PIL Summary

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PIL Summary
Quick method
1. Who has sovereignty over what?
a. Is there a state?
b. Soverignty over land
c. Sovereignty over land
2. Who has jurisdiction over what?
a. General rule: you only have jurisdiction where you have sovereignty
b. Exceptions: enforcement and prescriptive jurisdiction
c. Exceptions: jurisdictional immunities
d. Minimum treatment of foreigners
3. Jus Cogens, customary applies everywhere
4. Treaty jurisdictions
a. Depends on if a state ratified it
b. ICC has its own rules
c. ICJ has its own rules
d. ICCPR, ICESCR has its own rules
5. Things you can breach
a. Human rights,
b. use of force/jus ad bellum,
c. War crimes jus in bello,
d. UNCLOS
e. Sovereignty
6. What is the remedy?
a. Treaty-based?
b. State responsibility
7. Any defences? (7)
Table of Contents
I - Intro .......................................................................................................................................................... 3
II - THE STATE: THE HOLYEST OF BEINGS ..................................................................................... 3
A - State Formation .................................................................................................................................... 3
B - State Continuity .................................................................................................................................... 4
C - State succession .................................................................................................................................... 4
III - Sovereignty over Land ......................................................................................................................... 5
A - 4 Types of Territory ............................................................................................................................. 5
B - Gaining sovereignty over land: Primary Title ...................................................................................... 5
C - Acquiring territory once held by another state: Secondary Title ......................................................... 6
D - The Right of Self-determination? ........................................................................................................ 7
E - Consequences self-determination ......................................................................................................... 8
IV - UNCLOS ............................................................................................................................................. 10
A - Inland Waterways .............................................................................................................................. 10
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B - Internal Waters ................................................................................................................................... 10
C - Territorial Sea & Internal Waters ....................................................................................................... 10
D - Contiguous Zones .............................................................................................................................. 11
E - International Straights ........................................................................................................................ 11
F - Exclusive Economic Zones ................................................................................................................ 12
G - Continental Shelf ............................................................................................................................... 12
H - UNCLOS Dispute Settlement for Overlapping Claims ..................................................................... 12
I - High Seas – Res Communus ............................................................................................................... 13
J - Common Heritage of Mankind/Deep Seabed ..................................................................................... 13
K - The Poles ............................................................................................................................................ 14
L - Space & Moon .................................................................................................................................... 14
V - State Jurisdiction ................................................................................................................................. 15
A - Overview ............................................................................................................................................ 15
B - Enforcement ....................................................................................................................................... 15
C - Prescriptive ......................................................................................................................................... 15
D - Constraints on What a State can do to Foreigners ............................................................................. 17
E - Diplomatic Immunity ......................................................................................................................... 17
F - State Immunity ................................................................................................................................... 18
VI - Substantive Issues 1: Use of Force .................................................................................................... 18
A - General ............................................................................................................................................... 18
B - Jus Ad Bellum .................................................................................................................................... 19
C - Jus in Bello ......................................................................................................................................... 19
VII - Substantive Issues 2: International Human Rights ....................................................................... 21
A - UN Charter & Human Rights ............................................................................................................ 21
B - UDHR – Customary Intl Law ............................................................................................................ 22
C - ICCPR ................................................................................................................................................ 23
D - ICCPR UN Human Rights Committee & ICCPR OP ....................................................................... 23
E - ICESCR .............................................................................................................................................. 24
F - Jurisdiction.......................................................................................................................................... 21
VIII - Substantive Issues 3: ICC ............................................................................................................... 24
A - Substantive – Crimes covered by the ICC ......................................................................................... 24
B - Procedural .......................................................................................................................................... 26
C - History ................................................................................................................................................ 27
IX - Sources of International Law ............................................................................................................ 27
A - 1. Treaties ........................................................................................................................................... 27
B - Customary International Law ............................................................................................................. 32
C - General Principles of Law .................................................................................................................. 33
D - Judicial Decisions & Teachings of most Highly Qualified Publicists ............................................... 34
E - Unilateral Promises ............................................................................................................................ 34
X - State Responsibility (Remedies).......................................................................................................... 38
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A - ILC 2001 Draft Key Features ............................................................................................................ 38
B - Rights of Injured State under state responsibility .............................................................................. 39
C - Responsibilities of Breaching state under state responsibility ........................................................... 39
I - Intro
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Definition of international law : body of rules pertaining to the relation between political staes
State: a community of people living in a defined territory and organized under its government.
Sovereignty Definition:
o Autonomy in foreign relations (state chooses its own)
o Exclusive competence in internal affairs
Sovereign equality: all states are equal(ly sovereign?)
Positivist (just a bunch of contracts) v normative (higher ethic; some higher norms by which the sate is
bound) views of international law
International Politics: anarchic system, realism, liberalism, critical theory, English school.
II - THE STATE: THE HOLYEST OF BEINGS
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What is this beast international law (and Craig) is so fascinated by?
A - State Formation
Modern criteria for being a state
1. Permanent population: doesn’t matter what it is, but has to be permanent
o (nomads may not count if they move in and out of state boundaries, unless there is a core group)
2. A defined territory
o Defined geography, occupied by the entity claiming to be a state
o Can still be defined enough if it has border disputes
3. An effective government
o Some system of of government that has effective control over a territory
o Finland Case
 Group of islands wanted to be with Sweden, not Finland
 the ICJ question was: do the islands belong to the Swedes or Finland?
 TEST: Finland became a state when a stable legal entity had been created, and it could assert
itself
o Congo
o So there was no government to speak of, and peacekeepers on the ground
o The UN quickly started accepting new states with shaky control over their territory,
including the Congo
o Finland case relaxed during colonization
4. A capacity to enter into relations with other countries
 Must have political, technical and financial ability to do this
 Taiwan: has ability, is a state, but UN doesn’t recognize it; does it really have 4th prong of
statehood?
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Vatican See: is a state, but should it be, on moral grounds
State Recognition
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What is recognition: the free act by which one or more states acknowledge the existence of a definite
territory of a human society politically organized….
o Simple: a formal acknowledgement by another state that an entity possesses the qualifications
for statehood
Constitutive theory (dead): recognition essential to endow a state with its legal personality
Declaratory theory (live): simply declares the facts of a state achieving statehood
Government Recognition
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Estrada Doctrine: states don’t make any statements of recognizing governments; sometimes make
statements of disagreement, but this is seen as political interference.
Rights and Duties of a State
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Sovereign Equality of States
o Exclusive control over own affairs: Sovereignty is taken to connote “independence” defined as
the right to exercise ‘within a set of national territory’, to the exclusion of other state, the
functions of a state
o Equally sovereign: all states have equal rights and duties and are equal members of the
international community, notwithstanding differences of an economic, social, political or other
nature”
This customary law is so entrenched is basically jus cogens
B - State Continuity
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Doctine of state continuity: a state continues to exist irrespective of changes in government (even if
illegitimate), until extinguished by absorption by another state or by dissolution
o Requirements for states to persist are more generous than for them to come into existence
o BUT this means agreements made by a state continue when a new government takes power
(Tinoco)
Tinoco
o Costa Rican case where a dictator takes power, makes some deals with international investors,
including the royal bank of Canada: they paid for his contingency fund, should he need to flee
and to pay his brother a salary.
o Court did not enforce the agreement
o If the government is illegitimate by national law, that’s fine; if it’s illegitimate by international
law that’s a different story
Exception 1 to state continuity : Because agreements during occupation (ie governments installed by
illegal international means) do not bind the state
Exception 2: Doctrine of odious debts: has had limited traction in international law
C - State succession
How does law apply to new states?
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When one state merges into another: Surving stat’s duties persist, but the disappearing one’s perish;
only when absorption is legal
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A state acquires new territory: new state’s obligations extened to this territory
Emergence of new states
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Transmissibility: non-transmissibility of state rules when new states enter the international aren
o The old rule was that new states inherit obligations of states from which they emerge, became
unpopular with USSR (did not want to be bound by Russia’s agreements) and decolonization
Clean slate for treaties, but customary international law would bind all of them
Exceptions to clean slate:
o Treaties relating to territorial uses (eg. Navigation)
o Treaties realting to its boundaries
o Human rights? Could be, but unsure.
III - Sovereignty over Land
A - 4 Types of Territory
1. Territory over which states have sovereignty
a. Territory that comprises the state, over which it has full sovereignty
b. Most of this is land, but includes inland waters and margins along the land, the so-called
territorial sea
2. Res Nullius
a. Terra nullius
b. Legally capable of forming the territory of a state, but has not been claimed yet
c. Not at present import in modernity, it is historically important; defining elements of acquiring
territory in colonial times
3. Res Communus
a. Physical space that cannot physically speaking be owned by any country
b. High seas and outer space
c. Resources are free for all here
4. Common heritage of human kind
a. Subset of res communus, includes seabed and moon
b. Geographical space where resources are not subject to unilateral exploitation by any single state
B - Gaining sovereignty over land: Primary Title
Primary title: Where the state is the first state entity to assert sovereignty over a given chunk of territory, the
primary claimant on that territory. Several ways to get primary title
2 ways to acquire primary title
a. Accretion: when new land is formed through natural or artificial addition of land; this usually
belongs to the territory who’s land to which this addition adds
i. Artificial land may be more about effective occupation
ii. Major ways rivers can add to state territory
b. Effective occupation of terra nullius
 You get discovery before effective occupation
o Doctrine of discovery (Johnson v MacIntosh) : nation was given exclusive sovereignty
over discovered lands as against all other European states
o This unjust concept has been rolled back only recently through property law (through
aboriginal title)
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 You need 2 things effective occupation:
i. The effective and continuous display of state authority
1. Presence or power over a territory (à titre de souverain; that is, official state acts)
2. Private citizens don’t count; but state companies might still be ok, if they got
delegated ‘crown’ powers
ii. Demonstrating intent to establish and maintain sovereignty over the territory
1. Where do you get all these circumstances?
2. Setting a military base is enough
3. Sailing a ship through seas you claim are your territorial seas may also be enough
Consistent with doctrine of possession: you need sufficient control over the thing, and intent to have
control of that thing (the res)
It was customary int’l law that only civilized states could have sovereignty for a long time
Western Sahara Case: court is receptive to people of nomadic or tribal nature, having territory, and
not being terra nullius
Scramble for Africa
iii. Berlin act 1885: XXXV, the signativy powers of the present Act recognize the obligation
to ensure the establishment of authority in the regions occupied by them on the coasts of
the African continent sufficient to protect existing rights, and as the case may be,
freedom of trade and of transit under the conditions agreed upon.
1. Article 34 of this act states that any country that took possession of an African
coast, or named themselves a protector of such a coast, had to inform members of
Berlin act, or it would not be recognized
2. Introduced idea of sphere of authority;
iv. Discovery became useless concept to divide up the fuzzy boundaries of Africa; crowded
continent
v. Doctrine of discovery and effective occupation were both developed by European
priorities
 Eastern Greenland Case: Effective occupation is not a very tough test:
vi. Denmark claims to have sovereignty over the entire island of Greenland, despite have
presence in only a part of the island
vii. Brings a case to the ICJ to have the court declare Norway claim to Greenland illegitimate
(it does)
viii. And the increasing activity on Greenland by Denmark was enough to show they had
sovereignty over the whole island
ix. Indigenous populations did not matter in this case.
C - Acquiring territory once held by another state: Secondary Title
5 ways of doing this:
1. Prescription: the first sovereign state can be displaced by the second through a peaceable occupation
with sufficient intent of a second state
a. Applies to territory that is already part of another state;
b. Much like adverse possession
c. This is not conquest; peaceable occupation has the effect, over time
 Palmos Case:
d. An island that US owned, after a war in Spain
