Public International Law Summary 2001 Creation and Ascertainment of International Law Sources of International Law -intl law

governs actions between states and represents the laws that they have voluntarily assented to through conventions, treaties or by usages generally accepted as expressing principles of law established in order to regulate the relations between coexisting legal communities with a view to the achievement of common aims Statute of the International Court of Justice Article 38: Court shall apply: a) international conventions expressing rules accepted by states b) international custom as evidence of a general practice accepted as law c) general principles of law recognized by civilized nations d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of the rules of law 2. The provision shall not prejudice the power of the Court todecide a case ex aequo et bono if the parties agree thereto -Article 59decisions have no binding force except for the parties to the dispute -Article 38(1)in order for the court to accept any rule of intl law it must fall under either a, b or c -38(1)(d) judicial interpretations and opinions of scholars are evidence by which the rules of intl law are determined -the rules that emanate from the law creating processes in Art. 38(1) are hard law there is a second category of law known as soft law that is not binding eg: Helsinki Accordsthis soft law is a general code of conduct for states and though not binding is persuasive and can often lead to the formation of binding international customs Conventions: involve multiple states Treaties: generally only involve a few (1,2,3) Rules of Custom are created by: 1) actual state practice-must be consistent, general and virtually uniformly adopted 2) Opinio jurislegal obligations where a state has acceded in a practice for a substantial period of time without protest 3) General principles of law recognized by civilized nations -ICJ does not follow stare decisis but they use judicial decisions for comparitive analysis to interpret treaties, identify state customs and judicial opinions -if the parties have agreed to a set of rules to go to an arbitrator, such an arbitrator can decide the rules based upon principles of justice and fairness -where there is a treaty, it governs -where there is none, custom governs -where there is one treaty state and one non treaty state, custom governs English Channel Arbitration(UK v. France) (1977) PRINCIPLE: Where there is a treaty that has been changed over time by customs, that treaty can be superceded by custom if both disputing parties have adhered to the custom

-however, this case did not allow that to happen -the treaty in question was the Continental Shelf Convention of 1958 and the Court found that there was nothing to show that it had been superceded -treaties often include cofifications of customdoes the treaty or the custom supercede? Military Activities In and Against Nicaragua [1986] ICJ PRINCIPLE: operation of treaty process does not deprive international custom of its separate applicability -reason for this is that if one party breaches a part of the treaty that is fundamental and the other party seeks to treat the treaty as repudiated, the laws of custom will still bind Article 43 of Vienna Convention on the Law of Treaties: Invalidity, termination or denunciation, withdrawel or suspension of operation does not affect the parties obligations in international law independent of the treaty Treaties -there is a distinction between law making treaties and treaty contracts -law making treaties are generally those accepted by a number of states eg: 1961 Vienna Convention on Diplomatic Relations -treaty contracts create special rights by operation of the principle of pacta sunt servanda which are akin to private law contractual rights -treaties codify, define, interpret or abolish existing customary international law or create new rules for future conduct -through the negotiating process treaties push states towards custom and opinio juris -treaties may become obsolete or partially obselete if customs or opinio juris change -treaties only bind states that are signatories but states can bind themselves by declaring themselves so bound -once a rule of custom is identified it can be used against all states that do not protest to the practice Vienna Convention On the Law of Treatiesadopted in 1969 and Canada is a party -codification of customary international law on interpretation and application of treaties -U.S. not a party but the state dept. has said that it is a codification of custom Articles 2 & 3: I) parties must be subjects of international law ii)they must intend to create binding relations under intl law iii) their agreement must be governed by intl law Anglo-Iranian Oil Company Case-contracts between private entities and states do not create binding arrangements between the private entitys national govt and the state -the presumption that two parties who sign written agreements have a treaty can be rebutted by evidence of intention to the contrary eg: Helsinki Accords, memoranda of understanding (low level agreements of an administrative character) -treaties are generally written but there is nothing to stop states from making an oral agreement if the intent to bind is clearLegal Status of Eastern Greenland Case (1933) Nuclear Test Ban Treaty-Australia and NZ took France to court over testing in the South Pacific France was not a party to the Nuclear Test Ban Treaty and had not consented to be bound by it -where there is no treaty obligation and parties consent to arbitration they may go -where states make a unilateral declaration as to their intention to be bound by a treaty they may be so bound -France ended up making a unilateral declaration of acceptance and the claim became moot

-the public communications of a head of state are sufficient to enagage a state if they were intended to do so -no special form for making the declaration is required neither is any quid pro quo Entry into Force Bilateral Treaties-most provide that once signed and documents exchanged, this is enough to bring the treaty into effect Multilateral-provide that the treaty will be adopted by a vote OR rules of procedure may say that they must be adopted by way of consensus-depends on the rules of negotiation decided by -usually provide that signature alone is insufficient, treaty will only come into force when eg: X # of states have ratified or acceded to the convention What status does the signature have? symbolicstate intends at some time down the road to implement the treaty, it is in favour of the treaty and some time later will bind itself -some have argued that once the treaty is signed, a state cannot do anything to thwart the process Canadian Treaty Practice (pg 100-4)Canadian Practice adopts: a) international agreements between heads of states b) intergovernmental agreements; and c) exchanges of notes (75% of intergovernmental agreements) -the term treaty is seldom used by Canada except in relation to peace, neutrality, arms control and U.S.Canada water problemsCanada prefers the word convention -Canadian agrements that are called treaties or conventions require ratification Conclusion of a Treaty 1) representative of the state must have full powers to give consent of its state 2) the mode of adoption of the treaty must be agreed upon (ie: consensus or majority) 3) the means to authenticate the treaty in different languages must be agreed upon 4) steps to assent to the treaty must be set out -generally, heads of state then take whatever steps are required in order to ratify -at the end of negoiation there is usually a signing ceremony but this is a signature to adopt the text and not to be bound -the official signing takes place at a later date -if a state has not acceded to the adoption of the text they may still accede to the treaty before it is officially signed Ratification Canadas federal nature makes Canadian practice cautiousCanada goes to a multilateral conference w/ a delegation from all interested federal ministries but provincial representatives have also been included -@ Rome Conference, Canada brought NGOs on board as official members of the delegation to voice their views on the proposals -if Canada is part of the consensus, Canada will enact implementing legislation (provincial, federal, hybrid) before ratification Canadian Labour ConventionsPrivy Council said that Canada may negotiate as an entity, but implementation requires cooperation w/ sub-national govtsSPLIT PERSONALITYtreaty making is w/I the federal sphere but implementation cannot be done w/o provincial cooperation -certain unitary states do not feel the same need to pass the domestic legislation 1st, they do not have to concern themselves w/ provincial cooperation

-the executive binds Canada but on serious matters the legislature will vote to approve or disapprove of the treaty Entry into Force Treaties can come into force on: 1. Ratification or upon a given period after ratification 2. immediately or after signature 3. exchange of notesthe date of the second note 4. ratification by a given number of states set out in the treaty (usually for multilateral treaties) -it is the intention to be bound that is crucial to determining the time of entry into force -treaties can be retroactive or else they can be provisional -Canadas extradition treatiesw/ one exception, all are retroactive b/c murder was a crime and still isone exception is 1969 treaty w/ Israel that provides that it will only have effect wrt crimes committed after the treaty took effect -Re Cannontreaty of extradition was construed to be retroactive because the treaty was silent on the matter Reservations to Treaty Obligations -in what way do the reservations modify the treaty obligations? -a unilateral statement made by a state when approving a treaty and assenting to it in substance whereby it modifies the effect of the treaty on its state -often has the effect of causing confusion because other states may not accept the reservations in League of Nations vote, reservations had to be approved by the other acceding states only feasible in multilateral treaty obligations Do reservations have to be approved by all states party? -not necessarily but, if the reservations have the effect of nullifying the purpose of the treaty, they will not be allowable -certain treaties provide for no reservations whatsoever -Law of the Sea Convention in 1982 allowed for reservations but pin-pointed the specific provisions on which reservations were allowable Article 19: Vienna Convention: Reservationsstate may formulate a reservation unless: a) reservation is prohibited by the treaty b) treaty provides that reservations may be made only to particular sections c) reservation is incompatible with the object and purpose of the treaty Article 20: Where a treaty provides for reservations on certain sections, states do not have to accede to the reservation. -where the treaty constitutes an international organization, approval of the organization is necessary for reservations 4.a) acceptance by another state of the reservation means the treaty binds those states b) objection to reservation does not preclude entry into force between the parties c) as long as another contracting state accedes to the reservation, the reservation is effective Article 21: Legal Effects of Reservations: 1. a) Reservation modifies the relationship to the extent of the reservation b) Modifies the provisions to the same extent for another party in relations with the reserving party 2. Reservation does not modify the relationship of other parties to the treaty 3. A state objecting to a reservation does not have to respect the provision to which the reservation applies with regard to the reserving state.

Reservations to the Convention on Genocide Case ISSUE: 1. Can a state be regarded as being party to a treaty to which it has attached a reservation and to which reservation other party states have objected? 2. If yes, what is the nature of the relationship between the state seeking to make the reservation and the states that have either a) accepted the reservation or b) have objected to the reservation 3. What is the legal effect of an affirmative answer to question 1. if an objection is made by a a) signatory state that has yet to ratify b) state entitled to sign or accede but has yet to do so HELD: 1. A state can be regarded as a party to a treaty even if there is an objection raised to a reservation by that state provided the reservation is compatible with the object and purpose of the treaty 2. if the objecting states wish to, they may regard the reserving state as a non-party. If a party accepts the reservation, they may treat the reserving state as a party. 3. If an objection is made by a signatory state prior to ratification, there is no legal effect until ratification and then it has the effect stated in question 1. If there is an objection by a state entitled to accede it has no legal effect. Pg 111-Pacta Sunt Servanda-general principle deduced from the law of statesparties that undertake to ratify may not impede the treatys progress Article 46: Provisions of Internal Law: a party may not invoke provisions of internal law as an excuse for a failure to perform Polish Nationals in Danzig-a state cannot adduce as against another state its own Constitution with a view to eroding obligations incumbent upon it under international law or treaties now in force. -where there are successive treaties between two states the latter will prevail to the extent of the inconsistency Third States -3rd statesconsequence of a treaty only binding states that have ratified or acceded is that a treaty state cannot impose treaty obligations on states that are not bound -if states party to a treaty desire to confer a benefit on a 3rd state, this will be binding if consented to by the 3rd state Article 34General Rule Regarding Third States: A treaty does not create Rights or Obligations for Third states. Article 353rd state not bound unless they declare themselves to be in writing. Article 36If parties to a treaty intend to create a right for a 3rd state, and the 3rd state assents, a right will be created. Consent is presumed from lack of objection. Free Zones Case France v. Switzerland (1932) PCIJ FACTS: By the Treaty of Versailles (Art. 435), France was obligated to negotiate with Switzerland (who was not a party) the status of the peoples along their common border. Switzerland rejected the proposed agreement and France abolished the former status of the territory. ISSUE: Did Article 435 abrogate the status of these territories or did it create an obligation for Switzerland to abrogate these territories? HELD: Article 435 does not abrogate the status of these territories and Switzerland is not bound by the treaty. -this case is more important for its treatment of conferred benefits on 3rd parties

NB: If states confer a benefit on a 3rd party by virtue of a treaty, and the 3rd party relies on it, there is no necessity of having a treaty binding the third party for the 3rd party to have an enforceable right against the treaty states. -most common form of third party benefit is usually found in the GATT in most favoured nation status Vienna Convention on the Law of Treaties pg 53 of doc supp. S. 3 interpretation of treaties articles 31, 32-codify customary international law so even states that have not signed are bound Article 31-general rule: ordinary meaning/intent in the context of the treaty -context shall comprise the preamble and any appendices and indexes -can look to other instruments that might shed light on the intentany agreement relating to the treaty made by the parties -any subsequent agreements between the two parties -any subsequent practice of the parties -also any other rules of international law -special meaning will be given to a term if it is patently clear that parties intended the special meaning Art. 32-supplementary means of interpretationcan be used if the meaning seems ambiguous or obscure or would result in a manifestly absurd or unreasonable outcome -ie: preparatory work such as drafting committee notes, etc. International Court of Justice hears two types of cases 1) contentious issues between disputing parties 2) advisory opinions Interpretation of Peace Treaties Case (1950) FACTS: UN general assembly asked the ICJ to interpret WWII treaties involving Romania, Bulgaria and Hungary because there were allegations of human rights violations contrary to the treaties. The three states refused to participate in the formation of a commission to resolve the disputes as per the treaty. -under the treaty, each state has the right to appoint its own commissioner and a third one must be mutually agreed upon, if one cannot be agreed upon, the UN Secretary General can appoint one ISSUE: Can the U.N. appoint the 3rd representative to adjudicate the dispute upon the request of the other disputing party, absent the appointment of commissioners from both disputing parties? HELD: If one party fails to appoint a commissioner, the U.N. will not appoint a third commissioner. -it is the duty of the court to interpret the treaties and not to revise them -even though the Vienna Convention did not come into effect until later, international law was parallel to the Convention previously PRINCIPLE: Apply the ordinary meaning absent other evidence of intent David J. Adams (US v. Britain)-arbitral tribunal set up between the U.S. and Canada dealt with unsettled issues of maritime lawthe treaty in question provided that American fisherman would not enter Canadian bays and harbours unless they needed water, food, wood or shelter -U.S. ship was arrested, vessel was forfeited -Canada had passed legislation enacting the treaty -the tribunal came out w/ a basic PRINCIPLE: An international tribunal will not be bound by decisions of domestic courts wrt treaty obligations -collecting bait was not allowed for in the treaty obligation and fell under the wording for no other purpose whatsoever

Operation of Treaties: Amendment and Modification -a treaty can be amended by the mutual agreement of both parties and this can be done by formally abrogating an old treaty or by inserting a clause in the new treaty abrogating the old treaty -an amending agreement can only bind parties to the original agreement that accept the amended agreement Vienna Convention Articles 42, 43, 46, 52, 53, 64, 69, 71 Article 42-Validity and Continuance of Force of Treaties: 1. validity of the treaty can only be impeached, terminated, denounced or withdrawn form, by resort to this convention Article 43-Obligations Imposed by International Law: Invalidation, denunciation, suspension of provisions does not impair an obligation under other rules of international law Article 46Provisions of Internal Law Regarding Competance to Conclude Treaties: a state cannot breach a treaty by reason of technical requirements of internal law Article 52-Coercion of a state by threat or use of force: A treaty procured by force or threats is null. Article 53-Jus Cogens: A treaty is void if at the time of its conclusion it conflicts with a peremptory norm of international law (pg 122)jus cogens-an open set of peremptory norms of international law that cannot be set aside by treaty or acquiescenceif there is a norm or rule labelled jus cogens and the treaty conflicts with this, the treaty is null to the extent of the conflict -these are general obligations owed to the international community as a whole What are rules that fall into this category? Eg. (123) freedom of the high seas: cannot divide control of the oceans in violation of this maxim, Article 2 of UN Charter: Prohibitions on the Use of Force, pacta sunt servanda, many human rights laws -torture is also a violation of international law jus cogens -right to self-determinationmay be a jus cogen but there is a difficulty in determining who gets to exercise this right Article 64-Emergence of a new peremptory norm: If a new jus cogens emerges, existing treaties in conflict are void. Article 69-Provisions of a treaty voided are of no force, if acts have been performed in reliance on it, a) a party may require another party to establish the position it would have been in otherwise b) acts performed in good faith prior to invocation of invalidity are not unlawful erga omnes-when there are applicable rules that are jus cogens, all states are interested parties so any state can protest or make a claim against another state that violates the norm Termination of Treaties Ex Parte Odell and Griffin [1953] (H.C.) -U.S./Canada extradiction treatytwo criminals argued that the treaty was not valid b/c it was entered into before the Statute of Westminister(1931) -the Ashburton Treaty was entered into in the 19th century by Great Britain on behalf of Canada -previously, this treaty had been operativestate practice dictated that the treaty had not been terminated -the two chargees were exradicted at the end of the day -the intent of the Statute of Westminister is not to abrogate treaties that have been entered into by Great Britain on behalf of a dominion state

