LAW IN GLOBAL THE
CONTEXT EXAM
NOTES
Table of Contents
INTRODUCTION TO INTERNATIONAL LAW 6
DEFINITION OF INTERNATIONAL LAW 6
CHARACTERISTICS OF INTERNATIONAL LAW 6
PLAYERS 6
THE UN CHARTER 6
FUNDAMENTAL FEATURES 6
MEMBERSHIP TO UN 6
STRUCTURE OF UN 7
GENERAL ASSEMBLY 7
SECURITY COUNCIL 7
OTHER PRINCIPAL ORGANS 8
THE INTERNATIONAL COURT OF JUSTICE 8
FORMS OF JURISDICTION 8
OTHER JUDICIAL/QUASI--‐JUDICIAL BODIES 8
SOURCES OF INTERNATIONAL LAW 10
INTERNATIONAL COURT OF JUSTICE 10
INTERNATIONAL CONVENTIONS 10
TERMINOLOGY 10
GENERAL PRINCIPLES 12
CUSTOMARY LAW 12
ELEMENTS OF A CUSTOMARY INTERNATIONAL LAW RULE 12
THE NORTH SEA CONTINENTAL SHELF CASES 13
EMERGENCE OF NEW CUSTOMARY RULES 14
TYPES OF CUSTOMARY INTERNATIONAL LAW RULES: 14
ACTS V WORDS: WHICH COUNTS? THE NICARAGUA CASE 15
CUSTOMARY LAW AND SIMILAR TREATY RULES 15
INTERNATIONAL LAW AND AUSTRALIA 16
TERMINOLOGY 16
RELATIONSHIP BETWEEN THE SYSTEMS 16
RECEPTION OF INTERNATIONAL LAW INTO THE DOMESTIC LEGAL ORDER 16
INTERNATIONAL LAW AND LEGISLATIVE POWER 16
IMPLEMENTATION OF TREATIES AND RECOMMENDATIONS 16
IMPLEMENTATION OF CUSTOMARY LAW 17
INTERNATIONAL LAW AND THE COMMON LAW 17
GENERAL PRINCIPLE 17
CASE LAW 17
INTERNATIONAL LAW AND LEGISLATION 17
TREATY LAW 18
INCONSISTENCY OF TREATY AND LEGISLATION 18
TREATIES AND LEGISLATIVE INTERPRETATION 18
TREATIES AND CONSTITUTIONAL INTERPRETATION 18
INTERNATIONAL LAW AND EXECUTIVE DISCRETION (LEGITIMATE EXPECTATIONS) 19
WHALING CASE STUDY 20
INTERNATIONAL INSTITUTIONS 20
INTRODUCTION 20
FUNCTIONALISM AND ITS LIMITS 21
INSTITUTIONAL DESIGN 22
TOWARDS ACCOUNTABILITY 23
MORE ACTIVE, LESS GLAMOROUS 24
LAW OF THE SEA 24
DEVELOPMENT OF LAW OF THE SEA 24
MARITIME ZONES 25
RESOURCE EXPLOITATION 27
FREEDOM OF NAVIGATION 27
MARITIME JURISDICTION 28
PROTECTION OF THE MARINE ENVIRONMENT 28
MARITIME BOUNDARY DELIMITATION 28
MARITIME SECURITY 29
DISPUTE RESOLUTION 29
THE INTERNATIONAL WHALING COMMISSION 29
THE HISTORY OF THE WHALING DEBATE 30
THE RELEVANT INTERNATIONAL INSTITUTIONS 31
THE DIVERGENT ETHICAL PERSPECTIVE ON WHALES 34 EVALUATING THE PRESENT AND LOOKING INTO THE FUTURE 35
ICELAND’S RESERVATION AT THE IWC 35
ICELAND AT THE IWC 36
ICELAND’S RESERVATIONS 36
THE IWC TRADITION OF RESERVATIONS 36
RESERVATIONS IN INTERNATIONAL LAW 37
THE AFTERMATH 41
CONCLUSION 41
THE ICJ AND INTERNATIONAL DISPUTE SETTLEMENT 41
THE OBLIGATION TO SETTLE DISPUTES 41
ARBITRATION 42
INTERNATIONAL CIVIL COURTS 42
EXAMPLES OF OTHER MAJOR INTERNATIONAL CIVIL COURTS AND TRIBUNALS 46
REGIONAL COURTS 47
WHALING IN AUSTRALIAN WATERS 48
THE WHALING DISPUTE BETWEEN JAPAN AND AUSTRALIA 48
ASSANGE CASE STUDY 50
INTRODUCTION TO EXTRADITION 50
INTERNATIONAL AGREEMENTS 50
SOME BASIC FEATURES 51
EXTRADITION 52
MUTUAL LEGAL ASSISTANCE 55
TRANSFER OF PROCEEDINGS 55
ENFORCEMENT OF PENALTIES 55
EXTRADITION OF ASSANGE 56
THE ASSANGE CASE 56
EXTRADITION PROCESS 57
THE SOERING CASE 58
ASYLUM AND CONSULAR RELATIONS 61
THE ASSANGE CASE 61
NOTTEBOHM CASE 62
ASSANGE AT THE ECUADORIAN EMBASSY 63
DIPLOMATIC ASYLUM AND THE ASSANGE CASE 63
DIFFERENT LEGAL TRADITIONS AND COMPARATIVE LAW 66
THE DOMINANT LEGAL SYSTEMS OF THE WORLD: COMMON LAW AND CIVIL LAW 66
THE PERVASIVE REACH OF THE TWO SYSTEMS 66