e. US title was predicated on the Spanish title which had in turn been based on doctrine of
discovery and occupation
f. Island of Palmos was considered by the Dutch to be part of the Dutch east indies
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2.
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g. The question for the arbiter was who had it? US or Dutch
h. Spanish could not transfer more than what they had, and had never done anything more than
i. US advanced broad notion of discovery: seeing the island was enough to discover the land;
arbitor says no.
j. Even if Spain had had such title, the question is whether they still had it when US; 19th century
demanded effective occupation, at the time of transfer of title
k. Dutch continuous and peaceful presence on the island displaced US/Spanish authority
i. They were peaceful, not clandestine (open about it) for sufficient period of time
Conquest: used to be allowed, now illegal
a. War crime of aggression, not recognizing ideas of non-violence
b. Eg 1st Gulf war: Iraq tried to conquer Koweit, and was repulsed by international community
c. Inter-temporal law (the validity of an act is judged by law at the time, not current law): rule on
conquest now does not vitiate the territories acquired this way in the past
Cession: given from one sate to another under international agreement
a. Duties and rights of previous state still apply (?)
b. Eg. Alaska
Renunciation: renouncement land by one state, passing into the hands of another state which exercises
sovereignty (associated with decolonization)
Abandonment: there is no successor state after renunciation by one state; land left as res nullius
a. International law has a presumption against abandonment;
b. You need something more than just negligence (like, for example, showing intent to abandon)
Self-determination of people: when countries can get hived off of an existing state, or states fracture
D - The Right of Self-determination?
The Right of Self-Determination: International right of a group having a separate and distinct identity to
govern itself and to determine the political and legal status of the territory it inhabits
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“all peoples have the right freely to determine, without external interference, their political status and to
pursuer the economic social and cultural development”
Recognized in
o customary international law
o UN Charter article 1(2) and 55
o Codified in conventional international law like in ICCPR and ICESCR
o African human rights charter puts a great emphasis on collective rights and says that nothing
shall justify the domination of one people of another
General fear that right of self-determination will be used to dismember states
o International law is supposed to be about states and stability
o This is why the right is limited to peoples, not minorities
o UNGA statement on the friendly relations between states: Self-determination may not be used to
dismember or impair the territorial integrity or political unity of sovereign an independent states
conducting themselves in compliance with the principle of equal rights and self-
Contents of the right of self-determination
Requirements of self-determination are subject of debate
1. “A people” (as distinguished from a minority)
o Minorities do not possess a right to self-determination,
o A people: share common ethnicity, history of persecution, etc... aka ethnic homogeneity of some
degree
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o UN Special rapporteur on the sub-commission on prevention of discrimination and protection of
minorities identified a number of qualities of ‘a people’:
 The term people denotes a social entity possessing a clear identity and its own
characteristics
 Relationship to a territory, even if they’ve been kicked out
 Cannot be confused with an ethnic, religious or linguistic minority, which are protected
by ICCPR
o But a lot of countries do not have this ethnic homogeneity, eg decolonized state, so ethnic
homogeneity is not a concept to get hung up on for ‘people’
2. Non self-governing status
o UNGA Resolution:
o It’s not enough to be a people to have self-determination, you need to not be able to govern
yourself, (UNGA resolution above suggests that if your government represents you well, you
have no right of self-determination)
o Self-determination in international law has been invoked in the context of colonial and non-selfgoverning peoples (as well as perhaps peoples struggling against severe repression).
o The final decision of the secession reference by SCC said that Quebec had its own government,
so it could not secede
o ICJ applied concept of self-determination in relation to Palestinians in isreali wall case, also east
timor
o Other circumstances are more contentious in cases of indigenous people
Rights of indigenous people in UNGA declaration (resolution
 Canada resisted it, even though it has no force or legal effect; They cared because of creeping
evolution of norms
 It resisted the self-determination provisos in here
 Eventually signed in 2010 with a statement that said the resolution was not customary inernaitonal law
or change international law
o Article 3 talks about indigenous people being able to freely declar their political status to freely
pursue their economic, social and cultural development
o Article 4 acknowledges the indigenous rights to autonomy and self-government when it it comes
to local and internal affairs
o Article 5 allows for a right to maintain and strengthen their distinct political, social,e conomic
and cultural institutions
o Article 26 says that indigenous people have a right to the lands, territories and reosurces on
which they traditionally inhabited, and it directed states to recognize these rights
E - Consequences self-determination
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3 possible outcomes, described in UNGA Resolutions 742 and 1541 (hard to determine if a people has
met the criteria for each type, on the ground).
1. Emergence as a Sovereign, independent state
2. Free associate with an independent state
a. They are concerned of process and not just outcome in UNGA
b. Free association “should be the result of a free and voluntary choice by the peoples of the
territory concerned, expressed through informed and democratic processes.” (aka referendum)
3. Integration with an independent state: “should be result of the freely expressed wishes of the territory’s
peoples… their wishes having been expressed through informed and democratic processes, impartially
conducted and based on universal adult suffrage”
a. This is technically the case of Crimea; they were part of Ukraine until 2016
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i. Ethnically, Crimea has long ties to Russia, and was part of USSR until 1964 and was
transferred for administrative reasons
ii. Ukraine wants to be part of EU, but then Russia gets mad and walks into Ukraine, does a
referendum and Crimea and get crimea to integrate Russia
iii. So is this legal? There needs to be a free and democratic process (west view is it wasn’t,
and expression of self-determination not there; they see it as conquest; Russia says it’s
just self-determination)
4. Uti Possidetis: Integrity of boundaries: former colonial boundaries graduate to international boundaries
upon independence
ICJ Cases (Self-Determination Denied Politically)
Western Sahara Case
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Spainyards first arrived long ago, attackers sacked their fort in 1500s and did not return until 1884
In 1950s they discovered significant mineral resources inland; especially phosphates, and drove many
settles to work in mining and go to cities
Berbers and arab bédouin had lived their lives uninterrupted up until this point, but started giving it up;
started developing SUPER-tribal identity
Wanted to be an independent state; Mauritania and Morocco wanted to prevent independence.
Issue 1: Was Western Sahara terra nullius at the time of colonization by Spain? Answer is no:
inhabitants had sufficient social and political control
Issue 2: What were the legal ties of this territory with the Kingdom of Morocco and the entity that
would become Mauritania?
 ICJ rejected a tie between peoples as a valid claim for sovereignty; these societal characteristics
were given more weight
 Thus, Mauritania and Morocco just having ties to the people in western sahara was not enough to
claim sovereignty
East Timor Case
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Same year that sahara decision was made by ICJ, Indonesia invaded east timor, and incorporated it in
republic
UNSC still says that east timor is part of Portugal;
Court agreed with Portugal about right to self-determination being erga omnes, but it could not rule on
indonesia’s actions, and decided it did not have jurisdiction
BUT in 1988, authoritarian ruler died, a referendum for east timor was made; east timor voted for
independence, but pro-independence Timorese were rounded up and killed
Australia recognized that Indonesia had control over east timor, so that it could make a treaty on oil
beds between their seas
Other examples
Kurds: you never know what would happen if we dismember Iraq and allowed Kurdistan to be a state, then ISIS
might become a state!
Kosovo: Serbia doesn’t want Kosovo to be a state; NATO intervened to make it a state; ICJ says there’s nothing
in international law that stops Kosovo from being a state
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IV - UNCLOS
A - Inland Waterways
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Water inside state borders: eg. Lakes or rivers
More problematic: bodies of water bordering 2 states
o Usually governed by binational body, eg. Canada-US treaties on this
Default rules on internal waterways
o general rule: where a river separates two or more states, the riparian states enjoy sovereignty up
to the medium filum acquae (the middle line of the river) usually the deepest part of navigable
water
o if the river is almost entirely in a given state’s territory, that state cannot do whatever it wants to
that international waterway
 principle in property law that you cannot use your property in such a way that it causes
injury to the territory of another state
o Where a water resource is shared between 2 states, the general rule likely is equitable and
reasonable and sharing of the resource.
NOW: OCEANS
B - Internal Waters
C - Territorial Sea & Internal Waters
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Article 2 of the LOS convention: Territorial Sea extends 12 miles from the coastal state’s baseline; a
belt around the state
o States have sovereignty over air, sea, seabed and subsoil, subject to innocent passage
o Baseline: nominally the coastline of the state
Straight baseline
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o First came up in Anglo-Norwegian Fisheries Case: Can Norway draw a straight baseline since its
coastline is so jagged?
o Court ruled: Yes; would be such a non-sensicial baseline otherwise, and impossible to enforce
Article 7: where the coastline is deeply indented and cut into, or if there is a fringe of islands along the
coast in its immediate vicinity, you can use the straight baselines as well
Article 10: a indentation is a bay so long as its area is as large or, larger than, that of a semi-circle whose
diameter is a line drawn across the mouth of that indentation of less than 24 miles
Historic bays: Bays that stsates claim have historically been theirs, so they claim full soverieignty to it
despite the rules on bays (eg. Hudson’s bay in Canada)
General straight baseline rules:
o Cannot depart from general line of the coast;
o Account may be taken of the importance of certain waters by the state(s?) concerned, as
evidence by long usage
Internal Waters: sea landward of the baselines. States have full sovereignty over these waters, which is why
there is so much controversy around states creating excessive baselines
Right of Innocent Passage:
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Article 17: ships of all countries, whether coastal or landlocked coountries, enjoy the right of the
innocent passage in territorial seas
Meaning of Passage:
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1. navigation for the purposes of traversing territorial sea, without entering internal waters or
calling upon a port
2. OR for the purpose of proceeding to and from internal waters so as to call upon a port
o Characteristics:
 The passage must be continuous and expeditious;
 May include anchoring, but only if it is incidental to ordinary navigation or is necessary
for certain emergency reasons (eg. Force majeure, distress or rendering assistance to
other ships)
Meaning of innocent: innocent so long as it is not prejudicial to the peace, good order and security of
another state
o Warships can include innocent passage, so long as it is not doing warlike things or otherwise
breaching the aspects of innocent passage
o No use of force or pollution
Jurisdiction over territorial water
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State ships: Military and other government ships exercising innocent passage are absolutely immune
from coastal state’s jurisdiction
Private commercial ships: Coastal states do have some jurisidiction
o Generally cannot apply their law to criminal acts occurring on board that vessel
o But they can apply the criminal law in aspect that affect the coastal states’ interest. Eg. People
smuggling
Private commercial ships leaving internal waters: broad jurisdiction
o They have criminal and even a bit of civil jurisdiction
All: Coastal state is free to pass laws on freedom ad safety of navigation and issues related to its
territorial sea; or laws preserving its natural environment
o Coastal state are allowed to require ships using their territorial sea to use designated sea lanes
and traffic separation schemes, where safety requires this
D - Contiguous Zones
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Article 34: contiguous zone may not extend beyond 24 nautical miles from which the breadth of the sea
is measured.
In the contiguous zone may exercise the control necessary to:
o Prevent infringement of its fiscal, customs, immigration or sanitary laws within its own territory
or territorial sea
o Punish infringement of the above laws committed within its territory or territorial sea
E - International Straights
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Ships have a right of transit through international straights
Article 38 UNCLOS: all ships and aircraft enjoy the right of transit passage, which shall not be impeded
o Transit passage is broader than innocent passage
o Transit passage: the exercise of the freedom of navigation and overflight solely for the purpose
of continuous and expedeitious transit of the transit to get from one part of the high sea to
another (or to an EEZ)
o NO criminal or civil jurisdiction over the ships going through
o Ships in transit passage can’t use force against the sovereign integrity of the states that border
the state, and states can regulate the border navigation and pollution of the straights
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Article 44 of UNCLOS: straight-neighbouring states shall not hamper passage, and shall give
appropriate publicity to any danger to navigation or flight over the straight of which they have
knowledge.
Example: Arctic Passsage
o Canada has claimed straight baseline around the arctic, claim archipelago as internal islands
o 1967 dimplotic note: US considers the actions of Canada to be without legal justification;
contrary to UNCLOS
o Still fighting over this lol
What constitutes an international straight?
1. Narrowing of the sea between 2 tracts of sea
2. A straight that international ships must go through
F - Exclusive Economic Zones
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States have important economic interests that extend beyond their territorial seas
Iceland v England: Iceland argued that it had a right to fish for 50 NM, when territorial sea was 2 NM;
England disagreed
o Court ruled that: intl customary law allowed for fishery zone between high sea and territorial sea
An EEZ is:
o Article 55: an area beyond and adjacent to the territorial sea
o Article 57: shall not extend more than 200 nautical miles for the breadth of the baseline
o Starting point for ALL these calculations is the baseline, that’s what makes it so importat
In the EEZ, country has exclusive right to exploitation of all living or non-living resources in the waters,
seabed and the subsoil
Article 61: Responsibilities that come with EEZ are that coutnry must manage EEZ resources to avoid
exploitation
Other states are entitled to access the living resources found in the EEZ to the extent that the coastal
state itself does not maximize usage (?)
G - Continental Shelf
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UNCLOS: continental shelf is defined as the sea-bed and subsoil that extend beyond states territorial sea
through the natural prolongation of its land territoriy to the outer ed ge of the continental mainland
o Maximum continental shelf distance from coast is 350 nautical miles from the baseline or 100
nautica miles friom the 2 500 isobath (whichever one you prefer)
Rights & Responsibilities of coastal shelf
o Article 77: coastal state exercises exclusive sovereign rights for the purposes of exploring it and
exploiting its natural resources
o Article 82: coastal state must make payments in respect to exploitation of non living resources in
continental shelf that goes beyond the EEZ
o For that extra long and broad continental shelf that goes beyond 200 nautical miles, there’s a
resource extraction equity concept so that the profits are equitably shared (to some degree)
among UNCLOS parties.
H - UNCLOS Dispute Settlement for Overlapping Claims
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Article 15, Partitioning territorial seas: the territorial seas of 2 countries are opposite or adjacent each
other, each state may extend its territorial sea to the medium line that is equidistant from the state’s
Baseline; they partitition the distance
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o Unless the staets otherwise agree (may be historical reasons for this)
Article 74: divides up EEZs, but rule is more ambiguous
o Delimitations of the EEZ between tates with oposit eor adjacent coasts shall be effected by
agreement on the basis of international law, in order to achieve an equitable solution
Article 83: Continental shelves: delimitation of the contintental shelf with opposite or adjacent coasts
shall be effected by agreement on the absis of international law in order to achieve equitable solution
o UNCLOS
I - High Seas – Res Communus
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Article 87, Definition: on these commons all states have freedom of the high seas, such as freedom of
navigation or overflight
o
Article 89: no state may validly purport to subject any part of the high seas to its sovereignty
Limits to freedom of the High Seas