Smith v. Ontario and Minnesota Power Company-(1918) the govt of the U.S. and govt of Canada can agree to abrogate a treaty negotiated by Great Britain on behalf of Canada State Seccession and Treaties -what happens to treaties entered into pre-secession? RULE OF THUMB: when an entity enters the international scene as an independent state, it enters the international community with a clean state except wrt treaties that run with the land such as boundary treaties -BUT some states might deem themselves bound by all treaties entered into on their own behalf, others start from scratch and some may pick and choose Clausula Rebus Sic Stantibus Where there is a fundamental change of circumstances, international tribunals have upheld the possibility that a treaty will no longer be binding Article 62 of Vienna Conventionstates that, the change must be fundamental the parties must not have foreseen the change of circumstances -in addition it must be a change that would radically transform the obligations to be performed in the particular agreement -existence of set of circumstances must have been an essential basis on which the treaty was entered into Fisheries Jurisdiction Case U.K. v. Iceland [1973] FACTS: Pursuant to a 1961 treaty between the two states, they agreed to refer their disputes to the ICJ. Iceland argues that the ICJ does not have jurisdiction because the depletion of the fish reserves constituted a fundamental change of circumstances that abrogated the treaty and justified the expansion of their protected fishing zone. -ICJ denies that there has been a fundamental change -in order for this rule to operate to nullify jurisdiction there must have been some change of circumstances wrt the operability of the adjudication mechanism and not a change to the circumstances of the treaty itself Custom General Customary Law 1. There must be a consistent and general international practice among states 2. The practice must be accepted as law by the international community -subjective element of acceptance is called opinio juris What evidence can be admissible to identify general practices?anything that demonstrates intentions (130)extract of a stmnt. By a Canadian diplomat (ambassador Beasley)the unilateral acts of states are influential in generating customary rules of internatinal law especially when duplicated by other states -1970, Canada enacted the Arctic Waters Pollution Prevention Act-Canada was asserting the capability to prevent ships sailing in the Arctic waters from polluting -U.S. argued that this was a violation of the Law of the Sea and Canada would therefore be responsible for stopping ships -Canada sought to justify its lawin 1972-3UN set up a committee to codify the law of the sea Canada pushed for special rights for Coastal states in ecologically fragile areas and this principle was adopted by the UNBeasleys assertion came to fruition

Canada v. Spain Fisheries Casepassed legislation that allowed Canadian authorities to takeover vessels that violated Canadas fisheries legislation -next day, Canada puts a reservation on International Ct of Justice on the jurisdiction over Grand Banks -expanded the area of Canadian jurisdiction on the seas -Spain argued that this was a violation of customary intl law and the Law of the Seas Convention of 1982 -ICJ did not get to the merits b/c of the reservation that Canada made the day after the legislation was enacted -had it got to the merits, Canada would have asserted the depletion of the Turbot population and argued that the law of the sea is outmoded to the present maritime situation -turbot cross from the high seas into Canadian waters and back -Canada would probably have had trouble arguing the law on the merits -however, this unilateral action rapidly pushed forward inter-state agreement on fishing migratory stocks that legitimized Canadian action in the future The Steamship Lotus (France v. Turkey) (1927) FACTS: French steamer collided with Turkish ship. French steamer was arrested upon entry into Turkey. French argued that Turkeys arrest was contrary to international law. RATIO: What is not prohibited at intl law is permitted. North Sea Continental Shelf Germany v. Denmark [1969] ICJ -landmass slopes gently down into the water until it reaches the deep seas bed -international law recognized the exclusive rights of a coastal state to the minerals and resources on the shelf -Denmark, FRG and Neth had claims to the North Sea shelf and economic interests in the shelf -1958..Article 6 of the Geneva Convention of the Continental Shelf was the relevant provision -Germany was not a party b/c it would have a very small continental shelf and Denmark and the Netheralands would have had more pghs 60-61 (p134-5)-touches on the three key issues wrt whether there were principles of intl law bound Germany 1) What was the status of the principle in Art. 6 of the convention concerning delimitation of the shelf space of adjacent states? Ie: when the convention was drawn up was there a rule of custom that made the same practice international law 2) Did the treaty produce a rule of custom? 3) Did there arise a rule of custom after Article 6 was put in effect? -Court stresses the fact that article 6 was not the law as it was but the law as it should be or at best an emerging rule of intl law that is not binding as yet -Denmark and Neth. Argument was more directed to issues 2 & 3 -court says, state practice must be extensive and virtually uniform and there must be a general recognition that a rule of law is involved (ie: an opinio juris) -the states that took up the equidistance principle from the Geneva Convention were all parties to the treaty or seeking to be Although passage of only a short period of time is not necessarily, or of itself, a bar to formation of a new rule of customary rule, an indispensable requirement would be that within period in question, short though it might be, State practice, including that of State whose interests are specially affected, would have been both extensive and virtually uniform in sense of provisions invoked; moreover it should have occurred in such as a way as to show genl recognition that rule

of law or legal obligation is involved. Two Conditions: 1. not only must acts concerned amt to settled practice 2. they must also be such or be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by existence of a rule of law requiring it ie opinio juris - states concerned must feel that they are conforming to what amts to a legal obligation - frequency or habitual character of acts itself is not in itself enough - treaty is good evidence of state practice and opinio juris even though it is not binding on a state who is not a party to treaty - 1 party even though it may agree that have customary rule on pt, may say that its not binding on them if persistently object - but if only object subsequent to a dispute arising, then rule still binding Regional or Special Customary International Law Can there be local as opposed to universal customary law? Right of Passage over Indian Territory (Portugal v. India) [1960] (ICJ) FACTS: Portugal held several enclaves of land within India and claimed a right of passage through Indian territory to them and alleged interference with this right by India ISSUE: Can there be a rule of custom between two states? RATIO:there can be a rule of customary international law between two states that have consensus conduct between themselves and that rule will be binding -usually the rule is a long-standing practice that has not been objected to in the past Asylum Case (Columbia v. Peru) [1950] ICJ FACTS: Columbia sought to give refuge to a Peruvian diplomat and Peru objected. ISSUE: Is there a rule of custom which allows Latin American states to give such asylum? -dealt w/ the same issue w/I the OAS: Was there a rule of custom wrt diplomatic immunity -court ruled that S. American countries did not have the requisite consistency of practice -even if there was a rule, this rule would not have been binding on Peru b/c it had persistently objected to the rule party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party -Labour Conventions CaseCanada must have legislation implementing the treaty -w/ customary intl law, there is no need for legislation, if a Canadian court is satisfied that a rule in question exists and Canada has not protested, our judges take notice of the rule -the difference between the two is that it is part of the fedl govts prerogative to attend Conventions but the power to bind must be checked by the legislature -w/ custom, the view of the court has been there is not the same need as with treaties for implementation legislation -Re Newfoundland Continental Shelf-Did the Continental Shelf off of NFLD. Belong to Canada as a federal whole or to the province of NFLD?.Is there a rule of intl law that provides that a coastal state owns its own shelf?--@ time reference was heard there was a rule of custom of sovereign rights to the continental shelf

-terms of Nfld.s confederation dictated that Nfld. Would maintain control over territorial rights to their lands and seaWould customary intl law have given Nfld. Rights at the time of its entrance into the union? -No, at the that time, no rule of intl law. Re Seccession Reference-looked to the ICJ rules to determine the applicable rules for the S.C. -What will a Canadian Court do if there is a domestic rule that conflicts with international law? S.C. will try to harmonize conflicts through interpretation but if there is an insurmountable conflict, judges will follow domestic law over intl law General Principles of Law -fill any gaps left absent treaties between disputing states and/or customs based on state practice and opinio juris, Article 31(d) of ICJ: Courts can look to subsidiary means to interpret treaties and intl custom -state A expropriating w/o paying proper compensationlook to principles of Contract Law -Charzow Factory Case: It is a general conception of law that any breach of an engagement involves an obligation to make reparation International Status of Southwest Africa Case adv. Op. [1950] icj Court was asked to advise on the status of Namibia while it was under the control of South Africa ISSUE: Following WWI, the League of Nations set up a system known as the mandate system to take from the defeated countries their colonial possessions and to put them into a special system, the idea was for these colonies to be given in trust to other states within the League to bring forward the mandated territory towards independence -Namibia was a colony of Germany and was placed under the trust of South Africa -aparthide policies were extended into Namibia and the UNGA was trying to see whether Southwest Africa was still under the mandatory control of South Africa OR could the UN treat the mandate system as terminated and tell South Africa they no standing to govern Namibia -What was the status of South Africas power over Namibia? -Court concluded that South Africa was obligated to act in a fiduciary capacity to Namibia and could not act to its detriment -Court came to this conclusion by stating that the mandate system was akin to a trust in AngloAmerican law and the concept of a trust was a general principle of law HELD: South African attempt to absorb Namibia was a breach of fiduciary duty. Diversion of Water from the Meuse Case (Netherlands v. Belgium) (1937) PCIJ ISSUE: where two states share a water system it is a rule of general intl law that in such a situation, absent a treaty, the general principles of equitable apportionment and reasonable use should apply and these have been deduced from domestic principles of law? RATIO: Under Article 38 of the Statute the court has the freedom to consider principles of equity as part of international law. As such one party that has not performed its obligations cannot take advantage of a similar non-performance of an obligation by another party. Other Sources of Law Lawmaking through International Organizationsrole of the intl law commission -1947-I.L.C. set up as a branch of the U.N., commissioners are elcted by U.N. and sit as individuals and not as government representatives BUT a large number of these commissioners come from their governments foreign ministry, several are continuing on their govtal job while attending Commission meetings

-their goal is to both expound existing principles and to drive the evolution of intl law -(pg 157) Vienna Convention was result of several years work by the ILC -this is not a permanent job, meet during the summer for 8 weeks of sessions Resolutions-when the Genl Ass, Sec Coun. Or other agencies of the U.N. such as UNESCO produce resolutions, what is their value? -they are not treaties, they are of a non-binding nature but they can indicate state practice and opinio juris -but their weight depends on how they were adopted (ie: consensus, majority, dissentions, etc.) as to whether they are a customary rule of intl law -the state in question, while not bound to accept the recommendation (in UN resolutions), is bound to give it due consideration in good faith Western Sahara Case-in the colonial context the intl court said that these types of resolutions adopted w/ support from academics and the states themselves, can lead to a determination that a customary rule exists Texaco v. Libya-Texaco made an agreement w/ Libya to extract oil but the parties had agreed to an arbitration clause in the event of a dispute an arbitrator would apply rules of intl law -a state is obliged to compensate according to the rules of international law and the compensation must be determined in accordance with the rules of customary international law Legality of the Threat or Use of Nuclear Weapons Case [1996] ICJ ISSUE: is the threat or use of nukes a violation of international law? -resolutions can have the effect of demonstrating the existence of an opinio juris -to determine whether this is so must look at context and conditions of adoption of the resolution -court concludes that the resolutions relied upon to show illegality were not adopted by unanimity and thus there is no customary opinio juris or customary state practice Nicaragua Case-court deals w/ 1970 Intl Convention on the Declaration on the Use of Force and of Friendly Relations between states-there is an obligation not to interfere in other states affairs and to refrain from using illegal force -this is an elaboration of the commitments taken in the U.N. Charter -but the word declaration does not mean it will be considered a rule of customary international law States and Statehood-Chapter II -U.N. system deals w/ sovereignty and equality, the right not to be intervened in,, the right not to be the subject of aggression, the right not to be fucked with without giving voluntary consent Montevideo Convention-(1934) -parties were the South American countries and the U.S. -delineates the formulation of the basic attributes of states a) permanent population: there is no minimum requirement for a population, it is not necessary that the population has the nationality of the new state b) defined territory: no minimum reuqirement, a state can come into being and exist despite border disputes eg: Israel c) government -civil strife within a state is not always determinative of the non-existence of government but some form of government is a central characteristic of an existing state -existing states can lose their statehood by means of agreement to join another state d) capacity to enter relations between states-both a prerequisite and a consequence of statehood

-these characteristics are relatively uncontroversial but one may question to what extent these are fulfilled by existing states -entrance into the UN system does not necessarily imply recognition by the other UN states -states will generally recognize other states and governments through independent actions of states -But what are the legal effects of recognition or non-recognition? Note #4after the break-up of former Yugoslavia several of the republics were admitted to the UN, Federal Republic of Yugoslavia did not apply for membership to the UNin order to recognize a state there must be 9/15 members of the Security council in favour and the 5 permanent members cannot vote against -General Assembly of the U.N. must then accept the state as a new member by a 2/3 majority -FRY did not want to be accepted as a new member it wanted to go into the existing seat of the former Yugoslaviathis was not accepted by the U.N. and the practical consequence was that Serbia-Montenegro did not participate in the UN and its work -there have been dramatic changes in the last few months and FRY applied for membership in December, 2000 and were accepted Austro-German Customs Union Case Adv. Op. (1931) PCIJ FACTS: According to the treaty of Saint Germain, Austria could not cede sovereignty without approval of the League of Nations. Austria entered into a free trade agreement with Germany. ISSUE:when one state enters into an economic agreement or partnership with another state does this mean that a state is giving up sovereignty -as long as a state is not placed under total control by another state it will retain its independence Sovereignty and Equality Article 2 of UN CharterOrganization is based on principle of sovereign equality of all its members -(pg.17) Island of Palmas Case (U.S. v. Netherlands) (1928) Arbitral Decision between U.S. and Netherlands over an island. In 1898, Spain ceded the Phillipines to the U.S. Yet, the Dutch flag was flown there. HELD: the Dutch were in real occupation of the territory, the Dutch flag was flying there, they spoke Dutch. Without manifesting its territorial sovereignty over a territory in a manner corresponding with the circumstances, a state cannot fulfil the obligation of protection of a territory. -if the kingdom of Spain did not have title, they cannot cede title in wars Taiwan-defined territory, w/ govt, permanent population and a capacity to enter relations with other states BUT they are not a member of the U.N. and have only been recognized by a handful of other states -post WWII, the commies pushed Chiang Kai shek out of mainland and into Formosa (Taiwan) -in 1970, the UN recognized the Beijing govt instead of the Nationalist govt in Taiwan -result is that the Taiwan govt still thinks of itself as the govt of China and the mainland govt thinks of itself as govt of China and Taiwan -independence once gained entails a legal right to independence that cannot be revoked by other states thus in Persian Gulf War, Kuwait though having lost its independence in fact maintained its right to independence and this justified UN action Jurisdiction Over the Person -in order for a state to enforce its laws it requires more than jurisdiction over territory, it requires jurisdiction over the person

