LAW459 INTERNATIONAL LAW SUMMARY

CMB
Finding a treaty
http://treaties.un.org/
Databases
UNTS database
Then search under title search the name of the treaty
Latin doctrines
Res iudicata
Equity infra legem
Ex aequo et bono
LECTURE 1 INTRODUCTION
I The scope of public international law
PIL is principally concerned with the relationship between sovereign
states (as opposed to federated states).
Public law governs the powers and responsibilities of the state
i.e. administrative law, constitutional law.
o Public international law primarily to do with the
relationship between states.
Private law governs the behaviour of private citizens including
private corporations i.e. contract, torts etc.
o Private international law deals with situations where the
laws of more than one jurisdiction or country conflict in a
private situation i.e. between two private corps (often
referred to as conflict of laws). I.e. French company sells
machinery to Australian company and the contract doesnt
specify the jurisdiction that governs the contract.
Sovereign states Eg: Australia, United Kingdom, United States
o Nearly all sovereign states are members of the United
Nations (current membership = 193)
o Nation can be used to demark a group of people with
shared heritage and culture and sovereign states often
house more than one national state.
o Space, government, capacity to enter into relations with
other states, people.
Federated states form parts of federations. These do not have
legal personality in public international law. Eg: New South Wales,
Virginia (US), Schleswig-Holstein (Germany) i.e. QLD cant enter
into a treaty with Texas as they are only federated states.
II Personality in international law
Certain non-state entities have legal personality (i.e. rights and
responsibilities) in PIL
o Eg: United Nations, European Union, WTO
Increasingly, individuals and corporations can enjoy rights and
hold responsibilities in international law
o Generally individuals and corporations do not have
personality in IL however this has started to change i.e. if A

is in Europe and adversely effected by actions of European

state then A may have a right to pursue a complaint to the
ECHR, there is also international criminal law.
o The right to bring a complaint against a state before the
European Court of Human Rights
o Responsibilities under international criminal law (re serious
crimes like genocide, war crimes, etc). International
Criminal Court in Netherlands.
Key dates in European and world history

18th century saw the rise of nationalism; individuals owe

allegiance to the collective population that came to identify as
the nation.
o The idea of self-determination led to the French Revolution,
which led to the military rise of nationalistic France. This
was defeated by Britain and Prussia.
1815 precursor of the League of Nations, which led in turn to
the establishment of the UN.
o Much of the focus in the 19th century was on the
preservation of peace as well as the era of globalisation
(greater interdependence and cooperation between states
often in relation to technical issues).
International law has as much to do with maintenance of trade
(technical cooperation as it does to maintenance of peace and
prevention of war.
The Vienna system of international relations balance of powers
with Austria, Prussia, UK, France etc. Initially this successfully
maintained the peace however it started to break down from the
middle of the 10th century onwards and was replaced by the triple
alliance and the triple entente.
o These alliances delineated the sides of WWI.

The end of WWI saw two vital developments; 1919 LON and in
1928 signing of the general treaty. Both failed to stem the growth
of WWII. These laid the foundations for the UN established at the
end of WWII.
III United Nations

UNCharter art 1
The Purposes of the United Nations are:
1. To maintain international peace and security,
and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of
an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of
these common ends.
v2

The Charter is divided into 19 chapters, 111 articles. The first

chapter sets out organisations purposes and principles.
In order to fulfil these purposes, they have 6 principle organs as
set out below. Most of the operate at the Head Court of the UN.
UN Charter art 62
1. The Economic and Social Council may make or initiate studies and reports with
respect to international economic, social, cultural, educational, health, and related
matters and may make recommendations with respect to any such matters to the
General Assembly to the Members of the United Nations, and to the specialized
agencies concerned.
2. It may make recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with respect
to matters falling within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations, international
conferences on matters falling within its competence.

UN Charter art 51

Nothing
in theshall
present
Charter
shall
impair the relations
inherent right
or collective
self- the
All
Members
refrain
in their
international
from of
theindividual
threat or use
of force against
defence
if
an
armed
attack
occurs
against
a
Member
of
the
United
Nations
until
the
Security
territorial integrity or political independence of any state, or in any other manner inconsistent with
Council
has taken
necessary to maintain international peace and security.
the
Purposes
of themeasures
United Nations.

UN Charter art 2(4)

Six principal organs

General Assembly broadest function (roughly the parliament,

except that it is deliberative rather than legislative); it can only
discuss and recommend avenues and alterations but cannot
change the laws.
Security Council more power body, meets in NY. They can
instruct even though its remit is restricted to maintenance of
international peace and security. Five permanent members US,
UK, France, Peoples Republic of China (Taiwan) and Russian
Federation upon demise of Soviet Union in 1991.
o Reflection of the powers at the time the UN charter was
established.
o Changing the charter requires permission of all states part
of the UN.
o Western Europe and other Turkey, Canada, Australia and
NZ as well as Western Europe. This means that at any one
time, Europe is usually represented by five or six states.
Economic and Social Council (ECOSOC) 54 members elected for
3-year terms. Elected by general assembly. Functions defined by
art 62 of charter. Its powers are not mandating but they exist of
activities such a initiating reports and making recommendations.
These relate to economic, social, cultural educational and health
etc. ECOSOC liaises with 14 autonomous organisations that work
in these areas i.e. International Labour org, WHO< World Bank,
IMF, UNHCR.
Trusteeship Council significant in years following WWII when it
played part in de-colonisation of Africa etc. 10 of the 11
territories were former mandates (territories put in control of
another state) of the LON. Overtime nearly all of these trust
territories became independent states. Now it has nothing to do.
Secretariat overall administration of the UN which employs
40,000 people across the globe.
International Court of Justice in Peace Palace in The Hague
o Governed by the Statute of the ICJ
o 15 judges, each elected to a nine year term tend to be
former academics or leading barristers practicing in that
area.
o List of cases referred to the ICJ
Contentious cases brought by one state against
another (note only states can be party to this cases
although individuals, corps etc. may be called upon
as witnesses eg:
Nicaragua v USA, 1983 US support of the
terrorist that were seeking to destabilise the
democratically elected government of N.
Costa Rica v Nicaragua, 2010 border dispute
which erupted after N began dredging in order
to create a canal upon a river which runs

between the two straights. It is an area of 5

square kms.
Advisory Proceedings requests must come from
specified in agencies i.e. GA and SC eg:
Legality of the Threat or Use of Nuclear
Weapons (1995)
Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory
(2003) GA asked ICJ to give opinion on legality
of the construction of a barrier by Israelis on
Palestinian territory. The ICJ decided this was a
contravention of IL.
Think of UN as meeting place where states can discuss problems
and hope to resolve their differences.
IV Austins command theory of law
International law is a form of customary law.
Legal positivism is the idea that law is distinct from morality.
We are able to determine whether a rule constitutes positive law
by whether it is the command of a sovereign.
o A rule only becomes law once it is passed through the
correct Parliamentary procedure, however it still has to be
stamped with the Royal assent before it is a complete law.
Austin distinguished natural law (eg religious rules, morality,
etc) from positive law (ie law set (posited) by men to men)
Only sovereigns may posit law
A sovereign is a person, or body of persons, to whom a political
community is in the habit of obedience or submission, who is not
in a habit of obedience or submission to any determinate human
superior, and who is able to use coercion to attain compliance.
Clear rule of international law that states are allowed to use
armed force to protect their state (in self defence).
o Where does it say that this is a rule of international law? UN
Charter art 51 (see above).
o International law is ultimately derived from some kind of
authority other than the UN. If the rule permitting self
defence derived from neither US or UN, then we are faced
with two more choices; stand by command theory and say
INT law isnt law at all because there is no sovereign
(problem with that is because a large number of people
behave as if INT law is law)
Invasion by US, UK and AU on Sadam Hussein where
both sides claimed they were doing it within the
confines of INT law i.e. defence and independent
sovereignty.
America is the main military power, which means they may be
granted immunity for actions that other states would not. This
however does not mean that American policies are lawful, as
they are quite often in breach of international law.

V Arguments for claiming that international law constitutes

a legal system, rather than just a code of ethics
1. Governments that claim legitimacy inevitably adopt the language
of law in relation to international affairs and profess obedience to
international law
2. Many rules of international law are amoral in nature
a. eg the definition of what constitutes territorial sea (12
nautical miles from a baseline derived from the coastline)
3. Distinguishing international law from morality enables us to
impose on states moral duties over and above their legal
obligations
a. INT law sets minimal standards of behaviour whereas
morality might impose much higher standards
b. E.g. not a rule of INT law that wealthy states must help
poorer states or natural disaster inflicted states, however it
is a moral rule
Common objections to the proposition that international law
constitutes a legal system
1. International law is routinely breached
a. Arguably, international law is routinely obeyed
b. Even if a legal rule is routinely breached, surely it remains
a legal rule
c. US invasion of Iraq and obvious HR violations, which occur
in many areas of the world.
d. International law is routinely obeyed think of international
dialling codes, which were established in the UK. No two
countries claim the same code; even North Korea is a
member of the ITU and has its own country code. Smooth
functioning and widespread compliance with the vast
majority of international law.
2. Powerful states are free to flout international law whenever it
suits them, as its nothing more than a code of ethics.
a. US carries out assassinations by means of drones, use
torture etc. at Guantanamo Bay.
b. The existence of persistent offenders does not mean there
is no law, surely states flouting the law
3. International law lacks an enforcement mechanism
a. Lacks a sovereign Austin
b. There are enforcement mechanisms but they are either
self-help remedies or they require some level of voluntary
compliance
c. E.g. consequences of state breaching a treaty with
consequences of company breaching a contract. If one
state alleges another state breaches a treaty then the
treaty might say that any dispute must be referred to
particular arbitration body (i.e. dispute settlement body).
But if a company refuses to play ball under a contract then
the other company can take the first company to Court and
damages can be awarded.

i. Ultimate right to resort to violence does not exist if

another state refuses to obey a treaty. Art 2(4) UN
Charter.
d. System of customary international law, in the sense
that the rules derive not from a centralised
authority but rather from a consensual practices
(through centuries of interaction between states)
Readings
International Law Shaw
Law and Politics in the world community
Idea of coercion as an integral part of any legal order
The Role of Force
Within the UN, sanctions may be imposed by the SC upon the
determination of a threat to the peace, breach of peace or act of
aggression i.e. economic sanctions against Rhodesia in 1966.
Current trend in INT is to restrict the use of force as far as
possible, thus leading to the result that the more force is
controlled in international society, the less legal INT law
becomes.
The International System
INT system is horizontal consisting of over 190 independent
states, all equal in legal theory and recognising no one in
authority over them. Where the states themselves create the law
and obey or disobey them.
Primarily formulated by INT agreements, creating rules binding
upon signatories and customary rules which are basically state
practices recognised by the community at large as laying down
patterns of conduct that have to be complied with.
Advantages
o Element of reciprocity where states quite often do not
pursue one particular course of action which might bring
them short-term gains, because it would disrupt the mesh
of reciprocal tolerance which could very well bring longterm disadvantages i.e. immunity of foreign diplomats.
o Rewards for abiding by INT law as it may attracts friendly or
neutral states to side with one country involved in a conflict
rather than the other side based on public opinion for
support.
While states object to particular rules, important to note that no
state has objected to the system as a whole. But the creation of
new customary rules is not dependent on express consent of
every state.
Early origins
Early treaties promoted respect for territorial integrity and the
termination of state aggression and the setting up of forms of
defensive alliances.
The Romans adopted the Greek concepts of Natural Law. This
became of worldwide relevance because the ideas of the law of

nature were rooted in human intelligence. Many philosophers

used Natural law in their own legal theories to justify the jus
gentium, which was deemed to enshrine rational principles
common to all civilised nations.
Note: growth of Islam where Moslem countries developed
humane rules of warfare where peoples of the book (jews and
Christians) were treated better than non-believers. After period of
conquest was over the norms governing diplomats developed
and rule governing international agreements grew out o concept
of respecting promises.
The middle Ages and the Renaissance
Mercantile courts set up through Europe to settle disputes
between tradesmen; maritime customs began to be accepted
throughout Europe as well.
From the struggles between the city-states of Italy for supremacy
and the Papacy becoming a secular power developed: diplomacy,
statesmanship, and theory of balance of power and idea of
community states.
The Renaissance stimulated a rebirth of Hellenic studies and the
idea of Natural Law, thus a distinct value-system to underpin
international relations was brought into being and the law of
nations was heralded as part of the universal law of nature.
Positivism and Naturalism
Naturalist school (Samuel Pufendorf) identify INT law
completely with the law of nature and the positivist school who
distinguished between INT law and natural law and emphasised
practical problem and current state practices (viewing events as
they occurred and discussing actual problems that had arisen.
Droit des Gens by Vattel was based on natural law principles
where he introduced the doctrine of the equality of states into
INT law, declaring that a small republic was no less a sovereign
than the most powerful kingdom.
Nineteenth Century
Democracy and nationalism spurred on by the wars of French
Revolution and empire, spread throughout the Continent.
o Nationalism brought notions of expansionism and racial
superiority
o Democracy brought individual political influence, bringing
home the realities of responsibility for wars became the
concern of all.
International Committee of the Red Cross, helped promote the
series of Geneva Conventions starting in 1864 dealing with the
humanisation of conflict.
Positivist theories dominate with the proliferation of the powers
of states and the increasing sophistication of municipal
legislation gave force to the idea that laws were basically
commands issuing from a sovereign body or person.
Twentieth Century

 Most importance legacy of the 1919 Peace Treaty was LON.

Communist approaches to INT law
Marxist theory described law and politics as the means whereby
the ruling class maintained their domination of society.
Tunkin the aggregate of norms which are created by agreement
between states of different social systems, reflect the concordant
wills of states and have a generally democratic character,
regulate relations between them in the process of struggle and
co-operation in the direction of ensuring peace and peaceful coexistence and freedom and independence of peoples and are
secured when necessary by coercion effectuated by states
individually or collectively.
The Third World
Evolution of INT affairs since WWII decisive event has been
disintegration of the colonial empires and the birth of scores of
new states in what was for a time termed the Third World.
Structure and doctrines of INT law came under attack.
Ideas of international law from 19th century that enshrined power
and domination of the West were clearly rejected.
International Law Today Shaw
The Expanding Legal Scope of International Concern
Major problem is determining when and how to incorporate new
standards of behaviour and new realities of life into the already
existing framework, so the law remains relevant but so the
system is not disrupted.
Problems; acquisition of nuclear technology, technological
capacity to mine ocean and who are the beneficiaries, rise of INT
terrorism.
Expanded to include new states as well as new fields; protecting
both public and private, international trade, environmental
protection, human rights and outer space exploration.
Growth in number of intergovernmental institution, with UN most
influential (192 members)
Modern theories and Interpretations
New approaches
Behaviouralist movement elements of psychology,
anthropology and sociology into study of INT relations and
paralleled similar developments with the realist school;
consideration of foreign policy techniques and the international
systems analysis approach.
Recognition of responsibility of government for its citizens and
growth in welfare legislation.
Fragmentation of international law?
Fear that INT law might dissolve into a series of discrete localised
or limited systems with little or no interrelationship.
INT Law Commission Report on Frag reach two conclusions; that
the mergence of special treaty-regimes has not seriously
undermined legal security, predictability or the equality of legal

subjects and that increasing attention will have to be given to the

collision of norms and regimes and the rules, methods and
technique for dealing with such collisions.
INT law is a culture in the broadest sense in that it constituted a
method of communicating claims, counter-claims, expectations
and anticipations as well as providing a framework for assessing
and prioritising such demands.

LECTURE 2 SOURCES OF INTERNATIONAL LAW

2.1 Introduction to IL sources
IL becomes law once we accept the potential for legal systems to
be based on customs
o Customary legal systems
For the vast majority of human history men and women have
operated in accordance with customary law
A legal source is something that you go to to find out the law
HLA Hart (1907 1992)
Hart identified two forms of rule:
Rules of obligation
o The primary norms that govern the behaviour of legal
subjects
o These tell us our rights and responsibilities under the law,
eg:
Defamation Act 2005(NSW)
Broadcasting Services (Commercial Radio Current
Affairs Disclosure) Standard 2012 (Cth)
Doctrine of offer and acceptance in the common law
of contract
Rules of recognition
o These tell us how to recognise which rules are legally
binding and which are not, eg:
A Bill only becomes binding once it has passed three
readings in the legislative chambers and has royal
assent
A parents instruction to a child does not carry the
weight of law
In the event of a statute that contradicts a common
law rule, the statute takes precedence
One statutory rule can be repealed by another,
subsequent statutory rule
o According to Hart there will always be an overarching rule
of recognition. Australias overarching rule of recognition:
Australian law is represented by the Constitution and
the constitutionally valid enactments of its
Parliaments, as supplemented by subsidiary
legislation and the common law, and as all these are
interpreted by Australias courts

What is IL overarching rule of recognition? Although Hart

recognises IL as a set of real laws, according to him it is not a real
legal system because there is not overarching rule of recognition
Is that correct? Could it not just be as Hall suggests that IL is a
legal system it is just that it is a legal system that isnt as well
developed or as tightly structured as the typical domestic legal
system that we are used to probably the more useful view
If there is no overarching rule of recognition how do we know how
to recognise a rule of IL when we come across one? Is IL what the
text books say it is, what the UN says it is, etc? So we refer to the
below
Statute of the ICJ, 1945, art 38 (1)
TheCourt,whosefunctionistodecideinaccordancewithinternationallawsuchdisputesasaresubmittedtoit,shallapply:
a.

internationalconventions,whethergeneralorparticular,establishingrulesexpresslyrecognizedbythecontesting
states;

b.

internationalcustom,asevidenceofageneralpracticeacceptedaslaw;

c.

thegeneralprinciplesoflawrecognizedbycivilizednations;

Conventions = treaties
Technically all this does is instruct the ICJ on what rules it should
apply when deciding disputes that appear before it
Since it specifies that the ICJ is supposed to decide those
disputes in accordance with IL then it seems reasonable to
interpret the listed sources as together constituting IL. These
sources are
o International Conventions - Treaties
o International Custom
o General Principles of law recognised by civilised nations
o Certain judicial decisions and the teachings of the most
highly qualified publicists (recognised experts in IL)
No clear hierarchy among these 4 sources
2.2 Treaties as sources of IL
Treaties as a source of law
A treaty is analogous to a contract between states. Convention is
the same as a treaty
Just as contracts help us reveal the rights and responsibilities of
those who are party to that contract as well as to a lesser extent
the rights and responsibilities of non-parties to the contract, so
too do treaties
There is no clear division between what is a general and what is a
particular treaty
Treaties can be described as:
General

o These are multilateral treaties relating to universal

substantive legal principles
E.g. UN Charter (with its general prohibition on the
use of force)
o They may also be termed legislative or law-making
o Such treaties can be described as formal sources of law:
they endow obligations or entitlements with a legally
binding character
Particular
o These are usually bilateral treaties relating to a specific
issue
E.g. Treaty of Canterbury (1986) between France and
UK, which dealt with building of the Channel Tunnel
between the two countries
o Such treaties can be described as material sources of law
(aka sources of obligation): they specify a states legal
obligations and entitlements
2.3 Custom as a source of IL
International Customary Law

StatuteoftheICJ,1945,art38(1)
TheCourt,whosefunctionistodecideinaccordancewithinternationallawsuchdisputesasaresubmittedtoit,
shallapply:

a.

...;

b.

internationalcustom,asevidenceofageneralpracticeacceptedaslaw;

c.

