Advanced Public International Law

Topic 1: Law of Treaties

Introduction to the Law of Treaties
1. What is a treaty?
Vienna Convention on the Law of Treaties, Article 2 (1)(a): For the purposes of
the present Convention: Treaty means an international agreement concluded
between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation;
Four Elements:
(i)

Concluded between States

-

(ii)

Intergovernmental Organisations can also enter (customary

international law principle). VCLT will not govern these. Article 3
expressly preserves legal force.

In written form

Legal Status of Eastern Greenland case (Norway v Denmark) PCIJ Rep

(1933) Series A/B No 53

Denmark had established colonies in other parts of Greenland.

Eastern part of Greenland remained uncolonised harsh environmental
conditions.
Norway sent expedition to eastern Greenland and claimed sovereignty with
possession in 1931.
Proof of conversations between Norwegian Foreign Minister and Danish
Minister accredited to Norway at the peace conferences after WW1 to the
effect that: Denmark proposed that it would allow Norway to claim
Spitzbergen if Norway agreed not to challenge any Danish claim to the
whole of Greenland. At a later meeting, Norwegian Minister told the Danish
Minister that Norway would not create any difficulty concerning the Danish
claim.
Denmark claimed that this constituted a binding treaty under international
law and thus Norways 1931 claim was in breach of their obligation

Held:

Norwegian Ministers words affirmed a commitment by Norway not to

object to Danish claims to sovereignty of the whole of Greenland. Minister
for Foreign Affairs can by verbal commitment bind the state he represents
when answering a question in the context of diplomatic relations which falls
within his province of authority.
Norway was thus under an obligation to refrain from challenging Danish

Not necess

Nuclear Tests Cases (Australia v France, New Zealand v France) ICJ

Rep (1974) 253

Australia and NZ brought cases against France seeking an order from the
court preventing Frances atmospheric nuclear testing in the Pacific
France (through authoritative sources) had since made representations that
it would cease its atmospheric testing:
1. President of Republic issued communiqu stating that France was in
a position to change to underground testing after that summer
2. President of Republic stated at a press conference that France was
committed to ending their atmospheric nuclear tests
3. Foreign Minister made statement to General Assembly of UN that
France was moving to underground testing of its nuclear weapons
France claimed these unilateral declarations constituted a binding
obligation on it not to carry out any more atmospheric tests (and further
than the court had no issue to decide if they were right)
Australia and NZ objected because they wanted the court to declare the
atmospheric tests to be against international law

Held:

When states makes declaration with the intention that it should be bound,
that intention makes the statement legally binding and the state will be
required by international law to act consistently with its undertaking
In the case of unilateral undertakings, nothing in needed such as quid pro
quo or affirmation or acceptance by any other state, and the undertaking
will be directed to all states
Not all unilateral acts will draw an inference of a binding obligation, it is a
matter of intention
Where statement restricts a states freedom of action, the approach of the
court should be restrictive
Trust and confidence is part of international law and states should be able
to rely on declarations made by other states
The undertaking
cannot befor
said
to subject
to an
arbitrary just
power
of
- Not necessary
legally
binding
agreement,
necessary
for
VCLT to apply.
-

Art 3 VCLT expressly preserves legal force of oral treaties.

VCLT & CIL no prescribed requirements for written form

ICJ emphasis on intention of parties where no prescribed law;

parties free to choose appropriate form to express their intentions.

Ct will look at intention to see if oral agreement is binding in same

way as treaty

(iii)

(iv)

Context surrounding will be important

Governed by International Law

-

VCLT no express requirement in Art 2 (1) (a) to look at intention of

parties as to whether they are governed by international law,
however the requirement is said to be embraced by this element.

International law governs all treaties whether or not they are within
the scope of VCLT.

Embodied in single or 2 instruments

-

Treaties may be several forms:

a) Conventions
b) Agreements
c) Protocols
d) Charter
e) Exchange of notes-

There are less formal agreements such as exchange of notes

(letters). States may send letters to each other and agree on
certain things. If the letters intended to be a treaty, it is customary
to expressly state that it shall constitute an agreement between
Governments.

2. Treaty Negotiation
Political Alliances and Groupings:
G-77 - The Group of 77 at the United Nations is a loose coalition
of developing nations, designed to promote its members'
collective economic interests and create an enhanced joint negotiating
capacity in the United Nations. There were 77 founding members of the
organization, but the organization has since expanded to 131 member
countries.
Non-Aligned Movement - The Non-Aligned Movement (NAM) is a group
of states considering themselves not aligned formally with or against any
major power bloc. As of 2011, the movement had 118 members and
20 observer countries.
OECD - The Organisation for Economic Co-operation and
Development is an international economic organisation of 34 countries
founded in 1961 to stimulate economic progress and world trade. It defines
itself as a forum of countries committed to democracy and the market
economy, providing a platform to compare policy experiences, seeking

answers to common problems, identifying good practices, and co-ordinating

domestic and international policies of its members.
P-5 - the five permanent members of the United Nations Security Council
China, France, Russia, UK, US. Have the power to veto any substantive
resolution.
European Union, Nordic, ASEAN - The European Union (EU) is
an economic and political union of 27 member states which are located
primarily in Europe. The Association of Southeast Asian Nations is a geopolitical and economic organization of ten countries located in Southeast
Asia.
CANZ Canada, Australia and New Zealand
AOSIS - Alliance of Small Island States (AOSIS) is an intergovernmental
organization of low-lying coastal and small Island countries.

3. Treaty-Making

Power to enter into treaties: In Australia, a prerogative power of the Crown Constitution, ss 61, 51(xxix). Historically an ad hoc process

VLCT Article 9 Adoption of the Text (1) The adoption of the text of a
treaty takes place by the consent of all the States participating in its drawing
up except as provided in Paragraph 2. (2) The adoption of the text of a treaty
at an international conference takes place by the vote of two-thirds of the
States present and voting, unless by the same majority they shall decide to
apply a different rule.

VCLT Article 7 Full Powers State rep produces full powers, or it appears
from practice of States concerned that intention was to consider that person
as representing the State:
(1) A person is considered as representing a State for the purpose of adopting
or authenticating the text of a treaty or for the purpose of expressing the
consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full powers.
(2) In virtue of their functions and without having to produce full powers, the
following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs,
for the purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a
treaty between the accrediting State and the State to which they are
accredited;
(c) representatives accredited by States to an international conference or to
an international organization or one of its organs, for the purpose of adopting
the text of a treaty in that conference, organization or organ.

VCLT Article 8 Subsequent confirmation - Otherwise treaty of no legal

effect without subsequent confirmation.

4. Expressing Consent to be Bound:

Most critical step in treaty formation

Activates treaty and produces legal effects for consenting State
NO State is bound by treaty unless manifests its consent to be bound
VCLT Article 11 - The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other means if so
agreed.

5. Entry Into Force:

VCLT Article 24(1) - A treaty enters into force in such manner and upon such
date as it may provide or as the negotiating States may agree.
More straightforward in the case of bilateral treaties.
Effect of entry into force: VCLT Article 26 (pacta sunt servanda): Every
treaty in force is binding upon the parties to it and must be performed by
them in good faith.

6. Article 18 of the Vienna Convention of the Law of Treaties:

Pending entry into force VCLT Article 18 - A State is obliged to refrain from
acts which would defeat the object and purpose of a treaty when: a) it has
signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or
b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly
delayed.
Article 18 continues to apply until a State makes it clear that it does not
intend to become a State party to the treaty.

7. Treaties and Third States:

VCLT Article 34 - treaties do not create rights or obligations for third States

VCLT Article 35 - an obligation may arise for a third State from a provision of
a treaty if the parties so intend, and the third State expressly accepts that
obligation in writing

VCLT Article 36 - a right may arise for a third State from a provision of a
treaty if the parties to the treaty intend to confer that right, and if the third
State assents

8. Amendment of a Treaty

VCLT Articles 39 41

Art 39: The General Rule A treaty may be amended by agreement between
the parties.

Art 40 Amendments to multilateral treaties unless treaty otherwise

provides, (2) Any proposal to amend a multilateral treaty as between all the
parties must be notified to all the contracting States, each one of which shall
have the right to take part in:
(a) the decision as to the action to be taken in regard to such proposal;
(b) the negotiation and conclusion of any agreement for the amendment of
the treaty.
Party States will also be entitled to become party to amended treaty.
Amendment not binding without agreement.

Art 41 Amendments to multilateral treaties between certain of the parties

only.
(1) Two or more of the parties to a multilateral treaty may conclude an
agreement to modify the treaty as between themselves alone if:
(a) the possibility of such a modification is provided for by the treaty; or
(b) the modification in question is not prohibited by the treaty and:
i. does not affect the enjoyment by the other parties of their rights under
the treaty or the
performance of their obligations;
ii. does not relate to a provision, derogation from which is incompatible
with the effective execution of the object and purpose of the treaty as a
whole.

Treaties as a Principal Source of International Law

ICJ Statute, art 38(1): The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;

b) international custom, as evidence of a general practice accepted as law;

c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Formal sources v material sources
No hierarchy, but lex specialis rule - a law governing a specific subject matter (lex
specialis) overrides a law which only governs general matters. Also jus cogens
norms
Lawmaking treaties vs treatycontracts
E.g., Fitzmaurices theoretical objection to treaties as a source of law
Lawmaking treaties can generate rules of customary international law E.g., North
Sea Continental Shelf cases (ICJ, 1969)
North Sea Continental Shelf cases (ICJ, 1969)

Facts: Denmark and Netherlands argue that shared continental shelf

should be divided by principle of equidistance in Art. 6 of Geneva Conv.
Germany argues that this is inappropriate because Germany isnt a party to
Convention.

Netherlands and Denmark maintain Convention is part of CIL, even though

not based on slow accretion of practice, actually created new process for
coastal division.

Issue: Can the negotiation of a treaty give rise to Customary International

Law?
Held:

Court rejects arguments of Denmark and Netherlands.

Court uses this process to determine:
o 1st, look to rule itself. This is possible but not in all cases. Such
provision should be of a fundamentally norm-creating character such
as could be regarded as forming the basis of general rule of law. This
Article is not of that type; the primary obligation is to effect
delimitation by agreement and secondarily the use of equidistance
method. Also, parts of the Article are still in controversy.
o 2nd, look at extent of active agreement. Sometimes a rule can
become a general rule of IL through a widespread participation in the
convention, if it includes states whose interests are specially
affected. This convention is not of that type because so many states
have not ratified it. This doesnt mean they necessarily disapprove
but it doesnt show that they approve of it either.
o 3rd, look at length of time convention has been in effect. Only 5 years
since convention has been in force. Short period of time not
necessarily a bar, but practice should have been extensive and
uniform within that time, including by states whose interests are
specially affected.
o 4th look at extent of participation. Few cases, and because of certain

Treaty Interpretation
General Principles Under Treaty Law:
PreVCLT, three main schools of thought (per Fitzmaurice, ILC Special
Rapporteur): the intentions of the parties school; the textual or
ordinary meaning of the words school; and the teleological or aims and
objects school.
Unilateral Interpretation
Unilateral interpretation of one state is not binding on the other party, even if
a domestic court (or the legislative or executive branches) interprets the
treaty.
Unilateral interpretation can lead to principles of estoppel, acquiescence,
protest. When state offers its interpretation and other party acquiesces, it's
binding.
Modes & Principles of Interpretation
i.
Textual: ordinary meaning of terms.
ii.
Intention of parties: travaux preparatoires.
iii.
Teleological/purposive
o Originalist
o Dynamic emergent (e.g., European Convention on Human
Rights)
Use
different
methodologies for different types of treaties.

Attraction of intentionalism or purposivism:

Consistent with idea of sovereignty and consent.

More consistency over long-term.

Treaties difficult to amend.

Attraction of textualism:

Temporal dimension of new states joining.

Complexity of determining "collective" intent.

Tribunals uncomfortable declaring what state intended.

Organs of Interpretation and Interpretation by Parties

What mechanism to decide on conflicts within the organization

about the scope of powers granted to the various organs?

UN Charter

No provision on its interpretation.

Left to each organ of UN to interpret provisions relevant to its
activities.
Dispute on what the scope of SC and GA powers is. What
happens in cases of conflict?
Reasons for no provision:
o Preserve flexibility.
o Minimize politics and power in the judiciary, and
thus avoid skepticism of states.
Treaty of Rome

Created European Economic Communities and European Court

of Justice. Granted authority to ECJ to interpret treaties and
determine these type of questions authoritatively.
Contrast to UN Charter. Differences:

o
o

Interests are more common, so less conflict of

interests, and less concern about judicial
impartiality.
Creation of political community is of a different
nature than intl community as a whole.

Vienna Convention on the Law of Treaties Article 31(1):

1. Primarily textualist, but in the context of object and purpose. Take into
account subsequent agreements or practices between parties and
relevant rules of IL.
2. Supplementary means of interpretation (Art 32):
a. Intentionalism comes in through the back door.
b. Where language would lead to absurd result, can look to travaux
preparatoires.
c. Tribunals have been hesitant to use travaux b/c poorer nations didn't
use to have access to them.

VCLT Article 31(1): A treaty shall be interpreted in good faith in accordance

with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
(2) The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
(3) There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations
between the parties.
(4) A special meaning shall be given to a term if it is established that the
parties so intended.
VCLT Article 32 - Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a)
leaves the meaning ambiguous or obscure; or
(b)
leads to a result which is manifestly absurd or
unreasonable.

Reservations

1. What is a reservation? How is it different from an interpretive

declaration?

Device employed by States in course of expressing consent to be bound

Modern law of reservations is based on the ICJs advisory opinion in Reservations
to the Genocide
Convention [1951] ICJ Rep 15
Art 2 (1) (d) VCLT - "reservation" means a unilateral statement, however phrased
or named, made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect
of certain provisions of the treaty in their application to that State
Where a unilateral declaration made by a State at time of signing is not intended
to exclude or modify the legal effect of any provisions of the treaty it is not a
reservation. interpretative declarations do not mean contingent upon other
States accepting interpretation
Where interpretative declaration is made contingent upon other States
accepting, then it is a reservation, despite the name formally attached to it by
the State issuing the statement.
Reservations enable State to tailor treaty to its own will
Almost exclusively to multilateral, but sometimes to bilateral
More common practice with bilateral is that proposal to modify/amend terms is
taken as a proposal to amend final text part of treaty negotiation prior to
signature
2. When are reservations permitted?

Custom (before VCLT)

State could not make reservation unless treaty permitted reservation and all
other States who had already consented accepted.
Gave other state parties a veto on reservations and on participation of States
who wished to make reservation
Multilateral treaties purpose to effect widespread/universal change. Tension
between maintaining integrity of text and securing most widespread adherence
Earlier, priority given to integrity of text
From 1930s onward, shift toward securing widespread acceptance

No treaty relationship would form between two state where one did not accept
the reservation of the other

Reservations to the Genocide Convention Case 1951

some States made reservations to 1948 Conv
no provision for reservations in text

UN GA req ICJ advisory opinion

Q1 reserving State still party if reservation objected to by 1+ parties?

Q2 if yes, what is effect of reservation as between reserving State and

those States that object and those that accept
Held:

Re: Q1, noted increasing State practice

Therefore cannot be inferred that absence of reservation provision in treaty
means States prohibited from making reservations
Must consider character of multilateral ament, object and purpose
HERE object and purpose imply intention of GA and States that as many
as possible participate
Complete exclusion of all terms restrict scope and application; detract
from authority of moral and humanitarian principles which are Convs basis.
Compatibility of reservation with object and purpose is criterion to judge as
to whether reservation will be allowed

Q1 State is party if reservation compatible with object and

purpose, otherwise not a party

Q2- objecting party can consider reserving party not a party and
accepting party can consider reserving party a party

NB only ICJ can determine if reservation compatible with object and purpose
(until decided 2(a) &(b) apply)

3. Effect of a Reservation

A reservation expressly authorized by a treaty does not require any subsequent

acceptance by the other contracting States unless the treaty so provides.
When it appears from the limited number of the negotiating States and the
object and purpose of a treaty that the application of the treaty in its entirety
between all the parties is an essential condition of the consent of each one to be
bound by the treaty, a reservation requires acceptance by all the parties.
When a treaty is a constituent instrument of an international organization and
unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization.

VCLT Article 21 - Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance with
articles 19, 20 and 23:
(a) modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the
reservation; and
(b) modifies those provisions to the same extent for that other party in its
relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties
to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into force of
the treaty between itself and the reserving State, the provisions to which the
reservation relates do not apply as between the two States to the extent of the
reservation.

CIL + gen principles will operate as between objecting and reserving parties
where treaty provisions excised.

4. Effect of an Impermissible Reservation

Three possibilities:
o The treaty is not in force for that State - suggested by Bowett,
following Judge Lauterpacht on a related issue in Norwegian Loans and
Interhandel the incompatibility of the reservation vitiates the States
consent to be bound by the treaty
o

The treaty is in force but for the relevant provision(s) - Redgwell notes
that this would accord with much State practice E.g., recall
Netherlands objection to Bahrains reservation to the ICCPR: This
objection shall not preclude the entry into force of the Covenant
between the Netherlands and Bahrain.

Such reservations are void and severable - See, e.g., human rights
bodies (ECHR/HRC); and also Pellet: a reservation incompatible with
the object and purpose of the treaty (within Art 19(c) of the Vienna
Convention) is null and void, just as is the case under Article 19(a) and
(b) (see ILC Draft Guidelines 3.3, and 4.5.1)

Question : Is it a permissible reservation?

Validity of the reservation. Whether the reservation is compatible with the

"object and purpose" of the treaty.

VCLT Article 19 - A State may, when signing, ratifying, accepting, approving or

acceding to a
treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.

Treaty can specify whether reservations to certain provisions are or aren't

permissible.
a. Expressio unius: if treaty says which provisions it is permissible to
make a reservation to, then it is impermissible to make reservations to
other provisions.

When the treaty creates in int'l organization, the organ representing that
organization decides on permissibility.
Issue of severability
Human rights treaties
b. While some rights can be derogated during emergency situations,
others are non-derogable rights (e.g., torture). (Overlap between nonderogable rights in treaties and jus cogens in CIL.)
c. Erga omnes are rights which states owe to all other states, and they
qualify under CIL even without the treaty.

5. Reservations to Human Rights Treaties

Argument that impermissible reservations to HR treaties severable from

reserving States consent to be bound ie reservation disregarded, State still
bound
Art 19 (c) + Art 20 = no specific consequences
CIL Reservations to Genocide Convention case prohibited reservation nullifies
consent even where universal and humanitarian object and purpose

Jus Cogens
1. Vienna Convention of the Law of Treaties, Articles 53 and 64

VCLT Article 53 - Treaties conflicting with a peremptory norm of general

international law (jus cogens): A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the purposes
of the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the
same character.

VCLT Article 64 - Emergence of a new peremptory norm of general international

law (jus cogens). If a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that norm becomes void
and terminates.

Breach and Termination of Treaties

1. Breach of Treaty
VCLT Article 60 - Termination or suspension of the operation of a treaty as a
consequence of its breach.
(1) A material breach of bilateral treaty by one of the parties entitles the other to
invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part.

(2) A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground
for suspending the operation of the treaty in whole or in part with respect to
itself if the treaty is of such a character that a material breach of its
provisions by one party radically changes the position of every party with
respect to the further performance of its obligations under the treaty.
(3) A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.
(4) The foregoing paragraphs are without prejudice to any provision in the treaty
applicable in the event of a breach.
(5) Paragraphs 1 to 3 do not apply to provisions relating to the protection of the
human person contained in treaties of a humanitarian character, in particular
to provisions prohibiting any form of reprisals against persons protected by
such treaties.

A material breach : Either a repudiation of the treaty not sanctioned by VCLT or a

violation of a provision of the treaty essential to the accomplishment of the
object purpose Art 60 (3) ILC

material cf fundamental

Must be where breach of serious character

Not only breach where State violates provisions central to object/purpose but
also breach of ancillary provision essential to effective execution.

Although it does not specify seriousness, better view seems to be that the
breach must be serious

Bilateral ground for termination/suspension in whole or part Art 60 (1)

Multilateral range of responses available for non-breaching parties
o
Unanimous agreement to terminate or suspend in whole/part either
between themselves and breacher OR between all parties Art 60 (2) (a)
o
If 1+ more affected may not be possible to obtain unanimous
agreement. VCLT permits States specially affected to invoke breach as
termination/suspension treaty relations between them and breacher Art 60
(2) (b)
o
If breach radically changes position of every other State re: further
performance of obligations non-breacher can suspend (only) treaty in
whole/part re: itself Art 60 (2) (c)
o
Not automatic termination. Non-breachers have option to
terminate/suspend. State loses option if knows facts and expressly agrees
to/acquiesces in treatys continuance Art 45
o
Once invoked, procedures in Art 65-67 must be observed before
termination/suspension Art 42 (2)

o
State may forfeit right if has prevented breacher from performing
obligations by unlawful act.
If not a material breach:

The injured State can take countermeasures

Also known as reprisals an act which in itself is illegal and has been
adopted by one State in retaliation for the commission of an earlier
illegal act by another State

E.g., the Naulilaa case (1928), and GabcikovoNagymaros case (1997)

In order to take countermeasures, you need:

sufficient justification in the form of a previous act contrary to

international law;

any countermeasures must be preceded by an unsatisfied

demand for reparation; and

any countermeasures must also be accompanied by a sense of

proportion between the offence and the reprisal.

No need for the countermeasures to relate to the same treaty

obligation which has been breached.

Since 1945, countermeasures must also be taken consistently with

Article 2(4) of the UN Charter.

Unlawful act may be breach of another treaty/CIL

o

Conduct of non-breacher which contributes to creation of situation not

conducive to breachers performance of obligations may deprive nonbreacher of right even if per se NOT unlawful Gabcikovo

Treaty is not terminated because State breached international law

outside treaty Gabcikovo

Only material breach of treaty itself that gives rise

Treaty itself can have provisions within itself defining what a material
breach is, or under what circumstances may a breach be used as a
reason to terminate Art 60 (4)

2. Invalidity of Treaties

Article 46 (internal law): a State may not invoke the fact that its consent to
be bound by a treaty has been expressed in violation of a provision of its
internal law regarding competence to conclude treaties as invalidating its

consent unless that violation was manifest and concerned a rule of its
internal law of fundamental importance.

Article 47 (excess of authority): if the State representative exceeded his or

her authority in expressing the States consent to be bound.

Article 48 (error): if the error relates to a fact or situation which was assumed
by that State to exist at the time when the treaty was concluded, and formed
an essential basis of its consent to be bound.

Article 49 (Fraud): if State induced to enter into treaty by fraudulent conduct

of another State.

Article 50 (Corruption): if States consent to be bound procured through the

corruption of its representative directly or indirectly by another negotiating
State.

Article 51 (Coercion): if the conclusion of the treaty was procured by the

coercion of its representative through acts or threats directed at him or her.

Article52 (Coercion): if the treaty was procured by the threat or use of force
in violation of the UN Charter.

Article 53 (jus cogens): If the treaty conflicts with a peremptory norm.

Consequences of invalidity: Article 69: (1) A treaty the invalidity of which

has been established under the present Convention is void. The provisions of
a void treaty have no legal force.
(2) If acts have nevertheless been performed in reliance on such a treaty:
a) each party may require any other party to establish as far as possible in
their mutual relations the position that would have existed if the acts had not
been performed.
b) acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of the invalidity of the treaty.

3. Termination and Suspension of the Operation of a Treaty

VCLT, Article 54: The termination of a treaty or the withdrawal of a party

may take place:
a) in conformity with the provisions of the treaty; or
b) at any time by consent of all the parties after consultation with the other
contracting States.
VCLT, Article 55: A treaty will not terminate if the number of States parties
falls below what was required for it to enter into force
VCLT, Article 56: If no provision on withdrawal or termination, a State cannot
withdraw/terminate unless (a) parties intended to admit of this possibility, or
(b) such a right can be implied from the nature of the treaty
VCLT, Article 57: treaty can be suspended in conformity with its provisions, or
with the agreement of the parties

VCLT, Article 59: treaty can be considered terminated by later treaty of same
subjectmatter
VCLT, Article 60: bilateral treaty can be terminated in the case of material
breach, multilateral treaty can be suspended or terminated in the case of
material breach

4. Supervening Impossibility of Performance

Subject matter disappears/destroyed rendering performance is impossible
State practice to termination (ILC)
Art 61 does not automatically terminate, must be invoked as ground.
VCLT procedures must be followed Art 42 (2)
VCLT, Article 61 (1) A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from it if the impossibility
results from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty. If the impossibility is temporary,
it may be invoked only as a ground for suspending the operation of the
treaty.
(2) Impossibility of performance may not be invoked by a party as a ground
for terminating, withdrawing from or suspending the operation of a treaty
if the impossibility is the result of a breach by that party either of an
obligation under the treaty or of any other international obligation owed to
any other party to the treaty.
See, e.g., GabcikovoNagymaros Project (1997)

Gabcikovo (Hungary v Slovakia)

Rejected H submission that 1977 treaty with S re: development scheme
spanning mutual border was affected by rebus sic stantibus

H argued change no longer socialist, uneconomic, serious

environmental concerns
HELD :
socialist orientation material factor in concluding BUT not necessary to
carry out objects/purpose

Economic concerns- even though the economic viability of the projects

diminished, they were not radically transformed

Treaty took account of environment, but changes in scientific knowledge

are not unforeseen

That the principle will only apply in exceptional circumstances, and only
where the fundamental change in circumstances is unforeseen

existences of circumstances at time of treaty must constitute an

essential basis of consent
5. Fundamental Change of Circumstances

Rebus sic stantibus CIL

Permanently terminated if fundamental change
Much narrow doctrine than frustration in K

VCLT Article 62 - Fundamental change of circumstances - (1) A fundamental

change of circumstances which has occurred with regard to those existing at
the time of the conclusion of a treaty, and which was not foreseen by the
parties, may not be invoked as a ground for terminating or withdrawing from
the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations
still to be performed under the treaty.
(2) A fundamental change of circumstances may not be invoked as a ground
for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
(3) If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a
treaty it may also invoke the change as a ground for suspending the
operation of the treaty.

6. Dispute Settlement

VCLT, Art 65 (Dispute settlement) (1) A party which, under the provisions of
the present Convention, invokes either a defect in its consent to be bound by
a treaty or a ground for impeaching the validity of a treaty, terminating it,
withdrawing from it or suspending its operation, must notify the other parties
of its claim. The notification shall indicate the measure proposed to be taken
with respect to the treaty and the reasons therefore.
(2) If, after the expiry of a period which, except in cases of special urgency,
shall not be less than three months after the receipt of the notification, no
party has raised any objection, the party making the notification may carry
out in the manner provided in article 67 the measure which it has proposed.
(3) If, however, objection has been raised by any other party, the parties
shall seek a solution through the means indicated in Article 33 of the Charter
of the United Nations.
If, under paragraph 3 of article 65, no solution has been reached within a
period of 12 months following the date on which the objection was raised, the
following procedures shall be followed:
a) any one of the parties to a dispute concerning the application or the
interpretation of article 53 or 64 may, by a written application, submit it to
the International Court of Justice for a decision unless the parties by common
consent agree to submit the dispute to arbitration;
b) any one of the parties to a dispute concerning the application or the
interpretation of any of the other articles in part V of the present Convention
may set in motion the procedure specified in the Annex to the Convention by
submitting a request to that effect to the SecretaryGeneral of the United
Nation

G. Use of Treaties by Australian Courts

1.

The Relationship Between Public International Law and Domestic

Law

2.

Conceptual categories of the relationship between intl law and municipal

law.
o Dualism - IL and ML are not part of the same legal system, so no
hierarchical relationship. Way to adopt IL as ML is that when a statute
is passed that incorporates the treaty, the statute controls. IL is
subject to constitutional limitations.
o Monism - There exists only one legal system, and the different regimes
relate to each other in a hierarchy; IL is on top, and ML derives its
validity from IL. There can be no constitutional limitations on IL.
Constitutions should be organized to facilitate incorporation of IL
automatically in domestic law. If there is a conflict b/w ML and IL, IL
wins.
o Harmonisation approach
Implementation of International Law in Domestic Law

Doctrine of transformation - international law only forms a part of municipal

law if accepted as such by statute or judicial decisions.
Doctrine of incorporation - The doctrine that rules of international law
automatically form part of municipal law.
Sir William Blackstone: The law of nations, wherever any question arises
which is properly
the object of its jurisdiction, is here adopted in its full extent by the common
law, and it is held to be a part of the law of the land (Commentaries, IV, ch
5).
Customary international law the position in England:
o The incorporation approach
Customary international law the position in Australia:
o The transformation approach
o Chow Hung Ching v The King (1948) HCA (Dixon J, but cf Latham CJ:
[i]nternational [law is not as such part of the law of Australia but a
universally recognised principle of international law would be applied
by our courts)
o Mabo (No 2): customary international law is an influence on the
development of the common law (Brennan J)
o A variation on the transformation approach? Nulyarimma v Thompson
[1999] FCA see judgment of Merkel J
The rule of customary international law has to be clearly
established as such.
The court then has to consider whether the rule is to be treated
as having been adopted or received into domestic law. (Is it
inconsistent with the general policies of [the common] law, or
would there be a lack of congruence with its principles?)

