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Kirk Shannon
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Public International Law – Fall 2005
Kirk Shannon
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Public International Law – Fall 2005
Kirk Shannon
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Public International Law – Fall 2005
Kirk Shannon
B. STATE RESPONSIBILITY..................................................................................................................................88
Draft Articles on State Responsibility...........................................................................................................89
Corfu Channel Case: UK v. Albania [ICJ 1949]........................................................................................89
The Jessie, Thomas F. Baynard, and Pescawha.........................................................................................90
Cosmos 954 Claim – Canada v. USSR......................................................................................................90
IMPUTABILITY.............................................................................................................................................91
T.H. Youmans Claims: US v. Mexico [General Claims Commission, 1926]............................................91
State Responsibility for Private Individuals..................................................................................................92
Acts of Insurgents..........................................................................................................................................93
Circumstances Precluding Wrongfulness......................................................................................................93
C. Enforcement of Claims..............................................................................................................................95
North American Dredging Company.........................................................................................................95
PART 12 – INTERNATIONAL DISPUTE RESOLUTION............................................................................97
Fisheries Jurisdiction................................................................................................................................98
Construction of the Wall Advisory Opinion.............................................................................................100
Aerial Incident at Lockerbie Case...........................................................................................................101
PART 13 – USE OF FORCE.............................................................................................................................101
A. PROHIBITION OF THE USE OF FORCE...........................................................................................................101
B. JUSTIFICATIONS FOR THE USE OF FORCE.....................................................................................................104
1. The Right to Self Defence........................................................................................................................105
The Caroline, UK vs US..........................................................................................................................105
Nuremberg War Crimes Trials.................................................................................................................105
Israeli Attack on Iraqi Nuclear Research Centre.....................................................................................106
2. Self-Defence of Nationals........................................................................................................................107
The Entebbe Raid....................................................................................................................................107
3. Humanitarian Intervention......................................................................................................................108
4. Collective Measures Pursuant to the UN Charter....................................................................................109
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INTRO
PIL born out of the collective violence of the 20th century. Born in the matrix two world wars, holocaust, genocide.
Look at is as a mirror reflecting society
Look at the absence of actual sovereign
o Relfection of power realities.
o Law as essentially an apology for power.
o Reflects rather than imposes existing order.
o Redress the historical imbalance that has been created by a system
Brief Overview
Can be traced to antiquity and ancient civilizations
Mistake to say only emerged at reformation, but, in many ways went along with development of nation states in
Europe and the colonialism that went along with it.
End of 30 years war – 1648 Peace of Westphalia. Embodied dissolution of holy roman empire – that church was
no longer the authority. Emergence of national identity and rise of absolutist monarchies. SUM: Notion that nation
is central or as supreme entity. Sovereignty
Dominance, supremecy in relation to the right to wage war, right to impose one’s will on others to the
extent that power realities allowed
Development of war from knights in shining armour to total war with ideology attached had profound effect on PIL.
Civilized and uncivilized nations – Peace of Westph was only among Christian sovereigns (b/n protest and cath). These nations
were part of the civilized world.
Laws of war were different when fighting b/n civilized nations and fighting non-civilized nations (which continued into
the times of Churchill and, to a certain extent today)
WWI
First stage in transformation to modern intntl system.
Key devel 1928 Pact of Paris – Kellog-Briand Pact
o Outlawed wars of aggression – sovereign rights do not extend to right to wage wars of aggression but only to
right to self defence.
Gave rise to League of Nations
o Short lived experiment of collective security that ended with Italian colonisation of a part of Ethiopian and
Japan in Manchuria
WWII
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Elements of Change
UN charter. Made treatment of states of their own subjects an issue of international law. Violence is still subject of
international law. Creation of ICC result of Yugoslavia genocide and ICTR was result of Rwanda.
UN CHARTER
Some speak of this as a tranasition from state centered Grotian model to Kantian model.
Contained express prohibition for use of armed force.
Nazi war in forefront of minds of drafters.
Only legit use of force was self defence. Only other legit use is with SC of UN allows for it.
o Eg Korea, Kuwait.
UN charter succeeded where LofN failed.
Intro of HR as universal concept. 1948 – Gen Ass.
o Universal Decl of HR (UDHR)
o Genocide Convention (adopted one day before UDHR)
Revolutionary documents. Early glimmerings of constitutional order (charters, etc.)
Note that under classical international law, the victims and the offenders had to be of two different nations. How then could the
Nuremburg trials deal with cases where both were from same country. Enter notion of crimes against humanity – some crimes
so shock the conscience of international community. This was done retroactively – which is against the principles of legality b/c
of an overwhelmingly compelling situation.
Introduced notion of individual criminality into an area where states were central - movement away from the idea that
the state was an abstraction. Now composed of individs who should be held responsible for their conduct.
Decolonization
Vast majority of UN member states gained independence after UDHR. Post colonialism and right to self-determination.
Cold War
Shaped the international system. Context within which international law was interpreted.
End of Cold War we have entered into period of uncertainty.
Questions to consider
Who makes it?
It is a reflection of culture and should not be seen as a set of abstract norms.
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L. Pospisil in 1971 argued that primitive society law worked based on consent – law is internalized. This only works,
according to some, in a society closely knit by kinship….living in stability….etc.
2) Doctrine of Positivism: Some of the rules to which states are consented to be bound. International law is law b/c of
consent. Consent can be implied.
Problem with this theory: Does not explain why the law is binding. States consent to be bound but does not
explain why they consent to be bound. Could equally not consent to be bound.
o Central critique of Positivism Facts of international life don’t fit into international law.
Obligated by force of circumstance to consent to be bound.
o Consent also does not provide an explanation Auto-limitation to sovereignty: There are limits
but they are self-imposed.
Brierly’s response:
Debunks fundamental rights theory
Critiques positivism.
There needs to be new mystery about the source of obligation. Why? – the answer for this question is for philosophy not
for law according to Brierly.
What composes international law how far does it extend and is consent the basis for
application.
In 1951 – when ICJ was pronouncing (Reservations to Genocide Case) on why genocide was unlawful, it could not use customary
or general principles. Could only rely on Treaty Law.
Note that the convention of 1948 was open for signature and put into force in 1951. How can we assert custom in 1951
after only three years. Therefore, court referred to general principles (based only on genocide being a monsterous
crime). Every subsequent case that is referring to this case alludes to customary law and not general principles.
This all to say that Brierly’s point has validity –
Brierly recognises that the difference b/n national and international law does not lie in mystical but rather in the………look this
up!!!
Brierly emphasises custom as basis for international law. Order and not chaos the governing principle of the world.
Basic idea is not dis-similar to that Hobbes. Emphasis on custom.
International system is pragmatic social arrangement
Distinguishes from national system where there are compulsory powers. In international is a loose system with custom
as a basis. (Remember that custom at its base is a primitive legal system as opposed to complex).
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International legal system reflects a primitive legal order in which “spiritual cohesion is weak”. Remarkable according
to Akhavan – Remember Pospisil – spiritual community allows for sustaining of law in national system.
Purpose of the international legal system (thoughts?) and does Brierly’s response saying that international law is regulating inter-
state relations satisfy you?
Pragmatic approach with genocide: spill over of refugees, economic effects for the region, etc. Therefore, there are
many inter-state effects.
Other approach: In this increasing globlized world, must we be confined by interstate relations. Goes along with idea
that no genocide is not a threat to peace and security.
Rwanda and Yugo both had implications in the region – Yugo in Masadonian and Rwanda – the effects were felt in Zaire, Tanz,
etc. Similarly in Cambodia.
Reality is that ideals are becoming increasingly central. Expressions of mass violence will inevitably reverberate into the
international community.
A- States
States are the primary subjects of international law
International law applies to certain entities – subjects. W/out this capacity, entity will be unable to maintain any claims.
Used to be only states until 20th C. – HR law, IHL and International Econo Law changed this and now some individs
have legal character internationally.
Questions to ask:
o Does a particular entity fulfil the prerequisites for ‘subject’ status?
o What does this capacity for legal personality entail?
o In new candidates, sucha s peoples seeking self-determination, individs, international orgs and multinational
corps, is there or must there be demonstrable legal capacity and, if so, what are its parameters?
Significance of having legal personality – capacity to enter into international legal relations.
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2. Territory
- Defined boundaries are not absolutely essential – disputed borders are a-ok
3. Government
- Type of government is not important
- Ability to exercise effective & exclusive control over the population.
- Civil strife can obscure recognition as state
4. Capacity to enter into relations with other states
- Capacity is both a requirement and a consequence of statehood (circular)
- Reciprocity of recognition flows from this idea
- Eg.’s of issues with Taiwan, Somaliland, and the Bantustans in SA.
- Demonstrates extremes of positivistic thinking in the inter war period.
- Demonstrates dominance of principle of effectiveness, that is - Effects on the ground dictates statehood rather than some
sort of normative structure.
- Look to eg. of Bosnia-Herz Bosnian gov’t barely controlled 1/3 of territory and were not in control of the population
but still were recognised by EU. Shows movement away from Principle of Effectiveness with increase in HR law, etc.
Must consider:
Role which ethno-centric conceptions have played in developing principle of effectiveness as distinct from the more modern
variant which is based on more democratic notions.
Against: Advances in HR, IHL and humanitarian aid have changed the old system which was purely based on states as subjects.
Post WWII, legal capacity of UN was raised in a case. Decided that the UN had international personality – could make claims,
etc. Also, look to the rise of civil society – NGO’s, and other international private orgs. Post WWII and holocaust, civil society
began to respond. According to argument, state is not capable to respond to international issues – civil society and the private
sector must step in. (but Civil Society can’t enter into international agreements…so…)
- Do international orgs enjoy sovereignty rights such as states?
- Could a state against which coercive action has been taken by the SC remove itself from the UN? – no.
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2(1) provides for legal equality. (i.e. 18(1) provides for one vote for each member but art. 27(3) gives special veto
power to the five permanent members of the Security council!)
Art 2(4) 2(4) Members not to use threats or force against other states.
Art 2(7) 2(7) Restriction of interference in the matters that are “essentially within the domestic jurisdiction of any state”.
(What qualifies as “essentially within” and how does this interact with other essential elements of the Charter
such as H.R.s which enlarge the scope of intrusion?)
Principle is: If something is essentially in the domestic jurisdiction of the state, other states cannot intervene.
Eg. Gov’t of France provides advice and support to Bloc Que – is this intervention in domestic affairs of Canada?
Maybe – look to nature of intervention.
Eg. Indonesian gov’t makes contributions to Pres. Clinton’s campaign – is this intervention?
Is there some magic to sovereignty? Look to the Basques in Spain, the First Nations in Canada.
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Under the UN, became a trusteeship system which led to independent nations – last trusteeship became
independent in 1994.
Namibia Case
Jurisdiction 1971 – Adv Op.
Facts Resolution 2145 terminated SA’s mandate in South West Africa.
Issues Discussion of General Assembly’s actions including 2145
Holding Resolutions with respect to Namibia were made in accordance with UN charter.
Ratio Only a material breach of a treaty justifies termination 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.
Basis of South Africa’s control over the area was based on a mandate and did not constitute sovereignty over
the area. If the mandate lapsed b/c of violations to the object or purpose of the treaty, the authority over the
territory is said to have lapsed as well.
Nature of breach - the actions of SA were designed to destroy the national unity and territorial integrity of
Namibia through the establishment of Bantustans are contrary to the provisions of the UN charter.
When the SC adopts a decision it is for all member states to comply with that decision – even those on the
SC who voted against it and those members of the UN who are not represented on the SC
SA must withdraw from the territory and, until that point, remains responsible for its obligations and
responsibilities to Namibia under international law. Physical control of a territory, and not sovereignty or
legitimacy of title, is the basis of State liability for acts affecting other states.
Akhavan on Namibia
Obligations erga omnes – SA owed rights to other nations.
C - State Succession
Continuity & Sucession: 4 Possibilities
Succession is not the same as continuity –
Succession is when one state replaces another – continuity is when a gov’t changes within a state.
1. Transformed state
- due to the rule of continuity, the state does not disappear and reappear, it remains the same actor and is bound by past
obligations.
- Germany is responsible for the acts done by Nazis; South Africa is responsible for Apartheid Gov’t
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- A gov’t can ignore the obs of past gov’ts (1917 Russia) but they will be excluded from the international system
- The binding force of obligations in normative – bound through your relations with other states
Succession To Treaties
- Personal Treaties
o The original state will continue to be a party
o New state will have to rejoin ex. NATO – the other members may or may not allow the new state to join
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Against:
Constitutive approach does not reflect practical reality on the ground…which is not a response to the question.
D – Recognition
“The free act by which one or more states acknowledge the existence on a definite territory of a human society politically
organized, independent of any other existing State, and capable of observing the obligations of international law, and by which
they manifest therefore their intention to consider it a member of the international community.” (Resolution of the Institute of
International Law – Brussels (1936))
Two Criteria
Claimant must satisfy legal criteria for statehood
Publicly expressing its decision to respect the claimant as an independent state
Background:
Geneva Convention Protocol 1 (1977) – gave legal personalities to liberation movements. Self-determination to struggles.
This was controversial.
Geneva Convention Proto 2 – Injurgency – for limited purposes of application of Geneva conventions, insurgency can be given
personality.
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conferred and not the process by which they (state and gov’t) were factually formed. States are only established by the
will of the international community
Two problems: is an unrecog’d state bound by international law? What if a state is only recog’d by some and
not others.
Declaratory Theory or the Evidentiary Theory – recognition is only formal acceptance of an already existing situation –
factual situation that produces legal constitution of the entities and recognition does not have to be awaited for this
purpose. Majority opinion supports this theory.
Majority of laws are still binding on unrecog’d states or gov’ts. In reality both are partially true – it is declaratory based on
factual qualifications and it is constitutive as it brings the state into the vacuum of international relations as an equal.
Both theories are open to abuse.
Note that the principle of effectiveness is a recognition of a situation on the ground – does not take into consideration HR and
self-determination. This has been rejected by Canada in their employment of the declaratory theory and the Estrada doctrine.
NOTE: Recognition must be clear and unambiguous – a state that signs a multilateral treaty cannot be assumed without question
to recognize all other signatories.
UN C. art 4 provides for admission of all “states” who satisfy a certain criteria hard to argue that a member was not
recognized.
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Ability to enter into treaties, diplomatic relations. Without it, limitations in pressing the claimant’s rights as a state and other
states asserting responsibilities.
EC Guidelines on Recognition
Case of Former Yugoslavia
With disintegration of the republic and outbreak of war, EC issued guidelines to the recognition of new states. Requirments
included adherence to UN charter, guarantees for ethnic and minority groups, respect for inviobility of all frontiers and
peaceful settlements of disputes thereof, respect of commitments to disarm and non-proliferation, acceptance to settle by
agreement all issues concerning state succession. The EC also said it would not recog entities which were the result of
aggression.
EC granted recog to three new states after they satisfied the above.
Federal Republic of Yugo (formed by two former portions of the old repub) was denied recog based on its part as
aggressor.
Problem: How do you respect the inviobility of frontiers when you have a state that is dismembered?
Yugoslavia
1991 Federation is wanted. Serbian strong-man (Milosovic) resists – and war breaks out.
Uti possidetis juris – colonial boundaries continue to apply when independence comes. (applied to decolonization in
Africa and Asia)
Serbian population in Bosnia-Herz and Muslim population in Croatia. Does it make sense to say that the boundaries
must be respected at all costs? These are, afterall, internal boundaries.
o Self-determination Notion of the people is connected to territory.
o Refusal of recognition of Greece b/c of their concern of attempts to unite Macedonia and their province of
Macedonia.
Kosovo – 80-90% Albanian – why should Kosovo not have the same status as the other republics? Permanence of
boundaries can be a matter of controversy.
Charter of Org [paraphrase] Political existence is independent of recognition by other states. Rights exist prior to recognition
of Amer States (defend territory, provide for preservation and prosperity, admin services, etc.) Limited only by the exercise of
Art 12 the rights of other states in accordance with international law.
Art 13 [paraphrase] Recog implies that the state granting it accepts the personality of the new state with all the rights
and duties that international law prescribes for the two states,
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Other candidates can have personality in terms of international law. To do so, the claim must be respected by other international
persons – that is, by the existing community of states. This is based on the practice of the states – a functional question.
UN C art 104 …the organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for
the exercise of its functions and the fulfillment of its purposes.
UN has personality under the domestic laws of all its members.
Reparations Case
Jurisdiction Adv Op. [1949] IJC Rep. 174
Facts Sweedish national and a UN mediator killed in Palestine (Jerusalem which was under Israeli control)
Issues Legal capacity of the UN to bring a claim Can the UN bring a claim for compensation against Israel? Does the
UN have international legal personality?
Holding Yes, but legal personality is unique and limited to functional approach
Ratio Practice – in particular the conclusions of the conventions to which the org is a party – has confirmed the character
of the UN, which occupies a position in certain respects in detachment from its members, and which is under a
duty to remind them, if need be, of certain obligations.
Could not carry out the intentions of its founders if it was devoid of international personality.
The UN has privileges and immunities within territories of its members practice has confirmed its
status as an international personality
still not co-equal to states or a superstate, it’s personality is unique
but, it is a subject of international law, capable of possessing rights and duties, and capable of
maintaining its rights by bringing international claims
Can recover in the name of the victim because it must (a) be able to assure safety of its agents and (b) it
must be able to do so without relying on a state’s exercise of diplomatic rights in order to maintain its
truly international character (Art 100)
all of this is implied by the provisions of the Charter
Can it bring a claim against a non-member government?
Yes, because it has objective international personality, independent of its 50 member states (seems a little
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The Panel’s insistence that we must see the interconnectedness of contemporary threats to our security is particularly
important. We cannot treat issues such as terrorism or civil wars or extreme poverty in isolation. The implications of this
interconnectedness are profound.
New UN proposal from the GA is to be tabled soon – not clear as to the shape of it.
Proposes reform of SC
Proposes establishment of a HR Council to replace HR Commission.
Organisation of the UN
Key parts of the UN (SC, GA, Econo and Social Council, ICJ, Scretariat, Trusteeship Council)
Secretariat is composed of SG and his staff – supposed to be merely implementing will of member states. No really the
case as the office has grown and is extremely important at this time.
Peace keeping is central – (Congo – where there is move away from peace keeping to peacemaking- , East Timor, some
in Bosnia, Eritrea-Ethiopia) Peacemaking more prevalent in post-Rwanda where “there was no peace to be made” so
UN pulled out.
Powers and capacities have explanded significantly. In 1945, would not have been imagined that these powers would have been
exercised.
With these powers comes accountability – Sierra Leon and UN peacekeepers w/ child prostit, Oil for Food scandal.
Move to reform Office of Internal Oversight to ensure accountability.
Trusteeship Council
Largely defunct as last trusteeship ended in 1994
Composition of GA
Art 9 – all members of the UN
Actions of SC
Binding on member states – Art 25 – Agree to accept and carry out decisions of SC
NOTE: Art 103 – Obligation of charter prevails over other international obligations. It is the supreme international treaty.
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(See Lockerbie case – state whose nationals were implicated had the right to extradite or presecute under Montreal Convention.
SC resolution compelled extradition. Libya said was going to presecute but the court said Art 103 makes Charter and art 25
Composition of SC
Art 23 – 15 Members ROC, France, USSR, UK, US – victors of WWII – permanent members. GA elects other non-permanent 10
members. Art 27 details veto of permanent members.
Questions:
1. The SC cannot be effective or legitimate without changing its composition.
Affirmative:
New threats require reform. Efficiency requires it. Dilution voice of dominant states.
