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PUBLIC INTERNATIONAL LAW
1. Nature of International Law
It is self-regulatory by nature. There are different categories of “subjects” of international law, but the main subject is the sovereign state.
2. International Legal Subjects: States
Subjects of International Law The subjects of international law have legal personality. Int’l law itself determines who shall have legal personality, and not all entities possess the same personality. As a result of changes in the last century, notably in the areas of human rights, international humanitarian law, and international economic law, non-state actors such as int’l organizations and even individuals have attained some measure of international legal personality. But, they do not possess the same rights and duties as states. States and Statehood There is a shift now away from a purely power-oriented notion of statehood. As long as there is fait-accompli on the ground, we will recognize. There is a strong normative component: there must be human rights, protection of minorities, etc, before
recognition takes place.
Four Attributes of Statehood ⚫ territory (even if borders are unsettled) ⚫ population ⚫ government (effective – it governs the territory) ⚫ capacity to enter into relations with other states [ see p. 14 of Montevideo ] Note : capacity is a nebulous concept. It is in some ways a function of being recognized as a sovereign state by other states, and in other ways it is a de facto function of having the other three attributes. Montevideo Convention On the Rights and Duties of States (1939) The best-known formula for setting out the basic characteristics of statehood. Note : There is no centralized legal process to assess tehse factual circumstances. However, consideration must be given to the process under the UN Charter for admission of new members and the practice of recognition of new states on a bilateral basis.
- Permanent population. There is no minimum requirement. Canada recognized Naura, which had a population of 8421. It is not necessary that the population possess the nationality of the new state. Nationality is dependent on statehood and not nice versa.
- Territory. No minimum requirement. There is also no requirement of territorial unity, and a state may come into being and continue to exist despite border disputes (ex – Israel).
- Government. This is central, and is concomitant with independence. There must be governmental capacity to exercise power over an area of territory and population.
- Capacity to Enter into Relations with Other States. This is both a prerequisite and a consequence of statehood because, until other states accept the existence of the new state, it is prevented from entering into diplomatic relations even if it is capable and willing to do so. Necessarily, capacity is dependent on an effective and independent government.
Austro-German Customs Union Case [1931] Advisory Opinion, PCIJ This was a request from the Council of the League of Nations for an advisory opinion from the PCIJ concerning the meaning of the word independence. Austria and Germany established a free-trade customs union, and the court was asked if was in accordance with the 1919 Treaty of St. Germaine and Protocol 1 of Geneva 1922, of which article 88 (Germaine) provided that the independence of Austria was inalienable except with the consent of the League of Nations. In the absence of such consent, Austria undertook to abstain from any act that might compromise its independence either directly or indirectly. Issue: Does the union violate Austria’s independence? Held: NO. But, it is incompatible with both the protocol of 1922 and the Treaty of St. Germaine. Independence of Austria = continued existence with present borders of a separate state with the sole right of decision in all matters economic, political, financial etc. o Compare to dependent states, which are subject to the authority of the superior state o restrictions on a state’s liberty following from IL or contracted engagements do not affect its independence. Ratio: Independence refers to the legal independence of a state to act as sovereign within its borders. Recognition Two basic theories: ⚫ The state appears only when it is constituted (a state is not a state unless it is recognized by other states. Recognition constitutes statehood) ⚫ Declaratory (recognition is merely recognizing after the fact a reality that exists on the ground) In the current decentralized system of int’l law, there is no single organ having collective authority to determine claims for admission by new states and governments. It has been described as the “free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.” Recognition is not limited to states. It is also applied to new governments, to states in a condition of belligerency, to organized and effective insurgents, and more loosely to the territorial claims of states. The recognition of a state and of a government is not the same thing. A recognized government cannot exist in the absence of a recognized state. Typically, a new state will be recognized and at the same time the regime that established it will be recognized as the governments. Most often, the matter of uppermost concern is that to do about a new regime in a recognized state that comes to power by revolutionary means. Note : Unconstitutional changes in gov’t, alterations to the name, and even the limited movement of territorial boundaries do not effect the continuation of recognition. Williams and de Mestral, “Theories of Recognition” What is the actual effect of recognition? Two conflicting theories.
- Constitutive Theory – recognition has a constitutive effect → only through this act is an international personality conferred and not the process by which they (state and gov’t) were factually formed. States are only established by the will of the international community - Two problems: is an unrecog’d state bound by international law? What if a state is only recog’d by some and not others.
