PUBLIC INTERNATIONAL LAW
Nicholas Saady 2016
Contents
WEEK 1: SOURCES ... 4
BACKGROUND ... 4
STEPS IN IMPLEMENTING PIL ... 4
SOURCES: ICJ Statute ... 5
SOURCES: Customary International Law ... 6
SOURCES: Treaties ... 9
SOURCES: General Principles of Law ... 9 SOURCES: Judicial Decisions ... Error! Bookmark not defined.
SOURCES: Soft Law ... Error! Bookmark not defined.
SOURCES: Publicists ... Error! Bookmark not defined.
HIERARCHY OF SOURCES ... Error! Bookmark not defined.
WEEK 2: SOURCES – MARITIME ZONES ... Error! Bookmark not defined.
BACKGROUND ... Error! Bookmark not defined.
UN Convention on the Law of the Sea (LOSC) ... Error! Bookmark not defined.
MEASUREMENTS ... Error! Bookmark not defined.
MARITIME ZONES ... Error! Bookmark not defined.
MARITIME DELIMITATION ... Error! Bookmark not defined.
WEEK 3: INTERNATIONAL AND MUNICIPAL LAW ... Error! Bookmark not defined.
BACKGROUND ... Error! Bookmark not defined.
THEORIES ... Error! Bookmark not defined.
ROLE OF MUNICIPAL RULES IN IL ... Error! Bookmark not defined.
AUSTRALIAN POSITION ... Error! Bookmark not defined.
TECHNIQUES OF INCORPORATION ... Error! Bookmark not defined.
JUSTICIABILITY ... Error! Bookmark not defined.
RELEVANT CASES ... Error! Bookmark not defined.
WEEK 4: PERSONALITY AND RECOGNITION ... Error! Bookmark not defined.
STATEHOOD ... Error! Bookmark not defined.
PERSONALITY ... Error! Bookmark not defined.
SUBJECTS OF INTERNATIONAL LAW ... Error! Bookmark not defined.
RECOGNITION THEORIES ... Error! Bookmark not defined.
RECOGNITION OF STATES ... Error! Bookmark not defined.
RECOGNITION OF GOVERNMENTS ... Error! Bookmark not defined.
TYPES OF RECOGNITION ... Error! Bookmark not defined.
WITHDRAWAL OF RECOGNITION ... Error! Bookmark not defined.
LEGAL EFFECTS OF RECOGNITION ... Error! Bookmark not defined.
WEEK 5: JURISDICTION ... Error! Bookmark not defined.
BACKGROUND ... Error! Bookmark not defined.
TWO TYPES OF JURISDICTION ... Error! Bookmark not defined.
EXERCISING JURISDICTION ... Error! Bookmark not defined.
BASES OF JURISDICTION ... Error! Bookmark not defined.
CASES ON JURISDICTION ... Error! Bookmark not defined.
WEEK 6: IMMUNITIES ... Error! Bookmark not defined.
STATE IMMUNITY ... Error! Bookmark not defined.
SOVEREIGN IMMUNITY ... Error! Bookmark not defined.
IMMUNITY OF POLITICAL FIGURES ... Error! Bookmark not defined.
R v Bow St Magistrates ex parte Pinochet (2000) – UK.... Error! Bookmark not defined.
Arrest Warrant of 11 April (Democratic Republic of Congo v Belgium) (2002) ICJ ... Error! Bookmark not defined.
DIPLOMATIC IMMUNITY ... Error! Bookmark not defined.
CONSULAR IMMUNITY ... Error! Bookmark not defined.
FULL TEXT OF VCDR ... Error! Bookmark not defined.
WEEK 7: TREATIES ... Error! Bookmark not defined.
DEFINING A TREATY ... Error! Bookmark not defined.
FORMATION OF TREATIES ... Error! Bookmark not defined.
PERFORMANCE OF TREATIES ... Error! Bookmark not defined.
RESERVATIONS ... Error! Bookmark not defined.
INTERPRETATION OF TREATIES ... Error! Bookmark not defined.
