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Public International Law - Fall 2005; Prof. Payam Akhavan
- 1 INTRO..............................................................................................................................................
- 2 Part 1 – Nature of International Law............................................................................................ - 2.1 J.L. Brierly – Basis of Obligation in International Law........................................................
- 3 Part 2 – International Legal Subjects –
- 3.1 A- States.............................................................................................................................................
- 3.1.1 A - How do we characterize Statehood?................................................................................
- 3.1.2 Montevideo Convention on the Rights and Duties of States..................................................
- 3.1.2.1 Austro-German Customs Union Case [PCIJ 1931]...............................................................
- 3.1.3 B - Sovereignty and Equality.................................................................................................
- 3.1.3.1 Island of Palmas Case – Netherlands v. U.S..........................................................................
- 3.1.3.2 Namibia Case.........................................................................................................................
- 3.1.4 C - State Succession...............................................................................................................
- 3.1.4.1 Tinoco Arbitration: Great Britain v. Costa Rica....................................................................
- 3.1.4.2 S.A. Williams – Succession to Public Debts.........................................................................
- 3.1.5 D – Recognition.....................................................................................................................
- 3.1.5.1 S. Williams & A. De Mestral – Theories of Recognition......................................................
- 3.1.5.2 Tinoco Arbitration: Great Britain v. Costa Rica....................................................................
- 3.2 B – International Legal Subjects – International Organizations (IGO’s) - 3.2.1 Reparations Case.................................................................................................................... - 3.2.2 UN High Level Panel on Threats, Challenges and Change...................................................
- 1 C – International Legal Subjects - Peoples.......................................................................................
- 1.1 Declaration of the Granting of Independence to Colonial Territories and Peoples...............
- 1.2 Western Sahara Case..............................................................................................................
- 1.3 East Timor Case – Portugal v. Australia................................................................................
- 1.4 Reference Re Seccession of Québec......................................................................................
- 1.5 Mi’kmaq Case........................................................................................................................
- 2 D – International Legal Subjects – Corporations and NGO’s
- 2.1 The Prosecutor v. Simic.........................................................................................................
- 1 Part 3 – Sources of International Law........................................................................................... - 1.1 Military Activities In and Against Nicaragua, ICJ
- 1 A – Treaties........................................................................................................................................
- 1.1 Vienna Convention on the Law of Treaties
- 1.1.1 Anglo Iranian Oil Co. Case....................................................................................................
- 1.1.2 Nuclear Test Cases – Aus v. France; NZ v. France................................................................
- 1.2 Reservations...........................................................................................................................
- 1.2.1 Reservations to the Convention on Genocide........................................................................
- 1.2.2 Free Zones Case, France v. Switzerland,...............................................................................
- 1.3 Invalidity and JUS COGENS.................................................................................................
- 2 B – Custom........................................................................................................................................ - 2.1 North Sear Continental Shelf Cases - Germany v. Denmark and v. Netherlands.................. - 2.2 The Steamship Lotus – France v. Turkey.............................................................................. - 2.3 Right of Passage over Indian Territory Case – Portugal v. India...........................................
- 3 Part 3C – Sources – General Principles and Soft Law...................................................................... - 3.1 International Status of South West Africa Case..................................................................... - 3.2 Erdemovic Case..................................................................................................................... - 3.3 Texaco v. Libya......................................................................................................................
- 1 Part 4a – National Application of International Law - Custom.................................................. - 1.1 Foreign Legations Case......................................................................................................... - 1.2 Saint John v. Raser-Brace Overseas Corp.............................................................................. - 1.3 Gordon v. R............................................................................................................................ - 1 Treaty Implementation....................................................................................................................... - 2 Conflicts between Treaties and Statutes............................................................................................
- 1 Influence of IL on Cdn Law – Determing the Applicable Law to Apply:.........................................
- 2 Comparative Approaches to National Application............................................................................
- 2.1 European Union:....................................................................................................................
- 2.1.1 Cosa v. Ente Nazionale Per l’Energia Ellettrica, [1964] ECJ Advisory Opinion under art. 177.....
- 2.2 United States..........................................................................................................................