Article 111, hot pursuit: where a state has good reason to believe that a foreign ship has breached its
rules in regulations there is a right of hot pursuit if it started in the contiguous zone (potentially EEZ and
continental shelf too), and it was continuous
Article 100, piracy: all states are to cooperate to fullest in the suppression of piracy in high seas or even
non-high seas
Article 94, ships & flags: All ships are to have nationality, and be regulated by the states whose flags
they fly
o Stateless ships may be boarded or seized by the ships of any state
o States can give nationality to any ship, and gives that ship its rights over the high seas (eg.
Freedom of navigation)
o All states are responsible for administration of ships flying its flagged
o States are supposed to police their own ships; they have exclusive jurisdiction over ships that
raise its flag
Flags of Convenience




Where a state will allow a ship that has a closer link to another state to fly its flag
For lax ship regulation and labour laws
Major sources of pollution and safety issues, 46% of all losses in tonnage accounted for by 8 states
There are efforts to fix this:
o 1958 Convention on the High Seas tries to fix this: Effort to require genuine link between state
and ship
o UNCLOS tried to do this too
o UN Convention on the Conditions for Registration of Ships: Effort to force economic link
between state and ship, but it is not yet in force
J - Common Heritage of Mankind/Deep Seabed



Seabed beneath high seas; used to be res communus
But developing countries are very concerned that developed countries will take all the resources before
they are ever in a position to develop tools to access it.
Under UNCLOS
o A new category created, called common heritage of mankind
14
o Rules (complicated) in place under UNCLOS to exploit the deep seabed
o You must obtain approval under special UN body, and systems are in place to compensate
developing countries from competition of the deep seabed
K - The Poles
Arctic



It is ocean covered by non-permanet (atm) ice cap
Nothing unique about this in terms of its ability to bear life, to be land
Establishing the requisite control over this is difficult; to establish effective occupation
o Canada’s apopraoch: Inuit resettlement to Grise Ford from north of quebec
o They tried to colonize the arctic so we have better territorial claim
Arctic Water




How to divide it up
Sector theory: not good law; extends the arctic by divvying up the arctic by pie slices according to our
proximity to arctic
Nowadays seems governed by UNCLOS rules; including straight baselines rules
o Canada has drawn straight baselines around northern archipelago, and projected its territorial
seas outwards from those baselines
Canada argues that Northwest passage is not international straight
o 1988 agreement where it agreed not to send ships through the passage unless it had Canadian
permission, but refused to recognize it as Canadian internal waters
o Truce of sorts now, but may reignite with global warming
Antarctic


Antarctic Treaty of 1959 nullified any territorial claim to allow it to be managed internationally
o All areas south of the 60th parallel are reserved for peaceful, scientific research
o It is a non-military zone
Preserve res nullius: Current claims are on hold indefinitely
L - Space & Moon


Outer space treaty
o Ratified by over 100 states
o Tried to solve problems of sovereignty before the arise
o Outlaws claims of sovereignty in outer space and on celestial bodies; creates res communus
o “exploration of space should be carried out for the benefit of all ppl’s, irrespective of their
scientific or economic development “
Moon treaty
o Governs activities of states on moon
o A dozen states, none of which engage in state exploration, and no developed states, have signed
o Has strong common heritage of humankind language, does not allow any sort of property right
claim
15
V - State Jurisdiction
A - Overview
Jurisdiction Definition: A government’s powers to exercise authority over things and persons;
 most important part of sovereignty, but doesn’t square 1 to 1 with territorial sovereignty
 2 types: enforcement AND prescriptive
o Enforcement: when you are allowed to ENFORCE your laws on other state’s territories
o Prescriptive: when your laws APPLY to other territories (still doesn’t give you the right to go
enforce them in another country’s state)
o Difference comes from SS Lotus case
 Cases where you don’t have jurisdiction within your state
o Diplomatic immunity:
o State immunity:
B - Enforcement