- Declaratory Theory or the Evidentiary Theory – recognition is only formal acceptance of an already existing situation – factual situation that produces legal constitution of the entities and recognition does not have to be
Some important themes: rule of law, democracy, human rights, respect for rights of minorities, etc. This doesn’t apply Montevideo at all, and on the contrary, most of these states hardly qualified under Montevideo. The international community recognized them (Macedonia a bit later)…there were many details about what happened next. This is all on page 27. Note: Kosovo is not likely to become a member of the UN for a very long time. It's likely to be a ward of the EU for awhile (nato troops, foreign aid). International Effects of Recognition The principal measure of status is admittance to the full range of int’l processes for the protection of a state’s rights and duties. Diplomatic relations, treaties, etc… Non-recognition doesn’t affect the existence of rights and duties, but recognition makes it much easier to protect and exercise them. An unrecognized regime within a recognized state: Tinoco Arbitration: Great Britain v. Costa Rica In 1914 Tinoco overthrew the government of Costa Rica. He assumed power, called an election, and established a new constitution. In 1919 he retired and went to Europe on account of poor health. His government fell a month later and subsequently passed a law nullifying many of the obligations assumed by the Tinoco regime toward foreigners (on the grounds that the government was unconstitutional), including RBC and other British nationals. Britain brought this claim on account of the alleged mistreatment of its nationals. The sole arbitrator considered the status of the Tinoco government. o The arbiter found the state is always bound by the obligations of the previous government—regardless of its constitutionality (i.e. de facto governments’ responsibilities are passed on, regardless of their de jure status) o but, the obligations were not upheld because the obligations contracted were contrary to the Constitution of Costa Rica at the time they were made o Legitimacy of the gov’t is without importance in international law – probably would not be made today. Note : The British claim was ultimately rejected because the obligations undertaken by the Tinoco government toward RBC and the other foreigners were held to be unvalid under the law in existence at the time – that is, the constitution and laws of Costa Rica under the Tinoco regime. Sovereignty and Equality Sovereignty and equality (dual cornerstone concepts of PIL) have certain corresponding rights , such as exclusive control over its territory and permanent population, and duties , such as the duty not to intervene in the affairs of other states. Sovereignty includes independence in regard to a territory and the right to exercise therein, to the exclusion of any other State. (Just a theory) Note : What is the source of the legal constraint on a state to mind its own business and not to interfere in the affairs of any other state? Island of Palma Case: Netherlands v. United States [1928] page 33 text This case is the major authority on title to territory. In the 1898 Treaty of Paris, Spain ceded the Philippines to the US. In 1906 a US official of the US found a Dutch flag flying there. The Netherlands and the US referred the question of territorial sovereignty over Palmas to arbitrartion. Holding : The Netherlands had good title as they had continually and peacefully occupied the island since before 1700. Spain could not transfer to the US more right to the island that it itself possessed. Charter of the United Nations – articles 1 and 2 see documentary supplement Article 2. 4 is very important. In the context of WWII it was a revolutionary concept (before, war was an extension of what politics couldn't achieve). We don't believe that might makes right anymore.
This is a function of the notion that all states have equal sovereignty. Article 2. 7 – nothing shall authorize the UN to intervene in ... domestic jurisdiction. But what is in the domestic jurisdiction? (Note...is financing an election by a foreign state considered an intervention?) Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations See documentary supplement The declaration originated in 1961 as an initiative by the then Soviet Union to codify the “principles of peaceful co- existence” in international law. In the ICJ decision Military Activities In and Against Nicaragua the Court held that the adoption of the Declaration by states “affords an indication of their opinion juris as to customary international law on the question of the less grave forms of the use of force.” Federal States Do federated entities have standing in international law? No. They are subordinate to the sovereign state, except for when they are given certain powers by their domestic legal system. It's the constitution of the state which gives them their powers. In Canada : we have a measure of delegation (division of powers). Provinces will sometimes negotiate agreements with neighboring states in the US regarding things that fall in provincial jurisdiction and it is convenient. In the case of Quebec there has been certain delegation of powers: the province of Quebec has specific agreements with France for educational exchanges, for example. It's an extension of powers that were given by the domestic constitution. International law doesn't recognize them as having special powers. Note: Federal treaty-making power has come into collision with the division of powers. In the days when int'l treaties were uncommon, it wasn’t much of a problem, but now most topics are regulated through a host of international treaties. There are a number of problems. They Feds might accidentally usurp the provincial power. But, in