BASIC ORIGINS, PRECEPTS AND CHARACTERISTICS OF THE COMMON LAW SYSTEM 66 BASIC ORIGINS, PRECEPTS AND CHARACTERISTICS OF THE CIVIL LAW SYSTEM 66
INTERNATIONALISED CONTRACT LAW: PAST AND PRESENT 67
PRIVATE INTERNATIONAL LAW CASE STUDY 71
PIL/CONFLICT OF LAWS 71
WHAT ARE THE MAIN ISSUES INVOLVED IN PIL DISPUTES 71 ON WHAT BASIS CAN THE COURT ASSERT JURISDICTION OVER A FOREIGN DEFENDANT 71
RESTRAINTS ON PROCEEDINGS 71
WHAT CONFLICT OF LAW RULES APPLY TO THE MATTER 72
APPLICATION ISSUES 72
THE EXCLUSION OF CERTAIN FOREIGN LAWS: 72
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT 72
IMPLICATIONS FOR PRACTICE 73
FORUM SHOPPING 74
ANTI--‐SUIT INJUNCTION 74
HARMONISATION OF LAWS 74
RELEVANT STATUTES 74
TRANSNATIONAL CONTRACT CREATION 75
CHOICE OF LAW IN CONTRACT 75
THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) 75
THE CURRENT USE/MISUSE OF THE CISG 77
WHEN DOES CISG APPLY 77
AIM OF THE CISG AND WHY AUSTRALIAN LAWYERS SHOULD UNDERSTAND IT 78
THE CULTURE OF OPTING OUT 80
REQUIREMENTS FOR PROPER APPLICATION OF THE CISG 81 THE WAY AHEAD -‐‐-‐‐ MORE CONTINENTAL DRIFT OR RETURN TO THE COMMUNITY OF
CISG JURISPRUDENCE 81
TRANSNATIONAL LITIGATION 83
STANDING 83
JURISDICTION 83
DRAFTING APPLICATIONS INVOLVING INTERNATIONAL LEGAL QUESTIONS 83 UNINCORPORATED TREATIES AND ADMINISTRATIVE DECISION MAKING 83 REFLECTIONS ON THE PAST DECADE OF TRANSNATIONAL LITIGATION 84
INTERNATIONAL COMMERCIAL ARBITRATION 84
A MATTER CAPABLE OF SETTLEMENT BY ARBITRATION 84
APPLICABLE LAW IN INTERNATIONAL ARBITRATION 85
INTERNATIONAL ARBITRATION ACT 1974 87
NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
87
CHILD ABDUCTION CASE STUDY 89
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 89
OVERVIEW 89
TERMINOLOGY USED IN CONVENTION 89
CHILDREN PROTECTED BY THE CONVENTION 89
AGE OF CHILD 90
RESIDENCE OF CHILD 90
TIMING/CASES COVERED 90
EFFECT OF CUSTODY ORDER CONCERNING THE CHILD 90
CONDUCT ACTIONABLE UNDER THE CONVENTION 91
JUDICIAL PROCEEDINGS FOR RETURN FOR CHILD 93
CENTRAL AUTHORITY 96
ACCESS RIGHTS 97
MISCELLANEOUS AND FINAL CLAUSES 98
GENERAL CHARACTERISTICS OF THE CONVENTION 98
STATUTORY FRAMEWORK 100
FAMILY LAW ACT 1975, S 111B: CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
100 FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 102
CASES 104
ATTEMPTED RECONCILIATIONS BETWEEN ABDUCTION CONVENTION AND OTHER HUMAN RIGHTS
TREATIES 109
OBSTACLES TO THE CHILD ABDUCTION CONVENTION 112
IMPLEMENTATION OF THE HAGUE CONVENTION IN AUSTRALIA 113 SENATE COMMITTEE REPORT ON INTERNATIONAL CHILD ABDUCTION (2011) 113 ISSUES CONCERNING ‘THE CHILD’S BEST INTERESTS’ 118
THE ISSUE OF DOMESTIC VIOLENCE 120
Introduction to international law
Definition of international law
“[T]hat body of law which is composed for the greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and which includes also:
a. The rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with states and individuals; and
b. Certain rules of law relating to individuals and non-state entities so far as the right or duties of such individuals and non-state entities are the concern of the international community.”
Characteristics of international law
• States as the principal actors (though not the only ones); sovereign equality and consent to be bound as basic principles underlying the international legal system
