Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P50 pptx

formed between two or more countries. Other cases range from nuclear testing and water boundary disputes to conflicts over the military presence of a foreign country. The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court’s composition is static but generally includes jurists from a variety of cultures. Despite this diversity in structure, the ICJ has been criticized for favoring established powers. Under articles 3 and 9 of the ICJ Statute, the judges on the ICJ should represent “the main forms of civilization and principal legal systems of the world.” This definition suggests that the ICJ does not represent the interests of developing countries. Indeed, few Latin American countries have acquiesced to the jurisdiction of the ICJ. Conversely, most developed countries accept the compulsory jurisdiction of the ICJ. The judgment of the ICJ is binding and (technically) cannot be appealed (arts. 59, 60) once the parties have consented to its jurisdiction and the court has rendered a decision. However, a state’s failure to comply with the judgment violates the U.N. Charter, article 94(2). Noncom- pliance can be appealed to the U.N. Security Council, which may either make recommenda- tions or authorize other measures by which the judgment shall be enforced. A decision by the Security Council to enforce compliance with a judgment rendered by the court is subject to the veto power of permanent members, and thus depends on the members’ willingness not only to resort to enforcement measures but also to support the original judgment. The ICJ also may render advisory opinions on legal questions when requested to do so by the General Assembly, the Security Council, or other U.N. organs or agencies. For example, the World Health Organization and the General Assembly requested advisory opinion s on the legality of NUCLEAR WEAPONS under international law. The World Court held hearings, in which 45 nations testified. It issued an ADVISORY OPINION in July 1996, which held that it was illegal for a nation to threaten nuclear war. The court is used infrequently, which suggests that most states prefer to handle their disputes by political means or by recourse to tribunals where the outcome may be more predictable or better controlled by the parties. Since 2000 some of the contentious cases before the ICJ included a property dispute between Liechtenstein and Germany; a territo- rial and maritime dispute between Nicaragua and Colombia; a land, island, and frontier dispute between El Salvador and the Honduras (Nicaragua intervening); and a 2003 case by Mexico against the United States over alleged violations of consular communications with— and access to—several Mexican nationals sen- tenced to death in various U.S. states for crimes committed within. A 1993 case filed by Bosnia against the former Yugoslavia for violating the GENOCIDE Conventio n was still pending in 2003, as was a matter between the Republic of Congo and France over alleged crimes against humani- ty. Trials against individuals for alleged WAR CRIMES against humanity or genocides involving Bosnia, Croatia, Kosovo, Serbia, and the former Yugoslavia were being handled by the Inter- national Criminal Tribunal for the former Yugoslavia, a separate U.N. tribunal. The ICJ has been maligned for the inconsis- tency of its decisions and its lack of real enforcement power. But its ambitious mission to resolve disputes between sovereign nations makes it a valuable source of support for many countries in their political interaction with other countries. FURTHER READINGS International Court of Justice. Available online at http:// www.icj-cij.org (accessed August 1, 2009). In April 1996, Bosnia went before the International Court of Justice seeking a verdict against Serbia, which it charged had violated the international convention against acts of genocide. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 478 INTERNATIONAL COURT OF JUSTICE Kelly, Barbara. 1992. “The International Court of Justice: Its Role in a New World Legal Order.” Touro Journal of Transnational Law 3. Lelewer, Joanne K. 1989. “International Commercial Arbitra- tion as a Model for Resolving Treaty Disputes.” New York Univ. Journal of International Law and Policy 21. Levarda, Daniela. 1995. “A Comparative Study of U.S. and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery.” Ford- ham International Law Journal 18. Available online at http://members.cox.net/sbettwy/Comparative9as- signedDiscoveryUK.htm; website home page: http:// members.cox.net (accessed August 1, 2009). CROSS REFERENCES International Law; Ipso Facto; United Nations. INTERNATIONAL CRIMINAL COURT The International Criminal Court is a permanent tribunal empowered by the United Nations to prosecute individuals for acts of genocide, crimes against humanity, war crimes, and crimes of aggression. The UNITED NATIONS established the Interna- tional Criminal Court (ICC) with the signing of the Rome Treaty in 1998. The court is the first permanent international criminal tribunal, which came into force on July 1, 2002. As of December 2009, a total of 110 states have become members of the court. Another 38 states have signed the Romo Statute but have refused to ratify it. The United States signed the treaty on December 31, 2000, but later with- drew due to questions about the court’s powers to PROSECUTE U.S. soldiers sent on peacekeeping missions. International support for a permanent international tribu nal to try WAR CRIMES and other