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PUBLIC INTERNATIONAL LAW - FALL 2005; PROF. PAYAM AKHAVAN
INTRO...................................................................................................................................................................5 PART 1 – NATURE OF INTERNATIONAL LAW.........................................................................................7 (a) J.L. Brierly – Basis of Obligation in International Law............................................................................7 PART 2 – INTERNATIONAL LEGAL SUBJECTS – ....................................................................................8 A- STATES.............................................................................................................................................................8 A - How do we characterize Statehood?........................................................................................................8 Montevideo Convention on the Rights and Duties of States...........................................................................8 Austro-German Customs Union Case [PCIJ 1931]....................................................................................9 B - Sovereignty and Equality........................................................................................................................10 Island of Palmas Case – Netherlands v. U.S.............................................................................................10 Namibia Case............................................................................................................................................11 C - State Succession......................................................................................................................................11 Tinoco Arbitration: Great Britain v. Costa Rica.......................................................................................12 S.A. Williams – Succession to Public Debts............................................................................................13 D – Recognition............................................................................................................................................14 S. Williams & A. De Mestral – Theories of Recognition.........................................................................14 Tinoco Arbitration: Great Britain v. Costa Rica.......................................................................................16 B – INTERNATIONAL LEGAL SUBJECTS – INTERNATIONAL ORGANIZATIONS (IGO’S) .....................................................16 Reparations Case.......................................................................................................................................17 UN High Level Panel on Threats, Challenges and Change......................................................................18 C – International Legal Subjects - Peoples..................................................................................................19 Declaration of the Granting of Independence to Colonial Territories and Peoples..................................20 Western Sahara Case.................................................................................................................................21 East Timor Case – Portugal v. Australia...................................................................................................21 Reference Re Seccession of Québec.........................................................................................................21 Mi’kmaq Case...........................................................................................................................................22 D – International Legal Subjects – Corporations and NGO’s ....................................................................22 The Prosecutor v. Simic............................................................................................................................23 PART 3 – SOURCES OF INTERNATIONAL LAW.....................................................................................26 Military Activities In and Against Nicaragua, ICJ 1986 ........................................................................27 A – TREATIES......................................................................................................................................................28 Vienna Convention on the Law of Treaties .................................................................................................28 Anglo Iranian Oil Co. Case.......................................................................................................................29 Nuclear Test Cases – Aus v. France; NZ v. France..................................................................................30 Reservations.................................................................................................................................................30 Reservations to the Convention on Genocide...........................................................................................30 Free Zones Case, France v. Switzerland,..................................................................................................32 Invalidity and JUS COGENS........................................................................................................................32 B – CUSTOM........................................................................................................................................................35 North Sear Continental Shelf Cases - Germany v. Denmark and v. Netherlands....................................36 The Steamship Lotus – France v. Turkey.................................................................................................37 Right of Passage over Indian Territory Case – Portugal v. India.............................................................37
Public International Law – Fall 2005
PART 3C – SOURCES – GENERAL PRINCIPLES AND SOFT LAW ....................................................................................39 International Status of South West Africa Case.......................................................................................39 Erdemovic Case........................................................................................................................................40 Texaco v. Libya........................................................................................................................................41 PART 4A – NATIONAL APPLICATION OF INTERNATIONAL LAW - CUSTOM..............................42 Foreign Legations Case.............................................................................................................................43 Saint John v. Raser-Brace Overseas Corp................................................................................................43 Gordon v. R...............................................................................................................................................43 Treaty Implementation..................................................................................................................................44 Conflicts between Treaties and Statutes.......................................................................................................45 INFLUENCE OF IL ON CDN LAW – DETERMING THE APPLICABLE LAW TO APPLY:..........................................................46 COMPARATIVE APPROACHES TO NATIONAL APPLICATION............................................................................................46 European Union:..........................................................................................................................................46 Cosa v. Ente Nazionale Per l’Energia Ellettrica,  ECJ Advisory Opinion under art. 177............46 United States.................................................................................................................................................47 PART 5 - STATE JURISDICTION OVER TERRITORY............................................................................48 LAND TERRITORY..................................................................................................................................................49 (a) Acquisition of Territory...........................................................................................................................49 Island of Palmas Case; Netherlands v. United States (1928), 2 R.I.A.A. 829..........................................49 Western Sahara Case Adv. Op.  I.C.J. Rep. 12..............................................................................50 Legal Status of Eastern Greenland Case; Denmark v. Norway ...............................................................51 (b) Boundary Disputes...................................................................................................................................52 Case Concerning the Frontier Dispute; Burkina Faso v. Republic of Mali, ............................................52 ARCTIC AND ANTARCTIC AREAS.............................................................................................................................53 PART 6 – LAW OF THE SEA..........................................................................................................................55 A – MARINE ZONES..............................................................................................................................................55 1. Territorial Sea..........................................................................................................................................55 Anglo-Norwegian Fisheries Case – UK v. Norway..................................................................................56 Exclusive Economic Zone.............................................................................................................................57 Continental Shelf..........................................................................................................................................57 The Truman Proclamation........................................................................................................................57 Re Newfoundland Continental Shelf........................................................................................................58 PART 7 - NATIONALITY.................................................................................................................................59 A. INDIVIDUALS....................................................................................................................................................59 Nottebohm Case – Liechtenstein v. Guatemala........................................................................................59 Flegenheimer Claim – Italian – United States Conciliation Commission ...............................................60 Canevaro Case – Italy v. Peru...................................................................................................................61 Iran – US case A/18..................................................................................................................................61 Stoeck v. Public Trustee...........................................................................................................................61 B. CORPORATIONS.................................................................................................................................................61 Barcelona Traction, Light and Power Co. Case – Belgium v. Spain........................................................62 Electronica Sicula SpA (ElSI Case) US v. Italy.......................................................................................62 PART 8 – STATE JURISDICTION OVER PERSONS.................................................................................63 2
Public International Law – Fall 2005
A – SUBJECT-MATTER JURISDICTION.......................................................................................................................63 The Steamship Lotus – France v. Turkey.................................................................................................63 Six Bases of Criminal Jurisdiction:..............................................................................................................65 Libman v. R. ............................................................................................................................................66 B – JURISDICTION OVER THE PERSON.......................................................................................................................66 United State v. Toscanino [US CA 2nd Cir. 1974]...................................................................................68 United States v. Alvarez Machain (US SC, 1992]....................................................................................68 PART 9 – INTERNATIONAL CRIMINAL LAW..........................................................................................70 Nuremburg War Crimes Trials.................................................................................................................72 R. v. Imre Finta.........................................................................................................................................72 B – The Ad Hoc Tribunals as Precedents.....................................................................................................75 The Prosecutor v. Dusko Tadic.................................................................................................................76 The Prosecutor v. Dusko Tadic.................................................................................................................77 The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case................................................77 RWANDA - ICTR..........................................................................................................................................77 The Prosecutor v. Jean-Paul Akayesu.......................................................................................................78 C. The International Criminal Court............................................................................................................78 PART 10 – PROTECTION OF HUMAN RIGHTS........................................................................................80 A) INDIVIDUAL RIGHTS..........................................................................................................................................80 Toonen v. Australia...................................................................................................................................81 Velasquez Rodriguez Case.......................................................................................................................83 B. HUMAN RIGHTS STANDARDS..............................................................................................................................83 Committee on Economic, Social and Cultural Rights – General Comment – The nature of States Parties Obligations.................................................................................................................................................84 C) CUSTOMARY HUMAN RIGHTS.............................................................................................................................84 D) UNIVERSALITY OF HUMAN RIGHTS AND CULTURAL DIVERSITY...............................................................................85 E) COMPLIANCE AND ENFORCEMENT........................................................................................................................85 Filartiga v. Pena-Irala................................................................................................................................86 PART 10 B – COLLECTIVE RIGHTS AND SELF-DETERMINATION...................................................86 Mi’kmaq Case...........................................................................................................................................87 PART 11 – STATE RESPONSIBILITY .........................................................................................................88 The Schooner Exchange v. M’Faddon......................................................................................................89 Trendex Trading Corp. Ltd. v. Cental Bank of Nigeria [1977 UK CA]...................................................91 B. STATE RESPONSIBILITY .....................................................................................................................................91 Draft Articles on State Responsibility..........................................................................................................92 Corfu Channel Case: UK v. Albania [ICJ 1949]......................................................................................93 The Jessie, Thomas F. Baynard, and Pescawha........................................................................................93 Cosmos 954 Claim – Canada v. USSR.....................................................................................................93 IMPUTABILITY............................................................................................................................................94 T.H. Youmans Claims: US v. Mexico [General Claims Commission, 1926]..........................................94 State Responsibility for Private Individuals.................................................................................................95 Acts of Insurgents.........................................................................................................................................96 Circumstances Precluding Wrongfulness.....................................................................................................96
.................................................................................................................................................110 The Entebbe Raid..............................................................................................................................98 PART 12 – INTERNATIONAL DISPUTE RESOLUTION...............................................................112 4 ...................................................................................................... Humanitarian Intervention....................108 2.Public International Law – Fall 2005 Kirk Shannon C............................ Collective Measures Pursuant to the UN Charter................................................................105 B................................100 Fisheries Jurisdiction.............................................. Self-Defence of Nationals...............102 Construction of the Wall Advisory Opinion............................................................................................................................105 A.......................................111 4...........................................................................108 1.... JUSTIFICATIONS FOR THE USE OF FORCE.............................. Enforcement of Claims............... The Right to Self Defence.........110 3....................................... PROHIBITION OF THE USE OF FORCE.......................................................................................................................................................103 PART 13 – USE OF FORCE.................................................................................................................................................................................................................
• Laws of war were different when fighting b/n civilized nations and fighting non-civilized nations (which continued into the times of Churchill and. o This was captured in Hitler’s “mite is right”. Notion that sovereignty did not belong to God or nature but to man. • End of 30 years war – 1648 Peace of Westphalia. SUM: Notion that nation is central or as supreme entity. o Law as essentially an apology for power. Civilized and uncivilized nations – Peace of Westph was only among Christian sovereigns (b/n protest and cath). These nations were part of the civilized world. Only law that was rightfully law was that which could be imposed by sovereign with power. genocide.Public International Law – Fall 2005 Kirk Shannon INTRO PIL born out of the collective violence of the 20th century. holocaust. Emergence of national identity and rise of absolutist monarchies. in many ways went along with development of nation states in Europe and the colonialism that went along with it. Sovereignty Dominance. Development of war from knights in shining armour to total war with ideology attached had profound effect on PIL. Key devel 1928 Pact of Paris – Kellog-Briand Pact o Outlawed wars of aggression – sovereign rights do not extend to right to wage wars of aggression but only to right to self defence. • Reflection of reality westphalian era – normal status was states were at war unless they concluded a peace treaty between them. Born in the matrix two world wars. Embodied dissolution of holy roman empire – that church was no longer the authority. but. • Look at is as a mirror reflecting society Look at the absence of actual sovereign o Relfection of power realities. supremecy in relation to the right to wage war. o Redress the historical imbalance that has been created by a system Brief Overview • Can be traced to antiquity and ancient civilizations • Mistake to say only emerged at reformation. o Reflects rather than imposes existing order. Gave rise to League of Nations o Short lived experiment of collective security that ended with Italian colonisation of a part of Ethiopian and Japan in Manchuria • • 5 . • With the enlightenment and Weber’s disenchantment we saw rise of Positivism. o International order is reflection of survival of fittest. Grotius subsequently still recycled or repackaged this under the guise of natural law. to a certain extent today) Transition from Tradition to Modernity • Traditional world view at time of HRE had particular mindset – one aspect of which was notion of devine law that was God given. Book De jure belli ac pacis – The law of war and peace – classical work of international law. right to impose one’s will on others to the extent that power realities allowed Key figure: Hugo Grotius – Dutch • Proverbial father of international law. WWI • First stage in transformation to modern intntl system.
Cold War Shaped the international system. Creation of ICC result of Yugoslavia genocide and ICTR was result of Rwanda. • New ethos created much of which is imposed by realities. the victims and the offenders had to be of two different nations. • UN charter succeeded where LofN failed. Violence is still subject of international law. • End of Cold War we have entered into period of uncertainty. etc.movement away from the idea that the state was an abstraction. Structure of International Legal Sys Sovereign equality is central – all states are equally sovereign. Enter notion of crimes against humanity – some crimes so shock the conscience of international community. Made treatment of states of their own subjects an issue of international law. develop. Showed the dialectic b/n the increasing level of violence and the evolution of the international legal system.) Note that under classical international law. Showed that violence had to be regulated by an international system. • Intro of HR as universal concept. How then could the Nuremburg trials deal with cases where both were from same country. This was done retroactively – which is against the principles of legality b/c of an overwhelmingly compelling situation. Context within which international law was interpreted. Convergence between power realities and ideals. Decolonization • Vast majority of UN member states gained independence after UDHR. Now composed of individs who should be held responsible for their conduct. Marked a change in our conception of law – return to Natural Law – idea that there are sacred values and an elementary level of humanity that cannot be transgressed. Post colonialism and right to self-determination. law of sea. civil aviation. UN CHARTER Some speak of this as a tranasition from state centered Grotian model to Kantian model. Questions to consider • Who makes it? • It is a reflection of culture and should not be seen as a set of abstract norms. Early glimmerings of constitutional order (charters. • Introduced notion of individual criminality into an area where states were central . • Contained express prohibition for use of armed force. Move away from obsession with violence • External sovereignty becomes curtailed and internal sovereignty becomes curtailed through HR. Other thing that shocked intrntl community – Holocaust. 6 . 1948 – Gen Ass.Public International Law – Fall 2005 WWII • • • • Kirk Shannon Bluring of distinction b/n civilians and military.. o Universal Decl of HR (UDHR) o Genocide Convention (adopted one day before UDHR) • Revolutionary documents. Legal fiction. • Nazi war in forefront of minds of drafters. Elements of Change • UN charter. o Eg Korea. Only other legit use is with SC of UN allows for it. Kuwait. • Most signif aspect is proliferation with all sorts of international regimes dealing with trade. • Only legit use of force was self defence. postal services….
living in stability…. Every subsequent case that is referring to this case alludes to customary law and not general principles. o Central critique of Positivism Facts of international life don’t fit into international law. in a society closely knit by kinship…. Part 1 – Nature of International Law Reading – Sept 6th (a) J. Brierly’s response: ♦ Debunks fundamental rights theory ♦ Critiques positivism. Can there be any form of law without a central sovereign – no one to legislate. Brierly – Basis of Obligation in International Law Two alternate theories of international law 1) Fundamental rights doctrine notion that there are primordial rights rather than rights that are endowed by society.Public International Law – Fall 2005 • Kirk Shannon • Point is that there is no central sovereign. Rights cannot exist outside legal system. according to some. Most fundamental criticism is that these are legal rights that cannot exist outside a legal system. 2) Doctrine of Positivism: Some of the rules to which states are consented to be bound. Why? – the answer for this question is for philosophy not for law according to Brierly. court referred to general principles (based only on genocide being a monsterous crime). International law is law b/c of consent. Could equally not consent to be bound. L. Therefore. How can we assert custom in 1951 after only three years. ♦ Note that the convention of 1948 was open for signature and put into force in 1951. • Problem with this theory: Does not explain why the law is binding. Could only rely on Treaty Law. The state is at center of international law. Pospisil in 1971 argued that primitive society law worked based on consent – law is internalized. So how can one say that there is such a thing as international law. Consent can be implied.L. it could not use customary or general principles. There needs to be new mystery about the source of obligation. ♦ What composes international law how far does it extend and is consent the basis for application. ♦ This all to say that Brierly’s point has validity – Brierly recognises that the difference b/n national and international law does not lie in mystical but rather in the………look this up!!! 7 . no exec to institute. Five rights: o Preservation o Independence o Equality o Respect o Intercourse • • Rejected by Brierly State has not been around since the beginning of time but is historically contingent. Hobbsean state of nature type argument. o Consent also does not provide an explanation Auto-limitation to sovereignty: There are limits but they are self-imposed. Obligated by force of circumstance to consent to be bound. In 1951 – when ICJ was pronouncing (Reservations to Genocide Case) on why genocide was unlawful. States consent to be bound but does not explain why they consent to be bound.etc. This only works. no compulsory jurisdiction.
) UN security forces were on the ground and there were early warnings.How do we characterize Statehood? Montevideo Convention on the Rights and Duties of States 8 . Therefore. Goes along with idea that no genocide is not a threat to peace and security. must we be confined by interstate relations. Part 2 – International Legal Subjects – A. if so. – HR law. • International legal system reflects a primitive legal order in which “spiritual cohesion is weak”. • Waren Zimmerman (US ambassador in Belgrade) says case of Yugo. etc. economic effects for the region. Nothing inevitable about the conflict but international community failed to intervene. Remarkable according to Akhavan – Remember Pospisil – spiritual community allows for sustaining of law in national system. W/out this capacity. Order and not chaos the governing principle of the world. • Questions to ask: o Does a particular entity fulfil the prerequisites for ‘subject’ status? o What does this capacity for legal personality entail? o In new candidates. • Both in Rwanda and Srebrenica (Yugo. Reality is that ideals are becoming increasingly central. There was plenty of kindling but etho-nationalists (like Milosovic) were the spark. • International system is pragmatic social arrangement • Distinguishes from national system where there are compulsory powers. Tanz. Basic idea is not dis-similar to that Hobbes. A . Idealism: Those values and principles Context and - Rwanda and Yugo both had implications in the region – Yugo in Masadonian and Rwanda – the effects were felt in Zaire. entity will be unable to maintain any claims. Catestrophic effects: o HR o Regional Stability Political Realism (which adheres to idea that might is right and state self-interest): Values and principles are totally irrelevant if not an impediment. (Remember that custom at its base is a primitive legal system as opposed to complex).States States are the primary subjects of international law International law applies to certain entities – subjects. international orgs and multinational corps. individs. spontaneous combustion did not happen. Genocide – as an example of an issue of international law. • Other approach: In this increasing globlized world. Emphasis on custom. Expressions of mass violence will inevitably reverberate into the international community. sucha s peoples seeking self-determination. • Used to be only states until 20th C. is there or must there be demonstrable legal capacity and. IHL and International Econo Law changed this and now some individs have legal character internationally. etc. Similarly in Cambodia. Purpose of the international legal system (thoughts?) and does Brierly’s response saying that international law is regulating interstate relations satisfy you? • Pragmatic approach with genocide: spill over of refugees. In international is a loose system with custom as a basis. there are many inter-state effects.Public International Law – Fall 2005 Kirk Shannon Brierly emphasises custom as basis for international law. what are its parameters? Significance of having legal personality – capacity to enter into international legal relations.
Ability to exercise effective & exclusive control over the population. States as the ultimate locus of power and.Public International Law – Fall 2005 Kirk Shannon (1934) • Reflects the customary norms of Int’l law • There is no official legal process to verify these facts based on political act of other states • Statehood is therefore a relative concept 1. Capacity to enter into relations with other states . Austro-German Customs Union Case [PCIJ 1931] Jurisdiction Facts There was a request for an opinion on the meaning of ‘independence” from the Council of the LN. In Class debate States as only subjects of international law For: Only states can lay claim to legal authority in the international system. Austria and Germany were attempting to establish a free trade customs union Issues Does such a union violate Austrian independence? Holding No. .Capacity is both a requirement and a consequence of statehood (circular) . Decided that the UN had international personality – could make claims. Government .’s of issues with Taiwan. which are subject to the authority of the superior state o restrictions on a state’s liberty following from IL or contracted engagements do not affect its independence 9 .Demonstrates extremes of positivistic thinking in the inter war period. Post WWII and holocaust. thus legality. Somaliland.Civil strife can obscure recognition as state 4.Reciprocity of recognition flows from this idea . Post WWII. Territory . Against: Advances in HR. Also. political. . IHL and humanitarian aid have changed the old system which was purely based on states as subjects.Could a state against which coercive action has been taken by the SC remove itself from the UN? – no. that is . Art 88 of the Treaty of St. Protocol No 1 of Geneva 1922 stipulated similar conditions. Ratio Independence of Austria = continued existence with present borders of a separate state with the sole right of decision in all matters economic. but it is incompatible with the Protocol. state is not capable to respond to international issues – civil society and the private sector must step in. of Bosnia-Herz Bosnian gov’t barely controlled 1/3 of territory and were not in control of the population but still were recognised by EU. . etc.Type of government is not important . (Permanent) Population . and other international private orgs. The status of other actors are contingent on the consent of states themselves. etc. financial etc o Compare to dependent states. .Defined boundaries are not absolutely essential – disputed borders are a-ok 3. civil society began to respond.Look to eg.Demonstrates dominance of principle of effectiveness. legal capacity of UN was raised in a case. Germain stipulated that Germany and Austria must remain independent—except with LN consent. (but Civil Society can’t enter into international agreements…so…) .Effects on the ground dictates statehood rather than some sort of normative structure. look to the rise of civil society – NGO’s.Eg. Must consider: Role which ethno-centric conceptions have played in developing principle of effectiveness as distinct from the more modern variant which is based on more democratic notions. Shows movement away from Principle of Effectiveness with increase in HR law.Do international orgs enjoy sovereignty rights such as states? . and the Bantustans in SA.note there is no minimum pop requirements 2. According to argument.
Sovereignty and Equality A state has certain rights and corresponding duties – rights include: exclusive control over territory.If Sovereignty is vested it cannot be taken away through use of force or acts of aggression. Dutch flag flying over islands. U. o Signed Versailles but did not ratify it. Dutch had been there since the 1700’s and the Spanish could not transfer to the US more rights than they had in the Island.s which enlarge the scope of intrusion?) Principle is: If something is essentially in the domestic jurisdiction of the state. Jurisdiction 1928 – RIAA Facts US takes over Spanish Colonial possession. The principles that both guarantees and obliges compliance with by the member states of customary rights associated with statehood. Case revisited later in course.e. • Can federal entities conclude international treaties – contingent on law in state. other states cannot intervene. this is a movement away from principle of effectiveness. • Eg. 10 .S. B . Separate declaration of war in WWII. 2(1) provides for legal equality. . Island of Palmas Case – Netherlands v. 27(3) gives special veto power to the five permanent members of the Security council!) Art 2(4) Art 2(7) 2(4) Members not to use threats or force against other states. Akhavan on Island of Palmas .Public International Law – Fall 2005 Kirk Shannon Ratio: Independence refers to the legal independence of a state to act as sovereign within its borders. 2(7) Restriction of interference in the matters that are “essentially within the domestic jurisdiction of any state”. Clinton’s campaign – is this intervention? Is there some magic to sovereignty? Look to the Basques in Spain. Duties are to not intervene overtly or covertly in the affairs of other states and thus not to intervene with their exclusive domestic jurisdiction. 18(1) provides for one vote for each member but art.Manifestations of sovereignty – Continued and peaceful occupation. Relevance Sovereignty signifies independence which represents the right to exercise therein. Problematic: Self-determination by indigenous peoples seems to be considered wholly irrelevant by the court. Gov’t of France provides advice and support to Bloc Que – is this intervention in domestic affairs of Canada? Maybe – look to nature of intervention. • Look to Canada: Sired in warfare. Not settled. Still the sought after goals in the very different circumstances of world society today. mothered in treaties and nurtured in the crèche of……international law. Note it abolished the distinction between civilized and uncivilized by extending the right of sovereignty and statehood to ALL PEOPLES: UN Charter Art 1 and 2(4) &(7) Art 1 Idealistic objectives agreed upon by the allied victors of WWII. the functions of a state. the First Nations in Canada. Most significant state Federal States – constituent units are not international subjects. to the exclusions of any other state. (What qualifies as “essentially within” and how does this interact with other essential elements of the Charter such as H. Indonesian gov’t makes contributions to Pres. • Eg.R. permanent pop and other aspects of domestic affairs. (i.
Namibia Case Jurisdiction 1971 – Adv Op. Many of them in the Middle East. If the mandate lapsed b/c of violations to the object or purpose of the treaty. decolonization Break-up of a state into several entities: ex. Physical control of a territory. 1. is the basis of State liability for acts affecting other states. until that point. Central occupation is with US. • Nature of breach . became a trusteeship system which led to independent nations – last trusteeship became independent in 1994.the actions of SA were designed to destroy the national unity and territorial integrity of Namibia through the establishment of Bantustans are contrary to the provisions of the UN charter. the authority over the territory is said to have lapsed as well. Art 22 of UN charter • More modern states hold in trust for the people of those nations. 2. Kirk Shannon MANDATED AND TRUST TERRITORIES Mandated territories of the League of Nations. • Public Debts • Public funds and property 11 . remains responsible for its obligations and responsibilities to Namibia under international law. • When the SC adopts a decision it is for all member states to comply with that decision – even those on the SC who voted against it and those members of the UN who are not represented on the SC • SA must withdraw from the territory and. 3. • Basis of South Africa’s control over the area was based on a mandate and did not constitute sovereignty over the area. Yugoslavia. Czechoslovakia Subjects that would be relevant • Treaty obligations • Territory • Contracts – concessions given to investors etc. Ratio • Only a material breach of a treaty justifies termination a) a repudiation of the treaty not sanctioned by the present convention.Public International Law – Fall 2005 o o External affairs set up in 1901 and actually dep’t in 1928. and not sovereignty or legitimacy of title. Issues Discussion of General Assembly’s actions including 2145 Holding Resolutions with respect to Namibia were made in accordance with UN charter. 4. or b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. C .State Succession Continuity & Sucession: 4 Possibilities Succession is not the same as continuity – • Succession is when one state replaces another – continuity is when a gov’t changes within a state. State is transform internal institutions change Two states form a new state: Ex. Sovereign equals on a plane of majestic inequality. Under the UN. Facts Resolution 2145 terminated SA’s mandate in South West Africa. Germany New state forms on the territory of an old state: ex. Akhavan on Namibia • Obligations erga omnes – SA owed rights to other nations.
regardless of their de jure status) o but. it remains the same actor and is bound by past obligations. Transfer of Rights & Obligations 1. Costa Rica Tinoco takes over Costa Rica. Implication: A state is responsible for the international obligations of past gov’ts.due to the rule of continuity.The binding force of obligations in normative – bound through your relations with other states Tinoco Arbitration: Great Britain v.A gov’t can ignore the obs of past gov’ts (1917 Russia) but they will be excluded from the international system .Germany is responsible for the acts done by Nazis. Transformed state . South Africa is responsible for Apartheid Gov’t . o New government reverts to old constitution. o The arbiter found the state is always bound by the obligations of the previous government—regardless of its constitutionality (i. . the obligations were not upheld because the obligations contracted were contrary to the Constitution of Costa Rica at the time they were made o Legitimacy of the gov’t is without importance in international law – probably would not be made today 12 . not governments.Public International Law – Fall 2005 • Nationality Kirk Shannon Estrada Doctrine: Canada will only recognize states. etc. passes a law nullifying obligations incurred by the previous Tinoco government on the grounds that that government was unconstitutional.e. changes constitution. whether they were constitutional or not. de facto governments’ responsibilities are passed on. the state does not disappear and reappear.
succession would require successful negotiation in this area because the status in international law is indeterminate.1983 Convention on Succession of States in Respect of State Property. Legal limbo of being recognized by some but not all states. Taiwan would be another.In Yugoslavia there was a combination of territorial debts and debts prorated based on GDP enforced by international creditors who wouldn’t do business with new states otherwise Questions for consideration for next class: 1) Recognition merely declares but does not constitution the fact of statehood. Competing theory of Morocco was that they had historic title. (i.Hungary tried to say it was no longer bound b/c the treaty was with Czechoslovakia . Declaratory approach is more de facto.e building a local airport) . (Tinoco case is not pertinent as it is a gov’t).generally.Personal Treaties o The original state will continue to be a party o New state will have to rejoin ex.national debt could be divided according to a plethora of formulas . • Right to self-determination – constitutive approach reps an impediment as would discourage • Legal clarity Against: • Constitutive approach does not reflect practical reality on the ground…which is not a response to the question.They were bound b/c it was essentially a territorial treaty – linked to the river o ILC drafted the Vienna Convention on Succession of States in Respect of Treaties . which also favours non devolution except for (i) customary international law (ii) localized treaties concerning territory and (ii) international boundary treaties Succession to Public Property . rights.A. Archives and Debts is controversial and unrratified Succession to Public Debts .Public International Law – Fall 2005 Kirk Shannon S. Israel is a good example of being recog’d by some but not all.in QC/Canada. Affirmative: • Western Sahara case. re QC): o Successor state takes their portion of previous obligations o None of the obligations are transferred (non-devolution) Succession To Treaties . NATO – the other members may or may not allow the new state to join - Territorial Treaties (also called Real Treaties) o These remain binding for whichever state controls the territory concerned o Ex. Constit theory raises a few problems – two problems written below. Williams – Succession to Public Debts 2 theories (Sharon Williams.purports to codify customary law not widely accepted by the int’l community o not consistent with practice. and interests) situated in its territory .custom: inherit only localized debt. 13 . no exact definition of “peoples”. therefore customary law continues to govern. For: Decarlatory or evidentiary theory. Slovakia . Non-self governing territory. Case Concerning the Gabcàkovo-Nagymarus Project: Hungary v. 2) The right of peoples to self-determination necessarily implies the right to statehood. Spain had colonized in 1884 – Court says “it is for the people to define the destiny of the territory and not the……” o In the case. even if the 1983 convention is ratified . No geographical proximity (makes it easier). seceding states succeeds public property (including debts.
S. o These colonies are ethnically heterogeneous. Colonized peoples are given the right to self-determination (alien domination). People of Que deemed not to be oppressed. • Declaratory Theory or the Evidentiary Theory – recognition is only formal acceptance of an already existing situation – factual situation that produces legal constitution of the entities and recognition does not have to be awaited for this purpose. This was controversial. independent of any other existing State. De Mestral – Theories of Recognition What is the actual effect of recognition? Two conflicting theories. • Constitutive Theory – recognition has a constitutive effect only through this act is an international personality conferred and not the process by which they (state and gov’t) were factually formed. Self-determination to struggles.Public International Law – Fall 2005 Kirk Shannon • Against: • Status quo – right to self-determ does not necessarily lead to statehood. insurgency can be given personality. Geneva Convention Proto 2 – Injurgency – for limited purposes of application of Geneva conventions. Majority opinion supports this theory. In reality both are partially true – it is declaratory based on factual qualifications and it is constitutive as it brings the state into the vacuum of international relations as an equal. D – Recognition “The free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized. and by which they manifest therefore their intention to consider it a member of the international community. • Right of self-determ is heavily attenuated by right to sovereignty. Majority of laws are still binding on unrecog’d states or gov’ts. • Notion of peoples – not static term in international law. Williams & A. Effectivity priniciple if a group of people of engage in armed resurrection. Both theories are open to abuse. Temptation to associated it with territory. and capable of observing the obligations of international law. In Colonized peoples or alien domination case. discussion becomes irrelevant. Express recognition versus Tacit Recognition 14 . o Determination of the right to self determination based on the existence of non-self governing territory.” (Resolution of the Institute of International Law – Brussels (1936)) Two Criteria • Claimant must satisfy legal criteria for statehood • Publicly expressing its decision to respect the claimant as an independent state Not limited to states – Also applies to • New gov’ts • States in condition of belligerency • Organized and effective insurgents • More loosely to the territorial claims of states Background: Geneva Convention Protocol 1 (1977) – gave legal personalities to liberation movements. States are only established by the will of the international community • Two problems: is an unrecog’d state bound by international law? What if a state is only recog’d by some and not others. • SCC does not define people. then right does exist.
Public International Law – Fall 2005 • Kirk Shannon With an unconstitutional change in gov’t. • Canada has shifted away from an express recognition theory. • At worst recog of gov’t could be at worst seriously detrimental or at best unnecessary. This has been rejected by Canada in their employment of the declaratory theory and the Estrada doctrine. Recognition of State approach • No recog of gov’ts – only states. respect for inviobility of all frontiers and peaceful settlements of disputes thereof. Tacit recognition focused on the principle of effectiveness combined with other principles (including HR. if asked if a new gov’t is recog’d. whether they were constitutional or not. UN did not give recog to Talliban. Requirments included adherence to UN charter. etc or recog another which has no power in the country. What is the alternative – recog of Talliban and give them power to enter into treaties. Without it. Implication: A state is responsible for the international obligations of past gov’ts. International effects of Recog Ability to enter into treaties. What if there is more than one gov’t. Sierra Leone) o Both had all attributes of state o What are effect of declaratory or constitutive theory and the Estrada – recog of state and every gov’t that passes through that state without judgement. respect of commitments to disarm and non-proliferation. not governments. a number of gov’ts (US and Euro and others) decided they would not recog gov’t in Penom Phen but instead a coalition of exiled groups. o Afghanistan – Taliban controlled 90% of territory. 15 . Which would be better in this case – constitutive or declaratory? This seems more constitutive. • EC granted recog to three new states after they satisfied the above. • UN C. Is there a duty to recognize if the criteria of statehood is satisfied? Difference b/n recog of states and gov’ts • Look to situation where gov’ts are or are not recognized Situation of civil war. The EC also said it would not recog entities which were the result of aggression. answer is only that there is a recog of states and not gov’ts and inferences can be drawn from relations. NOTE: Recognition must be clear and unambiguous – a state that signs a multilateral treaty cannot be assumed without question to recognize all other signatories.) and Canada’s national interest. EC issued guidelines to the recognition of new states. acceptance to settle by agreement all issues concerning state succession. Do recog of gov’ts have any particular implication? Is it necessary o Cambodia – in 1979 – Viet force overthrew Khmer Rouge – after which. Two competing gov’ts (Spain in • 1930’s – facists and commis – or Angola. EC Guidelines on Recognition Case of Former Yugoslavia With disintegration of the republic and outbreak of war. review occurs and decision is made Clear and precise statement EXPRESS • Business is carried on as usual – position is inferred by nature of relations with new gov’t or state. art 4 provides for admission of all “states” who satisfy a certain criteria hard to argue that a member was not recognized. They occupied the seat of Cambodia in the UN. Estrada Doctrine: Canada will only recognize states. Gov’t occupying seat in Afghanistan had virtually no power in the country. diplomatic relations. Note that the principle of effectiveness is a recognition of a situation on the ground – does not take into consideration HR and self-determination. guarantees for ethnic and minority groups. • This is a version of the declaratory theory. 10% controlled by Northern Alliance. limitations in pressing the claimant’s rights as a state and other states asserting responsibilities. etc.
• Uti possidetis juris – colonial boundaries continue to apply when independence comes. • Kosovo – 80-90% Albanian – why should Kosovo not have the same status as the other republics? Permanence of boundaries can be a matter of controversy. the obligations were not upheld because the obligations contracted were contrary to the Constitution of Costa Rica at the time they were made Issues Holding Ratio B – International Legal Subjects – International Organizations (IGO’s) Other candidates can have personality in terms of international law. Rights exist prior to recognition (defend territory. o New government reverts to old constitution. o Self-determination Notion of the people is connected to territory. Serbian strong-man (Milosovic) resists – and war breaks out. To do so. existence and continuity of succession of a gov’t. Problem: How do you respect the inviobility of frontiers when you have a state that is dismembered? Yugoslavia • 1991 Federation is wanted.Public International Law – Fall 2005 • Kirk Shannon Federal Republic of Yugo (formed by two former portions of the old repub) was denied recog based on its part as aggressor. is stopped in its claim because it had not recognized the Tinoco regime. etc. Does it make sense to say that the boundaries must be respected at all costs? These are. regardless of their de jure status) but. the claim must be respected by other international persons – that is.K.e.K. • Recognition by other states is the chief and best evidence of the birth.39 where questions asked with refs to UN charter. Tinoco Arbitration: Great Britain v. This is based on the practice of the states – a functional question. changes constitution. admin services. UN has personality under the domestic laws of all its members. passes a law nullifying obligations incurred by the previous Tinoco government on the grounds that that government was unconstitutional. The U. afterall. de facto governments’ responsibilities are passed on. • De facto character of Tinoco’s regime and the tacit recognition of state were taken into consideration. Costa Rica Jurisdiction Facts 1923 o Tinoco takes over Costa Rica. 16 . The arbiter found the state is always bound by the obligations of the previous government—regardless of its constitutionality (i. by the existing community of states. Charter of Org of Amer States Art 12 Art 13 [paraphrase] Political existence is independent of recognition by other states.) Limited only by the exercise of the rights of other states in accordance with international law. Costa Rica contends that the U. Look to effectiveness of current set-up of the UN • Illustration of current procedure is seen p. o Refusal of recognition of Greece b/c of their concern of attempts to unite Macedonia and their province of Macedonia. Non-recognition cannot outweigh the evidence of the de facto character of Tinoco’s gov’t. UN C art 104 …the organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. individs and “peoples” seeking self-determination. claims that the Tinoco regime was a de facto gov’t. Chief candidates: International orgs. internal boundaries. provide for preservation and prosperity. etc. (applied to decolonization in Africa and Asia) • Serbian population in Bosnia-Herz and Muslim population in Croatia. [paraphrase] Recog implies that the state granting it accepts the personality of the new state with all the rights and duties that international law prescribes for the two states.