• Lack of a centralised legislature
• Lack of a centralised executive agency for enforcement
• Lack of compulsory third party adjudication.
Players
• States
• International organizations
• Other entities with legal personality
• National liberation movements
• Non-governmental organizations
• Individuals
Although the international legal system recognizes that for certain purposes entities other than States may have certain rights or obligations under international law, States are still the primary actors with full international legal personality (although international organizations possess many attributes of full international legal personality).
The UN charter
Fundamental features
• Sovereign equality of States
• Duty not to interfere in matters which are essentially within the domestic jurisdiction of member States (art 2(7))
• Restrictions on the unilateral use of force (art 2(4), and 51) and establishment of a system of collective security (UN Charter, especially Chapter VII)
• Right of self-determination of peoples
• Obligation to seek peaceful settlement of disputes
• Obligations under the Charter to prevail over obligations under other treaties (art 103) Membership to U N
• Original members (art 3):
“All other peace-loving States which accept the obligations contained in the … Charter, and in the judgment of the Organisation, are willing and able to carry out these obligations” (art 4(1))
• Membership applications “effected by a decision of the General Assembly upon the recommendation of the Security Council” (art 4(2))
• Other forms of participation in the work of the organisation – non-member States (observer States); other entities
Structure of UN
• Principal organs of the United Nations (art 7)
• General Assembly (Chapter 4)
• Security Council (Chapter 5)
• Economic and Social Council (Chapter 10)
• Trusteeship Council
• International Court of Justice (Chap 14)
• Secretariat (Chapter 15) General assembly
• All members of the UN are members of the General Assembly with equal voting power
• General Assembly has power to adopt resolutions and make recommendations on any matter within the scope of the UN Charter (arts 10-22) (with some exceptions relating to matters in which the Security Council is engaged)
• GA has something of the character of a plenary legislative body, though it cannot bind members other than in relation to matters of internal governance
• GA resolutions as such do not generally bind the members as a matter of international law, though they may contribute to the formation, or represent a codification, of customary international law
• Human Rights Council: subsidiary body of the General Assembly
• Peace-building Commission: jointly established by the General Assembly and Security Council
Main committees:
• First Committee: Disarmament and International Security
• Second Committee: Economic and Financial
• Third Committee: Social, Cultural, and Humanitarian
• Fourth Committee: Special Political and Decolonization
• Fifth Committee: Administrative and Budgetary
• Sixth Committee: Legal
• The Credentials Committee: examines the credentials of representatives of Member States and to report to the General Assembly.