If the rule of customary international law is inconsistent with

domestic law, no effect can be given to the rule of customary
international law without legislation.
Classic statement AttorneyGeneral for Canada v AttorneyGeneral for
Ontario (1937)
PC: the making of a treaty is an Executive act, while the performance of
its obligations, if they entail alteration of the existence domestic law, requires
legislative action. Unlike some other countries, the stipulations of a treaty
duly ratified do not within the Empire, by virtue of the treaty alone, have the
force of law.
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1
The entry into a treaty by Australia does not change domestic law. The
validity of legislation enacted by the Parliament (other than legislation
enacted pursuant to s 51(xxix)) does not depend on its being consistent with
a convention to which Australia is a party.

3.

Do unincorporated treaties have any relevance in domestic law?

An aid to statutory construction;

Acts Interpretation Act 1901 (Cth), s 15AB - (1) in the interpretation of a
provision of an Act, if any material not forming part of the Act is capable of
assisting in the ascertainment of the meaning of the provision, consideration
may be given to that material
(2) the material that may be considered in accordance with that subsection in
the interpretation of a provision of an Act includes
(d) any treaty or other international agreement that is referred to in the Act.
Dietrich v The Queen (1992) 177 CLR 292 - The High Court observed that UK
courts presume that Parliament intended to legislate in accordance with its
international obligations
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 [C]ourts
should, in a case of ambiguity, favour a construction of a Commonwealth
statute which accords with the obligation of Australia under an international
treaty (Brennan, Deane and Dawson JJ)
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Confirmed the approach in Chu Kheng Lim
Development of the common law
Mabo v Queensland (No 2) (1992) 175 CLR 1, para 42 (Brennan J)
Whatever the justification advanced in earlier days for refusing to recognize
the rights and interests in land of the indigenous inhabitants of settled
colonies, an unjust and discriminatory doctrine of that kind can no longer be
accepted. The expectations of the international community accord in this
respect with the contemporary values of the Australian people. The opening
up of international remedies to individuals pursuant to Australias accession
to the Optional Protocol to the International Covenant on Civil and Political
Rights brings to bear on the common law the powerful influence of the
Covenant and the international standards it imports. The common law does
not necessarily conform with international law, but international law is a
legitimate and important influence on the development of the common law,
especially when international law declares the existence of universal human

rights. A common law doctrine founded on unjust discrimination in the

enjoyment of civil and political rights demands reconsideration. It is contrary
both to international standards and to the fundamental values of our
common law to entrench a discriminatory rule which, because of the
supposed position on the scale of social organization of the indigenous
inhabitants of a settled colony, denies them a right to occupy their traditional
lands.
Exercise of administrative discretion
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Teoh, a Malaysian citizen, in Australia on temporary entry permit, then

married an Australian citizen

Refused permanent residency status in 1990 due to drugrelated

convictions

Applied to have decision reconsidered on compassionate grounds

Teoh argued that Australia had ratified (but not implemented) the
Convention on the Rights of the Child in all decisions concerning
children, the interests of the child shall be a primary consideration
Held:

Mason CJ and Deane J: [R]atification by Australia of an international

convention is not to be dismissed merely as a platitudinous or
ineffectual act, particularly when the instrument evidences
internationally accepted standards to be applied by courts and
administrative authorities in dealing with basic human rights affecting
the family and children. Rather, ratification of a convention is a positive
statement by the executive government of this country to the world and
to the Australian people that the executive government and its agencies
will act in accordance with the Convention. That positive statement is an
adequate foundation for a legitimate expectation, absent statutory or

NB: the Australian Government (Foreign Minister and AttorneyGeneral)

issued a joint statement in May 1995 to the effect that it is not legitimate, for
the purpose of applying Australian law, to expect that the provisions of a
treaty not incorporated by legislation should be applied by decisionmakers.
Interpretation of the Constitution
Kartinyeri v Commonwealth (1998): where there is ambiguity, there is a
strong presumption that the Constitution, adopted and accepted by the
people of Australia for their Government, is not intended to violate
fundamental human rights and human dignity. Where there is ambiguity in
the common law or a statute, it is legitimate to have regard to international
law. Likewise, the Australian Constitution, which is a special statute, does not
operate in a vacuum. It speaks to the people of Australia. But it also speaks
to the international community as the basic law of the Australian nation
which is a member of that community. (Kirby J)
AlKateb v Godwin [2004] HCA 37: Kirby J: [N]ational courts, and especially
national constitutional courts such as this, have a duty, so far as possible, to
interpret their constitutional texts in a way that is generally harmonious with
the basic principles of international law, including as that law states human
rights and fundamental freedoms

Cf McHugh J: It is clear that the claim that the Constitution should be read
consistently with the rules of international law has been decisively rejected
by members of this Court on several occasions. As a matter of constitutional
doctrine, it must be regarded as heretical

Topic 2: International Dispute Resolution

Introduction, Definition and Types of International
Disputes
1. Conflict and Disputes Distinguished

Dispute a disagreement on a point of law or fact, a conflict of legal views or

interests between two parties. A disagreement is not a dispute if its
resolution would not have any practical effect on the relations of the parties.

2. Types of Disputes

Boundary/Territorial Conflict

Globalization

International Business

International Politics

International Crisis Management

International Law

International Criminal Law

International Security

International War Crimes Tribunals

Terrorism

Development and Conflict

3. Legal and Political Disputes

International disputes are major disagreements between two or more

nations, or unilateral declarations by one nation that are not accepted by
others. There are many sources of international disputes, including
territorial disputes, maritime rights disagreement, conflicts on human rights,
and long-held grievances for past actions that have never been fully
resolved. International disputes have been the source of military conflict,
civilian deaths, and long-standing animosity between nations that may
stretch for generations.

Border disputes are quite common in the international community. Borders

are often far from the center of power in a country, and may shift from time
to time as a result of farming community spread or even topographical
changes. The lines on a map made decades before may not always be
relevant to the current situation, and in some cases may have been disputed
even when the map was originally drawn.

Resource issues are another major source of international disputes. The

rights to drill for oil, mine ore, cut timber, and access fresh water sources are
important to a country's financial and sometimes literal survival, making
these fights quite serious. Many resource conflicts relate back to
territorial disputes; determining who owns the land with the resource can
help define who has the right to use it. Resource debates also become more
complex when discussing natural formations, such as large rivers, that span
multiple domains.

The Age of Imperialism left the world with a great deal of conquered nations
and areas not happy with their colonial governors. Many
international disputes of the 21st century still date back to the expansive era
of nation building, with native people or prior owners crying out for the return
of conquered and annexed areas. Gibraltar, for instance, has been an area of
contention between the United Kingdom and Spain since the early 18th
century, while many of the native people of the area insist on their own rights
to govern.

The treatment of refugees, and humans in general, is often the source of

grave international disputes. These conflicts lie around issues such as
permitting human trafficking, the oppression of women, religious oppression,
and ethnic cleansing or genocide attempts. International disputes over
human rights issues often bear heavy costs and few simple results; many
well-meaning nations that decry human rights violations are left with few
choices to change the situation other than plunging in with military aid, which
carries its own costs and does not always promise a solution.
Many international law scholars hope that attentive management of
other types of international disputes can help lead to
improved international cooperation over time, which may in turn lead to a
more open forum to manage human rights issues.

Evolution of the Obligation to Settle Disputes Peacefully

1. Coercive Means of Dispute Settlement

Definition of Aggression - General Assembly Resolution: Aggression is the

use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent
with the Charter of the United Nations, as set out in the definition.

Jus in bello: laws of war. Jus ad bellow: when it is legal to go to war.

Before UN, war widely accepted. Used as a method of collection of debts

(gunboat diplomacy).

Kellogg

League of Nations: Could recommend sanctions and the use of force, but was
a failure, because it didnt act meaningfully in response to aggression.
o

Only time economic sanctions applied was against the Italian invasion
of Ethiopia in 1935. Failed response to this invasion really doomed the
League.

Problem: Left to each member to decide when and whether a breach

had occurred or an act of war had been committed. No one really
enforced sanctions/made them strong.

Kellogg -Briand Pact (1928). US and Europe party to this treaty. It didnt stop
the war from happening. condemn recourse to war for the solution of intl
controversies, and renounce it as an instrument of national policy.

Nuremberg trials:
o

defined crimes as planning, preparation, initiation or waging of a war

of aggression, or a war in violation of international treaties,
agreements, assurances, or participation in a common plan or
conspiracy for the accomplishment of the foregoing.

Judgment of the Intl Military Tribunal: to initiate a war of aggression

is the supreme international crime.

Defense argued that war was self-defense (Poland excuse): but was
judged by the Caroline test (necessity, imminence).

Reprisals Under law of reprisal, only permissible when they have been
preceded by an unsatisfied demand. Imposes the necessity and
proportionate requirement on the use of force as well.

Self- Defense Article 51 In Nicaragua case (1986), Court said assuming

this is an armed attack and self-defense exception applies, in order for state
to engage in collective self-defense on the basis of Article 51, the third party
states cant do it without a request from the country thats been attacked
(plus a declaration that theyve been attacked).

Court said that sending armed bands could be an act of aggression, but just
sending weapons does not constitute an armed attack under Article 51.
Notwithstanding that it might violate IL as an invention in internal affairs, it
doesnt give rise to Article 51 right to self-defense. Gives risk to right in El
Salvador to take proportional countermeasures, but no right to do it
collectively. Collective countermeasures escalate.

Collective use of force only justified under Art 51 when armed attack occurs.

Different readings of Article 51 in Cold War and beyond - During Cold War, all
the different uses of force were justified under Article 51. Parallel of the
problem of the exception in law of treaties for fundamental change of
circumstances. Worry that if you recognize broad exceptions, since theres
no compulsory jurisdiction and no executive with enforcement
responsibilities, the exceptions get used as pretexts. The best way to
understand the narrow definition of self-defense is that rules must be crystal
clear; the vaguer the exceptions, the more likely states will use them as a
pretext. Undermine authority of scheme, the basic prohibition on use of
force.

The Caroline Incident (1906) Inviolable character of the territory of

independent states is the most essential foundation of civilisation. Created
the requirements of necessity and imminence. Necessity of that self defence
is instant, overwhelming, and leaving no choice of means, and no moment for
deliberation. Proportionality also claimed in some letters: burden of proof to
show that even if there was necessity, that they did nothing unreasonable or
excessive.

Regional Authorization of Use of Force - Cuban Missile Crisis, 1962:

Naval blockade and interdiction by US forces of the delivery of weapons to
Cuba. Two questions:

Can the US claim preventative self-defense? (Not argued at the time,

but argued by Wedgewood.)

Can the OAS authorize such an action? Council of the OAS

(Organization of American States) resolution recommending that the
member states . . . take all measures, individually and collectively,
including the use of armed force, which they may deem necessary.

Intervention by Consent - Governments have a right to invite intervention,

as long as there is no civil war going on. But if the foreign military is used to
restrict political independence, a problem arises. That would contravene
2(4). Its a different situation when the invited foreign military is helping put
down a coup or restore order.
o

Grenada case (1984): Governor-General of Grenada

invited the US to protect him from a coup and the
vacuum of authority it left. (This may have been
fabricated.) Did he have the constitutional authority to do
so? Doubt as to its legal justification.

Panama case (1989): US actually swore in the

democratically elected Panamanian leadership to invite
them to overthrow Noriega. Question: who has the
power to recognize govt? Is there any intl criteria for
recognizing govt legitimacy? In the UN, at least, it seems
that the SC is the only arbiter of govt legitimacy (ie
China/Taiwan)

2. Peaceful Means of Dispute Settlement

Covenant of the League of Nations, Art 12: Member States agree in no case
to resort to war until three months after the award by the arbitrators or the
report by the Council.

KelloggBriand Pact (1928), Art I: States parties condemn recourse to war for
the solution of international controversies, and renounce it, as an instrument
of national policy. But the KelloggBriand Pact failed to prevent World War II
(19391945)

Article 2, paragraph 3 provides: all Members shall settle their international

disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.

GA Resolutions on the obligation to settle disputes peacefully:

-

UNGA Resolution 2625 (XXV) Declaration on Principles of

International Law concerning Friendly Relations and Cooperation
Among States in accordance with the Charter of the United Nations
(24 October 1970)
o

Every State has the duty to refrain in its international

relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United
Nations. Such a threat or use of force constitutes a violation
of international law and the Charter of the United Nations
and shall never be employed as a means of settling
international issues.

Every State has the duty to refrain from the threat or use of
force to violate the existing international boundaries of
another State or as a means of solving international disputes

States have a duty to refrain from acts of reprisal involving

the use of force

Every State has the duty to refrain from any forcible action
which deprives peoples referred to in the elaboration of the
principle of equal rights and self determination of their right
to selfdetermination

Every State shall settle its international disputes with other

States by peaceful means in such a manner that international
peace and security, and justice, are not endangered

States shall accordingly seek early and just settlement of

their international disputes by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements or other peaceful
means of their choice. In seeking such a settlement the

parties shall agree upon such peaceful means as may be

appropriate to the circumstances and nature of the dispute.
o

The parties to a dispute have the duty, in the event of failure

to reach a solution by any one of the above peaceful means,
to continue to seek a settlement of the dispute by other
peaceful means agreed upon by them.

The General Act of 1928 (The Geneva Act)

-

Chapter 1: provides for conciliation of legal disputes if the parties so

agree

Chapter 2: requires the submission of the dispute (if the conciliation

fails) to arbitration or to the Permanent Court of International
Justice

Debate as to whether the act survived the demise of the League of

Nations; ICJ statute mirrors the PCIJs and the ICJ is substituted for
PCIJ in treaties, etc.

Other Dispute Settlement Treaties

-

Arbitration tribunals, Hague Conferences, Prize courts

After the UN Charter came into force, new treaties that dealt solely
with peaceful settlement decreased sharply

Dispute Clauses in Treaties on Other Matters

-

Many treaties dealing with other matters contain broadly stated

obligations to settle disputes through negotiation, conciliation,
arbitration or judicial settlement

Some take the form of compromissory clauses providing for judicial

settlement at the ICJ

Some treaties provide for settlement through bilateral negotiations,

consultation or other contacts of the parties.

Other contemporary fora

-

The ICJ is not the only forum for dispute resolution and been
underutilized. Nevertheless, still viewed as the paradigmatic, ideal
forum of international dispute resolution.

3. Obligation to Settle Disputes Peacefully

A. Historical development and early precedents
-

Hague Peace Conference and Creation of Permanent Court of

Arbitration (1899)

Convention on the Pacific Settlement of International Disputes

(1899)
o

Art I: With a view to obviating, as far as possible, recourse to

force in the relations between States, the Signatory Powers
agree to use their best efforts to insure the pacific settlement
of international differences.

Art XV: International arbitration has for its object the

settlement of differences between States by judges of their
own choice, and on the basis of respect for law.

Art XVI: In questions of a legal nature, and especially in the

interpretation or application of International Conventions,
arbitration is recognized by the Signatory Powers as the most
effective, and at the same time the most equitable, means of
settling disputes which diplomacy has failed to settle.

Manila Declaration on Peaceful Settlement of International Disputes

(1982) (UNGA Resolution 37/10 (1982))
1. All States shall act in good faith and in conformity with the
purposes and principles enshrined in the Charter of the United
Nations with a view to avoiding disputes among themselves likely
to affect friendly relations among States, thus contributing to the
maintenance of international peace and security.
2. Every State shall settle its international disputes exclusively by
peaceful means in such a manner that international peace and
security, and justice, are not endangered.
5. States shall seek in good faith and in a spirit of cooperation an
early and equitable settlement of their international disputes by any
of the following means: negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional arrangements or
agencies or other peaceful means of their own choice, including
good offices.

B. UN Charter (Article 33(1), Role of the General Assembly, the Security

Council, and the International Court of Justice (ICJ))
-

Article 33 of the Charter states:

o The parties to any dispute, the continuance of which is likely
to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.
o The Security Council shall, when it deems necessary, call
upon the parties to settle their dispute by such means.

Article 36(3): In making recommendations under this Article the

Security Council should also take into consideration that legal
disputes should as general rule be referred by the parties to the
International Court of Justice in accordance with the provisions of
the Statute of the Court.
Role of the UN Security Council
o Art 24: In order to ensure prompt and effective action by the
United Nations, its Members confer on the Security Council
primary responsibility for the maintenance of international
peace and security, and agree that in carrying out its duties
under this responsibility the Security Council acts on their
behalf. (2) the Security Council shall act in accordance
with the Purposes and Principles of the United Nations
o Art 34: The Security Council may investigate any dispute, or
any situation which might lead to international friction or give
rise to a dispute, in order to determine whether the
continuance of the dispute or situation is likely to endanger
the maintenance of international peace and security.
o Art 35(1): Any Member of the United Nations may bring
any dispute, or any situation of the nature referred to in
Article 34, to the attention of the Security Council or of the
General Assembly.
o Art 36: (1) The Security (Council may, at any stage of a
dispute of the nature referred to in Article 33 or of a situation
of like nature, recommend appropriate procedures or
methods of adjustment.

(3) In making recommendations under this Article the

Security Council should also take into consideration that legal
disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the
provisions of the Statute of the Court.
o Art 10: The General Assembly may discuss any questions
or any matters within the scope of the present Charter or
relating to the powers and functions of any organs provided
for in the present Charter, and, except as provided in Article
12, may make recommendations to the Members of the
United Nations or to the Security Council or to both on any
such questions or matters.
o Art 12: (1) While the Security Council is exercising in
respect of any dispute or situation the functions assigned to
it in the present Charter, the General Assembly shall not
make any recommendation with regard to that dispute or
situation unless the Security Council so requests.

UNSCR 1970 (2011) Peace and security in Africa

The Security Council, Expressing grave concern at the situation in the
Libyan Arab Jamahiriya ,
1. Demands an immediate end to the violence and calls for steps to fulfil
the legitimate demands of the population;

28.
Decides to remain actively seized of the matter.

ispute Settlement
1. Negotiation

Forms of negotiation
o

Diplomatic channels

Commissions (eg Treaty of Bayonne of 1866)

Summit

Public forum, eg UN General Assembly

Limitations of negotiation

2. Good Offices

Not expressly referred to in UN Charter, Article 33(1)

Often the UN SecretaryGeneral

UN Charter, Art 99: The SecretaryGeneral may bring to the attention of

the Security Council any matter which in his opinion may threaten the
maintenance of international peace and security. E.g., Tehran Hostages,
Afghanistan, Falkland Islands

3. Mediation

Definition

Limitations of mediation
o

Need consent of parties. States may be reluctant as it is an admission

that the issue is of international concern (but NB that in some cases,
States will readily agree to mediation)

Need to agree on choice of mediator (eg US in Falkland Islands; the

Pope appointed a Cardinal in Beagle Channel dispute; and Algeria in
Tehran Hostages crisis)

But mediation may be attractive for both parties

4. Conciliation

Institute of International Law (1961): A method for the settlement of

international disputes of any nature according to which a Commission set up
by the Parties, either on a permanent basis or an ad hoc basis to deal with a
dispute, proceeds to the impartial examination of the dispute and attempts to
define the terms of a settlement susceptible of being accepted by them or
affording the Parties, with a view to its settlement, such aid as they may have
requested.

Origin in some bilateral treaties in the 1920s

Locarno Treaties (1925)

Chaco Commission (BoliviaParaguay, 1929)

FrancoSiamese Commission (FranceSiam, 1947)

E.g., VCLT, Arts 6566

Framework Convention on Climate Change, Article 14: (1) In the event of a

dispute between any two or more Parties concerning the interpretation or
application of the Convention, the Parties concerned shall seek a settlement
of the dispute through negotiation or any other peaceful means of their own
choice. (5) Subject to the operation of paragraph 2 above [ICJ or
arbitration], if after twelve months following notification by one Party to
another that a dispute exists between them, the Parties concerned have not
been able to settle their dispute through the means mentioned in paragraph
1 above, the dispute shall be submitted, at the request of any of the parties
to the dispute, to conciliation.

5. Fact-Finding and Inquiry

1899 Convention, Art 9: In differences of an international nature involving

neither honour nor vital interests, and arising from a difference of opinion on
points of fact, the Signatory Powers recommend that the parties, who have
not been able to come to an agreement by means of diplomacy, should, as
far as circumstances allow, institute an International Commission of Inquiry,
to facilitate a solution of these differences by elucidating the facts by means
of an impartial and conscientious investigation.

USS Maine incident (1898)

1899 Convention, Art 9

Dogger Bank incident (1904)

Red Crusader incident (1961)

Limitations of factfinding and inquiry:

o

Underutilised, e.g., International Humanitarian FactFinding

Commission

Need cooperation of the parties, e.g., ICAO inquiry into KE007

Some suspicion re factfinding (e.g., Israels termination of its

cooperation with the UN factfinding mission in Jenin in 2002)

6. Arbitration/Adjudication
7. Other Forms of Diplomacy

Involvement of NGOs. E.g., on environmental and human rights issues

Secret or Backchannel diplomacy E.g., Cuban Missile Crisis (1962); end of

Vietnam war; Good Friday agreement re troubles in Northern Ireland

Religious diplomacy Quakers, RC Community of SantEgidio

Businessorientated diplomacy Specialist risk consultancies

International Court of Justice

1. History

Created by the UN Charter (1945), Art 7, Arts 9296, and the ICJ Statute

Essentially the successor body to the PCIJ

Covenant of the League of Nations (1919), Art 14: The Council shall
formulate and submit to the Members of the League of Nations plans for the
establishment of a Permanent Court of International Justice. The Court shall
be competent to hear and determine any dispute of an
international character which the parties thereto submit to it. The Court may
also give an advisory opinion upon any dispute or question referred to it by
the Council or by the Assembly.

Advisory Committee of Jurists (met during 1920) to draft PCIJ Statute

PCIJ functioned between 1922 1945

Quite successful dealt with 38 contentious cases and delivered 27 advisory

opinions

Statute of the ICJ modelled very closely on the PCIJ Statute

Charter of the United Nations (Articles 92 96): THE ICJ
-

Article 92: The International Court of Justice shall be the principal

judicial organ of the United Nations. It shall function in accordance
with the annexed Statute, which is based upon the Statute of the
Permanent Court of International Justice and forms an integral part
of the present Charter.

Article 93: All Members of the United Nations are ipso facto parties
to the Statute of the International Court of Justice. A state which is
not a Member of the United Nations may become a party to the
Statute of the International Court of Justice on conditions to be
determined in each case by the General Assembly upon the
recommendation of the Security Council.

Article 94: Each Member of the United Nations undertakes to

comply with the decision of the International Court of Justice in any
case to which it is a party. If any party to a case fails to perform the

obligations incumbent upon it under a judgment rendered by the

Court, the other party may have recourse to the Security Council,
which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give effect to the judgment.
-

Article 95: Nothing in the present Charter shall prevent Members of

the United Nations from entrusting the solution of their differences
to other tribunals by virtue of agreements already in existence or
which may be concluded in the future.

Article 96: The General Assembly or the Security Council may

request the International Court of Justice to give an advisory opinion
on any legal question. Other organs of the United Nations and
specialized agencies, which may at any time be so authorized by
the General Assembly, may also request advisory opinions of the
Court on legal questions arising within the scope of their activities.

Role of the ICJ: Art 92: The International Court of Justice shall
be the principal judicial organ of the United Nations. It shall function
in accordance with the annexed Statute, which is based upon the
Statute of the Permanent Court of International Justice and forms an
integral part of the present Charter.
ICJ Statute, art 38(1): The Court, whose function is to decide in
accordancewith international law such disputes as are submitted to
it

2. Composition

This issue had blocked previous efforts to create a permanent international

court

ICJ Statute, Art 3: The Court shall consist of fifteen members, no two of
whom may be nationals of the same State.

ICJ Statute, Art 13(1): The members of the Court shall be elected for nine
years and may be reelected

ICJ Statute, Art 4(1): The members of the Court shall be elected by the
General Assembly and by the Security Council from a list of persons
nominated by the national groups in the Permanent Court of Arbitration, in
accordance with the following provisions.

National Groups of the PCA

Hague Convention of 1907, Art 44: Each Contracting Power selects four
persons at
the most, of known competency in questions of international law, of , the
highest moral reputation, and disposed to accept the duties of Arbitrator. The
persons thus elected are inscribed, as Members of the Court, in a list which
shall be notified to all the Contracting Powers by the Bureau.

Australias National Group: Professor Ivan Shearer; Professor Hilary

Charlesworth; Chief Justice Robert French; and Stephen Gageler QC.

United Kingdoms National Group: Judge Sir Christopher Greenwood QC; Sir
Franklin Berman QC; and Professor Sir Elihu Lauterpacht QC.

ICJ Statute, Art 6: each national group is recommended to consult its

highest court of justice, its legal faculties and schools of law, and its national
academies

ICJ Statute, Art 7: No group may nominate more than four persons, not
more than two of whom shall be of their own nationality.

Judges ad hoc

ICJ Statute, Art 31(1): Judges of the nationality of each of the parties shall
retain their right to sit in the case before the Court.

ICJ Statute, Art 31(2): If the Court includes upon the Bench a judge of the
nationality of one of the parties, any other party may choose a person to sit
as judge.

ICJ Statute, Art 31(3): If the Court includes upon the Bench no judge of the
nationality of the parties, each of these parties may proceed to choose a
judge as provided in paragraph 2 of this Article.

Application of the Genocide Convention [1993] ICJ Rep 325, 407, 409 (Sep Op
Sir Elihu Lauterpacht): That assumption is, in my opinion, contrary to
principle and cannot be accepted. Nonetheless, consistently with the duty of
impartiality by which the ad hoc judge is bound, there is still something
specific that distinguishes his role. He has, I believe, the special obligation to
endeavour to ensure that, so far as is reasonable, every relevant argument in
favour of the party that has appointed him has been fully appreciated in the
course of collegial consideration and, ultimately, is reflected though not
necessarily accepted in any separate or dissenting opinion that he may
write.

3. Access to the ICJ

ICJ Statute, Art 34(1): Only States may be parties in cases before the
Court.

ICJ Statute, Art 34(2): The Court may request of public international
organizations information relevant to cases before it, and shall receive such
information presented by such organizations on their own initiative.

ICJ Statute, Art 35(1): The Court shall be open to the States parties to the
present Statute.

UN Charter, Art 93: Art 93(1) provides that all members of the UN are
parties to the ICJ Statute.

Art 93(2) allows a State which is not a member of the UN to become a party
to the ICJ Statute, as determined by the UNGA on the recommendation of the
UNSC.

4. Jurisdiction of the ICJ

Effect of the judgment ICJ Statute, Arts 5960: The decision of the Court
has no binding force
except between the parties and in respect of that particular case. The
judgment is final and without appeal.