...;

I.e. ICJ should only take account of international customs that:

o Represent general practice
o Are accepted as law
o Opinion juris (sive/et necessitatis)
In other words, look at what states do, and why they do it
o In a sense there is an actus reus and mens rea to
determining international law
State practice (usus)
Look at what governments say as well as do not interested in
private cirizens
o Speeches by office holders, judgments of courts etc
For a custom to constitute international law it must represent
general practice more occasionally than sporadically observed
o In accordance with a constant and uniform practice
o Practice can be general even though not universal

o ICJ is referred to a requirement of extensive and virtual

uniformity
o Where there are departures you nevertheless want to
maintain the practice of international law
o Departures from general practice should normally be:
Met with protest by other states (if no states
complain, case is probably nobody regards it as
legally enforceable), or
State departing from general practice should seek to
justify that departure by reference to exceptions
allegedly forming part of the rule itself
Doctrine of Persistent objection
Principle is always looked at in the context case below
This doctrine suggests that, even though a practice is near
universal, a state may be exempt from any resulting rule of
international law if it has, from the outset:
o Actively rejected the practice (i.e. never acquiesced to it),
and
o Never relied on the existence of such a rule for its own
benefit
NB:
o This does not apply to jus cogens (certain fundamental,
overriding principles of IL, from which no derogation is ever
permitted) there is no universally accepted list of jus
cogens rules
o There is doubt as to whether the doctrine is correct: there
is a lack of state practice to support it and the ICJ has never
applied it (only obiter comment)
Anglo-Norwegian Fisheries case, ICJ 1951
This case has to do with determining the extent of territorial seas
Standard rule is that the actual limit of a states territorial waters
is measured form the low watermark along its coastline but it is
accepted that if a coastline is particularly indented then the
boundary of the states territorial sea doesnt have to be
correspondingly indented and instead the state can measure its
territorial waters from an imaginary straight line drawn between
headlands or islands provided they are close to the shore of the
mainland
Just about everybody accepts that this is acceptable practice
Real argument is how long those imaginary straight lines can be
Norways coast particularly indented and numerous offshore
islands. They took advantage of this coastline to draw very long
straight base lines which had the effect of pushing out the
outward boundary of Norways territorial waters
They wanted to do this because that extended their exclusive
fishing rights and managed to exclude from a larger area of sea,
British fishing vessels

UK objected to this practice claiming that there existed in

customary international law a rule that any straight line base line
must not exceed 10 miles
ICJ pointed out that this 10 mile rule was indeed observed by a
number of states but also pointed out that other states had never
recognised the rule including Norway. Norway had actively
opposed the 10 mile rule from the very outset it had never
acquiesced to the rule
This could mean 1 of 2 things:
o The 10 mile rule although patchily observed did not yet
represent general practice and therefore was not a rule of
IL
o The 10 mile rule is in fact binding in IL but Norway because
it never acquiesced to the rule and always opposed it, had
exempted itself from the rule so that the rule applied to
everybody else but not to Norway
ICJ decided the former there was no 10 mile rule enforceable at
IL
Its obiter comments left open the possibility that the so called
persistent objector rule could apply
o This meant there can be cases where rules are legally
binding on all states apart from states that never agreed to
the rule who we term persistent objectors
Opinio juris (sive necessitatis)
Refers to the belief by states that a custom is legally binding, i.e.
it is practised out of necessity, not choice
Opinio juris may originate as opinion necessitatis where the
necessity derives from political, economic or military
considerations
Establishing opinion juris
o First need to ascertain why a state does what it does
o Especially obvious when states do things that are
seemingly against their immediate interests
o If a state refrains from doing something even though they
have the physical means to do it then it probably means
the state considers itself constrained by IL
In the domestic sphere you can have widespread
misunderstanding about the law but that in itself doesnt change
the law
But IL given the lack of sovereign power works on the basis of
consensus
Can develop quickly: e.g. launching of Sputnik 1 the Earths first
official satellite launched by Soviet Union 1957. Until this, no
one had every launched a satellite so there was no established
general practice as to whether the permission of state had to be
sought before a satellite flew over that state
Soviet Union launched it without first getting permission of all the
states that it was going to fly over. After launch, no state

protested about the satellite so within hours it had become

apparent that:
o States did not feel they had the obligation to ask
permission to have satellites fly over
o Other states did not feel that they had the right to object to
such satellites even though states strongly assert the right
to restrict unauthorised aircraft fro entering their airspace
Emerged that opinion juris that states must tolerate satellites
Custom is only law if it is generally practiced and if it is
believed that that practice is legally mandated as
opposed to being voluntary
Does this give rise to a strange paradox?
o E.g. Sputnik launch assume it created a new norm
states are entitled to ly non-threatening satellites over
each others territory without first obtaining permission
o Can it really be that all of IL grows out of a
misunderstanding of IL
o It may be that at the outset states only acquiesce to a
situation not because they feel that they are legally obliged
to do so but they are too scared to do anything about it
perhaps due to military power or political power of the
other state

Generation of customary international law by treaty

provisions
If a treaty becomes customary law then that would mean that the
rule in question becomes binding not just on the states that are
parties to the treaty but other states too
This may happen even though prior to the treaty the practice in
question was not widely adhered to
Most important cases in this are the North Sea Continental Cases
decided by the ICJ in 1969
o Netherland Germany and Belgium could not agree on
limitations of what are now known as exclusive economic
zones which are the areas of sea bed over which a state
has exclusive mineral rights
o Geneva Convention on the Continental Shelf 1958, art 6(2)
Where the same continental shelf is adjacent to the
territories of two adjacent States, the boundary of the
continental shelf shall be determined by agreement
between them. 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 baselines from which the
breadth of the territorial sea of each State is
measured.

Put simply: in a situation in which states had not

agreed on the division of the sea bed then unless
special circumstances apply the boundary line shall
be equidistant between the nearest points of the
baselines from which the breadth of the territorial sea
of each state is measures
o Germany was not party to the Convention so art 6 would
only become binding on Germany if it reflected a rule of
customary IL
o ICJ held that that had not happened and therefore Germany
as a non-party to the 1958 Convention could not be bound
by art 6(2)
o ICJ specified three conditions that must be met before a
treat rule can be said to have generated a parallel
customary rule:
1. Provision in question should be of a fundamentally
norm-creating character;
Art 6(2) did not qualify mainly because the
norm it sets out (the equidistance principle) is
no more than a fallback or provisional position
2. There must be very widespread and representative
participation in the treaty in question;
The more parties there are to a treaty the more
likely the treaty reflects custom
Although Netherlands and Denmark were both
parties to the Geneva Convention the number
of parties to the Convention was considered too
small
3. There must be extensive and virtually uniform
adherence to the rule in question including by states
of interests are specifically affected
In this case number of states had abided by the
equidistance rule but most were parties to the
treaty so that factor in itself hardly constituted
evidence that the rule was being widely
recognised as part of customary IL
Regional Customary IL
Usually customary IL is universally applicable in which case it is
referred to as general IL. Occasionally customary IL will only bind
a particular group of states usually all found in particular area
of the world in which the rules can be called local or regional
customary IL
Otherwise they are usually referred to as special customary IL.
These rules usually prevail over rules of general customary IL
unless the rule in question (general rule) represents jus cogens in
which case jus cogens always predominates

E.g. of special customary IL arose in India and Portugal even

though those states are geographically far apart. Right of
Passage case (Portugal v India), 1960
o After Indian independence from Britain India tried to force
Portugal out of its Indian colonies by blocking land access
between them. However, because the UK when it
controlled India had always allowed Portugal free land
access between its Indian colonies and initially
independent India had done the same thing, a custom to
that effect had developed in relation to the states of India
and Portugal
o Portugal was able to continue to enforce in law its right to
land access between its Indian colonies even though a
similar enforceable right had not developed elsewhere in
the world
General principles of law
StatuteoftheICJ,1945,art38(1)
TheCourt,whosefunctionistodecideinaccordancewithinternationallawsuchdisputesasaresubmittedtoit,shallapply:
a.

...;

b.

...;

c. the general principles of law recognized by civilized nations;

...refers to are general principles of law found in all or at least
d.
This
nearly all domestic legal systems excluding those of nations not
deemed to be civilised
One of these general principles of law the general rule that
agreements should be honoured pacta sunt servanda
Art 38(1)(c) means what it termed jus gentium dates back to
Roman Empire where there were two sets of laws
o 1. Jus civilis governed relations between Roman citizens
o 2. Jus gentium governed relationships between on the
one hand Roman citizens and on the other non-citizens as
well as relations between those non-citizens (the peoples of
the various territories colonised by Rome)
Juris John Finnish (1940 - ) has identified 13 principles which he
claims to be general principles of law. These closely resemble the
general principles of law which feature in the work of the ICJ
1. Compensation for compulsory acquisition of property;
2. no liability for unintentional injury without fault;
3. no criminal liability without mens rea;
4. estoppel
5. those who seek equity must do equity
6. no aid to abuse of rights
7. fraud unravels everything

8. restoration of unjustified profits

9. pacta sunt servanda
10.
relative freedom to change existing
patterns of legal relationships by agreement
11.
protection of the weak against their
weakness
12.
right to present your case
13.
people should not act as judges in
their own cause
- it is ironic that the general principles constitute 1 of 3 major
sources of IL; paras a,b,c of art 38(1) of the Statute of the ICJ
the other 2 being treaty law and international custom
Subsidiary sources of IL
StatuteoftheICJ,1945,art38(1)
TheCourt,whosefunctionistodecideinaccordancewithinternationallawsuchdisputesasaresubmittedtoit,shall
apply:

a.

...;

b.

...;

c.

...;

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.
Sub para (d) refers to 2 other sources, but these are referred to
as only subsidiary means for determination of rules of law
Irony lies in the fact that judicial decisions, particularly those of
ICJ are in practical terms of vital importance in determining IL
Part of the reason judicial decisions are at least in theory only a
subsidiary means of establishing the law is that again in theory,
there is no doctrine of stare decisis (the principle that the
decisiosn of a court bind subsequent decisions by that court and
also that the decisions of a superior court bind those of inferior
courts) in IL
The UNs clear rejection of stare decisis is set out in art 59 of the
Statute of ICJ
Part of the reason there is no rule of stare decisis is that there is
not clear hierarchy among international courts
o I.e. cant really say that the ICJ is superior to the European
court of justice. All various courts do different things
o Fundamental principle of justice that likes should be
treated alike
o Therefore there is in practice a tendency for the ICJ as well
as other international courts to follow precedence

The other subsidiary source of IL consists of the teachings of the

most highly qualified publicists of the various nations
Publicist is rather misleading term it means someone who
publishes as oppose to someone who seeks out publicity. These
people are generally eminent academic experts in IL. Work of
publicist generally declining in importance
Other sources of IL
Actions of international organisations
o EU an international organisation founded by a series of
treaties to which all members of the EU are party
o IL via the principle of pacta sunt servanda requires the
members of these organisations to abide by the treaties
that theyve entered into. In addition, the governing bodies
of these international organisations routinely pass laws
which the member states are expected to obey
These actions can have direct impact regionally or globally
o REGIONAL:
E.g. EU institutions pass laws that are binding on EU
Member States, as well as European corporations and
people living within the EU
o GLOBAL:
UN institutions have no legislative powers, but the UN
Security Council can prohibit and mandate certain
actions by Member States
LECTURE 3 THE FORMATION OF TREATIES
Statute of the ICJ, 1945, Art 38(1)

Vienna Convention on the Law of Treaties 1969 (in force 27

Jan 1980)

The Vienna Convention does not govern all treaties, as not all
states are party to it.
Oral agreements arent governed by the convention, but that
doesnt mean that oral agreements dont constitute treaty. They
are merely governed by customary IL, not VC.

To be governed by the Vienna Convention, a treaty must:

o be between sovereign states,
o be in written form, and
o post-date 27 Jan 1980
NB: a treaty can still be a treaty even if it does not meet one or
more of the above criteria: Art 3.
However, to be a treaty there must be an intention to create
relations binding in international law.
I Examples of irregular forms of legally binding agreement
Oral agreement
o agreement by Norway not to contest Danish sovereignty
over Greenland and not to occupy any part of Greenland, in
return for Denmark not objecting to a Norwegian claim over
Spitsbergen (1919).
o 12 yrs later, Norwya laid claim to Eastern Greenland, which
was found to be a breach of the legally binding oral
agreement (treaty)
o VC did not apply to this treaty as it was oral.
There is no formula required for writing treaties. They
can be of any kind.
Legal Status of Eastern Greenland case (Norway v
Denmark), ICJ, 1933)
Official press communiqu
o agreement between Turkey and Greece re division of the
Aegean Sea Continental Shelf (1975)
Exchange of letters between heads of state
o agreement between Qatar and Bahrain re territorial division
(1987)
Form: main requirements for Vienna convention is that the treaty
must be in writing. It must also be between sovereign states.
o VC does not apply for agreements between states and
international organisations, or between sovereign states
and federated states.
o AU does not allow its federated states to enter into treaties,
but Switzerland, Germany and Russia do for limited
purposes.
Art 4 the VC only applies to treaties established after the VC
was put into force.
Key requirement in any treaty is that there must be an intention
by all parties to the treaty, to create rights or obligations that are
legally enforceable in international law art 2(1).
States often enter into commercial agreements with each other,
in which it might specify that the agreement is to be bound by
the domestic law of one of the states. Such agreements may be
binding and enforceable in domestic law, but they will not be
binding in international law.

Subsidiary question: is the treaty governed by VC (needs post

date 27th Jan 1980, be in writing and be between sovereign
states) or by customary law?
Usually highly formal ways of drawing up treaties.
II The normal treaty process: simplified
One or more states will propose a treaty
The terms are then negotiated (can be in conferences if a large
multilateral treaty)
The treaty is then signed, which only shows intention of each
state to be bound.
Ratified treaties are normally singed by representative of the
states executive i.e. foreign minster. However, in a democracy,
power I typically spit between executive arm and the legislature.
In many democracies, domestic law doesnt give the executive
the authority to bind the state to the terms of the treaty under
international law. Often only the legislature can do that. There is
a process after signature, there is a period of time where the
legislature has a chance to discuss the matter; if they agree the
state should be bound then it authorises the executive to ratify
the treaty.
o Technically speaking, the legislature does not ratify the
treaty, they merely give their approval for the executive to
ratify.
o The state submits an instrument of ratification, which gives
states consent to be bound by the treaty in IL.
International convention relating to racial discrimination
o Required states to introduce anti-discrimination laws. Since
the legislature has to pass the necessary laws, executive
will then wait until parliament has passed the laws that are
needed for the treaty, until it goes ahead and ratifies the
treaty, so that they can be certain there will not be any
breach of IL.
Treaties do not come into effect straight away; may be on a
specified date (bilateral), or once a certain number of states have
become party to it (multilateral)

III Full process from proposal to signature

Complex multilateral treaties may require some intermediary steps
between treaty proposal and treaty being signed and ratified.
1. Production of full powers
VC document emanating from component authority of the
state, which designates someone as authorised to negotiate,
adopt and authenticate a text as a treaty.
Full powers are usually signed by head of state, president etc.
These people are the exceptions for need of proof of full powers.
If a representative does not actually have full powers then the
state will not be bound by the treaty that the representative has
become a party to.
2. Treaty negotiated
3. Text adopted
Organise an international conference, which aids and speeds up
communication. The host state takes a leading part in the
negotiation.
The host state will try to focus attention on just one draft treaty,
with votes held on various amendments of that draft
Once everyone is more or less in agreement with that draft, a
vote will be taken in order to adopt.
Art 9 VC text will be adopted provided two thirds of the states
agree. If a state disagrees with the text adopted, then it has no
obligation to the treaty.
Once adopted a text may need authentication.
4. Text authenticated
Particularly necessary when a treaty has several authoritative
versions i.e. different languages.
Each version is equally authentic long linguistic process in order
to bring the different versions in as close a harmony as language
allows.
Once clear authenticated texts, they are ready for signature.
5. Treaty signed

US has signed a number of treaties, but often does not ratify

them.
o It allows for situation where the president can be from one
side of politics while the majority of the congress can be
dominated by the other side i.e. democrats v republicans.
Later on a subsequent congress may be prepared to ratify the
treaty.
Australias power to enter into treaties vests in the executive,
pursuant to s 61 Constitution. The Commonwealth Parliament
need not be involved in the treaty making process.
Once Australia becomes party to a treaty, it does not mean the
treaty becomes part of Australian law. Parliament still needs to
pass legislation in order to include it in IL i.e. Convention on the
elimination of racial discrimination took 9 years to ratify in
Australia.
o Racial Discrimination Act 1965 needed so that Australia
was not in breach of IL.

IV From Treaty to Statute

URL for UN Treaty Collection:
o http://treaties.un.org/
Find Convention on the Elimination of all Forms of
Racial Discrimination
Website for Australian Commonwealth legislation:
o www.comlaw.gov.au
Find Racial Discrimination Act 1975 (Cth)
Imagine three treaties
o Prior to ratification a state that is bound by the treaty should not
do anything that conflicts with the terms of the treaty.
o Rules of jus cogens the laws that states cant opt out of.
o A treaty can impose terms on a state even if that state is not
party to the city.
Inconsistent treaties
Treaty 1 is a free trade agreement between A, B and C

Treaty 2 is a free trade agreement between C and D

Treaty 3 is between A and B and purports to bring the first FTA to
an end

o Can State C still enjoy the free trade agreement? It can unless
the original free trade agreement says otherwise. State C can
continue to claim the right to ship as many goods as it likes to
State B
o Would have been more sensible for States A & B if the original
treaty had given them the right to sever from the original treaty.
o The EU treaty now explicitly provides that member states of the
EU are entitled to withdraw at any time.
V Reservations
o States can become party to a treaty and ratify it but have a
reservation and exclude it from their terms of the treaty.
o The UN treaty collection gives you a list of all the reservations
that each party has to the treaty. Just click on the country.
o Interpretive declaration reservation that outlines the states
interpretation of the terms of the treaty.
o Whether other parties to a treaty are obliged to accept a
reservation?
o Could other parties say stick to the treaty or walk away
from the treaty altogether? No, as a result of the ICJ
decision on the convention on genocide.
US wanted to get rid of prosecution of individuals for
incitement of genocide. ICJ said necessary to
consider what contracting parties were tyring to
achieve. A treaty that would require each party to
adhere to every aspect of the treaty (i.e. free trade
agreement) or to draw up a multilateral treaty where
everyone accepts the major premise (genocide is
wrong and should not be practiced) even if the states
arent expected to accept every other term of the
treaty.
Merely cannot have a reservation that sacrifices the
very object of the treaty.

Link to the International Convention on the Elimination of All

Forms of Racial Discrimination
http://treaties.un.org/pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en
Right of Reservation

In the case of the Convention on racial discrimination, art 20

clearly permits reservations provided they are not incompatible
with the object and purpose of the convention.
o This does not mean that every state must accept every
reservation unless two thirds agreed
o If one state took issue with another states reservation,
then they could exclude Australia from their own treaty,
so Australia and that state would be a relationship
between the treaty however each state will still be in the
treaty with all the other states.
In treaties that relate to human rights, the state trying to enter
an unacceptable reservation, becomes a party to the treaty and
the reservation should just be ignored adopted by EU in relation
to reservation claimed by Switzerland. This relates to art 6 of
European convention on HR which guarantees a fair trial in
relation to criminal trials. Switzerland sought to narrow the

effects of that guarantee. The EU simply put aside that

reservation.
o Why should a state enjoy the prestige of being party to
a HR convention if they have a reservation that
undermines the fundamental rights that should be
afforded to all individuals.
INT covenant on civil and political rights as well as economic,
social and cultural rights. Note must be taken of reservation for
these two covenants. Reservation may be deemed valid however
if the reservation is contrary to the object of the treaty then it will
be put aside.

LECTURE 4 INTERPRETATION AND ENFORCEABILITY OF

TREATIES
An example of treaty interpretation
Treaty language often seems to be left deliberately vague in
order to encompass different intentions of the states party to the
agreement.
UN Charter, Art 2(4)
Contains the general prohibition on the threat or use of force.
1. All Members shall refrain in their 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.
A hawks reading:
2. Members may threaten or use force provided the force is not so
severe that another state loses territory or its entire political
independence. Members have a free hand when it comes to
providing others with the means to threaten or use force.
A doves reading:
3. Members may not threaten or use any level of force within the
territory of another state unless that state consents of its own
free will. Provision to another of the means to threaten or use
force is tantamount to the threat or use of force.
I Three approaches to interpretation
Speeches made during negotiations will help to decipher
intention for creation of UN Charter articles.
1. Intentions of the parties
o What did the people who originally agreed the treaty mean
to achieve?
Eg: in 1945, what did the parties mean by Art 2(4)?
o Look in particular at the travaux (prparatoires)
(preparatory documents)
2. Textual
o Look at the ordinary meaning of words: the treaty on the
page.
o Problem is that reasonable minds can differ on what words
mean.

 Eg: what does Art 2(4) actually say?

3. Teleological
o Look at the aims and objects of the measure, taking the
bigger picture.
Eg: ultimately, what did Art 2(4) (and the entire UN
Charter) set out to achieve?
o Anicent Greek logos (knowledge) and telos (final cause)
hence refers to knowledge of final causes.
o What was the root cause of the treaty provision? The
underlying aim or object of the article.
o Potentially should mix all three approaches together, and
with luck they will lead you to the same conclusion if the
treaty is clear and well written.
Vienna Convention on the Law of Treaties 1969

Things to consider include:

Final Acts
o eg: Final Act of the Rome Conference re the establishment
of the International Criminal Court, 17 July 1998
http://legal.un.org/icc/statute/finalfra.htm - example
of the final act
Subsequent practices
o eg: rules re voting rights of permanent members of the UN
Security Council
o Lead up to Korean war when NK invaded SK the Soviet
Union was boycotting UNSC meetings. As the SU was
protesting that Taiwan held a permanent seat on the SC as
opposed the China which had defacto control of the bulk of
Chinese mainland. In the SUs absence the SC advised that
parties provide military assistance to SK.
All 5 permanent members must vote in favor of the
support of SK and SU did not as they were not
present. The resulting resolution was held by the
international community to be binding, ever since

then it has held that a resolution is binding as long as

the permanent members do not vote against the
resolution.
UN Charter, Art 27(3):
Decisions of the Security Council on [non-procedural]
matters shall be made by an affirmative vote of nine
members including the concurring votes of the 5
permanent members ...