INVALIDITY OF TREATIES ... Error! Bookmark not defined.
DENUNCIATION AND WITHDRAWAL ... Error! Bookmark not defined.
TERMINATION ... Error! Bookmark not defined.
CASES ON TREATIES ... Error! Bookmark not defined.
WEEK 8: STATE RESPONSIBILITY ... Error! Bookmark not defined.
SERIOUS BREACHES OF IL BY A STATE ... Error! Bookmark not defined.
ESTABLISHING A STATE’S INTERNATIONAL RESPONSIBILITY Error! Bookmark not defined.
1. Internationally wrongful act/omission: Art 12-15. ... Error! Bookmark not defined.
3. Defences (Circumstances precluding wrongfulness) ... Error! Bookmark not defined.
4. Invocation - Another state entitled to bring claim ... Error! Bookmark not defined.
5. Remedies/ Consequences of wrongdoing ... Error! Bookmark not defined.
WEEK 9: PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES ... Error! Bookmark not defined.
DISPUTES ... Error! Bookmark not defined.
METHODS OF PEACEFUL SETTLEMENT ... Error! Bookmark not defined.
ICJ ... Error! Bookmark not defined.
REMEDIES ... Error! Bookmark not defined.
LEGAL EFFECT OF ICJ JUDGEMENTS ... Error! Bookmark not defined.
REGIONAL ORGANISATIONS ... Error! Bookmark not defined.
WEEK 10: USE OF FORCE ... Error! Bookmark not defined.
PROHIBITION OF THE USE OF FORCE ... Error! Bookmark not defined.
CATEGORIES OF FORCE ... Error! Bookmark not defined.
Australian legal advice (essentially same as UK) ... Error! Bookmark not defined.
Contrary view… ... Error! Bookmark not defined.
WEEK 1: SOURCES
BACKGROUND
• Horizontal legal system
o 192 separate UN member nation states who have equal authority/power o No hierarchy or overarching authorities like federal/state division
o No upward authority given by the public and no downward production of law from parliament
• Nations are bound by international law through consent
o States have sovereignty to refuse to be bound by international law
• 400 years ago = origins of modern international law o Hugo Grotius – thesis relating to maritime law
o Treaty of Westphalia – creation of sovereign nation states
STEPS IN IMPLEMENTING PIL
• Negotiation
o Vote occurs where there needs to be a 2/3 majority for progression to adoption
• Adoption
o Text of the treaty is finalised
• Signature
o An act of good faith but it has no legal effect – carries legal effect when ratified
• Ratification
o Domestic act (of nation state) expressing consent to be bound
o Occurs through an instrument of ratification which is lodged with the relevant international body or organisation
o This does NOT bring the treaty into Australian domestic law o NOW the ratifying nation state is bound
o NOTE: if a State was not involved in the negotiation/adoption/signature of a treaty then it can only ‘accede’ – accession has the same legal effect but differs in this one regard
• Implementation
o Transforms the treaty into a domestic piece of legislation
o NOW individuals within the nation state and not just the NS itself are bound o NOTE: some nations do not need this stage as ratification automatically
implements the treaty
SOURCES: ICJ Statute
• Most authoritative and complete statement of the sources is in s 38(1) Statute of the ICJ o 38(1)(a) gives ICJ authority to resolve disputes of international conventions
(eg. Treaties) which are expressly recognised (ie. ratified) by contesting states o 38(1)(b) resolve disputes surrounding international custom
o 38(1)(c) resolve disputes of general principles of law recognised by nations o 38(1)(d) judicial decisions and teachings of highly qualified ‘publicists’ may be
used as a subsidiary means of determining rules of law Statute of the International Court of Justice - Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
• Conventions/custom/principles are generally seen as the exclusive law creating processes and judicial decisions/academic writing regard as law-determining agencies
• NOTE: can never separate these sources – all intertwined and carry equal authority/force except for subsidiary decisions/teachings
• SS Lotus (France v Turkey) (1927) – State criminal jurisdiction (establishing a customary rule) FACTS:
• Collision b/w French and Turkish vessels on high seas caused by negligent navigation French. 8 Turkish killed
• Turkey asserted jurisdiction over French master of the watch (resp for negligent nav)
• Convention Lausanne 1923: Art 16 – “all questions of
jurisdiction b/w Turkey and other contracting powers, decided in accordance IL”
• France asserting customary law exclusive juris because ship was flying its flag
• HELD:
• Turkey did not violate IL by exercising jurisdiction over the French master
• Custom established law if no treaty - there was no such customary rule entitling France to exclusive jurisdiction
