International Law - Exam Notes

INTERNATIONAL LAW LAWS259 EXAM NOTES
TOPIC 1. INTRODUCTION TO INTERNATIONAL LAW

THE SCOPE OF PUBLIC INTERNATIONAL LAW
PIL is principally concerned with the relationship between sovereign states (as opposed
to federated states). Public law governs powers and responsibilities of state and
involves the constitution and admin law (how laws are made and should operate).
-
Sovereign states. Eg: Australia, United Kingdom, United States (nearly all
sovereign states are members of the United Nations (current membership =
193)).
Federated states. Eg: New South Wales, Virginia, Schleswig-Holstein
Private law deals with disputes between private individuals of nations i.e., French
company sells faulty goods to Australian company. Do we use French or Australian law?
PERSONALITY IN INTERNATIONAL LAW

Certain non-state entities have legal personality (ie rights and responsibilities) in PIL
-
Eg: United Nations, European Union, WTO
Increasingly, individuals and corporations can enjoy rights and hold responsibilities in
international law
Eg: the right to bring a complaint against a state before the European Court of Human
Rights. Responsibilities under international criminal law (re serious crimes like genocide,
war crimes, etc)
UNITED NATIONS
Document that sets out powers and regulations etc is a treaty and signed by all members
the Charter of the UN - divided into 19 chapters, broken down into 111 articles
UN Charter Art 1: The Purposes of the United Nations are:
1. To maintain international peace and security,
and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion; and
Six principal organs:

1. General Assembly: all members states are represented and meet in chamber.
Broadest function of any insitutions the Parliament etc it is deliberative rather than
legislative only make recommendations, discuss, no passing of laws the same as
domestic Parliament)
2. Security Council: a more powerful body. Consists of 15 members, 5 perm.
3.
Changes to the UN SC are difficult to make requires acceptation from ALL

states
Eurocentric there is usually an overrepresentation by European states and
underrepresentation by Asia, Americas, Africa and the Arab world.
Economic and Social Council: art. 62

UN Charter art 62
4.
1. The Economic and Social Council may make or initiate studies and
T
reports with respect to international economic, social, cultural, educational,
health, and related matters and may make recommendations with respect
to any such matters to the General Assembly to the Members of the United
Nations, and to the specialized agencies concerned.
2. It may make recommendations for the purpose of promoting respect for,
and observance of, human rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly,
with respect to matters falling within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations,
international conferences on matters falling within its competence.
rusteeship Council: played roll in decolonisation of parts of Africa certain
territories known as trust territories would be administered by TC in best interests of
those living in the territories and those of council
5. Secretariat
6. International Court of Justice
-
Governed by the Statute of the ICJ

Consists of 15 judges, elected to 9 year terns
Requests must come from the UN SC and the UN GA
o Legality of the Threat or Use of Nuclear Weapons (1995)
o Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (2003)
May come from various backgrounds but tend to be former academics in Int.
law or barristers practicing in the area
Hears contentious cases brought by one state by another
o Nicaragua v USA, 1983: US support of contra terrorists seeking to
destabilise government in Nic. And resulted in US walking out
o Costa Rica v Nicaragua, 2010: border despite when Nicaragua became
dredging to create canal between two states disputed territory area
of 5sq km
Only states can be parties to these cases although individuals may be called
upon to provide evidence
ICJ heard few cases
IS INTERNATIONAL LAW A LEGAL SYSTEM?

AUSTINS THEORY OF LAW
Austin distinguished natural law (eg religious rules, morality, etc) from positive
law (ie law set (posited) by men to men)
Only sovereigns may posit law
A sovereign is a person, or body of persons, to whom a political community is in

the habit of obedience or submission, who is not in a habit of obedience or
submission to any determinate human superior, and who is able to use coercion
to attain compliance.
UN Charter art 51
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations until the Security Council has taken measures necessary to maintain
international peace and security.
(...)
ARGUMENTS FOR CLAIMING THAT INTERNATIONAL LAW IS A LEGAL

SYSTEM:
1. Language: Governments that claim legitimacy inevitably adopt the language of

law in relation to international affairs and profess obedience to international law
2. Rules are technical not just moral code: many rules of international law are
amoral in nature and are technical.
eg the definition of what constitutes territorial sea (12 nautical miles from
a baseline derived from the coastline) hard to argue that int. law would
be less moral or ethical if the number changed. The choice of 12 is
arbitary and designed so states know where they stand in relation to one
another in regards to coastal waters
3. Distinguishing international law from morality enables us to impose on states

moral duties over and above their legal obligations. For example, it is not illegal
for a state not to help those in need, although it might be considered a moral
duty
COMMON OBJECTIONS THAT INTERNATIONAL LAW IS A LEGAL SYSTEM:

1. International law is routinely breached: for example, US invasion of Iraq.
Arguably, international law is routinely obeyed
Even if a legal rule is routinely breached, surely it remains a legal rule
2. Powerful states are free to flout international law whenever it suits them
The existence of persistent offenders does not mean there is no law
3. International law lacks an enforcement mechanism
TOPIC 2. SOURCES OF INTERNATIONAL LAW

1. TREATIES
Treaties can be described as:
Statute of the ICJ, 1945, art 38 (1):
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a.
international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;
international custom, as evidence of a general practice accepted as law;
the general principles of law recognized by civilized nations;
subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
b.
c.
d.
General:
-
These are multilateral treaties relating to universal substantive legal principles.

o Eg UN Charter (with its general prohibition on the use of force)
They may also be termed legislative or law-making.
Such treaties can be described as formal sources of law: they endow obligations
or entitlements with a legally binding character.
Particular
-
These are usually bilateral treaties relating to a specific issue.

o Eg Treaty of Canterbury (1986) between France and the UK, which dealt
with the building of the Channel Tunnel between the two countries
Such treaties can be described as material sources of law (aka sources of
obligation): they specify a states legal obligations and entitlements.
2. INTERNATIONAL CUSTOMARY LAW

ICJ should only take account of international customs that:
1. represent general practice
2. are accepted as law
- opinio juris (sive/et necessitatis)
In other words, look at what states do, and why they do it. In a sense there is an actus
reus and mens rea to determining international law
State practice (usus)
-
Look at what states say as well as do

For a custom to constitute international law it must represent general
practice
o In accordance with a constant and uniform practice: Asylum case
(Columbia v Peru, ICJ, 1950)
o Practice can be general even though not universal
o Departures from general practice should normally be:
Met with protest by other states, or
State departing from general practice should seek to justify
that departure by reference to exceptions allegedly forming
part of the rule itself
Persistent objection: doctrine suggests that even though a practice is near universal, a
state may be exempt from any resulting rule of international law if it has, from the
outset:
-
Actively rejected the practice (never acquiesced to it), and

Never relied on the existence of such a rule for its own benefit

Note: this does not apply to jus cogens. There is doubt as to whether the doctrine is
correct lack of state practice to support it and the ICJ has never applied it (only obiter
comment).
Anglo-Norwegian Fisheries case, ICJ, 1951: Summary:

UK argued that a Norwegian royal decree delimiting Norways fishery zone (which
was meant to be co-extensive with the territorial sea) was incompatible with
customary international law rules regulating the delimitation of territorial waters.
Norways coastline is punctuated by fjords and sounds as well as fringing islands and
rocks. Instead of delimiting its territorial sea by taking measurements from the law
water park at every point along its coast (as was the usual practice of States)
Norway employed straight baselines between the out-jutting headlands, islands and
rocks, thereby enclosing a larger area of sea than would have usually been the case.
Access by British fishing vessels to areas of sea near the Norwegian coast, which the
UK claimed part of international waters was thus adversely affected. The UK
maintained that customary international law imposed a limit of 10 miles on the
length of such baselines. The court said:
it is necessary to point out that although the 10-mile rule has been adopted by certain
states both in their national la and in their treaties and conventions, and although certain
arbitral decisions have applied it as between these States, other states have adopted a
different limit. Consequently, the 10-mile rule has not acquired the authority of general rule of
international law. In any event the 10-mile rule would appear to be inapplicable as against
Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.
OPINO JURIS (SIVE NECESSITATIS)
Opinio juris refers to the belief by states that a custom is legally binding, ie it is
practised out of necessity, not choice.
Opinio juris may originate as opinio necessitatis where the necessity derives from
political, economic or military considerations.
Geneva Convention on the Continental Shelf 1958, art 6(2)

Where the same continental shelf is adjacent to the territories of two adjacent States,
the boundary of the continental shelf shall be determined by agreement between
them. In the absence of agreement, and unless another boundary line is justified by
special circumstances, the boundary shall be determined by application of the
principle of equidistance from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.
GENERATION OF CUSTOMARY INTERNATIONAL LAW BY TREATY

PROVISIONS
According to the ICJ in the North Sea Continental Shelf cases, this can occur when:
1. provision is of a fundamentally norm-creating character;
2. there is very widespread and representative participation in the treaty, and
3. there is extensive and virtually uniform adherence to the rule in question.

NB: (2) and (3) must apply to states whose interests are specifically affected. Probably,
separate evidence of opinio juris on the part of non-party states abiding by the rule is still
needed.
Regional or special customs mat develop that become legally binding on only some
states
-
Right of Passage case (Portugal v India), 1960

o Concerned Portugals rights of access over Indian territory to its
colonies inland of Damo.
3. GENERAL PRINCIPLES OF LAW

John Finnis (1940 - ) General principle of law
1. Compensation for compulsory acquisition of property;
2. no liability for unintentional injury without fault;
3. no criminal liability without mens rea;
4. estoppel
5. those who seek equity must do equity
6. no aid to abuse of rights
7. fraud unravels everything
8. restoration of unjustified profits
9. pacta sunt servanda
10. relative freedom to change existing patterns of legal relationships by agreement
11. protection of the weak against their weakness
12. right to present your case
13. people should not act as judges in their own cause
4. SUBSIDIARY SOURCES OF INTERNATIONAL LAW

Statute of the ICJ, 1945, art 38(1)
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a.
...;
b.
...;
c.
...;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
5.
Art 59 The decision of the Court has no binding force except

between the parties and in respect of that particular case.
OTHER
SOURCES OF INTERNATIONAL LAW
Actions of international organisations. These can have direct impact regionally or

globally
REGIONAL:
eg, EU institutions pass laws that are binding on EU Member States,

as well as European corporations and people living within the EU.
GLOBAL:
UN institutions have no legislative powers, but the UN Security
Council can prohibit and mandate certain actions by Member States.
TOPIC 3. THE FORMATION OF TREATIES

VIENNA CONVENTION ON THE LAW OF TREATIES 1969
(IN FORCE 27 JAN 1980)
To
Article 2(1)
For the purposes of the present Convention:
(a) treaty means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation;
be governed by the Vienna Convention, a treaty must:
be between sovereign states,
be in written form, and
post-date 27 Jan 1980
NB: a treaty can still be a treaty even if it does not meet one or more of the
above criteria: Art 3.
However, to be a treaty there must be an intention to create relations binding in
international law.
EXAMPLES OF IRREGULAR FORMS OF LEGALLY BINDING AGREEMENT
Oral agreement
agreement by Norway not to contest Danish sovereignty over Greenland
and not to occupy any part of Greenland, in return for Denmark not objecting to a
Norwegian claim over Spitsbergen (1919).
Legal Status of Eastern Greenland case (Norway v Denmark), ICJ,
1933)
Official press communiqu
agreement between Turkey and Greece re division of the Aegean Sea
Continental Shelf (1975)
Exchange of letters between heads of state
agreement between Qatar and Bahrain re territorial division (1987)
Treaty proposed
Treaty negotiated
Treaty signed
Treaty ratified
Treaty comes into force

RESERVATIONS
DEFINTION
Vienna Convention on the Law of Treaties Art 2(1)(d):
reservation means a unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State; ...
RIGHTS TO RESERVATIONS
Vienna Convention on the Law of Treaties Art 19: Formulation of
reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
TOPIC 4. TREATY INTERPRETATION AND ENFORCEABILITY

Three approaches to interpretation
1. Intentions of the parties
What did the people who originally agreed the treaty mean to achieve?
Eg: in 1945, what did the parties mean by Art 2(4)?
Look in particular at the travaux (prparatoires) (preparatory documents)
2. Textual
Look at the ordinary meaning of words: the treaty on the page.
Eg: what does Art 2(4) actually say?
3. Teleological
Look at the aims and objects of the measure, taking the bigger picture.
Eg: ultimately, what did Art 2(4) (and the entire UN Charter) set out
to achieve?

Vienna Convention on the Law of Treaties 1969
Article 31: General rule of interpretation
1.
A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
2.
The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a)
any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b)
any instrument which was made by one or more parties in connection
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3.
There shall be taken into account, together with the context:

(a)
any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b)
any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c)
any relevant rules of international law applicable in the relations
between the parties.
Must consider:
Final Acts
eg: Final Act of the Rome Conference re the establishment of the

International Criminal Court, 17 July 1998
http://legal.un.org/icc/statute/finalfra.htm
Subsequent practices
eg: rules re voting rights of permanent members of the UN Security

Council
UN Charter, Art 27(3):

Decisions of the Security Council on [nonprocedural] matters shall be made by an
affirmative vote of nine members including the
concurring votes of the permanent members ...

Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

Article 33: Interpretation of treaties authenticated in two or more languages
1.
When a treaty has been authenticated in two or more languages, the text is
equally authoritative in each language, unless the treaty provides or the parties agree
that, in case of divergence, a particular text shall prevail.
2.
A version of the treaty in a language other than one of those in which the text
was authenticated shall be considered an authentic text only if the treaty so provides
or the parties so agree.
3.
The terms of the treaty are presumed to have the same meaning in each
authentic text.
4.
Except where a particular text prevails in accordance with paragraph 1, when a
comparison of the authentic texts discloses a difference of meaning which the
application of articles 31 and 32 does not remove, the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty, shall be adopted.
Eg: Stauder v City of Ulm (1969, European Court of Justice)
The EEC set up a scheme to sell cheap butter to welfare claimants. The
German-language version of the law (which required the claimant to
provide a name) was interpreted so as to accord with the other (more
liberal) language versions, thus avoiding a confrontation between the EEC
and Germany over human rights.
CHANGING TREATIES
Amendment: refers to the formal alteration of treaty provisions that affects the rights or
responsibilities of all parties
eg parties to a free trade area decide to extend the principle of free movement of
goods to free movement of capital
Modification: refers to a variation of treaty provisions that affects the rights or

responsibilities of only some parties
eg a peace treaty requires State A to pay reparations to States B and C. State B

decides to forego reparations. States A and B can modify the treaty without the
approval of State C.
INVALIDITY OF TREATIES
Possible grounds for declaring a treaty invalid:
A national constitution prohibited entry into the treaty (VCLT Art 46)
Article 46: Provisions of internal law regarding competence to conclude treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.
A national representative did not have sufficient authority (VCLT Art 47)
Error (VCLT Art 48)

Article 48: Error
1. A State may invoke an error in a treaty as invalidating its consent to be bound by
the treaty if the error relates to a fact or situation which was assumed by that State to
exist at the time when the treaty was concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct
to the error or if the circumstances were such as to put that State on notice of a
possible error.
3. An error relating only to the wording of the text of a treaty does not affect its
validity; article 79 then applies.
Fraud (VCLT Art 49)
Corruption (VCLT Art 50)
Coercion (VCLT Arts 51 - 52)
Article 52: Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force
Jus cogens and obligations erga omnes (VCLT Art 53)
CONSEQUENCES OF INVALIDITY
Cassese divided grounds of invalidity into two groups:
1. absolute: any party can invoke invalidity
coercion (against state or its representative)
incompatibility with jus cogens
2. relative: only the victim state can invoke invalidity
error; fraud; corruption; manifest violation of internal law; ultra vires

the authority of the state representative
Can treaties be divided between valid and invalid clauses?

1. Absolute grounds: NO
2. Relative grounds: YES
TERMINATION OF A VALID TREATY

Ways in which treaty relationships can come to an end:
Consent of the parties
Subsequent incompatible treaty
Denunciation (bilateral treaty)
Withdrawal (multilateral treaty)
Termination through impossibility
New jus cogens incompatible with treaty
Material breach:
VCLT Art 60(3): Definition of material breach
A material breach of a treaty, for the purposes of
this article, consists in:
(a) a repudiation of the treaty not sanctioned by
the present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the
treaty.
Article 60: Termination or suspension of the operation of a treaty as a

consequence of its breach
1. [re bilateral treaties]
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the
defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the
treaty is of such a character that a material breach of its provisions by one party
radically changes the position of every party with respect to the further performance
of its obligations under the treaty.
Article 62: Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:
a) the existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
b) the effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
a) if the treaty establishes a boundary; or
b) if the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.

TOPIC 5. INTERNATIONAL AND NATIONAL LAW
MONOSIM V DUALISM
Monism
Sees national and international law as two parts of an integrated whole
National law derives its authority from international law
International law is automatically part of a states domestic legal order
International law predominates over national law
Associated with the civil law system
Dualism
Sees international and domestic law as completely distinct legal orders
Inconsistencies do not arise: the systems have different subjects and fulfil
different purposes
In order for a rule of international law to enter the domestic legal order, a
formal step of incorporation or transformation by the latter is needed
Associated with the common law system

Article 46: Provisions of internal law regarding competence to conclude treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.
ACCEPTANCE OF CIL INTO ENGLISH COMMON LAW

Trendtex Trading Corp v Central Bank of Nigeria (1977, EWCA)
re extension of state immunity to the commercial activities of state bodies
(in this case the Central Bank of Nigerias immunity against proceedings in
English law)
Strictly applying the principle of stare decisis might be taken to mean that English
law should apply regardless of international law.
Held: English law must apply relevant norms of international law. Stare decisis did
not prevent the English common law from reflecting changes in international law.

REJECTION OF CIL BY AUSTRALIAN COMMON LAW
Chow Hung Ching v The King (1948, HCA)
re extension of state immunity to a foreign states armed forces
(in this case whether members of Chinas armed forces were
immune from Australian law)
Held (arguably obiter): international law is not part of Australian
common law, but is a mere source of that law
NON-ACCEPTANCE OF INTERNATIONAL CRIMINAL LAW INTO AUSTRALIAN

COMMON
Mabo v Queensland (No 2) (1992, HCA)
LAW
re recognition of indigenous law on Murray Island, Torres Strait (part of

Queensland)
Held:(FCA,
even 1999)
if customary international law (CIL) were to allow for the operation
Nulyarimma v Thompson
of terra nullius over occupied territory, that doctrine does not accord with the
re an attempt to prosecute Australias prime minister for genocide of Aboriginal
contemporary values of the Australian people, and so cannot be retained in
people
Australias current common law.
Held: although the prohibition against genocide is jus cogens in CIL, it still requires
an act of the Australian legislature to incorporate the crime into Australian law.
NON-ACCEPTANCE OF INTERNATIONAL CRIMINAL LAW INTO ENGLISH

COMMON LAW
R v Jones (Margaret) [2006] UKHL 16
Protesters against the 2003 Iraq war caused damage at an English military
airbase. They pleaded as a defence the Criminal Law Act 1967 (UK) s 3:
A person may use such force as is reasonable in the circumstances in the
prevention of crime
The question for the Lords was whether the defence could arise in relation to
activity that is criminal under international law (the crime of aggression) but not
UK domestic law.
Held: no, it could not.
The creation of new criminal offences is the sole domain of Parliament.
It is the practice to legislate re new offences assimilated into domestic law
from international law.
The rule is that UK courts will be slow to interfere with the exercise of
prerogative powers by the Executive.
The state cannot put itself on trial, which is effectively what would happen
if UK courts were to decide that the UK had committed the crime of
aggression.
THE ACT OF STATE DOCTRINE

As a general rule courts in the UK and Australia will not interfere with the exercise of
prerogative powers by the Executive (which mostly includes the conduct of foreign
relations)
Re Wong Hon (1959)
A Chinese national was charged with murder in Kowloon, a territory then leased by
China to the UK.
The defence argued that China had retained jurisdiction over Kowloon, meaning
that the defendant should not be charged under British law.
The UK claimed jurisdiction over Kowloon and the (British) Supreme Court of Hong
Kong was not prepared to question that claim.
SUMMARY: INCORPORATION OF CIL INTO THE COMMON LAW
This is more likely in the UK: Trendtex.
Habib v Commonwealth of Australia (2010)

Mamdouh Habib, an Australian citizen, was detained and allegedly tortured in Pakistan
and Egypt by local and CIA officials. He was then transferred to Guantanamo Bay
where he allegedly suffered further torture at the hands of the USA.
Upon release to Australia, Habib sued the Australian Commonwealth for damages,
alleging that Australian officials had aided, abetted or counselled the acts of torture
by foreign officials.
The Australian Executive claimed that its federal courts did not have jurisdiction to
hear the case. Foreign relations might suffer if the courts were to accuse foreign
officials of unlawful torture, and foreign relations are the sole domain of the Executive.
Held: the Federal Courts are entitled to adjudicate on the legitimacy of acts by
Australian officials, even if this indirectly involves consideration of the legitimacy of
acts by foreign officials, thus potentially undermining comity.
It is less likely in Australia: Chow Hung Ching and Mabo.
In Australia, rules of CIL will not be incorporated where:
they are inconsistent with domestic legislation (cf EU law in the UK);
they are inconsistent with essential common law doctrines (Mabo), or
doing so would impugn an act of state by the domestic sovereign or a foreign

sovereign state (R v Jones)
cf Habib, where the direct issue was whether Australian officials had
acted unlawfully by aid and abetting torture, and Australias Parliament
(as opposed to international law) had already determined that torture
was unlawful).
IN ORDER TO CREATE RIGHTS IN UK LAW, TREATIES NORMALLY HAVE TO

BE TRANSFORMED (USUALLY BY LEGISLATION)
JH Rayner (Mincing Lane) Ltd v DTI (UKHL, 1989)
A treaty set up the International Tin Council (ITC).
The ITC was given legal personality in the UK due to UK subordinate

legislation.
Creditors sued in English law, seeking to recover money from the ITCs state
members, as opposed to the ITC.
Held: the fact that under the treaty the member states undertook
responsibility for ITC debts was irrelevant. The treaty did not create rights
under English law.
Tang Ping-hoi v Attorney General (Hong Kong High Court, 1987)
The UK had undertaken in a treaty with China not to charge premiums in

relation to Hong Kong leases.
The (British) Hong Kong government sought to charge the plaintiff a premium
for a lease.
Held: The treaty did not create a right in domestic law enabling the plaintiff to
avoid payment of the premium.
NB: the EU treaties are an exception to this rule.

Dietrich v R (HCA, 1992)
The appellant had applied for legal aid in Australia. His application was
refused. He was subsequently tried without legal representation.
The appellant claimed that he was denied a fair trial, in that he had no legal
counsel.
The International Covenant on Civil and Political Rights (ICCPR) guarantees the
right to fair trial. Australia is party to the ICCPR.
The High Court held that any rights guaranteed by the ICCPR still need to be
transformed into domestic law before they can be effective in a domestic
court.
THE EFFECT OF IL ON AUSTRALIAN LEGISLATION

Polites v Commonwealth (1945)
Concerned interpretation of National Security Act 1939 s 13A:
Notwithstanding anything contained in this Act, the Governor-General may make such
regulations making provision for requiring persons to place themselves, their services
and their property at the disposal of the Commonwealth, as appear to him to be
necessary or expedient for securing the public safety, the defence of the
Commonwealth and the Territories of the Commonwealth, or the efficient prosecution
of any war in which His Majesty is or may be engaged: Provided that nothing in this
section shall authorize the imposition of any form of compulsory service beyond the
limits of Australia.
Did this permit the Governor-General to call up non-Australians living in Australia? This
would be a breach of international law. Held: IL does not constrain the power of an
Australian legislature.
IL cannot render intra vires acts by the Australian government which would otherwise be
ultra vires under Australian law

Bradley v Commonwealth (HCA, 1973)
The UN Security Council required states to frustrate the illegal white minority
regime then governing Rhodesia (now Zimbabwe).
The Australian (executive) government suspended postal and phone services to

the Rhodesia Information Centre in Sydney. This was not permitted under
Australian legislation.
Held: the suspension was unlawful in Australia, regardless of the UN Security

Council resolution.
LIMITS TO THE EFFECT OF IL ON STATUTORY INTERPRETATION

A treaty can only assist in the interpretation of Australian legislation if:
1. there was contemplated or actual participation by Australia in that treaty prior to
enactment of the legislation in question, and
2. either the legislation in question:
a) is ambiguous or obscure, or
b) would otherwise lead to a result that is manifestly absurd or is unreasonable
-
see Acts Interpretation Act 1901 (Cth) s 15AB
Acts Interpretation Act 1901 (Cth) s 15AB

Commonwealth v Tasmania (Tasmanian Dam Case), HCA, 1983
1. Subject to subsection (3), in the interpretation of a provision of an Act, if any
Inof
1974
became
party to in
thethe
Convention
governing
material not formingpart
the Australia
Act is capable
of assisting
ascertainment
of theUNESCOs World
Heritage
Program.
meaning of the provision, consideration may be given to that material:
the
The
Australian
Commonwealth
passed
legislation
to conveyed
protect part of Tasmanias
a) to confirm that
meaning
of the
provision is the
ordinary
meaning
wilderness
from
the
building
of
a
dam.
by the text of the provision taking into account its context in the Act and the
Held:
purpose or object
underlying the Act; or
b) to determine the meaning
of the
provision
when: of the dam would normally be a matter for
Even
though
construction
i.
the provision is ambiguous
or
obscure;
or
Tasmania, in light of Australias international obligations the
ii.
the ordinary meaning conveyed
by the text
the provision
taking into account
Commonwealth
wasof
entitled
to intervene.
its context in the Act and the purpose or object underlying the Act leads to a
However,
if the
Commonwealths
result that is manifestly
absurd
or is
unreasonable. use of the external power was no
more than a device to exercise legislative power then it would probably
not of
besubsection
legitimate.(1), the material that may be
2. Without limiting the generality
considered in accordance with that subsection in the interpretation of a provision
of an Act includes: (...)
d) any treaty or other international agreement that is referred to in the Act;
(...)
3. In determining whether consideration should be given to any material in
accordance with subsection (1), or in considering the weight to be given to any
such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text of the provision taking into account its context in the Act
and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating
advantage.
THE EFFECT OF IL ON ADMINISTRATION

Minister for Immigration and Ethnic Affairs v Teoh (HCA, 1995)
A Malaysian father with three children in Australia applied for Australian

permanent residence.
The Australian government rejected his application on the basis of his criminal
record.
Australias immigration regulations did not, in themselves, require Australia to take

account of the childrens interests.
HELD: Due to the Convention on the Rights of the Child, in determining his
application Australia was required to treat the interests of the children as a
primary consideration.
cf comments made in:
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam

(HCR, 2003)
Plaintiff S10/2011 and Minister for Immigration and Citizenship

(HCR, 2012)
GERMAN BASIC LAW

Article 25: Primacy of international law
The general rules of international law shall be an integral part of federal law. They
shall take precedence over the laws and directly create rights and duties for the
inhabitants of the federal territory.
Art 59(2):
Treaties that regulate the political relations of the Federation or relate to subjects of
federal legislation shall require the consent or participation, in the form of a federal
law, of the bodies responsible in such a case for the enactment of federal law. ...
DUTCH CONSTITUTION, 1983
Article 90
The Government shall promote the development of the international rule of law.
Article 91
(1) The Kingdom shall not be bound by treaties, nor shall such treaties be denounced
without the prior approval of the Parliament
(2)
(3) Any provisions of a treaty that conflict with the Constitution or which lead to conflicts
with it may be approved by the Chambers of the Parliament only if at least two-thirds of the
votes cast are in favour.
Article 93
Provisions of treaties and of resolutions by international institutions, which may be binding
on all persons by virtue of their contents shall become binding after they have been
published.