• The UN has privileges and immunities within territories of its members practice has confirmed its status as an international personality • still not co-equal to states or a superstate. 104 UN Charter gives legal status to UN in states where it operates • However.e. 45 top para Powers not expressly provided in the Charter. capable of possessing rights and duties. independent of its 50 member states (seems a little strange though – agreement between states effects non-contracting parties) • There can be concurrent claims with member states conflict between Sweden and UN in bringing claim should be resolved via political goodwill with the recognition of Sweden’s duty to render assistant to the UN under Art 2(5) Akhavan: • Doctrine of Inherent and Implied powers: p. it’s personality is unique • but. which occupies a position in certain respects in detachment from its members. and which is under a duty to remind them. and capable of maintaining its rights by bringing international claims • Can recover in the name of the victim because it must (a) be able to assure safety of its agents and (b) it must be able to do so without relying on a state’s exercise of diplomatic rights in order to maintain its truly international character (Art 100) • all of this is implied by the provisions of the Charter Can it bring a claim against a non-member government? • Yes. but legal personality is unique and limited to functional approach Practice – in particular the conclusions of the conventions to which the org is a party – has confirmed the character of the UN. • Could not carry out the intentions of its founders if it was devoid of international personality. 17 . if you could sue peacekeepers for actions taken while on duty – are they agents of the UN or of their state?) Reparations Case Jurisdiction Facts Issues Holding Ratio Adv Op. it is a subject of international law. The UN in NY has to follow NY K law • Usually has full legal personality in that state – Art. some IGOs have diplomatic privileges & immunities – Art. rest regional • Reparations case the only case dealing with their status as int’l legal persons IGOs in Municipal Law • Has to follow the laws of the state in which it is operating – ex. the UN must be presumed to have those powers that are necessary to the performance of its duties. because it has objective international personality. of certain obligations. 174 Sweedish national and a UN mediator killed in Palestine (Jerusalem which was under Israeli control) Legal capacity of the UN to bring a claim Can the UN bring a claim for compensation against Israel? Does the UN have international legal personality? Yes. There are well over 400 IGOs: 50 universal.  IJC Rep.Public International Law – Fall 2005 • • Kirk Shannon Posed: HAS time come to alter the composition of the SC? Is the permanent member status (and their ID) too much of a reflection of 20th C. 105 UN Charter IGOs in International Law • Functional approach – IGOs have the elements of legal personality needed to exercise the activities delegated to them by their member states • They can protect their rights & preserve their mandate • Very few procedural rights – cannot bring binding case to ICJ (just reference questions) • It is uncertain whether they are bearers of obligations under IL (i. How is it determined if an action of (say) the SC exceeds its powers? – Charter is silent – Art 96 of the UNC only says the SC or the GA can ask for an advisory opinion from the court. if need be.
Eritrea-Ethiopia) Peacemaking more prevalent in post-Rwanda where “there was no peace to be made” so UN pulled out. East Timor. Econo and Social Council. GA. make recommendations to SC. Libya said was going to presecute but the court said Art 103 makes Charter and art 25 Composition of SC Art 23 – 15 Members ROC. Challenges and Change High -level Panel to assess current threats to international peace and security... and to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty -first century. • With these powers comes accountability – Sierra Leon and UN peacekeepers w/ child prostit. It is the supreme international treaty.determine existence of any threat to the peace.decide what measures shall be taken in accordance with Arts 41 and 42 to maintain or restore international peace and security. Scretariat. The implications of this interconnectedness are profound. New UN proposal from the GA is to be tabled soon – not clear as to the shape of it. It is not a legislature. France. GA has quasi-legislative power but not as we would understand in a domestic Powers of Security Council Art 36 – Recommend appropriate procedures Art 39 (part of Chapter VII) . Trusteeship Council) • Secretariat is composed of SG and his staff – supposed to be merely implementing will of member states. Complex relation b/n the GA and SC 18 . Oil for Food scandal. to evaluate how our existing policies and institutions have done in addressing those threats. some in Bosnia. or an act of agression…. • Peace keeping is central – (Congo – where there is move away from peace keeping to peacemaking. No really the case as the office has grown and is extremely important at this time. Art 27 details veto of permanent members. USSR. Powers and capacities have explanded significantly. would not have been imagined that these powers would have been exercised. ICJ. US – victors of WWII – permanent members. (See Lockerbie case – state whose nationals were implicated had the right to extradite or presecute under Montreal Convention. • Eg. Trusteeship Council Largely defunct as last trusteeship ended in 1994 Composition of GA Art 9 – all members of the UN Powers and Functions of GA Art 10 – Any matters under the charter. • The Panel’s insistence that we must see the interconnectedness of contemporary threats to our security is particularly important. Resolution 1514 – codification of pre-existing customary law and norms. GA elects other non-permanent 10 members. Organisation of the UN • Key parts of the UN (SC.Public International Law – Fall 2005 Kirk Shannon UN High Level Panel on Threats. • Move to reform Office of Internal Oversight to ensure accountability. In 1945. • Proposes reform of SC • Proposes establishment of a HR Council to replace HR Commission. UK. Actions of SC Binding on member states – Art 25 – Agree to accept and carry out decisions of SC NOTE: Art 103 – Obligation of charter prevails over other international obligations. SC resolution compelled extradition. Will of sovereign states is made manifest. We cannot treat issues such as terrorism or civil wars or extreme poverty in isolation.
Would this be an incentive to get nuclear power for nations to show. UN report of High Panel states SC is best positioned. Affirmative: New threats require reform. Efficiency requires it. enslavement.Poorer countries still see sending peacekeeper s as money making measure Questions: 1. Affirmative: • Histrically – reflection of power realities – contributions by certain states at inception. extermination. and to take other appropriate measures to strengthen universal peace. Permanent members of the SC should have the right to exercise their veto power even where a situation of genocide exists. 2) Peoples Seeking Self-Determination It must be considered as to whether principle of self-determination has achieved the statues of a rule of customary international law. Ability to respond rapidly. With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples.Public International Law – Fall 2005 Kirk Shannon GA is more representative but the SC has more power. . No doubt exists that an individ can be tried under international law: • War crimes – against the laws of war • Crimes against peace and security – initiating war • Crimes against humanity – murder. deportation and genocide. Dilute consensus. Increased size would cause inefficiency. C – International Legal Subjects . Dilution of the permanent members’ importance while still asking a lot from these nations would be problematic.Peacekeeping is often funded in a different manner. Against: Art 24 and Chapter VII – responsibility of the SC to intervene in case of genocide. Negative: Restriction would erode the decision making ability. • Prof – power. Art 55 To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. the United Nations shall promote: 19 . is this a good reason for a veto power – is this representative (France UK?? No India). Dilution voice of dominant states. Other organs can exist (under Chapter VIII). • Purse strings technically held by the GA Art 17 – so in effect the GA can control the SC b/c it controls the budget . • Why Genocide is singled out – massive destruction that is possible in a short period of time.Peoples 1) Individuals Individuals have gotten standing in certain circumstances but it still may be difficult for individual to assert rights under international law. • This is an assertion of collective rights – under the UN charter (in which self-determination is referred to but not defined) this right has been used as the basis for the decolonization of dependent territories during the 1960’s and 70’s Art 1(2) UN C. • Prof – what about situation where Perm Member thinks intervention would make situation worse? Not clear. Could change obligations 2. The SC cannot be effective or legitimate without changing its composition.
Public International Law – Fall 2005 Kirk Shannon a. But this rush has led to internal violence on many occasion (DRC for eg). and to co-operate with one another and. social. Discussion in class: • Ethno-nationalism as basis for statehood? Kurds of Turkey were in situation where they were denied right to speak their language Is it a total waste of time to talk about self-determination as a legal concept? • Mao – the barrel of a gun. and educational advancement. sex. to ensure. to encourage research. and international cultural and educational cooperation. to transmit regularly to the Secretary-General for information purposes. social or educational preparedness should never serve as a pretext for delaying independence. to take due account of the political aspirations of the peoples. 20 . • Particularly interesting when compared with LofN article above talking about tutelage. solutions of international economic. the wellbeing of the inhabitants of these territories. b. Art 73 Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount. according to the particular circumstances of each territory and its peoples and their varying stages of advancement. and observance of. and e. with specialized international bodies with a view to the practical achievement of the social. their just treatment. and related problems. and c. higher standards of living. health. social. to further international peace and security. language. economic. social. economic. and conditions of economic and social progress and development. and. and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply. etc. c. to develop self-government. d. and scientific purposes set forth in this Article. and accept as a sacred trust the obligation to promote to the utmost. within the system of international peace and security established by the present Charter. to promote constructive measures of development. b. universal respect for. with due respect for the culture of the peoples concerned. full employment. subject to such limitation as security and constitutional considerations may require. statistical and other information of a technical nature relating to economic. their political. • • Is Art 3 a good idea? Prof refers to East Timor where UN was involved in the transition – should the UN be held accountable for its actions in this period. to this end: a. There is here a rush to self-determ which is understandable because of the treatment under colonial powers. and their protection against abuses. • Theory – imposition of Western style of gov’ Declaration of the Granting of Independence to Colonial Territories and Peoples Art 3 – Inadequacy of political economic. when and where appropriate. and to assist them in the progressive development of their free political institutions. or religion. human rights and fundamental freedoms for all without distinction as to race. Not clearly defined and therefore controversy over defn and scope. Controversy • Rights asserted by every group seeking independence yet decried by every nation threatened with dismemberment.
Op. Western Sahara Case Jurisdiction Facts Adv. culture. ethnicity Subjective Elements: people must see themselves as different o question does the majority have to recognize them as a unique group as well? Yes: should prevent people from claiming rights on a superficial basis No: May limit legitimate efforts through ignorance. Was never terre nullius as there were people on the territory. religion. Court instead only dealt with issue of self-determ Self-determination Principle of self-determination is recog’d as one of the essential principles of contemporary international law. Does IL give the National Assembly the right to affect the secession of QC from Canada unilaterally? Is there a right of self-determination granting such a power? Holding Ratio (1) Seccession at international law –SCC IL doesn’t grant component parts legal rights to secede unilaterally from ‘parent’ 21 . • In all cases. etc. Ancient ties to the territory are secondary. Discussion of an erga omnes obligation which is an obligation to the international community rather than just to one state – an issue where all states have an interest. Pop mostly nomads. politics. Ratio • Declaration (listed above) and res 1514 confirm and emphasize that the application of this right requires a free and genuine expression of will of the peoples concerned. Advisory opinion sought as to the status of the territory Issues Issue of self-determination Holding It is up to the people of WS to decide. • Three possibilities in this case: emergence as Sovereign Nation. East Timor Case – Portugal v. – “It is for people to determine the destiny of the territory and not the territory the destiny of the people. • Separate judgment of Dillard J. history.  ICJ WS has been colony of Spain since 1884. Australia Jurisdiction Facts  ICJ Port claimed that Aus had failed to respect its rights as administering power of East Timor as well as the right of the people to self-determ when it entered treaty with Indonesia delimiting the continental shelf b/n Aus and East Timor. Issues Holding Ratio • Reference Re Seccession of Québec Jurisdiction  SCC Issues Question 2. 1514 and specific request of res 2229. They had some form of organization. wishes of the people must be taken into account. B/c of res. or integration with an independent State. Spain consulted neighbouring Mauritania and Morocco to determine procedures for holding a referendum. Court did not take jurisdiction b/c Indo was a non-party before the court and therefore did not give consent. free Association with an independent state.Public International Law – Fall 2005 • Kirk Shannon What does “peoples” mean – must they have a territory. similar ethnic background – what are the marks of homogeneity? Elements of a Nation Objective Elements: language. Indo had occupied East Timor by force and claimed title over it since 1975. Both countries claimed territory based on “historic title” that predated Spain’s acquisition.
Canada argues: Not a people – scattered population.Characteristics change over time – identity must be constantly reassessed . Art 71 UN C. Such arrangements may be made with 22 . Native representatives were enough according to the court. people-hood leads to exclusion. totally or in part. The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. minority .org/summit2005/documents.Group of Mi’kmaq petition UNHRC after refusal of Can gov’t to allow them individual seat at constitutional convention re: scope of s. if successful in streets.Pushed to the extreme. Collective right. is likely to consider the legality and legitimacy of secession having regard to the conduct of both QC and Canada Succession must take place as a democratic negotiation Note that right to self-determ in many international covenants is not to be construed as authorizing or encouraging any action which would dismember or impair.(Vienna Decl) - Mi’kmaq Case Jurisdiction Facts UN HRC Communication No…. recognized as a unique population Collective Rights assertion Halted on procedural grounds – UNHRC only has mandate over individ rights – not collective rights under the International Covenant on Civil and Political Rights (art 1) (ICCPR) • Claim brought under art 1. This ignores host of factors that show the exertion of major influence by NGO’s on the creation and application of international law. Hard to define ‘peoples’ but not necessary here because QC is neither (i) a colonial or oppressed people (ii) subject to alien subjugation nor (iii) denied access to meaningful exercise of its right to self-determination internally self determination can only be exercised if the people are internally oppressed (2) secession.[1990 and 1992] . essential for a new state. but that would not retroactively confer a legal right on QC to secede international recognition. but no international actor has obligations to enforce this premise right with no real remedy D – International Legal Subjects – Corporations and NGO’s (Aside – for interest read un. – b/c they were denied right to participate in constitutional conference. individs • Art 25 – internal self-determ.html) Do NGO’s have legal personality • Do not even have “limited legal personality” according to IGO’s. • NGO’s place in IL has been based on Art 71 of the UN C – consultative status can be given to NGO’s which allows them access and participation in the creation and application of IL. Issues Holding Ratio Problems with Right to Self-Determination . could lead to a new state. the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determ of peoples ….25/35 rights allege violation of right to self-determination .The possibility for infinite subdivision of the individual & “overlapping communities” Charles Taylor .Mi’kmaq argue: concentration in reserves. even ethnic cleansing… .The Right to Self-Determination is the only legal element of peopledom.Public International Law – Fall 2005 country Kirk Shannon (a) some argue that it is not specifically prohibited and therefore inferentially permitted (b) Implied duty of states to recognize the right to self-determination (a) denial of this right is implicit in the importance placed on territorial integrity and in the exceptional circumstances for self-determination to be legally exercises (b) clearly a principle of IL.
Public International Law – Fall 2005
international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned. • Power hierarchy that exists (based on scope, national/international, funding, clout) Note that International federation of societies of Red Cross and Crescent (different from ICRC) What sort of NGO’s have some quasi-law making capacity • IOC – Olympic committee – laws and rules for international competitions. Exercise regulatory functions • ICC – International Chamber of Commerce – Paris – reg of trade, payments NB: NGO’s are better defined by what they are not. Don’t use force, not governmental What about the Red Cross • Foremost example of the NGO and its influence. • One of the most influential actors – starting 1859 and the human slaughter that took place in Solferino – was originally an expression of nobless oblige hearing of appalling conditions of war. Bourgeois class horrified with std of life of other classes. • Devel of IHL linked with ICRC – private org leading the way. • Under Geneva convention – promote respect for IHL – visiting prisoners of war, etc. • ICRC has international legal personality according to the Simic case – as its mandate was conferred upon it by the international community. • Can it conclude treaties – no? • Rights and responsibilities given by Geneva conventions – what powers are necessary for the exercise of its functions – e.g. immunity. They cannot operate • What is basis for the ICRC’s legal rights when they approach a state? – unique NGO which has been created through multilateral treaty – unique place. Same cannot be said about other NGO’s. Earth Summitt in Rio 1992 • NGO’s decided they would have parallel conference that was very successful – power of NGO’s seen. Inter-gov conference was said to only look at certain elite interest. NGO’s have been seen to be a bulwark against Inter-gov domination of certain discussions. 1998 Rome Conference – ICC statute • NGO’s had umprecedented level of influence • Not within the UN system Is this a good thing If there is no democratic space, do not NGO’s become the only form of popular expression. • Proliferation of NGO’s goes to show the increasing importance of international law. • Even conservative groups have entered the fray – influence is seen.
The Prosecutor v. Simic
Jurisdiction Facts ICTY decision  • Sinic and other D on trial for lives. Former employer (local staff of ICRC) wants to testify • ICRC claiming that they do not want former employee to testify b/c they have immunity • The Prosecution emphasises that the witness took the initiative to contact the Prosecution and is willing to give evidence before the International Tribunal. • the Prosecution states that it understands the ICRC’s concern to be that national authorities might deny ICRC personnel access to places where persons protected by the Geneva Conventions are located if they think that these ICRC personnel might subsequently testify in criminal proceedings about what they have seen and heard in those places. Although sympathetic to the ICRC concerns, the Prosecution reiterates its view that the ICRC does not enjoy, as a matter of law, any immunity or privilege that would enable it, unilaterally, to prevent any of its former employees from testifying.
Public International Law – Fall 2005
• It is the ICRC’s general position that the testimony of a former ICRC employee would involve a violation of principles of international humanitarian law concerning the role of the ICRC and its mandate under the Geneva Conventions Does the ICRC have international legal personality? Do it and its employees have immunity? “In the Trial Chamber’s view, the issue to be considered is whether the ICRC has a relevant and genuine confidentiality interest such that the testimony of a former employee, who obtained the Information while performing official duties, should not be admitted.” Employee of the ICRC has immunity and cannot be forced to testify It is conceded by both sides and the court agrees that the ICRC has an international legal personality. • The International Tribunal’s Rules may be affected by customary international law, and that there may be instances where the discretionary power to admit any relevant evidence with probative value may not be exercised where the admission of such evidence is prohibited by a rule of customary international law. • the ICRC, an independent humanitarian organization , enjoys a special status in international law, based on the mandate conferred upon it by the international community9. The Trial Chamber notes that the functions and tasks of the ICRC are directly derived from international law, that is, the Geneva Conventions and Additional Protocols . Another task of the ICRC, under its Statute, is to promote the development, implementation , dissemination and application of international humanitarian law. • The fundamental principles on which the ICRC relies in the performance of its mandate are the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality • The three principles of impartiality, neutrality and independence have been described as “derivative principles, whose purpose is to assure the Red Cross of the confidence of all parties, which is indispensable to it. Neutrality and impartiality are means enabling the ICRC to carry out its functions. According to these principles, the ICRC may not be involved in any controversy between parties to a conflict. • the ICRC needs to have access to camps, prisons and places of detention, and in order to perform these functions it must have a relationship of trust and confidence with governments or the warring parties…..also, effect on the safety of its delegates and staff in the field as well as the safety of the victims Requirement of impartiality and confidentiality sufficient to shield ICRC delegates form testimony No question of balancing with wish for justice arises – customary law binds so no balancing is at issue.
Akhavan • This case was brought on by a member of the prosecution that was convinced she could take on the ICRC under art. 7. The outcome was that despite the cautious words of the dissent who advocated a pragmatic, balancing of interests approach, the majority affirmed the ICRC’s special status and gave them absolute immunity. • The result – the ICRC was able to legislate that immunity through statute. Corporations – Commercial enterprise of one sort or another. • Transnational corps – diff types: o Gov’t – state owned Quantus, CBC, etc. They mix both private national law and international law. In form they are private but often act at the behest of gov’t policy; they have access to diplomatic assistance and directly invoke certain rights explicable only in terms of a developing public commercial law. Inter-gov’t corps diff from gov corps – Chunnel is an eg. – multilateral corps – two or more states own an enterprise. Like above, they appear to fall somewhere between the private and public domain and by linking gov’ts, IL seems to apply to the joint enterprise. Non gov’t corps Private corps – top ten have greater econo power than the vast majority of gov’ts Globalisation power of these corps is much more than states They have such power to be able to negotiate and agree as equals with gov’ts. Today there is no certain body of “transnational” law resulting in a large number of legal uncertainties such as their nationality, the governing law concerning their agreements with foreign gov’ts, and their amenability to the jurisdiction of national authorites extra-territorially. Since the 1970s there have been some
Public International Law – Fall 2005
efforts to regulate them and define the rights and duties of states commercially connected to them (i.e. UN Code of Conduct on Transnational Corporations, Int’l Labour Organizations, WTO). History – HBC, Dutch east India, etc. – helped shape international law by attempting to carve out monopolies. • All have profound effect on trade, enviro, HR, etc. Issue of immunity – state immunity. Cannot sue a state with certain exceptions (taking of property and torture). An example would be FSIA – Federal state immunity act in the US. jus imperii (governmental acts) and jus geestionis (acting in a commercial capacity). Immunity only extends to jus imperii. If acting in a commercial capacity then immunity does not exist. Issues of nationality of Corp • Based in Bermuda, manufacture in Taiwan, sell in Us……etc, • ICSID – Arbitor for disputes b/n foreign investors and sovereign states. The claimant (corporation) cannot have the same nationality as the respondent (the state). Attempts at regulation • International code of conduct • International labour org • Increasing blurring of lines b/n sovereigns and private bodies (WTO, NAFTA, etc) • Increasing and substantial contribution by private actors. Questions: 1. NGO’s are not democratically elected or accountable and should therefore not have a significant role in the international lawmaking process. Against: Although not democratically elected, still legit and accountable – • Derive rights from coorperation of those people with whom they work • Often role is to protect minorities from the majority – therefore could not be democratic • Not being accountable to the states is invaluable • Acquisition of reputation of an NGO allows them to have influence on the international scene. • (NB. That PLO or ANC – not state entities but fall under prot. 1 of Geneva conventions – struggles. Other types that use violence are call insurgents – fall under another category). For: • • Different weights should be given to different types of NGO’s - KKK versus a NGO for the public good. Not all NGO’s are equal and therefore influence (which would most likely be from western countries b/c of wealth in NGO’s) is unbalanced. Language barrier (only six to be spoken if appealing to the UN) 2. Facts: • Simic Case – One argue for the prosecution – One for the ICRC.
Sinic and other D on trial for lives. Former employer (local staff of ICRC) wants to testify ICRC claiming that they do not want former employee to testify b/c they have immunity Args for the prosecutor – no explicit mention pre-Geneva and even there not clear. – should be a balanced exercise especially in cases where testimony of employee would make or break case. W/out testifying gives the message that ICRC will never testify and people can commit crimes in their presence without fear of….. Response – if forced to testify then will not be allowed to complete duties – will not be allowed in. Greater good argument – risk that future will be compromised for the ICRC
Ratio: • •
Requirement of impartiality and confidentiality sufficient to shield ICRC delegates form testimony. •
English Channel Arbitration – customary law can in certain situations. What they actually do – conduct. establishing rules expressly recognized by the contesting states. • Unlike municipal court systems. Soft law (lex ferenda) comes from instruments that are not directly enforceable in domestic or int’l tribunals but are still enforceable.g. c. whether general or particular. the objectives of hard law may require these non-treaty instruments to be achieved (i. The Court. as subsidiary means for the determination of rules of law. • Rule of treaty law (1958) and an emerging norm which differs in some sense with the convention. 38. UN Convention on the Law of the Sea) no hierarchical distinction b/n three law creating processes – all of equal authority. They say customary is still emerging so it is not at issue. No court wants to say there is a contradiction. 4 separate treaties that were amalgamated in 1982. • Where there is conflict – usually go back to ICJ jurisprudence. Potential exists for conflict. the general principles of law recognized by civilized nations. • Soft law is not to be disregarded: a.Public International Law – Fall 2005 Kirk Shannon Part 3 – Sources of International Law Article 38 – Statute of the International Court of Justice 1. international custom. the ICJ is not the apex of the int’l law system • ICJ decisions are only binding on the parties • ICJ decisions do not set precedent. In many cases they will read the treaty as custom. The court side-steps it. • Judicial decisions – it is questionable whether they create international law or simply reflect & confirm existing norms • Judicial decisions & doctrine are the lowest level of int’l law – does this make sense o Reality of international law in that they don’t reflect the consent of states. Helsinki Accords and OECD Guidelines Firm law versus Soft Law: • The rules the come from the law-making process from art.e. Source of law is consent of state will. There exists soft law – lex ferenda that is not legally binding though they affect the conduct of international relations by states and may lead to the devel of new international law. Look to 1958 continental shelf convention. b. What about writing of publicists: • In Civil law – doctrinal writers (jurists consults). whose function is to decide in accordance with international law such disputes as are submitted to it. as stated it is still enforceable. 26 . as evidence of a general practice accepted as law. These are called firm law – lex lata. though they have strong persuasive authority • All states who are members of the UN have ratified the Statute of the ICJ. Aid in terms of interpretation. shall apply: a. international conventions. Conduct that they regard as binding. Helsinki Accords or OECD Guidelines for Multiateral Enterprises).e. b. Conflicts • B/n customary and treaty. E. modify and trump treaty law but not in this case. (i. lex ferenda in this case is at issue. 58 convention says states have rights over the shelf (transport rights excepted) for resources.1 (a) – (c) ICJ are firm law (lex lata). judicial decisions and the teachings of the most highly qualified publicists of the various nations. but not all states recognize its jurisdiction Where does the court look for relevant customary law. there was no conflict. Practice of states. • In this case. • Lex lata vs. d. Subject to the provisions of Article 59.
If there is a treaty. ICJ 1986 Facts The U. Resolution under treaty law is much easier rather than debating custom and general principles • CIL – strategic advantage of element of consensus. • Eg. Genocide reservations case in 1951 – genocide is unthinkable – it is a grundnorm.Public International Law – Fall 2005 Kirk Shannon 2 examples of the Court AVOIDING the question of conflict between treaties and custom: 1. Question of Hierarchy and the interplay between Treaties and Usage: English Channel Arbitration 1977 Facts There was a suggested conflict between the 1958 Continental Shelf Convention (which gave states rights on the continental shelves which though not exclusive did give them control over the exploitation of the natural resources) and customary law given the evolution of the law of the sea (UN Conference on the law of the Sea was still in progress at this time). customary law My conclusion Basically then the court did suggest somewhat of a hierarchy in that a treaty would take precedence over customary law if the court was not convinced that the states in question no longer wished to be bound. that the U. Despite this conclusion the court warned that they still were entitled to treaties and take into account the recent developments in customary law as relates to the case at hand. B is exempt from his treaty-rule. When the rule in a Treaty can also be found in Customary Law: Military Activities In and Against Nicaragua. Treaty and customary norms retain a separate existence even if they have exactly the same content. had violated its customary IL obl’s (a) not to intervene in the affairs of Nicaragua and (b) not to use force against it.N. argued that the existence of certain principles in the U. Holding identical content to a treaty-rule does not negate the independent existence of customary rules. conclusion 2. Treaty is the closest semblances to legislation. • Problem – imposition of subjective cultural values under the guise of universality. However they limited this to “only the most conclusive indications of the intention of the parties… hierarchy of to regard (the treaty) as terminated”. When there is agreement then you can side-step all those ambiguities of general principles. Social agreement.S. Holding The court agreed that there may be valid reasons to apply customary law despite the presence of a binding concerning the treaty. • CIL begins from the bottom up • Often consensus is a myth – importing where none exists • CIL – certain element of objectivity relating to the social facts that underlie the evidence • There is objective evidence as to the practice • General principles – imposed from the top down • Look to all the different law systems and objectively say that something like pacta sunt servanda is a gernal principle • More problematic when dealing with notions of fundamental justice – natural law or devine law. despite relevant treaties. Notion is that there are certain bedrock principles or the German “grundnorm”. Professor’s The court has neatly sidestepped the question of priority faced with the conflict between the two. If A breaches a treaty-rule with B. Charter or other treaties precluded the possibility that similar rules could exist independently in customary law. however the evolution of customary law would not be disregarded by the court during the proceedings and therefore may have some ultimate influence over how the courts interpret the application of the treaty to the facts. 27 .S. The operation of a treaty process does not deprive the customary norm of its separate applicability. But if the same rules exist in customary law the breach of treaty by A does not justify B’s refusal to apply the other rule as he is also bound by customary law. An unimpeachable axiom. In this case it was decided. this will be latched on to.
For most part have a written text to refer to. notification. or abolish existing customary law or conventional rules of international law or create rules for future international conduct. etc.g: Navigation and Trade treaty b/n two nations Vienna Convention on the Law of Treaties This is the source of the basic principles of the law of treaties. ration.3.There are a few non-customary elements.Treaty does not have retroactive effect Signature & Ratification of Treaties .N.this is a 2 step process: . 6 every state has capacity to enter treaties) . • Can lead to the formation of customary law or be evidence of the existence of such rules.Has been widely ratified. or the Governor-in-Council o In US – President needs approval of the Senate 28 .2. Art. 2nd in importance only to the U. – Universal ratification creates customary law.g. order necessarily the best was to approach these subjects? Is subjectivity. . Canada tries to put in Federal reservation but this isn’t well accepted o Executive approval: Usually the Queen.Seeks to codify customary law on written treaties (ex. the US then sent a letter to the UN declaring that it did not intend to ratify the treaty. Human Rights convention. • Can be renounced • E.Public International Law – Fall 2005 Kirk Shannon Is this privileging of objectivity. It highlights the paramount importance of treaties as a source of int’l legal obl’s and states that this Convention should be viewed as “virtually the constitutional basis.Signature: o The people negotiating the treaty usually do not have the power to give it binding effect within their state o Representative must have “full treaty making powers” to give consent of his or her state (see art 7 of Vienna Convention) . Arts 1. 18 countries that have signed but not ratified will not act against the purpose of the treaty o US violated this – Clinton signed the ICC. define. getting itself out of this breach of the law o Shows how this art is now considered customary law.5 and 6 are of importance Essential elements of a treaty: • Parties must be subjects of international law • They must intend to create binding obligations under international law • Their agreement must be governed by international law . Treaty Contracts: • Creation of special rights and obligations b/n nations. delay. interpret. Charter. mostly technical stuff relating to withdrawal. but their inclusion speeds this process up o Ex. then Bush started passing resolutions saying he would not allow Americans to be submitted to its jurisdiction (asshole!) o However.Ratification: o Federal states – often require sub-unit to approve. US) . Law making treaties: • May codify. intimacy better? A – Treaties Most easily acertable source. US is not party to the Convention . of the int’l community of states”. • Cannot be renounced • E.Some elements of the treaty are not totally solidified as custom. Art. Difference b/n “law-making treaties” and “treaty contracts”. but some major states missing (France.
but the 3rd party must acknowledge the obligation in writing Entry into force – certain number of states have to ratify it in order for it to enter into force – Vienna Convention art 24-25 – provisional application prior to ratification. When the agreement is NOT between states = Concession K versus a Treaty: Anglo Iranian Oil Co. • This case showed the Anglo Iranian Co did not have standing in the World Court as they were not a state Facts Holding Practical considerations K between Iranian gov’t and company. No easy answer…something to discuss…. 38(1) ICJ.K.Usually written…nothing to prevent otherwise. Very difficult to prove. Case • example where two elements were not satisfied – b/n a state and a corp – no privity of K b/n two govt’s. • In Canada – treaty power is royal prerogative of gov in council. it is registered with UN Secretariat (art 102 UNC and art 80 Vienna) • In Canada. treaties cannot bind 3rd parties (non-signatories) .Nominclature used to describe agreement does not mean it is or is not a treaty What about Fraud?: • See art 49 in Vienna convention. Could include: o Heads of state o Ministers o Consular…etc NB: not all agreements b/n states are treaties – low level inter-gov arrangements may not be if not intended to be of binding character. massive commitment of financial resources then parliament will be called on to approve it. In substantive terms the difference between law-making and contract treaties in really no so significant.g – heavily intoxicated foreign minister makes deal. . • E. Similar outcomes may come.Art 36 Vienna Convention allow for “assumed acceptance” for treaties that confer benefits . See art 27 of Vienna Convention. – Legal Status of Eastern Greenland case where unilateral declaration orally was at issue. treaties.not an absolute rule diff when treaty creates a benefit . Seems that the question was whether that K created obligations and rights between the U. • Practical signif: Difference b/n treaties and contracts may not be as signif as we think. It does not in any way regulate the relations between the two states. and Iran. The Potentially Binding Nature of a Unilateral Declaration: Asked in class how this fits into art.K. Only valid if under Art 7 – have full treaty making powers. are published in own registries separate from “understandings” Akhavan: • Note that internal law is not at issue – it does not matter according to international law. (Maybe the company was gov’t owned?)) This Concession K is only binding between the parties to it and therefore does not have any bearing on the U. • Date varies according to intention of parties (art 24 Vienna) • First signatories may not be bound by the convention qua treaty for some time (ie prior to ratification) though they are bound to refrain from acts which would defeat the object and purpose of the treaty (Art 18 of Vienna) • Publication and Registration: Once it has come into force. . In practice.Public International Law – Fall 2005 Kirk Shannon Privity of Treaties .Art 35 allows for third party obligations.just like Ks. The subject-matter is becoming blurred. 29 . Mostly not wanted to be raised.