- 1 Part 5 - State Jurisdiction Over Territory.....................................................................................
- 1.1 Land Territory....................................................................................................................................
- 1.1.1 Acquisition of Territory..........................................................................................................
- 1.1.1.1 Island of Palmas Case; Netherlands v. United States (1928), 2 R.I.A.A. 829.......................
- 1.1.1.2 Western Sahara Case Adv. Op. [1975] I.C.J. Rep. 12............................................................
- 1.1.1.3 Legal Status of Eastern Greenland Case; Denmark v. Norway
- 1.1.2 Boundary Disputes.................................................................................................................
- 1.1.2.1 Case Concerning the Frontier Dispute; Burkina Faso v. Republic of Mali,
- 1.2 Arctic and Antarctic Areas.................................................................................................................
- 2 Part 6 – Law of the Sea....................................................................................................................
- 2.1 A – Marine Zones..............................................................................................................................
- 2.1.1 1. Territorial Sea....................................................................................................................
- 2.1.1.1 Anglo-Norwegian Fisheries Case – UK v. Norway...............................................................
- 2.1.2 Exclusive Economic Zone......................................................................................................
- 2.1.3 Continental Shelf....................................................................................................................
- 2.1.3.1 The Truman Proclamation.....................................................................................................
- 2.1.3.2 Re Newfoundland Continental Shelf.....................................................................................
- 3 Part 7 - Nationality..........................................................................................................................
- 3.1 A. Individuals..................................................................................................................................... - 3.1.1 Nottebohm Case – Liechtenstein v. Guatemala..................................................................... - 3.1.2 Flegenheimer Claim – Italian – United States Conciliation Commission - 3.1.3 Canevaro Case – Italy v. Peru................................................................................................ - 3.1.4 Iran – US case A/18............................................................................................................... - 3.1.5 Stoeck v. Public Trustee.........................................................................................................
- 3.2 B. Corporations.................................................................................................................................. - 3.2.1 Barcelona Traction, Light and Power Co. Case – Belgium v. Spain..................................... - 3.2.2 Electronica Sicula SpA (ElSI Case) US v. Italy.....................................................................
- 4 Part 8 – State Jurisdiction over Persons........................................................................................
- 4.1 A – Subject-Matter Jurisdiction......................................................................................................... - 4.1.1 The Steamship Lotus – France v. Turkey..............................................................................
- 1 Six Bases of Criminal Jurisdiction:...................................................................................................
- 1 B – Jurisdiction over the Person........................................................................................................ - 1.1 United State v. Toscanino [US CA 2nd Cir. 1974]................................................................. - 1.2 United States v. Alvarez Machain (US SC, 1992].................................................................
- 1 Part 9 – International Criminal Law............................................................................................. - 1.1 Nuremburg War Crimes Trials............................................................................................... - 1.2 R. v. Imre Finta...................................................................................................................... - 1 B – The Ad Hoc Tribunals as Precedents.......................................................................................... - 1.1 The Prosecutor v. Dusko Tadic.............................................................................................. - 1.2 The Prosecutor v. Dusko Tadic.............................................................................................. - 1.3 The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case............................. - 2 RWANDA - ICTR................................................................................................................................ - 2.1 The Prosecutor v. Jean-Paul Akayesu.................................................................................... - 3 C. The International Criminal Court.................................................................................................
- 1 Part 10 – Protection of Human Rights...........................................................................................
- 1.1 A) Individual Rights.......................................................................................................................... - 1.1.1 Toonen v. Australia................................................................................................................ - 1.1.2 Velasquez Rodriguez Case.....................................................................................................
- 1.2 B. Human Rights Standards............................................................................................................... - Parties Obligations............................................................................................................................. 1.2.1 Committee on Economic, Social and Cultural Rights – General Comment – The nature of States
- 1.3 C) Customary Human Rights.............................................................................................................
- 1.4 D) Universality of Human Rights and Cultural Diversity.................................................................
- 1.5 E) Compliance and Enforcement....................................................................................................... - 1.5.1 Filartiga v. Pena-Irala.............................................................................................................