Note: eg: travaux prparatoire of the negotiations for the UN

Convention against Transnational Organised Crime, 2006:

Treaties generally specify which language versions are authentic.

If it doesnt then any language version of the treaty which have
been authenticated will be consider equally authentic.
Eg: Stauder v City of Ulm (1969, European Court of Justice)
The EEC set up a scheme to sell cheap butter to welfare
claimants. The German-language version of the law (which
required the claimant to provide a coupon bearing his or her
name) was interpreted so as to accord with the other (more
liberal) language versions, thus avoiding a confrontation between
the EEC and Germany over human rights. So it meant that people
did not have to present their names.
This was considered to be a breach of German constitution
which is highly protective of peoples privacy
II Changing Treaties
Amendment:
refers to the formal alteration of treaty provisions that affects the
rights or responsibilities of all parties

this needs the agreement of all parties

o eg parties to a free trade area decide to extend the
principle of free movement of goods to free movement of
capital
Modification:
refers to a variation of treaty provisions that affects the rights or
responsibilities of only some parties
in such a case, unless the treaty says otherwise and provided the
modification is compatible, then modification can occur with just
the consent f those parties whose rights and obligations are
affected.
o eg a peace treaty requires State A to pay reparations to
States B and C. State B decides to forego reparations.
States A and B can modify (wipe-out or perhaps redirect
the reparations) the treaty without the approval of State C.
o What happens if a state wants to get out of the treaty
altogether? Invalidity.
III Invalidity of Treaties
Possible grounds for declaring a treaty invalid (these now reflect
customary international law):
A national constitution prohibited entry into the treaty (VCLT Art
46)
A national representative did not have sufficient authority (VCLT
Art 47)
Error (VCLT Art 48) misunderstanding of relevant facts
Fraud (VCLT Art 49) persuading another state to enter by fraud
Corruption (VCLT Art 50)
Coercion (VCLT Arts 51 - 52)
Jus cogens (peremptory norms) and obligations erga omnes
(towards all obligations owed towards all states. (VCLT Art 53)
Vienna Convention on the Law of Treaties 1969

When a state enters a treaty which is ultra vires to law bestowed

on that state by its own constitution.

i.e. US enters into treaty agreeing to restrict use of internet for

propagation of Islam. When US SC finds that that kind of
restriction of speech is unconstitutional, is the treaty still binding
on the US?
o If the violation is considered a sufficiently manifest
violation then the treaty can be considered void.
In most situations a state will find itself in breach of international
law if its entered into a treaty which it shouldnt have done as it
conflicts with its own constitution.
Article 47 A national representative did not have sufficient authority
Representative of a state exceeds restriction placed on it by the
state, yet still commits.
The state can place a restriction i.e. not to accept a certain term.
If the representative does accept the term then it will not bind
the state and it will be declared invalid.
Article 48 Error
When treaty is entered into on basis of mutual mistake or error
i.e. both parties thought that a piece of land was in existence
however unbeknownst to either party it had disappeared lol.
If this fact formed an essential basis on the states decision to be
bound by the treaty.
1904 Treaty between Siam (Thailand) and French occupied
Cambodia, border between the two countries was meant to lie
along the watershed which would mean the temple under contest
would be on Thailands side. However the map drawn was
inaccurate and had the temple drawn on the Cambodian side.
Siam contended this was an error that invalidated the treaty. But
the ICJ concluded that they had accepted the map without
independent investigation of its accuracy even though they had
the chance, hence the initial border was held to be the actual
border.
o This temple is still the subject of conflict between
Cambodia and Thailand i.e. in 2011.
Article 49 Fraud
If induced by fraud the treaty can be declared invalid.
If a states representative has been bribed then it will also be
invalid art 50 corruption
Art 51 52 - Coercion
Can a state avoid treaty responsibilities on basis that it only
entered into treaty on basis of military defeat/threat or
threatened trade sanctions?
o Threats against states representative art 51, treaty is
voidable by the state whose representatives have suffered
the threats.
o In the case of states themselves being threatened art 52.
If took the form o military force used in self defense
or under UNSC authorization, then the treaty is

enforceable even though the aggressor state only

entered into treaty as a result of coercion.
But if State A aggressively invades State B and then
imposes treaty terms, then those terms can be
ignored once State As troops withdraw.

Doctrine of unequal treaties?

advocated by a number of communist states
i.e. to what extent is AU on equal footing with US?
Also issue of the coloniser and the colonised.
Jus cogens
If states agree to breaches of jus cogens in the terms of a treaty.
SU and Germay agreed to divide various territories in Eastern
Europe into two spheres to influence, one for SU and one for Nazi
Germany.
o Agreements such as these are not enforceable under IL.
If it breaches jus cogens
ILC has declined to draw up a list of jus cogens rules incase such
a list is considered to be exclusive.
Any breach should be enforceable by any state, not just the ones
affected.
State practice seems to indicate otherwise isolated nonsystematic violations of jus cogens dont seem to entitle any
states to make an international claim against any state unless it
directly affects a member of the affected state i.e. torture. This
leaves stateless people or minority groups very vulnerable.
Consequences of Invalidity
Cassese divided grounds of invalidity into two groups:
o absolute (void): any party can invoke invalidity
coercion (against state or its representative) seems
to suggest a state that uses coercion can get out of a
treaty even if the victim state wants to implement
the treaty.
incompatibility with jus cogens
o relative (voidable): only the victim state can invoke
invalidity
error; fraud; corruption; manifest violation of internal
law; ultra vires the authority of the state
representative
Division of treaty clauses
Can treaties be divided between valid and invalid clauses?
State A sells mineral rights in relation to a particular area of
seabed, selling them to State B. By the same treaty States S and
B agree to nature conservation methods in relation to the sea in
question. It turns out State B only bought the mineral rights on

basis of misrepresentation by State A on the wealth of minerals

in that area. State B then wants to get out of the treaty, but it
would like to hold state A to account in relation to conservation
methods. Can the clauses be split? YES can get money back for
anything paid for the mineral rights but can still enforce the
conservation measures.
o absolute grounds: NO
coercion (against state or its representative)
incompatibility with jus cogens
o relative grounds: YES
error; fraud; corruption; manifest violation of internal
law; ultra vires the authority of the state
representative
IV Termination of a valid treaty
Ways in which treaty relationships can come to an end:
o Consent of the parties
o Subsequent incompatible treaty
o Denunciation (bilateral treaty) statement that a party
wishes to bring the treaty to an end or considers it to be at
an end. This can only be done legally if the treaty allows for
it.
o Withdrawal (multilateral treaty) - parties must give at least
12months notice of intention to denounce or withdraw
VCLT.
o Termination through impossibility supervening events, or
fundamental change of circumstances i.e. one state ceases
to exist
o New jus cogens incompatible with treaty
o Material breach
Vienna Convention on the Law of Treaties 1969
Limited to situations in which there is a serious breach, not a
fairly trivial breach even if it goes to the objects and purpose of
the treaty i.e. exceeding emissions as set in a climate change
treaty
B) doesnt meant the breach has to be such that the objects
cannot be achieved.
60(5) doesnt aply to humanitarian treaties State A invades part
of B and simultaneously State B invades part of state A, they
then conclude a peace treaty to withdraw from each states. State
A withdraws from Bs state but in the process breaks the treaty
by destroying religious sites. This does not give State B the right
to repraise the citizens of State A as they are limited under the
Geneva Convention and art 60(5) of VCLT dont void
humanitarian treaties.

V Illustration of a material breach where there is a specially

affected party
States A, B, C and D create a free trade area.
State A becomes concerned about trade deficit with State B as
State B starts to flood State A with cheap imports.
State A takes protectionist measures, taxing imports from State
B. This is a material breach of the FTA.
States B, C and D may:
o suspend the FTA in whole or in part, or
o terminate it in whole or in relation to State A, the defaulting
state: VCLT Art 60(2)(a).
Alternatively, State B (the specially affected party) may suspend
the FTA in whole or in part as between itself and State A: VCLT Art
60(2)(b). If State C & D wish to continue the FTA.
States A, B, C and D agree to halve their nuclear arsenal. None are
militarily aligned.
State A fails to comply. This adversely affects States B, C and D
equally. State A then poses a military threat to all three of these
states.

Any one or more of States B, C and D may now unilaterally

suspend the treaty. Eg, State B may now rearm, even though this
may adversely affect States C and D (innocent states) as well as
State A (the defaulting state)
o VCLT Art 60(2)(c)
o These rules are subject to contrary provisions relating to
breach in the treaty.
o Acquiescence can deprive a state of the right to terminate
or suspend. It is worth states protesting to a breach upon
notification of its eventuating.

UK v Iceland
Fishing rights in the North Atlantic (the cod wars)
In 1958 Iceland extended its exclusive fisheries zone from 4-12
nautical miles which led to a series of confrontations between
Iceland and Uk vessels.
In 1961 the UK agreed to accept the new limit, agreeing to settle
future disputes in the ICJ. However in 1971 Iceland announced its
intention to further extend its exclusive fishing zone from 12 50
miles.
Icelands justification for extending its zone was that fishing
technology and practices had come a long way and Iceland
(dependent on fishing) needed to monopolize fishing on a much
wider expanse of sea.
Iceland sought to rely on rebus sic stantibus that continuation of
treaty is reliant on things staying the same and with a material
change in circumstances the former treaty should be concluded.
o Changes must be fundamental and unforeseen also
meeting the circumstances that have changed must have
constituted an essential basis of the consent of the states
and the effect of the change must have radically

transformed the extent of the obligation to be complied

under the treaty.
UK claimed breach of agreement and demanding that Iceland
had to adhere to any findings of the ICJ. ICJ sought to apply art 62
of VCLT.
ICJ concluded (textbook)
Compulsory jurisdiction of the ICJ
Art 33 UN Charter requires states to seek peaceful settlement
to any dispute, if after 12 months there is still no solution then if
the dispute relates to jus cogens then any party may submit the
dispute to ICJ, or submitted to a conciliation commission.
LECTURE 5 - INTERNATIONAL AND NATIONAL LAW

I Monism & Dualism

Monism
Sees national and international law as two parts of an integrated
whole
National law derives its authority from international law
International law is automatically part of a states domestic legal
order
International law predominates over national law
Associated with the civil law system
US is middle ground but more tailored towards monism. Italy, UK
etc.
Dualism

Sees international and domestic law as completely distinct legal

orders
Inconsistencies do not arise: the systems have different subjects
and fulfil different purposes
In order for a rule of international law to enter the domestic legal
order, a formal step of incorporation or transformation by the
latter is needed
Associated with the common law system
Australia is more dualist
Hall argues for a middle ground between monism and dualism
o Note that there is no clear distinction that can be made
between domestic and IL, there is always overlap.
o Jus cogens is customary law that must be followed in each
country and domestic law is no excuse.

II Acceptance of CIL into English Common Law

Trendtex Trading Corp v Central Bank of Nigeria (1977, EWCA)
re extension of state immunity to the commercial activities of
state bodies
o (in this case the Central Bank of Nigerias immunity against
proceedings in English law)
Strictly applying the principle of stare decisis might be taken to
mean that English law should apply regardless of international
law.
Held: English law must apply relevant norms of international law.
Stare decisis did not prevent the English common law from
reflecting changes in international law.
III Rejection of CIL by Australian common law
Chow Hung Ching v The King (1948, HCA)
Group of Chinese individuals in PNG which was then under
control of Australia. Issue as to whether these individuals were
members of armed forces and whether it gave them state
immunity for acts that they committed while off duty
re extension of state immunity to a foreign states armed forces

(in this case whether members of Chinas armed forces were

immune from Australian law)
Held (arguably obiter): international law is not part of Australian
common law, but is a mere source of that law
Mabo v Queensland (No 2) (1992, HCA)
re recognition of indigenous law on Murray Island, Torres Strait
(part of Queensland)
Held: even if customary international law (CIL) were to allow for
the operation of terra nullius over occupied territory, that
doctrine does not accord with the contemporary values of the
Australian people, and so cannot be retained in Australias
current common law.
IV Non-acceptance of INT Criminal Law into Australian
common law
Nulyarimma v Thompson (FCA, 1999)
re an attempt to prosecute Australias prime minister for
genocide of Aboriginal people
Held: although the prohibition against genocide is jus cogens in
CIL, it still requires an act of the Australian legislature to
incorporate the crime into Australian law.
R v Jones (Margaret) [2006] UKHL 16
Protesters against the 2003 Iraq war caused damage at an
English military airbase. They pleaded as a defence the Criminal
Law Act 1967 (UK) s 3:
o A person may use such force as is reasonable in the
circumstances in the prevention of crime
The question for the Lords was whether the defence could arise
in relation to activity that is criminal under international law (the
crime of aggression) but not UK domestic law.
Held: no, it could not.
o The creation of new criminal offences is the sole domain of
Parliament.
o It is the practice to legislate re new offences assimilated
into domestic law from international law.
o The rule is that UK courts will be slow to interfere with the
exercise of prerogative powers by the Executive.
o The state cannot put itself on trial, which is effectively what
would happen if UK courts were to decide that the UK had
committed the crime of aggression.
The Act of State Doctrine
As a general rule courts in the UK and Australia will not interfere
with the exercise of prerogative powers by the Executive (which
mostly includes the conduct of foreign relations)
Re Wong Hon (1959)
o A Chinese national was charged with murder in Kowloon, a
territory then leased by China to the UK.

o The defence argued that China had retained jurisdiction

over Kowloon, meaning that the defendant should not be
charged under British law.
o The UK claimed jurisdiction over Kowloon and the (British)
Supreme Court of Hong Kong was not prepared to question
that claim.
Habib v Commonwealth of Australia (2010)
Mamdouh Habib, an Australian citizen, was detained and
allegedly tortured in Pakistan and Egypt by local and CIA officials.
He was then transferred to Guantanamo Bay where he allegedly
suffered further torture at the hands of the USA.
Upon release to Australia, Habib sued the Australian
Commonwealth for damages, alleging that Australian officials
had aided, abetted or counselled the acts of torture by foreign
officials.
The Australian Executive claimed that its federal courts did not
have jurisdiction to hear the case. Foreign relations might suffer
if the courts were to accuse foreign officials of unlawful torture,
and foreign relations are the sole domain of the Executive.
Held: the Federal Courts are entitled to adjudicate on the
legitimacy of acts by Australian officials, even if this indirectly
involves consideration of the legitimacy of acts by foreign
officials, thus potentially undermining comity.
V Incorporation of CIL into common law
This is more likely in the UK: Trendtex.
It is less likely in Australia: Chow Hung Ching and Mabo.
In Australia, rules of CIL will not be incorporated where:
o they are inconsistent with domestic legislation (cf EU law in
the UK);
o they are inconsistent with essential common law doctrines
(Mabo), or
o doing so would impugn an act of state by the domestic
sovereign or a foreign sovereign state (R v Jones)
cf Habib, where the direct issue was whether
Australian officials had acted unlawfully by aid and
abetting torture, and Australias Parliament (as
opposed to international law) had already determined
that torture was unlawful).
In order to create rights in UK law, treaties normally have to be
transformed (usually by legislation)
JH Rayner (Mincing Lane) Ltd v DTI (UKHL, 1989)
o The mere existence of treaty will not create legal rights
enjoyable by individuals or coporations under English law.
o A group of states had agreed by treaty to set up the ITC.
Under the terms the states agreed to be responsible for the
ITCs debts.
o A treaty set up the International Tin Council (ITC).

o The ITC was given legal personality in the UK due to UK

subordinate legislation.
o Creditors sued in English law, seeking to recover money
from the ITCs state members, as opposed to the ITC.
o Held: the fact that under the treaty the member states
undertook responsibility for ITC debts was irrelevant. The
treaty did not create rights under English law.
The treaty provision had no bearing on the matter,
with the same basic rule applying to the iTC as to any
other corporation. No additional legal rights were
created under English law by the treaty.
Tang Ping-hoi v Attorney General (Hong Kong High Court, 1987)
o The UK had undertaken in a treaty with China not to charge
premiums in relation to Hong Kong leases.
o The (British) Hong Kong government sought to charge the
plaintiff a premium for a lease. Plaintiff argues the UK was
prohibited from charging the premium under the terms of a
treaty the UK had reached with China.
o Held: The treaty did not create a right in domestic law
enabling the plaintiff to avoid payment of the premium. The
only government that could demand payment of premium
was Hong Kong.
o NB: the EU treaties are an exception to this rule.
Dietrich v R (HCA, 1992)
The appellant had applied for legal aid in Australia. His
application was refused. He was subsequently tried without legal
representation.
The appellant claimed that he was denied a fair trial, in that he
had no legal counsel.
The International Covenant on Civil and Political Rights (ICCPR)
guarantees the right to fair trial. Australia is party to the ICCPR.
The High Court held that any rights guaranteed by the ICCPR still
need to be transformed into domestic law before they can be
effective in a domestic court.
VI The effect of IL on Australian legislation
Clear that IL can be used as a guide for interpreting Australian
legislation.
Polites v Commonwealth (1945)
o Concerned interpretation of National Security Act 1939 s
13A:
o Notwithstanding anything contained in this Act, the
Governor-General may make such regulations making
provision for requiring persons to place themselves, their
services and their property at the disposal of the
Commonwealth, as appear to him to be necessary or
expedient for securing the public safety, the defence of the
Commonwealth and the Territories of the Commonwealth,
or the efficient prosecution of any war in which His Majesty

is or may be engaged: Provided that nothing in this section

shall authorize the imposition of any form of compulsory
service beyond the limits of Australia.
Permitted conscription for aliens within Australia to
enlist within Australian armed services.
o Did this permit the Governor-General to call up nonAustralians living in Australia? This would be a breach of
international law.
IL; alien cannot be required to serve in the army of
another country.
o Held: IL does not constrain the power of an Australian
legislature.
HC of the view that the constitution is the only thing
that constrains the powers of the Australian
commonwealth.
Hence under Au law the commonwealth was held to
be able to breach IL.
However every effort should be made to construe
commonwealth statutes so as to avoid breaches of IL
or INT comity (INT conduct).
Courts required to assume thats it the
intention of parliament to fulfil its international
obligations.
IL cannot render intra vires acts by the Australian government
which would otherwise be ultra vires under Australian law
Bradley v Commonwealth (HCA, 1973)
o The UN Security Council required states to frustrate the
illegal white minority regime then governing Rhodesia (now
Zimbabwe).
o The Australian (executive) government suspended postal
and phone services to the Rhodesia Information Centre in
Sydney. This was not permitted under Australian legislation.
o Held: the suspension was unlawful in Australia, regardless
of the UN Security Council resolution.
HC determined it was not permitted. The provisions
of a treaty will not enter into Australian law unless
valid legislation is or has been passed by an
Australian legislature.
VII Limits to the effect of IL on statutory interpretation
A treaty can only assist in the interpretation of Australian
legislation if:
1. there was contemplated or actual participation by Australia in
that treaty prior to enactment of the legislation in question, and
2. either the legislation in question:
a) is ambiguous or obscure, or
b) ordinary meaning of the wording of the statute would
otherwise lead to a result that is manifestly absurd or is
unreasonable

Acts Interpretation Act 1901 (Cth) s 15AB (next slide)

The Constitution permits the commonwealth to breach IL despite

the rebuttable presumption that parliament intends to comply
with IL.
Whether the commonwealth can enter into any treated for any
subject matter or whether it has to adhere to any of the heads of
commonwealth competence in the constitution?
o Can relate to anything, need not be a matter of
international concern i.e. the International Convention on
the Elimination of Racial Discrimination.
Commonwealth v Tasmania (Tasmanian Dam Case), HCA 1983
In 1974 Australia became party to the Convention governing
UNESCOs World Heritage Program.
The Australian Commonwealth passed legislation to protect part
of Tasmanias wilderness from the building of a dam.
Held:
o Even though construction of the dam would normally be a
matter for Tasmania, in light of Australias international
obligations the Commonwealth was entitled to intervene.

o However, if the Commonwealths use of the external power

was no more than a device to exercise legislative power
then it would probably not be legitimate.
VII The effect of IL on administration
Minister for Immigration and Ethnic Affairs v Teoh (HCA, 1995)
A Malaysian father with three children in Australia applied for
Australian permanent residence.
The Australian government rejected his application on the basis
of his criminal record.
Australias immigration regulations did not, in themselves,
require Australia to take account of the childrens interests.
HELD: Due to the Convention on the Rights of the Child, in
determining his application Australia was required to treat the
interests of the children as a primary consideration.
o HC said by ratifying the treaty on the interests of the child,
Au had stated to the world it intended to act in accordance
with that treaty which includes putting the interest of the
children first.
o Australia attempted to get rid of these legitimate
expectations by stating it wouldnt be taking accounts of
childrens interests.
Note that in the future it is predicted the HC might
backtrack on this decision and conclude that IL does
not have to be taken into account.
o cf comments made in:
Re Minister for Immigration and Multicultural Affairs;
Ex parte Lam (HCR, 2003)
Plaintiff S10/2011 and Minister for Immigration and
Citizenship (HCR, 2012)
German Basic Law

IL forms an integral part of German national law (not just an

influence)
IL takes precedence over German federal law
IL directly creates rights for the inhabitants of Germany.
Federal constitutional court
Questions on IL referred to this court.