atrocities began with the creation of war crimes courts at Nuremburg and Tokyo follow- ing WORLD WAR II. However, tensions during the COLD WAR prevented the development of the tribunal. Some courts were established for crimes in specific areas of the world, however. Such courts were created during the 1990s to try war crimes in the former Yugoslavia and Rwanda for crimes against humanity. As the United Nations considered the estab- lishment of an international criminal court, the general consensus among nations was that it should only have the power to hear cases involving major atrocities, such as GENOCIDE,war crimes, and crimes against humanity. Nations posed several questions, including those related to the powers the court should have and the procedures by which the court should determine the cases that should be prosecuted. During the treaty’s development, the United States proposed that the five permanent members of the U.N. Security Council should be permitted to veto any prosecution. U.N. delegates in July 1998, without approval from the United States, approved the Rome Treaty by a vote of 120-7. The approval took place at the United Nations Diplomatic Confer- ence of Plenipotentiaries on the Establishment of an International Criminal Court. Twenty-one nations abstained from signing the treaty. Diplomats from the United Stat es reiterated concerns that the court could be used to prosecute troops based on the political motiva- tions of other nations. Many of the traditional allies of the United States, including Great Britain, Australia, and France, signed the treaty notwithstanding U.S. opposition. The United States garnered unusual support for such nations as Libya and China. The United States offered an amendment to the treaty that would have exempted members of peacekeeping forces and others from prosecution for actions during the engagement of their official duties, unless their home countries consented to trials. The vast majority of nations rejected the proposed amendment. The treaty needed to be ratified by 60 nations for it to go into effect. The United States was one of 139 nations to sign the treaty by December 31, 2000, but several nations did not ratify the creation of the court until after that date. The 60th nation ratified the court on April 11, 2002, at a special event at the United Nations. Former president BILL CLINTON approved the treaty even though members of Congress and members of his own administration had expressed concerns about the court’spowers.Severalconser- vative members of Congress, including former senator JESSE HELMS, vowed to fight the ratification of the treaty. The issue arose during confirmation hearings of the cabinet members of former president GEORGE W. BUSH. In May 2002 the U.S. STATE DEPARTMENT submitted a letter to the secretary-general of the U.N. to inform the United Nations that the United States could not become a party to the treaty. U.S. ambassadors were instructed to explain the position of the United States to other nations. According to Bush, the court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTERNATIONAL CRIMINAL COURT 479 would not guarantee that U.S. citizens would enjoy rights guaranteed by the U.S. Constitution. Moreover, the court lacks a system of checks and balances, according to Bush’s statements. The three major categories of cases that the court can hear include genocide, crimes against humanity, and war crimes. Genocide includes intent by an individual or nation to destroy a national, ethnic, racial, or religious group. Crimes against humanity include MURDER, RAPE, sexual SLAVERY, and other acts of aggression. War crimes include any of a number of activities that violate generally accepted RULES OF WAR. The ICC may sentence an individual to up to 30 years INCARCERATION or life imprisonment if the crime necessitates it. The court may also fine a convicted person and order the FORFEITURE of the property, proceeds, or assets that were received from the crime. In some instances, the court may order that the DEFENDANT pay reparations for damages and losses. The court cannot sentence a defendant to death. The ICC is designated to complement national courts, rather than to impede their jurisdiction. The court only acts when a national court is unwilling or unable to prosecute an individual for a type of crime over which the court has jurisdiction. The prosecutor of the court, a party to the treaty, or the Security Council may initiate a prosecution. The court does not have jurisdiction to try cases involving crimes committee before July 1, 2002. Virtually anyone who is a citizen of a party to the treaty may be prosecuted by the ICC, which includes heads of state and soldiers who commit crimes, even if the soldier is acting under orders from a superior. As of December 2009, three parties to the Rome Statute have referred situations occurring in their territories to the ICC. These parties include Uganda, the Democratic Republic of the Congo, and the Central African Republic. Moreover, the U.N. Security Council referred a situation occurring in Darfur, Sudan. The court has indicted a total of 14 people, though two of these individuals died after the indictment. FURTHER READINGS Feinstein, Lee. 2009. Means to an End: U.S. Interest in the International Criminal Court. Washington, D.C.: Brookings Institution Press. Podgor, Ellen S. 2008. Understanding International Criminal Law. Newark, N.J.: LexisNexis. Schiff, Benjamin N. 2008. Building the International Criminal Court. New York: Cambridge