Negative:
Restriction would erode the decision making ability. Increased size would cause inefficiency. Ability to respond rapidly. Dilute
consensus. Other organs can exist (under Chapter VIII). Dilution of the permanent members’ importance while still asking a
lot from these nations would be problematic. Could change obligations
2. Permanent members of the SC should have the right to exercise their veto power even where a situation of genocide exists.
Affirmative:
Histrically – reflection of power realities – contributions by certain states at inception.
Prof – power, is this a good reason for a veto power – is this representative (France UK?? No India). Would this be an
incentive to get nuclear power for nations to show.
Against:
Art 24 and Chapter VII – responsibility of the SC to intervene in case of genocide. UN report of High Panel states SC is best
positioned.
Why Genocide is singled out – massive destruction that is possible in a short period of time.
Prof – what about situation where Perm Member thinks intervention would make situation worse? Not clear.
1) Individuals
Individuals have gotten standing in certain circumstances but it still may be difficult for individual to assert rights under
international law. No doubt exists that an individ can be tried under international law:
War crimes – against the laws of war
Crimes against peace and security – initiating war
Crimes against humanity – murder, extermination, enslavement, deportation and genocide.
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Art 1(2) UN C. 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;
Art 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the principle of equal rights and self-
determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and
development;
b. solutions of international economic, social, health, and related problems; and international cultural
and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
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:
a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and
educational advancement, their just treatment, and their protection against abuses;
b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them
in the progressive development of their free political institutions, according to the particular circumstances of
each territory and its peoples and their varying stages of advancement;
d. to promote constructive measures of development, to encourage research, and to co-operate with one another
and, when and where appropriate, with specialized international bodies with a view to the practical
achievement of the social, economic, and scientific purposes set forth in this Article; and
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.
Discussion in class:
Ethno-nationalism as basis for statehood? Kurds of Turkey were in situation where they were denied right to speak their
language
Is it a total waste of time to talk about self-determination as a legal concept?
Mao – the barrel of a gun.
Theory – imposition of Western style of gov’
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There is here a rush to self-determ which is understandable because of the treatment under colonial powers. But this
rush has led to internal violence on many occasion (DRC for eg).
Controversy
Rights asserted by every group seeking independence yet decried by every nation threatened with dismemberment. Not
clearly defined and therefore controversy over defn and scope.
What does “peoples” mean – must they have a territory, similar ethnic background – what are the marks of homogeneity?
Elements of a Nation
Objective Elements: language, history, culture, religion, ethnicity
Court did not take jurisdiction b/c Indo was a non-party before the court and therefore did not give consent.
Court instead only dealt with issue of self-determ
Issues Self-determination
Holding
Ratio Principle of self-determination is recog’d as one of the essential principles of contemporary international law.
Discussion of an erga omnes obligation which is an obligation to the international community rather than just to one state
– an issue where all states have an interest.
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Mi’kmaq Case
Jurisdiction UN HRC Communication No….[1990 and 1992]
Facts - Group of Mi’kmaq petition UNHRC after refusal of Can gov’t to allow them individual seat at
constitutional convention re: scope of s.25/35 rights allege violation of right to self-determination
- Canada argues: Not a people – scattered population, minority
- Mi’kmaq argue: concentration in reserves, recognized as a unique population
Issues Collective Rights assertion
Holding Halted on procedural grounds – UNHRC only has mandate over individ rights – not collective rights
under the International Covenant on Civil and Political Rights (art 1) (ICCPR)
Ratio Claim brought under art 1. Collective right, individs
Art 25 – internal self-determ. – b/c they were denied right to participate in constitutional
conference. Native representatives were enough according to the court.
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Art 71 UN C. The Economic and Social Council may make suitable arrangements for consultation with non-governmental
organizations which are concerned with matters within its competence. Such arrangements may be made with
international organizations and, where appropriate, with national organizations after consultation with the
Member of the United Nations concerned.
Power hierarchy that exists (based on scope, national/international, funding, clout) Note that International federation of
societies of Red Cross and Crescent (different from ICRC)
What sort of NGO’s have some quasi-law making capacity
IOC – Olympic committee – laws and rules for international competitions. Exercise regulatory functions
ICC – International Chamber of Commerce – Paris – reg of trade, payments
NB: NGO’s are better defined by what they are not. Don’t use force, not governmental
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Requirement of impartiality and confidentiality sufficient to shield ICRC delegates form testimony
No question of balancing with wish for justice arises – customary law binds so no balancing is at issue.
Akhavan
This case was brought on by a member of the prosecution that was convinced she could take on the ICRC under art. 7.
The outcome was that despite the cautious words of the dissent who advocated a pragmatic, balancing of interests
approach, the majority affirmed the ICRC’s special status and gave them absolute immunity.
The result – the ICRC was able to legislate that immunity through statute.
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efforts to regulate them and define the rights and duties of states commercially connected to them (i.e.
UN Code of Conduct on Transnational Corporations, Int’l Labour Organizations, WTO).
History – HBC, Dutch east India, etc. – helped shape international law by attempting to carve out monopolies.
All have profound effect on trade, enviro, HR, etc.
Issue of immunity – state immunity. Cannot sue a state with certain exceptions (taking of property and torture). An example
would be FSIA – Federal state immunity act in the US.
jus imperii (governmental acts) and jus geestionis (acting in a commercial capacity). Immunity only extends to jus imperii. If
acting in a commercial capacity then immunity does not exist.
Questions:
1. NGO’s are not democratically elected or accountable and should therefore not have a significant role in the international
lawmaking process.
Against:
Although not democratically elected, still legit and accountable –
Derive rights from coorperation of those people with whom they work
Often role is to protect minorities from the majority – therefore could not be democratic
Not being accountable to the states is invaluable
Acquisition of reputation of an NGO allows them to have influence on the international scene.
(NB. That PLO or ANC – not state entities but fall under prot. 1 of Geneva conventions – struggles. Other types that use
violence are call insurgents – fall under another category).
For:
Different weights should be given to different types of NGO’s - KKK versus a NGO for the public good.
Not all NGO’s are equal and therefore influence (which would most likely be from western countries b/c of wealth in
NGO’s) is unbalanced.
Language barrier (only six to be spoken if appealing to the UN)
2. Simic Case – One argue for the prosecution – One for the ICRC.
Facts:
Sinic and other D on trial for lives. Former employer (local staff of ICRC) wants to testify
ICRC claiming that they do not want former employee to testify b/c they have immunity
Ratio:
Args for the prosecutor – no explicit mention pre-Geneva and even there not clear. – should be a balanced exercise
especially in cases where testimony of employee would make or break case. W/out testifying gives the message that
ICRC will never testify and people can commit crimes in their presence without fear of…..
Response – if forced to testify then will not be allowed to complete duties – will not be allowed in. Greater good
argument – risk that future will be compromised for the ICRC
Requirement of impartiality and confidentiality sufficient to shield ICRC delegates form testimony.
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a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
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.
These are called firm law – lex lata. There exists soft law – lex ferenda that is not legally binding though they affect the conduct
of international relations by states and may lead to the devel of new international law. E.g. Helsinki Accords and OECD
Guidelines
Soft law (lex ferenda) comes from instruments that are not directly enforceable in domestic or int’l tribunals but are still
enforceable. (i.e. Helsinki Accords or OECD Guidelines for Multiateral Enterprises).
Soft law is not to be disregarded:
a. as stated it is still enforceable.
b. the objectives of hard law may require these non-treaty instruments to be achieved (i.e. UN Convention on
the Law of the Sea)
no hierarchical distinction b/n three law creating processes – all of equal authority. Potential exists for conflict.
Judicial decisions – it is questionable whether they create international law or simply reflect & confirm existing norms
Judicial decisions & doctrine are the lowest level of int’l law – does this make sense
o Reality of international law in that they don’t reflect the consent of states. Source of law is consent of state will.
Unlike municipal court systems, the ICJ is not the apex of the int’l law system
ICJ decisions are only binding on the parties
ICJ decisions do not set precedent, though they have strong persuasive authority
All states who are members of the UN have ratified the Statute of the ICJ, but not all states recognize its jurisdiction
Where does the court look for relevant customary law. Practice of states. What they actually do – conduct. Conduct that they
regard as binding.
Where there is conflict – usually go back to ICJ jurisprudence.
Conflicts
B/n customary and treaty.
English Channel Arbitration – customary law can in certain situations, modify and trump treaty law but not in this case.
In this case, there was no conflict. Look to 1958 continental shelf convention. 4 separate treaties that were amalgamated
in 1982. 58 convention says states have rights over the shelf (transport rights excepted) for resources.
Rule of treaty law (1958) and an emerging norm which differs in some sense with the convention. The court side-steps
it. No court wants to say there is a contradiction. In many cases they will read the treaty as custom.
Lex lata vs. lex ferenda in this case is at issue. They say customary is still emerging so it is not at issue.
2 examples of the Court AVOIDING the question of conflict between treaties and custom:
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In this case it was decided, despite relevant treaties, that the U.S. had violated its customary IL
obl’s (a) not to intervene in the affairs of Nicaragua and (b) not to use force against it.
Holding - Treaty and customary norms retain a separate existence even if they have exactly the same
identical content content. The operation of a treaty process does not deprive the customary norm of its separate
to a treaty-rule applicability.
does not negate
the independent If A breaches a treaty-rule with B, B is exempt from his treaty-rule. But if the same rules exist
existence of in customary law the breach of treaty by A does not justify B’s refusal to apply the other rule as
customary rules. he is also bound by customary law.
If there is a treaty, this will be latched on to. Treaty is the closest semblances to legislation. Resolution under treaty law is much
easier rather than debating custom and general principles
CIL – strategic advantage of element of consensus. Social agreement. When there is agreement then you can
side-step all those ambiguities of general principles.
CIL begins from the bottom up
Often consensus is a myth – importing where none exists
CIL – certain element of objectivity relating to the social facts that underlie the evidence
There is objective evidence as to the practice
General principles – imposed from the top down
Look to all the different law systems and objectively say that something like pacta sunt
servanda is a gernal principle
More problematic when dealing with notions of fundamental justice – natural law or devine
law. Notion is that there are certain bedrock principles or the German “grundnorm”. An
unimpeachable axiom.
Eg. Genocide reservations case in 1951 – genocide is unthinkable – it is a grundnorm.
Problem – imposition of subjective cultural values under the guise of universality.
Is this privileging of objectivity, ration, order necessarily the best was to approach these subjects? Is subjectivity, intimacy better?
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A – Treaties
Most easily acertable source. For most part have a written text to refer to.
Difference b/n “law-making treaties” and “treaty contracts”.
Law making treaties:
May codify, define, interpret, or abolish existing customary law or conventional rules of international law or create rules
for future international conduct.
Cannot be renounced
E.g. Human Rights convention. – Universal ratification creates customary law.
Treaty Contracts:
Creation of special rights and obligations b/n nations.
Can lead to the formation of customary law or be evidence of the existence of such rules.
Can be renounced
E.g: Navigation and Trade treaty b/n two nations
Privity of Treaties
- just like Ks, treaties cannot bind 3rd parties (non-signatories)
- not an absolute rule diff when treaty creates a benefit
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- Art 36 Vienna Convention allow for “assumed acceptance” for treaties that confer benefits
- Art 35 allows for third party obligations, but the 3rd party must acknowledge the obligation in writing
Entry into force – certain number of states have to ratify it in order for it to enter into force – Vienna Convention art 24-25 –
provisional application prior to ratification.
Date varies according to intention of parties (art 24 Vienna)
First signatories may not be bound by the convention qua treaty for some time (ie prior to ratification) though they are
bound to refrain from acts which would defeat the object and purpose of the treaty (Art 18 of Vienna)
Publication and Registration: Once it has come into force, it is registered with UN Secretariat (art 102 UNC and art 80
Vienna)
In Canada, treaties, are published in own registries separate from “understandings”
Akhavan:
Note that internal law is not at issue – it does not matter according to international law. See art 27 of Vienna Convention.
In Canada – treaty power is royal prerogative of gov in council. In practice, massive commitment of financial resources
then parliament will be called on to approve it.
E.g – heavily intoxicated foreign minister makes deal. Only valid if under Art 7 – have full treaty making powers.
Could include:
o Heads of state
o Ministers
o Consular…etc
NB: not all agreements b/n states are treaties – low level inter-gov arrangements may not be if not intended to be of binding
character.
- Usually written…nothing to prevent otherwise. – Legal Status of Eastern Greenland case where unilateral declaration orally
was at issue.
- Nominclature used to describe agreement does not mean it is or is not a treaty
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“In summary, it is from the actual substance of these stmts and from the circumstances attending their making that
the legal implications of the unilateral act must be deduced.”
Akhavan
- Interesting b/c circumstances for withdrawal might be at issue. Unilateral so can it be withdrawn. Analogies can be made in
domestic private law.
PROBLEMS:
(1) Declaration and Art 38 of UNC. where does it fit? Is it an agreement that might not be under the Vienna Convention?
Perhaps under heading of custom? It remains unclear.
In Canada:
Treaty mostly only used for a peace treaty. Exchange of notes is most often used.
Voluntary restraint, memo of understanding or assurance must be distinguished from a treaty
Ratification process does not require Parl approval
Reservations
- Unilateral statement made by a state when signing, ratifying, accepting, approving, acceding to a treaty whereby it purports to
exclude or modify the legal effect of certain provisions.
- Generally accepted that a state (if they did not participate in the drafting of the text) will not become a party subject to
reservation unless all other contracting states accepted this reservation (“classical theory”)
- Unanimous Reservation rule [ I don’t know if this is the real rule] some treaties change the rights of all of the parties
involved, so all states must consent to them: Ex. GATT
- Some allow for minor reservations (within spirit of treaty) in order to encourage more states to join
o See Convention Against Genocide Case
o This disrupts the synallagmatic view of treaties
- Some do not allow for any reservations, despite desire for wide adhesion:
o ICC
o ILO
- Cannot make reservations to treaty provisions that reflect customary norms
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Rule (1) State can be a party to a treaty if it’s reservation is objected to by some others, as long as it is not
incompatible with the purpose of the treaty
(2) If an objecting party considers a reservation inconsistent with the object, it can treat the other party as a
non-party to the convention (b) If the objecting party accepts the compatibility it can consider the reserving
party a party to the convention
(3) An objection to a reservation made by a signatory state that hasn’t yet ratified can have the legal effect
indicated in I only on ratification, until then it is only notice of the eventual attitude of the signatory state
(b) An objection to a reservation made by a state which is entitled to sign or accede but has not done so is
without legal effect
Today!!! The Vienna Convention has codified much of what the ICJ proposed with art. 2, 19, 20, 21, and 22.
Today much of the problem is therefore dealt with by specifying the rules of reservation within the treaty itself
(i.e. Hague Convention on the Civil Aspects of International Child Abduction in which reservations are limited
to the use of language and costs).
Canada and Canada often tries to have a federal-state clause inserted in multilateral conventions in order to reserve
Reservations Canada’s obligations at IL concerning s.92 matters.
Debate still raged for years after this case as to what to do with reservations. There are now specific rules found in art
2,19,20, 21 and 22 of the Vienna Convention.
Now, trend to specifying in the treaty which provisions can and cannot be the subject of reservations
Canada finds important as it usually strives to have federal-state clause put in treaties or enters a reservation.
Questions:
1. There is a de facto, hierarchy of sources of international law b/c treaties are more authoritative than other sources.
Treaties are more authoritative:
Note that in 1958 continental shelf treaty was only to 200m isobath depth. In 1982, changed to convention was
to 200 miles off coast – but if not ratified – what would trump – treaty or customary.
Customary must be consistent practice over a period of time.
What if two treaties – one earlier, one later. Which is to be applied? The later treaty is to be applied lex
posteriuri.
No hierarchy
2. Multilateral treaties more closely resemble legislation than a mere contractual obligation.
For - legislation:
Although sounds contractual – consent to be bound, etc. That is oversimplification. Does not explain binding
nature
Question: What if a country does not ratify and then declares that they consider themselves bound with the view of
creating a norm of customary international law. – can it still be binding? perhaps not technically but politically
would be binding.
Against - contract:
Can make analogies to domestic law for analogies – but….multilateral treaties are still not binding on everyone.
Legislation domestically do not allow for reservations.
Fits better with contract. Based on consent, like contract.
Treaty to commit genocide would not work under Art 53 of Vienna – cannot conclude treaty that is in violation of
peremptory norm.
Series of little contracts that require consent does not make legislation.
Akhavan:
Art 53 is the notion of constitutional norm – that is so important. Use the fiction of independent state consent. Would be
interesting to see what would happen if a state objected to Art 53 and to see the response of international community.
Still paying lip-service to state consent.
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right to self-determination
prohibition of use of force
some human rights norms
pacta sunt servanda
NB: The provisions on jus cogens are some of the VCLT’s most controversial articles.
Internal Rule:
A state may try to escape liability for a breach of a treaty by claiming that it was never bound b/c of some technical requirement
of its internal law (such as a Cdn province entering into a treaty for something which does not fall under their heads of power).
Art. 46 is an important limitation on that by requiring that the internal law be of fundamental importance and that violation was
manifest.
Jus cogens:
Jus cogens are obligations owed by a state to the int’l community as a whole, preemptory norms of IL that cannot be set aside by
treaty or acquiescence but only by the formation of a subsequent peremptory norm of contrary effect.
i.e.: use of force, pacta sunt servanda, inviolable norms because of their wide and deeply ingrained acceptance such as the
principle of freedom of navigation on the high seas or the elementary considerations of human dignity.
Termination
Conditions – what are they and what types can and cannot
HR, non-use of force and fundamental constitutional norms will survive – others might be renounced
Treaties don’t just terminate because the original parties are no longer controlling the territory. For instance in Canada treaties
entered into by the Commonwealth on behalf of Canada did not terminate simply because of Confederation. It would be even
nonsensical to allow for the nullity of all treaties. It is however acceptable for Canada to enter into new treaties or substituting
arrangements for the ones within the terms of the treaties signed by U.K. but until there is a conscious and acted upon decision to
do so the former treaties remain in force. (see Ex Parte O’Dell and Griffen, [1953] O.R. 190 (H.C.)).
In the Namibia Case the ICJ concluded on the legitimacy of the U.N.’s termination of S.A.’s mandate over South-West Africa (see
earlier notes on this case).
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The principle does exist in IL that changing circumstances which lead to the impossibility of performance may render a treaty
inapplicable.
The basic criteria for this principle is that the change be “fundamental” (see art. 62 Vienna Convention).
Prof Allott Honestly, this is a piss poor set of notes…get somebody else’s
Analysis of fundament social transformation How does one do it? – particularly if you want to take part in it.
[British society has been constantly reconstructed in a revolutionary way.]
Now been transferred from national society to international level.
Imagine three players of scoail change. Put in hierarchial terms from the bottom.
- Bottom – material change – economic change – labour
- Second level – social – institutions, forms and processes
- Top - Mental – ideas, values.
Could see these three as a circle rather than a hierarchy. This is the post-marxian view. Constant circle of
interaction. Material level does not determine or cause the social and mental levels. Social can determine
material.
Ideas of democracy and capitalism are just ideas by which we then act accordingly.
B – Custom
Customary International Law (CIL) is comprised of two elements:
(1) Consistent and general international practice among states (material conduct of states)
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(2) The practice must be accepted as law by the international community. (known as opinio juris) (how they
perceive the conduct)
Matters of protocol (eg. ships saluting other’s flags on the high seas) are practices but are not obligations.
