International Law 012

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Summary - book "International Law", lectures
International Law (Australian National University)
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International Law
1 NATURE OF INTERNATIONAL LAW
First, you will be introduced to the main participants in, and structures of, the international legal system,
particularly nation-States (such as Australia) and the United Nations and its constitutive document, the
United Nations Charter. In doing so, we will briefly examine the criteria for an entity to be considered a
State a d the p o ess of a o di g e og itio to a State o go e e t. Se o dl , e ill ide tif the
various sources and types of international law.
 C&M CH 1: pp 2-8, 15-20, 27-37

 C&M CH 5: pp 269-271, 289-322
 C&M CH 2: pp 53-58, 105-125
 Ma tti Koske ie i, The Fate of Public International Law: Between Techniques and Politics
(2007) 70 Modern Law Review 1-30.
 Mi hael Wood, What Is Public International Law? The Need for Clarity about Sources
Asian Journal of International Law 205-216.
 http://www.un-documents.net/a25r2625.htm
1.1 NATURE, SYSTEM AND ACTORS

The definition of international law is wide-ranging and in many ways, constantly shifting with changing
political, cultural and social contexts.
However as derived from the Lotus’ Case1, international law:
…go e s elatio s et ee i depe de t states. The ules of la i ding upon states therefore emanate
from their own free will as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between these co-existing independent
communities or with the ie to the a hie e e t of o o ai s ;
Further stating that
Restri tio s upo the i depe de e of States a ot therefore e presu ed .
In other words:
The nation state actors of the international law system are at prima facie, given no constraints on their
sovereign power. They have unrestrained free will as compared to the domestic legal system where laws
are largely prescriptive, stating what citizens can and cannot do. The international legal system does not
operate in this way – its actors are at first principles able to exercise free will UNLESS prohibited by
some higher power.
Consent is at the forefront of this.
The Lotus’ Case involved a collision between a Turkish and French vessel in the high seas and thus not
within the jurisdiction of any nation state. From the Turkish point of view the accident was clearly caused
by the French and thus ought to be criminally charged. However as it was extra-jurisdictional, the French
postulated that Turkey had no authority to do so.
1
(France v Turkey) [1927] PCIJ Ser A, No 10.

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How can Turkey then justify bringing French nationals before their court?
 Resolving this dispute – international court dealing with the disputes between state authorities
 (PCIJ) [Permanent] International Court of Justice – v. important judicial organ to be familiar with Commented [D1]: Historically Permanent International
Court of Justice, however over time has been reduced to just
Key points from Lotus Case judge e t the International Court of Justice.
 Is the 9 7 Lotus di tu still alid?
The majority view is that the Lotus principle remains intact. The fundamental principle is that states can
do what they want UNLESS prohibited. This is the reasoning to be applied.
However there was a significant minority opinion that agreed with the judgement of the court (that Lotus
principle is still good law) however disagreeing (not dissenting) with the reasoning:
Judge Higgins in DRC v Belgium2 stated that the dictum: Commented [D2]: Foreign minister of Congo
Charged against crimes of humanity
… ep ese ts the high water mark of Laissez-faire in international relations, and an era that has been Who issued arrest warrant? Not ICJ, Belgium.
sig ifi a tl o e take othe te de ies…this e ti al otio of the autho it of a tio is sig ifi a tl
different from the horizontal system of international law envisaged in the Lotus case. Because it was an alleged crime against humanity (serious,
recognised by states universally), any state, not just Belgium
He mentions a developing vertical structure within the international legal system, stating that there may authorities could issue an arrest warrant (against a foreign
state) & other forms of criminal prosecution – this is the
be things superior to the sovereign power of nations, for e.g. human rights. This developing structure theo eti al asis fo Belgiu s a tio s.
deviates from the traditionally horizontal structure where everything is equal, and international law co-
ordinates the states on equal footing.
In DRC v Belgium, Belgium issued an arrest warrant against the foreign minister of a foreign state. Was this
within the scope of their power? Crimes against humanity are recognised universally and thus any state
can initiate criminal prosecution. The legal question here is whether the state had the freedom to issue an
arrest warrant against a foreign minister of a foreign state.
 However, to what extent is vertical structure accepted by the community of sovereign states?
Justice Leggatt, Serdar Mohammed v Ministry of Defence [2014] EWHC: Commented [D3]: Mohammed v Ministry of Defence:
regarding the prolonged detention of an Afghani
If CA a d/o AP had ee i te ded to p o ide a po e to detai the ould have done so international under UK troops. The legal question was
expressly…It is not readily to be supposed that the parties to an international convention have whether the UK troops had the authority to detain Afghani
agreed to establish a power to deprive people of their liberty indirectly by implication and atio als. It is a gued that the judge s easo ing in this case
was incorrect.
ithout sa i g so i te s .
International law cannot prohibit states from detaining people unless stated so; there is free will. Starting
point: ask whether there are prohibitions regarding the law – Lotus dictum.
1.2 ACTORS OF INTERNATIONAL LAW

Who creates and owns international law?
Subjects of international law
- Mostly states
Si e the La of Natio s is ased o the o o o se t of i di idual States, a d ot of i di idual

hu a ei gs, States solel a d e lusi el a e the su je ts of i te atio al la - I Oppenheim,
2
Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) [2002] ICJ Rep 3, Joint Separate Opinion of Judge
Higgins, Kooijmans and Buergenthal, para 51.

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International Law (1st ed, 1904) 18 (HISTORICALLY, SINCE IT WAS 1904 IT WAS BELIEVED THAT STATES
WERE THE ONLY SUBJECTS OF INTERNATIONAL LAW HOWEVER TIMES HAVE CHANGED, IS THIS STILL
VALID? No.)
A subject of international law is an entity possessing international rights and obligations and having the
capacity (a) to maintain its rights by bringing international claims; and (b) to be responsible for its
ea hes of o ligatio ei g su je ted to su h lai s - Bro lie s Pri iples of Pu li I ter atio al
Law (8th ed, 2012) 115
So, still states, but not so exclusively - capacity based, rather than the form of the subject
1.3 SUBJECTS V. OBJECTS

- Sovereign states
- International organisations Commented [D4]: Established by states upon their
- Belligerents (rebels recognised by other states also as belligerents; can be a subject in a limited agreement – do they have capacity to bring their claims and
sense) be subjected to the rules of international law? Arguably, yes.
- Insurgents (same kind of category as the above but to a lesser extent) Commented [D5]: Belligerents and insurgents (not
- Individuals (can individuals bring claims under international law against the state, can they be mainstream concepts, v. limited)
subjected to the rules of international law). Difficult to say that individuals and corporations are
subjects, rather they are objects (mentioned or referred to as an object of rights and obligations
under international law).
- Corporations (see above)
Individuals – object of protection under this body of law, probably not a subject.
Beneficiaries of international law
However objects may have an increasingly greater role - Influence on international law-making
processes (e.g. NGOs) - C&M 31-33.
1.4 STATEHOOD (HOW DO YOU DEFINE A STATE?)

- A permanent population
- A defined territory
- Gove e t sta le politi al o ga isatio ; f failed states
- Capacity to enter into relations with others Commented [D6]: Criteria for statehood (4)
1933 Montevideo Convention on Rights and Duties of States (articulated criteria for statehood for the
first time). Before this time there were still states, how were they recognised? Similarities commonly
recognised
Argued the above was a legal criteria, however is it conclusive?
Climate change eroding territory – predicted the nation could be submerged under water in 20-50 years
time. If so, then a defined territory cannot be satisfied, does this mean they lose nationhood
In reality they would not lose statehood even if they fail to satisfy one of the criteria. Suggest it s not
really a LEGAL criteria but is a common criteria/guide.
Consider how states would recognise other states without this criteria, e.g. as in historically? E.g. through
similarities, commonly shared features.
Legal consequence would be failure to achieve recognition status for the state (if it was a legal criteria).
However this is most probably not the case.

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1.5 RECOGNITION OF STATES – DECLARATORY V. CONSTITUTIVE

 Declaratory theory – predominately accepted Commented [D7]: States exist as a matter of fact.
Existence of states is only proven via recognition. That
The recognition of a state merely signifies that the state which recognises it accepts the personality of recognition of another state is merely declaratory and that it
the othe – 1933 Montevideo Convention, Article 6. does NOT have any legal value. (Recognition is not a criteria),
can be a state without recognition.
The e og itio of a state is ot o stituti e ut e el de la ato – Deutch Continental Gas
Gesellschaft v Polish State (1929) 5 ILR 11, 13 (German Polish Mixed Arbitral Tribunal) Recognition simply declares the existence of another state, it
does not have the legal effect of declaring statehood.
Cf Tonico Arbitration (C&M 305) – recognition as evidence
 Constitutive Theory (legal effect of creating international entity or statehood) – minority view Commented [D8]: Minority view, but a significant one.
That there is actually a legal effect in recognition of another
The full i te atio al pe so alit of isi g o u ities… a ot e auto ati …as its as e tai e t state (i.e. creating another state/statehood).
requires the prior determination of difficult circumstances of fact and law, there must be someone to
pe fo that task – H Lauterpacht, Recognition in International Law (1948) 56. Commented [D9]: Significant because it was expressed by
an imminent judge.
Cf recognition of belligerents
What about Taiwan, Palestine, ISIS (actually fulfils the 4 said requirements)?
Not recognised by other states even though as a matter of international law (strictly speaking) it can exist
without the recognition. What is thus the legal significance of this recognition?
1.6 WHAT’S THE IMPLICATION OF AN ACT OF RECOGNITION?

A state can act without legal recognition (strictly speaking). However it grants certain privileges and
immunities upon recognition as a state.
Practical significance
- State and diplomatic immunity (see week 8)

- Standing in a foreign court
- Policy influence with respect to democracy/human rights. E.g. EC Guidelines on the Recognition Commented [D10]: Political condition that upon
of New States in Eastern Europe and in the Soviet Union (Harris, 7th edition, 2010, 132-133). recognition of another state, they will uphold ideas of
- Non recognition policy (Stimson Doctrine) as sanction democracy and human rights and if in breach will adopt the
non-recognition policy or Stimson Doctrine as
However, compare the recognition of governments as opposed to states (C&M 314-315) punishment/sanction.
Recognition of Governments: Australian Policy If the newly emerged state is not implementing the notion of
democracy as a system then the non-recognition policy as
- Cf e og itio of Li a Natio al T a sitio al Cou il NTC : ithout legal sig ifi a e (Talmon sanction – e.g. Ukraine
2011) Commented [D11]: Recommended reading – contrast of
- The recognition of government is a practical question recognition of government and state
Do t issue e og itio of go e e ts - gvt changes all the time – if there has to be an issue of
government each time it changes it is not v. feasible. Abolished by many states in the 1980s.
1.7 STATEHOOD: ATTRIBUTE (1)

So e eig t = totalit of po e s international rights and duties) that States may have under
i te atio al la – J Crawford, the Creation of States in International Law Commented [D12]: Legal definition of sovereignty
 Legal v political usage; Political sovereignty is different to international sovereignty (e.g. IR)
 External v internal sovereignty

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Principles:
- Equality of sovereign states (but not actual equality of rights and competences)
- Territorial integrity and political independence of each state
1.8 STATEHOOD: ATTRIBUTE (2)

Self-dete i atio : all peoples have the right to self-determination: by virtue of that right they freely
determine their political status a d f eel pu sue thei e o o i , so ial a d ultu al de elop e ts. –
UNGA Res 1514 (1960) para 2.
Controversial – legal basis for legal entities to be separate from their original statehood. E.g. Western
states achieving independence
Does it entitle people to secede from the state to which they originally belonged?
- Decolonization in the 60s/70s

- UDI by Rhodesia (1965): C&M 296
- UDI by Kosovo (2008) paras 79 and 81: C&M 296-299
- Cf Crimea (2014)
1.9 STATEHOOD: ATTRIBUTE (3) Commented [D13]: Once the state is recognised, all 3
attributes are applicable.
Non-intervention: No state has the right to i te e e i the i te al o e te al affai s of a othe . – 1933
Convention on Rights and Duties of States, 165 LNTS 19, Article 8.
- Domestic jurisdiction of a state: a esse tiall elati e uestio ; it depe ds upo the
de elop e t of i te atio al elatio s (Nationality Decrees Issued in Tunis and Morocco
(Advisory Opinion) [1932] PCIJ, Ser B, No.4, 24
- I te e tio = di tato ial i te fe e e i the se se of action amounting to a denial of the
i depe de e of the State . – H Lauterpacht, International Law and Human Rights (1950) 167.
Compare GA Res 2131 (1965) with GA Res 36/103 (1981) pt. II
1.10 STATEHOOD: ATTRIBUTES AND PRINCIPLES

Readings: UNGA Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24
October 1970) - http://www.un-documents.net/a25r2625.htm
Sources of public international law
 1945 Statute of the International Court of Justice, Art 38 C&M 53

 Charlesworth and Chinkin, The Boundaries of International Law (2000) C&M 54-56
 I te atio al La Co issio Sou es of I te atio al La – see various topics reviewed and
under review at http://www.un.org/law/ilc/

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2 SOURCES OF PUBLIC INTERNATIONAL LAW

The ai sou es of i te atio al la a e t eaties ag ee e ts et ee States a d customary
international law (made up of what States do in practice combined with a belief that the practice is
required by law). Particular attention in this week will be devoted to the legal rules concerning treaties,
including those relating to the defi itio of a t eat , the i te p etatio of t eaties the i te atio al
equivalent of statutory interpretation and the construction of contracts), reservations to treaties,
grounds for suspension or termination of treaties. Many of these rules are themselves contained in a
treaty -- the Vienna Convention on the Law of Treaties (the treaty on treaties).
 C&M Chapter 3
 Anthony Aust, Modern Treaty Law and Practice (3rd ed., Cambridge University Press, 2013).
 Richard Gardiner, Treaty Interpretation (Oxford University Press, 2008).
 Olivier Corten and Pierre Klein (eds.), The Vienna Conventions on the Law of Treaties: A
Commentary (Oxford University Press, 2011) vol I & II.
 Lecture Supplementary Note – Treaty Invalidity, Suspension/Termination
States are the main actors (subjects) of international law. They have international legal capacity and
capability to bring other states before the court. The general criteria however may arguably apply to
other entities. E.g. what about international organisations created by states? (Not NGO s . They may also
have subject status.
2.1 INTERNATIONAL ORGANISATIONS (FROM LAST LECTURE)

What is the definition of an international organisation? Commented [D14]: The international law commission
There are different theories about it however the most authoritative statement issues the following: drafts articles and provides criteria for it. International
1) They must have a constitutive instrument/treaty, e.g. UN Charter o ga isatio s do ot i lude NGO s.
2) Must have international legal personality (usually you can spot this in a clause, but where there
is no such provision, it is difficult). Must be proven. Consider the ASEAN charter where although
now there is an explicit provision, historically there was controversy
3) States have to be a member, not individuals
Source: ILC Draft Articles on the Responsibility of International Organisations (2011), Article 2.
If they have international legal personality what does this allow them to do? Legal capacity to act in
international context, capacity to bring before tribunals, representation in domestic courts (but this is
available in corporate organisations as well – ICRC). Membership not a state or based on a treaty,
therefore no international legal capacity.
 Read Reparation Case on pages 320-322 – understand the legal ground upon which the UN is
recognised with the international legal personality. For any analysis of international
organisation the Reparation Case is the STARTING POINT.
2.2 SOURCES OF PUBLIC INTERNATIONAL LAW

- Domestic law (statute, case law, constitution)
- International law (perhaps not even a law; perhaps just an organised body of legal thinking)
Th ough a i flue tial se ies of writers – Vitoria, Gentili Grotius, Pufendorf, Wolff, Vattel and others – it
came to be seen as a specialised body of LEGAL THINKING about the relations between rulers, reflective
of custom and practice in such matters as treaty making, the status of ambassadors, the use of the
o ea s a d the odalities of a fa e . – B o lie s Pu li I te atio al La th
ed., 2012), 4.