Univ. Press. CROSS REFERENCES Criminal Law; International Law INTERNATIONAL LAW The body of law that governs the legal relations between or among states or nations. To qualify as a subject under the traditional definition of international law, a state had to be sovereign: It needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjec ts of international law, be- cause they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under interna- tional law. A more contemporary definition expands the traditional notions of international law to confer rights and obligations on intergovern- mental international organizations and even on individuals. The UNITED NATIONS, for example, is an international organization that has the capacity to engage in treaty relations governed by, and binding under, international law with states and other international organizations. Individual responsibility under international law is particularly significant in the context of prosecuting war criminals and the development of international HUMAN RIGHTS. Sources of International Law The INTERNATIONAL COURT OF JUSTICE (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the LEAGUE OF NATIONS (the precursor to the United Nations). The PICJ ceased to function during WORLD WAR II and was officially dissolved in 1946. The ICJ is a permanent international court located in the Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 480 INTERNATIONAL LAW The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court’s statute, for mere adherence to the statute does not impl y consent to its tribunals. In addition, the court does not have jurisdiction over disputes between individuals or entities that are not states (I.C.J. Stat. art. 34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1)). Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law. In 2008 the U.S. Supreme Court rendered a controversial decision conclu ding that a U.S. court was not bound by an ICJ decision citing the United States for violation of the Vienna Convention rights of 51 Mexican nationals. Medellin v. Texas, 552 U.S. ___, 128 S.Ct. 1346 (2008). This was the second time the matter had come before the high court. Medellin, a Mexican national, and six other members of the “Blacks and Whites” gang raped and murdered two young girls in Texas, then bragged about it to family members. One family member called the police, and all gang members were ev entually arrested. Medellin was tried and convicted in a Texas state court and sentenced to death. The Texas Court of Criminal Appeals affirmed his CONVICTION and sentence on direct appeal, and the U.S. Supreme Court, after hearing oral arguments, denied CERTIORARI review as improvidently granted. Medellin v. Dretke, 544 U.S. 660 (2005). Meanwhile, the Mexican government initi- ated proceedings against the United States in the ICJ, alleging violations of the Vienna Conven- tion on behalf of more than 50 Mexican nationals facing the death penalty in the United States, including Medellin. Case Concerning Avena and other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. No. 128 (later referred to as the Avena decision). Essentially, the petition argued that the Mexican nationals had been denied their right under Article 36 of the Vienna Convention to contact their consulate after be ing detained for a crime. The ICJ determined that the Vienna Convention indeed guaranteed individually enforceable rights of access to the Mexican consulate. While denying Mexico’s request that the convictions and sentences be nullified, the ICJ decision held that the United States must reconsider the convictions. Both MEXICO AND THE UNITED STATES voted with the majority in the 14-1 decision; Venezuela was the lone dissenting member. President GEORGE W. BUSH had issued a mem- orandum stating that the United States would meet its international obligations under the Avena judgment by “having State Courts give effect to the [ICJ] decision in accordance with general principles of COMITY in cases filed by the 51 Mexican nationals addressed in that deci- sion.” It was his memorandum that became the focus in the second (2008) case. Ultimately, the Supreme Court held that the Texas courts were not bound by the ICJ because the signed Protocol of the Vienna Convention did not render the treaty SELF-EXECUTING. Until it was enacted into law by Congress, it was not binding on state courts. As to President Bush’s memo- randum, the Court characterized it as an attempt by the EXECUTIVE BRANCH to enforce a non-self-executing treaty without the necessary action by Congress. Custom Customary international law is de- fined as a general practice of law under article 38(1)(b). States follow such a practice out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered rules of international law. Thus, the mere fact that a custom is widely followed does not make it a rule of international law. States also must view it as obligatory to follow the custom, and they must not believe that they are free to depart from it whenever they choose, or to observe it only as a matter of courtesy or moral obligation. This requirement is referred to as opinio juris. Some criticism against customary interna- tional law is directed at its subjective character and its inconsistency. States vary greatly in their opinions and interpretations of issues regarding international law. Thus, it is almost impossible to find enough consistency among states to draw a customary international rule from general practice. In addition, even if one state or judge finds