• Voluntary restraint. is binding. was binding on France.” No special form and no principle of quid pro quo is necessary. Undertaking of this kind.Fr Gov’ts statement that no more tests were to be held is binding. In Canada: Treaty mostly only used for a peace treaty.Public International Law – Fall 2005 Kirk Shannon Nuclear Test Cases – Aus v. with the intent to be bound. 30 . Declarations made by way of unilateral acts can be binding if it is the intention of the state making the declaration to be so. . if given publicly. Two countries protested and started these actions. acceding to a treaty whereby it purports to exclude or modify the legal effect of certain provisions. regardless of its form (oral or in writing).  Advisory opinion requested by the GA regarding the reservation that had been attached to the treaty. it is from the actual substance of these stmts and from the circumstances attending their making that the legal implications of the unilateral act must be deduced. Moot case as Fr announced end of tests - This unilateral statement. “In summary. where does it fit? Is it an agreement that might not be under the Vienna Convention? Perhaps under heading of custom? It remains unclear. Exchange of notes is most often used. accepting. France Jurisdiction Facts ICJ  France conducted nuc tests in South Pacific as it was not a party to the Nuclear Test Ban Treaty. Akhavan . memo of understanding or assurance must be distinguished from a treaty • Ratification process does not require Parl approval Issues Ratio Reservations - - - - Unilateral statement made by a state when signing. . GATT Some allow for minor reservations (within spirit of treaty) in order to encourage more states to join o See Convention Against Genocide Case o This disrupts the synallagmatic view of treaties Some do not allow for any reservations. ratifying. so all states must consent to them: Ex.Interesting b/c circumstances for withdrawal might be at issue. approving. PROBLEMS: (1) Declaration and Art 38 of UNC. Unilateral so can it be withdrawn. Generally accepted that a state (if they did not participate in the drafting of the text) will not become a party subject to reservation unless all other contracting states accepted this reservation (“classical theory”) Unanimous Reservation rule [ I don’t know if this is the real rule] some treaties change the rights of all of the parties involved. despite desire for wide adhesion: o ICC o ILO Cannot make reservations to treaty provisions that reflect customary norms Reservations to the Convention on Genocide Jurisdiction Facts IJC Adv Op. France. Before they were heard France stopped and unilaterally announced they would not hold any more tests in the atmosphere. Analogies can be made in domestic private law. NZ v. even when made in the context of international negotiations. Not being party to the Nuclear Test Ban Treaty France did some testing.Note that no quid pro quo is needed in unilateral declaration.
there has been room for tacit allowance in the past. – can it still be binding? perhaps not technically but politically would be binding. 21 and 22 of the Vienna Convention. • What if two treaties – one earlier.legislation: • Although sounds contractual – consent to be bound. No hierarchy 2. There is a de facto.19. the compatibility of the reservation with the object furnishes the criteria for the attitudes of both the reserving and objecting states with respect to accession • signatories have more leeway with objections to reservations than non-signatories State can be a party to a treaty if it’s reservation is objected to by some others. as long as it is not incompatible with the purpose of the treaty (2) If an objecting party considers a reservation inconsistent with the object. • Now.Public International Law – Fall 2005 Issues Reasoning Kirk Shannon Can states make unilateral reservations to the Convention on Genocide? • General Principle: States cannot be bound to anything without their consent. 19.e. changed to convention was to 200 miles off coast – but if not ratified – what would trump – treaty or customary. until then it is only notice of the eventual attitude of the signatory state (b) An objection to a reservation made by a state which is entitled to sign or accede but has not done so is without legal effect The Vienna Convention has codified much of what the ICJ proposed with art. Treaties are more authoritative: • Note that in 1958 continental shelf treaty was only to 200m isobath depth. one later.contract: • Can make analogies to domestic law for analogies – but….multilateral treaties are still not binding on everyone. Against . but without sacrificing the object of the treaty • So. Hague Convention on the Civil Aspects of International Child Abduction in which reservations are limited to the use of language and costs). For . • Debate still raged for years after this case as to what to do with reservations. in the past. Which is to be applied? The later treaty is to be applied lex posteriuri. That is oversimplification. • Customary must be consistent practice over a period of time.92 matters. Canada and Canada often tries to have a federal-state clause inserted in multilateral conventions in order to reserve Reservations Canada’s obligations at IL concerning s. 20. Legislation domestically do not allow for reservations. Does not explain binding nature • Question: What if a country does not ratify and then declares that they consider themselves bound with the view of creating a norm of customary international law. etc. and 22. In 1982. trend to specifying in the treaty which provisions can and cannot be the subject of reservations • Canada finds important as it usually strives to have federal-state clause put in treaties or enters a reservation. 31 . 2. Multilateral treaties more closely resemble legislation than a mere contractual obligation. No state has a right to frustrate or impair the objectives of a treaty • seems to imply that no reservation valid until it is accepted by all parties • but. There are now specific rules found in art 2. hierarchy of sources of international law b/c treaties are more authoritative than other sources.20. Rule (1) Today!!! Today much of the problem is therefore dealt with by specifying the rules of reservation within the treaty itself (i. 21. it can treat the other party as a non-party to the convention (b) If the objecting party accepts the compatibility it can consider the reserving party a party to the convention (3) An objection to a reservation made by a signatory state that hasn’t yet ratified can have the legal effect indicated in I only on ratification. Questions: 1. authors who have objected to reservations have nevertheless been considered parties to the treaty • intention was to gain broad acceptance.
at the time of its conclusion. 35 and 3rd party assent is assumed unless the contrary indicated. France v. 37 – any obl or rt from art. 35 and 36 may be revoked or modified only with parties consent and the 3rd state. Use the fiction of independent state consent. Polish Nationals in Danzig Case (which we did not read). it would still be possible for other states to grant S (any third state) certain rights so long as it can be established that that is their intention—as would have been the case here . Based on consent. LEGAL EFFECT OF TREATIES See arts. Would be interesting to see what would happen if a state objected to Art 53 and to see the response of international community.g. Akhavan: • Art 53 is the notion of constitutional norm – that is so important.“The question of the existence of a right acquired under an instrument drawn b/t other states is…one to be decided in each particular case: it must be ascertained whether the states which have stipulated in favour of a 3rd state meant to create for that state an actual right which the latter has accepted as such”.If they hadn’t accepted it. If there are successive treaties on the same matter. Treaty to commit genocide would not work under Art 53 of Vienna – cannot conclude treaty that is in violation of peremptory norm. it conflicts with a peremptory norm of general international law. 35 – clear intention of the parties to the treaty to establish obl’s Art. 38 – Nothing in art. Does this treaty create any obligation for S? treaty is NOT binding on S. which therefore became a territorial agreement in their favour (by earlier agreement) . 34 – 38 of the Vienna Convention – Treaties and 3rd parties: Art. unless the treaty otherwise provides. For the purposes 32 . 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a 3rd state as a customary rule of IL! Invalidity and JUS COGENS Derived from Article 53 of the Vienna Convention on the Law of Treaties Article 53 .Public International Law – Fall 2005 • • • Kirk Shannon Fits better with contract. E. like contract. and 30 of Vienna Convention Treaties in force are binding on the parties and must be performed in good faith Party cannot use its internal law as justification for not performing obligations (art 27 VCLT). Jurisdiction Facts Issues Holding Ratio PCIJ  Advisory Opinion Treaty of Versailles. . The question was whether the Treaty creates any rights for Switzerland. Switzerland. Series of little contracts that require consent does not make legislation.they did accept a proposal about the placement of French Customs. Comments: • Vienna CLT adopted this distinction between rights and obligations of 3rd states [Art 34-38] Art.Treaties conflicting with a peremptory norm of general international law (jus cogens) A treaty is void if. 36 – clear intention as in art. except to the extent they accepted it -.A number of instruments led the court to conclude that the intention of the Powers was to create in favour of Switzerland a right to the withdrawal of the French customs barrier. stated that the 2 countries should settle the status of certain territories on their common border b/t themselves. Still paying lip-service to state consent. 34 – rts and obl’s can only be created with the consent of the 3rd party Art. 26. refer to art 30 of VCLT Free Zones Case. to which Switzerland was not a party. Art. 27. Art.
- a notion similar to ‘public order’ in international law refers to a hierarchy of norms shows a move away from consent-based idea of international law Determining JC Norms o Art.e. Internal Rule: A state may try to escape liability for a breach of a treaty by claiming that it was never bound b/c of some technical requirement of its internal law (such as a Cdn province entering into a treaty for something which does not fall under their heads of power). a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. pacta sunt servanda.difficult to determine what a jus cogens norm is . If one party concludes that the circumstances legally justify 33 .some states may be more influential than others in creating and determining what these norms are Termination and Suspension Termination Conditions – what are they and what types can and cannot • HR. non-use of force and fundamental constitutional norms will survive – others might be renounced Rebus sic stantibus • Fundemental change of circumstance will allow for renunciation or termination of treaty – court not happy to accept • Iamoco International Financial Corp v. 46 is an important limitation on that by requiring that the internal law be of fundamental importance and that violation was manifest.There the court said that changed circumstances in Iran and violations on the part of the US did not automatically terminate the treaty. preemptory norms of IL that cannot be set aside by treaty or acquiescence but only by the formation of a subsequent peremptory norm of contrary effect.may be contradictory – (i. humanitarian intervention) often resolved by redefining what the norms mean . genocide.Public International Law – Fall 2005 Kirk Shannon of the present Convention. & racial discrimination right to self-determination prohibition of use of force some human rights norms pacta sunt servanda NB: The provisions on jus cogens are some of the VCLT’s most controversial articles. i. prohibition of force vs.e.violates sovereign autonomy of states imposes rules from above . 53 does not specify how to do this o Must be accepted by community of states as a whole this does not mean unanimity o Can be treaty or customary law o Examples of accepted jus cogens norms: prohibition of slavery. Critiques of Jus Cogens . inviolable norms because of their wide and deeply ingrained acceptance such as the principle of freedom of navigation on the high seas or the elementary considerations of human dignity. Iran…. Jus cogens: Jus cogens are obligations owed by a state to the int’l community as a whole.: use of force. Art.
NB: A treaty may also be suspended but not denounced or withdrawn from according to art 57.Second level – social – institutions. Does changes in fishing techniques or in a country’s situation count? (see Fisheries Jurisdiction Case. • Could see these three as a circle rather than a hierarchy.K. This is the post-marxian view. Social can determine material. • It may be by consent of all the parties (art. 1987). ICJ 1973) or Does revolutionary changes count? (see Amoco Int’l Finance Corp.Law is a transformatory social mechanism. Are we in a situation where social change is be externalized to the international scene 34 .A. forms and processes . Material level does not determine or cause the social and mental levels.K.R. Ideas of democracy and capitalism are just ideas by which we then act accordingly.Top . Constant circle of interaction. but until there is a conscious and acted upon decision to do so the former treaties remain in force. i.N. • [British society has been constantly reconstructed in a revolutionary way. It would be even nonsensical to allow for the nullity of all treaties.e.Positivist – law imposed by the sovereign – manifestation of power.)). Put in hierarchial terms from the bottom. Imagine three players of scoail change. . Iran. U. However the nature of those “changing circumstances” is unclear. The basic criteria for this principle is that the change be “fundamental” (see art. 59 of the VCLT Treaties don’t just terminate because the original parties are no longer controlling the territory.] • Now been transferred from national society to international level. 57) • Or by some of the parties providing the decision does prejudice the other parties to the treaty (art. Suspension is a possible alternative to denunciation of or withdrawal from a treaty. (see Ex Parte O’Dell and Griffen.Bottom – material change – economic change – labour . Clausula Rebus Sic Stantibus – Changing Circumstances: The principle does exist in IL that changing circumstances which lead to the impossibility of performance may render a treaty inapplicable. values. 62 Vienna Convention). In the Namibia Case the ICJ concluded on the legitimacy of the U. For instance in Canada treaties entered into by the Commonwealth on behalf of Canada did not terminate simply because of Confederation.’s mandate over South-West Africa (see earlier notes on this case). It is however acceptable for Canada to enter into new treaties or substituting arrangements for the ones within the terms of the treaties signed by U. Revolutionary events in Iran could not be without consequences on the implementation of the treaty. But…. . What is the role of Law? .C. Analysis of fundament social transformation How does one do it? – particularly if you want to take part in it. 58 . this is a piss poor set of notes…get somebody else’s Law as necessary element of international transformation. 190 (H. 59) Prof Allott Honestly.’s termination of S. v. 58) A treaty that is incompatible with an earlier agreement will impliedly terminate or suspend that agreement (art. v. Iceland.  O.Public International Law – Fall 2005 Kirk Shannon termination then it must take suitable steps.Mental – ideas.
Class: Most often treaties are best way of seeing if a customary law exists. As such (for eg.Top.g New Treaty (eg. ships saluting other’s flags on the high seas) are practices but are not obligations. treaty cannot be against Jus Cogens.Intergovermental law. • New rule means that a state unilaterally decides that doesn’t not like existing norm so it will change it. • Jus cogens becomes such when CIL is imbued with this uber-important crown. of practice in accord with rule. Some say US is creating a new norm. Qualitative question: how much practice do you need and how much opinio juris changes depending on “how important the norm is” • For eg.Transnational law .Public International Law – Fall 2005 Universal legal system – . State practice that is accepted by the community. Jus cogens renders any treaty invalid that violates it.National law Sovereignty has a value content. land mines) to which some states are persistent objectors. Theories or analogies that we can derive from general principles of law in determining binding nature of CIL Three concepts as to why international custom. 35 . • Remember. Rule of the Persistent Objector: • E. • How does a new rule emerge? Opinio Juris. commonly regarded as law. Kirk Shannon B – Custom Customary International Law (CIL) is comprised of two elements: (1) Consistent and general international practice among states (material conduct of states) (2) The practice must be accepted as law by the international community.International administrative law . as evidence of a general practice accepted as law: • Consent • Estoppel – estopped from changing your conduct • Reasonableness Operations of creation and basis for determining application of CIL are very controversial derived from unilateral action by a number of states (not multilateral action – which would constitute a treaty of sorts) Prof. • Can new jus cogens replace old jus cogens? Jus cogens norm can also be modified. McDougal states – It is not of course the unilateral claims but rather the reciprocal tolerances of the external decisionmakers which create the expectations of pattern and uniformity in decision. (known as opinio juris) (how they perceive the conduct) Matters of protocol (eg. crimes against humanity will adapt faster than 12 mile sea boundary line.) the US which wants to precent rule from becoming customary law. How does new norm emerge • Is jus cogens derived from custom or treaty – can come from custom or general principles. • NB: Violation of a norm does not create a new norm ex injuria jus non oritur • Especially important with use of armed force (Iraq and NATO in Kosovo). .
6 is not opposable to Germany? No.when we look at a state practice we should look at states with coastlines – are states are not equal in this matter. Denmark and v.What has attained opinio juris is (a) that such delimitations are the result of agreements and (b) that they are equitable . (b) mitigates against it in some circumstances .provision in art 12 which allows states to derogate or enter reservations – except under art 1-3 Is equidistance theory a part of customary international law and therefore applicable to Germany even though art.Int’l custom is evidence of general practice accepted at law. Germany relies on doctrine of just & equitable share as. Germany has signed.Public International Law – Fall 2005 In other cases.Possibility of reservations to this provision shows that states do not think this is customary .From the Lotus case – “only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. -bindingness does not require universal acceptance . Accepted at law Opinio Juris . but not ratified the treaty and claims it is not bound.State practice to date has not demonstrated a clear understanding that state were conforming b/c they believed themselves to be bound – this is the subjective component of the opionio juris. Sorensen Dissenting: . Germany would receive more.Geneva Convention rules have become generally accepted .’ . 2.Acting contrary to the prima facie rule but justifying the act as exempt because exceptional = recognizing Issues Holding Ratio 36 .Consider object and purpose of the convention . Germany & Denmark. Tanka Dissenting: .Ratifications alone are not conclusive with respect to general acceptance of a given instrument. DK and Neth argue Geneva Convention on Continental Shelf had crystallized emerging international customary law on equidistance.Germany previously accepted the convention formally. law of the sea convention) Kirk Shannon North Sear Continental Shelf Cases .have to remember that rules of IL are never the result of fiat in the modern context.Possibility of reservation is not relevant—many rules of IL are suppletive (all except jus cogens) . they always result from consensus and negotiations . 38: ICJ Statute. Netherlands Jurisdiction Facts ICJ  Dispute over location of delimiting of boundaries between these nations – Article 6 of the Geneva Convention on Continental shelf is not opposable to Germany – this is the equidistance principle. in so far as it claimed it to reflect IL.no evidence that states acted the way they did because they believed they were obliged to do so.neither of these imply the equidistance method. . Art 6 calls for agreement first – if not. and is therefore no longer in a position to escape its authority.Number of ratifications/accession must be considered in context. objective acts are sufficient Lachs Dissenting: . under the equidistant theory.e. even though it has not yet ratified . equidistance.Germany v. .e.Two distinct components: 1.in this case the issue is not against the object and purpose. treaty only codifies existing CIL. in fact. no evidence of opinio juris . therefore a reservation is possible . .If derogations exist – can this really be CIL. (eg.Did it become CIL because of subsequent state practice? . . i. Question is maritime limitation Dispute as to how to divide the continental shelf between Netherlands.Art. General practice. Equitable principles apply and parties must hammer out agreement. i.custom can emerge rapidly in some contexts . Should not try to seek evidence of subjective motives when investigating opinio juris.
What about diplomatic notes? UN resolutions? Could be yes. rather than compelling Turkey to establish a ground for its national jurisdiction .g Malta and Libya where equal would not have been equitable. Turkey did not act in conflict with principles of IL because France failed to establish that any such principles exist . What about court decisions? Should be taken into account as evidence but not as primary. therefore it is not prohibited. 2. • 1982 convention – codifies equitiable principles in determining shelf delimitation.jurisdiction is territorial. negotiations go on and there is agreement (hopefully). They looked for prohibitory norm – none.Public International Law – Fall 2005 Kirk Shannon - the rule (Military Activities in and Against Nicaragua) Rule that emerged in 3rd LOS conference was: agreement on the basis of IL in order to achieve an equitable solution (i. for negligence after the French boat crashed into a Turkish boat in int’l waters. What about if called declarations? Not necessarily. • Permissive versus restrictive approach.territoriality is the first. the court’s ruling) Akhavan: • Quality of practice is point at issue. If you shoot a gun across the border. Some sort of legitimacy bedrock that doesn’t rest on treaties.e.e.But. the impact of the capts behaviour on the ship which is Turkish territory) . and kill someone on the other side. so the impact of the wrongful act was felt on Turkish territory . Is Turkey is violating a principle of international law by prosecuting a foreign national? What is their basis for doing so? No. the country has TERRITORIAL jurisdiction (the ship is Turkish. therefore restrictions on states can never be presumed. The Steamship Lotus – France v.France has to show that such a violation of IL exists.There is a valid provision in the Turkish Crim code asserts extra-territorial application of Turkish law . Should we disregard this and only look at the situation on the ground. . May also dilute quality of practice. Special circumstances are ones where inequitable result would come out of equidistance theory. on a territorial basis Comment Akhavan: • Did the court look for a specific norm of customary law that permitted jurisdiction or…look for a prohibitory norm. India Jurisdiction ICJ  37 .Ex. • In practice – what does equitable consideration mean? Equidistance/special circumstances applies.e.Rules of IL flow from the consent of states. (e. if the death takes place on Turkish territory.I.e. Regional or Special Customary Law Right of Passage over Indian Territory Case – Portugal v. Customary law becomes significant even if there is treaty – there is always added value. but it doesn’t follow that a state cannot exercise that jurisdiction with respect to events that occurred extra-territorially . Territorial effect . and most solid basis of jurisdiction .) What constitutes State Practice does the legislation of states constitute state practice? It is debatable. all of which fail—i. after he landed in Turkey.France raised three arguments to this effect. the basis of jurisdiction is actually the impact of the criminal behaviour on Turkish territory (i. both states have jurisdiction over the crime. Turkey Jurisdiction Facts Issues Holding Ratio Turkey prosecuted a French captain. Modify to reflect proportionality. Question: whether Chad or other land-locked country in equal weight to UK and Japan which are old sea-fairing nations.
Danger of having platitudes out there and realities of practice down here. During British and post-British periods. • What about the Security Council resolutions – not so representative. • Does IL not have to be a reflection of power realities. Therefore this could be considered customary. resolutions. • Declarations that are far beyond the reach of states could create the illusion of progress. • In cases with continental shelf – court was quite conservative in approach of rejecting use of equidistance line. States can imput reservations on a treaty. Should we not be calling it aspiration? • Are declarations or regulations practice themselves. 38 . But…why call it custom – why not legislation. • Can weaker states leverage themselves through treaty making process? – Treaty process is probably more fair process. Should it be setting standards??? • Does this not create a total distortion of reality? There is no practice is involved. • Custom codifies an existing reality whereas treaty sets out future state action. For: • Post 1945 there has been a proliferation of conventions and declarations that do not go to state practice but instead on opinio juris. Still. Idea that powerful would be open to an attack later on should power realities shift. • Law still said to exist – all law could be considered a reflection of power realities. passage has been allowed and. State practice 2. • Two extremes are ideals and power realities. The notion of customary law is merely an apology for power realities. Practice hear was clearly established by the two parties – this must prevail over any general rules. • Customary law sounds like we have achieved this norm…but we have not. (ex post facto legitimization) For: • Customary law is usally enforced by actors themselves rather than institutions. In determining customary law. Two elements of customary law 1. What about cases of torture – could torture be considered under the customary law. Case goes back to a time when relations b/n neighbouring states were reg’d by practice. • Look to the case of use of armed force – norm is not to do so. could be seen to impose western ideas on other states – still an imposition of power realities Against: • Binding selves as others should bound. Local custom must not involved more than two nations. the increasing importance of a norm implies the decreasing relevance of state practice and a propensity to substitute conduct with opinio juris. Opino Juris.Public International Law – Fall 2005 Facts Kirk Shannon Portugal claims right of passage b/n Daman and the enclaves (that it controls) across intervening Indian territory in order to exercise sovereignty – subject to India’s right of control and regulation of passage and without any immunity in Port’s favour. • Expression of a collective norm – declarations. Power can be used to form law in a very clear and direct way. Many nations practice this but you could not consider it “widespread”. IS THERE REALLY SUCH A THING given vastly different amounts of power. The concept of Instant Custom. • Way the court decides – powerful states are going to impose practice on weaker states – entrench power realities • States will acquiesce based on worries of reprisals from other states. therefore custom has been established and has given rise to a right and obligation. HR could be seen to restrain that – but. Reciprocal nature of the agreement. as we are an independent community. o Do we just make opinio juris the basis of the argument without looking too much at state practice. Issues Holding Ratio Question: 1. bullying happens in treaty making. 2. Basis of claim is local custom Can this right be asserted on the basis of local custom Yes – custom established.
of International Court “the general principles of law recognized by the civilized nations” • Most commonly accepted as those which exist in all municipal systems of law – primarily related to issues of private law or procedure • Some disagree – say could only mean general principles of international law. no treaty/custom in int. incest is the most universal cultural taboo – is there a prohibition of it in international law? Process by which general principles of law are found and applied by International court. error and vitiation of consent. Treaty does not have that. Interpretation of the mandate of that territory to SA. do we use municipal cultural norms or international ideas (i.Public International Law – Fall 2005 Kirk Shannon Against: • What about supreme court decisions? Are they state practice or opinio juris or both? • Where does legislation fit in? Is this state practice? Why are we so caught up with Customary law why not call it a General Principle and skip state practice? • Look to Rwanda. so there needed to be a mechanism for the court to enforce international obligations • Until 5 yrs ago – it was used rarely – there are now lots of treaty law & jurisprudence recognizing custom • However.11(g) which refers to general principles of law recognized by the community of nations.e. Cultural relativists would not like this.. • Look to Common Law and Civil Law and fiduciary duties. International Status of South West Africa Case Jurisdiction Facts Issues Ratio ICJ  UN GA asked court to advise on the status of SW Africa (Namibia). Yugoslavia tribunals call genocide CIL – even though both countries ratified Geneva Convention. Morality leaves open the question of whose morality? Consensus is at the basis of custom – not the imposition of morality on another nations.e. ICTY & Rwanda tribunal created an international criminal law – very new area of law. there was very little ‘international’ law when the court was created. General principles of “the sacred trust of civilization” – what does this mean? • The goal of using principles is not to enact municipal law ‘lock. b/c they have the character of jus rationale or are ‘valid through all kinds of human societies’ • Court has referred to principles in cases dealing with breaches of obligations. • CIL has something more concrete • Look to the example of Female Genital Mutilation. res judicata. J. McNair – When new legal institutions resemble rules and institutions of private law the role of the ICJ is to take 39 . Part 3C – Sources – General Principles and Soft Law Found in art 38(1)(c) of the Stat. Why? • Maybe b/c of universality. custom of forced marriage – is this a form of rape?) • However. law the tribunals drew on criminal procedures in municipal laws • But the ICC tried to relegate principles of law to a lesser status reaction against judicial activism of ICTY & Rwanda • The goal is to make analogies to institutions in the international sphere (i. you cannot import a prohibition of murder b/c domestic law takes care of this) • In international tribunals. unjust enrichment. such as Tanaka J. Only resorted to when there are not clear answers in CIL • History – when ICJ was created. estoppel (in relation to good faith and equity). • Cdn Charter includes s. It is a general principle that it is cruel and unusual. (municipal would be included to the extent that they have been adopted by states as custom or in a treaty) • Some. stock & barrel’ but to look for general policy & principles. General principles of law are generally considered to be less important than custom and treaty (this is confirms by Art 21(1)(c) of the ICC statute.
In 1995. Part of different armies. Promised swiss passport – went to Serb stronghold for passport. according to Akhavan. In order to secure money for family and protect as croate. this is not the usual idea of equity o o Question: Where is equity derived from? Perhaps justice. to a certain extent. it cannot force the compliance of the other state ° Jus cogens. more generally resembles general principles. Disregarding of a rule in favour of equity. Application of the rule was inappropriate.Diversion of Water Case: both parties were not complying with their treaty but one party tried to complain o Court applies rule of equity that you can only complain if you have ‘clean hands’ (judge Hudson) o Equity as principle of law states: If by treaty 2 states bind themselves in a way were the obligations are interconnected. Now would likely be treated differently – now equidistance/special circumstances Equity prater Legem (use equity to fill the gaps in IL) More doubtful Iternational tribunals can apply this Somewhat more controversial b/c it assumes that the court can engage in some sort of legislative task (less so in Common Law system where courts. locksmith of Croatian origin married to Serb. create the law) Equity Contra Legem (Court determines that a particular law is unjust and thus doesn’t apply it. Sometimes a principle of international law. joined Bosnian Serb army.c it would be instant custom Erdemovic Case Jurisdiction Facts ICTY – appeals camber Erdemovic. So the court must look at the issue (in this case the meaning of “sacred trust of civilization”) and seek to discover what the underlying policy and principles of the issue are. fairness – but will everyone agree on these concepts Problem of indeterminacy (we want determinate well define norms – can’t just leave it up to the judge) ° Probem: Equity falls under jus rationale and not municipal law. paid and was stranded in the Serb stronghold. Go to the prohibition of genocide which could not be customary law (although it is often referred to as such) b. Laid landmines.s common to them all: • Control without ownership • Legal obliation based on confidence and conscience to fulfill his mission • A prohibition on any attempts by the trustee to assume ownership Equity 3 types: o Equity intra legem (adapt the law to the facts of an individual case – attempt o arrive at equitable outcome) Itl tribunals may apply this type E. Equity is indeterminate whereas municipal law is not. Similar to equity in the common law Only will be applied if an international tribunal’s statute expressly allows Art 38(2) of ICJ statute. In these various institutions McNair identified G. if one state does not comply.g.P. Caught in b/n competing factions. “power of the court to decide the case ex aequo et bono”. sometimes its considered a ‘source’ of international law . 40 . – Continental Shelf Case Equitable principles were applied. let the women go but bused men for execution. etc. stock and barrel” a set of rules.Namibia Case: uses idea of trust to define the role of UN mandates nations (rather than trying to find local customs) . To do this he looked to scholar’s writings from different countries on the meaning of “sacred trust” to identify the presence in nearly every legal system of some institutions that embody the idea of “sacred trust” – ie trustees or tuteurs for people who are not sui juris – devised to protect the weak.Public International Law – Fall 2005 Kirk Shannon the private law as an indication of policy and principles but not to import “lock. Bosnian Serb forces took muslim civilians. VERY FEW cases where tribunals are given this power.
they say never entered a plea of guilty. 1803 was voted by all countries and therefore had more weight. ° Recalls argument of Lachs in Continental Shelf in terms of the weight in customary law. Question revolved around distinctions b/n common and civil law. Explained that by his not participating he would have been killed (duress). In civil law there is no such thing as guilty plea – only a confession which is suspect. duress is an excuse to all crimes (had mens rea but should be excused as harm was unavoidable)…except. Defense lawyer and judge were not from common law jurisdictions. Texaco did not like this. Which resolution is binding? What is the relative weight of the different resolutions. standard of compensation was left to the discretion of the state. mass murder but could include torture. ° Principle of legality – problematic as give judges the retroactive right to judge which law applies based on policy. Stat was rudimentary. is shot and taken to a hospital where he reveals what happened to journalist. Wanted prompt. 41 . Problem. In a sense. only confessed. murder and treason against Her Majesty – more pragmatic/policy oriented ° Civil Law – duress available to all crimes. sole piece of evidence was his own testimony. ° Italian judge gives that a big boooo. Told that he will be executed if he does not kill muslim men (despite his protest). Issues Holding Ratio Texaco v. adequate and effective compensation based on resolution 1803 of 1962. Court looks to other systems (Japan and China) ° Court resolves diffs b/n civil and common by – joint opinion says that there is no general principle and that common law should be looked to b/c of policy considerations. Normally would not prosecute Erdemovic – small fry. Policy considerations are not liked by Italian judges. Issues Holding Ratio Akhavan ° 3281 is dead and could not be used in front of arbitration tribunal. 1803 is binding and 3281 Binding effect of a UN resolution depends on the voting pattern. Libya Jurisdiction Facts 1977 – arbitration Libya was trying to nationalize oil resources.Public International Law – Fall 2005 Kirk Shannon Erdemovic was brought with others to farm and muslim men arrived. ° Protected investment in countries b/c based on 1803 and adequate compensation what company would invest with thought that investment would be lost. If it was taken back to trial. Indicted to save his life – secret service would have gotten to him Brought to the Hague – plea of guilty (common law notion). he would not be sentenced. rape when committed on a widespread scale) Soldier will not be allowed to rely on duress based on the Common law. Landmark cases in foreign investment arbitration. Therefore. no need for judge to be hearer of facts – prosecution and defense discuss and sentence given. 1803 was unanimous. enslavement. 3281 cannot be considered binding on countries that did not ratify it. In 1974 developing countries adopted the economic charter of rights and duties in resolution 3281 to change economic system for poor countries to catch up in that. Takes part. ° Common law. Later on he disagrees again. On appeal. ICTY statute did not contain list of defences – largely regulated by domestic law. 3281 is a resolution was abstained by practically all the western states and therefore not adopted by them even though most of the GA did adopt. All or nothing approach Court posed questions to itself: Is duress a defence in situations of crimes against humanity? (Here. would be sent back to Serbia (possible death) and would not be able to testify against others. there was no plea of guilty and we don’t understand plea of guilty. This is the first exposure of what was happening in Svrebonincia (can’t spell).
Custom Federal gov’t has exclusive international personality – in the sense that only it may bind Can to an international agreement. Adoption Doctrine: (incorporation) Automatic incorporation unless in conflict with act of parl Transformation Doctrine : Not considered part of Can law except insofar as they have already been adopted by judges. Continental Shelf 1984). Notion of lex talionis (punishment fits nature of the crime – torture. ° Why should we look at sub-state systems? Can help inform us of general principles. What if such a system exists in a traditional system of law general principle is therefore not general? How do we approach this? Fiction that there is a general principle. Nuremburg tribunal which relied on general principles of law to buttress the principle of legality. will look to the int’l norms or rules that gave rise to the domestic law. will change with international law. Part 4a – National Application of International Law . For: International law is based in Western law so this should be continued. With Transformation. Question of adoption vs transformation depends on the constitution of the state in practice. publically). Under adoption. There is tension here with the rule of parliamentary supremacy! ▲Good test of a State’s reception to IL = the extent to which the court. 11(g) of Cdn Charter refers to Cdn and international law or is criminal according to general principles of law. ° Time required to canvass all legal systems in the world. ° Room for the view that the law in Canada is same as is in England where Denning says it is based in adoption. should they have been prosecuted for crimes against humanity? Is it not in the case of really important crimes that the principle must be used? Discussion of principle of humanity as taking precedence in certain cases over the principle of legality. parliament or long established custom. change will not affect national law. Against: If this is to be legit – should look to other. in interpreting such legislation. Based on Nuremburg.Public International Law – Fall 2005 Kirk Shannon Questions 1. Was specifically addressed to deal with Nuremburg. leg. 42 . Analysis of 2 approaches from Canadian perspective based on case law: Adoptionist (or incorporation) – approach for CIL. ° Vital when dealing with change of international law. In determining general principles only the common law and civil law systems are relevant. (This approach was implicitly adopted by SCR in Re Nfld. 2. If they are to consider the decisions binding. Whether it may enact legislation giving internal affect to such an agreement. (prohibition of the retroactive criminalization of conduct) • Does this principle protect the idea of lex certa (certainty of law). S. Transformist – approach for conventional law. Exist 2 theoretical departure points which are complicated because of little agreement in doctrine and cases due to the diversity of approaches from different States. drawn and quartered. • Also International Covenant on Civil and Political Rights (ICCPR) Art 15(2) on p 92 of the supplement. Influence of the commercial field. how can we not look to others jurisdictions when. Reasonable majority is all that is required? Criminal liability based on general principles violates the principle of legality. Basically for Means that IL is automatically considered part of conventional IL to apply it must be transformed into law by the domestic law unless there is a conflict.
S. Fed. 4.R. Ottawa city council had power to levy taxes/rates on foreign legations (property) Foreign legations will not be taxed Duff – Does not overrule the Act but says that. Jurisdiction Facts 1980 SCC Gordon was fishing in what was considered international waters but Canada had declared it was Canadian waters. Imposed on them by the allies after the war (although the allied powers did not do the same for them) Very often judges know very little of international law but are called upon to make judgments that will deal with it. Rand . In Canada. law of the sea. can bind Canada but the enacted legislation will depend on the division of powers. Law is applied but not enforced. International Commercial Arbitration. The Canadian Charter of H. jurisdiction is not there. Note that this is before the 1982 UNCLOS. in this case. etc. Japan – Require that international law be accorded supremacy. He appears to be adoptionist in his approach When Conflicts arise b/t CIL and a Statute: Gordon v.e. norms or rules is important due to the increasing source of domestic law in int’l undertakings (i. The issue of integrating int’l treaties. Asked to advise whether the Assessment Act of Ontario could allow the municipalities could collect taxes on the foreign legations.S. Immunity from legal process. Province has the right to tax whoever it wants. CIL allowed for immunity for diplomats and legations. Presumption that the legislature did intend to legislate in accordance with international law.Public International Law – Fall 2005 Considerations to keep in mind concerning the national application of CIL in Canada: Kirk Shannon 1. Jurisdiction Facts Issues Holding Ratio SCC  Agreement to build continental radar system. International law was recog’d at 12 miles for High Seas by 1958 convention. Notion of Parliamentary Supremacy: English tradition. 2. When there is a conflict between int’l and domestic law the division of powers again complicates things.] 1982 Exclusive Economic Zone – 200 mile to exploit resources – not yet applicable. [Continental shelf has no relevance as it deals with sub-surface rights – not fishing. Labour conventions. labour standards. gov’t in the pursuit of the construction of a radar defense system contracted by Canada and the U. domestic law is supreme with idea of adoption – or direct applicability of international law in English law. Raser-Brace Overseas Corp. of immunity from legal processes accorded to a foreign state. tax treaties. 43 . ° Some constitutions – Germany. tax treaties.P. Adoption of customary law is taken based on England.) 3. Saint John v. R.Referred to Duff’s decision above and the G.s – to what extent int’l accepted HR norms should be relied upon for its interpretation… Direct applicability that some international norms should have effect. Corp owns works in Saint John The Q of tax liability of a private company for the use of property owned by the U. HR law is a part of the constitution as it is a new constitution. Foreign Legations Case Jurisdiction Facts Issues Holding Ratio SCC  Reference as to the powers of the city Ottawa to levy rates of foreign legations.
° ° ° Seems odd as could be seen to bring up the principle of legality.  House of Lords Facts and holding After ratifying 2 International Labour conventions the fed gov’t proceeded to legislate in accordance with the convention’s provisions. etc. It indicated that treaty law is transformationist. The court ruled the legislation to be ultra vires the fed gov’t as the legislative competence on the subject-matter of the conventions lied with the provinces. How should the adoptionist view be shaped by these considerations. whereas customary law is adoptionist. Incorporate the substance of the treaty into Cdn law. Should we move to transformationist approach to get rid of uncertainty. Rather the distribution is based on classes of subjects which will require the participation of the legislative power having control over a particular class. Incorporate the text into domestic law such that the treaty becomes a Cdn law and a source or rts and obl’s…either… In toto (1949 Geneva Conventions. Difficulties with this approach – how to tell whether a particular act implements a particular treaty. This case is relevant for custom as well as treaty as mentioned in class.91 are two sources of possible authority. More recent SCC cases have suggested a trend towards a reconsideration of this case. In this case the treaty is not part of domestic law and any rts or obl’s are sourced from the domestic law that reflects the treaty’s substance. Should right to liberty.Public International Law – Fall 2005 Issues Holding Ratio Kirk Shannon Faced with the conflict court must apply domestic law.e. directly applicable. Meredith . that is to say only applicable through valid implementing legislation. Canada acted clearly and unambiguously and therefore the Canadian Law would prevail. influence the court to adopting and adoptionist. Treaty Implementation Without implementation by legislation (according to ordinary rules governing the division of power) Canada as a country is bound but the provisions of the treaty do not affect internal law. The Adoption of Laws for Implementing Treaties is based on the Ordinary Rules governing the Division of Powers under the Constitution: Labour Conventions Case. Relevance – Can Canada legislate in contravention to “entrenched” CIL? (Off-shore fishing rights).91 and 92. (i. 1929 Warsaw In part (Vienna Convention on Diplomatic Relations) Convention) 2. Would be too difficult to keep up as Customary law is constantly changing. Laskin – the answer is that implementation must be manifest and not inferred. Does this make sense given the increasingly interdependent nature of our world society that the fed gov’t have the power to not only bind Canada but implement even when prov jurisdiction is touched upon? POGG (referred to by Akavan as a residual power) and the general trace and commerce power in s.. though the latter does not prevail over unambiguous legislation to the contrary (whereas it may when it is ambiguous such as in the Legation case). cases in which the economy of Canada is treated as a single Will this position be maintained? 44 .Can only apply CIL when it has been accepted and adopted into domestic law. Lord Atkins Within the British Empire: “water-tight Executive act = making of a treaty compartments” Legislative act = implementation of those obligations into domestic law In Canada there is no such thing as treaty legislation in ss. When individual rts are affected by the subject matter of the treaty this is especially significant. Adoption approach is used but is countered by explicit. Two Methods of Implementation: 1.