6. STATEHOOD AND PERSONALITY
THE CRITERIA OF STATEHOOD
The Motevideo Convention 1933, Art 1
The state as a person of international law should possess the
following qualifications:
a) a permanent population; b) a defined territory;
c) government; and
d) capacity to enter into relations with the other states.
a) Permanent Population
- Need not be entirely settled: Western Sahara Case 1975
b) Defined Territory
- Disputed borders do not disqualify from statehood
c) Government
- Appears to mean effective as opposed to moral
- Required formal (if not necessarily entirely substantive) independence
- Requires stable political organisation with control throughout the territory
of the state without the assistance of foreign troops: Aaland Islands case,
League of Nations, 1920
d) Capacity to enter into relations with other states
- Constitutive v declaratory theory
CAPACITY TO ENTER INTO RELATIONS: CONSTITUTIVE V DECLARATORY

THEORY
CONSTITUTIVE THEORY OF RECOGNITION
This claims that recognition as a state by other states is a necessary precondition for
statehood.
It sees the act of recognition as performative.similar to answering the question do you
promise to be good? with yes
Saying yes creates the promise. It does not acknowledge a pre-existing promise.
DECLARATORY THEORY OF RECOGNITION

This claims that recognition of a state constitutes acknowledgment of pre-existing
statehood.
It sees the act of recognition as declaratory. similar to I declare you the winner of the
race

usually this does not mean you are the winner because I say so. It means I
acknowledge you are the winner because you ran the fastest. A declaration
acknowledges (and, in the case of doubt, clarifies, or, in the event of a dispute, decides)
a pre-existing state of affairs: eg that you ran fastest and therefore won the race.
UN General Assembly Resolution 1514, 14 Dec 1960

2.
All peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
(...)
1. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or
all other territories which have not yet attained independence, to transfer all
powers to the peoples of those territories, without any conditions or reservations,
in accordance with their freely expressed will and desire, without any distinction as
to race, creed or colour, in order to enable them to enjoy complete independence
and freedom.
2. Any attempt aimed at the partial or total disruption of the national unity and the
UN Charter 1945, 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, 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, the well-being of the inhabitants of these territories, and, to this
end:
(...)
e. to transmit regularly to the Secretary-General for information purposes, subject to
such limitation as security and constitutional considerations may require, statistical
and other information of a technical nature relating to economic, social, and
educational conditions in the territories for which they are respectively
responsible other than those territories to which Chapters XII and XIII apply.

UN General Assembly Res 1541 (XV), 1960
PRINCIPLES WHICH SHOULD GUIDE MEMBERS IN DETERMINING WHETHER OR
NOT AN OBLIGATION EXISTS TO TRANSMIT THE INFORMATION CALLED FOR IN
ARTICLE 73 E OF THE CHARTER OF THE UNITED NATIONS
(...)
Principle IV
Prima facie there is an obligation to transmit information in respect of a territory which
is geographically separate and is distinct ethnically and/or culturally from the country
administering it.
Principle V
Once it has been established that such a prima facie case of geographical and ethnical
or cultural distinctness of a territory exists, other elements may then be brought into
consideration. These additional elements may be, inter alia, of an administrative,
political, juridical, economic or historical nature. If they affect the relationship between
the metropolitan State and the territory concerned in a manner which arbitrarily
places the latter in a position or status of subordination, they support the presumption
that there is an obligation to transmit information under Article 73 e of the Charter.
EXTERNAL V INTERNAL SELF-DETERMINATION

EXTERNAL SELF-DETERMINATION
the right to an independent state
appears to apply to peoples who are geographically separate AND ethnically/culturally
distinct from the administering country
eg France and the peoples of Indochina
According to the Supreme Court of Canada (Reference re Secession of Quebec), a people
may enjoy a right to statehood where:
a) colonised by an imperial power;
Quebecois, at the time of their defeat by Britain, were themselves European colonisers
of North America
b) subjected to alien subjugation, domination or exploitation outside of a
colonial context, or
c) denied their rights to internal self-determination
remedial secession
Quebecois enjoy a high level of autonomy, access to government, cultural rights
etc.
INTERNAL SELF-DETERMINATION
rights to recognition and autonomy that fall short of a right to statehood
these appear to apply to minorities within states (eg Serbian minority within Bosnia and
Herzegovina and Russians within Ukraine)
Factors to consider in determining what constitutes a people (based on a 1990 report
prepared for UNESCO):
a) common features

common history, racial/ethnic identity, culture, language, religious orideological
affinity, territorial connection, economy
b) quantitative
There need not be a large number, but there must be more than a mere
association of individuals.
c) subjective
Does the group wish to be identified as a people?
d) institutions
Do there exist means of expressing common features and the will to be
identified as a people?
Political parties, cultural associations, etc.
UN Charter, Art 2(4)

All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations.
PERSONALITY OF INTERNATIONAL ORGANISATIONS

Consider:
The organisations constituent instruments

The organisations specified or implied objects and purposes
What is essential to the performance of the organisations duties
The practice of states in their relations with the organisation
- Reparation for Injuries Suffered in the Service of the United Nations, ICJ
Advisory opinion, 1949
7. STATE REPONSIBILITY
DASR: GENERAL PRINCIPLES
DASR: General Principles

Article l: Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility
of that State.
Article 2: Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an
action or omission:
(a) is attributable to the State under international law; and(b) constitutes a breach
of an international obligation of the State.
Article 3: Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the

DASR: Attribution to a state
Article 4: Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its character as an organ of the
central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law
of the State.
Article 5: Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in
that capacity in the particular instance.
Applies to privatised state services, eg security companies running prisons, etc.
Article 6: Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered an
act of the former State under international law if the organ is acting in the exercise of elements of
the governmental authority of the State at whose disposal it is placed.
Eg: Australia sends police officers to assist in the aftermath of an overseas earthquake
Article 7: Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the
organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes
instructions.
Eg: police officers assault an overseas tourist in a police cell, even though they have
been explicitly told not to.
Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under
the direction or control of, that State in carrying out the conduct.
Eg: volunteers assisting at a major sporting event are instructed to submit suspiciouslooking foreigners to degrading body searches
Article 9: Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the
governmental authority in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority.
Eg: acts committed by the Revolutionary Guards in the immediate aftermath of the
Iranian Revolution in 1979
Article 10: Conduct of an insurrectional or other movement
3. The conduct of an insurrectional movement which becomes the new Government of a
State shall be considered an act of that State under international law.
4. The conduct of a movement, insurrectional or other, which succeeds in establishing a new
State in part of the territory of a pre-existing State or in a territory under its administration
shall be considered an act of the new State under international law.
5. This article is without prejudice to the attribution to a State of any conduct, however related to
that of the movement concerned, which is to be considered an act of that State by virtue of
articles 4 to 9.
Article 11: Conduct acknowledged and adopted by a State as its own

RESPONSIBILITY FOR ACTS OF ANOTHER STATE
DASR: responsibility for acts of another state
Article 16: Aid or assistance in the commission of an internationally
wrongful act
A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
Eg: assisting the USA in the rendition of suspected terrorists
Article 17: Direction and control exercised over the commission of an
internationally wrongful act
A State which directs and controls another State in the commission of an
internationally wrongful act by the latter is internationally responsible for that act if:
6. (a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
7. (b) the act would be internationally wrongful if committed by that State.
Article 18: Coercion of another State
A State which coerces another State to commit an act is internationally responsible
for that act if:
REPARATION
DASR: reparation
Article 30: Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;(b) to offer appropriate assurances and
guarantees of non-repetition, if
Article 31: Reparation
8. The responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
9. Injury includes any damage, whether material or moral, caused by the
internationally wrongful act of a State.
RESTITUTION AND COMPENSATION

Article 35: Restitution
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act
was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation.
Article 36: Compensation
10. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made
good by restitution.
11. The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established.
SATISFACTION
Article 37: Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to
give satisfaction for the injury caused by that act insofar as it cannot be made good
by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression
of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State.
CIRCUMSTANCES PRECLUDING WRONGFULNESS (DEFENCES)
Consent
Self-defence in the face of an armed attack
Taking legitimate countermeasures
Force majeure
Distress
Necessity

UN Charter
Art 2(4)
All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
Art 51:
(...)
Has there been an armed attack?
YES Art 51 Right to Self defence
NO Has there been a breach of Art 2(4)?
YES Right to counter-measures short of self defence
NO Standard jurisdictional rights only
FORCE MAJEURE
Article 23: Force majeure
1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the
State, making it materially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring.
DISTRESS
Article 24: Distress
12. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the author of the act in question has no
other reasonable way, in a situation of distress, of saving the authors life or the
lives of other persons entrusted to the authors care.
13. Paragraph 1 does not apply if:
1. (a) the situation of distress is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or
2. (b) the act in question is likely to create a comparable or greater peril.
1.

NECESSITY
Article 25: Necessity
1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that State
unless the act:
3. (a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and
4. (b) does not seriously impair an essential interest of the State or States
towards which the obligation exists, or of the international community
as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
5. (a) the international obligation in question excludes the possibility of
invoking necessity; or
6. (b) the State has contributed to the situation of necessity.
Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion of the ICJ, 9 July 2004
What are the legal consequences arising from the construction of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as
described in the report of the Secretary-General, considering the rules and principles of
international law, including the Fourth Geneva Convention of 1949, and relevant Security Council
and General Assembly resolutions?
Right of self-determination
The Court gives a variety of reasons for this conclusion, but the primary reason is that it infringes
upon the right of the Palestinian people to self-determination as laid down in Article 1 to the UN
Charter.
In coming to that conclusion, the Court rejected Israels assertion that the wall is a temporary
security barrier without any political significance, which can be taken down at any time as part of a
political settlement. Rather, the Court comes close to saying that the construction of the wall is a
preliminary to the annexation by Israel of the so-called Closed Area lying between the Green Line
and the wall:
The Court considers that the construction of the wall and its associated rgime create a fait
accompli on the ground that could well become permanent, in which case, and
notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de
facto annexation. (paragraph 121)
8. TREATMENT OF FOREIGN NATIONALS

Dealt with by customary international law: document drafted by ILC Draft Articles on
State Responsibility
Not a treaty but reflects a consensus view in what reflects IL in that area
For a state to be held responsible the act has to be an international obligation and it
must be attributable to state in question and there must be no defences
Although international law primarily deals with states it affects individuals.
Conceivable that a state may refuse to take responsibility for foreigners.