-normally a state requires custody ove rhte person involved in order to execute its will -if the state has custody of the individual, it can exercise its right to punish subject to human rights restrictions -where the state does not have custody, international law has developed a piece-meal approach to enforcing state law Abduction from a Foreign State -there is controversy in intl law over whether a state that has taken a fugitive by kidnapping or other illegal means (not legal extradition) can keep the fugitive within their jurisdiction to stand trial -Canada, U.S. and UK maintain that once the fugitive is captured, they should not escape trial because they were captured by illegal means mala captus bene detentus United States v. Toscanino USCA FACTS: Toscanino was forcibly taken from Uruguay by U.S. agents and interrogated, tortured and flown to the US. ISSUE: Do the means used to capture a fugitive affect the ability of the power exercising jurisdiction to bring that fugitive to trial? RATIO: The principle that the means used to capture a fugitive are irrelevant is no longer in force. If a person is abducted illegaly they have the protection of the due process clause of the 14th amendment. United States v. Alvarez-Machain USSC ISSUE: Does a forcible abduction eliminate a staes jurisdiction to prosecute a national of a state which it has a treaty with? RATIO: Despite the operation of a treaty, the treaty does not preclude a state from taking steps outside of the treaty to secure the presence of a foreigner in its state International Organizations: The UN Aerial Incident at Lockerbie Case After the Lockerbie bombing the US sought to extradite two suspected terrorists. Libya would not extradite despite a SC resolution that demanded extradition or else sanctions. Both Libya and the US were parties to the Montreal Convention which provided for extradition or prosecution at the nationals states choice. Libya argued that they were complying w/ the Montreal Convention. -ICJ decides that the SC resolution takes precedence over the Montreal Convention, Libya agrees to extradite and have defendants tried under Scottish criminal law at the Hague Article 103 of UN Charter:-If there is a conflict between an International Agreement and obligations under the Charter, the Charter will prevail. Reparations CaseAdv. Op. ICJ [1949] FACTS: UN mediator was killed in Jerusalem while it was under Israeli control. Israel was not yet a member of the UN. General Assembly asked whether it had the legal capacity to launch a claim against Israel for compensation. -the UN is an international person and thus has the capacity to launch an international claim -in assessing this reparation the UN has the authorization to include damage suffered by the victim or by persons entitled through him whether the offending party is a member state or not -the general consensus that brought the UN into existence makes its agents and organs legitimate and as such, even though the offending state is not a member it can be liable for damages to the UN

-powers possessed by an Intl Org. do not have to be set out in its Charter but can be implied so far as is necessary for the organization to achieve its functions Non-Governmental Organizations -UN Charter Article 71provides that the economic and social council may give consultative status to NGOs -this permits Ngos to send representitives to meetings, submit written materials for ciculation, use services provided by the Secretariat International Court of Justice -15 judges elected for 9 yearsW.E. and others=5, 2 EE, 3 Africa & ME, 3 Asia, 2 Latin Americaelected by the General Assembly and the SC -judges serve for 9 years and may be reelectedfive seats come up for reelection every three years -Canada has only had one judge on the court -Canada has had ad hoc judges ie: when a state is party to a dispute, they must have a judge from their country on the panel for the purposes of their claim -this happened in the Fisheries Jurisdiction case -where several states are being sued together, only one judge ad hoc will be appointed -each state has a national group whose members are members of the Permanent Court of Arbitration and nominate judges to be elected for their group Parties Before the Court 1) members of the Un are ipso facto parties to the Statute of the ICJ 2) non-members may become party to the statute by accepting conditions laid down by the General Assembly (Switzerland did this as well as Japan [prior to be admitted]) 3) a state may voluntarily accept the jurisdiction of the court by submitting a declaration to that effect with the Court registrar International Court of Justice-U.N. organs and agencies are the ones that usually seek clarifications in Reference cases -preliminary matters wrt state-state litigation 1) Does the Court have jurisdiction? -Art. 36(6) Court has the power to determine whether or not it has jurisdiction -Art. 53 allows for the court to give default judgement provided it has jurisdiction and the claim is well-founded in fact and law But-none appearance of the respondent is a clear indication that the judgement will not be honoured -Arts 62 &63a state may be granted intervenor statusLand, Island and Maritime Frontier Dispute (El Salvador v. Honduras) Nicaragua was given intervenor status b/c its interest might have been affected by the Courts decision -Court may be preclouded from exercising jurisdiction despite the fact that both parties have assented if the judgement could affect a 3rd non-assenting party eg: Case Concerning East TimorPortugal attempted to bring a claim against Australia b/c Australia had concluded a treaty w/ Indonesia that allowed for the abridgment of the right of self-dtermination of the peoples of East TimorCourt refused to exercise jurisdiction b/c of the impact a decision would have on the treaty rights of Indonesia a non party to the dispute -p 348detailing of the three ways in which the ICJ is going to be able to take jurisdiction

a) by special agreement to go before the court and submit their dispute and provide the court with the questions they wish the court to answer in giving their judgement -eg: Gulf of Maine-deals w/ the delimitation of the G o M -Canada and the U.S. went before a special chamber of the court -both parties requested a panel of 5 judges from western countries to arbitrate their dispute b) by a comprimisory clause in a treaty -mostly with multilateral treaties that provide in the event of a dispute over treaty obligations which cannot be solved by negotiations or other means eg: Iranian Hostage Taking case in which the ICJ was faced with the U.S. as applicant arguing that Iran had violated its obligations under the Geneva Convention in condoning or not protecting the diplomats from the actions taken by the Iranian terrorists -both states were parties to the Geneva Convention and that Convention provided for the referral of disputes to the Court -bigger problem was that Iran would not appear in Court unless the Court would examine the CIAs encroachment on Iran during the Shahs reign -the court is restricted in that it cannot deal without the consent of the parties in one of the three forms -pursuant to Art. 53, Court can give default judgement if it is satisfied that it has jurisdiction, but this will still require the applicant to make submissions -ALSO Lockerbie caseUS, UK and Libya were parties to Montreal Conference and this gave the court jurisdiction and was prepared to entertain the merits of the case which concerned the elimination of economic sanctions against Libya, Libya argued this Convention gave two options, extradite or prosecute -US claimed jurisdiction on the basis that the plane was American and most of the passengers were American, UK on basis of the fact that the plane crashed in UK -Montreal Conference stated that where there are no extradition treaties, states may prosecute according to the convention, Libya argued that may meant that they also may notLibya offered to prosecute on their own b/c they doubted the ability of the Libyan nationals to get a fair trial in either country due to the state of international relations between the nations c) declaration under Art. 36(2) Optional Clausemost controversial, states may in advance of a problem arising, ask the court to take the reigns on the basis of reciprocity in all legal disputes dealing with treaty interpretation, breaches of international obligations and reparations -these declarations have been made by a number of states but frequently, most states attach reservations -when a country accepts jurisdiction of the court it must be a unilateral -disputes with members of any other country that is a member of the Commonwealth -b/c it is based on reciprocity, each party can benefit from the other states reservations -ie: India has a reservation that any state that is a member of the Commonwealth can bring claim against it, as such, Pakistan can bring suit -p 355 reference to the fact that when the U. S. had its declaration before the Court it had a reservation called self judging over anything that was within U. S. jurisdiction as adjudged by the U. S. itself

Fisheries Jurisdiction Case (Spain v. Canada) FACTS: Canada arressted a Spanish vessel pursuant to the Coastal Fisheries Protection Act for violating a zone of fisheries conservation. Spain alledged that this was a violation of the law of the High Seas and attempted to bring suit. Canada disputed jurisdiction of the Court pursuant to a reservation made upon the courts jurisdiction. RATIO: In examining the text of a reservation on jurisdiction the court will attempt to ascertain the intentions of the drafting state both from the face of the text and from extraneous contextual evidence as to intention. -the court does not have jurisdiction to hear the dspute as it is covered by Canadas reservation 2) Nationality of Claims -a state will only espouse the claims of its nationals -Nottebohm CaseLichtenstein v. Guatemala -Nottebohm was a national of Germany, WWII was declared and he was afraid that his propert would be confiscated in Guatemala as an enemy of the state, he went to Lichtenstein and got citizenship -his property was taken away in Guatemala -post WWII, Lichtenstein brings this claim on behalf of Nottebohm and Guatemala argues that he is not a genuine national and thus, Lichtenstein does not have standing -link between state giving nationality must be genuine, voluntary -Guatemala was successful in the case because the court viewed the attainment of citizenship was a scam Barcelona TractionBelgium v. Spain Company was incorporated in Toronto, board of directors meetings, headquarters office in Toronto, traded on TSE -company was essentially liquidated by Spanish authorities under Spanish bankruptcy rules -Canada did not take the claim which would have made sense b/c the company was essentially a Canadian entity -Canada does not have to and they dont have to give reasons why they dont -majority of the shareholders were Belgian and so Belgium tried to espouse the claim on behalf of the Belgian shareholders -Court found in favour of Spain and thus, Belgium did not have standing -the only way Belgium could have had standing was if Barcelona traction had been injured by Canada 3) Exhaustion of Local Remedies -when an individual person or corporation or their property is injured by another state in violation of an international legal obligation, before that entity can have their nation espouse the claim they must go through the legal process in the defendant state -if a state is injured directly, there is no need for the state to exhaust local remedies -people and corporations must show good faith in attempting to exhaust local remedies -sometimes it would be futile to look for a remedy b/c of legislation, in these circumstances there may be an exception to the general rule of exhausting remedies Lockerbie Case-before the ICJ, Court decided to take jurisdiction on this case under the Montreal Convention and therefore if the merits are ever heard, the issue will be: Was Libya meeting its treaty obligations by failing to extradite and submitting their own nationals to a trial in Libya -following the impasse w/ Libya failing to extradite, eventually through the auspices of third party states their was an agreement between Libya and the US to have the trial in a neutral place, at the end of the day, the Netherlands was chosen

-agreement was that the Netherlands would create through law, a designated area that became a designated part of Scotland with judges chambers, detention centre, etc. -law that was to be applied was the criminal law of Scotland (no jury system in Scotland) -court found one person guilty and sentenced to 20 years, one was discharged -as part of the comprimise to get Libya to send them to the Netherlands there had to be agreement that the claim would stop there and that the U.S./UK would not move to prosecute the state of Libya Advisory Opinions-states cannot get an opinion, only UN bodies and international agencies -in the context of Nuclear Weapons Advisory Opinion-WHO did not have competency to seek an advisory opinion b/c the legality of nukes had nothing to do w/ the scope of activities of the WHO -in order to get an advisory opinion: 1) the agency requesting the opinion must be duly authorized, under the Charter to make such a request 2) the opinion requested must be on a question of law 3) the question must arise w/I the scope of the activities of the requesting agency -later that year, the Court entertained the same question coming from the General Assembly Legality of the Threat Or Use of Nuclear Weapons Case Adv. Op. [1996] ISSUE: Is the threat or use of nuclear weapons in any circumstance permitted under international law? Can or should the court give an advisory opinion on this matter? -the court can gie an opinion on this matter -the court will only decline to give an opinion in very rare circumstances -there does not have to be a dispute for the Court to give an Advisory Opinion -the organ asking for the opinion need not prove that it requires the opinion in order to function -there is neither customary or conventional intl that authorizes the use of nukes -there is no customary or conventional law that prohibits the use of nukes -a use or threat of nuclear weapons that is not in compliance w/ art 2 para 4 of the UN Charter is unlawful -the threat or use of nukes would generally be contrary to the rules of intl law applicable in armed conflict and in particular applicable principles of humanitarian law however, the court cannot conclude whether the use or threat of nukes would be lawful or unlawful in extreme situations of self defence where the existence of the state is at risk -there is an obligation of states to work in good faith towards bringing about nuclear disarmament

Judicial Review and the Lockerbie Case ISSUE: Does the ICJ have the jurisdiction to review the actions taken by the Security Council? RATIO: The Court is not generally so empowered and to read-in such a power would be tosubvert the integrity of the Charter of the UN. Chapter V: Interstate Relations Recognition of States and Governments -recognition implies both rights and responsibilities of a new state -not only does it entitle states to the privileges accorded to other members of the international community but it also allows them the benefit of the mechanisms and frameworks of dispute settlement, diplomatic relations -there is no duty to recognize on the part of other states or governments

-recognition has been described as The free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intwention to consider it a member of the international Community. Canadian Practice -Canada will generally not recognize unless the new entity meets the qualifications of statehood (discussed supra) and if it does the timing of recognition is tied to Canadian national interests Three General Approaches to Recogntion a) Express Recognition -under this approach every time an unconstitutional change of government takes place, recognition is either formally declared or formally withdrawn -advanatgesclarity and specificity, once a decision is made to recognize the state is entered into the registry -disadvantagescumbersome and time consuming -while one state is deciding whether to recognize, others are making inroads at the expense of the contemplating state b) Tacit Recognition -This is the general approach taken by Canada absent extrordinary events whereby business carries on as usual and no declaration of recognition is made either way -advanatgesflexibility in meeting the requirements of most situations -disadvanatgesunclear whether the state is being recognized and laymen can incorrectly infer recognition from certain acts of state -according to the authors only conclusion of treaties or else appointement or acceptance of diplomats are real indications of tacit recognition c) Recognition of States Approach -under this approach a change of government will not provoke a recognition/non-recognition -advantagesclear and simpleinferences on tacit recognition are avoided -disadvantagesthis approach does not allow a govt the flexibility of accroding or withholding recognition where it disapproves of the actions of a new govt -Canada uses the Recognition of States Approach along w/ the US, UK, France etc. -FRI (Serbia & Montenegro) wanted to sit in the UN seat for the former Yugoslavia but there was a legal opinion delivered which states that they could notso the seat was empty -recently, they have applied for new membership and were accepted in December, 2000 -as a new member state under Article 25 of UN Charter it will be obliged to fulfill resolutions of the security council -if states are admitted to the UN, unless something is put on the record following the vote for admission it may be taken to be tacit recognition -during WWII DeGaulle set up an exiled government in the UKDegaulle sent a gorilla to the U.S. as a gift to a zoo prior to the U.S. entry into the war and there was concern over what to do with the gorilla b/c acceptance of an official state ift could be recognized as recognition of a government Tinoco Arbitration-Great Briatin v. Costa Rica -ISSUE: Continuity of statehood -here we have a state in existence but there is a revolutionary change in government whereby the state survived the coup

-a successor government is bound by the treaty and contractual obligations of the government that it is following -in this case, Costa Rica argues that Tinoco could not have entered into relations on behalf of CR -evidence led that the Tinoco government had been in effective control HELD: The new Costa Rican govt was obliged to fulfill obligations of the previous government National Effects of Recognition -state immunity is a fundamental effect or recognition -newly recognized state has the right to a) sue in the courts of the recognizing state b) take control of state property located in the recognizing state c) have effect accorded to its legislative and executive acts of state d) to claim immunity from suit in the courts of the recognizing state for itself, its property and its representatives Executive Certificates -when diplomatic representitives are accredited they have their names added to the Royal Gazette -but the courts must ask the Secretary of State for Foreign Affairs foran executive certificate to verify the diplomatic status of the person and the recognition of their nation