that a practice is a rule of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTERNATIONAL LAW 481 customary international law, another decision maker might reach a different conclusion. Altogether, the process of establishing rules of customary international law is lengthy and impeded by today’s fast-changing world. Conventions and Treaties Conventional in- ternational law includes international agreements and legislative treaties tha t establish r ules expressly recognized by consenting stat es. Only s t ates that are parties to a treaty are bound by it. However, a very large number of states voluntarily adhere to treaties and accept their provisions as law, even without becoming parties to them. The most important treaties in t his regar d are the GENOCIDE Convention, the Vienna Conventions, and the provisions of the UN Charter. UN Charter and United Nations The UN Charter and the United N ations as an organization were established on October 26, 1945. The UN Charter is a multilateral treaty that serves as the organization’s constitution. It contains a SUPREMACY CLAUSE that makes it the highest authority of international law. The clause states that the UN Charter shall prevail in the event of a conflict between the obligations of the members of the United Nations under the present charter and their obligations under any other international agreement (art. 103). At its formation, the United Nations had 51 member states. Its membership had increased to 180 states in 1996, including almost all of the world’s independent nations. The United Nations is designed to serve a multitude of purposes and is charged with a variety of responsibilities. Among these are peacekeeping; developing friendly rela- tions among nations; achieving international cooperation in solving international problems of an economic, social, cultural, and humanitari- an character; and promoting human rights and fundamental freedoms for all human beings without discrimination (UN Charter art. 1). The United Nations comprises the Trustee- ship Council, the General Assembly, the Security Council, the Economic and Social Council, and the ICJ. The Trusteeship Council’sroleis to supervise the administration of non-self- governing territories. Because all of these territo- ries have now gained independence, the last one being Palau in 1993, the Trusteeship Council is no longer functional within the United Nations. The General Assembly and the Security Council are the components of the organization that are most involved in lawmaking and legislative activities. Their respective authority varies greatly. Although the General Assembly lacks formal legislative authority to adopt resolutions that are binding on its members, it is highly active in the making and development of international law. This organ of the United Nations is required to initiate studies and to make recommendations that encourage the progressive development of international law and its CODIFICATION (UN Charter art. 13(1)(a)). Within this context, the General Assembly has originated much of the existing international legislation, and some of its resolutions are now accepted as customary international law, such as the Universal Declaration of Human Rights. Thus, resolutions adopted by the General A ssem- bly, albeit formally considered non-binding, have legal character and contribute s ignificantly to the development of international law. The Security Council, on the other hand, has the auth ority to adopt binding decisions, and non-compliance with these decisions con- stitutes a violation of the UN Charter. However, this does not give the Security Council a general lawmaking authority, as its SUBJECT MATTER JURISDICTION is limited to concerns of interna- tional peace and security. According to the UN Charter, article 2(3), all nations are required to settle their disputes by peaceful means in such a manner that international peace, security, and justice are not endangered. Nations are advised to resort to peaceful dispute-settlement mechan- isms (art. 33(1)) such as negotiation, mediation, and CONCILIATION. Where these measures fail, the parties must refer to the UN Security Council if their proposed measure would be a threat to peace and security. The Security Council then makes recommendations on further peaceful measures, and it resorts to the powers conferred on it under the UN Charter for its peacekeeping operations. The General Assembly’srolein peacekeeping focuses mainly on providing a forum for public discussion of the issues. However, the assembly does have the power to bring issues that potentially endanger the peace before the Security Council. In some cases, the Security Council fails to exercise its responsibility for maintaining inter- national peace and security, and there is a threat to peace or an act of aggression. The General Assembly or Security Council may make appro- priate recommendations and may authorize the threat of economic sanctions or the use of armed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 482 INTERNATIONAL LAW forces to maintain or restore international peace and security. The UN Peacekeeping Forces are employed by the World Organization and may function either as unarmed observer forces, or armed military forces. Their presence in areas of conflict is intended as an incentive to either prevent or reduce the level of conflict. Both parties to a conflict must accept their presence. However, the United Nations generally has not been very effective in preventing hostilities that involve the