How does a new rule emerge? Opinio Juris. State practice that is accepted by the community.
New rule means that a state unilaterally decides that doesn’t not like existing norm so it will change it.
NB: Violation of a norm does not create a new norm ex injuria jus non oritur
Especially important with use of armed force (Iraq and NATO in Kosovo). Some say US is creating a new norm.
Theories or analogies that we can derive from general principles of law in determining binding nature of CIL
Three concepts as to why international custom, as evidence of a general practice accepted as law:
Consent
Estoppel – estopped from changing your conduct
Reasonableness
Operations of creation and basis for determining application of CIL are very controversial derived from unilateral action by a
number of states (not multilateral action – which would constitute a treaty of sorts)
Prof. McDougal states – It is not of course the unilateral claims but rather the reciprocal tolerances of the external decision-
makers which create the expectations of pattern and uniformity in decision, of practice in accord with rule, commonly regarded as
law.
Qualitative question: how much practice do you need and how much opinio juris changes depending on “how important the
norm is”
For eg. crimes against humanity will adapt faster than 12 mile sea boundary line.
Class:
Most often treaties are best way of seeing if a customary law exists.
In other cases, treaty only codifies existing CIL. (eg. law of the sea convention)
Dispute as to how to divide the continental shelf between Netherlands, Germany & Denmark. Germany has
signed, but not ratified the treaty and claims it is not bound. DK and Neth argue Geneva Convention on
Continental Shelf had crystallized emerging international customary law on equidistance. Germany relies on
doctrine of just & equitable share as, under the equidistant theory, Germany would receive more.
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Issues Is equidistance theory a part of customary international law and therefore applicable to Germany even though
art. 6 is not opposable to Germany?
Holding No. Equitable principles apply and parties must hammer out agreement.
Ratio - Art. 38: ICJ Statute- Int’l custom is evidence of general practice accepted at law.
- Two distinct components: 1. General practice; 2. Accepted at law Opinio Juris
- Possibility of reservations to this provision shows that states do not think this is customary
- Consider object and purpose of the convention - in this case the issue is not against the object and
purpose, therefore a reservation is possible
- If derogations exist – can this really be CIL.
- Did it become CIL because of subsequent state practice?
- no evidence that states acted the way they did because they believed they were obliged to do so, i.e. no
evidence of opinio juris
- What has attained opinio juris is (a) that such delimitations are the result of agreements and (b) that they
are equitable
- neither of these imply the equidistance method, in fact, (b) mitigates against it in some circumstances
- From the Lotus case – “only if such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom.’
- State practice to date has not demonstrated a clear understanding that state were conforming b/c they
believed themselves to be bound – this is the subjective component of the opionio juris.
Tanka Dissenting:
- Number of ratifications/accession must be considered in context. Should not try to seek evidence of
subjective motives when investigating opinio juris, objective acts are sufficient
Lachs Dissenting:
- Ratifications alone are not conclusive with respect to general acceptance of a given instrument.
-bindingness does not require universal acceptance
- have to remember that rules of IL are never the result of fiat in the modern context, i.e. they always result
from consensus and negotiations
- when we look at a state practice we should look at states with coastlines – are states are not equal in this
matter.
Sorensen Dissenting:
- custom can emerge rapidly in some contexts
- Geneva Convention rules have become generally accepted
- Germany previously accepted the convention formally, in so far as it claimed it to reflect IL, and is
therefore no longer in a position to escape its authority, even though it has not yet ratified
- Possibility of reservation is not relevant—many rules of IL are suppletive (all except jus cogens)
- Acting contrary to the prima facie rule but justifying the act as exempt because exceptional = recognizing
the rule (Military Activities in and Against Nicaragua)
- Rule that emerged in 3rd LOS conference was: agreement on the basis of IL in order to achieve an
equitable solution (i.e. the court’s ruling)
Akhavan:
Quality of practice is point at issue. Question: whether Chad or other land-locked country in equal weight to UK and
Japan which are old sea-fairing nations.
1982 convention – codifies equitiable principles in determining shelf delimitation.
In practice – what does equitable consideration mean? Equidistance/special circumstances applies. Special
circumstances are ones where inequitable result would come out of equidistance theory. Modify to reflect
proportionality. (e.g Malta and Libya where equal would not have been equitable.)
What constitutes State Practice does the legislation of states constitute state practice? It is debatable. Should we disregard
this and only look at the situation on the ground. What about court decisions? Should be taken into account as evidence but not
as primary. What about diplomatic notes? UN resolutions? Could be yes, negotiations go on and there is agreement (hopefully).
What about if called declarations? Not necessarily.
Customary law becomes significant even if there is treaty – there is always added value. Some sort of legitimacy bedrock that
doesn’t rest on treaties. May also dilute quality of practice.
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Case goes back to a time when relations b/n neighbouring states were reg’d by practice. Practice hear was
clearly established by the two parties – this must prevail over any general rules.
Question:
1. The notion of customary law is merely an apology for power realities. (ex post facto legitimization)
For:
Customary law is usally enforced by actors themselves rather than institutions. Power can be used to form law in a very
clear and direct way.
Way the court decides – powerful states are going to impose practice on weaker states – entrench power realities
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2. In determining customary law, the increasing importance of a norm implies the decreasing relevance
of state practice and a propensity to substitute conduct with opinio juris.
Against:
What about supreme court decisions? Are they state practice or opinio juris or both?
Where does legislation fit in? Is this state practice?
Why are we so caught up with Customary law why not call it a General Principle and skip state practice?
Look to Rwanda, Yugoslavia tribunals call genocide CIL – even though both countries ratified Geneva Convention.
Why?
Maybe b/c of universality. Treaty does not have that.
CIL has something more concrete
Look to the example of Female Genital Mutilation. It is a general principle that it is cruel and unusual. Cultural
relativists would not like this. Morality leaves open the question of whose morality? Consensus is at the basis of
custom – not the imposition of morality on another nations.
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Some, such as Tanaka J., b/c they have the character of jus rationale or are ‘valid through all kinds of human societies’
Court has referred to principles in cases dealing with breaches of obligations, error and vitiation of consent, res judicata,
estoppel (in relation to good faith and equity), unjust enrichment,
Cdn Charter includes s.11(g) which refers to general principles of law recognized by the community of nations.
General principles of law are generally considered to be less important than custom and treaty (this is confirms by Art 21(1)(c) of
the ICC statute. Only resorted to when there are not clear answers in CIL
History – when ICJ was created, there was very little ‘international’ law when the court was created, so there needed to
be a mechanism for the court to enforce international obligations
Until 5 yrs ago – it was used rarely – there are now lots of treaty law & jurisprudence recognizing custom
However, ICTY & Rwanda tribunal created an international criminal law – very new area of law, no treaty/custom in int.
law the tribunals drew on criminal procedures in municipal laws
But the ICC tried to relegate principles of law to a lesser status reaction against judicial activism of ICTY & Rwanda
The goal is to make analogies to institutions in the international sphere (i.e. you cannot import a prohibition of murder
b/c domestic law takes care of this)
In international tribunals, do we use municipal cultural norms or international ideas (i.e. custom of forced marriage – is
this a form of rape?)
However, incest is the most universal cultural taboo – is there a prohibition of it in international law?
Process by which general principles of law are found and applied by International court.
J. McNair – When new legal institutions resemble rules and institutions of private law the role of the ICJ is to take
the private law as an indication of policy and principles but not to import “lock, stock and barrel” a set of rules.
So the court must look at the issue (in this case the meaning of “sacred trust of civilization”) and seek to discover
what the underlying policy and principles of the issue are.
To do this he looked to scholar’s writings from different countries on the meaning of “sacred trust” to identify the
presence in nearly every legal system of some institutions that embody the idea of “sacred trust” – ie trustees or
tuteurs for people who are not sui juris – devised to protect the weak.
Equity
- 3 types:
o Equity intra legem (adapt the law to the facts of an individual case – attempt o arrive at equitable outcome)
Itl tribunals may apply this type
E.g. – Continental Shelf Case Equitable principles were applied. Application of the rule was
inappropriate. Now would likely be treated differently – now equidistance/special circumstances
o Equity prater Legem (use equity to fill the gaps in IL)
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Question: Where is equity derived from? Perhaps justice, fairness – but will everyone agree on these concepts Problem of
indeterminacy (we want determinate well define norms – can’t just leave it up to the judge)
Probem: Equity falls under jus rationale and not municipal law. Equity is indeterminate whereas municipal law is not.
Sometimes a principle of international law, sometimes its considered a ‘source’ of international law
- Namibia Case: uses idea of trust to define the role of UN mandates nations (rather than trying to find local customs)
- Diversion of Water Case: both parties were not complying with their treaty but one party tried to complain
o Court applies rule of equity that you can only complain if you have ‘clean hands’ (judge Hudson)
o Equity as principle of law states: If by treaty 2 states bind themselves in a way were the obligations are
interconnected, if one state does not comply, it cannot force the compliance of the other state
Jus cogens, according to Akhavan, more generally resembles general principles. Go to the prohibition of genocide which
could not be customary law (although it is often referred to as such) b.c it would be instant custom
Erdemovic Case
Jurisdiction ICTY – appeals camber
Facts Erdemovic, locksmith of Croatian origin married to Serb. Caught in b/n competing factions. Part of different
armies. Promised swiss passport – went to Serb stronghold for passport, paid and was stranded in the Serb
stronghold. In order to secure money for family and protect as croate, joined Bosnian Serb army. Laid land-
mines, etc. In 1995, Bosnian Serb forces took muslim civilians, let the women go but bused men for execution.
Erdemovic was brought with others to farm and muslim men arrived. Told that he will be executed if he does
not kill muslim men (despite his protest). Takes part. Later on he disagrees again, is shot and taken to a
hospital where he reveals what happened to journalist. This is the first exposure of what was happening in
Svrebonincia (can’t spell).
Normally would not prosecute Erdemovic – small fry. Indicted to save his life – secret service would have
gotten to him
Brought to the Hague – plea of guilty (common law notion). Therefore, no need for judge to be hearer of facts –
prosecution and defense discuss and sentence given. In civil law there is no such thing as guilty plea – only a
confession which is suspect. Defense lawyer and judge were not from common law jurisdictions.
On appeal, they say never entered a plea of guilty, only confessed. Explained that by his not participating he
would have been killed (duress). In a sense, there was no plea of guilty and we don’t understand plea of guilty.
Problem, sole piece of evidence was his own testimony. If it was taken back to trial, he would not be sentenced,
would be sent back to Serbia (possible death) and would not be able to testify against others.
ICTY statute did not contain list of defences – largely regulated by domestic law. Stat was rudimentary.
Question revolved around distinctions b/n common and civil law.
Common law, duress is an excuse to all crimes (had mens rea but should be excused as harm was
unavoidable)…except, murder and treason against Her Majesty – more pragmatic/policy oriented
Civil Law – duress available to all crimes. All or nothing approach
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Issues Court posed questions to itself: Is duress a defence in situations of crimes against humanity? (Here, mass
murder but could include torture, enslavement, rape when committed on a widespread scale)
Holding Soldier will not be allowed to rely on duress based on the Common law.
Ratio Court looks to other systems (Japan and China)
Court resolves diffs b/n civil and common by – joint opinion says that there is no general principle and
that common law should be looked to b/c of policy considerations.
Italian judge gives that a big boooo. Policy considerations are not liked by Italian judges.
Principle of legality – problematic as give judges the retroactive right to judge which law applies based
on policy.
Texaco v. Libya
Jurisdiction 1977 – arbitration
Facts Libya was trying to nationalize oil resources. Texaco did not like this. Landmark cases in foreign
investment arbitration. Wanted prompt, adequate and effective compensation based on resolution 1803
of 1962. In 1974 developing countries adopted the economic charter of rights and duties in resolution
3281 to change economic system for poor countries to catch up in that, standard of compensation was
left to the discretion of the state. 3281 is a resolution was abstained by practically all the western states
and therefore not adopted by them even though most of the GA did adopt. 1803 was unanimous.
Issues Which resolution is binding? What is the relative weight of the different resolutions.
Holding 1803 is binding and 3281
Ratio Binding effect of a UN resolution depends on the voting pattern. 1803 was voted by all countries and
therefore had more weight. 3281 cannot be considered binding on countries that did not ratify it.
Recalls argument of Lachs in Continental Shelf in terms of the weight in customary law.
Akhavan
3281 is dead and could not be used in front of arbitration tribunal.
Protected investment in countries b/c based on 1803 and adequate compensation what company would invest with
thought that investment would be lost.
Questions
1. In determining general principles only the common law and civil law systems are relevant.
For: International law is based in Western law so this should be continued.
Time required to canvass all legal systems in the world.
Against: If this is to be legit – should look to other. If they are to consider the decisions binding, how can we not look to others
jurisdictions when.
Why should we look at sub-state systems? Can help inform us of general principles.
Notion of lex talionis (punishment fits nature of the crime – torture, drawn and quartered, publically). What if such a system
exists in a traditional system of law general principle is therefore not general? How do we approach this? Fiction that there
is a general principle. Reasonable majority is all that is required?
2. Criminal liability based on general principles violates the principle of legality. (prohibition of the retroactive
criminalization of conduct)
Does this principle protect the idea of lex certa (certainty of law). Nuremburg tribunal which relied on general
principles of law to buttress the principle of legality. S. 11(g) of Cdn Charter refers to Cdn and international law
or is criminal according to general principles of law.
Also International Covenant on Civil and Political Rights (ICCPR) Art 15(2) on p 92 of the supplement.
Was specifically addressed to deal with Nuremburg.
Based on Nuremburg, should they have been prosecuted for crimes against humanity? Is it not in the case of really important
crimes that the principle must be used?
Discussion of principle of humanity as taking precedence in certain cases over the principle of legality.
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Exist 2 theoretical departure points which are complicated because of little agreement in doctrine and cases due to the
diversity of approaches from different States.
(This approach was implicitly adopted by SCR in Re ▲Good test of a State’s reception to IL = the extent to which the
Nfld. Continental Shelf 1984). court, in interpreting such legislation, will look to the int’l norms
or rules that gave rise to the domestic law.
There is tension here with the rule of parliamentary
supremacy!
Considerations to keep in mind concerning the national application of CIL in Canada:
1. Fed. can bind Canada but the enacted legislation will depend on the division of powers.
2. The issue of integrating int’l treaties, norms or rules is important due to the increasing source of domestic law in int’l
undertakings (i.e. tax treaties, law of the sea, labour standards, etc.)
3. When there is a conflict between int’l and domestic law the division of powers again complicates things.
4. The Canadian Charter of H.R.s – to what extent int’l accepted HR norms should be relied upon for its interpretation…
Direct applicability that some international norms should have effect. In Canada, HR law is a part of the constitution as it is a
new constitution.
Notion of Parliamentary Supremacy: English tradition, domestic law is supreme with idea of adoption – or direct applicability of
international law in English law.
Some constitutions – Germany, Japan – Require that international law be accorded supremacy. Imposed on them by the
allies after the war (although the allied powers did not do the same for them)
Very often judges know very little of international law but are called upon to make judgments that will deal with it. Labour
conventions, tax treaties, International Commercial Arbitration,
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Assessment Act of Ontario could allow the municipalities could collect taxes on the foreign legations. CIL
allowed for immunity for diplomats and legations.
Issues Ottawa city council had power to levy taxes/rates on foreign legations (property)
Holding Foreign legations will not be taxed
Ratio Duff – Does not overrule the Act but says that, in this case, jurisdiction is not there. Adoption of customary
law is taken based on England. Law is applied but not enforced. Immunity from legal process. Province has
the right to tax whoever it wants.
Presumption that the legislature did intend to legislate in accordance with international law.
Gordon v. R.
Jurisdiction 1980 SCC
Facts Gordon was fishing in what was considered international waters but Canada had declared it was Canadian
waters. Note that this is before the 1982 UNCLOS. International law was recog’d at 12 miles for High Seas
by 1958 convention. [Continental shelf has no relevance as it deals with sub-surface rights – not fishing.]
1982 Exclusive Economic Zone – 200 mile to exploit resources – not yet applicable.
Issues
Holding Faced with the conflict court must apply domestic law.
Ratio Canada acted clearly and unambiguously and therefore the Canadian Law would prevail.
Meredith - Can only apply CIL when it has been accepted and adopted into domestic law.
This case is relevant for custom as well as treaty as mentioned in class. It indicated that treaty law is
transformationist, that is to say only applicable through valid implementing legislation, whereas
customary law is adoptionist,
directly applicable, though the latter does not prevail over unambiguous
legislation to the contrary (whereas it may when it is ambiguous such as in the Legation case).
Relevance – Can Canada legislate in contravention to “entrenched” CIL? (Off-shore fishing rights).
Seems odd as could be seen to bring up the principle of legality.
How should the adoptionist view be shaped by these considerations. Should right to liberty, etc., influence the court to
adopting and adoptionist.
Should we move to transformationist approach to get rid of uncertainty. Would be too difficult to keep up as Customary
law is constantly changing.
Treaty Implementation
Without implementation by legislation (according to ordinary rules governing the division of power) Canada as a country is
bound but the provisions of the treaty do not affect internal law.
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1. Incorporate the text into domestic law such that the treaty becomes a Cdn law and a source or rts and obl’s…either…
In toto (1949 Geneva Conventions, 1929 Warsaw In part (Vienna Convention on Diplomatic Relations)
Convention)
2. Incorporate the substance of the treaty into Cdn law. In this case the treaty is not part of domestic law and any rts or
obl’s are sourced from the domestic law that reflects the treaty’s substance.
Difficulties with this approach – how to tell whether a particular act implements a particular treaty. When individual rts are
affected by the subject matter of the treaty this is especially significant.
Laskin – the answer is that implementation must be manifest and not inferred.
The Adoption of Laws for Implementing Treaties is based on the Ordinary Rules governing the Division of Powers under
the Constitution:
Labour Conventions Case, [1937] House of Lords
Facts and holding After ratifying 2 International Labour conventions the fed gov’t proceeded to legislate in accordance
with the convention’s provisions. The court ruled the legislation to be ultra vires the fed gov’t as the
legislative competence on the subject-matter of the conventions lied with the provinces.
Lord Atkins Within the British Empire:
“water-tight Executive act = making of a treaty
compartments” Legislative act = implementation of those obligations into domestic law
In Canada there is no such thing as treaty legislation in ss.91 and 92. Rather the distribution is based on
classes of subjects which will require the participation of the legislative power having control over a
particular class.
Will this position More recent SCC cases have suggested a trend towards a reconsideration of this case. Does this make
be maintained? sense given the increasingly interdependent nature of our world society that the fed gov’t have the power
to not only bind Canada but implement even when prov jurisdiction is touched upon?
POGG (referred to by Akavan as a residual power) and the general trace and commerce power in s.91 are
two sources of possible authority. (i.e. cases in which the economy of Canada is treated as a single
national unit).
(The Gordon case is also a good example of the treatment of conflicts as Canada had in fact ratified the Geneva Convention in
1970 but had failed to implement it).
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Each one is attempting to construe away a conflict between a statute and a treaty. Should courts attempt to simply defuse the
conflict or should they take a proactive stance and attempt to further the treaty as far as possible?
The case illustrates the tensions b/t judges trying to make “it” fix and ultimately giving deference to the division of powers if
no fit can be arrived at.
Facts Arrow River Co. was entitled to fix tolls under the Provincial Lakes and Rivers Improvements Act (1927)
for the movement of timber down the river including Pigeon River which serves as a part of the border
between Ontario and the U.S. The Pigeon TimberCo. objected to paying the tolls because of a conflict
with a treaty from 1842 which provided free access to those waters.