• Teachings of publicists are insufficient alone to establish custom and the cases cited as precedent did not relate to situations where ships had two different flags
• State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so
• Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of IL permitting it to do so. In these instances, States have a wide discretion, which is only limited by the prohibitive rules of IL
• Changed by Art 11 of High Seas Convention = only the flag state or the state of which the alleged offender was a national had
jurisdiction over sailors regarding incidents occurring in high seas
• Asylum Case (Columbia v Peru) (1950) – see below •
• North Sea Continental Shelf cases (Germany v Denmark) (Germany v Netherlands) (1969) – see below
SOURCES: Customary International Law
• Custom which ‘crystallises’ around a particular norm of conduct
o Declared to be custom by international courts such as the ICJ and ICC
o Must be performing conduct knowing that this conduct carries a legal obligation ELEMENTS
1) General/state practise (objective)
§ Includes administrative acts, legislation, court decisions and intl. activities
§ Must be a constant and uniform practise (Asylum; Anglo Norwegian Fisheries)
§ No need for perfect or ‘absolutely rigorous’ consistency (Nicaragua v USA)
• May be divergence as long as it does not affect overall consistency
§ Inaction/failure to act may only constitute state customary practise if it is based on a conscious duty to abstain (Lotus – decision criticised)
§ Look at the circumstances surrounding the practise
• Asylum = no CIL as no uniformity in determining criminal/political conduct
• AN Fish = no CIL as no uniformity in USA’s way of measuring territorial sea
• North Sea Shelf = no CIL as no uniformity in measuring TS in Europe 2) Sense of legal obligation amongst states performing the practise (subjective/mental
element – opinio juris)
§ State performed the practise because it believed it was legally obliged to do so (Nicaragua; Germany v Italy; North Sea)
• High threshold to prove this (Diallo)
• Not driven by economic/political factors but a legal mental element
§ Acquiescence by states to a customary practise makes it likely CIL law (Gulf of Maine)
• Actual objection must occur to break the legality of a custom – see below
§ NOTE: tends to be less important where state practise is extensive – because overwhelming state practice creates rebuttable presumption of custom
PERSISTENT OBJECTOR RULE
• Nations which oppose state customary practise from its inception are not bound by it (Anglo Norwegian Fisheries; Asylum)
o Must be a conscious and consistent opposition
§ Can be through conscious inaction OR contrary action (Lotus)
• BUT cannot be non-conscious inaction STATE PRACTISE
• What constitutes ‘enough’ states to create customary law
• North Sea Continental Shelf cases (Germany v Denmark) (Germany v Netherlands) (1969) – establishing a custom (also see SS Lotus)
FACTS:
• Delimitation of continental shelf in North Sea where all 3 countries have coasts and therefore rights over the continental shelf
• All were trying to maximize their ownership due to valuable natural resources
• Couldn’t determine boundaries
• Went to ICJ
• Denmark/Netherlands were advocating the ‘equidistant’
rule: to follow land boundary into sea perpendicular from coast
• Argued rule of custom as set out in general terms of convention: 1958 Geneva Convention of the Continental Shelf
• UK was objected to Neth’s straight baseline system, arguing that it was in violation of customary law (Court held N was P objector)
• HELD:
• Provisions of a treaty can become rules of custom, but no presumption so - not established in this case
• Treaty provision may:
a) declare custom at time adopted
b) crystallize custom – states agree to adopt provision during the drafting process
c) come to be accepted/ adopted as custom after adoption
•
1) Must be ‘fundamentally norm-creating character’
- Can’t be vague: clear rule/clear terms
2) Adopted in widespread or representative way - here Germany had not ratified
- consensus weakened if some states don’t accept/reject - Must include states who are specially affected
3) For customs emerging short period time: practice must be very extensive and virtually uniform
- must include states it specifically affects
- must show general recognition of rule/oblg involved - Not suff. that states to the case have common view of law for it to be custom
• State practice - relative importance of states inaugurating change, not just number of states, relevant
• UK & US 2 maritime powers
• Inaugurated development, their initiative treated as authoritative from outset
• Opinio juris – frequency or habitual character of the acts is insufficient. Must be motivated by legal duty.