Re Chateau Gai Wines Ltd. and A-G for Canada [1970] FACTS: There was a trade mark dispute over champagne and the court had to consider whether the trade agreement between France and Canada of 1933 was entered into force. RATIO: A question of whether an agreement has been entered into force should be determined in the same way as a) a question to whether a person is a foreign sovereign power b) question as to what persons must be regarded as constituting the effective govt of a foreign territory c) whether a place is in Canada d) a question as to whether Canada is at peace or war with a country e) is a person entitled to diplomatic privileges -these questions are within the realm of executive responsibility and must be determined by resort to an executive certificate Luther v. Sagor [1921] FACTS: Plaintiffs saw mill was confiscated by Soviet government during the Russian revolution. Agents of the government sold stocks of wood to the defendant. When the defendant imported the wood, the plaintiff brought suit claiming to be the true owner. ISSUE: Was the decree that confiscated the mill a valid legislative act which can be recognized by the English courts? RATIO: As the British government has yet to recognize the Soviet government its decrees are not a valid legislative act of a foreign power. It cannot deprive the plaintiff of its property. -on appeal, evidence was disclosed that there had been recognition, as such the judges found for the defendant Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd [1978] FACTS: Turkish forces overtook Cyprus including two hotels that are the subject of this dispute. The Turkish-Cypriot regime advertised the hotels and the dispossessed Greek Cypriot owners sued their representitive in England and the travel agency promoting the hotels for conspiracy to

commit trespass. The British government had not recognized the Turkish Cypriot regime and so it was argued that the laws of this regime should be treated as a nullity. ISSUE: Were the acts of the Turkish-Cypriot regime a nullity thereby allowing a claim for conspiracy to commit trespass? RATIO: (NB DENNING) There are two conflicting doctrines. The first is that if the English government has not recognized a state, its acts are to be considered nul for the purposes of English domestic lawthis is to ensure that both courts and legislatures speak with one voice. The other doctrine states that the is no need for unity because courts are concerned with the internal impact of an action on private citizens whereas legislatures are concerned with external consequences of recognition vis a vis other states. Courts should thus look to the practical realities of the situation. -Carl Zeiss Stiftung v. Rayner & Keeler [1967] where private rightsare concernedthe courts may, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realtiies found to exist in the territory in question The laws of the de facto regime in Cyprus should be given effect and as a result, the claim for conspiracy to commit trespass must fail. Foreign Acts of State Laane and Baltser v. The Estonian State Cargo & Passenger Steamship Line [1949] FACTS: An Estonian steamship was arrested in Saint John harbour. The ship had gone continuously between the U.K. and Canada prior to its arrest since 1939. During this time, Estonia became part of the USSR and the steamship industry of that country was nationalized. Expropriated equipment was compensated at 25% of its value. The appellant sued the respondent state enterprise for the proceeds of the ships sale. ISSUES: Were the decrees nationalizing the steamship industry and transfering ownership effective? Is the plaintiff (Estonia State Cargo) entitled to receive the proceeds? RATIO: The ship was never tendered to the state enterprise and in the Talinna case the decrees of the USSR were held to be unconstitutional and illegal. The decrees are confiscatory in nature and British courts are not bound under intl law to recognize them. The proceeds of the sale should therefore go to Laane and Baltser. It is now established that a common law jurisdiction will not enforce directly or indirectly the penal or revenue law of another state; and there is the general principle that no state will apply a law of another which offends against some fundamental morality or public policy. -since expropriation without proper compensation offends morality and public policy, the decrees will not be given effect -this can be distinguished from Luthor v. Sagor because in this case, the ship was never in the possession of the state authorities Banco Nacional de Cuba v. Sabbatino (1964) -upheld the principle that an act of a recognized state must be recognized as such by domestic courts and their jurisdiction should not be challenged -this case resulted in the Hickenlooper Amendment to the Foreign Assistance Act of 1961 which now provides that U.S. courts may apply international law to foreign acts of expropriation

State Immunity -state immunity means that a state or its officials can not be sued in domestic courts

-this has the obvious effect of staying the charge and leaving the plaintiff without a remedy against the state actor Schooner Exchange v. McFadden (U.S) (1812)-deals with the ideas of sovereign immunity FACTS: Two Americans claimed that the Schooner Exchange was their ship and that it had been wrongly taken by French forces. The U.S. Attorney argued on behalf of France that the ship was French property that had been driven into Philadelphia by bad weather. ISSUE: Can a plaintiff sue the French govt in U.S. courts? RATIO: When an armed ship which is part of the military of a foreign state with which the U.S. is at peace enters a U.S. port, the foreign state does not consent to being subjected to U.S. law. It is exempt from jurisdiction. Scope of Immunity -state immunity is extended beyond the state itself to: 1. government and governmental organs 2. leader of the government, foreign minister and other ministers, officials and agents of the state with respect to their official acts 3. public corporations independently created but operating in effect as governmental organs, and 4. state owned property -diplomats and other representitives abroad are not on the list because their behaviour is governed by multilateral treaty -immunity is granted through all phases of the judicial process so that even if a state submits to jurisdiction on the merits it may not submit to execution of judgement Development of the Immunity Doctrine -U.S.S.C. immunity is granted by way of express licence (allowing troops into your territory), implied licence (allowing ships to cross through your sovereign seas) -U.S. moved from absolute immunity to restrictive view of immunity in 1952 through its courts decisions and certificates of the state dept. and is now codified in the Foreign Soverein Immunities Act of 1976 -U.K. had a long standing position of absolute immunity adopted in The Parlement Belge, but moved similarly, a treaty and corresponding statute is in place since 1978 codifying the restrictive approach -Canada was still clinging to the absolute theory as late as 80s founded on the leading Canadian case of Dessaulles v. Republic of Poland -now, restrictive immunity is the rule of thumb in customary international law Doctrine of Restrictive Immunity: Where a state decides to enter into the market place and engage in commercial acts it no longer has immunity. -main issue is the delineation of commercial acts (jure gestionis) from sovereign acts (jure imperii) Congo v. Venne casethis case went to the SCCa Quebec architect built a pavillion for the Congolese govt and was not compensatedhe sued the Congo and they claimed state immunity and there was a very strong dissent by Justice Laskin who came to the decision that states trade either directly through their govt or through a closely connected entity and it is time to recognize this change -majority decision by Justice Richie says even if the intl law rule has moved to restrictive immunity there is still immunity in this case b/c the contract entered into by Congo w/ Venne was a public act of the Congo and not a transaction -S. Will says this is wrong as is evidenced by later legislation -the Quebec Court of Appeal says in other expo related cases that Canada has moved to restictive immunity

-about ten years later there were a number of cases in Ontario and our courts looked at Richies decision and said this is good authority to go with restrictive immunity State Immunity Act 1. Who is entitled to claim immunity? -sovereign head of state, govts, govt organs, govt ministers are immune wrt their official acts, political subdivisions (provinces), provincial leaders, government agencies -this staute is narrow in that it does not allow immunity for lower level civil servants of foreign states What would happen if Pinochet came here?-British perspective is that even where the person is no longer in public capacity, if the wrongdoing occurred while immune, then they cannot be prosecuted -our legislation does not do the same thingit would seem as though he would only be immune if he was still doing the job s. 18the Act does not apply to criminal proceedings Agency -the way the statute is drafted it is difficult to determine who is an agent of a foreign state this is very important b/c when it comes to enforcing judgements, a foreign state may have immunity regardless of judgement rendered but w/ agents it may be different -if there is an agency in a foreign country is part of the regime in that country but has separate powers/featuresAre they immune? -if they have no separate status/powers/features it would be considered to be part of the state itself -if it does have separate powers, you may be able to get your judgement enforced 2. For what can they claim it? -person generally cannot use their immunity as a bar to being prosecuted -new intl criminal court statute states this as wellNuremberg trials lead us to the same conclusion -customary intl law principleswhen one is dealing w/ crim. Acts proscribed by customary or treaty law, any state that manages to get custody over an alledged perpetrator has jurisdiction to prosecute -there was no British connection w/ the Pinochet case BUT the Torture Convention provides for jurisdiction for any state that gets a hold of the person -if Britain had not sent him somewhere, the would have had the capacity to prosecute him themselves and in fact the Torture Convention provides for the obligation of prosecution if the person is not extradited -universal jurisdiction applies to Piracy on the high seas, terrorism, etc. -s. 3 indicates that state is immune and does not have to take any steps to claim immunity, if it doesnt show in court, it will still be afforded immunity -pre-statute it was not enough that the state would agreed to waive immunity if a dispute arose, the only way the immunity would work is if the foreign state waived immunity in the face of the court -statute changes that s. 4 if before or after the commencement of proceedings the foreign govt has waived, that waiver is reliable -tortss. 6 foreign state is not immune for any injury or death or damage to property that occurred in CanadaCompare to U.S. Leitelier v. Chile where Chilean government could be sued in US court for assassination by widow. s. 5 foreign state is not immune from jurisdiction for any commercial activity of the foreign state commercial activity means any particular transaction, act, or conduct in the course of commercial activity

s. 8 a foreign state is not immune for proceedings that relate to the interest of the home state in property such as succession, gift or bona vacantia 3. enforcement of judgements s. 11 no relief will be granted without the consent of the foreign state in writing -an agency of a foreign state is not protected by this section s. 12(1) foreign property in Canada is immune from attachment on judgement except where a) the state has explicitly or implicitly waived its immunity unless the foreign state withdraws its waiver b) the property is used or is intended for a commercial activity c) the execution relates to a judgement establishing rights in property that has been acquired by succession or gift or in immovable property located in Canada 12(2) subject to ss. (3) property of an agency of a foreign state is not immune from execution wrt any action which the agency is not immune from 12(3) military property is immune from execution 12(4) property of a foreign central bank or monetary authority used on its own account and not for commercial activity is immune from execution 12(5) s. 12(4) immunity does not operate where the institution or state has waived immunity unless waiver is withdrawn Legal Tests of Public or Commercial Acts -there are two different tests that have been applied and have yielded conflicting results -the first test focuses on the purpose of the transaction (ie: did the act have a public object) -the second test focuses on the nature of the transaction (ie: is the act a commercial deal) UK State Immunity Act -3(1) state is not immune from proceedings related to a) a commercial transaction entered into by the state b) an obliation to perform a contract where part of the contract is to be performed in the UK -commercial transaction means a) any contract for the supply of goods or services; b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and c) any other transaction or activity (commercial, industrial, financial, professional, etc.) into which a state enters or in which it engages otherwise then in the exercise of sovereign authority Edwards v. USSR -Edwards entered into a contract to print magazines called Soviet Union Today for distribution at a trade convention -S.U. refused to pay -Edwards went to court and the S.U. did not appearhe got the judge to give a default judgement problem was he could not enforce it -he went to Sheriffs office and tried to get Sheriff to go to the airport and arrest a plane of the S.U.sheriff consulted w/ AG office and they got on the phone w/ external affairs who told them that the sheriff could not do anything b/c of the doctrine of absolute immunity -eventually b/c of the publicity, the USSR paid the bill Trendtex Trading Corp Ltd. v. Central Bank of Nigeria [1977] (C.A.) FACTS: The government of Nigeria entered into a contract with Trendtex to buy cement. They ordered too much cement and their central bank refused to honour the letter of credit issued to Trendtex. They claimed state immunity.

ISSUE: What is the rule as regards state immunity and its application by British courts? Restrictive Immunity: -the intended purpose of the goods (ie: cement for a military barrack) is not relevant what is relevant is the commercial nature of the transaction -even if the contractual transaction was the issuance of the letter of credit, the bank who issued it operated in London in the ordinary course of commercial dealings and immunity does not attach -Even if the rule is absolute immunity, in order for immunity to attach it must be determined: Is the Central Bank of Nigeria an alter-ego or organ of the state? -there is no bright line test here, must look to the functions of the entity and the control of the organizationDenning was unable to make a decision so rested on the restrictive immunity approach -Denning viewed this case as one of where there was a transaction and not a public act -there is a desire to look to the consensus of the civilized world but if the nations are not at least agreed, does this not imply that there is no rule -however, the doctrine of restrictive immunity has been adopted by many countries and as such the rule of absolute immunity is no longer a rule The absolute theory: once a defendant is recognized in the forum country or the defendant was recognized as being an alter-ego of the state (state organ or agency so connected with the state that it has very little decision making power), the alter-ego also has the right to immunity. United States of America v. Public Service Alliance of Canada (1992) (SCC) FACTS: Sixty Canadian employees of a U.S.A.F.B. in Nfld. applied for union certification before the Canadian Labour Relations Board. U.S. claimed immunity from the certification proceeding under the State Immunity Act s. 2 & 5 RATIO: (LAFOREST) Both nature and purpose must be examined to determine if the state is entitled to immunity. The nature of the contract is employment but the prupose of the employment is to maintain a base of operations for U.S. forces. It is impossible to ignore this sovereign purpose in the analysis. Furthermore, in order to have immunity the proceedings must relate to the activity at issue (s. 5 of the state Immunity Act). The board is trying to assert jurisdiction over employees of the base. In times of war, it is important for the U.S. to have exclusive jurisdiction so that if a strike occurs, the striking employees can be forced back to work by U.S. legislation and courts. DISSENT (CORY): -if Canada wanted to make the test based on the nature rather than the purpose, they would have said it just as the Americans didpurpose should also serve a role in the analysis nevertheless, the nature of the activity should be predominantthe nature of the activity was such that any private individual could have entered into a similar emplyment contract -these workers had restricted access to the base and were not integral to its function and in fact often worked alongside private contractorsthe hiring of the workers is a private act which by nature is a commercial activity Even if an employment relationship is characterized as a private act, can a collective bargaining relationship be characterized in the same way?Once it has been demonstrated that a foreign state does not fall within the ambit of immunity protected by the Canadian staute it should not receive any special dispensation from Canadian law. A Canadian worker, working on Canadian soil, should not be deprived of the benefits of Canadian law unless the foreign state is acting in a context which warrants immunity. Immunity of State Organs and Property Mellenger v. New Brunswick Devpment Corp [1971]

FACTS: Two Canadian citizens sought redress in England for an alledged breach of tortious rights by the New Brunswick Development Corporation. The Corporation was constituted on behalf of her majesty and all of its actions were overseen by the government of New Brunswick. Its officers were appointed by the government. ISSUE: Are sub-national territorial governments allowed to claim immunity? Was the corporation an alter ego of the government such that it may claim immunity. HELD:the devpment corp was an organ of state and as such, immunity flowed. Must look to enabling legislation, organization of the enterprise, its functions, and the degree of political control. -Denning ruled that the province of NB was a sovereign state in its own right and can claim immunity -sub-component parts of sovereign states can claim immunity -Western Surety v. Elk Valley Logging-court followed the Mellanger decision to find that Alberta is a sovereign state vis a vis B.C.Albertan public corporations have restrictive immunity vis a vis B.C. courts -in R. v. Eldorado Nuclear Ltd., Ontario courtheld that restricted sovereign immunity did not apply to relations between Canada and the provinces Ferranti-Packard v. Cushman Rentals (1980) RATIO: NY state thruway is not immune from Canadian court process because they have a significant dgree of independent decision making power in establishing and executing policies and responsibilities. Immunity of State Property State Immunity Act protects foreign property from execution or attachment but immunity cannot be claimed unless the property is property of a foreign state -this raises question about what is property and what degree of ownership interest is required in order to claim immunity Juan Ismael and Co Inc. v. Government of Indonesia [1955] FACTS: Plaintiff had chartered a ship to the Indonesian government who kept it after the charter was up. The government asserted that it had bought the vessel through an agent of the plaintiff and claimed immunity from the suit. ISSUE: How are the courts to adjudicate a governments claim to property? RATIO: Merely accepting a govenrments assertion of a property interest may lead to injustice to an injured party. A government that invokes the privilege of immunity must adduce evidence to demonstrate that its claim is not merely illusory, nor founded on a defective title. Waiver of Immunity and Execution of Judgements -a foreign state must submit to local jurisdiction to waive immunity however a submission before a court in which the respondent claims immunity is not a waiver (s. 4(3) of SIA -a foreign state may waive immunity before proceedings have begu (s. 4(2)(a) SIA)jurisdiction clause in a contract may amount to a waiver of immunity -a foreign state who submits to jurisdiction may still claim immunity from execution (s. 12(1)(a)) Re Royal Bank of Canada and Corriveau and Cuba--claimant leased a house to the Cuban govt and they let the pipes freeze and there was damage and he brought action against Cuba -he also got a default judgement -he tried to enforce this judgement but the court told him he could not enforce the judgement