Ratio Riddell J.A. (CofA) – Unless the statute is so explicit as to prohibit an alternative interpretation it is
1. Riddell – prior acceptable to interpret it in such a way as to remove any conflict and to therefore to promote the
commitments execution of the King’s “plain duty”.
must be upheld if Therefore, “in Ontario” in the Act does not mean “partly in Ontario” which is the case of the river in
possible. question. It was therefore not meant to be covered by the Act and the toll cannot be charged on the
Pigeon River. (Echos of Legations Case, trying to import meaning to render the statute consistent with the
treaty.)
Smith – also
creative… Smith J (SCC) – Riddell incorrectly interpreted the Act. The treaty was referring to waters which were in
interpreting treaty use and navigable at the time of the treaty. The part of the Pigeon River in question was non-navigable at
intent. the time and therefore the treaty does not apply. The tolls can be charged.
Lamont – Lamont J – He also construes the treaty. The treaty states that the use was to be “free and open” to any
construes too… navigable waters even if they require a portage, then or in the future. He finds it an unnatural use of
but Statute language to limit that liberty. Based on this the tolls cannot be charged. However he finds another reason
prevails! to permit the tolls…
On whether the Lamont J – Provincial legislative power is plenary as concerns s.92 powers. As this Act is clearly within
Act was valid and s.92 it is enforceable. To be overruled there must be affirming legislation that a treaty provision shall be
enforceable… enforced.
Yes!
Treaties between Canada and foreign states are “only contracts binding in honour upon the contracting
states…” The treaty’s provision of “free and open” access to the waters had only the force of a K b/t
Canada and the U.S. and therefore cannot impose any limitiation on Ontario’s legislative powers.
Judicial notice to CIL greatly assists the entry of CIL into our domestic law.
Judicial notice – the act by which a court, in conducting a trial or framing its decision, will of its own motion…recognize the
existence and truth of certain facts, having a bearing on the controversy at bar, which, from their nature, are not properly the
subject of testimony, or which are universally regarded as established by common notoriety, e.g. the laws of the state, IL,
historical events, the constitution and course of nature…etc…
▲Judicial notice means that there is an assumption that what is presented IS the law, so the court is not bound to justify it (versus
the law of another state which requires proof). This can be problematic because much of IL is not “certain”, such as CIL or
G.P.’s.
Substantive Influences:
International norms can play an impt role in Cdn law.
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In Keegstra Case on hate speech legislation Dickson stated that a value that has obtained the status of an int’l right should be
indicative of a high degree of importance attached to that objective. The court relied on the CERD as well as ICCPR (Int’l
Convenant on Civil and Personal Rights) given the absence of any specific provision in the Charter prohibiting hate speech. The
meaning for the purposes of Canadian law was inferred by using these treaties.
European Union:
The EU’s legal structure is a matrix of int’l agreements.
1957 Treaty of Rome – the framework agreement which set out the basic rights and obligations and created the institutions by
which new and binding rules may be enacted.
1992 The Maastricht Agreements – Established the EU, further extended integration process and paved the way for the euro.
1997 Treaty of Amsterdam – deepened the EU, enhanced fundamental rights of European citizens and began the common
European foreign and security policy.
The EUs legal strength rests on 2 fundamental principles: the primacy of Union law over conflicting national legal
provisions, and the right of individuals to rely on the Union norms before their domestic tribunals.
Cosa v. Ente Nazionale Per l’Energia Ellettrica, [1964] ECJ Advisory Opinion under art. 177
Facts Italian refused to pay electric bill claiming that the nationalization of the electric company was contrary
to Italy’s obligations under the Treaty of Rome. For our purposes issue is whether the Italian court must
refer to the treaty.
Holding Yes the Treaty applies to domestic tribunals.
Ratio Real powers resulting from a limitation or transfer of powers from the States to the Community were
created and accepted by the member-States which clearly limits their sovereign right to enact and enforce
a subsequent unilateral law incompatible with the aims of the Community.
It appears that ECL plays a much more central role than IL in terms of its place in EU members domestic legal systems.
In this sense the issue of conflict and legislative competence does not seem to be as important as in Canada in that the court
clearly states that despite any discontent on the part of member states they must still give force to a ECL over their domestic law.
This case is interesting because parliamentary supremacy always had been the rule in England.
Transformation in The statute is expressed in such forthright and unequivocal terms as to the legal effect of any rts or obl’s
advance… under the Act without “more ado”. By signing the treaty the UK automatically submitted domestic law to
the treaty as to its subject-matter.
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declared it had no jurisdiction to stop the Crown from applying UK law and evoked the principle of
Parliamentary Sovereignty. The H.L.s sought the advisory opinion of the ECJ who declared that
domestic courts are within their jurisdiction to override national law if necessary to enable interim
relief to be granted in protection of rights under ECL. The H of Ls therefore granted the injunction.
Ratio Lord Bridge – the supremacy of the ECL over national law had been well established in ECJ jurisprudence
long before the UK enacted the act in 1972. Thus the UK has voluntarily submitted itself to that
sovereignty.
United States
Customary Law:
CIL may be in questions of IL where there is no treaty and no controlling executive or legislative act or judicial decision.
In terms of conflicts with statutes, the U.S. takes a similar position to Canada and attempts where possible to interpret statutes in a
way so as to avoid conflit.
Treaties:
The US Constitution gives the President treaty-making power with the advice and consent of the Senate.
As for implementation, a 2/3 majority vote of the Senate to adopt a treaty makes it part of the “supreme law of the land”. This
permits them to override domestic law in the case of a conflict.
Self-Executing Agreements:
In the US int’l agreements are called self-executing if the intention of the signatories according to the provisions was to create rts
and obls capable of direct enforcement by the courts.
A treaty cannot be self-executing if it cannot operate without the aid of any legislative provision. When
the terms import a K with the engagement to perform a particular act then the treaty addresses itself to the
political and not the judicial dept; the Legislature must execute the K before it can be a rule for the court.
Executive Agreements:
Three kinds:
Treaty-based – these enjoy the same legal status as the treaties that authorize them as long as they are consistent with
the treaty
Congressional – authorized by statute, this is now accepted as a complete alternative to a treaty in which a
simple majority approval is sought from both houses of Congress and not just the Senate. Like a treaty with a
2/3 vote these agreements become the law of the land and supersede inconsistent state law or provisions in earlier
treaties.
Unilateral – these are made solely under the President’s authority.
Questions
1. Instead of adoption, customary law should always be transformed to ensure consistency with the Canadian Constitution.
2. Within their sphere of competence, Provinces have the right to legislate in violation of international law. THIS
ONE!!!!
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Res nullius: some lands are really res nullius such as Antarctica. But then it was also used for Indigenous areas. This concept has
somewhat given way to common heritage of man kind. This is different from the idea of res communis which means it belongs to
everybody, more of a free for all.
Jurisdiction:
- competence of a court; or
- scope of authority of a particular state organ or organ of an internal organization; or
- scope of authority of a state over its territory.
Under Montevideo Convention on the Rights and Duties of States (1935), a “defined territory” is one of the indispensable
attributes of statehood.
- Territory of state is tri-dimensional:
o surface,
o subsurface and
o column of air to an as yet undetermined altitude.
- Territory of coastal states, extends seaward to the outer limit of their territorial seas (maximum 12 nautical miles) and to the
continental shelf (200 nautical miles off shore, or even beyond – Canada).
Land Territory
(b) Acquisition of Territory
Traditional international law recognizes five different modalities for the acquisition of territory:
- Occupation. Two conditions:
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In reality none of these work in isolation. “relative title” is used, meaning the court will ask who has the better title.
If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which states claiming
sovereignty possesses a title – cession, conquest, occupation, etc. – superior to that which the other State ight possibly bring
forward against it.
Practice and doctrine recognize that the continuous and peaceful display of territorial sovereignty is as good as a title.
Territorial sovereignty involves the exclusive right to display the activities of a State. This right has a corollary duty: the
obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in
peace and war, together with the rights which each State may claim for its nationals in foreign territory. Territorial
sovereignty cannot limit itself to its negative side: exclusind the activiteis of other States.
Essential question: whether the island of Palmas a thte moment of the conclusion of the Treaty of Paris formed a part of the
Spanish or Netherlands territory.
- Cannot apply principle that islands belong to lands that are closest to them.
- Did Spain have sovereignty over Palmas at the time of the coming into force of the Treaty of Paris?
o US has not established the fact that sovereignty was displayed at any time.
- Did Netherlands display continuity?
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o Continuous display not in the literal sense. Enough that a the time another Power ascertaining the local
conditions had a reasonalbe possibility seeing the existence of other state rights.
o Netherlands never recorded any protests.
o No evidence of display of sovereignty over the island by Spain or another Power.
indirect prroof of the exclusive display of Netherlands sovereignty.
Consider whether the display of state authority might not be legally defective and thereforeunable to create a valid title of
sovereignty ?
- display has been open and public.
Whether the US as sucession of Spain in a position to bring forward an equivalent or stronger title? NO:
- title of discovery doesn’t apply.
- Title of contiguity has no foundation in intl. law.
- Title of recognition by treaty does not apply
Compare Palams Island with the Western Sahara. Despite the 1884 colonization of the Rio de Oro by the Spaniards there was no
terra nullius because the practice was to conclude agreeements with tribes and peoples. Therefore Spain’s title was derivative and
not original.
Question 1 needs to be answered by reference to the law in force at that period. The expression terra nullius was a legal
term of art employed in connection with “occupation” as one of the accepted legal methods of acquiring sovereignty over
territory. It was a cardinal condition of a valid “occupation” that the territory should be terra nullius. Sate practice of the
relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not
regarded as terra nullius. Acquisition of territory was effected through agreements with local rulers. Such agreements with
local rulers, whether or not considered as an actual “cession” of territory, were regarded as derivative roots of title. At the
time of colonization, Western Sahara was inhabited by peoples.
Question 2 depends on the meaning of ‘legal ties’ in the context of colonization. Legal ties of allegiance between the Sultan
of Morocco and some of the tribes living in the territory of Western Sahara. Existence of rights which constituted legal ties
between Mauritanian entity and the territory of Western Sahara. No tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian territory.
N Is the court creating a myth ? Was there a better way of achieving this result ?
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Held that Denmark has demonstrated occupation on July 10 1931 – activity of Denmark in area.
R Denmark’s arguments:
- sovereignty which Denmark now enjoys over Greenland existed for a long time, has been continuous and peacefully
exercised, and up until now, has not been contested by any Power.
- Norway has by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore
cannot now dispute it.
Norway:
- Denmark possessed no sovereignty over the area in question
- at the time of occupation, area was res nullius.
Danish claim is not founded upon any particular act of occupation, but alleges a title “founded on the peaceful and
continuous display of State authority over the island.”
To establish the contention that Denmark has exercised in fact sovereignty over all Greenland Council for D have laid stress
on the long series of conventions in which a stipulation has been inserted to the effect that the convention shall not apply to
Greenland. Show a willingness from other states to admit D’s right to exclude Greenland. Norway has been party to these
conventions.
Held that Greenland has displayed through legislation enacted, treaties and conventions, during the period of 1814 to 1915
her authority over the uncolonized territory.
Held that Denmark has demonstrated occupation on July 10 1931 – activity of Denmark in area.
- In Minquiers and Ecrechos Case ICJ called to determine whether France or Uk had sovereignty over islets and rocks in the
English Channel. Court unanimously found for UK. Decisive factor was the more recent evidence of the exercise of “State
functions” over the disputed territory by the UK.
- Dispute between Thailand and Cambodia over Preah Vihear Temple. ICJ case in 1962. The decisive piece of evidence was
that in 1930 a Thai Prince visiting the temple was hosted by a French Superior. Based on that principle, that Cambodia was a
French colony, the court held that the hosting of the Prince by France constituted recognition of French sovereignty.
Boundary disputes would often be decided by war, resulting in the territorial expansion of the victor. In more recent times, states
have been showing greater readiness to have their minor territorial disputes resolved through non-violent means such as
arbitration.
S.P. sharma arguest that there is a distinction between a boundary dispute and a territorial dispute. A boundary dispute is an
exercise of dividing territory whereas a territorial dispute is one where the goal is the exclusive sovereignty over a particular area.
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The effect of any delimitation no matter how small the disputed areas crossed by the line, is an apportionment of the areas
of land lying on either side of the line. …
Principle of “intangibility of frontiers inherited from colonization” gives rise to the principle of uti possidetis juris, the
application of which gives rise to this respect for intangibility of frontiers.
Principle of uti possidetis juris was first invoked in Spanish America. But the principle is not a specific rule which pertains
solely to one specific system of intl. law. It is a general principle which is logically connected with the phenomenon of the
obtaining of independence, wherever it occurs. Its purpose is to prevent the independence and stability of new states from
being endangered by fratricidal struggles provoked by challenging frontiers.
International law – and the principle of uti possidetis – applies to the new State not with retroactive effect, but immediately
and from that moment onwards. It applies to the State as it is, ie to the “photograph” of the territorial situation then existing.
N Uti possidetis means intangibility of frontiers.
Should uti posssidetis be restricted to colonial situations? Or where new states have a common colonial past? It was the legal
opinion of the Arbitration Commission of the Conference on Yugoslavia that uti possidetis was the governing principle of intl. law
respecting the boundaries between Croatia and Serbia and b/n B-H and Serbia.
Class Presentation
1. The doctrine of uti possidetis juris creates artificial States and should be abandoned in favour of historic national
territorial definitions
- So much death in Africa because of this principle. Zaire, Sudan, Niegeria etc. But then again, where we have had
separation as in India and Pakistan there has also been conflict.
- Should these boundaries be kept at all cost ie. Kurds. Kosovo, province of Serbia, was 90% Albanian. Today Kosovars
have effectively created their own state. Should the intl. community force them to go back to Serbia ?
- Example of Armenia and Azerbaijan. There is an enclave in Azerbaijan with an Armenian majority. The two countries
were republics of the Soviet Union and inherited the boundaries. Stalin purposely drew republic lines dividing ethnic
communities. The boundaries were a policy of divide and conquer. Should we respect Stalin’s boundaries at all costs?
The notion of juris is about pre-eminence of legal title over effective possession. This seems to be in conflict with the Island of
Palmas. Uti possidetis was used to decolonize South America and they wanted to prevent the encroachment of other colonial
powers. They knew that if effective possession was going to be the criterion they were going to lose their land because they could
not possibly occupy all the territory. The drawing of boundaries is pre-eminent over occupation. So it may not have been about
stability in the beginning.
Biggest issue is whether the ice should transform the arctic into a different type of territory.
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Importance of the arctic: resources (oil + gas), environment (eco-system is very fragile), during cold war years strategic
importance (early warning systems).
What is the status of “ice islands”? Canada is trying to claim that they create an archipelago. In the Law of the Sea Convention,
“group of islands and waters closely interrelated that form an intrinsic geographical and economic entity.” Indonesia is an
archipelago state. Canada is not an archipelago state it has a massive land mass. There is also the fisheries case. The ICJ case on
Fisheries of Norway holds that you draw straight base lines. Therefore Canada wants to apply the case to its Arctic islands.
US position is that the Northwest passage is not part of Canada’s internal waters. You cannot draw straight baselines. Internal
waters is no different then land territories, there is no right of passage therefore. The only time you can draw straight baselines is
if you are an archipelago state or if you fall under a.7. Doesn’t Baffin island look like the Norwegian coast line? Norway case
says that straight baselines needs to be tempered by general international right.
Does ice change the legal regime? It means that the water is connected to the land. The claim that there is an archipelago is
solidified by the ice.
Features of the Arctic from D. Pharand, “The Legal Status of the Arctic Regions” (1979), 163 Hague
Recueil 51
Criterion retained to define the Arctic is the tree line.
Arctic region is of considerable strategic importance (USSR submarine fleet, US Laboratory, Ballistic Missile early warning). +
Econ importance: new supplies of oil and gas.
The Sector Theory from I. Head., “Canadian Claims to Territorial Sovereignty in the Arctic Regions”
(1963), 9 McGill L.J. 200
Arctic “sector theory” is was first offered by Canada and is associated with Canada.
Arctic sector is deceptively simple: a base line or arc described along the Arctic Circle through territory unquestionably within
the jurisdiction of a temperate zone state, and sides defined by meridians of longitude extending from the North Pole south to the
most easterly and westerly points on the Arctic Circle pierced by the state.
Canada’s claims to territorial sovereignty over the Active mainland and the islands of the archipelago within the Canadian
“sector” have never been challenged.
US has neither disputed nor made its own claim. Policy being one of reservation in both Arctic and Antarctic.
Legal Status of the Arctic Regions by D. Pharand (1979), 163 Hague Recueil 51
No question as to the territorial sovereignty in the Arctic.
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Class Presentations
1. The doctrine of uti possidetis juris creates artificial States and should be abandoned in favour of historic national
territorial definitions
2. The U.S. icebreaker Polar Sea violated Canadian sovereignty by passing through the Northwest passage without
Canada’s consent.
Questions
1. The most democratic and effective approach is for parliament to ratify treaties.
2. Compare reception of international law in Canada with that of other jurisdictions.
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North Sea Continental Shelf Case shows how not all the provisions were considered CIL.
By the 1960’s, these conventions were already outdated.
o Definition of continental shelf – technology in 1958 for drilling did not allow for it beyond 200m isobar. In
60’s this was possible and therefore convention outdated
1973 – UN held first conference on Law of the Sea. (Father of convention – Tommy Koh of Singapore)
Resulting constant changes made another codification process essential Thus, UN Convention of the Law of the Sea
in 1982.
o Very extensive – 17 parts, 320 arts, 9 annexes.
o Does not deal with military uses
o Entered into force (as set out in convention) 12 months after 60th ratification in 1994. Also b/c of reservations
of US and other western countries who did not like the “common heritage of mankind” bit regarding the deep
seabed.
o Canada has signed (1999) but not ratified until (2003).
Law of sea particularly important for Canada – longest coastline in the world and 70% of oil reserves in the seabed.
o Is it an advantage for Canada to ratify. Not everyone has done so – Venezuela among others.
A – Marine Zones
1. Territorial Sea
Notion related to the capacity of coastal states to project their power in regulating who can sail off their shores (the
“cannon-shot rule” – how far the territorial sea extended. 3 mile rule was related to this rule.)
Established by 120 nations as being 12 nautical miles from the low-water mark.
Articles 2-14 delineate the territorial sea – definitions of baselines from where 12 nautical mile-line should be drawn,
definition of a ‘bay’, etc.
Rights in the territorial sea are “Sovereign Rights” (see article 2 UNCLS) which continue to its airspace and seabed and
subsoil
Exception for archipelagic – see art 2
Baselines
Drawn along the low-water lines. Principle here is that the land dominates the sea.
Generally follow contour of the coast.
Article 7 Straight baselines don’t force into the deep contours.
Note the difference b/n an archipelagic state and archipelagic area.
Canada
Cabott strait, Bay of Fundy and Gulf of St. Lawrence are all considered by Canada to be internal waters.
Also, on the west coast, Queen Charlotte….
All of these based on historical waters claim.
Mouths of Rivers
Where the fresh water ends and salt water begins the baseline is drawn
See also art 9
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Ratio Act of delimitation is a unilateral act as only the coastal state is competent to undertake it but the validity of the
delimitation depends on international law.
Court accepts use of baselines which, in cases of very indented or cut, may depart from the physical line
of the coast.