West Germany become party to CARD, if they were to pass

domestic laws that allowed racial discrimination it would be
declared invalid in accordance with IL.

Germany requires approval of treaties by their legislature, not

unlike the US where treaties require approval of congress before
they become binding.
ECHR INT court brought about by European convention on HR,
to which Germany is a party.
No state can be characterized as clearly dualist or monist, they
all lay on a spectrum i.e. Germany is more monist and Australia is
more dualist.
o The Netherlands is an obviously monist state. Their
constitution promotes participation in the development of
international legal order
o Many INT institutions are found in the Netherlands i.e. The
Hague
Dutch Constitution 1983

Seemingly silent on customary IL.

All treaties binding Netherlands internationally are automatically
incorporated into their municipal law.

As a general rule the Dutch parliament must approve all treaties

and they may add alternative declarations or reservations which
must be included by the executives in all subsequent
ratifications.
This can mean empowerment of the executive at the expense of
Parliament.
Possibly a global shift towards monism, which may be considered
a symptom of globalisation.
Does Australias position say anything about their view on
national sovereignty, isolationist legal culture (may or may not
accord with Australias national culture) or should we not read
that much into it?

LECTURE 6 STATEHOOD AND PERSONALITY

Argument in relation to recognition of Palestine as a state on
equal footing to Israel.
o P was granted in 2012 the status of non-member observer
state in the UN. The fact Palenstine is refused UN
membership shows how politically charged to concept of
full sovereign statehood is.
o Kosovo is another example of what may or may not be a
state.
Some states disintegrate i.e. violently in the case of Yugoslavia or
peacefully as in the case of Czechoslovakia
Statehood brings with it legal personality, endowing an entity
with rights and responsibilities in the legal system in which that
entity has legal personality.
Generally, we are concerned with states in International law.
o Can look at UN membership to see who is a state however
it is not a comprehensive list i.e. Ukraine can barely be
described as a sovereign state as of current but it is listed
on the UN membership site.
o Claiming that all sovereign states are sovereign nations is
highly political i.e. Switzerland was a not a member prior to
2002.
What is a state? See Montevideo convention.
o Only 16 part states, US plus 15 Latin American states.
o How Art 1 is widely adhered to and is accepted to have
codified the term state in international law.
Montevideo Convention 1933, Art 1

a) An unpopulated island cannot constitute a state nor a territory

with a wholly transient population i.e. Antarctica
a. However a population need not be entirely permanent as
ICJ have considered nomadic tribes as part of the
population in the Western Sahara
b. Populations can also be extremely small i.e. Vatican City
popn 800-1000
b) Must be a territory, and that must be defined.
a. Can be extremely small i.e. Vatican city is just 44 hectares.
b. Territory having land or water over which the government
can assert some degree of control.
c. Defined the fact a states borders are disputed, does not
mean the territories are defined i.e. borders of Israel.
c) Administering authority which exercises effective control over a
defined territory
a. They must be independent, not subject to control by any
other state or external political power.
b. Seems to refer to effective government as opposed to
moral government. It need not be democratic, nor need to
govern well.
c. Government does not even need to be considered
competent.
d. Effectiveness is measured more in terms of strength
e. Test of independence refers more to form than substance,
extent of independence was considered by PCIJ in 1931,
established customs union between Germany and Austria
which many saw as the start of the annexation of Austria
from Nazi Germany.
f. Control of government need not be absolute
i. Aaland islands, collection of islands between Finland
and Sweden and were originally controlled by
Sweden. The islands were transferred to Russia in a
treaty in 1889. LON considered Finland gained
independence from Russia when Finland had gained
enough independence in May 1918 (when Finnish
civil war ended). Islands remained part of Finland, to
this day.

g. Once a state exists, it is hard for lack of effective stable

government to threaten its continued existence i.e.
Somalia and Syria
d) Capacity for relations
a. Obvious ambiguity capacity can often mean physical or
defacto capacity or it can mean legal capacity.
b. In context of Art 1, it must mean something other than
legal. In Int law we are faced with a circular reference.
c. Means something more than the material resource
necessary for a state to conduct relations, it will not have
capacity if internally it does not have the legal capacity to
enter into international treaties.
d. i.e. NSW lack legal capacity. Doesnt make any claim to
statehood. Lacks political resources (will).
e. A state cannot survive if a sufficient number of states is not
prepared to grant that state recognition.
I The criteria of statehood
Permanent population
o need not be entirely settled: Western Sahara Case, 1975
Defined territory
o disputed borders do not disqualify from statehood
Government
o appears to mean effective (as in strong), as opposed to
moral
o requires formal (if not necessarily entirely substantive)
independence
o requires stable political organisation, with control
throughout the territory of the state without the assistance
of foreign troops
Aaland Islands case, League of Nations, 1920
Capacity to enter into relations with other states
o constitutive v declaratory theory
declaration of independence is never enough to gain
independence. It is highly dependent on international
recognition.
II Constitutive vs declaratory theory (of recognition)
Constitutive theory of recognition
This claims that recognition as a state by other states is a
necessary precondition for statehood.
o State is not a state until recognised as a state by other
states.
o It sees the act of recognition as performative.
similar to answering the question do you promise to
be good? with yes
Saying yes creates the promise. It does not
acknowledge a pre-existing promise.
Declaratory theory of recognition

This claims that recognition of a state constitutes

acknowledgment of pre-existing statehood.
Performativity speech vs declaratory speech. Answering
affirmatively to a question is creating a promise which is
performative.
o Declaratory acknowledging that a person is the winner.
Acknowledges a pre-existing set of circumstances.
o It sees the act of recognition as declaratory.
similar to I declare you the winner of the race
usually this does not mean you are the winner
because I say so. It means I acknowledge you
are the winner because you ran the fastest. A
declaration acknowledges (and, in the case of
doubt, clarifies, or, in the event of a dispute,
decides) a pre-existing state of affairs: e.g. that
you ran fastest and therefore won the race.
Distinction between change of state and change of government
Government framework remains the same, however the people
holding office and government policy may change
State where a region of a state successfully secedes then there
is clearly a creation of a new state.
Note the extent to which the institutions are modified
o i.e. change of name may indicate new state i.e. republic of
Rhodesia to Zimbabwe
o States usually apply a test of effective control, to see which
authority has defacto control over most of the states
territory and population (the old government and the new
rebellion government, rather than who has the moral or
legal high ground).
China CCP took control of mainland china in 1949 and with it
came proclamation of the Peoples Republic of China, even so the
US did not officially recognize it until 1979. Yet in the meantime
the US was not in breach of INT law despite its failure to
recognize the government.
o This implies that to an extent the recognition of a new
government is at the discretion of the state.
Australia ceased recognizing governments in 1989, as he general
public perception of recognizing a new government is seen as
endorsing the new government as opposed to merely recognizing
the reality of its authority.
UN general Assembly Resolution 1514, 14 Dec 1960

Sought to define and limit the right to self-determination.

Art 2, 5 & 6
How could this resolution be used?
o Seems directly aimed at the process of decolonization in
which the boundaries stay in tact and there is a transfer of
power from some distant power to the majority populations
of the group in the territory.
Is resolution 1514 only meant to relate to intact territories to
majority rule (i.e. Apartheid in SA)? Or might it also support
situations such as the one in which the Kurdish people find
themselves?
o Which takes priority, right to self-determination of people
divided by state boundaries or the right of states to have
their boundaries remain intact? Look at art 73.
UN Charter 1945, Art 73

UN General Assembly Res 1541 (XV) 1960

Specifies principles that should be applied in order to determine

whether or not an obligation exists under art 73, to transmit
information.
Principle IV opinion differs as to whether the kurds are ethnic or
culturally different from the majority population. It is clear there
is no clear geographical distinction.
o France v Indochina.
o This suggests that self-determination applies to peoples in
similar situations to those of Indochina. However those like
the Kurdish people, it seems there isnt even a prima facie
right to statehood.
Yugoslavia consisted of 6 different ethnic groups.
III External v Internal self-determination
Ethnic composition of Bosnia and Herzegovina prior to 1991

Arbitration community for peace conference on Yugoslavia

Applied the principle of as you possess under law, existing
borders should be retained even if they do not reflect the realities
of ethnic division
o Even so the Serbian minorities were to be accorded all the
rights to be accorded to ethnic groups under INT law (jus
cogens)
Meaning they have rights to self-determination, but
not statehood.
External self-determination
The right to an independent state
appears to apply to peoples who are geographically separate
AND ethnically/culturally distinct from the administering country
o eg France and the peoples of Indochina
Internal self-determination
rights to recognition and autonomy that fall short of a right to
statehood
these appear to apply to minorities within states
o eg Serbian minority within Bosnia and Herzegovina
o Russians within Ukraine
Art 55 of UN Charter refers to rights of self-determination of
peoples.

In 1989 UNESCO received a report that it had commissioned from

a panel of experts in relation to the issue of what groups are
entitled to self-determination.
IV Internal self-determination
Factors to consider in determining what constitutes a people
(based on a 1990 report prepared for UNESCO):
o common features
common history, racial/ethnic identity, culture,
language, religious or ideological affinity, territorial
connection, economy

o quantitative
There need not be a large number, but there must be
more than a mere association of individuals.
o subjective
Does the group wish to be identified as a people?
o institutions
Do there exist means of expressing common features
and the will to be identified as a people?
Political parties, cultural associations, etc.
Just because all these attributes are present it does not mean the
group is entitled to statehood.
V External self-determination
According to the Supreme Court of Canada (Reference re
Secession of Quebec), a people may enjoy a right to statehood
where:
o colonised by an imperial power;
Quebecois, at the time of their defeat by Britain,
were themselves European colonisers of North
America
o Quebecois common feature is they all speak French, there
is a large number, they aspire to national recognition with
an institution set up to reach that goal.
According to the SC that isnt enough to give them a
right in INT law to unilaterally secede from the
dominion of Canada.
SC determined right in INT law to external self determination is
an entitlement in only three circumstances;
o Where the people in question have colonial status i.e. the
French settlors themselves were colonisers hence were not
indigenous
o subjected to alien subjugation, domination or exploitation
outside of a colonial context, or
o denied their rights to internal self-determination
remedial secession remedy to the states failure to
grant the people in question the right to internal sd
i.e. SC said the Quebecois have not been denied
access to govt.

Quebecois enjoy a high level of autonomy, access to

government, cultural rights etc. i.e. even have
matters of control over migration, also people have
access to French documents (all documents are
translated)
Lifeblood of statehood is international recognition.
The fact that a people have a right to self-determination does not
grant a right for other states to forcefully intervene in INT affairs
to enforce the people achieving their right.
UN Charter, Art 2(4)

This is only addressed to states. Peoples who do not enjoy

statehood are not bound by this art. In a sense the INT
community of states is saying to peoples yet to achieve
statehood that they may be entitled to self-determination but do
not expect force from other states.
o In saying this non-violent means can be enforced to help a
people i.e. using trade sanctions.
VI Personality of international organisations
The three main IO with personality in IL: UN, EU and WTO
The founding treaty of an organisation will usually state whether
it is to have international personality.
Note that legal personality is not categorical, there are degrees
of legal personality i.e. certain rights and responsibilities for
different organisations.
Four guidelines for determining and organisations legal personality:
the organisations constituent instruments i.e. treaty
o if the instrument is silent then you would look at the
following three criteria.
the organisations specified or implied objects and purposes
what is essential to the performance of the organisations duties
the practice of states in their relations with the organisation
o Reparation for Injuries Suffered in the Service of the United
Nations, ICJ advisory opinion, 1949
Individual human beings have begun to gather far more
responsibility under international law i.e. Nuremberg and Tokyo trials
in the aftermath of WWII
Foundations of ECHR
Establishment of international tribunals under the SC
Establishment of the ICC.

In Australia, they are able to bring complaints before the UNHRC

about breaches, as long as the state accepts the jurisdiction of
the Court.
o Australian nationals can be tried under international law.

LECTURE 7 STATE RESPONSIBILITY

I DASR
Vicarious liability arises where a state employee i.e. police
officer, wrongfuly causes harm. Note that in Australian domestic
law, VL arises even when a corporation or a government body is
not itself to blame in any moral sense. In that it is not at fault.
o It is strict liability. Lack of personal fault is irrelevant.
Liability of states in International Law
In domestic law, companies and state agencies are themselves
subject to domestic law.
In international law, states are not only subject to the
international law, they are also subject to their own domestic
laws.

1st box where both are permitted i.e. medical assistance to

tourists
4th box where both prohibited i.e. murder or genocide.
Prohibited/permitted
Permitted/prohibited

IL in these areas is yet to be codified in terms of determining the

extent to which states are liable for the actions of individuals.
DASR (Draft articles of state responsibility): General
Principles
Persuasive account of customary IL in this area.

Basic principles of law of state responsibility.

Art 1 introduces us to concept of an internationally wrongful act.
Defined in art 2. Both elements of art 2 must be present.
o When is conduct attributable to a state?
o And when does this conduct constitute a breach of
international obligation?
Attribution to State

Rules of state responsibility are objective which applies risk

theory (considers who or what should bear risk)
o Subjective theory looks at who is at fault.
On occasion courts and tribunals seem far more intent on
following fault theory. Generally used when considering issues as
to what extent states should be liable for insurrectionists

When private individuals are instructed by a state to do

something on behalf of the state i.e. organizing volunteers, or
they may have a system whereby the authorities at home are
routinely assisted by volunteers.
o The state is only liable if those volunteers are acting under
state orders at the time when they did something wrong, or
if they were under the direction or patrol of the state.
Contra rebels hat south to bring the collapse of the Nicaragua
government. These rebels were supported by the US
government, initially supported overtly and later covertly. Nica
sought to argue that the US should be held responsible for all
violations of law by these rebels.
o However the ICJ held that the US had never exercised such
a degree of control over them as to justify treating those
contras on acting on behalf of the US
o They adopted an effective control test determining there
was none.
o The danger of this approach is that it may encourage states
to turn a blind eye to ventures they support but not
directly.
Is a state liable if foreign tourists are murdered as a consequence
of bad policing?
o When private individuals have done something wrong. Did
the state help bring them about by their sheer negligence?
o If the state had effective control of the individuals involved
in the conduct.

Sri Lanka gained dominion status from UK colonial rule in 1948.

In 1972 became a republic. From 1983 onwards the Tamil
liberation tigers became increasingly active in the islands north.
These Tigers claimed to represent the interests of the Tamil
people. Over the course of three decades (until they were
defeated by Sri Lankan military) often vicious battles raged in the
island.

o The fighting resulted in disruption of a shrimp farm that

was partly owned by a Hong Kong company. A tribunal was
set up that decided that Sri Lanka was liable in IL and
should pay compensation to the company in question.
In the absence of any relevant treaty, the standard was meant to
reflect the degree of any security reasonably expected.
Where private persons perform government functions in the
absence of effective government. Can the state be held
accountable for the actions of these vigilante groups? i.e. in the
midst of a revolution where individuals step forward to maintain
some kind of order.
o Iran 1979, when a revolutionary movement group
overthrew the Shar leading to theocratic government lead
by a supreme leader.
o Revolutionary guards in Tehran expelled a certain US
national from Iran giving him only 30 minutes to leave.
This guy brought a claim against the Iranian
government.
o Whether the government could be held accountable for the
acts of the revolutionary guard. It applied the principle
contained in draft article 9.
o Iran could not tolerate the existence of these guards but at
the same time deny responsibility of these wrongful acts.
Otherwise it would be too easy for governments to hide
behind the actions of vigilante groups.
If an insurrection fails, then the state cannot be held liable.
However if the insurrection is successful an the insurrectionists
become the new government. IN that case art 10 as above
applies. Same applies where this is a successful secessionist
movement.
o If there is a lack of due care, then there may be liability.
o In some cases, states have been vocal in their support of
terrorist attacks. Such vocal support is not enough to
render the state accountable. However, the situation is
different if a state acknowledges and adopts the actions in
question art 11.
Responsibility for Acts of another State

If state A and B are [arties to a bilateral treaty that specifies that

each have agreed to contribute $10b to a hydroelectric scheme.
State C does not want this scheme to go ahead, so C sells cheap
electricity to state B so that State does not need the scheme.
o This would be a breach of treaty by State B, but State C
would not be liable. Since there was nothing to stop C
Supplying B with electricity in the first place.
o The situation would be different is State C were to coerce
state B into compliance by trade sanctions etc.

Reparation

Art 30 relates to the obligation to cease the wrongful act.

Art 31 relates to making of reparations
o i.e. reparations Germany was forced to pay after WWI.
These are blamed for the economic funk of Germany postwar.
Intellectual reparations US made use of Germany scientific and
technological knowledge as reparations.
Restitution and Compensation

i.e. stolen artworks returned to a looted art gallery

restitution is the preferred option when it comes to reparations.
Sometimes it is not entirely possible i.e. prisoners killed, or
objects destroyed. In this case compensation is paid.
o Compensation is both backward and forward looking.
o i.e. A invades State B. During occupation, State A
dismantles and ships to State A a steel plant. After A has
withdrawn, state A may return the machinery. This would
be an act of restitution.
However if the plant is capable of netting a profit of
$10m a year, if B has lost two years of profit then A is
liable to pay an additional $20m in order to
compensate B.
Moral damage refers to pain and suffering caused to individuals.
Satisfaction

Arises where an injury cannot be made good by restitution or

compensation.
A satisfaction could be an apology, expressing regret for what
happened etc.
i.e. French Intelligent service sunk a NZ Green Peace ship in
French Polynesia. French president was forced to make an
apology in 1985. To excuse an act that would otherwise be
wrongful in international law.
Circumstances precluding wrongfulness
Consent if a state consents to a course of action then obviously
they cant complain about it
Self-defence in the face of an armed attack inherent right only
arises when facing an armed attack.
o A wholesale invasion which Nazi Germany inflicted of SU
was an armed attack.
o What about smaller scale attacks?
Taking legitimate countermeasures
o Countermeasures short of self-defence i.e. impounding a
military vessel, breaking military ties, imposing sanctions.
o Nicaragua o Allowed in situations where the circumstances are
analogous to, but not to the same extent the same as an
armed attack.
o Minor acts of violence constitute the use of force i.e. if a
state sinks a military vessel of another state not in its
home base.
o When considering whether the countermeasures are
proportionate, need to look at their legitimacy i.e. eye for
an eye morality. However, states are not entitled to
exercise retribution against civilian targets, or soldiers from
the other side that are sick, injured etc.
Force majeure major force
o Refers to an occurrence of an irresistible force, or of an
unforeseen event.

o i.e. ILC, aircraft entering another states airspace due to bad

weather.
Foreign invasion which causes a state to lose control
of a portion of its territory thus making it impossible
for the state to fulfil its treaty obligations.
o Defense: does no arise where the force has simply made
fulfilment of the obligation more expensive, politically
awkward etc. The force must make the obligation
materially impossible.
Distress where an individual whose acts are attributable to the
state, is in a situation of peril, in terms of losing their lives either
personally or with people under their care.
o Issue often arises
o Frances sinking of rainbow warrior. Two French agents were
convicted of manslaughter and sentenced to imprisonment
under NZ courts. However, agreements with France let
them be detained for 3 years at an air base.
However this was not done, and the two were
released and promoted within the military after two
years imprisonment.
France could plead distress as a defence. But needed
to show a number of things i.e. was the distress real?
Once the situation of distress was dealt with, were
they sent back to their imprisonment? Did France
make a good faith attempt to try and contact NZ.
The returns of the agents to France was held to be a
breach of IL.
Necessity
o Whether an act or omission is the only way to safeguard an
interest against grave or imminent peril.
o It must not impair an essential element of other states.
UN Charter

Art 2(4)

II Rights in Internationals law arising from hostile action

DASR Art 23

DASR Art 24

DASR Art 25

Lecture 8 Treatment of Foreign Nationals

8.1 THE RIGHT OF STATES TO PROTECT THEIR NATIONALS

Dealt with by CIL drafted by ILC Draft articles on state

responsibility
Document is not a treaty but subject to lengthy and thorough
negotiations, often taken to reflect consensus view of what
constitutes CIL in that particular area
For state to be held responsible for international wrongful act that
act has to constitute breach of an international obligation and
attributable to state in question
o Must be no factors that suffice to render excusable an act
that would otherwise be unlawful such as defences of force
majeure, distress or necessity
Where a state invades the territory of another state or damages
its property lends to straightforward applications of the
principles of state responsibility
Harm done is often directed towards a private person. I.e. person
whom Mexican military officers shot back in 1914 - he was a
private French national not an officer of the French state
States can bring actions against other states on behalf of their
nationals or even on behalf of nationals of other states for acts
done in that state

8.2 STANDARD OF TREATMENT OF FOREIGN NATIONALS

When you visit a state are you entitled to the same level of
protection as that given to local people or are you only entitled to
some minimal standard of protection?
Two schools of thought in relation to the standard of treatment
o National treatment standard

A foreign national is entitled to be treated no worse

than a local national
o International minimum standard
A foreign national is entitled to minimum standards of
protection, regardless of the treatment of local
nationals
the favoured view among publicists
o To a considerable extent international mechanisms for
human rights protection help to ensure these minimum
standards, since they invariably encompass treatment by a
state of non-nationals of that state. Eg:
167 states are party to the International Covenant on
Civil and Political Rights
47 states are party to the European Convention on
Human Rights
o Even so, some states are not party to any human rights
treaty. In those cases it is harder to determine the
minimum standards of protection that a state should afford
non-nationals.