- 2 Part 10 B – Collective Rights and Self-Determination................................................................. - 2.1 Mi’kmaq Case........................................................................................................................
- 3 Part 11 – State Responsibility - 3.1 The Schooner Exchange v. M’Faddon................................................................................... - 3.2 Trendex Trading Corp. Ltd. v. Cental Bank of Nigeria [1977 UK CA]................................
- 1 B. State Responsibility
- 1.1 Draft Articles on State Responsibility....................................................................................
- 1.1.1 Corfu Channel Case: UK v. Albania [ICJ 1949]....................................................................
- 1.1.2 The Jessie, Thomas F. Baynard, and Pescawha.....................................................................
- 1.1.3 Cosmos 954 Claim – Canada v. USSR..................................................................................
- 1.2 IMPUTABILITY.....................................................................................................................
- 1.2.1 T.H. Youmans Claims: US v. Mexico [General Claims Commission, 1926]........................
- 1.3 State Responsibility for Private Individuals..........................................................................
- 1.4 Acts of Insurgents...................................................................................................................
- 1.5 Circumstances Precluding Wrongfulness...............................................................................
- 1.6 C. Enforcement of Claims......................................................................................................
- 1 Part 12 – International Dispute Resolution................................................................................... - 1.1 Fisheries Jurisdiction............................................................................................................. - 1.2 Construction of the Wall Advisory Opinion..........................................................................
- 2 Part 13 – Use of Force......................................................................................................................
- 2.1 A. Prohibition of the use of Force......................................................................................................
- 2.2 B. Justifications for the Use of Force................................................................................................
- 2.2.1 1. The Right to Self Defence...................................................................................................
- 2.2.2 2. Self-Defence of Nationals..................................................................................................
- 2.2.2.1 The Entebbe Raid...................................................................................................................
- 2.2.3 3. Humanitarian Intervention................................................................................................
- 2.2.4 4. Collective Measures Pursuant to the UN Charter.............................................................
INTRO
PIL born out of the collective violence of the 20th^ century. Born in the matrix two world wars, holocaust, genocide.
• Look at is as a mirror reflecting society
• Look at the absence of actual sovereign
• Relfection of power realities.
• Law as essentially an apology for power.
• Reflects rather than imposes existing order.
• Redress the historical imbalance that has been created by a system
Brief Overview
• Can be traced to antiquity and ancient civilizations
• Mistake to say only emerged at reformation, but, in many ways went along with development of nation states in
Europe and the colonialism that went along with it.
• End of 30 years war – 1648 Peace of Westphalia. F 0 E 0Embodied dissolution of holy roman empire – that church was
no longer the authority. Emergence of national identity and rise of absolutist monarchies. SUM: Notion that nation is central or as supreme entity. F 0 E 8Sovereignty
• Dominance, supremecy in relation to the right to wage war, right to impose one’s will on others to the
extent that power realities allowed
Key figure: Hugo Grotius – Dutch
• Proverbial father of international law. Book De jure belli ac pacis – The law of war and peace – classical work of
international law.
• Reflection of reality westphalian era – normal status was states were at war unless they concluded a peace treaty
between them.
Development of war from knights in shining armour to total war with ideology attached had profound effect on PIL.
Civilized and uncivilized nations – Peace of Westph was only among Christian sovereigns (b/n protest and cath). These nations were part of the civilized world.
• Laws of war were different when fighting b/n civilized nations and fighting non-civilized nations (which continued into
the times of Churchill and, to a certain extent today)
Transition from Tradition to Modernity
• Traditional world view at time of HRE had particular mindset – one aspect of which was notion of devine law that was
God given. Grotius subsequently still recycled or repackaged this under the guise of natural law.
• With the enlightenment and Weber’s disenchantment we saw rise of Positivism. Notion that sovereignty did not belong
to God or nature but to man. Only law that was rightfully law was that which could be imposed by sovereign with power.
• This was captured in Hitler’s “mite is right”.
• International order is reflection of survival of fittest.
WWI
• First stage in transformation to modern intntl system.
• Key devel F 0 E 0 1928 Pact of Paris – Kellog-Briand Pact
• Outlawed wars of aggression – sovereign rights do not extend to right to wage wars of aggression but only to
right to self defence.