STANDARD OF TREATMENT
National treatment standard
A foreign national is entitled to be treated no worse than a local national
International minimum standard
A foreign national is entitled to minimum standards of protection,

regardless of the treatment of local nationals
the favoured view among publicists
To a considerable extent international mechanisms for human rights

protection help to ensure these minimum standards, since they invariably
encompass treatment by a state of non-nationals of that state. Eg:
167 states are party to the International Covenant on Civil and

Political Rights
47 states are party to the European Convention on Human

Rights
Even so, some states are not party to any human rights treaty. In those
cases it is harder to determine the minimum standards of protection that a
state should afford non-nationals.
DECISIONS OF US-MEXICAN/PANAMA CLAIMS COMMISSION
Began in 1910-1920
In 1913 Mexico experienced military coup where a military general took power
Led to a breakdown with US US troops sent into Mexico to occupy an important
seaport
US Mexican relations remained on knife edge Mexico raided US leading to death of
19 US citizens
1924 a treaty between US and Mexico set up a commission to consider claims of
citizens. The commission sat from 1924 1927
Re states negative obligations: (what states are not meant to do)
Roberts Claim, 1926 (unacceptable prison conditions)
Re imprisonment in Mexico of a US national for 19 months. Subject

to cruel and inhumane treatments - confined. The conditions of
captivity were held to be unacceptable, even though Mexican
prisoners received the same treatment.
Commission decided that facts with respect to equality of treatment

between aliens and nationals may be of consideration BUT is not
the ultimate test
The important test to apply is whether aliens are treated in

accordance with ordinary civilisation determined that Roberts did
suffer cruel and inhumane treatment
Re states positive obligations: (what a state must do in order to safeguard

foreign nationals)
Issue extent to which a state must protect a foreigner from acts of other
nationals or the government itself. Obvious way to protect is through
criminal law.
Massey Claim, 1927 (unauthorised release of a suspect from

custody)
Janes Claim, 1926 (inadequate measures to apprehend a suspect)
Re murder of a US citizen by a Mexican in Mexico. The

Mexican murderer was allowed to escape. Mexico was held
responsible for the escape for failing to capture and punish
the killer, even though the prison officer who let him escape
was punished for doing so. Mexico was required to pay
compensation to the US citizens widow not for his murder,
but Mexicos failure to take proper measures to punish
murderer.
Re tardiness by a local Mexican police Comisario
(Comissioner of Police) in pursuing the escaping killer of a
US national. Rather than pursing the killer on foot, police
chief spent an hour organising horses to chase by the time
organised the culprit was away. Mexican Claims Commission
not satisfied Mexico had done enough to capture killer.
Mexico was held responsible for failing to bring the killer to
justice. Again not in relation to the killing but Mexicos failure
to fulfil obligations.
Noyes Claim, 1933 (inadequate police protection)
Suggests level of neglect would need to be extremely bad
Raised by US against Panama
Re inadequate policing of a large crowd which attacked a US

citizen. Police presence consisted of the usual 3 officers.
Crowd became rowdy form alcohol and a US citizen tried to
drive through crowd. Police officers did what they could to
protect US citizen. Claim not directed at them but Panamas
failure to provide more officers. Panama was held to be not
responsible for injuries and damage to property resulting
from the inadequate police presence. There would need to
be a more general failing in policing. There must be shown
special circumstances where the authoritys behaviour didnt
comply or there was a general failure
INTERNATIONAL COVENANT OF CIVIL AND POLITICAL RIGHTS
167 states party (90% of UN membership) with exception of China, Saudi Arabia and
Myanmar all worlds major states are party
these HR treaties invariably afford protections regardless of a persons nationality
European Convention of Human Rights - no distinction drawn between UK
nationals, and visitors from other states. If you are a foreigner visiting UK or other 46
states party, then automatically there exists a mechanism where you can safeguard
your rights in IL and bring your claim to the Court of European HR in Strasbourg
dont even need Australia to back to up
States that are not party to a single HR convention what level of protection does that
state need to provide?
Answer to whether a state has certain HR obligations towards citizens depend on the
extent to which customary international law has been adopted in particular jus cogens
(rules of customary international law that states cannot opt out of).
If we can clearly identify those customary international legal rules then we can ask
ourselves how bad does treatment need to be before it drops below this customary
standard? not an easy question to ask
If a state falls outside all those systems of protection then there is nowhere for the
individual to complain to there is no International Court of HR with universal
jurisdiction, and because there is no such court there is no court to guide us.
Therefore, this question is rarely asked with any great authority instead we must
look at works of publicists on this issue
EXPROPRIATION OF PROPERTY
UN GA Res 1803 (1962) permits nationalisation, expropriation or requisition of foreignowned assets provided:
1. it is based on grounds of public utility, security or the national interest which are
recognised as overriding purely individual or private interests, and
2. appropriate compensation is paid.
APPROPRIATE COMPENSATION
Staret Housing Corporation
bought land in Iran

Iranian government froze the corporations bank account - Irans tribunal had decided
it had been denied proper use of property rights - compensation payable.
Compensation must be:
prompt, adequate and effective (Hull formula)
BP entered into agreement with Iran granted 60 year license to

mine oil in Iran. In 1951 Iran nationalized its oil industries. UK took
Iran to ICJ on behalf of Anglo-Persian Oil company demanding the
agreement be upheld and BP be given loss of profits. UK
government spelled out what it thought to be the meaning of Hull
formula:
According to the UK case (1952):
adequate = the value of the undertaking at the moment of

dispossession, plus interest to date of payment
prompt = immediate cash, or amount promptly fixed, with

interest and guarantees
effective = usable outside the paying state
developing states are not going to want to agree to this want to

nationalise oil, etc majority of UN nations are developing states
appropriate, as determined by the paying state (UNGA Res 3281, 1974)
Previously favoured by many developing nations with nationalising

agendas
Instead of adequate 1974 resolution firmly puts ball in court of

nationalising or expropriating state up to them to decide what is
appropriate compensation
Reflected as customary international law
Is it prompt, adequate and effective compensation (as favoured by

UK, US, etc)? Or appropriate compensation?
fair (Iran-US Claims Tribunal, 1987) compensation must be fair or just

that means paying market value
loss profits would only be available if expropriation unlawful

according to res 803 UN GA (slide 4) permits expropriation based
on it is based on grounds of public utility etc. (i.e., as long as it is for
a good cause)
in no case should foreign nationals be entitled to punitive damages
DIPLOMATIC PROTECTION
Where a state brings out a claim against another state representing one of the states
nationals.
Conditions for diplomatic protection
Draft Articles on State Responsibility art 44: Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the
nationality of claims;
(b) the claim is one to which the rule of exhaustion of local remedies applies and
any available and effective local remedy has not been exhausted.
A) NATIONALITY RULE
Draft Article of Diplomatic Protection art 1: Definition and scope
For the purposes of the present draft articles, diplomatic protection consists of the
invocation by a State, through diplomatic action or other means of peaceful
settlement, of the responsibility of another State for an injury caused by an
internationally wrongful act of that State to a natural or legal person that is a national
of the former State with a view to the implementation of such responsibility.
DADP art 3: Protection by the State of nationality
1.
The State entitled to exercise diplomatic protection is the State of nationality.
2.
Notwithstanding paragraph 1, diplomatic protection may be exercised by a
State in respect of a person that is not its national in accordance with draft article 8.
State can only bring a claim on behalf of an individual or corporation if the individual is a
citizen or the corporation registered in that state (art 3).

DADP art 8: Stateless persons and refugees
1.
A State may exercise diplomatic protection in respect of a stateless person
who, at the date of injury and at the date of the official presentation of the claim, is
lawfully and habitually resident in that State.
2.
A State may exercise diplomatic protection in respect of a person who is
recognized as a refugee by that State, in accordance with internationally accepted
standards, when that person, at the date of injury and at the date of the official
presentation of the claim, is lawfully and habitually resident in that State.
3.
Paragraph 2 does not apply in respect of an injury caused by an internationally
wrongful act of the State of nationality of the refugee.
This broadens the rule to include stateless people and refugees. Hall does not consider
art 8 reflective of customary international law. Only thing that can be said with certainty
is who is a national of the state.
European nations tend to emphasise blood lineage. Nationality is primarily determined by
parents or perhaps more remote. This may exclude people.
jus sanguinis (right of blood)
nationality is determined largely by ancestry
jus soli (right of the soil)
nationality is determined largely by place of birth or how long the

individual has lived in a country
historically included France and the UK
this means second generation immigrants are given opportunity for

citizenship
recently, states are following a combination of these
historically included most of Europe, eg Germany ancestry has

been determined by blood and place of birth is irrelevant
i.e., British citizen by descent (one parent citizen)
But NB the European Convention on Nationality, 1997 (Council of Europe)
Council of Europe parent body of European HR
Laws on citizenship can vary widely
EU citizenship everyone who is a member of EU state is automatically a

citizen
States usually recognize each others EU nationality rules. Outside EU it is different. If

state A brings a claim on behalf of a national who State A considers to be a national of
state A - is State B at liberty to refuse the citizen is NOT a citizen? generally speaking
NO
Hague Convention on Conflict of Nationality Laws, 1937
Article 1
It is for each State to determine under its own law who are its nationals. This law shall
be recognised by other States in so far as it is consistent with international
conventions, international custom, and the principles of law generally recognised with
regard to nationality.
Almost all nationality laws follow same principles even though they differ in detail
Almost always determined by a combination of four factors
DADP art 4
State of nationality of a natural person
For the purposes of the diplomatic protection of a natural person, a State of
nationality means a State whose nationality that person has acquired, in accordance
with the law of that State, by birth, descent, naturalization, succession of States or in
any other manner, not inconsistent with international law.
1. Place of birth
2. Persons parentage or ancestry
3. Process of naturalisation (common in Australia where large proportion comes
from immigrant communities and become citizens)
4. Result of succession of states population changes hand between states. i.e.,
when USSR devolved into new independent states (Russia, Georgia, etc.)
DADP: dual nationality

Article 6: Multiple nationality and claim against a third State
1. Any State of which a dual or multiple national is a national may exercise diplomatic
protection in respect of that national against a State of which that person is not a
national.
2. Two or more States of nationality may jointly exercise diplomatic protection in
respect of a dual or multiple national.
Article 7: Multiple nationality and claim against a State of nationality
A State of nationality may not exercise diplomatic protection in respect of a person
against a State of which that person is also a national unless the nationality of the
former State is predominant, both at the date of injury and at the date of the official
presentation of the claim.
Yes possibly you could seek diplomatic protection in a country where you are citizen
(i.e, seeking protecting in UK from Australia despite being citizen) (art 7) if persons
nationality of state B is predominant whether one nationality is predominant over
another is determined by numerous factors
Work, residence, place of birth, money, family, participation in social and public life,
language, tax, etc.
What if I visited third country and not a national of that country entitled to look to Aus
or UK?
Art 6(1) can look to either or both regardless of which nationality is predominant

Nottebohm (ICJ, 1955)
German national moved to Guatemala at 24 and lived there for 38 years.

WW2 started, and Guatemala expelled him because he was German
At outbreak of war, German national went to Liechtenstein obtained nationality
and he lost his German nationality (German law did not allow dual nationality).
Liechtenstein then brought a claim against Guatemala.
Permissible for L to bring claim against G despite him living and working there for
38 years? Nominal national bond P only spent 3 days in L.
ICJ took view that for nationality to be recognisable for purposes of international
law, bond between national and state had to be real and effective.
Held that he was not entitled to bring a claim because his bond with L was not real
and effective Lichtenstein could not bring a case against Guatemala
Illustrates that it is unlikely to be effective to gain a nationality of convenience
However if he had parents born in L this might have been enough
L probably could have afforded protection to a state other than Guatemala (P had
a deep clear relation with the state despite not being a national)
States A and B
Which nationality is
predominant?
State A
State A
can claim:
DADP art 7
State B
State A
cannot
claim:
DADP art 7
Of which state is X a
national?
State B
State A only
only
Is Xs
State A
connection
cannot
with State A
claim
genuine or
tenuous?
Genuine
State A can
claim:
DADP arts
1, 3(1) & 6
Neither A nor B
State A may be
able to claim if X
is:
a) stateless or a
refugee, and
Tenuous
Is Xs
connection with
State B genuine
or tenuous?
Genuine
State A
cannot claim:
Nottebohm
Tenuous
State A can
probably
claim
b) lawfully &
habitually
resident in A

CORPORATIONS
Belgium v Spain (Barcelona Traction), ICJ, 1970
Barcelona Traction was a company that operated in Spain. It was

registered in Canada but largely owned by Belgians.
Belgium wished to extend diplomatic protection to the Belgian

stockholders who had suffered financial loss due to Spains treatment of
the company. Spain objected that despite the company being owned by
Belgians (and thus only Belgians suffered) the company was Canadian.
The ICJ held that only Canada could (but was not obliged to) grant
diplomatic protection in relation to the company.
A state cannot be obliged in international law to protect any person unless there is a
treaty obligation
Certain degree of risk in investing in foreign company if Belgian stockholders invested
in Belgian company then Belgium would be in a much better protection.
International Law Commission has tried a different approach: to define a link test (Draft
Article 9) this is a proposal for future law not a comment on the way the law is today
(Hall).
DIPLOMATIC PROTECTION FOR MERCHANT SHIPPING

As of 2009, 40% of worlds entire fleet of merchant shipping were registered in just three
small states: Panama, Liberia and the Marshal Islands. Despite the small
populations/economy of those states. The companies are rarely owned by nationals from
these states.
St Vincent and the Grenadines v Guinea (Saiga case, International Tribunal for the Law
of the Sea, 1999)
M/V Saiga was registered in St Vincent, owned by Cypriots, chartered

by Swiss and crewed largely by Ukrainians.
It was attacked by Guinea because allegedly selling oil in waters
Vessel damages and crew members injured.
St Vincent attempted to bring a claim against Guinea.
The International Tribunal held that the national state of a ship is the
state in which the ship is registered (St Vincent) the flag state can
protect the ship that is flying the flag, as well as those on the
ship and those with legal interest in the cargo (even when all
these nationalities differ with each other.