Decisions of US-Mexican/Panama Claims Commissions

Case we are most interested in in relation to the standard of care
to which a foreigner is entitled is case brought by Harry Roberts
1926 - a US citizen who claimed that he was illegally arrested by
Mexican authorities and then held prisoner by Mexico for 18
months being subjected to cruel and inhumane treatment
o Mexican defence was that he was treated no worse than a
Mexican prisoner
o Commission decided that facts with respect to equality of
treatment between aliens and nationals may be of
important concern. Important test to apply is whether
broadly speaking, aliens are treated in accordance with the
ordinary standards of civilisation and Commission
determined that Roberts had indeed suffered cruel and
inhumane treatment
o Roberts claim an example of the negative duties of states
to foreign nationals (what states are NOT meant to do)
Things have come a long was since 1920s. Now there is a
plethora of treaties all of which further indicate that there exists
minimal standards to acceptable treatment not just of
foreigners but of all human beings regardless of nationality
Probably most important of those treaties is the ICCPR which
came into effect 1976 167 are party
Note that these human rights treaties invariably afford
protections regardless of a persons nationality
What if you visit a state that is not party to a single human rights
convention? What level of protection does that state need to

provide? answers lies in extent to which these HR norms have

been absorbed into CIL in particular jus cogens
If we can clearly identify those rules of CIL then we can answer
the obvious question how bad does treatment have to be
before it drops below this apparent minimally accepted standard
Not easy to answer because once a state falls outside the
numerous HR mechanisms then there is nowhere for the
individual victim of HR abuses to complain to no ICHR with
universal jurisdiction. Because there is no such court then there
are no judicial decisions to guide us
Mostly what we have to go on in this area of IL are the works of
publicists who have written in the area plus small number of
arbitral or judicial awards resulting from disputes between
particular states
o A lot occurred during Mexican Revolution discussed earlier
Important to remember that state can be held liable even when
the organs of the state are acting contrary to orders. But these
are all to do with a states negative duties. What does a state
have to do in order to safeguard foreign nationals? (positive
duties things it has to do)

Positive duty of states to foreign nationals

One issue is the extent to which a state has to protect a
foreign national from acts committed by other of its nationals
and by the gov itself
o Obvious way to protect foreign nationals is via criminal
law
Massey Claim, 1927 murder of American by Mexican in
Mexico. Mexican murderer arrested and imprisoned pending
trial a Mexican prison officer allowed him to escape. Mexico
held responsible in IL for failing to capture a punish the killer.
Even though prison officer punished for letting him escape
and Mexico was required to pay $15k to US on behalf of US
victims widow. Compensation was not for murder, but for
Mexico failing to take proper action to punish the murderer
janes Claim, 1926 reached a similar outcome. US citizen shot
and killed in public by Mexican known to local community.
Killer escaped. Local Commissioner of police was informed of
the shooting within 5 mins, but rather than pursue on foot by
which killer could have been caught, he spent an hour
organising horses for posse to chase killer. Culprit was well
away by that time. Mexican claims commission not satisfied
that Mexico had done enough to apprehend the killer and
Mexico ordered to pay $12k payable to US again not in
relation to killing but in respect of Mexicos failure to fulfil its
international responsibilities taking adequate steps to track
down killer and bring him to justice

Noyes Claim, 1933 suggests that the level of neglect by the

host government would have to be extremely bad in relation
to policing. Claim raised by US against Panama political rally
in small village in Panama. Crowd got rowdy due to alcohol
and Us citizen attacked. Police on spot had not been increased
for the occasion but police officers present did what they
could to protect the US citizen. Panama was held not to be
responsible for injuries and damage to property resulting from
inadequate police presence. There would need to be a more
general failing in policing

8.3 EXPROPRIATION OF PROPERTY

A state can be held responsible for appropriating or damaging

the property of a foreign national
Often happens where left wing governments gain power and
then seek to nationalise certain assets or industries that are
owned or partly owned by foreign companies
In 1962 the UNGA passed Res 1803 now widely considered to
reflect CIL
UNGA Res 1803 (1962) permits nationalisation, expropriation or
requisition of foreign-owned assets provided:
o 1. it is based on grounds of public utility, security or the
national interest which are recognised as overriding purely
individual or private interests, and
ie, cannot be done out of mere spite
o 2. appropriate compensation is paid.
To the owner. If ever dispute as to what is appropriate
compensation then that has to be decided by the
regular means of international disputes settlement
Can arise out of a state making it so difficult for the foreign
owner of assets that the assets become effectively worthless.
This was the experience of an American construction company
Starot Housing which had bought land in Iran to build housing.
During revolution the Iranian gov among other things throws the
corporations bank account. Claim tribunal decided that
corporation had been deprived of the effective use, control and
benefit of their property rights in Iran. Effectively, Iran had
expropriated the companies property rights and compensation
was payable
Expropriation must be accompanied by appropriate
compensation

What is appropriate compensation?

Developed states tend to want to interpret that to mean payment
that is prompt, adequate and effective (Hull formula)
o According to the UK (1952):

o adequate = the value of the undertaking at the moment

of dispossession, plus interest to date of payment
o prompt = immediate cash, or amount promptly fixed, with
interest and guarantees
o effective = usable outside the paying state
Charter of economic rights proclaims the rights of states to
nationalise or expropriate or transfer ownership of foreign
property provided appropriate as opposed to adequate
compensation is paid
o appropriate, as determined by the paying state (UNGA
Res 3281, 1974)
o Previously favoured by many developing nations with
nationalising agendas
fair (Iran-US Claims Tribunal, 1987) apparently means paying
market value. Lost profits would only be recoverable if
expropriation was unlawful in terms of res 1803 resolution of GA
permitting expropriation
o So the tribunal thought that as long as the expropriation
was for a good cause then the compensation should only
reflect market value at the time of expropriation not lost
profits
o In no case should foreign nationals be entitled to punitive
damages

8.4 DIPLOMATIC PROTECTION AND THE NATION

States can at times take on claims on behalf of their nationals

referred to as diplomatic protection which shouldnt be confused
with consular assistance
Consular assistance is where a consulate simply helps out a
national while that national is in a foreign state i.e. replacement
passport or assistance during periods of civil unrest
Diplomatic protection is where a state actually brings or at least
holds out the possibility of bringing a claim against another state
in relation to one of the first states nationals
Before this can happen two conditions must be met: DASR Draft
Articles on State Responsibility
o DASR art 44: Admissibility of claims
o The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any
applicable rule relating to the nationality of claims;
(b) the claim is one to which the rule of exhaustion of local
remedies applies and any available and effective local
remedy has not been exhausted.
In relation to requirement (a) this requires consideration of the
nationality of the person who has been physically harmed or
interfered with, or the person or corporation that has lost
property. Here we need to consult another set of draft articles

that have been prepared by the ILC but which have never yet
become a treaty. These are the draft articles relating to
diplomatic protection (DADP)
o Somewhat more recent that the DASR having been adopted
by ILC in 2006
Art 1 of the DADP sets out the basic traditional rules on
nationality of claims this rule says that a state can only bring a
claim on behalf of an individual or corporation if that individual is
a national of that state or the corporation is registered in that
state (referred to in art 3) (see below for provisions)

Nationality Rule
DADP art 1: Definition and scope
For the purposes of the present draft articles, diplomatic protection
consists of the invocation by a State, through diplomatic action or
other means of peaceful settlement, of the responsibility of another
State for an injury caused by an internationally wrongful act of that
State to a natural or legal person that is a national of the former
State with a view to the implementation of such responsibility.
DADP art 3: Protection by the State of nationality
1.
The State entitled to exercise diplomatic protection is the
State of nationality.
2.
Notwithstanding paragraph 1, diplomatic protection may be
exercised by a State in respect of a person that is not its national in
accordance with draft article 8.

Note however that DADP art 3(2) and its reference to DADP art 8
This purports to broaden out the rule so as to encompass
stateless people and refugees provided those stateless people or
refugees are lawfully and habitually resident in the state that
seeks to afford them diplomatic protection
Hall does not see art 8 as reflective of CIL

Extension of the nationality rule

DADP art 8: Stateless persons and refugees
1.
A State may exercise diplomatic protection in respect of a
stateless person who, at the date of injury and at the date of the
official presentation of the claim, is lawfully and habitually resident
in that State.
2.
A State may exercise diplomatic protection in respect of a
person who is recognized as a refugee by that State, in accordance
with internationally accepted standards, when that person, at the
date of injury and at the date of the official presentation of the
claim, is lawfully and habitually resident in that State.

3.
Paragraph 2 does not apply in respect of an injury caused by
an internationally wrongful act of the State of nationality of the
refugee.
Determining nationality

Only thing that can be said with certainty is that a state can bring
a claim on behalf of a national of that state
Who is a national is always a question for domestic law. Many
nations traditionally tended towards emphasizing blood lineage
when it comes to determining nationality primarily determined
by that of your parentage or remote ancestry. That can result in
some people being permanently excluded from nationality
Countries that focus on parentage or ancestry are said to follow
the principle of jus sanguinis (right of blood)
o Germany is classic example of state that follows this
Jus soli (right of the soil)
o Nationality is determined largely by place of birth
o Second generation immigrants can be fully integrated into
the host nation
o Historically included France and UK
More recently it is based on a combination of factors including
POB as well as ancestry
But NB European Convention on Nationality 1997 (Council of
Europe)
If you are not born in UK and have no British Ancestry you can
become a British citizen after living in the UK for 5 years. But
Germany is 8 years and Belgium is only 3. Then grafted onto all
these national rules relating to citizenship the EU has no created
concept of EU citizenship
o Everyone who is a national of an EU member state is
automatically also an EU citizen and everyone who is not a
national of an EU state is by definition excluded from EU
citizenship
Outside of the EU can be more complex. What happens if State A
makes claim on behalf of A1 (one of its nationals) whom state A
considers to be a national of State A, and the claim is brought
against state B. Is State B at liberty to refuse to recognise person
A1 as a national of state A?
o Answer generally speaking is no - Hague Convention on
Conflict of Nationality Laws, 1937
Hague Convention on Conflict of Nationality Laws, 1937
o Article 1
It is for each State to determine under its own law who are
its nationals. This law shall be recognised by other States in
so far as it is consistent with international conventions,
international custom, and the principles of law generally
recognised with regard to nationality.

o This stipulates that while it is for each state to determine

its own nationality laws, those laws only need to be
recognized by other states insofar as they are consistent
with international conventions, customs and principles of
law generally recognized with regard to nationality
o However almost all nationality laws follow the same
principles even though they differ in detail
Nationality is almost always determined by a combination of four
factors set out in art 4 of DADP:
o State of nationality of a natural person
For the purposes of the diplomatic protection of a natural
person, a State of nationality means a State whose
nationality that person has acquired, in accordance with
the law of that State, by birth, descent, naturalization,
succession of States or in any other manner, not
inconsistent with international law.
o Succession of states is where a population changes hands
between states i.e. when soviet union dissolved and the
population of the various republics of the old USSR
divulged to new independent states
Many people are dual nationals. Difficulties arise where a state
wishes to afford diplomatic protection to a person in relation to
another state of which that person is also a national. Old answer
was no under art 4. But now can be done under art 7
DADP: Dual nationality
o Article 6: Multiple nationality and claim against a
third State
1. Any State of which a dual or multiple national is a
national may exercise diplomatic protection in respect of
that national against a State of which that person is not a
national.
Two or more States of nationality may jointly exercise
diplomatic protection in respect of a dual or multiple
national.
o Article 7: Multiple nationality and claim against a
State of nationality
A State of nationality may not exercise diplomatic
protection in respect of a person against a State of which
that person is also a national unless the nationality of the
former State is predominant, both at the date of injury and
at the date of the official presentation of the claim.
According to ILC, the new Art 7 DADP has superseded the older
art 4 as representative of CIL
Whether one nationality is predominant over another is
determined by numerous factors. I.e. where does the person
habitually live, spend most of their time, how long have they
been a national of the state in question etc

Situation gets more complicated when a person wants the

protection of a state which that person is a national and wants
protection against a state of which that person is not national but
which that person is far more connected with. I.e. many British
residents in Australia that have never taken out Aus citizenship
but yet have spent almost entire lives here. Could UK offer them
diplomatic protection against Aus?
o Situation like that came up in Nottebohm (ICJ, 1955)

Nottebohm (ICJ, 1955)

German moved to Guatemala at age of 24. Lived and worked
there for 38 years until 62. By then WWII had started and
Guatemala seized his property and expelled him as an enemy
alien
At outbreak of law, presumably fearing that that situation would
arise, he had gone to Liechtenstein where he spent only few days
but was apparently enough to obtain Liechtenstein nationality
as result he lost German nationality because at the time German
law would not allow dual nationality
At end of war Liechtenstein brought claim against Guatemala in
relation they way it had treated him, one of their citizens
So here we have a state whose citizen has only spent a few days
there wanting to bring a claim against a state for which the
person is not a citizen but where he spent 38 years living and
working. Is this permissible?
ICJ had no doubt that L was entitled to extend nationality to him
for internal purposes if it wished to do so. But here ICJ was not
concerned with internal purposes but whether L was entitled to
bring a claim against another state in relation to what really was
no more than a notion/nominal national bond
ICJ took view that for nationality to be recognisable for the
purposes of IL, the bond between national and state had to be
real and effective
At the time of his naturalisation into L, he had no history of living
in that state and he had no intention of staying there afterwards.
Only reason he went there was that G had kicked him out and
would not have him back. Those facts established he had no real
bond with L but he did have long standing connection with G
Held that L could not bring case against G in relation to
treatment of this national
1881

Friedrich Nottebohm was born in Germany, automatically acquiring

German nationality.

1905

Aged around 24, Nottebohm moved to Guatemala, where he lived

and worked for the next 38 years. However, he did not acquire
Guatemalan nationality.

1939

Nottebohm visited Liechtenstein, where he was granted

Liechtenstein nationality, thus losing his German nationality.

Nottebohm then returned to Guatemala.

1943

Aged around 62, Nottebohm was expelled from Guatemala as an

enemy (ie German) national. His property was also seized.

1951

Liechtenstein claimed against Guatemala in the ICJ re Guatemalas

treatment of Nottebohm.

1955

ICJ held: Liechtenstein was not entitled to bring a claim against

Guatemala re Nottebohm, since his connection with Liechtenstein
was not real and effective. But he did have a real and effective
connection with Guatemala (even though he was not a Guatemalan
national.)

What this case illustrates is that it is unlikely to be effective in IL

for someone to quickly obtain a nationality of convenience.
Particularly if the purpose of that was to protect him from a state
with whom he has a genuine connection
Hall is of view that if he had been born in L and had gained L
nationality by birth or if he had parents from that state and
obtained it that way, then that might have been enough to found
a genuine connection

Can State A bring a claim against State B in relation to State Bs

treatment of Individual X?

Diplomatic protection for corporations

Basic rule is that there must exist a bond of nationality between

the state that is seeking to grant DP and the corporation in
question

In case of non-natural person the bond of nationality is

determined by where the corporation is incorporated and where
the corporation has its registered office
That became clear as result of Barcelona Traction case: Belgium
v Spain (Barcelona Traction), ICJ, 1970
o Barcelona Traction was a company that operated in Spain.
It was registered in Canada but largely owned by Belgians.
o Belgium wished to extend diplomatic protection to the
Belgian stockholders who had suffered financial loss due to
Spains treatment of the company.
o Spain objected on basis that although company was mostly
owned by Belgians, company was incorporated under laws
of Canada and it had its registered office in Canada.
o The ICJ held that only Canada could (but was not obliged
to) grant diplomatic protection in relation to the company
There is a certain degree of risk investing in a foreign company. If
the Belgian stockholders had invested in a Belgian company then
Belgium would have been in a much stronger position to protect
them
The ILC has tried a different approach to defining rights to DP
trying by DADP art 9 to find an effective link test
o Under that proposed test, Belgium probably would have
been able to bring an action against Spain
o Hall is of the view that art 9 is what is termed lex ferenda
a proposal for future law as oppose to the way which IL is
today
Worth noting that even without art 9 Belgium would have been
able to protect the shareholders in any of three situations:
o If company had ceased to exist
o If Canada had been legally incapacitated from exercising
protection
If Canada ceased to exist
o If the shareholders rights as opposed to interests had been
attacked by Spain
Right to receive dividends impinged
Increasingly, capital knows no national boundaries. This has long
been the case in relation to one particular industry namely the
shipping industry

Diplomatic protection for merchant shipping

As of 2009 almost 40% of the worlds entire fleet of merchant

shipping were registered in just 3 relatively small states: Panama,
Liberia and the Marshall Islands, Despite relatively small
population and even smaller economies of those states
In other words very few of those ships were owned by the
capitals of those states
Crews of ships are normally drawn from different states

St Vincent and the Grenadines v Guinea (Saiga case,

International Tribunal for the Law of the Sea, 1999)
o M/V Saiga was registered in St Vincent, owned by
Cypriots, chartered by Swiss and crewed largely by
Ukrainians. It was attacked by Guinea.
o The International Tribunal held that the national state of a
ship is the state in which the ship is registered (St Vincent)

8.5 EXHAUSTION OF LOCAL REMEDIES

Conditions for diplomatic protection

DASR art 44: Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule
relating to the nationality of claims;
(b)the claim is one to which the rule of exhaustion of local
remedies applies and any available and effective local remedy
has not been exhausted.
So far we looked at (a). Now we look at second requirement (b)
which relates to exhaustion of local remedies
Basic principle here is that State A should not be able to bring a
claim against State B in relation to a national of state A until that
national has brought a claim in national law and has pursued that
claim as far as possible
Basic idea is that where a state or one of its nationals has
treated a foreign national poorly then that state should first have
an opportunity to make amends via its own judicial process
It is only once that systems fails to make any amends or has
made insufficient amends that a state should then be held
accountable in IL
Note that this doesnt apply to states that directly suffer wrongs.
Lets say State A causes damage to State B as an act of
aggression. State B doesnt have to first bring proceedings in
domestic courts of State A. State B can proceed directly to
bringing claim in IL i.e. ICJ
Sometimes dividing line can be extremely thin between a wrong
committed directly against a state and a wrong was committed
against a state that gives rise to a right to extends DP of a
national
Elettronica Sicular (ELSI) (ICJ, 1989)
o Two US corporations owned ELSI, an electronics company in
Palermo, Italy.
o After the company ceased to be profitable, the US
corporations sought to liquidate ELSIs assets.
o The Italian government then requisitioned the ELSI plant in
order to prevent its closure.

o The US took Italy to the ICJ, claiming a breach of the Treaty

of Friendship, Commerce and Navigation between the two
states.
o The ICJ considered this a breach of the rule against
exhaustion of local remedies. The US was only concerned
about the treatment of these two US corporations. This was
in substance (if not in form) an instance of diplomatic
protection.
If the treatment of the private companies is what pervades the
claim as a whole, then it should first be addressed in the local
courts
If the harm to the private interest is done by a state outside of its
area adjudication, i.e. State A sinks a yacht belonging to a
national of State B and it did so in harbor of State C, then state B
would be able to extend DP of its national against State A without
the national having to sue state A in State A. This would be
difficult because wrongful act was committed in State C
Note that according to ILC commentary on DASR, the only local
remedies that have to be exhausted are those that are available
and effective. If it is obvious that a legal action in a domestic
court is going to lose, then it doesnt have to be brought

Lecture 9 State Jurisdiction and Immunity

9.1 JURISDICTION GENERALLY

Jurisdiction refers to the scope of an entitys legal authority

Can be defined in many different ways:
o Max amount of a claim i.e. $750,000 NSW District Court
unless otherwise agreed by parties
o Nature of crime
o Geographically by reference to territory
State sovereignty refers to the possession of supreme power
someone has sovereignty if there is no one above them to whom
that person is answerable
Jurisdiction defines the limits of sovereignty so state may be
able to exercise sovereignty but it will only be able to exercise
within its jurisdiction
o Easiest definition of a states jurisdiction is to say that it
coincides with that states territory. However, situation isnt
quite that simple. There are things the state can do outside
its territory and things it cannot do within its territory
o Primarily concerned with limits of a states criminal
jurisdiction
o Issues of civil jurisdiction is an area of law tackled if you
study private IL
We are looking at the extent to which a state is entitled to punish
the perpetrators of certain acts and that raises 4 key questions

o 1. what is the nationality of the alleged criminal?

o 2. what is the nationality of the victim?
o 3. where did the crime take place?
4. what was the nature of the crime?