• distinguish from intl comity (not motivated by duty but still est by consistent practice of states) e.g. saluting passing ship w/ flag
• Can be difficult to ascertain as acceptance/adoption not clear
• One judge suggested opinion juris presumed to exist if state practice proven (not consensus)
Persistent objection of Netherlands
• Court held there was no rule of CIL that prohibited straight baselines and if there was, Neth was a persistent objector to this rule
• NOTE: this was same as Norway in Anglo-Norwegian case
• In this case, the court held that the fact that Norway’s consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the
Norwegian system to be “contrary to international law”
• REGIONAL CUSTOMARY LAW
• Asylum Case (Columbia v Peru) (1950) – “unilateral definitive qualification”
• Columbia granted asylum to head of unsuccessful revolutionary group in Peru
• Peru refused Columbia’s request to let de la Torre leave Peru
• Columbia invoked
“American intl law in general” to allow Columbia to qualify offence as political
• HELD:
• PCIJ held no such regional customary norm 1) must have unilateral and definitive qualification
2) Must be exercised as a duty by the states not merely for political convenience
- facts contain too much uncertainty, contradiction, fluctuation and discrepancy in exercise of diplomatic asylum
- inconsistency in official views, as well as conventions (some ratify, some objected)
•
• Must find “constant and uniform usage, accepted as law”
• Can have regional custom but bar very high
• All states in the area have to accept the rule ! strong requirement of uniform practice
• R (app. Al-Saadoon) v Sec Defence (2010)
• Nicaragua (merits) case (1986) –relaxed requirements for establishing customary norms
• ICJ considered requirements for establishing customary norms - role of UN Gen Assembly resolutions
• Nicaragua claimed US used forced unlawfully in Nicaragua – such as by laying mines in Nicaraguan territory and supporting Rebels
• US argued ICJ didn’t have juris: basis that its declaration accepting
jurisdiction had exception in relation to disputes concerning multilateral treaties
• Key issue: whether customary rules applied in relations between 2 states when rules covering same ground also existed in treaties b/w parties
•
• HELD:
• Norms re: use of force were customary law which US violated
• Both treaty and customary law exist together and interact however still separate
• Added to Continental shelf requirements for custom:
• Must have state practice – common view of what the law is not be sufficient
• Practice need not be perfect – can find instances of apparent non-observance which won’t detract from normative strength of these rules
• EMPHASIS – on rule of UN Gen Ass Resolutions and customs and global importance in practice and opinion juris
•
• Anglo-Norwegian Fisheries case – see below
SOURCES: Treaties
• AKA conventions, agreements, pacts, charters, statutes, declarations and covenants
• Mainly governed by 1969 Vienna Convention on the Law of Treaties
• Creation of written agreements whereby the participating states legally bind themselves to act in a particular way
o Require express consent from all parties – therefore seen as superior to custom o Set out series of propositions which are binding on all party states
o Codify old customs and incorporate new rules
§ Mix of these two sources in treaties varies with subject matter
• EG: HR treaties often codify custom whereas Trade treaties codify new rules
• States that do not sign and ratify are not bound by a treaty (North Sea Shelf) o BUT they are if a treaty provision reaffirms customary law
§ As the customary law is binding with or without the treaty
• Even if a treaty provision and customary law have exactly the same content, they still exist and operate separately (Nicaragua)
SOURCES: General Principles of Law
• Where there is no law on a topic/point and a judge deduces a relevant rule by analogy from other international legal principles