Definition: when you go into another territory to enforce laws (your own, international or their law?)
Short and sweet: it’s not allowed
Example: US v Alvarez-Machain:
o US apprehends a doctor in Guatemala, Guadalajera for murder of US drug agent
o Stood chargesin Los Angeles
o US Court decides that, even if someone is kidnapped, they retain jurisdiction to try the person,
even if other country protests
Extradition treaties
o Countries conclude these (very common) to exchange prisoners between states, to avoid
destabilizing practice of kidnapping people from other countries
C - Prescriptive
Definition: when your laws APPLY to other territories
6 types of prescriptive jurisdiction:
1. Events Connected to the Territory
a. circumstances where part, but not all, of the impugned activity takes place on the territory
b. Example: Someone shoots a gun across a border, hitting someone on the territory of another state
c. Contentious example: suppliers of nickel in Canada conspire to raise prices in Europe
2. Effects Doctrine (US) – Contentious
a. US argues: it may regulate/prosecute actions when an entirely overseas action by foreigners has
sufficient deleterious effecs on the US
b. Example: marketplace interference in context of anti-trust and competitions laws
c. Contentious: Canada has passed laws that make it illegal to obey this (ie to obey regulations of other
countries on competition laws over its own
3. Nationality Principle
a. A state may pas a law regulating the overseas conduct of its own nationals
b. Example: Canada has made it a crime for Canadians to have sex with children overseas
4. Passive Personality Principle
16
a. variant of the nationality principle, but here the state seeks to regulate an act committed aborad by a
non-national were the victim is a national
 Example: German Penal Code; Germany penal code: allows application of criminal code to people
who do crimes against German nationals; rare for countries to be so willing to do this
5. Protective Principle
a. Regulation of overseas conduct of the sort that jeapordizes the state’s key interests
b. Against the STATE itself (ie not individuals)
c. Eg. Espionage, counterfeiting, conspiracy to violate immigration or customs law
6. Universal Principle
a. Crimes so heinous that any state may seek to regulate/prosecute them irrespective of where they
occur. Examples: Crimes against humanity, piracy, certain crimes of terrorism, war crimes.
b. The only one completely unconnected to a state’s territory
c. Example: Crimes Against Humanity and war crimes act RSC 2000
i. Everyone is indictable for that offense, AND
1. so long as they were a Canadian national OR
2. Offence is against a Canadian national OR
3. In an armed conflict in which Canada was involved or allied
4. The person was a citizen of a state engaged in armed conflict against Ottawa
ii. they were presented in Canada at some point after or during the crime being prosecuted
What are the rules regarding nationality




Needs to be determined for nationality principle and passive personality principle
Nationality (usually) acquired by
o jus soli: birth in the state’s territory
o Jus sanguinis: nationality as a result of having parents from a country
o Naturlaization: you apply to be a citizen and are accepte
 There are rules surrounding this
Nottenbohm Case: you get the RULE of genuine factual link from this case: A national cannot benefit
from the protection of a state unless they have a genuine factual link with that state
o Germany guy lived in Guatemala, naturalized in neutral Lichtenstein when WW2 broke out, got
kicked out of Guatemala for being a German
o Court ruled that Lichtensetein’s claim against Guatemala was not possible based on above rule
Barcelona Traction RULE: A corporation’s nationality is determined by the country in which its head
office is incorporated (or where it is first incorporated)
o Barcelona traction, incorporated in Canada, subsidiaries in Spain and shareholders in Belgium,
was nationalized by Spain
o Belgian shareholders lost a lot of money as a result, so Belgium brought a case against spain
o Court ruled that only Canada could bring a claim against spain, because only the country of the
nationality of the company could bring a claim on its behalf (?)
Eichmann Case
 Eichmann = WW 2 Nazi bigwig, Fanatically committed to genocide; he was upset that only 150 jews
had been arrested in France and shipped to camps
 Lived in Argentina, captured and tried by Israel ‘volunteers’ (actually Israeli intelligence)
 Israeli courts ruled that they could try him
o the legality of the means by which the accused was within its territorial jurisdiction did not
matter to the question of whether or not they could try him
o That was a matter for Argentina to complain about, as their sovereignty was injured
 Argentina tried to say that it would try him, but to no avail; he was sentenced to death in Israel
17
D - Constraints on What a State can do to Foreigners



Visiting foreign nationals are not immune to state laws, they must comply; but it must extend certain
principles of basic treatment to foreigners
Colonial roots: to ensure Europeans were protected.
3 views as to protection of foreigners
o Nationality: states have to accord foreigners the same treatment as their nationals
o Universal: international law sets a basic floor for treatment of foreigners (eg. Human rights)
Neer Case: Gives us first rule of minimum treatment of foreigners


American killed in Mexico, brought under US-Mexico Claims Commission
basic conception of minimum treatment of aliens: to be a violation of international law, the treatment of
the alien should amount to an outrage, to bad faith, to willful neglect of duty or to an insufficiency of
governmental action falling really short of reasonable standards.
NAFTA: minimum treatment standard is more exacting nowadays


Standard nowadays: hinges on whether act is unfair or unreasonable, inflicting serious injury to
established rights of foreigners
NAFTA chapter 11 (like many other treaties nowadays)
o states both national principle and minimum standard: investors be treated no worse than
investors from the receiving country AND
o each party shall accord to investors of another party treatment in accordance with international
law including fair and equitable treatment and security
Expropriation: Violation of international law to take the property of national of another state IF



It is not for public purpose
It is discriminatory
Is not accompanied by provision for just compensation
o This has been thoroughly challenged by ‘3rd world’
o BUT BITs usually enforce it, so challenges are moot now
E - Diplomatic Immunity



Covered by Vienna Convention on Diplomatic Relations (VCRD)
Who is Covered? Article 1
o Diplomatic agent defined as: the head of diplomatic mission or a member of the diplomatic staff
of mission
o diplomatic mission is a diplomatic accreditation from one state to another
o Both diplomatic agents and its premises are accorded immunities; AND the members of the
family, if they are not members of the accredited state
Contents of immunity/inviolability?
o State cannot pass laws in relation to acts or omissions by the diplomatic agent in the exercise of
his functions
o Subject to laws generally, but laws of general applicability cannot be enforced against them
o Immune from detention, criminal process, civil proceeding in/of host state
Host state responsibility
o Must protect the diplomatic agent and diplomatic mission premises
o Cannot enter diplomatic premises without permission
18

o Is diplomatic mission part of sending or host state’s territory?
Exceptions to state immunity
o If the diplomat’s immunity is revoked by sending state
o If the diplomat is declared persona non grata
 Extreme measure, if the diplomat runs amuck, and often results in tit for tat expulsions
 Must put the diplomat’s state on notice, give sufficient time (custom: at least 2 weeks)
for diplomat to remove him/herself
F - State Immunity


State immunity is owed to another country, NOT to the individual (Check this)
Origin: The Schooner Exchange (US Supreme Court): immunity is rooted in the perfect equality and
absolute independence of sovereigns; it is a stabilizing rule
Two types:


Rationae personae: state immunity that exists by reason of the person concerned
o Immunity exists to certain key representatives of the state for as long as they hold office
 the foreign minster
 the head of government AND/OR state, etc…
o The reason is that they need to act unimpeded from meddling from other state’s courts
Rationae materiae: state immunity that exists by reason of the matter concerned
o The subject matter of the act is concerned, not the person
o Commerical acts by states often not covered by this; efforts to restrict rationae materiae
Pinochet Case, Rationae Materiae v Human Rights



Facts: Pinochet tortured and murderd in Chile after his coup
Went to UK for medical stuff AFTER he was no longer president (rationae personae thus no longer
applies)
Held by House of Lords
o Whether an act is accorded protection must be in accordance with international law
o Can an international crime ever be afforded protection by rationae materiae
o Decided that not in the case of torture, as Chile had ratified the torture convention
Belgium v Congo, Rationae Personae v Human Rights

Belgium v Congo case – there is no exception to rationae persoae rule, even for crimes like genocide (individuals may only
be prosecuted if immunity is waived, or tried through int’l courts, etc.)

Belgium passed law giving itself power to prosecute individuals accused of genocide, CAH, or war
crimes regardless of connection to Belgium or presence on Belgian soil
Does not equal impunity  circumstances where minister could be prosecuted when state they represent
waive state immunity, no longer enjoy after ceasing to hold office, or subject to international criminal
courts where they have jurisdiction

VI - Substantive Issues 1: Use of Force
A - General
Jus ad bellum: governs WHEN use of force is ok. Three circumstances only
19
1. Security Council Resolution under chapter 7
2. Self-defense article 51 of UN charter`
3. Consent
Jus in Bello (IHL)


Triggered by:
o Any interstate armed conflict OR
o Intrastate conflict, it must reach a higher threshold of violence
Contents:
o War crime
o Combatant’s privilege
o Non-combatants
B - Jus Ad Bellum
UN Charter Article 2(4)


“All members shall refrain in their intentional relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any manner inconsistent with the purpose
of the UN”
Considered customary now
Exceptions to article 2(4):
1. Security Council Resolution (Article 42) (under Chapter 7 collective security agreement)
a. “Should the security council consider that measures provided for in article 41 (that is, the ones not
involving use of force) would be inadequate or have proved to be inadequate, it may take such
action by air, sea or land forces as may be necessary to maintain or restore international peace and
security
b. Such action must include demonstrations, blockade and other operations by air, sea or land forces of
Members of the UN”
c. Only used twice (sort of
i. 1990 Resolution 678 authorized members to use “all necessary means” to secure withdrawal
of Iraqi forces from Kuwait
ii. 1950: UNSC “recommended that member state furnish such assistance to the Republic of
Korea as may be necessary to repel the armed attack (by forces from North Korea) and to
restore international peace and security in the area.
2. Self-Defence (Article 51)
a. Article 51: “Nothing in the present charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against the members of the UN, until the SC
has taken the measures necessary to maintain international peace and security”
b. Must be
i. Proportionate,
ii. Necessary, AND
iii. Imminent (most contentious)
c. Unwilling or unable doctrine: if a country is not able or willing to control their non-state actor,
some international actors argue that those attacked should be willing to go and control them.
3. Consent by the other State
C - Jus in Bello

Set of rules to limit effects of armed conflict for humanitarian reasons
20


Limits what SORT of force can be use
Major part based on four Geneva Conventions of 1949 and supplemented by Additional Protocols of
1977 relating to protection of victims of armed conflicts

When does it apply?