Questions re state jurisdiction

To what extent is a state able to exercise jurisdiction over its
nationals when those nationals are overseas?
To what extent is a state entitled to exercise jurisdiction in
relation to events that occur outside the territory of any state?
i.e. events that occur on the high seas or in outer space
To what extent can Australia exercise jurisdiction to events that
occur on a ship registered in Australia
To what extent is a state entitled to exercise jurisdiction over
foreign nationals within its own territory
The fact that we ask these questions is us acknowledging that a
state does not have absolute power even in terms of controlling
what its own nationals do within its own territory
Jurisdiction
Prescriptive jurisdiction
o Relates to the power to prescribe what activities are lawful
and unlawful. E.g. Australia is entitled to prescribe what
intoxicants may be lawfully consumed within Australia.
Enforcement jurisdiction
o Right of a state to actually do something about breaches of
its prescriptions
So now we must refine the questions we posed above
As a general rule, prescriptive jurisdiction is far more broad than
enforcement jurisdiction. Australia can create all these laws
about what people cannot do overseas but whether or not they
can enforce it is difficult
Here we consider this section that is quite complex in relation to
prescriptive and enforcement jurisdiction:
CriminalCodes272.8(Cth)
(1)Apersoncommitsanoffenceif:
(a)thepersonengagesinsexualintercoursewithanotherperson(thechild);and

On the face of the section it seems to apply to not only

Australian nationals but to anybody and note that it does not say
that the victim of the offence has to be an Australian national
raises the question whether it makes it an offence for someone
who is not an Australian to abuse a child who is not an Australian
and to commit the crime outside Australia and if so at what point

is Aus claiming enforcement jurisdiction (right to go an arrest

perpetrator)
Bases of jurisdiction (four principles upon which a claim to
jurisdiction can be grounded)
Territorial principle
o Principle most commonly invoked in support for a claim to
jurisdiction
Nationality principle
Protective principle
Universality principle
Territorial principle
Actual de facto control over territory tends to go hand in hand
with a right to claim statehood and with statehood comes
sovereignty and the right to prescribe rules in relation to what
happens in territory in question
There are exceptions to this general rule:
o If one state invades another and occupies the territory of
that state, then the invading state only has limited rights of
jurisdiction in relation to events that occur in the occupied
territory
o Notwithstanding, as a general rule any state is entitled to
govern what happens in that state
Normally state A can decide what happens within state A but
cannot enter into the territory of state B in order to apprehend
criminal in state B at least without state Bs consent although
exceptions to the rule that relate to self defence
Enforcement jurisdiction is reliant on a recognised basis of
prescriptive jurisdiction
IL does not permit a state to enforce a domestic law against a
foreign national in respect of an act committed wholly outside the
states territory unless the universality or protective principles
apply
State may normally prescribe laws re events occring within its
territory, and may enforce those laws against people within its
territory (regardless of their nationality)
States may do so in relation to conduct:
o Originating within its territory (subjective territorial
principle)
E.g. state A can prosecute X for sending a letter
bomb from state A to an address in state C
o Where effects are felt within its territory, or the conduct
partly occurs within its territory (objective territorial
principle)
E.g. state C can prosecute X for sending a letter
bomb from state A to state C, assuming it reaches
state C (Lotus case)

Probably state B could also prosecute X if the letter

were sent via state B
o Objective territorial principle illustrated by 1927 PCIJ case
concerning collision in international waters of a French ship
and Turkish ship
o As result of collision some of crew and passengers on
Turkish ship died. French ship docked in Turkey where
officer of watch was charged under Turkish law with offence
of involuntary manslaughter
o Effect of alleged offence; deaths; they occurred on board a
Turkish vessel and court held that a ship that flies the
Turkish flag is in effect a party of Turkey even though the
ship at the time was in the high seas
o However, rules in relation to collision of international ships
has changed since this case was decided. Now in case of
collisions of ships on the high seas criminal jurisdiction may
only be exercised by the flag state of the vessel at fault (in
this case the French ship) or the state whose nationality
accused individual possesses
States are entitled to exercise prescriptive and enforcement
jurisdiction in circumstances where the effects of an action are
felt in their territory even though actions occurred outside its
territory
What about events that dont constitute collisions between ships
but occur wholly on board one ship while in international waters?

Jurisdiction over events occurring onboard ships, aircraft &

spacecraft
If ship is in territorial waters, then state of relevant territory
applies even if ship registered in another state. Same principle
applies to aircraft and spacecraft
E.g. Qantas flight from Aus to Africa you start under Aus
jurisdiction then as your fly over international waters you remain
under Aus jurisdiction but as you fly over African territorial waters
you come under their jurisdiction
While outside state territory the state of registration has
jurisdiction
o eg a ship or plane in or over international waters, or a
spacecraft in outer space
While inside state territory that state has jurisdiction
o eg a ship or plane in or over territorial waters
o a plane flying over land territory
http://casa-query.funnelback.com/search/search.cgi?
collection=casa_aircraft_register - official database of aircrafts
registered in Australia
http://www.airframes.org/ - unofficial website that tells you info
about different aircrafts
If plane registration starts with VH then it is registered in Aus

Nationality principle
Active nationality principle:
Postulates that states are free to exercise criminal jurisdiction
over what their nationals do even when their nationals are
overseas and all elements of the offence including effects occur
outside of the state in question
o E.g. s 272.8 of Criminal Code: unlawful for Australians to
have sex with children even outside Aus
Active nationality principle
o considers the nationality of the criminal
o location of the crime is irrelevant
Passive nationality principle:
o considers the nationality of the victim
o not accepted by most states
o Brazil is a state that uses this principle
o Problem with this principle is that it makes it far too easy
for anyone to unintentionally infringe another states laws
Protective principle
In some ways this is similar to objective territorial principle
considers where the effects of criminal act were felt
Protective principle relates only to the protection of the state.
Harm doesnt have to be felt within the territory of the state in
question but the actual or threatened injury must be directed at
the states security interests
o E.g. If in Aus I counterfeit US currency I can be charged for
doing so next time I visit US even if I use the currency
elsewhere
Proposes that a state can exercise criminal jurisdiction in relation
to acts that threaten or injure that state, regardless of where
those acts take place and then nationaliy of the perpetrator
o Eichmann case
Israel kidnapped E, a former Nazi, and smuggled him
out of Argentina to stand trial in Israel for his role in
the Holocaust
Israel claimed the right to do even though E was not
an Israeli national and his actions had occurred
outside Israel (which anyway did not exist at the time
of the Holocaust)
District Court of Jerusalem took view that there was a
special connection between Israel and crimes
committed by E since people of Israel constituted the
target and victim of most of his crimes
o NB: Conduct must generally be regarded as criminal
by community of states
Universality principle

As name suggest, universal principle posits that any state should

be able to prosecute anyone in relation to what they have done
regardless of where they do it
Sometimes one states laws tell us we are able to do something
and another states laws might say we cannot
Relates only to certain serious offences (they pose a threat to the
international order as a whole):
o piracy
o war crimes
o crimes against humanity
o genocide
o offences under treaties that require prosecution or
extradition, eg:
aircraft hijacking or sabotage
marine hijacking or sabotage
hostage taking
terrorist bombing and financing
torture
violence against protected persons
heads of state or government or foreign
ministers (and their accompanying families)
If state A has custody of a perpetrator of one the serious
offences, then it may prosecute that person regardless of her
nationality and regardless of where offence took place
Oldest application of universality principle was to piracy
Principle of piracy is now found in 1982 Convention on Law of the
Sea (art 101)
o Piracy can occur in relation to ships but also aircrafts
provided the actions in question take place outside the
jurisdiction of any state e.g. if plane is flying over
international waters
o Note that piracy only relates to private ships and aircraft
not military ones
o Rules relating to piracy are so old that they form parts of
CIL as well as being found in the Convention
An illustration of 1970 Convention re Aircraft Hijacking
o Pakistani national hijacks aircraft Aus registered aircraft on
way to USA. Hijack takes place over high seas
o Pakistan, Aus and USA are all parties to 1970 Hijacking
Convention
o If the aircraft lands in the US and the hijackers are
detained, the US must either:
extradite the hijackers for prosecution in Australia, or
prosecute the hijackers in the USA.
o The hijackers now escapes into Canada (another party to
the treaty). They are captured by the Canadian police.
Canada must either:

o NB:

extradite the hijackers for prosecution in the USA or

Australia, or
prosecute the hijackers in Canada.
extradition to Pakistan is not an option, nor is
extradition to a state on the basis of the nationality of
one or more of the passengers on the plane.
However, the Convention re hostage taking is
different: it takes account of the nationality of the
hostage taker.
Other conventions (eg the one re terrorist bombing)
also takes account of the nationality of the target.

Codifying state immunity

States enjoy sovereignty in relation to their own territory
Sovereignty entails the absence of any superior power. However
sovereignty should not be confused with the right to do whatever
you like. States, though sovereign are nevertheless obliged to
preserve pre-emptory norms of IL
Among those pre-emptory norms is the obligation to respect the
sovereignty of other states
Sovereign immunity is an extension of the general principle that
no state may be made subject to the jurisdiction of any other
state against its will
Originally that rule extended to any emanation of a state as well
as to states property. However during course of 20th century
states began moving away from that absolute position
Denial of immunity to states in relation to their purely
commercial activities came to be reflected in domestic law of
several states
Process began in civil law states. In Europe the council of Europe
sought to standardise IL relating to immunities - European
Convention on State Immunity, 1972
o That Convention then informed domestic legislation in a
number of states including those operating common law
system e.g. Australia - Foreign States Immunities Act 1985
(Cth)
These domestic laws present evidence of CIL and that has been
clarified by ILC Draft Articles on Jurisdictional Immunities of
States and their Property, 1991 (DAJI)
o generally considered to reflect customary international law
Those Draft Articles lead to UN Convention on Jurisdictional
Immunities of States and their Property, 2004
o Adopted by GA in 2004 and opened for signature in 2005
o Comes into force once there are 30 parties
There were 15 as at 19 April 2014
Aus and US not yet party but UK has signed treaty
but yet to ratify

o Until it gains more parties, 1991 Draft Articles are usually

taken to reflect CIL
DAJI Pt II: general principles re state immunity
Art 5: general presumption of immunity
o A State enjoys immunity, in respect of itself and its
property, from the jurisdiction of the courts of another
State subject to the provisions of the present articles.
I.e. the starting position is one of immunity
Art 6: modalities for giving effect to state immunity
Art 7: no immunity if state expressly consents to exercise of
jurisdiction
o State cannot invoke immunity if it has expressly consented
to the exercise of jurisdiction by court in question
Art 8: no immunity if state participates in court proceedings
o State can also lose immunity if it itself institutes
proceedings or if it intervenes in proceedings except to
invoke immunity
Art 9: no immunity if state counterclaims
DAJI Pt III: proceedings in which immunity cannot be invoked
Art 10: commercial transactions
Art 11: contracts of employment
Art 12: personal injuries and damage to property
Art 13: ownership, possession and use of property
Art 14: intellectual and industrial property
Art 15: participation in companies or other collective bodies
Art 16: ships owned or operated by a state
Art 17: effect of an arbitration agreement
Diplomatic immunity
Law relating to this area has been codified and developed by
Vienna Convention on Diplomatic Relations, 1961
Key article - Art 31 grants diplomatic agents (head of diplomatic
mission which will usually be ambassador or member of
diplomatic staff of the mission):
o absolute immunity re criminal jurisdiction of the receiving
State
o qualified immunity re civil and administrative jurisdiction of
the receiving State
exceptions apply re:
real estate disputes (land, buildings etc, unless
property held on behalf of the sending state for
purposes of the mission)
actions re succession in which diplomatic agent
involved as executor, administrator, heir or legatee
as private person and not on behalf of sending state
(ie wills and probate)

professional and commercial activity outside the

agents official functions.
Seems to be a lay on understanding that the consular constitutes
part of the states embassy not correct e.g. land on which US
embassy is on in Canberra is still Aus soil however embassys are
inviable as are diplomatic bag (mail passing in and out of
embassy)
Diplomats only enjoy immunity while they are diplomats. Once
they cease to be diplomats they can be held to account including
in relation to things they did while they were diplomats so
former diplomats should be careful in revisiting a former posting
while on holiday
States can waive immunity in relation to some or all of their own
diplomats and may do so if diplomat has behaved outrageously
States can punish their own diplomats
Receiving states can also declare a diplomat a persona non grata
meaning that the sending state would then have to recall that
person or terminate that persons diplomatic functions
Consuls are the poor cousins of diplomats when it comes to
immunity

Consular immunity
Their immunities set out in the Vienna Convention on Consular
Relations, 1963
Consuls do not enjoy immunity form the jurisdiction of local
courts and agencies except in matters arising in the performance
of his or her official functions
Partial immunity against criminal jurisdiction: can only be
arrested or detained in relation to a grave crime and pursuant
to a decision by a competent judicial authority
Heads of state
Immunity enjoyed by these people is absolute while they are in
office but after they cease to hold office it applies only ratione
materiae in relation to what they head of state or other person
did as part of his or her official functions while in office e.g. if
head of state were to sexually abuse hotel chamber maid while
on official visit to foreign state, then the head of state could not
be prosecuted in that state while he is still head of state. But
once he ceases to be head of state then the matter is different
Simple fact that head of state did something ultra vires while
head of state that isnt enough to remove immunity in relation to
head of states actions
o This is because the process of determining if the head of
states actions were ultra vires would in itself involve a
domestic court impugning the validity in the domestic laws
of another state of that states legislative executive and

judicial functions not permitted under rules of sovereign

immunity
More controversial is question of whether head of state is entitled
to immunity in relation to acts that constitute a crime for which
universal jurisdiction has been established such as war crime or
crime against humanity
o Here we need to consider leading case on sovereign
immunity: Pinochets case
Pinochets case
P was president of Chile from 1973 1990 during which period its
claimed that his gov killed over 3000 people and tortured around
29,000
In 1998, 8 years after he left office, P visited London for medical
treatment
While there, a Spanish court issued an international arrest
warrant on no. of charges re torture, murder and conspiracy to
murder
Held: (House of Lords, per Lord Browne-Wilkinson)
o Absolute immunity for serving heads of state
o No immunity for former heads of state in relation to acts
which, at the time when they occurred, constituted an
international crime for which a form of universal jurisdiction
has been established (eg torture)
o Implementation of torture which is contrary to jus cogens,
that cannot constitute a state function. Judge viewed
charges of murder somewhat differently since there is no
universal jurisdiction in relation to murder
So it would seem that sovereign immunity only lifted in relation
to acts which at the time when they occurred constituted an
international crime for which a form of universal jurisdiction has
been established
Sovereign immunity enjoyed by serving heads of state extends to
heads of government and ministers of foreign affairs but note
that in relation to heads of gov and foreign ministers as well as
heads of state there is nothing in IL to stop the persons home
state from prosecuting them as long as domestic law allows that
to happen
LECTURE 10 INTERNATIONAL DISPUTE SETTLEMENT
I Non-judicial settlement of disputes
Means of settling disputes that do not involve courts or judges
that apply rules of general application.
Violence
UN Charter Art 2(3): All Members shall settle their international
disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered.
o Violence can be used in self-defence or when authorised by
the security council

One way to understand laws is as a means of regulating violence.

A large reason for having civil courts is to hear the sides of those
in a dispute in order to settle it without violence. They are also
used to punish those that initiate or engage in violence.
There is not a centralised enforcement agency to which the
monopoly on the regulation of violence is allocated.
The UNSC is like a town sheriff, in that they only become relevant
once violence becomes involved however they usually are not
involved prior to the incitement of violence.
The use of force used to be a lawful means of settling disputes
between states, however in the early 20th century international
opinion turned against violence
Kellogg Briand Pact (Pact of Paris, General Treaty for renunciation
of war as an instrument of national policy) - this has now been
overtaken by the UN Charter 1945.
Negotiation
may be assisted by enquiry, good offices, mediation and
conciliation
aided by a third party, using various means to enable to first two
parties to reach a satisfactory outcome.
Arbitration
issues a binding award on the basis of law as a result of an
undertaking voluntarily accepted.
Similar to judicial settlement
UN Charter, Chapter VI (Role of the security council)
Role is generally to guard the peace. They do not involve over
interpretation of treaties or arguments over the location of
boundaries however if it seems these disputes will incite violence
then the SC may involve itself.
Applies to disputes with the potential to lead to a breach of
international peace and security
Art 33: parties should first of all seek a peaceful solution
o SC may call upon the parties to do this.
Art 34: UNSC may investigate dispute
o Not with the view of deciding who is to blame, only to work
out whether the dispute will threaten peace or security.
Art 35: states may bring the dispute to the attention of the UNSC
or UNGA
Art 36: UNSC may make recommendations
o Proper place for settlement is not the SC, but the ICJ. The
SC cannot make orders, merely recommendations.
o Only once the SC decides there is potential for breach of
peace, that chap 7 kicks in and then the SC can start to
make orders i.e. trade sanctions
Art 37: if attempts at a peaceful solution fail, the dispute must be
referred to the UNSC

In the event of a threatened or actual breach of the peace or act

of aggression, the UNSCs Chapter VII powers are engaged: UNSC
can authorise sanctions or even military action
II Negotiations
Advantages:
o can be quick and cheap
o may result in an amicable arrangement
Disadvantages:
o do not guarantee a settlement
settlement is particularly unlikely if the parties
continue to dispute issues of fact
o any settlement may not be principled
rather than being reached using legal arguments, the
outcome of negotiations may simply reflect the
parties relative military, economic or political power
Assisting Negotiation
Third parties can help states reach a negotiated settlement in a
number of ways:
o enquiry (fact finding)
investigating the facts and presenting them in such
as way that does not apportion blame
third party usually needs to be removed from the
dispute to ensure unbiased and neutral decisions.
when two sides cant agree on the basic facts,
enquiry is useful.
o good offices
interceding so as to get parties to a dispute to at
least talk to each other
preferably someone that has the respect of both
sides party to the dispute i.e. two catholic states may
use the pope, or the Queen if a dispute between two
members of the Commonwealth.
o mediation
taking a role in negotiations, conveying messages
(shuttle diplomacy), making suggestions, reconciling
conflicting positions, etc.
Henry Kissienger was the most famous figure in
shuttle diplomacy. He used it to facilitate a secession
of hostilities following the war between Israel and its
neighbours Yom Kippur.
o conciliation
a more formalised method of mediation, often
involving a conciliator appointed by the parties to the
dispute
III Arbitration
a procedure for the settlement of disputes between states by a
binding award on the basis of law and as a result of an
undertaking voluntarily given

o International Law Commission, 1952

Arbitration differs from judicial settlement in two respects:
1. the parties choose the arbitrator (states are far more likely
to adhere to an arbitration if they have input into the
choosing of the arbitrator)
2. the parties choose the body of rules to be applied, as well
as the procedure to be followed
While arbitration is something states voluntarily submit to, states
are often obliged to submit to arbitration due to the terms of a
treaty.
Treaty of Canterbury, 1986
o This contains an example of an arbitration clause, see Art
19 http://www.channeltunneligc.co.uk/Essentialtexts,24.html?lang=en
o Treaty between France and UK, relating to building of the
tunnel under the English Channel. This is a typical example
of the brevity of treaties as the treaty is only 14 pages long
despite the complexity of the project.
o The treaty envisages a three person arbitral tribunal with
one member chosen by France, the other by Britain and the
French and British nominee would then between them
agree on a third member of the tribunal.
the tribunal would then take decisions of a majority vote,
with no arbitrator allowed to refrain
o The decisions are said to be final and binding. Disputes
relating to the treaty are to be resolved by reference to the
treaty as well as by reference to INT law.
o It also states that principles of equity may be implied if the
parties agree (fairly typical arbitration clause).
o Compremis can be concluded which is a side agreement
relating to the treaty in order to settle disputes.
o Art 19 seemed to have learnt the lesson from the case of
Bulgaria, where there was provision for asking the third
party to appoint all members of the arbitral tribunal.
Interpretation of Peace Treaties advisory opinion ICJ 1950
In 1947 peace treaties were concluded between the Allies and
the Axis powers of Bulgaria, Hungary and Romania
Political guarantees contained in the treaty such as the human
rights one below.
In most east European countries communism prevailed and by
1948 a lot of the western allies felt the communist governments
were not fulfilling their human rights obligations. They therefore
turned to the arbitration clause art 35 and 36 (below).
http://www.austlii.edu.au/au/other/dfat/treaties/1948/2.html

Bulgaria, Hungary and Romania failed to put forward a person, as

according to them there was no need for a commission as there
wasnt even a dispute.
The UNGA referred to matter to the ICJ for an advisory opinion
The ICJ held the BHR were in breach of the treaty for failing to
appoint a representative, so in effect the ICJ was saying that if
you have in INT dispute over whether there is an INT dispute,
then you have an INT dispute.
BHR still refused to appoint a representative. This raised the
question as to whether the UNSG could appoint the third member
as well as a representative for these three states. The ICJ said
that they couldnt.
o Art 36(1) allows the SG to appoint only the third member,
hence no power to appoint the other members unless the
parties agree otherwise.
o There should have been a provision allowing for the
appointment of all arbitrators if one of the parties refused
to cooperate.
Model Rules on Arbitral Procedures 1958

This shows the pitfall found in 1947 peace treaties has now been
avoided.