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Is this a correct view? This is the starting point.
- 1970 Friendly Relations Declaration: co-operation in a peaceful manner, set determination to not
go to war, legal rules rather than policy.
Principles identified under international law that the document suggests to exist:
Considering that the progressive development and codification of the following principles:
a. The principle that States 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
an any other manner inconsistent with the purposes of the United Nations,
b. The principle that States shall settle their international disputes by peaceful means in
such a manner that international peace and security and justice are not endangered.
c. The duty not to intervene in matters within the domestic jurisdiction of any State, in
accordance with the Charter
d. The duty of States to co-operate with one another in accordance with the Charter
e. The principle of equal rights and self-determination of peoples
f. The principle of sovereign equality of States
g. The principle that States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter;
How can we say that they are legal rules and not just policy?
What is the United Nations Charter?
- The instrument/constitutive treaty that established the United Nations currently with 193
member states.
- Is this an international constitution? Comparable to municipal law (on the international scale)
- Law making power? E.g. General Assembly – law making function/power
- Executive power? E.g. could it possibly be the Security Council – executive organ of the UN
- Judicial power? International Court of Justice
At the initial stage, it is not an international constitution but people have considered the
constitutionalism of international law. However certainly not an international constitution. Also no
legislative power in that there is no legally binding force!!!! To non-members or non-ratifying states.
However to an extent there is a law-making power. In terms of executive power, GA can take Commented [D15]: Executive power – in one respect the
enforcement actions for international peace and security (but no law enforcement action, the ground for UN Security Council has the power to take peace
their actions is not derived from the legal sense). In terms of judicial power, there is a judicial organ (ICJ) enforcement but it is not legally based. The ground upon
which they enforce obligations is not legal. Once recognised
to which the court also has a statute/legal framework for it to operate under – Statute of International threat, can take enforcement action. Enforcement of
Court of Justice, which is annexed to the Charter of the United Nations. something else.
ICJ Statute, Article 38 (1): Commented [D16]: This provision is v. important as it

provides the sources of international law that the ICJ can
Important provision: provides sources of international law merely providing guidance to courts of where refer to in adjudicating disputes.
they can find sources of international law
Adjudication of disputes for the ICJ – therefore it is not exhaustive/conclusive

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The Cou t, hose fu tio is to de ide i a o da e ith su h disputes as a e su itted to it, shall
appl : Commented [D17]: The starting points – 4 sources
a) Treaties/international conventions – international conventions, whether general or particular,

establishing rules expressly recognised by the contesting states
b) International customary law (implied) – international custom, as evidence of a general practice
accepted as law
c) The general principles of law recognised by civilised nations
d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
In terms of the actors that can actually create international law – around 200 states exist around the
world but 193 are UN Member states. How do you regulate the relations between you and others? How
do you determine what the law is?
- Established norms
- Ground establishment in regulation relations
- Bilateral treaty not to do things (established norms)
- General consensus. Implicit questions. Ideal; own interests
- Some behaviours -> legal conviction/obligation
Common issues observed in international law with those sources of international law: legitimacy and
effectiveness.
2.3 LEGITIMACY OF INTERNATIONAL LAW Commented [D18]: First question

Is it really law? Voluntarily giving yourself obligations (critique)
Not pu li la e ause ot i posed autho it
[T]he la o tai i g et ee atio s is ot positi e law: for every positive law is set by a given sovereign
to a person or persons in a state of subjugation to its author… [T]he law obtaining between nations is law
(improperly so called) set by general opinion. – John Austin.
This raises the question of whether international law is actually legitimate.
Legitimacy = ualif of a ule hi h de i es f o a pe eptio o the pa t of those to ho it is

add essed that it has o e i to ei g i a o da e ith ight p o ess . – Thomas Frank,
Legiti a i the I te atio al S ste .
Because the states think it is legitimate, it is legitimate. However this depends on your measure. E.g.
democracy >> Undemocratic nature of international law – C&M 29-31.
Domestic law – democratic process. Sources of domestic law are found through concept of democracy
ho e e i te atio al la is NOT de o ati at all. People s hoi e is i ele a t, it is the states (i.e.
representatives)
Treaty making process do not have democratic process so legitimacy is questionable.

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2.4 EFFECTIVENESS OF INTERNATIONAL LAW Commented [D19]: Second question

The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on
the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall
violate a i s ge e all e ei ed a d espe ted Commented [D20]: Can you say it is a law given that there
may be no sanctions upon breach of the law?
- John Austin, The Province of Jurisprudence Determined (1832, 1995 edn) 171.
In the absence of sanctions for international rules, depends on your measures.
E.g. in the case of statistical breaches International Law is frequently complied with. (99%) as compared
to domestic law. There is greater respect for the law. Well respected thus effective. Depends on
perspective. Perhaps due to the scale in which consequence would have to manifest on the international
level compared to how easy it is individually? Bearing greater consequence?
Al ost all atio s o se e al ost all p i iples of i te atio al la a d al ost all of thei o ligatio s
al ost all of the ti e. – Louis Henkin, How Nations Behave (2nd ed., 1979) 47.
2.5 INTERNATIONAL LAW LEXICON

Perspectives to international law
- International law as static rules v process

- Le lata le fe e da
- Primary v secondary rules
- Rights v obligations/responsibility
- Critical approaches (e.g. Feminist; post-modernist)
This course: mainly positivistic

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3 TREATIES
Sources of international Law – comes from Article 38 of the ICJ Statute (the 4 provisions).
Treaties are preferred over customary law as they tend to be more specific in relation to the other things
involved – agreements between the states, specific. Rules have been agreed by the states the parties are
to – can say so with greater confirmation – hence preferred
However with customary laws – difficulty with interpretation etc.
3.1 WHAT IS A TREATY?

A treaty is an international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation Commented [D21]: VCLT Art 2.1 (a)
Possible to have verbal agreements but not covered under
- Governed by international law, intention to create obligations under international law (Anthony VCLT
Aust, Modern Treaty Law and Practice – 2nd ed 2007, 20).
- Legal test is state s i te t to e ou d – Qatar v Bahrain case
- Whatever its particular designation - e.g. treaty, convention, protocol, statute, agreement,
accord, compact and covenant.
The essential characteristic is that it represents the intention of the states who have agreed to be
bound!
- Types of treaties, e.g. law-making treaties: international legislation (every state has interest in
regulation of complex international activities.
- Law-making treaties (first type of treaty)
- Treaty contracts (second type of treaty) before the world war, historically they were between
two or a few states often about a very narrow issue - follows like a kind of contract
- However post war, with the development of communications, independence, etc.
3.2 INSTRUMENTS OF LESS THAN TREATY STATUS

It does not bind the states who have agreed to it, however sometimes it suits the states to do so without
being bound it.
Rather than intending to create international legal rights and obligations, participants wish to record
their mutual understandings as to how they will conduct themselves; do not intend it to be governed by
international law (or any othe la
- Va ious te s e.g. ge tle e s ag ee e t ut MOU (memorandum of understanding) this

may indicate that the agreement does not bind the parties to it, typical use of the word
- ust e e t e el a eful i assessi g the status of a MOU, stud a efull ALL THE TERMS
- Esta lish a t eat f o a i di g ag ee e t? Te s: use ill i stead of shall , a oid ag ee ,
o e i to fo e , i stead of e te i to fo e . Flags that indicate less than treaty status).
- Just because it is called MOU does not necessarily mean it is not a treaty
Joint understanding on a code of conduct between the Republic of Indonesia and Australia
……. ha e ag eed o the follo i g Joi t u de sta di g o a ode of o du t :
Agreement says it will come into effect after the pa ties ha e sig ed it, ill do this, ill do that . Commented [D22]: Signifiers of less than treaty status
Is this a treaty? Was it intended to be binding?
10

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Joint of understanding – does t e essa il ea that it is t a t eat ut is t pi all used as less tha a
t eat , he eas ag ee – more likely to be a treaty.
- Ho e e this is t a s ie tifi guide

- Mixed understanding however on the balance less than a treaty
- E e ith t eaties the e is t a defi iti e i di atio of hat ould happe if the te s e e to
be breached
3.3 UNILATERAL DECLARATIONS – NUCLEAR TESTS CASE

Sometimes a state will make a unilateral declaration which is intended to be binding.
[D]e la atio s ade a of u ilate al a ts… a ha e the effe t of eati g legal o ligatio s. …Whe
it is the intention of the State making the declaration that it should become bound according to its terms,
that intention confers on the declaration the character of a LEGAL UNDERTAKING, the State being
the efo th legall e ui ed to follo a ou se of o du t o siste t ith the de la atio . …Whethe a
state e t is ade o all o i iti g akes o esse tial diffe e e. …Just as the e ule of pacta sunt
servanda in the law of treaties is based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested states are entitled to require that the
obligation thus created be respected.
The ou t a epted F a e s de la atio that it ould ot o du t u lea tests a d the ou t held that it
was sufficient. Whether you determine it is binding again depends on the terms of the contract. Where
they clearly intend to be bound, then it was intended to be binding
3 key questions when applying VCLT rules to a treaty:
- Treaty s date of e try i to for e: entered into force before 1980? (VCIT entered into force here),
not intended to be applied retrospectively. So check to see if it has been entered into force
before 1980 as it was not applicable then
- Also states not part of VCLT are not bound by it. If a state is not part of the VCLT, they are not
bound by the agreements/conventions by the VCLT
- Are all states parties to the treaty? Are all state parties to VCLT (Gabcikovo-Nagymaos case (this
is the case authority) C&M 192)
- Australia is party to the VCLT, so is US.
Situation: entered into force before 1980/not all the states are party to the VCLT = VCLT provision must
reflect CUSTOMARY INTERNATIONAL LAW to apply.
 Most Of VCLT reflects customary international law but should state case or authority which
shows this for each provision.
 Not entirely correct to waive VCLT as reflecting customary international law, partly
3.4 VCLT FORMATION OF TREATIES – ADOPTION

Article 9 of the VCLT:
1. The adoption of the text of a treaty takes place by the consent of all the States participating in its
drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place by the vote of two
thirds of the States present and voting, unless by the same majority they shall decide to apply a
different rule.
CIL (International Law Commission commentary on draft of VCLT)
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References to the adoption of the treaty: states which have negotiated the treaty have decided to adopt
the text.
 In the case of a bilateral treaty – adoption has to be done by all the states to the treaty
 In multilateral treaty – the adoption is done by 2/3 of the states negotiating the states (as a
matter of practicality)
VCLT: formation of treaties – consent to be bound
Adoption:
- May be by signature (sometimes this by itself is enough but usually requires another step) – this
is consent to text
- Usually requires ratification or accession (article 14 and 15)
 Ratification by original signatories (multilateral treaty open for signature until specified date)
 Accession/acceptance/approval by states not original signatories – consent to the treaty
General rule is that where someone represents themselves as representative of that state usually
accepted – by virtue of position or documents to show authority
3.5 OBLIGATIONS PRIOR TO ENTRY INTO FORCE – VCLT FORMATION OF TREATIES

Article 18 of the VCT: Obligation not to defeat the object and purpose of a treaty prior to its entry into
force
A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
a) It has signed the treaty…, until it shall have made its intention clear not to become a party to the
treaty; or
b) It has expressed its consent to be bound by the treaty, pending the entry into force of the
t eat …
- Or where they have ratified the treaty but has not yet entered into force
A state is not required to comply with the treaty in the general sense (not necessarily the terms of the
treaty) before it has been eif: re state must not do anything which would affect its ability fully to comply Commented [D23]: Entered into force
with the treaty once it has eif - CIL: ILC Commentary.
3.6 VCLT FORMATION OF TREATIES – ENTRY INTO FORCE Commented [D24]: Entry into force: binding on all states
privy to the treaty
Article 24
1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be
bound by the treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty has
come into force, the treaty enters into force for that State on that date, unless the treaty
otherwise provides.
Treaty will usually have a provision stating when it will enter into force and states are only bound by it to
the extent of article 18.
 Bilateral treaties: eif upon acceptance by both parties

 Multilateral treaties: formula set out in treaty itself; wide variety of provisions, e.g. Kyoto
Protocol
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No default provision of eif, because dependent on consent of states
3.7 ARTICLE 27 – INTERNAL LAW AND OBSERVANCE OF TREATIES

A party may not invoke the provisions of its internal law as justification for its failure to perform a t eat
I.e. Australia cannot become party to a treaty where Australia laws are at variance with provisions of the
treaty
Reflects CIL (customary international law) – Alabama Claims Arbitration
Conflicting domestic laws do not provide a valid justification for failure to perform a treaty!
3.8 ARTICLE 34: GENERAL RULE REGARDING THIRD STATES

A treaty does not create either obligations or rights for a third state ithout its o se t .
- The pacta tertius rule: applies to VCLT itself

- CIL (PCIJ Free Zones case: Harris, 7th ed, 684)
Where a state has not consented to be bound – not bound
Quite often, treaty codifies customary international law. Where treaty provision = cil, binding on all
states.
But a state may be bound by a treaty although it is not a party to it where:
a) Treaty provision reflects customary international law (binding on all states)

b) Objective regime exception (where the rules of the treaty create obligations for all states)
because they are established for the benefit of all the nations of the world
The o je ti e egi e e eptio C&M -7):
- C eate o ligatio s fo all States: esta lished fo the e efit of all atio s i the o ld – PCIJ
Wimbledon case
- Need to show intention of parties to create such a regime
- Generally refer to specific area/region: neutralisation/demilitarisation of area; freedom of
navigation in international waterways
- Possibly Antarctic Treaty (peaceful use of the Antarctic region), binding on all states
It is necessary to show intention of parties to create such a regime
3.9 TREATY INTERPRETATION

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose. (VCLT Art 31.1, C&M 169)
Applied by ICJ as custom (Libya v Chad, C&M 170-2).
- Always have to interpret treaty provisions
Note Article 31.2 and 31.3
- o o u de sta di gs e te ed i to ith othe states o Aust alia s atifi ation of Treaty of

Amity and Co-ope atio i Southeast Asia TAC C&M a su se ue t ag ee e t… ega di g
the i te p etatio of the t eat o the appli atio of its p o isio s (Article 31.3 (a))
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Australian letter Commented [D25]: One of the wa (?)