world’s princ ipal powers, either directly or indirectly. For example , in 1993 the second UN peace operation, UNOSOM II, was intended to assist in rebuilding Somalia and in disarming warring factions there. It met with stiff resistance, culminating in the public deaths of 18 U.S. troops serving with the operation. When the United States announced its with- drawal, the entire operation began to wind down, while the war continued unabated. Serious debate broke out within the UN over the scope and mission of peacekeeping func- tions, resulting in a general disengagement in such efforts. Sadly, even efforts to respond to the genocide in Rwanda subsequently failed. Another area of intense UN deliberations has been the Middle East. In 1990 the UN Security Council imposed comprehensive eco- nomic sanctions against Iraq following its invasion of Kuwait. The efforts failed to deter Iraq’s leader, Saddam Hussein. The following year, the United States led allied forces to expel Iraqi forces from Kuwait during the 1991 Persian Gulf War. Following that conflict, UN Security Council Resolution 687 required Iraq to destroy its arsenal of nuclear, chemical, and biological weapons, and to submit to UN inspection for compliance. Over the next several years, despite Iraqi efforts to conceal them, such weapons were indeed found and destroyed by UN inspectors. However, the inspectors left in 1998, following U.S. and British air strikes bent on speeding up the process and destroying concealed weapons. When economic sanctions against Iraq failed to punish anyone but the Iraqi people, the UN began a humanitarian “Oil for Food” program, again w ith little impact. After 12 years of failed economic sanctions against Iraq, the United States petitioned the UN for international support and a coalition of military forces to oust the Hussein regime. The measure was vetoed by several superpowers, which favored the continuance of UN inspections. In early 2003 the United States and the United Kingdom, supported by several other smaller powers, conducted military strikes on Iraq and eliminated Saddam Hussein’s regime. After the fact, the UN agreed to assist in peacekeeping while a new Iraqi government was organized and instituted. UN peacekeepers have been increasingly charged with assisting electoral and political processes, reforming judicial decisions, disarming and reintegrating former combatants, and sup- porting the return of refugees. UN peacekeeping missions supported the election processes in several post-conflict countries such as Nepal, Afghanistan, Haiti, Liberia, and Iraq. As of 2009, there were almost 116,000 personnel serving on 17 peace operations. As of April 2009, 117 countries contributed military and police person- nel to UN peacekeeping. The top providers of troops were Pakistan, Bangladesh, and India. The top providers of funds for the peacekeeping budget were the United States and Japan. The UN Charter includes a general provision that concerns the human rights of the individual. On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights, which defines and enumerates specifically the human rights that the United Nations seeks to protect. Among those are freedom from system- atic governmental acts and policies involving torture, SLAVERY, MURDER, prolonged arbitrary DETENTION, disappearance, and racial discrimina- tion. The declaration guarantees the right to life; to EQUAL PROTECTION of the law; to free speech, assembly, and movement; to privacy; to work; to education; to health care; and to participation in the cultural life of the community. Although the Universal Declaration is not a binding instrument of international law, some of its provisions nonetheless have reached the status of customary international law. Under Articles 55 and 56 of the UN Charter, member states have an obligation to promote these rights. At the same time, the declaration acknowledges that states may limit these rights as they deem necessary, to ensure respect for the rights and freedoms of others. In 1966 the UN General Assembly adopted three covenants that involve human rights: the International COVENANT on Civil and Political Rights; the International Covenant on Econom- ic, Social, and Cultural Rights; and the Optional Protocol to the Civil and Political Covenant. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTERNATIONAL LAW 483 Unlike the Universal Declaration, these cove- nants are treaties that require ratification by member states. The United States is not a party to the covenants. The human rights provisions of the UN Charter, the Universal Declaration of Human Rights, and the covenants constitute the Inter- national Bill of Human Rights. Other UN human rights instruments supplement this bill. The most important ones are the Genocide Convention (1948); the International Conven- tion on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Political Rights of Women (1953); and the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). Thes e conventions are legally binding on the parties that have ratified them. Most of the UN member states have ratified at least two: the Genocide Convention and the Racial Convention. The United States has ratified only the Women’s Rights Convention and the Genocide Convention. FURTHER READINGS August, Ray. 1995. Public International Law: Text, Cases, Readings. Englewood Cliffs, N.J.: Prentice-Hall. Janis, Mark W. 1988. An Introduction to International Law. Boston: Little, Brown. “Size of UN Peacekeeping Forces: 1947–2001.”; “Sanctions against Iraq”; “Weapons Inspection Program.” 