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http://treaties.un.org/
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Then search under title search the name of the treaty
Latin doctrines
Res iudicata
Equity infra legem
Ex aequo et bono
LECTURE 1 INTRODUCTION
I The scope of public international law
PIL is principally concerned with the relationship between sovereign
states (as opposed to federated states).
Public law governs the powers and responsibilities of the state
i.e. administrative law, constitutional law.
o Public international law primarily to do with the
relationship between states.
Private law governs the behaviour of private citizens including
private corporations i.e. contract, torts etc.
o Private international law deals with situations where the
laws of more than one jurisdiction or country conflict in a
private situation i.e. between two private corps (often
referred to as conflict of laws). I.e. French company sells
machinery to Australian company and the contract doesnt
specify the jurisdiction that governs the contract.
Sovereign states Eg: Australia, United Kingdom, United States
o Nearly all sovereign states are members of the United
Nations (current membership = 193)
o Nation can be used to demark a group of people with
shared heritage and culture and sovereign states often
house more than one national state.
o Space, government, capacity to enter into relations with
other states, people.
Federated states form parts of federations. These do not have
legal personality in public international law. Eg: New South Wales,
Virginia (US), Schleswig-Holstein (Germany) i.e. QLD cant enter
into a treaty with Texas as they are only federated states.
II Personality in international law
Certain non-state entities have legal personality (i.e. rights and
responsibilities) in PIL
o Eg: United Nations, European Union, WTO
Increasingly, individuals and corporations can enjoy rights and
hold responsibilities in international law
o Generally individuals and corporations do not have
personality in IL however this has started to change i.e. if A
The end of WWI saw two vital developments; 1919 LON and in
1928 signing of the general treaty. Both failed to stem the growth
of WWII. These laid the foundations for the UN established at the
end of WWII.
III United Nations
UNCharter art 1
The Purposes of the United Nations are:
1. To maintain international peace and security,
and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace;
2. 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;
3. To achieve international co-operation in solving international problems of
an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of
these common ends.
v2
UN Charter art 51
Nothing
in theshall
present
Charter
shall
impair the relations
inherent right
or collective
self- the
All
Members
refrain
in their
international
from of
theindividual
threat or use
of force against
defence
if
an
armed
attack
occurs
against
a
Member
of
the
United
Nations
until
the
Security
territorial integrity or political independence of any state, or in any other manner inconsistent with
Council
has taken
necessary to maintain international peace and security.
the
Purposes
of themeasures
United Nations.
internationalconventions,whethergeneralorparticular,establishingrulesexpresslyrecognizedbythecontesting
states;
b.
internationalcustom,asevidenceofageneralpracticeacceptedaslaw;
c.
thegeneralprinciplesoflawrecognizedbycivilizednations;
Conventions = treaties
Technically all this does is instruct the ICJ on what rules it should
apply when deciding disputes that appear before it
Since it specifies that the ICJ is supposed to decide those
disputes in accordance with IL then it seems reasonable to
interpret the listed sources as together constituting IL. These
sources are
o International Conventions - Treaties
o International Custom
o General Principles of law recognised by civilised nations
o Certain judicial decisions and the teachings of the most
highly qualified publicists (recognised experts in IL)
No clear hierarchy among these 4 sources
2.2 Treaties as sources of IL
Treaties as a source of law
A treaty is analogous to a contract between states. Convention is
the same as a treaty
Just as contracts help us reveal the rights and responsibilities of
those who are party to that contract as well as to a lesser extent
the rights and responsibilities of non-parties to the contract, so
too do treaties
There is no clear division between what is a general and what is a
particular treaty
Treaties can be described as:
General
StatuteoftheICJ,1945,art38(1)
TheCourt,whosefunctionistodecideinaccordancewithinternationallawsuchdisputesasaresubmittedtoit,
shallapply:
a.
...;
b.
internationalcustom,asevidenceofageneralpracticeacceptedaslaw;
c.
...;
...;
b.
...;
a.
...;
b.
...;
c.
...;
The Vienna Convention does not govern all treaties, as not all
states are party to it.
Oral agreements arent governed by the convention, but that
doesnt mean that oral agreements dont constitute treaty. They
are merely governed by customary IL, not VC.
o Can State C still enjoy the free trade agreement? It can unless
the original free trade agreement says otherwise. State C can
continue to claim the right to ship as many goods as it likes to
State B
o Would have been more sensible for States A & B if the original
treaty had given them the right to sever from the original treaty.
o The EU treaty now explicitly provides that member states of the
EU are entitled to withdraw at any time.