the other case, we see the problem if the Feds have to first gain the consent of all provinces before it can negotiate a treaty. (Perhaps nothing would get done). State Continuity : a state continues to exist regardless of changes of government until it is extinguished by absorption into another state or dissolution. State Succession : concerns the legal consequences that follow when one state replaces another. Examples of succession: total absorption of one state by another; partial absorption; independence of one state from another; merger of two existing states; dismemberment of one state into distinct parts. To what extent are the existing rights and obligations of the predecessor state extinguished and to what extent does the successor state take up those rights and obligations? See Tinoco Arbitration. Changes of Government and State Continuity The new government inherits the rights and obligations of the persisting state and its acts bind the state. Tinoco Arbitration: Great Britain v. Costa Rica [1923] page 88 text The State is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper. Holding : The British claim was ultimately rejected because the obligations undertaken by the Tinoco government toward the Royal Bank and the others...were held to be invalid under the law in existence at the time: the constitution and laws of Costa Rica under the Tinoco regime. Succession to Rights and Obligations From S.A. Williams, “International Legal Effects of Secession by Quebec”[1991] page 90 text In summary, Quebec would not be bound under customary int’l law by the treaty obligations entered into by Canada. This stands to reason, as it is a basic principle of treaty-law that treaties bind State parties only, and is analogous to the general principle of privity in domestic contract law. Even if the new State was prepared to accept the obligations, other
EU is an international organization that is the closest thing we have to a superstate. UN is the preeminent IGO and the closest thing to “world government.” The United Nations Almost 190 states are part of it and many have emerged in the decolonization period. Every state has one vote. Organisation of the UN
- Key parts of the UN (SC, GA, Econ. and Social Council, ICJ , Secretariat, Trusteeship Council)
- Secretariat is composed of SG and his staff – supposed to be merely implementing will of member states. But, not really the case as the office has grown and is extremely important at this time.
- Peace keeping is central – (Congo – where there is move away from peace keeping to peacemaking , East Timor, some in Bosnia, Eritrea-Ethiopia) Peacemaking more prevalent in post-Rwanda where “there was no peace to be made” so UN pulled out. Powers and capacities have expanded significantly. In 1945, would not have been imagined that these powers would have been exercised.
- With these powers comes accountability – Sierra Leon and UN peacekeepers w/ child prostitution, Oil for Food scandal.
- Move to reform Office of Internal Oversight to ensure accountability. Trusteeship Council Largely defunct as last trusteeship ended in 1994 Composition of GA Art 9 – all members of the UN Powers and Functions of GA Art 10 – Any matters under the charter, make recommendations to SC. It is not a legislature.
- Eg. Resolution 15 14 – codification of pre-existing customary law and norms. Will of sovereign states is made manifest. GA has quasi-legislative power but not as we would understand in a domestic regime. Powers of Security Council Art 36 – Recommend appropriate procedures Art 39 (part of Chapter VII) - determine existence of any threat to the peace, or an act of agression…..decide what measures shall be taken in accordance with Arts 41 and 42 to maintain or restore international peace and security. Actions of SC Binding on member states – Art 25 – Agree to accept and carry out decisions of SC Note: Art 103 – Obligation of charter prevails over other international obligations Composition of SC Art 23 – 15 Members ROC, France, USSR, UK, US – victors of WWII – permanent members. GA elects other non- permanent 10 members. Art 27 details veto of permanent members. Complex relation b/n the GA and SC GA is more representative but the SC has more power.
- Purse strings technically held by the GA Art 17 – so in effect the GA can control the SC b/c it controls the budget
- Peacekeeping is often funded in a different manner.
- Poorer countries still see sending peacekeepers as a money-making measure The SC is the most controversial part. Bypassing the council is the litmus test for whether there is respect for the UN, and whether there is sufficient unanimity among the major powers. If they're not in agreement, unilateralism is likely to prevail. Charter of the United Nations Articles 1, 2, 7-32, 55- 105 see documentary supplement
UN Charter art 104 …the organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The Namibia Case [1970] page 48 text With resolution 2145, the UN GA terminated South Africa’s mandate, and the SC called upon South Africa to withdraw from Namibia. South Africa failed to do this, so the SC passed resolution 276 [1970] in which it declared that South Africa’s presence in Namibia was illegal and its actions there were invalid.
- Only a material breach of a treaty justifies termination → 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.
- Basis of South Africa’s control over the area was based on a mandate and did not constitute sovereignty over the area. If the mandate lapsed b/c of violations to the object or purpose of the treaty, the authority over the territory is said to have lapsed as well.
- Nature of breach - the actions of SA were designed to destroy the national unity and territorial integrity of Namibia through the establishment of Bantustans are contrary to the provisions of the UN charter.
