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Table of Contents
I. General Scaffolds ... 3
Claim at the Domestic Level ... 3
Claim at the International Level ... 3
II. Sources of International Law ... 4
Article 38 of the Statute of the Court of International Justice ... 4
(a) Treaties ... 4
(b) Customary Law ... 4
(c) General Principles ... 6
(d) Judicial Decisions and Publications ... 6
Other Material Sources ... 6
III. Treaties ... 7
Is there a treaty? ... 7
Is the state a party to the treaty? ... 7
Was the consent valid? ... 8
Entry into Force ... 9
Reservations ... 9
Legal Effect ... 11
Interpretation ... 11
Termination and Suspension ... 12
Amendments ... 14
IV. International Law and Domestic Law ... 15
Treaty Transformation ... 15
Custom Transformation ... 15
External Affairs Power ... 15
Using International Law to Interpret Domestic Law ... 15
Even if not incorporated… ... 16
Theories of Interaction ... 16
V. Personality, Statehood & Self-Determination ... 17
International Legal Personality ... 17
Statehood ... 17
Self-Determination ... 17
Recognition ... 18
VI. Title to Territory ... 19
Island of Palmas Qualifications ... 19
Acquisition ... 19
Competing Claim ... 21
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Limitations on Claim ... 21
Maritime Territory ... 21
VII. State Jurisdiction ... 22
Grounds for Assertion of Jurisdiction in Criminal Proceedings ... 22
Extradition ... 23
VIII. Immunity from Jurisdiction... 24
Immunity under Customary International Law ... 24
Immunity under Australian statute ... 32
IX. State Responsibility ... 35
Invocation ... 35
Elements Introduction ... 35
Breach ... 36
Attribution ... 37
Circumstances Precluding Wrongfulness ... 39
Reparation ... 40
Diplomatic Protection: Introduction ... 41
Diplomatic Protection: Elements ... 41
Diplomatic Protection: Admissibility ... 42
Diplomatic Protection: Reparation ... 43
X. Use of Force ... 44
Breach ... 44
Attribution ... 45
Individual Self-Defence ... 45
Collective Self-Defence ... 48
Failure to find lawful use of force ... 48
XI. Implementation, Enforcement, Accountability ... 49
Appendices ... 50
Appendix A. VCLT and Customary Law ... 50
Appendix B. Treaty Law for State Succession ... 52
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VII. State Jurisdiction
If jurisdiction is clear: X will likely have jurisdiction based on [ground], as [reason].
If jurisdiction is contentious:
1.
[State] can only initiate civil or criminal proceedings against X if it has jurisdiction. In general, states only have an obligation to avoid overstepping the limits of their
jurisdiction – SS Lotus [19]. However, states might also have to show a positive basis of the jurisdiction, especially if challenged by another state alleging a greater jurisdiction – Arrest Warrant [78]. [Civil easy, what are the most likely grounds for criminal?]
2.
Who are the parties? What is their nationality? What domestic/international law has been violated? Where did these acts take place?
3.
Civil proceedings? Virtually unlimited civil jurisdiction provided there is some nexus between the state and the subject matter of the cause of action (Brownlie’s Principles of International Law, 456):
a. Presence within the jurisdiction at the time of the writ b. Assets within the jurisdiction, subject matter
c. Nationality or domicile
4.
Criminal proceedings? Assess grounds for the assertion of jurisdiction. “Most likely are”
5.
Consider whether there is a duty to extradite.
Grounds for Assertion of Jurisdiction in Criminal Proceedings
Territoriality
A state has jurisdiction over crimes committed on its territory – even by non-nationals.
Did X commit a crime on [state] territory?
• If the crime occurred in multiple territories?
o Both states have concurrent jurisdiction – Enrica Lexie [366].
• What if the crime occurred broad, but had an extraterritorial effect within the state?
(e.g., the only part of the crime that occurred on the territory was an economic impact) o Could rely on the ‘effects doctrine’ but this is controversial – Al-Skeini [150].
As such, it is probably a weak ground for jurisdiction.
• NB: a foreign embassy is not part of the foreign territory – R v Turnbull
Nationality
A state has jurisdiction over crimes committed by its nationals – wherever committed.
• Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state – Nottebohm [23].
o e.g., Ignoring changes in nationality
o However, there must be a ‘genuine link’ – Nottebohm [26].
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Passive Personality
A state may have jurisdiction over crimes committed against its nationals – wherever committed.
• Unsettled area of law. In SS Lotus, the principle was exercised in effect, but the principle was also expressly rejected by dissenting Judge Moore [89-94].
• Potentially only available for very serious crimes (deaths in SS Lotus).
Protective Principle
A state may have jurisdiction over crimes that threaten or injure their national interest or security – even when committed outside the state by non-nationals.
• Limited to the vital interests of the state
o There are no criteria for determining this, so assess the gravity of the crime o Treason against the queen – Joyce v DPP
o Nazi atrocities ‘very deeply’ concerned vital interests – Eichmann
Universality
A state may have jurisdiction over a crime to which they have no link, but the crime is so serious (and may go unpunished) that asserting jurisdiction is justified.
• There is a general requirement is to have custody of the offender. Jurisdiction without custody is controversial – Arrest Warrant [55-7]
• What crimes are included?
o ‘An attack upon the international order’ – Arrest Warrant [81]
§ Piracy (attacks on vessels on high seas for private ends);
§ slavery;
§ genocide (acts designed to destroy a particular group of people);
§ war crimes (such as attacks on civilians);
§ crimes against humanity;
§ torture (state inflicting severe pain/suffering to obtain information) – Pinochet (No 3).
o Assess on a case-by-case basis
Extradition
A. States can sign treaties obliging them to either prosecute or extradite those who commit serious international crimes (such as the Torture Convention).
o Common conditions for extradition:
§ Double criminality
§ Minimum penalty
§ Speciality
§ Absence of ground for refusal such as torture, death penalty etc B. There is no duty to extradite under customary law.
C. Illegally obtained custody = unsettled area of international law – Mobi v R [496-8]