Considerations to be taken into account when deciding what section of the sea to include
Close dependence of the territorial sea on the land domain – drawing of baselines must not depart to
any appreciable extent from the general direction of the coast
Are certain sea areas lying within these lines (between islands and coasts) sufficiently linked to the
land domain to be subject to the regime of internal waters
Look to non-geographic factors – eg. economic, long-usage.
Major question is how this applies to non-signatories. What are their rights or obligations in the EEZ’s of other states.
Oceans Act art. 13(1) 200 nautical miles from the baselines of Canada’s territorial sea.
Art. 14(a) confirms Canada’s sovereign rights in the EEZ. Canada’s EEZ also includes all the waters over which Canada has
historical claims to full sovereignty.
Under the UNCLS, the provisions for an EEZ are the most remarkable in many respects, especially the speed in which states have
enacted them.
Is this zone to be understood as “sovereign rights” or “jurisdiction”? Might have to wait and see from state practice and
authoritative interpretation of the UNCLS.
Continental Shelf
UNCLS Arts 76-82
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In Canada the Oceans Act is fully consistent with art. 76 of the UNCLS.
(laurie, ck art. 76 and the cont. shelf on Cdn coasts b.c. and east coast…see page 884 casebook).
Oceans Act 1996
17(1) Continental Shelf (CS) – includes EEZ
18 Sovereign rights of Canada – over CS for exploration and exploitation of mineral and other non-living natural
resources.
20(1) Application of federal laws – CS installation, artificial islands including a security zone surrounding them.
20(2) Interpretation of the laws – in a manner consistent with the rts and freedoms of other states under IL.
21(1) Application of provincial law – Apply to the same extent as federal laws in s.20 in any area of the sea forming part of
the EEZ, that is not within any province and is prescribed by regulation.
21(2) Limitation – Subject to 26(1)(d), 21(1) does not apply in respect of any law of a province that imposes a tax or
royalty, or relates to mineral or other non-living natural resources.
23(1) Certificate - Minister of Foreign Affairs –
26(1) The Governor in Council, may, on the rec. of the Minister of Justice, make regulations
(a) prescribing a work as “marine installation or structure”
(b) making any law of a province applicable even though the law by its own terms is applicable only in respect of a
particular area within the province
(k) making federl or provincial laws applicable in specific circumstances as are specified in the regulations in the
EEZ, the CS or any area beyond the CS.
Deep Seabed
Possibility of exploiting certain minerals on the deep sea floor is slowly evolving.
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Third conference on the Law of the Sea instituted a Moratorium resolution until an international regime could be
established.
Resources declared to be the common heritage of mankind.
Moratorium stops all exploitation
Seabed Declaration
Similar as Moratorium
Against:
Authority in Jamaica does not have any authority for Environmental control
Does not help the devel of developing countries.
Wealth sharing is not a good idea.
Part 7 - Nationality
A. Individuals
There must be genuine link b/n the state granting the nationality and the individual.
From Re Lynch – continuing state of things is required and not a physical fact. Membership of an independent political
community.
Not static but rather constantly dynamic.
It is the fundamental basis for jurisdiction over persons beyond national territory.
Rights and obligations come from nationality Formal espousal of claims of its nationals through diplomatic channels,
imposition of military service, some may refuse to extradite nationals,
Requirements in Canada found in the Canada Citizenship Act. Note that marriage is not actually a ground for acquiring
citizenship – it is based on residence which can be made easier by marriage.
Note also, exception is diplomats cannot claim nationality by jus soli.
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Under the treaty of Maastricht there is a notion of European Union Citizenship. What do we think? IS this a good idea.
DUAL NATIONALITY
1930 Hague Convention on Conflict of Nationality Laws
- Person with two nationalities may be regarded as a national of both states
- Third state required to recognize only the nationality of a person of where he habitually and principally resides or is most closely
connected (art 5)
Question
1. Canada may not espouse a claim on behalf of a dual national against the state of another nationality. (Think Zahra Kazemi and
the right of Canada to claim reparations on her behalf even though she is a dual national)
Zahra Kamzemi Case. Iran to France living. Mature adult comes to Canada and acquires citizenship. Goes back as photo
journalist and is…… Can Canada bring a claim against Iran?
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Allegiance
Duty owed to state while at home or abroad.
Statelessness
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B. Corporations
Problems:
Variety of contacts with different countries registered, head office, place of business
Different company laws in different countries to recog nationality.
2. In determining the nationality of a corp. for the purpose of diplomatic espousal of claims a genuine link test should be applied.
(and not just the passport – ie center of gravity, where do they vote, etc. Linked question: why should there be a difference b/n a
person and a corporation. Note that genuine link as opposed to formalistic link in the Barcelona Traction case).
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This Q was addressed in Barcelona Case. Sure the US companies could “control and manage” Italian
corporations but that gives them no additional rights then other shareholders under Italian law.
Akhavan
Should it not just have dismissed the case on standing issue? Why did it avoid it? Ok, so maybe they did grant standing
– then is this inconsistent with Barcelona.
Compare ICSID – Convention on the Settlement of Investment Disputes b/n State and Nationals of Other States. Right to bring a
claim only if the country with whom I claim a nationality link has ratified this convention.
It seems that the center of control is really where the corporation is registered.
However ICSID (page 495 casebook) creates situations in which the right to bring a claim is settled between the host state and the
foreign investing company where the nationality may be that of the foreign investment company AS LONG AS there is a real
link. (I tried to discuss this with him after class, he felt that it would take more than a few minutes to explain as it was very
complicated. I can only conclude that our complete understanding is simply not necessary for the exam).
A – Subject-Matter Jurisdiction
1. Scope of Jurisdiction
In principle, a state may legislate over the subject matter of anything within its territory (as long as it is not in violation of
international law)
Jurisdiction of national courts cannot be conferred by the sovereign when he has no jurisdiction according to principles
of international law.
In Civil matters, no conventional or CIL rules governing other than must apply rules of private international law where
applicable
CRIMINAL JURISDICTION
Possible that Cdn courts could have jurisdiction over the offence but not the person as he would not be located in Canada.
Conversely, possible that the unlawful act was committed outside Canada and therefore wouldn’t have jurisdiction over the act.
Jurisdiction over the crime (reach of legislative power of the state) vs. jurisdiction over the person (reach of the processes of the
courts)
Note that judicial jurisdiction is subservient to legislative jurisdiction. If subject to some foreign law, courts will not have
jurisdiction.
Traditions: Anglo-Amer tradition always adhered to territorial principle of jurisdiction (b/c were historically surrounded by water
and was hard to escape) whereas Western European followed the Nationality Principle.
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Comments
- jurisdiction is territorial, but it doesn’t follow that a state cannot exercise that jurisdiction with respect to events that occurred
extra-territorially
- Ex. If you shoot a gun across the border, and kill someone on the other side, both states have jurisdiction over the crime, on a
territorial basis
- Practical limitation coming out of this case is that not state will generally attempt to exercise jurisdiction over matters in
which it has no substantial interest or concern.
1. Territorial Principle
- The state in whose territory a crime is committed has jurisdiction over the offence
- Includes land mass, internal waters and their beds, territorial sea and its subsoil, airspace above all of the former.
- Can be extended to 200 nautical mile EEZ
- Territoriality can be partially an extra-territorial basis for jurisdiction
- I.e. wrongful act has effect on the territory, even if it did not occur there
- Five possible different applications of this:
o Subjective or initiatory Principle: act deemed to have been committed in the place where it commenced.
o Objective or Terminatory Principle: state were act is consummated or the last constituent element of the
offence occurs has jurisdiction
o Injured Forum Theory: state that felt detrimental effects takes jurisdiction
o Diplock’s Theory in Treacy – Any Element theory: any element of the offence occurs w/in state’s borders
o Reasonable and Legit Interest: Where state has reasonable or legitimate interest in doing so compared with
other states involved.
In Libman SCC took approach where significant potion of the activities took place in Canada. Real
and Substantial Link Test
2. Nationality principle
– Based on nationality of the author of the crime – used extensively in civil law countries.
- This is the model of French, Turkish, continental law…
- The problem arises when the act is not prohibited in the country where it is carried out
o These crimes are still prosecutable, unless there is some rule of international public order that would prohibit
this
- There has been a reemergence of this principle, even in states that don’t normally accept this approach ex. Child
Prostitution (sex-tourism)
- the nationality principle is not contrary to international law, so Canada is free to change the criminal code to make more
crimes illegal by Can citizens
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- But, as of now, if you commit a murder on a row-boat on the high seas, you cannot be charged under Canadian criminal
law
- Corollary to the reluctance to extradite citizens or nationals.
- The principle is not restrictive and not permissive.
4. Principle of Protection:
- Behaviour abroad by foreigners threatens the security of the state or its fundamental interests
- Broad principle.
- E.G. Spanish Trawlers on the high seas.
- Ex. Counterfeiting abroad – if you print US dollars in Yemen with no intent to circulate them in the US, you still are
offending US interests
- Ex. Plots to organize illegal immigration to another country
- There have been challenges to this idea
o Ex. Singaporean law has libel laws that apply extra-territorially the NY times published an article about the
president of Singapore – very controversial – attempt to regulate free speech of foreigners in another country
- However, terrorism is being seen as a new ground for asserting this time of jurisdiction (i.e. planning a terrorist attack
abroad)
5. Universal Jurisdiction:
- Erga omnes obligations Based on the crime
- Some crimes the whole world has an interest in stopping:
o Slavery, piracy, crimes against humanity, genocide, etc.
- This used to be the most significant area of extra-territorial jurisdiction
- A # of treaties grant extra-territorial jurisdiction (Convention against torture)
- The recent shift is towards international criminal tribunals
- Recent Rwandese case prosecuting for war crimes in Canada.
6. By Agreement
- E.g. 1985 Visiting Forces Act – Agreement b/n US and Canada which allows US to exercise jurisdiction over military
personnel who are on bases on Canadian Territory.
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terrorist offences).
Passive Personality AKA the System of Protection. Where J is claimed based on the nationality of the
Principle victim regardless of the offender’s nationality or the place of the crime. (is this
what Spain has done against US soldiers for death of Spanish reporter in Irak?) It
is largely condemned. (used by Canada when victim is an int’l protected persons
representing Canada and victim to war crime, humanity crimes or hostage-taking).
Protective Principle J is based on the prejudice a State may suffer to its security, territorial integrity and
political independence by the offence. Not favoured by Canada.
Universal Principle For serious crimes of int’l relevance which other states are unwilling to prosecute
and where the offender is on the territory of the forum state.
By Agreement J of one state within the territory of another state may be granted by agreement.
Libman v. R.
Jurisdiction SCC [1985] per La Forest
Facts Libman operated a boiler room in Toronto; would call Americans to invest in a mining operation in Costa Rica.
The $ would be shipped to Costa Rica, it would be deposited in off-shore accounts. Charged with fraud.
Issues Jurisdiction to prosecute in Canada?
Holding Yes
Ratio - As a basic principle, Canadian crim law does not try to apply extra territorially Unlike Turkish law
which binds the actions of all its citizens, whether at home or abroad, Anglo-American states in general
attempt to refrain from extra-territorial jurisdiction
- Libman argued that b/c the execution involved victims in the US sending $ to Costa Rica, the essential
crime (fraud) actually happened in the US
- La Forest J – 2 elements – territorial connection; or effect of crime is connected to Canadian territory
- Court found planning the fraud was enough of a territorial connection to prosecute him in Canada
- There must be a real & substantial link between the offense and the country
Comments:
- This is the same jurisdiction that the US uses for anti-trust law (usually to protect their own companies)
- Trusts may occur abroad, but the effect is felt in the US so this is enough
- Perhaps jurisdiction not given to the US b/c he would continue to forum shopping by putting forward the same arguments –
therefore practical considerations.
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Note the use of different bases of jurisdiction over the offence and concepts of aut dedere and
International Convention for the Suppression of Terrorist Bombings, U.N. Doc 1998
Purpose: This convention was adopted to remedy a gap in the piecemeal conventions. There was nothing to deal with
terrorist bombings that were not associated with any other terrorist convention crimes.
Art. 4 Each State is to adopt criminal offences punishable by appropriate penalties in their domestic law.
▲Different punishments for each State. Why? Any why hasn’t Canada implemented the treaty yet despite
this article requiring it?
Art. 6 The basis of jurisdiction, both mandatory (committed in the territory on a flag-ship, or by a national) and
optional (committed against a national, against a State or gov’t facility, by a stateless person who has
residence etc.).
Art. 8 Mandatory requirement to extradite or prosecute without undue delay.
Art. 11 States that none of the offences in art. 2 are to be regarded as political offences or inspired by political
motives for the purpose of extradition or mutual legal assistance….however…art.12….
Art.12 This eliminates any obligation to extradite or afford mutual legal assistance where the person will be
prosecuted or punished on account of race, religion, nationality, ethic origin, or political opinion.
- States are under an obligation to adopt criminal laws to stop these activities.
- Art 8 calls for, if state does not extradite, shall be obliged to submit the case for prosecution.
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Abduction is always unlawful as it negates conceptions of due process. At least with respect to your arrest.
Consequences of Abduction:
- What are the implications based on different charges – ie Fraud versus Crimes Against Humanity?
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Question
2. The punishment of it international crimes is so compelling that illegal rendition should never be a bar to prosecution.
A review of this material suggests that the subject of illegally obtained J over a person should be seen as a last option. Due
process is negated by abduction and therefore there is a strong argument against it. At the end of the day what matters is the
question of proportionality…
1st What should be the legal consequences attached to abduction?
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i.e. Eichmann….does it matter if Argentina was refusing to extradite him, frustrating any attempts to legally obtain J over him?
Does it matter that the crimes were against humanity? Does it matter that they were committed against persons whom Israel was
claiming J over under the protective and passive personality principles?
2nd What are the remedies for a violation? (▲Distinction b/t rts of the individual and rts of the offended state!)
Release of the offender?
Criminal charges brought against state for kidnapping?
Civil charges brought against the state for trespass of the person?
Official apology to the offended state for having violated their territorial sovereignty?
Does the Cdn Charter have any impact on the rule mala captus bene detentus?
In 1973 Canada applied the rule with a small dose of concern for due process and civil rights of the accused. To date there has
been no case on this point.
Relationship b/n IHL and International Criminal Law (ICL) – Intersection of IHL when violations of IHL give rise to individual
responsibility. With rise of HR law, concept of state being in violation is not only option. With Crimes against Humanity,
Genocide, can be against the individ.
International law reflects the convergence of the penal aspects of international law and the international aspects of national
criminal law.
W/out the ICC, ICL was reliant on ad hoc tribunals and prosecution in domestic courts. Relied on the indirect enforcement by
domestic courts of acts proscribed by international criminal law and good faith of bilateral treaties and multilateral conventions
Questions
1. The Geneva Conventions embody wishful thinking about the capacity of law to regulate the lawlessness of violence
No – makes sense.
Realities important – training of soldiers incorporates norms of Geneva Conventions. ICRC, ICTR, ICTY all apply these
laws
But…have civilian deaths gone down? No – progress of technology. Growth in population – might be proportional.
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Also, Geneva Conventions have mitigated these deaths in some way. Also, look to history – horrors of war might not
have been so horrible when the horrors of life were also there. Also, history has shown similar horrors but perhaps under
different names.
History – principle of chivalry in history – honourable to be a warrior. Killed for a living.
Legal systems are based on habitual lawfulness. Agression is prohibited b/c not every country goes to war. Must be looked at in a
different context. Most of these conflicts are not spontaneous eruptions of tribal conflict but rather deliberately incited. Must look
to the context and who creates the context and see whether the criminal system fits.
Also, look to the possibilities – in Rwanda 30,000 people in jail with 40 magistrates. Is criminal law actually possible or is a
TRC a better option?
London Agreement in 1945 and Moscow declaration in 1943 where intention to prosecute. Churchill and Stalin both thought
people should just be executed. Truman and Justice Jackson pushed and got Nuremburg.
Truth telling process
Making incredible events credible (Justice Jackson)
Di-Nazification of post war Germany.
Legal basis for adopting the Nuremburg charter Law of the occupied powers was basis for adoption of the charter.
Criminal Law – 3 crimes the court had jurisdiction over under Art 6 of the Nuremburg Charter
1. Crimes Against Humanity
Radical innovation – Under CIL at the time the way in which a gov’t treated it’s own citizens was not a
violation of IL. Massive jurisdictional gap.
Limitation – had to have a nexus with war – Art 6(c) of the Nuremburg Charter – committed in
connection with War Crimes or Crimes against peace (done in order to restrict scope of CAH so that
Soviets and others couldn’t be haunted by it)
2. War Crimes
See above – Geneva Convention and Principle of Distinction
3. Crimes Against Peace
Jus ad Bellum – when it use of armed force lawful
Until WWI – no one would question the right to wage war
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Note that under contemporary international law, not just under internal and external armed conflict (though Nuremburg dealt only
with external armed conflict) but also outside situations of armed conflict.
Akhavan
- Victor’s justice – what about the atrocities committed by the allies?
Post Nuremburg – UN instructed (in 1946) to draft statute for ICC – did not get drafted and brought in until 1998 after ICTY in 93
and ICTR in 94.
Domestic Prosecutions
Based on Universal Principle of jurisdiction – domestic prosecution can go after individs whose victims are not of domestic
nationality and the crime did not take place domestically.
R. v. Imre Finta
Jurisdiction SCC [1994] – per Cory J.
Facts Finta was part of a Hungarian paramilitary group. In 1944 was involved in deportations of Jews, robbed people,
sent them to camps, etc.
Issues How to interpret s. 7(3.71) – what is basis for jurisdiction? What distinguished crimes against humanity from a
comparable crime under the CC
Holding In order to have jurisdiction over the matter under s. 7(3.71) the act committed has to be defined as a war crime or
crime against humanity (otherwise it must have been committed on Canadian Soil per the territoriality principle
and s.6 of the CC). Does this act constitute a war crime or crime against humanity.
Ratio Crimes against humanity involve murder, enslavement, rape, unlawfulimprisonment – what transforms them into
crimes against humanity?
Must be committed against a civilian population
ICC statute art 7 when committed as part of a widespread or systematic attack directed against any
civilian population
Perp does not have to know that his actions were inhumane for them to constitute a crime against
humanity.
Cory says we cannot exercise jurisdiction over murder, kidnapping, etc. which has no connection to
Canada. It must be under ICL. So, beyond the murder there must be foresight and calculated
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Crime of Genocide
Hague Law Means and methods of warfare. Means: Involve the type of weapons. Methods: Type of tactics (carpet bombing)
Conventions of 1899, and 1907
Geneva Law Sponsored by the ICRC in 1949 and built on Geneva Convention of 1864 and Hague Contentions of 1899 and
1907
Those who are in the hands of an adversary – POWs. Persons who are hors de combat.
Also include civilians who are in the hands of combat – protected persons.
No formal declaration of war is needed. Look objectively for state of war
Only need partial occupation of a country.
No resistence needed.
Four Geneva conventions dealing with
o Wounded soldiers
o Sick and shipwrecked sailors
o POW’s
o Civilians in occupied territories.
Original 1949 conventions only dealt with international armed conflict but Art 3 has since been adopted which outlines
minimum standards of human treatment in situations of internal conflict
Other Sources
Treaties against torture, genocide, apartheid, narcotics smuggling and terrorist activites.
Genocide Convention:
Adopted in 1948
Defn – Art 2 – killing, serious bodily harm, Requires the intent to destroy a group as such. Victim is the group
and not the individuals. Racial, ethnic, religious and national (political groups were excluded).
Special intent – high standard of criminal intent.