Can apply irrespective of whether the war was just, to begin with
Does not require an outright war
o Either interstate (international) armed conflict (most Geneva conventions apply AND additional
protocol 1; usually considered customary) OR
o Non-international armed conflict beyond a certain level (Common article 3)
Contents of IHL
 Mostly wants to protect that are not involved in fighting, such as
o Medics, religious ppl, non-combatants, POWs, collateral casualties and wounded
o They must be treated humanely in all circumstances
o It outlaws methods of warfare that are not discriminate enough
o Also, use of force must be proportional: balances humanitarian and military goals
o Allows for a certain amount of collateral damage when attacking military
targets
o Cannot be excessive to concrete military advantage
 Combatant’s Privilege
o Cannot be targeted if they were fighting war in ways that conform with international
humanitarian law
 Legal to kill and be killed by combatants in an armed conflict
 Combatant, if captured, cannot be prosecuted for participating
 PoW status denied to spies, mercenaries, and those not listed in Geneva
Convention, civilians who take part in the combat
 Non-Combatants
o You can’t target non-combatants, but you can kill them in legitimate
 Intentional targeting is illegal (eg. Target their families)
 Trying to square the military objectives with minimization of non-combatant
 Civilians might be legitimate targets
 Protected persons are also POWs
 But they can be killed; there is a horrible word called collateral casualties
 Limits attacks to combatants and military objectives
 Outlaws warfare that does not adequately discriminate
Lex Specialis
 Int’l Human Rights Law – is present in absence – does not allow killing
o Armed conflict does displace all other rules of int’l law
o IHL does not completely displace HRL – must be read together
o No arbitrary deprivation of life – determined by the applicable lex specialis (IHL)
Remedies?


Breach of IHL/Geneva Convention is considered a War Crime
War Crimes eligible under ICC Convention
21
VII - Substantive Issues 2: International Human Rights


Human rights are a constraint on state jurisdiction
o What is radical about human rights is that it regulates state behaviour with regards to its own
citizens as well all other humans
Human rights must be viewed as a representing a break from the statecentric model of international law
o It’s not really a way to see it as a way of regulatring interactions between states. It really is states
coming together and saying that they have fundamental priniples of outlawed behaviour
o Tension between sovereignty and human rights
A - Jurisdiction of ICCPR and ICESCR
MOST IMPORTANT PART (for) BOTH ICESCR and ICCPR:





Duties are owed to individual
By the state who has signed them, over their territory, and anywhere they have effective control or
sovereignty
Article 2: ICCPR HRC has said that countries should ensure human rights on their territory OR
jurisdiction
o You’d need to evaluate where it has sovereignty OR extraterritorial prescriptive jurisdiction
Concept of effective control: a state is said to have jurisdiction when it has effective control over the
victim of the human rights abuse
o Eg. Guantanamo bay, US would likely have effective jurisdiction.
Remedies: 1) you would need to figure out if Canada is party to the ICCPR OP 2) You would need to
prove that you’ve exhausted all domestic remedies 3) then you can submit a complaint to the ICCPR
HRC
B - UN Charter & Human Rights



Article 1(3) of the charter lists as one of the purposes of the UN ‘promoting and encouraging respect for
human rights and fundamental freedoms for all without distinctions as to race, sex, language or
religion.”
Article 55 specifies that in order to create stability and well-being for the friendly relations of nations,
the UN will promote universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion
Article 56: (enforcement) all members pledge themselves to take joint and separate action in
cooperation with the Organisation for the achievement of the purposes set forth in article 55.
o Including ECOSOC
o Not much resolution on what the human rights are, and the enforcement is fairly vague
o Not demanding but they’re there
Charter-based human rights bodies


Under article 68, the ECOSOC is to create bodies to comply with human rights
o It complied with this mandate when in 1946 it created UN commission on human rights
o This was replaced in 2006 by the UN Human Rights Council, created by UNGA resolution
Human Rights Council
o Has 47 members elected on a rotational basis, must be elected by a simple ballot by a majority of
the UNGA
o Supposed to take into account regional distribrution
22

o 3 year terms and universal periodic reviews of human rights of each country every 3 years
o UNGA is supposed to take into account contribution of these states to protection of human rights
in choosing states’ terms
UN High Commissioner for Human Rights (subsidiary to Secretary General)
o Human Rights Tzar sort of
o Created in 1994 by UNGA
o UN official who’s principal role is to pursue human rights issue (anything, really, broad
mandate)
C - UDHR – Customary Intl Law
Preamble
a. Cassin saw it as moving from degrees form human dignity to unity of the human family to the
aspiration for peace on earth
b. Human rights are universal; repudiates the long standing view that relationship between sovereign
state and its own citizens is that states’ own exclusive paragraph
c. Freedom justice and peace
i. Dignity, freedom, equality, solidarity and non-discrimination
ii. Backbone of all human rights instruments
d. Rule of Law
e. Place within UN system
Article 3-11: individual rights (not-controversial)





life, liberty, personal security,
no slavery or torture, l
egal representation, equality by the law, effective remedies for breach of the law, guarantees of fair
criminal proceedings,
freedom from arbitrary and arrest,
presumption of innocence and non-retroactivity of the law
Article 12-17 (rights in civil and political society)





Include the right to be free from interference with privacy,
Freedom of movement, right of return, freedom from arbitrary (defamation essentially?),
right to asylum, nationality, provisions on merit and
Article 16: went beyond most legislation in affirming equal rights between spouses
Article 17 property rights was a point of some contention
o US was a strong advocate, while other countries that were socialist had problems with it
Article 18-21 (rights in the polity)





Democratic rights,
freedom of religion and belief,
o Incidentally, they were initially gonna go with just conscience and belief, but Eleanor Roosevelt
argued that freedom of religion ought to be incorporated
freedom of expression and communication,
freedom of assembly and association,
principle of participation in government
Article 22-27 (Social and economic rights)
23

Rights differ from 3 other pillars; in the other 3 we ask gov’ts to refrain from doing things, while
socioeconomic rights, we ask gov’t to expend resources; these are more difficult and expensive goals
Article 28-30: inform document as a whole




Duties of individuals (not just states)
Article 29: Duties imposed on persons, Limitations on certain rights where it is necessary to secure the
rights and freedoms of others; does not justify
o Looks like setion 1 either
Article 30 : no state or person can engage in things aimed at destroying the rights in the UDHR
Article 28: Call for social and international order in order to realise these obligaitons (above national
level)
D - ICCPR







Bar discrimination due to birth, race, property, gender, etc….
Includes more rights than UDHR and provides greater specificity than UDHR
o Eg. Freedom from imprisonment for debt
o Right to every hild to have a nationality and protection despite minor statue
Property rights were omitted due to sordid ideological confrontation at the UN
Article 2: spells out stat obligations: state is to respect and ensure that all individuals within its territory
and subject to its jurisdiction the rights recognized in the covenant without discriminatory distinction
o Parties are supposed to implement and adopt legislation to protect these rights
o Human rights committee has developed guidelines on the interpretation of Article 2
 Envisages article 2 having both a negative and positive obligation
 Negative: refrain from violating rights
 Positive: promote and protect rights in domestic arena
Article 5 limits ability to limit rights not included in the declaration, cannot destroy human rights either
article 4: derogation provision
o In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parites to the present Covenant may take measures derogating
form their obligations under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.
 Can’t be used to justify breaches to right to life, torture, slavery, retroactive criminal
penalties, etc…
ICCPR may sometimes include limitations in the text itself
o Eg. article 18: Freedom of religion is subject to legal limits to protect other rights (like heatlh,
freedoms of others, morals, etc…)
E - ICCPR UN Human Rights Committee & ICCPR OP
**********Optional Protocol to the ICCPR determines whether interstate complaints can be brought to the
ICCPR HRC**************

Can only be optional , you need separate declarations by both states that they recognize the committee’s
jurisdiction to receive the complaints
 Body created by ICCPR (treaty-based body)
1. Article 40 It administers a reporting system, whereby states must report on measures they have undertaken
to give effect to the rights of the covenant
24
o Over the years the committee has reported guidelines to indue states into compliance with mixed
results
 It can’t audit gov’t reports, but they can question the reports with info supplied by outside sources
 Does not have any binding powers, just naming and shaiing
2. Article 41 and 42: oversees any intestate complaints on human rights
a. Can only be optional , you need separate declarations by both states that they recognize the
committee’s jurisdiction to receive the complaints
b. This mechanism has never been used
3. Oversees individual petitioning system; allows individuals to bring complaints to the committee
a. If a state has not met expectations o
b. This is in essence a separate treaty and there are actually fewer parties to that than to the ICCPR
c. File individual communications; and in dealing with these complaints it has 2 stages
i. First, determines admissibility under articles 2, 3, 5; eg, must exhaust loal remedies and
must not be subjet to another internal investigation and cannot be anonymous
ii. Assessment of merits
1. Then the complaint is brought to state concerned, which has 6 months
iii. It then assesses both sides and makes a view. Those views are provided to the individual
and the state; pseudo case law on covenant interpretation
1. These views are not a court, and not legally binding in any serious sense
2. But some argue that they are definitive construals of the covenant, and the
covenant itself is binding; not accepted by all states
F - ICESCR



Longer and more detailed version compilation of SE rights found in UDHR
Article 2: spelling out state obligations, is less robust than ICCPR equivalent
o Asks all countries to comply in full and immediately to the ICESCR
o Each state party poromises to undertake steps to the maximum of its available resources with the
view to achieveing progressively the full realizaiton of the rights recognized in the Covenant by
all appropriate means, including particularly the adoption of legislative measures
o Committee on EcoScoCult rights insistat that there is at least the requirement to take steps
o These rights demand resources, so that’s why this section is so stringent
Committee
o Only reviewed country reports for a long time
o No complaint system
o There is now an optional protocol where individual complaint can be brought.
VIII - Substantive Issues 3: ICC
Took 10 years to develop the ICC, Rome statute; it was signed in 1998 and ratified in 2002.
A - Substantive – Crimes covered by the ICC
Genocide


Article 6: got swift consensus
Follows verbatim genocide convention from article 2:
25