V Reservations
o States can become party to a treaty and ratify it but have a
reservation and exclude it from their terms of the treaty.
o The UN treaty collection gives you a list of all the reservations
that each party has to the treaty. Just click on the country.
o Interpretive declaration reservation that outlines the states
interpretation of the terms of the treaty.
o Whether other parties to a treaty are obliged to accept a
reservation?
o Could other parties say stick to the treaty or walk away
from the treaty altogether? No, as a result of the ICJ
decision on the convention on genocide.
US wanted to get rid of prosecution of individuals for
incitement of genocide. ICJ said necessary to
consider what contracting parties were tyring to
achieve. A treaty that would require each party to
adhere to every aspect of the treaty (i.e. free trade
agreement) or to draw up a multilateral treaty where
everyone accepts the major premise (genocide is
wrong and should not be practiced) even if the states
arent expected to accept every other term of the
treaty.
Merely cannot have a reservation that sacrifices the
very object of the treaty.
UK v Iceland
Fishing rights in the North Atlantic (the cod wars)
In 1958 Iceland extended its exclusive fisheries zone from 4-12
nautical miles which led to a series of confrontations between
Iceland and Uk vessels.
In 1961 the UK agreed to accept the new limit, agreeing to settle
future disputes in the ICJ. However in 1971 Iceland announced its
intention to further extend its exclusive fishing zone from 12 50
miles.
Icelands justification for extending its zone was that fishing
technology and practices had come a long way and Iceland
(dependent on fishing) needed to monopolize fishing on a much
wider expanse of sea.
Iceland sought to rely on rebus sic stantibus that continuation of
treaty is reliant on things staying the same and with a material
change in circumstances the former treaty should be concluded.
o Changes must be fundamental and unforeseen also
meeting the circumstances that have changed must have
constituted an essential basis of the consent of the states
and the effect of the change must have radically
o quantitative
There need not be a large number, but there must be
more than a mere association of individuals.
o subjective
Does the group wish to be identified as a people?
o institutions
Do there exist means of expressing common features
and the will to be identified as a people?
Political parties, cultural associations, etc.
Just because all these attributes are present it does not mean the
group is entitled to statehood.
V External self-determination
According to the Supreme Court of Canada (Reference re
Secession of Quebec), a people may enjoy a right to statehood
where:
o colonised by an imperial power;
Quebecois, at the time of their defeat by Britain,
were themselves European colonisers of North
America
o Quebecois common feature is they all speak French, there
is a large number, they aspire to national recognition with
an institution set up to reach that goal.
According to the SC that isnt enough to give them a
right in INT law to unilaterally secede from the
dominion of Canada.
SC determined right in INT law to external self determination is
an entitlement in only three circumstances;
o Where the people in question have colonial status i.e. the
French settlors themselves were colonisers hence were not
indigenous
o subjected to alien subjugation, domination or exploitation
outside of a colonial context, or
o denied their rights to internal self-determination
remedial secession remedy to the states failure to
grant the people in question the right to internal sd
i.e. SC said the Quebecois have not been denied
access to govt.
Reparation
Art 2(4)
DASR Art 23
DASR Art 24
DASR Art 25
When you visit a state are you entitled to the same level of
protection as that given to local people or are you only entitled to
some minimal standard of protection?
Two schools of thought in relation to the standard of treatment
o National treatment standard
that have been prepared by the ILC but which have never yet
become a treaty. These are the draft articles relating to
diplomatic protection (DADP)
o Somewhat more recent that the DASR having been adopted
by ILC in 2006
Art 1 of the DADP sets out the basic traditional rules on
nationality of claims this rule says that a state can only bring a
claim on behalf of an individual or corporation if that individual is
a national of that state or the corporation is registered in that
state (referred to in art 3) (see below for provisions)
Nationality Rule
DADP art 1: Definition and scope
For the purposes of the present draft articles, diplomatic protection
consists of the invocation by a State, through diplomatic action or
other means of peaceful settlement, of the responsibility of another
State for an injury caused by an internationally wrongful act of that
State to a natural or legal person that is a national of the former
State with a view to the implementation of such responsibility.
DADP art 3: Protection by the State of nationality
1.
The State entitled to exercise diplomatic protection is the
State of nationality.
2.
Notwithstanding paragraph 1, diplomatic protection may be
exercised by a State in respect of a person that is not its national in
accordance with draft article 8.
Note however that DADP art 3(2) and its reference to DADP art 8
This purports to broaden out the rule so as to encompass
stateless people and refugees provided those stateless people or
refugees are lawfully and habitually resident in the state that
seeks to afford them diplomatic protection
Hall does not see art 8 as reflective of CIL
3.