- When the SC adopts a decision it is for all member states to comply with that decision – even those on the SC who voted against it and those members of the UN who are not represented on the SC SA must withdraw from the territory and, until that point, remains responsible for its obligations and responsibilities to Namibia under international law. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other states. South Africa owed duties to other nations The Reparations Case [1949] ICJ page 58 text In 1948 a Swedish national and UN mediator in Palestine was killed in Jerusalem, which was in Israeli possession. At the time, Israel was not yet a member of the UN. Before commencing an action for compensation against Israel, the GA asked the ICJ for an opinion about the legal capacity of the organization to bring the claim. A critical question was whether the UN has legal personality. Holding : the UN has legal personality, but LP is unique and limited to a functional approach.
- Could not carry out the intentions of its founders if it was devoid of international personality.
- The UN has privileges and immunities within territories of its members → practice has confirmed its status as an international personality
- still not co-equal to states or a superstate, it’s personality is unique
- but, it is a subject of international law, capable of possessing rights and duties, and capable of maintaining its rights by bringing international claims
- Can recover in the name of the victim because it must (a) be able to assure safety of its agents and (b) it must be able to do so without relying on a state’s exercise of diplomatic rights in order to maintain its truly international character (Art 100)
- all of this is implied by the provisions of the Charter Can it bring a claim against a non-member government?
- Yes, because it has objective international personality, independent of its 50 member states (seems a little strange though – agreement between states effects non-contracting parties) There can be concurrent claims with member states → conflict between Sweden and UN in bringing claim should be resolved via political goodwill with the recognition of Sweden’s duty to render assistant to the UN under Art 2(5) Note: The doctrine of “inherent and implied powers.” Its powers are not expressly provided in the Charter , but the UN must be presumed to have those powers that are necessary to the performance of its duties. 2005 World Summit Outcome Document – GA Res. It recommends structural changes to the UN. In the text, we see that the secretary general had organized a high-level panel prior to the world summit which made recommendations to restructure the UN to reflect the realities of the present-day
There has been a rush to self-determination (which is understandable because of treatment under colonial rule), but this rush has led to internal violence on many occasions. Western Sahara Case [1975] ICJ Advisory Opinion page 73 text WS has been colony of Spain since 1884. Pop mostly nomads. B/c of res. 1514 and specific request of res 2229, Spain consulted neighbouring Mauritania and Morocco to determine procedures for holding a referendum. Both countries claimed territory based on “historic title” that predated Spain’s acquisition. Advisory opinion sought as to the status of the territory Spain and Portugal were the first European Imperial powers to colonize the Americas and the last to leave. In the case of Spanish and Portuguese possessions of Africa, in 75 when the governments were toppled and a less militaristic government took shape, the territories were eventually relinquished. Here is a reflection of how international law evolved and was transformed because of peoples and self-determination. Holding: It is up to the people of the WS to decide. Ancient ties to the territory are secondary. Declaration (listed above) and res 1514 confirm and emphasize that the application of this right requires a free and genuine expression of will of the peoples concerned There is now a normative component to the notion of statehood that involves self-determination. It can take different forms:
- Emergence as a sovereign independent State
- Free association with an independent State; or
- Integration with and independent State (see page 74 para 57) Note: The second opinion of Dillard J. (page 75). The last paragraph is important: he explains that the right of self- determination is for the people to determine the destiny of the territory, and not the territory to determine the destiny of the people. WS was never terra nullius as there were people on the territory who had some form of organization. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ page 76 text The Court was requested by the GA to render an advisory opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory.” The Court found that the construction of the wall was contrary to international law, and Israel was obligated to cease construction and make reparations for damages, and that other states were obligated not to recognize or assist in “maintaining the situation” of illegality. The Court would observe that the obligations violated by Israel include certain obligations erga omnes , which by their very nature concern all states. In the view of the importance of the rights involved, all States can be held to have a legal interest in their protection. Israel violated the obligation to respect the right of the Palestinian people to self-determination. Note: see page 78 point 4. The principle of self-determination does not only refer to peoples in colonial or neo-colonial situations; it can be properly extended to cases of functional domination and discrimination. In the preceding cases the Court was clearly of the view that the right of peoples to self-determination is a firmly established principle of international law, and in the East Timor case [1995] the Court referred to the principle of self-determination as “one of the essential principles of international law.” In East Timor and the Palestinian Territory (above) cases, the Court stated that the right to self-determination was an obligation erga omnes , thus binding on all states, and one in which all states have a legal interest. Reference Re: Secession of Quebec [1998] SCC page 79 text
Issue : Question 2. Does IL give the National Assembly the right to affect the secession of QC from Canada unilaterally? Is
there a right of self-determination granting such a power?