• Gave rise to League of Nations
• Short lived experiment of collective security that ended with Italian colonisation of a part of Ethiopian and
Japan in Manchuria
- Point is that there is no central sovereign. The state is at center of international law. Can there be any form of law without a central sovereign – no one to legislate, no exec to institute, no compulsory jurisdiction. So how can one say that there is such a thing as international law.
- L. Pospisil in 1971 argued that primitive society law worked based on consent – law is internalized. This only works, according to some, in a society closely knit by kinship….living in stability….etc.
Part 1 – Nature of International Law
Reading – Sept 6 th
()a J.L. Brierly – Basis of Obligation in International Law
Two alternate theories of international law 1) Fundamental rights doctrine F 0 E 0notion that there are primordial rights rather than rights that are endowed by society. Hobbsean state of nature type argument. Five rights:
- Preservation
- Independence
- Equality
- Respect
- Intercourse
- Rejected by Brierly F 0 E 0State has not been around since the beginning of time but is historically contingent.
- F 0 E 0Most fundamental criticism is that these are legal rights that cannot exist outside a legal system. Rights cannot exist outside legal system.
2) Doctrine of Positivism : Some of the rules to which states are consented to be bound. International law is law b/c of consent. Consent can be implied.
- Problem with this theory: Does not explain why the law is binding. States consent to be bound but does not explain why they consent to be bound. Could equally not consent to be bound. - Central critique of Positivism F 0 E 0Facts of international life don’t fit into international law. Obligated by force of circumstance to consent to be bound. - Consent also does not provide an explanation F 0 E 0Auto-limitation to sovereignty: There are limits but they are self-imposed.
Brierly’s response:
- Debunks fundamental rights theory
- Critiques positivism. There needs to be new mystery about the source of obligation. Why? – the answer for this question is for philosophy not for law according to Brierly.
- What composes international law F 0 E 0how far does it extend and is consent the basis for application.
In 1951 – when ICJ was pronouncing ( Reservations to Genocide Case) on why genocide was unlawful, it could not use customary or general principles. Could only rely on Treaty Law.
- Note that the convention of 1948 was open for signature and put into force in 1951. How can we assert custom in 1951 after only three years. Therefore, court referred to general principles (based only on genocide being a monsterous crime). Every subsequent case that is referring to this case alludes to customary law and not general principles. - This all to say that Brierly’s point has validity –
Brierly recognises that the difference b/n national and international law does not lie in mystical but rather in the………look this up!!!
Brierly emphasises custom as basis for international law. Order and not chaos the governing principle of the world.
Basic idea is not dis-similar to that Hobbes. Emphasis on custom.
- International system is pragmatic social arrangement
- Distinguishes from national system where there are compulsory powers. In international is a loose system with custom as a basis. (Remember that custom at its base is a primitive legal system as opposed to complex).
- International legal system reflects a primitive legal order in which “spiritual cohesion is weak”. Remarkable according to Akhavan – Remember Pospisil – spiritual community allows for sustaining of law in national system. Purpose of the international legal system (thoughts?) and does Brierly’s response saying that international law is regulating inter- state relations satisfy you?
- Pragmatic approach with genocide: spill over of refugees, economic effects for the region, etc. Therefore, there are many inter-state effects.
- Other approach: In this increasing globlized world, must we be confined by interstate relations. Goes along with idea that no genocide is not a threat to peace and security.
Genocide – as an example of an issue of international law.
- Both in Rwanda and Srebrenica (Yugo.) UN security forces were on the ground and there were early warnings.
- (^) Waren Zimmerman (US ambassador in Belgrade) says case of Yugo, spontaneous combustion did not happen. There was plenty of kindling but etho-nationalists (like Milosovic) were the spark. Nothing inevitable about the conflict but international community failed to intervene. Catestrophic effects: - HR - Regional Stability
Context
- Political Realism (which adheres to idea that might is right and state self-interest): Values and principles are totally irrelevant if not an impediment. and
- Idealism: Those values and principles
Rwanda and Yugo both had implications in the region – Yugo in Masadonian and Rwanda – the effects were felt in Zaire, Tanz, etc. Similarly in Cambodia.