Subsequent agreement regarding the interpretation of the
[T]he Aust alia Go e e t is pleased to note the following understandings of key provisions of the treaty or the application of its provisions
Treaty, on a non-p ejudi e asis to ASEAN. Fi st, Aust alia s a essio to the T eat ould ot affe t
Aust alia s o ligatio s u de ilate al o ultilate al ag ee e ts. Se o d, the T eat is to be interpreted
i o fo it ith the U ited Natio s Cha te , a d Aust alia s a essio ould ot affe t Aust alia s
rights and obligations arising from the Charter of the United Nations. Further, the Treaty will not apply to,
o affe t, Aust alia s relationships with states outside South-East Asia. Finally, Articles 14 and 16 of the
Treaty effectively provide that, when a state outside South-East Asia to the Treaty is directly involved in a
dispute, the agreement of that state-party is required before the High Council can be convened. Should
the High Council be convened, that state would be entitled to participate in the High Council. (Exchange
of letters between the Australian Foreign Minister and Deputy Prime Minister and Minister for Foreign
Affairs of the Lao People s De o ati Repu li , as Chai a of the ASEAN Sta di g Co ittee, Jul
2005.)
3.10 TREATY INTERPRETATION (ARTICLE 31): HOW TO APPLY

- Good faith (Article 26); the state interpreting the treaty is doing so objectively and not bending
its provisions to lead to an absurd or unreasonable result (presumption that states are in good
faith unless there is an obvious sign otherwise)
- Process of interpretation - should be a single combined operation, an ordered yet holistic
approach (ordinary meaning, context, object and purpose)
- Starting point is the text (object and purpose do need to be considered but is not the fulcrum)
- Why not start with intention? (A v Minister C&M 175) Commented [D26]: Important case for treaty
- Context (rest of the treaty; to interpret a particular provision consider the other provisions interpretation, read it.
within the treaty), article 31.2 may also include other agreements
- Object and purpose (purpose is the fulcrum in domestic law). In the case of a treaty object and
purpose needs to be included but it is not the basis of your interpretation of a treaty provision in
international law (states come to treaty negotiations with different intentions that they want to
see realised in the treaty). (When the text is finalised where it is a complex bargain of what they
want). Object and purpose is elati el eas … he e t eat has a o fo us; ith lo ge a d
o e o ple t eaties ho e e it is i tuall i possi le . Commented [D27]: Thus apply object an purpose for
- Where a treaty has a narrow focus – that is the object and purpose you apply (the one of the treaties with a narrow focus. In practice however this
treaty itself). In more complex treaties you will attempt to look at the object and purpose just at approach is used predominantly to CONFIRM interpretation.
the specific provision you are looking at
3.11 SUPPLEMENTARY MEANS OF INTERPRETATION – ARTICLE 32

Supplementary means of interpretation (Art 32) of the VCLT Commented [D28]: Vienna Convention on the Law of
Treaties
Recourse may be had to supplementary means of interpretation, including the preparatory work of
the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from
the application of Article 31, or to determine the meaning when the interpretation according to
Article 31:
a) Leaves the meaning ambiguous or obscure; or

b) Leads to a result which is manifestly absurd or unreasonable
Cover a wide variety of material and means but be careful in justifying the use of them by reference to
article 32) conditions in order to confirm, clear up ambiguity, or because the result is absurd or
unreasonable. Commented [D29]: Must justify why it was absurd or
unreasonable before using supplementary means of
CIL (Libya/Chad case para 55) + ILC Commentary. interpretation.
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Great China Metal Industries v Malaysian International Shipping Court (McHugh J, C&M 176).
Case o e ed the Hague Rules which regulate international contracts for the carriage of goods by sea
and determine the responsibilities, liabilities, rights and immunities of the carrier.
Those e t i si sou es i lude the travaux preparatoires and the circumstances of the conclusion and Commented [D30]: Preparatory work
histo of the egotiatio of the t eat . …[T]he i ediate i petus fo the Hague Rules a e f o the
British Empire. Furthermore, British lawyers and representatives of British carrier and cargo interests
dominated the Committees responsible for the d afti g of the Rules. …That ei g so, it see s likel that
the E glish o o la ules p o ided the o eptual f a e o k fo the Hague Rules.
- Goes on to consider the common law concept of perils of the sea.
3.12 TREATY INVALIDITY

2 different types of invalidity
1. Absolute invalidity
- Coercion: CIL: ILC Commentary and the Fisheries Jurisdiction case (where the state has been
coerced into agreeing to the treaty or where a state was given no choice about whether to
agree). It does not refer to cases where the parties are of unequal strength and power in the
world. The mere fact that there is an inequality of power or legal/political power does not
constitute coercion. It has to be a situation where there is virtually no choice at all.
- Conflict with norm of jus cogens (VLCT Articles 51, 52, 53, 64)
Norm of jus cogens or peremptory norms which are norms that prevail over any other
international obligation – e.g. Torture, slavery, piracy, racial discrimination etc. which cannot
ever be a subject of legal agreement between states and renders void prohibition of such
activity. E.g. Portugal took Australia to ICJ regarding self-determination (violating the right of self-
determination of East Timor)
The legal consequence of absolute invalidity is that the treaty is null and void from the moment it is
concluded (void/without legal effect) (Article 51-53). Void ab initio!
And a treaty cannot be divided into valid/invalid provisions – it is invalid as a whole – Article 44.5 (Rarely
found, would need to be extreme)
Article 53 Treaties conflicting with a peremptory norm of general international law (jus cogens) Commented [D31]: Prevail over any other international
obligation and cover subjects such as racial discrimination,
A treaty is oid if…it o fli ts ith a pere ptory or of ge eral i ter atio al la . For the piracy, torture, slavery – norms of CIL
purposes of the present Convention, a peremptory norm of general international law is a norm
accepted and recognised by the international community of States as a whole as a norm from Portugal self-determination (treaty example)
which no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.
Autho it fo A ti le as CIL is less e tai ut it ould e a epta le to efe to Judge Duga d s

separate opinion in the Armed Activities case (see Harris (7th ed), 694-698).
Also note Article 64 (emergence of new norm of jus cogens).
2. Relative invalidity
Other circumstances of a less dramatic nature to absolute invalidity
- Consent by manifest violation of internal law, restrictions on authority of representative, error,

fraud, corruption (VCLT Arts 46-50, C&M 182-3). This may vitiate only some parts of the treaty
(Article 44.3)
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- Wai e of ground for invalidation by acquiescence/subsequent express consent (Article 45) Commented [D32]: Waiver can be implicit. If you acted
- Provisions of internal law regarding competence to conclude treaties (Article 46), specific you were bound by the treaty for a considerable amount of
restrictions on authority to express the consent of a State (Article 37). time (e.g. 40 years) cannot rely on this.
- Error (Article 48): Temple case (C&M 180-1). Note circumstances precluding error as grounds for Commented [D33]: Misrepresentation
invalidity Commented [D34]: Claim by Thailand had sovereignty;
- Fraud (Article 49), map operating from was a mistake. Implied waiver of the
- Corruption of a representative of a State (Article 50). condition of error – cannot be realised too late e.g. 50 years
Relative invalidity means that only some parts of the treaty which may have been affected will be invalid
but it will not mean it is invalid from the time it is concluded (void ab initio).
Article 46 – Provisions of Internal Law regarding competence to conclude treaties Commented [D35]: Protects other States from allegations
that another State is trying to back out of obligations from a
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in technical error
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal law
of fundamental importance
2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith Commented [D36]: Unless obvious to other States it was
not done correctly
Probably reflects CIL – e.g. Eastern Greenland case, Spanish Zones of Morocco case.
3.13 TERMINATION OR SUSPENSION (ARTS 60-62)

Material breach (Art 60 = CIL (Namibia case): C&M 186-8
1. A material breach of bilateral treaty (between 2 states) by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its operation in whole
o i pa t. …
3. A material breach of a t eat …, o sists i : Commented [D37]: High threshold
a) A repudiation of the treaty not sanctioned by the present Convention; or
b) The violation of a provision essential to the accomplishment of the object or purpose of the
treaty.
Party loses right to invoke material breach if consent/acquiescence (Article 45). Commented [D38]: Party loses right to invoke material
breach if consent/acquiescence (implicit) after a number of
years have passed.
Termination or suspension – supervening the impossibility of performance (Article 61)
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty. … A ti le . Commented [D39]: Supervening impossibility of
performance – not just inconvenience or no longer wants to
 CIL Hungary v Slovakia – C&M 189-91 do it – must be a change of circumstances – lack of control
Fundamental change of circumstances
Agreement between Hungary and Slovakia about construction of dams after communist rule. Hungary
stated that we have a completely different economic system, were only bound by the treaty because
under Soviet pressure and thus took Slovakia to ICJ.
Court agreed with Slovakia that it was invalid on the grounds that the supervening impossibility of
performance was a narrower concept than financial difficulties, and since Hungary responsible for acts
which made joint exploitation of investment possible, it could not claim supervening impossibility of
performance.
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Termination or suspension – fundamental change of circumstances (Article 62) (Rebus Sic Stantibus)
(C&M 189)
Reflects CIL (ILC Commentary on draft of VCLT)
1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of the treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:
a) The existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and
b) The effect of the change is radically to transform the extent of obligations still to be performed
under the treaty
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
a) If the treaty establishes a boundary; or
b) If the fundamental change is the result of a breach by the party invoking it either of an obligation
under the treaty or of any other international obligation owed to any other party to the treaty.
CIL: Fisheries Jurisdiction case
- esse tial asis – consider whole treaty Commented [D40]: Must show that the breach was an
- Radical transformation of obligations still to be performed essential element – which made it impossible to carry out
- Stability of treaty relations requires that the plea of fundamental change of circumstances can the obligations of the treaty
only be applied in exceptional cases - pacta sunt servanda – H v S case Commented [D41]: Even if political systems/internal
systems
However rarely successful (C&M 191).
4 RESERVATIONS TO TREATIES
Reservations to Treaties
- Defined in Article 2 d) of the VCLT
Rese atio ea s a u ilate al state e t, ho e e ph ased o a ed, ade a State, he sig i g,

ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State;
- 2 key elements: unilateral statement, however phrased or named (sometimes referred under an
statement of understanding/interpretation rather than a reservation), does it purport to exclude
or to modify the legal effect of certain provisions of the treaty nonetheless (effectively making a
reservation though abstaining from referring to it explicitly)
Beware of declarations: …to esta lish the legal ha a te of … a de la atio , o e ust look behind the
title given it a d…deter i e the su sta ti e o te t
- Belilos Case; archipelagic (many islands) provisions regarding sovereignty
UNCLOS (C&M 156-7): Philippines Understanding ade upo sig atu e a d o fi ed upo atifi atio
The sig i g of the Co e tio the Go e e t of the Republic of the Philippines shall not in any
manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from
the Constitution of the Philippines; …
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The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the
sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of
authority to enact legislation to protect its sovereignty, independence and security;
Australia objected to the Philippi es U dersta di g – C&M 156-7
Australia considers that [the] declaration made by the Republic of the Philippines is not consistent with
a ti le of the La of the Sea Co e tio , hi h p ohi its the aki g of ese atio s. … The
declaration of the Republic of the Philippines asserts that the Convention shall not affect the sovereign
rights of the Philippines arising from its Constitution, its domestic legislation and any treaties to which the
Philippines is a party. This indicates, in effect, that the Philippines does not consider that it is obliged to
harmonies its law with the provisions of the Convention. By making such an assertion, the Philippines is
seeki g to odif the legal effe t of the Co e tio s p o isio s.
- By making such an assertion (that the Convention shall not affect the sovereign rights of the
Philippines arising out of the Constitution), the Philippines is seeking to modify the legal effect of
the conventions provisions
Papua New Guinea – Reservations on Accession to 1951 Refugees Convention; straight forward
reservation though not accepting certain obligations stipulated in the articles
The Go e e t of Papua Ne Gui ea i a o da e ith a ti le pa ag aph of the Co e tio

makes a reservation with respect to the provisions contained in articles 17 (1), 21, 22(1), 26, 31, 32, 34 of
the Convention and does not accept the obligations stipulated in these articles.
Article 17 – Wage-earning employment
The Contracting State shall accord to refugees lawfully staying in their territory the most favourable
treatment accorded to nationals of a foreign country in the same circumstances, are regards the right to
engage in wage earning employment.
Article 21 – Housing
As regards housing, the Contracting States,…, shall a ord to refugees lawfully staying in their territory
treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances.
Article 22 – Public education
1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals
with respect to elementary education
I po ta tl Papua Ne Gui ea ha e o ithd a thei ese atio s to the o e tio . That lette
has gone from the PM of PNG through to the United Natio s. The e ade the o it e t to e fo e
the Refugee Co e tio . …We a t to ake su e [that] PNG i ithd a i g thei ese atio s ith
respect to anyone sent from Australia is committed to making sure that people are processed
appropriately according to the o e tio a d that s hat ill happe .
4.1 PURPOSE OF RESERVATIONS

Process of adoption of multilateral treaties
- Adoption of the text of a treaty at an international conference takes place by the vote of 2/3 of
states present and voting (Article 9 of the VCLT)
- Or by consensus without vote (THUS need for process for states to EXEMEPT themselves from
particular provisions when ratifying/acceding).
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The same principle applies generally to treaties with more than 2 parties but does not apply to bilateral
treaties (effectively the same as amending a contract).
Article 19 of VCLT: Formulation of reservations
A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation
unless:
a) Reservation is prohibited (e.g. fundamental to the treaty)

b) The treaty provides that only specified reservations, which do not include the reservation in
question (where there have been allowances for reservation stipulated only by particular
provisions though)
c) In cases not falling under sub-paragraphs above, the reservation is incompatible with the object
and purpose of the treaty
4.2 RESERVATIONS TO TREATIES: ACCEPTANCE AND REJECTION