(1) Secession at international law
- SCC → IL doesn’t grant component parts legal rights to secede unilaterally from ‘parent’ country (a) some argue that it is not specifically prohibited and therefore inferentially permitted (b) Implied duty of states to recognize the right to self-determination (a) denial of this right is implicit in the importance placed on territorial integrity and in the exceptional circumstances for self-determination to be legally exercises (b) clearly a principle of IL. Hard to define ‘peoples’ but not necessary here because QC is neither (i) a colonial or oppressed people (ii) subject to alien subjugation nor (iii) denied access to meaningful exercise of its right to self-determination internally → self determination can only be exercised if the people are internally oppressed (2) secession, if successful in streets, could lead to a new state, but that would not retroactively confer a legal right on QC to secede
- international recognition, essential for a new state, is likely to consider the legality and legitimacy of secession having regard to the conduct of both QC and Canada
- Succession must take place as a democratic negotiation Note that right to self-determination in many international covenants is not to be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples ….(Vienna Declaration and Program of Action [1993])
- The Court decided they could not unilaterally secede. There is some apprehension about recognizing the rights of peoples outside of questions of territory except in extreme situations. Problems with Right to Self-Determination
- The possibility for infinite subdivision of the individual & “overlapping communities”→ Charles Taylor
- Pushed to the extreme, people-hood leads to exclusion, even ethnic cleansing…
- Characteristics change over time – identity must be constantly reassessed
- The Right to Self-Determination is the only legal element of “peopledom”, but no international actor has obligations to enforce this premise → right with no real remedy
5. International Legal Subjects: Corporations and NGOs
These do not possess even the limited legal personality of their inter-governmental cousins. However, they do have an influence on the creation and application of International Law. Non-Governmental Organizations NGOs exist in every field of human activity. Many of the larger NGOs also make and apply rules and standards for their fields of concern that are accepted generally as the international norms of conduct in those areas of endeavor.
- NGOs place in IL has been based on Art 71 of the UN Charter – consultative status can be given to NGOs which allows them access and participation in the creation and application of IL. see page 66 text What sorts of NGOs have some quasi-law making capacity?
- IOC – Olympic committee – laws and rules for international competitions. Exercise regulatory functions
- ICC – International Chamber of Commerce – Paris – reg of trade, payments
- UN Conference on Environment and Development (UNCED) [1992] hundreds of NGOs staged a complete alternative conference to the formal meetings of government representatives, and contributed to the development of the legal texts.
What about the Red Cross?
- Foremost example of the NGO and its influence.
- One of the most influential actors – starting in 1859 with the human slaughter that took place in Solferino – was
are directly derived from international law, that is, the Geneva Conventions and Additional Protocols. Another task of the ICRC, under its Statute, is to promote the development, implementation , dissemination and application of international humanitarian law.
- The fundamental principles on which the ICRC relies in the performance of its mandate are the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality
- The three principles of impartiality, neutrality and independence have been described as “derivative principles, whose purpose is to assure the Red Cross of the confidence of all parties, which is indispensable to it. Neutrality and impartiality are means enabling the ICRC to carry out its functions. According to these principles, the ICRC may not be involved in any controversy between parties to a conflict.
- the ICRC needs to have access to camps, prisons and places of detention, and in order to perform these functions it must have a relationship of trust and confidence with governments or the warring parties…..also, effect on the safety of its delegates and staff in the field as well as the safety of the victims → Requirement of impartiality and confidentiality sufficient to shield ICRC delegates form testimony → No question of balancing with wish for justice arises – customary law binds so no balancing is at issue. Akhavan
- This case was brought on by a member of the prosecution that was convinced she could take on the ICRC under art. 7. The outcome was that despite the cautious words of the dissent who advocated a pragmatic, balancing of interests approach, the majority affirmed the ICRC’s special status and gave them absolute immunity.
- The result – the ICRC was able to legislate that immunity through statute. Transnational Corporations The multi-national involvement of private corporations has been the focus of international attention for many years. Their activities carry them across State frontiers, yet they are not international in the traditional sense of being intergovernmental. As yet there is no certain body of transnational law by which to regulate these corporations. Types: o Gov’t – ▪ State owned → Quantus, CBC, etc. ▪ They mix both private national law and international law. In form they are private but often act at the behest of gov’t policy; they have access to diplomatic assistance and directly invoke certain rights explicable only in terms of a developing public commercial law. o Inter-gov’t corps → ▪ diff from gov corps – Chunnel is an eg. – multilateral corps – two or more states own an enterprise. ▪ Like above, they appear to fall somewhere between the private and public domain and by linking gov’ts, IL seems to apply to the joint enterprise. o Non gov’t corps ▪ Private corps – top ten have greater econo power than the vast majority of gov’ts ▪ Globalisation power of these corps is much more than states ▪ They have such power to be able to negotiate and agree as equals with gov’ts. Today there is no certain body of “transnational” law resulting in a large number of legal uncertainties such as their nationality, the governing law concerning their agreements with foreign gov’ts, and their amenability to the jurisdiction of national authorites extra-territorially. Since the 1970s there have been some efforts to regulate them and define the rights and duties of states commercially connected to them (i.e. UN Code of Conduct on Transnational Corporations, Int’l Labour Organizations, WTO). ➔ Issue of immunity – state immunity. A state cannot be sued, with certain exceptions (taking of property and torture). An example would be FSIA – Federal State Immunity Act in the US. ➔ jus imperii (governmental acts) and jus geestionis (acting in a commercial capacity). Immunity only extends to jus imperii. If acting in a commercial capacity then immunity does not exist.