Reality is that ideals are becoming increasingly central. Expressions of mass violence will inevitably reverberate into the international community.
Part 2 – International Legal Subjects –
A- States F 0 E 0States are the primary subjects of international law International law applies to certain entities – subjects. W/out this capacity, entity will be unable to maintain any claims.
- Used to be only states until 20th^ C. – HR law, IHL and International Econo Law changed this and now some individs have legal character internationally.
- Questions to ask:
- (^) Does a particular entity fulfil the prerequisites for ‘subject’ status?
- What does this capacity for legal personality entail?
- In new candidates, sucha s peoples seeking self-determination, individs, international orgs and multinational corps, is there or must there be demonstrable legal capacity and, if so, what are its parameters?
Significance of having legal personality – capacity to enter into international legal relations.
A - How do we characterize Statehood?
Montevideo Convention on the Rights and Duties of States
(1934)
B - Sovereignty and Equality A state has certain rights and corresponding duties – rights include: exclusive control over territory, permanent pop and other aspects of domestic affairs. Duties are to not intervene overtly or covertly in the affairs of other states and thus not to intervene with their exclusive domestic jurisdiction.
Island of Palmas Case – Netherlands v. U.S.
Jurisdiction 1928 – RIAA
Facts US takes over Spanish Colonial possession. Dutch flag flying over islands. Case revisited later in course.
Relevance F 0 E 0Sovereignty signifies independence which represents the right to exercise therein, to the exclusions of any other state, the functions of a state. Dutch had been there since the 1700’s and the Spanish could not transfer to the US more rights than they had in the Island.
- Manifestations of sovereignty – Continued and peaceful occupation. F 0 E 0Problematic: Self-determination by indigenous peoples seems to be considered wholly irrelevant by the court.
Akhavan on Island of Palmas
- If Sovereignty is vested it cannot be taken away through use of force or acts of aggression. F 0 E 0this is a movement away from principle of effectiveness.
- Note it abolished the distinction between civilized and uncivilized by extending the right of sovereignty and statehood to ALL PEOPLES:
UN Charter F 0 E 0Art 1 and 2(4) &(7)
Art 1 Idealistic objectives agreed upon by the allied victors of WWII. Still the sought after goals in the very different circumstances of world society today. The principles that both guarantees and obliges compliance with by the member states of customary rights associated with statehood.
2(1) provides for legal equality. (i.e. 18(1) provides for one vote for each member but art. 27(3) gives special veto power to the five permanent members of the Security council!)
Art 2(4) 2(4) Members not to use threats or force against other states.
Art 2(7) 2(7) Restriction of interference in the matters that are “essentially within the domestic jurisdiction of any state”. (What qualifies as “essentially within” and how does this interact with other essential elements of the Charter such as H.R.s which enlarge the scope of intrusion?)
Principle is : If something is essentially in the domestic jurisdiction of the state, other states cannot intervene.
- Eg. Gov’t of France provides advice and support to Bloc Que – is this intervention in domestic affairs of Canada? Maybe – look to nature of intervention.
- Eg. Indonesian gov’t makes contributions to Pres. Clinton’s campaign – is this intervention?
Is there some magic to sovereignty? Look to the Basques in Spain, the First Nations in Canada.
Most significant state
Federal States – constituent units are not international subjects. Not settled.
- Can federal entities conclude international treaties – contingent on law in state.
- Look to Canada: Sired in warfare, mothered in treaties and nurtured in the crèche of……international law.
- Signed Versailles but did not ratify it. Separate declaration of war in WWII.
- External affairs set up in 1901 and actually dep’t in 1928.
- Central occupation is with US. Sovereign equals on a plane of majestic inequality.
MANDATED AND TRUST TERRITORIES
Mandated territories of the League of Nations. Many of them in the Middle East.
Art 22 of UN charter
- More modern states hold in trust for the people of those nations.
Under the UN, became a trusteeship system which led to independent nations – last trusteeship became independent in 1994.
Namibia Case
Jurisdiction 1971 – Adv Op.