C.” (R. (CofA) – Unless the statute is so explicit as to prohibit an alternative interpretation it is 1. He finds it an unnatural use of language to limit that liberty. v.. Ltd. “in Ontario” in the Act does not mean “partly in Ontario” which is the case of the river in possible. marine pollution.  Ontario CofA and SCC Each judge emphasizes a different phrase in the Treaty…what are the different effects? Each one is attempting to construe away a conflict between a statute and a treaty. Conflicts between Treaties and Statutes “A treaty does not ipso facto.) Smith – also creative… Smith J (SCC) – Riddell incorrectly interpreted the Act. As this Act is clearly within s. v Cdn Labour Relations Board). Ratio The nature of the subject-matter. was entitled to fix tolls under the Provincial Lakes and Rivers Improvements Act (1927) for the movement of timber down the river including Pigeon River which serves as a part of the border between Ontario and the U.A. As the site was within the internal waters of B. Treaty predates the statute: Re Arrow River and Tributaries Slide and Boom Co. The Δ was charged with dumping waste. must be upheld if Therefore. It was therefore not meant to be covered by the Act and the toll cannot be charged on the Pigeon River. The tolls can be charged.Public International Law – Fall 2005 national unit). The Pigeon TimberCo. Facts Arrow River Co. Kirk Shannon POGG as a source of legislative authority: R. Ratio Riddell J. become part of our law and enforceable in the Courts. waters were concerned. the trial and CofA held that the Act was ultra vires Parliament insofar as the B. The treaty was referring to waters which were in interpreting treaty use and navigable at the time of the treaty. The treaty states that the use was to be “free and open” to any navigable waters even if they require a portage. The part of the Pigeon River in question was non-navigable at intent. Crown Zellerbach Canada Ltd. To be overruled there must be affirming legislation that a treaty provision shall be enforced.C. objected to paying the tolls because of a conflict with a treaty from 1842 which provided free access to those waters. (The Gordon case is also a good example of the treatment of conflicts as Canada had in fact ratified the Geneva Convention in 1970 but had failed to implement it). Lamont – construes too… but Statute prevails! On whether the Act was valid and enforceable… Lamont J – He also construes the treaty. Holding Le Dain – While he agreed with the logic of the lower courts (the Act was unjustifiable under the fed’s navigation or fisheries jurisdictions) he did conclude that it was operable under the POGG power. (Echos of Legations Case. the time and therefore the treaty does not apply. Riddell – prior acceptable to interpret it in such a way as to remove any conflict and to therefore to promote the commitments execution of the King’s “plain duty”.92 powers. Should courts attempt to simply defuse the conflict or should they take a proactive stance and attempt to further the treaty as far as possible? The case illustrates the tensions b/t judges trying to make “it” fix and ultimately giving deference to the division of powers if no fit can be arrived at. then or in the future. However he finds another reason to permit the tolls… Lamont J – Provincial legislative power is plenary as concerns s. Based on this the tolls cannot be charged. trying to import meaning to render the statute consistent with the treaty.92 it is enforceable. is clearly a matter of concern to all of Canada being of a single and indivisible nature that cannot distinguish between coastal water pollution and territorial sea pollution.  SCR Facts Fed gov’t had implemented their obl’s under the London Convention on the Prevention of Marine Pollution with the Ocean Dumping Control Act. 45 . question.S.
e. 1992 The Maastricht Agreements – Established the EU. further extended integration process and paved the way for the euro. or which are universally regarded as established by common notoriety. The EUs legal strength rests on 2 fundamental principles: the primacy of Union law over conflicting national legal provisions. Facts 46 . The court relied on the CERD as well as ICCPR (Int’l Convenant on Civil and Personal Rights) given the absence of any specific provision in the Charter prohibiting hate speech. the laws of the state. For our purposes issue is whether the Italian court must refer to the treaty. historical events. the constitution and course of nature…etc… ▲Judicial notice means that there is an assumption that what is presented IS the law. Ente Nazionale Per l’Energia Ellettrica. In Keegstra Case on hate speech legislation Dickson stated that a value that has obtained the status of an int’l right should be indicative of a high degree of importance attached to that objective.e. Comparative Approaches to National Application European Union: The EU’s legal structure is a matrix of int’l agreements. having a bearing on the controversy at bar. so the court is not bound to justify it (versus the law of another state which requires proof). are not properly the subject of testimony. Should domestic courts apply European Community Law (ECL): Cosa v. and the right of individuals to rely on the Union norms before their domestic tribunals. such as CIL or G. The EU itself has ILP.P. the giving of Judicial Notice: Judicial notice can (and maybe should) be given to CIL in domestic situations. 177 Italian refused to pay electric bill claiming that the nationalization of the electric company was contrary to Italy’s obligations under the Treaty of Rome. Charter of HR) Procedural Influences. This can be problematic because much of IL is not “certain”.Public International Law – Fall 2005 Yes! Kirk Shannon Treaties between Canada and foreign states are “only contracts binding in honour upon the contracting states…” The treaty’s provision of “free and open” access to the waters had only the force of a K b/t Canada and the U. in conducting a trial or framing its decision. The meaning for the purposes of Canadian law was inferred by using these treaties. from their nature.S. Judicial notice – the act by which a court.  ECJ Advisory Opinion under art. Influence of IL on Cdn Law – Determing the Applicable Law to Apply: Procedural – the means the courts use to determine Substantive – reflects the impact of int’l legal principles on the applicable IL. 1957 Treaty of Rome – the framework agreement which set out the basic rights and obligations and created the institutions by which new and binding rules may be enacted. Judicial notice to CIL greatly assists the entry of CIL into our domestic law. contents of Cdn law (i.g. Judicial Notice. which. enhanced fundamental rights of European citizens and began the common European foreign and security policy. will of its own motion…recognize the existence and truth of certain facts. and therefore cannot impose any limitiation on Ontario’s legislative powers. Substantive Influences: International norms can play an impt role in Cdn law.’s. 1997 Treaty of Amsterdam – deepened the EU. IL.
The CofA declared it had no jurisdiction to stop the Crown from applying UK law and evoked the principle of Parliamentary Sovereignty. Sei Fujii v. In this sense the issue of conflict and legislative competence does not seem to be as important as in Canada in that the court clearly states that despite any discontent on the part of member states they must still give force to a ECL over their domestic law. Self-Executing Agreements: In the US int’l agreements are called self-executing if the intention of the signatories according to the provisions was to create rts and obls capable of direct enforcement by the courts. the U.Public International Law – Fall 2005 Holding Ratio Kirk Shannon Yes the Treaty applies to domestic tribunals. The provisions that Denning referred to have been called “transformation in advance”.S. takes a similar position to Canada and attempts where possible to interpret statutes in a way so as to avoid conflit. As for implementation. It appears that ECL plays a much more central role than IL in terms of its place in EU members domestic legal systems.  House of Lords Can we construe this as an abandonment of parliamentary sovereignty? Facts On the question of whether or not a UK Act violated provisions of ECL the domestic court was asked to issue an interim injunction to enjoin the Crown from enforcing the Act pending the ECJ ruling. The relationship b/t ECL and English law: H.P. a 2/3 majority vote of the Senate to adopt a treaty makes it part of the “supreme law of the land”. Whether procedural remedies should be adjusted to the requirements of ECL: Factortame Case. Bulmer Ltd.2(1) of the European Communities Act of 1972. Bollinger SA. J. Ratio The intent of the signatories for a treaty to be self-executing must be manifest by the language of the 47 .  Supreme Court of California Issue Whether or not HR provisions in the UN Charter were “self-executing” so as to render nugatory provisions of a California law. v. California. Treaties: The US Constitution gives the President treaty-making power with the advice and consent of the Senate. United States Customary Law: CIL may be in questions of IL where there is no treaty and no controlling executive or legislative act or judicial decision. Holding The UN Charter is not self-executing. This case is interesting because parliamentary supremacy always had been the rule in England.L. The H of Ls therefore granted the injunction. Thus the UK has voluntarily submitted itself to that sovereignty. meaning s. The H.s sought the advisory opinion of the ECJ who declared that domestic courts are within their jurisdiction to override national law if necessary to enable interim relief to be granted in protection of rights under ECL. Transformation in The statute is expressed in such forthright and unequivocal terms as to the legal effect of any rts or obl’s advance… under the Act without “more ado”. Real powers resulting from a limitation or transfer of powers from the States to the Community were created and accepted by the member-States which clearly limits their sovereign right to enact and enforce a subsequent unilateral law incompatible with the aims of the Community.  English C of A Denning indicates that European Community law has been incorporated into UK law by statute. By signing the treaty the UK automatically submitted domestic law to the treaty as to its subject-matter. In terms of conflicts with statutes. Ratio Lord Bridge – the supremacy of the ECL over national law had been well established in ECJ jurisprudence long before the UK enacted the act in 1972. This permits them to override domestic law in the case of a conflict.
scope of authority of a state over its territory. But then it was also used for Indigenous areas. Kirk Shannon A treaty cannot be self-executing if it cannot operate without the aid of any legislative provision.you can exercise jurisdiction without sovereignty.competence of a state to prescribe and enforce rules of domestic law governing conduct within its territory.State Jurisdiction Over Territory Can you have jurisdiction over territory without sovereignty? . Sovereignty extends over the land mass and internal waters. Authority of a state to regulate conduct within its territory is supreme and is subject only to specific limitations set by CIL or by treaty. Res nullius: some lands are really res nullius such as Antarctica. or . . • Unilateral – these are made solely under the President’s authority. Sovereignty and Jurisdiction do not always mean the same thing.Jurisdiction does not always imply sovereignty. Instead of adoption. this is now accepted as a complete alternative to a treaty in which a simple majority approval is sought from both houses of Congress and not just the Senate. Questions 1. the Legislature must execute the K before it can be a rule for the court. 2. Like a treaty with a 2/3 vote these agreements become the law of the land and supersede inconsistent state law or provisions in earlier treaties. . States do not necessarily have sovereignty over EEZ because there is a freedom of passage.competence of a court. You can exercise jurisdiction with respect to specific matters without having sovereignty. Jurisdiction: .Public International Law – Fall 2005 instrument.Sovereignty always implies jurisdiction. Executive Agreements: Three kinds: • Treaty-based – these enjoy the same legal status as the treaties that authorize them as long as they are consistent with the treaty • Congressional – authorized by statute. or . When the terms import a K with the engagement to perform a particular act then the treaty addresses itself to the political and not the judicial dept. This is different from the idea of res communis which means it belongs to everybody. Territorial Jurisdiction in intl law: .scope of authority of a particular state organ or organ of an internal organization. area of earth may be: 48 . customary law should always be transformed to ensure consistency with the Canadian Constitution. more of a free for all. with respect to continental shelf or exclusive economic zone. THIS ONE!!!! Part 5 . In traditional IL. Pollution and environmental jurisdiction extends over EEZ in Canada but does not imply sovereignty. The UN Charter lacks the language customary to self-executing treaties. Within their sphere of competence. Provinces have the right to legislate in violation of international law. This concept has somewhat given way to common heritage of man kind.
land territory with implications on claims of EEZ. may acquire title to the territory. For Canadian context 1763 Treaty of Paris by which French NA became part of British NA. Similar to Res Communis. exploitation and distribution of the natural resources of the area in question are matters to be decided by the international community… and are not to be left to the initiative of individual States or nationals.Territory of coastal states. New legal category: “Common Heritage of Mankind” governed by special rules: seabed. Statute of Greenland Case where Denmark argued that Norway acquiesced to its sovereignty over Greenland. Even though incorporated in certain conferences and agreements. or even beyond – Canada). Since UN Charter.A. The emergence of volcanic islands. island of Palmas case . o Occupying state exercises effective control over such territory.Conquest: war and subsequent annexation. Two conditions: o Territory thus acquired must be res nullius. discovers that the island is considered part of the Netherlands Dutch East Indies territory. moon and other celestial bodies. a “defined territory” is one of the indispensable attributes of statehood. Under Montevideo Convention on the Rights and Duties of States (1935).Public International Law – Fall 2005 - Kirk Shannon sovereignty of a state res communis – high seas and outer spacce:shared by all nations incapalbe of lawful appropriation by any state.Prescription: when a state peaceably occupied a territory with the knowledge of and without protest by the original sovereign for a period of time. . . (article 2(4) and article 52 of Vienna Convention). “relative title” is used. Netherlands claimed sovereignty by virtue of its continuous and undisputed display of authority over the island during a long period of time (claim of effective display of authority. 829 F When US General visits island of Palmas.A. res nullius: capable of lawful national appropriation.Occupation. Island of Palmas Case. Manner in which Bolivia lost part of its territory to Chile after the Great Pacific War (this was under force). US contended that the island was included in the Philippine Archipelago ceded by Spain to the US in 1898 Treaty of Paris (claim of cession and discovery). . ocean floor and subsoil thereof. meaning the court will ask who has the better title. it is a subject of controversy.Accretion: enlargement of a state’s territory though natural forces – change in course of river.I. . o subsurface and o column of air to an as yet undetermined altitude. Land Territory (a) Acquisition of Territory Traditional international law recognizes five different modalities for the acquisition of territory: . Similar to cession would be the acquisition of territory by a new state through independence by a former colonial power. There are also cases where oil concessions are used for inferring acquiescence. extends seaward to the outer limit of their territorial seas (maximum 12 nautical miles) and to the continental shelf (200 nautical miles off shore. Netherlands v.Cession : transfer of territory from one state to another by a treaty of cession. No longer reconcilable with modern intl. 2 R.Territory of state is tri-dimensional: o surface. In reality none of these work in isolation. 49 . . Occupation + Acquiescence. but differs it incorporates “the idea that the management. United States (1928). law. treaty of cession obtained through use of force is no longer valid.
Essential question: whether the island of Palmas a thte moment of the conclusion of the Treaty of Paris formed a part of the Spanish or Netherlands territory. gaps are insignificant as island of R Palmas is a small and distant inhabited only by natives. Rep. in particular their right to integrity and inviolability in peace and war. law. Territorial sovereignty involves the exclusive right to display the activities of a State. Context of island of Palmas.  I. etc. . Therefore Spain’s title was derivative and not original. together with the rights which each State may claim for its nationals in foreign territory. conquest. – superior to that which the other State ight possibly bring forward against it. Op.title of discovery doesn’t apply. Enough that a the time another Power ascertaining the local conditions had a reasonalbe possibility seeing the existence of other state rights. Consider whether the display of state authority might not be legally defective and thereforeunable to create a valid title of sovereignty ? . o Netherlands never recorded any protests. . 50 .Title of recognition by treaty does not apply Compare Palams Island with the Western Sahara. General remarks on sovereignty in its relation to territory: . Practice and doctrine recognize that the continuous and peaceful display of territorial sovereignty is as good as a title. occupation. indirect prroof of the exclusive display of Netherlands sovereignty. . it is customary to examine which states claiming sovereignty possesses a title – cession. If a dispute arises as to the sovereignty over a portion of territory. . 2) Spanish colonization occurred in period beginning in 1884. Whether the US as sucession of Spain in a position to bring forward an equivalent or stronger title? NO: . . .Did Spain have sovereignty over Palmas at the time of the coming into force of the Treaty of Paris? o US has not established the fact that sovereignty was displayed at any time.display has been open and public.sovereignty in the relation between States signifies independence. Territorial sovereignty cannot limit itself to its negative side: exclusind the activiteis of other States.Title of contiguity has no foundation in intl. 12 F I H R 1) Was the Western Sahara at the time of colonization by Spain a territory belonging to no one (res nullius)? 2) What were the legal ties between the territory and the Kingdom of Morocco and the Mauritanian entity? 1) No – not terra nullius.Territorial sovereignty is a situation recognized and delimited in space. .Cannot apply principle that islands belong to lands that are closest to them. or in exceptional circusmtances to several states to the exclusion of all others. This right has a corollary duty: the obligation to protect within the territory the rights of other States.Public International Law – Fall 2005 Dispute submitted to arbitrator Kirk Shannon I Relatively. o No evidence of display of sovereignty over the island by Spain or another Power. Despite the 1884 colonization of the Rio de Oro by the Spaniards there was no terra nullius because the practice was to conclude agreeements with tribes and peoples.Territorial sovereignty belongs always to one. who has better title? H 18th and 19th century Dutch display authority with gaps.Did Netherlands display continuity? o Continuous display not in the literal sense.C. Western Sahara Case Adv.J.
Ser. Rep.Norway has by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore cannot now dispute it. N Is the court creating a myth ? Was there a better way of achieving this result ? Legal Status of Eastern Greenland Case. Such agreements with local rulers. Held that Greenland has displayed through legislation enacted. No tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian territory. whether or not considered as an actual “cession” of territory. area was res nullius. . Court unanimously found for UK. Acquisition of territory was effected through agreements with local rulers. has been continuous and peacefully exercised. Denmark v. an uncolonized part of the island. treaties and conventions. Decisive factor was the more recent evidence of the exercise of “State functions” over the disputed territory by the UK. A. Norway has been party to these conventions. Legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara..I. has not been contested by any Power. Show a willingness from other states to admit D’s right to exclude Greenland. P. Held that Denmark has demonstrated occupation on July 10 1931 – activity of Denmark in area. It was a cardinal condition of a valid “occupation” that the territory should be terra nullius. during the period of 1814 to 1915 her authority over the uncolonized territory.Denmark possessed no sovereignty over the area in question . were regarded as derivative roots of title. Western Sahara was inhabited by peoples.53 F Norway proclaimed sovereignty over Eastern Greenland. Danish claim is not founded upon any particular act of occupation. Existence of rights which constituted legal ties between Mauritanian entity and the territory of Western Sahara.C.sovereignty which Denmark now enjoys over Greenland existed for a long time. Sate practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. during the period of 1814 to 1915 her authority over the uncolonized territory. No. Denmark. Norway: . which claimed sovereignty over the whole island.. R - In Minquiers and Ecrechos Case ICJ called to determine whether France or Uk had sovereignty over islets and rocks in the English Channel. Denmark’s arguments: .” To establish the contention that Denmark has exercised in fact sovereignty over all Greenland Council for D have laid stress on the long series of conventions in which a stipulation has been inserted to the effect that the convention shall not apply to Greenland. treaties and conventions.at the time of occupation. Justice asking the Court to declare the Norwegian Act invalid.Public International Law – Fall 2005 Kirk Shannon Question 1 needs to be answered by reference to the law in force at that period./B. Norway (1933). but alleges a title “founded on the peaceful and continuous display of State authority over the island. The expression terra nullius was a legal term of art employed in connection with “occupation” as one of the accepted legal methods of acquiring sovereignty over territory. Question 2 depends on the meaning of ‘legal ties’ in the context of colonization. 51 . Held that Denmark has demonstrated occupation on July 10 1931 – activity of Denmark in area. instituted proceedings against Norway in the Permanent Court of Intl. I H Held that Greenland has displayed through legislation enacted.J. and up until now. At the time of colonization.
sharma arguest that there is a distinction between a boundary dispute and a territorial dispute.Public International Law – Fall 2005 - Kirk Shannon Dispute between Thailand and Cambodia over Preah Vihear Temple. 52 . ICJ case in 1962. The effect of any delimitation no matter how small the disputed areas crossed by the line. Republic of Mali. Different aspects of the principle of uti possidetis juris: .conflicts outright with right of peoples to self-determination. . resulting in the territorial expansion of the victor. But the principle is not a specific rule which pertains solely to one specific system of intl. Burkina Faso v. International law – and the principle of uti possidetis – applies to the new State not with retroactive effect. the application of which gives rise to this respect for intangibility of frontiers. that Cambodia was a French colony. A boundary dispute is an exercise of dividing territory whereas a territorial dispute is one where the goal is the exclusive sovereignty over a particular area. The question before the Chamber of the ICJ was the location of the boundary. wherever it occurs. Case Concerning the Frontier Dispute. The preliminary comments of the Court are important. Principle of uti possidetis juris was first invoked in Spanish America. is an apportionment of the areas of land lying on either side of the line. . Problems with this principle: . frontiers. established during the colonial period. law.J. (b) Boundary Disputes Boundary disputes would often be decided by war.Territorial boundaries that have to be respected and also be derived from intl. I H R How the present dispute should be classified? – - - frontier disputes or delimitation disputes: refer to delimitation operations affecting what has been described as “a portion of land which is not geographically autonomous” disputes as to attribution of territory: attribution of sovereignty over the whole of a geographical entity. N Uti possidetis means intangibility of frontiers. states have been showing greater readiness to have their minor territorial disputes resolved through non-violent means such as arbitration. ie to the “photograph” of the territorial situation then existing. It is a general principle which is logically connected with the phenomenon of the obtaining of independence. to intl. the court held that the hosting of the Prince by France constituted recognition of French sovereignty. The decisive piece of evidence was that in 1930 a Thai Prince visiting the temple was hosted by a French Superior. Based on that principle.  I.Upgraded former administrative delimitations. In more recent times. It applies to the State as it is. 554 F In 1960 Burkina Faso and Mali achieved independence from France. Its purpose is to prevent the independence and stability of new states from being endangered by fratricidal struggles provoked by challenging frontiers. S. But emphasis is made on the requirement for stability in order to survive has induced African States to consent to the respecting of colonial frontiers.C. . but immediately and from that moment onwards. Deliberate choice of African States to choose uti possidetis.Primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. They shared an administrative boundary.P.pre-eminence accorded to legal title over effective possession as a basis of sovereignty. … Principle of “intangibility of frontiers inherited from colonization” gives rise to the principle of uti possidetis juris. frontiers.
Arctic and Antarctic Areas Biggest issue is whether the ice should transform the arctic into a different type of territory. So it may not have been about stability in the beginning. Sudan. The only time you can draw straight baselines is if you are an archipelago state or if you fall under a.Should these boundaries be kept at all cost ie.” Indonesia is an archipelago state. In the Law of the Sea Convention. The doctrine of uti possidetis juris creates artificial States and should be abandoned in favour of historic national territorial definitions . community force them to go back to Serbia ? . . Zaire. Internal waters is no different then land territories. Kurds. The Artic is basically defined by the “tree line. Features of the Arctic from D. You cannot draw straight baselines. Niegeria etc. There is also the fisheries case. Stalin purposely drew republic lines dividing ethnic communities. There is an enclave in Azerbaijan with an Armenian majority. Class Presentation 1. They knew that if effective possession was going to be the criterion they were going to lose their land because they could not possibly occupy all the territory. where we have had separation as in India and Pakistan there has also been conflict. The claim that there is an archipelago is solidified by the ice. Differences between Arctic and Antarctic 53 . “The Legal Status of the Arctic Regions” (1979). Canada is not an archipelago state it has a massive land mass. Today Kosovars have effectively created their own state. Should the intl. Should we respect Stalin’s boundaries at all costs? The notion of juris is about pre-eminence of legal title over effective possession. The two countries were republics of the Soviet Union and inherited the boundaries. Kosovo. The drawing of boundaries is pre-eminent over occupation. during cold war years strategic importance (early warning systems). Does US agreement show acquiescence ? Does ice change the legal regime? It means that the water is connected to the land. 163 Hague Recueil 51 Criterion retained to define the Arctic is the tree line.Public International Law – Fall 2005 Kirk Shannon Should uti posssidetis be restricted to colonial situations? Or where new states have a common colonial past? It was the legal opinion of the Arbitration Commission of the Conference on Yugoslavia that uti possidetis was the governing principle of intl. was 90% Albanian. Doesn’t Baffin island look like the Norwegian coast line? Norway case says that straight baselines needs to be tempered by general international right. there is no right of passage therefore.Example of Armenia and Azerbaijan. The ICJ case on Fisheries of Norway holds that you draw straight base lines. Therefore Canada wants to apply the case to its Arctic islands. environment (eco-system is very fragile). law respecting the boundaries between Croatia and Serbia and b/n B-H and Serbia. The boundaries were a policy of divide and conquer. Uti possidetis was used to decolonize South America and they wanted to prevent the encroachment of other colonial powers.7. What is the status of “ice islands”? Canada is trying to claim that they create an archipelago. But then again. This seems to be in conflict with the Island of Palmas. “group of islands and waters closely interrelated that form an intrinsic geographical and economic entity.So much death in Africa because of this principle. province of Serbia. US position is that the Northwest passage is not part of Canada’s internal waters.” Importance of the arctic: resources (oil + gas). Pharand.
Donat Pharand says that Arctic ocean should fall within the general regime. Ballistic Missile early warning).. + Econ importance: new supplies of oil and gas. “Canadian Claims to Territorial Sovereignty in the Arctic Regions” (1963). It extends without interruption to the seaward-facing coasts of the Arctic islands. But Canada did explore Lomosnov Ridge… Legal Status of Ice Islands Ice islands used for marine scientific research. 163 Hague Recueil 51 No question as to the territorial sovereignty in the Arctic. Joe Clark. Air Space over the Northeast and Northwest Passage No freedom of over flight where there is an overlap of territorial waters in those straits. Canada’s Inuit people have occupied them from time immemorial. States have respected freedom of overflight. Policy being one of reservation in both Arctic and Antarctic. Pharand (1979). 1988 Can and US concluded an agreement on ‘Arctic Cooperation. when discussing the status of the Northwest passage.J. The Sector Theory from I. US has neither disputed nor made its own claim. 4.Public International Law – Fall 2005 Arctic: warmer. Arctic states have complete and exclusive sovereignty over the air space above their respective territories. Can Canada’s claim to sovereignty over the Arctic waters be reconciled with customary law of the sea? 5. No customary law has developed. 200 Arctic “sector theory” is was first offered by Canada and is associated with Canada. It embraces land. Canada has expressed doubt to high seas. US considers Arctic Ocean as high seas and open to all nations. On Jan 11. Notes 1. 2. USSR also adopted sector theory. Canada’s claims to territorial sovereignty over the Active mainland and the islands of the archipelago within the Canadian “sector” have never been challenged. Antarctic: colder. 9 McGill L. USSR has engaged in similar activities to US and therefore must subscribe to freedom of the seas. ice-covered continent surrounded by a vast maritime belt Kirk Shannon Arctic region is of considerable strategic importance (USSR submarine fleet. and sides defined by meridians of longitude extending from the North Pole south to the most easterly and westerly points on the Arctic Circle pierced by the state. Arctic sector is deceptively simple: a base line or arc described along the Arctic Circle through territory unquestionably within the jurisdiction of a temperate zone state. in spite of the presence of ice. US Laboratory. Head. After the controversial voyage of US Polar Sea through Canadian Arctic. 54 . Air Space over the Arctic Ocean Freedom of overflight exists all over the water of the Arctic Ocean beyond the territorial sea. They need a legal regime. consists of a deep ice-covered ocean surrounded by a continental belt. 3. sea and ice. Secretary of State for External Affairs said “Canada’s sovereignty in the Arctic is indivisible. Can’s claim without basis in international law for jurisdiction. But then looked at maps and said that Canadian Arctic archipelago is a coastal archipelago and not a coastal archipelago. PM Mulroney unequivocally asserted Canada’s sovereignty over the NW Passage.’ – US pledged that all navigation within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Can. Legal Status of the Arctic Regions by D. Air Space over Arctic Lands and Islands Since territorial sovereignty is established. Legal Status of the Arctic Ocean Waters of the Arctic Ocean must be considered as high seas. as in any other ocean. particularly the Beaufort sea.
55 . In 60’s this was possible and therefore convention outdated 1973 – UN held first conference on Law of the Sea. icebreaker Polar Sea violated Canadian sovereignty by passing through the Northwest passage without Canada’s consent. • Starts in the Roman times and continues.) Established by 120 nations as being 12 nautical miles from the low-water mark. 9 annexes. Questions 1. Part 6 – Law of the Sea Issue is territorial claim in the seas immediately adjacent to their coastline. 320 arts. o Canada has signed (1999) but not ratified until (2003).S. o Very extensive – 17 parts. UN Convention of the Law of the Sea in 1982. (see Continental Shelf Case which still says (in 1969) that this does not reflect CIL) • • • • North Sea Continental Shelf Case shows how not all the provisions were considered CIL. The U. o Is it an advantage for Canada to ratify. First attempt to regulate the seas. The most democratic and effective approach is for parliament to ratify treaties. 2. • A – Marine Zones 1. Territorial Sea • • Notion related to the capacity of coastal states to project their power in regulating who can sail off their shores (the “cannon-shot rule” – how far the territorial sea extended. • Virtually all modern laws of the sea are grounded in custom • In 1958.Public International Law – Fall 2005 Kirk Shannon Class Presentations 1. these conventions were already outdated. Otherwise there is an acceptance that the high seas are open to all. Famous debate b/n Grotius (free for navigation) and Selden (closed seas). o Contiguous zone (extended for customs and enforcement) and territorial sea o High seas o Fisheries (controversial – resistance by coastal states saying that distant states had too many rights and did not have to deal with environmental outcomes) o Continental Shelf. By the 1960’s. (Father of convention – Tommy Koh of Singapore) Resulting constant changes made another codification process essential Thus. 3 mile rule was related to this rule. o Definition of continental shelf – technology in 1958 for drilling did not allow for it beyond 200m isobar. The doctrine of uti possidetis juris creates artificial States and should be abandoned in favour of historic national territorial definitions 2. Law of sea particularly important for Canada – longest coastline in the world and 70% of oil reserves in the seabed. Compare reception of international law in Canada with that of other jurisdictions. o Does not deal with military uses o Entered into force (as set out in convention) 12 months after 60th ratification in 1994. Also b/c of reservations of US and other western countries who did not like the “common heritage of mankind” bit regarding the deep seabed. four conventions on laws of the sea were written and ratified by many (and followed by more who believed that the conventions merely codification of existing law). Not everyone has done so – Venezuela among others.
Foreign vessels were excluded from these waters. on the west coast. in cases of very indented or cut. Islands and Archipelagos Arts. long-usage. Mouths of Rivers • Where the fresh water ends and salt water begins the baseline is drawn • See also art 9 Anglo-Norwegian Fisheries Case – UK v. • Generally follow contour of the coast.Public International Law – Fall 2005 • Kirk Shannon Articles 2-14 delineate the territorial sea – definitions of baselines from where 12 nautical mile-line should be drawn. definition of a ‘bay’. economic. • Look also to Sable Island can you draw a 200 mile EEZ around it? No – See art 121(3) – Cannot sustain economic life. etc. Rights in the territorial sea are “Sovereign Rights” (see article 2 UNCLS) which continue to its airspace and seabed and subsoil Exception for archipelagic – see art 2 Baselines Drawn along the low-water lines. 121 56 . Principle here is that the land dominates the sea. • All of these based on historical waters claim. Act of delimitation is a unilateral act as only the coastal state is competent to undertake it but the validity of the delimitation depends on international law. Bay of Fundy and Gulf of St. • Considerations to be taken into account when deciding what section of the sea to include ° Close dependence of the territorial sea on the land domain – drawing of baselines must not depart to any appreciable extent from the general direction of the coast ° Are certain sea areas lying within these lines (between islands and coasts) sufficiently linked to the land domain to be subject to the regime of internal waters ° Look to non-geographic factors – eg. Where are the baselines to be drawn from and how? Based on historical and local considerations. Canada • Cabott strait. 46-49. Norway’s delimitation is an adaptation rendered necessary by local conditions. • Court accepts use of baselines which. Consistent with Canada as set out in Ocean’s Act? • Is enclosure of “Historical waters” (as described above) consistent with the UNCLS or is this a case of creeping jurisdiction. • Article 7 Straight baselines don’t force into the deep contours. Norway Jurisdiction Facts Issues Holding Ratio ICJ  Norway’s action of enclosing a coastal archipelago (with straight baselines marking the inner limit of its territorial sea) fringing its territory came under dispute. may depart from the physical line of the coast. Several baselines were more than 30 miles long – one was 44. • Also. Queen Charlotte…. • Note the difference b/n an archipelagic state and archipelagic area. Lawrence are all considered by Canada to be internal waters.
especially the speed in which states have enacted them. Major question is how this applies to non-signatories. that is not within any province and is prescribed by regulation. 20(1) Application of federal laws – CS installation. shelf on Cdn coasts b. Claimed it as terre nullius. Canada’s EEZ also includes all the waters over which Canada has historical claims to full sovereignty. • Almost as soon as convention was enacted. (In conflict with the Cdn Ocean’s Act which describes the zone as having its inner limit as the outer limit of the territorial sea. ck art. What are their rights or obligations in the EEZ’s of other states. Therefore. Is this zone to be understood as “sovereign rights” or “jurisdiction”? Might have to wait and see from state practice and authoritative interpretation of the UNCLS. Oceans Act 1996 17(1) Continental Shelf (CS) – includes EEZ 18 Sovereign rights of Canada – over CS for exploration and exploitation of mineral and other non-living natural resources. and east coast…see page 884 casebook). the seabed and its soil. 20(2) Interpretation of the laws – in a manner consistent with the rts and freedoms of other states under IL. Geneva Convention on the Continental Shelf • Defn – Adjacent to the coast but outside the territorial sea to a depth of 200 meters or to where the depth will admit of exploitation of the natural resources of the area. 13(1) 200 nautical miles from the baselines of Canada’s territorial sea. Have exclusive right to artificial islands and constructions in this zone. it is an extension of land territory. This changed • Now. the provisions for an EEZ are the most remarkable in many respects. 23(1) Certificate . (laurie. 21(1) Application of provincial law – Apply to the same extent as federal laws in s. make regulations 57 . 200 mile fishing zones were proclaimed by several influential states. Continental Shelf UNCLS Arts 76-82 The Truman Proclamation Of 1945 • Assertion of control and jurisdiction over the subsoil and seabed of the continental shelf • Where it extends to another nation or is shared with an adjacent state. Art. 76 and the cont. amazing speed which has become international law by state practice. • All rights to anything in the water.c. Oceans Act art. 14(a) confirms Canada’s sovereign rights in the EEZ. 21(1) does not apply in respect of any law of a province that imposes a tax or royalty. artificial islands including a security zone surrounding them. In Canada the Oceans Act is fully consistent with art. • Note the preservation of all high seas freedoms in this zone so long as they are not in conflict with the rights enjoyed by the coastal states. on the rec.Minister of Foreign Affairs – 26(1) The Governor in Council. boundary determined on equitable principles. • Prior to Truman had occurred b/n Venezuela and UK regarding Trinidad. of the Minister of Justice.20 in any area of the sea forming part of the EEZ. Under the UNCLS. may.Public International Law – Fall 2005 Kirk Shannon Exclusive Economic Zone Arts 55-60 • Measured from the baselines of the territorial sea to no more than 200 nautical miles. Lead to similar claims being made throughout the world. 76 of the UNCLS. or relates to mineral or other non-living natural resources. 21(2) Limitation – Subject to 26(1)(d).
the CS or any area beyond the CS. • To a distance of 200 nautical miles from the baselines of the territorial sea • This is for mineral exploitation Re Newfoundland Continental Shelf Jurisdiction Issues Holding Ratio SCC  Does Canada or NFLD have the right to explore and exploit the minerals and other natural resources of the seabed and subsoil of the continental shelf and the right to make laws in relation to the exploration and exploitation of them? Canada has legislative jurisdiction as NFLD did not have rights by CIL at time of confederation. still limited and recognition was not high. Ensure that minimum standards are met. Notes that this is not an issue of sovereignty but rather “sovereign rights to explore and exploit” • These rights are not considered proprietary. must be shown that. even if the above was wrong. Against: • Authority in Jamaica does not have any authority for Environmental control • Does not help the devel of developing countries. The continental shelf and EEZ. although many claims had been made. • Conclude that international law had not devel’d sufficiently by 1949 to confer rights on NFLD • No retroactivity with respect to laws of the sea – not conferred on NFLD retroactively Court went on to say that. • Lets the trustee (UN) implement management programmes. For: • Concept of “common heritage…” was not around when EEZ and Contin Shelf. should be the common heritage of mankind. upon joining the union. prior to it joining Canada. • Third conference on the Law of the Sea instituted a Moratorium resolution until an international regime could be established. • Regulation should go to Jamaica or some body somewhere. • Resources declared to be the common heritage of mankind. • Moratorium stops all exploitation Seabed Declaration Similar as Moratorium Questions – Oct 25th 1. • For NFLD to be successful. NOTE Deep Seabed Possibility of exploiting certain minerals on the deep sea floor is slowly evolving. NFLD would have transferred rights to the entity possessing external sovereignty – namely Canada. 58 .Public International Law – Fall 2005 Kirk Shannon (a) prescribing a work as “marine installation or structure” (b) making any law of a province applicable even though the law by its own terms is applicable only in respect of a particular area within the province (k) making federl or provincial laws applicable in specific circumstances as are specified in the regulations in the EEZ. Cdn Ocean’s Act • Shelf Includes the slope and the rise but not the deep Ocean Floor. Was only res nullius or sovereignty. Also. like the Deep Seabed. NFLD had acquired rights to the continental shelf ipso facto or by operation of law (without a claim being made – ab initio) Was it CIL? • Canvassing of the different claims made prior to 1949 and work of the International law Commission on the subject which said that.
