DEFINITION OF TREATY

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TOPIC 3 Treaties

- Treaties are agreements between states (or IOs) binding on parties and governed by IL

- Treaties are the most important source of contemporary IL and are used to codify, crystallise and develop IL - Treaties are both procedural instruments and sources of obligation

- Perform various function:

o Transfer territory (e.g. conveyance) o Involve bargains (e.g. contracts) o Set out general IL (e.g. legislation)

o Create international organization (e.g. articles of association) o Establish new legal orders (e.g. constitutions)

- Ma a a 1969 VCLT based upon work of the ILC the most declaratory of CIL

DEFINITION OF TREATY

- DEFINITION: an international agreement concluded between States in written form and governed by IL, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation: VCLT Art 2(1)(a)

- This definition does not affect agreements between states and other subjects of IL or between those other subjects of IL (i.e. IOs): VCLT Art 3

- This definition does not affect legal force of agreements not in written form (possible to have unwritten, oral agreement but not governed by the VCLT): VCLT Art 3

o Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ

o Concerned Danish sovereignty over Greenland which Norway contested, with evidence that the Norwegian ministry had made a statement that Norway would not make any difficulties in relation to

D a a G a

o PICJ found statement legally binding on Norway

- Treaties may be embodied in one or several instruments and there are no particular requirements as to form: Maritime Delimitation and Territorial Questions (Qatar v Bahrain) (1994) ICJ

o FACTS: Disputes over contested islands and maritime boundary, Bahrain argues that the Minutes of the meeting were no more than a simple record of negotiations and therefore could not serve as a basis for the jurisdiction of the ICJ

o HELD: Minutes of the meeting does not merely give account of discussions, but enumerate the commitments that the parties have consented to, therefore created a binding international agreement

Meeting minutes = written or recorded documentation during the proceedings so that an accurate record exists of what transpired during the meeting

o REASONING: The intention of the parties expressed in the relevant matter is the key substance, not the form as IL does not impose any special or strict requirements regarding form

o PRINCIPLE: To ascertain whether an agreement of that kind has been concluded, the court must have regard to (1) its actual terms and (2) the particular circumstances in which it was drawn up

- Unilateral declarations can also have binding effect as though it were a treaty commitment a undertaking if given publicly with an intent to be bound, even though not made within the context of

international negotiations, is binding : Nuclear Tests Cases (Australia v France; New Zealand v France) (1974) o FACTS: French atmospheric nuclear testing in the South Pacific, Australia and NZ commits

proceedings and argues France is violating IL

o FINDINGS: France president made declaration that they would stop nuclear testing in the atmosphere and would move testing underground

o HELD: This was a unilateral undertaking given publicly to the world at large, with the intention to be bound, therefore no dispute

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- Treaties does not require consideration (e.g. mutual exchange of promise, detriment, price), entirely one- sided treaties are still valid

o No requirement of reciprocity, acceptance or even acknowledgement from other states

o An emphasis on consent will potentially lead to one being bound by terms that are unfair; an emphasis on reciprocity will potentially lead one to being bound in ways that one did not choose Craven - Regarding the personality of treaties, only states and IOs have the capacity to be parties of a treaty

o Although corporates may not be parties to a treaty, but in some cases, they may be parties to contract with states under which IL is the applicable law: Texaco v Libya (1977)

o Although Texaco was not entered into a treaty, it entered into a private agreement that had IL as the applicable law tribunal therefore applied IL rather than the law of Libya

- A person with full powers (documents verifying capacity to enter treaties), or a person who does not have full powers but appears from circumstances that the state intended to authorise the same power may bind a state to a treaty: VCLT Art 7

o Heads of State, Heads of Government, Ministers of Foreign Affairs, head of diplomatic missions (ambassadors), accredited representations for particular conference may enter treaties without