Facts Resolution 2145 terminated SA’s mandate in South West Africa.
Issues Discussion of General Assembly’s actions including 2145
Holding Resolutions with respect to Namibia were made in accordance with UN charter.
Ratio • Only a material breach of a treaty justifies termination F 0 E 0a) 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. Akhavan on Namibia
- Obligations erga omnes – SA owed rights to other nations.
C - State Succession Continuity & Sucession: 4 Possibilities Succession is not the same as continuity –
- Succession is when one state replaces another – continuity is when a gov’t changes within a state.
1. State is transform F 0 E 0internal institutions change
2. Two states form a new state : Ex. Germany
3. New state forms on the territory of an old state: ex. decolonization
4. Break-up of a state into several entities : ex. Yugoslavia, Czechoslovakia
Subjects that would be relevant
- Treaty obligations
- Territory
- (^) Contracts – concessions given to investors etc.
- Public Debts
- Public funds and property
- custom: inherit only localized debt. (i.e building a local airport)
- national debt could be divided according to a plethora of formulas
- in QC/Canada, succession would require successful negotiation in this area because the status in international law is indeterminate, even if the 1983 convention is ratified
- In Yugoslavia there was a combination of territorial debts and debts prorated based on GDP F 0 E 0enforced by international creditors who wouldn’t do business with new states otherwise
Questions for consideration for next class:
1) Recognition merely declares but does not constitution the fact of statehood.
For: Decarlatory or evidentiary theory. Constit theory raises a few problems – two problems written below. Legal limbo of being recognized by some but not all states. Declaratory approach is more de facto. ( Tinoco case is not pertinent as it is a gov’t). Israel is a good example of being recog’d by some but not all. Taiwan would be another.
- Right to self-determination – constitutive approach reps an impediment as would discourage
- Legal clarity
Against:
- Constitutive approach does not reflect practical reality on the ground…which is not a response to the question.
2) The right of peoples to self-determination necessarily implies the right to statehood.
Affirmative:
- Western Sahara case. Competing theory of Morocco was that they had historic title. Spain had colonized in 1884 – Court says “it is for the people to define the destiny of the territory and not the……” - In the case, no exact definition of “peoples”. Non-self governing territory. No geographical proximity (makes it easier). - These colonies are ethnically heterogeneous. - Determination of the right to self determination based on the existence of non-self governing territory.
- Colonized peoples are given the right to self-determination (alien domination). Against:
- Status quo – right to self-determ does not necessarily lead to statehood. In Colonized peoples or alien domination case, then right does exist.
- Notion of peoples – not static term in international law. Temptation to associated it with territory.
- Right of self-determ is heavily attenuated by right to sovereignty.
- SCC does not define people. People of Que deemed not to be oppressed. F 0 E 0Effectivity priniciple F 0 E 0if a group of people of engage in armed resurrection, discussion becomes irrelevant.
D – Recognition “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.” (Resolution of the Institute of International Law – Brussels (1936))
Two Criteria
- Claimant must satisfy legal criteria for statehood
- Publicly expressing its decision to respect the claimant as an independent state
Not limited to states – Also applies to
- States in condition of belligerency
- Organized and effective insurgents
- More loosely to the territorial claims of states
Background: Geneva Convention Protocol 1 (1977) – gave legal personalities to liberation movements. F 0 E 0Self-determination to struggles. This was controversial. Geneva Convention Proto 2 – Injurgency – for limited purposes of application of Geneva conventions, insurgency can be given personality.
S. Williams & A. De Mestral – Theories of Recognition
What is the actual effect of recognition? Two conflicting theories.
- Constitutive Theory – recognition has a constitutive effect F 0 E 0only 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 awaited for this purpose. Majority opinion supports this theory. Majority of laws are still binding on unrecog’d states or gov’ts. In reality both are partially true – it is declaratory based on factual qualifications and it is constitutive as it brings the state into the vacuum of international relations as an equal.
Both theories are open to abuse.