Gaut under no obligation to recognise Leichtenstein nationality. What do we think? IS this a good idea. de Mestral – Intro to International Law • ‘National’ includes person who are not citizens but who has the right to protection of the state and owes allegiance to it. Note that marriage is not actually a ground for acquiring citizenship – it is based on residence which can be made easier by marriage. place of residence). • Art 25 of ICCPR • Can happen by birth in the state (jus soli) or by birth to parents (blood) who are nationals of the state (jus Sanguinis) or through Naturalization (either directly or derivative by children) where there is minimum period of residence. • Rights and obligations come from nationality Formal espousal of claims of its nationals through diplomatic channels. Genuine connection of existence – interests and sentiments 59 .L. • Not static but rather constantly dynamic. Williams and A. 2. Latvia situation at the end of the USSR. Basis of social fact of attachment (family. What determines nationality • Domestic law regulates the loss and acquisition of nationality • Fundamental aspect of states’ sovereignty • Serious consequences Eg. • It is the fundamental basis for jurisdiction over persons beyond national territory. • From Re Lynch – continuing state of things is required and not a physical fact. Guatemala confiscates his property for business issues. There was a deliberate migration of Russian to dilute Latvian population to the point where 40% of pop was Russian. Membership of an independent political community. Requirements in Canada found in the Canada Citizenship Act. Liechtenstein espouses his claim Determination of whether Liechtenstein can espouse his claim – Standing issue Dominant nationality is not that of Liechtenstein – nationality there was granted without regard to the concept of nationality adopted in international relations. exception is diplomats cannot claim nationality by jus soli. Notion of Union Citizenship • Under the treaty of Maastricht there is a notion of European Union Citizenship. some may refuse to extradite nationals. . Individuals There must be genuine link b/n the state granting the nationality and the individual. What to do after 1991? Revoke nationality? • Involves peace and security • Included in Universal Declaration of HR – In Covenant on Civil and Political rights confers nationality on children. Guat questions legitimacy of how came about. S.A.There are many examples of acts performed by states in the exercise of domestic jurisdiction which do not nexessarily or automatically have international effect Test for Dominant and effective nationality (not merely the verbal preference of the person seeking nationality): 1.Nationality A. Nottebohm Case – Liechtenstein v. imposition of military service. • Note also. Application made to Liechtenstein to become citizens – granted.Public International Law – Fall 2005 • Wealth sharing is not a good idea.C. Moved to Guatemala and lived there for about 34 years. Guatemala Jurisdiction Facts Issues Holding Ratio ICJ  Born a german citizen. Kirk Shannon Part 7 .
For • Diplomatic protection is obsolete in the present time b/c there are so many other methods of addressing the issue. Iran to France living. Akhavan • Perhaps it is a question of remedies – if he were without any other state.Public International Law – Fall 2005 Kirk Shannon 3. no interest in economic activities there. no intention of settling there. Commission dismissed his claim but considered nationality arguments Issues Even if retained US nationality. no prolonged residence. Mature adult comes to Canada and acquires citizenship. Reasoning would have been different as dominant nationality in that case was Guatemalan not that of Liechtenstein. jurisdiction was held despite Hague Convention. How would reasoning differ if he had had nationality of Guatemala? Would have been an issue of standing most likely and would not have been allowed standing. DUAL NATIONALITY 1930 Hague Convention on Conflict of Nationality Laws . Note that they rely on the fact that he only has one nationality – to leave him without it would make him stateless and they seem to take this into consideration. Ratio There does not in fact exist any criterion of proven effectiveness for disclosing the effectiveness of a bond with a political collectivity. They even make mention of the fact that international law on this subject is meant to deal with issues where there are two nationalities vested in one person – not a case like this one. Reciprocal rights and duties Closer factual ties to Guatemala but this is not at issue. perhaps the court would have to allow him nationality of Liechtenstein otherwise he would be stateless. • Art 4 . does it lack the genuine connection required by Nottebohm? Holding No – test is not as strict as argued to be. Goes back as photo journalist and is…… Can Canada bring a claim against Iran? • Hague Convention of 1930 – Art 3 – considered nationality of both states. • In that case.Person with two nationalities may be regarded as a national of both states . (Think Zahra Kazemi and the right of Canada to claim reparations on her behalf even though she is a dual national) Zahra Kamzemi Case.Actual connections to Liechtenstein are extremely tenuous – no settled abode. A/18 below) – should this make a difference? Exercise of agreement b/n two states for this tribunal – should there be a difference if the state goes to the international forum rather than the individual going to a tribunal based on this agreement? • Giving international standing to individuals – would this diminish the importance of Art 4? 60 . Canada may not espouse a claim on behalf of a dual national against the state of another nationality.no diplomatic protection for national against a state whose nationality such person also possesses Against • See case A/18 (below) – interpret Art 4 of the Hague Convention very cautiously as it is more than 50 years old. Has closer ties to Germany than to Liechtenstein.Third state required to recognize only the nationality of a person of where he habitually and principally resides or is most closely connected (art 5) Question 1. Lost German by law in 1940 – US espoused his claim for property damage before the commission. • Distinction b/n diplomatic espousal and individual claims (eg. • Should question of effective remedy make a difference? • Think Nottebolhm. Flegenheimer Claim – Italian – United States Conciliation Commission Jurisdiction Facts RIAA  Dude lost US nationality in 1894 to become German. . • Are there circumstances where Canada should be allowed? For instance if Iran treats you as a Canadian citizen.
eh?). 61 .Article 4 of the Hague Convention (above) probably cannot be used in cases where a dual national. Statelessness Stoeck v. place of business • Different company laws in different countries to recog nationality. Was Prussian by birth but left and never became German citizen. . head office.Everyone has the right to a nationality. Is his property property belonging to a German National? No – not a German National Not a German national but has not other nationality – stateless.Also. etc) and Peru has the right to deny his status as an Italian claimant Iran – US case A/18 Jurisdiction Facts Issues Holding Ratio Iran – US claims Tribunal  Many claims brought on behalf of dual US – Iranian citizens. by himself. • Two UN conventions on stateless people B. Move to UK and was interned and sent to Holland. Public Trustee Jurisdiction Facts  PL wants to be declared not to have been nor be a German national within meaning of treaty of peace of 1919. Corporations Problems: • Variety of contacts with different countries registered. . probably could not use article 4 as this tribunal is working on public international law and cases where nationality is at issue deals with private individs (sort of obiter for us) Allegiance • Duty owed to state while at home or abroad. What is his nationality for the purpose of this case? Brother could not succeed as he was Peruvian – other brothers who were Italian were successful. Is this possible? Issues Holding Ratio Williams and de Mestral – Problems of the Stateless Individ • Art 15 of Universal Decl of HR . in this case. brings a claim against one of the states of his nationality. Went to Germany and has resided there.Public International Law – Fall 2005 Kirk Shannon Canevaro Case – Italy v. certain property effects on his stuff will take place (poetic. If he is. Doses Tribuanl have jurisdiction to hear cases? If the dominant and effective nationality of the claimant during the relevant period was that of the US then a claim can be brought against Iran. Has acted as a Peruvian citizen (ran for senate. One brother was Peruvian by birth but Italian under art 4 of Italian CC – his dad was Italian. • Perrogative of states to adopt own national laws even if makes people stateless • Serious lacuna which threatens the application of the principles of international law. Peru Jurisdiction Facts Issues Holding Ratio Perm Court of Arbitration – the Hague Claim of Italy for money from Canevaro brothers.
This Q was addressed in Barcelona Case. Akhavan Can you use the same test for subsidiaries? Questions – Oct 27th 2. only for its nationals as shareholders but not as the company itself. Case – Belgium v. 62 . • Rejects Nottebolhm test is too difficult. so maybe they did grant standing – then is this inconsistent with Barcelona. Basically that there was nothing stopping the treaty from allowing the US to espouse its national’s interest as shareholders in the Italian company. I can only conclude that our complete understanding is simply not necessary for the exam). (I tried to discuss this with him after class. Would have to weigh shareholders and seat of corp against each other. Light and Power Co. Assets of co were requisitioned…Q whether that was a violation of Italy’s int’l obligations to the U. We will find a solution by saying the siege social is in Canada.Public International Law – Fall 2005 Kirk Shannon Barcelona Traction. where do they vote. high percentage of shareholders in Belgium. Spain Jurisdiction Facts Issues Holding Ratio ICJ  Company incorp’d in Canada. Italy Jurisdiction Facts Issues Holding Ratio ICJ  Italian Co the wholly owed subsidiary of 2 US companies.S. under a treaty giving their companies the rt to control and manage corporations in the other country. Akhavan • Should it not just have dismissed the case on standing issue? Why did it avoid it? Ok. Can the US represent the companies who are basically the shareholders of ELSI. In determining the nationality of a corp. Compare ICSID – Convention on the Settlement of Investment Disputes b/n State and Nationals of Other States. Jus standi (standing) Corporation in this case is a Canadian National. operated in Spain through subsidiaries. Siege Social Test – seat or management or centre of control sounds like genuine link. Bankruptcy in Spain and Belgium shareholders (through Belgium) suing Spain for the company. etc. It seems that the center of control is really where the corporation is registered. However ICSID (page 495 casebook) creates situations in which the right to bring a claim is settled between the host state and the foreign investing company where the nationality may be that of the foreign investment company AS LONG AS there is a real link. Linked question: why should there be a difference b/n a person and a corporation. (and not just the passport – ie center of gravity. he felt that it would take more than a few minutes to explain as it was very complicated. Note that genuine link as opposed to formalistic link in the Barcelona Traction case). navigation and commerce under which the claim is being espoused. • So many countries nationals’ are shareholders – will open floodgates if we allow Belgium to do this. for the purpose of diplomatic espousal of claims a genuine link test should be applied. the Italian subsidiary? No. Electronica Sicula SpA (ElSI Case) US v. Sure the US companies could “control and manage” Italian corporations but that gives them no additional rights then other shareholders under Italian law. Right to bring a claim only if the country with whom I claim a nationality link has ratified this convention. Treaty of friendship. Test performed. • Dealing with subsidiary: rights of the subsidiary were not breached by what Italy did – skips issue of standing.
If subject to some foreign law. no conventional or CIL rules governing other than must apply rules of private international law where applicable CRIMINAL JURISDICTION Possible that Cdn courts could have jurisdiction over the offence but not the person as he would not be located in Canada. The Steamship Lotus – France v. Did Turkey act in conflict of International law? No. Turkish authorities arrested M. Demons. courts will not have jurisdiction.I.e. • In Civil matters. Turkey did not act in conflict with principles of IL because France failed to establish that any such principles exist .Rules of IL flow from the consent of states. a state may legislate over the subject matter of anything within its territory (as long as it is not in violation of international law) • Jurisdiction of national courts cannot be conferred by the sovereign when he has no jurisdiction according to principles of international law. the country has TERRITORIAL jurisdiction (the ship is Turkish. Turkey Jurisdiction Facts Issues Holding Ratio PCIJ  Post a collision on the high seas. and most solid basis of jurisdiction .territoriality is the first. possible that the unlawful act was committed outside Canada and therefore wouldn’t have jurisdiction over the act.France raised three arguments to this effect.Public International Law – Fall 2005 Kirk Shannon Part 8 – State Jurisdiction over Persons Issue here is co-existence with other states. Scope of Jurisdiction In principle. tried and convicted Demons for deaths of eight Turkish sailors and passengers.But. .France has to show that such a violation of IL exists. officer of the watch. if the death takes place on Turkish territory. all of which fail—i. Conversely. jurisdiction over the person (reach of the processes of the courts) Note that judicial jurisdiction is subservient to legislative jurisdiction. Jurisdiction over the crime (reach of legislative power of the state) vs. the basis of jurisdiction is actually the impact of the criminal behaviour on Turkish territory (i.e. there must be limits to a state’s jurisdiction over persons from a legislative and enforcement perspective. • Note the difference b/n prescriptive and enforcement jurisdiction – can prescribe law but that does not mean it can be enforced. rather than compelling Turkey to establish a ground for its national jurisdiction . . Traditions: Anglo-Amer tradition always adhered to territorial principle of jurisdiction (b/c were historically surrounded by water and was hard to escape) whereas Western European followed the Nationality Principle. Therefore. so the impact of the wrongful act was felt on Turkish territory 63 . Territorial effect. the impact of the capts behaviour on the ship which is Turkish territory) .e.There is a valid provision in the Turkish Crim code asserts extra-territorial application of Turkish law . acts and events that might be complained of) A – Subject-Matter Jurisdiction 1. • Also note that there must be jurisdiction not only over the person involved but also the subject matter (ie the objects. Extra-territorial effect on nationals might infringe on sovereignty rights of other states. therefore restrictions on states can never be presumed.
Real and Substantial Link Test 2.This is the model of French.Terrorist acts has generated extensions of criminal jurisdiction on the basis of nationality of the victims: the US has jurisdiction over terrorist acts committed against US citizens abroad (traditionally US only stuck the territorial principle) 64 .The problem arises when the act is not prohibited in the country where it is carried out o These crimes are still prosecutable.Corollary to the reluctance to extradite citizens or nationals. against its nationals.This principle is not as well accepted in international law . Turkish. you cannot be charged under Canadian criminal law . internal waters and their beds. on a territorial basis . 2.I.The state in whose territory a crime is committed has jurisdiction over the offence . In Libman SCC took approach where significant potion of the activities took place in Canada. unless there is some rule of international public order that would prohibit this . so Canada is free to change the criminal code to make more crimes illegal by Can citizens . 3. Nationality principle – Based on nationality of the author of the crime – used extensively in civil law countries. wrongful act has effect on the territory.Can be extended to 200 nautical mile EEZ .But.So.There has been a reemergence of this principle. Territorial Principle .jurisdiction is territorial.Public International Law – Fall 2005 Kirk Shannon Comments . if you commit a murder on a row-boat on the high seas. .Practical limitation coming out of this case is that not state will generally attempt to exercise jurisdiction over matters in which it has no substantial interest or concern.the nationality principle is not contrary to international law. territorial sea and its subsoil.Territoriality can be partially an extra-territorial basis for jurisdiction .Includes land mass. . Child Prostitution (sex-tourism) . continental law… . o Objective or Terminatory Principle: state were act is consummated or the last constituent element of the offence occurs has jurisdiction o Injured Forum Theory: state that felt detrimental effects takes jurisdiction o Diplock’s Theory in Treacy – Any Element theory: any element of the offence occurs w/in state’s borders o Reasonable and Legit Interest: Where state has reasonable or legitimate interest in doing so compared with other states involved.Ex. even in states that don’t normally accept this approach ex. and kill someone on the other side.There has been a resurgence of this approach… Spain requested extradition of Pinochet for crimes against Spanish citizens in Chile . but it doesn’t follow that a state cannot exercise that jurisdiction with respect to events that occurred extra-territorially .The principle is not restrictive and not permissive. airspace above all of the former.Five possible different applications of this: o Subjective or initiatory Principle: act deemed to have been committed in the place where it commenced. the provision in the Turkish Crim code in the Lotus case may actually be a problem . Basis of Criminal Jurisdiction 6 Bases upon which claims to prescriptive or enforcement jurisdiction may be founded – no hierarchical order but some are universally accepted while others are not. 1. Passive personality principle – A state may claim jurisdiction over crimes committed abroad even by aliens.This is essentially the state controlling the behaviors of the nationals of other states – this is a problem! . . If you shoot a gun across the border. both states have jurisdiction over the crime. .e. even if it did not occur there . as of now.
Principle of Protection: . . crimes against humanity and terrorist offences). (used by Canada when victim is an int’l protected persons representing Canada and victim to war crime. 6. or if the offender committed it elsewhere knowing it would cause direct and substantial harmful effects in Canada. Not favoured by Canada. you still are offending US interests .Broad principle. By Agreement . crimes against humanity. territorial integrity and political independence by the offence. humanity crimes or hostage-taking).Recent Rwandese case prosecuting for war crimes in Canada. (has been extended in some cases for functional reasons to the EEZ and the CS). J is based on the prejudice a State may suffer to its security.Ex. (used by Canada for cases of treason. etc.However.E.Some crimes the whole world has an interest in stopping: o Slavery.G. 65 Nationality Principle Passive Personality Principle Protective Principle Universal Principle By Agreement .Erga omnes obligations Based on the crime . planning a terrorist attack abroad) 5. Singaporean law has libel laws that apply extra-territorially the NY times published an article about the president of Singapore – very controversial – attempt to regulate free speech of foreigners in another country .This used to be the most significant area of extra-territorial jurisdiction . (is this what Spain has done against US soldiers for death of Spanish reporter in Irak?) It is largely condemned.A # of treaties grant extra-territorial jurisdiction (Convention against torture) . J of one state within the territory of another state may be granted by agreement. genocide. 1985 Visiting Forces Act – Agreement b/n US and Canada which allows US to exercise jurisdiction over military personnel who are on bases on Canadian Territory. Spanish Trawlers on the high seas. terrorism is being seen as a new ground for asserting this time of jurisdiction (i.The recent shift is towards international criminal tribunals . Plots to organize illegal immigration to another country . Six Bases of Criminal Jurisdiction: Territorial Principle Where the crime occurred is the State that has J. Where J is claimed based on the nationality of the victim regardless of the offender’s nationality or the place of the crime.There have been challenges to this idea o Ex.e.Behaviour abroad by foreigners threatens the security of the state or its fundamental interests .) There is also Lord Diplock’s Any Element Principle and lastly the Reasonable and Legimitate Interests Test which was used in the Libman Case.Ex. Used extensively in CVL countries. Basis of J the nationality of the offender. . ▲This is Canada’s basic position. AKA the System of Protection. war crimes. (What do we mean by occurrence??? Not easy to always say where the crime occurred! In Canada we assume J if the offence were committed in whole or in part in Canada.E. Universal Jurisdiction: . .Public International Law – Fall 2005 Kirk Shannon 4.g. piracy. Counterfeiting abroad – if you print US dollars in Yemen with no intent to circulate them in the US. For serious crimes of int’l relevance which other states are unwilling to prosecute and where the offender is on the territory of the forum state.
Anglo-American states in general attempt to refrain from extra-territorial jurisdiction .Libman argued that b/c the execution involved victims in the US sending $ to Costa Rica.This is the same jurisdiction that the US uses for anti-trust law (usually to protect their own companies) . but the effect is felt in the US so this is enough . Jurisdiction Facts Issues Holding Ratio SCC  per La Forest Libman operated a boiler room in Toronto. Petrovsky  Issue Extradition by the US to Israel of Demjanjuk for crimes against humanity committed in Poland during WWII.Court found planning the fraud was enough of a territorial connection to prosecute him in Canada . The $ would be shipped to Costa Rica.cannot have a strict rule but countries must be flexible.La Forest J – 2 elements – territorial connection.As a basic principle. Canadian crim law does not try to apply extra territorially Unlike Turkish law which binds the actions of all its citizens. Demjanjuk v. Use of the Universal Principle: Eichmann Case  Israel Issue Israel tried Eichmann. o Note that extradition is different in concept to transfer to international criminal tribunals (est under Chapter 7 of the UNC) which is different than an extradition to another state 66 . Jurisdiction to prosecute in Canada? Yes . Libman v. it would be deposited in off-shore accounts. or effect of crime is connected to Canadian territory . for crimes committed b/f Israel existed as a State in other States against citizens of those states.Trusts may occur abroad. Ratio Used the same approach as Eichmann. R. Territoriality is the most important basis for State jurisdiction Overrated because of globalization and the fact that crimes are much more international Trade has expanded such that activities are at close quarters . whether at home or abroad.Perhaps jurisdiction not given to the US b/c he would continue to forum shopping by putting forward the same arguments – therefore practical considerations. B – Jurisdiction over the Person Normally requires custody of human or legal persons Exercising Extra-Territorial Jurisdiction: With State Consent . a foreigner. Ratio Used the universal principle in that war criminals were enemies of mankind. the essential crime (fraud) actually happened in the US . As secondary principles they used the protective and the passive personality principles claiming the need to protect Jews (who make up Israel’s population) as the linking point between the crime and the State. would call Americans to invest in a mining operation in Costa Rica. and applied the universal principle.Accomplished by extradition treaties o These are bilateral matters – states can put whatever they want in them (limited by HR law & jus cogens norms) o Extradition proceedings under the law who has the person. Charged with fraud.There must be a real & substantial link between the offense and the country Comments: .Public International Law – Fall 2005 Kirk Shannon Questions – Nov 1st 1.
aut judicaire “either you give.Public International Law – Fall 2005 - Kirk Shannon - 2 essential elements: o Double criminality – it has to be an offense in the state requesting extradition & the state where they are o Speciality – a person is extradited on the basis of an allegation regarding a certain crime (can’t request extradition on the basis of assault and then prosecute them for political offenses) Outside of the framework of an extradition treaty. by a stateless person who has residence etc. bene detentus” this predates the rise of human rights standards Abduction is always unlawful as it negates conceptions of due process. torture. etc. there is no legitimate way to extradite o Exception: Aut dedere.12 This eliminates any obligation to extradite or afford mutual legal assistance where the person will be prosecuted or punished on account of race. Art. Doc 1998 Purpose: This convention was adopted to remedy a gap in the piecemeal conventions.2 US cases shows different opinions .). against a State or gov’t facility. States are under an obligation to adopt criminal laws to stop these activities. There was nothing to deal with terrorist bombings that were not associated with any other terrorist convention crimes. Art. 11 States that none of the offences in art. U.) ex.12…. Art 8 calls for. At least with respect to your arrest.N. In these cases. shall be obliged to submit the case for prosecution. 1949 and Montreal Convention (aircraft security) but if no one is willing to prosecute the person. Art.2 ways this can happen: o forcible abduction direct if done by state agents indirect if non-state agents do it o induce criminal to come onto your territory usually you get a plane to stop on your territory where you have a warrant o both have been used by USA . or prosecute the person themselves for major international crimes (eg. or you judge” “Extradite or prosecute” rule states have to extradite. Consequences of Abduction: . Note the use of different bases of jurisdiction over the offence and concepts of aut dedere and International Convention for the Suppression of Terrorist Bombings. ▲Different punishments for each State. Exercising Extra-Territorial Jurisdiction: Without State Consent . Geneva Conventions. Convention Against Torture (or other conventions dealing with similar subjects) acts as replacement for extradition treaty.however…art. or by a national) and optional (committed against a national. religion. 2 are to be regarded as political offences or inspired by political motives for the purpose of extradition or mutual legal assistance…. or political opinion. if state does not extradite. but once they are here they may be judged “male captus. they will remain free. nationality.What are the implications based on different charges – ie Fraud versus Crimes Against Humanity? 67 . 8 Mandatory requirement to extradite or prosecute without undue delay. 4 Each State is to adopt criminal offences punishable by appropriate penalties in their domestic law. ethic origin. hijacking. Art. Why? Any why hasn’t Canada implemented the treaty yet despite this article requiring it? Art.Alvarez overturns Toscanino – since it is the US Supreme court o 1st approach: we don’t care how they got here. 6 The basis of jurisdiction. both mandatory (committed in the territory on a flag-ship.
and then via similar acts of Brazilian cops (tortured. Issue: Can the US legally prosecute someone brought to the country illegally? Held: No. . .It would have made a lot more sense to prosecute him in Germany or Poland on territoriality principles .The court found it was there was a nexus between the Israeli state and the Jewish people which justified the jurisdiction on the basis of the protective principle (and that it could be applied to a ‘people’) .But. the same rule was adopted with respect to an abduction from Illinois to Michigan.lower court held that manner of bringing T to court was immaterial . Comments: . Machain was a doctor accused of keeping a DEA agent alive while others tortured him.found that it had to be consistent with due process guarantees .Basis of jurisdiction erga omnes – universal jurisdiction over the crime significant . and a DoJ agent was present. the D is entitled to some relief .Abduction in a foreign state is also a breach of that state’s sovereignty - United States v.In Frisbie v. Brought to Israel & tried for crimes against humanity Notes: . sleep deprivation. 1992] Facts: US kidnapped A-M in Mexico. Collins.It created crimes after the fact (against non-retroactivity of crim law) – this is a troubling aspect of the Nuremberg trials . and the US had an extradition treaty with Uruguay. and indicted him for the murder of a DEA agent in Mexico. US Attorney never attempted legal extradition.Thus. threats. SC rejected Ker’s argument that his abduction in Peru violated the 14th amendment due process guarantee . specifically to enable the int’l community to prosecute people like Eichmann . Alvarez Machain (US SC.Public International Law – Fall 2005 Kirk Shannon Eichmann Case (1961) Facts: Eichmann. He alleged he had been brought to the USA in violation of due process guarantees Issue: Can the US legally prosecute someone brought to the country illegally? Held: Yes. Reasoning Court hold that the requirement of due process obliges a criminal court to divest itself of jurisdiction over an accused whose presence has been illegally obtained. Reasoning: 68 .it is a significant challenge to have a fully justified explanation of Israel’s position in international law United State v. SC has since then extended the concept of due process to include pre-trial conduct of law enforcement entities (wrt evidence) . if the charges of kidnapping are proved.Much of the norms we have today were developed after WWII. Toscanino [US CA 2nd Cir.past US cases held that violation of treaty to bring someone to justice affects the right to try someone in a domestic court.relates to findings that illegally obtained evidence is inadmissible . it is dubious that these were crimes at the time of criminal law .Second basis – nationality of victims – but during the war Israel didn’t exist so they didn’t really have Israeli nationality . 1974] Facts: US brought T to US via the use of agents of Uruguayan cops whom it paid and instructed to act illegally.However.In Ker v Illinois. a Nazi.civil rights provisions go beyond the conduct of trial – they extend to pre-trial conduct . etc) where US Attorney knew it was happening. fled to Argentina & was captured (kidnapped) by un-official Israeli agents.
by bounty hunters.principle of “male captus.court holds that abduction for an nation with an extradition treaty does not provide a defense. The punishment of it international crimes is so compelling that illegal rendition should never be a bar to prosecution. battery?? Consider amount of money a police officer would have.there is no justification for disregarding the rule of law Comments: - - Canadian cases fall in line with the Majority judgment here (R v. and the US courts are competent to try the case . not the individuals . Dissent: UD violated territorial integrity of Mexico. Illinois b/c they were bounty hunters.treaty was designed to cover the entire subject of extradition .Possible civil remedy – trespass on the person.Distinguished from Ker v. Due process is negated by abduction and therefore there is a strong argument against it.this treaty does not exclude other means of acquiring defendants beside extradition treaty was not violated . Question 2.Canada o Jaffe was kidnapped from.The decision is completely at odds with the practice of other states . and thereby undermined the purposes of the treaty. Does the Charter affect this now? . brought case before the court o still on docket . . Florida had no problem with it o After years of protest.Because the abduction didn’t violate the treaty.Highly criticized decision o Why have an extradition treaty if you can just get around it o The treaty creates rights & obligations for states. Re Hartnett and the Queen.if the treaty did not prohibit kidnapping.Could the official who “kidnapped” the individ be tried.Take into consideration when sentencing. . .EU Court of Human Rights o Famous territorist o alleges he was kidnapped. Walton.lower courts upheld motion to dismiss the indictment and repatriate A-M. . Re Hudson and the Queen). At the end of the day what matters is the question of proportionality… 1st What should be the legal consequences attached to abduction? • Related to the degree of violations in due process? • Related to the type of crime? • Related to the strength of the claim of J over the individual? 69 . they returned Jaffe to Canada o Canada then petitioned for bounty hunters to be extradited & tried them here Other Possible Remedies For the Individual . it would be mere verbiage . bene detentus” is valid . Reduce sentence for accused. Can abduction ever be lawful? No – it negates due process A review of this material suggests that the subject of illegally obtained J over a person should be seen as a last option. Basic idea is Proportionality Remedy must be proportionate to the crime of which he is accused. the Ker-Frisbie rule applies—regardless of violation of IL .Public International Law – Fall 2005 Kirk Shannon .
With rise of HR law. Geneva Conventions have mitigated these deaths in some way. Eichmann…. • Note the lines b/n the two are often blurred Principle of proportionality – means employed to achieve military object must be proportional to the incidental civilian casualties or damage caused to civilian objects. Does not matter if it is a just war or not. look to history – horrors of war might not have been so horrible when the horrors of life were also there. ICRC. ICL was reliant on ad hoc tribunals and prosecution in domestic courts. Distinguish b/n civilians and combatants (distinction principle) Distinguish b/n civil things and military objects. – o jus in bello . ICTY all apply these laws • But…have civilian deaths gone down? No – progress of technology. Also. o jus ad bellum – Regulates the right to wage war W/out the ICC. Relied on the indirect enforcement by domestic courts of acts proscribed by international criminal law and good faith of bilateral treaties and multilateral conventions Does it make sense to regulate warfare? • Wishful thinking by aristocrats? Does war not just represent the failing of humanity and regulation is useless? • St. concept of state being in violation is not only option. frustrating any attempts to legally obtain J over him? Does it matter that the crimes were against humanity? Does it matter that they were committed against persons whom Israel was claiming J over under the protective and passive personality principles? 2nd What are the remedies for a violation? (▲Distinction b/t rts of the individual and rts of the offended state!) • Release of the offender? • Criminal charges brought against state for kidnapping? • Civil charges brought against the state for trespass of the person? • Official apology to the offended state for having violated their territorial sovereignty? Does the Cdn Charter have any impact on the rule mala captus bene detentus? In 1973 Canada applied the rule with a small dose of concern for due process and civil rights of the accused. ICTR. • IHL – Laws of war – regulated the use of force. Growth in population – might be proportional. The Geneva Conventions embody wishful thinking about the capacity of law to regulate the lawlessness of violence No – makes sense. To date there has been no case on this point. Part 9 – International Criminal Law November 8th at 5:30 – Coomaraswamy Lecture – Sri Lanka Relationship b/n IHL and International Criminal Law (ICL) – Intersection of IHL when violations of IHL give rise to individual responsibility. Genocide. history has shown similar horrors but perhaps under different names. Petersburg convention (dumb-dumb bullets (expanding)) and first Geneva convention – were the principles behind them useless? Questions 1. can be against the individ. • Realities important – training of soldiers incorporates norms of Geneva Conventions.Public International Law – Fall 2005 Kirk Shannon i.e.Regulates conduct at war – means and methods of warfare. Also. 70 .does it matter if Argentina was refusing to extradite him. International law reflects the convergence of the penal aspects of international law and the international aspects of national criminal law. Also. With Crimes against Humanity.
1928 – waging aggressive war was a violation of IL 71 . Also. War Crimes See above – Geneva Convention and Principle of Distinction 3. as a general rule. then they can be used. Must be looked at in a different context. Most of these conflicts are not spontaneous eruptions of tribal conflict but rather deliberately incited. Or do you look for CIL and see that states • Apology to power aspect of International Law • Apology to international ideals – • CHumanitarianL applies to the issue.000 people in jail with 40 magistrates. But…May be exceptional circumstances where the survival of the state is at stake. Akhavan: Nuclear Weapons advisory opinion Issue: proportionality and distinction – nuclear weapons kill civilians indiscriminately – • The most indiscriminate weapon. Limitation – had to have a nexus with war – Art 6(c) of the Nuremburg Charter – committed in connection with War Crimes or Crimes against peace (done in order to restrict scope of CAH so that Soviets and others couldn’t be haunted by it) 2. Legal systems are based on habitual lawfulness. • Provide only a reference point – are not broad enough. Called the IMT – International Military Tribunal London Agreement in 1945 and Moscow declaration in 1943 where intention to prosecute. look to the possibilities – in Rwanda 30.Public International Law – Fall 2005 • History – principle of chivalry in history – honourable to be a warrior. Is criminal law actually possible or is a TRC a better option? International Criminal Law Nuremburg as the foundation of modern IC order. terrorism really change anything? • Does it make sense to apply notions of domestic law to these situations of war where combatants are possibly indoctrinated and brainwashed – are the conventions really going to do anything. Kirk Shannon Yes – they’re nuts. Legal basis for adopting the Nuremburg charter Law of the occupied powers was basis for adoption of the charter. Must look to the context and who creates the context and see whether the criminal system fits. Can’t address issues of toady. Crimes Against Peace Jus ad Bellum – when it use of armed force lawful Until WWI – no one would question the right to wage war Kellog-Briand pact ..g. Crimes Against Humanity Radical innovation – Under CIL at the time the way in which a gov’t treated it’s own citizens was not a violation of IL. for e. • The most disproportionate impact. Look to Principle of Distinction. They are antiquated. Churchill and Stalin both thought people should just be executed. Previously Treaty of Sevres post WWI in Turkey. Agression is prohibited b/c not every country goes to war. Ultimately decide that. Truman and Justice Jackson pushed and got Nuremburg. Nucs are bad. Killed for a living. Massive jurisdictional gap. • Advisory opinion written by Judge Shi Permanent 5 members of SC have nuclear weapons so what do you do? Under IHL would make sense to say that they are illegal. • Truth telling process • Making incredible events credible (Justice Jackson) • Di-Nazification of post war Germany. • Can the norms operate in practice? Does body of law on. Under LofN treaty was prepared but never entered into force. Criminal Law – 3 crimes the court had jurisdiction over under Art 6 of the Nuremburg Charter 1. Ultimately replaced by treaty of Lausanne.
etc. Imre Finta Jurisdiction Facts Issues Holding Ratio SCC  – per Cory J. v. Austria.71) the act committed has to be defined as a war crime or crime against humanity (otherwise it must have been committed on Canadian Soil per the territoriality principle and s. which has been recognized by the civilized world. not just under internal and external armed conflict (though Nuremburg dealt only with external armed conflict) but also outside situations of armed conflict. sent them to camps.71) – jurisdiction over international crimes based on principle of universality. It must be under ICL. How to interpret s. 7(3. beyond the murder there must be foresight and 72 . Crimes against humanity involve murder. unlawfulimprisonment – what transforms them into crimes against humanity? • Must be committed against a civilian population • ICC statute art 7 when committed as part of a widespread or systematic attack directed against any civilian population • Perp does not have to know that his actions were inhumane for them to constitute a crime against humanity. kidnapping. etc… • Akhavan . In 1944 was involved in deportations of Jews. Domestic Prosecutions Based on Universal Principle of jurisdiction – domestic prosecution can go after individs whose victims are not of domestic nationality and the crime did not take place domestically. rape.Victor’s justice – what about the atrocities committed by the allies? Post Nuremburg – UN instructed (in 1946) to draft statute for ICC – did not get drafted and brought in until 1998 after ICTY in 93 and ICTR in 94. • Note that the tribunal says this is not just victor’s justice but adherence to international law. • In 1995 there was a convention on war crimes in Canada (Deschênes Report) R.6 of the CC). Finta was part of a Hungarian paramilitary group. robbed people. Canadian Criminal Code • Code has been amended in 1987 to incorporate subject matter jurisdiction of ICC • S. • State immunity cannot be considered a defence – international crimes are committed by men not entities and they must be held to account. • Renounces wars of aggression based on the Kellog Briand pact of 1928 and condemns Germany for invading Poland.71) – what is basis for jurisdiction? What distinguished crimes against humanity from a comparable crime under the CC In order to have jurisdiction over the matter under s. Nuremburg War Crimes Trials Jurisdiction Ratio  The making of the Nuremburg charter was the exercise of the countries to which the German Reich unconditionally surrendered and their right to legislate over occupied Germany. 7(3. Does this act constitute a war crime or crime against humanity. 7(3. • Cory says we cannot exercise jurisdiction over murder. enslavement. So. which has no connection to Canada.Public International Law – Fall 2005 Kirk Shannon Note that under contemporary international law. etc.
Other Sources Treaties against torture. narcotics smuggling and terrorist activites. • Murder itself does not have to be widespread – perp could commit single murder but is aware (has knowledge) that it is a part of a bigger plot. • Also include civilians who are in the hands of combat – protected persons. Means: Involve the type of weapons. religious and national (political groups were excluded). apartheid. Genocide Convention: • Adopted in 1948 • Defn – Art 2 – killing. Racial. • No resistence needed. genocide. More subjective analysis. • Accused in this case. Victim is the group and not the individuals. • Original 1949 conventions only dealt with international armed conflict but Art 3 has since been adopted which outlines minimum standards of human treatment in situations of internal conflict PROTOCOL I and PROTOCOL II In 1977 – Protocol I and Protocol II merged the two laws – Hague and Geneva • Protocol II deals with internal conflict – is in force but lacks widespread support of Geneva Conventions and Protocol I o Applies to internal armed conflicts b/n gov’t forces and other armed groups. Requires the intent to destroy a group as such. serious bodily harm. ethnic. Methods: Type of tactics (carpet bombing) • Conventions of 1899.Public International Law – Fall 2005 Kirk Shannon calculated malelvolence – cruelty and barbarism is required. Why do we really care if they were cruel and barbaric. and 1907 Geneva Law Sponsored by the ICRC in 1949 and built on Geneva Convention of 1864 and Hague Contentions of 1899 and 1907 Those who are in the hands of an adversary – POWs. Additional mens rea of “knowledge of the context” • Problem of domestic courts dealing with ICL they do not understand what they are really dealing with. Look objectively for state of war • Only need partial occupation of a country. 73 . (very low standard) • The accused must have intended the factual quality of the offence but normal m/r would be aqequate Akhavan • Is Cruelty and Barbarism needed? Deportation is included in list of crimes against humanity. Additional mens rea is required but not cruelty and barbarism. Crime of Genocide Hague Law Means and methods of warfare. • Protocol I applied laws to liberation struggles. Look to the objective context for the crime against humanity and then look to the m/r and a/r for murder. cannot be assumed to really know that they were part of a plot to exterminate an entire race of people. • No formal declaration of war is needed. • Four Geneva conventions dealing with o Wounded soldiers o Sick and shipwrecked sailors o POW’s o Civilians in occupied territories. (very high standard) La Forest [Dissent] • Cruel and barbaric not needed. Persons who are hors de combat. • Special intent – high standard of criminal intent. o People fighting against colonial domination and alien occupation.