Destruction may be in whole or in part
Relatively weak means of enforcement except that they look ahead to international tribunals to enforce them
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The Nuclear Weapons Advisory Opinion, 1996: To what Extent are Nuclear Weapons Illegal under IHL?
The ICJ, having found no conventional or customary rule on the illegality of the use of nuclear weapons, turned to general
principles of international humanitarian law applicable in armed conflict and of the law of neutrality. They find that despite the
fact that nuclear weapons could not have been in the minds of the creators of the conventions that IHL clearly extends to
nuclear weapons.
They canvassed the above conventions to ascertain that since the beginning of IHL there has been a prohibition on certain
types of weapons that cause unnecessary suffering and pain to combatants or had an indiscriminate effect on combatants
and civilians.
They also found that ratification was not necessary to bind a State to IHL given its reflection of the most universally
recognized humanitarian principles. That the rules represent the normal conduct of states that is required.
The CIL principle of neutrality (that protects the rights of neutral states from warring ones) is applicable to all int’l armed
conflicts and therefore to the use of nuclear weapons.
HOWEVER, despite the ease in which the law extends to these weapons, the conclusions to be drawn from this application are
difficult and controversial (here we see what looks like the ICJ’s apology for power as it blocks humanitarian ideals):
Despite what appears to be a strong reluctant in the face of seemingly strong contradictions b/t the fundamental principles of
IHL and nuclear weapons in general, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or
illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would
be at stake.
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Former Yugoslavia
Under UNC arts 39, 41 and 42 it set up tribunals and other sanctions
Based on Resolution 827 of the SC under Chapter VII of the UNC, Tribunal was set up to deal with
o Art 2: Grave breaches of Geneva Conventions
o Art 3: (hague law)Violations of laws or customs of war
o Art 4: Genocide
o Art 5: Crimes Against Humanity
Chapter VII allows for the SC to taken enforcement measures (whereas the GA cannot – it can only make
recommendations)
o Typical enforcement measures – Authorization of force, arms embargo, blockade, etc.
o SC was seen as the pivot of the collective security system
Judges elected by the GA from list submitted by the SC from nominations from members and non-members with
permanent observer missions at the UN.
Prosecutor’s staff appointed by the SC on recommendation from the prosecutor
Imprisonment is limitation of punishment but property can be ordered returned to rightful owners.
Deterrence? Can really question whether of not these deter future actions. There is the argument of “General Prevention” which
claims that the goal of the tribunals isn’t so much to deter (b/c of the irrationality that can create the crime itself) but focuses more
on the subliminal messages the tribunals send about crime → corruption, child abuse, etc. is all wrong!
Incapacitation? This makes sense based on the context in which these mass atrocities are usually instigated by cold, calculating
persons who are better incapacitated.
Is it really good enough that we just impose victor’s justice on the criminals after the fact rather than intervening? Well no but it
might be better than nothing.
Examine deterrence in both the domestic context and the context of interntiaon
General deterrence through and socio-pedagogical element of the criminal justice system (teach society). Subliminal
inhibitions against crime.
Incapacitation – appreciate the context of massive prosecution. Understand the genocides as criminal conspiracies.
Nothing inevitable about genocide.
Significance of ICTY
Imposed criminal jurisdiction on states without their consent. It was revolutionary concept. Problem with having a treaty is that
the former yugo would not consent to a treaty when its own head of state would probably be prosecuted.
Reason that it was successful was b/c there was understanding that you could not let perps walk around freee and still have peace
and stability – HR, touchy feely combined with real politique.
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Extract #1, Relevance – ▲How valid is this source of power in Chapter VII of the Charter to establish the ad hoc tribunals?
Demonstrates that the ICTFY was property established and had subject-matter J.
Akhavan
Can it be impartial – even though a fundamentally poltical organ. Reference to independent judges with appropriate
structures and non-interference.
What about fact that tribunal was fundamentally selected for Yugo. Why did you not choose another country for the
tribunal. Is Selectivity a problem. Yes and no. It is a problem in law generally. But that does not mean that this organ
cannot dispense justice.
Is the ICTY established by law? Provision? ICCPR art 14 everyone shall have a fare and public hearing by
competent tribunal established by law. Answer – does not have to be a legislature but can be SC.
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Ratio Interpreting article 2 of the Tribunal’s statute which deals with grave breaches of Geneva conventions as
dealing only with international armed conflict is correct – Provisions in this article do not include those
persons or property coming within the purview of common Art 3 of the four conventions (which deals with
internal armed conflict)
Statement by permanent member of the SC that art 2 is not limited to armed conflicts is nothing but an opinion
and, with time and other opinions, could signify a change in opinio juris leading to a change in CIL.
If conflict is deemed internal, perpetrators might be able to challenge accusations of war crimes and grave breaches.
They would not, however, be able to challenge prosecution for genocide or crimes against humanity.
The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case
Jurisdiction ICTFY 1998
Facts Celebici was a prison camp where the four accused were stationed. Delalic was the commander. All four were
charged under art 7(1) of the Statute (for murder, torture, rape and other horrible things) and Mucic and Delalic
were also charged b/c of his responsibility as commander, causing great suffering, plunder of private property
Issues
Holding All guilty
Ratio This must be regarded as an international conflict as external forces were involved in internal conflicts (most
especially the forces of the JNA) Therefore, Geneva conventions apply and statute of Tribunal is applicable.
RWANDA - ICTR
After the genocide was all finished, at the request of the Rwandan non-permanent member of the SC, ad hoc tribunal was set up.
Akhavan – would never have been set up without ICTY – there was European and more likely to happen.
B/c it was an internal conflict, crimes that could be prosecuted were limited to:
o Genocide,
o Crimes against Humanity
o Violations of Art 3 common to the Geneva Conventions (SC just put common art 3 into the statute dispite office
of legal affairs.
o Note: no grave breaches b/c not international armed conflict.
No armed conflict but can pursue whenever committed as part of a widespread or systematic attack against any civilian
population
Note Rwanda actually voted against resolution 955 as it disagreed with a few things including Rwandese control and
lack of death penalty.
For Akavan the only reason the ICTR existed is because of the precedent of the ICTY which only existed because the crimes were
being committed against Europeans.
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With momentum of the ICTY and ICTR – ICC. International Law Commission re-initiated process in 1994. Adopted by Rome
Statute.
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Compromise was that territorial state or state of nationality gives jurisdiction. US didn’t like. Wanted it to be both
territorial state AND state of the national.
US has solved problem by Status of Forces agreements.
Referral of the Security Council was another basis for jurisdiction.
Art 17 of the ICC statute There is no primacy of the ICC. Notion is one of Complemenarity with national courts. Only when
national courts are unwilling or unable
Unable – judicial system collapsed. Many majestrates were tutsi and had been killed, etc.
Problem: Would it not better to invest in capacity building and build up the judicial system
Unwilling: Milosovic was head of state and ain’t willing.
Problem: You have to have two trial – one is looking at the judicial system of the state on trial and another the crime.
This is problematic.
This can be contrasted to art. 9 of the ICTFY which gives primacy to the ICTFY over national courts. This
approach was refused in Rome.
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Historical
- Skeptical of universality of HR lying in historical antecedents
- Westfalian nation state system – focus on state sovereignty. Notion of HR was entirely secondary to the notion of the sovereign
being able to do as he pleased.
- No reference to HR in League of Nations covenants (sole exception of mandate system)
Interwar period – some treaties to protect minority rights
- ultimately not successful
Prior to WWII, positivism was ascendant. Sovereignty was tops. Excesses of the WWII which shocked the international
community to moving to natural law concepts moved to Grotian concepts of international law.
Crimes against humanity emerged to deal with problem that perpetrators and nationals were of the same nationality –
could not fall under the laws of war.
1) Intro
The concept of state sovereignty was largely incompatible with the adoption of HR standards
Holocaust and WWII acted as a catalyst for the rise of a movement seeking to integrate HR standards.
UNC entrenches HR as one of the purposes of the UN.
In 1948 3rd committee of the UN produced a draft of the Universal Decalaration on HR (UDHR)
o Initially, Canada voted against draft with six Soviet Bloc states – changed its mind later on and voted for it.
Canada had felt that it would have to allow Marxists and Jehovah’s witness into gov’t. Oh-no….
o At time of adoption there were 56 member states. (Now there are 185 member states)
Third world at the time was under colonialism.
o Abstentions (of which there were 8) came for different reasons
Accusations that UDHR was founded on western principles and did not deal adequately with collective
rights and duties.
SA was worried that UDHR could become a binding norm of international law after being elevated..
Saudi Arabia – concerned with inclusion of the right to change one’s religion or belief (contradiction of
the Koran)
Would the outcome be the same today? Perhaps there would be more of a balance b/n social and economic rights. Might look
more like the African Charter.
Note that UDHR was not binding….but eventually become core of CIL.
Sources: Is it more appropriate to speak of UDHR in terms of CIL or in terms of principles?
o Value of arguing CIL: Custom reflects consensus. Obviates the need to enter the debate of culture
o Principles: Natural law position. Inalienable rights. But…this smacks of cultural imperialism. Not really
universal values
Articles of the UNC promote HR and allow for UN bodies to make decisions based on the promotion of HR – including
decisions that are based in the Econo and Social Council, Declaration regarding non-self-governing territories and the
international trusteeship system.
Ideological differences delayed the commissions writing the UDHR. Eventually had to have three instruments b/c of the
debate b/n Soviet Bloc and west.:
o ICCPR – 1966 Negative Rights
Expression
Prohibition against torture
Not resource driven. Cannot argue that b/c of inadequate resources, you can torture.
Apolitical – or, at least more so.
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Immediate
Justiciable
Cost free (at least characterized as such) But not really
o International Covenant on Economic, Social and Cultural Rights (ICESCR) – 1966 Positive Rights
Employment, Social security, Food, Education
Resource driven – progressive rights
Art 2(1): Agrees to take steps “to the maximum of its available resources…”
Political in nature – e.g. Distribution of wealth
Not justiciable
o Optional Protocol to the ICCPR – allows a person who feels rights under ICCPR to claim from a state who
ratified Optional Protocol
Remedies in the form of recommendations given.
How are these treaties implemented? Through the Optional Protocol of the ICCPR
Toonen v. Australia
Jurisdiction UNHRC Communication [1992]
Facts Gay activist in Aus. Petitioned HR Committee seeking a declaration that the two provisions of the Tasmanian
Crim Code prohibiting “unnatural sexual intercourse” and “indecent practice b/n male persons” contravened
articles 2(1), 17 and 26 of the ICCPR
Claim that police were empowered to investigate and detain based on stuff that happens in private. Although not
being enforced
Tasmania argued, with respect to privacy rights, moral issues are subjective and dependant on the
particular values of a society.
Aus argued that law should be repealed as all other states had done so.
Art 26 argument
Issues Was Toonen the victim of an unlawful or arbitrary interference with privacy? Was he discriminated against?
Holding Yes and Yes
Ratio - Undisputed that sexual relations fall under the concept of “privacy”, and the provision interfere with it, even
though they have not been enforced for over a decade – still could be enforced.
- It is arbitrary because unreasonable and disproportionate for the ends sought b the state—prevention of HIV
—there is no factual or reasonable link between the two
- moral issues are not, as Tas claims, strictly of domestic concern
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- “sex” in Art 2(1) and 26 includes sexual orientation, which means that it has been violated. Sexual
orientation imported into art 26.
Comments
Note that there was no international element to this complaint. Although non-intervention in domestic matters is
reaffirmed in UNC art 2(7), HR law has carved a very signif exception to that rule placing concerns like the ones in this
case within the confines of international concern.
ICJ in Case Concerning Reservations to the Convention of Genocide put forward the idea that states do not have an
interest of their own in entering HR treaties, but rather a common interest
IACHR: states signing HR treaties deemed to submit themselves to a legal order within which they assume obligations,
not to states, but to all individuals
Most Int’l HR law is directed at states, and can apply to other actors only indirectly. Many, including feminists, argue
that this places many egregious violates out of bounds and reinforces the harmful public/private distinction. Hard to
expand the regimes because they’re all framed within the context of state responsibility
What is relevance of laws of other states in Aus having repealed law ? If other states still had the law, would that change
things?
Is importing sexual orientation by way of “sex” in 2(1) necessary?
o Could instead have argued CIL. Based on state practice and opinio juris. State practice must be consistent.
Look at Affrican Union or Islamic Congress would find it not to be CIL.
o Could have done it through general principles discrimination against minorities
o Therefore court injected sexual orientation so that it would be part of the treaty law. Mere interpretation by the
committee…hmmm.
“Drittwirkung”
- refers to effects on third parties
- whose conduct are you regulating – original approach is protection from abuse of power of the state (based on Nazi
problems)
- however, HR violations can come from individuals (esp. for women)
- generally speaking, HR protection creates obligations for states only, not individuals
- rise of terrorism, problems in the private sphere
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Scope of State responsibility is at issue. To what extent should the state be held responsible for conduct of non-state
actors.
o Toonen there is reference to harassment by non-state actors as result of legislation
o Distinction of public/private to deal with state actors. Private issues often are not responsibility of the state.
Think domestic violence cases – many argue that this should be issue of state responsibility.
Under Geneva convention (IHL) – state must also protect civilians from private actors.
Distinction b/n unwilling or unable to investigate, etc.
1. Classifying Rights
i) The Generational Approach – Generations of Rights
- Creation of HR very ad hoc/patchwork approach
- Organizing principles: 1 theory: 3 generations of rights
Author: Karel Vasak
o Liberté – Civil and Political Rights
Essentially “freedom from”
Art 2 to 21 of the UDHR – right to life, freedom from torture, etc.
Inspired by natural law and laissez-faire individual rights.
Formal equality
o égalité – Social & economic rights
“Right to”
gives the individuals claim against the state to something – right to education, social security, adequate
housing, equality
Art 22 to 27 of the UDHR
Were promoted by East bloc countries and developing countries.
Equality in fact
o Fraternité – collective rights
Play on interdependence of all people
Self-determination of nations, cultural protection, etc.
Sharing in global power and wealth
Solidarity rights. Common international commitment
Right to development, environment, peace
Not collective rights as outlined below…
This classification allows us to conceptualize these rights better – but still subject to criticism
Seems to establish a hierarchy among these rights
A very Eurocentric/western approach to HR
Suggests, that you have to achieve them in order & critiqued for this reason
No consensus as to the hierarchy but this is problem b/c conflicts of rights are a constant occurrence. It would be possible to
consider certain rights jus cogens but the controversy still exists as to which rights.
There is an interdependence amongst the rights? What about arguments that, for instance, Uganda is not ready for
multi-party democracy and strong man at the helm is needed. Tis a balance.
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Committee on Economic, Social and Cultural Rights – General Comment – The nature
of States Parties Obligations
Jurisdiction UN Doc [1994]
Art 2 of the ICESCR is seen as having dynamic relationship with all other provisions in the convenant.
Two obligations are imposed despite constraints due to the limits of available resources:
Undertaking to guarantee that the relevant rights will be exercised without discrimination
As per art 2(1) of ICESCR, to take steps - what does this mean
Steps towards goal must be taken in a reasonably short time – deliberate, concrete and targeted clearly
towards meeting obligation
Means should be all appropriate means, including legislation this is not exhaustive of obligation
Judicial remedies could be appropriate
Must take steps towards “progressive realization” – flexibility but expeditiously
Commentary
Note that the implementation provisions in the ICESCR are much weaker that the ICCPR. Committee like the HR
committee was created but there is not right to petition to that committee. Only deals with reports submitted by states
parties.
US restatement on Foreign Relations Law of the US states that certain rules are customary (eg. Genocide, slavery, etc.)
Seen by authors as a conservative minimum of rights accepted as CIL
Criticised by many as not including right to be free from discrimination based on sex.
HR Committee has much more expansive list that is not restricted to those rights listed in the US bill of rights.
Two dialogues are suggested – 1) b/n various cultures and 2) internally to states. Both cause problems as 1) UDHR is already
adopted and HR already seen as Western imposition and 2) b/c internal dialogues are not allowed in certain states and do not bring
all parties to the table.
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Statement of the World Conference on HR states that, irrespective of cultural and religious status of a country, states are obliged
to promote and protect all HR.
Treaty mechanisms:
Optional Protocol to the ICCPR, Petitions to a treaty body – for the ICCPR the competence of the Commission to hear
petitions is optional, a state may ratify the Convenant but reject this competence (as of 1999 of the 144 parties to the
ICCPR, 94 had accepted the Optional Protocol).
Periodic reports – many treaties require reports. They are useful in that they incite dialogue.
Enquiries – initiated by the treaty body itself there are a powerful tool for ensuring compliance with fundamental rights.
Advisory opinions – though they create no obligations they can carry significant persuasive power.
Geographic treaties like the European Committee on HR (ECHR) or the Inter-American HRC (IAHRC).
Non-treaty mechanisms:
Most structured and influential are the institutions created by the UN Commission on HRs (a subsidiary body of the
Economic and Social Council) by way of Res 1503 in 1971. ECOSOC – Economic Committee to deal with mass
violations of HRs. Individuals can submit complaints then the committee has the discretion whether to make it public or
not.
Another means is domestic courts assuming jurisdiction:
Example: Resolution 1503 of 1971 Resolution of the ECOSOC (Economic and Social Council). Gives HCR ability to look
into consistent patterns of gross violations of HR. Individuals can appeal and will not receive a remedy. If consistent, issue will
be made public.
Nothing systematic about res 1503 – horsetrading. Whether issue gets on agenda of commission is very political.
This may not be the same in cases of thematic mandates (such as torture) but may remain political in cases of country
mandates.
Thematic mandates come with a special rapporteur
Filartiga v. Pena-Irala
Jurisdiction US court [1980]
Facts Fil is a Paraguayan National – 17 year old son kidnapped and tortured by D who was Inspector Gen of
police in Asuncion. Both PL and D became residents of US and Fil filed suit
Issues Suit in Alien Tort Claims Act.
Holding For Filgartiga.
Ratio Torture is violation of the law of nations. Prohibition is clear and unambiguous.
Jurisdiction is granted b/c the US courts exercise personal jurisdiction over the parties wherever the tort
occurred
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Relevance – use of the U.S. Alien Tort Statute to win a claim for a HR violation.
1. Far from being universal, human rights reflect Western values imposed on the rest of the world. (Toomen v. Australia)
Collective rights
Arose during the decolonization movement. Antecedent to which was the League of Nations mandate system which was
largely of the result of the collapse of the Ottoman Empire. End of WWII, UNC expressed principle of self-
determination of peoples.
Problematic b/c of possibility conflict with individual rights. This is of particular problem in “first world countries” Criticisms:
Biased in selection and definition of whom an what they choose protect
there is no real dispute that the right actually exists – it is well accepted in international law
part of UN Charter, ICCPR, ICSPR
Also a customary norm Western Sahara confirms this; reinforced in East Timor case; opinion on the Wall makes
reference to this too
What does the right imply?
Indigenous Peoples
Internal right to self-determination is at issue. According to the court, if you have all the rights afforded in a democratic state
then there is no right to external right to self-determination. If, however, rights are denied violently, then there could be a
case for this.
o Mi’kmaq case
Excluded from s. 25/35 conference on flushing out the scope of aboriginal rights
The assembly of first nations had been invited to the conference – but not the individual nations
There was debate regarding whether the Micma’q should be considered a ‘people’ under international
law
However, the mechanism of bringing a claim forward only recognized individual rights, not collective
rights
Micma’q had rights under ICCPR to determine their political status, as well as social, cultural, etc.
rights
The right to self-determination came out of colonialism… referred to right of colonized people to make
these choices (i.e. external self-determination)
But what is a colonial context?