-the record shows that the leased premises were for government use and the money in the bank were in possession of the foreign sovereign state Diplomatic Immunity -the need for diplomatic relations led to the development of principles of customary international law that were then codified first in the English Diplomatic Privilege Act, 1708 and then in the 1961 Vienna Convention on Diplomatic Relations which was ratified by Canada in 1966 and implemented by the Foreign Mission and International Organization Act -two policy justifications for diplomatic immunity 1. functional theorydiplomats must be free to serve their their nation fully 2. diplomats owe no allegiance to foreign states and are not subject to their laws Foreign Missions and International Organizations Act -3(1)Articles 1, 22 to 24 and 27 to 40 of Viena Convention have force of law in Canada Article 1-definitional section Article 9-Host state may at any time, without declaring its reasons declare that any member of the diplomatic mission is a persona non grata and the sending state must recall the diplomat or remove his privileges. If they dont, his immunity will not be recognized by host. Article 22-1. premises of the mission are inviolable by the host state except with consent 3. There is a special duty to protect the mission to prevent damage and prevent disturbaance of the peace 4. Protection from searches, requisition, attachment, execution of the premises and property Article 23-the sending state is immune from tax on the property on which the mission is located Article 24-archives and documents are inviolable whenever and wherever they are Article 27-1. the host state has a duty to protect free communication of the senders mission for official purposes by any means except a wire transmitter requires host state consent 2. official correspondence is inviolable (all communications about the mission and its functions) 3. diplomatic bag should not be emptied or detained 4. packages containing the diplomatic bag are to be marked as such and must contain only official documents 5. diplomatic courier is inviolable and cannot be subject to any changes Article 28-fees and charges levied by the mission are exempt from taxes Article 29-diplomatic agents are inviolable and the host state has a dut to protect them Article 30-1. private residence of the diplomat has the same immunity and protection 2. diplomats papers and property are also afforded protection Article 31-1. diplomat is immune from prosecution and civil liability except a) an action relating to real or immovable property that is not held on behalf of the sender state b) an action for succession where the diplomat is acting in a private capacity c) an action relating to the involvement of the diplomat in commercial conduct not related to his mission 2. diplomat not obliged to give evidence 3. no measures of execution may be taken unless they are in relation to a) through c) 4. diplomat does not have immunity in the sending state Article 32-1. immunity may be waived

2. waiver must be express 3. instigation of proceedings by a diplomat precludes immunity from counterclaim 4. waiver from proceedings does not mean waiver from execution or judgement Article 33-1. diplomat exempt from social securit provisions of host 2. exemption in para 1 is extended to private servants of the diplomatic agent on conditions a) that they are not nationals or permanent residents of the host b) they are covered by SS provisions in the sending state or a 3rd state Article 34-diplomat exempt from taxes except a) indirect taxes incorporated in the price of goods b) taxes on the real property in the host unless being used on behalf of the sender c) estate or inheritance taxes d) income tax on income earned in the host or capital gains taxes on gains made in a commercial capacity e) charges for specific services f) registration fees, court dues, stamp taxes on immovable property Article 35-diplomat not obliged to undertake personal/public service or military requisition Article 36-no dues and must permit entry of diplomats stuff and papers -no search of diplomats luggage unless there is reason to suspect that it contains goods nnot covered by the exemptions and search must be in diplomats presence Article 37-diplomats family has immunity as laid out in articles 29-36 -members of administrative and technical staff and their families have immunity as set out in arts. 29-35 Article 38-only have immunity for official acts in the exercise of functions -staff of mission only have the Immunity to the extent granted by the host but host cannot interfere with functions of the mission Article 39-only have immunity from time of entrance into host state or from the time when the appointment is notified to Minisry of foreign affairs -immunity extends to the time when service has ended and a reasonable time afterward even in the case of armed conflict Article 40-diplomats travelling to their post or returning home and their families get immunity when passing through 3rd states -3rd states cannot hinder passage of diplomats, service staff or their families -3rd states must also protect communiques 4(1) Minister of Foreign Affairas can extend privileges other then duty or tax relief privileges -can grant any benefits set out in regulation -withdraw privileges -restore privileges Diplomatic Assylum -diplomatic assylum is not part of customary international law but it is codified in certain treaties between Latin American states -in practice, there is little host states can do about it if a foreign mission seeks to protect a 3rd party -the immunity and inviolability of the foreign mission are protected under international law and this precludes action against them -a host state will rarely violate these protections thereby endangering its foreign policy interest Legal Character and Duration of Immunity Dickenson v. Del Solar [1930] FACTS: Del Solar injured Dickinson in a car accident and was sued for negligence. The insurance company asserted that Del Solar was not liable because he enjoyed Diplomatic

immunity as First Secty to the Peruvian Legation. Del Solar was denied the ability to plead immunity because the car was being used for personal purposes at the time. ISSUE: If immunity is denied by the superior minister of the diplomat can the diplomat or his subrogate claim immmunity? RATIO: The privilege of immunity is the sovereigns to waive and in this case the waiver was made by Del Solars appearance. If he had tried to plead immunity it would have been struck because it was contrary to the assertion of his superior. Ghosh v. DRozario [1963] FACTS: Ghosh alleged that Drozario had slandered him while a diplomat for India. When Drozario returned to England as a private citizen he was served with a writ. Drozario went back to India and came back to England with diplomatic status. He claimed immunity. ISSUE: Can a claim for immunity be sustained when the diplomatic status was granted after the proceedings had been initiated? RATIO: To allow the action to proceed would be an affront to the sovereign and interfere with the diplomat in the performance of his duties. Further, there is no way to sanction his conduct in court because he currently enjoys the privilege of immunity. Waiver Who can waive immunity?In R. v. Madan it was said that waiver must be undertaken by the representitive of the head of state with full knowledge of his rights. It cannot be waived by the person holding it unless he does so on behalf of the head of state. -immunity is the privilege of the state and not the individualwaiver must be undertaken by the head of the diplomatic missionalthough Madan says that the head of the diplomatic mission may waive liability, that is not yet clear U.S. Diplomatic and Consular Staff in Tehran Case (United States v. Iran) [1980] ICJ FACTS: The U.S. embassy was overrun by militants in 1980 and the diplomatic staff was held hostage. The Iranian government did not help the members of the diplomatic mission by responding to their distress calls nor did they attempt to persuade the militants to withdraw. After the embassy was taken multiple govenrmental authorites publicly condoned the invasion and hostage taking. Iran failed to appear at the ICJ but the court was able to exercise jurisdiction because both parties had signed the optional protocol of the Vienna Convention on Diplomatic Relations providing for compulsary jurisdiction of the Court. RATIO: Both the inaction of the Iranian government and its public condonation after the fact were violations of the Vienna Convention on Diplomatic Immunity. The Iranian government had a continuing obligation to protect the embassy, its papers and its communications and its people even in times of war. Consular and Other Immunities Vienna Convention on Consular Relations, 1963consent to diplomatic relations implies consent to consular relations -consular relations are more administrativeinvolve issuing visas, assisting nationals and furthering commercial, economic, cultural and scientific relations with host states -immunity for consuls is more restrictedarchives and documents are inviolable, consuls must be treated with respect and are not liable for arrest or detention except for grave crimes -grave crimes according to Canadian law are crimes with a penalty of more than 5 years -civil and criminal liability is restricted to official acts Special Missions -ad hoc committees of representitives

-no customary rule of international law but there is a treaty ( Convention of 1969 dealing with Special Missions) but it is not binding on non signatories -similar model to the Convention on Diplomatic Relations major differences are: Article 8sending state must inform the host state of the size and the composition of the mission Article 17provides that the mission must be located in a place agreed upon by the states concerned or can be located at the foreign ministry of the host state Privileges and Immunities of the UN -General Assembly adopted the Convention on the Privileges and Immunities of the United Nations -convention allows for immunity of property and assets from the legal process unless waived, inviolability of premises and archives and special privileges for representitives including criminal immunity -Canada assented to the treaty with a reservation included excluding the provisions on taxation Canadas accession was not accepted by the UN and Canada is not party to the Convention International Court of Justice -Article 19 of the Statute of the ICJ the members of the court enjoy immunity and diplomatic privilege when exercising their official duties Visiting Forces -there is no set law on the immunity of visiting forcesUS has adopted a doctrine of absolute immunity but to avoid controversy usually concludes a treaty with the host state -eg: Visiting Forces Act provides Canadian courts with jurisdiction over acts and omissions that are an offence under Canadian lawhowever, the Act also provides that the service courts of the sending state have jurisdiction over wrons committed against the host state, the person or property of another member of the force of the sender state and over act or ommission done in performance of official duties State Responsibility General Principle: Every wrongful act of a state entails its responsibility. -there are primary rules that set out the international obligations in terms of substantive codes of conduct -then there are secondary rules that specify the sanctions for breaches of obligations -state responsibility is not really codified because the procedures for its invocation usually informal diplomatic negotiations -thus, there is a dearth of case law on the subject matter and very few authoritative statements of the scope of the principle -one statement that may carry some weight is the International Law Commission, Draft Articles on State Responsibility-some of these principles are codifications of international law and some are more controversial with little support in state practice Article 1-every worngful act of state entails responsibility Article 2-every state can be held responsible for an internationally wrongful act Article 3-A wrongful act occurs when: a) acts or omissions are committed that are attributable to the state; and b) those acts violate international obligations Article 4-Acts are only unlawful if they violate international law and internal law on the conduct is irrelevant Article 19-1. An act of state that is a breach of international obligations is wrongful despite the subject matter of the obligation breached.

2. Where there is a wrongful act that is a breach of an international obligation so essential for the protection of the fundamental interest of the international community that the breach is recognized as a crime, it constitutes an international crime. 3. International crimes may result from: a) a breach of an international obligation of fundamental importance for mainatainance of intl peace and security such as that prohibting agression. b) breach of obligation wrt self determination of peoples such as maintainance by force of a colonial domination c) breaches of obligations wrt fundamental importance of human safety such as prohibiting slavery, genocide and apartheid d) serious environmental breaches 4. An other international wrongs not an intentional crime is an international delict Article 51-where there is the commision of an international crime it entails the consequences of any other wrongful act plus those in arts 52 and 53 Article 52-Where there is an international crime a) an injured state is entitled to restitution that is not limited by article 43 subs c and d. Article 53-where an international crime has taken place states are obligated a) not to recognize the situation rendered by the crime as lawful b) not to give aid to maintain the situation c) to cooperate to carry out a) and b) d) to cooperate to eliminate the consequences of the crime Basis of Responsibility: Corfu Channel Case (Merits)(United Kingdom v. Albania [1949] FACTS: British war ship travelling in Albanian waters and was damaged by a mine. The U.K. then cleared the waters of all mines. U.K. could not prove if Albania had laid the mines or if it had done so with Yugoslavia. ISSUE: If a wrongful act is committed in the territorial waters of a state, can responsibility be automatically imputed? RATIO: There is no automatic imputability but where indirect evidence shows that a state did or ought to have known of the potential for an international wrong, beyond a reasonable doubt, responsibility is imputed. -UN Conference on Racism and Intolerance(in the NP)-there have been a series of preparatory meetings in difft areas of the world but the main controversy is that a number of African countries are likely to want to discuss a claim for State Responsibility against the US for the slave tradecompensation for violation of HR -if that is put on the table, the US is unlikely to attend -the African nations also prospered on slavery and slavery still exists in certain African nations -no doctrine of inter-temporal lawif you are arguing a breach of intl law cannot look at it through 2001 glassesmust look at the customary intl law of the time, jus cogens, etc. -treaties are not retroactive unless they declare themselves to be so Rainbow Warrior Case (NZ v. France) -French govt was not pleased with Greenpeace organization b/c Greenpeace had been protesting French Nuke testing in the SP in the 1980sGP ship had been disrupting and was made to dock at Auckland, NZ -persons in scuba gear planted devices on it, it was blown up and a Dutch national was killed as a result -there were 4-5 divers, only two were arrestedFrench govt took the perspective that these were two citizens who might be members of Naval units but they denied responsibility

-this claim was suspicious, France changed its position and acknowledged that the two persons were state agents following orders of the French DG of External Security -France argued that these men were acting under orders and thus, should not be prosecuted -France participated in the Nuremberg trials where it was proclaimed that this was no defence -at the same time France was prosecuting Claus Barbie for Crimes against humanity while he was in the occuping German govt in Lyons during WWII -if something is manifestly unlawful and the person had a reasonable moral choice (ie: the choice is not between putting the bombs on the boat and getting shot in the head), the defence will not work -as a result of arbitration, NZ was compensated, the two agents were taken into French custody on the condition that they be kept in isolation in French Polynesia The Jessie, Thomas F. Bayard, and Pescawha (American and British Claims Arbitration, 1926) FACTS: British sealing vessels were boarded by American authorities and their weapons were placed under seal and they were told not to remove them. There was no treaty in place authorizing the Americans to board the ship on the high seas. ISSUE: Liability? RATIO: The acts of the American officers constituted a breach of international law. The fact that the American officers acted in good faith does not excuse their government from liability. Cosmos 954 Claim (Canada v USSR) (1979) FACTS: U.S.S.R. launched a satellite that had radioactive components and it crashed on Canadian soil. Canada had to clean up the mess and incurred expenses. ISSUES: Is the USSR responsible under the 1972 Convention on International Liability for Damage Caused by Space Objects (both were parties) or under general principles of international law? RATIO: a) Under the TreatyLaunching state is absolutely liable for damage caused to Earth by reentry. Under the treaty USSR is liable for the damage caused. Under international law, Canada had a duty to mitigate and did so. The clean-up would not have occurred had it not been for the damage caused by the satellite and Canada is entitled to damages that would put them in the position they would have been in if not for the accident. b) Principles of I.L.I) the entrance of the satellite debris on Canadian territory was a violation of sovereignty that is compensable under I.L. ii) It is a general principle of international law that states are absolutely liable. It is mentioned in numerous agreements including the applicable treaty. iii) Canada has only claimed reasonable compensation as is allowed for under general principles of international law. Im Alone Case (Canada v. U.S.) (1935) - British entered into bilateral treaty with US which allowed US to visit, board and arrest people engaged in rum-running - Cdn ship was only within 1 hr normal sailing distance of US coast when pursued onto high seas - US shot and sank Cdn ship and 1 crewman died so question was where did pursuit begin? - commissioners held that sinking by US Revenue of a Cdn ship was unlawful act b/c it was not justified by any provision of 1924 convention that governed case so awarded monetary dmges - measures must be proportionate not excessive Imputability (617) -issue is whetehr or not an act may be attributed to a state is a key element in international responsibility because it makes establishing liability easier