o Courts retain total discretion to recognise and apply these general principles in cases (Barcelona Traction)
o Cover gaps in international law – often align with ‘natural law’
• EXAMPLES
o General principle that violating an agreement/engagement creates on obligation to make reparation to the violated party (Chorzow Factory)
o Private rights acquired under existing law do not cease with a change of sovereignty (German settlers in Poland)
o Existence of res judicata as a general principle – a Court decision will be final and binding as it ensures stability and finality of litigation and prevents over-litigation (Right of Passage; Administrative Tribunal; Genocide Convention)
o Existence of estoppel as a general principle – a party who has acquiesced in a situation cannot then retract this (Temple; ELSI; Cameroon v Nigeria)
§ Challenged and overruled in Serbian Loans – debatable law
o Existence of damnum emergens and lucrum cessans as general principles (AMCO v Indonesia)
o Principle of good faith – underpins observance of international law (Nuclear Tests;
§ Only applicable for fulfilment of existing obligations (Cameroon v Nigeria) o Equitable principles – used to mitigate certain inequities and not really to shape new
international law – more to justify decisions/interpretations of law (Diversion of Water from the Meuse; North Sea Shelf; Rann of Kutch Arbitration; Libya/Malta)
§ Highly controversial source of law (Tunisia/Libya Continental Shelf)
• ARA Libertad (Argentina v Ghana) (2012) - Estoppel
• ARA Libertad Argentinian warship (old, no
military worth) called into port in Timor in Ghana, following negotiations w/Ghana
• G crt issue order vessel detained and seized to enforce judgment of NY court
- A defaulted $$$ bonds early 2000s (Gov bankrupt), entered extensive debt restructuring deals. Original bondholders trying to recoup owed incl NY, UK and AUS courts.
- A. govt limited assets that are not sovereign immune
• Sought to enforce US crt order to obtain warship to get money owed
• Art 32, UN Convention on Law of the Sea – Warships have immunity in territorial seas of other states (‘sovereign-immune’)
- Strictly, warship in port (which convention doesn’t specifically mention)
• Definite custom - warships immunity in port
• HELD:
• Tribunal ordered release of the warship
• Immunity to warships in foreign port recognised in CIL
•
• However, some judges did not agree:
• UN Convention on the Law of the Sea – did not have juris in this case
• However agreed on the outcome because Ghana was estopped from denying the immunity of the vessel
• para 60 – Estoppel accepted principle Intl law, draw specifically fr. English common law to explain
- basis was exchange of notes btwn A and G - G accepted vessel would have imm
• Clear case of procedural estoppel: reliance by A to its detriment, G couldn’t oppose
proceedings
• Case concerning Documents and Data (East Timor v Australia) (2013) – Legal Professional privilege
• Protects confidentially of comm b/w client and lawyer (protects statements and materials)
• 2 sets proceedings:
1) East Timor argues evidence Aus spies monitored treaty negotiations – treaty invalid 2) AG authorised seizure by ASIO of docs from East Timor’s Aus lawyer
• Argued 2) is Aus trying to gain tactical advantage for case 1) by gathering information
• HELD: provisional measures order – interlocutory relief (NO DETAILED REASONS FOR CONCLUSION)
• Content of seized material not used to disadvantage of seized material
• Must keep under seal
• Aus must not interfere in anyway between Timor and its legal advisors
•
• Hints that confidentiality between lawyer and client exists
• Aus argued subject to exceptions – where
communication about crime, fraud or national security
• Crt doesn’t deal with in detail, para27 says ‘plausible’ that state engaged in peaceful settlement of dispute with another state through arbitration, expect to undertake without interference by other party
• Follows that state has plausible right to protection of communication with counsel