• They also found that ratification was not necessary to bind a State to IHL given its reflection of the most universally recognized humanitarian principles. • The CIL principle of neutrality (that protects the rights of neutral states from warring ones) is applicable to all int’l armed conflicts and therefore to the use of nuclear weapons. That the rules represent the normal conduct of states that is required. turned to general principles of international humanitarian law applicable in armed conflict and of the law of neutrality. Convention Against Torture: • 1984 • Mental or physical and severe in pain and suffering • Inflicted by persons acting in their official capacity – limitation • States must take action to prevent in their territory • Provides for Universal Jurisdiction A Code of International Crimes • After debates and draft codes that have been discussed and left in the dust for many years. HOWEVER. despite the ease in which the law extends to these weapons. Despite what appears to be a strong reluctant in the face of seemingly strong contradictions b/t the fundamental principles of IHL and nuclear weapons in general. They find that despite the fact that nuclear weapons could not have been in the minds of the creators of the conventions that IHL clearly extends to nuclear weapons. As concerns the principle of neutrality: • Some argue that the effects of nuclear weapons are un-containable and therefore violate this principle. Were a social group but that was replaced by a conception of race. religion. having found no conventional or customary rule on the illegality of the use of nuclear weapons. in which its very survival would be at stake. 51 of the Charter of self-defence. etc. • They canvassed the above conventions to ascertain that since the beginning of IHL there has been a prohibition on certain types of weapons that cause unnecessary suffering and pain to combatants or had an indiscriminate effect on combatants and civilians. others that the use is subject to the same scrutiny as other weapons and the cost/benefit must be weighed. • Art 2 provides for individual responsibility for crimes covered by the code. the conclusions to be drawn from this application are difficult and controversial (here we see what looks like the ICJ’s apology for power as it blocks humanitarian ideals): As concerns the defence of civilians and combatants: • Some argue that their use should be prohibited. 1996: To what Extent are Nuclear Weapons Illegal under IHL? The ICJ. • ICC statute is something entirely separate.Public International Law – Fall 2005 • • • Kirk Shannon • Destruction may be in whole or in part Relatively weak means of enforcement except that they look ahead to international tribunals to enforce them Imposes obligation on states parties to prevent or punish genocide Rwanda – question whether applied Tutsi’s had same culture. Questions – Nov 3rd 74 . a Draft Code of Crimes Against the Peace and Security of Mankind was given to the GA in 1996 – has never been adopted or voted on. There was also the argument for their legality of art. the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence. • Art 1(2) recognizes the criminal responsibility of individuals for crimes against peace and security of mankind even where domestic law does not. Based on Belgium conception that ruling class was different race. The Nuclear Weapons Advisory Opinion.
Nothing inevitable about genocide.but not going to intervene. is all wrong! Incapacitation? This makes sense based on the context in which these mass atrocities are usually instigated by cold. arms embargo. o SC was seen as the pivot of the collective security system • Judges elected by the GA from list submitted by the SC from nominations from members and non-members with permanent observer missions at the UN. • International community refusal to intervene militarily – so they set up tribunal. • Only after WWII did we stay the hand of vengeance and put people on trial…but…victor’s justice – allies not put on trial. • Incapacitation – appreciate the context of massive prosecution.. calculating persons who are better incapacitated. • Prosecutor’s staff appointed by the SC on recommendation from the prosecutor • Imprisonment is limitation of punishment but property can be ordered returned to rightful owners. Former Yugoslavia • Under UNC arts 39. etc. The Geneva Conventions embody wishful thinking about the capacity of law to regulate the lawlessness of violence 2. • ICTY puts everyone from all sides on trial…. etc. Understand the genocides as criminal conspiracies. Significance of ICTY 75 .Public International Law – Fall 2005 Kirk Shannon 1. There is the argument of “General Prevention” which claims that the goal of the tribunals isn’t so much to deter (b/c of the irrationality that can create the crime itself) but focuses more on the subliminal messages the tribunals send about crime → corruption. blockade. Accepting crimes on the ground and then punishing. Why use the SC to establish a War Crimes Tribunal • It was quicker to do this. • Examine deterrence in both the domestic context and the context of interntiaon • General deterrence through and socio-pedagogical element of the criminal justice system (teach society). Deterrence? Can really question whether of not these deter future actions. Subliminal inhibitions against crime. child abuse. The Finta case is a travesty of justice and inconsistent with the Nuremburg precedent. Punishment only after the fact. Is it really good enough that we just impose victor’s justice on the criminals after the fact rather than intervening? Well no but it might be better than nothing. B – The Ad Hoc Tribunals as Precedents Atrocities in Rwanda and Yugo called for immediate action on an ad hoc basis – tribunals set up. Tribunal was set up to deal with o Art 2: Grave breaches of Geneva Conventions o Art 3: (hague law)Violations of laws or customs of war o Art 4: Genocide o Art 5: Crimes Against Humanity • Chapter VII allows for the SC to taken enforcement measures (whereas the GA cannot – it can only make recommendations) o Typical enforcement measures – Authorization of force. What are the objectives of these tribunals? Retribution? On the ground this appears to be the most valid objective. 41 and 42 it set up tribunals and other sanctions • Based on Resolution 827 of the SC under Chapter VII of the UNC.
Namibia Advisory Opinion and another case. Statute of the ICTY Drafted by the office of legal affairs at the UN. 76 . • To argument that this tribunal could not be impartial as it was set up by a political body – but this happens world-wide Extract #2. This is not an eg of the UNSC doing anything it wants. It is a problem in law generally. • Art 41 of the UNC is clearly suited to this action and this situation is clearly suited to adjudication.Public International Law – Fall 2005 Kirk Shannon Imposed criminal jurisdiction on states without their consent. They said was not opinio juris……but they are dumb.’s 1949. Reason that it was successful was b/c there was understanding that you could not let perps walk around freee and still have peace and stability – HR. SG was going to apply only customary law b/c it is applicable to all states and has an element of universality (even though Yugo had ratified every HR convention under the sun). Akhavan • Can it be impartial – even though a fundamentally poltical organ. It was revolutionary concept. The Prosecutor v. Dusko Tadic Jurisdiction Issues Holding Ratio ICTFY  Was the tribunal properly established and have subject matter jurisdiction? Yes • Based on decisions in the Lockerbie case. Answer – does not have to be a legislature but can be SC. 2 of ICTY Statute) provision of the G. Extract #1.C. touchy feely combined with real politique. Is Selectivity a problem. Problem – is this an international armed conflict? This type of conflict with the disintegration of a country Solution: No incorporation of the requirement of international armed conflict Office of legal affairs (conservative) did not include Common Art 3 in CIL in the statute which would have solved the problem. • Is the ICTY established by law? Provision? ICCPR art 14 everyone shall have a fare and public hearing by competent tribunal established by law. • Reference to economic etc in Chapter VII is merely demonstrative and not exhaustive. Why did you not choose another country for the tribunal. Relevance – ▲How valid is this source of power in Chapter VII of the Charter to establish the ad hoc tribunals? Demonstrates that the ICTFY was property established and had subject-matter J. • Not a justiciable issue but one of policy and of a political nature. • Not for this trial chamber to judge the reasonableness of the acts of SC. Problem with having a treaty is that the former yugo would not consent to a treaty when its own head of state would probably be prosecuted. • What about fact that tribunal was fundamentally selected for Yugo. Appeals chamber would later include it under art 3 of the statute which says “include but not limited to”. Yes and no. Adopted by UN res 808 • Subject matter jurisdiction matter of some controversy. it is without doubt that with respect to the former Yugo the SC did not act arbitrarily • Conscious decision not to have judicial review of the SC. limited to the context of int’l armed conflict. • Subject matter o Grave breaches of the Geneva conventions of 1949 where there are core provision (wilful killing) . NB: there is a requirement that the conflict be an international conflict. Art 147 of the Convention requires states to exercise jurisdiction over perpetrators of grave breaches of the core provisions. Relevance – The applicability of the “grave breaches” (Art. Reference to independent judges with appropriate structures and non-interference. there seems to be no basis for the tribunal to review the actions of the Sec Council. But that does not mean that this organ cannot dispense justice.
Public International Law – Fall 2005 Kirk Shannon The ICTY did require international armed conflict – Nexus b/n JNA and the Bosnian Army made it an international conflict. Dusko Tadic Jurisdiction Issues Ratio ICTFY  Applicability of the “grave breaches” provisions of the Geneva Conventions. could signify a change in opinio juris leading to a change in CIL. torture. ad hoc tribunal was set up. Delalic was the commander. If conflict is deemed internal. They would not. Move away from formalist to ensure that persons are protected by law despite strict substantive requirements The Prosecutor v. • B/c it was an internal conflict. The Prosecutor v.ICTR After the genocide was all finished. crimes that could be prosecuted were limited to: o Genocide. plunder of private property All guilty This must be regarded as an international conflict as external forces were involved in internal conflicts (most especially the forces of the JNA) Therefore.Subordinates have committed or are about to commit crimes o Knew or had reasons to know that persons under command or control were about to commit or had committed o Failure to act to prevent or to punish. be able to challenge prosecution for genocide or crimes against humanity. Despicable acts performed by these men in positions of power are disturbing RWANDA . Geneva conventions apply and statute of Tribunal is applicable. Mucic. however. • Elaborate comparative law exercise to import from other jurisdictions. perpetrators might be able to challenge accusations of war crimes and grave breaches. • Akhavan – would never have been set up without ICTY – there was European and more likely to happen. causing great suffering. o Crimes against Humanity 77 . • Look to Art 28 of the ICC statute – person in position of command has: o Command and control (de jure or de facto) over subordinates . 1949 Interpreting article 2 of the Tribunal’s statute which deals with grave breaches of Geneva conventions as dealing only with international armed conflict is correct – Provisions in this article do not include those persons or property coming within the purview of common Art 3 of the four conventions (which deals with internal armed conflict) • Statement by permanent member of the SC that art 2 is not limited to armed conflicts is nothing but an opinion and. Delic & Landzo – The Celebici Case Jurisdiction Facts Issues Holding Ratio ICTFY 1998 Celebici was a prison camp where the four accused were stationed. All four were charged under art 7(1) of the Statute (for murder. at the request of the Rwandan non-permanent member of the SC. Delalic. rape and other horrible things) and Mucic and Delalic were also charged b/c of his responsibility as commander. with time and other opinions. • • Notion of Command Responsibility How do you attribute responsibility? • What about a case where there is no direct involvement but you were there.
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o Violations of Art 3 common to the Geneva Conventions (SC just put common art 3 into the statute dispite office
• of legal affairs. o Note: no grave breaches b/c not international armed conflict. No armed conflict but can pursue whenever committed as part of a widespread or systematic attack against any civilian population Note Rwanda actually voted against resolution 955 as it disagreed with a few things including Rwandese control and lack of death penalty.
For Akavan the only reason the ICTR existed is because of the precedent of the ICTY which only existed because the crimes were being committed against Europeans.
The Prosecutor v. Jean-Paul Akayesu
Jurisdiction Facts Issues Holding Ratio ICTR  Elected bourgmestre of Taba commune in 1993 – traditionally had extensive powers in Rwanda. Indicted on 15 counts. In his position, he tried to stop the killings until April 18. 1994 but then was present at them and ordered some of them. Is Akayesu guilty of genocide, inciting genocide and violations of art 3 common to conventions? Yes on crimes against humanity, genocide and inciting genocide but not on art 3. • Special intent (second mens rea) had be proven. Equation of all tutsis with infiltrators satisfied that requirement. Intent was inferred from the circumstances – every man, woman and child was killed without exception. • Killing had specific objective – to eliminate the Tutsi not b/c they were members of the RPF but b/c they were Tutsi. • Fact that genocide occurred while the RPF and RAF were in conflict cannot be mitigating circumstance. • Note that for this to be genocide (a convention which Rwanda accepted by legislative decree in 1975) the crime must not be committed against an individual(s) b/c his is an individual but b/c he is a member of a group. • All rapes were committed against Tutsi women with intent to kill afterwards • Accused repeatedly made statements calling for the commission of genocide. • Prosecution failed to prove BRD that he was a member of the armed forces and that he was duly mandated to support and carry out the war effort.
Akhavan • Context that he made this decision to change his mind and start killing? Should this make a difference? Should duress play a factor? • Jurisprudence on crime of rape and sexual violence. Nuremburg deos not contain a crime of rape neither did Geneva conventions. ICTY made reference in relation to Crimes against humanity. [see art 7 of ICC statute for newer update which is vast improvement) o Crime of rape can constitute serious harm and can fall within definition of genocide o Some womens’ NGO’s approved and others did not. Problem is that then rape is only bad when constitutes genocide not in and of itself.
C. The International Criminal Court
Rome Conference prior to adopting statute of the ICC in 1996 and 1998 had divides over • Which crimes • Automatic jurisdiction for the ICC? • Would certain states have to be party to the statute – if so, which ones. • Would the prosecutor be able to initiate prosecution? • Role of the SC? With momentum of the ICTY and ICTR – ICC. International Law Commission re-initiated process in 1994. Adopted by Rome Statute.
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Subject matter jurisdiction • Core crimes of genocide, war crimes, crimes against humanity (broadly accepted) • Do we include the crimes of aggression? US didn’t like. Compromised solution was to include it but not to define it. • Terrorism was controversial. Not included • Narco Trafficing. Initiated this process when Trinidad and Tobago said that they had problems prosecuting b/c druggies had more money Not included • Opt-in provisions? Not included. No reservations are possible. Basis for jurisdiction • Controversy. • Germany said universal jurisdiction. US didn’t like. • Compromise was that territorial state or state of nationality gives jurisdiction. US didn’t like. Wanted it to be both territorial state AND state of the national. • US has solved problem by Status of Forces agreements. • Referral of the Security Council was another basis for jurisdiction. Means for triggering jurisdiction • State referral – art 14 of the ICC statute. [Problem is that only political interest will bring about this] • Security Council referral (art 13b). They can refer under Chapter VII. Only basis in cases like Sudan where state is the actor and has not ratified statute. • Prosecutor acting proprio motu – initiative of the prosecutor. Matter of controversy. Practically constrained as, without peace keepers or state help, how are you going to conduct investigation. Art 17 of the ICC statute There is no primacy of the ICC. Notion is one of Complemenarity with national courts. Only when national courts are unwilling or unable • Unable – judicial system collapsed. Many majestrates were tutsi and had been killed, etc. Problem: Would it not better to invest in capacity building and build up the judicial system • Unwilling: Milosovic was head of state and ain’t willing. Problem: You have to have two trial – one is looking at the judicial system of the state on trial and another the crime. This is problematic. STATUTE of the ICC • Complementary to national criminal jurisidictions (art 1) • Seat at the Hague • Court has international legal personality (art 4) • Crimes limited to most serious crimes of concern to international community as a whole (art 5) • Jurisdiction only with respect to crimes committed after entry into force (and after entry into force in each state unless specific declaration made) (art 11) Art. 6 Genocide. Identical to Statute for the Ad Hoc Tribunals and the Genocide Convention. Art. 7 Crimes against humanity. This has been further developed over the Ad Hoc Tribunals, extending beyond a state of conflict and adding a number of additional meanings such as “forcible transfer of population, severe deprivation of physical liberty, a number of gender crimes such as sexual slavery and prostitution, enforced disappearance and the crime of apartheid. Art. 5 Crime of aggression, one of the areas of the court’s J has not yet been defined. Art. 1 and 17 Element of “complementarity” by the ICC to national courts. The ICC will only take J where states are unwilling (art. 17.2 = question of due process being denied) or unable (art. 17.3 = national judicial system has collapsed) to do so. This can be contrasted to art. 9 of the ICTFY which gives primacy to the ICTFY over national courts. This
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approach was refused in Rome.
Part 10 – Protection of Human Rights
A) Individual Rights - Emergence of principle of self determination has moved us away from principle of effectivity – HR making inroads - Use of force – Genisis of that norm lies - Universal jurisdiction revolves around international crimes which are the counter-part of HR law - Charter of rights and freedoms and ICCPR HR Law is highly intrusive - Regulates areas of gov’ts which have traditionally been within the domestic jurisdiction of states Historical - Skeptical of universality of HR lying in historical antecedents - Westfalian nation state system – focus on state sovereignty. Notion of HR was entirely secondary to the notion of the sovereign being able to do as he pleased. - No reference to HR in League of Nations covenants (sole exception of mandate system) Interwar period – some treaties to protect minority rights - ultimately not successful Prior to WWII, positivism was ascendant. Sovereignty was tops. Excesses of the WWII which shocked the international community to moving to natural law concepts moved to Grotian concepts of international law. • Crimes against humanity emerged to deal with problem that perpetrators and nationals were of the same nationality – could not fall under the laws of war. • When UN charter drafted, no automatic assumption that HR should be part. o Result of lobbying that purposes and principles of UNC included HR in art 1 “promoting and encouraging respect for HR…” o Considerable divergence of views as to whether HR should be content of international law and what the content of those rights should be
1) Intro The concept of state sovereignty was largely incompatible with the adoption of HR standards • Holocaust and WWII acted as a catalyst for the rise of a movement seeking to integrate HR standards. • UNC entrenches HR as one of the purposes of the UN. • In 1948 3rd committee of the UN produced a draft of the Universal Decalaration on HR (UDHR) o Initially, Canada voted against draft with six Soviet Bloc states – changed its mind later on and voted for it. Canada had felt that it would have to allow Marxists and Jehovah’s witness into gov’t. Oh-no…. o At time of adoption there were 56 member states. (Now there are 185 member states) Third world at the time was under colonialism. o Abstentions (of which there were 8) came for different reasons
Accusations that UDHR was founded on western principles and did not deal adequately with collective rights and duties. SA was worried that UDHR could become a binding norm of international law after being elevated.. Saudi Arabia – concerned with inclusion of the right to change one’s religion or belief (contradiction of the Koran)
Would the outcome be the same today? Perhaps there would be more of a balance b/n social and economic rights. Might look more like the African Charter. Note that UDHR was not binding….but eventually become core of CIL.
Declaration regarding non-self-governing territories and the international trusteeship system. Ideological differences delayed the commissions writing the UDHR. Inalienable rights. Eventually had to have three instruments b/c of the debate b/n Soviet Bloc and west. • ICESCR and ICCPR are complemented by o Genocide Convention o 1966 International convention on the elimination of all forms of racial discrimination (CERD) – largely in response to apartheid in SA o 1979 Convention on the Elimination of all forms of Discrimination against Women (CEDAW) – significant reservations have been entered. Apolitical – or. Not really universal values Articles of the UNC promote HR and allow for UN bodies to make decisions based on the promotion of HR – including decisions that are based in the Econo and Social Council. 17 and 26 of the ICCPR 81 . But…this smacks of cultural imperialism. you can torture. Social security. Education Resource driven – progressive rights Art 2(1): Agrees to take steps “to the maximum of its available resources…” Political in nature – e. Cannot argue that b/c of inadequate resources. Obviates the need to enter the debate of culture o Principles: Natural law position.: o ICCPR – 1966 Negative Rights Expression Prohibition against torture Not resource driven.Public International Law – Fall 2005 • Kirk Shannon Sources: Is it more appropriate to speak of UDHR in terms of CIL or in terms of principles? o Value of arguing CIL: Custom reflects consensus. Food. Immediate Justiciable Cost free (at least characterized as such) But not really • • o International Covenant on Economic. Australia Jurisdiction Facts UNHRC Communication  Gay activist in Aus. Distribution of wealth Not justiciable o Optional Protocol to the ICCPR – allows a person who feels rights under ICCPR to claim from a state who ratified Optional Protocol Remedies in the form of recommendations given. o 1984 Convention Against Torture o 1989 Convention on the Rights of the Child (CRC) How are these treaties implemented? Through the Optional Protocol of the ICCPR Requirements of states parties: • Periodic Reporting Toonen v. Social and Cultural Rights (ICESCR) – 1966 Positive Rights Employment.g. at least more so. Petitioned HR Committee seeking a declaration that the two provisions of the Tasmanian Crim Code prohibiting “unnatural sexual intercourse” and “indecent practice b/n male persons” contravened articles 2(1).
• What about…. alternatively.It is arbitrary because unreasonable and disproportionate for the ends sought b the state—prevention of HIV—there is no factual or reasonable link between the two . HR law has carved a very signif exception to that rule placing concerns like the ones in this case within the confines of international concern. . but to all individuals • Most Int’l HR law is directed at states. as Tas claims.“sex” in Art 2(1) and 26 includes sexual orientation. Comments • Note that there was no international element to this complaint. argue that. • Or…should we just impose what is “right” in the Western sense. • Could. if you have signed onto the ICCPR which is a secular. with respect to privacy rights. which means that it has been violated. Devine law should stand. Art 26 argument • Was Toonen the victim of an unlawful or arbitrary interference with privacy? Was he discriminated against? Yes and Yes . Although not being enforced • Tasmania argued. Note that clash of civilization idea is a bit of a myth – there is some internal debate. Hard to expand the regimes because they’re all framed within the context of state responsibility • What is relevance of laws of other states in Aus having repealed law ? If other states still had the law. • ICJ in Case Concerning Reservations to the Convention of Genocide put forward the idea that states do not have an interest of their own in entering HR treaties. including feminists. and can apply to other actors only indirectly. would that change things? • Is importing sexual orientation by way of “sex” in 2(1) necessary? o Could instead have argued CIL. individual rights based treaty.refers to effects on third parties 82 . argue that this places many egregious violates out of bounds and reinforces the harmful public/private distinction. and the provision interfere with it. Many. moral issues are subjective and dependant on the particular values of a society. Art 2. 17 and 26 were said to be violated. Although non-intervention in domestic matters is reaffirmed in UNC art 2(7). o Could have done it through general principles discrimination against minorities o Therefore court injected sexual orientation so that it would be part of the treaty law. but rather a common interest • IACHR: states signing HR treaties deemed to submit themselves to a legal order within which they assume obligations.moral issues are not. “Drittwirkung” . strictly of domestic concern . • Aus argued that law should be repealed as all other states had done so.Undisputed that sexual relations fall under the concept of “privacy”.is there only one interpretation of Islamic Law.Public International Law – Fall 2005 Claimed that ICCPR. Art 17 Privacy Art 26 Discrimination Kirk Shannon Issues Holding Ratio Claim that police were empowered to investigate and detain based on stuff that happens in private. you must accept that treaty despite culture. Based on state practice and opinio juris. even if express provision conflicted with devine values would be irrelevant. Sexual orientation imported into art 26. even though they have not been enforced for over a decade – still could be enforced. Mere interpretation by the committee…hmmm. Look at Affrican Union or Islamic Congress would find it not to be CIL. not to states. Argue on their plane. State practice must be consistent. • Could argue that interpretation of Art 26 in Toonen is not only interpretation and should include cultural philosophy. What if the respondent was Iran or the Sudan? • Iranian position would be that.
Different contexts shed different lights on the rights. • Obligation to prevent. • Under Geneva convention (IHL) – state must also protect civilians from private actors. HR protection creates obligations for states only. • State is obliged to organize the gov’t and its structures to ensure that they are capable of juridically ensuring the free and full enjoyment of HR. Inspired by natural law and laissez-faire individual rights. etc. etc. Honduras did not investigate. social security. Private issues often are not responsibility of the state. 83 . Also. Difficulty with cultural difference and collective rights. equality Art 22 to 27 of the UDHR Were promoted by East bloc countries and developing countries. Classifying Rights i) The Generational Approach – Generations of Rights . investigate and punish perps. B. etc. Human Rights Standards Very fluid system and therefore difficult to grasp key features. o Toonen there is reference to harassment by non-state actors as result of legislation o Distinction of public/private to deal with state actors. To what extent should the state be held responsible for conduct of non-state actors. No proof of state actors. 1. Think domestic violence cases – many argue that this should be issue of state responsibility. Formal equality o égalité – Social & economic rights “Right to” gives the individuals claim against the state to something – right to education. pursue…. for women) generally speaking. • Scope of State responsibility is at issue. not individuals rise of terrorism. HR violations can come from individuals (esp. related to cultural pluralism.Organizing principles: 1 theory: 3 generations of rights Author: Karel Vasak o Liberté – Civil and Political Rights Essentially “freedom from” Art 2 to 21 of the UDHR – right to life.Public International Law – Fall 2005 - Kirk Shannon whose conduct are you regulating – original approach is protection from abuse of power of the state (based on Nazi problems) however. cultural protection. restore right violated if possible and to compensate Commentary What about the basis of HR in moral beliefs? Does this change the nature of the rights or does it lend them less credibility by showing them to be western based? Integral in this are conceptions of human dignity. adequate housing.Creation of HR very ad hoc/patchwork approach . • Distinction b/n unwilling or unable to investigate. problems in the private sphere Velasquez Rodriguez Case Jurisdiction Facts Issues Holding Ratio IACHR  Claim against Honduras following disappearance of a number of students after abduction by 7 armed men dressed in civilian clothing. Responsibility of Honduras? Honduras responsible not only to respect but also “ensure” rights found in art 1 of American convention of HR. Equality in fact o Fraternité – collective rights Play on interdependence of all people Self-determination of nations. freedom from torture.
ii) Treaty Human Rights The ICCPR and the ICESCR are binding translations of the UDHR which is but a statement of principles. peace Not collective rights as outlined below… Kirk Shannon This classification allows us to conceptualize these rights better – but still subject to criticism Seems to establish a hierarchy among these rights A very Eurocentric/western approach to HR Suggests. Only deals with reports submitted by states parties. Committee like the HR committee was created but there is not right to petition to that committee. concrete and targeted clearly towards meeting obligation • Means should be all appropriate means. Thus. environment. that you have to achieve them in order & critiqued for this reason No consensus as to the hierarchy but this is problem b/c conflicts of rights are a constant occurrence. to take steps . • Two obligations are imposed despite constraints due to the limits of available resources: • Undertaking to guarantee that the relevant rights will be exercised without discrimination • As per art 2(1) of ICESCR.what does this mean • Steps towards goal must be taken in a reasonably short time – deliberate. Uganda is not ready for multi-party democracy and strong man at the helm is needed. for instance. social and cultural rights • ICCPR provides for the creation of an 18 member HR Committee that can hear petitions from individuals or states alleging a breach of the Covenant o 18 member committee of states parties to the treaty o Every party to the ICCPR must present periodic reports on their progress in implementing the rights recognized therein o Committee may from time to time adopt general comments on content or meaning of rights entrenched in the covenant in question Committee on Economic. Common international commitment Right to development. Tis a balance. In cases where state is not a party. C) Customary Human Rights Opposition to ratify HR covenants comes from many states for ideological reasons and concern over national sovereignty. including legislation this is not exhaustive of obligation • Judicial remedies could be appropriate • Must take steps towards “progressive realization” – flexibility but expeditiously Commentary • Note that the implementation provisions in the ICESCR are much weaker that the ICCPR. Social and Cultural Rights – General Comment – The nature of States Parties Obligations Jurisdiction UN Doc  • Art 2 of the ICESCR is seen as having dynamic relationship with all other provisions in the convenant. CIL is at issue 84 .Public International Law – Fall 2005 Sharing in global power and wealth Solidarity rights. there are several differences: • Right to self determination included in ICCPR which was not in UDHR • Rights of minorities • Many Econo. • There is an interdependence amongst the rights? What about arguments that. It would be possible to consider certain rights jus cogens but the controversy still exists as to which rights.
Come types of rights systematically unprotected around the world (Social. Gives HCR ability to look into consistent patterns of gross violations of HR. Genocide. Econo and Cultural). etc. 94 had accepted the Optional Protocol). • HR Committee has much more expansive list that is not restricted to those rights listed in the US bill of rights. E) Compliance and Enforcement HR suffers from many compliance problems. Debate as to whether UDHR has attained status as CIL. Posit that HR is a Western construct Voice of Vietnam Radio • HR as not only a long-term national policy but also as a strategy devised by individs who assume the role as world leader. Whether issue gets on agenda of commission is very political. geographical and cultural conditions and the devel of different countries and peoples. Non-treaty mechanisms: • Most structured and influential are the institutions created by the UN Commission on HRs (a subsidiary body of the Economic and Social Council) by way of Res 1503 in 1971. • A plant. states are obliged to promote and protect all HR. ECOSOC – Economic Committee to deal with mass violations of HRs. This debate is pushed to the political realm at times. If consistent.Public International Law – Fall 2005 Kirk Shannon US restatement on Foreign Relations Law of the US states that certain rules are customary (eg. slavery. • Enquiries – initiated by the treaty body itself there are a powerful tool for ensuring compliance with fundamental rights. • HR should not be separated from historical. • Geographic treaties like the European Committee on HR (ECHR) or the Inter-American HRC (IAHRC). Creation of UNHCR in 1993 sought to provide some needed coherence. Two dialogues are suggested – 1) b/n various cultures and 2) internally to states. Individuals can appeal and will not receive a remedy. Treaty mechanisms: • Optional Protocol to the ICCPR. • Periodic reports – many treaties require reports. • Another means is domestic courts assuming jurisdiction: Example: Resolution 1503 of 1971 Resolution of the ECOSOC (Economic and Social Council). Both cause problems as 1) UDHR is already adopted and HR already seen as Western imposition and 2) b/c internal dialogues are not allowed in certain states and do not bring all parties to the table.) • Seen by authors as a conservative minimum of rights accepted as CIL • Criticised by many as not including right to be free from discrimination based on sex. Petitions to a treaty body – for the ICCPR the competence of the Commission to hear petitions is optional. • Advisory opinions – though they create no obligations they can carry significant persuasive power. 85 . Statement of the World Conference on HR states that. They are useful in that they incite dialogue. irrespective of cultural and religious status of a country. • This may not be the same in cases of thematic mandates (such as torture) but may remain political in cases of country mandates. a state may ratify the Convenant but reject this competence (as of 1999 of the 144 parties to the ICCPR. Individuals can submit complaints then the committee has the discretion whether to make it public or not. should be grown in suitable soil otherwise its fruit will be poisonous. D) Universality of Human Rights and Cultural Diversity Cultural relativism has replaced arguments based on state sovereignty as greatest challenged to HR law. however precious it is. issue will be made public. • Nothing systematic about res 1503 – horsetrading.
End of WWII. This is of particular problem in “first world countries” Criticisms: • Biased in selection and definition of whom an what they choose protect • there is no real dispute that the right actually exists – it is well accepted in international law • part of UN Charter. Torture is violation of the law of nations.S. 86 . Rights to be external to colonial power. UNC expressed principle of selfdetermination of peoples. Antecedent to which was the League of Nations mandate system which was largely of the result of the collapse of the Ottoman Empire.European o Usually fairly independent o Works best with states who have well functioning court systems and does not work well in cases like Africa (specifically Sudan) . Must have both the territory and be separate.Public International Law – Fall 2005 • Thematic mandates come with a special rapporteur Kirk Shannon What is more effective? . opinion on the Wall makes reference to this too • What does the right imply? Res 1514 – Declaration of grant to colonial peoples. Collective rights • Arose during the decolonization movement. Jurisdiction is granted b/c the US courts exercise personal jurisdiction over the parties wherever the tort occurred Relevance – use of the U. Both PL and D became residents of US and Fil filed suit Suit in Alien Tort Claims Act. ICSPR • Also a customary norm Western Sahara confirms this. Far from being universal. What do we mean by Peoples • Under the UN charter – non-self governing territories (Western Sahara Case tells us that this is what is important) and the notion of geographic separateness. This idea is against the rights of the state.Courts of Human Rights . 1. human rights reflect Western values imposed on the rest of the world. Prohibition is clear and unambiguous. Oversees principle. Alien Tort Statute to win a claim for a HR violation. (Toomen v.Inter-American Court o The judges are not the most independent – there are serious problems with the organization Filartiga v. reinforced in East Timor case. Pena-Irala Jurisdiction Facts Issues Holding Ratio US court  Fil is a Paraguayan National – 17 year old son kidnapped and tortured by D who was Inspector Gen of police in Asuncion. Problematic b/c of possibility conflict with individual rights. Check it. Australia) Part 10 B – Collective Rights and Self-Determination Basis of laissez faire civil and political rights is individual rights.Human Rights Commission – these people are state representatives o There is no idea of independence & influence other states & block resolutions . This is an external aspect of self-determination. For Filgartiga. ICCPR.
o Mi’kmaq case Excluded from s. not collective rights Micma’q had rights under ICCPR to determine their political status. Native representatives were enough according to the court. Collective Rights assertion Halted on procedural grounds – UNHRC only has mandate over individ rights – not collective rights under the International Covenant on Civil and Political Rights (art 1) (ICCPR) Issues Holding Ratio • • • Claim brought under art 1.[1990 and 1992] Facts . According to the court. etc. however.Canada argues: • right to self-determination cannot be invoked to threaten territorial integrity or national unity of a state • Not a people in the sense of art 1 – small.Group of Mi’kmaq petition UNHRC after refusal of Can gov’t to allow them individual seat at constitutional convention re: scope of s.Public International Law – Fall 2005 Kirk Shannon Indigenous Peoples Internal right to self-determination is at issue. Round 2 – Mi’kmaq drop art 1 and go with art 25. rights The right to self-determination came out of colonialism… referred to right of colonized people to make these choices (i. – b/c they were denied right to participate in constitutional conference. Not geographically compact.the case is found to be admissible. SO…. scattered population. Art 25 – internal self-determ. then there could be a case for this. 25(a) take part in conduct of public affairs through freely chose representatives. This is internal self-determination. Also. external self-determination) But what is a colonial context? Canada claims right to self-determination cannot be invoked to threaten territorial integrity or national unity of a state Most resolutions of UN reflect this idea The most interesting discussion of this is the secession reference Note that Art 1 of the ICCPR has no defn of “peoples” and “self-determination”. recognized as a unique population Invoke Art 1 of the ICCPR. .e. • Committee finds that constitutional conference is part of conduct of policital affairs. Under conduct of public affairs entitlements. the mechanism of bringing a claim forward only recognized individual rights. Mi’kmaq are only 87 . ICESCR art 1 does not have the definitions either. Collective right. what the Canadian gov’t was sufficient. as well as social. cultural. individs – this argument not admissible. 25/35 conference on flushing out the scope of aboriginal rights The assembly of first nations had been invited to the conference – but not the individual nations There was debate regarding whether the Micma’q should be considered a ‘people’ under international law However. Intermingling with other people.Mi’kmaq argue: concentration in reserves.25/35 rights allege violation of right to self-determination . If. Mi’kmaq Case Jurisdiction UN HRC Communication No…. rights are denied violently. if you have all the rights afforded in a democratic state then there is no right to external right to self-determination. • Self-determination is not justiciable (too vague of a norm) Optional Protocal only allows for individuals to claim • Halifax treaty was not an international treaty and therefore Mi’kmaq are not subjects of international law.
Selfdetermination requires a certain specificity in order to have self-determination • Brings us to Draft Cov on Indigenous Peoples.Public International Law – Fall 2005 Kirk Shannon entitled to electing leaders etc. More than minority b/c of relationship with the land. to make the acquisition of territory by force illegal) to legitimize state sovereignty Now though it is recognized that peoples fit nicely within the territorial boundaries of the state So now the concept of sd threatens to delegitimize the concept of almost all states Problem – infinite breakdown of individuals into sub-communities (Charles Taylor) o - Questions – Nov 15th 1. 88 . Not to go to conference. Commentary • Under the Optional Protocol.000 people could claim at the same time and create a type of class action) • What is the problem with collective rights? • Who is the beneficiary – who is the group? • Who is to speak for the group? Is integration not a better thing rather than the emphasis on collective rights which seems to reinforce marginalization? • Look to Art 27 of the ICCPR – minority rights. the focus on collective rights keeps indigenous peoples backward and isolated from the benefits of society.e the ability to freely determine political & economic & social destiny within the confines of the existing state Links internal & external sd – if you’re not getting it inside. ICJ is small amount of cases and so. But…WS case could be wishful retrospective thinking. you can then get it outside For QC the test is not met o For Canada. Instead of advancing their human rights. To what extent should the status of a peoples be an issue for outside intervention. for the most part the disputes are resolved based on peculiar international agreements. Part 11 – State Responsibility PARTICULARLY IMPORTANT – according to Akh . Will this really help the peoples or hinder their “development”.likened to tort in some way • • Primary (determine substantive obligations) and Secondary (define how primary rule are to be exercised) rules o State responsibility is secondary rule State responsibility determines how we assign responsibility to states for violations of international obligations Differences b/n state responsibility and obligations in domestic law • Non-jurisdictional enforcement is the main difference. Collective rights cannot be asserted (but this seems odd as 14. this was the only decision possible. There basic assumption is that there are communal rights.e. Perhaps apply the Western Sahara case to indigenous peoples in Canada (with exception of territory issue) and use treaties with the Brits and the French. this has implications for aboriginal peoples The right to self-determination was originally a principle to sustain the boundaries of existing states (i. • Maybe something b/n minority and non-self governing territory. Secession reference SCC says: these ideas can be reconciled – sd is not necessarily about external self-determination Relies on friendly relations treaty New element internal self determination I.