Issues of nationality of Corp
- Based in Bermuda, manufacture in Taiwan, sell in Us……etc,
- ICSID – International Centre for the Settlement of Investment Disputes: An arbiter for disputes b/n foreign investors and sovereign states. The claimant (corporation) cannot have the same nationality as the respondent (the state). So, they have some legal status. Attempts at regulation
- International code of conduct
- International labour org
- Increasing blurring of lines b/n sovereigns and private bodies (WTO, NAFTA, etc)
- Increasing and substantial contribution by private actors.
6. Sources – Treaties
“International law governs relations between independent states. The rules of law binding 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 coexisting independent communities or with a view to the achievement of common aims.” – PCIJ, The Steamship Lotus Article 38 – Statute of the International Court of Justice
- The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions , whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom , as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Statute of the International Court of Justice Sets forth the principles of international law, jurisdiction, and composition of ICJ Article 38 : body of laws that the court can apply to disputes between states This is a codification of the sources of international law: International conventions (international treaty) International custom (a general practice accepted by law) this does not express agreements in writing, but looks at the “general practice” or actual practice of states. You look at social facts: how do the members of this society conduct themselves as an issue of obligation? General principles: Works from the top down: not looking at the practice of states, but is rooted in principles of natural law, logic, social necessity. There is NO hierarchy, but in practice, which would we say is the most important and why? Treaties are the most certain source of law. We need only interpret the provisions of the treaty. But, does that make a treaty more important as a source of law? Customary law tends to be more substantive. It requires widespread consistent practice (Treaty law and customary law overlap a great deal) A treaty could possibly override a pre-existing custom, and a subsequent custom might supplant a treaty. **see page 108 text for interesting notes about customary vs. treaty law Firm law versus Soft Law:
- The rules the come from the law-making process from art. 38.1 (a) – (c) ICJ are firm law ( lex lata ). Soft law ( lex ferenda ) comes from instruments that are not directly enforceable in domestic or int’l tribunals but are still enforceable. (i.e. Helsinki Accords or OECD Guidelines for Multiateral Enterprises).
Professor’s conclusion The court has neatly sidestepped the question of priority faced with the conflict between the two.
- When the rule in a Treaty can also be found in Customary Law: Military Activities In and Against Nicaragua, ICJ 1986 Facts The U.S. argued that the existence of certain principles in the U.N. Charter or other treaties precluded the possibility that similar rules could exist independently in customary law. In this case it was decided, despite relevant treaties, that the U.S. had violated its customary IL obl’s (a) not to intervene in the affairs of Nicaragua and (b) not to use force against it. Holding - identical content to a treaty-rule does not negate the independent existence of customary rules. Treaty and customary norms retain a separate existence even if they have exactly the same content. The operation of a treaty process does not deprive the customary norm of its separate applicability. If A breaches a treaty-rule with B, B is exempt from his treaty-rule. But if the same rules exist in customary law the breach of treaty by A does not justify B’s refusal to apply the other rule as he is also bound by customary law. Vienna Convention on the Law of Treaties Articles 1, 2 , 3, 5, and 6 see documentary supplement See page 114 text for more questions regarding treaties The potentially binding nature of a unilateral declaration: Nuclear Test Cases: Australia v. France; New Zealand v. France [1974] ICJ page 115 text Facts: France conducted nuclear tests in South Pacific as it was not a party to the Nuclear Test Ban Treaty. Not being party to the Nuclear Test Ban Treaty France did some testing. Two countries protested and started these actions. Before they were heard France stopped and unilaterally announced they would not hold any more tests in the atmosphere. Holding: Moot case as Fr announced end of tests - → This unilateral statement, regardless of its form (oral or in writing), was binding on France. Declarations made by way of unilateral acts can be binding if it is the intention of the state making the declaration to be so. Undertaking of this kind, if given publicly, with the intent to be bound, even when made in the context of international negotiations, is binding. Note: no quid pro quo is needed in unilateral declaration. In this case there is no agreement or treaty. But, the unilateral declaration is considered as imposing legal obligations. Canadian Treaty Practice For the most part, ratification is required before a treaty becomes binding. The significance of ratification is especially important for federal states like Canada. But, if Canada is involved in a complex negotiation with the UN (all those states are involved) there has to be compromise. So, as a Canadian diplomat, you