Express recognition versus Tacit Recognition
- With an unconstitutional change in gov’t, review occurs and decision is made F 0 E 0Clear and precise statement F 0 E 0 EXPRESS
- Business is carried on as usual – position is inferred by nature of relations with new gov’t or state. Recognition of State approach
- No recog of gov’ts – only states. F 0 E 0if asked if a new gov’t is recog’d, answer is only that there is a recog of states and not gov’ts and inferences can be drawn from relations.
Estrada Doctrine: Canada will only recognize states, not governments. Implication: A state is responsible for the international obligations of past gov’ts, whether they were constitutional or not.
- (^) At worst recog of gov’t could be at worst seriously detrimental or at best unnecessary.
- This is a version of the declaratory theory.
- Canada has shifted away from an express recognition theory. Tacit recognition focused on the principle of effectiveness combined with other principles (including HR, etc.) and Canada’s national interest.
Note that the principle of effectiveness is a recognition of a situation on the ground – does not take into consideration HR and self-determination. This has been rejected by Canada in their employment of the declaratory theory and the Estrada doctrine.
NOTE: Recognition must be clear and unambiguous – a state that signs a multilateral treaty cannot be assumed without question to recognize all other signatories.
- UN C. art 4 provides for admission of all “states” who satisfy a certain criteria F 0 E 0hard to argue that a member was not recognized.
Is there a duty to recognize if the criteria of statehood is satisfied?
Difference b/n recog of states and gov’ts
- Look to situation where gov’ts are or are not recognized F 0 E 0Situation of civil war. Two competing gov’ts (Spain in 1930’s
- facists and commis – or Angola, Sierra Leone)
government on the grounds that that government was unconstitutional.
Issues Costa Rica contends that the U.K. is stopped in its claim because it had not recognized the Tinoco regime. The U.K. claims that the Tinoco regime was a de facto gov’t.
Holding Non-recognition cannot outweigh the evidence of the de facto character of Tinoco’s gov’t.
Ratio • Recognition by other states is the chief and best evidence of the birth, existence and continuity of succession of a
gov’t.
- De facto character of Tinoco’s regime and the tacit recognition of state were taken into consideration. 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) but, the obligations were not upheld because the obligations contracted were contrary to the Constitution of Costa Rica at the time they were made
B – International Legal Subjects – International Organizations (IGO’s) Other candidates can have personality in terms of international law. To do so, the claim must be respected by other international persons – that is, by the existing community of states. This is based on the practice of the states – a functional question.
Chief candidates: International orgs, individs and “peoples” seeking self-determination.
UN C 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. UN has personality under the domestic laws of all its members.
Look to effectiveness of current set-up of the UN
- Illustration of current procedure is seen p.39 where questions asked with refs to UN charter.
- Posed: HAS time come to alter the composition of the SC? Is the permanent member status (and their ID) too much of a reflection of 20th^ C.
- How is it determined if an action of (say) the SC exceeds its powers? – Charter is silent – Art 96 of the UNC only says the SC or the GA can ask for an advisory opinion from the court.
There are well over 400 IGOs: 50 universal, rest regional
- Reparations case the only case dealing with their status as int’l legal persons
IGOs in Municipal Law
- Has to follow the laws of the state in which it is operating – ex. The UN in NY has to follow NY K law
- Usually has full legal personality in that state – Art. 104 UN Charter gives legal status to UN in states where it operates
- However, some IGOs have diplomatic privileges & immunities – Art. 105 UN Charter
IGOs in International Law
- Functional approach – IGOs have the elements of legal personality needed to exercise the activities delegated to them by their member states
- They can protect their rights & preserve their mandate
- Very few procedural rights – cannot bring binding case to ICJ (just reference questions)
- It is uncertain whether they are bearers of obligations under IL (i.e. if you could sue peacekeepers for actions taken while on duty – are they agents of the UN or of their state?)
Reparations Case
Jurisdiction Adv Op. [1949] IJC Rep. 174
Facts Sweedish national and a UN mediator killed in Palestine (Jerusalem which was under Israeli control)
Issues Legal capacity of the UN to bring a claim Can the UN bring a claim for compensation against Israel? Does the UN have international legal personality?