: VCLT Art 7(2)

o Other ministers may also have powers to enter a treaty depending on their function i.e. Minister of Justice, Minister of Environment, Minister of Trade, etc: Case Concerning Armed Activities on the Territory of the Congo (DRC v Rwanda) (2002)

o FACTS: Whether the Rwandan Minister of Justice had the power to withdraw a reservation to the disputes settlement clause under the Genocide Convention to which Rwanda was a party to

o HELD: In principle, Minister of Justice can withdraw from a reservation, but statement by Rwandan Minister of Justice was not specific enough to have the effect of withdrawing

CONCLUSION OF TREATY

- Two-step process: signature then ratification

o Signature itself is not enough to make states a party or make a state bound to the treaty

o Period between signature and ratification allows DL to be put in order to comply with the treaty - When does a treaty enter into force?

o A treaty enters into force generally when treaty provide a date; if silent there is a presumption that it enters into force when all negotiating states have consented to be bound: VLCT Art 24 o A treaty enters into force for a specific party when it has consented to be bound and when the

treaty has entered into force generally: e.g. Kyoto Protocol on Climate Change 1997 was concluded but not in force generally for a number of years as the number of state parties required by the protocol has not been achieved protocol was generally binding when Russia became a party, but not specifically binding for Australia until PM ratified in 2007

- Succession of new states to existing treaties

o When a state dissolves, the question arises as to whether these newly independent states formed out of the dissolution of a larger state automatically become bound / succeed to all treaties to which the former state was a party

o Application of the Genocide Convention (1996) ICJ per Weeramantry J re human rights treaties o Clean slate principle is where a new state ought not to be bound with treaty obligations without

expressly consenting after it has attained statehood

o But all human rights and humanitarian treaties attract the principle of automatic succession and should be exempted from the clean slate principle, as these treaties involves no loss of sovereignty or

autonomy of the new state, but are merely in line with general principles of protection that flow from the inherent dignity of every human being which is the very foundation of the UN Charter

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INTERPRETATION OF TREATIES

Various conceptual approaches to treaty interpretation (some of these are similar to approaches to statutory interpretation and constitutional interpretation)

- Textual approach (formal adherence to terms of treaty) - Restrictive approach (to preserve to state sovereignty)

- Teleological approach (to give effect to object and purpose of treaty) - Effectiveness approach (to ensure treaty regime as effective as possible) Key Rules of Treaty Interpretation:

- VCLT Art 31(1) Good Faith

o A treaty shall be interpreted in good faith with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose

- VCLT Art 31(2) Context

o Context means, in addition to text, any agreement relating to the treaty between all parties - VCLT Art 31(3) Subsequent agreement/practice and applicable international law

o There shall also be taken into account

(a) any subsequent agreement between parties regarding the interpretation of the treaty,

(b) any subsequent practice which establishes the agreement of the parties regarding interpretation, (c) any relevant rules of IL applicable between parties

- VCLT Art 32 Supplementary means of interpretation

o When the interpretation according to Art 31 (a) leaves the meaning ambiguous or obscure, or (b) leads to a result which is manifestly absurd or unreasonable, recourse may be taken to supplementary means of interpretation, including preparatory work of the treaty (travaux pr paratoires)

Cases:

- Territorial Dispute Case (Libya v Chad) (1994) ICJ

o FACTS: relating to law applicable to states emerging from colonisation and what boundaries applies o ISSUE: how to interpret the 1959 boundary agreement regarding whether or not new states can reapply

boundaries

o HELD: ICJ is bound to apply treaty provision if clear as to intention of the parties, there is no need to interpret any further

- Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (2009) ICJ o FACTS: old 1958 treaty between Costa Rica and Nicaragua that set up certain navigational rights on an

international river

o ISSUE: in interpreting provisions which limit the sovereign powers of states, question is whether the court should take a narrow, restrictive reading that follows to the meaning of the provisions as was agreed in 1958 or whether the court should take a more contemporary approach

o HELD: (1) A treaty provision which limits the sovereign powers of a state must be interpreted like any other provision of a treaty i.e. in accordance with the intention of the parties as reflected in the text (2) Generally adhere to original meaning of provisions, but parties may intend that content of provisions evolve such that it can be interpreted later having regard to the contemporary meaning