can't check with all constituents in the country to see if they agree. If the treaty relates to a defense pact, (domain of feds) you don't have to worry about the distribution of powers , but if it relates to the environment, employment, etc, you have to be aware that eventually you need to have 10 provinces signed on. Executive/Legislative : treaty making power is executive, but in respect to the required implementation (through legislation), then you also have to take into account whether parliament is likely to accept it or not. Note: in some other countries, it's the parliament that actually ratifies the treaty directly. (Domestic implementation and ratification are one in the same. The Netherlands is like this) Note: if the treaty doesn't effect the legislature at all, then parliamentary approval may not be a problem at all (this is in the minority of cases)
Treaty Making (see page 120 text)
- The representative of a State must have “full powers” (article 7)
- The mode of adoption of the treaty, whether by consensus or voting, has to be agreed upon (article 9)
- The means to authenticate the definitive text(s) must be settled (article 10)
- The particular steps to express consent need to be set (articles 11-16). Signature is the usual choice Signature & Ratification of Treaties (not binding until ratified/this can sometimes be upon signature) This is a 2 step process: Signature: o The people negotiating the treaty usually do not have the power to give it binding effect within their state o Representative must have “full treaty making powers” to give consent of his or her state (see art 7 of Vienna Convention) Ratification: o Federal states – often require sub-unit to approve; Canada tries to put in Federal reservation but this isn’t well accepted o Executive approval: Usually the Queen, or the Governor-in-Council o In US – President needs approval of the Senate Privity of Treaties Just like Ks, treaties cannot bind 3rd^ parties (non-signatories) Not an absolute rule → this is different when a treaty creates a benefit Art 36 Vienna Convention allow for “assumed acceptance” for treaties that confer benefits Art 35 allows for third party obligations, but the 3rd^ party must acknowledge the obligation in writing Entry into force – certain number of states have to ratify it in order for it to enter into force – Vienna Convention art 24- 25
- provisional application prior to ratification.
- Date varies according to intention of parties (art 24 Vienna)
- First signatories may not be bound by the convention qua treaty for some time (ie prior to ratification) though they are bound to refrain from acts which would defeat the object and purpose of the treaty (Art 18 of Vienna)
- Publication and Registration: Once it has come into force, it is registered with UN Secretariat (art 102 UNC and art 80 Vienna)
- In Canada, treaties, are published in own registries separate from “understandings”
- A bilateral treaty is relatively straightforward: unless there is a reason why the treaty shouldn't be, it will be. Reservations A state can say, fine we will sign, but we enter reservations to the following articles. So, you might ask why they're entering into the treaty in the first place: maybe it's international prestige or wanting to have the power to negotiate the treaty Generally accepted that a state (if they did not participate in the drafting of the text) will not become a party subject to reservation unless all other contracting states accepted this reservation (“classical theory”) Some allow for minor reservations (within spirit of treaty) in order to encourage more states to join o See Convention Against Genocide Case o This disrupts the synallagmatic view of treaties Some do not allow for any reservations, despite desire for wide adhesion: o ICC o ILO Cannot make reservations to treaty provisions that reflect customary norms. Reservations to the Convention on Genocide Case [1951] ICJ page 124 text Advisory opinion requested by the GA regarding the reservation that had been attached to the treaty
Operation of Treaties Amendment and Modification Article 39 of the Vienna Convention confirms that a treaty may be amended by agreement between the parties. Generally there will be a provision about this in a treaty. The UN Charter contains such a provision ( article 108 ) Once a treaty has been concluded, when does it cease to be operative****? Because there is no global police, there is tremendous conservativeness. You want to do everything to make sure that a state cannot unilaterally walk away from it. So, there is great restriction on when a state can withdraw. (The kind of treaty matters a great deal in this area) Ex – if it relates to boundaries, then it is very much an eternal agreement given the fundamentally subversive nature of allowing States to walk away from such agreements. See part 5 of the Vienna Convention on the Law of Treaties (page 56 documentary supplement) Invalidity and Jus Cogens Vienna Convention articles 42, 43, 46, 52, 53, 64, 69, and 71 Once a treaty has been concluded, when does it cease to be operative****? Because there is no global police, there is tremendous conservativeness. You want to do everything to make sure that a state cannot unilaterally walk away from it. So, there is great restriction on when a state can withdraw. (The kind of treaty matters a great deal in this area) Ex – if it relates to boundaries, then it is very much an eternal agreement given the fundamentally subversive nature of