Before WWII, a contractual approach was taken to treaties where reservations were seen as
amendments to that contract – e.g. the Ge o ide Co e tio s ase. U de this app oa h, the t aditio al
concept [of reservations] involved the proposition that no reservation was valid UNLESS it was accepted
by all the contracting parties ithout o eptio .
Post-war approach was flexible, as followed in VCLT Articles 19-23.
..The o t a ti g states do ot ha e a i te ests of thei o …, the e el ha e a o o i te est,

namely the accomplishment of [the] high purposes of the convention. Consequently, in a convention of
this type one cannot speak of individual advantages or disadvantages to the states, or of the maintenance
of a perfect contractual balance between rights and duties .
Thus there was:
- An intention that as many states as possible should participate and therefore could not excluded
on the basis of minor reservation
- However not accepting reservations which were contrary to the object of convention
2 questions arising from the Genocide Conventions case (pg. 154 of the C&M)
1. Can the reserving State be regarded as being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of parties to the Convention but not
by the others?
A s e : … a State hi h has ade a d ai tai ed a ese atio hi h has ee objected to by one or

more of the parties to the Convention but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object an purpose of the Convention; otherwise, that
State cannot be regarded as being a party to the Convention.
2. If the answer to question 1 is in the affirmative [which it was], what is the effect of the
reservation as between the reserving State and:
a) The parties which object to the reservation
b) Those which accept it
Answer: a) if a party to the Convention objects to a reservation which it considers to be incompatible

with the object and purpose of the Convention, it can in fact consider that the reserving State is not a
party to the Convention; b) if, on the other hand, a party [objects to the reservation] but accepts the
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reservation as being compatible with the object and purpose of the Convention, it can in fact consider
that the reserving State is a party to the Convention.
Genocide Conventions case decision codified in VCLT Article 20.4
a) Acceptance by another contracting State of a reservation constitutes the reserving State a party
to the t eat …;
b) An objection by another contracting State to a reservation does not preclude the entry into force
of the treaty as between the objecting and reserving States unless a contrary intention is
defi itel e p essed the o je ti g State; …
. …u less the t eat othe ise p o ides, a ese atio is o side ed to ha e ee a epted a State
if it shall have raised no objection to the reservation by the end of a period of 12 months after it was
notified of the reservation or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.
Check the dates of the reservation – states only have capacity to OBJECT within the time frame of 12
months; afterwards it lapses and is effectively waived.
Article 21 of the VLCT – Legal effects of reservations and of objections to reservations (stipulates the
legal effects)
- Where a state has accepted a reservation made by another state, it modifies those provisions to
the same extent for that other party in its relations with the reserving state (not in relation to
other parties)
- The same is with vice versa where a state has objected to a reservation
What does Art 21.3 mean? When reservation excludes applicability of particular provision, no difference
between acceptance and objection to particular reservation.
When reservation places certain interpretation on particular provision:
- Treaty applies between reserving and objecting state with exception of provision covered by
ese i g state s i te p etatio
- With non-objecting state provision covered by reser i g state s interpretation will have the
scope suggested by that reservation
Interpretation of provision – consider the differences between accepting a reservation and objecting to it
4.3 RESERVATIONS TO TREATIES

Options for objecting state: Articles 20-21 VCLT
- Oppose eif between 2 states (Article 20.4 b) VCLT)

- Not oppose eif but provisions to which the reservation relates do not apply
Provisions contrary to the object and purpose of the treaty
- Oppose eif (Art 20.4 b))

- Object to reservation as incompatible with object and purpose but state treaty still in force
between objecting and reserving state in its entirety (sate practice + ILC Guide to Practice)
Reservations guide
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5 CUSTOMARY INTERNATIONAL LAW

 C&M CH 2: pp 61-94, 98-99
 Michael Wood, 'Second Report on Identification of Customary International Law', UN Doc
A/CN.4/672 (2014).
 Michael Wood, 'Third Report on Identification of Customary International Law', UN Doc
A/CN.4/682 (2015).
 Alberto Alvarez-Ji e ez, Methods fo the Ide tification of Customary International Law in the
I te atio al Cou t of Justi e s Ju isp ude e: - International and
Comparative Law Quarterly 681-712.
Gives clarity and flexibility as it is written – treaty advantages
Not enforceable against third parties (like a contract, only parties that are part of it are bound) –
weaknesses of treaties
5.1 CUSTOMARY INTERNATIONAL LAW

Once identified as a state, all states are bound by CIL, it may overcome the weaknesses of treaties but it
has the weakness of ambiguity (unclear, unwritten, and unclear whether a rule even exists)
North Sea Continental Shelf Case (1969)
 1958 Geneva Convention (treaty), Article 6(2)
Whe e the sa e o ti e tal shelf is adja e t to the te ito ies of adja e t 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
eadth of the te ito ial sea of ea h state is easu ed.
Netherlands/Denmark – parties to the Convention
Germany – not a party to the convention
Nicaragua Case (1986) C&M 73 Commented [D42]: Cou t does t a t to fo us o state

practice but rather opinio juris
- Nicaragua filed an application against the US alleging illegal support Contras for military and
paramilitary activities against the government
- UN Cha te A ti le {t eat i st u e t}: All e e s shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence
of a state, o i a othe a e i o siste t ith the Pu poses of the UN
- US had a reservation to its acceptance of the ICJ jurisdiction excluding disputes under
multilateral treaties (condition).
Example of where there was a treaty provision which provided the law but only bound certain states or
the application of the treaty had been excluded for technical reasons and could not be relied upon
In these cases the ICJ would find it through customary international law irrespective of their consent or
ratification of a treaty instrument as a source of extrinsic material
The ICJ Statute, A ti le : i te atio al usto , as e ide e of a ge e al p a ti e a epted

la
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5.2 LEGAL REQUIREMENTS FOR THE IDENTIFICATION OF INTERNATIONAL CUSTOMARY LAW

1) There must be a general practice – a state practice (physical/objective element) Commented [D43]: What the law actually is
2) a epted as la – opi io juris (subjective element)
Commented [D44]: What the states think is the law
North Sea Continental Shelf (FRG v Denmark/Netherlands) [1969] ICJ Rep 3, 43 Para 74:
a i dispe sa le e ui e e t ould e that ithi the pe iod i uestio , sho t though it ight e,
State practice, including that of States whose interests are specially affected, should have been both
extensive and virtually uniform…; a d should o eo e ha e o u ed i su h a a as to sho a Commented [D45]: Shared by many states
general recognition that a rule of law or legal obligation is involved .
Nicaragua v US: The e e fa t that States de la e thei e og itio of e tai ules is ot suffi ie t .
5.3 WHAT IS STATE PRACTICE?

What are the elements?
- A o sta t a d u ifo usage p a ti ed the states Asylum Case)

- idesp ead , e te si e a d i tuall u ifo North Sea Continental Shelf)
- State practice actually examined – participation in the convention
That non-ratification may sometimes be due to factors other than active disapproval of the convention
concerned can hardly constitute a basis on which positive acceptance of its principles can be implied
(acquiescence)
There has to be legal conviction
15 precedents of boundary delimitation
- A very small proportion

- Most of them were or were about to be parties to the Convention
The ou t does ot o side that, fo a ule to e esta lished as usto a , the o espo di g p a ti e
must be in absolutely rigorous conformity with the rule...the court deems it sufficient that the conduct of
states should, in general, be consistent with such rules, and that instances of state conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not as indications of the
e og itio of a e ule – Nicaragua
Glossi g o e the a se e of o fi i g state p a ti e – Charlesworth
 How can one distinguish between the breach of an existing rule and the creation of a new law?
Becomes an arbitrary distinction
 In principal, must prove it is widespread, extensive and virtually uniform
 However in practice the ICJ has taken a v. liberal approach
5.4 OPINIO JURIS – SUBJECTIVE ELEMENT

The states o e ed ust the efo e feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
institutional acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense
of legal dut . No th Sea
The alleged ules ust e e e ised the states as a ight appe tai i g to te a d espe ted the
territo ial States a dut i u e t o the ot e el fo easo s of politi al e pedie As lu ase
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5.5 EVIDENCE
State practice
- Sending diplomats
- Diplomatic statements
- Voting in general assembly
- Cabinet (legislature and the judiciary); makes policy; makes bills (legislature); courts give
judgement
- Legislation
- Military operations/activities
- Parliamentary debates
- Voting on resolutions
- Treaty signing/ratification
- Judicial decisions
- Ministerial statements
- Check out the YBIL for evidence (Yearbook of International Law)
- Every year eminent scholars list examples of state practice undertaken (good for identifying state
practice)
Opinio juris
-??? how can you prove opinio juris Commented [D46]: That there is legal conviction – that
-Alleged breaches states are acting because they believe there are legally
-Presumed that opinio juris is to exist unless proven otherwise required to do so
-Opinio juris identified in paragraphs 48 to 55 of the judgement in North Sea
-Opinio juris can be derived from resolution 2625 (XXV) (reading in first week of the General
Assembly resolutions) Commented [D47]: Expression of a custom can be found
- Check also the ILC 3rd report Michael Wood (gives actual examples of opinio juris) in the Charter
 The same evidence used for state practice cannot be used for opinio juris Friendly relations – resolution 2625 (XXV) - not binding but if
you voted for it shows a general indication of what you think
 You can infer some aspects of state practice to prove opinio juris but no double-counting! should be
The e is o othe a tha to as e tai the e iste e of opinio juris from the fact of the external Influential factor
e iste e of a e tai usto – North Sea Continental Shelf
Even if a state breaches the law it may make it stronger
Rega di g all u ifo o du t of Go e e ts o , i app op iate ases, a ste tio the ef o as because of applicable exceptions
evidencing the opinio neccessitis juris except when it is shown that the conduct in question was not
a o pa ied su h i te tio – H Lauterpacht, The Development of International Law by the State practice does not give us any reason to say that there is
a principal that countries can intervene each other
International Court
Just e ause the e is o ule p ohi iti g does t ea that
Ce tai asi legal otio s hi h, as has been observed in paragraphs 48 and 55, have from the you can say it is allowed
beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation
Commented [D48]: Accompanied by state practice unless
ust e the o je t of ag ee e t et ee the States o e ed – North Sea Continental Shelf
rebutted (this is an opinion)
This opi io ju is a , though ith all due autio , e deduced from, inter alia, the attitude of the Parties Commented [D49]: Read the judgement that they have
and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 identified for opinio juris
XXV …The effect of consent to the text of such resolutions cannot be understood as merely that of a Commented [D50]: Friendly Relations Document; certain
eite atio o elu idatio of the t eat o it e t u de take i the Cha te . O the o t a , it a General Assembly resolutions that can be identified as opinio
be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by juris
themselves. – Nicaragua [1986]
5.6 REGIONAL CIL

- Geographically proximate states
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- Can theoretically exist

- Re ui e e ts a e still the sa e; u ifo , e te si e a d idesp ead state p a ti e a d is
accompanied by the acceptance of that practice as law
- CIL can be geographically limited
It is difficult to see why the number of States between which a local custom may be established on the
basis of long practice must necessarily be larger than two. The court sees no reason why long continued
practice between two States accepted by them as regulating their relations should not form the basis of
utual ights a d o ligatio s et ee t o States – Right of Passage (Portugal v India) [1960] ICJ Rep 6
Cf the right of embassies to grant political asylum in Latin America – e e if su h a usto e isted
between certain Latin American States only, it could not be invoked against Peru which, far from having
its attitude adhe ed to it, has o the o t a epudiated it – Asylum Case [1950] ICJ Rep 266
5.7 PERSISTENT OBJECTOR DOCTRINE Commented [D51]: Michael Wood states is a widely
accepted principle however there are still some sceptics
CIL – presumption of acceptance however rebuttable
Persistent objector: a state who has been opposi g f o the ea l da s of the ule s fo atio a d
maintained consistently should be exempted from following it.
Jus cogens o that i alidate a t eat i st u e t do t a use this ord, genocide, torture have been
recognised as jus cogens norms but other than that not widely accepted as jus cogens)
Persistent objector doctrine was developed from the Fisheries Case (UK v Norway) [1951] Commented [D52]: Coastline – zig zag
Straight line
 Norwegian Royal Decree 1935 – fisheries zone (territorial sea) -> disputes over the baseline. Argued that the UK did not provide sufficient state practice
 UK: low-water mark on permanently dry land + proper closing line of internal waters (10-mile
rule)
 No a : St aight aseli e s ste
 Does the 0-mile rule apply as CIL?
 has ot a ui ed the autho it of a ge e al ule of i te atio al la efe e e to do esti la
 I a e e t the te -mile rule would appear to be inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast).
Contention has been argued about whether Courts will apply this in practice – validity still in doubt.
5.8 ROLE OF TREATIES

North Sea Continental Shelf (FRG v Denmark/Netherlands) [1969] ICJ
The provision concerned should, at all events potentially, be of a fundamentally norm-creating

character (only these can be used as basis for potential to become customary international law) such as
could be regarded as forming the basis of a general rule of law. (Regarding the 1958 Geneva Convention
on the Continental Shelf, Art 6(2)).
- Declaratory effect at the time of adoption Commented [D53]: Codifying an existing international
- Crystallising effect during the drafting process custom
- Authoritative guiding effect for state practice faced with new legal problems Commented [D54]: During negotiation stage, states may
develop a uniform practice
Commented [D55]: Even if not crystallised may act as an
authoritative guide/impetus for other states to revisit their
practice which may subsequently lead to a widespread
uniform practice (that will become CIL later)
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6 OTHER SOURCES OF INTERNATIONAL LAW

1. General principles of law
- ICJ Statute, Article : the ge e al p i iples of la e og ised i ilised atio s Commented [D56]: This te i ilised atio s has p ett
- An independent source stemming from municipal legal principles much lost meaning
An independent source stemming from municipal legal principles (rather than international relations): Commented [D57]: Sources of general principles of law
are different to those general principles of international law
- Cf Principles of International Law: e.g. pacta sunt servanda, sovereign equality, non-intervention Must be derived from domestic general principles not from
international law
Thus this provision can be broken down into 2 elements:
1. General – i.e. ge e all a epted p a ti e he e the p i iples a e appli a le to i te atio al

elatio s S hachter, C&M 88)
2. Principles of law
6.1 EXAMPLES OF GENERAL PRINCIPLES OF LAW (DERIVED FROM MUNICIPAL LAW)