- China Measures Affecting Imports of Automobile Parts (2008) WTO AB o FACTS: applying VCLT to interpretation of WTO agreements

o HELD: context in Art 31(2) is broad, but must not only fall within scope of formal boundaries of Art 31(2) but must also have some pertinence (relevance) to the language being interpreted that helps the interpreter determine the meaning of the language

o REASONING: look at relevant text of treaty rather than external materials unless absolutely necessary - Oil Platforms (Iran v US) (2003) ICJ

o FACTS: applying 1965 treaty between US and Iran on the Treaty of Amity, Economic Relations and Consular Rights, and whether under that treaty the US could justify its actions as being necessary to protect its security

o HELD: ICJ disagreed on the basis that the interpretation of a 1955 treaty must take into account relevant rules of contemporary IL, including the prohibition on the use of force VCLT Art 31(3)(c)

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INVALIDITY OF TREATIES

- Several circumstances where a treaty may be void ab initio (absolute invalidity) or voidable (relative invalidity) - A treaty will be void ab initio (absolute invalidity)

o Where there has been coercion of state representatives or the state itself to enter into a treaty (through threat or use of force contrary to UN Charter): VCLT Arts 51 and 52

o Where treaty is in conflict with a peremptory norm of IL (jus cogens): VCLT Arts 53 and 64 - A treaty will be voidable (relative invalidity)

o Where consent manifest violation of a rule of its internal law of fundamental importance: VCLT Art 46, Case Concerning the Territorial and Maritime Disputes (Nicaragua v Colombia) (1962)

FACTS: treaty was in conflict with Nicaraguan Constitution

HELD: 50 years passed until Nicaragua made any claims that a 1928 treaty should no longer be considered valid, thus Art 46 could not be applied

Difference between Art 46 and Art 27 in limited circumstances, violation of DL of fundamental importance e.g. Constitution which goes to the capacity of a state to go into treaties may make treaty voidable

o Where there is an error of fact which formed essential basis of consent to be bound (error relating only to the wording of the text of a treaty does not affect its validity): VCLT Art 48, Temple of Preah Vihear (Cambodia v Thailand) (1962)

FACTS: argument of which state has sovereignty over Temple, argument by Thailand that a mistake was made in the past when drawing the map for the boundary to which the temple belongs to Thailand now

HELD: error may void a treaty but in this case it could not be relied upon because both sides of the government knew where the temple was placed when drawing the map, thus there is no error undermining the consent of parties

o Where a state is induced to conclude a treaty by the fraudulent conduct of another negotiating state (i.e. fraudulently misrepresented itself or the situation to which the treaty relates): VCLT Art 49

E.g. bribe or corrupt representative of a state to sign an agreement Very unlikely in practice

TERMINATION AND SUSPENSION OF TREATIES

- Internal grounds termination, withdrawal or suspension may take place when (a) in conformity with the provisions of the treaty, or (b) parties consent to after consultation with other parties: VLCT Arts 54 and 57 - External grounds if the treaty contains no provision regarding termination, denunciation or withdrawal then

is not subject to denunciation or withdrawal unless (1) established that parties intended to allow it or (2) it is implied by nature of the treaty: VCLT Art 56

o Ordinary breach does not give rise to termination or suspension of treaties, but to an internationally wrongful act Article on State Responsibility (not authoritative but deals with consequences of breaches) o Material breach amounts to (a) a repudiation of the treaty or (b) a violation of a provision essential to the

accomplishment of the object or purpose of the treaty VCLT Art 60(3) which entitles VCLT Art 60(2) (a) unanimous agreement to suspend or terminate treaty in part or in whole for all parties

(b) party specially affected to suspend the treaty in part or in whole between itself and the defaulting state (c) any party other than the defaulting state to suspend the treaty in part or in whole if the treaty is of such a character that a material breach of its provision by one party radically changes the position of every party with respect to the further performance of its obligations