Canada claims right to self-determination cannot be invoked to threaten territorial integrity or
national unity of a state
Most resolutions of UN reflect this idea
The most interesting discussion of this is the secession reference
Note that Art 1 of the ICCPR has no defn of “peoples” and “self-determination”. Also, ICESCR art 1 does not have the
definitions either.
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Mi’kmaq Case
Jurisdiction UN HRC Communication No….[1990 and 1992]
Facts - Group of Mi’kmaq petition UNHRC after refusal of Can gov’t to allow them individual seat at constitutional
convention re: scope of s.25/35 rights allege violation of right to self-determination
- Canada argues:
right to self-determination cannot be invoked to threaten territorial integrity or national unity of
a state
Not a people in the sense of art 1 – small, scattered population. Intermingling with other
people. Not geographically compact.
Self-determination is not justiciable (too vague of a norm) Optional Protocal only allows for
individuals to claim
Halifax treaty was not an international treaty and therefore Mi’kmaq are not subjects of
international law.
- Mi’kmaq argue: concentration in reserves, recognized as a unique population
Invoke Art 1 of the ICCPR.
Round 2 – Mi’kmaq drop art 1 and go with art 25. 25(a) take part in conduct of public affairs through freely
chose representatives. This is internal self-determination.
Committee finds that constitutional conference is part of conduct of policital affairs. SO….the case is
found to be admissible.
Issues Collective Rights assertion
Holding Halted on procedural grounds – UNHRC only has mandate over individ rights – not collective rights under the
International Covenant on Civil and Political Rights (art 1) (ICCPR)
Ratio Claim brought under art 1. Collective right, individs – this argument not admissible.
Art 25 – internal self-determ. – b/c they were denied right to participate in constitutional conference.
Native representatives were enough according to the court.
Under conduct of public affairs entitlements, what the Canadian gov’t was sufficient. Mi’kmaq are only
entitled to electing leaders etc. Not to go to conference.
Commentary
Under the Optional Protocol, this was the only decision possible. Collective rights cannot be asserted (but this seems
odd as 14,000 people could claim at the same time and create a type of class action)
What is the problem with collective rights?
Who is the beneficiary – who is the group?
Who is to speak for the group?
Is integration not a better thing rather than the emphasis on collective rights which seems to reinforce marginalization?
Look to Art 27 of the ICCPR – minority rights. There basic assumption is that there are communal rights. Self-
determination requires a certain specificity in order to have self-determination
Brings us to Draft Cov on Indigenous Peoples.
Maybe something b/n minority and non-self governing territory. More than minority b/c of relationship with the land.
Perhaps apply the Western Sahara case to indigenous peoples in Canada (with exception of territory issue) and use treaties with
the Brits and the French. But…WS case could be wishful retrospective thinking.
To what extent should the status of a peoples be an issue for outside intervention. Will this really help the peoples or hinder their
“development”.
o Secession reference
SCC says: these ideas can be reconciled – sd is not necessarily about external self-determination
Relies on friendly relations treaty
New element internal self determination
I.e the ability to freely determine political & economic & social destiny within the confines of the
existing state
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Links internal & external sd – if you’re not getting it inside, you can then get it outside
For QC the test is not met
o For Canada, this has implications for aboriginal peoples
- The right to self-determination was originally a principle to sustain the boundaries of existing states (i.e. to make the
acquisition of territory by force illegal) to legitimize state sovereignty
- Now though it is recognized that peoples fit nicely within the territorial boundaries of the state
- So now the concept of sd threatens to delegitimize the concept of almost all states
- Problem – infinite breakdown of individuals into sub-communities (Charles Taylor)
Primary (determine substantive obligations) and Secondary (define how primary rule are to be exercised) rules
o State responsibility is secondary rule
State responsibility determines how we assign responsibility to states for violations of international obligations
1. Immunity Generally
Recognized state is enetitled to immunity from the jurisdictions of the courts of other states
Immunities allowed to
Officials
Governmental agencies
State property nationally operating or held in sovereign’s name
Is there justification for immunity and how far should that immunity extend?
Remember Foreign Legations Case – State was immune (one way or another) from taxes or otherwise exercise jurisdiction over a
foreign legation. Based on principle of Sovereign Equaltiy.
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States are equally sovereign which means that one state should not exercise jurisdiction over another on its territory.
Congo v. Venne – SCC 1971 – Expo Congo architect designs pavilion. Congo does not pay for it. SCC says Canada cannot
exercise jurisdiction over another state. Pl, in effect, cannot recover and has no legal recourse.
Commercial role of the state here and, still absolute immunity employed
2. Scope of Immunity
Cases in Britain and Canada (Dessaulles v. Repub of Poland) call support of theory of absolute immunity. This is the opposite of
Restrictive Immunity which was created b/c of the increasing involvement of governments in foreign courtries for business
purposes – why should they be immune in such cases?
Restrictive immunity theory universally practiced now as part of CIL. Problems exist with difference b/n
o Sovereign act (jus imperii) – conduct as a sovereign
o Commercial Act (jure gestionis) – commercial participant.
Mostly, state immunity is a question of CIL. But….Western Euro states, for order’s sake, have adopted Conventions on
State Immunity in 1972. Based on the restrictive theory.
Canada was only Western country that submitted to the absolute theory for a long time but then, 1985, State Immunity
Act.
Recognition and Immunity – For the the foreign minister to determine whether state is recognized and therefore whether they
would enjoy immunity.
Test b/n Public or Commercial Acts: Note that precise distinction may be impossible.
Test 1: Purpose of the transaction – public act? Public object?
Test 2: Nature of the action – commercial deal is commercial no matter who transacts
What is covered?
1. Gov’t and gov’t organs (eg. if Canada had trade office in another country, this would still be covered)
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Canada Act seems to be more restrictive in that it allows for criminal liability claim but not tort. What is a state to do?
Ask other state to waive immunity.
o If they do not waive immunity, gov’t can declare them persona non grata (get out!!) Termination of the basis
for their stay on your territory. If they re-enter, you have option to prosecute.
Convince the other state to try the diplomat.
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B. State Responsibility
Initially devel’d as responsibility of states for personal or property damage of aliens – now principle devel’d to provide for
broadly that every internationally wrongful act of a state entails responsibility.
Urge to make analogies to municipal law – but certain distinctions have no echo in international law
E.g. diffs b/n civil and criminal, or responsibility in K or tort.
Essentially non-jurisdictional and states rarely turn to tribunals.
International crimes has been all but abandoned by the special rapporteur of the ILC in the Draft Articles.. Now
have a series of obligations.
Obligatoins erga omnes have some sort of pre-eminence in the international system. Attempt to define what some
of those obligations are.
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Art 2: every state subject to being held to have committed a wrong (protection against states claiming immunity)
Art 3: wrong requires (1) conduct attributable to a state and (2) breach of an international obligation
Art 4: must be wrongful in virtue of international law
Art 19: every breach is an internationally wrongful act, it is an international crime if it breaches an obligation
fundamental for the protection of the international community, e.g. (a) threats to peace or to (b) self-determination of
peoples (c) slavery, genocide, apartied (d) human environment
-everything else is an international delict
Problem with this is: against whom do you enforce the violation of an international crime. Hard to punish a state
without punishing it’s citizens
Note that this intro’s a distinction b/n crime and delict.
Art 51: international crimes entail consequences of Art 52 and Art 53
Art 52: unlimited restitution
Art 53: every other state has obligation not to cooperate with that crime, and to cooperate with its suppression
International crime =/= crime under international law, because the former can apply only to state action
Barcelona Traction case [1970 ICJ] established principle of obligations erga omnes (analogous to those the
breach of which = int’l crime)
Comments:
o There is no apparent reference to fault in the draft articles, but when you start digging there seems to be a fault element
- translation error: “knowingly” is in the translation but not the original text
- this restricts earlier statement of ICJ on wrongful act
o thus states don’t have an obligation to know about everything everywhere on their territory, but there is some sort of due
diligence duty to prevent wrongful acts from occurring on their territory (this is linked to sovereignty anyway)the eng version
is passive – only have to do something if you know
o the French version is active – a state has to inform itself about wrongful acts on the territory (pg 609 in case book)
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IMPUTABILITY
Problems arise wrt delineation of the state and of its power and responsibility for acts of non-state actors (private persons,
insurgent movements and international orgs)
Art. 5 to 10 - The ILC’s Draft Articles on State Responsibility extend attribution to the acts of organs or persons or groups who
are acting on behalf of the state or exercising gov’t authority.
Consider this in light of the Jaffe Case - incident between US and Canada in the 80s when bail bondsmen kidnapped the accused
from Toronto and took him to Florida for his trial. The kidnapping was imputable on the US even though the bondsmen were
acting on their own accord. Here art. 8 is applied versus art. 11.
Bases of attribution:
Act by a state organ Does not matter what level that entity is playing in the state apparatus
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o Municipal Court decision that upholds legislation that violates the rights of an alien – can alien’s state claim
responsibility even though it was a court decision.
Art 6 of Draft Articles – irrelevance of position of the organ in the state - Includes courts, executive,
admin, legislative…..
o Contracting out –
e.g Sydney Jaffe Case bounty hunters in Florida captured Canadian – is the bounty enough to
trigger international responsibility –
yes – the state cannot privatize its actions to avoid international responsibility
There also has to be a connection to an international standard.
Art 8 of Draft Articles,– Acting in fact on behalf of the state.
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Art. 11 - The ILC’s Draft Articles on State Responsibility do not extend responsibility for the acts of persons or
groups of persons who are not acting on behalf of the State (without prejudice to the circumstances under art.5 to 10)
unless there are extenuating circumstances. The standard is “effective control” (see Nicaragua Case).
What are the borders between art. 8(when the conduct of persons is attributed) and art 11 (where the person’s acts are
not)…what are the outer limits of the state?...ANSWER – Art. 8 applies where the State exercises effective control of
the general operations of the group or persons:
Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v. U.S. (1986) ICJ
Facts Nicaragua claimed that the U.S. tried to destabilize the country by using its control of the
insurgent group known as the contras.
Issue Were the contras acts to be classed as private (art. 11) or for the gov’t (art. 8)?
Holding Private. U.S. is not responsible.
Ratio Degree of control is very important. Here, despite the U.S.’s extensive participation in financing,
training and supplying them, there is no proof that the U.S. controlled and directed the acts of the
group.
Compare this to the Tehran Case – here the gov’t is help responsible because it allowed the harm by failing to secure
the release of the Americans – a failure of their primary obligation (liability after the fact case!).
Acts of Insurgents
Can be liable for acts of insurgents if fails to protect and if insurgency becomes new gov’t
- Ex: Liberia
Think example of Liberia. Taylor was leader of insurgency and, as such, had committed atrocities. Then, won in supposed
democratic elections in 1997 and his movement becomes ‘legit’ gov’t and his actions from that point on are actions of the state.
Could other state bring action for conduct pre-becoming legit
Art. 14 - The ILC’s Draft Articles on State Responsibility do not extend responsibility for the acts of insurgents within
their territory (without prejudice to the circumstances under art.5 to 10).
Art 15 of Draft Article – yes – if insurgency becomes gov’t then you are responsible.
- Ex. 3 Tamil Tigers – Sri Lanka bombs factory owned by AAPL (private company) after reports of TT’s
o There is a lack of control of the Sri Lankan gov’t over the TT
o If there was military purposes to the factory, would be ok.
o Failure in obligation of due diligence which, here, is obligation to do all possible measures that could be
reaonsably expected to prevent the eventual occurrence of killings and prop damage.
o The gov’t isn’t responsible for EVERYTHING on their territory – International orgs, for example, might not be
the responsibility of the state but rather of the org…
Note – outcome probably would have been different in front of perhaps war crimes tribunal….this is a private actor
claim.
- Exception: when insurgents become the gov’t (they win the revolution or create their own state) they will be responsible for
the past acts
- It is a retroactive attribution of actions to an actor that is not recognized in int’l law
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- South Africa
o New gov’t both responsible for acts occurring under Apartheid
o New gov’t is also responsible for illegal acts done by the ANC
Ex: Rwanda
Rwanda fighting insurgency in neighbouring Zaire – helped overthrow Mubutu. Uganada assisted. Insurgency became new gov’t
and Rwanda and Uganda remained in occupation of Rwanda and Uganada. Asked to leave and they don’t. Does consent apply?
Consent is not a permanent state of affaires
Art 29 of Draft Articles - Consent does not apply to a Peremptory norm of international law
2. Self-Defense
- specific reference to the use of force Art 51 of UNC Discussed later.
3. Counter-Measures
- Traditional term was reprisal
o Eg. Free trade agreement breached by one party – other party response in kind by also breaching. This is reprisal or
a counter-meaure which is legit.
Note – different than retortion (where there is no obligation to continue action – eg. development aid,
diplomatic ties…)
- acts which are normally illegal but are justified as a reaction against the illegal act done by a diff state
- its an act to prevent a state from continuing to act badly
- This is a measure of Self-help which is allowed to some extent.
4. Force Majeure
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5. Distress
- no other reasonable way to save lives or the lives of others
- people are in physical danger
- ex. Military ship adrift in territorial waters fish illegally to feed themselves
6. State of Necessity
- Interests of the state are threatened (not individuals)
- The act must be the only way to safeguard an essential interest against a grace and imminent peril – Art 33 of Draft Arts
- ICJ in the Slovakia Dam case
- Essential interest of the state must not impair an essential interest of the state at which the action is taken
- Ex : Gabcikovo Case - Hungary/Slovakia case
o Treaty obs to build Danube dams that one stopped building b/c of enviro concerns (threat of water supply to
Budapest)
o State of necessity is ground for precluding wrongfulness – must have “grave and imminent peril”
o Here concerns were real but not perils
o ICJ not satisfied this was the only way to protect the Danube river
- Ex.2 - An oil tanker about to run adrift can a state destroy it to protect itself from the imminent threat of the oilspill?
There must be a balancing
o Exploratory well being drilled and threat to be blown up out of state of necessity – does not meet
C. Enforcement of Claims
Waiver
o EG. – North American Dredging Case
Involves a calvos clause 0 calcos was argentinian who wanted to protect state sovereignty
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Though the clause was meant to bind the claimant to Mexico’s laws it did not and could not deprive the
claimant of his citizenship and all that implies. He could still ask the U.S. to bring a claim on his behalf for
things beyond the reach of the clause.
This situation illustrates how legitimate the concerns of certain nations are respecting the abuse of the right
of protection by the nationals of certain states. The NADC has acted as if the Calvo Clause didn’t even
exist, only using it to get the K in the first place.
Is there a Industrialized countries argue (with the support of writers and tribunals) that Calvo clauses cannot be given
practical full effect b/c the right to present an int’l claim belongs to the state and not to the individual or corporation.
application of Developed countries argue the opposite, that Calvo clauses can effectively prevent a state from espousing a
this clause? claim of one of its nationals.
Canadian Practice
Is it different from standard in Barcelona Traction Case – where court held Belgium had no standing b/c siege social was in
Canada
- Canadian practice deviates – Canada would protect the shareholders. SUBSTANTIAL LINK IS ONLY REQUIREMENT
- Normally espousal of the claim will be initiated after all domestic remedies have been exhausted.
- Claims by companies are treated according to Barcelona Traction Case with the further requirement in Canada that there be a
substantial Cdn interest so as to justify Cdn diplomatic intervention (where the business is carried on, active trading interests
in Canada, and the extent to which the company is beneficially owned in Canada).
- Losses caused to a company in which Cdn’s are shareholders may result in the Cdn gov’t intervening on their behalf.
REMEDIES
- Cessation of wrongful conduct
- Reparation
o EG. Chorzow Factory Case –
Reparation includes principle of RII (Restitutio in integrum)
Could be return of property, removal of impeding measures
- Compensation where restitution is not possible.
o Various elements
Usually out of pocket expenses
Lost Income – future income – only if not unduly speculative – this is why new enterprise will usually not
be awarded income.
Interest
Perhaps compound interest.
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Art. 41 to 46 – ILC Draft Articles on State Responsibility require the offending state to cease the wrongful conduct, provide for
reparation (limited in that it cannot result in the impoverishment of the population of the offending state), restitution in kind,
compensation (can’t be speculative loss of income, so better to justify based on past profits than a new business plan, interest is
compound), satisfaction (i.e. apology, punishment of gov’t officials responsible, etc.) and assurance for non-repetition.
The rules of law governing the reparation are the rules of IL in force b/t the 2 States concerned, and not
the law governing relations b/t the State who has committed a wrongful act and the individual affected.
However the damage suffered by the individual is never identical to that suffered by the State and can
only provide a convenient scale for the calculation of reparation due to the State.
This was not expropriation but seizure. Here it is correct for Poland to restore the undertaking and if that
is not possible to pay its value at the time of the indemnification. To this, in virtue of the general
principles of IL, must be added that of compensating loss sustained as the result of the seizure.
Countermeasures:
Why are countermeasures needed? States are reluctant to subject their “sovereignty” to the jurisdiction of judicial or arbitral
bodies and therefore infrequently use adjudication to resolve a dispute resulting from the internationally illegal act of another
State. Countermeasures make a normally unlawful act licit by its character as a response to the other State’s wrongful act.
IF there are available dispute settlements is it right that States may elect whether or not to submit themselves to it? Like
UNCLOS which provides the right to request provisional measures from the ITLOS. Should this be CIL, this right to choose?
Notion of the compulsory arbitration were central to internationalization. The Hague treaties were responsible for the creation of
the permanent court of arbitration.
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Problem: where tensions among states are the highest, judicial mechanisms are the least effective. When there is lack of
confidence states are less and less willing to submit
Notion of jurisdiction has devel’d in a peacemeal way. Law of the Sea, Investment disputes, ICJ, and others. Not one body.
For the most part, it is highly fragmented. This allows for practical arrangements among states who would be otherwise reticent
to surrender sovereignty on all issues. Not an all or nothing thing.
ICJ is one of six principle organs of the UN (under Ch. VII) and the principle judicial organ (art. 92)
Court consists of 15 members elected by GA and SC.
President is elected for 3 years by the court from among its membership
Line b/n binding and non-binding decisions might not be all that clear – just force of decision.
Jurisdiction
Limited – based on voluntary acceptance by the parties. This can happen by
o Special agreement –
o Compulsory clause in a treaty - Art 36(1) comprommissory clause –
E.g. Application of the Genocide Covention Case – art 9 of the convention specificall provides for
disputes being settled by the ICJ
E.g. Lockerbie case under the Montreal Convention 1976 -
o Declaration under art 36(2) – Optional clause (declared in advance)
Different from UNCLOS art 287- if states don’t stip that they do not recog the judicial bodies (ICJ or
Tribunal on the law of the sea, they are presumed to have accepted unless they make a specific
declaration seeking exception on specified number of ground.
ICC stat debated this as to whether there was opt-in or opt-out.
Art 36(2) assumes you have not accepted unless you have opted-in specifically.
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When a state opts in, it is a general jurisdiction of the court opt in. You recognise in advance.
But…you can stipulate exceptions to general jurisdiction.
E.g. India does not allow for any cases to go to the court dealing with use of force.
E.g. – Canada accepts except with respect to matters that that fall within our
jurisdiction….which obviates point of court. Canada can decide what is within its jurisdiction
Canada – p. 353 para (d) keeps control over fisheries. (Spanish fishing trawlers case)
Relevance – Court considers the nature of State’s declarations of acceptance of compulsory J of the Court.