UN Charter, art 94: 1. Each Member of the United Nations undertakes to

comply with the decision of the International Court of Justice in any case to
which it is a party.
2. If any party to a case fails to perform theobligations incumbent upon it
under a judgment rendered by the Court, the other party may have recourse
to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment.
A. Contentious Jurisdiction

On what bases can the Court take jurisdiction over a contentious case?
i. Optional Clause
ICJ Statute,Art 36(2) - The States parties to the present
Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation
to any other State accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would
constitute a breach of an international obligation;
d) the nature or extent of the reparation to be made for the
breach of an international obligation.
[3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of
several or certain States, or for a certain time.]
Australias declaration
The Government of Australia declares that it recognises as
compulsory ipso facto and without special agreement, in relation

to any other State accepting the same obligation, the jurisdiction

of the International Court of Justice in conformity with paragraph
2 of Article 36 of the Statute of the Court, until such time as
notice may be given to the SecretaryGeneral of the United
Nations withdrawing this declaration. This declaration is
effective immediately. This declaration does not apply to:
a) any dispute in regard to which the parties thereto have
agreed or shall agree to have recourse to some other method of
peaceful settlement;
b) any dispute concerning or relating to the delimitation of
maritime zones, including the territorial sea, the exclusive
economic zone and the continental shelf, or arising out of,
concerning, or relating to the exploitation of any disputed area
of or adjacent to any such maritime zone pending its
delimitation;
c) any dispute in respect of which any other party to the dispute
has accepted the compulsory jurisdiction of the Court only in
relation to or for the purpose of the dispute; or where the
acceptance of the Court's compulsory jurisdiction on behalf of
any other party to the dispute was deposited less than 12
months prior to the filing of the application bringing the dispute
before the Court.
Norwegian Loans [1957] ICJ Rep 9
Frances declaration contained the following reservation:
This declaration does not apply to differences relating to matters
which are essentially within the national jurisdiction as
understood by the Government of the French Republic.
Query the validity of this reservation? See [1957] ICJ Rep 34
(Sep Op Sir Hersch Lauterpacht)
ii. Special Agreement/Compromis
ICJ Statute Article 36(1) The jurisdiction of the Court
comprises all cases which the parties refer to it and all matters
specially provided p y p for in the Charter of the United Nations
or in treaties and conventions in force.
Compromis in GabcikovoNagymaros Project [1997] ICJ
Rep 7
Compromis, Art 2(1): The Court is requested to decide on the
basis of the Treaty and rules and principles of general
international law, as well as such other treaties as the Court may
find applicable:
a) whether the Republic of Hungary was entitled to suspend and
subsequently abandon, in 1989, the works on the Nagymaros

Project and on the part of the Gabcikovo Project for which the
Treaty attributed responsibility to the Republic of Hungary;
b) whether the Czech and Slovak Federal Republic was entitled
to
proceed, in November 1991, to the provisional solution and to
put into operation from October 1992 this system ;
c) what are the legal effects of the notification, on 19 May 1992,
of the termination of the Treaty by the Republic of Hungary.
Compromis, Art 2(2): The Court is also requested to determine
the legal consequences, including the rights and obligations for
the Parties, arising from its Judgment on the questions in
paragraph 1 of this Article.
iii. Compromissory Clause
Article 36(1) E.g.: Revised General Act for the Peaceful
Settlement of Disputes (1949), Art 17: All disputes with regard
to which the parties are in conflict as to their respective rights
shall, subject to any reservations which may be made under
article 39, be submitted for decision to the International Court of
Justice, unless the parties agree, in the manner hereinafter
provided, to have resort to an arbitral tribunal. It is understood
that the disputes referred to above include in particular those
mentioned in Article 36 of the Statute of the International Court
of Justice.
E.g., Optional Protocol to the Vienna Convention on Diplomatic
Relations, Art I: Disputes arising out of the interpretation or
application of the Convention shall lie within the compulsory
jurisdiction of the International Court of Justice and may
accordingly be brought before the Court by an application made
by any party to the dispute being a Party to the present
Protocol.
Iran United States Treaty of Amity, Article XXI(2): Any
dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not
satisfactorily adjusted by diplomacy, shall be submitted to the
International Court of Justice, unless the High Contracting Parties
agree to settlement by some other pacific means.
iv. Transferred Jurisdiction of the PCIJ
ICJ Statute, Art 36(5): Declarations made under Article 36 of
the Statute of the Permanent Court of International Justice and
which are still in force shall be deemed, as between the parties
to the present Statute, to be acceptances of the compulsory
jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms.

ICJ Statute, Art 37: Whenever a treaty or convention in force

provides for reference of a matter to a tribunal to have been
instituted by the League of Nations, or to the Permanent Court
of International Justice, the matter shall, as between the parties
to the present Statute, be referred to the International Court of
Justice.
v. Forum Prorogatum
Corfu Channel [1948] ICJ Rep 15
UNSCR 22 (1947): The Security Council, Recommends that
the United Kingdom and Albanian Governments should
immediately refer the dispute to the International Court of
Justice in accordance with the provisions of the Statute of the
Court. Albanian letter dated 2 July 1947: [Albania] would be
within its rights in holding that the Government of the United
Kingdom was not entitled to bring the case before the
International Court by unilateral application [Albania] is
prepared notwithstanding this irregularity to appear before the
Court.

Nicaragua v US [1984] ICJ Rep 392

Nicaragua alleged many violations by the US of its obligations under
international law, including under the UN Charter
Nicaragua based its application (9 April 1984) on: Nicaraguas and the USs
optional clause declarations; and the USNicaragua bilateral FCN treaty of
1956.
Shultz notification of 6 April 1984 purported to modify the USs optional
clause declaration with immediate effect
Nicaraguas optional clause declaration was made in 1929 re the PCIJ
Nicaragua had signed and ratified (internally) the PCIJ Statute
But: Nicaragua had not deposited the instrument of ratification of the PCIJ
Statute with the League of Nations
Issues for the ICJ:
1. Was Nicaraguas optional clause declaration valid, in force, and binding?
2. If Nicaraguas optional clause declaration was valid, in force, and binding,
what was the effect of the Shultz letter of 6 April 1984 on the USs optional
clause declaration?
Issue 1
ICJ Statute, Art 36(5): Declarations made under Article 36 of the Statute of
the Permanent Court of International Justice and which are still in force shall
be deemed, as between the parties to the present Statute, to be acceptances
of the compulsory jurisdiction of the International Court of Justice for the
period which they still have to run and in accordance with their terms.
still in force vs. dont la duree nest pas encore expiree
Relevance of treatment of Nicaraguas declaration by ICJ and UN; also in
previous Honduras v Nicaragua dispute in 1960
ICJ held that: Nicaraguas declaration was valid, but not binding, at the time
it was made
It was made for a period that had not expired it was still in force (dont la
dure nest pas encore expire). When Nicaragua ratified the UN Charter and
ICJ Statute, this perfected the declaration
Issue 2
What was the effect of the Shultz letter of 6 April 1984?
US declaration said that it would remain in force for five years and thereafter
until the expiration of six months after notice may be given to terminate the
declaration.
US argued the letter was not a termination, but a modification
US argued that, even the letter was a termination, the six month notice
period did not apply on the basis of the principle of reciprocity
ICJ held that: [optional clause] declarations, even though they are
unilateral acts, establish a series of bilateral engagements with other states
accepting the same obligation of compulsory jurisdiction (para 59)
The notion of reciprocity is concerned with the scope and substance of the
commitments entered into and not with the formal conditions of their
creation, duration or extinction (para 62). So the US was not able to rely on
the principle of reciprocity in terminating its optional clause declaration with
immediate effect
Even if the US could rely on the principle of reciprocity, there was no right to
terminate its declaration with immediate effect it had to give a reasonable
period of notice (and three days was not reasonable!)
Merits judgment is at [1986] ICJ Rep 14
Further US reservation re multilateral treaties
The United States acceptance of the Courts jurisdiction did not extend to
disputes arising under a multilateral treaty, unless (i) all parties to that treaty

prepared notwithstanding this irregularity to appear before

the Court.
B. Advisory Jurisdiction
-

Articles 65 and 96

Non-contentious and does not involve states.

General doctrine:
o

Court must be asked by a body with authority to ask (GA, SC,

or specialized agency).

Must be a legal question.

If a specialized agency is asking, it must fall within the scope

of their actions. (See Nuclear Weapons case.)

Court asks if: (1) it has jurisdiction, and (2) it is admissible.

The court has never rejected an advisory opinion on

the ground that it was improper (inadmissible).

Court rejects the argument that it cant decide a

question that is political in nature. As long as there is
a legal question, it can issue an opinion.

States may participate may be directly interested parties,

but are not technically parties to the proceedings.

Not a binding opinion - what the court thinks the law requires.
There are efforts, however, to make the advisory opinions binding.
Even though an advisory opinion isnt binding, it can help GA or SC
resolve political disputes. (See Western Sahara case.)

Basis of ICJs jurisdiction ICJ Statute, Art 65: 1. The Court may
give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked
shall be laid before the Court by means of a written request
containing an exact statement of the question upon which an
opinion is required, and accompanied by all documents likely to
throw light upon the question.

Who can request an advisory opinion? UN Charter, Art 96: 1. The

General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any
legal question.

2. Other organs of the United Nations and specialized agencies,

which may at any time be so authorized by the General Assembly,
may also request advisory opinions of the Court on legal questions
arising within the scope of their activities.
-

NB outcome in WHOs request for an advisory opinion in Legality of

Threat or Use of Nuclear Weapons
Need for consent of States to the dispute? See ICJ Statute, Art 68:
In the exercise of its advisory functions the Court shall further be
guided by the provisions of the present Statute which apply in
contentious cases to the extent to which it recognizes them to be
applicable.
Status of Eastern Carelia, Ser B, (No 5) 278 (PCIJ, 1923): It is
well established in international law that no State can, without its
consent, be compelled to submit its disputes with other States
either to mediation or to arbitration, or to any other kind of pacific
settlement. Such consent, however, has never been given by
Russia. On the contrary, Russia has, on several occasions, clearly
declared that it accepts no intervention by the League of Nations in
the dispute with Finland. The Court therefore finds it impossible
to give its opinion on a dispute of this kind.
Cf Interpretation of Peace Treaties [1950] ICJ Rep 65, 71: The
consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases. The situation is different in regard
to advisory proceedings even where the Request for an Opinion
relates to a legal question actually pending between States. The
Courts reply is only of an advisory character: as such, it has no
binding force. It follows that no State, whether a Member of the
United Nations or not, can prevent the giving of an Advisory Opinion
which the United Nations considers to be desirable in order to
obtain enlightenment as to the course of action it should take.
Cf Western Sahara [1975] ICJ Rep 12, 234: In [Legal Status of
Eastern Carelia], one of the States concerned was neither a party to
the Statute of the Permanent Court nor, at the time, a Member of
theLeague of Nations, and lack of competence of the League to
deal with a dispute involving nonmember States which refused its
intervention was a decisive reason for the Court's declining to give
an answer. In the present case, Spain is a Member of the United
Nations and has accepted the provisions of the Charter and Statute;
it has thereby in general given its consent to the exercise by the
Court of its advisory jurisdiction. It has not objected, and could not
validly object, to the General Assembly's exercise of its powers to
deal with the decolonization of a nonselfgoverning territory and to
seek an opinion on questions relevant to the exercise of those
powers.
Although: In certain circumstances the lack of consent of an
interested State may render the giving of an advisory opinion
incompatible with the Courts judicial character. If such a
situation should arise, the powers of the Court under the discretion
given to it by Article 65, paragraph 1, of the Statute, would afford

sufficient legal means to ensure respect for the fundamental

principle of consent to jurisdiction.
Can States appoint judges ad hoc in advisory proceedings? Yes:
see, e.g., ICJ Statute, Art 68, and ICJ Rules, Art 102(3)
Advisory opinions are not binding

C. Provisional Measures
-

ICJ Statute, Art 41: 1. The Court shall have the power to indicate, if
it considers that circumstances so require, any provisional
measures which ought to be taken to preserve the respective rights
of either party.
2. Pending the final decision, notice of the measures suggested
shall forthwith be given to the parties and to the Security Council.

Considerable flexibility in orders that can be made, although they

must seek to preserve the rights of the parties which form the
subject matter of the dispute

The ICJ must have prima facie jurisdiction over the merits of the
dispute (Interhandel [1957]

ICJ Rep 105, 117 (Sep Op Lauterpacht));

There must be a risk that irreparable prejudice will be done to the

rights of the parties in dispute (Fisheries Jurisdiction [1972]

ICJ Rep 12, 16); and

There must be urgency (Passage through the Great Belt [1991]

ICJ Rep 12, 17).

E.g., Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v Russia), (Order of 15 October 2008):
[O]n a request for the indication of provisional measures, the Court
need not finally satisfy itself, before deciding whether or not to
indicate such measures, that it has jurisdiction on the merits of the
case, yet it may not indicate them unless the provisions invoked by
the Applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be founded (para 85); [T]he
power of the Court to indicate provisional measures under Article
41 of its Statute presupposes that irreparable prejudice shall not
be caused to rights which are the subject of a dispute in judicial
proceedings (para 128); [T]he power of the Court to indicate
provisional measures will be exercised only if there is urgency in
the sense that there is a real risk that action prejudicial to the rights
of either party might be taken before the Court has given its final
decision (para 129).

Provisional measures have binding force LaGrand (Germany v

United States) [2001] ICJ Rep 466, para 102: [T]he context in

which Article 41 has to be seen within the Statute is to prevent the

Court from being hampered inthe exercise of its functions because
the respective rights of the parties to a dispute before the Court are
not preserved. It follows that the power to indicate provisional
measures entails that such measures should be binding, inasmuch
as the power in question is based on the necessity, when the
circumstances call for it, to safeguard, and to avoid prejudice to,
the rights of the parties as determined by the final judgment of the
Court.

D. Third Parties
-

ICJ Statute, Art 62: 1. Should a State consider that it has an

interest of a legal nature which may be affected by the decision in
the case, it may submit a request to the Court to be permitted to
intervene.
2. It shall be for the Court to decide upon this request.

ICJ Statute, Art 63: 1. Whenever the construction of a convention

to which States other than those concerned in the case are parties
is in question, the Registrar shall notify all such States forthwith.
2. Every State so notified has the right to intervene in the
proceedings; but if it uses this right, the construction given by the
judgment will be equally binding upon it.

There is no need for the intervening State to demonstrate a

jurisdictional link: Land, Island and Maritime Frontier Dispute [1990]
ICJ Rep 92:
o

The ICJs power to permit intervention does not come from

consent to its jurisdiction, but it derives that consent which
States give, by becoming parties to the ICJ Statute.

Intervention exists for the very purpose of permitting a State

which, because of the absence of a jurisdictional link, cannot
become a party to the case.

The intervener does not become a party to the case. It is not

bound by the decision, and only acquires the right to be
heard.

It does not appoint a judge ad hoc.

Indispensable third parties

Monetary Gold removed from Rome [1954] ICJ Rep 19

Complex facts. Was the gold Albanian monetary gold? If so, three
States had potential claims to it:
(i)
Albania;
(ii)
Italy (because of the nationalisation of Italian assets by Albania);
and
(iii)
the United Kingdom (because of the nonpayment by Albania of
the compensation owed to the United Kingdom arising out of the
Corfu Channel case).
Italy commenced proceedings against the United Kingdom, United
States and France, but then made a jurisdictional objection to its own
claim on the basis that Albania was not present
ICJ held: In the present case, Albanias legal interests would not only be
affected by a decision, but would form the very subject matter of
the decision. In such a case, the Statute cannot be regarded, by
implication, as authorising proceedings to be continued in the absence
of Albania.
-

The same issue arose in East Timor (Portugal v Australia) [1995] ICJ
Rep 90

East Timor (Portugal v Australia) [1995] ICJ Rep 90

East Timor is a former colony of Portugal, which abandoned it in 1975
East Timor was then annexed by Indonesia, and Australia (among very
Lockerbie
[1992]recognised
ICJ Rep 3 Indonesian sovereignty
few States)
Bombing
of Pam
Am Flight
103 into the Timor Gap Treaty in 1989 re
Australia and
Indonesia
entered
UK
suspectedand
Libyan
nationalsofwere
responsible and
soughtin
their
the and
jointUS
exploration
exploitation
the hydrocarbon
resources
extradition
the Timor Gap
Libya
refused
and saidICJ
it proceedings
would prosecute
in Libya,
and in
asked
Portugal
commenced
against
Australia
1991for UK and
assistance
in providing
evidence
US
Australia
argued
that the ICJ
was being asked to rule on the rights and
UK
and US sought
(and
obtained)
commenced
obligations
of a State
that
was notUNSCRs;
party to Libya
the proceedings
(i.e.,
proceedings
Indonesia) under the Montreal Convention
ICJ held that
arising
under
trump
(Eastobligations
Timor [1995]
ICJ Rep
90,UNSCRs
102): [I]n
the any
viewother
of the Court,
international
obligations
(UN be
Charter,
Art 103)
Australias behaviour
cannot
assessed
without first entering into the
question why it is that Indonesia could not lawfully have concluded the
Also:
1989
while
could have done
so; the
very
o Treaty,
The fact
thatPortugal
the SC isallegedly
actively considering
a matter
does
not
subjectmatter
the
decision
would necessarily be a
preclude of
the
ICJCourts
from having
jurisdiction
determination
having
regard
in review
which of
o No clearwhether,
answer on
whether
the to
ICJthe
cancircumstances
perform judicial
Indonesia entered and remained in East Timor, it could or could not
have acquired the power to enter into treaties on behalf of East Timor
E. Review of Security Council Action

International Arbitration

Hague Convention (1899), Art XV: International arbitration has for its
object the settlement of differences between States by judges of their own
choice, and on the basis of respect for law.
Hague Convention (1899), Art XVI: In questions of a legal nature, and
especially in the interpretation or application of International Conventions,
arbitration is recognized by the Signatory Powers as the most effective, and
at the same time the most equitable, means of settling disputes which
diplomacy has failed to settle.
Forms of international arbitration
o

1. InterState disputes See, e.g., www.pcacpa.org

2. Mixed arbitrations See, e.g., IranUS Claims Tribunal, also claims

against States under contracts and bilateral investment treaties:
http://ita.law.uvic.ca

3. Private international arbitration (international commercial

arbitration). Disputes between private entities from different countries
(usually contractual in nature)

Advantages of international arbitration - Why would States choose to go to

international arbitration over the ICJ?
o

Confidentiality/secrecy

Choice of the arbitrators (NB the detailed appointment procedure

which is set out in, e.g., various rules of arbitration, e.g., that which
exists under Annex VII of UNCLOS; NB also the deadlock-breaking
procedure if one State is recalcitrant)

No intervention by third parties

Special agreement / compromis / terms of reference

Effect of the award (but see also ICJ Statute, Art 59)

Role of International Organisations

1. UN Secretary-General

At the time the United Nations was established in 1945, the UN

Charter described the secretary-general broadly as the "chief
administrative officer." Beyond that, the type of leader needed, how
to select the candidate, and the person's length of tenure were
left open to interpretation. The UN website stipulates that the
secretary-general be "equal parts diplomat and advocate, civil
servant and CEO." These guidelines also require that the secretary-

general uphold the values of the UN, even at the risk of challenging
member states. Despite the broad and vague requirements of the
job, some informal norms are observed in appointments for the
post. Secretary-generals usually come from countries considered
small- to medium-sized neutral powers, are career diplomats, and
serve no more than two five-year terms. Regional rotation is
observed, with nationals of the five permanent members of the
Security Council--the United States, China, Russia, France, and the
United Kingdom--ineligible.

Does the secretary-general play a political role? Yes. Despite

the open-ended nature of the job description, the position calls for
less of a clerk than did the role of director of the League of Nations,
the UN's predecessor. Article 99 of the UN Charter says the
secretary-general "may bring to the attention of the Security
Council any matter which in his opinion may threaten the
maintenance of international peace and security." This provision
allows a secretary-general to choose between playing an activist
role or more of a bureaucratic role

What are the main responsibilities of the secretary-general?

o Administrative. The secretary-general oversees the UN
Secretariat, which handles UN operations, including research,
translation, and media relations.
o Human Resources. The hiring of under-secretaries for
approximately fifty UN posts, including the heads of funds
such as UNICEF and UNDP, falls under the purview of the
secretary-general.
o Peacekeeping. The secretary-general's office shoulders
responsibility for overseeing peacekeeping missions and
appoints the under-secretary in charge of that department,
involving more than 110,000 personnel serving in twenty
operations as of September 2008. Although the General
Assembly or Security Council may initiate a peacekeeping
mission, operational control rests with the Secretariat.
o Mediation. This function involves the secretary-general's
role as a mediator between parties in conflict. As part of his
"good offices" role the secretary-general makes use of his
independence and impartiality as the head of a global
organization to prevent and stop the spread of conflict.

2. UN Security Council
-

The Security Council responds to crises around the world on a caseby-case basis and it has a range of options at its disposal. It takes
many different factors into account when considering the
establishment of new peacekeeping operation, including:
o

Whether there is a ceasefire in place and the parties have

committed themselves to a peace process intended to reach
a political settlement;

Whether a clear political goal exists and whether it can be

reflected in the mandate;

Whether a precise mandate for a UN operation can be

formulated;

Whether the safety and security of UN personnel can be

reasonably ensured, including in particular whether
reasonable guarantees can be obtained from the main
parties or factions regarding the safety and security of UN
personnel.

The Security Council establishes a peacekeeping operation by

adopting a Security Council resolution. The resolution sets out that
missions mandate and size.

The Security Council monitors the work of UN Peacekeeping

operations on an ongoing basis, including through periodic reports
from the Secretary-General and by holding dedicated Security
Council sessions to discuss the work of specific operations.

The Security Council can vote to extend, amend or end mission

mandates as it deems appropriate.

Under Article 25 of the Charter, all UN members agree to accept

and carry out the decisions of the Security Council. While other
organs of the UN make recommendations to Member States, the
Council alone has the power to take decisions which Member States
are obligated to implement.

Functions:
o

to maintain international peace and security in accordance

with the principles and purposes of the United Nations;

to investigate any dispute or situation which mightlead to

international friction;

to recommend methods of adjusting such disputes or the

terms of settlement;

to formulate plans for the establishment of a system to

regulate armaments;

to determine the existence of a threat to the peace or act of

aggression and to recommend what action should be taken;

to call on Members to apply economic sanctions and other

measures not involving the use of force to prevent or stop
aggression;

to take military action against an aggressor;

to recommend the admission of new Members;

to exercise the trusteeship functions of the United Nations in

"strategic areas";

to recommend to the General Assembly the appointment of

the Secretary-General and, together with the Assembly, to
elect the Judges of the International Court of Justice.

3. Other Regional Bodies

-

UN Charter, Art 33(1): The parties to any dispute, the

continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of a, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.

According to the article 33 of the Chapter VI of the UN Charter,

regional bodies are regarded as agencies of the first resort in
dealing with disputed among their own members. The preliminary
version of the UN Charter stipulated that "the existence of regional
bodies for dealing with peace and security should not be
precluded".

Acts of regional organisations are capable of providing evidence of

opinio juris in support of both general and local CIL.
o

Eg. Nicaragua (Merits) Case @ [188-89] - In ascertaining

existence of opinio juris re: CIL against threat/use of force in
international relations ICJ took into account several UNGA
resolutions, resolution of 1928 6th International Conference of
American States, declaration of 1975 Conference on Security
and Cooperation in Europe

UN Charter, Art 52: 1. Nothing in the present Charter precludes

the existence of regional arrangements or agencies for dealing with
such matters relating to the maintenance of international peace
and security as are appropriate for regional action, provided that
such arrangements or agencies and their activities are consistent
with the Purposes and Principles of the United Nations.
2. The Members of the United Nations entering into such
arrangements or constituting such agencies shall make every effort
to achieve pacific settlement of local disputes through such regional
arrangements or by such regional agencies before referring them to
the Security Council.
3. []

4. This Article in no way impairs the application of Articles 34 and

35.
-

UN Charter, Art 53 1. The Security Council shall, where

appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action
shall be taken under regional arrangements or by regional agencies
without the authorization of the Security Council .

UN Charter, Art 54 The Security Council shall at all times be

kept fully informed of activities undertaken or in contemplation
under regional arrangements or by regional agencies for the
maintenance of international peace and security.

Contemporary Developments
1. Proliferation of International Courts and Tribunals
-

International disputes prior to 1899 were adjudicated almost

exclusively between States, with some exceptions. For instance, the
mixed tribunals established pursuant to the Jay Treaty of 1794
between the U.S. and Great Britain allowed for individual claims to
be brought before the tribunal. The move to the second phase
came with the decision in 1899 to establish the Permanent Court of
Arbitration (PCA), which was done "with the objective of facilitating
an immediate recourse to arbitration for international differences"
that could not be settled by diplomacy. The permanent nature of
the PCA makes recourse possible at all times as opposed to setting
up new institutions as incidents arise. Even if the PCA is not
considered a permanent tribunal with permanent judges, it is
regarded as an important point in the history of modern
international dispute settlement. A truly international' court would
have had to wait until the end of World War I. The third phase in
the history of international adjudication commenced in the 1940s
and 1950s with the establishment of the International Court of
Justice (ICJ), the European Court of Justice (ECJ), the European
Commission and Courts of Human Rights. This phase lasted up to
the early 1980s, and encompassed also the establishment of the
International Centre for the Settlement of Investment Disputes
(ICSID). The fourth phase was decisively initiated by the creation of
the International Tribunal for the Law of the Sea (ITLOS). Although
the ITLOS became operational in 1996 the adoption of the 1982
Convention for the Law of the Sea signaled an entry in to a new
phase. This phase is characterized by compulsory jurisdiction and
the granting of binding decision making power to judicial
institutions, as is now also reflected in the provisions of the WTO's
Dispute Settlement Understanding (DSU). In this last phase the

creation of the International Tribunal for the Law of the Sea

provoked a lot of debate among scholars, judges and practitioners.
-

Put in context, this proliferation of international courts and tribunals

has to be seen as a part of the greater picture of the proliferation of
international organizations. This in turn needs to be seen in the
context of a growing interdependence between countries and
international cooperation that necessitates an institutional
mechanism to regulate these new areas of cooperation. There is
one fundamental overarching explanation that is usually
summarized in catch words such as globalization and
interdependence and which effectively means that an increasing
number of state functions can no longer be performed in
isolation. Hence globalization has its own share in the creation of
more international courts and tribunals.

In most cases the proliferation of international organizations

directly contributed to the proliferation of international courts and
tribunals. For instance, the proliferation of administrative tribunals
and those tribunals created under the auspices of regional
integration agreements are some of such cases. While the need for
new courts could be justified by the creators in each case, the fact
that they are attached to international organizations instead of
standing alone is explained more by economic justifications than
other considerations. The most practical method of financing a
tribunal is through the budget of an international organization, thus
tapping the purses of member States who may not be interested in
contributing to an international judiciary as such.

In most cases, While the above general statements could apply to

the whole phenomenon, it is also important to look for specific
reasons that are often invoked for the creation of multiple
international courts and tribunals. How do we go about it? One
appropriate question that could be raised is why States create
many more new international tribunals instead of strengthening the
"principal judicial organ" of the United Nations?

At the same time, in addition to the unsuitability of the ICJ for the
needs of some countries, there are other reasons responsible for
the creation of alternative judicial forums. These include, among
others, the fact that there have been some fundamental changes in
international law and relations, and the success of some courts as
an inspiration for the creation of more courts.

2. Fragmentation of International Law

-

Fragmentation is understood to be a consequence of the expansion

and diversification of international law. It is not considered a new
concept, but rather a characteristic of international law which is
inherently a law of a fragmented world. The International Law

Commission notes that the subject of fragmentation can be

examined from two perspectives: procedural and substantive.
Procedural issues relate to institutional questions of practical
coordination, institutional hierarchy and the need for international
courts and tribunals to pay attention to each others jurisprudence.
Substantive concerns refer to fragmentation of the law itself into
special regimes which might be lacking in coherence or are in
conflict with each other. The ILC defines three patterns of conflict
relevant to the issue of substantive fragmentation. These are: (a)
conflict between different understandings or interpretations of
general law, (b) conflict arising when a special body deviates from
the general law not as a result of disagreement as to the general
law but on the basis that a special law applies, and (c) conflict
arising when specialised fields of law seem to be in conflict with
each other.
-

Due to the proliferation of international dispute resolution bodies in

the absence of an overarching framework or plan, numerous
conflicts concerning multiple jurisdiction have arisen. Where more
than one international court or tribunal is seized of the same
dispute, even though presented with the same material facts,
conflicting decisions can result, causing fragmentation of
international law.

Topic 3: Law of the Sea

Development of the Modern Law of the Sea

There are two competing notions in relation to the law of the sea:
o

freedom of the seas

In international law, this notion is associated with Huig de Groot

(1583-1645)

Grotius was a Dutch lawyer, author of Mare Liberum (1609)

Freedom of the seas was already an identifiable concept in

international law, but Grotius developed it to its greatest depth.

The basic principle of Grotius thesis was: Every nation is free

to travel to every other nation, and to trade with it.

This natural and universal law was not affected by custom.

Customary use of an area of the sea could not override natural
law. Therefore, since neither laws of possession or conquest,
nor custom prevailed over the natural freedom of the seas, the
seas were free to all.

dominion over the seas

Grotius theory of freedom of the seas was particularly badly

received in England

William Wellwood, a Scottish lawyer, published An Abridgement

of All Sea-Lawes in 1613. He argued for a 100-mile territorial
sea, fisheries protection, and for freedom on the high seas only.