Art 32, it is generally understood that arbitral awards can be held

invalid in certain circumstances. Under art 35.
o Art 35(a) State A and State B agree to take to arbitration
over rights to oil. Arbitration panel decides A is entitled to
the oil found under the sea bed but is also entitled to the
gas reserves. State B may be entitled to challenge to latter
part of the award on the basis that the tribunal was not
asked to award on the gas.
Adhoc arbitration tribunal the Iran-US claims tribunal (sits in the
peace palace in the Hague) hearing claims arising out of the
1979 Iranian revolution which led to the Iran hostage crisis in
which Islamist militants held 52 Americans in Tehran for over a
year. This led to the US freezing Iranian assets. It was finally
settled by the Algerian accords which provided for the
establishment of the tribunal.
IV ICJ
It does not have automatic binding international jurisdiction.
States must submit to the jurisdiction of the ICJ.

Principal organ of the UN. It is the successor to the PCIJ which

was set up by the League of Nations. After WWII, the PCIJ was
dissolved and replaced by the UN ICJ which operates similarly to
the PCIJ.
The Statute of the ICJ is annexed to the UN Charter. IT has 15
judges, with president and vice president
o The judges are chose by dividing the member states up
into groupsing, with each grouping then nominating
members for a place as a judge. Which are then chose from
by the UNSC and UNGA.
o The Pres and VP are elected by the judges themselves.
o List of current ICJ judges
Contentious jurisdiction
This can only be exercised where states have consented
Only states can bring proceedings before the courts. It cannot be
brought against INT organisations.
Although almost all states are parties to the UN, and all have
consented to the statute of the ICJ, it doesnt mean that they
have consented for their dispute to be settled by the ICJ.
Consent can be:
o specific to a treaty (ie the treaty says that the ICJ will settle
disputes)
o specific to a dispute (ie the parties agree to a particular
dispute being heard by the ICJ), or
o More general, given by means of a declaration under the
optional clause (see next slide)
List of states that have made optional clause
declarations (71 as at May 2015)
Advisory jurisdiction
Statute of the ICJ 1945

When a state makes a declaration under the optional clause, it

only makes it in relation to other states that have made a similar
declaration. It can only bring proceedings against these states.

Australia and UK have.

When making a declaration, they can exclude certain types of
disputes i.e. Australia has in relation to the delimitation of
maritime zones.
Art 36(6) Can a state in effect derogate from the courts right to
determine whether it has jurisdiction?
o Consider the declaration made by France in 1939
(withdrawn)
Norwegian Loans case 1957

In 1955 France sought to start proceedings against Norway in

relation to Norways treatment of French nationals. Normally
Norway may have accepted to ICJs jurisdiction however on this
occasion N refused to do so; as Norway has said they will accept
it in relation to states that have similarly accepted the courts
jurisdiction, but France hasnt (excluding disputes relating to
matters in domestic jurisdiction) and since Norway considers to
dispute to fall within their own domestic jurisdiction, they wont
allow France to bring proceedings against N as F wouldnt allow N
to do the same.
o This is known as the principle of reciprocity.
o N also said that if France were to insist on the right to make
decision on jurisdiction of the ICJ then Norway based on
reciprocity could do the same thing. The ICJ agreed with
Norways argument.
How to work out whether the ICJ has jurisdiction to hear proceedings
brought by State A Against State B

Does the ICJ have jurisdiction?

State A wishes to bring three sets of proceedings against State B.
The proceedings are of types X, Y and Z.
State A accepts jurisdiction only re proceedings brought against it
of types X and Y.
State B accepts jurisdiction only re proceedings brought against it
of types Y and Z, and even then only on condition of reciprocity.
In relation to proceedings of type X:
o No jurisdiction. State B has not accepted jurisdiction
in relation to proceedings of type X.
In relation to proceedings of type Y:
o Jurisdiction. Both States A and B have accepted
jurisdiction re proceedings of type Y.
In relation to proceedings of type Z:
o No jurisdiction. Even though State B accepted
jurisdiction re proceedings of type Z, it did so on
condition of reciprocity. The ICJ would have no
jurisdiction in relation to similar proceedings
brought against State A, therefore it has no
jurisdiction in relation to proceedings of type Z
brought by State A against states accepting
jurisdiction only on condition of reciprocity.
There will only be jurisdiction where the will of the two states for
jurisdiction aligns.
Implication of the Norwegian loans case is that the state is able
to submit a reservation so that the state is able to decide who
has jurisdiction. There are problems with facts in this case
however as Norway did not challenge whether France has the
right to decide the issue of jurisdiction. They argued on the basis
of reciprocity.
o If Norway had instead challenged Frances right to enter self
judging reservations, then the outcome couldve been quite
different.

o According to one judge, self-judging reservations are not

permitted. States can limit the jurisdiction, however it is for
the ICJ to decide whether a particular dispute falls within
those limitations, not for the parties.
V Litigation effecting third states
Monetary Gold case, 1953
Gold 2300kg originally belonging to Albania was seized by
Germany in 1943 during the war..
Upon Germanys defeat in 1945, the gold fell into the hands of
the western Allies after Germany took gold from Rome to
Germany (France, the UK and the USA)
Italy claimed the gold, so brought ICJ proceedings against the
Allies. Meanwhile, Albania also claimed the gold (but did not
bring ICJ proceedings).
ICJ declined jurisdiction to hear Italys claim, since the outcome
would affect the rights of Albania, which had not consented to
the ICJs jurisdiction.
East Timor case, 1995
East Timor had been a Portuguese colony since the 16th century.
However, by the early 1970s Portugal was in the process of
decolonising East Timor.
In 1975, before this process was complete, East Timor was
invaded by Indonesia. This was generally considered as a breach
of the right of the East Timorese to self-determination. This
interrupted the decolonisation process.
Australia recognised East Timor as Indonesian territory. In 1989
Australia concluded a treaty with Indonesia, delimiting the
continental shelf between East Timor and Australia.
In 1991, Portugal commenced ICJ proceedings against Australia,
claiming that the 1989 treaty breached Portuguese sovereignty
(since Portugal still lay claim to East Timor).
The ICJ refused to hear the case on the basis that Indonesias
rights would be in question (i.e. was East Timor now Indonesian
territory?) and Indonesia had not consented to the ICJs
jurisdiction.
NB: the fact that the right of the East Timorese to selfdetermination was erga omnes made no difference. The principle
in the Monetary Gold case applied.
Phosphate Lands case, 1992
Nauru had been a German colony, but Australia, the UK and New
Zealand were granted a League of Nations trustee mandate over
the island in 1923.
Nauru later sought to bring proceedings against Australia in
relation to phosphate mining. New Zealand and the UK had also
been involved in mining on Nauru.
The ICJ was prepared to hear the proceedings even though New
Zealand and the UK could not be party to those proceedings,
since they had not given the requisite consent to ICJ jurisdiction.

The interests of the latter States might be indirectly affected, but

they did not constitute the very subject-matter of the dispute.
Bosnian Genocide Case ICJ 2007
Designing a judicial system causes three questions to arise:
1. Who bears the burden of proof?
a. The applicant state, although if either party refuses to
place relevant material into evidence then the Court may
draw inferences averse to that party.
b. Should the respondent state be required to produce
evidence required by the disputing party to prove their
point?
c. In Australia there is the discovery principle have to
produce and show to each other all relevant documents.
But does a similar requirement exist for ICJ
i. In 2007 the ICJ returned its judgement in the Bosnian
Case (relating to various atrocities committed by
Serbia)
ii. Serbia produced documentation which it claimed
supported its denial of state responsibility however
parts of the documents was redacted. Bosnia thought
the ICJ should be entitled to draw inferences on the
reasons for redaction. The ICJ affirmed this allowing
inferences to be drawn adversely effecting the party.
2. What is the standard of proof?
a. There is a sliding standard: the more serious the allegation,
the higher the standard.
b. Beyond reasonable doubt
3. What is admissible evidence?
a. More or less anything can be admitted in evidence. The
Court will determine its probative value.
The Court prefers material prepared by disinterested parties,
particularly UN organisations or other international bodies.
A number of ICJ judgements have never been complied with. IN
INT law enforcement its not the systems strongest point. The SC
has certain enforcement powers, but they have never been used.
o The bigger problem is that the ICJ is underutilised.
The ICJs Advisory Opinion
Derives from art 96 of the ICJs statute.
SC and GA can pose any question they like, except no political
questions.
Other organs can only request advisory opinions that are in their
particular scope of conduct.
WHO Nuclear Weapons advisory opinion (1996)
o The WHO did not have competence to address the legality
of the use of nuclear weapons
o ICJ considered it ultra vires the WHO capacity.
Nuclear Weapons advisory opinion (1996)

o Upon a request from the General Assembly the ICJ declined

to find the use of nuclear weapons to be contrary to
international law when the very survival of the state using
them is at stake.
Other important advisory opinions:
South West Africa (1950)
o The Union of South Africa was not permitted to incorporate
this territory (now Namibia) into the Union.
Western Sahara (1975)
o Western Sahara was not terra nullius at the time of Spanish
colonisation
The Palestinian Wall (2004)
o Israels construction of the wall through Palestinian territory
was unlawful.
Kosovo (2010)
o Kosovos unilateral declaration of independence from
Serbia was lawful.
VI Other leading international courts
Court of Justice of the European Union
o Luxembourg
European Court of Human Rights (large body of human rights law
and precedents have been set in this court, cases are allowed to
be taken by individuals)
o Strasbourg, France
Inter-American Court of Human Rights (individuals are not
allowed to take cases to this court)
o San Jos, Costa Rica
World Trade Organisation dispute settlement procedure
International Criminal Court
o The Hague, Netherlands
International Criminal Tribunal for the former Yugoslavia
o The Hague, Netherlands
International Criminal Tribunal for Rwanda
o Arusha, Tanzania
LECTURE 11 INTERNATIONAL USE OF FORCE
I War Law
Categories of War Law
Jus ad bellum (right to war)
o law governing when force can be used
o whether a state can use any measure of force in any given
situation? Needed in self-defence?
Jus in bello (law of war)
o law governing how force should be used, rules that apply
once the war has begun
English terms encompassing one or both of the above:
o (International) law of war

o (International) law of armed conflict (LOAC)

o International law governing the use of force
o International humanitarian law (IHL) (jus in bello only)
Law of The Hague (two INT conventions that were held in the
hague)
o refers to the treaties signed at conventions held in The
Hague, 1899 and 1907
o more akin to LOAC (ie more focus on jus ad bellum)
Law of Geneva (generally held under the INT committee of the
Red Cross)
o refers to the treaties and protocols signed at conventions
held in Geneva, 1864, 1906, 1929, 1949, 1977 and 2005
o more akin to IHL (ie more focus on jus in bello)
Developments in medieval Europe (jus ad bellum)
In Judaism there was no general prohibition on war, however
whether the enter usually was based on whether the party
entering the war could win.
Thomas of Aquinas (1225 1274) built on the teachings of
Augustine (354 430 CE) (father of just war theory)
o agued Christians should be pacifists in their personal law,
but maintain that war could be just if its in the defence of
innocence.
o War could be pre-emptive not defensive, provided it had
the effect of minimising violence in the near future.
Christianity forbade their followers from serving in the armies of
the Roman empire. However its not clear whether this was
because they were against war or Roman paganism.
According to Thomas, for a war to be just:
1. it must be for a just purpose;
2. it must be waged by a properly instituted authority such as a
state;
3. peace must be a central motive.
This remained the bedrock of thinking about war up until legal
positivism.
Legal positivism
Legal positivism is the view that law is posited (created and
imposed) by humanity, not God or nature.
Legal positivism accommodates the legitimisation of wars of
aggression. The logic runs thus:
o Premise: wars of aggression are immoral.
o Premise: the validity of law is not dependent on its morality.
Laws can be immoral.
o Premise: laws can sanction war.
Therefore:
o laws can sanction wars of aggression (since laws can do
bad things as well as good);
o wars of aggression can be lawful.

Once you can claim that your war of aggression is lawful, is it

easier to justify your actions?
o Some have attributed a rise in warfare to this period of the
emergence of legal positivism.
o By the 19th century it is meaningful to identify international
law and under international law any sovereign power could
start a war, provided that observed certain niceties.
Towards a prohibition on aggression
Hague Convention 1899 obliged states to first resort to the
good offices or mediation of friendly states as far as
circumstances allow.
o It was entirely up to the state to decide what these
circumstances allowed. Until the development of the PCIJ
and ICJ.
Hague Convention 1907 limited the use of force in relation to
disputes over the recovery of contract debt, without first using
arbitration.
o NB this is the beginning of the prohibition on force.
The (ToV formed the LoN) Covenant of the League of Nations,
1919, set up means to peacefully settle disputes, but still
allowed war where those means failed.
Under the Kellogg-Briand Pact, 1928, contracting parties
(France US, UK, Aus., Germany, Japan and currently has 63
contracting parties) agreed that the settlement of all disputes
between them shall never be sought except by pacific means.
However, the pact permitted war in three circumstances:
1. in self defence (including collective self defence)
2. if authorised by the League of Nations
3. if one or more sides to the war was not a contracting party to
the Pact
Jus contra bellum laws against war.
In the short term it was a disaster when Japan invaded China and
Italy invaded Ethiopia. However it has become more successful.
United Nations

UN Charter

Art 2 must be read in light of art 51. This is in respect to

individual or collective self-defence.
Key questions raised by Art 2(4)

1. What threshold criteria determine the potential for a breach of

Art 2(4)?
2. For Art 2(4) to have been breached, what type and level of
force must have been used or threatened?
3. When can force be said to have been threatened or used
against the territorial integrity or political independence
of a state?
4. If the use or threat of force is not against the territorial integrity
or political independence of a state, in what circumstances is the
threat or use nevertheless prohibited on the basis that it is
inconsistent with the Purposes of the United Nations?
5. What constitutes a threat of the use of force?
o Does not prevent states form threatening self-defensive
measures the prohibition applies to the threat and use of
unlawful force.
Restrictive school of thought predominates the literature, which
says the UN charter restricts all forms of force unless specified in
the charter.
Threshold criteria for an Art 2(4) breach
Art 2(4):
1. is only directly binding on UN members (but appears to represent
jus cogens hence binding on members and non-members);
2. is only binding on states (not individuals);
3. applies even though the victim state is not a UN member;
4. only relates to activities done in the course of
international relations
o does not prohibit a state from using force against its own
population.
II What constitutes force?

NB: art 2(4) covers threats, as well as the actual use of force.
o it can be breached even when no actual force is used.
Force entails violence against people or property
o economic sanctions, boycotts etc do not suffice
Use of force (art 2(4)) is not the same as armed attack (art 51)
o State A might breach art 2(4) by using force against State
B that is so slight that State B gains no entitlement to
retaliate with defensive force under art 51.
o Examples of moderate use of force include minesweeping
in another states territorial waters (Corfu Channel (Albania
v UK) case), the 1976 Entebbe raid, or even breaking into a
diplomatic bag.
Is there some kind of minimum threshold in terms of the amount
of force that must be used in order for 2(4) to be invoked. A
threat or act can constitute a threat or use of force without be an
attack sufficient to allow a state to retaliate in self-defence.
Force may extend to acts historically regarded as falling short
of war
NB: remember that acts or threats of force, though prima facie
contrary to art 2(4), might nevertheless be defensible by means
of art 51 (self defence).
Probably it is better for a state that has used small amounts of
force to accept that it has breached art 2(4) but then to go on to
justify the breach on the basis of art 51, as opposed to arguing
that there was no breach of art 2(4) in the first place.
Providing weapons and other materiel of war to an insurgent
movement in another state constitutes a breach of art 2(4), but
probably merely funding the insurgent movement does not.
Nicaragua, the minimum threshold was not satisfied however in
other cases the laying of land mines can satisfy that threshold.
Corfu Channel Incident case - brought against UK by Albania, and
it was decided by the ICJ in 1949. British war ships has struck
mines laid by Albania in the channel that separates Corfu from
Albania. Subsequently the royal navy conducting mine sweeping
exercise in this channel. Albania complained and the Uk claimed
the right of safe passage and self-defence and a more
preliminary point that there hadnt been a breach of art2(4) in
the first place.
o This argument was rejected as if mine sweeping constitutes
the use of force then pretty much anything can.
1976 Intebi Case by Israel in June 1976 an air France flight was
hijacked while on its way to Paris. The hijackers were from a
Palestinian organisation. The hijackers diverted the flight to Libya
then to Intebi INT airport in Uganda. There the crew and
passengers were held hostage with the hijackers demanding the
release of Palestinian prisoners from Israel. On July 4th, Israeli
commandos stormed where the hostages were being held. 45
ugandan soldiers were killed and 3 hostages. The raid breached

art 2(4) as it was against Uganda who had no part in the

hijacking, and Uganda did not invite the Israelis onto their
territory.
o On the other hand, the raid only involved 100 Israeli
commandos, and did not go further than the airport.
o Before the SC, Israel accepted art 2(4) had been breached
and argued that the use of force was justifiable in selfdefence. The overwhelming majority accepted that art 2(4)
had been breached).
US invasion of Grenada Grenada had been a British colony,
gaining independence in 1974. Left-wing rebels gained power
and the US regarded this regime as illegitimate IN 1983, US
troupes invaded Grenada, deposing the military leader. The US
intervention was popular among the population of Grenada
however it was widely condemned as a breach of art 2(4).
o The US argued it was no their intention to obliterate
Grenada as a state, but that they were tyring to protect the
peace of Grenada, also that they had been invited to attack
by the GG of Grenada, as well as protecting US citizens
present in Grenada.
In summary its not clear what constitutes a breach of art 2(4),
whether its against the territorial integrity or political
independence of the state against which the force was used.
UN Charter, Art 1

Summary
Art 2(4) is arguably breached even though (evidence supports a
restrictive reading i.e. heavily restricts states use of military
force):
o the level of violence used or threatened is relatively minor
(eg minesweeping or a helicopter raid to free
hostages)
o a states territorial integrity or political independence is not
in jeopardy

o a state merely supplies weapons for use against another

state
this would include supplies to state or non-state
entities
o all a state does is declare war in the absence of an armed
attack upon itself (or an ally)
o does not prevent a state from using force against its own
population
o does not prevent one state from assisting another in using
force against that other states population
o If State A provides funding for State B to use force, is State
A liable for using force? No, this is determined in the
Nicaragua case
However, a sponsoring state would cross the line if its
started arming and training those forces
US would be using force against Nicaragua if it gave
the Contras weapons.
Key questions re Art 51

1. Who has the right to self defence?

a. Only arises if an armed attack occurs
2. Does the right only arise in the event of an armed attack?
a. yes
3. What constitutes an armed attack?
a. See below
4. Where and when can the right be exercised?
a. LoCal if a state is under attack then it can clearly take
forceful action in defence on its own territory. But it can
also be used on the territory of an aggressor state. Also on
the territory of a third state under certain circumstances.
i. Attack by non-state actors. Does the right to selfdefence against these kinds of actors amount to
military force.
ii. Every state is under an obligation not to allow its
territory to be used as a base for insurgents.
b. Temporal aspect (5)
5. What level of force can be exercised before this inherent right is
exceeded?
a. ICJ bascically established two criteria:
i. Necessity and proportionality.
6. To what extent can a state come to anothers aid even though
the first state does not have grounds for self defence?
a. Collective self-defence when it itself has not been
attacked. What pre-existing relationship must there be

between the victim state and the states coming to its aid?
None.
7. By what means are states to determine whether the Security
Council has taken necessary measures?
a. The role of the SC III Who has the right of self-defence?
Art 51 applies directly only to UN members
o NB the reference to armed attacks on UN members
However, a right to self defence surely exists in customary
international law
o NB the reference to an inherent right, right of states
regardless of UN membership
Does the right arise only in the face of an armed attack?
Probably an armed attack must have occurred
o NB the contrary view that the right to self defence arises in
the absence of an armed attack, eg:
in the face of other threats (economic sanctions, etc)
in light of some possible future attack
States have a right to unilateral self-defence
IV What is an armed attack?
When determining whether an incident constitutes an armed
attack sufficient to give rise to a right to self defence, consider:
1. What point marks the start of an armed attack?
o Dinstein says the attack must have been initiated. Only
then can it be intercepted, interception being
permissible, while pre-emptive strikes are not.
o Pre-emptive is only permissible once the attack has
been initiated.
o i.e. Japanese attack against pearl harbour, dinstein says
when the Japanese fleet started sailing towards Hawaii,
the legal rubicon being when the party embarks on an
irreversible course of action.
o Distinction lies between interceptive (implies a state is
more than merely threatened) and pre-emptive
2. How much violence is needed for an incident to constitute an
armed attack?
o Something less than an armed attack may justify
lawful countermeasures.
o Can minor incidents give rise?
o Does not necessarily start when the first shot is fired,
rather when the course of action is taken that is
irreversible.
o What type and level of violence?
o Standard jurisdictional rights can be invoked if there
hasnt been an armed attack but the agent of a state
has acted outside of their powers
3. Who is the perpetrator of the incident?
o Which state can be held liable?