CONDITIONS FOR DIPLOMATIC PROTECTION
DASR art 44: Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the
nationality of claims;
(b)
the claim is one to which the rule of exhaustion of local remedies applies and
any available and effective local remedy has not been exhausted
State A should not be able to bring a claim against State B for national A until they have
exhausted local remedies in State Bs domestic processes. Only when State B does not
make amends can it be held accountable by State A (i.e., nationality only becomes
involved when processes fail to address claim).
Note: This does not apply to states that do not directly suffer wrongs.
Elettronica Sicular (ELSI) (ICJ, 1989)
Two US corporations owned ELSI, an electronics company in Palermo, Italy.
After the company ceased to be profitable, the US corporations sought to

liquidate ELSIs assets.
The Italian government then requisitioned the ELSI plant in order to prevent its
closure.
The US took Italy to the ICJ, claiming a breach of the Treaty of Friendship,
Commerce and Navigation between the two states.
The ICJ considered this a breach of the rule against exhaustion of local
remedies. The US was only concerned about the treatment of these two US
corporations. This was in substance (if not in form) an instance of diplomatic
protection.
The only local remedies that must be exhausted are those that are available and
effective if obvious a legal action in domestic court will lose it doesnt have to be
brought.
9. STATE JURISDICTION AND IMMUNITY

Jurisdiction the scope of the entitys legal authority.
Concerned with public international law i.e., criminal jurisdiction
Prescriptive jurisdiction
the right to prescribe what is lawful and unlawful
states are free to make any laws they see fit
Enforcement jurisdiction
the right to enforce legal rules already prescribed
whether a state is able to then enforce those laws is debateable

For example: this law makes it illegal for a person to have sex with a child outside
Australia prescriptive jurisdiction in regards to what Australian citizens do with children
wherever. Doesnt say victim needs to be an Australian or whether the person
committing the crime needs to be Australian. At which point is Australia claiming
enforcement jurisdiction? (the right to go and arrest a Brazillian man in Brazil abusing a
Brazillian child?)
Criminal Code s 272.8 (Cth)

(1) A person commits an offence if:
FOUR PRINCIPLES OF JURISDICTION

TERRITORIAL PRINCIPLE
Considers where the relevant events took place, or where their effects were felt
This is the most commonly invoked principle. Actual de facto control of a territory tends
to go hand in hand with statehood with statehood comes sovereignty and the right to
prescribe rules in regards to what happens with the territory in question.
A state may normally prescribe laws re events occurring within its territory, and
may enforce those laws against people within its territory (regardless of their
nationality).
States may do so in relation to conduct:
originating within its territory (subjective territorial principle)
eg State A can prosecute X for sending a letter bomb from State A

to an address in State C
where the effects are felt within its territory, or the conduct partly occurs
within its territory (objective territorial principle)
eg State C can prosecute X for sending a letter bomb from State A

to State C, assuming it reaches State C (Lotus case)
Probably State B could also prosecute X if the letter were sent via
State B
Ship that flies Turkish flag is a part of Turkey even though the ships are on the
High Seas (this law has changed since 1926)
States are entitled to exercise prescriptive and enforcement jurisdiction

in circumstances where the effects of the action are felt in their territory
even though the actions that caused the effects occurred outside their
territory.
JURISDICTION OVER EVENTS OCCURRING ONBOARD SHIPS, AIRCRAFT AND

SPACECRAFT
Basic rule is that the flag of the ship has jurisdiction.
While outside state territory the state of registration has jurisdiction
eg a ship or plane in or over international waters, or a spacecraft in outer

space
While inside state territory that state has jurisdiction
eg a ship or plane in or over territorial waters
a plane flying over land territory
http://casa-query.funnelback.com/search/search.cgi?
collection=casa_aircraft_register
http://www.airframes.org/
NATIONALITY PRINCIPLE
Active nationality principle
considers the nationality of the criminal
location of the crime is irrelevant
eg Criminal Code s 272.8 (Cth): unlawful for Australians to have sex

with children even when outside Australia
Passive nationality principle
considers the nationality of the victim
not accepted by most states (Brazil)
problem with passive nationality principle makes it far too easy for anyone
to unintentionally infringe other states laws.
PROTECTIVE PRINCIPLE
Considers whether the conduct threatens the state
Similar to subjective territorial principle. Relates only to the protection of the state. The
harm does not have to actually be felt within the state but it must be directed towards
the states security.
For example, attempted assassination of PM might invoke protective principle would not
matter where or nationality of him.
Proposes that a state can exercise criminal jurisdiction in relation to acts that threaten or
injure that state, regardless of where those acts take place and the nationality of the
perpetrator.
Eichmann case:
Israel kidnapped Eichmann, a former Nazi, and smuggled him out of

Argentina to stand trial in Israel for his role in the Holocaust.
Israel claimed the right to do so even though Eichmann was not an

Israeli national and his actions had occurred outside Israel (which
anyway did not exist at the time of the Holocaust).
Never a national of Israel and none of his crimes took place in Israel.
District Court of Israel took view that special connection between
crimes and Israel since they were the victims of most of his crimes.
Connection between the Jewish people and the state of Israel.
Jewish people did exist at time of holocaust and the crimes were
committed against the Jewish nation people can retrospectively
prosecute
NB: conduct must generally be regarded as criminal by the community of

states.
I.e., would have been different if he had only stolen the bike of a
Jewish person his actions had to be generally regarded as criminal
and threatening to the Jewish peoples.
UNIVERSALITY PRINCIPLE
Considers whether the crime in question threatens the community of states as a whole

Any state should be able to prosecute anyone in relation to what they have done
regardless of where they do it.
Grants states jurisdiction in relation to conduct, regardless of where it takes place,

the nationality of the perpetrator or the nationality of the direct victims of the
conduct
Relates only to certain offences: (which everyone agrees should be

criminalised and must pose a threat to international order as a whole).
Piracy 1982 convention on the Law of the Sea, art 101 defines piracy
Can be committed in relation to ships and aircraft (provided the

actions take place over international waters)
Only relates to PRIVATE ships and aircraft NOT military
Rules are so old they form part of customary law as well as being
found in the convention of the Law of the Sea
war crimes
Eichmann case invoked universality and protective principles
Nuremberg trials gives definition
Only committed at times of war
crimes against humanity
can be committed at any time
committed ONLY against civilians AND can include such things as

religious or racial persecution
Rome Statute of ICC creates more elaborate definitions of these

offences
Genocide
Under Rome Statute of ICC and 1948 Convention of crime and

punishment of genocide
offences under treaties that require prosecution or extradition

(requires persons to extradite or prosecute regardless of nationality of
accused or nationality of victims or where the alleged offences took place)
aircraft hijacking or sabotage
Pakistani nationals hijack an Australian-registered aircraft

that is routed for the USA. The hijack takes place over the
high seas.
Australia, Canada and the USA are both parties to the 1970
Convention of Aircraft Hijacking.
If the aircraft lands in the US and the hijackers are detained,

the US must either:
extradite the hijackers for prosecution in Australia, or
prosecute the hijackers in the USA.
The hijackers now escape into Canada (another party to the

treaty). They are captured by the Canadian police. Canada
must either:
extradite the hijackers for prosecution in the USA or Australia, or
prosecute the hijackers in Canada.
extradition to Pakistan is not an option, nor is extradition to a state

on the basis of the nationality of one or more of the passengers on
the plane.
However, the Convention re hostage taking is different: it takes

account of the nationality of the hostage taker.
NB:
Other conventions (eg the one re terrorist bombing) also takes

account of the nationality of the target.
marine hijacking or sabotage
hostage taking
terrorist bombing and financing
torture
violence against protected persons
heads of state or government or foreign ministers (and their

accompanying families)s
CODIFYING STATE IMMUNITY

Sovereignty should not be confused with the right to do whatever you like they must
adhere to norms (such as respecting the sovereignty of other states).
Council of Europe sought to standardise international law in regard to state immunity.
European Convention on State Immunity, 1972
Foreign States Immunities Act 1985 (Cth)
ILC Draft Articles on Jurisdictional Immunities of States and their

Property, 1991
generally considered to reflect customary international law
drew heavily on 1972 European Convention
UN Convention on Jurisdictional Immunities of States and their Property, 2004
Adopted by GA in 2004, opened for signature in 2005
comes into force once there are 30 parties
there were 15 as at 19 April 2014
Australia nor the USA are party. UK has signed by yet to ratify. Until
the treaty gains more parties the 1991 Draft Articles are usually
taken to reflect customary law (not much difference between then
though).
DAJI (Draft Articles on Jurisdictional Immunities) Pt II: general principles re

state immunity
Art 5: general presumption of immunity
A State enjoys immunity, in respect of itself and its property, from the
jurisdiction of the courts of another State subject to the provisions of the
present articles.
The starting position of a state is one of immunity. From art 7 onwards we

see the exceptions.
Art 6: modalities for giving effect to state immunity
Art 7: no immunity if state expressly consents to exercise of jurisdiction by the

court in question
Art 8: no immunity if state participates in court proceedings, or if it intervenes in

proceedings except to invoke immunity or sending a witness to give evidence
Art 9: no immunity if state counterclaims
DAJI Pt III: proceedings in which immunity cannot be invoked - even if state

hasnt performed one of the exceptions (i.e., counter claimed, etc.)
Art 10: commercial transactions
Art 11: contracts of employment
Doesnt apply in relation to employees who have been recruited closely

related to the exercise of government authority
Such as translators in an embassy
Art 12: personal injuries and damage to property
i.e., if someone slipped in another state, a state cannot invoke immunity
Art 13: ownership, possession and use of property
Art 14: intellectual and industrial property
Art 15: participation in companies or other collective bodies
Art 16: ships owned or operated by a state
Art 17: effect of an arbitration agreement
DIPLOMATIC IMMUNITY
Relates to diplomats and consuls. Law in this area has been codified
Vienna Convention on Diplomatic Relations, 1961
Art 1 defines diplomat as the head of the agent (ambassador) or the member of
the diplomatic staff of the mission.
Art 31 grants diplomatic agents:
absolute immunity re criminal jurisdiction of the receiving State
qualified immunity re civil and administrative jurisdiction of the receiving

State
exceptions apply re:
real estate disputes (unless property is held on behalf of

sending state for purposes of the mission)
actions re succession (ie wills and probate)
professional and commercial activity outside the agents

official functions.
i.e., if the diplomat fails to pay rent on private

accommodation he will have no immunity, nor if he
gets into an argument over something he sells for
private use over ebay.
NB: dipolmats only enjoy immunity only while they are diplomats. States can punish
their own diplomats.
CONSULAR IMMUNITY
Vienna Convention on Consular Relations, 1963
Partial immunity against criminal jurisdiction: can only be arrested or detained in relation
to a grave crime and pursuant to a decision by a competent judicial authority
No other immunity except in relation to matters arising from the consuls official
functions

HEADS OF STATE
Immunity ratione personae while in office
ie complete immunity, even in relation to acts of a private nature
for example, the head of state will not be prosecuted for assault
may be prosecuted when ceases role of head of state
Immunity ratione materiae after leaving office
ie immunity only in relation to official conduct (as opposed to acts of a

private nature) while in office
immunity can apply even in relation to ultra vires acts while in office
a former head of state will only be liable in relation to things of a personal

nature
Pinochets case
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (2000)
Pinochet was President of Chile, 1973 1990
During his time he killed many and tortured many
In 1998 (after office) he visited London for medical treatment
While there, a Spanish court sought his extradition in relation to charges of torture,
murder and conspiracy to murder. Demanded the UK deport him to Spain so he
can stand trial to the charges. Because torture is a universal Spain could charge
him regardless.
Case went to UK House of Lords
Held (House of Lords, per Lord Browne-Wilkinson):
Absolute immunity for serving heads of state however because Pinochet

is no longer h.o.s he was no longer protected
No immunity for former heads of state in relation to acts which, at the time
when they occurred, constituted an international crime for which a form of
universal jurisdiction has been established (eg torture)
Sovereign immunity is only lifted in relation to acts when, at the time that
they occurred, constituted an international crime
Nothing in international law from stopping a h.o.s home state from prosecuting them as
long as domestic law allows that to happen.
10.
INTERNATIONAL DISPUTE SETTLEMENT
International Court of Justice: no automatic binding jurisdiction to try all international

disputes. States have to voluntarily submit to that courts jurisdiction.
UN Security Council: role is to guard peace. As a rule, it wont get involved over meaning
of treaty or negotiation of boundaries.
However, can do so if it looks like those disputes will get out of hand

UN Charter, Chapter VI
Applies to disputes with the potential to lead to a breach of international peace and
security
Art 33: parties should first of all seek a peaceful solution
Art 34: UNSC may investigate dispute
Art 35: states may bring the dispute to the attention of the UNSC or UNGA
Art 36: UNSC may make recommendations the proper place for settlement of
disputes is not the SC but the ICJ and certainly the SC cannot make orders unless
Chapter 7 kicks in (then it can make orders).
Art 37: if attempts at a peaceful solution fail, the dispute must be referred to the
UNSC
In the event of a threatened or actual breach of the peace or act of aggression, the
UNSCs Chapter VII powers are engaged: UNSC can authorise sanctions or even
military action
NON- JUDICIAL SETTLEMENT OF DISPUTES