Fisheries Jurisdiction
Jurisdiction ICJ [1999]
Facts Canada arrested Spain fishing vessel for fishing 245 nautical miles off the Canadian coast (in the NAFO
Regulatory Area) which was a violation under the Costal Fisheries Protection Act.
Canada refused the Court’s J based on the reservation concerning disputes arising out of or concerning
conservation and management measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area.
Spain disagreed. HOW!!! By characterizing the dispute as falling outside of Canada’s reservation. Just
need to put the problem in a different light to try to circumvent another country’s reservation.
Issues
Holding Dispute falls under the reservation of Canada and therefore outside of the Court’s J.
Ratio Declarations under art. 36(2) are facultative, unilateral engagements. States may add conditions as they wish.
The interpretation of those reservations is to determine whether or not mutual consent has been given to the J of
the Court. Interpretation by the Court is not a grammatically literal one but rather one in harmony with the
natural and reasonable way of reading the text.
The give a strict intent to the reservation of the party. HOWEVER the reservation has to make sense! The U.S.
reservation was struck down because it gave the US the ability unilaterally to withdraw when it felt like it.
Akhavan
Strategy of the Spanish was to try and characterize in ways other than those that fall under the “fisheries” for Canada’s
acceptance of jurisdiction
o Freedom of transit on the high seas or use of force
Practice of the court is to give strict effect to the intent of the party submitting to the court under 36(2).
So, issue cannot be under the court.
Where states in their reservations have not specified the right to withdraw after a certain period of time the court has
applied the reasonable standard.
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Advisory Opinions
Empowered to give advisory opinions on legal issues arising within the scope of the activities of the GA, SC and other organs and
specialized agencies of the UN
Art 96 of UNC – empowers request but must be authorized to ask for advisory opinion by the GA
o Must be a legal question (not poltical) – this becomes a framing issue.
o Must be w/in scope of activities (eg. of a WHO question that was not answered by ICJ b/c did not fit
this…..but answered GA’s request on this issue.)
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Akhavan
o Central legal issue: National Security and protection against terrorism versus fundamental right to self-determination
in terms of non-self-governing territory. What is the territorial extent of this territory.
Goes back to the law of occupation under the 1907 Hague Convention under IHL. What is the scope of
authority of an occupying power in occupying
o Didn’t the GA already say the above decision? So why bring the court into this debate
Question
The Advisory Opinion of the ICJ in the Construction of a Wall Case more closely resembles propaganda than international law.
o Based on principles, this was important. IL is based on principles that were not enforceable other than exerting pressure
and escalating things.
o Tension generated by the court taking the issue helped highlight the issue.
Judicial Review?
Does the ICJ have jurisdiction to review the decisions of the UN agencies and Security Council.
o In CL systems – at some point we believe courts should have the power to strike down legislation.
o US – classic case of Marbury v. Madison – 1803. Lame duck president began to populate the courts with his
cronies. First case where US case asserted powers of judicial review by saying it had “inherent power” to do so.
o Article by Swebble suggests that something as important as Judicial Review must have been considered and left out of
statute of the ICJ. Cannot be implied.
o Lockerbie – based on Montreal Convention has “extradite or prosecute” clause and the GA wants extradition.
o Court side-steps issue and does not deal with issue as to whether court can review GA actions or decisions.
o ICTY – Tadic Case – Jurisdiction motion – Appeals Chamber under the doctrine of la competence de la competence had
the power to pronounce of issue
o But…Cassesse (Italian judge) comes from a tradition that does not see judicial review in the same view
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Libya was sanctioned for its failure to assist in the int’l fight against terrorism with even further sanctions.
Finally the ICJ delivered its judgement on the question of J, finding that it did have J under the Montreal
Convention. The majority sidestepped the question of judicial review by focusing on the date upon which
Libya brought its original application at which time there were yet no binding S.C. resolutions. Prseident
Schwebel in a strong dissent addressed the question of judicial review.
Issue of He finds that the Courts decision to join the preliminary objections to the merits has frustrated the S.C.’s
judicial review efforts to maintain int’l peace and security and has challenged the S.C.’s integrity and authority. The
regrettable result is that the court may have opened itself up to offering a way for recalcitrant States to
“parry and frustrate decisions of the S.C. by way of appeal to the Court”.
To read in a power of judicial review on the part of the ICJ would “subvert the integrity of the Charter” in
which the S.C. is at the very heart of the Charter manifested by the plenitude of its powers.
Historically – Assumption was that sovereignty could pursue interests as it saw fit. – War as continuation of politics by other
means
LofN – contained some provisions – but did not contain any any provisions to determine when this had happened.
Failure of league to regulate use of armed force resulted in collapse of organization.
Capacity of ability of UN to regulate use of force is central to existence of the UN.
Also, 1919 Versailles – call for Willhelm’s prosecution under art 227
The Pact of Paris (Kellogg-Briand Pact) or German Treaty for the Renunciation of War, 1928
• Meant to restrict war and use of force to reasonable levels. Signed by 15 states.
• Still in force, but considered superseded by art.2(4) of UN Charter (resfrain from threat or use of force against territorial
integrity or political independence of any state)
Notes: there were no enforcement mechanisms.
UN Charter Art 2
(3) Intl disputes to be settled in a manner that intl peace and security, and justice, are not endangered
(4) Must resfrain from threat or use of force against territorial integrity or political independence of any state or any other
manner inconsistent with Purposes of UN.
Note: this codifies rule of customary intl law binding on all states. Does not prohibit econ or pol pressure. But can be
complemented by 1970 declaration below. Broad or narrow interpretation?
(7) UN not authorized to intervene in matters that are essentially w/in jur’n of any state. No state required to submit such internal
matters to settlement under UN.
BUT this doesn’t prejudice application of Ch. VII enforcement measures.
What about econo coercion Pressure by other states through embargos or other such means
o Art 18 – Charter of Org of American States.
o But…art 2(4) in UNC does not cover economic coercion. This is a signif debate b/c of fragility of developing
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Declaration on Prcpls of Intl Law Concerning Friendly Relations… 1970 – Just GA resolution – authoritative though
• Outlines basic principles of intl law, emphasizing good neighbourliness, good faith and the strict obligations arising from
sovereignty and equality of states – including non intervention and coercion.
•These principles constitute basic principles of intl law and require strict observance.
Principle 1: States to refrain from threat or use of force against territorial integrity or political independence of any State
- war of aggression = crime against the peace for which there is responsibility under intl law.
- States have duty to refrain from propaganda for wars of aggression
- duty to refrain from acts of reprisal involving the use of force
- refrain from organizing irregular forces/groups for incursion, acts of terrorism or civil strif in another State
- no territory can be militarily occupied as result of use of force.
Principle 2: duty not to intervene in matters within domestic jur’n of any State
- violation of intl law includes threats against personality of State, its political, economic or cultural elements
- every state has inalienable right to choose its political, econ., social and cultural systems w/out interference
Principle 3: duty to co-operate w/ one another in accordance w/ Charter
Principle 4: equal rights and self-determination of ppls
- no external interference and every State must respect this right in accordance w/ Charter
- if forcible action occurs, peoplpes are entitled to seek and receive support to react and resist
- limit to this is if it dismembers or impairs territorial integrity or political unity of sovereign and ind. States conducting
themselves in compliance w/ principle of equal rights and self-determination.
Principle 5: sovereign equality of states
Principle 6: States shall fulfill in good faith their assumed obligations
Notes: Adopted by concensus. Status” Reflection of CIL or guide to interpreting the Charter?
Nicaragua Judgement - Says, even though states practice is not totally settled, Prhibition on use of force is CIL – degree of
focus on opinio juris versus
DEFINITION: Agression Use of armed force against the sovereignty of another nation.
Kosovo Case:
90% Albania majority – flashpoint to change ethnic demography
NATO – thought what was happening in other parts of the former Yugo, think that they have to employ military to make
sure it does not spread.
Problem: There was no threat from another NATO member so self defence could not be used nor could Chapter VII be
used b/c would have been vetoed by Russia and perhaps China. Went ahead and bombed.
Is this aggression?: Under the definition, yes.
• In 1999 FRY instituted proceedings against NATO states of bombing Yugoslav territory in violation of UN obligations. ICJ
decision, Case Concerning Legality of Use of Force, rejected FRY request for provisional measures to stop the bombings. ICJ
accepted Canada’s position that Court lacked prima facie jur’n since FRY had only deposited its declaration of acceptance of
jur’n under Optional Clause in art 36(2) of ICJ statute in Apr’99 and the bombings had started in March. Second, Canada agued
that Genocide Convention did not provide prima facie jur’n for measures sought and court agreed since threat of use of force
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cannot constitute an act of genocide and there was no intent on part of NATO powers towards any group. Rest of decision not in
book.
• ICJ draws distinction btwn issue of acceptance of jurn of Court and compatibility of particular acts w/ intl law. Even if there is
acceptance, states remain responsible for attributable acts in violation of intl law and parties should take care not to ‘aggravate or
extend the dispute.’
• Think about intent here: did NATO powers bomb in effort to attack territorial integrity of FRY? Or was it serving the goals of
the UN to further the causes of peace, security, self-determination and protection of HR?
• Does art 2(7) probiti intervention where genocidal ethnic cleansing is taking place? Genocide and CAH are violations of erga
omnes obligations and subject to universal jurisdiction.
• OSCE, Charter of Paris 1990: sets affirmative cooperation for Europe for advancement of peace and security.
• Military Activities in and against Nicaragua, 1986: ICJ upheld principle of non intervention as part of CIL, even if it’s not
written in UN Charter. Court of opinion that Charter was not to embody written confirmation of every essential principle of intl
law in force.
• Keep in mind that only when govt agents exercise unduly influence to control or subvert another state does it contraven intl law.
If it’s done by private indiv or enterprises it’s not usually regarded as intervention unless there is govt complicity.
Notes
• Definition received approval by concensus, without final vote.
• This is used by Sec Council when it decides, under art 39, whether direct or indirect use of armed force is an illegal use of force
in contravention with the Charter.
• Military Activities In and Against Nicaragua, 1986 – ICJ rules that actions of armed attackes encompass not only those actions
by regular armed groups across intl borders, but also the sending of armed bands whose conduct is so grave as to amount to an
actual armed attack conducted by regular forces. This armed attack acts includes those of rebels in the form of the provision of
weapons or logistical or other support.
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Armed Bandits
Art 3(g) – proxy wars are no different. This is still force
Nicaragua case – providing weapons is still use of force.
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Mr Webster: US does not believe that conditions that UK must show existed. These are:
(1) necessity of self-defence, instant, over-whelming, leaving no choice of means and no moment of deliberation. (2) that Canada
did nothing unreasonable or excessive in entering US.
(3) admonition to those on the Caroline was impracticable or would have been no remedy
(4) that there was necessity to attack the Caroline, present and inevitable, and to not separate guilty from innocent
Lord Ashburton: agree on principle of intl law applicable to this case – particularly the inviolable character of the territory of
independent nations.
Notes:
• There’s acceptance of (pre-emptive) self-defence justification, even if it didn’t exist here.
• UK argues there was necessity of self-preservation and danger of future threats. US rejected this plea.
• To be legitimate, self-defence must be necessary and proportionate to harm encountered.
British position was it was pre-emptive.
Nuremberg War Crimes Trials – Final judgment of the IMT on 22 major war criminals
• Crimes had no exact geographical location. Dfs indicted w/ crimes against peace, war crimes and CAH. Also charged with
participating in formulation or execution of common plan or conspiring to commit all these crimes.
• IMT held that to initiate war of aggression is supreme intl crime, and there was indiv responsibility for this under art 6 of IMT
Charter.
Judgment:
• Hitler considered invasion of Nw and Dk in Mar ‘40 memo and as early as Oct ‘39. It was carried out on Apr 9.
• Df contends Germany was compelled to attack Nr to forestall Allied invasion, ^^ it was preventive action.
• Preventive action in foreign territory is justified only in case of “an instant and overwhelming necessity for self-defense, leaving
no choice of means and no moment of deliberation.”
• Plans to attack were not made for purpose of forestalling Allied landing but prevent future Allied occupation. But it was not at
all imminent.
• Df argued it was for Germany, under Kellogg-Briand Pact, to decide whether preventive action was a necessity and such
decision was conclusive. But if intl law is ever to be enforced, then whether self-defence act was aggressive or defensive must be
subject to investigation and adjudication.
• Acts against Dk and Nr deemed aggressive war.
Nurmeburg did not allow pre-emptive self defence but on the facts. Therefore Nuremburg did not preclude.
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• IAEA passed resolution condemning Israel for premeditated, unjustified attack on Iraqi nuclear research and recommended
suspension of technical assistance to Israel. It reminded states of UN resolution to end transfer of nuclear materials and
technology to Israel.
2. Self-Defence of Nationals
• Is state justified in taking self-help measures to protect its nationals if they’re in imminent danger?
• In 19th C nationals were seen as extension of the state and their protection was crucial and lawful. Today?
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- Uganda violated intl law in failing to protect foreign nationals in its territory and also 1970 Hague Convention.
- Uses scholarly arguments that right of intervention has been claimed by all states and only its limits are disputed
- If UN is not in position to move in time and there’s need for instant action, then cant deny legitimacy of action in defence of
nationals.
- Make arg. that hijackers are pirates, and ^^ hostis humani generis (enemies of human race).
- this was exercise of Israel’s right to self-denfence.
- No consideration other than humanitarian one motivated Israel and operation was not directed at Uganda.
- Means used were minimum necessary to fulfil the purpose of rescuing nationals from band of terrorists who were being aided
and abetted by Ugandan authorities.
- Draws parallel with right of indiv to use appropriate means to defend himself if someone’s trying to kill him.
US (Mr Scranton)
• This act was necessarily a temporary breach of territorial integrity of Uganda. Normally, that’s impermissible.
• But you can use limited force for protection of one’s own nationals when state they’re in is unwilling or unable to protect them.
This self-defence right is limited to necessary and appropriate use of force.
• Here such requirements were met – specially bc there’s evidence Uganda was helping the terrorists.
• Uganda’s failures poses qn of their failure to live up to its intl legal obligations under Hague Convention.
• That Israel couldve secured release of hostages by mtg demands does not alter these conclusions. It would be self-defeating and
dangerous policy to release the prisoners and accept demands of terrorists.
• This situation was unique given Uganda’s behaviour, so it should not set strict precedent.
Notes
• Justification of self-defence also used in US interventions in Grenada (83) and Panama (89).
- In Grenada it was precipitated by murder of PM Bishop. US invaded w/ Commonwealth troops to rescue 1000 US citizens in
absence of functioning govt. W/in 2 months military w/drew leaving the internal security of Grenada in hands of participating
Caribbean forces.
- In Panama, principal objective was to get Noriega, charged w/ narcotrafficking and remove his unconstitutional regime. Bush
said Noriega had declared state of war / US and had threatened lives of Americans in Pma. Much loss of property and life – begs
qn if it met tests for self-defence in Caroline Case.
• In Iraq ’93, US bombed Iraqi HQ in retaliation to plot to kill Bush. Killed 6 civilians but said acts were proportionate and linked
directly to plot against Bush. Is this anticipatory self-defence or reprisal?
3. Humanitarian Intervention
1860-61 Ottoman troops blocked from slaughtering Greek Christians by French. Humanitarian intervention.
• 19th C: right of humanitarian intervention existed where state that had abused its sovereign powers by inflicting excessively
inhumane treatment on persons within its borders. It made itself liable to intervention by any state prepared to do so.
• UN Charter is evidence of distrust for such unilateral action. Art 2(7) prohibits intervention in domestic affairs
• Gral right to intervene forcibly for humanitarian reasons is acutely controversial. It is open to abuse and susceptible to
aspersions being cast on its altruistic and genuine nature. Can be used as excuse to meddle.
• Now seen only as legitimate if authorized by SC under its Ch.VII powers.
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• 1991 SC authorized assistance to Kurds in Iraq (Res.688). Most of members saw situation of Kurds as threat to intl peace and
security. Lesson is indicative of potential future role and expanded mandate that an org may have in situations where there are
serious q’s of HR violations, need for humunitarian assistance and lack of democracy.
• Iraq-Kuwait crisis redefined peacekeeping role of UN. Set precedent for situations where there’s serious humanitarian concern.
UN Sec Gral Perez de Cuellar:
- Sovereignty does not include right of mass slaughter or launching campaigns of decimation or forced exodus of civilian
populations in the name of controlling civil strife or insurrection.
- What’s involved is not right of intervention but collective obligation of States to bring relief and redress in HR emergencies.
- Any intl action for protecting HR must be based on decision taken in accordance w/ UN Charter. Must not be a unilateral act.
Should we allow use of armed force outside use of Ch VII based on Humanitarian Intervention.
Intervention of Tanzania in Uganda – Amine
Vietnam in Cambodia to stop K.R.
Kasovo – NATO
India in Bangledesh.
Think Darfur – no poltical will but, if there were, there are serious interests of China so would be vetoes by a permanent member.
Attempts must no seriously undermine the UN. This would be near impossible to do.
Iraq –
Intention, as suggested by the Canadian plan with mens rea, is important
Basis, according to UK and US – for aggression First WMD, then regime change
Does legitimacy really matter? Reputation and coalition reasons, yes.
Res 1441 – says that Iraq broke resolution 678 (1990) which is ceasefire resolution that, if breached, allowed for any
necessary means to….
Invitation:
• When invited to participate in domestic or external affairs of nation it’s not intervention or aggression.
• But requesting govt must be in control of country and must be lawful govt.
• Invitation must be genuine and voluntary, without pressure.
• It’s made by person with authority to make it.
• Requests are legitimate response to acts of aggression by 3rd state (art 2(4))
• Eg Kuwaiti govt in exile requested help of UN and intl community. Argument can be made that it was invitation
• Q’n is wheter state may respond to invitation to assist another state in quelling a revolution or serious unrest. This is legitimate
as long as requesting state is not suppressing a self-determination movt.
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Notes
- Used number of times (ie for Suez ’56, Congo ’60, Afghanistan ’80, Namibia ’81)
- In Certain Expenses of the UN Case 1962, ICJ gave advisory opinion that SC’s responsibility under art 24 is primary and not
exclusive, advised that by art 14+18 the GA may take decisions (subject to art.12) recommending measures in respect of intl
peace and security which would constitute expenses of the Org.
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• Widely accepted that imminent armed attack will justify use of force if other conditions are met
• What is imminent depends on the circumstances
• US Doctrine: right to use force to pre-empt danger. If this means > right to respond proportionately to imminent attack,
then it’s not one that exists or is recognised in intl law.
(2) To avert overwhelming humanitarian catastrophe ie Kosovo
• Controversial doctine. Not appropriate basis for action in present circumstances.
(3) Authorisation by SC under Ch.VII key q’n here is whether Res.1414 provides this authorisation
Proportionality
• Lawfulness of military action depends on legal basis AND proportionality. So use of force must:
1) have as its objective enforcement of terms of cease-fire in res.687
2) be limited to what’s necessary to achieve that objective
3) be proportionate response to that objective
• This is not to say action may not be taken to remove Saddam from power if it can be demonstrated that such action is necessary
and proportionate measure to secure Iraq’s disarmament. But regime change cannot be objective of military action.
Questions
1. The “responsibility to protect” civilians against human rights violations should not be an excuse for unilateral use of force in
violation of the UN Charter?
Could it be that we have not achieved a state of maturity. Is this an example of the fact that fragmentation has taken over and this
may be an example of a case where UNC does not have answers. Is it moving toward being an exhaustive system and how can it
learn from this to create a better system (sniff, sniff). UNC is not meant to be an all encompassing tool (said in Nicaragua case)
and there is a necessity to evolve.
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