Venne – SCC 1971 – Expo Congo architect designs pavilion. BUT. Tort – Draft articles don’t draw distinction b/n obligations arising in K and Tort Arts on State Responsibility – adopted in 2001 – after 50 yrs of working on it Adopted by int. Based on principle of Sovereign Equaltiy. SCC says Canada cannot exercise jurisdiction over another state. in effect. ICJ Case of Application of Genocide Convention Case – states could (not toally clearly but. cannot recover and has no legal recourse.) be sued for violating genocide convention Contract v. Pl. • States are equally sovereign which means that one state should not exercise jurisdiction over another on its territory. in cases under certain peculiar circumstances. Congo v. US attorney stated it was a public ship of France Immunity of property The ship has immunity • Immunity is a relaxation in practice. • Commercial role of the state here and.g. Dropped. M’Faddon Jurisdiction Facts Issues Holding Ratio US  – per Marshall CJ Two Americans claimed ship belonged to them when it arrived in Philidelphia – alledged it had been seized by French and improperly taken from them. Congo does not pay for it. there must be a 89 . law commission (ILC). of that absolute and complete jurisdiction within their respective territories which sovereignty confers… • Affront to dignity of a sovereign to give jurisdiction to another sovereign – immunities must be extended to him – refers specifically to the French sovereign as a person. then the General Assembly took note of them (not part of a treaty – this would open them up to negotiations & politicize them) o Taking note is not a positive or negative resolution o The GA says they are postponed to a later date They are still significant – they have no formal validity. E. but has huge informal appeal & influence Responsibility is expressed as a set of general principles rather than strict rules - 1. o State Officially and no prosecution by state: Official will be held internationally criminally liable and the state will be held liable for failing to prosecute.Public International Law – Fall 2005 • Kirk Shannon • - No distinction b/n Civil and Criminal Responsibility – There has be call for hierarchy of norms by ILC (similar to debate over jus cogens) and states call for states being held for international crimes.. • • • • domestic jurisdiction is necessarily exclusive and absolute all exceptions thereto must be traced to consent—and all sovereigns have consented to respecting the sovereignty of other states (implied consent) Sovereign understood to waive right to absolute jurisdiction with respect to (a) the person of a foreign sovereign (b) foreign ministers (c) passage of foreign troops rule does not appear applicable to ships entering friendly harbours. still absolute immunity employed The Schooner Exchange v. Immunity Generally Recognized state is enetitled to immunity from the jurisdictions of the courts of other states Immunities allowed to • Officials • Governmental agencies • State property nationally operating or held in sovereign’s name Is there justification for immunity and how far should that immunity extend? Remember Foreign Legations Case – State was immune (one way or another) from taxes or otherwise exercise jurisdiction over a foreign legation.
compares the ship to the king of France himself . this would still be covered) 2. • Convince the other state to try the diplomat.) o What about private citizens who are attached to official delegations of states? Look at basis under which enter the country (diplomatic passport or not). • Test 1: Purpose of the transaction – public act? Public object? • Test 2: Nature of the action – commercial deal is commercial no matter who transacts What is covered? 1. foreign minister. Problems exist with difference b/n o Sovereign act (jus imperii) – conduct as a sovereign o Commercial Act (jure gestionis) – commercial participant. of they can be assured the same. (This is stated as a principle of public law) • the ship should be returned Comments: The customary rules of immunity that apply to the sovereign extend to his agents .Western Euro states. 1985. the former act under immediate and direct control of the sovereign • All states would consent to not having their public ships subject to foreign jurisdiction. Based on the restrictive theory. If they re-enter. Repub of Poland) call support of theory of absolute immunity. Recognition and Immunity – For the the foreign minister to determine whether state is recognized and therefore whether they would enjoy immunity. State owned property Canada Act seems to be more restrictive in that it allows for criminal liability claim but not tort. o Should immunity be extended to former head of states who go for medical treatement in UK or wherever (Pinochet) o Act of State – If you committed certain acts or were aware of acts in capacity with state. diplomatic staff. State appearing in court to challenge does not accept jurisdiction. have adopted Conventions on State Immunity in 1972.Public International Law – Fall 2005 Kirk Shannon distinction between public and private ships. if Canada had trade office in another country. 2. CANADIAN STATE IMMUNITY ACT • As refugee. Leader of gov’t. agents. However. This is the opposite of Restrictive Immunity which was created b/c of the increasing involvement of governments in foreign courtries for business purposes – why should they be immune in such cases? • Restrictive immunity theory universally practiced now as part of CIL. does not apply to certain category of acts (genocide or etc. Scope of Immunity Cases in Britain and Canada (Dessaulles v. Public Corps independently created but operating in effect as an organ of gov’t 4. for order’s sake. you are immune. immunity has no effect in Canada – can bring a tort claim but not a criminal claim. state immunity is a question of CIL. What is a state to do? • Ask other state to waive immunity. 3. sovereign immunity applies. Gov’t and gov’t organs (eg. you have option to prosecute. o If they do not waive immunity. gov’t can declare them persona non grata (get out!!) Termination of the basis for their stay on your territory. can you sue your old country? No. But….Contrasts sovereign with ordinary individuals We as individuals subject ourselves entirely to a foreign state. because whereas the latter clearly lack immunity. If criminal act. 90 . State Immunity Act. Test b/n Public or Commercial Acts: Note that precise distinction may be impossible. Canada was only Western country that submitted to the absolute theory for a long time but then. • • Mostly.under what conditions would he come on US territories? .
US there are exceptions in foreign state immunity act for terrorist acts B.Prefers to rest his decision of the ground of no immunity in respect of commercial transactions Comments: - very little international law on state immunities every state can decide whatever they want The driving principle is reciprocity Ex.Bank claims sovereign immunity. General Principles of State Responsibility 91 .The notion of universal consent to sovereign immunity is a fiction. and is therefore not subject to immunity (nature over purpose) . The central bank of Nigeria is recognized to be very much a public institution that largely plays are economic regulatory role. after being inundated with shipments of cement.Traditional Notion of Absolute Immunity. the fact that it was for a military base is immaterial. Reasoning: Denning: . the government was purchasing just like any other private buyer would. v. there is no consensus on the issue: . diffs b/n civil and criminal. there is an issue as to whether a body is an “alter ego or organ”.Public International Law – Fall 2005 Kirk Shannon o Call for exceptions like in the US law (below) US Act is progressive – contains exceptions – claims brought against the sovereign o Torture etc. The Bank of Nigeria issued a letter or credit for the price. or responsibility in K or tort. . TT claims it’s a normal commercial transaction . ordered the bank not to honour the letter of credit.Here. State Responsibility Initially devel’d as responsibility of states for personal or property damage of aliens – now principle devel’d to provide for broadly that every internationally wrongful act of a state entails responsibility. • Essentially non-jurisdictional and states rarely turn to tribunals. . but difference arise with respect to how far states will move away from that in favor of a doctrine of Restrictive Immunity.Even if bound by absolute immunity. Ltd.UK law should uphold the restrictive doctrine . (but don’t forget Status of Forces of Agreements) o Expropriation Particular problem with sovereign versus agent of police in tort claim (Pana’irala case) – sovereign has the case and it can go into the billions. Issue: Is the Central bank an agent of the state and therefore immune? Held: No. which is a very elastic test. which requires a distinction between jure imperi and jure gestionis. but Denning doesn’t think it should be considered a department of Nigeria. • Trendex Trading Corp. Cental Bank of Nigeria [1977 UK CA] Facts: TT sold cement to Nigerian to use for military barracks. The gov’t later. Based on the Dichotomy b/n Primary and Secondary Rules • Primary: Substantive rules • Secondary: Conditions under which a primary rule will be considered to have been breached and consequences o Defences o Circumstances precluding wrongfulness o Types of reparations an injured state may demand Urge to make analogies to municipal law – but certain distinctions have no echo in international law • E.g.
apartied (d) human environment -everything else is an international delict • Problem with this is: against whom do you enforce the violation of an international crime. Hard to punish a state without punishing it’s citizens • Note that this intro’s a distinction b/n crime and delict. genocide.. Kirk Shannon International crimes has been all but abandoned by the special rapporteur of the ILC in the Draft Articles. Obligatoins erga omnes have some sort of pre-eminence in the international system.g. Art 51: international crimes entail consequences of Art 52 and Art 53 Art 52: unlimited restitution Art 53: every other state has obligation not to cooperate with that crime. e. and to cooperate with its suppression International crime =/= crime under international law. Attempt to define what some of those obligations are. Now have a series of obligations. because the former can apply only to state action Barcelona Traction case [1970 ICJ] established principle of obligations erga omnes (analogous to those the breach of which = int’l crime) 92 . it is an international crime if it breaches an obligation fundamental for the protection of the international community. Appears as if objective standard applies but there is a great deal of confusion. Basis for responsibility Two possibilities (not clear in jurisprudence which is the proper basis) o Grounded in risk Objective Responsibility Most popular theory Strict Liability – no need for fault. Draft Articles on State Responsibility #s different in 2001 version compare Art 1457CCQ & Draft articles o nothing about fault in the draft arts what would it mean if there was a fault concept? Due diligence duty with respect to the rights of other states The state itself does not have to be faulty If agent can be imputed to the state there is a fault element Art 1: Every wrongful act entails responsibility of that state Art 2: every state subject to being held to have committed a wrong (protection against states claiming immunity) Art 3: wrong requires (1) conduct attributable to a state and (2) breach of an international obligation Art 4: must be wrongful in virtue of international law Art 19: every breach is an internationally wrongful act.Public International Law – Fall 2005 How does it attach? Elements required: o 1: Conduct that consists of act or omission (internationally wrongful act) o 2: Must be able to attribute conduct to the state under international law. o Grounded in Fault Subjective Responsibility Negligence or fault needed. (a) threats to peace or to (b) self-determination of peoples (c) slavery.
and they do satisfy the court in this regard o However. USSR Jurisdiction  93 .sounds more subjective. Thomas F. and Pescawha Jurisdiction Facts American and British Claims arbit  Three UK ships borded by US agent and seizing of arms and ammunition. Agents acting in good faith within their mandate Issues Liability for wrongful interference with a cruiser on the high seas pursuing a lawful avocation (seal hunting in this case) Holding US liable Ratio Unlawful interference. Couldn’t prove if Albania laid them or that it colluded with Yugoslavia to do so. Albania [ICJ 1949] Kirk Shannon Facts: 2 UK ships hit mines in Albania’s territorial waters. Agents were acting outside the competence of the US.translation error: “knowingly” is in the translation but not the original text . Comments: o There is no apparent reference to fault in the draft articles. Baynard. The UK insisted Corfu channel is an international straight – open to any ship sailing peacefully. but there is some sort of due diligence duty to prevent wrongful acts from occurring on their territory (this is linked to sovereignty anyway)the eng version is passive – only have to do something if you know o the French version is active – a state has to inform itself about wrongful acts on the territory (pg 609 in case book) The Jessie.When illegal acts carried out by non-state actors and their actions are not imputable to the state. No indication of which standard it is applying…. custom or other Dissent: have to prove culpable negligence—theory of risk is incorrect here o Big Issue: state act/omission vs. .this restricts earlier statement of ICJ on wrongful act o thus states don’t have an obligation to know about everything everywhere on their territory. or ought to have known o But UK can establish that via mere factual inference. non-state act with state omission o DASR opt for the objective standard—no need to prove fault of state official State must not let its territory be used for acts contrary to the rights of other states. fault or negligence required.When agents are not under instruction to act illegally but still act within their mandate. but when you start digging there seems to be a fault element . there is usually no requirement of fault or negligence on the part of the agent. Cosmos 954 Claim – Canada v. Bona fide belief of officer that he had the right does not obsolve liability. Issue: Are they responsible just because it was in their waters? Holding: Yes Reasoning: o The mere fact it is on Albania territory is not enough to trigger state responsibility o Can’t conclude that just because it happened in their territory they know.Public International Law – Fall 2005 Corfu Channel Case: UK v. . Albania insisted it was part of its territorial waters there was no open sea between the channel & the island – and the waters were closed to international traffic. there were a # of Albania watch positions on the coast – the mines could not have been laid without the knowledge of the gov’t o Obligatory for Albania therefore to notify and warn of the existence of the mines—every state has an obligation not to allow [knowingly (not in French original)] its territory to be used for illegal acts (‘knowingly’ not present in original French) o The laying of the mines is not attributed to Albania – the basis of its responsibility is its failure to react o No distinction in IL on the basis of the source of the obligation—treaty.
Art 6 of Draft Articles – irrelevance of position of the organ in the state . The governor behaved reasonably – sent troops. Here art.H.Mexico is 94 .absolute liability for items falling from space . Bases of attribution: Act by a state organ Does not matter what level that entity is playing in the state apparatus o Municipal Court decision that upholds legislation that violates the rights of an alien – can alien’s state claim responsibility even though it was a court decision. The kidnapping was imputable on the US even though the bondsmen were acting on their own accord.incident between US and Canada in the 80s when bail bondsmen kidnapped the accused from Toronto and took him to Florida for his trial.Includes courts. who instead joined the mob and killed all 3. They were attacked by a mob. and the local authorities called in the army. Note that claim not dealt with as settlement. Basis is inherent risk associated with launching satellite with nuclear components on board.state practice on this matter is very tenuous . legislative…. Issue: Is Mex. Youmans Claims: US v.After Chernobyl. liable for failing to exercise due diligence to protect the aliens? Holding: Yes Reasoning: Not enough of a defense to argue that an agent was acting outside his competence. 5 to 10 .e. executive. admin. Akhavan: Canada was claiming under the standard of absolute liability. Mexico [General Claims Commission. insurgent movements and international orgs) Art. if the space station or a satellite falls to the ground – the country is absolutely liable .– Acting in fact on behalf of the state. that would negate liability in virtually every case. High cost of clean-up claimed USSR responsibility for chunk of cost.Same with injury to Japanese fisherman after nuclear testing – there were payments made without acceptance of responsibility IMPUTABILITY Problems arise wrt delineation of the state and of its power and responsibility for acts of non-state actors (private persons.. 11.The ILC’s Draft Articles on State Responsibility extend attribution to the acts of organs or persons or groups who are acting on behalf of the state or exercising gov’t authority.i. Art 8 of Draft Articles. USSR settle out of tribunal for less than amount claimed and did not accept liability failure to give prior notification of imminent re-entry Operations undertaken by Canada to mitigate damages would not have needed to be taken were it not for damage caused Basis for claim is intrusion on air space and deposit of hazardous materials as violation of Canada’s sovereignty. o Contracting out – e. there was a lot of extra-territorial damage but no claim made to USSR . Consider this in light of the Jaffe Case .Public International Law – Fall 2005 Facts Issues Holding CANADA statement of claim Kirk Shannon USSR satellite wit nuc reactor falls into Canada. 8 is applied versus art. but the troops (state agents) acted unreasonably .g Sydney Jaffe Case bounty hunters in Florida captured Canadian – is the bounty enough to trigger international responsibility – yes – the state cannot privatize its actions to avoid international responsibility There also has to be a connection to an international standard. T. Exception: Hazardous materials . 1926] Facts: 3 US businessmen working in Mexico – dispute w/Mexican labourers over 15 cents.in the case – Russia paid damages to Canada but did not acknowledge responsibility .
. What are the borders between art.Both people are state actors – there is no reason to give greater weight to one over the other (internal issues are irrelevant in international law) . 8(when the conduct of persons is attributed) and art 11 (where the person’s acts are not)…what are the outer limits of the state?. 11 .5 to 10) unless there are extenuating circumstances. interfering with sovereignty of another state - Art. Ex.There are a series of cases on this issue in Iranian tribunals border guards asking for $ for bribes… .Look at connection to the duties – is there a link of agency – not everything an employee does is an act of a state – there must be some connection to an official activity .Public International Law – Fall 2005 found liable for the injury.In extra K – you can exculpate yourself from responsibility for children..theory of responsibility is vicarious liability: like responsibility rules for the acts of another (master/servant vicarious .Justified by idea that you make $ from employees you should be responsible for their actions while you are employed . The standard is “effective control” (see Nicaragua Case). there are ways the state can be held accountable Ex. Hostages Case – US Diplomatic and Consular Staff in Tehran Case o Iranian takeover of US embassy during revolution o Was done by private citizens (engineering students) o Iran failed to protect a foreign embassy – this is an int’l obligation o Iran also liable for endorsing the acts of private individuals – would not allow hostages to go free under Shah is returned This is retroactive attribution to the state for acts of private individuals (although there is debate against this the Ayatollah had encouraged people to fight Americans however they can) the ICJ did not find this sufficient. Ratio: State may not invoke abuse of authority by its agents to block a claim Strict Liabiliy Standard Comments: • • • Kirk Shannon Precedent for awards flowing from soldier’s acting ILC: state must recognize that it acts whenever persons whom it allows to act in its name in a given area of activity do so actions must be taken ‘under the cover’ of their official character to be imputable to the state . but not for employees in your control .The ILC’s Draft Articles on State Responsibility do not extend responsibility for the acts of persons or groups of persons who are not acting on behalf of the State (without prejudice to the circumstances under art.We look for an environment where they are acting an official capacity even though they are acting against orders/duties State Responsibility for Private Individuals States not responsible for acts done by private individuals However.ANSWER – Art. there is a control requirement – not directly responsible o Indirect responsibility for failing to protect – liability after the fact. 8 applies where the State exercises effective control of the general operations of the group or persons: 95 . 2: Nicaragua Case o Nicaragua claimed the US was supporting the Contras o Should the violations of IHL of the Contras be attributed to the United States? o Court says the state would have to have effective control (standard) of the individuals causing the violations o Note: US is still responsible for the wrongful acts they committed directly funding the contras.
. 11) or for the gov’t (art. despite the U.this is a private actor claim. Issue Were the contras acts to be classed as private (art. here.5 to 10). there is no proof that the U. 8)? Holding Private.S. U. Compare this to the Tehran Case – here the gov’t is help responsible because it allowed the harm by failing to secure the release of the Americans – a failure of their primary obligation (liability after the fact case!). Acts of Insurgents Can be liable for acts of insurgents if fails to protect and if insurgency becomes new gov’t . it just means the state will not be responsible 96 . as such. would be ok.S. o The gov’t isn’t responsible for EVERYTHING on their territory – International orgs.S.S. is not responsible. - Exception: when insurgents become the gov’t (they win the revolution or create their own state) they will be responsible for the past acts It is a retroactive attribution of actions to an actor that is not recognized in int’l law Difficult to reconcile with idea of continuity of gov’ts South Africa o New gov’t both responsible for acts occurring under Apartheid o New gov’t is also responsible for illegal acts done by the ANC Defining Injured State Injured if obligation out of bilateral treaty. tried to destabilize the country by using its control of the insurgent group known as the contras. Ratio Degree of control is very important. judgement of international organ. for example. CIL. treaty provision of a third state .’s extensive participation in financing.Ex. o Failure in obligation of due diligence which.The ILC’s Draft Articles on State Responsibility do not extend responsibility for the acts of insurgents within their territory (without prejudice to the circumstances under art. might not be the responsibility of the state but rather of the org… Note – outcome probably would have been different in front of perhaps war crimes tribunal…. Could other state bring action for conduct pre-becoming legit Art. is obligation to do all possible measures that could be reaonsably expected to prevent the eventual occurrence of killings and prop damage. Nicaragua v.S. won in supposed democratic elections in 1997 and his movement becomes ‘legit’ gov’t and his actions from that point on are actions of the state. controlled and directed the acts of the group. Then.Public International Law – Fall 2005 Kirk Shannon Military and Paramilitary Activities in and Against Nicaragua. training and supplying them. multilateral treate. 3 Tamil Tigers – Sri Lanka bombs factory owned by AAPL (private company) after reports of TT’s o There is a lack of control of the Sri Lankan gov’t over the TT o If there was military purposes to the factory. U. Circumstances Precluding Wrongfulness Model law has changed a little bit on this matter These actually don’t make the act less wrongful. Art 15 of Draft Article – yes – if insurgency becomes gov’t then you are responsible. Here. had committed atrocities. Taylor was leader of insurgency and.Ex: Liberia Think example of Liberia. (1986) ICJ Facts Nicaragua claimed that the U. act that arises out of judgment of international trib. 14 .
Art. Self-Defense specific reference to the use of force Art 51 of UNC Discussed later. consent may be withdrawn!) Art. Free trade agreement breached by one party – other party response in kind by also breaching. diplomatic ties…) acts which are normally illegal but are justified as a reaction against the illegal act done by a diff state its an act to prevent a state from continuing to act badly This is a measure of Self-help which is allowed to some extent. The underlying principle is “self-help” in light of an int’l system that is not very good at enforcement!). 33 – State of necessity. 29 – Consent by one state to the other (excludes obligations arising out of peremptory norms of IL such as use of force). Consent of the State however. (excluded if they contributed to its occurrence). you cannot agree to violate jus cogens norms (like committing genocide) Claim of USSR in Afghanistan. Uganada assisted.Public International Law – Fall 2005 Kirk Shannon ILC Draft Articles on State Responsibility: Art. Art. Consent may be withdrawn! (like in dispute between Congo and Rwanda/Uganda where after Congo set up new gov’t discovered much of their territory had been taken over by the other 2 countries who claimed that Congo had given their consent. Asked to leave and they don’t. 34 – Self-defence (remember art. 1. Force Majeure Unforeseen event creating impossibility of performing the obligation Related to sinking of “Rainbow Warrior” o The ship would interfere with French nuclear tests in the south pacific o The French paid agents to blow up the ship o A Dutch journalist was on board and was killed o The French agents were arrested by the Kiwis and were convicted for manslaughter o France protested – said agents were acting on orders o NZ & FR eventually settled – payment of $1 million to Greenpeace – allowed FR agents to serve term on a military base in the South Pacific o The female agent got preggers – and was flown back to France for the birth and was not returned o NZ complained o FR claimed the pregnancy was Force Majeure – NZ disagreed 5. 31 – Force majeure and fortuitous events (excluded if they contributed to its occurrence). Art. (this is countermeasures or reprisals versus retortion which is excessive. Note – different than retortion (where there is no obligation to continue action – eg.Consent does not apply to a Peremptory norm of international law - 2. 32 – Distress. 51 UN Charter). - Ex: Rwanda Rwanda fighting insurgency in neighbouring Zaire – helped overthrow Mubutu. Insurgency became new gov’t and Rwanda and Uganda remained in occupation of Rwanda and Uganada. 30 – If wrongful act is b/c the other State committed an int’lly wrongful act first. 4. development aid. 3. Distress - - 97 . Counter-Measures Traditional term was reprisal o Eg. So. and US in Vietnam we were invited. This is reprisal or a counter-meaure which is legit. Art. Does consent apply? Consent is not a permanent state of affaires Art 29 of Draft Articles .
State of Necessity Interests of the state are threatened (not individuals) The act must be the only way to safeguard an essential interest against a grace and imminent peril – Art 33 of Draft Arts ICJ in the Slovakia Dam case Essential interest of the state must not impair an essential interest of the state at which the action is taken Ex : Gabcikovo Case . construction and enforcement were international ones which can only be decided by his waiver by the Mexican courts.S.2 . .States may espouse claims of their nationals in the diplomatic context . Ratio In the K the rights he waived were to act as if the only remedies available to him for the fulfilment.Hungary/Slovakia case o Treaty obs to build Danube dams that one stopped building b/c of enviro concerns (threat of water supply to Budapest) o State of necessity is ground for precluding wrongfulness – must have “grave and imminent peril” o Here concerns were real but not perils o ICJ not satisfied this was the only way to protect the Danube river Ex.Requirement of exhaustion of local remedies – unless express agreement to waive remedies o EG. Enforcement of Claims What do we do if legal redress is unavailable or uneffective? Espousal and Nationality of Claims . He failed to bring a witness at trial.An oil tanker about to run adrift can a state destroy it to protect itself from the imminent threat of the oilspill? There must be a balancing o Exploratory well being drilled and threat to be blown up out of state of necessity – does not meet - - C. Holding Claim for K’al breach must be presented to Mexican court pursuant to the agreement. The U.Ambehelos Case – Greece v.Public International Law – Fall 2005 no other reasonable way to save lives or the lives of others people are in physical danger ex. Greece espoused claim in his favour. – North American Dredging Case Involves a calvos clause 0 calcos was argentinian who wanted to protect state sovereignty Co undertook to be recog’d as Mexican subject North American Dredging Company(NADC) Claim (1926) Facts Agreement b/t gov’t of Mexico and NADC included a Calvo Clause giving the employees of the co the status of Mexicans in all matter concerning the execution of the work under the K and the K’s fulfillment. Though the clause was meant to bind the claimant to Mexico’s laws it did not and could not deprive the 98 . Military ship adrift in territorial waters fish illegally to feed themselves Kirk Shannon 6. o Similar in EHRC requires exhaustion of remedies o Exception: unless can show remedy unavailable or ineffective.Whole idea of interenational dispute settlement is to give the claimant opportunity to bypass exhaustion of local remedies where he might be at a disadvantage Waiver o EG. UK says internal remedies were not exhasusted b/c person did not file appeal Court agrees with UK – includes procedure of domestic courts and diligent and optimal use of remedies available – he screwed up and didn’t call a witness. UK Claimant argued K with UK gov’t and was not respected – litigation before courts of UK. acted on behalf of the co for a claim for damages for breach of K by the gov’t of Mexico. It stated they were deprived of any rights as aliens.
REMEDIES Cessation of wrongful conduct Reparation o EG. to bring a claim on his behalf for things beyond the reach of the clause. satisfaction (i. He could still ask the U. Industrialized countries argue (with the support of writers and tribunals) that Calvo clauses cannot be given full effect b/c the right to present an int’l claim belongs to the state and not to the individual or corporation. apology. o Various elements Usually out of pocket expenses Lost Income – future income – only if not unduly speculative – this is why new enterprise will usually not be awarded income. active trading interests in Canada. . and the extent to which the company is beneficially owned in Canada).Claims by companies are treated according to Barcelona Traction Case with the further requirement in Canada that there be a substantial Cdn interest so as to justify Cdn diplomatic intervention (where the business is carried on. The NADC has acted as if the Calvo Clause didn’t even exist. 41 to 46 – ILC Draft Articles on State Responsibility require the offending state to cease the wrongful conduct. that Calvo clauses can effectively prevent a state from espousing a claim of one of its nationals. Chorzow Factory Case – Reparation includes principle of RII (Restitutio in integrum) Could be return of property. punishment of gov’t officials responsible. Art. Think about it…. Is there a practical application of this clause? Canadian Practice Is it different from standard in Barcelona Traction Case – where court held Belgium had no standing b/c siege social was in Canada . . General Practices: Unlike civil responsibility. SUBSTANTIAL LINK IS ONLY REQUIREMENT .) and assurance for non-repetition.S. This situation illustrates how legitimate the concerns of certain nations are respecting the abuse of the right of protection by the nationals of certain states. The Procedure in Canada: Normally Canada will attempt to negotiate with the other state in order to reach a settlement. provide for reparation (limited in that it cannot result in the impoverishment of the population of the offending state). only using it to get the K in the first place. Developed countries argue the opposite.e.Normally espousal of the claim will be initiated after all domestic remedies have been exhausted. so better to justify based on past profits than a new business plan. compensation (can’t be speculative loss of income. 99 . restitution in kind. interest is compound). removal of impeding measures Compensation where restitution is not possible.Losses caused to a company in which Cdn’s are shareholders may result in the Cdn gov’t intervening on their behalf. - Counter Measures revisited o Involve Self-Help Is availability of dispute mechanisms categorically preclude resort to use of counter-measures? Usually can get provisional relief from a tribunal very quickly. remedies under IL can take the form of restitution as well as sanctions (especially when the state violated the rights of other states rather than those of individuals). Interest Perhaps compound interest.Public International Law – Fall 2005 Kirk Shannon claimant of his citizenship and all that implies. etc.Canadian practice deviates – Canada would protect the shareholders.
47 – taking a countermeasure means the injured State does not comply with one of more of its obligations towards the State that has committed an int’lly wrongful act in order to induce it to comply with its obligations under art. 92) Court consists of 15 members elected by GA and SC. derogations of basic HRs. Law of the Sea. VII) and the principle judicial organ (art. 41 to 46 (remedies). • • • ICJ is one of six principle organs of the UN (under Ch. conduct that contravenes a peremptory norm of general IL. and others. The Hague treaties were responsible for the creation of the permanent court of arbitration. 47 to 50 – ILC. Should this be CIL. THE WORLD COURT Predecessor was the PCIJ – it was not part of the charter of the LofN. Had its own. the statute of the PCIJ was modified slightly and become that of the ICJ. Countermeasures: Why are countermeasures needed? States are reluctant to subject their “sovereignty” to the jurisdiction of judicial or arbitral bodies and therefore infrequently use adjudication to resolve a dispute resulting from the internationally illegal act of another State. Countermeasures make a normally unlawful act licit by its character as a response to the other State’s wrongful act. Ratio Restitution in kind may be demanded over other forms of reparation if it is materially possible. 50 – Prohibited are threats or use of force. For the most part. Draft Articles on State Responsibility Art.the countermeasure must be proportional Art. To this. IF there are available dispute settlements is it right that States may elect whether or not to submit themselves to it? Like UNCLOS which provides the right to request provisional measures from the ITLOS. This was not expropriation but seizure. However the damage suffered by the individual is never identical to that suffered by the State and can only provide a convenient scale for the calculation of reparation due to the State. it is highly fragmented. Not one body. Here it is correct for Poland to restore the undertaking and if that is not possible to pay its value at the time of the indemnification. Art. and not the law governing relations b/t the State who has committed a wrongful act and the individual affected. 48 – They must first negotiate… Art. President is elected for 3 years by the court from among its membership 100 . Investment disputes. When there is lack of confidence states are less and less willing to submit Notion of jurisdiction has devel’d in a peacemeal way. Problem: where tensions among states are the highest. Not an all or nothing thing. This allows for practical arrangements among states who would be otherwise reticent to surrender sovereignty on all issues. must be added that of compensating loss sustained as the result of the seizure. this right to choose? Part 12 – International Dispute Resolution Substantive means of enforcing a claim. in virtue of the general principles of IL.Public International Law – Fall 2005 Kirk Shannon Chorzow Factory (Indemnity) Case (1928) PCIJ Facts Claim for reparation by Germany against Poland for having taken possession of factories belonging to 2 German companies. ICJ. judicial mechanisms are the least effective. When UN was established. • Stat of ICJ is separate from the UNC – assumption that all states members of the UN also subscribe to the stat of the ICJ Notion of the compulsory arbitration were central to internationalization. The rules of law governing the reparation are the rules of IL in force b/t the 2 States concerned. Holding Poland owed reparation to Germany for damages suffered by the 2 companies. Art. 49 . economic or political coercion.
Lockerbie case under the Montreal Convention 1976 o Declaration under art 36(2) – Optional clause (declared in advance) • Different from UNCLOS art 287.g. Nigeria case where Nigeria ignored decision) Line b/n binding and non-binding decisions might not be all that clear – just force of decision. (Spanish fishing trawlers case) Relevance – Court considers the nature of State’s declarations of acceptance of compulsory J of the Court. situation where parties resort to some sort of private justice. • But…you can stipulate exceptions to general jurisdiction. member of the UN o 2.Public International Law – Fall 2005 See Art 9 of the Stat of the ICJ • Elected “regardless of nationality” but nationality plays a role – by informal understanding • Principle legal systems must be represented. Parties before the court • Standing either States or UN agencies. 101 .g. • ICC stat debated this as to whether there was opt-in or opt-out. it is a general jurisdiction of the court opt in. not so binding necessarily (Cameroon v.but if they don’t. You recognise in advance. • In reality. judge ad hoc will be appointed.if states don’t stip that they do not recog the judicial bodies (ICJ or Tribunal on the law of the sea. Shows how states not always willing to relinquish all their power. • Not automatic – only a party if o 1. • Art 36(2) assumes you have not accepted unless you have opted-in specifically. o Informal rule regarding the distribution o Permanent five members each have one judge o 5 for Western Euro and NA o 2 Eastern Euro o 3 Africa and Mid East o 3 Asia o 2 Latin America Kirk Shannon • If case being heard from Country is of a party’s nationality. Application of the Genocide Covention Case – art 9 of the convention specificall provides for disputes being settled by the ICJ • E. This could be seen as controversial.Art 36(1) comprommissory clause – • E. Jurisdiction • Limited – based on voluntary acceptance by the parties. By accepting the statute and accepting jurisdiction of the court and conditions laid down by the GA (eg Switzerland) o 3. o UN – Advisory Opinion (non-binding) o States have standing in contentious disputes (binding) – legal obligation to accept decision….. • E. • When a state opts in.g. – Canada accepts except with respect to matters that that fall within our jurisdiction…. they are presumed to have accepted unless they make a specific declaration seeking exception on specified number of ground. Canada can decide what is within its jurisdiction • Canada – p. India does not allow for any cases to go to the court dealing with use of force.g. • E.which obviates point of court. Any other state provided accepts conditions laid down by the SC that they will accept judgement. This can happen by o Special agreement – o Compulsory clause in a treaty . 353 para (d) keeps control over fisheries. Difference between the ICJ as an adjudicatory body and arbitration • Arbitration – more flexible.
right before East Timor independence. ICJ says that Indonesia is a Necessary Third Party and has not accepted jurisdiction of the court so …. Individuals or individuals? Should the ICJ expanded? • Perhaps we could apply “exhaust all other remedies’ principle and then let them have standing. Withdrawal from the Court . The interpretation of those reservations is to determine whether or not mutual consent has been given to the J of the Court. • Supreme Courts should be able to request advisory opinions according to Judge Shi Defence to exercise of Jurisdiction of the Court – Necessary Third Party Rule Goes to the East Timor Case where Portugal was the administering power of the non-self-governing territory under the UNC. unilateral engagements.so it did it in time. Australia and East Timor . Issues Holding Ratio Dispute falls under the reservation of Canada and therefore outside of the Court’s J. If stipulated “with __ months notice” – this will be held . Canada refused the Court’s J based on the reservation concerning disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area. Status of the court • Jurisdiction is not assured and since cases of Nicaragua and US wherein the US withdrew its consent to the court. a reasonableness standard is applied. Basically gave effect to East Timor’s take-over. Australia entered reservation to its declaration under Art 36(2) that no case as to continental shelf……. this seems to be accepted. • Where states in their reservations have not specified the right to withdraw after a certain period of time the court has applied the reasonable standard. Just need to put the problem in a different light to try to circumvent another country’s reservation. . HOWEVER the reservation has to make sense! The U.no go. HOW!!! By characterizing the dispute as falling outside of Canada’s reservation.Otherwise.S. o E.Other states stip that can withdraw with immediate effect – but. reservation was struck down because it gave the US the ability unilaterally to withdraw when it felt like it. Interpretation by the Court is not a grammatically literal one but rather one in harmony with the natural and reasonable way of reading the text.. Spain disagreed.cannot do so once proceedings have been started against you. 102 . The give a strict intent to the reservation of the party.g. • So. Akhavan • Strategy of the Spanish was to try and characterize in ways other than those that fall under the “fisheries” for Canada’s acceptance of jurisdiction o Freedom of transit on the high seas or use of force • Practice of the court is to give strict effect to the intent of the party submitting to the court under 36(2).Public International Law – Fall 2005 Kirk Shannon Fisheries Jurisdiction Jurisdiction Facts ICJ  Canada arrested Spain fishing vessel for fishing 245 nautical miles off the Canadian coast (in the NAFO Regulatory Area) which was a violation under the Costal Fisheries Protection Act. issue cannot be under the court. 36(2) are facultative. States may add conditions as they wish. Port said that Australia entering into a treaty with Indo (which had taken over East Timor) had accepted unlawful act Indo’s annexation. Declarations under art.Some states make stipulations as to withdrawl.