1. Violence
UN Charter Art 2(3):
All Members shall settle their international disputes by

peaceful means in such a manner that international
peace and security, and justice, are not endangered.
-
Requires states to settle disputes in peaceful means so that peace and

security as well as justice are not endangered. Very clear that violence is
no longer a lawful option.
However, violence could- be used in self defence or authorized by SC.
There is no central enforcement agency in international law to which lawful

violence could be operated.
- UN Security Council is more like a town sheriff entitled to organize groups to
go after bad guys.
Kellogg-Briand Pact: has now been overtaken by UN Charter 1945.
2. Negotiation
may be assisted by enquiry, good offices, mediation and conciliation
Advantages:
can be quick and cheap
may result in an amicable arrangement
Disadvantages:
do not guarantee a settlement
any settlement may not be principled
settlement is particularly unlikely if the parties continue to

dispute issues of fact
rather than being reached using legal arguments, the
outcome of negotiations may simply reflect the parties
relative military, economic or political power
Third parties can help states reach a negotiated settlement in a number of ways:
enquiry (fact finding)
investigating the facts and presenting them in such as way that

does not apportion blame
good offices
involves a third party interceding so as to get parties to a dispute to

at least talk to each other (to kick-start negotiations)
just to get people talking
mediation
taking a role in negotiations, conveying messages (shuttle

diplomacy), making suggestions, reconciling conflicting positions,
etc
i.e., Henry Kissinger during 1970s under President Nixon and Ford.
Used Shuttle Diplomacy following Yom Kapoor war between Israel
and neighbours.
next step after exercise of good offices mediation involves a third

party getting involved themselves. Might happen
organically/spontaneously
conciliation
a more formalised method of mediation, often involving a

conciliator appointed by the parties to the dispute
there to help parties reach an agreement not forcing a decision

upon either parties
3. Arbitration
Similar to judicial settlement but different
issues a binding award on the basis of law as a result of an undertaking

voluntarily accepted
arbitration is like court proceedings but there are fundamental differences
a procedure for the settlement of disputes between states by a binding award on the
basis of law and as a result of an undertaking voluntarily given
International Law Commission, 1952
Arbitration differs from judicial settlement in two respects:

1. the parties choose the arbitrator states are more likely to adhere to a finding if they
have input into who the arbitrator will be, since it is hard to then accuse of bias.
2. the parties choose the body of rules to be applied, as well as the procedure to be
followed
Treaty of Canterbury, 1986
This contains an example of an arbitration clause, see Art 19
http://www.channeltunneligc.co.uk/Essential-texts,24.html?lang=en
treaty between France and UK relating to building of tunnel under English Channel
connecting countries. A good example of typical brevity of treaties.
Decisions are binding on parties and cannot be appealed to courts
Art 19 allows either state to approach president of ECJ (now EU) and either party
can ask President to make an appointment not just of third member but also the
first or second members.
There are now model rules that states can copy into treaties such as on arbitral
procedures
Interpretation of Peace Treaties advisory opinion, ICJ, 1950
In 1947 peace treaties were concluded between the Allies and the Axis
powers of Bulgaria, Hungary and Romania
http://www.austlii.edu.au/au/other/dfat/treaties/1948/2.html
Peace Treaty with Bulgaria, 1947

Art 2:
Bulgaria shall take all measures necessary to secure to all persons under Bulgarian
jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of
human right, and of the fundamental freedoms, including freedom of expression, of
press and publication, of religious worship, of political opinion and of public meeting.
Article 35(1)
1. For a period not to exceed eighteen months from the coming into force of the
present Treaty, the Heads of the Diplomatic Missions in Sofia of the Soviet Union, the
United Kingdom and the United States of America, acting in concert, will represent the
Allied and Associated Powers in dealing with the Bulgarian Government in all matters
concerning the execution and interpretation of the present Treaty.
Article 36
1. Except where another procedure is specifically provided under any Article of the
present Treaty, any dispute concerning the interpretation or execution of the Treaty,
which is not settled by direct diplomatic negotiations, shall be referred to the Three
Heads of Mission acting under Article 35, except that in this case the Heads of Mission
will not be restricted by the time limit provided in that Article. Any such dispute not
resolved by them within a period of two months shall, unless the parties to the dispute
mutually agree upon another means of settlement, be referred at the request of either
party to the dispute to a Commission composed of one representative of each party
and a third member selected by mutual agreement of the two parties from nationals
of a third country. Should the two parties fail to agree within a period of one month
upon the appointment of the third member, the Secretary-General of the United
Nations may be requested by either party to make the appointment.
2. The decision of the majority of the members of the Commission shall be the
decision of the Commission, and shall be accepted by the parties as definitive and
binding.
-
in the event of a dispute there is a process that disputes should be handled by

but ultimately they go to a commission represented by a member of each
party. So far this looks very much like the Treaty between UK and France. If
states fail to agree on who third person should be then the UN Secretary
General may be asked to make third appointment.
Bulgaria, as well as Hungary and Romania failed to put forward a
representative. They said there was no dispute and therefore were not
required to provide a member
This was forwarded to Advisory opinion of ICJ held that they were in failure
for failing to appoint a member
Issue: could UN SC General be asked to appoint members for the failing
states?: NO
- SC General can ONLY appoint third member. NO power to appoint members
unless parties agree otherwise.
Model Rules on Arbitral Procedures, 1958

Article 3(2)
If the tribunal is not constituted within three months from the date of the request
made for the submission of the dispute to arbitration, or from the date of the decision
on arbitrability, the President of the International Court of Justice shall, at the request
of either party, appoint the arbitrators not yet designated. If the President is
prevented from acting or is a national of one of the parties, the appointments shall be
made by the Vice-President. If the Vice-President is prevented from acting or is a
national of one of the parties, the appointments shall be made by the oldest member
of the Court who is not a national of either party.
Article 32
The arbitral award shall constitute a definitive settlement of the dispute.
Article 35
The validity of an award may be challenged by either party on one or more of the
following grounds:
(a) That the tribunal has exceeded its powers;
(b) That there was corruption on the part of a member of the tribunal;
(c) That there has been a failure to state the reasons for the award or a serious
departure from a fundamental rule of procedure;
(d) That the undertaking to arbitrate or the compromis is a nullity.
Shows how problem with peace treaty with Bulgaria has now been avoided
Permanent Court of Arbitration

-
The Hague
Not permanent at all
Such tribunals can end up sitting for years and years
One of the longest lasting - Iran US Tribunal since 1981
Tribunal mostly hears claims arising from 1987 Iranian revolution
International Court of Justice
Permanent court sat from 1922 also occupying peace palace until 1940 when
Netherlands run over by Nazi Germany.
After the war, permanent court of International Justice was resolved and replaced
by ICJ
Runs in accordance with its statute
List of current ICJ judges (15 judges) judges are chosen by member states
being divided into groupings. Members from each grouping nominate suitable
candidates for judge. UN GA and SC then elect the judges, each for a renewable
term of 9 years. Practice is the make sure they are broadly representative. One

judge of each 5 SC members (not such a rule but a practice). President and VP are
elected by judges themselves.
Two principles areas of jurisdiction
Ability to give advisory opinons
Ability to hear disputes between states (Contentious jurisdiction see

below)
Contentious jurisdiction
Only states can bring proceedings before the courts and they must be
against other states cannot hear proceedings against international
bodies (UN etc) or corporations.
This can only be exercised where states have consented to the courts
jurisdiction
Consent can be:
specific to a treaty (ie the treaty says that the ICJ will settle
disputes)
specific to a dispute (ie the parties agree to a particular dispute

being heard by the ICJ), or
More general, given by means of a declaration under the optional

clause (see next slide)
List of states that have made optional clause declarations

(71 as at May 2015) 133 states.
There are exclusions
Statute of the ICJ, 1945

Art 36(2) (optional clause)
The states parties to the present Statute may at any time declare that they recognize
as compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
a.
the interpretation of a treaty;
b.
any question of international law;
c.
the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
Art 36(6)
In the event of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court.
Advisory jurisdiction
Sits in Peace Palace in The Hague
Principle organ of UN
Can the state delegate from the courts right to determine whether it has
jurisdiction?

Norwegian Loans case, 1957
Declaration of France, 1949:
On behalf of the Government of the French Republic, and subject to ratification, I
declare that I recognize as compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, that is on condition of
reciprocity, the jurisdiction of the International Court of Justice, in conformity with
Article 36, paragraph 2, of the Statute of the said Court, for all disputes which may
arise in respect of facts or situations subsequent to the ratification of the present
declaration, with the exception of those with regard to which the parties may have
agreed or may agree to have recourse to another method of peaceful settlement.
This declaration does not apply to differences relating to matters which are essentially
within the national jurisdiction as understood by the Government of the French
Republic.
Declaration of Norway, 1946:
I declare on behalf of the Norwegian Government that Norway recognizes as
compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, that is to say, on condition of reciprocity, the
jurisdiction of the International Court of Justice in conformity with Article 36,
paragraph 2, of the Statute of the Court, for a period of ten years as from 3rd October
1946.
-
Norway simply accepts jurisdiction

whereas France provided a more detail account
France wanted to bring a claim against Norway regarding treatment of
nationals. Norway refused to do so we Norway have said we will accept
courts jurisdiction in relation to states who have similarly accepted courts
jurisdiction by which France hasnt.
If France is going to demand exclusions in relation to certain actions brought
against it, it cannot then claim benefit Norway also sought to apply principle
of reciprocity. If France was going to insist on the right of the jurisdiction of the
court, then Norway said it too will do the same thing.
Went to ICJ who agreed with Norway
According to one judge (Sahirsh Lagdopash) self-judging reservations are not
permitted. States can limit the jurisdiction of the ICJ as much as they like but it
is up to the ICJ to determine whether the dispute is of a certain type not for
the parties to decide this issue.
How to work out whether the ICJ has jurisdiction to hear proceedings brought
by State A against State B

Does State B generally accept
jurisdiction?
YES
Does it do so subject to
reservations that directly
apply?
NO
No jurisdiction
YES
No
jurisdicti
on
NO
Does it explicitly accept jurisdiction on condition of
reciprocity?
YES
Does State A accept jurisdiction
subject to reservations that would
apply if similar proceedings were
brought against A?
YES
No
jurisdiction
NO
ICJ may have
jurisdiction
NO
Situation is unclear.
ICJ may infer a
condition of
reciprocity (and so
treat as though
YES)
Does the ICJ have jurisdiction?
State A wishes to bring three sets of proceedings against State B. The

proceedings are of types X, Y and Z.
State A accepts jurisdiction only re proceedings brought against it of

types X and Y.
State B accepts jurisdiction only re proceedings brought against it of

types Y and Z, and even then only on condition of reciprocity.
In relation to proceedings of type X:
In relation to proceedings of type Y:
No jurisdiction. State B has not accepted jurisdiction in relation to

proceedings of type X.
Jurisdiction. Both States A and B have accepted jurisdiction re
proceedings of type Y.
In relation to proceedings of type Z:
No jurisdiction. Even though State B accepted jurisdiction re

proceedings of type Z, it did so on condition of reciprocity. The ICJ
would have no jurisdiction in relation to similar proceedings
brought against State A, therefore it has no jurisdiction in relation
to proceedings of type Z brought by State A against states
accepting jurisdiction only on condition of reciprocity.
TOPIC 11. INTERNATIONAL USE OF FORCE

Examines the general prohibition on the use or threat of force, as well as exceptions to
that rule in cases such as self defence or when military action is authorised by the United
Nations. It also looks at situations that raise difficult legal and moral questions, such as
the disputed right to anticipatory self defence, as well as military interventions against
oppressive regimes or to prevent humanitarian disasters.

WAR LAW
Categories:
Jus ad bellum (right to war)

law governing when force can be used
Jus in bello (law of war)

law governing how force should be used
English terms encompassing one or both of the above:
(International) law of war
(International) law of armed conflict (LOAC)
International law governing the use of force
International humanitarian law (IHL) (jus in bello only)
Law of The Hague
refers to the treaties signed at conventions held in The Hague, 1899 and
1907
more akin to LOAC (ie more focus on jus ad bellum)
Law of Geneva
refers to the treaties and protocols signed at conventions held in Geneva,

1864, 1906, 1929, 1949, 1977 and 2005
more akin to IHL (ie more focus on jus in bello)
Charter of the United Nations
Established 24 October 1945 by the UN Charter, whose preamble commences:
We the Peoples of the United Nations determined to save succeeding

generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind ...
Art 1 (Purposes of the UN):
To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace ...
1. What threshold criteria determine the potential for a breach of Art 2(4)?
Art 2(4):
All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
Art 51:
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a
Member of the United Nations until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self defence

-
Only directly binding on UN members (but appears to represent jus cogens);

Is only binding on states (not individuals)
Appies even though the victim is NOT a UN member;
Only relates to activities done in the course of international relations
Does not prohibit a state from using force against its own population
2. What constitutes force?