Ma erial breach sligh , insignifican , echnical breach

South West Africa Advisory Opinion (1971) ICJ SC terminated mandate under which South Africa was administrating South West Africa on acco n of So h Africa s ma erial breach

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o Supervening impossibility of performance: VCLT Art 61

(1) A permanent impossibility of performing the obligation under the treaty may invoke the party to terminate or withdraw from the treaty, and a temporary impossibility may invoke the party to suspending the treaty

(2) Cannot be invoked if the impossibility is a result of a breach under the treaty or of any other international obligation owed to any other party

o Fundamental change of circumstances: VCLT Art 62

(1) Termination or withdrawal where those circumstances constituted an essential basis of the consent of parties AND the effect of the change is radically to transform the extent of obligations under the treaty (2) No termination or withdrawal if the fundamental change is the result of a breach of an obligation under

the treaty or any other international obligation owed to any other party

Fisheries Jurisdiction Case (1973) ICJ fishing rights around Iceland and England and whether Iceland could rely on a fundamental change of circumstances because of its increased reliance on fishery and changes in technologies to avoid the application of their treaty, in which court disagreed and set bar extremely high for fundamental change of circumstances

CONSEQENCES OF INVALIDITY, TERMINATION OR SUSPENSION

- Invalidity of a treaty VCLT Art 69

(1) Provisions of a void treat have no legal force

(2) If acts have nevertheless been performed under such a treaty

(a) Each party may require any other party to establish the position that would have existed if the acts had not been performed,

(b) Acts performed in good faith before the invalidity was invoked are not rendered unlawful (3) This does not apply to the party that carried out a fraud, act of corruption or coercion

- Termination of a treaty VCLT Art 70

(1) Unless treaty otherwise provides or parties otherwise agree, the termination of a treaty (a) Releases the parties from any obligation further to perform the treaty

(b) Does not affect any right, obligation or legal situation that the parties created under the treaty before its termination

(2) If a state denounces or withdraws from a multilateral treaty, the same applies between that state and each of the parties to the treaty from the date such denunciation or withdrawal takes effect

- Suspension of a treaty VCLT Art 72

(1) Unless treaty otherwise provides or parties otherwise agree, the suspension of a treaty

(a) Releases the parties from any obligation to perform the treaty during the period of suspension (b) Does not affect any legal situation that the parties created under the treaty prior to its suspension (2) During the period of suspension, parties shall refrain from acts tending to obstruct the resumption of

the operation of the treaty

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TOPIC 4 International Law and Domestic Law

DOCTRINE OF INCORPORATION vs TRANSFORMATION

MONISM there is only one legal system, of which both IL and DL are part - INCORPORATION IL automatically part of domestic law - Several variants:

(a) courts to apply IL unless inconsistent with statute (i.e. apply IL over common law);

(b) courts to apply IL unless inconsistent with common law

DUALISM IL has no direct impact upon DL and must be implemented through deliberate legal action a m the international rule into a domestic rule (i.e. executive order, legislation, or judicial decision)

- TRANSFORMATION IL must be implemented in DL - Several variants:

(a) only legislation may implement IL;

(b) either legislation or court decisions may implement IL

DOMESTIC LAW IN INTERNATIONAL LAW

- Domestic law can be evidence of CIL (state practice + opinio juris) and/or general principles of law - May not invoke absent/inconsistent DL as justification for failing to meet international legal obligations