1. Remedies
It is a p i iple of i te atio al la , a d e e a ge e al o eptio of la , that a ea h of a

engagement involves an obligation to make epa atio – Charzow Factory (Germany v Poland) [1928] –
even though this is a municipal law, can be transposed in an international law context
2. The use of circumstantial evidence
This i di e t e ide e is ad itted i all s ste s of la , a d its use is recognised by international

de isio s – Corfu Channel Case [1949]
3. Equitable principles
I o e tha o e atio p i iples of e uit ha e a esta lished pla e i the legal s ste – Meuse
(Netherlands v Belgium) [1937]
Cf ex aequo et bono: ICJ Statute, Article 38 (2)
4. Res judicata
E.g. Charzow Factory (Interpretation) [1927] PCIJ (Ser A) No 13, 27; Trail Smelter Arbitration (1941)
Cf Co fu Cha el [ ] ICJ Rep eje ti g Al a ia s o je tio to the Cou t s ju isdi tio to assess the
damages)
5. Estoppel
It is a esta lished ule of la that the plea of e o a ot e allo ed as a ele e t itiati g o se t if

the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the
circumstances were such as to put that pa t o oti e of a possi le e o – Temple [1962] ICJ Rep 6
Commented [D58]: Primary sources of law

6.2 JUDICIAL DECISIONS - Treaties
ICJ Statute, Art 38 (1) (d): a subsidiary means for the determination of the rules of law - International Customary Law
- General Principles of Law
ICJ Statute, Art 59: no binding force as precedent – no such thing as precedent in international law. Only
binding on the parties to the dispute. Judicial decisions – supplementary sources
Commented [D59]: Thus decisions made by the ICJ and
- Decisions by the ICJ and other judicial forums, International Criminal Court, etc. other judicial forums cannot be a primary source of
international law – only as a secondary source
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Judicial decisions v reasoning (Shearer C&M 91): Does this mean that the ICJ judgement have no legal
alue hatsoe e ? The de isio itself is t i di g o othe states e te al to the dispute ut the
reasoning/interpretation that led to that decision may be found to be authoritative and that is often the
case. Persuasive!!! (Not exclusive to ICJ).
Process of cross-fertilisation: trans-judicial communication
6.3 TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS (SCHOLARS)

Refle ti e of i te atio al la see as state thi ki g / legal thi ki g athe tha a tual la
- Must be used as a subsidiary means – given by article 38 (1) (d)

- Role of publicists in international law (cf domestic law)
- Cf shaping opinio juris or guiding state practice (may have an influential role in shaping and
developing the direction of international law)
Debatable as what would be o side ed highl ualified pu li ists .
6.4 OTHER SOURCES Commented [D60]: Phenomena of additional sources of

international law following post war
- UN General Assembly resolutions
There are other additional sources of int. law esp. in
- UN Security Council resolutions particular regional contexts but not in this course
- Cf Unilateral Acts
6.5 GENERAL ASSEMBLY RESOLUTIONS Commented [D61]: In itself is not legally binding but can
help with clarifying international customary law
- UN Charter (article 10-14: recommendation only) *important to examine the UN Charter
- soft la – no legal force but more than moral value as compared to hard law (international
treaties etc. which impose legally binding obligations)
- Possible legal effects in relation to Customary International Law:
Authentic interpretation of inte atio al la p i iples , e.g. , De la atio o P i iples of

International Law concerning Friendly relations and co-operation among States
Possible legal effects in relation to CIL:
- Authentic interpretation of international law principles; e.g. GA Res 2625 – 1970 Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States.
- A material source of CIL (opinio juris or state practice)
- A reflection of CIL: e.g. Texaco v Libya with respect to nationalisation and compensation (GA Res Commented [D62]: Can guide states in what is customary
1803 with respect to nationalisation and compensation) international law as it is written and embed/reflected in the
- A step forward to progressive development of international law general assembly resolutions
6.6 SECURITY COUNCIL RESOLUTIONS Commented [D63]: If adapted as a decision of the Security
Council, it is legally binding.
UN Charter, Article 25 – binding on all UN member states i a o da e ith the principles and
pu poses of the Cha te
Quasi-legislative resolutions: (Security Council adopted resolutions which are not specifically addressed
to any state but addressed to all the states and imposing legal obligations)
- SC Res 1373 (2001); cf 1999 Convention for the Suppression of the Financing of Terrorism
- SC Res 1540 (2004); cf 2005 Protocol to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation
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Must i ple e t easu es e e if states did t like it – circumvented the principles of state consent in
this matter as states already gave their consent to be bound by security council decisions regardless of
knowing what decisions they may have been.
6.7 UNILATERAL ACTS

Most are derived consensually to form a source of obligation
 Recognition
 Reservation
 Declaration – effect of creating legal obligations – e.g. nuclear test cases [1974]
- Intention to be bound (is clear)
- Publicity (made it in public)
- Principle of good faith (and there are principles of good faith)
 Satisfying these 3 conditions, e.g. France was bound by their own commitment to stop testing
nuclear weapons in Pacific Ocean
 Provides additional source of obligation in international law
 May be bound by an obligation that the states themselves pledged
Miscellaneous:
 Article 103 of the UN Charter – conflict of bilateral treaty and UN Security Council
 No international court hierarchy, ICJ carries authoritative value, may be a bit more respected
 European Union can also create subsidiary sources of law – creating a unique legal infrastructure
within that region
 Use international law as a guide
 Value of judicial consent also carries some authoritative value
 Mostly the reasoning
7 INTERNATIONAL LAW AND DOMESTIC LAW PART I

The lecture will explain the relationship between international law and domestic law. Some States treat all
international law as part and parcel of their own national or domestic (or municipal) law. Australia is not one
of these countries. In Australia treaties must be enacted into Australian law by legislation. The position with
respect to customary international law is less clear. It is important to remember, however, that even if
international law is not implemented domestically, any failure by Australia to abide by its international
obligations entails responsibility as a matter of international law.
 C&M CH 4: pp 197-225
 Hilary Charlesworth et al, No Country is an Island: Australian and International Law (UNSW Press,
2006).
 Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian
Federalism (Melbourne University Press, 1997).
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- Monism and dualism

- Transformation and incorporation
- Customary international law in Australia
7.1 BACKGROUND
Wh is i ple e tatio a i po ta t topi ? Commented [D64]: Consolidation of proliferation of
international norms
th
- As IL moves from a 20 century phase of rapid development to a more considered Diminishing state sovereignty
assessment of implementation, compliance and enforcement, the role of municipal law in International environmental laws
Human rights law
that p o ess is e o i g i easi gl i po ta t.
- Plus growing encroachment on areas traditionally considered confined to municipal law
States have concerns about loss of sovereign rights, tension between nationalist and internationalist
pe spe ti es o i te atio al la a d elatio s. O e s pe spe ti e atio alist/i te atio alist
reflects theoretical positions on relationships between domestic and international law.
1. Theoretical context: Monism vs Dualism, Natural vs Positive Law
There are 2 main theories about the relationship between ML (municipal law) and IL (international
law): dualism & monism (the idea that there is one/natural law). Monism is associated with positive
law.
These in turn are linked to theories of law (natural and positive law), and conclusions as to how to
resolve conflict
What is natural law?
Mo is , Natural La a d I orporatio
Monism: international law (IL) and municipal law (ML) are part of the SAME LEGAL ORDER – and one
is supreme within that order.
Kelsen s s ie tifi app oa h to the la :
- The object of analysis must be seen as a unity

- IL binds individuals, mediately through the state. Thus no real distinction between ML and IL.
Note the different way of conceiving IL
F e ue tl li ked to atural la (not Kelsen) Commented [D65]: Contrast the 2 approaches.

For the most part natural law is mostly not practical.
- Hu a easo , applied to fa ts of eatio a d hu a atu e, ields ules hi h a ot
o e i to o fli t.
- At the e t e e e ds: oth IL a d ML a e su o di ate to a thi d, supe io ju idi al o de
hi h go e s the hi h a ell e de i ed f o easo / e tai ge e al p i iples
which underpin all legal systems
The consequence of this is the theory of incorporation – the idea that IL is part of ML automatically
– it eed ot e t a sfo ed . I.e. o side o ist s ste s. The la s efle t ea h othe .
 Transformation: positive act; a state engages through a transformation process to make

international law domestic.
 Incorporation: theory that municipal law changes automatically; nothing has to be done;
once a treaty is signed internationally, it becomes law domestically.
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7.2 DUALISM AND TRANSFORMATION

Australia is mostly dualist.
- Main early exponents: Heinrich Triepel and Dionisio Anzilotti

- Idea that there are 2 separate legal orders, existing independently, entirely distinct in
nature, differing in the particular social relations they govern (Triepel). That is to say, the
international legal order is completely different to the domestic legal order.
- Differing juridical origins/a different will that underpins the creation of the 2 different areas
of law: the will of the state (ML) or the common will of the states (IL)
May be linked to the decline of (and hostility towards) natural law (negative associations with
theology and religion), thus the rise of positivism. Some even deny that IL is law (Austin).
The o se ue e of dualis is that IL eeds to e t a sfo ed i to ML

- Aust alia p i a il follo s a dualist theory (Tajjour v NSW [2014] HCA 35).
In Australia, this is done primarily through statutory implementation (or transformation).
Transformation – legislative process
Tajjour v New South Wales [2014] HCA 35
It as su itted fo Tajjou a d Ha tho e that the legislative powers of the Parliament of New
South Wales are limited by obligations which Australia, through the Executive Government of the
Commonwealth, has assumed at international law under treaties to which it is a party. In particular,
it was submitted that the Parliament of New South Wales could not enact a law infringing upon the
"right to freedom of association with others" set out in Art 22 of the ICCPR, to which Australia is a
party. There is no authority which would support such a proposition. It is incompatible with the long
accepted dualism of international law and Australian domestic law. {ICCPR has t ee
implemented/transformed, confirmed by High Court}
7.3 WHAT ARE THE RAMIFICATIONS OF DUALISM?

Is dualism undermined by:
- Globalism, regionalism/supranationalism (e.g. the EU is a supranational body); osmosis of

international decisions into the national legal order, courts citing on each other, etc.
Is the di ide passe? O ill o ei ed ?
Fitzmaurice – the di ide is u eal, a tifi ial a d st i tl eside the poi t fo it assu es…a o o
field i hi h the legal o de s… oth si ulta eousl ha e thei sphe es of a ti it .
Each is in fact supreme/autonomous in its own field
Si ila l , O Co ell: Mo is t eats o e s ste as a de i atio of the other, ignoring physical and
social realities. Dualism ignores the universum of human experience.
And as Gillian Triggs notes, tribunals need not to engage in such theoretical analysis
7.4 MUNICIPAL LAW IN INTERNATIONAL LAW

Principle: On the international plane, international law PREVAILS over municipal law (Greco
Bulgarian Communities Case (Advisory Opinion) [1930] PCIJ)
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A state cannot rely on its municipal law to evade its international obligations or to justify a breach of
its international law obligations.
- VCLT (Vienna Convention Law of Treaties, which is a codification of customary international

law) Art 27 is CIL when it comes to treaty law
- More generally, the Alabama Claims arbitration (1898)
As a esult, u ious phe o e o that a state a e i each of a treaty obligation or customary

ule hile si ulta eousl o pl i g ith its atio al, o stitutio al a d legal a a ge e ts –
Triggs, 110.
Latham CJ noted the same thing in Polites v Cth CLR at : Pa lia e t a legislate o
these matters in breach of international law)
What are the influences of municipal law on international law?
7.5 INTERNATIONAL LAW IN MUNICIPAL LAW

How do international legal rules become part of domestic law?
1. Incorporation approach: international law is automatically incorporated into municipal law

2. Transformation approach: international law is required to be transformed into municipal
law to be given legal effect.
How do we know which system is in place? Domestic courts tell us, and sometimes the Constitution
itself.
Incorporation
- This is the approach followed in most civil law countries

- Often provided for in Constitutions
7.6 INCORPORATION IN A CONSTITUTION

Example of monism/incorporation approach in a common law country: US Constitution Art 6:
'This Co stitution, and the laws of the United States which shall be made in pursuance thereof; and
all treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.'
Thus in US – self executing treaties
7.7 INCORPORATION IN ENGLISH LAW

Some precedents for incorporation in English law
Bla ksto e s Co e ta ies: ... the la of atio s (whenever any question arises which is properly
the object of its jurisdiction) is here [in England] adopted in its full extent by the common law, and is
held to e pa t of the la of the la d ...
(International law is part of the common law) – However there are only a few old cases:
- Buvot v Barbuit (1737), relied upon by Lord Mansfield in Triquet v Bath [1746] 97 ER 936
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However in 1975, Lord Denning in Trendtex
However, this is NOT the widely accepted view of implementation here – only applies in the UK to
CIL, NOT to treaties. And even then, probably only to Civil CIL, not criminal CIL offences (Pinochet
case).
Trendtex Trading v Central Bank of Nigeria (1977) 1 QB 529 (important case in English law) Commented [D66]: Important case, ripple effect in
Australia
Facts: Central Bank of Nigeria ordered by new Nigerian government refused to pay for concrete.
Court of Appeal had to consider if Nigerian government was protected by absolute sovereign
immunity, or if English law now adopted a doctrine of restrictive immunity. In brief, IL had evolved to
exclude commercial interests from the doctrine that states are immune from legal proceedings.
Lord Denning: if the court took a transformation approach, then the new rule could not be accepted
domestically unless and until adopted in legislation.
Adopts expressly the doctrine of incorporation.
7.8 TRANSFORMATION
Rules of international law are not given legal force in domestic legal system unless they are
transformed into domestic law by LEGISLATION (and arguably, in some circumstances, by way of the
common law).
Thus there are 2 ways transformation can happen:
- Transformation by legislation
- Common law adoption
Australia has been strongly influenced by English courts.
English approaches: R v Keyn (1876) 2 ExD 63 (Court for Crown Cases Reserved)
Facts: prosecution for murder of a German captain whose ship collided with a British ship within the
British territorial water, causing a death of a British citizen. From the CIL perspective, occurred
within British territorial sea (within 3 nautical miles) and thus was British territory; but in common
law, this was NOT part of British territory (ends at low water mark) and there was no evidence of
British assent to this CIL rule in treaty or statute.
Thus English court had no jurisdiction – ould t t hi fo a slaughte . Keyn never left dock of
his o ship, o did he se d a issile f o it to the othe ship .
Contrasts with Lotus?
Lord Cockburn C in Keyn
For writers on international law, however valuable their labours may be in elucidating and
ascertaining the principles and rules of law, cannot make the law.
To be binding, the law must have received the assent of the nations who are to e ou d it… Nor,
in my opinion, would the clearest proof of unanimous assent on the part of other nations be
sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what
Commented [D67]: Note: is the issue really an application
would practically amount to a new law. In so doing, we should be unjustifiably usurping the province
of a rule of international law?
of the legislature. at Note also the argument by way of parliamentary sovereignty
(recall APL)
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Chung Chi Cheung v R [1939] AC 160, 167-168
Facts: cabin boy shot and killed captain on board a Chinese customs cruiser (an armed public ship of
Chi a i te ito ial sea of HK. Both e e B itish su je ts. Questio of…i u it it o u ed a oad
a Chinese govt ship).
It ust al a s e e e e ed that…i te atio al la has o alidit sa e i so fa as its p i iples

are accepted and adopted by our own domestic law. There is no external power that imposes its rule
upo ou o ode of su sta ti e la o p o edu e .
the ou ts a k o ledge the e istence of a body of rules which nations accept among themselves.
On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will
treat it as incorporated into domestic law, so far as its not inconsistent with rules enacted by
statutes o fi all de la ed thei t i u als.
 Note the contrasting ideas in the 2 paragraphs. 1st is strict transformation; 2nd perhaps CL
can incorporate the rule, as long as its not inconsistent with a statute or the other CL rule
Moving from transformation into a soft incorporation
7.9 AUSTRALIAN MUNICIPAL LAW AND INTERNATIONAL LAW

Australia s I ter atio al Perso ality
- Gradual evolution of international personality since Federation in 1901.