The opinion is to be given to the G. Before requesting Advisory Opinion • Context – GA was not agnostic on this issue. and not to a specific State or entity.Green Line is a fait accompli – where wall deviates from the green line then it is a violation as it represents a annexation of territory contrary to Hague Conventions Central legal issue: National Security and protection against terrorism versus fundamental right to self-determination in terms of non-self-governing territory. Construction of the Wall Advisory Opinion Jurisdiction Facts Issues Holding ICJ Ad Op 2002 Israel began building barrier in parts of the occupied territory along the Green Line (Ceasefire line from 1967) which was an internationally recognized division b/n Israel proper. the court is not legislating but stating the current status of the law. SC and other organs and specialized agencies of the UN • Art 96 of UNC – empowers request but must be authorized to ask for advisory opinion by the GA o Must be a legal question (not poltical) – this becomes a framing issue. negotiated situation to the Israeli-Palestinian conflict must be considered. The possible effect of opinion on a political. What is the scope of authority of an occupying power in occupying Didn’t the GA already say the above decision? So why bring the court into this debate Ratio Akhavan o o 103 .A.but answered GA’s request on this issue. Wall in certain cases deviates from the Green Line. o Must be w/in scope of activities (eg. 65(1) for advisory opinions. • In giving this opinion. of a WHO question that was not answered by ICJ b/c did not fit this…. the Court refused to decline to exercise J. Relevance – Based on the discretion accorded to the Court under art. Relevance – discretionary power under art. Art 49 is argued not to apply as there was no pre-existing state (Palestine was never a state) – this is said not to matter as it is a non-self-gov territory .. Does Israel have the legal right to construct this wall? What are the legal consequences of the construction of the wall? What is the relevance of a lack of consent of a State concerned? Question cannot be regarded only as a bilateral matter b/t Israel and Palestine but is directly of concern to the UN. Goes back to the law of occupation under the 1907 Hague Convention under IHL.) Legality of the Threat or Use of Nuclear Weapons Case • GA asked for advisory opinion Holding: • Purpose of advisory opinion is not to settle disputes b/n states (at least not directly) but to offer legal advise to the organs and institutions of the UN • ICJ can issue advisory opinion on this question although it might have effects on disarmament negotiations.Public International Law – Fall 2005 Advisory Opinions Kirk Shannon Empowered to give advisory opinions on legal issues arising within the scope of the activities of the GA. 65(1). Resolutions passed condemning construction as being contrary to International Law (legal condemnation) • Also determination made by John Lugard – expert – also said vioaleted IHL. Question representing only 1 aspect of the conflict and the usefulness of the opinion. What is the territorial extent of this territory.
resolutions. In response Libya brought a claim b/f the ICJ against the US and the UK under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation to which all 3 were parties.C. Why are states denied right to ask for advisory opinion? Is this a cloaked manner for UN agencies (who do not have standing before the court in other situations) to litigate? Should states who have not consented but are implicated in the advisory opinion be able to object to the issuing of such an opinion? (response of the court in Interpretation of Peace Treaties Case was that advisory opinions have no binding force and therefore cannot be stopped. Legitimaxy matters and states are concerned about their reputation and will act in accordance. Judicial Review? Does the ICJ have jurisdiction to review the decisions of the UN agencies and Security Council. urged by resolution to comply in the fight against int’l terrorism. In response the S. this was important. 259 people died as well as 11 Scots on the ground as a result of bombs planted by 2 Libyan nationals (supposed members of the Libyan intelligence service). o In CL systems – at some point we believe courts should have the power to strike down legislation.Public International Law – Fall 2005 Kirk Shannon Question The Advisory Opinion of the ICJ in the Construction of a Wall Case more closely resembles propaganda than international law. Allows the ICJ to step out of dispute resolution function and look to future development of international law – marked reluctance to step too far. resolution in which Libya was sanctioned for its failure to assist in the int’l fight against terrorism with even further sanctions.C. UK) (1998) ICJ Relevance – its implications for a power of judicial review (nothing said directly by the Court). o US – classic case of Marbury v. o Based on principles. adopted a resolution in which sanctions were imposed on Libya. o Lockerbie – based on Montreal Convention has “extradite or prosecute” clause and the GA wants extradition. Facts Pan Am aircraft exploded over Scotland in 1988. Libya argued this treaty applied under which it is entitled to take measures to exercise its criminal J and to prosecute the accused. UK and US requested the surrender by Libya of the 2 culprits. Cannot be implied. Lame duck president began to populate the courts with his cronies. though. Finally the ICJ delivered its judgement on the question of J. First case where US case asserted powers of judicial review by saying it had “inherent power” to do so. Madison – 1803. o ICTY – Tadic Case – Jurisdiction motion – Appeals Chamber under the doctrine of la competence de la competence had the power to pronounce of issue o But…Cassesse (Italian judge) comes from a tradition that does not see judicial review in the same view Aerial Incident at Lockerbie Case (Libya v. o Article by Swebble suggests that something as important as Judicial Review must have been considered and left out of statute of the ICJ. The ICJ next rejected Libya’s request for provisional measures followed by another S.’s 104 . finding that it did have J under the Montreal Convention. The S. The majority sidestepped the question of judicial review by focusing on the date upon which Libya brought its original application at which time there were yet no binding S. In the absence of any extradiction treaty between Libya and the US/UK. IL is based on principles that were not enforceable other than exerting pressure and escalating things. Was there any effect? o Supreme Court of Israel might have been influenced in their decision to deem certain portions of the wall to be violations – in a sense they pre-empted the court (the decision came out earlier). Issue of He finds that the Courts decision to join the preliminary objections to the merits has frustrated the S. Prseident Schwebel in a strong dissent addressed the question of judicial review.C.C. o Tension generated by the court taking the issue helped highlight the issue. o Court side-steps issue and does not deal with issue as to whether court can review GA actions or decisions.C. What would be the effect if we were dealing with a dictatorship? o It is a question of authority.
but considered superseded by art. good faith and the strict obligations arising from sovereignty and equality of states – including non intervention and coercion.Public International Law – Fall 2005 judicial review Kirk Shannon efforts to maintain int’l peace and security and has challenged the S. Grotius – de jure belli ac paus – law of war and piece. • What about econo coercion Pressure by other states through embargos or other such means o Art 18 – Charter of Org of American States.2(4) of UN Charter (resfrain from threat or use of force against territorial integrity or political independence of any state) Notes: there were no enforcement mechanisms. The Pact of Paris (Kellogg-Briand Pact) or German Treaty for the Renunciation of War. • Capacity of ability of UN to regulate use of force is central to existence of the UN. • This worked for small problems. peaceful resolution of disputes. This is a signif debate b/c of fragility of developing Declaration on Prcpls of Intl Law Concerning Friendly Relations… 1970 – Just GA resolution – authoritative though • Outlines basic principles of intl law.C. 1928 • Meant to restrict war and use of force to reasonable levels. •These principles constitute basic principles of intl law and require strict observance. – War as continuation of politics by other means • LofN – contained some provisions – but did not contain any any provisions to determine when this had happened. UN Charter Art 2 (3) Intl disputes to be settled in a manner that intl peace and security. No state required to submit such internal matters to settlement under UN. is at the very heart of the Charter manifested by the plenitude of its powers. But it was totally inadequate when major powers were involved. guarantee of sovereignty and independence of states and sanctions. Signed by 15 states. 105 . peace and security through disarmament. Does not prohibit econ or pol pressure. But eah member state decided whether breach had taken place and to take sanctions. VII enforcement measures. Historically – Assumption was that sovereignty could pursue interests as it saw fit. BUT this doesn’t prejudice application of Ch. Prohibition of the use of Force • L of Nation creted to promote intl cooperation. • Also. by way of appeal to the Court”. Failure of league to regulate use of armed force resulted in collapse of organization. emphasizing good neighbourliness. are not endangered (4) Must resfrain from threat or use of force against territorial integrity or political independence of any state or any other manner inconsistent with Purposes of UN. But can be complemented by 1970 declaration below. To read in a power of judicial review on the part of the ICJ would “subvert the integrity of the Charter” in which the S. • Still in force. 1919 Versailles – call for Willhelm’s prosecution under art 227 A. Principle 1: States to refrain from threat or use of force against territorial integrity or political independence of any State . The regrettable result is that the court may have opened itself up to offering a way for recalcitrant States to “parry and frustrate decisions of the S. Note: this codifies rule of customary intl law binding on all states. Part 13 – Use of Force Issue at hand is sovereignty and equality of states.’s integrity and authority.C.C. • Implication is non-intervention in the domestic affairs of other states and in particular the prohibition of the use of force. and justice. Broad or narrow interpretation? (7) UN not authorized to intervene in matters that are essentially w/in jur’n of any state. o But…art 2(4) in UNC does not cover economic coercion.war of aggression = crime against the peace for which there is responsibility under intl law.
Charter of the OAS. Went ahead and bombed. Principle 2: duty not to intervene in matters within domestic jur’n of any State . acts of terrorism or civil strif in another State .if forcible action occurs.duty to refrain from acts of reprisal involving the use of force . Art 21: No recourse to use of force except in cases of self-defense in accordance w/ treaties • Non-intervention principle never explicitly mentioned. economic or cultural elements .refrain from organizing irregular forces/groups for incursion. • ICJ draws distinction btwn issue of acceptance of jurn of Court and compatibility of particular acts w/ intl law. Non recognition of territory or advantages obtained w/ force or coercion. Status” Reflection of CIL or guide to interpreting the Charter? Nicaragua Judgement . Principle 5: sovereign equality of states Principle 6: States shall fulfill in good faith their assumed obligations Notes: Adopted by concensus. ICJ accepted Canada’s position that Court lacked prima facie jur’n since FRY had only deposited its declaration of acceptance of jur’n under Optional Clause in art 36(2) of ICJ statute in Apr’99 and the bombings had started in March. states remain responsible for attributable acts in violation of intl law and parties should take care not to ‘aggravate or extend the dispute. Art 19: cant use coercive measures of economic or political character to force will or take advantage of other State Art 20: absolute inviolability of State territory.every state has inalienable right to choose its political.violation of intl law includes threats against personality of State. Canada agued that Genocide Convention did not provide prima facie jur’n for measures sought and court agreed since threat of use of force cannot constitute an act of genocide and there was no intent on part of NATO powers towards any group. directly or indirectly in the internal or external affairs of another state.no external interference and every State must respect this right in accordance w/ Charter . Case Concerning Legality of Use of Force. Legal concept of non-intervention springs from concepts of respect for the personality and political independence of the state (elements of sovereign equality) and principle of judicial equality. • Non-intervention as corollary of principle of respect for territorial integrity and political independence of states. Even if there is acceptance. its political. Second.Public International Law – Fall 2005 Kirk Shannon . Not only armed forces but also any other form of interference or attempted threat aginat the personality of State. its political. • Problem: There was no threat from another NATO member so self defence could not be used nor could Chapter VII be used b/c would have been vetoed by Russia and perhaps China.no territory can be militarily occupied as result of use of force. think that they have to employ military to make sure it does not spread.limit to this is if it dismembers or impairs territorial integrity or political unity of sovereign and ind. even though states practice is not totally settled. yes.States have duty to refrain from propaganda for wars of aggression . economic and cultural elements.’ 106 . States conducting themselves in compliance w/ principle of equal rights and self-determination. Prhibition on use of force is CIL – degree of focus on opinio juris versus DEFINITION: Agression Use of armed force against the sovereignty of another nation. econ. rejected FRY request for provisional measures to stop the bombings.. Rest of decision not in book. • Is this aggression?: Under the definition. peoplpes are entitled to seek and receive support to react and resist . Kosovo Case: • 90% Albania majority – flashpoint to change ethnic demography • NATO – thought what was happening in other parts of the former Yugo. • In 1999 FRY instituted proceedings against NATO states of bombing Yugoslav territory in violation of UN obligations. social and cultural systems w/out interference Principle 3: duty to co-operate w/ one another in accordance w/ Charter Principle 4: equal rights and self-determination of ppls . 1948 ammended in 1967 Art 18: goes further than UN in prohibiting intervention.Says. but implicit in Charter. ICJ decision.
This armed attack acts includes those of rebels in the form of the provision of weapons or logistical or other support. UN GA Res 3314 – 1974 Preamble: Sec Council shall determine existence of any threat to peace. allowing other State into yours to attack a 3rd state. 3(d) on blockage of ports is not to be construed as prejudicing or diminishing authority of coastal state to exercise its rights in maritime zones w/in limits of its natl jur’n. 1986: ICJ upheld principle of non intervention as part of CIL. crimes of aggression. no crimes of aggression. Art 7: definition not to prejudice right to self-determination. It is the mens rea of criminal law. 1986 – ICJ rules that actions of armed attackes encompass not only those actions by regular armed groups across intl borders. o So. sending armed group to attack a State. If it’s done by private indiv or enterprises it’s not usually regarded as intervention unless there is govt complicity. • Military Activities in and against Nicaragua. body will be convened 107 . • Under Nuremburg. Explains why. in the subject matter jurisdiction but is not defined. Definition of Aggression. Art 5: No consideration of whatever nature may serve as a justification for aggression. sea or air or fleets of another State. Canadian called for aggressive intent. Art 7: Refernce to struggles of self-determination must mean struggle by peaceful means and not one which condones use of force contrary to provisions of Charter. War of aggression = crime against intl peace and gives rise to intl responsibility. suppress it and protect its victims. without final vote.basically aggression • In Rome Stat – US thought aggression was only issue for Security Council and is too political. It must be complimented by intent. breach of peace or act of aggression. security. 1974 Art 1: Canada satisfied w/ basic definition. there was “crimes against peace” . but also the sending of armed bands whose conduct is so grave as to amount to an actual armed attack conducted by regular forces. • This is used by Sec Council when it decides. Notes • Definition received approval by concensus. use of armed forces stationed in the State against it. attach on land. 3(f) + (g) on indirect aggression: determining factor should be degree of force used and degree of responsibility which can be attributed to state rather than means or modalities by which force is used. Charter of Paris 1990: sets affirmative cooperation for Europe for advancement of peace and security. under art 39. whether direct or indirect use of armed force is an illegal use of force in contravention with the Charter. self-determination and protection of HR? • Does art 2(7) probiti intervention where genocidal ethnic cleansing is taking place? Genocide and CAH are violations of erga omnes obligations and subject to universal jurisdiction. with time. Art not to be interpreted as endorsing assault on territorial integrity of any state or condoning dismemberment of any state by violent means. annexation by use of force. military occupation. freedom and independence of ppls Comments by Canadian Delegation. Court of opinion that Charter was not to embody written confirmation of every essential principle of intl law in force. even if it does not refer to cases of indirect aggression Art 2: Aggressive intent is another criteria to consider. Art 1: Aggression is the use of armed force by a State against the sovereignty. There is a note that. • Military Activities In and Against Nicaragua. Sec Council can still decide upon course other than determination of act of aggression w/ view of encouraging parties to seek peaceful settlement of their differences. • Keep in mind that only when govt agents exercise unduly influence to control or subvert another state does it contraven intl law. List is to be an aid. Art 2: first use of armed force = prima facie evidence of act of aggression Art 3: lists whaat qualifies as act of aggression: invasion. Defining it ought to have effect of deterring potential aggressor and simplify determining when it’s there. • Aggression is the most serious and dangerous form of illegal use of force. Art 3: must be read w/ art 2. blockage of ports. • OSCE. Art 4: Acts in art 3 are not exhaustive and Sec Council may deem something else as aggression. territorial integrity or political independence of another State or in any manner inconsistent w/ Charter. Use of armed forces raises a rebuttable presumption that an act of aggression has been committed. even if it’s not written in UN Charter.Public International Law – Fall 2005 Kirk Shannon • Think about intent here: did NATO powers bomb in effort to attack territorial integrity of FRY? Or was it serving the goals of the UN to further the causes of peace. bombardment. under the ICC statute.
Such measures are to be reported immediately to SC and do not affect authority or responsibility of SC to take action it deems necessary to maintain or restore intl peace and security. • UNC does not specifically allow for it. Hyjacked plane – Entebbe Raid see below) • Boxer Rebellion • Grenada – PM had been ousted – Foreign nationals were going to be unsafe and so US and other Carribean nations • Panama – troops stationed in Panama – Used excuse of protection of its nationals. over-whelming. It was seized by British on US waters.1837 • US knew rebels were raiding Canadian riverside and British ships during 1837 Canadian rebellion.no other recourse open for protection (ii) proportionality in action taken * Problem is there’s subjective decision by intervening state and it’s open to abuse. then nothing impairs right to indiv or collective self-defence.c for a long time actions were stymied by the cold war) (3) Where state seeks to protect the rights and personal safety of its nationals who are in state it proposes to intervene • (ie ’76 Israeli intervention in airport in Uganda. 2 US citizens killed. (5) State acting in affairs of protectorate state which it’s obligated to assist (ie under treaty) (6) Where state intervened has committed gross breach of intl law against the intervening state. • The ship Caroline involved in supplying men and materials. present and inevitable. UK vs US . instant. Mr Webster: US does not believe that conditions that UK must show existed. to repel danger of armed attack. Argued that humanitarian considerations outweigh reasons against intervention. The Caroline. This is still force • Nicaragua case – providing weapons is still use of force. (2) that Canada did nothing unreasonable or excessive in entering US. leaving no choice of means and no moment of deliberation. charged w/ murder and arson. These are: (1) necessity of self-defence. What is the standard. But this can easily be used as excuse to meddle in other state’s affairs. B. Justifications for the Use of Force Kirk Shannon The exceptional cases for legitimate intervention: (1) Collective intervention by enforcement action under authority of SecCouncil Chapter VII (2) Also Aka points to GA UPS 1950 that state where there is a 2/3s majority of the SC that support armed force then the GA should be able to act on it (b. The Right to Self Defence UN Charter. “humanitarian intervention”. lit it and sent it over Niagara Falls. Where there is no personal and selfish motive by intervener. • Action discussed in US-UK diplomatic correspondence when Brits sought release of McLeod. To use armed force there must exist: (i) necessity of intervention of account of imminent danger . and to not separate guilty from innocent 108 .Public International Law – Fall 2005 Armed Bandits • Art 3(g) – proxy wars are no different. Art 51 If armed attack occurs against UN Member.. • Is right to self-defence restricted to cases of ‘armed attack’? • What about customary rule of pre-emptive self-defence? Does it survive the Charter? AKA • What about pre-emptive self defence. (7) When govt has invited the intervention in a genuine and real manner. 1. (3) admonition to those on the Caroline was impracticable or would have been no remedy (4) that there was necessity to attack the Caroline. General Noriega took power (with the help of the CIA (4) Individual or collective self-defence. • More limited than right granted by CIL. this is ok.
US rejected this plea.” • Plans to attack were not made for purpose of forestalling Allied landing but prevent future Allied occupation. Security Council Debate • Hammadi (Iraq): . It was carried out on Apr 9. Israel tried diplomatic route. Therefore Nuremburg did not preclude.Actions taken were clean and effective. Notes: • There’s acceptance of (pre-emptive) self-defence justification. under Kellogg-Briand Pact. Security Council Resolution 487 (1981) 109 . • British position was it was pre-emptive. Israel says it’s act of selfpreservation. It reminded states of UN resolution to end transfer of nuclear materials and technology to Israel. Judgment: • Hitler considered invasion of Nw and Dk in Mar ‘40 memo and as early as Oct ‘39. . both morally and legally. It was an exercise of right to self-defence under art 51 and general intl law. Judgment: • Art 51 covers both collective and individual self-defence.Public International Law – Fall 2005 Kirk Shannon Lord Ashburton: agree on principle of intl law applicable to this case – particularly the inviolable character of the territory of independent nations. US had claimed that by providing. as is intl community.Threat of nuclear obliteration was being developed against Isreal by Iraq. • Nurmeburg did not allow pre-emptive self defence but on the facts. Military Activities In and Against Nicarague Case – Nicarague vs US  • In merits phase. Also charged with participating in formulation or execution of common plan or conspiring to commit all these crimes. • At jur’n phase. • Wording of principles of prohibition of force apply to the right of self-defence. . even if it didn’t exist here. unjustified attack on Iraqi nuclear research and recommended suspension of technical assistance to Israel. Nicarague claimed that US acted in violation of art 2(4) of UN Charter and CIL obligatino to refrain from threat or use of force.This was elementary act of self-preservation. ^^ it was preventive action. • To be legitimate. Nuremberg War Crimes Trials – Final judgment of the IMT on 22 major war criminals • Crimes had no exact geographical location. • Blum (Israel): . • IAEA passed resolution condemning Israel for premeditated. to decide whether preventive action was a necessity and such decision was conclusive. Israeli Attack on Iraqi Nuclear Research Centre – 1981 . • Df contends Germany was compelled to attack Nr to forestall Allied invasion. • UK argues there was necessity of self-preservation and danger of future threats. • Acts against Dk and Nr deemed aggressive war. But it was not at all imminent.civilian casualties and much material damage when Israel attacked. proportionate and appropriate assistance to 3rd states not before the Court it was acting in reliance on inherent right to collective self-defence in art 51 of Charter. . upon request. Middle East is a safer place bc of it. • States in GA regard exception to prohibition of force constituted by right of indiv or collective self-defence as matter of CIL. • Preventive action in foreign territory is justified only in case of “an instant and overwhelming necessity for self-defense. self-defence must be necessary and proportionate to harm encountered.Pilot’s mission was to destroy nuclear reactor. • Df argued it was for Germany. war crimes and CAH. showing right’s existence under CIL. Iraq says it was act of aggression. that actions = intervention in internal affairs of Nic. Dfs indicted w/ crimes against peace. then whether self-defence act was aggressive or defensive must be subject to investigation and adjudication. But if intl law is ever to be enforced.Israeli military bombed nuclear station near Baghdad. • IMT held that to initiate war of aggression is supreme intl crime. leaving no choice of means and no moment of deliberation. and there was indiv responsibility for this under art 6 of IMT Charter.
International condemnation of the attack – unlawful use of force. the attacks are strongly condemned.51 do not eliminate the right of self-defence under CIL or confine its overall scope to the expression of art. then cant deny legitimacy of action in defence of nationals. 1 soldier.2(4) and 51. . in Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons Case.If UN is not in position to move in time and there’s need for instant action. Notes • Mr Blum argued that strikes were proportionaly since they were on Sunday and the loss of life was minimal.In practical terms. This makes the right to collective selfdefence as that of the assisting state. None Israeli.Make arg. not the victim. if self-defence is to serve its original purpose. No one sure if Uganda collaborated w/ hijackers or tried to protect hostages. Israel (Mr Herzog): . What is the prohibition of the use of force good for? 2.Uganda violated intl law in failing to protect foreign nationals in its territory and also 1970 Hague Convention. Demands are to liberate about 153 terrorists in 5 countries. • Given art. that hijackers are pirates. such as cutting diplomatic relations or economic aid. the ICJ put two prerequisites: (1) victim state must make a formal and public statement that it has been attacked. 110 . • Reprisals or countermeasures: these are illegal acts. . . Some argue countermeasures short of force are legitimate.Uses scholarly arguments that right of intervention has been claimed by all states and only its limits are disputed . 1996. • Iraq entitled to appropriate redress for destruction it has suffered by Israel. • Retortion: form of self-help open to a state in reply to an injury done to it by another state. and ^^ hostis humani generis (enemies of human race). • 147 passengers freed. 7 hijackers and many Ugandan soldiers were killed. Legal but unfriendly act.It would be permissible under art 51 to engage in anticipatory self-defence if: (1) an armed aggression is imminent according to clear evidence based on facts. modern weapons that some states and not others have. • Canada’s view on legality of ‘first. • Stops in Libya then Uganda. whatever means of force employed • Collective self-defence: must state show that attack on victim state was also attack on itself? And are there proximity reqts? In Nicaragua Case.Public International Law – Fall 2005 Kirk Shannon • Iraq is party to Non-Proliferation Treaty and has applied safeguards satisfactorily. and (2) if allowed to happen the aggression might put in jeopardy the existence of the victimState (as opposed to just inflicting some damage). US was of view that Israelis had not exhausted peacful means. held that dual condition of necessity and proportionality applies equally to art. Self-Defence of Nationals • Is state justified in taking self-help measures to protect its nationals if they’re in imminent danger? • In 19th C nationals were seen as extension of the state and their protection was crucial and lawful. Remaining 104 were in Entebbe until rescued by Israeli military commando.51 and to CIL. Its premeditated attacks created danger to intl peace + security given regional tensions. . • Israel says that Iraq had declared war on Israel in 1948 and therefore this was a state of war. • Judge Schwebel of US was of view that wording and intent of art. • Sec Council voted unanimously against Israel. • 3 hostages. First Strike capabilities are central to this.2(4) of Charter.strike’: while use of armed force confined to situations of necessity.51. and exercise of veto power have altered reality on how right to self-defence can be resorted to. • Call on Israel to refrain from such acts or threats in future and to place its nuclear facilities under IAEA regime • Attacks constitute serious threat to IAEA regime. no help would be expected by some States from UN while use of rapid and all-destructive weapons leaves no room for waiting of an attack. Curtailed by art. Sec Council debated without reaching conclusion. Today? The Entebbe Raid • 1976: Air France plane from Israel to France hijacked by terrorists of the Popular Liberation Front of Palestine. But Israel was not party to IAEA so it could not resort to its peaceful measures or intelligence. done in retaliation and not in self-defence. and (2) assisting states must receive a formal and public request for and from victim. • Recognition of inalienable sovereign right of Iraq to establish programmes of nuclear devt for peaceful purposes consistent w/ internationally accepted objectives of preventing proliferation. • ICJ. • Israel not party to Treaty.
Art 2(7) prohibits intervention in domestic affairs • Gral right to intervene forcibly for humanitarian reasons is acutely controversial. • 1991 SC authorized assistance to Kurds in Iraq (Res. W/in 2 months military w/drew leaving the internal security of Grenada in hands of participating Caribbean forces. principal objective was to get Noriega. Can be used as excuse to meddle. UN Sec Gral Perez de Cuellar: .Sovereignty does not include right of mass slaughter or launching campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection. need for humunitarian assistance and lack of democracy. US bombed Iraqi HQ in retaliation to plot to kill Bush.In Grenada it was precipitated by murder of PM Bishop. . It is open to abuse and susceptible to aspersions being cast on its altruistic and genuine nature. US invaded w/ Commonwealth troops to rescue 1000 US citizens in absence of functioning govt.VII powers.Means used were minimum necessary to fulfil the purpose of rescuing nationals from band of terrorists who were being aided and abetted by Ugandan authorities. • This situation was unique given Uganda’s behaviour.Draws parallel with right of indiv to use appropriate means to defend himself if someone’s trying to kill him. Normally. so it should not set strict precedent. • Now seen only as legitimate if authorized by SC under its Ch. It would be self-defeating and dangerous policy to release the prisoners and accept demands of terrorists. Humanitarian intervention. • Here such requirements were met – specially bc there’s evidence Uganda was helping the terrorists. UN cant allow this anarchy or for might to make right.this was exercise of Israel’s right to self-denfence. Most of members saw situation of Kurds as threat to intl peace and security. 111 . • Uganda’s failures poses qn of their failure to live up to its intl legal obligations under Hague Convention. • In Iraq ’93. It made itself liable to intervention by any state prepared to do so. that’s impermissible. Humanitarian Intervention 1860-61 Ottoman troops blocked from slaughtering Greek Christians by French. • Aside from necessity and proportionality.In Panama. This was hostile action and makes Israel the aggressor under intl law. Cameroon (Mr Oyono) • Isreal took initiative to attack Uganda. Asks for punishment of violation • There was no attempt to solve dispute by peaceful means. . • Iraq-Kuwait crisis redefined peacekeeping role of UN. • Asks SC to condemn ‘barbaric’ act since it violates art 2(4) and 51 of Charter. Much loss of property and life – begs qn if it met tests for self-defence in Caroline Case. • UN Charter is evidence of distrust for such unilateral action. .No consideration other than humanitarian one motivated Israel and operation was not directed at Uganda. • But you can use limited force for protection of one’s own nationals when state they’re in is unwilling or unable to protect them. This self-defence right is limited to necessary and appropriate use of force.688). must still go through the Ch VII of SC. . 2005 Outcome Document Refers to the Responsibility to Protect!!! • If there is a serious violation of HR or humanitarian crisis there is a responsibility to intervene on the international community. Notes • Justification of self-defence also used in US interventions in Grenada (83) and Panama (89). . Killed 6 civilians but said acts were proportionate and linked directly to plot against Bush. • There can be no justification for violation of state sovereignty. Is this anticipatory self-defence or reprisal? 3. Lesson is indicative of potential future role and expanded mandate that an org may have in situations where there are serious q’s of HR violations. • 19th C: right of humanitarian intervention existed where state that had abused its sovereign powers by inflicting excessively inhumane treatment on persons within its borders. US (Mr Scranton) • This act was necessarily a temporary breach of territorial integrity of Uganda. Set precedent for situations where there’s serious humanitarian concern. • That Israel couldve secured release of hostages by mtg demands does not alter these conclusions. Bush said Noriega had declared state of war / US and had threatened lives of Americans in Pma.Public International Law – Fall 2005 Kirk Shannon . charged w/ narcotrafficking and remove his unconstitutional regime.
decides: . then regime change Does legitimacy really matter? Reputation and coalition reasons. Must not be a unilateral act. according to UK and US – for aggression First WMD.condemnation of repression of Iraqis. Consideration for regional realpolitik. . Collective Measures Pursuant to the UN Charter UN Charter Art 2(7): unless applying Ch VII powers. 400 to 1000 Kurds dying daily. yes. Argument can be made that it was invitation • Q’n is wheter state may respond to invitation to assist another state in quelling a revolution or serious unrest.R.Any intl action for protecting HR must be based on decision taken in accordance w/ UN Charter. Use all available resources.insists Iraq allow access of intl humanitarian orgs to those in need . • Kasovo – NATO • India in Bangledesh. Adequate action to restore democracy? • Foreign intervention allowed in struggle against colonial domination. where Aristide was overthrown but UN passed resolution to restore him. as suggested by the Canadian plan with mens rea. Threat to intl peace and security. Security Council Resolution 688 (1991) • Iraq repressing Kurds and forcing mass migration across intl borders. • Intervention of Tanzania in Uganda – Amine • Vietnam in Cambodia to stop K. Invitation: • When invited to participate in domestic or external affairs of nation it’s not intervention or aggression. This would be near impossible to do.Public International Law – Fall 2005 Kirk Shannon . • Invitation must be genuine and voluntary. if breached. nothing authorizes UN to intervene in matters of domestic jur’n or requires members to submit such matters to settlement Art 24: primary responsibility of SC is maintenance of intl peace and security. 4. • UN disturbed. Art 25: members agree to accept and carry out decisions of SC in accordance with the Charter. there are serious interests of China so would be vetoes by a permanent member. without pressure. if there were. but mindful of every state’s sovereignty. • Requests are legitimate response to acts of aggression by 3rd state (art 2(4)) • Eg Kuwaiti govt in exile requested help of UN and intl community. • It’s made by person with authority to make it. Think Darfur – no poltical will but. Res 1441 – says that Iraq broke resolution 678 (1990) which is ceasefire resolution that. Should we allow use of armed force outside use of Ch VII based on Humanitarian Intervention. mainly Kurds.requests SecGen to pursue humanitarian efforts and report back on situation. allowed for any necessary means to…. • Attempts must no seriously undermine the UN. 112 . Iraq – • • • • Intention. This is legitimate as long as requesting state is not suppressing a self-determination movt.demands Iraq ends this repression . Notes: • Resolution was too slow in coming. Was this humanitarian intervention? Did intervention interfere w/ Albanian Kosovar’s right to self-determination? UN did not act possibly bc of potential veto by China and Russia.What’s involved is not right of intervention but collective obligation of States to bring relief and redress in HR emergencies. • But requesting govt must be in control of country and must be lawful govt. is important Basis. But not giving aid to rebel or terrorist mvts • 1999 FRY bombing by NATO. . • Is intervention to restore democracy part of humanitarian intervention? • See Haiti case.
members shall hold available air force contingents. GA Res 1951 • Done by GA in response to impasse created during Cold War by constant vetoes. Uniting for Peace Resolution. (2) To avert overwhelming humanitarian catastrophe ie Kosovo 113 . Art 47: MSC established by Chiefs of Staff of perm members and any other member whose participation’s needed Art 48: Actions required to carry out decisions of SC for intl peace and security to be taken by all Members or some as SC determines. followed by w/drawal of forces. Includes demonstrations. Notes . Art 51: Nothing here takes away from right to indiv or collective self-defence. • Done 3 times before Kuwait: 1) 1950 after invasion of S.Korea. 2) 1982 after Argentina invaded Falklands. Note that USSR not there. means of communication and severance of diplomatic relations. Includes complete or partial interruption of econ relations. Art 44: If member giving forces is not on SC. w/out prejudice to rights. Notes: • For SC to exercise Ch. sea or land. If this means > right to respond proportionately to imminent attack. Art 50: if SC takes preventive or enforcement measures against a state. including use of force when necessary.In Certain Expenses of the UN Case 1962. facilities. ICJ gave advisory opinion that SC’s responsibility under art 24 is primary and not exclusive. Namibia ’81) . • Resolution that if SC bc of lack of unanimity of perm members fails to exercise duty of maintaining intl peace and security where it appears to be breached then GA shall consider matter immediately w/ view to make appropriate recommendations to Members for collective action. Art 40: SC can pass provisional measures. claims or position of parties concerned. Art 49: Members to join in affording mutual assistance in carrying out measures decided by SC. advised that by art 14+18 the GA may take decisions (subject to art.VII powers it must first determine existence of threat or breach of the peace. breach of peace or act of aggression and makes recommendations to maintain or restore intl peace and security. rights of way. it’s invited to SC to participate in decisions concerning their use.Public International Law – Fall 2005 Kirk Shannon Chapter VII Art 39: SC determines existence of any threat to peace. Art 41: SC can decide non armed force measures to give effect to decisions. assistance by agreement(s). Art 42: If measures in art 41 are inadequate. 3) 1980-88 during Iran-Iraq Gulf War SC determined there was breach of peace.12) recommending measures in respect of intl peace and security which would constitute expenses of the Org. Legal Opinion of Lord Goldsmith on the Iraq War – 7 March 2003 • Note considers issues in detail as regards the legal reasoning • There are 3 legal bases for use of force: (1) Self-defence i) There must be actual or imminent threat of an armed attack ii) Use of force must be necessary iii) Must be proportionate • Widely accepted that imminent armed attack will justify use of force if other conditions are met • What is imminent depends on the circumstances • US Doctrine: right to use force to pre-empt danger. Art 46: Military Staff Committee (MSC) to help SC on use of armed force. Afghanistan ’80. then it’s not one that exists or is recognised in intl law. any other state economically affected has right to consult SC with regard to solution of the problem. Art 43: All nations make available to SC armed forces. Force was used under command of US. UN resolution on breach of peace demanding immediate stop of hostilities. • Failure of SC to discharge duties does not relieve Member states of obligations or UN of its responsibility to maintain intl peace and security. SC can send in forces necessary to restore intl peace and security. Art 45: For urgent military measures. blockade and operations by air.Korea by N. Congo ’60.Used number of times (ie for Suez ’56.
So use of force must: 1) have as its objective enforcement of terms of cease-fire in res.VII key q’n here is whether Res. Questions 1. 114 . Is it moving toward being an exhaustive system and how can it learn from this to create a better system (sniff. which automatically forms part of domestic law. so can argue intl aggression is crime recognised by cml which can be prosecuted by UK courts.687 2) be limited to what’s necessary to achieve that objective 3) be proportionate response to that objective • This is not to say action may not be taken to remove Saddam from power if it can be demonstrated that such action is necessary and proportionate measure to secure Iraq’s disarmament. unless charge is of aggression.Public International Law – Fall 2005 • Controversial doctine. sniff). The “responsibility to protect” civilians against human rights violations should not be an excuse for unilateral use of force in violation of the UN Charter? Could it be that we have not achieved a state of maturity. Proportionality • Lawfulness of military action depends on legal basis AND proportionality. Is this an example of the fact that fragmentation has taken over and this may be an example of a case where UNC does not have answers.1414 provides this authorisation Possible Consequences of acting without Resolution Kirk Shannon • GA could request ICJ advisory opinion. (3) Authorisation by SC under Ch. Not appropriate basis for action in present circumstances. So could Iraq or 3rd state (both unlikely). • ICC could have jur’n to examine whether any military campaign has been conducted in accordance w/ IHL • Domestic courts likely to decline jur’n. Aggression is a crime under CIL. But regime change cannot be objective of military action. It could lead to application of interim measures to stop campaign. UNC is not meant to be an all encompassing tool (said in Nicaragua case) and there is a necessity to evolve.
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