James 1 was very displeased with Grotius work, and requested a

book in reply. Selden, who was facing prison for a previous
book, was delighted to comply, but when the book came to
James 1 for approval, he decided it was too controversial in the
light of his necessary alliances with the other Protestant powers
in Europe, notably Holland.
As for legal principle, Selden formulated a theory of customary
law as the basis for the appropriation of certain parts of the sea:
...that the sea by the law of nature and nations is not
common to mankind but is capable of private dominion
or property equally with the land ....by the customs of
almost all and the more Noble nations that are known to
us, such a dominion of the sea is everywhere admitted.

What emerged by default as much as by reasoned argument,

was a middle position in which nations maintained a territorial
sea of varying width, and treated the high seas outside their
respective territorial seas as free.

This has remained the position until the present, and has now
been codified in the United Nations Conference on the Law of
the Sea treaty (UNCLOS), which provides for a territorial sea of
12 nautical miles (nm) and Exclusive Economic Zones of
200 nm. This means that very large parts of the worlds seas
are now appropriated, or capable of appropriation, by individual
nations.

Customary Law of the Sea

o

The content of the customary law of the sea is somewhat nebulous perhaps including:

to have a territorial sea- also ways a big issue for states- how
much do they own?

to determine its breadth- now days 12 nautical miles

to protect national fisheries-protection of their food and trade

to have freedom on the high seas- the high seas are getting
smaller and smaller today, because of the other areas, EEZ etc

Some states say that all water should be territorialised

Whatever the actual content, it is generally agreed that this customary

law was codified in the conventions which emerged from the 1958
and 1960 Law of the Sea (UNCLOS I and II) meetings.

AND that UNCLOS III represents the customary law today

UNCLOS I AND II 1958/60

o

Convention on the Territorial Sea and the Contiguous Zone (came into
force 10-9-64)

Convention on the High Seas ( 30-9-62)

Convention on the Continental Shelf ( 10-6-64)

Convention on Fishing and Conservation of the Living Resources of the

High Seas ( 20-3-66)

However, few ratifications (average 40) mean the 1958 Conventions

have doubtful international validity

they did not fix a maximum limit to which a countrys territorial sea
could be extended

they did not describe a definite boundary for the continental shelf

UNCLOS III began because of concern over the possible exploitation of the
resources of the sea-bed and the ocean floor on a competitive basis
It was believed by some that this would lead to neo-colonialism, diplomatic
conflict and war
The resources of the sea-bed and the ocean floor were described by the UN
as the legacy of all human beings

Moratorium on exploitation of resources of the sea-bed and the ocean floor

(UN Resolution 2574D (XXIV)). The smaller states could not have the
advantage of the common sea bed, the big states could mine and reap the
benefits of the sea bed and this wasnt just.
This hasnt become a large issue because there has not been enough
advancement of technology yet, however at the time it was considered
important
Declaration of Principles governing sea-bed and ocean floor (UN Resolution
2749(XXV)): this made the deep sea bed the common heritage of
humankind the resources of these areas will be shared by all (this is a very
60s and 70s approach)
Inaugurated in December 1973, following UN Resolution 3067 (XXVIII) with
the first session being held in Caracas, Venezuela, from June 20, 1974.
Purpose: to establish an equitable international regime covering a wide
range of LOS issues including: territorial sea, contiguous zone, continental
shelf, exclusive economic zone, high seas, fisheries, conservation of
resources, etc.
Covers almost everything dealing with the law of the sea in one convention, it
is useful on that basis. Whether it is equitable is open for interpretation
Opened for signature on 10 December 1982 at Montego Bay, Jamaica
119 countries signed immediately (a record). Now, 157 countries have
signed.
Ratifications required for entry into force: 60 60th ratification: Guyana, on 1611-93.
Therefore, entered into force on 16-11-94.
Currently, 149 ratifications
Problems with the new UNCLOS
o The USA voted against UNCLOS at the final session of negotiations
o Regan was a Republican and he wanted no part of part Xi of UNCLOS
o The US was unhappy with Part XI, on the deep-sea mining question
(States can go and exploit the sea-bed but all profits must be shared)
o US said that we were the ones with the technology and we are the
ones who will go out and reap the benefits, they will not share the
profits
o BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed
Hard Mineral Resources Act 1980(USA)
o Other countries (UK, former USSR) followed suit at the time the UK
and USSR were the super powers and they were not keen to share with
the other countries and if America could, so could they (very childish)
o Art 309 forbids reservations or exceptions, so states like the US dont
sign the whole lot because of an issue with one part
o Art 312 no amendments for 10 years after UNCLOS enters into force
(which would be 2004 but then there was the amendment to Part XI in
breach of this rule)
o Art 155 review of Part XI not to take place until 15 years after first
commercial production from sea bed <> not even close to this, but
Part XI has already been amended
o Australias position on UNCLOS

Australia
Australia
Australia
Australia

signed on 10-12-82
ratified on 5 October 1994
signed the Part XI agreement on 28 July 1994
ratified the Part XI Agreement on 5 October 1994

Maritime Zones

Zones and the Area

Territorial
sea
3nm

12nm

200nm

24nm

EEZ

High seas

Baseline

Continental shelf
The Area

1. Baselines

UNCLOS, Art 5: Except where otherwise provided in this Convention, the

normal baseline for measuring the breadth of the territorial sea is the low
water line along the coast as marked on largescale charts officially
recognized by the coastal State.

Cf, AngloNorwegian Fisheries Case [1951] ICJ Rep 116

AngloNorwegian Fisheries Case (1951)

Norwegian decree identifying its fishery zone (1935)
Norway claimed a territorial sea of four miles, and used straight
baselines to delimit sections of its territorial sea, using drying rocks
above water level at low tide, claiming well established historical title
and geographical conditions relevant to the Norwegian coast (fjords,
sunds, skjaergaard)
Where was the baseline?
o The heavily indented coastline, or the skjaergaard?
How was the baseline to be drawn?
o Trace parallele method
o Courbe tangente method
o Straight baseline method
UNCLOS, Art 7 Straight baselines
1. In localities where the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its immediate vicinity, the
method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the
territorial sea is measured. []
3. The drawing of straight baselines must not depart to any appreciable
extent from the general direction of the coast, and the sea areas lying
within the lines must be sufficiently closely linked to the land domain to
be subject to the regime of internal waters. []
5. Where the method of straight baselines is applicable under paragraph
1, account may be taken, in determining particular baselines, of
economic interests peculiar to the region concerned, the reality and the

Cf Qatar v Bahrain (ICJ, 2001) 212. The Court observes that the method of
straightbaselines, which is an exception to the normal rules for the
determination of baselines, may only be applied if a number of conditions are
met. This method must be applied restrictively. Such conditions are primarily
that either the coastline is deeply indented and cut into, or that there is a
fringe of islands along the coast in its immediate vicinity. 213. The fact that a
State considers itself a multiple islandState or a de facto archipelagic State
does not allow it to deviate from the normal rules for the determination of
baselines unless the relevant conditions are met.

2. Internal Waters

UNCLOS, Art 8: 1. Except as provided in Part IV, waters on the landward side
of the baseline of the territorial sea form part of the internal waters of the
State.
2. Where the establishment of a straight baseline in accordance with the
method set forth in Article 7 has the effect of enclosing as internal waters
areas which had not previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those waters.

No right of innocent passage through internal waters

Coastal State has the right to regulate access to its ports: UNCLOS, Arts
25(2), 211(3), 255.

(Cf. Saudi Arabia v Aramco ((1963) 27 ILR 117, 212);

In support, see OConnell: If a country chooses to close its ports altogether

that would seem to be an act of sovereignty, but if it opens them, it must
open them arguably to allcomers, on a nondiscriminatory basis:
OConnell, The International Law of the Sea (1984) vol II, p 848);

See also Nicaragua [1986] ICJ Rep 14, 111.

Coastal State has unlimited prescriptive and enforcement jurisdiction in the

internal waters

But they usually leave jurisdiction over criminal acts taking place on foreign
ships in internal waters to the flag State of the ship concerned, unless the act
disturbs the public peace of the coastal State

R v Anderson (1868) 11 Coxs Criminal Cases 198

Wildenhuss Case, 120 US 1 (1887) But if crimes are committed on

board of a character to disturb the peace and tranquillity of the country to
which the vessel has been brought, the offenders have never by comity or
usage been entitled to any exemption from the operation of local laws for
their punishment, if the local tribunals see fit to assert their authority. The
principle which governs the whole matter is this: Disorders which disturb only
the peace of the ship or those on board are to be dealt with exclusively by
the sovereignty of the home of the ship, but those which disturb the public
peace may be suppressed, and, if need be, the offenders punished by the
proper authorities of the local jurisdiction.

Archipelagos and archipelagic States are covered by Part IV of UNCLOS

(remember Art 8(1)?) Art 8(1): Except as provided in Part IV, waters on the

landward side of the baseline of the territorial sea form part of the internal
waters of the State.

Examples of archipelagic States include Indonesia and the Philippines

UNCLOS, Art 47: 1. An archipelagic State may draw straight archipelagic

baselines joining the outermost points of the outermost islands and drying
reefs of the archipelago provided that within such baselines are included the
main islands and an area in which the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical
miles.
3. The drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago.
UNCLOS, Art 48: The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47.
UNCLOS, Art 50: Within its archipelagic waters, the archipelagic State may
draw closing lines for the delimitation of internal waters, in accordance with
articles 9, 10 and 11.
Rivers UNCLOS, Art 9: If a river flows directly into the sea, the baseline
shall be a straight line across the mouth of the river between points on the
lowwater line of its banks.
Bays UNCLOS, Art 10(2): A bay is a wellmarked indentation whose
penetration is in such proportion to the width of its mouth as to contain land
locked waters and constitute more than a mere curvature of the coast. An
indentation shall not, however, be regarded as a bay unless its area is as
large as, or larger than, that of the semicircle whose diameter is a line drawn
across the mouth of that indentation.
UNCLOS, Art 10(4): [i]f the distance between the lowwater marks of the
natural entrance points of a bay does not exceed 24 nautical miles, a closing
line may be drawn between these two lowwater marks, and the waters
enclosed thereby shall be considered as internal waters.
UNCLOS, Art 10(5): Where the distance exceeds 24 nautical miles, a
straight baseline of 24 nautical miles shall be drawn within the bay in such a
manner as to enclose the maximum area of water that is possible with a line
of that length.
Bays belonging to more than one State:
o Not covered by UNCLOS
o The territorial waters should simply follow the sinuosities of the
coast, subject to any special agreement.
Historic bays:
o Not covered by UNCLOS
o [G]eneral international law does not provide for a single regime for
historic waters or historic bays, but only for a particular regime for
each of the concrete, recognised cases of historic waters or historic
bays. It is clearly the case that, basically, the notion of historic rights

or waters and that of the continental shelf are governed by distinct

legal regimes in customary international law. Tunisia/Libya [1982] ICJ
Rep 18, 734.

UNCLOS, Art 11: For the purpose of delimiting the territorial sea, the
outermost permanent harbour works which form an integral g part of the
harbour system are regarded as forming part of the coast.

3. Territorial Sea

For many years, no agreement on the breadth of the territorial sea (3 200
nautical miles)

UNCLOS, Art 3: Every State has the right to establish the breadth of its
territorial sea up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention.

Still quite diverse practice in 2002

If States are opposite or adjacent to each other:

o

UNCLOS, Art 15: Where the coasts of two States are opposite or
adjacent to each other, neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territorial sea
beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the
territorial seas of each of the two States is measured.

This does not apply where it is necessary by reason of historic title

or other special circumstances to delimit the territorial seas of the two
States in a way which is at variance therewith.

Right of innocent passage UNCLOS, Art 17: Subject to this

Convention, ships of all States, whether coastal or landlocked, enjoy the
right of innocent passage through the territorial sea.

What is innocent passage? UNCLOS, Art 19(1): Passage is innocent so

long as it is not prejudicial to the peace, good order or security of the coastal
State. Such passage shall take place in conformity with this Convention and
with other rules of international law.

19(2). Passage of a foreign ship shall be considered to be prejudicial to the

peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:
o

a) any threat or use of force [];

b) any exercise or practice with weapons of any kind;

c) any act aimed at collecting information to the prejudice of the []

security of the coastal State;

d) any act of propaganda aimed at affecting the defence or security of

the coastal State;

e) the launching, landing or taking on board of any aircraft;

f) the launching, landing or taking on board of any military device;

g) the loading or unloading of [anything] contrary to the customs,

fiscal, immigration or sanitary laws and regulations of the coastal
State;

h) any act of wilful and serious pollution contrary to this Convention;

i) any fishing activities;

j) the carrying out of research or survey activities;

k) any act aimed at interfering with any systems of communication or

any other facilities or installations of the coastal State;

l) any other activity not having a direct bearing on passage.

Does it cover warships, or merely merchantships?

o

USUSSR Joint Declaration

Wording of UNCLOS

Contrary State practice

Corfu Channel case [1949] ICJ Rep 4 Innocent passage through

international straits (and territorial sea)

UNCLOS, Art 21 Coastal State may adopt laws and regulations re innocent
passage, e.g.: the safety of navigation and the regulation of maritime
traffic;

 the protection of navigational aids and facilities and other facilities or

installations;
the protection of cables and pipelines; and
the conservation of the living resources of the sea,etc

If the coastal State suspects noninnocent passage, UNCLOS, Art 25(1):

The coastal State may take the necessary steps in its territorial sea to
prevent passage which is not innocent.

And UNCLOS, Art 25(3): The coastal State may, without discrimination in
form or in fact among foreign ships, suspend temporarily in specified areas of
its territorial sea the innocent passage of foreign ships if such suspension is
essential for the protection of its security, including weapons exercises. Such
suspension shall take effect only after having been duly published.

Territorial sea coastal State jurisdiction

UNCLOS, Art 27 (Criminal jurisdiction): (1) The criminal jurisdiction of the

coastal State should not be exercised on board a foreign ship passing through
the territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage,
save only in the following cases:
o

a) if the consequences of the crime extend to the coastal State;

b) if the crime is of a kind to disturb the peace of the country or the

good order of the territorial sea;

c) if the assistance of the local authorities has been requested by the

master of the ship or by a diplomatic agent or consular officer of the
flag State; or

d) if such measures are necessary for the suppression of illicit traffic in

narcotic drugs or psychotropic substances.

UNCLOS, Art 28(1): The coastal State should not stop or divert a foreign
ship passing through the territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board the ship.

NB difference in approach between common law and civil law

Straits - UNCLOS, Art 38: In straits all ships and aircraft enjoy the
right of transit passage, which shall not be impeded if the strait is
formed by an island of a State bordering the strait and its mainland, transit
passage shall not apply if there exists seaward of the island a route through

the high seas or through an exclusive economic zone of similar convenience

with respect to navigational and hydrographical characteristics.

UNCLOS, Art 45: the right of transit passage cannot be suspended on the
grounds of security E.g., Strait of Tiran in Red Sea

4. Contiguous Zone

UNCLOS, Art 33 Coastal State may exercise control necessary to prevent

infringement of its customs, fiscal, immigration or sanitary laws, and to
punish infringements of the above laws committed within the territorial sea
May not extend more than 24 nautical miles from the baseline

5. Continental Shelf

North Sea Continental Shelf [1969] ICJ Rep 3, 22: the rights of the
coastal State in respect of the area of continental shelf that constitutes a
natural prolongation of its land territory into and under the sea exist ipso
facto and ab initio, by virtue of its sovereignty over the land, and as an
extension of it in an exercise of sovereign rights for the purpose of exploring
the seabed and exploiting its natural resources. In short, there is here an
inherent right.
In order to exercise it, no special legal process has to be gone through, nor
have any special legal acts to be performed. Furthermore, the right does
not depend on its being exercised. To echo the language of the Geneva
Convention, it is exclusive in the sense that if the coastal State does not
choose to explore or exploit the areas of shelf appertaining to it, that is its
own affair, but no one else may do so without its express consent.
This reflected almost verbatim in UNCLOS, Art 77
Extent of the continental shelf: UNCLOS, Art 76(1): (1) the seabed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge of
the continental margin, or to a distance of 200 nautical miles from the
baseline
(3) the continental margin comprises the submerged prolongation of the
land mass of the coastal State, and consists of the seabed and subsoil of the

shelf, the slope and the rise. It does not include the deep ocean floor with its
oceanic ridges or the subsoil thereof.
(5) the maximum you can extend a continental shelf is 350 nautical miles,
or 100 miles seawards of the 2500m isobath.

6. Exclusive Economic Zone

UNCLOS, Art 55: an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the
rights and jurisdiction of the coastal State and the rights and freedoms of
other States are governed by the relevant provisions of this Convention.

UNCLOS, Art 57: States can claim an EEZ of up to 200 nautical miles

UNCLOS, Art 56: In the EEZ, Coastal States have sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or nonliving, of the waters superjacent to the
seabed and of the seabed and its subsoil ...

7. High Seas

UNCLOS, Art 86: The provisions of this Part [the High Seas] apply to all
parts of the sea that are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the archipelagic
waters of an archipelagic State. This article does not entail any abridgement
of the freedoms enjoyed by all States in the exclusive economic zone in
accordance with article 58.

Freedom of the high seas

UNCLOS, Art 87(1): The high seas are open to all States, whether coastal or
landlocked. Freedom of the high seas is exercised under the conditions laid
down by this Convention and by other rules of international law.

The freedom of the high seas comprises, inter alia:

o

a) freedom of navigation;

b) freedom of overflight;

c) freedom to lay submarine cables and pipelines, subject to Part VI

[the Continental Shelf];

d) freedom to construct artificial islands and other installations

permitted under international law, subject to Part VI [the Continental
Shelf];

e) freedom of fishing, subject to the conditions laid down in section 2;

f) freedom of scientific research, subject to Parts VI [the Continental

Shelf] and XIII [Marine Scientific Research].

UNCLOS, Art 87 is not an exhaustive list

o E.g., weapons testing, exercises, naval manoeuvres, observing other
States naval manoeuvres
UNCLOS, Art 88: The high seas shall be reserved for peaceful purposes.
What about nuclear weapons testing?
UNCLOS, Art 89: No State may validly purport to subject any part of the
high seas to its sovereignty.
High seas Nationality of ships - UNCLOS, Art 90: Every State, whether
coastal or landlocked, has the right to sail ships flying its flag on the high
seas.
UNCLOS, Art 91: 1 1. Every State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory, and for the
right to fly its flag. Ships have the nationality of the State whose flag they are
entitled to fly. There must exist a genuine link between the State and the
ship.
3. Every State shall issue to ships to which it has granted the right to fly its flag
documents to that effect.
NB the genuine link requirement
There are several notorious open registry States, or flags of convenience
(e.g., Liberia, Panama) Concerns about this practice, abuse of concept of
nationality, etc
UN Convention on Conditions for the Registration of Ships (1986) States
parties must have a competent and adequate national maritime
administration which has to ensure that ships flying its flag comply with
international rules concerning the safety of ships and marine pollution (Art 1).
Under the UN Convention on Conditions for the Registration of Ships (1986),
States parties must include in their registry of shipping:
information identifying those owning and managing its ships and hence
accountable for them (Art 6);
ensure that its nationals participate to a required degree in either the
ownership or the manning of its ships (Arts 8 and 9); and

 ensure that those responsible for the management of its ships are able to
meet operational financial obligations (Art 10).
Nationality of ships M/V Saiga
Owned by a Cypriot company, managed by a Scottish company,
chartered to a Swiss company
Master and crew of the Saiga were all Ukrainian
Previously been registered as a Maltese vessel
Six month certificate of provisional registration as a St Vincent and
Grenadines registered ship expired on 12 September 1997; a permanent
certificate was not issued until 28 November 1997
The Saiga supplied gas oil to Senegalese and Greek fishing vessels in
the Guinean EEZ
It was arrested by the Guinean coast guard outside the Guinean EEZ
What was the nationality of the Saiga?
Saint Vincent and the Grenadines argued that it was SVG:
inscription Kingstown as the port of registry on the stern of the
vessel;
documents on board;
ships seal which contained the words Saiga Kingstown; and
the then current charterparty which recorded the flag of the vessel as
SVG.
Also conduct of SVG.
Was there a genuine link for the purposes of Article 91(1)? ITLOS:
the purpose of the requirement was to secure more effective
implementation of the duties of the flag State and not to establish

Jurisdiction on the high seas

UNCLOS, Art 92(1): Ships shall sail under the flag of one State only and,
save in exceptional cases expressly provided for in international treaties or in
this Convention, shall be subject to its exclusive jurisdiction on the high seas.
A ship may not change its flag during a voyage or while in a port of call, save
in the case of a real transfer of ownership or change of registry.
UNCLOS, Art 94(1): Every State shall effectively exercise its jurisdiction
and control in administrative, technical and social matters over ships flying
its flag.
UNCLOS, Arts 956: Warships and other government ships in non
commercial service have immunity
What if there is a collision on the high seas between two ships of different
nationality, and which concerns the criminal or disciplinary responsibility of
the master or any other member of the ships crew?
UNCLOS, Art 97: only the flag State, or State of which the master or crew are
nationals, has jurisdiction over such criminal or disciplinary proceedings. This
altered the traditional position as set out by the PCIJ in the SS Lotus Case
(1927)
but see UNCLOS, Art 110: 1. [A] warship which encounters on the high
seas a foreign ship [other than a ship entitled to immunity ] is not justified
in boarding it unless there is reasonable ground for suspecting that:

a) the ship is engaged in piracy;

b) the ship is engaged in the slave trade;
c) the ship is engaged in unauthorized broadcasting and the flag State
of the warship has jurisdiction under article 109;
o d) the ship is without nationality; or
o e) though flying a foreign flag or refusing to show its flag, the ship is, in
reality, of the same nationality as the warship.
Jurisdiction on the high seas Right of hot pursuit
UNCLOS, Art 111: 111(1): Right to pursue foreign vessel where coastal
State considers it has violated laws of coastal State. Pursuit must be
commenced when foreign vessel is in internal waters, archipelagic waters,
territorial sea, or contiguous zone, and may only be continued on the high
seas if the pursuit is not interrupted. If pursuit is commenced in the
contiguous zone, it can only be for breach of rights for the protection of which
the zone was established
111(2): right applies mutatis mutandis to EEZ and continental shelf
111(3): right ceases as soon as foreign ship enters territorial sea of another
State
111(4): must first give visual or auditory signal to the vessel to stop (which
it can see or hear)
111(5): right can only be exercised by naval vessel or military aircraft (or
other vessels/planes in public service)
Jurisdiction over international crimes on the high seas
Art 99 Every State shall take effective measures to prevent and punish the
transport of slaves
Art 100 All States shall cooperate to the fullest possible extent in the
repression of piracy on the high seas (piracy defined in Article 101)
Art 105 On the high seas, or in any other place outside the jurisdiction of
any State, every State may seize a pirate ship or aircraft, or a ship or aircraft
taken by piracy and under the control of pirates, and arrest the persons and
seize the property on board.
Art 108(1) All States shall cooperate in the suppression of illicit traffic in
narcotic drugs and psychotropic substances engaged in by ships on the high
seas contrary to international conventions.
Art 109(1) All States shall cooperate in the suppression of unauthorized
broadcasting from the high seas.
Deep seabed - UNCLOS, Art 1(1): the Area is the sea bed and ocean
floor and subsoil thereof beyond the limits of national jurisdiction.
Art 136 the Area and its resources are the common heritage of mankind
Art 137 No State shall claim or exercise sovereignty or sovereign rights
over any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof.
o
o
o

Delimitation of Maritime Boundaries

1. Equidistance and Special Circumstances

Delimitation of the territorial sea see UNCLOS, Art 15: Where the coasts
of two States are opposite or adjacent to each other, neither of the two
States is entitled, failing agreement between them to the contrary, to extend
its territorial sea beyond the median line every point of which is equidistant
from the nearest points on the baselines from which the breadth of the
territorial seas of each of the two States is measured. The above provision
does not apply, however, where it is necessary by reason of historic title or
other special circumstances to delimit the territorial seas of the two States in
a way which is at variance therewith.

Delimitation of the continental shelf and EEZ mixture of UNCLOS and

customary international law

Art 74 (re the EEZ): 1. The delimitation of the exclusive economic zone
between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable
solution.
2. If no agreement can be reached within a reasonable period of time, the
States concerned shall resort to the procedures provided for in Part XV.

Art 83 (re the continental shelf): 1. The delimitation of the continental shelf
between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable
solution.
2. If no agreement can be reached within a reasonable period of time, the
States concerned shall resort to the procedures provided for in Part XV.

North Sea Continental Shelf (1969)

Dispute between Germany and Denmark, and Germany and the
Netherlands
Continental Shelf Convention (1958), Art 6(2) provided that: In the
absence of agreement, and unless another boundary line is justified by
special circumstances, the boundary shall be determined by application
of the principle of equidistance from the nearest points of the baseline
from which the breadth of the territorial sea of each State is measured.
ICJ held that the delimitation was to be effected: in accordance with
equitable principles, and taking account of all the relevant
circumstances in such a way as to leave as much as possible to each
Party all those parts of the continental shelf that constitute a natural
prolongation of its land territory into and under the seas, without
encroachment on the natural prolongation of the land territory of each
other.
And negotiations on the delimitation should take into account the
following considerations:
1. the general configuration of the coasts of the Parties, as well as the
presence of any special or unusual features;
2. so far as known or readily ascertainable, the physical and geological
structure, and natural resources, eg. of the continental shelf areas
involved;
3. the element of a reasonable degree of proportionality, which a
delimitation carried out in accordance with equitable principles ought to
bring about between the extent of the continental shelf areas
appertaining to the coastal State and the length of its Coast measured

2. Equitable Principles and Relevant Circumstances

Achieving an equitable solution

UNCLOS, Art 74(1), and Art 83(1) adopt the idea of an equitable solution
when delimiting the EEZ / continental shelf: The delimitation of the
[exclusive economic zone/continental shelf] between States with opposite or
adjacent coasts shall be effected by agreement on the basis of international
law, as referred to in Article 38 of the Statute of the International Court of
Justice, in order to achieve an equitable solution.

What is an equitable solution? The formula avoids mentioning

equidistance, equitable principles, special or relevant circumstances and is
virtually devoid of content. (Malcolm Evans, The Law of the Sea, in Malcolm
Evans (ed), International Law (2nd ed, 2006) 623, 647

there has to be room for differences of opinion about the interpretation

of articles which, in a last minute endeavour at the Third United Nations

Conference on the Law of the Sea to get agreement on a very controversial

matter, were consciously designed to decide as little as possible. It is clear,
however, that both Articles [74(1) and 83(1)] envisage an equitable result.
(Eritrea/Yemen, Second Phase: Maritime Boundary, Award of 17 December
1999, para 116)

Others are equally skeptical: What is disturbing about the equitable

principles to produce equitable results formula is not that that there are
choices being made to achieve a result but that the result is nowhere
articulated other than the selfserving description of equitable. (Dame
Rosalyn Higgins, Problems and Process International Law and How we Use it
(1993) 227.) [T]he doctrine of the equitable result if allowed its head,
leads straight into pure judicial discretion and a decision based upon nothing
more than the courts subjective appreciation of what appears to be a fair
compromise of the claims of either side. (Sir Robert Jennings, Equity and
Equidistance Principles (1986) Annuare suisse de droit international 27, 31
Relation to Art 38(2) of the ICJ Statute? (This provision shall not prejudice
the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.)

How do international tribunals apply this rule?

Maritime Delimitation in the Area between Greenland and Jan Mayen [1993]
ICJ Rep 38, 66, para 64: Prima facie, a median line delimitation between
opposite coasts results in general in an equitable solution . It is of course
this prima facie equitable character which constitutes the reason why the
equidistance method, endorsed by Article 6 of the 1958 Convention, has
played an important part in the practice of States. The application of that
method to delimitations between opposite coasts produces, in most
geographical circumstances, an equitable result. There are however
situations and the present case is one such in which the relationship
between the length of the relevant coasts and the maritime areas generated
by them by application of the equidistance method, is so disproportionate
that it has been found necessary to take this circumstance into account in
order to ensure an equitable solution.

Eritrea/Yemen, Maritime Delimitation: Second Phase, Award of 17 December

1999, para 131: It is a generally accepted view, as is evidenced in both the
writings of commentators and in the jurisprudence, that between coasts that
are opposite to each other the median or equidistance line normally provides
an equitable boundary in accordance with the requirements of the
Convention, and in particular those of its Articles 74 and 83 which
respectively provide for the equitable delimitation of the EEZ and of the
continental shelf between States with opposite or adjacent coasts.