NB: art 2(4) covers threats, as well as the actual use of force.
o it can be breached even when no actual force is used.
Force entails violence against people or property
o economic sanctions, boycotts etc do not suffice
Use of force (art 2(4)) is not the same as armed attack (art 51)
o State A might breach art 2(4) by using force against State B that is so
slight that State B gains no entitlement to retaliate with defensive force
under art 51.
o Examples of moderate use of force include minesweeping in another
states territorial waters (Corfu Channel (Albania v UK) case), the 1976
Entebbe raid, or even breaking into a diplomatic bag.
Force may extend to acts historically regarded as falling short of war
NB: remember that acts or threats of force, though prima facie contrary to art
2(4), might nevertheless be defensible by means of art 51 (self defence).
Probably it is better for a state that has used small amounts of force to accept
that it has breached art 2(4) but then to go on to justify the breach on the
basis of art 51, as opposed to arguing that there was no breach of art 2(4) in
the first place.
Providing weapons and other material of war to an insurgent movement in
another state constitutes a breach of art 2(4), but probably merely funding the
insurgent movement does not.
3. For Art 2(4) to have been breached, what type and level of force must have
been used or threatened?
-
Use of force or a small amount is sufficient

Art 51 (self defence)
Can art 2(4) kick in regardless of how slight the force is? *it is not entirely
clear as the what force states can use against others
does not prevent a state using force against its own nation or assisting
another state
Art 2(4) is arguably breached:
even though the level of violence used or threatened is relatively minor
(eg minesweeping or a helicopter raid to free hostages)
- a states territorial integrity or political independence is not in jeopardy
- a state merely supplies weapons for use against another state
this would include supplies to state or non-state entities
- all a state does is declare war in the absence of an armed attack upon
itself (or an ally)
4. When can force be said to have been threatened or used against the territorial
integrity or political independence of a state?
5. If the use or threat of force is not against the territorial integrity or political
independence of a state, in what circumstances is the threat or use nevertheless
prohibited on the basis that it is inconsistent with the Purposes of the
United Nations?
6. What constitutes a threat of the use of force?
-
possession of a weapon is not a threat

-
supplying a gun constitutes force but supplying money does not
ART 51 - SELF DEFENCE

Art 51:
(...)
Key questions:
1. Who has the right to self-defence?
- Art 51 only applies directly to UN member states
- Generally accepted that some kind is available to non-members under
customary international law
- inherent right the right is to be found in natural justice, state sovereignty,
reference to customary international law
o h/e cannot be assumed that this right is forever more under customary IL
because customary law changes over time
o the day might come when states are not allowed to rely on self-defence
but must rely on some sort of police force
2. does the right only arise in the face of an armed attack?
- might there be circumstances where a state can use self defence in the absence
of an armed attack?
- Economic attacks? Trade sanctions imposed against a state - is the state entitled
to respond with military force? no - economic attacks do no give right to
self defence
o Art 51 should be read narrowly self defence is only to be used if and only
if it is faced with an armed attack
o This does not mean there is no right to take pre-emptive action (action
before an attack occurs)
3. What is an armed attack?
- In what point can a state say we are now under attack and have the right to use
force
o When does an attack start? (When the first shot is fired?)
o Dinstein: attack must have been initiated only then can it be
intercepted. When one party embarks on an irreversible course of
action the aggressor the one to do so
interceptive action implies a state is more than threatened some
kind of hostile action by enemy which is open to interception
should be interpreted fairly broadly once an attack
underway it is justified to take broader measures to prevent
further aggression
o an armed attack does not necessarily start when shot is fired but when
a part embarks on an irreversible course of violence not first shot,
but sometime before things reach that stage.

-
How much violence is needed to constitute an armed attack? Can a minor incident
give rise?
o Armed attack: - not threat or use of force- (difference between art2(4)
and art51)
o Nicaragua case: lawful countermeasures analogous to armed attack
Has there been an armed attack?
Yes art 51 - right to self defence
No Has there been a breach of Art 2 (4)?
Yes Right to non-forceful counter measures short of selfdefence Nicaragua Case
o i.e., suspend diplomatic relations, introduce trade
sanctions, etc.
No standard jurisdictional rights only
o Might have right to bring criminal proceedings
against individual concerned. Might arise when an
agent of a state acts totally outside his powers
Who is the perpetrator of the alleged attack? Which state, if any can be held
liable?
o locale a state can fight off an invading army upon their own territory
(USSR in WW1)
o territory of the attacking state
o territory of a third state
o attack by a non-state aggressor: i.e., ISIS and terrorism (presence in a
number of territories)
Corfu channel case 1999 every state is under responsibility not to
allow citizens to use state as a base of attacks
o Arise out of omission: if a state is to take actions to protect interests of
another state but fails to then they bear international responsibility to
other states
if state has minimal resources it will not be liable
Where did the attack occur?
Who or what was the target?
Liability of states harbouring insurgents:
States X, Y and Z all have insurgents operating within their territory against (eg)
the USA.
State X is complicit in armed attacks on the US.
State Y reacts with indifference to the presence of the insurgents, failing

to take any action, even though it could.
X and the insurgents are liable to defensive measures.
Y and the insurgents are liable to defensive measures.
State Z seems opposed to the insurgents but does not have the means to
take adequate action against them.
The insurgents are liable to defensive measures, including while on Zs

territory, but Z is not liable.
6. to what extent can another state come to a states aid even though it is not
under attack?
-
collective self-defence: not the same as individual self-defence collectively

exercised states not being attacked come to aid of other state/s. a state
exercises collective self-defence when the state itself has not been attacked
four categories of self defence permitted by art 51

a. individual self defence individually exercised
b. individual self defence collectively exercised
c. collective self defence individually exercised
d. collective self defence collectively exercised
- no pre-existing treaty arrangement needs to exist
o although these can exist
o three types
1. mutual assistance treaties: NATO (North Atlantic Treaty), Warsaw Pact, ANZUS
2. military alliances
3. treaties of guarantee: when one or more states (typically powerful) enter treaty
with usually a weaker state that they will come to aid if it is attacked
Criteria for determining the appropriateness of defensive force

1. Necessity
State must establish it is using defensive force against (and only against)
the culprit
There must be no practicable alternative to force
2. Proportionality
Action taken against a state must be proportional to the risk posed by

that state
3. Immediacy
Some delay is permitted in order to regroup, research and seek peaceful

settlement, but states should not delay unduly
7. by what means are states to determine whether the security council has
taken necessary measures?
1. necessity must be no practicable alternative to force
2. proportionality
3. immediacy - not motivated by desire for retribution but for a need for defence
UNSC power and authority during an armed attack:
-
grant seal of approval retrospective and prospective
COLLECTIVE SELF-DEFENCE TREATIES

North Atlantic Treaty 1949, Art 5
The Parties agree that an armed attack against one or more of them in Europe or North America shall be
considered an attack against them all and consequently they agree that, if such an armed attack occurs, each
of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the
Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually
and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to
restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the
Security Council. Such measures shall be terminated when the Security Council has taken the measures
necessary to restore and maintain international peace and security .

Warsaw Pact 1955, Art 4
In the event of an armed attack in Europe on one or several states that are signatories of the treaty by
any state or group of states, each state that is a party to this treaty shall, in the exercise of the right to
individual or collective self-defence in accordance with Article 51 of the Charter of the United Nations
Organisation, render the state or states so attacked immediate assistance, individually and in agreement
with other states that are parties to this treaty, by all the means it may consider necessary, including the
use of armed force. The states that are parties to this treaty shall immediately take council among
themselves concerning the necessary joint measures to be adopted for the purpose of restoring and
upholding international peace and security.
In accordance with the principles of the Charter of the United Nations Organisation, the Security
Council shall be advised of the measures taken on the basis of the present article. These measures shall
be stopped as soon as the Security Council has taken the necessary measures for restoring and
upholding international peace and security-.
ANZUS 1952, Art 4
Each Party recognizes that an armed attack in the Pacific Area on any of the Parties would be
dangerous to its own peace and safety and declares that it would act to meet the common danger in
accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to
the Security Council of the United Nations. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace and security.
Art 51s two stage response to armed attacks
1. Stage 1: the states inherent right to take immediate measures to defend itself
But this right is not unfettered. Any measures taken:

1. must be both necessary and proportionate
2. must be immediately reported to the UN Security Council
3. must not affect the authority of the UN Security Council
A states exercise of the right to self defence is subject to adjudication by

the ICJ.
2. Stage 2: the UN Security Councils authority and responsibility to take over from
the state the handling of the response
What are the UNSCs options?
In the event of an armed attack the UN Security Council can do one or more of the
following:
approve measures taken in self defence. This can be:
retrospective (thus establishing who is the aggressor)
prospective (using the UNs powers under Arts 41 and 42)
authorise other military or non-military measures pursuant to Arts 41 and

42
determine that actions purportedly taken in self defence are in fact acts of
aggression
insist on the cessation of unilateral action by just one side
impose a general cease-fire (on both sides)
demand that both sides withdraw their forces to behind the original lines
12. INTERNATIONAL CRIMINAL LAW

Individuals responsibility in International Law:
States do not exist in any physical sense are a legal fiction, much like
companies. Regardless what the law says, the acts of a corporation are
actually of human beings and so too are states. One nation doesnt declare war
on another, but a group of people do (or a dictator)
When the law created the concept of the corporation what it really did was
spread legal rights and responsibilities with a number of people.
For example, Telstra rather being owned by any one single person it is owned
by a corporation which means that rights do not belong to one individual but a
group (shareholders). The CEO etc may have authority to sell or what not, but
that is only in the position he holds not the person as a human being.
Ultimately the CEO is appointed and can be sacked. The legal fiction of the
corporation spreads responsibility across a large number of people. If Telstra
does damage not one single person pays for damage but the entire
corporation.
Basically, what corporate responsibility does is thinly spread rights and
responsibilities across large group of people.
Advantages- enable people to take risks that they wouldnt take if responsible
individually
Disadvantages unhelpful if encourages risky behaviour
(Is analogous with states)
International human rights law:
In international law individuals get their rights from international human rights
law. Whereas individual criminal law imposes on individuals certain
responsibilities.
1945: 3 yrs prior to Universal Declaration of HR
- tried leading Nazis for war crimes against humanity
Origin:
Piracy non state actors and unlawful under municipal law of the state. Piracy
also prohibited on high seas by customary international law. If a ship attacked
by pirates, responsibility fell on pirates themselves and not the state they
were a member of.
Same for slave trading individuals bore direct responsibility

Historically there were no international courts to try pirates or slave traders,
instead states were entitled to try offences in their domestic courts regardless
of where crime committed or nationality of criminals.
Uncertain where international war crimes trial stated many point to trial of
Peter von Hagenbach
1907 Hague convention created conventions of war crimes prisoners of war,
poisoned weapons, misusing flags of troops
1919 idea of an international court was mooted a decade or so later at end of
WW1 the allies sought to put the German Kaizer on trial but the Netherlands
refused to hand over and no tribunal set up
1945 conclusion of WW2. A special international court was established in the
Palace of Justice in Nuremberg (city with Nazis)
-
Court set up by treaty consisted of US, UK, French judges trialled

under international law.
First objection was that it is states not individuals who are appropriate
subjects under international law
Development of ICL after Nuremberg

1946 Establishment of the International Military Tribunal for the Far East in
Tokyo (Japanese War Criminals)
1948 Genocide Convention allowed for trial under international law
1949 Geneva Conventions further developed the body of war crimes and required
states to use their national legal systems to punish grave breaches (eg Geneva
Convention I, art 49 required contracting states to enact legislation necessary to
provide effective penal sanctions to people committing grave breaches of the
convention (this is defined in art 50 offences committed against persons or property
protection against convention and include unlawful treatment etc.))
1977 additional art 2
1954 International Law Commission produced a Draft Code of Offences against
the Peace and Security of Mankind
1970s Various international treaties required states to exercise universal
jurisdiction in relation to offences with an international dimension (eg hijacking
aircraft, terrorist bombing, taking hostages, etc) transboundary implications
Hague convention against hijacking aircraft
1977 defined certain offences of terrorist bombing
1979 defined offence of taking hostages
didnt create a body of law but required states modify their domestic laws to
accommodate these laws unfolding events following collapse of Yugoslavia that
provided substance to true criminal law..
.
1993 Establishment of the International Criminal Tribunal for the Former

Yugoslavia
1
felt no time to embark on lengthily process of treaty instead ICTI was set up
by res 827 of UN SC passed in 1993. Some question as to whether SC was

entitled to set up crim tribunal. Res 827 SC drew its authority from CH 7 of UN
Charter, art 41 of which organisies SC to take whatever nonviolent measures it
sees fit and empowers SC to call on member states to do whatever it takes to
restore peace and security not questions about its legitimacy but about not
having anyone to prosecute 1991 former pm of YG was then charged
.
1994 Establishment of the International Criminal Tribunal for Rwanda

1
followed on by genocide in Rwanda tribunal is based on Northern Tanzania

scored a first when convicted charge of genocide former head of gov (Jean
Kamabanda PM during massacre). Notable for having developed term
genocide in used in genocide convention, recognizing rape as a means of
perpetrating genocide.
1998 Adoption of the Rome Statute of the International Criminal Court

2002 Establishment of the International Criminal Court
-
to have a permanent court capable of hearing matters arising from wars and
other humanitarian disasters regardless of where they occur.
Established by Rome Statute agreed in 1998.
122 parties to the Rome statute US, Russia and India are not parties China
and Pakistan actively critical of the court.
Only africas have been indicted led to criticism
Ct only truly international if under international body ICJ is NOT a UN body, but
comes under control of an assembly of states parties under art 112 Rome
Netherlands plays role of host, not authority
Same as UN HQ in New York
Geneva Convention I, 1949, art 49

The High Contracting Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing, or ordering to be committed, any of the
grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to
have committed, or to have ordered to be committed, such grave breaches, and shall
bring such persons, regardless of their nationality, before its own courts. It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand such persons
over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts
contrary to the provisions of the present Convention other than the grave breaches
defined in the following Article.
[]
Art 50

Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the Convention:
wilful killing, torture or inhuman treatment, including biological experiments, wilfully
causing great suffering or serious injury to body or health, and extensive destruction and
appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.
Forums for hearing international criminal law
Domestic Courts: NB: Geneva Convention IV 1949 art 146 requires domestic courts to
exercise universal jurisdiction to hear allegations of grave breaches of the 1949
Conventions
International courts and tribunals
International Criminal Tribunal for the Former Yugoslavia (ICTY), established

1993
Statute of the International Criminal Tribunal for the former Yugoslavia
International Criminal Tribunal for Rwanda
Statute of the International Criminal Tribunal for Rwanda
International Criminal Court, The Hague
o Non-specific
o Rome Statute of the ICC
Hybrid or internationalised domestic courts
- Special Court for Sierra Leone (est 2002)
- re Sierra Leone post 1996
- Extraordinary Chambers in the Courts of Cambodia (est 2006)
- re the activities of the Khmer Rouge, 1975 79
- Kosovo Regulation 64 panels (est 2000)
- administering justice in Kosovo following the end of the Kosovan war
- East Timor Special Panels for Serious Crimes (2000 - 2006)
- administering justice in East Timor following the Indonesian occupation
- War Crimes Chamber of the Court of Bosnia and Herzegovina (est 2005)
- Special Tribunal for Lebanon (est 2009)
- re assassination of former Prime Minister Rafic Hariri (2005) and other
incidents in Lebanon, 2004-5
- Supreme Iraqi Criminal Tribunal (est 2003)
- re breaches of ICL by the former regime of Saddam Hussein, 1968 2003
- Serbian War Crimes Chamber (est 2003)
- Re breaches of IHL as defined in Serbian law
The courts jurisdictions
Jurisdiction can be defined, inter alia:
by the nationality of the accused
ICTY: nationality irrelevant
ICTR: nationality irrelevant if crime committed in Rwanda

(otherwise must be Rwandan): ICTR art 1)
ICC: see Rome Statute, art 12 (crime must have been committed on
the territory of a state, unless committed on board an aircraft in
which case take into account the vessels registration)
Court can also exercise jurisdiction if party to

crime is a national regardless where crime
committed. Providing it is past 1 july 2002.
Even if state not party, it can lodge a

declaration accepting jurisdiction in respect to
the crime in question.
Court can exercise jurisdiction if case is
referred under UN SC Ch 7 of UN Charter.
States have primary responsibility
ICC will not hear a case if being investigated
or prosecuted by a state which is able to carry
it out
geographically: by the location of the alleged offence
ICTY: the former Yugoslavia (ICTY Statute, art 8)
ICTR: Rwanda (or neighbouring country if accused is Rwandan): art

1
ICC: see Rome Statute, art 12
temporally: by the date of the alleged offence
ICTY: 1 January 1991 onwards (ICTY Statute, art 8)
ICTR: 1 January 31 December 1994 (ICTR Statute, art 1
ICC: 1 July 2002 (or when state became party, if later and if no
declaration to the contrary): Rome Statute, art 11
by the nature of the offences that can be tried
ICC jurisdiction (simplified)
Cannot prosecute in relation to events occurring before 1 July 2002 (art 11)
Can only exercise jurisdiction:
if the accused is a national of a state party
if the alleged crime took place in a state party, or
if a situation is referred to the ICC by the UN Security Council (art

12)
Domestic courts retain primary responsibility for upholding ICL
This is different to the situation re the ICTY & ICTR
CATEGORIES OF CRIMINAL LAW

ICL is divided into four major categories of international crime: reflects the visage of
international crimes at start of Nuremberg trials.
1.
2.
3.
4.
Genocide
War crimes
Crimes against humanity
Crimes of aggression
GENOCIDE
Defined by the Genocide Convention 1949 art 2
Consists of a pledge by parties to modify domestic laws to

condemn persons who commit genocide or to extradite

suspects so they can face trial elsewhere either by domestic
or international court
Not just mass murder also forcibly removing children from

one group to another or through rape and sexual violence
(Rwanda)
Must be done with an intent to destroy national, ethnic, racial

or religious group HOWEVER something systematic is
required (either in whole OR part)
Can be committed without killing ordering others to do so

(art 3)
Can be committed by omission
WAR CRIMES
Grave breaches of the Geneva Conventions, 1949. These are
defined in:
GC I (re wounded and sick military personnel) art 50
GC II (re wounded and sick naval personnel) art 51
GC III (re POWs) art 130
GC IV (re civilians) art 147
Violations of the laws or customs of war
ICTY art 3
Acts done during armed conflict
Can be committed against anyone whether civilians or

combats men
CRIMES AGAINST HUMANITY

Necessarily committed against civilians
Can be committed in peace time as well as war time
Art 7 Rome Statute listed acts as part of widespread or

systematic attack (an isolated attack will not constitute a war crime)
Special mens rea element must have knowledge of attack

against the civilian population (Rome statute art 30)
Rome Statute art 30

1. Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware
that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists
or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall
be construed accordingly.

Mens rea defences:
1. In addition to other grounds for excluding criminal responsibility provided for
in this Statute, a person shall not be criminally responsible if, at the time of that
person's conduct:
(a)
The person suffers from a mental disease or defect that destroys that
person's capacity to appreciate the unlawfulness or nature of his or her conduct,
or capacity to control his or her conduct to conform to the requirements of law;
(b) [re intoxication];
(c)
[re self-defence or defence of others];
(d) The conduct which is alleged to constitute a crime within the jurisdiction of
the Court has been caused by duress resulting from a threat of imminent death
or of continuing or imminent serious bodily harm against that person or another
person, and the person acts necessarily and reasonably to avoid this threat,
provided that the person does not intend to cause a greater harm than the one
sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person's control.
2. The Court shall determine the applicability of the grounds for excluding
criminal responsibility provided for in this Statute to the case before it.
3. At trial, the Court may consider a ground for excluding criminal responsibility
other than those referred to in paragraph 1 where such a ground is derived from
applicable law as set forth in article 21. The procedures relating to the
consideration of such a ground shall be provided for in the Rules of Procedure
and Evidence.
Mistake of fact (art 32(1))
eg President of State A attacks B believing that B is attacking A
1. The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a
superior, whether military or civilian, shall not relieve that person of
criminal responsibility unless:
(a)
The person was under a legal obligation to obey orders of the
Government or the superior in question;
(b)
The person did not know that the order was unlawful; and
(c)
The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes

against humanity are manifestly unlawful.
Mistake of law? (art 32(2))
eg President of A invades B believing he has a right or responsibility

to put an end to genocide in B
Insanity (art 31(1)(a))
Duress (art 31(1)(d))

Rome Statute 1998, art 7(1)
For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
(a)
Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation or forcible transfer of population;
(e)
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
CRIME OF AGGRESSION
Starting/pursing wars of aggression
Crime against international peace
An individual who, as leader or organizer, actively participates in or orders

the planning, preparation, initiation or waging of aggression committed by
a State shall be responsible for a crime of aggression.
Rome Statute 1998, art 5NB: Kampala removed art 5(2) for those
ratifying amendment (only take effect for states that accept and
ratify changes in question today only 20 states have ratified the
amendment, so for majority of states we must read art5(2)
Rome Statute 1998 art 5

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern
to the international community as a whole. The Court has jurisdiction in
accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision
is adopted in accordance with articles 121 and 123 defining the crime and setting
out the conditions under which the Court shall exercise jurisdiction with respect to
this crime. Such a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.
Before the ICC can exercise jurisdiction three things must happen
1. The alleged crime must have been committed at least one year after the
ratification or acceptance of the Kampala amendments by thirty states parties.
2. The date of 1 January 2017 must have passed before the Court exercises
jurisdiction

3. A decision must have been made to exercise jurisdiction over the crime of
aggression by two thirds of states parties (and that decision cannot be
made until after 1 January 2017).
- Rome Statute 1998 art15 ter
However in the event of a state referral or the ICC acting proprio motu:
special provisions exist where the UNSC has not determined that an
act of aggression has occurred.
states may opt out.
The ICC cannot exercise jurisdiction where the crime is committed

by nationals of non-party states or on the territory of non-party
states.
Rome Statute 1998, art 15 bis
Rome Statute 1998, art 8 bis (1)

For the purpose of this Statute, crime of aggression means the planning,
preparation, initiation or execution, by a person in a position effectively to
exercise control over or to direct the political or military action of a State, of an
act of aggression which, by its character, gravity and scale, constitutes a
manifest violation of the Charter of the United Nations.
Rome Statute 1998, art 8 bis (2)
1. For the purpose of paragraph 1, act of aggression means the use of armed
force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with the
Charter of the United Nations.
2. Any of the following acts, regardless of a declaration of war, shall, in
accordance with United Nations General Assembly resolution 3314 (XXIX) of 14
December 1974, qualify as an act of aggression
Art 8 bis (2) then lists seven examples of acts of aggression (summarised below):
(a)
Invasion of another State;
(b)
Bombardment of another State;
(c)
Blockade of ports;
(d)
An attack on land, sea or air forces, or marine and air fleets of another
State;
(e)
Abuse of an invitation to use force in another State;
(f)
Allowing the use of territory for acts of aggression by another State;
(g)
Sending irregulars who carry out grave acts of armed force against
another State.
Has an act of aggression occurred? Did D participate in planning, preparation,

initiation or execution of that act? in doing so was D in a position effectively to
exercise control over or direct the political or military action of the State? Did
D have the requisite intention and knowledge?

International Law - Exam Notes

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International Law - Exam Notes

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INTERNATIONAL LAW LAWS259 EXAM NOTES

TOPIC 1. INTRODUCTION TO INTERNATIONAL LAW

PERSONALITY IN INTERNATIONAL LAW

Eg: United Nations, European Union, WTO

Six principal organs:

INTERNATIONAL LAW LAWS259 EXAM NOTES

Changes to the UN SC are difficult to make requires acceptation from ALL

Economic and Social Council: art. 62

Governed by the Statute of the ICJ

IS INTERNATIONAL LAW A LEGAL SYSTEM?

INTERNATIONAL LAW LAWS259 EXAM NOTES

Only sovereigns may posit law

A sovereign is a person, or body of persons, to whom a political community is in

ARGUMENTS FOR CLAIMING THAT INTERNATIONAL LAW IS A LEGAL

1. Language: Governments that claim legitimacy inevitably adopt the language of

3. Distinguishing international law from morality enables us to impose on states

COMMON OBJECTIONS THAT INTERNATIONAL LAW IS A LEGAL SYSTEM:

Arguably, international law is routinely obeyed

Even if a legal rule is routinely breached, surely it remains a legal rule

The existence of persistent offenders does not mean there is no law

3. International law lacks an enforcement mechanism

TOPIC 2. SOURCES OF INTERNATIONAL LAW

INTERNATIONAL LAW LAWS259 EXAM NOTES

international conventions, whether general or particular, establishing rules

These are multilateral treaties relating to universal substantive legal principles.

These are usually bilateral treaties relating to a specific issue.

2. INTERNATIONAL CUSTOMARY LAW

Look at what states say as well as do

Actively rejected the practice (never acquiesced to it), and

INTERNATIONAL LAW LAWS259 EXAM NOTES

Anglo-Norwegian Fisheries case, ICJ, 1951: Summary:

OPINO JURIS (SIVE NECESSITATIS)

Geneva Convention on the Continental Shelf 1958, art 6(2)

GENERATION OF CUSTOMARY INTERNATIONAL LAW BY TREATY

INTERNATIONAL LAW LAWS259 EXAM NOTES

Right of Passage case (Portugal v India), 1960

3. GENERAL PRINCIPLES OF LAW

4. SUBSIDIARY SOURCES OF INTERNATIONAL LAW

Art 59 The decision of the Court has no binding force except

SOURCES OF INTERNATIONAL LAW

Actions of international organisations. These can have direct impact regionally or

INTERNATIONAL LAW LAWS259 EXAM NOTES

eg, EU institutions pass laws that are binding on EU Member States,

TOPIC 3. THE FORMATION OF TREATIES

EXAMPLES OF IRREGULAR FORMS OF LEGALLY BINDING AGREEMENT

INTERNATIONAL LAW LAWS259 EXAM NOTES

TOPIC 4. TREATY INTERPRETATION AND ENFORCEABILITY

Eg: in 1945, what did the parties mean by Art 2(4)?

Look in particular at the travaux (prparatoires) (preparatory documents)

Look at the ordinary meaning of words: the treaty on the page.

Eg: what does Art 2(4) actually say?

INTERNATIONAL LAW LAWS259 EXAM NOTES

There shall be taken into account, together with the context:

eg: Final Act of the Rome Conference re the establishment of the

eg: rules re voting rights of permanent members of the UN Security

UN Charter, Art 27(3):

Vienna Convention on the Law of Treaties 1969

INTERNATIONAL LAW LAWS259 EXAM NOTES

Modification: refers to a variation of treaty provisions that affects the rights or

eg a peace treaty requires State A to pay reparations to States B and C. State B

Error (VCLT Art 48)

INTERNATIONAL LAW LAWS259 EXAM NOTES

Fraud (VCLT Art 49)