2002. Excerpted from Iraq Crisis. Available online at www. globalpolicy.org/security/peacekpg/data/pcekprs1.htm> (accessed November 20, 2003). “United Nations Peacekeeping.” Available online at www .una-uk.org/UN&UC/Peacekeeping.html (accessed November 20, 200 3). United Nations Peacekeeping. “Fact Sheet.” Available online at home page and www.un.org/Depts/dpko/dpko/ overview.shtml; website home page: www.un.org/ Depts/dpko/dpko/ (accessed August 30, 2009) CROSS REFERENCES Ambassadors and Consuls; Arms Control and Disarma- ment; General Agreement on Tariffs and Trade; Geneva Conventions, 1949; Genocide; Hague Tribunal; Interna- tional Court of Justice; Law of Nations; North American Free Trade Agreement; War INTERNATIONAL MONETARY FUND The International Monetary Fund (IMF) is a specialized agency of the UNITED NATIONS that seeks to promote international monetary coop- eration and to stimulate international trade. The IMF, which had 186 nation-members as of 2009, has worked to stabilize world currencies and to develop programs of economic adjust- ment for nations that require economic reform. The International Monetary Fund (IMF) was created in 1944 at the United Nations Monetary and Financial Conference held at Bretton Woods, New Hampshire. It first began operation in 1947 from its headquarters in Washington, D.C., with a fund of $9 billion in currency, of which the United States contributed almost a third. The creation of the IMF was seen as a way to prevent retaliatory currency devalua- tions and trade restrictions, which were seen as a major cause of the worldwide depression prior to WORLD WAR II. Membership is open to countries willing to abide by terms established by the board of governors, which is composed of a representa- tive from each member nation. General terms include obligations to avoid manipulating exchange rates, abstain from discriminatory currency practices, and refrain from imposing restrictions on the making of payments and currency transfers necessary to foreign trade. The voting power of the governors is allocated according to the size of the quota of each member. The term quota refers to the IMF unit of account, which is based on each member’s relative position in the world econo- my. This position is measured by the size of the country’s economy, foreign trade, and relative importance in the international monetary system. Once a quota is set by the IMF, the country must deposit with the organization an amount equal to the size of the quota as a subscription. Up to three-fourths of a subscrip- tion may consist of the currency of the sub- scribing nation. Each subscription forms part of the reserve available to countries suffering from balance-of-payment problems. When a member has a balance-of-payment problem, it may apply to the IMF for needed foreign currency from the reserve derived from its quota. The member may use this foreign exchange for up to five years to help solve its problems, and then return the currency to the IMF pool of resources. The IMF offers below- market rates of interest fo r using these fun ds. The member country whose currency is used receives most of the interest. A small amount goes to the IMF for operating expenses. In its early years the IMF directed its major programs toward maintaining fixed exchange rates linked to the U.S. dollar, which in turn GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 484 INTERNATIONAL MONETARY FUND could be converted at a standard rate into gold. Present IMF policy emphasizes an orderly adjustment of currency exchange rates to reflect underlying economic forces. Special attention has been given to the needs of developing countries, in the form of program s to provide long-term assistance to cover foreign exchange demands necessitated by high import prices, declining export earnings, or development programs. In appropriate circumstances, the IMF may impose conditions on the use of IMF resources to encourage recipient countries to make needed economic reforms. Since 1982 the IMF has concentrated on the problems of developing nations. It has gone beyond its own resources, encouraging addi- tional lending from commercial banks. The IMF has also established new programs, using funds from its richer members, to provide money in larger amounts and for longer periods than those granted under the quota-driven lending procedures. It works closely with the WORLD BANK on these and other international monetary issues. Starting in the 1990s, the IMF faced enor- mous economic challenges propelled by the increasing globalization of the world economy. Among the problems were the need to help a number of countries make the transition from a centrally-planned economic system to a market- oriented one, reducing turbulence in emerging financial markets such as Asia and Latin America, and promoting economic growth in the poorest nations. The IMF responded with a number of initiatives including creation of a loan fund to ensure sufficient funds to deal with major financial crises, a new approach to reducing poverty in low-income countries, and the Supple- mental Reserve Facility created in 1997 specifical- ly to help countries deal with large short-term financing needs resulting from a sudden reduc- tion in capital outflows due to loss of market confidence. Despite these moves, the IMF faced an increasing volume of worldwide criticism and protest against its fiscal policies in the late 1990s and early 2000s. A number of economists and other critics charged that IMF loan