-problem areas are the specification of state actors and responsibility for the activities of non state actors Acts of the State -Iran Hostage Caseactions of agents are imputable to the state if they act in violation of intl law -even in the case where state agents exceed orders Draft Articles on State Responsibilityit is quite obvious to see that when you have an agent or organ of a state it is simple to trace the connection unless someone has a private vendetta -where there is a principle agent relationship, there is attribution Article 5-conduct of a state organ that has that status under internal law is imputable to the state as long as the organ was acting in that capacity Article 6-as long as it is an oran of any branch of the state, the state is responsible for its acts Article 7-acts of sub national governmental entities and organs thereof (must have been delegated govenrmental authority) are also attributable to the state Article 8: (Vicarious Liability)-if the person is in fact acting on the part of the state or exercising governmental authority they are responsible -eg: 2nd phase of Iran Hostage incidentpeople that overtook the embassy became agents of the state in fact when the revolutionary govt took over -Jaffe Casebail bondsmen took a prisoner from CanadaCanada argued that these men were acting on behalf of Florida because of the incentive provided in the form of a bond -acts of private individuals are not attributable to the country of citizenship of the nationals unless the home country has been negligent in failing to act and not performing due dilligence Article 9-where a state organ is placed at the disposal of one state by another state or international organization, the host state is responsible Article 10-Ultra Vires Acts: acts of state organs are attributable even if they exceed their instructions or competance Youmans Case (620) (1926) (U.S. v. Mexico) -Mexico stipulated to lack of imputability -dispute between a Mexican labourer and an American engineer involved in construction of a tunnel in Mexico (Americans were working for British company) -produces a riot, Medina( Mexican) got the other labourers to throw stones at the American and approach his house with a drawn machete -Connolly(American) fired shots in the aira mob then attacked the engineers and killed three of them -one engineer was killed by the Mexican troops who were assigned to protect them ISSUE: Imputability? Lack of Due Dilligence wrt stopping the mob? -US had two arguments for why Mexico should be responsible for deaths and as a consequence why compensation must be paid 1) Mexico had not used due dilligence to protect the father of the claimant from the fury of the mob (like in Hostages case where Iranian govt did not prevent acts of citizens) 2) Responsibility based on the actions of the soldiers who fired on the house of the engineers HELD: Mexico was responsible. These acts were ultra vires b/c the soldiers did not have orders to fire on Americans. The Commission takes the position that military personnel who exceed their instructions or act contrary to their instructions, as long as they are acting in a military capacity, the state is responsible directly. Not all acts of soldiers would result in responsibility for example if they act in a private capacity to loot, commit wanton destruction, etc. Acts of Private Persons International Law Commission Draft Articles on State Responsibility

Article 11-conduct of persons not acting on behalf of state are not an act of State under I.L. -this does not preclude attribution as it is laid down in articles 5-10 -the state is generally not responsible for the act of private citizens -generally, that person is prosecuted or sued domestically -but if the state refuses to provide justice, it may be responsible -or else, if the person is transformed from a person acting in a personal capacity to a state agent Types of Private Persons 1. Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v. U.S.) [1986] FACTS: Nicaragua argues that CIAs involvement w/ the contras made them US state agents. -allegations of U.S. planting of mines in Nicaraguan harbours ISSUE: Was the U.S. responsible for the acts of the Contras? RATIO: A consideration of the degree of control over the private citizens is necessary. Just because you finance a group does not mean you are controlling them as agents. In certain circumstances they may have autonomy. The U.S. was responsible for certain specific acts of the contras (ie: Mine planting) however in response to the general question of U.S. responsibility the answer was negative. U.S. participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of operations is still insufficient in itself..for the purpose of attributing to the U.S. the acts committed by the contras -need to show direction or enforcement of acts contrary to human rights and humanitarian laweffective control over the general operations of the group or persons 2. Acts of Insurgents International Law Commission Draft Articles on State Responsibility Article 14-Acts OF insurgent groups are not attributable to the state Article 15-Insurgents brings their baggage with them when they come to power. Even though they are not in government when they did what they did, they can be made responsible when they enter govt. Asian Agricultural Products Ltd. v. Sri Lanka ICSID (1990) FACTS: Damages to property of an industrial concern operating in Sri Lanka by the Sri Lankan military on reports that the plant was being used to house local rebels. ISSUE: Due dilligence and what it entails? RATIO: There is extensive and consistent state practice with regard to the exercise of due dilligence. The State was bound to take all reasonable steps to prevent the occurrence of damage to property. This included using the local municipal mechanisms to evict the rebels from their suspected hiding place prior to lauching an assault. Acts of International Organizations (628-629) -if an intl organization situated on the terrritory of a state and the organization or its agents commit a wrong on the territory of the state, the state is not responsible -if a wrong is committed by UN peacekeepers, then the UN may be liable

Circumstances Precluding Wrongness Draft Articles

-Article 29-ConsentIf a state consents to another state doing something in its territory, you cannot argue that there has been a breach of sovereignty -but the consent must be genuine and voluntary, no undue influence or duress on the state or its officials, no bribery or corruption and also the scope of consent must not be exceeded -a state cannot consent wrt any matter that would violate a peremptory norm of international law Article 30-Counter-Measures: If state A expropriated foreign property and refuses to give compensation, state B could not settle the dispute and state B decides to expropriate the property of state As nationals, the wrongfulness of the act could be precluded if it was a counter-measure which in the circumstances of the case is appropriate. -must be a a legitimate counter measure under international law -Article 31-Force Majeure and Fortuitous Events: Where a state breaches an obligation due to an irresistable force or unforeseen external event that makes it materially impossible to comply with obligations, or to know that they are not in compliance, it is not responsible -this does not apply if the state created the situation of material impossibility -Article 32-Distress-where the author of the conduct was threatened or had his family threatened such that he has no other choice to save his own life, responsibility is precluded -this does not apply where the state creates the peril or the peril that will result from the impugned conduct is comparable or greater then the distress -Necessity (Article 33)most discussed Article1. a) the act must be the only way of safeguarding an essential interest against grave and imminent peril; and b) the act does not seriously impair an essential interest of the state to which an obligation existed 2. Necessity cannot be invoked if a) the international obligation arises out of a peremptory norm of general international law; or b) the obligation is laid down by a treaty which precludes the defence of necessity c) if the state in question has created the situation of necessity Article 34-Self Defence: Precludes wrongfulness if the act is a valid self defense measure according to the Charter of the UN Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ FACTS: Hunagry and Czechoslovakia concluded a treaty in 1977, to build a series of dams in Slovakia and Hungary on the Danube. Hungary abandoned the project because of environmental problems. Slovakia insisted on compliance and planned and put into effect a project on Slovak territory. This project affected Hungarys access to the water. ISSUE: What are the criteria for invoking a claim of necessity? RATIO: 1) the invoking state must have an essential interest affected 3) the interest must have been threatened by a grave and imminent peril -peril evokes the idea of risk BUT peril is not the mere apprehension of harmimminence means immediate and not contingenta peril that is unavoidable and certain even if in the long term can be grave and imminent 4) The act must be the only means of safeguarding that interest 5) The act cannot seriously impair the essential interest of the state to which the obligation was breached 6) The state claiming necessity cannot have created the situation of necessity RESULT: Hungarys defence of necessity failed.

Defining the Injured State -state may suffer injury directly, indirectly and generally ILC Draft Article on SR Article 40: Meaning of Injured State 1. Any state which has its rights infringed by another state if the perpetrator has committed an internationally wrongful act. 2. Injured State means-a) right infringed arises from a bilateral treaty b) right arising from an international tribunal decision c) if the right arises from a decision of an international organ d) a 3rd party state who had rights arising from a treaty to which it was not party e) if the right arises by way of customary law or multilateral treaty, if the state is bound by the rule or treaty is liable for breaches if: i) the right was created or established in its favour ii) the breach of obligation affects other states rights or obligations bound by treaty or custom iii) the right was established for the protection of human rights f) if the right arises by multilateral treaty, any state party to the treaty if it is established that the right is stipulated in the treaty for the collective interest of all parties. g) For criminal matters all states no necessity to go before domestic courts -injury may be indirect like injury to nationals in which case there are rules for espousal of claims -injury can be of a general natureinjury to the intl community as a whole erga omnes aggression, human rights, prohibition on genocide Responsibility for Injury to Aliens 1. Standard of Treatment-National Treatment -if a Canadian goes to state A and is arrested and tortured or brutalized, the persons human rights have been violated, it is no defence that state A treats its citizens in a similarly brutal fashion -a state is not forced to accept foreign citizens on its territory, if it does it must meet international standards of treatmentthis might also help to improve standards of treatment for nationals -latin american states argued that this was a breach of sovereignty -eg: Neer Claim (US v. Mexico) (1926) FACTS: US national was killed by unknown assailants. The US government claimed that the Mexican authorities did not do enough investigation. RATIO: 1. Propriety of governmental acts should be tested against international standards of treatment 2. In order to constitute a delinquency the treatment of an alien must amount to an outrage, bad faith, wilful neglect of duty or insufficiency of govenrmental actions which fall far short of international standards that every reasonable state would recognize the insufficiency. It is immaterial whether the insufficiency resulted from failure to enforce a good law or by a lack of authority to enforce. -states have often attempted to use non-discrimination as a defence but international tribunals have held that if the standard of treatment of nationals is lower then international standards, states are not afforded a defence of non-discrimination -if an individual is a permanent resident, they are deemd to have accepted the jurisdiction of the state and non-discrimination will sufficeeg: if property of both resident aliens and nationals is expropriated and only partial compensation is paid to nationals, foreigners cannot expect more -if transpotation property is expropriated in times of war, full compensation must be paid

-but for human rights abuses of aliens or nationals, minimum standards of treatment are necessary Admission and Expulsion -states are not obligated to accept foreigners but if it does it must meet standards Rankin v. Iran (1987) FACTS: Rankin was employed by a U.S. company and requested a transfer from Iran after the Islamic revolution. He sued Iran for loss of salary and abandoned property. ISSUE: Expulsion? RATIO: A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling states action, (arbitrary, discrimnatory or breach of treaty obligations). This applies not only to the direct actions of a state but also to situations where an individuals continued presence in a state is made impossible by acts of state. -state can deport or expel foreigners as long as it does not do so in an arbitrary way that violate conceptions of human rights, must give a reasonable opportunity to leave the country and collect their property -this tribunal was set up following the release of the hostages in Iran, this tribunal was strikingly active wrt expropriation and compensation issue Quintanilla Claim (US v. Mexico) (1926) -Mexican person accused of lassoin a 14 yr. Old girl and then he flees, tracked down and he was never brought to the police station. Were the police responsible for his death? -tribunal found for Mexico, if police take a prisoner into custody they are responsible to account for injuries to the prisoner B.E. Chattin Claim (US v. Mexico) (1927) -US citizen accused of embezzlement while working as a railway conductor in Mexico, was arrested and brought to trial ISSUE: Does state responsibility arise through the treatment accorded to him by the court and prison system in Mexico? Was there a maladministration of justice? RATIO: The whole procedure fell below civilized standards, proceedings were insufficient, there was injustice committed by the judiciary, bad faith, undue delay of proceedings, hearings in open court were a mere formality, absence of seriousness. -denial of justice is sometimes used in other wayswhether the injustice is just with the courts or government inaction against a perpetrator of an international wrong both can be the basis of a claim of denial of justice (646)-Declaration on theRights of persons who are not citizens of the Country in Which They Live -right to liberty and SOP, right to not be arbitrarily arrested or detained, due process, right of privacy and non-invasion, equalit before the courts, free assistance of an interpreter, legal assistance in Crim proceedings; right to marry; free thought, opinion, conscience, religion subject to limits presecribed by law to protect safety, order, public health or morals or rights and fredoms of others; right to retain own language, culture, traditions; right to transfer earnings or other assets subject to domestic currenc regs; right to leave the country, free expresson, peaceable assembly, right to own property subject to domestic law; freedom of movement, choice of residence; family must be admitted to join an alien -no cruel and inhumane treatment or punishment, no experimentation without free and voluntary consent

-no expulsion without due process, no individual or collective expulsion on the basis of race, color, religion, culture, descent or national or ethnic origin -safe working conditions, fair wages, equal pay for equal work -right to join unions, and other organizations -right to health protection, edical care, social security, social services, education -no arbitrary deprivation of lawfully acquired assets -right to communicate with consulate or diplomatic mission of his state Property Canada/US free trade agreement, Nafta Chapter 1110, s. 712 of 3rd Restatement of Foreign Relations Law of the US -central issue is expropriation of property -expropriation is a violation of intl lawif a country lets a foreigner operate in their territory, expropriation is illegal (649)UN ResolutionsResolution on Permanent Sovereignty over Natural Resources (1962) 1. Right of peoples of sovereignty over natural resources must be exercised in the interest of national development and well being of the citizens of the state concerned 3. Capital imports and earnings on capial is governed by terms thereof, domestic law and international law 4. Expropriation must be based on grounds of public utility, security or national interest that override the individual interests, standard of appropriate compensation in accordance with the domestic rules and international law -this resolution was adopted by the GA by 87 to 2 with 12 abstentions Charter ofEconomic Rights and Duties of States (1974) Article 2-1. State has permanent sovereignty over wealth, natural resources and economic activities 2. a) States have the right to regulate foreign investment in their domestic law and no state shall be forced to give preferential treatment to foreigners b) States have the right to regulate multinationals according to their domestic law and corporations shall not interfere in the internal affairs of governance of the host c)Compensation standard is the domestic standard unless the parties choose to be govened by another body of law Article 16-1. Right and duty of states to abolish apartheid, colonialism, discrimination, neo colonialism and other forms of aggression, occupation, domination and the consequences thereof. 2. No state has the right to allow investment which would be an obstacle to the liberation of a territory occupied by force -the charter was adopted by 120 with 6 against and 10 abstentions -the abstentions and dissents were all from industrialized, Western countries -this is because the major difference is the standard of compensation Texaco v. Libya (1977) ISSUE: What is the standard of compensation? Is it governed by international law which means that it is full, prompt or is it governed by the domestic laws of the expropriating state? -1962 resolution had favour from a mix of countries from all over the world in different economic stagesresoltutions can be used as evidence of state practice, opinio juris to lead us to determine if there is a rule of customary international law

-Charter of Economic Rights and Duties of States (1974) p652120 in favour to 6 against, 10 abstentionsArticle dealing w/ compensation 2c) comes to the conculsion that this article was not as accepted as the rest of the Charterall industrialized countries voted against or abstained -whats the difference between the two resolution wrt compensation issue -Should the standard of compensation be drawn from the rules of intl law (Res 1803 of 1962) or else from the domestic law of the expropriating state -1803 is still the pertinent resolution on the standard of compensation -Libya agreed to pay for the expropriation of Texacos assets a monetary sum agreed between the two parties ISSUE B: Contractual Rights RATIO: A state has a right to control its own industries as a facet of sovereignty but that does not allow it to breach international commitments. Where the contract stipulates that the current rules will govern the relationship, a state cannot change the rules without the consent of the other party. What is the customary rule of international law on the standard of compensation? -res. 1803 uses the word appropriate instead of prompt, adequate and fullthis creates an ambiguity -there are two campsthe first says that appropriate means adequate and adequate means full -the other camp says that appropriate depends on the facts of the caseie: certain third world countries may not be able to pay right away -expropriation must be for a public purpose in order to be legalbut proof of the absence of a public purpose is near impossible Shahin v. Iranmajority took the position that appropriate is a flexible concept -the prompt, adequate and effective standard is not the customary international law -probably not much difference between the flexible approach and the host state dominated approach What is reparation by equivalentif specific performance cannot be given, the compensation is monetary -this case also dealt with another issue of the nationality of the claimthe claimant was a dual citizenthe espousing state must be the state of citizenship of the claimant -a state is in reality asserting its own rightso an injury to a national is an injury done to that nationals state, it is only in certain circumstances that we see the individual being able to assert their own claim at the international level -European Convention on Human Rights, Iran US claims tribunal, NAFTA Chapter 11 these are exceptions to the general rule -where the state espouses a claim there is no obligation to indemnify the injured party although this is the norm Enforcement of Claims: Espousal and Nationality of Claims Mavrommatis Palestine Concessions Case (Greece v. UK) (1924) FACTS: Greek governemnt brought an action on behalf of one its nationals who had a contract with the Ottoman empire which was the governing authority in Palestine prior to the British mandate. The British government breached the contract. The British argue that Greece does not have standing. ISSUE: Standing/espousal RATIO: A state has the right to bring suit in international law for a wrong committed against one of its nationals. Once a state has taken up the claim, in the eyes of international law the state is the sole claimant.