Land and Maritime Boundary between Cameroon and Nigeria [2002] ICJ Rep
303, 441, para 288: The Court has on various occasions made it clear what
the applicable criteria, principles and rules of delimitation are when a line
covering several zones of coincident jurisdiction is to be determined. They
are expressed in the socalled equitable principles/relevant circumstances
method. This method, which is very similar to the equidistance/special
circumstances method applicable in delimitation of the territorial sea,
involves first drawing an equidistance line, then considering whether there
are factors calling for the adjustment or shifting of that line in order to
achieve an equitable result.

What factors/relevant circumstances can be taken into account?

o

No limit to the factors/circumstances that can be taken into account:

North Sea Continental Shelf [1969] ICJ Rep 3, 50. They may include:

Configuration of the coast (North Sea Continental Shelf cases);

Presence of islands capable of generating claims to a

continental shelf or EEZ (small islands may be given less effect,
e.g., Scilly Isles in the AngloFrench Continental Shelf case);

Ensuring that areas appertaining to each State are not

disproportionate to the ratio between the lengths of their
relevant coasts adjoining the area;

Prior conduct of the parties;

Security considerations;

Geological factors are not considered relevant where the

distance between the coasts is less than 400nm;

Economic factors are generally not considered to be relevant.

Maritime Delimitation in the Black Sea (Romania v Ukraine)

Treaty between USSR and Romania of 1949 delimited a 12nm

territorial sea around Serpents Island

Treaty between Romania and Ukraine on the Romanian

Ukrainian State Border Rgime, Collaboration and Mutual
Assistance on Border Matters (2003) delimited land boundary
and the territorial sea

No agreement on the continental shelf or EEZ

ICJ considered:

The lengths of the respective coastlines of the two

States: Romanias was 248km, and the Ukraines was 705
km

The size of the maritime area of each State (although it

confirmed that the purpose of delimitation is not to
apportion equal shares of the area, nor indeed
proportional shares, and the the calculation of the
relevant area does not purport to be precise and is
approximate)

The ICJs methodology Maritime Delimitation in the Black Sea,

paras 115122:

1. First, the ICJ would draw an equidistance line;

2. Second, the ICJ would consider whether there are

factors calling for the adjustment or shifting of the
provisional equidistance line in order to achieve an
equitable result;

3. Third, the ICJ would verify that the line (a provisional

equidistance line which may or may not have been
adjusted by taking into account the relevant
circumstances) did not lead to an inequitable result by
reason of any marked disproportion between the ratio of
the respective coastal lengths, and the ratio between the
relevant maritime area of each State by reference to the
delimitation line.

Applying the ICJs methodology

Phase 1: The provisional equidistance line was

constructed from the most appropriate points on the
coasts, with particular attention being paid to protuberant
coastal points situated nearest area to be delimited

Phase 2: Lengths of coasts, enclosed nature of Black

Sea, presence of Serpents Island, conduct of the parties
(concessions, fishing, naval patrols), cutting off effect,
security considerations none relevant in this case

Phase 3: the continental shelf and exclusive economic

zone allocations are not to be assigned in proportion to

length of respective coastlines. Rather the Court will

check, ex post facto, on the equitableness of the
delimitation line it has constructed. no need for
alteration here (Length: Romania : Ukraine = 1:2.8; Area:
Romania : Ukraine: 1.2.1)

Dispute Settlement
1. Introduction to the Regime Established by Part XV

Dispute settlement under UNCLOS

Compulsory dispute settlement regime one of the major important
achievements of UNCLOS
UNCLOS, Art 309: No reservations or exceptions may be made to this
Convention unless expressly permitted by other articles of this Convention.
No reservations can be made to Part XV (which contains the dispute
settlement regime) UNCLOS, Art 279: States Parties shall settle any
dispute between them concerning the interpretation or application of this
Convention by peaceful means in accordance with Article 2, paragraph 3, of
the Charter of the United Nations and, to this end, shall seek a solution by the
means indicated in Article 33, paragraph 1, of the Charter.
UNCLOS, Art 280: States may agree to settle a dispute by peaceful means
of their own choice.
UNCLOS, Art 281(1): If the States Parties which are parties to a dispute
concerning the interpretation or application of this Convention have agreed
to seek settlement of the dispute by a peaceful means of their own choice,
the procedures provided for in this Part apply only where no settlement has
been reached by recourse to such means and the agreement between the
parties does not exclude any further procedure.

Southern Bluefin Tuna case

Convention for the Conservation of Southern Bluefin Tuna, Art 16: 1.
If any dispute arises between two or more of the Parties concerning the
interpretation or implementation of this Convention, those Parties shall
consult among themselves with a view to having the dispute resolved by
negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement or other peaceful means of their own choice.
2. Any dispute of this character not so resolved shall, with the consent
in each case of all parties to the dispute, be referred for settlement to
the International Court of Justice or to arbitration; but failure to reach
agreement on reference to the International Court of Justice or to
arbitration shall not absolve parties to the dispute from the
responsibility of continuing to seek to resolve it by any of the various
peaceful means referred to in paragraph 1 above.
Japan argued (first argument): The dispute between it and Australia
and New Zealand fell solely within the SBT Convention, and not within
the scope of UNCLOS. The Southern Bluefin Tuna Convention was a lex
specialis that subsumed, discharged and eclipsed any provisions of
UNCLOS.
Australia/NZ argued: The SBT Convention did not "cover" the relevant
obligations of the Parties under UNCLOS.
The SBT Convention was intended to be a means of implementing
UNCLOS obligations in respect of highly migratory species, not a means
of escaping those obligations.
Tribunal held: Agreed with Australia/NZ there is frequently a
parallelism of treaty obligations, such that disputes can arise under
more than one treaty. Here there was a dispute under the SBT
Convention, as well as under UNCLOS.
Japan argued (second argument): In any event, the conditions of Art
281 have not been met. Under Art 281, the procedures provided for in
Part XV of UNCLOS apply only:
o a) where no settlement has been reached by recourse to such
means, and
o b) the agreement between the parties does not exclude any
further procedure.
The Tribunal agreed with Japan: The first condition in Art 281 was
satisfied, but as for the second condition, the Tribunal found that Article
16 of the SBT Convention excluded any further procedure, including
UNCLOS dispute settlement: the absence of an express exclusion of
any procedure in Article 16 is not decisive.
Cf Sir Kenneth Keiths separate opinion: 13. [D]oes article 16
exclude the UNCLOS set of obligations? It does not say that it does.
But does it impliedly exclude the UNCLOS procedures?
17. The requirement is that the Parties have agreed to exclude any
further procedure for the settlement of the dispute concerning UNCLOS.
The French and Spanish texts have the same wording and structure.
They require opting out.
18. The word any in the final phrase of article 281(1) is also significant
since it requires the exclusion to be of any other procedure available
between the Parties such as those under the compulsory jurisdiction of
the International Court or other treaties for the peaceful settlement of
disputes.
18 (cont). As the Virginia Commentary (para 281.5) puts it, the
phrase envisages the possibility that the Parties, in their agreement to
resort to a particular procedure, may also specify that this procedure
shall be an exclusive one and that no other procedure (including those

2. The International Tribunal for the Law of the Sea (ITLOS) and
Annex VII Tribunals

Art 283: parties to a dispute have an obligation to exchange views, or

consult, with a view to settling the dispute.
Art 284: parties can agree to refer the dispute to conciliation.
Art 287: 1. When signing, ratifying or acceding to this Convention or at any
time thereafter, a State shall be free to choose, by means of a written
declaration, one or more of the following means for the settlement of
disputes concerning the interpretation or application of this Convention:
o a) the International Tribunal for the Law of the Sea established in
accordance with Annex VI;
o b) the International Court of Justice;
o c) an arbitral tribunal constituted in accordance with Annex VII;
o d) a special arbitral tribunal constituted in accordance with Annex VIII
for one or more of the categories of disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be affected by
the obligation of a State Party to accept the jurisdiction of the Seabed
Disputes Chamber of the International Tribunal for the Law of the Sea to the
extent and in the manner provided for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a declaration in
force, shall be deemed to have accepted arbitration in accordance with
Annex VII.
4. If the parties to a dispute have accepted the same procedure for the
settlement of the dispute, it may be submitted only to that procedure, unless
the parties otherwise agree.
5. If the parties to a dispute have not accepted the same procedure for the
settlement of the dispute, it may be submitted only to arbitration in
accordance with Annex VII, unless the parties otherwise agree.

3. Provisional Measures

Art 290(1): If a dispute has been duly submitted to a court or tribunal

which considers that prima facie it has jurisdiction under this Part or Part XI,
section 5, the court or tribunal may prescribe any provisional measures which
it considers appropriate under the circumstances to preserve the respective
rights of the parties to the dispute or to prevent serious harm to the marine
environment, pending the final decision.
Art 290(5): Pending the constitution of an arbitral tribunal to which a
dispute is being submitted under this section the International Tribunal for
the Law of the Sea may prescribe, modify or revoke provisional measures
in accordance with this article if it considers that prima facie the tribunal
which is to be constituted would have jurisdiction and that the urgency of the
situation so requires.

4. Prompt Release

Art 73(2): Arrested vessels and their crews shall be promptly released
upon the posting of reasonable bond or other security.

Art 292(1): Where the authorities of a State Party have detained a vessel
flying the flag of another State Party and it is alleged that the detaining State
has not complied with the provisions of this Convention for the prompt
release of the vessel or its crew upon the posting of a reasonable bond or
other financial security, the question of release from detention may be
submitted to any court or tribunal agreed upon by the parties or, failing such
agreement within 10 days from the time of detention, to a court or tribunal
accepted by the detaining State under article 287 or to the International
Tribunal for the Law of the Sea, unless the parties otherwise agree.

Art 292(3): The court or tribunal shall deal without delay with the
application for release and shall deal only with the question of release,
without prejudice to the merits of any case before the appropriate domestic
forum against the vessel, its owner or its crew.

See, e.g.:

M/V Saiga, Judgment of the ITLOS of 4 December 1997

Volga, Judgment of the ITLOS of 23 December 2002

Right of hot pursuit (Art 111) (revision)

o 1. The coastal State must have good reason to believe that the ship
has violated the laws and regulations of that State (Art 111(1));
o 2. The hot pursuit must be commenced when the foreign ship or one of
its boats is within the internal waters, the archipelagic waters, the
territorial sea or the contiguous zone of the pursuing State, or the
EEZ/continental shelf if the violation of the coastal States applicable
laws is suspected (Art 111(1) and (2));
o 3. The hot pursuit may only be continued outside the territorial sea or
the contiguous zone (or EEZ/continental shelf) if the pursuit has not
been interrupted (Art 111(1) and (2)).
o 4. The ship giving the order to stop does not need to be likewise within
the territorial sea or the contiguous zone or EEZ/continental shelf (Art
111(1) and (2)).
o 5. If the foreign ship is in the contiguous zone/EEZ/continental shelf,
hot pursuit may only be undertaken if there has been a violation of the
rights for the protection of which the relevant zone was established
(e.g., re the contiguous zone: to prevent infringements of its customs,
fiscal, immigration or sanitary laws and regulations within its territory
or territorial sea: Art 33) (Art 111(1) and (2));
o 6. The right of hot pursuit ceases as soon as the ship pursued enters
the territorial sea of its own State or of a third State (Art 111(3));

o
o
o

7. Hot pursuit may only be commenced after a visual or auditory signal

to stop has been given at a distance which enables it to be seen or
heard by the foreign ship (Art 111(4)); and
8. Hot pursuit may be exercised only by warships or military aircraft or
clearly marked government vessels (Art 111(5)).
See, e.g., M/V Saiga (No 2), Judgment of the ITLOS of 1 July 1999

Contemporary Issues
1. Piracy in the Gulf of Aden

Civil war in Somalia 1990

Due to lack of effective government, pirates have had free reign in attacking
shipping off the Somali coast

Attacks have been made in the territorial sea and beyond, up to 750 nm from
the coast

Targets include cruise liners, tankers, ships carrying international aid, fishing
and recreational vessels

From 20052007, attacks/attempted attacks off Somali coast exceeded

incidents for the Malacca Straits and the South China Sea combined

From 19922000, Somalia had no representation at the UN

Transitional Federal Government (TFG) in power since 2000, but lacks

control over most of Somalias territory

Pirates operate from command centres on the Somali coast

Pirates use mother ships from which they launch their smaller vessels to
attack ships in the EEZ and the high seas

After the attack, the ships retreat into the Somali territorial sea

In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181

hostages were taken g (with 760 still in captivity)

In 2005, there were 35 attacks; in 2010, there were 219 attacks

By 5 February 2011, there had already been 35 attacks in 2011

Capture of M/V Rozen (World Food Programme vessel) in February 2007;

vessel and crew of 12 held hostage for 40 days

M/V Victoria (WFP) also attacked in May 2007, one crew member was killed

Le Ponant (April 2008) attacked French military responded (with Somalias

consent)

Worldwide ship hijackings (Jan Sept 2009):

34 hijackings

559 hostages

294 total attacks

Gulf of Aden (Jan April 2009):

o

10 hijackings

38 attempts

26 interventions, 10 arrests

As at 5 February 2011 (off Somali coast):

o 7 hijackings
o 35 attempts
o 758 crew being held hostage
Average ransom: USD 5.8 million
Average length of hijacking 6070 days (but see Win Far 161, held for 10
months)
Legal Framework for Combating Piracy
UNCLOS Art 100 (duty to cooperate): All States shall cooperate to the
fullest possible extent in the repression of piracy on the high seas or in any
other place outside the jurisdiction of any State.
UNCLOS, Art 101 (definition): Piracy consists of any of the following acts:
o (a) any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;
o (b) any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
o (c) any act of inciting or of intentionally facilitating (a) or (b).
UNCLOS, Art 103 (pirate ship): A ship or aircraft is considered a pirate ship
or aircraft if it is intended by the persons in dominant control to be used for
the purpose of committing one of the acts referred to in Article 101.
UNCLOS, Art 105 (jurisdiction): On the high seas, or in any other place
outside the jurisdiction of any State, every State may seize a pirate ship or
aircraft, or a ship or aircraft taken by piracy and under the control of pirates,
and arrest the persons and seize the property on board. The courts of the

State which carried out the seizure may decide upon the penalties to be
imposed.
UNCLOS, Art 110 (right of approach): [A] warship which encounters on the
high seas a foreign ship, other than a ship entitled to complete immunity is
not justified in boarding it unless there is reasonable ground for suspecting
that: (a) the ship is engaged in piracy
Definition of piracy under UNCLOS (Art 101):
o An act of violence;
o On the high seas;
o For private ends;
o By a private vessel against another vessel;
o And includes inciting and intentionally facilitating piracy (including
cruising with intent).
o NB that there are limitations with this Definition
Where should pirates be prosecuted? Under UNCLOS and customary
international law, all States have universal jurisdiction to capture and
prosecute pirates but there is no obligation to do so
So States might not have adequate national laws
States might be reluctant to prosecute if there are no links
States might have impediments under their constitution or national law
from being involved in efforts to combat piracy
Legal Framework SUA Convention - Convention on the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation (1988)
o Art 3: it is an offence to seize or exercise control over a ship by force
or threat thereof
o Art 4: not an offence where the offence took place within one States
territorial sea, and the vessel was not scheduled to navigate beyond
that territorial sea
o Art 5: States parties have an obligation to legislate and criminalise
acts committed against Article 3 of SUA:
a) against or on board their flag vessels;
b) within their territory, including their territorial sea; and
c) by one of their nationals.
SUA Convention, Arts 8 and 10: If a vessel detains a vessel or suspect
under the SUA Convention, any port State which is a State party must accept
delivery of the suspect and extradite or prosecute if there are reasonable
grounds for suspecting they have committed an offence
Summary of UNCLOS and SUA
UNCLOS:
no obligation on States to create national offences
need two vessels, and piracy must be for private ends
no provision for States capturing pirates to transfer them to other States
automatic right to board on the high seas
SUA:
obligation on States to create national offences
obligation to accept delivery of pirates, and to extradite or prosecute
no automatic right to board on the high seas
haphazard implementation by different States

NB also
International Convention Against the Taking of Hostages (1979)
International Convention for the Suppression of the Financing of Terrorism
(1999)
Djibouti Code of Conduct on Repressing Piracy off Somalia (2009), which
promotes further cooperation between States bordering the Indian Ocean
IMO created an Internationally Recognised Transit Corridor (IRTC), and a
Maritime Security Patrol Area (MPSA) in the Gulf of Aden
And several UNSC Resolutions
UNSCRs
UNSCR 1816: authorised interdiction operations in Somalias territorial sea
(cf UNCLOS EEZ and high seas only), and use all necessary means to
repress acts of piracy and armed robbery at sea
Limitations:
o Only for six months
o It did not make the international law of piracy directly applicable in
Somali territorial waters
o No solution re jurisdiction to try pirates
UNSCR 1838:
o exhorted States whose naval vessels operate on the high seas off the
coast of Somalia to use on the high seas the necessary means, in
accordance with international law, as reflected in UNCLOS, for the
repression of acts of piracy
UNSCR 1846:
o Extended UNSCR 1816 for 12 months
o Called on States and regional organisations with the capacity to do so
to take part actively in the fight against piracy and armed robbery at
sea off the coast of Somalia
o Noted provisions of SUA Convention
UNSCR 1851: States and regional organisations cooperating in the fight
against piracy and armed robbery at sea off the coast of Somalia may
undertake all necessary measures that are appropriate in Somalia, for the
purpose of suppressing acts of piracy and armed robbery at sea, pursuant to
the request of the TFG
UNSCR 1897: renewed authorisations in UNSCR 1846 and UNSCR 1851
Current response
o 24 naval vessels patrolling the area
o Coalition Taskforce 150/151 Enduring Freedom, EU, NATO
o For prosecution of pirates: Prisoner transfer agreements have been
agreed (EU/UK/US/Denmark Kenya; EU/UK Seychelles; China TFG;
France Puntlan
o Trials have taken place in Kenya, US, Netherlands, France (but Kenya
no longer accepting transfers of pirates)
Challenges ahead
o Different naval forces have different mandates
o States who capture pirates reluctant to detain them
o Practical difficulties with prosecutions (cf UNSCR 1918 (2010))
o Legal difficulties e.g., application of ECHR? Refugee Convention?

o
o
o
o
o

Workload of States carrying out prosecutions (see Kenyas decision on

1 April 2010)
So catch and release policy reimplemented?
International Criminal Tribunal for pirates?
Best hope: restoration of effective government in Somalia?
See Letter from SG to President of UNSC dated 24 January 2011, and
appointment of Jack Lang as Special Adviser on Piracy; see also Jack
Langs Report (S/2011/30)

2. Whaling in the Southern Ocean

See Australias Application Instituting Proceedings against Japan before the

ICJ (31 May 2010)
There is a longrunning contest between whaling states and antiwhaling
states whether there should be (i) limited whaling, or (ii) no whaling
This has been a source of contention for the International Whaling
Commission (IWC)
IWCs moratorium on commercial whaling
International Convention on the Regulation of Whaling (1946) did not
originally contain such a ban, but the moratorium was adopted in 1982
Japan initially objected to the amendment (so was not bound by it), but it
withdrew its objection by the end of 1987
Japan launched a scientific whaling programme for minke whales
ICRW, Art VIII(1): Notwithstanding anything contained in this Convention
any Contracting Government may grant to any of its nationals a special
permit authorizing that national to kill, take and treat whales for purposes of
scientific research subject to such restrictions as to number and subject to
such other conditions as the Contracting Government thinks fit, and the
killing, taking, and treating of whales in accordance with the provisions of this
Article shall be exempt from the operation of this Convention. Each
Contracting Government shall report at once to the Commission all such
authorizations which it has granted. Each Contracting Government may at
any time revoke any such special permit which it has granted.
Japan is not the only country with active whaling programmes
Iceland and Norway continue to engage in commercial whaling
Another exception is aboriginal subsistence whaling, which is permitted
(Denmark, Russian Federation, St Vincent and the Grenadines, United States)
Australia has long criticised Japan for increasing annual takes that amount to
over 1,000 minke whales
Election promise of Rudd Government (Federal Election in 2007)
Rudd Government continued to pursue diplomacy, but when this failed, ICJ
proceedings launched in May 2010
Australia argues that JARPA II is breach of Japans obligations under ICRW,
CITES, and CBD
JARPA I commenced in 198788. From 19872005, over 6,800 minke whales
were taken

JARPA II (2005 ) more than doubles the take of minke whales, to around 850
per year (cf the 20102011 season, which was abandoned early, with less
than 100 whales), and also includes humpback whales and fin whales
See Australias Application Instituting Proceedings
Obligations allegedly breached by Japan:
International Convention on the Regulation of Whaling:
o (i) failure to observe in good faith the moratorium on commercial
whaling;
o (ii) failure to observe prohibition on whaling for humpback and fin
whales in Southern Ocean Whale Sanctuary
o Japans catch cannot be justified as scientific whaling under Art
VIII(1) due to: (i) scale of programme; (ii) lack of relevance for
conservation of stocks; (iii) risks presented to targeted species and
stocks
o This is essentially an abuse of rights argument
Convention on International Trade in Endangered Species:
o The taking of humpback whales under JARPA II violates Arts II and
III(5) of CITES
o Under Art II(1), trade in Appendix I species must be subject to
particularly strict regulation in order not to endanger further their
survival and must only be authorized in exceptional circumstances.
o Under Art III(5), Appendix I species can only be introduced into a
State subject to a number of strict conditions certified by relevant state
authorities
Convention on Biological Diversity:
o Violation of Arts 3, 5, and 10(b)
o Art 3 requires States to ensure that activities under their jurisdiction
and control do not cause harm to other states or to areas beyond
national jurisdiction.
o Art 5 requires States, as far as possible and as appropriate, to
cooperate in the conservation and sustainable use of biological
diversity beyond national jurisdiction.
o Art 10(b) requires States, as far as possible and as appropriate, to
adopt measures that avoid or minimise adverse impacts on biological
diversity.

PART 1: HISTORY OF LAW OF THE SEA AND UNCLOS

1. Historical Background to the Law of the Sea

There are two competing notions in relation to the law of the sea:

freedom of the seas

dominion over the seas

2. World Decides to create UNCLOS I then II then III!

Customary Law of the Sea
The content of the customary law of the sea is somewhat nebulous - perhaps
including:
to have a territorial sea- also ways a big issue for states- how much do
they own?
to determine its breadth- now days 12 nautical miles
to protect national fisheries-protection of their food and trade
to have freedom on the high seas- the high seas are getting smaller
and smaller today, because of the other areas, EEZ etc
Some states say that all water should be territorialised

Whatever the actual content, it is generally agreed that this customary law
was codified in the conventions which emerged from the 1958 and 1960
Law of the Sea (UNCLOS I and II) meetings.
AND that UNCLOS III represents the customary law today

UNCLOS I AND II 1958/60

Convention on the Territorial Sea and the Contiguous Zone (came into force
10-9-64)
Convention on the High Seas ( 30-9-62)
Convention on the Continental Shelf ( 10-6-64)
Convention on Fishing and Conservation of the Living Resources of the High
Seas ( 20-3-66)
However, few ratifications (average 40) mean the 1958 Conventions have
doubtful international validity
they did not fix a maximum limit to which a countrys territorial sea could be
extended
they did not describe a definite boundary for the continental shelf

UNCLOS III BEGINS!

UNCLOS III begin because of concern over the possible exploitation of the
resources of the sea-bed and the ocean floor on a competitive basis

it was believed by some that this would lead to neo-colonialism, diplomatic

conflict and war
the resources of the sea-bed and the ocean floor were described by the UN as
the legacy of all human beings
Moratorium on exploitation of resources of the sea-bed and the ocean floor
(UN Resolution 2574D (XXIV)). The smaller states could not have the
advantage of the common sea bed, the big states could mine and reap the
benefits of the sea bed and this wasnt just.
This hasnt become a large issue because there has not been enough
advancement of technology yet, however at the time it was considered
important
Declaration of Principles governing sea-bed and ocean floor (UN Resolution
2749(XXV)): this made the deep sea bed the common heritage of
humankind the resources of these areas will be shared by all (this is a very
60s and 70s approach)
Inaugurated in December 1973, following UN Resolution 3067 (XXVIII) with
the first session being held in Caracas, Venezuela, from June 20, 1974.
Purpose: to establish an equitable international regime covering a wide
range of LOS issues including: territorial sea, contiguous zone, continental
shelf, exclusive economic zone, high seas, fisheries, conservation of
resources, etc.
Covers almost everything dealing with the law of the sea in one convention, it
is useful on that basis. Whether it is equitable is open for interpretation
Opened for signature on 10 December 1982 at Montego Bay, Jamaica
119 countries signed immediately (a record). Now, 157 countries have
signed.
Ratifications required for entry into force: 60 60th ratification: Guyana, on 1611-93.
Therefore, entered into force on 16-11-94.
Currently, 149 ratifications

Problems with the new UNCLOS- THE AMERICANS WHINGE!

The USA voted against UNCLOS at the final session of negotiations

Regan was a Republican and he wanted no part of part Xi of UNCLOS
The US was unhappy with Part XI, on the deep-sea mining question
(States can go and exploit the sea-bed but all profits must be shared)
US said that we were the ones with the technology and we are the ones
who will go out and reap the benefits, they will not share the profits
BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard
Mineral Resources Act 1980(USA)
Other countries (UK, former USSR) followed suit at the time the UK and
USSR were the super powers and they were not keen to share with the
other countries and if America could, so could they (very childish)
Then, an interim regime between France, Germany, UK, and the US was
formed - the Agreement Concerning Interim Arrangements Relating to
Polymetallic Nodules of the Deep Sea Bed, Washington,
2-9-82.

A polymetallic nodule is a parts of the seabed are covered with big blobs,
these are called polymetallic nodules filled with certain metals of all sorts
of kinds. The question becomes how do we get it? As yet there is no way
to mine the deep sea bed
However, with the amount of ratifications UNCLOS three became a
workable treaty on the law of the sea

Art 309 forbids reservations or exceptions, so states like the US dont

sign the whole lot because of an issue with one part

Art 312 no amendments for 10 years after UNCLOS enters into force
(which would be 2004 but then there was the amendment to Part XI in breach of
this rule)

Art 155 review of Part XI not to take place until 15 years after first
commercial production from sea bed <> not even close to this, but Part XI has
already been amended
Australias position on UNCLOS

Australia
Australia
Australia
Australia

signed on 10-12-82
ratified on 5 October 1994
signed the Part XI agreement on 28 July 1994
ratified the Part XI Agreement on 5 October 1994
Part 2: ZONES

Zones and the Area

Territorial
sea
3nm

12nm

200nm

24nm

EEZ

High seas

Baseline

Continental shelf
The Area
Zones
MARITIME ZONES- a list of all the zones recognised by UNCLOS III
Territorial Sea
Contiguous Zone- next door to the territorial sea- 12-24 NM away from
land again it is not territory
Exclusive Economic Zone (EEZ) 24-200 is called the EEZ and this gives
you certain rights over the water, however, it is not territory
Continental shelf
Deep seabed (the Area)
Archipelagic waters difficulties in having a lot of different islands
High seas the water above the area

Territorial sea
Article 2(1):
The sovereignty of a coastal State extends, beyond its land territory and
internal waters ...to an adjacent belt of sea, described as the territorial sea

Article 3:
Every State has the right to establish the breadth of its territorial sea up to a
limit not exceeding 12 nautical miles...
Australias territorial sea

The Seas and Submerged Lands Act 1973(Cth) was amended in 1990 to
enlarge Australias territorial sea to 12 nautical miles from the baseline
This took effect on 20 November 1990
This is subject, under UNCLOS, to rights of innocent passage (see Articles
17-19).
Australia's complication is that it has Qld, NSW etc, each constituent part sets
to control the first three NM beyond the baseline, the rest of it is Australian
territory, this jurisdiction is shared, however, in an international sense this
means nothing. Australias territorial sea is only 12 NM. Over the low water
mark is Australia, in all of Australia no matter what state.
there is a right to innocent passage allowed through the territorial sea under
Article 17 UNCLOS.
Such passage is defined in Article 19 and must not be prejudicial to the
peace, good order or security of the coastal State as represented by any of
the activities listed in Article 19(2) The Corfu Channel case (United Kingdom v
Albania)

Contiguous zone
Article 33(2):
The contiguous zone may not extend beyond 24 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Notes:
In this zone, a State may exercise control over customs, fiscal matters,
immigration, and sanitary laws.
Important today because of terrorism, this is important over who enters etc
The fiscal matters includes tax and is normally aimed at drug smugglers
This contiguous zone is also important for controlling the spread of bird flu
Australias contiguous zone

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to refer
to a new contiguous zone (ss3(1), 13A-C)
The definition inserted into the Act is that of Article 33 of UNCLOS

Exclusive Economic Zone or EEZ

Article 57
The exclusive economic zone shall not extend beyond 200 nautical miles
from the baselines...
Article 56 Rights in EEZ
states that in this zone a State has the right to:
o explore and exploit natural resources (living or non-living)
o conserve and manage these resources
o establish structures (pipe lines national parks)
o conduct marine scientific research
o protect the marine environment
o This area you have sovereign rights over, they are not in the terms
of owning the land but you can still exercise these rights
Australias EEZ

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to
declare Australias EEZ (ss3(1), 10B)
The definition inserted into the Act is that in Article 57 of UNCLOS
All rights over the EEZ are vested in the Crown in right of the Commonwealth
(s10A)
This claim does not affect the AFZ dealt with in the Fisheries Management
Act 1991 (Cth). The AFZ is now defined consistently with the EEZ (ie it is 200
nm in width).