Paragraph 2 does not apply in respect of an injury caused by
an internationally wrongful act of the State of nationality of the
refugee.
Determining nationality
Only thing that can be said with certainty is that a state can bring
a claim on behalf of a national of that state
Who is a national is always a question for domestic law. Many
nations traditionally tended towards emphasizing blood lineage
when it comes to determining nationality primarily determined
by that of your parentage or remote ancestry. That can result in
some people being permanently excluded from nationality
Countries that focus on parentage or ancestry are said to follow
the principle of jus sanguinis (right of blood)
o Germany is classic example of state that follows this
Jus soli (right of the soil)
o Nationality is determined largely by place of birth
o Second generation immigrants can be fully integrated into
the host nation
o Historically included France and UK
More recently it is based on a combination of factors including
POB as well as ancestry
But NB European Convention on Nationality 1997 (Council of
Europe)
If you are not born in UK and have no British Ancestry you can
become a British citizen after living in the UK for 5 years. But
Germany is 8 years and Belgium is only 3. Then grafted onto all
these national rules relating to citizenship the EU has no created
concept of EU citizenship
o Everyone who is a national of an EU member state is
automatically also an EU citizen and everyone who is not a
national of an EU state is by definition excluded from EU
citizenship
Outside of the EU can be more complex. What happens if State A
makes claim on behalf of A1 (one of its nationals) whom state A
considers to be a national of State A, and the claim is brought
against state B. Is State B at liberty to refuse to recognise person
A1 as a national of state A?
o Answer generally speaking is no - Hague Convention on
Conflict of Nationality Laws, 1937
Hague Convention on Conflict of Nationality Laws, 1937
o Article 1
It is for each State to determine under its own law who are
its nationals. This law shall be recognised by other States in
so far as it is consistent with international conventions,
international custom, and the principles of law generally
recognised with regard to nationality.
1905
1939
1943
1951
1955
Nationality principle
Active nationality principle:
Postulates that states are free to exercise criminal jurisdiction
over what their nationals do even when their nationals are
overseas and all elements of the offence including effects occur
outside of the state in question
o E.g. s 272.8 of Criminal Code: unlawful for Australians to
have sex with children even outside Aus
Active nationality principle
o considers the nationality of the criminal
o location of the crime is irrelevant
Passive nationality principle:
o considers the nationality of the victim
o not accepted by most states
o Brazil is a state that uses this principle
o Problem with this principle is that it makes it far too easy
for anyone to unintentionally infringe another states laws
Protective principle
In some ways this is similar to objective territorial principle
considers where the effects of criminal act were felt
Protective principle relates only to the protection of the state.
Harm doesnt have to be felt within the territory of the state in
question but the actual or threatened injury must be directed at
the states security interests
o E.g. If in Aus I counterfeit US currency I can be charged for
doing so next time I visit US even if I use the currency
elsewhere
Proposes that a state can exercise criminal jurisdiction in relation
to acts that threaten or injure that state, regardless of where
those acts take place and then nationaliy of the perpetrator
o Eichmann case
Israel kidnapped E, a former Nazi, and smuggled him
out of Argentina to stand trial in Israel for his role in
the Holocaust
Israel claimed the right to do even though E was not
an Israeli national and his actions had occurred
outside Israel (which anyway did not exist at the time
of the Holocaust)
District Court of Jerusalem took view that there was a
special connection between Israel and crimes
committed by E since people of Israel constituted the
target and victim of most of his crimes
o NB: Conduct must generally be regarded as criminal
by community of states
Universality principle
o NB:
Consular immunity
Their immunities set out in the Vienna Convention on Consular
Relations, 1963
Consuls do not enjoy immunity form the jurisdiction of local
courts and agencies except in matters arising in the performance
of his or her official functions
Partial immunity against criminal jurisdiction: can only be
arrested or detained in relation to a grave crime and pursuant
to a decision by a competent judicial authority
Heads of state
Immunity enjoyed by these people is absolute while they are in
office but after they cease to hold office it applies only ratione
materiae in relation to what they head of state or other person
did as part of his or her official functions while in office e.g. if
head of state were to sexually abuse hotel chamber maid while
on official visit to foreign state, then the head of state could not
be prosecuted in that state while he is still head of state. But
once he ceases to be head of state then the matter is different
Simple fact that head of state did something ultra vires while
head of state that isnt enough to remove immunity in relation to
head of states actions
o This is because the process of determining if the head of
states actions were ultra vires would in itself involve a
domestic court impugning the validity in the domestic laws
of another state of that states legislative executive and
This shows the pitfall found in 1947 peace treaties has now been
avoided.