Nottebohn case he did not have the proper link w/ Lichtensteina state espousing a claim must have a genuine link Dual Citizensgeneral rule applied on this question (p473) 1930 Hague ConventionArticle 4-a state may not afford protection to one of its nationals against another state to which the person has nationality Article 5-respondent state only has to recognize the ability to espouse of the state that has the closest genuine link to the person -in the Iran-US tribunal, (474-5) it stated that under this tribunals terms of jurisdiction (ie: hearing individual claimants), the rules of state espousal ad the dual nationality issue is not applicable to the cases decided here -refer to the Nottebohn decision and the real and effective nationality of the individual based on the factsif this had been a case of the U.S. v. Iran has the customary norm moved away from the Hague Conventionanswer accepted in obiter is yes, if it can be established that there is a substantial connection between the citizen and state, a state may afford protection against another state to which the person holds citizenship -Corporationsmust be a genuine link as well-where is it incorporated, where are its stocks listed, etc. (Barcelona Traction) Waiver and Exhaustion of Local Remedies Ambatielos Arbitration (Greece v. UK) (1956) FACTS: Greece sought to espouse the claim of one of its nationals in a contract dispute with UK. ISSUE: Is there a duty to exhaust local remedies before bring a claim? RATIO: Where there is a direct injury to the state or organs, there is no need to exhaust local remedies (eg: Iran hostage case) BUT in all other circumstances, especially where there is a corporation concerned, there is an onus on the party to exhaust local remedies unless exhausting local remedies is going to be futile because the Supreme Court of X has already ruled on the issue (municpal law), or the remedies available are in some way not enforceable or insufficient. -this doctrine applies not only to state civil responsibility but also to human rights issuesunder the European Convention on Human Rightsthe local remedies must still be exhausted before going to an international tribunal Waiver-if someone waives (without undue influence) state espoussal, and to utilize the domestic system then such a waiver will be upheld eg: North American Dredging Company Claim (1926) Calvo Clause: a clause by which a person decides to waive its right to pursue the claim internationally and accepts the jurisdiction of the host state. ISSUE: What can be waived by such a clause? RATIO: Such a clause precludes the claimaint from seeking an international remedy related to the performance of the contract. It does not preclude the invocation of international remedies/jurisdiction where there has been a denial or maladministration of justice that is considered an internationally wrongful act. if you go before a local court system and are treated with a lack of seriousness by the court (eg: Chattin) Canadian Espousal of claims -must have been a Canadian citizen at all relevant times -local remedies must be exhausted unless there is a denial of justice -for corporations, must be incorporated in Canada

-shareholders of non Canadian companies who are oppressed may seek Canadian espousal of claims Remedies Draft Articles on State Responsibility Article 41: Cessation of Wrongful Conducta state commiting an internationally wrongful act has the obligation to stop this conduct if it is ongoing Article 42: Reparations1. state has a right to reparations for injuries in the form of restitution, compensation, guarantee of non repetition 2. In determination of reparation, account shall be taken of negligence or wilful conduct of: a) the injured state; or b) a national of the injured state who brings the claim which contributed to the damage 3. Raparation cannot deprive a population of a state of its means of subsistence 4. Cannot invoke internal law as justification. Article 43: Restitution in KindInjured State is entitled to be made whole provided: a) it is not materially impossible b) would not involve a breach of a peremptory norm c) the burden to the defendant state does not outweigh the benefit obtained by the injured state d) it would not seriously jeopardize political and economic stability to pay and that if not paid the injured state would not be similarly affected Article 44: Compensation1. Beyond restitution an injured state is allowed to claim compensation. 2. May include interest and loss of profits. Article 45: SatisfactionInjured State is entitled to receive satisfaction for moral damages which can take the form of: a) an apology b) nominal damages c) where the infringement of the rights is gross, damages reflecting the gravity of the breach d) disciplinary action or punishment of officials responsible for misconduct or criminal misconduct 3. This right does not justify demands which would impair the dinity of the state which committed the internationally wrongful act. Article 46: Assurances and Guarantees of Non-Repetitioninjured stae is entitled to receive these. Charzow Factory Case (1928) (PCIJ) RATIO: Reparations are due upon commitment of an internationally wrongful act. The measure of reparations is paid by the state to another state espousing the claims of its nationals. Countermeasures -because of the frequent failure of States to except the jurisdiction of international tribunals, states often resort to what would be internationally unlawful acts if not for their character as counter measures which precludes wrongfulness ILC Draft Articles on State Responsibility Article 47: Countermeasures by an Injured State: 1. If a state does not comply with its international obligations, an injured state may take counter measures 2. Those countermeasures must be consistent with Arts. 41-46 3. A countermeasure that affects a third state is not justifiable.

Article 48: Conditions Relating to resort to Countermeasures 1. Prior to taking CMs a state has a duty to negotiate but this does not preclude taking steps to protect themselves from injury. 2. An injured state taking CMs must fulfil obligations in relation to dispute settlement mechanisms 3. CMs must be suspended upon cessation of an internationally wrongful act provided that the States are settling their disputes in good faith pursuant to the proper dispute settlement mechanism 4. CMs may proceed where a State does not comply with orders of an international tribunal. Article 49: ProportionalityCMs cannot be disproportional to the wrong originally committed Article 50: Prohibited CountermeasuresAn injured state may not by way of CM resort to a) threat or use of force as prohibited by the UN Charter b) economic or political coercion designed to endanger the integrity or independence of another state c) violations of diplomatic or consular agents, premises, archives, documents d) violations of basic human rights e) violations of peremptory norms of international law Mar. 21/01: Stepan Wood Lecture on State Responsibility for Environmental Harm -state responsibility plays a relatively insignificant role in intl environmental law -intl env. Law has its origins in theories of state responsibilityTrail Smelter Arbitrationis the foundation of intl env. Lawsmelter at Trail, B.C. was emitting fumes that crossed the border into Washington State and caused property damage their -in default of private remedies the two govt decided to arbitrate the disputes -the arbitral tribunal enunciated a principle in finding against Canada(982) no state has the right to use or permit the use of its territory as such as to cause injury by fumes to a neighbouring state -Lac Lanoux (983)Hydro electric development where France wanted to dam a river shared with Spain -when dealing with environmental issues that have shared effects there is a duty of consultation -1972, UN Conference on Human Environment @ Stockholmoccurred at the same time as the emergence of the modern environmental movementStockholm Declaration (985)Principle 21 reiterated the basic principle of responsibility for transboundary harmstates have a sovereign right to exploit resources and a corresponding obligation to ensure that such activities do not cause harm to neighbouring states -Stockholm Conference urged states to work towards rules for liability and responsibility -what has happened?nothing -1992, Rio ConferenceRio DeclarationPrinciple 2it reiterates the Stockhold principle on state responsibility -principle 13reiterates the desire to found a regime for settlement of disputes -very few recent cases about state responsibility -one case where Australia V. Nauruended in settlement but denied Australian responsibility Why is SR relatively insignificant in International Environmental Law? Why has so little progress been made on developing the rules of SR? 1. nature of the actors involved in environmental problemsnot exclusive to environmental arena, states are not the relevant actors in the realm of international law -it is now private actors that are causing the problems but they do not have standing in international law -thus, the focus has been on the polluter themselves rather then the polluting stategiven rise to the Polluter Pays principle -also, there has been a focus on private remedies for harms caused to the environment

2. nature of the problemsthese problems are global problems with difuse impacts and the focus is on harm to the commons rather then harms to the individual states -it is difficult to pin down responsibility 3. Limitations of the Rules of SRa reasonableness or due dilligence defense is available to the governments involvedthere are some exceptions for ultra-hazardous activities but the general rule is due dilligence -it is very difficult and expensive to disprove DD -also, the complaining state must establish that it has suffered a grave injury 4. Political Sensitivitytension between devped and devping countries and the political reality of victim Pays -N/S difference dominates environmental issuesall of the treaties requires a consensus between N & S and this robs these treaties of their substantive force -the lions share of the responsibility is forced on the devped world and the devping world takes limited responsibility -devped world caused the existing problems -any talk of state responsibility would scuttle the existing consensus victim paysgovts have found that the dominant principle is that victim pays when dealing with intl problems -eg: problems with the downstream states on the Rhine was resolved when the downstream states paid the polluters to stop their behaviour -similar situations whereby the 1st world pays for the 3rd world to stop polluting -this turns state responsibility on its head 5. These Issues are Being Dealt With Elsewherethis is being dealt with in the state responsibility field and international liability for acts not in violation of international law 6. Supremacy of Economicsthe emphasis has been on opening of borders and making states responsible for not opening borders -NAFTA, Chapter 11 -side agreement on the environmentdoes not focus on SR instead discusses domestic obligations and not international obligations 7. Era of Institution/Norm Building -many treaties and institutions have been developed but are still in their infancy -price of consensus is weak substance (general, vague, incapable of real measurement) impossible to prove causation, damage, responsibility 8. Sustainable Developmentthis is the era of sustainable development where the environmental crisis is something that can be managed through existing institutions and this is what sustainable development is all about Self Determination History of the Principles -idea of SD is not a modern phenomenon, has been present throughout recorded history people have always used similar language to assert their independence from political control -London congress of Socialist International of 19th C is replete w/ language of SD -US Revry War was about SD, French RevnFraternite was linked to consent and SD -WWI saw the greatest use of the term -post WWII UN Charter was intended to end all wars and prominent in this document was Self Determination Article 1 of UN Charter(2) purposes of the UN is develop friendly relations among nations based on the principle of respect for human rights and national determination of peoples and to take other appropriate measures to strengthen peace Article 55, 73-elaborate provisions/indications of international legal obligations of states to maintain the principle of SD

-three years later the Universal Declaration of Human Rights was adopted but it does not mention self-determination or that most of the global population was living under a colonial regimethis is because the drafters were colonial powers -1945-46became impossible to ignore anti-colonial currents especially with the entrance of India, colonial Africa and L.A. -1961Resolution 1514General Assembly Resolutionsubjection of peoples to colonial rule is contrary to principles of human rights -all people have the right to Sd and by virtue of this right they freely pursue their social and economic development -underdevelopment should not be an impediment to realization of Self Determination -armed action to suppress colonial action is not permitted -became clear that in this period 1945-1961colonialism lost its persuasive force Two Covenants: International Covenant of Human Rights & Covenant on Social, Cultural Development -both covenants have as their first article a statement on SDit says that all peoples have the right to Sd and by virtue of that right they have the right to freely pursue their social and economic developmentall peoples may for their own ends freely dispose of their national wealth and resources without prejudice -these treaties give Resolution 1514 binding force at international law -1993Vienna Declaration and Program of Actionissued after Vienna world conference on human rightsstates clearly that all peoples have the right to self determinationthis replicates a 1975 resolution of the UNGA Declaration on Friendly Relations which was an authoritative interpretation of the UN Charterright of SD is available to all peoples but this right ought not lead to the division of any state if that state is conducting itself in compliance with the values of equality of peoples and respecting the human rights of all peoples -general exception in the case of colonized peoples who always have the right to impair the integrity of their colonial oppressors What does SD Really Mean?Profesor Levin the right of a people of a nation freely without outside pressure to determine their state affiliation including the right to form an independent state and to detemrine the forms of their economic, political and social life. -(pg 59) Judge Dillard opinion in Western Sahara Caseit is for the people to determine the destiny of the territory and not for territory to determine the destiny of the people How do States Attain SD? -political meansensure representation, protection of minority language, culture, limited degrees of autonomy, right of forcibly divided states to unite, right to secede, right to dissolve a state peaceably and form a new state, right to choose attachment to other countries -most established face is the right not to be colonized -two cases have affirmed the right of SD: Quebec Secession Ref & Katangese Peoples Asscoaition v. Zaire -both cases say the same thing, court were faced with a seccessionist claim and used the Marbury v. Madison strategythe particular minority group has no right to secede but there may be circumstances where a peoples has the right to secede if: 1. Where a people is a former colony 2. where there is oppresion under a military government 3. if they can show that they have been fundamentally excluded from the political infrastructure -if these circumstances have not been met, the peoples have a right to negotiate in good faith The right belongs to Peoples

-most people use the term to refer to groups that have common aims Self Determination and Globalization -Is it non-sensical to talk about a peoples right to SD in an age of globalization?