Continental shelf
Article 76(1):
...comprises the sea-bed and subsoil of the submarine areas that extend
beyond its territorial sea...to the outer edge or the continental margin, or to a
distance of 200 nautical miles from the baselines...
Article 76(5):
The...outer limits of the continental shelf...shall not exceed 350 nautical
miles from the baselines... or shall not exceed 100 nautical miles from the
2500 metre isobath...

A state may have claim for some rights to the area up to there continental
shelf. The rights would be akin to those offered for the EEZ

Australias continental shelf

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to
reflect the UNCLOS definition of the continental shelf
This claim exceeds our continental shelf claim made under the previous
(1958) Convention

The full claim will be made to the Commission on the Limits of the
Continental Shelf in 2004
This Commission considers a claim over the area and decides on its
validity
The claim is for at least 200 nm, and extending to 350nm where possible,
but still has not been finalised as yet. There is a time limit of 10 years for
finalising continental shelf claims (Art 76 (8) and Annex II)

High seas

Traditionally, all areas beyond territorial waters were high seas

UNCLOS has altered that principle by extending territorial claims and
sovereign rights over the sea
However, the high seas remain free under Art 87 all states have freedom of
navigation, overflight, fishing, scientific research (subject to the rest of
UNCLOS) plus the freedom to lay submarine cables and pipelines and to
construct artificial islands and other installations
No state can validly claim sovereignty over any part of the high seas Art 89

Under the high seas

Under the high seas is the AREA, which is the deep sea bed as referred to
in Part XI of UNCLOS.
This is a common heritage area, in the same way as the moon and outer
space are (by Treaty), and in the same way that many would like
Antarctica to be.

Zones around Australia

They give to Australia greatly increased jurisdiction - about 1.5 times our land
area.
The areas in pink have very important economic and strategic value.
We have been able to lay claim to all the zones around our Antarctic
territory,

Zones and neighbours

We are too far from NZ, but our zones overlap to some extent with Indonesia
and PNG.
We have been able to settle any problems so far by separate treaty - The
Torres Strait Treaty and the Australia-Indonesia Delimitation Treaty (plus the
Timor Sea Treaty of 2002 with East Timor).
Important element of UNCLOS is the ability to go out and co-operate
and coordinate with your neighbours the extent of your territory
Separate treaty with PNG and New Zealand, and East Timor will get a better
deal eventually
Also a separate treaty with Indonesia and Australia (there is overlapping
island zones with Indonesia.
UNCLOS supports arrangements with other countries
Maritime Delimitation Issues

UNCLOS deals with this topic in Articles 15, 74 and 83. These Articles are
regarded as merely declaratory of customary international law.
The main concept to be considered here is that of equidistance. Limits
should be drawn at points which are equidistant from each partys
baselines.
However, this may not always give the most equitable solution due to
geographical peculiarities. Thus, there are sometimes special circumstances
to be taken into account in relations to equidistance.

What is involved in special circumstances? Included are:

Geography, including proximity, natural prolongation and proportionality;

Geomorphology and geology, including the existence of trenches or troughs

on the seabed which may suggest natural boundaries;

Prior conduct of the parties, including the de facto acceptance of an existing

boundary, or activities in the area under dispute;

Interests of third parties, including third States claims over the area in
question;

Economic interests of third parties, including the relative wealth of the

parties, existence of mineral deposits under the seabed, and the fishing
rights of the parties;

Other factors, including navigation rights, security, strategic and related

interests.
Part 3- PART XI- The deep sea bed

Introduction:

Part XI deals with the regime for the exploration and

exploitation of the deep sea bed outside any States 200 nm zone.

This is called The Area - which lies under the high seas, and
is regarded as the Common Heritage of Humankind.

Developed nations were unhappy with the original Part XI,

which they felt unduly favoured developing nations.

As is discussed in the History section, this was the point of

greatest contention when UNCLOS III was opened for ratification

The agreement has tried to accommodate the developing

nations
Zones and the Area:
Express limitations to changing UNCLOS
Article 309 of UNCLOS forbids reservations or exceptions (have to sign up
to the whole convention)
Article 312 prevents amendments until 10 years after UNCLOS enters into
force ie until after 16/11/2004

 Article 155 states that review of Part XI cannot take place until 15 years
after first commercial production from the seabed
Changes to Part XI

Despite the previously mentioned Articles, there was

renegotiation of Part XI under the auspices of the secretary-general of the
UN from 1990.

This resulted in the Agreement relating to the Implementation

of Part XI of the United Nations Convention on the Law of the Sea.

However, the issue has become is this truly binding?

Article 30(4) of the Vienna Convention on the Law of Treaties

provides that States can only be bound by a later treaty, which supersedes
a previous one if they have expressly agreed to the later treaty

Part XI Agreement - adopted on 28 July 1994 pursuant to UN

Resolution 48/263

Ended up with an agreement that amends the provisions of Part

XI of UNCLOS

However this goes against the limitations discussed above

This is all now governed by The Area is the International Seabed

Authority (ISA)
Substance of the Agreement

These are the substantive alterations for Part XI deal with:

costs to State parties of the administrative machinery involved (section 1)

abolition of The Enterprise which was to have been the operational arm of the
ISA (section 2)

reorganisation of the deliberative and executive parts of the ISA (section 3)

replacement of the original Article 155 relating to the Review Committee

changes to Part XI can now be considered at any time by the ISA (section 4)

abolition of the compulsory transfer of sea-bed mining technology to The

Enterprise (section 5)

alignment of the ISAs operations with the free trade principles under the
WTO, including relaxed sub-contracting provisions (sections 6-8)

establishment of a Finance Committee to allow a greater say to developed

nations over funding decisions (section 9).
Part 4: FISHING!!

Fisheries are a major issue, this part will deal with:

1. Fishing with the EEZ
2. Fishing on the High Seas
3. Whaling

The relevant parts of UNCLOS are Pts V and VII, s 2. Part V deals inter alia with
fishing in the EEZ, while Pt VII, s 2 deals with fishing on the high seas.
Fishing with the EEZ
The Exclusive Economic Zone and Fisheries

The 200 nm limit to the EEZ is set in Article 57 of UNCLOS. Article 56(1)(a)
confers on the coastal state sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources of the EEZ. This
includes the fishes

Article 61 -the conservation of the living resources of the EEZ

The coastal state must determine the allowable catch of fish in its EEZ,
taking into account the best scientific evidence available to it (art. 61(2)).
Coastal states should cooperate regionally and/or globally to avoid overexploitation of fish.
Article 61(3)
Species should be maintained at a level which will yield the maximum
sustainable catch, but this is to be qualified by the economic needs of
coastal fishing communities and the special requirements of developing
states
The coastal state is also required to promote the objective of optimum
utilization of the living resources in the EEZ. This would seem to be incompatible
with Article 61, but the proviso is that this is to be done without prejudice to
article 61' - art. 62(1).
Article 62(2) access to other fisheries
allows the coastal state to permit other states access to its fishery if it is
unable to exploit its total resources itself.
Article 62(4).
The law applicable to the entry of foreign vessels to an EEZ is the national
law of the coastal state
Article 63- straddling stocks (those which, swim past the EEZ)
States are to cooperate on the conservation of such species in the high
seas.
See further on for more on straddling fish stocks
Article 64- Highly migratory species
cooperation between or among states is called for in relation to the
conservation of these species in both the EEZ and the high seas.
Some of these species (eg Southern Bluefin Tuna, other types of tuna, Marlin,
Sailfish and Swordfish)

Article 69- Anadromous species (those which spawn landward and proceed
seaward) and catadromous species (those which spawn seaward and proceed
landward),
Are only to be fished in the EEZ. If the species in question proceeds through
more than one EEZ, its harvesting should be the subject of agreement.
Article 70- Geographically disadvantaged states
Geographically disadvantaged States shall have the right to participate, on
an equitable basis, in the exploitation of an appropriate part of the surplus of
the living resources of the exclusive economic zones of coastal States of the
same subregion or region, taking into account the relevant economic and
geographical circumstances of all the States
Article 77(4)-species are regarded as part of the resources of the continental
shelf.
The natural resources referred to in this Part consist of the mineral and other
non-living resources of the sea-bed and subsoil together with living
organisms belonging to sedentary species, that is to say, organisms which, at
the harvestable stage, either are immobile on or under the sea-bed or are
unable to move except in constant physical contact with the sea-bed or the
subsoil.
Protection of your EEZ Art 73 states a State can take measures such as
boarding, inspection, arrest and judicial proceedings, as may be necessary to
ensure compliance with state regulations within EEZ.

Any use of force would have to, of course, be in accordance with lawful
uses of force under the UN Charter
The most important in all of these is that they are meant for people to
cooperate over their fisheries the main goals are
1. Cooperation of all states over the natural resources of the sea
2. Cooperation and enrichment from the sea to the effect that it is
not depleted
2. Lets go fishing on the High Seas!
High Seas Fisheries

the freedom to fish is preserved in UNCLOS

Article 87(1)(e)
The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia, both
for coastal and land-locked States
(e) freedom of fishing, subject to the conditions laid down in section 2.

The requirements are again to cooperate in order to conserve the living

resources of the area.
Vessels on the high seas are subject to the jurisdiction of their flag state
If the flag-state has a well-developed system of laws and can enforce these
effectively,
See the Agreement to promote compliance with international conservation
and management measures by fishing vessels on the high seas which forms
part of the International Code of Conduct for Responsible Fishing an organ of
the UN.
Australia has recently enacted this agreement in the Fisheries Legislation
Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth),
but this does not solve the international issues relating to irresponsible flag
states, many of which operate in the Australian Fishing Zone (AFZ).

The Southern Blue Fin Tuna Case

Facts:

The tribunal considered whether the dispute arose under the United Nations
Convention on the Law of the Sea (UNCLOS) or the regional Convention for
the Conservation of Southern Bluefin Tuna (CCSBT).

It found that the dispute arose under UNCLOS, while being based in the
CCSBT.1

The Tribunal characterised it as one dispute under two Conventions, not two
separate disputes.

The central feature of the dispute concerned the parties inability to agree on
the revised total allowable catch of tuna & Japans involvement in unilateral
experimental fishing programmes.

These concerns were clearly within the CCSBT Convention2 although UNCLOS
still had jurisdiction in principle.3

However, the tribunal considered it artificial to separate out the UNCLOS

elements from the CCSBT elements.4
Found:

Under Article 16(2) parties are required to find a peaceful resolution after
failing to reach agreement on having a dispute resolved externally.5

At the time of the judgment, the tribunal found that every possible avenue
had not been exhausted under the CCSBT and UNCLOS
Straddling Fish Stocks and Highly Migratory Fish Stocks

UNCLOS requires that straddling stocks be the subject of conservation efforts

in the high seas only,

Jacqueline Peel, A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS
in the Aftermath of the Southern Bluefin Tuna Arbitration (2002) 3 Melbourne Journal of International Law 53, 57.
2
Caroline E Foster, The Real Dispute in the Southern Bluefin Tuna Case: a Scientific Dispute? (2001) 16 The International
Journal of Marine and Coastal Law 571, 591.
3
Caroline E Foster, above n19, 581.
4
Caroline E Foster, above n19, 591; Jacqueline Peel, above n17, 59.
5
Jacqueline Peel, above n18, 59.

while highly migratory species are to be dealt with in both the EEZ and the
high seas
Fish stocks which will go outside their own EEZ are open to over-exploitation,
particularly by the high- capital long-distance fishing fleets of the world.
They may be well managed in the EEZ of the coastal state and then
decimated once outside it.
The UN decided that further measures were needed in order to overcome this
problem. Hence the United Nations Conference on Straddling Fish Stocks
and Highly Migratory Fish Stocks was convened.
Outcome was the:

Agreement for the Implementation of the Provisions of the United Nations Law of
the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks

The Agreement is concerned with the effective implementation of Articles 6364 and 116-119 of UNCLOS.
Article 5 of the agreement requires the best scientific evidence principle to be
applied to the conservation of straddling stocks and highly migratory species.
Where scientific evidence is lacking or uncertain article 6 requires the
application of the precautionary principle.
States must find compatible rules for conservation. This is believed to be
stronger than just requiring cooperation-see article 7.
Article 8 sets out the requirements for cooperation between and among
states - if there is already a regional or subregional arrangement, current
non-members fishing the relevant waters should join. This may appear to be
a further erosion of the freedom of the high seas, although that freedom is
specifically preserved in article 4 of the Agreement.
If there is a dispute, the compulsory settlement procedures of UNCLOS (in
Part XV) are to be applied.

3. Whales are delicious

The main body is the Scientific Committee of the IWC

The Scientific Committee comprises up to 200 of the world's leading whale
biologists. Many are nominated by member governments.
The Committee meets in the two weeks immediately before the main
Commission meeting and it may also hold special meetings during the year to
consider particular subjects.
The Scientific Committee's report provides an annual review of the major
issues affecting cetacean conservation.

The subject matter considered by the Committee:

encourage, recommend, or, if necessary, organise studies and investigations

relating to whales and whaling;
collect and analyse statistical information concerning the current condition
and trend of the whale stocks and the effects of whaling activities thereon;

study, appraise and disseminate information concerning methods of

maintaining and increasing the populations of whale stocks.

Roles: It monitors whale counts and advises states on the best way to conserve
whales (there is a detailed discussion of their roles and inadequacies below)
Current Issues with Whaling
Japans plan to increase whale cull
Japans plans to expand its scientific whaling programme
Australia, with New Zealand backing, put forward a resolution that urged
Japan to withdraw its proposal for increasing its whale cull or This was passed
by a majority of 30 to 27 votes with one abstention by the Solomon Islands.
Voting also upheld a continuation of the whaling moratorium and a voting
down of the introduction of regional management schemes that would
threaten the moratorium.
However, Japan stated that it would go ahead with the programme at the end
of this year despite the resolution and general consensus against the hunting
of whales.
Can the IWC still effectively deal with Whaling Issues?
The IWC is not effective as a conservation organisation in terms of their
treaty The International Convention for the Regulation of Whaling (ICRW).
The original function of the IWC was to manage the conservation of whales to
overcome the need to return to large-scale commercial whaling.
The Articles of the Convention focus on the sustainable harvest of whales.
However, many States believe the treatys purpose is to achieve a total ban
on commercial hunting and reject this focus.
In trying to regulate whaling the IWC has not been successful,
The IWC is ignored by States when their political preferences are not soothed.
There is not even an obligation to take part in an international organization
that deals with whaling.
The IWC focuses on a horizontal theory of international law, where States are
supposed to comply in good faith to the ICW because of their own selfinterests.
However, the ICRW is continually violated by members and this goes
unchallenged.
Japan has lodged objections to the moratorium, rendering the IWC powerless
to enforce it against Japan pursuant to the opt-out provision of the
Convention.
Problems with enforcement
The resolutions passed at the Commission each year are non-binding on
States. There are no dispute settlement procedures or enforcement
programmes within the IWC.6
The Conventions only form of enforcement is self-policing.
As a result, there are no obligations placed on States and the Commission
has no power to challenge States actions.
6

Problems with monitoring numbers of whales

There exists no mechanism to monitor activities in the vast expanses of
oceans.
The IWC has no way of monitoring the activities of whaling ships, so illegal
whaling occurs without its specific knowledge.
Also, the reporting mechanism for the numbers of whales captured is up to
each State to collect individually.
The legal solutions available for opposing Japan include:
1. legal action in domestic courts
2. legal action in international courts
3. Trade sanctions
4. reform the ICW and ICRW
ITLOS The International Tribunal for the Law of the Sea
Part XV UNCLOS

requires state parties to settle any dispute arising under the convention in a
peaceful manner in accordance with Art 2(3) and Art 33(1) of the UN Charter
where no settlement reached, parties can submit the dispute to a court or
tribunal with jurisdiction under Art 286
Art 287 defines the courts and tribunals

ITLOS Annex VI to UNCLOS is its statute

ICJ

Arbitral tribunal constituted in accordance with Annex VII of

UNCLOS

Topic 4: International Environmental Law

Introduction and Definitions

What is international environmental law? Is there such a distinct body

of law?
o Brownlie: Legal Aspects of the Protection of the Environment
o Birnie and Boyle: International Law and the Environment
o Sands: Principles of International Environmental Law
o Cf Redgwell: International Environmental Law; Triggs:
International Environmental Law
Traditional legal order of the environment has been laissezfaire limitations
on the actions of states are not to be presumed lightly
Any limitations that do exist have emerged on an ad hoc basis
So need a body of law more specifically aimed at protecting the environment

International environmental law should be understood as including both the

generally applicable rules of international law, and also the new and
developing specific rules
See also law of the sea, human rights law, international economic law
What is the environment?
o something that environs?
o the whole complex of climatic, edaphic and biotic factors that act
upon an organism or an ecological community and ultimately
determine its form or survival; the aggregate of social or cultural
conditions that influence the life of an individual or a community:
Websters New World Dictionary (1988);
o surroundings, surrounding objects, region or circumstances:
Concise Oxford Dictionary (1972)
o Both aspects of man's environment, the natural and the manmade,
are essential to his wellbeing and to the enjoyment of basic human
rights the right to life itself. (Stockholm Declaration, PP1)
o the environment is where we all live (Brundtland Report (1987))
o Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in
harmony with nature. (Rio Declaration, Principle 1)
o the combination of elements whose complex interrelationships make
up the settings, the surroundings and the conditions of life of the
individual and of society as they are and as they are felt. (Council
Regulation (EEC) No 172/84 of 28 June 1984 on Action by the
Community Relating to the Environment)
o changes in the physical environment or biota, resulting from climate
change, which have significant deleterious effects on the composition,
resilience and productivity of natural and managed ecosystems, or on
the operation of natural and managed ecosystems or on the operation
of socialeconomic systems or human health and welfare. (UNFCCC,
Art 1(1) adverse effects on the environment).
Areas covered by international environmental regulation:
o Conservation and sustainable use of natural resources and
biodiversity;
o Conservation of endangered and migratory species;
o Prevention of deforestation and desertification;
o Preservation of Antarctica and areas of outstanding natural heritage;
o Protection of oceans, international watercourses, the atmosphere,
climate, and ozone layer from the effects of pollution; and
o Safeguarding human health and the quality of life.
The environment as a problem of international concern
The role of international law in environmental protection:
o mechanisms and procedures for setting rules and standards, settling
disputes, and supervising implementation and compliance;
o flexible rulemaking procedure that allows for easy and regular
amendment in the light of technological advances in scientific and
other knowledge;
o compensation for environmental damage;
o individuals benefit from environmental rights; and

harmonisation of national laws.

Development of International Environmental Law

1. Reactive Responses to Resource Use and Exploitation

The first period began in the 19th century and lasted until 1945, and is
characterised by reactive responses to resource use and exploitation

The second period began with the creation of the UN until the convening of
the Stockholm Conference on the Human Environment in 1972, and this
period is characterised by a sectoral and fragmented approach

The third period runs from 1972 to UNCED in 1992, which saw the adoption of
a holistic approach to environmental protection and economic development

The fourth period runs from UNCED to the present day, and this can be
characterised as a period of integration

Tendencies and trends

Development of principles and rules has been reactive rather than

anticipatory

Scientific developments have played a significant role

Complex interplay between governments, NGOs, international organizations

Recently these issues are the subject of international adjudication

First period 19th century until 1945

Many bilateral treaties for the conservation of wildlife, including for the
protection of fisheries, birds, and seals

Treaty practice was ad hoc, sporadic and limited in scope

Convention for the Regulation of Whaling adopted in 1931

Convention for the Protection of Birds useful to Agriculture in 1902

US Canada Treaty to Protect Migratory Species of Birds 1916

US Canada Water Boundaries Treaty 1909

Pacific Fur Seals Arbitration (US Great Britain, 1909) Led to Convention
between the United States, the United Kingdom of Great Britain and Northern
Ireland, and Russia for the Preservation and Protection of Fur Seals (1911)

Trail Smelter Arbitration (US Canada, 1941) no State has the right to use
or permit the use of its territory in such a manner as to cause injury by fumes
in or to the territory of another or the properties or persons therein, when the
case is of serious consequence and the injury is established by clear and
convincing evidence. (3 RIAA 1938, 1965 (1941))

Second period from the creation of the UN to Stockholm (1945

1972)

International organisations at the regional and global level began to address

environmental issues, and the range of environmental concerns addressed by
international regulatory activity broadened to include a focus on the causes
of pollution resulting from certain ultrahazardous activities.

UN Specialised Agencies
o
o

International Civil Aviation Organization (ICAO)

International Fund for Agricultural Development (IFAD)

Food and Agriculture Organization of the United Nations (FAO)

International Labour Organization (ILO)

International Maritime Organization (IMO)

International Monetary Fund (IMF)

International Telecommunication Union (ITU)

United Nations Educational, Scientific and Cultural Organization

(UNESCO)

United Nations Industrial Development Organization (UNIDO)

Universal Postal Union (UPU)

World Bank Group

World Health Organization (WHO)

World Intellectual Property Organization (WIPO)

World Meteorological Organization (WMO)

World Tourism Organization (UNWTO)

UNCCUR 1947

International Convention for the Prevention of Pollution of the Sea by Oil

1954
Conservation of the Living Resources of the Sea 1958
Antarctic Treaty 1959
Partial Test Ban Treaty 1963
Ramsar Treaty 1971
Corfu Channel [1949] ICJ Rep 4, 2223 Albania was under an obligation not
to allow knowingly its territory to be used for acts contrary to the rights of
other States.
The Court draws the conclusion that the laying of the minefield which
caused the explosions could not have been accomplished without the
knowledge of the Albanian Government.
Lots of new international rules on environmental protection
But no international organisation with policy lead for environmental issues, or
coordinating responsibility among existing organizations
The elephant in the room during this period the tension between (i) the
imperative of economic development; and (ii) the increased awareness of the
need for environmental protection

2. Stockholm Conference on the Human Environment 1972 Sectoral

and Fragmented Approach

Stockholm Conference (1972)

Nonbinding instruments:

A resolution on institutional and financial arrangements;

A Declaration containing 26 Principles, ; and

An Action Plan containing 109 recommendations.

Declaration the most important instrument:

o

Principle 1: Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a quality that permits
a life of dignity and wellbeing, and he bears a solemn responsibility to
protect and improve the environment for present and future
generations. In this respect, policies promoting or perpetuating
apartheid, racial segregation, discrimination, colonial and other forms
of oppression and foreign domination stand condemned and must be
eliminated.

Principle 21 States have, in accordance with the Charter of the

United Nations and the principles of international law, the , sovereign
right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities

within their jurisdiction or control do not cause damage to the

environment of other States or of areas beyond the limits of national
jurisdiction.
o

Principle 22: States shall cooperate to develop further the

international law regarding liability and compensation for the victims of
pollution and other environmental damage caused by activities within
the jurisdiction or control of such States to areas beyond their
jurisdiction.

Principle 23: Without prejudice to such criteria as may be agreed

upon by the international community, or to standards which will have
to be determined nationally, it will be essential in all cases to consider
the systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced
countries but which may be inappropriate and of unwarranted social
cost for the developing countries.

Principle 24 International matters concerning the protection and

improvement of the environment should be handled in a cooperative
spirit by all countries, big and small, on an equal footing. Cooperation
through multilateral or bilateral arrangements or other appropriate
means is essential to effectively control, prevent, reduce and eliminate
adverse environmental effects resulting from activities conducted in all
spheres, in such a way that due account is taken of the sovereignty
and interests of all States.

Third period (1972 1992)

Marked by a proliferation of international environmental organisations, and

greater efforts by existing institutions to address environmental issues

Creation of UNEP, and also other organisations adopted environmental

protection treaties (London Dumping Convention 1972, World Heritage
Convention 1972, MARPOL 1973/78, CITES 1973)

Other regional treaties (Bonn Convention on Migratory Birds 1979, Bern

Convention on Protection of Habitats 1979, Convention on LongRange
Transboundary Air Pollution 1979, Convention for Regulation of Mining of
Antarctic Mineral Resources 1988)

World Bank, UNEP and UNDP created the Global Environmental Facility

Brundtland Report 1987 - Until recently, the plant was a large world in
which human activities and their effects were neatly compartmentalised
within nations, within sectors (energy agriculture, trade) and within broad

areas of concern (environmental, economic, social). These compartments

have begun to dissolve. This applies in particular to the global crises that
have seized public concern, particularly over the last decade. These are not
separate crises: an environmental crisis, a development crisis, an energy
crisis. They are all one.

Aimed to formulate realistic proposals for dealing with environment and

development issues

3. Rio Summit 1992 Holistic Approach to Environmental Protection

and Economic Development

Rio Summit 1992 (UNCED)

Three nonbinding instruments adopted:

Rio Declaration on Environment and Development;

UNCED Forest Principles (an authoritative statement of principles for

a global consensus on the management, conservation and sustainable
development of all types of forest); and

Agenda 21.

Two conventions:
o

UN Framework Convention on Climate Change; and

UN Convention on Biological Diversity.

Rio Declaration
o

Principle 2: States have, in accordance with the Charter of the

United Nations and the principles of international law, the , sovereign
right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the
limits of national jurisdiction.

Principle 3 The right to development must be fulfilled so as to

equitably meet developmental and environmental needs of present
and future generations.

Principle 4 In order to achieve sustainable development,

environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it.

Principle 7: States shall cooperate in a spirit of global partnership to

conserve, protect and restore the health and integrity of the Earth's
ecosystem. In view of the different contributions to global
environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to sustainable
development in view of the pressures their societies place on theglobal
environment and of the technologies and financial resources they
command.

Principle 11 States shall enact effective environmental legislation.

Environmental standards, management objectives and priorities should
reflect the environmental and development context to which they
apply. Standards applied by some countries may be inappropriate and
of unwarranted economic and social cost to other countries, in
particular developing countries.

Principle 15 In order to protect the environment, the precautionary

approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for
postponing costeffective measures to prevent environmental
degradation.

Principle 16 National authorities should endeavour to promote the

internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should,
in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.

Fourth period

Rio Summit in 1992 saw the adoption of three nonbinding instruments and
two conventions (UNFCCC and CBD)

No slow down in the legislative activity since then:

o

Kyoto Protocol to UNFCCC (1997);

Aarhus Convention on Access to Information, Public Participation in

DecisionMaking, and Access to Justice in Environmental Matters
(1998); and

Cartagena Biosafety Protocol to CBD (2000).

Activity of international organisations since Rio:

o

Maintenance by IWC of moratorium on commercial whaling (Cf

continued whaling by Norway/Iceland (under objection), by
indigenous communities (aboriginal subsistence), and by Japan
(scientific whaling))

Maintenance of prohibition on trade in African elephant ivory under

CITES

Amendments to Montreal Protocol on the Ozone Layer to bring

forward the phasing out of harmful substances

ILC work on liability for injurious consequences arising out of acts not
prohibited by international law

Rise in international litigation concerning environmental issues.

o

ICJ:

Legality of the Threat or Use of Nuclear Weapons (ICJ, 1996);

GabcikovoNagymaros Project (ICJ, 1997);

Pulp Mills on the River Uruguay (ICJ, 2010);

Aerial Herbicides Spraying (ICJ, ongoing);

Whaling in the Southern Ocean (ongoing)

GATT/WTO:

US Tuna/Dolphin (GATT, 1991/1994)

US Import Prohibitions on Certain Shrimp and Shrimp

Products (WTO, 1998);

EC Measures concerning Meat and Meat Products

(Hormones) case (WTO, 1998);

EC Biotech Products (WTO, 2005)

UNCLOS:

Southern Bluefin Tuna (ITLOS, UNCLOS Annex VII Tribunal,

19992000);

MOX Plant (ITLOS, UNCLOS Annex VII Tribunal, 20012008).