allowing States to walk away from such agreements. See part 5 of the Vienna Convention on the Law of Treaties (page 56 documentary supplement) Jus cogens (article 53) Jus cogens are obligations owed by a state to the int’l community as a whole. It is preemptory norms of IL that cannot be set aside by treaty or acquiescence but only by the formation of a subsequent peremptory norm of contrary effect. i.e.: use of force, pacta sunt servanda, are inviolable norms because of their wide and deeply ingrained acceptance such as the principle of freedom of navigation on the high seas or the elementary considerations of human dignity. Here, we're talking about hereditary norms of int'l law. These are such fundamental importance (ex – prohibition of genocide) that states cannot conclude treaties contrary to them. If two countries tried to create a treaty in favor of genocide, it would be invalid at the outside because of the Vienna Convention. Termination and Suspension Consent is the best way (but usually not the case) Other 3 circumstances where termination is allowed: material breach (as opposed to minor breach), impossibility of performance, fundamental change of circumstance (rebus sic stantibus) Vienna Convention on the Law of Treaties, articles 42, 54-56, 60-63, 70 Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ see page 139 text The case regards the construction of a dam. It was no longer in the interest to Hungary whereas Slovakia still wanted to proceed. They had concluded a treaty to build the series of dams and Hungary abandoned the project. The court pretty much rejected all of the 3 (above) grounds. The notification of termination (given on May 19 1992) did not have legal effect. Akhavan mentions Amoco International Finance Corp v. Iran on page 146 text. US and Iran agreed on arbitral tribunals. .....tribunals are extremely reluctant to allow a treaty to no longer apply, because of the self-policing nature of int'l law
7. Sources – Custom
General Customary Law Customary International Law is composed of two elements:
- There must be a consistent and general international practice among states
- The practice must be accepted as law by the international community. The concepts have been advanced to explain why “international custom, as evidence of a general practice accepted as law” is binding on states: consent, estoppel, and reasonableness. Matters of protocol (eg. ships saluting other’s flags on the high seas) are practices but are not obligations.
- How does a new rule emerge? Opinio Juris. State practice that is accepted by the community.
- Violation of a norm does not create a new norm → ex injuria jus non oritur Unilateral action when taken along parallel lines and based upon similar principles can lead to a new regional and perhaps even universal rule of law. Note: Proof of the necessary opinio juris is rarely displayed in explicit acceptance of one state’s claims by others; rather it is shown by their tolerance of that state’s conduct. Qualitative question : how much practice do you need and how much opinio juris → changes depending on “how important the norm is”
- For eg. crimes against humanity will adapt faster than 12 mile sea boundary line. The Steamship Lotus – France v. Turkey [1927] PCIJ page 550 text Facts: Turkey prosecuted a French captain, after he landed in Turkey, for negligence after the French boat crashed into a Turkish boat in int’l waters. Issue: Is Turkey is violating a principle of international law by prosecuting a foreign national? What is their basis for doing so? Holding: No. Territorial effect
- Rules of IL flow from the consent of states, therefore restrictions on states can never be presumed.
- France has to show that such a violation of IL exists, rather than compelling Turkey to establish a ground for its national jurisdiction
- France raised three arguments to this effect, all of which fail—i.e. Turkey did not act in conflict with principles of IL because France failed to establish that any such principles exist
- territoriality is the first, and most solid basis of jurisdiction
- There is a valid provision in the Turkish Crim code asserts extra-territorial application of Turkish law
- But, the basis of jurisdiction is actually the impact of the criminal behaviour on Turkish territory (i.e. the impact of the capts behaviour on the ship which is Turkish territory) I.e. if the death takes place on Turkish territory, the country has TERRITORIAL jurisdiction (the ship is Turkish, so the impact of the wrongful act was felt on Turkish territory
- jurisdiction is territorial, but it doesn’t follow that a state cannot exercise that jurisdiction with respect to events that occurred extra-territorially Ex. If you shoot a gun across the border, and kill someone on the other side, both states have jurisdiction over the crime, on a territorial basis Did the court look for a specific norm of customary law that permitted jurisdiction or…look for a prohibitory norm? They looked for prohibitory norm – none, therefore it is not prohibited. North Sea Continental Shelf Cases – Federal Republic of Germany v. Denmark v. Netherlands [1969] ICJ page 151 Facts : Dispute over location of delimiting of boundaries between these nations – Article 6 of the Geneva Convention on Continental shelf is not opposable to Germany – this is the equidistance principle. Question is maritime limitation “What principles and rules of int’l law are applicable to the delimitation as between the parties of the areas of the