Limitations on the Use of Force -limitations imposed upon states on their ability to use non-peaceful methods for the settlement of disputes -pre-1945, some attempts to prohibit the use of armed conflict to settle intl disputes through the league of Nations but these were only successful with smaller scale conflicts General Treaty for the Renunciation of War (1928) -no enforcement mechanisms, produced by League of Nations which was dismantled when UN was created, unable to stop the invasion of Abyssinia by Italy pre WWII -this treaty has been superceded by the UN Charter, etc. but remains in force Article 1parties renounce war as an instrument of foreign policy Article 2settlement of disputes shall only be sought through pacific means UN Charter Article 2(3)all disputes should be settled by peaceful means so as not to endanger international peace, security or justice Article 2(4)deals with prohibition of the use or threat of use of force against the territorial integrity or indepedence of any state in any manner inconsistent with the purposes of the UN 2(7)deals with non interventionnothing authorizes the UN to deal with matters that are within the domestic jurisdiction of sovereign states within their own territoryWhat is domestic? Eg: Apartheid in S.A., S.A. claimed it was within the domestic jurisdiction of South Africa no right of UN to intervene -where there is a widespread and systematic violation of human rights and freedoms, the concept of domestic jurisdiction is superceded -Principle of non-intervention is stated to be not prejudicial to the application of Chapter 7 of the UN Charter which details the role of the Security Council of the UN when it legitimately takes a measure because it has determined that State Xs actions or conditions are a threat to International peace and security

Article 7sets up the institutional mechanisms of the UN and allows for the creation of new institutions if necessary -Article 41SC can decide what measures are necessary to implement their resolutions Charter of the OAS (1948) Article 18non intervention in the affairs of states through armed force or other acts of interference Article 19no use of coercive measures to force states to do things or obtain advantages Article 20territorial integrity of states is inviolable and cannot be subject to military occupation, territorial acquisitions gained by force or coercion are not recognized Article 21no use of force except self-defence in accordance with existing treaties Definition of AggressionSC members frequently use veto power and as a result the UNGA adopted this resolution by consensusit is supposed to help the SC establish a non-binding guideline to determine when there has been an act of aggression so they can make a response in the form of economic sanctions or military intervention -this definition is fraught with ambiguityalthough, it can be a useful tool because the UN Charter has not ruled out the use of force in self defence, defence of citizens and other humanitarian proceduresthe prohibition on the use of force can be rebutted -Article 1Aggression is the use of armed force by a State against the sovereignty, territorial integrity or independence of another or in any manner inconsistent with the Charter of the UN -Article 2a first use of force may be a prima facie act of aggression (but this may be rebutted in circumstances of premptive attacks, protecting citizens) -Article 3 list of acts of aggressioninvasion, blockades, bombardment, use of territory to allow entrance of armed troops into another state, attacks on armed forces, sending mercenaries -Article 5no consideration either political, economic, military can justify aggression, aggression is a crime against international peace and is accompanied by state responsibility, terriotrial acquisitions by aggression are not recognized Article 6nothing in this affects the justifiable use of force under the UN charter Article 7nothing in this document prevents peoples from exercising their right to selfdetermination especially against colonial or racist regimes Justifications Several cases where intervention may be legitimate 1. collective intervention by the UN pursuant to Chapter VII of the UN Charter or sanctioned by the GA under Uniting for Peace Resolution 2. protecting the rights of nationals eg: (Israels raid on Antebbe airport in Uganda, bombing of Iraqs nuclear reactor) 3. Right of Self Defence(refer to 170 declaration and article 51)individual or collective if a state invades another state the invaded state can resist and ask for help from 3rd states these 3rd states although not in danger themselves, may respond (collective self defence) -w/ Nicaragua, U.S. argued that it was defending El Salvadormust show a real right of selfdefence and that the victim state has asked for assistance 4. A state acts in the affairs of its protectorate which it is obligated to assist by treaty 5. Where the state being intervened in has committed a gross breach of I.L. and the intervening state does so for humanitarian motivesTHIS IS VERY CONTROVERSIAL 6. Where the lawful government of the state asks for assistance through a real and genuine invitation Right of Self Defence: UN Charter

-Article 51nothing precludes self defence measures if an armed attack occurs until the SC has taken measures and once self denfence measures are taken by a state they must be reported immediately to the SC pre-emptive or anticpatory self defence(p 1125)The Caroline (UK v. US) (1837)dispute between the UK acting on behalf of Canada and the U.S. concerning the pushing of a ship (The Caroline)over Niagara falls, some Americans died -there was a rebellion going on in Canada and some Americans were assisting the Canadian rebels and this ship was assisting the rebels -both sides agreed on the criteria for this kind of self defence action 1) necessity of self defenceinstant, overwhelming, leaving no choice of means or instant for deliberation 2) if you do act preemptively, you cannot be unreasonable or excessive (reasonableness and proportionality test) -how is this reconciled with the phrase in article 51 if an armed attack occurs -there is a customary international law rule allowing for a state to use a preemptive strike -definition of aggression lists aggressive acts -preemptive self defence has not died out International Military Tribunal (Nuremberg War Crimes Trials) (1947)the defendants before the tribunal were being prosecuted for crimes against peace, war crimes and crimes against humanity -initiation of aggression is an international crime and individual responsibility follows Crimes against peace -the reason asserted by Germany for invading Scandinavia was fear of a preemptive strike by the alliesCaroline case was relied on by the court who held that there was nothing to show that the allies were actually planning such an attack Military Activities In and Against Nicaragua Case (Nicaragua v. US) [1986] RATIO: Collective or individual self defece is an exception to the prohibition on the use of force because it is a matter of customary international law. Israeli Attack on Iraqi Nuclear Research CentreSecurity Council Debate (1981)Israel and its backers argued that it was necessary because of the imminent danger to Israel because the reactor was about to go hot and be capable of nuclear weapon production -Iraq contended that the reactor was going to be used to produce nuclear energy -Iraq and Israel are in a state of war (no peace accords), given the geographical proximity, the state of war and statements by Hussain and others that it was necessary for Israel to make this surgical strike Security Council Resolutioncondemned Israel, with even the U.S. voting to condemn Israel -Jeanne Kirkpatrick said that the reason they condemned Israel was that Israel did not resort to peaceful means first -Iraq was a party to the non proliferation treaty treaty and had allowed UN inspectors to examine the facilities and found that Iraq was behavingIsrael was not a signatory Self Defence of Nationals -if states citizens were in a foreign country and the political situation with the foreign state deteriorated and the citizens were in jeopardy, a state may intervene to save their nationals -the intervention for this purpose must be proportional and reasonable just as other SD measures The Entebbe Raidthe Israelis attacked the Ugandan airport on the justification that their citizens were endangered

-terrorists had boarded the plane @ Athens -two days after the hijacking, the terrorists released 47 passengers who were not Jewish or Israeli citizensthese witnesses recounted that the hostages were being guarded by Ugandan forces who were assisting the hijackers -U.S. backed Israel Hijacking Conventionboth Israel and Uganda were signatories and thus, Uganda had an obligation to resist/not cooperate with the hijackers, etc. US has used this justification on a number of occasionsUS intervention in Grenada, Panama but in these situations they also presented (in Grenada) collective self defence, preemptive self defence -in Grenada, US citizens living there were not in any real danger Humanitarian Intervention -majority of 19th century publicists admitted the existence of a right to intervene to protect human rightseg: intervention to support the Greek revolution, French intervention in Syria to stop the massacre of the Maronites -Article 2(7) prohibits intervention, so the intervention to protect human rights is now disputed -however, post Persian Gulf War it has been realized that if Humanitarian intervention is approved by UNSC then it may be undertaken, especially if non-intervention may have the effect of destabilizing international relations -concern if humanitarian intervention is unilaterally done, it may be for non-humanitarian, selfinterested reasons -this type of intervention may only be justified if taken in a collective form, approved by the SC Javier Perez de Cuellar UN S-G Security Council Resolution 688 (1991) -affirmed the duty not to intervene but condemns the repression of the Kurds, demands an end to repression, insists that UN humanitarian forces be allowed to provide aid, appeals to all states to contribute aid, demands Iraqi cooperation -SC acting under Chapter VII, must find that there is a threat to international peace and security -SC refers to Art. 2(7) which disallows intervention but not to be read inconsistently with Chapter VII massive flow of refugees which affected the stability of the areaKurdish refugees were fleeing to Turkey -SC also condemned the action of militants in Haiti in 1991 and demanded the restoration of President Aristide to office -US used restoration of democracy as a ground for intervention in Panama to remove Noriega -note 4 (1142)Must decide who are candidates for SD at customary international law restrictive list of candidates needed to restrict fragmentation of states (when Organization of African Unity was set up, they made a statement that the OAU states would respect current borders) Invitation -when states are invited to intervene this is not aggression but the requesting government must be the lawful government and in control of the territory, the invitation must be genuine and voluntary without undue influence, the invitation must be made by someone with the authority to make it -Can a state intervene to suppress a civil rebellion?as long as the government issuing the invitation is not suppressing a self determination movement, it is legitimate

Collective Measures Pursuant to the UN Charter Article 25the Security Council is charged with the responsibility of maintaining peace and order and acts on behalf of the member states. Security Council can submit annual recommendations to the GA. Article 26Member states are bound to accept and carry out the orders of the SC and act in coordination with the SC Article 39SC can determine the existence of a threat to peace and make recommendations or decide what measures to take to maintain peace and security Article 40Before making a recommendation, the SC can ask to parties to accept provisional measures as it deems necessary without prejudice to complying parties but it can take into account the failure to comply Article 41SC can decide what measures short of force are to applied and this can include: interuption of economic relations and rail, sea, air, postal, telegraphic, radio and other means of commuication and severance of diplomatic relations Article 42If measures under article 41 would e inadequate, SC can authorize other means such as blockade, demonstrations or other operations Article 43States are responsible to make their armed forces and infrastructure available for use to the SC and may negotiate agreements for the numbers, types and degrees of readiness of their forces Article 44If SC wants a non SC member to participate, they can also invite that memebr to participate in decisions affecting their force Article 45Air force contingents must be provided in accordance with special agreements Article 46Plans for application of armed force shall be made by the SC with the assistance of the Military Staff Committee Article 47Establishes the Military Staff Committee to coordinate military action which shall consist of the chiefs of staff of the big 5 and any other member invited by the SC Uniting for Peace Resolution (U.N 1951) The Resolution: Was passed by the General Assembly. The Resolution recognized the primary role of the Security Council with regard to maintaining international peace and security, but also recognized that the General Assembly was competent to consider this issue. The Resolution declared that when the Security Council was unable to act due to the veto of one of the permanent members that the General Assembly would meet to consider recommendations to members for collective measures, including the use of armed force if necessary. Key elements: Failure of the Security Council to discharge its responsibilities does not relieve member states of their obligations, or the UN from its responsibilities under the Charter to maintain peace. General Assembly can make recommendations to members states for collective actions. These may include the use of armed force when necessary to maintain or restore international peace. Member states are asked to survey their resources in order to determine the nature of the resources they could make available if called on. Also, states are asked to maintain armed forces that could be promptly be put to service by the UN Subsequent Uses: First during the Korean war. This resolution was utilized again in 1956 (UNEFEgypt), 1958 (Lebanon & Jordan), 1960 (UNOC-Congo), 1967 (Middle East), 1971 (Bangladesh), 1980 (Afghanistan), 1981 (Namibia), 1980, 1982 (Palestine). Certain expenses of the UN Case

- Some objecting states claimed that the peacekeeping forces raised under the resolution were unconstitutional. - The ICJ decided that the Security Councils responsibilities are primary and not exclusive. The General Assembly under Articles 14 and 18 may make decisions respecting international peace. - Distinction between enforcement action (only SC can authorize), and other measures to preserve peace and security (which GA can do too). Security Council Powers Under Chapter VII The SC has broad powers under Chapter VII of the UN Charter. The first time the SC exercised its entire powers under the Chapter was during the Iraq-Kuwait crisis. It made several resolutions: Resolution 660-Article 40 Provisional Measures Condemning Iraqs invasion and demanding the it withdraw immediately. This should be followed by Iraq-Kuwait negotiations regarding their differences. Resolution 661-Article 41 Sanctions not involving armed force Decided to take measures as a result with Iraqs failure to comply with 660. These measures include import sanctions, no economic dealing with either Iraq or Kuwait, no member state to supply any commodities to these 2 countries aside from humanitarian aid. Called on all states, including non-members to act in accordance with the previsions of the resolution notwithstanding any contracts they may have with Iraq. States should take appropriate measures to protect assets of the legitimate govt of Kuwait, and not recognize the regime set by Hussein. Resolution 662 The annexation of Kuwait has no legal validity and is void and should not be recognized by any states. Demands that Iraq stop its actions to annex Kuwait. Resolution 664 Demands that Iraq permit the departure of the national of third countries and that Iraq take no action to jeopardize the safety/security of these nationals. Resolution 665 Requests all member states to coordinate their actions in order to ensure that resolution 661 is carries out Resolution 670 states are not to allow any aircrafts to take flights from their territory into Iraq other than food in humanitarian circumstances Members states are to detain any ships of Iraqi registry which enter their ports. Resolution 674 Iraq stop taking hostages and mistreating third-state nationals. Called on the Secretary General to use his good offices to reach a peaceful resolution. Resolution 678 Authorizes the use of all necessary means to implement Resolution 660 if not complied with by Jan 15. All states are to provide appropriate support to these actions.

Resolution 687 Established detailed terms of submission by Iraq, including return of all Kuwaiti people and property, respect for the intl border with Kuwait, destruction of all chemical, biological and nuclear weapons, payment of compensation for damage caused out of a fund constituted from Iraqs oil exports, and acceptance of a UN Observation Mission to monitor the zone. Iraq (notwithstanding statements it made during the crisis) still must repay all of its foreign debt. Resolution 661 still applies to prevent states from selling Iraq arms and certain technological equipment. Terrorism If a state sponsors terrorist acts or aids terrorist groups in any way to further its or their goalsit would be in violation of Article 2(4) of the charter, of the 1970 Declaration on Principles of intl Law, and be an act of aggression under article 3(g) of the 1974 Definition of Aggression. UN General Assembly has sponsored 8 multilateral conventions and 2 protocols against terrorism. These seek to prevent hijacking aircrafts, hostage taking, offences against nuclear material, offences against maritime vessels, terrorist bombings. Security Council in Resolution 731 condemned the destruction of the flights over Lockerbie and Chad. It deplored the fact that Libya had not responded to requests to cooperate fully in punishing the terrorists. It was stated that in complying with this resolution Libya would be contributing to the elimination of intl terrorism. When Libya didnt comply, the SC adopted Resolution 748 under the provisions of Chapter VII: - imposed universal and mandatory commercial and diplomatic sanctions on Libya, effective April 15, to secure compliance with the surrender order. Peacekeeping Role of the UN Practice of sending UN peacekeeping forces into crisis situations while well established was not envisaged in the Charter itself. These forces are peacekeepers and not peacemakers and their placement requires the consent of the state in whose territory they are stationed. With the end of the Cold War, the increased cooperation among major powers has seen peacemaking come to the fore. The new regime required more robust actions by UN forces who often had to act as peacemakers as well. Secretary Generals Report on the Work of the UN Reaffirms how varied the role of the UN peacekeeping missions has become. In particular non-traditional UN missions are the ones involving Iraq: the demarcation of the boundary between Iraq and Kuwait, the elimination of Iraqs mass destruction capability, management of a compensation fund..Breaking new ground in Intl experience. An Agenda for Peace ( UN Secretary General 1992) The UN must be capable of realizing the objectives of its Charter to achieve social progress and better standards of life in larger freedom. In the past the UN was powerless to deal with many crisis because of the vetoes cast in the SC. However now that these vetoes are rare the UN must 1. Seek to identify situations that could produce conflict and try to resolve through diplomacy 2. To work to preserve peace where fighting has been halted and assist in implementing agreements. 3. Assist in rebuilding institutions and infrastructures of nations torn by civil war.

4. Address the main cause of conflict: economic despair SD pg 53-67 -All peoples have the right to SD (56) exerpt from Western Sahara casecolonial people have the right to seek SD -East Timor Caseprinciple of SD is recognized by the Charter and jurisprudence of the court and some would suggest it has risen to the level of jus cogens -applicable to colonial peoples, neo colonial people being oppressed (aparthide) -Secession Referenceonly way a homogenous group with a common language and culture existing in a sovereign state must evidence fundamental discrimination, functional subjugation, attacks on its existence, human rights violations in order to have the right to SD -one action that would amount to aggression is sending mercenaries, armed bands, etc. -UN Declaration on Principles of Friendly Relationsevery state as the duty to refrain from organizing armed bands for the purpose of invading another state -every state has a duty not to allow, permit, assist armed bands in other states to overthrow an established government -but, when dealing with groups struggling for SDthere is a conflict because the concept of SD can be used to meddle in the affairs of other statesnothing in the foregoing paragraphs should be construed as permitting the destruction or impairment of territorial integrity of sovereign independent states who are abiding by principles of self determination Article 7 of Definition of Aggressionif the group claiming SD does not fall into the category of receiving the right to SD, they cannot receive aid from external sources -does not define struggle(peaceful?, military?), support (financial?, military?, moral?)