10th anniversary of UNCED marked by the World Summit on Sustainable

Development (Johannesburg, 2002)
This period has seen an increasing complexity in international law, and
increasing regulation at the international level of environmental issues
International environmental rules are no longer simply about normative rules,
but are also about finding techniques of implementation which are practical,
effective, and equitable

Sources of International Environmental Law

1. Customary International Law
2. Treaties
3. Soft Law

As international environmental law is a merely a part of general international

law, the sources in Article 38(1) of the ICJ Statute apply
But note the limitations of Article 38(1) is this really an exhaustive list?
What about:
o GA Resolutions?
o Declarations of Principles adopted by the UN, or by ad hoc UN
conferences?
o Treaty provisions which have been agreed by the majority of member
States of the UN, but which are not yet in force?
o Draft Articles proposed by the International Law Commission?
The shortcomings of Art 38(1) have been exposed by the need for faster,
more flexible response in many international environmental issues, e.g.:
o preventing marine pollution by oil and toxic discharges and dumping;
o controlling the emission of gases that damage the ozone layer or
cause climate change;
o regulating the transboundary movement of hazardous wastes and
chemicals; and
o preserving endangered species and biological diversity.
Traditional sources
o Treaties, customary international law, general principles of law
o Possible creative role of general principles for the ICJ?
Other possible sources of international law:
o Work of the ILC, which is charged with the object of promoting the
progressive development and codification of international law
o GA Resolutions (which are not binding per se)
o Soft law: increasing use has been made of halfway stages in the
lawmaking process in the form of codes of practice,
recommendations, guidelines, resolutions, declarations of principles,
and standards. Soft law norms are good vehicles for focusing

consensus on rules and principles, and also for mobilising a consistent,

general response on the part of States.

Key Concepts and Principles in International Environmental

Law
1. Transboundary Pollution and Environmental Harm

Obligation to prevent transboundary harm from hazardous activities

o Trail Smelter (USCanada, 1941);
o Corfu Channel (ICJ, 1949);
o Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226,
2412: The Court recognizes that the environment is under daily
threat and that the use of nuclear weapons could constitute a
catastrophe for the environment. The Court also recognizes that the
environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including
generations unborn. The existence of the general obligation of States
to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is now
part of the corpus of international law relating to the environment.
o GabcikovoNagymaros Project [1997] ICJ Rep 7, 41.

2. Global Environmental Responsibility

Common heritage of mankind

o Foundations laid by Stockholm Declaration, Principle 2: The natural
resources of the earth, including the air, water, land, flora and fauna
and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through
careful planning or management, as appropriate
o Also the World Charter for Nature (GA Res 37/7 (1982)) man must
acquire the knowledge to maintain and enhance his ability to use
natural resources in a manner which ensures the preservation of the
species and ecosystems for the benefit of present and future
generations.
o Common heritage of mankind Agreement Governing the Activities
of States on the Moon (1979), Art 11; and
o UNCLOS (1982), Art 1367. Common concern of humankind
o UNFCCC (1992), PP: change in the Earths climate and its adverse
effects are a common concern of humankind; and
o CBD (1992), PP: the conservation of biological diversity is a
common concern of humankind.

3. Sustainable Development

Brundtland Report: WCED, Our Common Future (1987): sustainable

development is development that meets the needs of the present
without compromising the ability of future generations to meet their
own needs.
o GabcikovoNagymaros Project [1997] ICJ Rep 7, 78: Throughout the
ages, mankind has, for economic and other reasons, constantly
interfered with nature. In the past, this was often done without
consideration of the effects upon the environment. Owing to new
scientific insights and to a growing awareness of the risks for mankind
for present and future generations of pursuit of such interventions
at an unconsidered and unabated pace, new norms and standards
have been developed, set forth in a great number of instruments
during the last two decades. Such new norms have to be taken into
consideration, and such new standards given proper weight, not only
when States contemplate new activities but also when continuing with
activities begun in the past. This need to reconcile economic
development with protection of the environment is aptly expressed in
the concept of sustainable development.
o Sep Op VP Weeramantry: The Court has referred to it as a concept
in paragraph 140 of its Judgment. However, I consider it to be more
than a mere concept, but as a principle with normative value which is
crucial to the determination of this case. Without the benefits of its
insights, the issues involved in this case would have been difficult to
resolve. [1997] ICJ Rep 7, 88, 88.
o The law necessarily contains within itself the principle of
reconciliation [between the right to development and environmental
protection]. That principle is the principle of sustainable development.
[1997] ICJ Rep 7, 88, 90.
o Sep Op VP Weeramantry: The principle of sustainable development
is thus a part of modern international law by reason not only of its
inescapable logical necessity, but also by reason of its wide and
general acceptance by the global community.
o The concept has a significant role to play in the resolution of
environmentally related disputes. The components of the principle
come from wellestablished areas of international law human rights,
State responsibility, environmental law, economic and industrial law,
equity, territorial sovereignty, abuse of rights, good neighbourliness
to mention a few.
o It offers an important principle for the resolution of tensions
between two established rights. It reaffirms in the arena of
international law that there must be both development and
environmental protection, and that neither of these rights can be
neglected. [1997] ICJ Rep 7,
Substantive elements:
o Sustainable use of natural resources (Rio Decl, Principle 8);
o Integration of environmental protection and economic development
(Rio Decl, Principle 4; see also UNFCCC, Art 3(4); CBD, Art 6(b));
o Right to development (Rio Decl, Principle 3; see also UNFCCC, Art
3(4));
o

o
o
o
o
o
o
o
o

Intergenerational equity (Brundtland Report; Rio Decl, Principle 3;

UNFCCC, Art 3(1); CBD, PP);
Intragenerational equity (Brundtland Report; Agenda 21)
Common but differentiated responsibility (Rio Decl, Principle 7;
UNFCCC, Art 3(1); CBD, PP);
Recognition of the special needs and circumstances of developing
countries (UNFCCC, Art 3(2); see also CBD, PP);
Obligations on developed States to provide technical assistance to
developing countries (UNFCCC, Art 4(5); CBD, Art 16(1)), including on
preferential terms;
Obligations on developed States to provide financial assistance to
developing countries (UNFCCC, Art 4(3); CBD, Art 20(2);
Obligations on developed States to provide assistance to developing
countries to meet the costs of mitigation (UNFCCC, Art 4(4));
Recognition that the extent to which developing countries will
effectively implement their obligations under this convention will
depend on the effective implementation by developed countries of
their commitments re financial resources and transfer of technology
(UNFCCC, Art 4(7); CBD, Art 20(4)).
Polluter pays principle Rio Decl, Principle 16: National authorities
should endeavour to promote the internalization of environmental
costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting
international trade and investment.

4. Precautionary Principle

Precautionary approach
o Rio Decl, Principle 15
o Not relied on by ICJ in GabcikovoNagymaros Project (cf Sep Op VP
Weeramantry);
o Also argued in EC Hormones (WTO, 1998):
EC: it is a general customary rule of international law or at least
a general principle of law;
US: it is not a principle of customary international law; rather, it
may be characterized as an "approach" the content of which
may vary from context to context;
Canada: it is an emerging principle of international law, which
may in the future crystallize into one of the general principles of
law recognized by civilized nations.
WTO: Whether it has been widely accepted as a principle of
general or customary international law appears less than clear.
o In Southern Bluefin Tuna (Provisional Measures) (1999), Australia and
New Zealand requested provisional measures that:
Japan restrict its catch to the quota that had been agreed under
the Convention for the Conservation of Southern Bluefin Tuna;
Japan cease its experimental fishing programme; and

the parties act consistently with the precautionary principle in

fishing for Southern Bluefin Tuna.
No dispute between the parties that stocks of Southern Bluefin Tuna
were at historically low levels, but disagreed about scientific evidence
re recovery of stocks
ITLOS Order in Southern Bluefin Tuna (cont): 77. in the view of
the Tribunal, the parties should in the circumstances act with prudence
and caution to ensure that effective conservation measures are taken
to prevent serious harm to the stock of southern bluefin tuna
79. there is scientific uncertainty regarding measures to be taken to
conserve the stock of southern bluefin tuna and that there is no
agreement among the parties as to whether the conservation
measures taken so far have led to the improvement in the stock of
southern bluefin tuna;
80. although the Tribunal cannot conclusively assess the scientific
evidence presented by the parties, it finds that measures should be
taken as a matter of urgency to preserve the rights of the parties and
to avert further deterioration of the southern bluefin tuna stock.

o
o

Pulp Mills on the River Uruguay (ICJ Judgment of 20 April 2010)- the ICJ
held that the precautionary approach might be relevant in the
interpretation and application of provisions of the bilateral treaty in
question, although this did not entail a reversal of the burden of proof
(para 164)
o Rio Decl, Principle 10: Environmental issues are best handled with
participation of all concerned citizens, at the relevant level. At the
national level, each individual shall have appropriate access to
information concerning the environment that is held by public
authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision
making processes. States shall facilitate and encourage public
awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including
redress and remedy, shall be provided.
o Rio Decl, Principle 17: Environmental impact assessment, as a
national instrument, shall be undertaken for proposed activities that
are likely to have a significant adverse impact on the environment and
are subject to a decision of a competent national authority.
Sustainable development: what is its value?
o Lowe sustainable development is not a rule of international law:
o First, is it necessary to have a rule to reconcile the tension between
competing rights?
o Second, and in any event, , y , is there a conflict between the right to
development and environmental protection?
o Third, can sustainable development really be said to be a rule of
customary international law? If so, what is the rule being claimed? Is
it of a fundamentally normcreating character
o Fourth, is there State practice and opinio juris?
o

o
o

But sustainable development is not devoid of any normative

significance
Sustainable development is a metaprinciple which acts upon other
legal rules and principles

State Responsibility and the Protection of the Environment

State responsibility and international environmental law

The traditional model interstate claims based on State responsibility,
resolved by one of the means of dispute settlement referred to in UN Charter,
Art 33
Disadvantages of traditional bilateral model of dispute settlement
o adverse effect on relations between the parties;
o complexity, length, and expense of many international proceedings;
o problems and difficulties of proof which legal proceedings may entail;
and
o unsettled law.
o the traditional model is concerned largely with affording reparation
as a response to violations of international law;
o it is inherently bilateral, adversarial and confrontational in nature;
and
o it assumes the existence of injured States.
Rules that have been developed in international environmental law are
focussed on prevention, reduction and control of environmental harm, and
the conservation and sustainable use of resources rather than reparation
for international wrongs
o E.g., UNCLOS, Art 192: States have the obligation to protect and
preserve the marine environment.
o E.g., UNCLOS, Art 194(1): States shall take, individually or jointly as
appropriate, all measures consistent with this Convention that are
necessary to prevent, reduce and control pollution of the marine
environment from any source
o E.g., UNFCCC, Art 4(1)(c): All Parties shall cooperate in the
development of technologies ,practices and processes that control,
reduce or prevent anthropogenic emissions of greenhouse gases
o E.g., CBD, Art 6(a): Each Contracting Party shall develop national
strategies, plans or programmes for the conservation and sustainable
use of biological diversity
Preventive or regulatory regimes require a more sophisticated approach to
the enforcement and implementation of international law
A regime which only accords rights to injured States after the event will be
inadequate
o E.g., in the context of climate change who is an injured State?
o Traditionally, only injured States have the right to bring claims
South West Africa (ICJ, 1966)
o Cf Barcelona Traction (ICJ, 1970)

Also, in the same context, who is a responsible State?

How to prove causation?
Multilateral nature of international environmental obligations leads to States
agreeing to complex institutional machinery, COPs, MOPs, and regular
meetings of the parties
A word on standing
o Barcelona Traction [1970] ICJ Rep 3, 32, paras 334: [A]n
essential distinction should be drawn between the obligations of a
State towards the international community as a whole, and those
arising visvis another State in the field of diplomatic protection. By
their very nature the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination.
Some of the corresponding rights of protection have entered into the
body of general international law ; others are conferred by
international instruments of a universal or quasiuniversal character.
o

ILC Articles on State Responsibility

ILC Articles on State Responsibility, Art 42: A State is entitled as an injured
State to invoke the responsibility of another State if the obligation breached
is owed to:
o a) that State individually; or
o b) a group of States including that State, or the international
community as a whole, and the breach of the obligation:
i. specially affects that State; or
ii. is of such a character as radically to change the position of all
the other States to which the obligation is owed with respect to
the further performance of the obligation.
ILC Articles on State Responsibility, Art 48: 1. Any State other than an
injured State is entitled to invoke the responsibility of another State if:
o a) The obligation breached is owed to a group of States including that
State, and is established for the protection of a collective interest of
the group; or
o b) The obligation breached is owed to the international community as a
whole.
ILC Commentary to Article 48(1)(b)
o James Crawford, The International Law Commissions Articles on State
Responsibility (2002) 278: All States are by definition members of
the international community as a whole, and the obligations in
question are by definition collective obligations protecting interests of
the international community as such. Of course such obligations may
at the same time protect the individual interests of States individual
States may be specially affected by the breach of such an obligation,
for example a coastal State specially affected by marine pollution in

breach of an obligation aimed at protection of the marine

environment.

Mechanisms for Compliance and Enforcement

Difficulties with traditional model of dispute settlement:

o a) Difficulty in identifying an injured State with standing (All States?
No States? Specially affected States?).
o b) Is it possible that obligations under environmental treaties are
obligations erga omnes, giving all States standing?
o c) Difficulty in identifying a responsible State, which has caused the
damage (industrialised States? All States?).
o d) Even if it possible to identify a State with standing, what would be
the purpose of that States claim?
What would be the purpose of the claim?
o Remedies under international law:
Restitution?
Compensation?
Satisfaction?
Do you want to punish the offending State?
How to ensure that the State complies with its obligations?
Methods of ensuring compliance with environmental agreements
o Creation of institutional machinery
COP / MOP (UNFCCC, Art 7)
Secretariat (UNFCCC, Art 8)
Subsidiary bodies (UNFCCC, Arts 910)
o Regular reporting by States parties to the regime
UNFCCC, Art 4(1)(a), (b)
UNFCCC, Art 4(2)(b)
UNFCCC, Art 12
o Factfinding and research function of the institutional machinery;
E.g., subsidiary bodies under UNFCCC;
Obligations to support research efforts (Art 5)
o Possibility of inspections to verify compliance
Noncompliance procedures
Designed to provide a softer system to address noncompliance than
traditional dispute settlement procedures
Designed to assist the defaulting State in returning to compliance, not
necessarily to incriminate States for noncompliance
They are multilateral, rather than bilateral; consultative, rather than
adversarial; facilitative of compliance, rather than punitive for any
noncompliance.

Contemporary Issues

Kyoto Protocol NCP

See Procedures and Mechanisms relating to Compliance under the Kyoto
Protocol: Decision 27/CMP.1 see especially p y consequences of action by
the Enforcement Branch
Practice of the Kyoto Protocol NCP:
o Complaints about noncompliance by Greece, Croatia, and Canada
o Sanctions have been implemented The Climate Change Regime
UN Framework Convention on Climate Change opened for signature at Rio
Summit in June 1992
Objective to achieve stabilisation of GHG concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system (Art 2)
Principles: The Convention recognised the principles of intergenerational
equity, and the principle of common but differentiated responsibilities (Art
3(1))
developed States should take the leading role in combating climate change
(Art 3(1))
Specific needs and special circumstances of developing countries to be
given full consideration, especially those that are particularly vulnerable (Art
3(2))
States parties to take precautionary measures (Art 3(3))
States parties should promote sustainable development (Art 3(4))
States parties should cooperate to promote an open international economic
system (Art 3(5))
All parties, taking into account their common but differentiated
responsibilities, have certain qualitative duties, such as:
o To develop, periodically update and publish national inventories of
anthropogenic GHG emissions and removals by sinks (Art 4(1)(a));
o To have national and regional programmes on measures to mitigate
climate change (Art 4(1)(b));
o To develop and transfer technologies to p g reduce GHG emissions in
all relevant sectors (Art 4(1)(c));
o To promote sustainable management Art 4(1)(d);
o To cooperate and prepare for adapting to the impacts of climate
change (Art 4(1)(e));
o To take climate change considerations into account in the
formulation of social, economic and environmental policies (Art 4(1)(f))

GHGs were defined as being: carbon dioxide (CO2); methane (CH4); nitrous
oxide (N2O); hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); sulphur
hexafluoride (SF6).
Developed countries (listed in Annex I) have other obligations:
o To adopt national policies and implement measures to limit GHG
emissions and to protect and enhance sinks and reservoirs to modify
trends in anthropogenic emissions, recognising that the return by the
end of the decade [the 1990s] to earlier levels of anthropogenic

emissions of carbon dioxide and other GHGs would contribute to

such modification. (Art 4(2)(a)).
o To engage in information sharing, as well as on their projected
anthropogenic GHG emissions by sources, and removals by sinks of
GHGs, with the aim of returning individually or jointly to their 1990
levels these anthropogenic emissions of carbon dioxide and other
GHGs (Art 4(2)(b)).
o But: no specific emission reduction or limitation targets agreed
Parties listed in Annex II (being developed OECD member States) had specific
obligations:
o to provide financial resources to assist developing States with their
reporting requirements (Art 4(3));
o to assist developing countries which are particularly vulnerable to
meet the costs of adapting to climate change (Art 4(4));
o to assist in the transfer of environmentally sound technologies to other
parties to enable them to implement the Convention (Art 4(5)).
Further provisions:
o Flexibility given to Annex I parties which are economies in transition
(Art 4(6));
o Extent to which developing countries implement their obligations will
depend on the effective implementation by developed countries of
their obligations (Art 4(7));
o Full consideration for position of vulnerable countries (Art 4(8));
o Full consideration for position of least developed countries re funding
and technology transfer (Art 4(9)).
Individually or jointly
o The aim is for the Annex I parties to return, individually or jointly,
their GHG emissions to 1990 levels by the year 2000 (Art 4(2)(b))
What is joint implementation?
o The Conference of the Parties, at its first session, shall take
decisions for criteria regarding joint implementation (Art 4(2)(d))
o COP1 (1995) set out to strengthen the obligations on Annex I parties
in Art 4(2)
Kyoto Protocol agreed at COP3 (1997); this contained quantified emission
limitation and reduction obligations (Art 3): The Parties listed in Annex I
shall, individually or jointly, ensure that their aggregate anthropogenic
carbon dioxide equivalent emissions of [GHGs] do not exceed their
assigned amounts [in Annex B] with a view to reducing their overall
emissions of such gases by at least 5 per cent below 1990 levels in the
commitment period 2008 to 2012.
Difficulties re entry into force (double requirement) did not happen until
February 2005
Annex B targets principle of differentiation was applied
Some States permitted to increase GHG emissions: Australia (108%), Iceland
(110%) and Norway (101%)
Some States had to keep GHG emissions at 100% of 1990 levels: New
Zealand, the Russian Federation, and the Ukraine
Others had to reduce GHG emissions: e.g., all EU States (92%)

Flexibility Mechanisms
o Joint Implementation emissions reduction projects between Annex I
States (Art 6): For the purpose of meeting its commitments under
Article 3, any Party included in Annex I may transfer to, or acquire
from, any other such Party emission reduction units resulting from
projects aimed at reducing anthropogenic emissions by sources or
enhancing anthropogenic removals by sinks of greenhouse gases in
any sector of the economy, provided that:
a) Any such project has the approval of the Parties involved;
b) Any such project provides a reduction in emissions by
sources, or an enhancement of removals by sinks, that is
additional to any that would otherwise occur.
o Clean Development Mechanism projects between Annex I States and
developing countries (Art 12): The purpose of the [CDM] shall be to
assist Parties not included in Annex I in achieving sustainable
development and in contributing to the ultimate objective of the
Convention, and to assist Parties included in Annex I in achieving
compliance with their quantified emission limitation and reduction
commitments under Article 3.
o CDM projects generate certified emission reduction units (CERs)
o Emissions trading (Art 17): The Parties included in Annex B may
participate in emissions trading for the purposes of fulfilling their
commitments under Article 3. Any such trading shall be supplemental
to domestic actions for the purpose of meeting quantified emission
limitation and reduction commitments under that Article.
o Further details of the three flexibility mechanisms agreed at COP7 in
2001 (the Marrakesh Accords)
o Many such projects are ongoing:
Well over 2000 CDM projects, e.g., World Bank and NovaGerar
EcoEnergia Ltd landfill gas capture project in Brazil
Over 150 JI projects there are Track 1, and Track 2 JI
projects
There is a very active market in carbon emissions, worth
billions
Compliance with the Kyoto Protocol
Noncompliance procedure (discussed earlier) whose aim is to facilitate,
promote and enforce compliance with the commitments under the Protocol.
o Facilitative Branch offers advice and assistance to parties in order
to promote compliance
o Enforcement Branch decides on sanctions in the case of non
compliance with Kyoto obligations (such sanctions may include a
declaration of noncompliance; suspension of that State partys
eligibility to participate in the flexibility mechanisms; and applying
penalties to future assigned amounts for future commitment periods)
Unfinished business
The Kyoto Protocol:
o only places obligations on Annex I States;
o only places obligations on those States for the first Kyoto
commitment period of 2008 2012;

 does not include some key industry sectors such as international

aviation (responsible for 3.5% of emissions contributing to global
warming), and maritime transport
o Some States are not going to meet their targets: Australia, New
Zealand and Canada have each increased GHG emissions by 25%; but
overall compliance might be possible
Copenhagen Accord (Dec 2009)
o Para 1: We underline that climate change is one of the greatest
challenges of our time. We emphasise our strong political will to
urgently combat climate change in accordance with the principle of
common but differentiated responsibilities and respective capabilities
o To achieve the ultimate objective we shall, recognizing the
scientific view that the increase in global temperature should be below
2 degrees Celsius, on the basis of equity and in the context of
sustainable development, enhance our longterm cooperative action to
combat climate change.
o Para 2: We agree that deep cuts in global emissions are required
according to science, and as documented by the IPCC Fourth
Assessment Report with a view to reduce global emissions so as to
hold the increase in global temperature below 2 degrees Celsius.
o Para 3: Adaptation to the adverse effects of climate change and the
potential impacts of response measures is a challenge g faced by all
countries We agree that developed countries shall provide
adequate, predictable and sustainable financial resources, technology
and capacitybuilding to support the implementation of adaptation
action in developing countries.
o Para 6: We recognize the crucial role of reducing emission from
deforestation and forest degradation and the need to enhance
removals of greenhouse gas emission by forests and agree on the
need to provide positive incentives to such actions through the
immediate establishment of a mechanism including REDDplus, to
enable the mobilization of financial resources from developed
countries.
Future Action
o Copenhagen Accord, para 12: We call for an assessment of the
implementation of this Accord to be completed by 2015.
o Cancun Agreements (December 2010): Urges Annex I Parties to
raise the level of ambition of the emission reductions to be achieved by
them individually or jointly
o What next?
o

Topic 5: The Law of International Organisations

Introduction and Historical Development
1. International conferences and unions

Early international conferences ad hoc (e.g., Congress of Vienna (1815))

First international organisations technical, rather than political
(International Telegraphic Union (1865), Universal Postal Union (1874)).
League of Nations (1919)
Allied Powers in WW2 as early as 1941, called themselves the United
Nations
Moscow Declaration (1943) identified the necessity of establishing, at the
earliest practicable date, a general international organisation, based upon the
principle of sovereign equality of all peaceloving States, large and small, for
the maintenance of international peace and security.
United Nations (1945)
Types of international organizations
There is no typical international organization
o Universal and general (e.g., the UN)
o Regional organisations political cooperation (ASEAN, EU, OAS,
African Union)
o Regional organisations economic integration (ASEAN, EC,
MERCOSUR, Common Market for Eastern and Southern Africa,
ECOWAS)
o Universal and specialised (WTO, WIPO, WMO, World Bank)
o Universal limited membership (OECD, G8)
o Regional organisations security cooperation (NATO, WEU, ANZUS,
Warsaw Pact, OSCE)
o Regional organisations human rights and democracy (Council of
Europe, OSCE)
Functions of international organizations
Providing a forum for identifying and deliberating on matters of common
interest;
Acting as vehicles for taking action on international or transnational
problems;
Providing a forum for developing rules on matters of common interest;
Providing mechanisms for promoting, monitoring, and supervising State
compliance with agreed rules and policies as well as for gathering information
regarding the practices of States; and
Providing a forum for the settlement of disputes.
What is an international organisation?
International organisations are all different

ILC currently working on Responsibility of International Organisations

Article 2 of draft Articles:
o For the purposes of the present draft articles, the term international
organisation refers to an organisation established by a treaty or other
instrument governed by international law and possessing its own
international legal personality.
International organisations may include as members,in addition to States,
other entities.
any instrument governed by international law
o E.g, Nordic Council (but later a treaty was concluded), OSCE, OPEC
o But not the Cairns Group Argentina, Australia, Bolivia, Brazil,
Canada, Chile, Colombia, Costa Rica, Guatemala, Indonesia, Malaysia,
New Zealand, Pakistan, Paraguay, Peru, the Philippines, South Africa,
Thailand and Uruguay.
o Not intended to exclude entities other than Statesfrom membership
of intl orgs
The three criteria distinguish truly international organisations from other
types of international associations, such as:
o NGOs (such as Greenpeace); and
o international public corporations (such as, e.g., Air Afrique).
Is there an international law of international organisations?
Body of general principles covering:
o i. the legal personality of international organisations;
o ii. the powers of international organisations;
o iii. the interpretation of constituent instruments;
o iv. the privileges and immunities of international organisations; and
o v. the international responsibility of the organisation and its member
States.

2. League of Nations
The League of Nations (LON) was an intergovernmental
organization founded as a result of the Paris Peace Conference that
ended World War I, and it was the precursor to the United Nations. The
League was the first permanent international security organization whose
principal mission was to maintain world peace. The League's primary goals,
as stated in its Covenant, included preventing war through collective
security, disarmament, and settling international disputes
through negotiation and arbitration. Other issues in this and related treaties
included labour conditions, just treatment of native inhabitants, trafficking
in persons and drugs, arms trade, global health, prisoners of war,
and protection of minorities in Europe.
The diplomatic philosophy behind the League represented a fundamental
shift in thought from the preceding hundred years. The League lacked its own
armed force and so depended on the Great Powers to enforce its resolutions,
keep to economic sanctions which the League ordered, or provide an army,
when needed, for the League to use. However, they were often reluctant to
do so.

After a number of notable successes and some early failures in the 1920s,
the League ultimately proved incapable of preventing aggression by the Axis
powers in the 1930s. The onset of World War II showed that the League had
failed its primary purpose, which was to avoid any future world war.
The United Nations replaced it after the end of the war and inherited a
number of agencies and organizations founded by the League.

3. United Nations
The United Nations (UN) is an international organization whose stated aims
are facilitating cooperation in international law, international
security, economic development, social progress, human rights, and
achievement of world peace. The UN was founded in 1945 after World War
II to replace the League of Nations, to stop wars between countries, and to
provide a platform for dialogue. It contains multiple subsidiary organizations
to carry out its missions.

Legal Personality

International legal personality

Does an international organisation have international legal personality? See

the Reparations case [1949] ICJ Rep 174

States solely and exclusively are the subjects of international law. L

Oppenheim, International Law (1st ed, 1912) vol 1.

Look at the constitutive instrument of the international organisation: e.g., the

Treaty on European Union, Art 47: The Union shall have legal personality.

Cf Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240,
258: although Australia, New Zealand and the United Kingdom had entered
into a Trusteeship Agreement for the Territory of Nauru in 1947, under
which the three governments were designated as the Administering Authority
for the territory of Nauru, the three governments had not created an entity
with separate legal personality from the three governments themselves

Reparations for Injuries Suffered in the Service of the United Nations

[1949]
Count Folke Bernadotte, a Swedish diplomat, assassinated in the course
of his service as a UN mediator in the ArabIsraeli conflict in 1948
GA requested advisory opinion on whether the UN had the capacity to
bring an international claim against Israel for the purpose of seeking
reparation for injuries done to the Organisation and its agents.
UN Charter, Art 104: The Organisation shall enjoy in the territory of
each of its Members such legal capacity as may be necessary for the
exercise of its functions and the fulfilment of its purposes.
ICJ considered: the capacity to present an international claim is the
capacity to resort to the customary methods recognised by international
law for the establishment, the presentation, and the settlement of
claims
o This capacity certainly belonged to States but did the UN have
this capacity?
ICJ considered: the progressive increase in the collective activities of
States has already given rise to instances of action upon the
international plane by certain entities which are not States. This
development culminated in the establishment in June 1945 of an
international organisation whose purposes and principles are specified
in the Charter of the United Nations. [T]o achieve these ends the
attribution of international personality is indispensable. [1949] ICJ Rep
174, 178
ICJ observed: [The UN Charter] has equipped [the UN] with organs,
and has given it special tasks. It has defined the position of the
Members in relation to the Organisation by requiring them to give it
every assistance in any action undertaken by it (Article 2, para. 5), and
to accept and carry out the decisions of the Security Council; by
authorising the General Assembly to make recommendations to the
Members; by giving the Organisation legal capacity and privileges and
immunities in the territory of each of its Members, and by providing for
the conclusion of agreements between the Organisation and its
members. ([1949] ICJ Rep 174, 179.)
In the opinion of the Court, the Organisation was intended to exercise
and enjoy, and is in fact exercising and enjoying, a large measure of
international personality and the capacity to operate upon an
international plane. It is at present the supreme type of
international organisation, and it could not carry out the intentions
of its founders if it was devoid of international personality. It must be
acknowledged that its Members, in entrusting certain functions to it,
with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively
Acquisition of international personality
Two schools of thought (Akande, pp 2812): Inductive approach: the
personality of the international organisation can be implied from the
capacities, powers rights, and duties conferred on that organisation by the
Member States in the constitutive instrument;
Objective approach: an international organization can only have
international personality if certain objective criteria are fulfilled.