programs imposed on governments of developing countries resulted in severe economic pain for the popula- tions of those countries, that IMF policies were poorly designed and often aggravated economic conditions in countries experiencing debt or currency crises, and that the IMF has forced countries to borrow foreign capital in a manner that adversely affects them. In 2000 the managing director and mem- bers of the IMF agreed on several governing principles including the promotion of sustained non-inflationary economic growth, encouraging the stability of the international finance system, focusing on core macroeconomic and financial areas and being an open institution that learns from experience and continually adapts to changing circumstances. In 2008 the IMF revealed a new income and expenditure framework for the organization. Included in the new framework are various efforts designed to overcome its budget deficit, which is projected to be nearly $400 million by 2010. These efforts include an agreement to sell a portion of its gold holdings and implementation of sharp spending cuts totaling $100 million. The spending cuts include layoffs of up to 400 of the fund’s employees, the highest percentage of job cuts since the organization’sinception. FURTHER READINGS Davis, Bob. 2007. “IMF Plans to Cut Jobs, Lift Income.” Wall Street Journal (December 7). Humphreys, Norman K. 1999. Historical Dictionary of the International Monetary Fund. Lanham, MD: Scarecrow Press, Inc. International Monetary Fund. Available online at http:// www.imf.org (accessed June 10, 2009). Landler, Mark. 2008. “Scandal Hinders I.M.F.’s Role in Global Lending.” New York Times (October 21). Rogoff, Kenneth. 2003. “The IMF Strikes Back.” Foreign Policy January 1. Largest IMF Members, by Quota, 2009 Special drawing rights (in millions) Country United States France United Kingdom SOURCE: International Monetar y Fund. 0 8,000 10,738 4.94% 10,738 4.94% 16,000 24,000 32,000 40,000 Japan 13,313 6.13% Germany 13,008 5.99% 37,149 17.09% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INTERNATIONAL MONETARY FUND 485 CROSS REFERENCES International Law; United Nations; World Bank. INTERNATIONAL TECHNOLOGY LAW ASSOCIATION The International Tech nology Law Association, often referred to as ITechLaw, is one of the largest associations of legal professionals fo- cused on technology and the law. It was founded in 1971 and incorporated in 1973 as the Computer Law Association. It was formed to fill the need for mutual education by lawyers concerned with the unique legal considerations related to the evolution, production, marketing, acquisition, and use of computer communica- tions technology. It was origina lly open only to lawyers and law students. In 2006, it changed its name from the Computer Law Association to the International Technology Law Association to better reflect its international membership, global activities, and expanded focus. In 2008, it broadened its membership from lawyers and law students to include other professionals interested in technology law issues. The organi- zation has over 1,000 members worldwide, representing six continents. In addition to serving as a forum for members to discuss a wide range of legal issues and publishing the ITechLaw eBul letin, the association regularly organizes conferences that explore cut- ting-edge issues and trends i n both information technology and intellectual PROPERTY LAW.Confer- ences t ake place in the United States, Europe, and Asia. I t also sponsors webinars on technology-and- law issues that are open to both members and non-members, and r uns a socia l networking site , called ITechLaw C onnect, that allows members to participate in committee forums, access informa- tion, and take part in discussions. The International Tech nology Law Associa- tion is headed by a president and an executive committee that reports to a board of directors. It also has an advisory board. Its mission is to “create unparalleled opportunities for interna- tional networking and exchanging knowledge and experience with experts and colleagues around the world.” Web site: www.itechlaw.org (accessed December 16, 2009). CROSS REFERENCES Computer Crime; Copyright. INTERNATIONAL TRADE ORGANIZATION Prior to WORLD WAR II, many countries employed “beggar thy neighbor” trade policies, raising tariffs and instituting non-tariff barriers that impede imports in an attempt to reduce unem- ployment and increase domestic output. How- ever, other countries retaliated by raising their own barriers against imports. This resulted in reducing export markets, which then only worsened the already poor economic conditions. The problems created by such policies led United States to propose that a new international trade organization be established to regulate trade policies and settle disputes between trading partners. Under the U.S. proposal, the Interna- tional Trade Organization (ITO) was to be a specialized agency of the UNITED NATIONS and was to have several broad functions: promoting the growth of trade by eliminating or reducing tariffs or other barriers to trade; regulating restrictive business practices hampering trade; regulating international COMMODITY agreements; assisting economic development and reconstruction; and settling disputes among member nations regard- ing harmful trade policies. Negotiations to establish the ITO began in Geneva, Switzerland, in 1947, with a more complete charter being drafted later in Havana, Cuba. Opposition to the charter of the ITO soon emerged, especially