talk)  03:04, 18 Jan 2005 (UTC)

myst
Some eccentric comments: I think that one should use divinity, God and ultimate reality for several reasons. divinity is ambiguous between one or many, or even an adjective, with a bias towards the latter, God is unitary, while ultimate reality is atheistic or agnostic, so the more redundancy the merrier and more mystical. Also, someone might want to just go off and read these articles too.

This is an article on mysticism. To me, this means that (a) it should be a bit mystifying (b) It should be paradoxical and self-contradictory - i.e. any definition should be followed by, "on the other hand, (some mystics might say) that this definition is completely wrong, that mysticism is not all of or even none of these things." I mean - the dao that can be daoed is not the eternal dao, the name that can be named, etc. and (c) reading it should lead one to a mystical experience :-).

For example, saying mysticism is non-rational contradicts at least one great philosopher. Hegel, who put the mystic Boehme as one of two major predecessors of Descartes at the beginning of modern philosophy (the other member of the odd couple was Bacon) identified mysticism with Reason (Vernunft, especially as opposed to Understanding/ Verstand)   in particular with the third, dialectical, positive, negation of negation, synthesizing stage of cognition. Hegel - and I would wager half my grasp on ultimate reality, lots of other mystics (Suzuki?) would probably and perhaps did divide up people not between those who had mystical experiences and those who hadn't, but between those who realized they had and those who had not.

zero
By the way, you made a comment recently somwhere about Transjordan being part of the British Mandate of Palestine between 1920 and 1922. As far as I can tell, in spite of this being in a remarkable number of references, it is completely untrue, and  apparently is nothing but an incredibly successful fairy tale concocted by Jabotinsky. You might want to take a look at Bernard Wasserstein's Israelis and Palestinians ...., ca p.100, where he makes this assertion, which I have checked as much as I easily can - e.g. take a look at the San remo conference article, which

ot to bibigon


 * I have to agree with Cybbe; the definition of occupation is much older, much less disputed and much clearer that that of terrorism.  You are just factually incorrect here.   Just look at the fights on the terrorism page, it is a commonplace .  Occupation has been understood as a legal term for a very long time, and in this particular case, basically everybody is in agreement, contrary to what Cybbe says, this includes Israel. "War" is also a charged term.  If someone said we shouldn't talk about the 6 day war and replace it with 6-day dispute, should this be done  The territories are occupied according to the Hague definition, according to Israel.  This should be the decisive fact, why it is not understood as so here is hard to understand.