Alabama Arbitration Case (US v UK) (1872)

o FACTS: The Confederacy (Southern US states) commissioned a warship to be built in the UK, Northern US states went to the UK gov saying it had breached its international undertaking to be neutral in the US civil war UK looked its DL and it found that it had no power to prohibit the construction of warship warship left UK and caused extensive destruction to Northern US states

o HELD: arbitrators found that the UK a a a a

a a a UK breached their international obligation and had to pay damages

Sandline Arbitration Case (1998)

o FACTS: dispute of non-payment of contract fee by PNG a Sa a Sa a services provided for the Bougainville Revolutionary Army, PNG claims no requirement to make the payment under contract as it nominated IL as the applicable law, and that this contract must be regarded as invalid as the PNG Constitution prohibits the rising of paramilitary or military forces without parliamentary approval

o HELD: PNG could not rely on internal law to support plea that an international contract invalid - IL may recognise institutions of DL that have an important/extension role in IL

Barcelona Traction (Belgium v Spain) (1970) ICJ

o Regarding the treatment of a Canadian company by Spain, ICJ recognised the character of a domestic limited liability of corporation (DL concept)

PROOF OF LAW IN NATIONAL AND INTERNATIONAL COURT

- In an Australian Court, PIL cannot be proved law by expert evidence, just as Australian law ACCC v PT Garuda (No 9) [2013] FCA 323 per Perram J

o E a a DL is, parties makes submissions and court determine what applicable law is = same applies to IL

o Opinion evidence is not receivable on an issue of DL because the law is not a matter for proof or disproof. It is for this reason, as pointed out in Cross on Evidence that a judge is not obliged to accept a proposition of law agreed upon by the parties Does a similar principle apply to IL? Despite authority to this effect being scarce, it seems that the answer is that it does.

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- I a a a , DL a b b b a to ascertain law Brazilian Loans Case (France v Brazil) (1929) PCIJ

o FACTS: in a case concerning dispute over loans made by the Brazilian gov, the court had to consider the meaning and effect of French DL

o In cases concerning the application of DL, the ICJ may obtain knowledge about the DL by evidence provided by the parties, or by independent research

o Once the ICJ has arrived at the conclusion that it is necessary to apply the DL of a particular country, there seems no doubt that it must apply it as it would be applied in that country

CUSTOMARY INTERNATIONAL LAW IN DOMESTIC LAW

- Automatic incorporation of CIL is rejected when issue arises in Australia - Different from the UK: Trendtex Trading [1977] QB 529

o Relating to state immunity and whether there could be proceedings in UK against Nigerian Bank o UK consist of more monist approach, claiming IL is automatically incorporated

- T a a a oach is not clearly endorsed

o Notion that custom may be adopted by court, not exclusively by Parliament

o No clear statement from the HC claiming that custom cannot be adopted by a court as judge-made law o Possible for court to say custom does not automatically form part of Australian common law, however

in some circumstances, rule of custom could be incorporated into Australian law (case-by-case) Chow Hung Ching v R (1949) 77 CLR 449

- FACTS: members of foreign visiting armed labourer convicted of criminal assault in PNG who was under Australian administration under the Australian UN mandate

- ISSUE: whether they enjoyed sovereign immunities under IL a a a

- HELD: certain foreign visiting forces can enjoy immunity from prosecution in certain circumstances, but in this case no immunity can be applied because they were not members of the Chinese military forces instead they were contractors

o Latham CJ IL a a a A a a, b a rsally recognised principle of IL would be applied b

o Dixon J The theory of Blackstone that the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land is now regarded as without foundation. The true view, it is held, is that international law is not a part, but is one of the sources, of English (Australian) law

Mabo v Qld (No 2) (1992) 175 CLR 1

- Brennan J Referred to ICCPR and says the common law does not necessarily conform with IL, but IL is a legitimate and important influence on the development of the common law, especially when IL declares the existence of universal human values

Habib v Cth (2010) 183 FCR 62

- Doctrine of foreign act of state every sovereign state is bound to respect the independence of every other sovereign state, and prohibits Court from sitting in judgement on the acts of foreign governments within their own territory

- FACTS: Australian citizen Habib claims civil damages against the Cth for intentional but indirect infliction of harm, as a result of Cth officials aiding, abetting and counselling his torture and other inhumane treatment by foreign officials when detained in foreign countries