“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
1. Killing members of the group
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another person.
War Crimes
6. Article 8: Defined as: grave breaches of the Geneva convetions of 1949; includes such things as
willful killing, taking of hostages, unlawful deportation, torture, eetc…
7. broad provision
8. ALSO includes other norms applicable in the laws of armed conflict, lengthy list
9. Also crimes enumerated when the armed conflict is non-international
1. Examples include: killing civilian populatins, pillaging a town, rape, conscripting
children under the age of 15 into armed forces
Geneva Conventions


o Geneva Convention for the Amelioration of the Condition of the Wounded and Sick members of
Armed Forces in the Field
o Geneva Convention for the Amelioration of the Condition fo the Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea
o Geneva Convention relative to Treatment of Prisoners of War
 Requires humane treatment of POWs, without mental or physical torture
o Geneva Convention Relative to Protection of Civilian Persons in the Time of War
 Code of conduct for occupied territories during times of war
Additional Protocols to the Geneva Conventions
o Protocol 1: Deals with the protection of victims of international armed conflict
 Does things like bar things that cause unnecessary suffering; can’t attack objects
indispensable to survival of civilian population
 Stops states from targeting civilians as much as possible
o Protocol 2:
 More comprehensive: siereis of protections found in common article 3 of the Geneva
Conventions
 Applies where the dissident exercise enough control of the state’s territory to enable
them to carry out sustained and concerted military operations.
War crimes generally refer to breaches of these conventions, additional protocols and associated
customary law
Crimes Against Humanity


Article 7: (Enumerated acts committed) as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack
Enumerated acts: murder, enslavement, forcible transfer of populations, deportation, extermination,
imprisonment, torture, rape, forced prostitution, forced pregnancy, sexual slavery, forced sterilization
(other sexual crimes of comparable gravity), persecution against an identifiable group along racial,
gender, religious, cultural, political or national grounds, enforced disappearance, crime of apartheid and
other inhumane acts of similar character intended to create human suffering
26



Definition was difficult to negotiate
Much broader definition than ICTY and ICTRY definitions, there is a scale requirement to this def.
The beginning is often associated with an expression by Russian, French and UK on Ottoman Massacre
of Armenians in 1915
1. “In view of these crimes of Turkey against humanity and civilization, the Allied governments
announce publicly that they will hold personally responsible (for) these crimes all members of
the Ottoman Government and those of their agents who are implicated in such massacres”
Aggression






A review conference in 2010 defined it as: an act of planning, preparation, intiation or execution of an
act using armed force by a state against the sovereignty, territorial integrity or political independence of
another state
o May include acts: invasion, annexation by the use of force, blocking of ports or courts if it is
considered of such gravity and scale that it amounts to a violation of the human charter
ICC will eventually have jurisdiction over this crime; it is anticipated by statute of rome but was left
unsettled due to defintional struggles over this concept
o Not yet certain whether the ICC will ever gain jurisdiction over this; depends on 2/3 majority
decision happening after January 1 2017; subject to ratification of the amendment of statute of
rome
Echo of 2(4) of the UN charter
Perpetrator is the person who is in a position of effectively have control over or direct the political or
military actions of the state
Makes all those issues of whether one is exercising self-defence lawfully much more acute
Aggression would be limited to those that are nationals of a state party
Many international crimes are not crimes under the ICC: eg. Slavery torture, piracy, drug trafficking
B - Procedural
3 broad principles
1. Complementarity: Establishes that court only has jurisdiction when courts are unwilling or unable to
exercises jurisdiction;
a. national courts have priority (unlike ICTY and ICTR)
2. Rome statute only deals with the most serious of crimes
3. Effort to define crimes in fashion consistent with customary international law: reason for this was to
make statute more widely acceptable
3 ways to get jurisdiction
1. Article 12: Jurisdiction: The court may exercise jurisdiction with respect to the crimes listed in the
statute,
a. if the state of the territory where the crime was committed is a member
b. OR the state of nationality of the accused is a member ()
2. If the UNSC refers a matter to the court
 Territory: you can prosecute nationals in other countries if they commit ICC crimes in a signatory state
to the ICC’s territory
Principles of Jurisdiction
1. Article 17: 4 Grounds for admissibility; first 3 are complementarity-related)
a. The case is being investigated or prosecuted by a state that has jurisdiction over it
27
b. The case has been investigated or prosecuted by a state that has jurisdiction over it and the state has
decided NOT to prosecute the person concerned
c. The person concerned has already been tried for the question concerned
d. The case is not of sufficient gravity to justify actions by the court
 However, only intended to apply to legitimate prosecution; like there needs to be procedural
independence, etc….
 Complementarity can fall away in these cases
Sentencing

Maximum is 30 years, no death penalty
C - History
ICTY
o Resolution 808 of SC established the ad hoc tribunal for the former YugoslaviaIn 1991
o Under the statute of tribunal, jurisdiction over individuals accused of crimes against humanity,
genocide, violations of the laws and customs of war and grave breaches of the Geneva Conventions
of 1949
o Article 8: has concurrent jurisdiction with national courts
 This means that the ICTY could assert the jurisdiction over national courts
 In fact, the court said at some point that it had primacy over national courts, and could assert
its jurisdictions over national courts
 This is reversed in ICC
ICTR




Resolution 955 of SC established ad hoc ICTR (November 8 1994)
Under statute of tribunal, mandate is to prosecute persons responsible for serious violations of
international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible
for such violations committed in the territory of neighbouring states
Such violations are defined as genocide, crimes against humanity, and breaches of article 3 of Geneva
conventions and 1977 protocol 2 governing non-international armed conflicts
Note that this was a non-iinternational armed conflicts, as opposed to ICTY which was interstate
conflict
IX - Sources of International Law
Statute of ICJ, article 38 defines sources of international law as: a) treaties, b) customary international law, c)
general principles of international law, and d) experts and ICJ decisions
A - 1. Treaties
General Comments & Cases



Eastern Greenland Case (DenMark v Norway) p 54: There is no magical format to treaties; so long as there
is intention to be bound
Concept of intertemporal law from “ passage over Indian Territory” case (Portugal v India p 56): 18th
century treaty is still valid, even if the way it is written down isn’t as clean as treaties are nowadays
Anglo-Iranian Oil Case: An agreement between a state and non-state actor is not an international treaty: oil
company cannot be considered an international actor
28

o Tempered by suplemmental rules in 2nd Vienna Convention Talks; eg agreement between UN & a
state
Qatar v Bahrain
B - Vienna Convention on the Law of Treaties
o Although some states, like US, have not signed VCLT, most of its contents are considered customary at
this point.
When the VCLT applies
o Article 1 : it covers all treaties between states
o Article 2: Treaty means definition: an international agreement concluded between states in written
form and governed by international law, whether embodied in a single instrument or in 2 or more related
instruments, and whatever its particular
o Article 3: VCLT only applies to agreements in written form
o Article 6: every state has the capacity to conclude treaties.
o Intertemporal law: if a treaty is concluded pre-VCLT, it doesn’t have to follow VLCT rules
Accrediting a person to conduct negotiations on behalf of each state
o Article 7: A person is considered a state rep if
o He produces appropriate full powers
o There is enough reason to dispense with state powers (when would this be used?)
o Heads of state, Heads of government, Ministers for Foreign Affairs automatically have full powers
for all acts related to a treaty
o Heads of diplomatic missions, for the purpose of adopting the text of a treaty
Negotiation a treaty
o Usually happens at multilateral organizations (Example: statue of rome)
Expressions of consent to a treaty




(1) Adopting, (2) Authentication, (3) Ratification, (4) Accession
Adopting the text of a treaty
o Article 9: takes place when the consent of all the states participating in its drawing
o UNLESS the treaty takes place at an international conference, in which case you follow the rules
of the conference
Authentification of a Text and Signature
o Article 10: a treaty text is authentic and definitive by the method provided by the text
 The default is that a text enteres into force when the treaty is signed by all states OR
when requisite number of states adopt it by conference rules.
o Article 12: state consents to be bound by the signature of its representative when (a) the treaty so
provides (b) the state so agreed or (c) the intention of the state to give that effect to the signature
appears from the full powers of its representative or was expressed during the negotiation.
o Article 11: ways to express consent to the treaty: signature, exchange of instruments constituting
a treaty, ratification, acceptance, approval or accession or other means agreed upon
o Until this point, mere signature usually means
 When a state signs, it has moral obligation to ratify
 Must still abstain from acts that go against the purpose of the act
Ratification if Necessary
o Only if required by the treaty in question (usually the case)
o Article 14: Consent to be bound by a treaty expressed by ratification, acceptance or approval
29

Any accession
o Article 15: consent to be bound by a treaty expressed by accession when;
 The treaty provides for a means of accession, or it is otherwise established that accession
is possible, OR
 The parties get together afterwards to consent to accession
o law
o Article 16: exchange of instruments of ratification (whatever it might be), their deposit with the
depository or notification to the contracting state or depository would signal consent to be bound
Entry into force



Point at which a treaty becomes international law
Article 24: enters into force on a date provided by the parties, failing that, as soon as consent to be
bound has been established for ALL negotiating states
o Provisions of how to authenticate, consent to, etc… in the treaty apply from the date of its
adoption, however
Article 25: Provisional Applicaiton
What if you sign but don’t ratify




You still have obligation to ratify
Article 18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force UNTIL
it has made its intention clear not to become a party
o It has expressed its consent to be bound by a treaty pending entry into force
EG: signed ICC Rome statue, but has been doing everything in its power to ensure it doesn’t apply to
US citizens
o May 6 2002: made a declaration saying it doesn’t have any legal obligations arising from its
signature and does not intend to become a party
o This may ensure that it has no obligation not to defeat the treaty’s purpose now
North Sea Continental Shelf Case: It is not lightly to be presumed that a state which has not carried out
these (consent to be bound) formalities (in a treaty) … has nevertheless somehow become bound in
another way.
Reservations




Derogation froma provision or provisions of the treaty; both consistent and inconsistent with the notion
of state consent
Article 2: reservation means a unilateral statement, howerver phrased or named, made by a state, when
signing ratifying, accepting, approving or acceding to a treaty, whereby it uprports to exluor to modify
the legal effect of certai proisions of the treaty in their application to that state
Old view: that resesrvations are only acceptable when everyone agrees to this
ICJ Case: Reservations to the Convention on Genocide: Basically defeats old rule: A reserving state is a
party to the party, so long as the reservation is compatible with the object/purpose of the treaty;
otherwise it cannot be considered a party
o Also answered in this case: What is the legal effect of a reservation?
o 2 situations:
 (i) Another state objects to the reservation as incompatible:
 Objecting state can treat the reserving state as a non-party to the treaty if it so
chooses  but it can object and still enter into treaty relations with the reserving
state, unless contrary intention is definitely expressed by objecting state (Article
20)
30