Interpretation of the Agreement of 25 March 1951 between the WHO and

Egypt [1980] ICJ Rep 73, 8990: International organisations are subjects of
international law and, as such, are bound by any obligations incumbent upon
them under general rules of international law, under their constitutions or
under international agreements to which they are parties.
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (WHO
Request) [1996] ICJ Rep 66, 78 The Court need hardly point out that
international organisations are subjects of international law which do not,
unlike States, possess a general competence.
Consequences of international personality
o 1. Personality separates out the rights and obligations of the
international organisation from that of the members.
o 2. Personality entitles the organisation to bring a claim in international
law for the purpose of maintaining its own rights.
o 3. Personality entails the consequence (or presumption) that an
international organisation is responsible for the nonfulfilment of its
obligations.
o 4. Customary international law confers certain privileges and
immunities on an international organisation at least within the host
State, where that international organisation is headquartered (but
usually in a Headquarters Agreement).
o 5. Personality grants international organisations the capacity to enter
into treaties.

C. Powers of International Organisations

1. Express powers arising under the constitutive instrument
Express powers: E.g., UNFCCC, Art 7(2)(i): the Conference of the Parties
shall [e]stablish such subsidiary bodies as are deemed necessary for the
implementation of the Convention.
E.g., UN Charter, Art 39: the Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international
peace and security.
2. Implied powers
Reparations [1949] ICJ Rep 174, 182 Under international law, an
Organisation must be deemed to have those powers which, though not
expressly provided for in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties.
Cf Diss Op Judge Hackworth: Powers not expressed cannot freely be
implied. Implied powers flow from a grant of expressed powers, and are
limited to those that are necessary to the exercise of powers expressly
granted. No necessity for the exercise of the power here in question has been
shown to exist. There is no impelling reason, if any at all, why the

Organisation should become the sponsor of claims on behalf of its

employees, even though limited to those arising while the employee is in line
of duty. These employees are still nationals of their respective countries, and
the customary methods of handling such claims are still available in full
vigour.
Effect of Awards of Compensation made by the UNAT [1954] ICJ Rep 47, 567:
the UN General Assemblys capacity to create the Tribunal arose by
necessary intendment out of the Charter
Certain Expenses of the United Nations [1962] ICJ Rep 151 Concerned
expenses relating to peacekeeping operations in the Middle East (UNEF)
and the Congo (ONUC)
o Do expenses for peacekeeping operations constitute expenses of
the Organisation within the meaning of Article 17, paragraph 2, of the
Charter?
o UN Charter, Art 17: 1. The General Assembly shall consider and
approve the budget of the Organisation.
2. The expenses of the Organisation shall be borne by the Members
as apportioned by the General Assembly.
o ICJ considered: expenses included items additional to its regular
budget
Article 17 must be a catchall provision
o Argument Art 17 does not include expenses relating to the
maintenance of international peace and security these are the
exclusive province of the UNSC
Article 11(1): GA can consider the general principles of cooperation
in the maintenance of international peace and security, and may make
recommendations
Article 11(2): GA can discuss any question relating to the
maintenance of international peace and security and except as
provided in Article 12, has the power to make recommendations
Article 11(2) : Any such question on which action is necessary
shall be referred to the Security Council
Article 12: Where the Security Council is exercising its functions with
regard to a dispute or situation, the GA shall not make any
recommendations
o ICJ considered Art 24, under which the UNSC has primary
responsibility for the maintenance of international peace and security
o But this did not completely exclude the UNGA
o In order for a peacekeeping operation to be an expense of the
Organisation within the meaning of Article 17(2), it had to conform
with the purposes of the UN
o Purposes of the UN (Art 1):
the maintenance of international peace and security;
the development of friendly relations between nations;
achieving international cooperation in solving international
problems of an economic, social, cultural, or humanitarian
character; and
harmonising the actions of nations in achieving these ends.

Certain Expenses [1962] ICJ Rep 151, 168 The primary place
ascribed to international peace and security is natural, since the
fulfilment of the other purposes will be dependent upon the attainment
of that basic condition. These purposes are broad indeed, but neither
they nor the powers conferred to effectuate them are unlimited. Save
as they have entrusted the Organisation with the attainment of these
common ends, the Member States retain their freedom of action. But
when the Organisation takes action which warrants the assertion that
it was appropriate for the fulfilment of one of the stated purposes of
the United Nations, the presumption is that such action is not ultra
vires the Organisation. [1962] ICJ Rep 151, 168.
Tests for implied powers
Functional test: Reparations whether the power was conferred upon it by
necessary implication as being essential to the performance of its duties
[1949] ICJ Rep 174, 182 (cf Judge Hackworth);
Effect of Awards whether the power arose by necessary intendment of
the Charter [1954] ICJ Rep 47, 567; and
Certain Expenses the action must warrant the assertion that it was
appropriate for the fulfilment of one of the stated purposes of the United
Nations. [1962] ICJ Rep 151, 168.
Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79:
The powers conferred on international organizations are normally the
subject of an express statement in their constituent instruments.
Nevertheless, the necessities of international life may point to the need for
organisations, in order to achieve their objectives, to possess subsidiary
powers which are not expressly provided for in the basic instruments which
govern their activities. It is generally accepted that international
organizations can exercise such powers, known as "implied" powers.
Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79: to
ascribe to the WHO the competence to address the legality of the use of
nuclear weapons even in view of their health and environmental effects
would be tantamount to disregarding the principle of speciality; for such
competence could not be deemed a necessary implication of the Constitution
of the Organisation in the light of the purposes assigned to it by its member
State.
o

E. Responsibility of Member States for the Internationally

Wrongful Acts of International Organisations

 Recent case: Behrami and Behrami v France; Saramati v France, Germany and
Norway (European Court of Human Rights, 2 May 2007) Behrami v France and
Behrami Case
Applicants: Mr Behrami and his son Bekim Behrami two Kosovar
Albanians living in Mitrovica, Kosovo; and Mr Saramati the Commander
of a Kosovo Protection Corps Brigade.
Background: NATO bombing campaign against the Federal Republic of
Yugoslavia (now Serbia) in 1999. The NATO campaign ended with the
FRY agreeing to withdraw its forces from Kosovo. NATOled forces in
Kosovo (KFOR), the Federal Republic of Yugoslavia and the Republic of
Serbia (then still a constituent part of Yugoslavia) enter into a Military
Technical Agreement (MTA) by which they agreed on the withdrawal
of the FRY forces, and the presence of an international security force
following the adoption of an appropriate UN Security Council Resolution
(UNSC Resolution). UNSCR 1244 provided for the establishment of a
security presence (KFOR) by Member States and relevant
international institutions, under UN auspices, with substantial NATO
participation but under unified command and control. In a later
agreement, the relationship between the UNSC and the North Atlantic
Council, the decisionmaking body of NATO, is described as one of
Consultation/Interaction, and the relationship between the NAC and
COMKFOR the Commanding Officer of KFOR as one of operational
control. KFOR contingents were grouped into a number of multinational
brigades (MNBs) each of which was responsible for a specific sector of
operations with a lead country. Each MNB was led by a certain country y
(including France, Germany, Finland, Italy, and the United States). In
addition to the NATO forces, Russian forces were deployed as part of
KFOR at a later stage after the arrival of the main KFOR contingent. A
very complex chain of command from the UNSC NATO KFOR MNBs.
UNSCR 1244 also decided on the deployment, under UN auspices, of an
interim civil administration for Kosovo (UNMIK) and requested the UN
Secretary General to establish it and to appoint a Special Representative
to the SG to control its implementation.
UNMIK: Pillar I (as it was at the relevant time) concerned humanitarian
assistance and was led by the UN High Commissioner for Refugees
before it was phased out in June 2000. A new Pillar I (police and justice
administration) was established in May 2001 and was led directly by the
UN, as was Pillar II (civil administration).
Pillar III, concerning democratisation and institution building, was led
by the Organisation for Security and Cooperation in Europe (OSCE).
Saramati v France, Germany and Norway

.Facts of Behrami
A group of boys, including Gadaf and Bekim Behrami, were playing in
the hills in the area surrounding Mitrovica (where the KFOR MNB is led
by France)
The group came upon a number of undetonated cluster bomb units
(CBUs) which had been dropped during the bombardment by NATO in
1999. The boys began playing with the CBUs
It detonates and kills Gadaf Behrami. Bekim Behrami is also seriously
injured, and he is taken to hospital in Pristina, the capital of Kosovo.
He has eye surgery and he is released one month later, although he is
disfigured from the explosion, and does not recover his eyesight
UNMIK police investigate the incident, and need KFORs permission to
access the sit
KFOR had been aware of the CBUs, but they were not considered a
high priority
The boys father complains to the Kosovo Claims Office (KCO) that
France had not respected UNSC Resolution 1244, in that it had not
protected his sons from the unexploded munitions
The Kosovo Claims Office forwards the complaint to the French Troop
Contributing Nation Claims Office (TCNCO)
The French TCNCO rejects the complaint, stating that UNSC Resolution
1244 had required KFOR to supervise mine clearing operations until
UNMIK could take over and that such operations had been the
responsibility of UNMIK since July 1999
Mr Behrami and Bekim Behrami then bring a claim against France
before the European Court of Human Rights, claiming that France had
violated their rights under Article 2 of the European Convention on
Human Rights (right to life)
Mr Saramati was the Commander of a Kosovo Protection Corps Brigade;
he was accused of having undertaken activities threatening the
international presence in Kosovo
In April 2001: he was arrested by UNMIK police
Judge ordered pretrial detention; he was indicted in May 2001, and he
was not released until June 2001
In July 2001: he was told that he had to report to a police station (in the
sector assigned to MNB Southeast, where the lead nation was Germany)
to collect his belongings
He is arrested by UNMIK police officers by order of the Commander of
KFOR (COMKFOR)
KFOR was satisifed that Mr Saramati posed a threat to the security of
KFOR and to those residing in Kosovo
He is detained until January 2002, when he was convicted of attempted
murder
In October 2002, his conviction is quashed and a retrial is ordered

.Applicants arguments in Behrami

Behrami argued:
o 1. France had voted in the North Atlantic Council in favour of
deploying an international force to Kosovo;
o 2. The French contingents effective control of the Mitrovica
region of Kosovo gave it the relevant jurisdictional link for the
purposes of the European Convention.
o 3. The acts and omissions of KFOR soldiers could not be
attributable to the UN or to NATO. KFOR was not established as a
UN force or organ, in contrast to other peacekeeping forces.
o 4. In the case of Saramati, decisions lay with the COMKFOR,
without need to refer to NATO
o 5. KFOR did not have a separate legal personality and could not
be a subject of international law or bear international
responsibility for the acts or omissions of its personnel thus
leading to Frances responsibility for the violation of the
Behramis rights under the Convention.
Saramati argued (after withdrawing his claim against Germany, but
maintained his claims against both France and Norway):
o 1. France and Norway had voted in the North Atlantic Council in
favour of deploying an international force to Kosovo
o 2. It was a Norwegian officer who was COMKFOR at the time of his
arrest and this post was subsequently filled by a French officer
o 3. KFOR was the relevant responsible international organisation in
control of the situation rather than the UN or UNMIK.
o 4. Decisions on detention lay entirely within the discretion of
COMKFOR, who made those decisions without reference to NATO
High Command, or other troop contributing nations (TCNs)
o 5. KFOR did not have a separate legal personality and was not a
subject of international law and could not bear international
responsibility for the acts or omissions of its personnel.
France and Norway argued:
o 1. The ECHR lacked competence, as the applicants were not
within the jurisdiction of France and Norway
o 2. Monetary Gold principle precluded the ECHR from determining
the case
o 3. Applicants had not exhausted local remedies that they had in
Serbia and Kosovo
o 4. France and Norway exercised no authority over KFOR, which
was an international force under unified command and control:
Operational control of the forces was with COMKFOR.
Strategic control was with the Supreme Allied Commander
Europe of NATO (SACEUR).
Political control was exercised by the NAC of NATO, and
ultimately by the UNSC.
o KFOR was therefore an application of the peacekeeping
operations authorised by the UNSC whose resolutions formed the
legal basis for NATO to form and command KFOR
Continued

.How to resolve the issue?

Does the international organisation in question have international legal
personality?
If it does not have legal personality, then the international organisation
cannot be the bearer of rights and obligations separate and distinct from
those of the member States.
If the international organisation does possess legal personality, this
would imply that the organisation is liable for any activities in which it
has engaged.
But if the international organisation is unable to make reparation for
the commission of an internationally wrongful act, or if it is unable to
meet its debts, are the members of the international organisation
responsible for meeting those liabilities?
Outcome:
The ECHR held as follows:
The SC retained ultimate command and control of KFOR and UNMIK, so
that the impugned actions and inactions were attributable to the UN,
rather than NATO, and the UN has a legal personality separate from that
of its member States
The ECHR considered whether it was competent ratione personae to
review the acts of the respondent States carried out on behalf of the UN
The ECHR concluded that it did not have jurisdiction to review the
conduct of France and Norway
Westland Helicopters v AOI (international arbitration)
In 1978, the Arab Organisation for Industrialisation entered into a
contract for the purchase of helicopters from Westland Helicopters, an
English company
The four member States of the AOI (Egypt, Qatar, Saudi Arabia, and the
UAE) had a disagreement, which ultimately led to the demise of the AOI
Westland Helicopters then brought a claim against the AOI for breach of
contract
Were the four member States bound by the obligations of the AOI?
Doctrinal authorities
Henry Schermers, International Institutional Law (1980), section 1395:
it is impossible to create international legal persons in such a way as to
limit the responsibility of the individual members. Even though
international organisations, as international persons, may be held liable
under international law for the acts they perform, they cannot exclude
the secondary liability of the members themselves.
Ignaz SeidlHohenveldern, Corporations in and under International Law
(1987) 121: Just as a State cannot escape its responsibility under
international law by entrusting to another legal person the fulfilment of
its international obligations, the partner states of a common interState
enterprise are jointly and severally responsible in international law for
the acts of the enterprise.
Tribunal held that: ((1984) 23 ILM 1071, 1083) In the absence of any
provision expressly or impliedly excluding the liability of the four States,
this liability subsists since, as a general rule, those who engage in
transactions of an economic nature are deemed liable for the obligations
which flow therefrom. In default by the four States of formal exclusion of
their liability, third parties which have contracted with the AOI could

Tin Council litigation

This litigation arose out of the collapse of the International Tin Council in
1985
The ITC conducted its activities in accordance with successive International
Tin Agreements, which were treaties between the member States
The Sixth International Tin Agreement of 1982 (ITA6) brought together 23
producer and consumer States and also the EC
These treaties aimed to regulate the tin market by virtue of export controls
and the establishment of buffer stocks of tin financed by member States
Much litigation worldwide, although main litigation was in the English courts
(the Court of Appeal and the House of Lords: Maclaine Watson v DTI [1988]
3 WLR 1033 (CA), (1989) 3 All ER 523 (HL).)
The main submission for present purposes was that the members of the ITC
at the member States were concurrently liable for the debts under both
English and international law
It was argued that under international law, members of an international
organisation bear joint and several liability for its debts unless the
constituent instrument expressly excludes such liability
In the Court of Appeal, Kerr LJ gave the leading judgment, and he summed
up the issue as follows:
o The ITC was a legal entity in international law and that it has
farreaching capacities, including the capacity to enter into contracts
in its own name. The fact that the ITC had its own separate
international personality meant that the member States of the ITC
could not be directly y liable for the debts of the ITC
o However, the combination of the fact that the ITC is a legal entity,
and that it can contract in its own name, did not necessarily imply
that its members may not be concurrently or secondarily liable for
nonperformance of the ITCs contractual obligations
o This might be on the basis that the ITC should be regarded as a
mixed entity, which is a corporate body known to civil law systems,
which has a degree of legal personality but for which the constituent
members continue to have liability for its debts like a partnership
o There was nothing in ITA6 to support the suggestion that the States
parties to it intended that they should be liable for the contractual
obligations of the ITC if these remained unperformed
o There seemed to be quite the opposite intention: there was an
obligation on member States to provide the ITC with sufficient funds
to pay its staff, an obligation to pay an agreed guarantee amount to
the ITC, but there was nothing about ensuring the ITCs ability to
meet its debts
o In sum, no basis for concluding that there is any rule of international
law, binding upon the member States of the ITC, whereby they can be
held liable let alone jointly and severally in any national court to
the creditors of the ITC for the debts of the ITC resulting from
contracts concluded by the ITC in its own name
Ralph Gibson LJ concurred. Nourse LJ dissented, and agreed with the
Westland Helicopters tribunal.
The House of Lords agreed with Kerr and Ralph Gibson LJJ: No plausible
evidence was produced of the existence of such a rule of international law
before or at the time of ITA6 [the Sixth International Tin Agreement] in 1982
or afterwards. (Lord Templeman)
Institut de Droit International resolution (1995): [T]here is no general rule
of international law whereby States members are, due solely to their

ILC Articles on Responsibility of International Organisations

Article 61 (general rule): 1. Without prejudice to Articles 57 to 60, a State
member of an international organisation is responsible for an internationally
wrongful act of that organisation if:
o (a) It has accepted responsibility for that act; or
o (b) It has led the injured party to rely on its responsibility.
2. The international responsibility of a State which is entailed in accordance
with paragraph 1 is presumed to be subsidiary.
Article 57: A State which aids or assists an international organisation in the
commission of an internationally wrongful act by the latter is internationally
responsible for doing so if:
o (a) That State does so with knowledge of the circumstances of the
internationally wrongful act; and
o (b) The act would be internationally wrongful if committed by that
State.
Article 58: A State which directs and controls an international organisation in
the commission of an internationally wrongful act by the latter is
internationally responsible for that act if:
o (a) That State does so with knowledge of the mcircumstances of the
internationally wrongful act; and
o (b) The act would be internationally wrongful if committed by that
State.
Article 59: A State which coerces an international organisation to commit an
act is internationally responsible for that act if:
o (a) The act would, but for the coercion, be an internationally wrongful
act of that international organisation; and
o (b) That State does so with knowledge of the circumstances of the
act.
Article 60: 1. A State member of an international organization incurs
international responsibility if it circumvents one of its international
obligations by providing the organisation with competence in relation to that
obligation, and the organisation commits an act that, if committed by that
State, would have constituted a breach of that obligation.
2. Paragraph 1 applies whether or not the act in question is internationally
wrongful for the international organisation.
Example 1: Can the UN also be complicit in the breach of international law
by a State?
Example 2: Who is responsible to pay the debts of the international
organisation?
Example 3: Can the individual member States be held responsible for the
acts and omissions of NATO?

D. Privileges and Immunities of International Organisations

States, diplomats, consular officials, and international organisations all

benefit from certain privileges and immunities
The justification for State immunity does not apply in the context of
international organizations
o Intl orgs are not sovereign equals;
o They are unable to reciprocate with privileges and immunities
o The restrictive doctrine of State immunity is also inappropriate in the
context of intl orgs
The basis for the immunities accorded to intl orgs is that they are necessary
for the effective exercise of their functions
Sources of Privileges and Immunities
Treaties (as well as customary international law)
o Three types of treaty:
o First, the constitutive instrument of the intl org in question, e.g., UN
Charter, Art 105:
(1) The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
(2) Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their
functions in connexion with the Organization.
o Second, general multilateral agreements dealing with immunities of
particular international organisations, e.g., Convention on the
Privileges and Immunities of the United Nations (1946), and the
Convention on the Privileges and Immunities of the Specialised
Agencies (1947)
o Third, bilateral agreements between the international organisation
and particular States (such as headquarters agreements and SOFAs)
Headquarters agreements typically provide for the application of local laws
within the headquarters area, but subject to:
1. the application of relevant staff administrative regulations;
2. the immunity of the premises and property of the organisation from
search, requisition, and confiscation and other forms of interference by the
host State;
3. exemption from local taxes except for utility charges; and
4. freedom of communication.
Functional basis of privileges and immunities
Domestic court decisions:
o Mendaro v World Bank, 717 F2d 610 (US Ct Apps, 1983)
o Iran US Claims Tribunal v AS, 94 ILR 321 (Dutch Sup Ct)
o FAO v INPDAI, 87 ILR 1 (Italian Court of Cassation )

 Mukuro v European Bank for Reconstruction and Development [1994]

ICR 897 (UK Employment Apps Trib)
o ZM v Permanent Delegation of the League of Arab States to the UN,
116 ILR 643 (Swiss Labour Court)
What types of immunity are granted?
Usually to four different categories of person:
o the international organisation itself;
o high officials of the organisation;
o officials (including experts on mission for the organisation);
o representatives of member States of the organisation.
Immunity from jurisdiction:
E.g., Convention on the P&I of the UN, Art I, Section 2: The United Nations,
its property and assets wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except insofar as in any
particular case it has expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend to any measure of
execution.
Pressure to move to a restrictive doctrine of immunity (which is
problematic)
Alternative argument that immunity should be conditional on their being
alternative methods for the settlement of disputes, e.g., as found in the
Convention on the P&I of the UN, Art VIII, Sec 29:
o The United Nations shall make provisions for appropriate modes of
settlement of:
(a) disputes arising out of contracts or other disputes of a
private law character to which the United Nations is a party.
Immunity from execution:
See again Convention on the P&I of the UN, Art I, Section 2: The United
Nations shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. It is,
however, understood that no waiver of immunity shall extend to any measure
of execution.
Inviolability of premises, property and archives:
o Convention on P&I of the UN, Art II, Section 3: The premises of the
United Nations shall be inviolable. The property and assets of the
United Nations, wherever located and by whomsoever held, shall be
immune from search, requisition, confiscation, expropriation and any
other form of interference, whether by executive, administrative,
judicial or legislative action.
o Article II, Section 4: The archives of the United Nations, and in
general all documents belonging to it or held by it, shall be inviolable
wherever located.
Currency and fiscal privileges:
o Convention on the P&I of the UN, Art II, Sec 5: Without being
restricted by financial controls, regulations or moratoria of any kind,
(a) the UN may hold funds, gold or currency of any kind and
operate accounts in any currency;
o

(b) the UN shall be free to transfer its funds, gold or currency

from one country to another or within any country and to
convert any currency held by it into any other currency.
Convention on the P&I of the UN, Art II, Sec 7: The United
Nations, its assets, income and other property shall be:
(a) exempt from all direct taxes; it is understood,
however, that the United Nations will not claim exemption
from taxes which are, in fact, no more than charges for
public utility services ;
(b) exempt from customs duties and prohibitions and
restrictions on imports and exports in respect of articles
imported or exported by the United Nations for its official
use ; and
(c) exempt from customs duties and prohibitions and
restrictions on imports and exports in respect of its
publications.

13

Freedom of communication:
Article II, Section 9: The United Nations shall enjoy in the territory of each
Member for its official communications treatment not less favourable than
that accorded by the Government of that Member to any other Government
including its diplomatic mission in the matter of priorities, rates and taxes on
mails, cables, telegrams, radiograms, telephotos, telephone and other
communications
NB that not all international organisations are the same! Need to check each
individual treaty.
Issues in domestic and regional courts
Waite & Kennedy v Germany: Applicants complained that by granting
immunity to an international organisation (here, the European Space Agency)
in an employment dispute, Germany had violated the Convention right of
access to a court, in Article 6 of the European Convention on Human Rights
ECHR held that there was an available alternative remedy
Entico v UNESCO [2008] EWHC 531 (Comm)
o Entico claimed to have entered into a contract with UNESCO in
October 2005, to produce calendars
o UNESCO would give Entico permission to use the UNESCO name and
logo on the calendars
o UNESCO decided that it did not want to go through with the
agreement
o Entico claimed that it had suffered a loss of around 86,000
o Entico asked them to agree to go to arbitration, but UNESCO refused
o Entico commenced proceedings before the High Court to recover the
86,000
o Entico argued that the P&I of UNESCO violated its rights under Article
6 of the ECHR
o It sought, inter alia, a quashing of the Order in Council conferring P&I
on UNESCO in the UK
o The High Court rejected Enticos submissions:

 the immunity conferred on UNESCO was clear, unequivocal,

and unconditional;
So not necessary to decide if Art 6 was engaged: but even if it
was, the Court approved the approach of Lord Millett in Holland
v LampenWolfe [2000] and Lord Bingham and Lord Hoffmann in
Jones v Saudi Arabia [2007]
(Lord Hoffmann had said in obiter that there is not even a
prima facie breach of Art 6 if a State fails to make available a
jurisdiction which it does not possess: Jones [2007] 1 AC 270,
298).
And even if Art 6 was engaged, the immunity was a legitimate
and proportionate restriction on the rights conferred by Art 6.
And further: there was an available alternative remedy
(international arbitration).
Other persons who have P&I
Aside from intl orgs, P&I are also usually conferred on (i) high officials of the
intl org in question; (ii) officials (and experts); and (iii) representatives of
member States
Art IV, Sec 14 of the Convention on the P&I of the UN (which deals with reps
of Member States) provides that these privileges and immunities are
conferred: not for the personal benefit of the individuals themselves, but in
order to safeguard the independent exercise of their functions in connection
with the United Nations. Consequently a Member not only has the right but is
under a duty to waive the immunity of its representative in any case where in
the opinion of the Member the immunity would impede the course of justice,
and it can be waived without prejudice to the purpose for which the immunity
is accorded.
Applicability of Article VI, Section 22 of the Convention on the Privileges and
Immunities of the United Nations [1989] ICJ Rep 177:
o Concerned Special Rapporteurs appointed by the UN SubCommission
on the Prevention of Discrimination and the Protection of Minorities
o ICJ held that the privileges and immunities that would apply would be
those that were necessary for the exercise of their functions, and in
particular those that are necessary for the establishment of any
contacts which may be useful for the preparation, the drafting, and the
presentation of their reports to the Sub Commission
Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights [1999] ICJ Rep 62
o Concerned Mr Cumuraswamy, a Special Rapporteur of the UN
Commission on Human Rights on the Independence of Judges and
Lawyers
o His mandate consisted of tasks including to inquire into substantial
allegations concerning, and to identify and record attacks on, the
independence of the judiciary, lawyers and court officials in Malaysia
o He gave an interview to a magazine published in the UK but circulated
also in Malaysia, and commented on certain litigation in Malaysia
o Two companies in Malaysia sued him for defamation, and claimed
damages amounting to USD 12 million each

The UN Legal Counsel, and the SecGen, requested the competent

Malaysian authorities to promptly advise the Malaysian courts of the
Special Rapporteur's immunity from legal process
o Additional lawsuits were being filed against Mr Cumuraswamy,
claiming a further USD 64 million
o Federal Court of Malaysia dismissed his appeal on the issue of his
immunity, stating that he is neither a sovereign nor a fullfledged
diplomat but merely an unpaid, parttime provider of information.
o The ICJ held that he was entitled to immunity with regard to the words
spoken by him during the course of the interview
o In deciding whether an expert on mission was entitled to immunity in
particular circumstances, the UN SecretaryGeneral had a pivotal
role
o Malaysia had an obligation under Article 105 of the UN Charter and
under the Convention to inform its courts of the position taken by the
SecretaryGeneral, and failure to do so rendered the State liable under
international law
The domestic legal position
Usually general framework legislation (International Organisations Act 1968
(UK), International Organisations (Privileges and Immunities) Act 1963 (Cth)),
and secondary legislation then used to implement the P&I for each intl org
E.g., International Centre for Settlement of Investment Disputes (Privileges
and Immunities) Regulations 1991 (Cth)
o