UN Charter
NB: art 2(4) covers threats, as well as the actual use of force.
o it can be breached even when no actual force is used.
Force entails violence against people or property
o economic sanctions, boycotts etc do not suffice
Use of force (art 2(4)) is not the same as armed attack (art 51)
o State A might breach art 2(4) by using force against State
B that is so slight that State B gains no entitlement to
retaliate with defensive force under art 51.
o Examples of moderate use of force include minesweeping
in another states territorial waters (Corfu Channel (Albania
v UK) case), the 1976 Entebbe raid, or even breaking into a
diplomatic bag.
Is there some kind of minimum threshold in terms of the amount
of force that must be used in order for 2(4) to be invoked. A
threat or act can constitute a threat or use of force without be an
attack sufficient to allow a state to retaliate in self-defence.
Force may extend to acts historically regarded as falling short
of war
NB: remember that acts or threats of force, though prima facie
contrary to art 2(4), might nevertheless be defensible by means
of art 51 (self defence).
Probably it is better for a state that has used small amounts of
force to accept that it has breached art 2(4) but then to go on to
justify the breach on the basis of art 51, as opposed to arguing
that there was no breach of art 2(4) in the first place.
Providing weapons and other materiel of war to an insurgent
movement in another state constitutes a breach of art 2(4), but
probably merely funding the insurgent movement does not.
Nicaragua, the minimum threshold was not satisfied however in
other cases the laying of land mines can satisfy that threshold.
Corfu Channel Incident case - brought against UK by Albania, and
it was decided by the ICJ in 1949. British war ships has struck
mines laid by Albania in the channel that separates Corfu from
Albania. Subsequently the royal navy conducting mine sweeping
exercise in this channel. Albania complained and the Uk claimed
the right of safe passage and self-defence and a more
preliminary point that there hadnt been a breach of art2(4) in
the first place.
o This argument was rejected as if mine sweeping constitutes
the use of force then pretty much anything can.
1976 Intebi Case by Israel in June 1976 an air France flight was
hijacked while on its way to Paris. The hijackers were from a
Palestinian organisation. The hijackers diverted the flight to Libya
then to Intebi INT airport in Uganda. There the crew and
passengers were held hostage with the hijackers demanding the
release of Palestinian prisoners from Israel. On July 4th, Israeli
commandos stormed where the hostages were being held. 45
ugandan soldiers were killed and 3 hostages. The raid breached
Summary
Art 2(4) is arguably breached even though (evidence supports a
restrictive reading i.e. heavily restricts states use of military
force):
o the level of violence used or threatened is relatively minor
(eg minesweeping or a helicopter raid to free
hostages)
o a states territorial integrity or political independence is not
in jeopardy
between the victim state and the states coming to its aid?
None.
7. By what means are states to determine whether the Security
Council has taken necessary measures?
a. The role of the SC III Who has the right of self-defence?
Art 51 applies directly only to UN members
o NB the reference to armed attacks on UN members
However, a right to self defence surely exists in customary
international law
o NB the reference to an inherent right, right of states
regardless of UN membership
Does the right arise only in the face of an armed attack?
Probably an armed attack must have occurred
o NB the contrary view that the right to self defence arises in
the absence of an armed attack, eg:
in the face of other threats (economic sanctions, etc)
in light of some possible future attack
States have a right to unilateral self-defence
IV What is an armed attack?
When determining whether an incident constitutes an armed
attack sufficient to give rise to a right to self defence, consider:
1. What point marks the start of an armed attack?
o Dinstein says the attack must have been initiated. Only
then can it be intercepted, interception being
permissible, while pre-emptive strikes are not.
o Pre-emptive is only permissible once the attack has
been initiated.
o i.e. Japanese attack against pearl harbour, dinstein says
when the Japanese fleet started sailing towards Hawaii,
the legal rubicon being when the party embarks on an
irreversible course of action.
o Distinction lies between interceptive (implies a state is
more than merely threatened) and pre-emptive
2. How much violence is needed for an incident to constitute an
armed attack?
o Something less than an armed attack may justify
lawful countermeasures.
o Can minor incidents give rise?
o Does not necessarily start when the first shot is fired,
rather when the course of action is taken that is
irreversible.
o What type and level of violence?
o Standard jurisdictional rights can be invoked if there
hasnt been an armed attack but the agent of a state
has acted outside of their powers
3. Who is the perpetrator of the incident?
o Which state can be held liable?
Comparison of Courts
art 3
art 33