(ii) Reserving state is treated by all states as a party to the treaty, but the particular
provision will not apply to the reserving state
 Why this approach? What motivates int’l community to permit reservations?
o Preserving integrity vs. encouraging high participation
 Court believes it is better to have a compatible reservation and more participants, than
to have no reservations and less participants
Formulation of Reservations: (article 19)
 A state may formualte a reservation unless
o It is prohibited by the treaty (eg rome statute)
o The treaty provides that only specific reservations, may be made (not including the one being
attempted)
o The reservation is incompatible with object and purpose of the treaty
o (also, cannot derogate out of jus cogens norms)
 Article 20: acceptance and objection to reservations
o When it appears from the limited number of negotiating states and the object and purpose of a
treaty requires consent of each one to be bound by the treaty, the reservation requires acceptance
by all parties
o An objection by another contracting state to a reservation does not preclude the entry into force
of the treaty as between the objecting and reserving states unless a contrary intention is
definitely expressed by the objecting state
 When is a reservation incompatible with object/purpose of the treaty?
o No single answer – treaty may specify (Article 19)
 E.g. Int’l Convention on Elimination of All Forms of Racial Discrimination  if 2/3s of
parties object, then the reservation = incompatible
o Note also concept of jus cogens – principles from which there can be no derogation (peremptory
norm) [Article 53]
What effect does a compatible reservation have?
 Article 21 – reserving state alters its relations with other states on a reciprocal basis
o Non-reserving parties’ obligations to the reserving parties are changed in the same way  so if
Burma says Article 8 does not apply to it, then the UK can object, and UK will have no Article 8
obligation to Burma
o Double-edge sword – Reserving state exempts itself, but objective states can exempt themselves
in relation to the reserving state
 So you end up with a fragmented treaty regime – 4 patterns:
o (1) Reserving states are bounds to the treaty, but only as modified by their reservations in
respect to non-reserving and non-objecting states.
o (2) Reserving states are not bound by the treaty in relation to states who object to the
reservation and specify that the treaty it not to enter into force between the 2 states.
o (3) Reserving states are bound by the treaty in relation to other reserving states, as modified by
both of the reservations between them.
o (4) Non-reserving states are bound by the terms of the original treaty in relation to other nonreserving treaties.
C - Operation of Treaties
o Parties bound by treaties must perform treaties in good faith – pacta sunt servanda (Article 26)
o A party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty (Article 27)
31
o A treaty does not create either obligations or rights for a third state without its consent (Article
34)
 Exceptions (Article 35 - 36):
 Rights/benefits: If parties to the treaty intend to accord a right/benefit to a third state,
then the 3rd state’s assent = presumed, unless contrary intention is shown (Article 36)
 Duties/obligations:
1. If the treaty reflects customary international law (erga omnes, for example,
which are obligations owed by state to int’l community as a whole)
2. If not CIL – 3rd parties can be bound if:
o (i) the parties to the treaty intend for this duty to apply to non-party, and;
o (ii) the non-party expressly accepts to be bound by this duty
Interpreting a treaty
 Article 31: a treaty shall be interpreted in good fait in accordance with the ordinary eaning to be given to
the terms of the treaty in their context and in the ight of object and purpose
 Article 32: look to prep work and negotiations of a treaty; when treaty might be ambigous
D - Termination of Treaties:
Grounds for termination:
1. Error of fact (Article 48)
2. Fraud (Article 49) : if a treaty acceptance had been induced by fraud
3. Coercion in terms of use of force (Article 52): acceptance was forced by another state
4. Conflicts with peremptory norm (Article 53): acceptance is void if it goes against jus cogens
5. Denouce a treaty: if the treaty provides for this, then state can cease to be bound by it through
denoucement (look to text of treaty)
6. Material Breach (Article 60)
o In bilateral treaty  entitles 1 party to invoke breach as a ground for terminating / suspending
the treaty in whole or in part
o A material breach consists of:
 (1) A repudiation of the treaty not sanctioned by the present convention, or;
 (2) The violation of a provision essential to the accomplishment of the object / purpose
of the treaty
o Namibia Case : S Africa (apartheid state) failed to fulfill its mandate under the treaty
 This material breach justified treating the treaty as terminated
 S African engaged in persistent conduct which ran contrary to the purpose of the treaty,
which justified termination of the mandate
7. Supervening Impossibility (Article 61)
o If impossibility results from permanent disappearance/destruction of an object indispensable
for the execution of the treaty  grounds for termination
o Very narrow
8. Fundamental Changes (Article 62)
o A fundamental change of circumstances which was not foreseen by the parties, may not be
invoked unless:
 (a) existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty, and
 (b) the effect of the change is to radically transform the extent of obligations still to be
performed under the treaty
o Fisheries Jurisdiction Case (UK v Iceland)
32



Dispute – UK wanted it adjudicated by ICJ, but Iceland objected to jurisdiction b/c it
claimed treaty was terminated
Why? Fundamental changes to fishing technology that increased the risk of over-fishing
ICJ rejected this as a basis for Article 62 termination  this sort of change not
fundamental, in fact it is precisely changes in technology of this sort that would give rise
to disputes the treaty was intended to cover
E - Customary International Law




Definition: flows from state actions undertaken by states believing that these actions are legally
obligatory (or at least permitted).
Two elements from customary international law:
1. Consistent and general practice among states
2. Practice viewed and accepted as by these states (opinio juris) as law
Binding to ALL member states as a result of their membership to international community
Reception into Domestic Law: Customary international law can be received into the common law of a
state without executive going out and affirming it (but likely can’t strike down domestic legislation)
State Practice
Two elements:
1. Generality: You want enough states to participate in custom, but don’t need all
a. Not all states are equal in this determination: you would usually want at least most major powers, and
certain types of country may be counted more (eg. Coastal states)
2. Consistency and Uniformity: how consistent have states been in following the law
a. Occasional violations don’t defeat it, especially if country tried to justify its action under international
law
b. Nicaragua Case
i. ICJ declared that US had breached Nicaraguan Sovereignty by arming the contras, thus
had breached international customary law
ii. Had interrupted peaceful maritime commerce by putting mines in the water
iii. Customary international law practice and conformity need not be in PERFECT
iv. Look to thins like the way intl community and state itself reacts to a breach of the law
c. North Sea Continental Shelf Case: the shorter the period, the more demanding the uniformity and
consistencey requirement
 Germany did not sign or ratify law of the seas
 No reason to think equidistance rule had concreticized into customary international law at the
time, not enough opinion juris from the 15 states that had used it over time
Opinio Juris: Need to show that the state had a sense of legal obligation
Evidence of Opinio Juris under Nicaragua Case
1.
2.
3.
4.
Government statements
Diplomat statements
Policy statements
UN Resolutions are a form of state practice that can be used as evidence of emerging custom, but are
NOT international law themselves
5. (lex veranda: norms being concreticized into customary law, in that process).
Example 1: Iraq War

Bush tried to justify his actions under self-defence (called pre-emptive self-defence)
33

This confirmed the idea that you can’t use force outside of (1) consent (2) SC resolution (3) self-defence
Exceptions
1. Persistent Objector (narrowly defined
a. Three elements
1. The state must have objected to the rule in the course of its formation
2. The state must be consistent in its objection
3. The state’s objection must be express
a. You can’t just be silent,then you’d have quite acquiescence.
d. Example 1: Asylum Case: there is no regional customary international law of political asylum;
even if it did, it can’t be used against Peru as it had persistently made statements against it
(refused to ratify this one Montevideo treaty)
e. Example 2: Nuclear Powers Reference:
i. Some argued that non-use of nuclear powers was customary international law
ii. Court said: consistent use of nuclear weapons (deployment, stockpiling) was proof of a
consistent objection to no use of nuclear weapons whatsoever
iii. SO, no customary international law
f. Example 3: Anglo-American Fisheries: UK can’t use a delimitation (10-mile rule) rule against
Norway that Norway had persistently objected
2. Regional Customary International Law
 Variant on international customary law
 Requires same 2-step process as usual
 BUT you need ALL states in the region to agree to the rule to have enough ‘generality of state practice
(Asylum Case)
 Example 1: India Rights of Passage Case
a. Portugal had enclaves in newly independent India, and wished to assert a regional customary
international law of right of passage across India
b. Courts decided that it was of such duration that it MUST have become accepted as law by the 2
parties
 Example 2: Asylum Case (same as above)
a. Colombia claimed it had a unilateral right to give protection to this asylum under a customary
regional law
b. The court indicated that it could only be regional customary law by uniform and consistent
practice by the states said to be part of this regional block
CIL example, UDHR: Not initially binding (designed as aspirational text) but there is enough state practice and
opinion juris to say that at least parts of it are customary international law
 Canada in 1995: Canada regards the principles of the Universal Declaration of Human Rights as
entrenched in customary international law binding on all governments
F - General Principles of Law
Jus Cogens



Jus Cogens: peremptory norms of international law that trump treaties (and customary practices)
inconsistent with them.
Like constitutional international law: supercedes others, cannot set these aside through other forms of
international law
No universally recognize test of jus cogens
34

Obvious ones could be: piracy, use of force, bar on genocide, slavery, several human rights principles
(murder, torture, prolonged arbitrary detention and systematic discrimination)
Erga Omnes:
 A universal obligation all states owe to the entire international community, not just to a few states
 Case 1: Israeli Wall Case
o Eg. One of those was the right of self-determination, and that the wall limited the Palestinians’
right of self-determination
o A violation erga omnes meant: every state is under obligation not to offer assistance in the
construction or not to recognize the wall. There was an affirmative obligation by other states
General Principles
 Principles that a large number (majority?) of states apply in their domestic law?
o If it is something we all agree to, then it’s fine
 SouthWestern Africa Case
o When South Africa becomes independent from british, South Africa still wants to have control
over Namibia
o The say no, Namibia is still a trust of the colonizers despite dissolution of league of nations
o Judge McNair says that every legal system (ake only French and English!!!!) contains the
concept of a trustee; there is a general principle of law
 Not very popular source of international law now, because hard to reconcile ALL areas of international
law
G - Judicial Decisions & Teachings of most Highly Qualified Publicists




This is ranked lower than the others
ICJ statute 38: are subsidiary means of determining rules of law
Article 59: the decision of the Court has no binding force except between the parties and inrespect of
that particular case
Writings may still be influential in influencing states to establish legal norms, like those of genocide
H - Unilateral Promises