in the U.S. Congress. Subsequently, President HARRY TRUMAN ’s administration withdrew its support for the ITO, and interest in the ITO faded. The void left by the collapse of the ITO has been filled by other institutions, like the GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT), the WORLD BANK,and the United Nations Conference on Trade and Development (UNCTAD). INTERNATIONAL WATERWAYS Narrow channels of marginal sea or inland waters through which international shipping has a right of passage. In INTERNATIONAL LAW, INTERNATIONAL WATER- WAYS are straits, canals, and rivers that connect two areas of the high seas or enable ocean shipping to reach interior ports on international seas, gulfs, or lakes that otherwise would be landlocked. International waterways also may be rivers that serve as international boundaries or traverse successively two or more states. Ships have a right of passage through international waterways. This right is based on customary international law and treaty arrangements. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 486 INTERNATIONAL TECHNOLOGY LAW ASSOCIATION Straits Some straits are more important than others because they are the sole connecting links between oceans and interior waters. For example, the Strait of Gibraltar gives access from the Atlantic Ocean to the Mediterranean and Aegean Seas. Other straits are not as important. The availability of alternate routes does not in itself deprive a strait of its character as an international waterway. In the Corfu Channel case, 1949 I.C.J. 4, 1949 WL 1 (I.C.J.), the INTERNATIONAL COURT OF JUSTICE rejected the test of essentiality as the only route, ruling that “the decisive criterion is rather [the strait’s] geographic situation as connecting two parts of the high seas and the fact of its being used for international navigation.” The 1958 Geneva Conv ention on the Territorial Sea and Contiguous Zone (516 U. N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639) does not deal comprehensively with interna- tional waterways, but does provide that “[t]here shall be no suspension of innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreig n state” (art. 16, § 4). A territorial sea is the water that comes under the sovereign control of a state. A coastal state has somewhat greater control of innocent passage through its territorial seas than of innocent passage through a strait joining two areas of high seas. Passage may be suspended through TERRITORIAL WATERS when essential for security. This means that warships are free to pass through straits but may be denied access to territorial seas. Since the 1960s a great majority of coastal states have extended their claims on territorial seas from three miles to 12 miles from the low- water mark, some even farther. This change has been a matter of concern to the U.S. govern- ment, as a 12-mile limit converts 121 straits to territorial seas, some of which have strategic military importance. Canals With respect to international marine traffic, canals joining areas of the high seas or waters leading to them are geographically in the same position as straits. However, the significant canals have been constructed in accordance with international treaties or later placed under conventional legal regimes. The Suez Canal, located in Egypt, and the Panama Canal are the two most important canals in international commerce. The United States played the major role in the construction of the Panama Canal, which joins the Atlantic and Pacific Oceans across the Isthmus of Panama. The canal is more than 40 miles long and has a minimum width of three hundred feet. In 1903, after several European-financed efforts to build a canal across the isthmus had failed, the U.S. government negotiated the Hay- Bunau-Varilla Treaty (T.S. No. 431, 33 Stat. 2234, 10 Bevans 663). Under this treaty the United States guaranteed the independence of Panama (which had just broken away from Colombia) and secured a perpetual lease on a ten-mile strip for the canal. Panama was to receive an initial payment of $10 million and an annuity of $250,000, beginning in 1913. In 1906 President THEODORE ROOSEVELT directed construction of the canal to begin under the supervision of the U.S. Army Corps of Engineers. The Panama Canal was completed in 1914 and officially opened by President WOODROW WILSON on July 12, 1920. The Hay-Bunau-Varilla Treaty stated that the canal was to be neutralized and free and open to vessels of commerce and war on terms of equality, and without discrimination as to tolls or conditions of passage. However, it did not mandate open access in times of war. The United States decided, in 1917, to close the canal and the territorial waters of the canal zone Spanish King Juan Carlos and former President Jimmy Carter shake hands at a December 1999 ceremony transferring control of the Panama Canal to Panama. President Mireya Moscoso of Panama (sitting) looks on. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INTERNATIONAL WATERWAYS 487 . rule of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTERNATIONAL LAW 481 customary international law, another decision maker might reach a different conclusion. Altogether, the process of. is not a binding instrument of international law, some of its provisions nonetheless have reached the status of customary international law. Under Articles 55 and 56 of the UN Charter, member states. 40,000 Japan 13,313 6.13% Germany 13,008 5. 99% 37,149 17.09% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INTERNATIONAL