- COURT: sought to dismissed claim

- HELD: Cth could not rely on the act of state doctrine to dismiss claim and that Habib claims are justiciable o Black CJ and Jagot J doctrine does not apply where grave violations of international HR law are

alleged, as common law application of doctrines should reflect universal norms

o Perram J application of the doctrine in this case to be inconsistent with Constitutional norms

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TOPIC 5 International Legal Personality, Statehood and Self-Determination

INTERNATIONAL LEGAL PERSONALITY

- DEFINITION OF INTERNATIONAL LEGAL PERSONALITY: capacity of an actor to exercise rights, duties and powers on the international plane

- Substantial expansion in international legal personality in UN Charter era (especially IOs and individuals) - Personality not an absolute concept, and the capacity of international actors varies (i.e. actor may not have the

same capacity as a state)

- An international legal person may:

o Make claims before international tribunals

o Be subject to some or all international legal obligations o Have the power to enter treaties

o Enjoy some or all immunities from jurisdiction of national courts

1. Statehood

- States can be regarded as international legal persons

- States are the principal and dominant subjects of IL e.g. Statute of the ICJ Art 34(1) (only states may be parties to a dispute before the international court)

- ‘States are an artificial entity with control over defined territory’ – Charlesworth and Chinkin

ATTRIBUTES OF STATEHOOD UNDER IL – Crawford

- Plenary power in international sphere (external sovereignty) - Exclusive competence within own territory (internal sovereignty)

- Not subject to compulsory jurisdiction of international courts without consent - States are equal (formally, not necessarily substantively)

- Derogation from these attributes and freedom of action not to be presumed (the SS Lotus presumption)

SS Lotus Case (1927)

- FACTS: French ship collided under no territory with Turkish ship, 8 Turkish sailors and passengers died → French officer arrested in Turkey and charged with manslaughter under Turkish Penal Code Art 6

- ARGUMENT: French gov demanded the release of the captain arguing that the Turkish gov had no jurisdiction to prosecute since the crime occurred on a French ship, therefore the crime was exclusively in the jurisdiction of France, and Turkey had no concurrent jurisdiction

o France argued Turkey had to prove there was an IL rule to allow them to prosecute o Turkey argued France had to provide that there was an IL rule that prohibits this

- ISSUE: whether Turkey had jurisdiction over foreign nation / whether Turkey acted contrary to IL by instituting criminal proceedings against France

- PCIJ HELD: rejected France’s argument → there is no rule of IL that prohibits Turkey to prosecute and it was for France to prove the prohibition

- PRINCIPLE: Restriction on state freedom are not be to presumed.

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DEFINITION OF STATES: 1933 Montevideo Convention on the Rights and Duties of States Art 1 - States must have:

(a) Permanent population (b) Defined territory (c) Government, and

(d) Capacity to enter in relations

- Accepted as reflecting CIL position as to what a state is, despite only a few parties

- Criteria is not always easy to meet to establish that a new entity has taken on the characterisation of a state - But once it becomes a state, it is difficult to lose that status

- ISSUE: whether ‘failed states’ (e.g. Somalia) or ‘submerged states’ (e.g. Pacific microstates) lose statehood

→

at this stage, statehood will be lost, but open to discussion and debates still Montevideo Criteria for Statehood

(a) POPULATION

- No minimum number (e.g. Nauru < 10000) - Must be permanent

(b) TERRITORY

- No minimum size (e.g. Vatican City 0.33km²)

- Boundaries need not be completely fix / undisputed (e.g. Israel)

- But must be a coherent territory that with effective establishment of a political community (c) GOVERNMENT

- Must have an organised and effective government of any form to exercise control over its territory

o Effectiveness is essential, showing ability to exercises administrative, executive and legislative power o But the form of government is immaterial (e.g. whether democratic or not)

(d) CAPACITY TO ENTER INTO RELATIONS - Independence from the authority of other states