• The General Committee
The Assembly has also established a number of Ad Hoc Committees for the drafting of particular instruments (et the Comprehensive Counter-Terrorism Convention and the Convention on the Human Rights of Persons with Disabilities)
Security council
• Comprises five permanent members (P-5: US, UK, France, Russia and China) with power of veto; plus 10 non-permanent members elected by the General Assembly for 2-year terms (and not immediately re-electable)
• Recent proposals to reform the Security Council by adding additional members (permanent, though without veto, non-permanent, and rotating regional seats) have run into the sand
• Has primary responsibility for the maintenance of international peace and security
• Power to make non-binding recommendations under Chapter VI and binding decisions under Chapter VII\
Other principal organs Economic and Social Council
• Comprises 54 members elected by the General Assembly
• Responsibility for a broad range of economic, social and cultural issues Trusteeship Council
• Originally established as a body to promote the development and exercise of the right to self- determination of non-independent territories; its work now completed (1994)
Secretariat
• The international civil service that supports the work of the organization – headed by the UN Secretary-General
The international court of justice
Court comprises 15 judges, elected by the General Assembly and the Security Council (plus one or more ad hoc judges in contentious cases)
Forms of jur isdic tion
Advisory jurisdiction (where an organ of the UN authorized to do so request an advisory opinion from the Court)
• Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make a such request” (ICJ Statute, art 65(1))
• Article 96(1) of the Charter authorizes the General Assembly and the Security Council to request an advisory opinion; the ECOSOC, Trusteeship Council, and most of the specialized agencies have been authorized to do so in accordance with the Charter
• Court will normally accede to a request which falls within the competence of the requesting body); this is so even if the matter is highly political, so long as there is a legal question which the Court can respond to in a properly judicial manner
Contentious jurisdiction (involving a dispute between two States)
• Only States may be parties before the ICJ in a contentious case – individuals, non- governmental organizations, international organization do not have standing to bring cases before the court
• Exercise of the jurisdiction is based on consent of all States parties to the dispute which is sought to be brought before the Court
• Judgments of the Court in contentious cases are binding only on the parties to the case before the Court (ICJ Statute, art 59) – formally they do not have precedential effect, though in practice the Court generally tries to follow its earlier judgments, and the Court’s judgments are very influential.
Other judicial/quasi -judicial bodies
In addition to the ICJ, there are now many judicial or quasi-judicial bodies which pronounce on questions of international law – some of whose decisions are formally binding on the parties, others of which are not, but all may contribute to the determination of what the state of international law is and contribute to its development
Examples
• International Tribunal on the Law of the Sea
• Permanent Court of Arbitration
• International arbitral tribunals established under multilateral or bilateral investment agreements (ICSID, FTAs, BITs)
• International criminal tribunals (ICC, ICTY, ICTR, Sierra Leone Special Tribunal, Lebanon tribunal)
• European, Inter-American and African Courts of Human Rights
• European Court of Justice and other similar courts
• World Trade Organisation Dispute Settlement Bodies
• UN human rights treaty bodies (decisions are in formal terms non-binding)
Sources of international law
• Formal sources: the basis on “which a rule of law derives its force and validity” (Salmond);
“the procedures or methods by which rules become legally binding” (Dixon) - Formal sources are custom, treaties and general principles of law
• Material sources: “the actual materials from which an international lawyer determines the rule applicable to a given situation” (Shearer); that from which is derived the matter, not the validity of the law . . . supplies the substance of the rule” (Salmond);
- State practice, for example, is a material source of custom
Evidence/ i nformation sources: those documents relied on to show that a particular rule is part of custom or treaty law.
- Diplomatic correspondence, public statements by government officials are evidence of a particular custom.
“[I]n reality these supposed distinctions are highly artificial and difficult to maintain. They distort the function of the sources of international law because all ‘sources’ are, in some way, both law creating and law identifying.” (Dixon, 21)