- Post WW1: Paris Pearce Conference – involvement of Australians, PM Billy Hughes
- Balfou De la atio e og ised auto o ous o u ities…e ual i status – although
treaty making power remained in dispute.
- 1931 Statute of Westminister recognised independence of dominions and role in
international affai s, i ludi g t eat adoptio , esp ETO po e : s states it is he e
declared and enacted that the Parliament of a Dominion has full power to make laws having
extra-te ito ial ope atio
Did Australia have a treaty-making power under international law before the passage of the Statute
of Westminister Adoption Act 1942 (Cth)?
Cth v Tasmania (1983) 158 CLR 1 (Dawson J):
The e e ts
Treaty adoption now seen as part of the prerogative in s 61 Constitution (recall APL)
Treaty implementation (into legislation) is achieved through s 51 (xxix)
7.10 INFLUENCE OF INTERNATIONAL LAW ON AUSTRALIAN COMMON LAW

Basic principle: international law must be transformed by legislation
BUT transformation by common law has been developed, especially in relation to CIL, not least in
cases where relevant municipal law is uncertain or ambiguous
Polites v Cth (1945) 70 CLR 60
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- Concerned the National Security Act 1939-43 regarding the prohibition of conscription of
non-statutes
- Dixon J: it is a ule of o st u tio that, u less a contrary attention appear, general words
o u i g i a statute a e to e ead su je t to the esta lished ules of i te atio al la
(important interpretive principle)
- Latha CJ ho e e oted that the Cth pa lia e t a legislate…i ea h of i te ational
la
- He e statute said it applied to alie s i.e. as lea
Aliens have to be conscripted, even if there is any rule in international law domestic law has
effectively swamped over it
The interpretative principle is now well established. For instance, French CJ in CPCF v MIBP [2015],
said it applies to a statuto p o isio a le to e o st ued o siste tl ith i te atio al la
a d i te atio al legal o ligatio s e isti g at the ti e of its e a t e t.
Note: what about obligations that subsequently arise? Why so narrow?
In Tajjour, F e h CJ des i ed it as a alogous to the p i iple of legalit , a d applicable to state

legislation.
Chow Hung Ching v R (1948) 77 CLR 449 – the source doctrine
- Concerned potential application of CIL state immunity to 2 Chinese civilians who were
accompanying Chinese army and had been charged and convicted of assault in Papua New
Guinea (then Australian territory)
- Di o J, adopti g the ie that i te atio al la is ot a pa t, ut is o e of the sou es, of
English la at { o e tato s ha e alled this the sou e do t i e – i.e. International
law is one of the sources of English law thus International Law is one of the sources of
o o la
- Latha CJ: I te atio al la is ot as su h pa t of the la of Aust alia… ut a u i e sall
e og ised p i iple of i te atio al la ould e applied ou ou ts at
Mabo v Qld (No 2) (1992) 175 CLR 1 – the legitimate influence on CL doctrine
- Takes the source doctrine a step further

- Brennan J: referring to the ICJ judgement in Western Sahara, observed:
The common law does not necessarily conform with international law, but international law is a
legitimate and important influence on the development of the common law, especially where
international law declares the existence of u i ersal hu a rights
Doctrine of terra nullius is based on a theory of racial discrimination.
Rationales
- if it e e pe issi le i past e tu ies to keep the o o la i step ith i te atio al

law, it is imperative in toda s o ld that the o o la should eithe e o e see to
e f oze i a age of a ial dis i i atio .
- The expectations of international community accord in this respect (i.e. re racial
discrimination) with contemporary values of Australian people
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- The opening up of initial remedies to individuals pursuant to 1st OP (optional protocol)

i gs to ea o the o o la the po e ful i flue e of the Co e a t a d the
i te atio al sta da ds it i po ts
Limitations on the influence of IL on Common Law:
- It a ot fracture the skeleton of principle hi h gi es the od of ou la its shape a d

i te al o siste …[i]t is e essa to assess whether the particular rule is an essential
doctrine or our legal system and whether, if the rule were to be overturned, the
disturbance to be apprehended would be disproportionate to the benefit flowing from the
o e tu i g
Thus proportionality test….
Nulyarimma v Thompson (1999) 96 FCR 153
Wilcox J: Ratification of a convention does not directly affect Australian domestic law unless and
until implementing legislation is enacted.
It would lead to curious results if one could be tried w/o legislation – would mean CIL has greater
domestic effect than ratifying a treaty, as that needs implementing legislation – even where
ratification received parliamentary approval
Courts face a policy issue when deciding whether to recognize and enforce a rule of IL. In a criminal
case, the court should decline (makes distinction between criminal and civil customary international
law).
Not t a sfo atio he the legislatio si pl sa s pa lia e t app o es the atifi atio of this
t eat – this is t t a sfo ation/implementation/incorporation
8 INTERNATIONAL LAW IN AUSTRALIA PART II

This week continues the theme of the relationship between international law and domestic law, with a more
specific focus on how each branch of government deals with international law in Australia. It is important to
understand how a rule of international law is received, implemented and interpreted in Australia and how
differently judges in Australian courts have understood the role of international law in statutory
interpretation.
 C&M ch 4, pp 226-267
 CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015) [1]-[14]
(French CJ); [297]-[304] (Kiefel J); [459]-[470] (Keane J) [also, if keen, Gageler J at [383]-[391])
 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 [70]-[83], [89]-[119]
(Gummow, Hayne, Crennan and Bell JJ)
 Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22 (18 June
2014) [39]-[46] (French CJ, Hayne, Crennan, Kiefel Bell and Keane JJ)
 Chief Justi e Ro e t F e h, I te atio al La a d Aust alia Do esti La a aila le
at: http://www.hcourt.gov.au/assets/publications/speeches/current-
justices/frenchcj/frenchcj21aug09.pdf
Australia is not exclusively dualist – we have aspects of monism
When customary international law changes, common law changes – UK (Lord Denning)
incorporation approach. In Australia it is simply a legitimate source – source theory CIL
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Consider Mabo No.2
In Australia, we are primarily dualists:
- Treaty implementation – requires legislative transformation

- Common law? Potential influence of customary international law, but there are differing
theories: source theory as a legitimate influence of Brennan J in Mabo (no 2), especially if it
concerns rights
Executive and International Law
The power to enter into treaties is part of the prerogative – which informs content of executive
power - s 61 of the Constitution
- Australia can only be represented by the Cth, as only it has international legal personality
so states like NSW cannot enter into treaties (Barwick CJ in Seas and Submerged Land case
(1976))
- However there has been a growth of number of treaties (concern at democratic deficit in
treaty-making process) - lack of transparency, accountability, citizens have no opportunity to
comment on impact (this is the democratic deficit)
- Democratic deficit was addressed in a report in – Senate Legal and Constitutional References
Committee, Trick or Treaty? Commonwealth Power to make and Implement Treaties (Nov
1995)
Accession/ratification binds a country to international law, not just the mere signing of the treaty.
Possible scrutinisation between the signing and ratification of the treaty?
1996 Reforms
1. Tabling at least 15 days before government takes binding action – unless urgent
2. National interest analysis – economic, environmental, social, cultural impact, how it will be
implemented, etc.
3. Scrutiny by Joint Standing Committee on Treaties (JSCOT)
4. Treaties Council (under COAG – Council of Australian Governments) – i.e. get states involved
(why? Federalism, breaches by the states will mean Australia breaches the treaty)
5. Treaties information database
6. Commonwealth legislature has another head of power under external affairs
But all of these reforms are just policy and there is still no parliamentary approval required before
ratification. Is JSCOT simply window dressing?
- Ma of the pu li fea s a out Aust alia s adoptio of i te atio al o ligatio s ha e eased

- In US Congress, President can only formally ratify with advice and consent of 2/3 majority –
in part because they are self-executing
What is the legal effect of ratification by the executive of a treaty in Australia?
Effects of ratification on executive decision making: the Teoh doctrine (still good law)
Teoh (1995) 183 CLR 273
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Facts: Mr T, a Malaysian citizen married to Australian citizen; had many children and step children;
convicted of heroin importation and possession; visa application refused on character grounds.
DISCRETIONARY decision made under statute – an important point, often dismissed when discussing
Teoh .
As a result of the visa refusal, his deportation was ordered.
- Did not consider the best interests of the child which should have at least been a
consideration under the Convention on the Rights of the Child (ratified but not implemented
in statute) provides under Article 3:
I all a tio s o e i g hild e , hethe u de take pu li o p i ate so ial elfa e

institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
hild shall e a p i a o side atio .
Legitimate expectation doctrine
Mason CJ and Deane J say that ratification absent implementation is not a source of direct rights
and obligations. But can affect statutory interpretation and CL.
PLUS:
Ratifi atio of a o e tio is a positi e state e t the e e uti e go e e t of this ou t to

the world and to the Australian people that the executive government and its agencies will act in
accordance with the Convention. The positive statement is an adequate foundation for a legitimate
expectation, absent statutory or executive indications to the contrary, that administrative decision
makers will act in conformity ith the Co e tio …
Minimal procedural mechanism – legitimate expectation
Procedural fairness requires that the persons affected should be given notice and an adequate
opportunity of presenting a case against the taking of such a course – not necessarily that the
treaty will be upheld.
NOTE: ratification does not create a direct, enforceable right or interest, merely a procedural
presumption – rebuttable by the executive or in particular instances by decision makers.
McHugh J dissents:
- Executive effectively amending law of country

- Treaty would apply to every decision of a federal official, perhaps even to state officials
- We e pa t to a out t eaties – not reasonable to ensure compliance
- Would bind those independent of the executive – e.g. tribunals
- I p a ti al? Total o plia e ould take a ea s of effo t, edu atio a d e pe ditu e .
Legitimate expectation: Ministerial statement, 25 Feb 1997
The efo e, e i di ate o ehalf of the Go e e t that the act of entering into a treaty does not
give rise to legitimate expectations in administrative law which could form the basis for
challenging any administrative decision made from today. This is a clear expression by the
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Executive Government of the Commonwealth of a contrary indication referred to by the majority of

the High Cou t i the Teoh ase. Do e & Willia s
Also attempt to legislate Administrative Decisions (Effect of International Instruments) Bill 1995,
, … Ne e passed although ide ti al o e passed i South Aust alia, discussed in Collins v
SA [1999] SASC 257; C&M 254-5).
Does this state e t ualif as the e e uti e i di atio s to the o t a efe ed to Maso CJ
and Deane J?
Tien v MIMA (1998) 89 FCR 80
- The statement was not made at or about the time the relevant treaty was ratified;
- The statement was directed to the Teoh principle, not to the action the executive would
take in relation to the treaty in question
- i.e. that the statement was TOO GENERAL – the judge eeded the state e t to sa
something to effect that de isio ake s ill ot a t…i a o da e ith pa ti ula
p o isio s of pa ti ula Co e tio s o t eaties.
The su se ue t de ate o hat is legiti ate e pe tatio : e pa te La CLR i o ite

dicta (C&M 251-2) – but Teoh is still good la …
I Ad i la , ou ll o side hethe La o etheless ate ed do the o ept of legiti ate

e pe tatio s , e ui i g ot just that the e ha e ee a depa tu e f o ep ese tatio , ut that
the e is so e u fai ess esulti g f o this depa tu e.
2. The LEGISLATURE and International Law: s 51 (xxix) Constitution: the external affairs power
The power can be analysed as having 4 aspects:
a) power to enact laws of domestic application that implement international agreements

(treaties) to which Australia is a party;
b) po e to legislate o atte s o affai s that a e physically external to Australia
(geographic externally)
c) power to legislate on atters affe ti g Australia s relatio ship ith other ou tries; and
d) power to enact laws of domestic application on matters of international concern
Geographic Externality
NSW v Cth CLR Seas a d Su e ged La ds ase ites R v Keyn (1876) – i.e. once
past the low water mark, you are external
E.g. 1988 amendments to the War Crimes Act 1945 (Cth) designed to permit Australia to prosecute
alleged WWII criminals in Australia (Polyukhovich v Cth (1991) 172 CLR 501) (retrospective criminal
charges)
In Horta v Cth (1994) 181 CLR 183
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Ex East Timor president alleged that the Timor Gap Treaty was void and unlawful under International
law and thus legislation based on the treaty was also void (dealt with under external affairs)
Court unanimously found that mere externality sufficient for the exercise of external affairs power –
it does t atte that it may breach II
G Wi te to : s i should ot e te d to t eaties hi h a e oid u de i te atio al la …o

the g ou d that the o fli t ith a peremptory norm of general international law (jus cogens)
(customary international norm that is superior e.g. torture or slavery)
International Agreements and Obligations
Tasmanian Dam case – Commonwealth v Tasmania (1983) 158 CLR 1
External affairs is not limited to implementing international obligations or treaties:
Deane J: external affairs would e ui e observance of the spirit as well as the letter of international
agreements, compliance with recommendations of international agencies and pursuit of
i te atio al o je ti es hi h a ot e easu ed i te s of i di g o ligatio s
In othe o ds: u h oade tha just t eaties, o the lette of a ag ee e t
Mason J: Carrying out or the giving effect to treaty is a matter of external affairs – includes
'fa ilitati g the a i g o of the a ti ities fo hi h it akes p o isio
NOTE: o e tha just the st i t o ligatio s i a t eat .
Murphy J goes further (C&M 235): may implement 'any IL', 'any treaty', 'any recommendation or
e uest' of a UN o ga isatio …
A d, of ou se, it s ot li ited to that:
s i as f a ed as a enduring power in broad and general terms enabling the Parliament to

legislate with respect to all aspe ts of Australia s parti ipatio i i te atio al affai s Maso J at
127)
Not just the obligations of a treaty, but everything that needs to be done to give that treaty effect
May extend to draft conventions (Deane J), and reasonably apprehended obligations (Richardson v
Forestry Commission (1988) 164 CLR 261) – the power was activated even while Cth Commission of
Inquiry investigated the Lemonthyme forest s suita ilit fo i lusio fo WH listi g
LIMITATIONS/CONDITIONS on Implementation of Treaties
1. That the treaty was not ratified merely as a device to attract the exercise of the external
affairs power – Deane J in Tasmanian Dam Case – a t e a sha o i uitous de i e to
att a t legislati e po e Ho ta Cth
- The treaty must be genuine
2. The law must conform to the treaty and carry its provisions into effect
- But does t ha e to e igid adhe e e
- Need not be implementation of the whole treaty, or all obligations
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Proportionality test
- Legislation must be reasonably appropriate and adapted
Federal limitations
- Does not operate with a new head of power
How are treaties implemented into Municipal Law?
- Legislation approving treaties is NOT implementation (Bradley)