- Independent vs dependent states:dependent states are those states which are subject to the authority - Customs Regime between Germany and Austria (1931) PCIJ

o FACTS: alleged loss of sovereignty because Austria entered into burdensome treaty with Germany o ISSUE: whether Austria by entering into treaty amounted to the violation of an early treaty to give up

independence in economic matters

o HELD: restrictions upon a state’s liberty arising out of IL or treaty obligations do not affect its independence, as long as these restrictions do not place the state under the legal authority of another state, the former remains an independent state however burdensome its obligations may be

▪ Anzilotti J: a state subject to the authority of another state would be a dependent state, and would not meet the capacity to enter into relations

- Puppet states: Manchukuo (1932-1945)

o Criticise for not having the attributes of statehood by the international community as it had no independence and is completely controlled by imperial Japan

Other Criteria for Evidence of Statehood

- European Community’s Declaration on New States in Eastern Europe and Soviet Union (1991) dealt with rapid emergence of new states in Eastern Europe and Soviet Union following the end of the Cold War

o Respect for UN Charter

o Respect for rights and ethnic and national groups and minorities o Respect for borders

o Commitment to peaceful dispute settlement - BUT controversial and not widely accepted

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2. Other International Legal Persons

- Other non-state territorial entities e.g. Taiwan

o Limbo situation between debate over whether it is part of China or is independent

o But doesn’t mean it does not conduct foreign relations → effectively enters into treaties not as a state but regarded as an entity of Taiwan

o E.g. enters into fisheries treaty as the Fisheries Entity of Taiwan - Non-territorialised persons e.g. Holy See (government of the Vatican)

o Has own independent legal status

- International Organisations are recognised as an ILP

o Organisation established by treaty and possessing own international legal personality

o Despite having international legal personality, it is not the same quality as the personality as states have o IO do not possess general competence and is governed by principle of ‘speciality’, meaning rights and

responsibilities of IO are dealt with by the treaty or instruments that sets them up: WHO Advisory Opinion (1996) ICJ

o IO may be responsible for wrongful acts: ILC Draft Articles on Responsibility of IO (2011) o Most important case: Reparation for Injuries Case (1949) ICJ

▪ ISSUE: whether the UN had the rights / capacity to pursue claim and seek compensation, the same way a state does, against Israel in relation to Israel’s negligent failure to protect a UN official from being killed by terrorist group in Jerusalem

▪ HELD: as IL developed in the 20^th century, the personality of IOs has moved with the times to meet the requirements of international life → important to recognise IOs

• “The development of IL has been influenced by the requirements of international life… the [UN is] exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international

personality… Accordingly, the Court has come to the conclusion that the [UN] is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.”

▪ PRINCIPLE: IOs are exercising and enjoying functions and rights which could only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon the international plane. But the legal personality and rights of IOs does not the same as that of a state.

- Individuals are recognised as an ILP

o Have certain rights and responsibilities established by IL, but not the bearers of the kind of rights and responsibilities that states or IOs have

o Under international criminal law – individual criminal responsibility and not to allow a defence as to say they were simply acting under orders in pursuit of a state objective

▪ ‘Crimes against IL are committed by men, not by abstract entities’: Nuremberg Tribunal (1947)

o Under international HR law – individuals have certain rights to be asserted against states that exercise jurisdiction over them: Universal Declaration of Human Rights

- Corporations does NOT have ILP

o In certain contexts, corporations may be party to an internationalised contract that has specific international capacities (no stand-alone status): Texaco Overseas Petroleum Company v Libya (1977) - Rebel groups does NOT have ILP

o Particularly rebel groups operating in armed conflicts does not have international personality, but they are subject to international humanitarian law: Prosecutor v Kallon and Kamara (2004) Special Court for Sierra Leone