4. Where has the incident occurred?

5. Who or what was the target of the potential armed attack?
If a state is attacked not militarily but perhaps economically, it
most likely will not constitute grounds for self-defence
Pre-emptive Action
5 major issues that need to be resolved as to whether action
constitutes an armed attack. As above.
Rights in international law arising from hostile action

RCMSSD = right to (non-forceful) counter-measures short of self

defence
RSD = right to self defence
V Liability of states harboring insurgents
States X, Y and Z all have insurgents operating within their
territory against (eg) the USA.
State X is complicit in armed attacks on the US.
o X and the insurgents are liable to defensive measures.
State Y reacts with indifference to the presence of the insurgents,
failing to take any action, even though it could.
o Y and the insurgents are liable to defensive measures.
o States have a duty of vigilance which they must fulfil.
State Z seems opposed to the insurgents but does not have the
means to take adequate action against them.
o The insurgents are liable to defensive measures, including
while on Zs territory, but Z is not.
Criteria for determining the appropriateness of defensive force
1. Necessity
a. State must establish it is using defensive force against (and
only against) the culprit
b. There must be no practicable alternative to force
2. Proportionality
a. Action taken against a state must be proportional to the
risk posed by that state
3. Immediacy
a. Some delay is permitted in order to regroup, research and
seek peaceful settlement, but states should not delay
unduly

b. Provided the attack is not reasonably delayed and it is not

motivated by retribution but it is forward looking.
c. Must establish necessity, spend some time looking at
peaceful alternatives.
d. States must not unduly drag their heels.
Four categories of self defense permitted by Art 51

Individual self-defence individually exercised

A attacks B. B defends itself against A. C and D are not involved.
Individual self-defence collectively exercised
A attacks B, C and D (or just B and C). The attacked states
defend themselves, separately or cooperatively.
Collective self-defence individually exercised
A attacks B (but not C or D). C comes to the aid of B, or C and D
come to the aid of B, but act independently of each other.
Collective self-defence collectively exercised
A attacks B (but not C or D). C and D act cohesively in support of
B.
VI Collective self-defence treaties
Mutual assistance treaties
Military alliances
Treaties of guarantee
North Atlantic Treaty 1949, Art 5

Warsaw Pact 1955, Art 4

ANZUS 1952, Art 4

Art 51s two stage response to armed attacks

Stage 1: the states inherent right to take immediate measures to
defend itself
o But this right is not unfettered. Any measures taken:
1. must be both necessary and proportionate
2. must be immediately reported to the UN Security Council
3. must not affect the authority of the UN Security Council
o A states exercise of the right to self defence is subject to
adjudication by the ICJ.
Stage 2: the UN Security Councils authority and responsibility to
take over from the state the handling of the response
What are the UNSCs options?
In the event of an armed attack the UN Security Council can do
one or more of the following:
o approve measures taken in self defence. This can be:
retrospective (thus establishing who is the
aggressor)
prospective (using the UNs powers under Arts 41
and 42)

o authorise other military or non-military measures pursuant

to Arts 41 and 42
o determine that actions purportedly taken in self defence
are in fact acts of aggression
o insist on the cessation of unilateral action by just one side
o impose a general cease-fire (on both sides)
o demand that both sides withdraw their forces to behind the
original lines
LECTURE 12 INTERNATIONAL CRIMINAL TRIBUNAL
Corporations and individuals are usually considered as objects of
international law whilst states are the primary subjects
States do not exist in any physical sense, they are a legal fiction.
One country doesnt declare war on another, rather one group of
people decides to fight another.
Example: Telstra is not owned by one single person, but by the
corporation. Meaning the right to sell and profit from that
property belongs to a greater collection of people, mainly
Telstras shareholders.
o Authority is vested in positions, and not in human beings.
The legal fiction of the corporation, spreads responsibility across
a large class of people. This is corporate responsibility.
Historically there were no international courts to try pirates or
slave traders, instead, states were able to try pirates and traders
under their own domestic law.
I Early Developments in ICL
1474 Trial of Peter von Hagenbach by the Holy Roman Empire. He
was beheaded for war crimes. Adhoc tribunal.
1907 Hague Convention created various war crimes
maltreatment of POWs, misuse of peace flags, poisoned weapons
1919 Treaty of Versailles established the individual responsibility
of the Kaiser (who was never tried)
1924 (Unratified) Geneva Protocol on the Pacific Settlement of
International Disputes
o stated that a war of aggression constitutes ... an
international crime.
1945 Charter of the International Military Tribunal (Nuremberg
trials) trialled leading Nazis for war crimes and crimes against
humanity
o faced objections as states thought it was up to states and
not individuals to adjudicate on international law.
1953 ECHR was concluded
1959 European Court of Human Rights was set up. There are now
47 state parties to the convention
Development of ICL after Nuremberg

1948, 1949 conventions above created individual responsibility

under IL
II Geneva Convention 1949
Art 49

pass laws to enable anyone guilty of a grave breach, to be

punished within the states domestic legal system.
Art 50

1970 Hague Convention for suppression of lawful seizure of

aircraft, defined the offence of hijacking an aircraft. Such crimes
obviously lend themselves to international treatment
1977 convention defined certain offences of terrorist bombing
these conventions required party states to implement this into
their domestic law and thus push the offences into the
international sphere.
The collapse of Yugoslavia gave substance to the establishment
of true international law.
o ICTY was set up by UN resolution 827 of the SC in 1953.
The security council drew its authority from chapter 7 of UN
Charter with art 51 authorizing non-violent methods in the
face of a threatened or actual breach of the peace.
o Malosovich was the Serbian President and subject of the
first trial, however he died in custody.
o THE ICTY has face considerable criticism due to its cost and
lengthy trials.
1994 establishment of the ICTR based in Irusia in northern
Tanzania.
o It convicted a former head of government on a charge of
genocide. He had been prime minister at the time of the
1994 massacre.
o It also developed definition of the term genocide as used in
the genocide convention.
These two tribunals share a joint chamber.

Comparison of Courts

The ICC was established by the Rome Statute in 1998

Around two thirds of UN member states are party to the statute.
However some states are actively critical of the court i.e. China
and Pakistan.
o Primarily concerns itself with events in Africa. This has led
to considerable criticism of the court. Only Africans have
been indicted.
The ICC is not a UN body, but comes as a
III Forums for hearing ICL
Domestic courts
NB: Geneva Convention IV 1949 art 146 requires domestic courts
to exercise universal jurisdiction to hear allegations of grave
breaches of the 1949 Conventions
o i.e. Australias high court, district and supreme courts can
apply IL. However it is dependent on the states
entrenchment of IL into their law.
International courts and tribunals
ICTY (re former Yugoslavia post 1991) - est 1993
o Statute of the International Criminal Tribunal for the former
Yugoslavia
last updated 7 July 2009
o Kosovo was placed under transitional UN administration. In
2000 passed 2000/64 providing for the panels of judges to
try criminal matters. Two judges were to be from outside of
Kosovo.
o Following Kosovos declaration of independence, the
administration powers began to be transferred to the
government.
ICTR (re 1994 Rwandan genocide) est 1994
o Statute of the International Criminal Tribunal for Rwanda
last updated 31 Jan 2010
International Criminal Court (non-specific) est 2002
o Rome Statute of the ICC, 1998
last updated by the Kampala Conference, 2010
Hybrid or internationalised domestic courts

o Domestic courts to some extent, that have an international

character in the desire to lend the courts extra legitimacy.
o There may be objections to tying individuals activities that
were arguably legal at the time they took place.
IV Internationalized domestic courts
Special Court for Sierra Leone (est 2002)
re Sierra Leone post 1996
relates to losing years of the civil war which began in 1991, when
forces supported by Liberia intervened in order to overthrow the
then government
this war was characterised by many HR violations and the use of
child soldiers
Court was a result of an agreements between the UN and Sierra
Leone. One judge was appointed by sierra leone and the other
two appointed by UN secretary general.
22 individuals have been indicted, with one still a fugitive.
The best known indictee was Charles Taylor who was president of
Liberia and is currently serving a 50 year sentence.
Extraordinary Chambers in the Courts of Cambodia (est 2006)
re the activities of the Khmer Rouge, 1975 79
set up to try those responsible for the genocide committed by the
Khmer Rouge
Strictly speaking this is not an international tribunal, as it is part
of the Cambodian legal system
It is closely modelled on International tribunals, having been set
up using an agreement with the UN.
Claims to impart justice at the same standard as INT tribunals.
Procedurally the chambers follow Cambodian law, the
representative of victims can play an active role in proceedings.
Kosovo Regulation 64 panels (est 2000)
administering justice in Kosovo following the end of the Kosovan
war
East Timor Special Panels for Serious Crimes (2000 - 2006)
administering justice in East Timor following the Indonesian
occupation
UN transitional administration created a new court system,
which included trials for serious crimes.
War Crimes Chamber of the Court of Bosnia and Herzegovina (est
2005)
Special Tribunal for Lebanon (est 2009)
re assassination of former Prime Minister Rafic Hariri (2005) and
other incidents in Lebanon, 2004-5
Set up as a result of agreement between Lebanon and UNSC and
its meant to try those accused of the assassination of the
Lebanon president in 2005.
Supreme Iraqi Criminal Tribunal (est 2003)

re breaches of ICL by the former regime of Saddam Hussein,

1968 2003
set up under the authority of the coalition of powers that invaded
Iraq in 2003.
Try those responsible for international crimes under Sadam
Hussein who was convicted and sentenced to death in 2006.
Serbian War Crimes Chamber (est 2003)
Re breaches of IHL as defined in Serbian law
V The Courts jurisdictions
Jurisdiction can be defined, inter alia:
by the nationality of the accused
o ICTY: nationality irrelevant
o ICTR: nationality irrelevant if crime committed in Rwanda
(otherwise must be Rwandan): ICTR art 1)
o ICC: see Rome Statute, art 12
geographically: by the location of the alleged offence
o ICTY: the former Yugoslavia (ICTY Statute, art 8)
o ICTR: Rwanda (or neighbouring country if accused is
Rwandan): art 1
o ICC: see Rome Statute, art 12
temporally: by the date of the alleged offence
o ICTY: 1 January 1991 onwards (ICTY Statute, art 8) enabled
ICTY to consider offences in Kosovo
o ICTR: 1 January 31 December 1994 (ICTR Statute, art 1)
o ICC: 1 July 2002 (or when state became party, if later and if
no declaration to the contrary): Rome Statute, art 11
by the nature of the offences that can be tried
ICC jurisdiction (simplified)
Cannot prosecute in relation to events occurring before 1 July
2002 (art 11)
Can only exercise jurisdiction:
o if the accused is a national of a state party
o if the alleged crime took place in a state party, or
o if a situation is referred to the ICC by the UN Security
Council (art 12) acting under chap 7 of UN Charter
Domestic courts retain primary responsibility for upholding ICL
(Art 17 ICC will not hear a case if it is being investigated or
prosecuted by a state that has jurisdiction over it. Unless the
state is unable to carry out proceedings).
o This is different to the situation re the ICTY & ICTR where
these tribunals took precedence
Crime must be committed on the territory of a state for which the
treaty was in force at the time of the offence, unless it was
committed on a vessel or aircraft, in which case you would take
into account place of registration of vehicle.
ICL categories
Genocide

o Defined by the Genocide Convention 1949 art 2

War crimes
o Grave breaches of the Geneva Conventions, 1949. These
are defined in:
GC I (re wounded and sick military personnel) art 50
GC II (re wounded and sick naval personnel) art 51
GC III (re POWs) art 130
GC IV (re civilians) art 147
o Violations of the laws or customs of war
ICTY art 3
Crimes against humanity
Crime of aggression
Charter of the International Military Tribunal 1945 art 6

Simplified comparison of jurisdiction (Arts refer to the institutions

founding statute)

Geneva Conventions 1949, common art 3

Mainly concern international conflict between two or more states.

Distinction between int and non-int armed conflict has become
relatively unimportant thanks to the ICTY
Art 2 covers grave breaches of the Geneva conventions while art
3 covers additional crimes as violations of the laws or customs of
war.
VI Immunity of high-ranking office holders
In the Arrest Warrant case (2002) the ICJ held that no immunity
from prosecution arises in relation to D, a current or former highranking official (including a head of state) where:
1. D is prosecuted under domestic law in his own state;
2. Ds state waives the immunity;
3. D ceases to serve in that capacity and is prosecuted by the
domestic courts of another state in relation to acts done (even
while head of state) but only in his private capacity;
4. D is prosecuted before an international criminal court vested with
jurisdiction
Art 121
Deals with amendment to the Rome Staute
Allows for state parties to call a review to consider proposed
amendments put forward by state parti.es
Adoption of amendment requires the support of two thirds of the
state parties.
For the amendments to come into force, they enter into force for
all state parties one year after being ratified or accepted by
seven eighths of the parties have accepted it.
The ICC can only prosecute someone for using poisonous gas if
that person is a national of a state or has committed the act on
the territory of a state that has ratified its acceptance, and at
least a year has passed since that time.
Rome Statute 1998, art 27

No one is exempt from prosecution, not even acting heads of

state. This is only conclusive in the state of contracting states.
Whether the same is true for non-contracting states depends on
whether art 27 can be seen as reflecting customary int law.
Larger question whether a state is under an obligation to
extradite a current or former head of state to face trial by the
ICC.
art 98

Art 89 requires seizure of head of state being charged and to be

extradited to ICC
Immunity to not extradite is the states privilege and not for the
individual. If the head of State A is in State B and both states are
party to the convention, then State B would be obliged to
extradite a citizen to stand trial.
o If state A is not a party, then if it would be a breach to
extradite the person then article 98 should apply and the
ICC should not have made the request in the first place.
Example: General pinochet former president of Chile was
arrested in Britain to face trial before a domestic court for crimes
committed whilst president.

o House of Lords ruled that immunity that pinochet enjoyed

as former head of state does not extend after conclusion of
role and does not protect from prosecution for war crimes.
Genocide Convention 1948, art 2
146 parties
pledge by the parties to enact domestic laws enabling them to
punish anyone thats committed acts of genocide, provided that
person is on their territory or that if theyre not wiling to
prosecute, they extradite the person to another country that is in
a position to do so.
These acts must be done within the intent to destroy, whether
in whole or in part.
o Destruction in a physical or biological sense. Mere cultural
assimilation does not in itself constitute genocide. ON the
other hand rape and sexual violence can constitute
genocide.
Note someone can commit genocide without actually performing
the act. Refer to art 3.

art 3

(e) complicity in genocide

Geneva Convention IV 1949 (re civilians) art 147

Rome Statute 1998, art 27

There are four Geneva conventions that dictate what constitutes

a war crime in four specific areas; civilians, POWs,
There is a special mens rea element to commit a crime against
humanity, someone must have widespread knowledge of the
systematic attack.
Crimes against peace (crime of aggression) starting or pursuing
wars of aggression as opposed to what is done during those
wars.
o Only a small number of states include this crime in their
domestic penal code. Hence why its important to have to
ICC tribunal to pin crimes of aggression against aggressors.
VII Later developments re crimes against peace
1970
UN General Assembly Resolution 2625 (Friendly Relations
Declaration)
o identifies war of aggression as a crime against peace under
international law
1974
UN General Assembly Resolution 3314 (Definition of Aggression)

o states unequivocally that a war of aggression is a crime

against international peace art 5(2)
o defines aggression
1996
ILCs Draft Code of Crimes against the Peace and Security of
Mankind
o Art 16 defines the crime of aggression:
An individual who, as leader or organizer, actively
participates in or orders the planning, preparation,
initiation or waging of aggression committed by a
State shall be responsible for a crime of aggression.
In the early years, the difficulty for this crime was enforcement. It
was only in 1998 with the creation of ICC, that the crime of
aggression began to gain traction
Rome Statute 1998 art 5 NB: Kampala removed art 5(2) for those
ratifying amendment

Pursuant to art 5(2), the courts didnt immediately have

jurisdiction in relation to the crime. At the 2010 Kampala review
conference got rid of art 5(2). To date only 20 states have ratified
that amendment. Hence for the majority of states, the art
applies.
However art 5(2) is no longer a hindrance on the ICCs
jurisdiction.
Art 13 sets out three circumstances under which the ICC can
exercise jurisdiction, where a state party refers situation to the
court, when the UNSC refers the case and the third is when the
court itself initiates proceedings.
VIII ICC jurisdiction over crimes of aggression
Before the ICC can exercise jurisdiction three things must happen:
1. The alleged crime must have been committed at least one year
after the ratification or acceptance of the Kampala amendments
by thirty states parties.
2. The date of 1 January 2017 must have passed before the Court
exercises jurisdiction.

3. A decision must have been made to exercise jurisdiction over the

crime of aggression by two thirds of states parties (and that
decision cannot be made until after 1 January 2017).
4. 1 year after 30 states have accepted the Kampala amendments
can the ICC exercise jurisdiction over crimes of aggression.
o Rome Statute 1998, art 15 ter
However, in the event of a state referral or the ICC acting proprio
motu:
special provisions exist where the UNSC has not determined that
an act of aggression has occurred.
states may opt out.
The ICC cannot exercise jurisdiction where the crime is
committed by nationals of non-party states or on the territory of
non-party states.
o Rome Statute 1998, art 15 bis
Rome Statute 1998, art 8 bis (1)

art 8 bis (2)

Art 8 bis (2) then lists seven examples of acts of aggression

(summarised below):
a) Invasion of another State;
b) Bombardment of another State;
c) Blockade of ports;
d) An attack on land, sea or air forces, or marine and air fleets of
another State;
e) Abuse of an invitation to use force in another State;
f) Allowing the use of territory for acts of aggression by another
State;
g) Sending irregulars who carry out grave acts of armed force
against another State.

D may have committed the crime of aggression if the answer to all

the following is yes

Actus reas art 8 bis (1) refers to initiation, execution as well as

planning and preparation of the act of aggression. Language
seems to go further in restricting culpability to those at the top of
the hierarchy.
Kampala crime would only arise if the act of aggression is
commited in actuality.
Nuremberg decision was made to limit the crime of aggression
to the policy makers rather than everyone involved,
IX Rome Statue 1998 (Mental element) art 30

Intent is different to motivation

i.e. president of a state uses force to stop genocide in a
neighboring country. Whether the president intended to invade
the neighboring country or whether he intended to breach IL?
o Obviously a crime of aggression despite the reasons for
doing so.
Mens rea related defences
Mistake of fact (art 32(1))
o Only if it negates the mental element required by the
crime. Mistakes of fact often come up in humanitarian law.
o eg President of State A attacks B believing that B is
attacking A

Mistake of law? (art 32(2))

o eg President of A invades B believing he has a right or
responsibility to put an end to genocide in B
o does not apply in relation to aggression.
o May be a defence, but usually unlikely that wilful blindness
as to facts or as to the nature of law will be an adequate
defence.
Insanity (art 31(1)(a))
Duress (art 31(1)(d))
o Nuremberg trials many Nazis pleaded this
o Many writers dismissed obedience to superior orders as
possible defences. ICL overrides contradictory domestic
law, however this was only decided at Nuremberg.
o The fact an individual acted under orders of their leader or
government will not be a fully protecting excuse, however
it may mitigate the punishment.
Rome Statute 1998, art 32 (mistake of fact or law)

Rome Statute 1998, art 31 (grounds for excluding criminal

responsibility)

art 33

May apply if person under a legal obligation, didnt know the

order was unlawful, nor an order to commit genocide or a crime
against humanity.