- Argued that many treaties are already covered through statute/common law
- Implement treaty through legislation
 Using the exact words of the treaty (advantages/disadvantages): disadvantages are that the
wording is v. vague so it gives states flexibility, may be terms that are not the same as
Australian law though the terms have equivalence
 THUS e a eed to TRANSLATE it a d ake su e it s o siste t ith ou u de sta di g of
the law (tailored for domestic application)
 Enacting or amending legislation without reference to the treaty
 Using regulations (e.g. UN Security Council sanctions)
 Quasi-I o po atio /I ple e tatio th ough s heduli g – eg. The ICCPR schedules under
the Australian Human Rights Commission Act 1986
Legislation approving treaties is NOT implementation
- Saw this already in Nulyarimma (re Genocide Convention Act), Bradley v Cth (1973)
Charter of the UN Act 1945 (Cth) provides: ________.
Australian Courts and International Law
- The courts apply a rule of CIL when it has been enacted into legislation or it has been
received at common law (though this is contentious, best to consider it as a source of the CL)
Polites v Cth (1945) 70 CLR 60
Dixon J – rule of construction that unless a contrary intention appear, general words occurring in a
statute are to be read subject to the established rules of international law
Legislative intent
Rules of international law can be referred to as an aid of interpretation when a statute is, prima
facie, intended to give domestic effect to the relevant treaties
MIEA v Teoh
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- Where a statute or subordinate legislation is ambiguous, the courts should favour that
o st u tio hi h a o ds ith Aust alia s o ligatio s u de a t eat o i te atio al
convention to which Australia is a party, at least in those cases in which legislation is enacted
after, or in contemplation of, entry into, ratification of, the relevant international
i st u e t. This is e ause Pa lia e t, p i a fa ie, i te ds to gi e effe t to Aust alia s
obligations under international law.
Ambiguity
Narrow view
Broader view
Constitutional Interpretation
M70/2011 v Minister for Immigration and Citizenship CLR Mala sia De la atio
Case
Had no obligations under international law with respect to refugees except maybe in customary
international law – no domestic legislation and MOU signed was not necessarily legally binding
Protection obligations – rights that refugees are entitled to under the refugee convention
(protection visas)
**** Read as whole, the Migration Act contains an elaborated and interconnected set of statutory
provisions directed to the purpose of responding to the international obligations which Australia has
u de take i the Refugees Co e tio a d Refugees P oto ol . – Plaintiff M61.
Co se ue e: a dis e i le legislati e i te tio to adhe e to these o ligatio s i the Pa ifi

Solution i.e. when sending asylum seekers offshore for processing. Section 198A – the provision at
play here – uses la guage that di e ts atte tion to the kinds -
Malaysia: has no legal obligations in domestic or international law – thus can ot e de la ed u de

s 198A
CPCF v Minister for Immigration and Border Protection [2015] HCA 1
9 WEEK 6 – STATE RESPONSIBILITY

This lecture examines the law relating to state responsibility –that is the question of when a state is
responsible for breaches of international law. State responsibility can arise from an internationally wrongful
act when, for example, a breach of the provisions of a treaty or of a rule of customary international law is
attributable to a state. Questions to consider include if a state harbours a terrorist group on its territory, is
that state responsible for any forceful action taken by that group against another state?
 C&M ch 8, pp 446-484, 509-512
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 James Crawford, The I ter atio al Law Co issio ’s Arti les o State Respo si ility (Cambridge
University Press, 2002).
 James Crawford, State Responsibility: The General Part (Cambridge University Press, 2014).
 The full text of Responsibility of States for Internationally Wrongful Acts (2001).
State responsibility
Australia and Oceania concluded an agreement not to forfeit foreign private property without
appropriate compensation. Oceanian Oil Co, acting under Oceanian legislation, forcefully took the
property of an Australian citizen residing in Oceania from his childhood. Can Australia claim
compensation for a breach of the agreement?
1.1 What is the Law of State Responsibility?
State responsibility – legal consequences flowing from breaches of international legal obligations by
states, whether those obligations are based on CIL or treaties.
The la of state espo si ilit p o ides secondary ules of lia ilit , as opposed to p i a ules:
- Cf suspension/termination of a treaty under VCLT
The law of state responsibility has been codified in the Articles on the Responsibility of States for
Internationally Wrongful Acts, (2001) – most authoritative source of state responsibility
In general, a state will be held responsible in international law if:
1) The act or omission at issue is attributable to a state – SR Articles, Art 2(a)

2) That act or omission violates a rule of international law – SR Articles, Art 2(b)
3) Another state (victim state) is entitled to make a claim
4) The state responsible cannot claim any defence for the wrongful act or omission
1st Element: Attribution
How certain types of conduct are ATTRIBUTAL to a state
- State organs (Article 4) or those empowered by the law of that State (Article 5) are
espo si le fo the a t of thei offi ial e e if the offi ial s a t e eeded its autho it o
contravened instructions (Article 7).
The question is whether someone is acting in their official capacity of their government
Also, conduct carried out by a group in fact exercising elements of governmental authority or by an
insurrectional group would also be considered as an act of the State (even if they are not acting in
official government capacity) – Article 9-10.
- If there is an entity or individual that is exercising the sort of public power that is in FACT (as
a atte of fa t , the those g oups/e tit s o du t a e see as att i uta le to a state.
E.g. if they are exercising some element of governmental authority, effectively acting as part
of the government and exercising those powers (even if not officially recognised).
- This is particularly so in INSURRECTIONAL GROUPS (if it becomes a new government later)
Even in cases where the person responsible for a wrongful act is a private individual or unknown,
the act will be attributable to the state if:
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- The person was acting under the authority or control of the state (Article 8) *
- The state acknowledged and adopted the act as its own (Article 11)
- Cf the state failed to take appropriate action (omission).
Ho e e do t o e use this e ause the o se ue es a e se e e, espe iall si e it s a p i ate

individual. State should not be accused for wrongdoing done by someone else for no connection.
Thus there must be a strong connection. Depends on the nature of the primary rules.
*Attribution by State Control
In Nicaragua, the question was whether the conduct of the Contras was attributable to US.
U ited States pa ti ipatio , e e if p epo de a t o de isi e, i the fi a i g, o ga isi g, t ai i g,

supplying and equipping of the contras, the selection of its military or paramilitary targets, and the
planning of the whole of its operation, is still i suffi ie t i itself…fo this o du t to gi e ise to legal
responsibility of the United States, it would in principle have to be proved that the State had
effective control of the military or paramilitary operations in the course of which the alleged
iolatio s e e o itted . – [1986] ICJ Rep 4, para. 115
In order for private individuals actions are to be attributable to the state, you must prove that there
has been EFFECTIVE CONTROL exercised by the state or the group, otherwise it is insufficient to
prove. What does effective control mean?
Effe ti e o t ol = the State s i st u tio s e e gi e , i espe t of each operation in which the

alleged violations occurred, not generally in respect of the overall actions taken by the persons or
group of pe so s – Bosnian Genocide Case [2007] Strong threshold, gave specific instructions in
EACH OPERATION of that private group.
** Attribution by adoption
In Tehran Hostage Case, the first question was: did the approval of the act amount to the act of
adoption? (First question/part of the judgement)
I the ie of the Cou t, ho e e , it ould e goi g too fa to i te p et su h ge e al

declarations of the Ayatollah Khomeini to the people or students of Iran as amounting to an
authorisation from the State to undertake the specific operation of invading and seizing the
u ited States E ass – United States Diplomatic and Consular Staff in Tehran in USA v Iran
[1980] ICJ Rep 3, para. 59
E e though the I a ia autho ities did t gi e spe ifi i st u tions, they can be said to have
adopted thei a tio s ot doi g a thi g a out it a d stati g ell do e he k fo a tual uote .
Is this suffi ie t to e see as adaptio ? The judge e t as a o e as that it ould e goi g too fa
to interpret such GENERAL declarations.
Mere acknowledgement/existence of the conduct and/or approval is not enough to be seen as an

adaption of the State. V.v.v.v strong threshold
In Tehran Hostage, Case, the second question was: did the subsequent endorsement of the
situation amount to the act of adoption? (2nd part of the judgement – States did t do a thi g
about it, no police action, nothing was done).
The poli thus a ou ed the A atollah Kho ei i, of ai tai the o upatio of the E ass
[refusal to order to put a e d to the situatio a d issui g a de ee et .]… as o plied ith
othe I a ia autho ities a d e do sed the …the esult of that poli as fu da e tall to
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TRANSFORM THE LEGAL NATURE OF THE SITUATION CREATED BY THE OCCUPATION OF THE Embassy
and the detention of its diplomatic and consular staff as hostages. The approval given to these facts
by the Ayatollah Khomeini and other organs of the Iranian State, and the DECISION TO PERPETUATE
THEM. Sth sth sth (see lecture slide)
*** Attribution by Omission
- Not that it was adapted by the State necessarily but just that the failure to do anything by
itself is enough (same situation, different perspective).
The I a ia Go e e t failed altogethe to take a app op iate steps to p ote t the p e ises,
staff a d a hi es of the U ited States issio agai st atta k the ilita ts…the failu e of the
Iranian Government to take such steps was due to more than mere negligence or lack of appropriate
ea s – United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, para.
63
Omission here in itself (deliberate failure) is the problematic issue/breach of their legal obligations
to ensure the protection of the embassy.
The la i g of the i efield hi h aused the e plosio s…could not have been accomplished
without the knowledge of the Albanian Government – Corfu Channel Case (UK v Albania) (Merits)
[1949] ICJ Rep 4, 22. (Due diligence obligation to protect interests of other states then even omission
is an attribution factor).
Whether the contras activities could be attributable to the United States – legal question
2nd Element: Breach of International Legal Obligations
SR Articles, Art 12
The e is ea h of a i te atio al o ligatio a State he a a t of that State is not in

o fo it ith hat is e ui ed of it that o ligatio , ega dless of its o igi o ha a te .
Thus there is no distinction between different types of obligations (this is the role of primary rules)
Objective responsibility (in the finding of breach of responsibility) excluding the mental factors such
as intention (element of fault, negligence, due diligence, etc. none of these are relevant. If such
factors are relevant they are part of the primary rules).
Cf different standards of care (fault, eglige e, due dilige e, et . i p i a ules: esta lishi g
these is a matter for the interpretation and application of the primary rules engaged in the given
case
Time factor = the breach must be established of an obligation which was binding upon the state at
the time the act or omission occurred. I.e. you cannot say a state that has committed a breach 10
years ago is bound by a treaty formed today (Article 13)
I ge e al, t eaties do t ha e a et ospe ti e appli atio .
3rd Element: Entitlement to making claim
The responsibility of a state may not be invoked if:
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a) The claim is not brought in accordance with any applicable rule relating to the nationality of
claims (is there a nationality link between the individual and the state)
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 – SR Articles, Art 44 (i.e. individuals must
go through the domestic court system first)
Nationality of claim
Principle: individuals are not empowered to bring a claim or commence judicial proceedings against
a FOREIGN STATE on the international law plane. Only STATES can commence judicial proceedings
against other STATES.
However, sovereign states can take up the case on BEHALF of the individual if there is SUFFICIENT
bond of NATIONALAITY between the state and the individual (diplomatic protection).
Questio of atio ality: the reser ed do ai of a state s jurisdi tio
- Nationality decrees in Tunis and Morocco [1923] PCIJ Rep 4 at 24.
Requirement of a GENUINE LINK o eal a effe ti e o e tio
- Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 & Barcelona traction Case
(Belgium v Spain) ICJ Rep 3, paras 70-71.
Not conclusive evidence of nationality link on who a lai ou t s itize . Co pa e the diffi ult
of attaching citizenship in Australia as compared to Afghanistan (gives away nationality to anyone
who wants it).
Exhaustion of Local Remedies
Principle: before a state asserts the right of diplomatic protection on behalf of its victim national,
local remedies must be exhausted by the victim - ILC Draft Articles on Diplomatic Protection, Articles
14 & 15 (i.e. to do everything reasonably possible).
A state is e titled to p ote t its su je ts, he i jured by acts contrary to international law
committed by another State, from whom they have been unable to obtain satisfaction through the
o di a ha els . – Marvomattis Palestine Concessions Case (Jurisdiction) (Greece v UK) [1924]
PCIJ Rep 2 at 12.
Local remedies – the hole s ste of legal p ote tio ESSENTIAL to esta lish the lai a t s ase
before the municipal courts – Ambatielos Arbitration (Greece v UK) (1956)
4th Element: Circumstances Precluding Wrongness – CPW (Defence/Excuse in lieu of state