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RIGHT OF SELF-DETERMINATION

- DEFINITION OF SD: The right of all peoples to determine freely their political status, and freely pursue their economic, social and cultural development

o It is a right that all people hold, and can be asserted by other states on behalf of those people

o 1966 ICCPR Art 1(1), 1966 ICECSR Art 1(1); UN Charter Arts 1(2) and 55; 1960 UNGA Declaration on the Granting of Independence to Colonial Territories and Peoples

o Accepted as part of CIL by ICJ in Western Sahara (1975); East Timor (1995)

- If independence is the decisive criterion of statehood, self-determination is a principle concerned with the right to be a state – Crawford

- The right to SD is highly likely jus cogens and is opposable erga omnes – Crawford

→ Jus cogens pre-emptory norm

o States have duty not to recognise states created in violation of principle

→ Opposable erga omnes [owed to all]

o East Timor case (Portugal v Australia) 1995 – courts respecting rights to SD and capacity of Portugal to assert this right for people of East Timor

o Chagos Islands Advisory Opinion (2019) – courts suggests rights of SD provides a CIL character - Availability of the right of SD does not guarantee a specific outcome such as independence and secession

o A new state, free association, or integration can all be legitimate expressions of the right

1960 Resolution 1514 (XV) UNGA Declaration on the Granting of Independence to Colonial Territories and Peoples Art 1: The subjection of peoples to alien subjugation, domination and exploitation is a denial of fundamental HR Art 2: All peoples have the right to self-determination; this necessarily includes the right freely to determine their political status and freely to pursue their economic, social and cultural development

Western Sahara Advisory Opinion (1975) ICJ

- FACTS: Mauritania and Morocco (on the basis of Spain’s colonisation thus succeeding claim) had competing claims to Western Sahara without a referendum of the territory’s population

- ISSES: (1) Whether the WS, at the time of colonisation by Spain, a territory belonging to no one (terra nullius), if not (2) What were the legal ties between WS with Morocco and Mauritanian

- HELD: (1) WS was not a terra nullius and (2) although there were legal ties with both Morocco and Mauritania, these ties were insufficient to justify decolonisation and self-determination of the territory by any means other than a referendum

- PRINCIPLE: Affirmed the principle of SD, which is exercised through “the free and genuine expression of the will of the peoples of the non-self-governing territory”.

Chagos Islands Advisory Opinion (2019) ICJ

- FACTS: Chagos Islands are a part of Mauritius (UK colony) → M advocated for independence against UK in the 1960s but UK agreed to lease the CI to the US → in 1965, UK and M made an agreement that UK would separate the CI from M → granting M independence and CI continue to be held by UK as there was an important US military base → ever since, CI has been fighting for full expression of rights of SD - HELD: matter came before ICJ in an advisory opinion

1. Claims the 1960 UNGA Declaration was a defining moment in the consolidation of state practice on decolonisation, thus is was declaratory on the right to SD as a customary norm

2. Then following the law of SD, court deicide that the process of decolonisation between UK and M was not lawfully completed, as it was not a free and genuine expression of will for M to acquire independence because M was still under the authority of the UK

3. Thus, the UK was under the obligation to conclude its colonisation of the CI

- PRINCIPLE: The 1960 UNGA Declaration has a declaratory character with regard to the right to SD as a customary norm, in view of its content and the condition of its adoption.

o Both state practice and opinio juris confirmed the CIL character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to SD.

DEFINITION OF TREATY

Table of Contents

TOPIC 3 Treaties

DEFINITION OF TREATY

CONCLUSION OF TREATY

INTERPRETATION OF TREATIES

INVALIDITY OF TREATIES

TERMINATION AND SUSPENSION OF TREATIES

CONSEQENCES OF INVALIDITY, TERMINATION OR SUSPENSION

TOPIC 4 International Law and Domestic Law

DOMESTIC LAW IN INTERNATIONAL LAW

CUSTOMARY INTERNATIONAL LAW IN DOMESTIC LAW

TOPIC 5 International Legal Personality, Statehood and Self-Determination

INTERNATIONAL LEGAL PERSONALITY

1. Statehood

→

2. Other International Legal Persons

RIGHT OF SELF-DETERMINATION