Holding Yes, but legal personality is unique and limited to functional approach
Ratio Practice – in particular the conclusions of the conventions to which the org is a party – has confirmed the character of the UN, which occupies a position in certain respects in detachment from its members, and which is under a duty to remind them, if need be, of certain obligations.
- 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 F 0 E 0practice 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 F 0 E 0conflict 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) Akhavan:
- Doctrine of Inherent and Implied powers : p. 45 top para F 0 E 0Powers not expressly provided in the Charter, the UN must be presumed to have those powers that are necessary to the performance of its duties.
UN High Level Panel on Threats, Challenges and Change
High -level Panel to assess current threats to international peace and security; to evaluate how our existing policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty -first century.
- The Panel’s insistence that we must see the interconnectedness of contemporary threats to our security is particularly important. We cannot treat issues such as terrorism or civil wars or extreme poverty in isolation. The implications of this interconnectedness are profound.
New UN proposal from the GA is to be tabled soon – not clear as to the shape of it.
- Proposes reform of SC
- Proposes establishment of a HR Council to replace HR Commission.
Organisation of the UN
- Key parts of the UN (SC, GA, Econo and Social Council, ICJ, Scretariat, Trusteeship Council)
- Secretariat is composed of SG and his staff – supposed to be merely implementing will of member states. No 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 explanded 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 prostit, Oil for Food scandal.
- Move to reform Office of Internal Oversight to ensure accountability.
Trusteeship Council
C – International Legal Subjects - Peoples
1) Individuals
Individuals have gotten standing in certain circumstances but it still may be difficult for individual to assert rights under international law. No doubt exists that an individ can be tried under international law:
- War crimes – against the laws of war
- Crimes against peace and security – initiating war
- Crimes against humanity – murder, extermination, enslavement, deportation and genocide.
2) Peoples Seeking Self-Determination
It must be considered as to whether principle of self-determination has achieved the statues of a rule of customary international law.
- (^) This is an assertion of collective rights – under the UN charter (in which self-determination is referred to but not defined) this right has been used as the basis for the decolonization of dependent territories during the 1960’s and 70’s
Art 1(2) UN C. To develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, and to take other appropriate measures to strengthen universal peace;
Art 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
Art 73 Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply. Discussion in class:
- Ethno-nationalism as basis for statehood? Kurds of Turkey were in situation where they were denied right to speak their language Is it a total waste of time to talk about self-determination as a legal concept?
- Mao – the barrel of a gun.
- Theory – imposition of Western style of gov’
Declaration of the Granting of Independence to Colonial Territories and Peoples
Art 3 – Inadequacy of political economic, social or educational preparedness should never serve as a pretext for delaying independence.
- Particularly interesting when compared with LofN article above talking about tutelage, etc.
- Is Art 3 a good idea? Prof refers to East Timor where UN was involved in the transition – should the UN be held accountable for its actions in this period.
- There is here a rush to self-determ which is understandable because of the treatment under colonial powers. But this rush has led to internal violence on many occasion (DRC for eg).
Controversy
- Rights asserted by every group seeking independence yet decried by every nation threatened with **dismemberment. Not clearly defined and therefore controversy over defn and scope.
- What does “peoples” mean – must they have a territory, similar ethnic background – what are the marks of** homogeneity?
Elements of a Nation Objective Elements: language, history, culture, religion, ethnicity
Subjective Elements: people must see themselves as different
- question F 0 E 0does the majority have to recognize them as a unique group as well?
- Yes: should prevent people from claiming rights on a superficial basis
- No: May limit legitimate efforts through ignorance, politics, etc.
Western Sahara Case
Jurisdiction Adv. Op. [1975] ICJ
Facts 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
Issues Issue of self-determination
Holding It is up to the people of WS to decide. Ancient ties to the territory are secondary.
Ratio • 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.
- Three possibilities in this case: emergence as Sovereign Nation; free Association with an independent state; or integration with an independent State.
- In all cases, wishes of the people must be taken into account.
- Separate judgment of Dillard J. – “It is for people to determine the destiny of the territory and not the territory the destiny of the people. Was never terre nullius as there were people on the territory. They had some form of organization.
East Timor Case – Portugal v. Australia
Jurisdiction [1995] ICJ