responsibility) Commented [D68]: Jurisidction and admissibility as
context for CPW
- Provide justification or excuse for non-performance of the obligation (exoneration from International law commission articles commentary (helpful)
responsibility)
- The obligation continues and is not terminated (cf termination of treaty obligations)
- Do not excuse breach of peremptory norms (jus cogens) – Article 26
- Focused on resumption of performance of obligations (Article 27)
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Circumstances precluding wrongfulness
- Consent (Article 20), and has the consent been given validly, and what is the scope of the
consent given, and BEFORE the act has taken place
- Self-defence (Article 21): prohibitions of jus cogens etc. and is a CPW
- Countermeasures (Article 22; 49-54)
- Force majeure (Article 23), cf impossibility of performance (Article 61 of VCLT); a completely
involuntary action which is brought about by external circumstance; no element of control.
- Distress (Article 24): if the author/agent of the state has no other reasonable way of saving
the lives of people. Distinguished from force majeure as there is still an element of choice
albeit not a preferable choice. However the act of distress must not lead to more lives being
endangered.
- Necessity – Article 25; at the essential interests of the state. Taken to safeguard an essential
interest of the state (strict form of the existence of the state in question), public
emergencies, serious environmental concerns, etc. controversial, narrow defined, hard to
meet all the criteria and establish it. Formed in the negative – designed to limit application.
Ca t jeopa dise othe states.
Cases for CPW:
Gabcikovo Nagymaros Project [1997] ICJ Rep 7: agreement entered into with Slovakia and Hungary
(important case esp. for environmental issues)
- Necessity (looked at the essential interests of the state – does t ha e to e so high ut has
to be serious, e.g. ecological preservation of a water resource is sufficient to meet that
esse tial i te est th eshold , pe il esta lished that it ill happe %, ot just a e e
isk/likel ha e of e i o e tal isk, e.g. e pi i al s ie tifi e ide e , g a e ,
i i e t . The ea h ust e the ONLY a to itigate the effe t.
- Countermeasures (action that is taken in response to a wrong)
Rainbow Warrior Arbitration (No 2) (1990) 82 ILR 499.
- Force majeure (not accepted by the court, there was no involuntary act, France had decided
to repatriate these 2 citizens)
- Distress (the risk to the lives of the 2 French citizens thus breach)
Must be able to resume obligations as soon possible to do so. Thus France was unable to
Force majeure – involuntary
Distress – danger to lives
Necessity – risk to an essential interest
Reparations – remedies in international law
There are some remedies (rights to terminate treaties) etc. in primary rules
However in the secondary rule context – reparations.
the epa atio ust, as far as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if that act had not been
o itted – Chorzow Factory (Merits) [1927] PCIJ Rep 9, 47.
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What s the ost of putti g the state back into original condition? Status quo.
Forms of reparation:
1. Restitution: re-establishment as far as possible of the situation which existed prior to the
commission of the internationally wrongful act (status quo ante) – article 35 (overarching
ai . Ho e e if it is ate iall i possi le to do so, the it ould t o k just to etu fo
e.g. a stolen artwork that has been depleted. Thus would move down to compensation.
2. Compensation: monetary payments for any financially assessable damage to the extent that
such damage is not made good by restitution – article 36
3. Satisfaction – non-material method of reparation including an acknowledgement of the
breach, an expression of regret and an a formal apology insofar as it cannot be made good
by restitution or compensation (Article 37) e.g. psychological suffering, damage of prestige
to the state. Not exhaustive, depends on what the states agree on/courts instruct.
Cessation?
Reparations – principles
Article 31 – reparation
1. The responsible state is under an obligation to make full reparation for the injury caused by
the internationally wrongful act
2. Injury includes any damage, whether material or oral, caused by the internationally wrongful
act of a state
Obligation to make reparation is AUTOMATIC upon commission of international wrong – Chorzow

Factory
i dispe sa le o ple e t to i te atio al o g
Injury = damage, which may be material or moral
ho ou , dig it o p estige of a state – rainbow warrior
ps hologi al suffe i g a d loss of eputatio – Diallo (Guinea v DRC) [2012] ICJ Rep 324, para 21.
** Causation and remoteness are required elements in determining remedy (Article 31)
Bosnian Genocide Case
Direct causal nexus
Da age a t e too e ote o o se ue tial
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10 WEEK 7 INTERNATIONAL LAW – INTERNATIONAL DISPUTE SETTLEMENT

We shall review the accepted mechanisms for the peaceful settlement of international disputes as
recognised under Article 33 of the United Nations Charter. Particular attention will be given to the operation
of the principal judicial organ of the United Nations -- the International Court of Justice (ICJ).
 C&M ch 14, pp 806-811, 827-859

 J G Merrills, International Dispute Settlement (3rd ed, Cambridge University Press, 2011).
10.1 WHAT IS THE BASIC PRINCIPLE?

UN Charter, Art 2(3)
All e e s shall settle thei i te atio al elatio s pea eful ea s i su h a a e that

i te atio al pea e a d se u it , a d justi e, a e ot e da ge ed.
UN Charter, Art 33
The pa ties to a dispute, the o ti ua ce of which is likely to endanger the maintenance of

international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
pea eful ea s of thei o hoi e
10.2 WHAT IS A DISPUTE?

A disag ee e t o a poi t of la o fa t, a o fli t of legal ie s o i te ests et ee t o pe so s
- Mavromattis Palestine Concessions (Greece v UK) [1924] PCIJ (Ser A) No 2 at 11
Whethe the e e ists a i te atio al dispute is a atte of o je ti e dete i atio .
- Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Rep 65.
Cf Nuclear Test Case (Australia v France) [1974] ICJ Rep 253.
the dispute ought efo e it must therefore continue to exist at the time when the court makes its
de isio
10.3 DISPUTE SETTLEMENT METHODS

Third party adjudication
Judicial Settlement
Arbitration
Non-binding Legally Binding
Conciliation
Mediation
Inquiry
Good offi es
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Negotiation No 3rd party involved

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Cf Rai o Wa io uli g : ILR C&M -822); Conciliation or Arbitration?
An example
- Competing territorial and maritime claims

- Multiple states: disputing states, significant external actors: US, Australia & other regional
powers
- Growth in maritime trade and commerce
- Sig ifi a t hoke poi ts
- Philippines v PRC arbitration proceedings
10.4 FUNCTIONS AND ROLES OF THE ICJ

ICJ is the p i ipal judi ial o ga of the U ited Natio s UN Cha te A t , go e ed ICJ Statute
- Composition
- Three heads of jurisdiction (contentious, incidental, and advisory jurisdictions)
- Phases of court proceedings
10.5 CONTENTIOUS JURISDICTION (FIRST HEAD OF JURISDICTION)

ICJ Statute, Art 36 (1)
The ju isdi tio of the Cou t o p ises all ases hi h the pa ties efe to it a d all atte s
specifically provided for in the Charter of the United Nations or in treaties and conventio s i fo e
Three jurisdictional bases:
- By a special agreement
- Based on a compromissory clause in an agreement
- A epta e of the Cou t s o pulso Ju isid tio
10.5.1 Special Agreement

Valid and legally binding agreement:
- E.g. Special Agreement for North Sea Continental Shelf (C&M 835)
- Special Agreement for Pedra Branca (C&M 836)
- Cf Qatar/Bahrain (1994/95) ICJ Rep 112/6
- Cf Forum Prorogatum: Corfu Channel Case (Preliminary Objection) [1948] ICJ Rep 15
10.5.2 Compromissory Clause

Within the scope of the agreement, e.g.:
- Tehran Hostage case (VCDR Protocol)
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- Oil Platforms (Preliminary Objections) (Iran v USA) [1996] ICJ Rep 803: based on the 1955
Treaty of Amity, Economic Relations and Consular Rights, Art 21 (2), (C&M 454)
Procedural conditions: e.g. any dispute… hi h is ot settled egotiatio o othe p o edu es

provided in the Convention
- A ge ui e atte pt o e of the pa ties to e gage i dis ussio s ith the othe pa t , ith
a ie to esol i g the dispute – Georgia v Russia (Prelim Objec) [2011] ICJ Rep 70 at para
171
- Negotiatio s ust elate to the su je t atte of the t eat o tai i g the o p o isso
lause – Ibid at 161
10.5.3 Compulsory Jurisdiction

Co pulso ju isdi tio u de A ti le of the ICJ Statute Optio al Clause
- Reciprocity: Norwegian Loans Case (C&M 840)

- Cf formal conditions for the creation, duration or extinction of the declaration: Nicaragua
case (C&M 843)
- Aust alia s Latest Optio al Clause De la atio [ ] ATS C&M -40)
10.6 STANDING: RIGHTS OR INTERESTS

Requirement of legal rights or interests in the subject matter of the claim:
South-West Africa Cases (Ethiopia v South Africa; Liberia v. South Africa) (Second Phase) [1966] ICJ
Rep 6 (rejection of action popularis)
Cf The o o i te est i o plia e ith the relevant obligations under the Convention against
the Torture implies the entitlement of each State party to the Convention to make a claim
o e i g the essatio of a alleged ea h of a othe State pa t – Obligation to Prosecutor or
Extradite (Belgium v Senegal) [2012] ICJ Rep, para. 69
10.7 STANDING: INDISPENSABLE THIRD PARTY

Mo etary Gold I dispe sa le third party pri iple – the court cannot adjudicate on matters
concerning rights and obligations of third states when they constitute the very subject-matter of a
judgement and need to form a basis for the decision – East Timor Case (C&M 844)
Cf Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240 at 261, para 55.
10.8 ADMISSIBILITY
Political dispute v legal dispute?
- ICJ Statute, Article 36 (1) & (2) – legal disputes

- Problems with defining scope
Inherent limitations
- Northern Cameroons (Cameroon v UK) (Preliminary Objections) [1963] ICJ Rep 15 at 29

(judicial discretion)
- The absence of practical consequences: Nicaragua (Merits), Judge Oda w/ dissenting opinion
- Harmful effects for the international legal system?
- Detrimental effects for its own judicial authority?
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- Lockerbie case (C&M 861-863)
10.9 INCIDENTAL JURISDICTION (2ND HEAD OF POWER)

Provisional Measures: ICJ Statute Art 41 (1)
The Cou t shall ha e the po e to i di ate, if it o side s that i u sta es so e ui e, a

provisional measures which ought to be taken to preserve the respective rights of either party.
Requirement – see Nuclear Test Case
 Prima facie jurisdiction at para.21

 Legality of the Use of Force (Yugoslavia v US) (Provisional Measures) [1992] ICJ Rep 916
 Risk of irreparable harm/damage
Legal force = binding: LaGrand [2001] ICJ Rep 466 at 506.
10.10 ADVISORY JURISDICTION (3RD HEAD OF POWER)

UN Charter Art 96; ICJ Statute Arts 65-68
- The General Assembly or the Security Council may request the ICJ to give an advisory
opi io o a legal uestio .
- Other UN bodies may also request advisory opinions of the Court o legal uestio s a isi g
within the s ope of thei a ti ities – cf Legality of the Use by a State of Nuclear Weapons in
Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 (rejected the request by WHO)
10.11 JURISDICTIONAL LIMIT

Legal questions
- A mixed question of law and fact is none the less a legal question – Western Sahara
(Advisory Opinion) [1975] ICJ Rep 12, para 17.
- The politi al aspe t does ot suffi e to dep i e it of its ha a te as a legal uestio –
Kosovo (Advisory Opinion) [2010] ICJ Rep 403, para 27.
10.12 EASTERN CARELIA DOCTRINE

Disguised as contentious jurisdiction?
- Status of Eastern Cornelia (Advisory Opinion) [1923] PCIJ Rep (Ser. B) No. 5
- However, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136 at 156 – eje tio o l fo o pelli g
easo s
10.13 LEGAL FORCE AND ENFORCEMENT

 Contentious proceedings – final and binding as between the parties in respect of the
particular case – ICJ Statute, Art 59
 Advisory Opinion – not legally binding upon the requesting body, but has been valued as of
the ut ost sig ifi a e; Cf Bi di g Ad iso Opi io = Co e tio o the P i ileges
and Immunities of the United Nations, art 30.
 Enforcement by the Security Council: UN Charter, Art 94
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- Is this the same as the Chapter VII enforcement action?

- Or an independent source of authority?
51

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Summary - book "International Law", lectures

International Law (Australian National University)

StuDocu is not sponsored or endorsed by any college or university

 C&M CH 1: pp 2-8, 15-20, 27-37

1.1 NATURE, SYSTEM AND ACTORS

However as derived from the Lotus’ Case1, international law:

Further stating that

Restri tio s upo the i depe de e of States a ot therefore e presu ed .

Consent is at the forefront of this.

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 Is the 9 7 Lotus di tu still alid?

1.2 ACTORS OF INTERNATIONAL LAW

Subjects of international law

Si e the La of Natio s is ased o the o o o se t of i di idual States, a d ot of i di idual

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1.3 SUBJECTS V. OBJECTS

Beneficiaries of international law

1.4 STATEHOOD (HOW DO YOU DEFINE A STATE?)

Argued the above was a legal criteria, however is it conclusive?

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1.5 RECOGNITION OF STATES – DECLARATORY V. CONSTITUTIVE

1.6 WHAT’S THE IMPLICATION OF AN ACT OF RECOGNITION?

- State and diplomatic immunity (see week 8)

1.7 STATEHOOD: ATTRIBUTE (1)

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1.8 STATEHOOD: ATTRIBUTE (2)

- Decolonization in the 60s/70s

Compare GA Res 2131 (1965) with GA Res 36/103 (1981) pt. II

1.10 STATEHOOD: ATTRIBUTES AND PRINCIPLES

Sources of public international law

 1945 Statute of the International Court of Justice, Art 38 C&M 53

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2 SOURCES OF PUBLIC INTERNATIONAL LAW

2.1 INTERNATIONAL ORGANISATIONS (FROM LAST LECTURE)

2.2 SOURCES OF PUBLIC INTERNATIONAL LAW

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Is this a correct view? This is the starting point.

What is the United Nations Charter?

ICJ Statute, Article 38 (1): Commented [D16]: This provision is v. important as it

Adjudication of disputes for the ICJ – therefore it is not exhaustive/conclusive

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a) Treaties/international conventions – international conventions, whether general or particular,

2.3 LEGITIMACY OF INTERNATIONAL LAW Commented [D18]: First question

Not pu li la e ause ot i posed autho it

This raises the question of whether international law is actually legitimate.

Legitimacy = ualif of a ule hi h de i es f o a pe eptio o the pa t of those to ho it is

Treaty making process do not have democratic process so legitimacy is questionable.

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2.4 EFFECTIVENESS OF INTERNATIONAL LAW Commented [D19]: Second question

In the absence of sanctions for international rules, depends on your measures.

2.5 INTERNATIONAL LAW LEXICON

- International law as static rules v process

This course: mainly positivistic

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However with customary laws – difficulty with interpretation etc.

3.1 WHAT IS A TREATY?

3.2 INSTRUMENTS OF LESS THAN TREATY STATUS

- Va ious te s e.g. ge tle e s ag ee e t ut MOU (memorandum of understanding) this

……. ha e ag eed o the follo i g Joi t u de sta di g o a ode of o du t :

Is this a treaty? Was it intended to be binding?

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- Ho e e this is t a s ie tifi guide

3.3 UNILATERAL DECLARATIONS – NUCLEAR TESTS CASE