RULE: Unilateral promises can be binding (France Nuclear Test Case), but usually are not these days
Nuclear test Case
o “where it is the intention of the state making the declaration that it should become bound
according to its terms, the intention confers on the declaration a character of legal undertaking”
o When a state make some of these declarations, they must fulfill it in good faith
o This may cuase reliance by other parties, and forces countries to stick to their promises
France kept doing their nuclear tests anyways, there was 2nd case, but newly elected president said they
would stop doing tests anyways and issue was moot
Problems of unilateral promises
o Can you unilaterally retract unilateral promises
o The principle by the courts says that any unilateral promise is binding, does not require there to
be detrimental reliance for the promise to be binding.
35
X - THE UN
Reparations Case: An IGO with permanent institutional features can have an international legal personality
separate and apart from its state members; came up whether the UN can sue and be sued
A - UN Charter
First: purposes of UN charter




To maintain peace and security
Centre for harmonizing state actions
Achieve international cooperation on economic, humanitarian issues in promotion of human rights
Develop friendly relations between states.
Principles of UN





Sovereign equality
Good faith to act in accordance with charter
Assistance to the UN
Settlement of international disputes by peaceful means
Refraining from the trehat of use of force
B - UNGA



All states can be part of this
Decisions made by simple majority
ICJ Referrals: Article 96: UNGA can ask for advisory opinions from ICJ
Powers:
 Discussion and recommendation; may discuss any matters within the scope of the present charter and make
recommendations on same (article 10). Two caveats this:
o art 12: May discuss but not make recommendatinos on things the SC is discussing atm
o art 10: Recommendations are not binding on member states (not int’l law)
 General supervisory body for other bodies of the UN
o GA approves overall budget of the UN (article 17)
o It has an appointment role:
 non-permanent membes of the SC and ECOSOC (article 18)
 Security council and ICJ judges (article 4)
 plays a role in appointing SG and secretariat
 Legal relevance
o Progressive school: UNGA formulates international laws; develops norms and makes legally
binding resolutions
o Most ppl: UNGA resolutions have hortatory value; can be evidence of customary international
law, and evidence of state’s views on them, and can serve as a kernel around which new
customary international law develops
C - Security Council

Membership is in article 23
36
o 15 members, 5 permanent members with vetos
Powers: it can make binding resolutions under article 25 (but many SC resolutions are just hortatory



It enforces chapter 6 of UN Charter
o It has primary authority for enforcing peace and security
o Parties to a dispute are supposed to settle them through peaceful means according
o The security council can investigate a dispute if it views it as likely to endanger peace and
security
o (article 36): Such a dispute may be brought to it by UNGA, can also refer cases to ICJ
Charter 7 gives UNSC its biggest powers
o article 39: UNSC can declare existence of any threat to the peace or act of aggression
 It decides what measures may be taken to in accordance with the charer to restore peace
security
o Article 41 allows for economic sanctions, travel bans, secession of diplomatic relations etc..
o Article 42 the Security council will have to take action by way of sea or land as necessary to
maintain peace and secuirty
 In the original UN charter enactment, it was envisioned that the UN would have its own
capacity to enforce its dictates, but in practice it asks states to enforce the dictates for it
 There is a section of the UN that asks states to make their armies provided for the UN,
subject to a special agreement that was never negotiated
o Article 25: the members of the UN are bound to follow SC, agree to accept and carry out the
binding SC resolutions
o Article 103: makes resolutions by UNSC prevail over competing legal obligations states may
have; the UN charter and UNSC obligations trump other treaty obligations
 Has come up recently in recent counter terrorism measures
 Binding upon those that are not part of the SC, and even those UNSC memebrs that
voted against the resolution!
Other powers
o Along with UNGA It selects judges for the ICJ
o Recommends secretary general to the UNGA
o Recommends new states for inclusion in UNGA, and expulsion from UNGA
o Approves trusteeship agreements and stuff of trusteeship council
o Can refer advisory opinions
o article 94, if an ICJ loser doesn’t comply with ICJ judgement, the winner may have recourse to
the SC
ECOSOC: Encouraging human rights worldwide and its respect; in that function it has played an important
role that we will see in passing from time to time
D - ICJ





Article 7 in UN charter names the ICJ as an organ of the UN
Chapter 14 spells out that it is to be the principle judicial organ of the Un
All members of the UN are de facto party to the treaty instrument that creates the ICJ
article 94, states must comply with any ICJ decision to which it is a party
States may have recourse to SC if other states don’t follow ICJ
Most important section: Consent : ICJ Statute, Chapter 2, article 36
37
1. Under treaties: treaties may confer jurisdictions on the court; a member of these conventions may start
proceedings over another member party to the treaty with RESPECT to that treaty
a. Eg. Vienna convention on consular relations, in article 1 refers disputres to ICJ
b. article 37 of ICJ provides that whenever a treaty provides for matters to be referred to PCIJ, you
read that into being ICJ
c. Eg. France nuclear test case: It denounced the pacific settlement treaty, and article 37 to effectively
rob the ICJ of jurisdiction over the case
2. Special Agreement conferring jurisdiction (compromise)
a. Both parties agree to submit jurisdiction of the ICJ
b. An ad hoc arrangement to ICJ
3. States may accept the compulsory jurisdiction of the ICJ
a. Under article 35(2): states allow automatic jurisdiction in instance where the other party also accepts
the court’s compulsory jurisdiction and where the matter concerns (quid pro quo)
i. The interpretation of the treaty
ii. Any question of international law
iii. The existence of an y fact which, if established, would constitute a breach of international
obligation
iv. The nature or extent of the reparation to be made for the breach of an international obligation
b. Only about 1/3rd of countries parties to the ICJ have accepted this, and over time many have
withdrawn it (like France and US after test case, and Nicaragua case respectively)
i. There are still reservations to these declarations
ii. Eg. Australia introduced an extra reservation in 2002 who took out maritime boundaries, to
avoid a dispute regarding NZ maritime disputes
iii. Eg. Canada disputes arising out of concerning conservation and management of fish vessels
in some NATO area, and got out of a case brought by spain (after arresting a Spanish vessel
in those areas); ICJ ruled it did not have jurisdiction
History of ICJ
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Inheritor of a long tradition of state arbitration of international disputes. Other conflict resolution
mechanisms are inquiry, mediation, conciliation judicial settlement, negotiation and resort to regional
agencies
Arbitration dates back to Jay treaty of 1794 between US and GB
ICJ is largely a continuation of league of nations’ permanent court of international justice (PCIJ)
Statute of ICJ
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
Chapter 1: concerns the organization of the court (2-33)
o 15 judges
o Elected by the UN member states and any other states party to the Statute of the ICJ
o To be a judge, you need an absolute majority in both SC and UNGA
o In a case where one of the parties has no judges on the court of their nationality, they can choose
a judge to sit in an ad hoc capacity (controversial provision)
Chapter 2: concerns the competence of the court (34-38)
o Contested cases can only concern disputes between states
 neither the UN or any of its specialized bodies can be a party to a contested case
o As for non-state interests, these can only be addressed in ICJ if state brings it up
o Fundamentally, jurisdiction of the tribunal depends on the consent of the states concerned unless
it has in some manner submitted its consent
Chapter 3: procedure, 39-64
4: advisory opinions, 65-68
38
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o Certain public international organizations (IGOs) can ask the court for a legal opinion
o The UNSC, UNGA, and 20 other organs have been authorized by UNGA to ask for advisory
opinions, but only 3 organizations have used this power: WHO, UNESCO, the international
maritime organization IMO?
o These advisory opinions are not binding, unlike contested cases; but due to the prestige of the
ICJ the decision can be very influential
Chapter 5: amendment of the article, 69-70
Effect of IJC Decision
o Judgement is final, and without appeal. A
o State member of the member undertakes to obey ICJ decisions once they have consented to its
jurisdiction, but decisions are not binding on anyone not party to the case.
o No stare decisis, but courts try to be consistent in decisions.
XI - State Responsibility (Remedies)
State responsibility: the body of law governing the legal consequences of a state’s breach of its international
obligations
 These things are often governed by treaty; but there are general rules for areas of the law where
remedies are not
Substantive: stop doing what you’re doing it, don’t do it again, and are there reparations (restitution,
compensation, satisfaction); the right to take necessary countermeasures
Procedural: you can only take countermeasures if you tell the country to stop, give them a chance to stop, and
then stop the countermeasure (and then it has to be proportional)
 State general responsibilities are layed out in the International Law Commission Draft of 2001
 These determine the legal consequences of a breach of international law
 Not binding, but these draft clauses are beginning to be customary now.
A - ILC 2001 Draft Key Features
1. When a state responsibility is triggered: the definition of an internationally wrongful act
a. Article 1, 2 and 12: (1) an act inconsistent with an international obligation and (2) attributable to
a state (3) equals an internationally wrongful act producing state responsibility
Rule of Attribution:
NOTE: this can apply for any breach of international, if trying to figure out if a state has breached international
law.
A. Article 4: actions of state organs will be imputed to the state
i. Article 4(2): defines a state organ to include any person or entity having that status under a
stat’s internal law; even if they contravene their obligatios while fulfilling their role
B. attributing non-state actors actions to the state: Articles 5-11 are on
C. Article 5: actions by those entities empowered by the law of that state to exercise elements of the
governmental authority shall be considered an act of the state under international law, provided the
person or entity is acting in that capacity in the particular
i. Eg. Crown corporations, private militaries employed by the state, etc…
D. Article 8: the conduct of a person or group of person shall be considered an act of a state under
international law if the person or group of persons is in fact, acting on the instructions of, or under
the direction or control of, that State in carving out the conduct.
ii. Acting on the instructions OR under the direction or control!! That is the threshold
iii. Standard in Nicaragua case: set quite high; the US, while funding rebels in Nicaragua, the
acts of the rebels could not be attributed to the US.
39
iv. They’ve reaffirmed this threshold in another case.
E. Article 9: provides for non-government actors that may step in to provide government functions
when the government can’t provide them
v. The conduct of a person or group of persons shall be considered an act of a state under
international if the person or group of person is in fact exercising elements of the
governmental authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
F. Article 10: state responsibility attributable where related to actions of an insurrectional movement
that becomes the new government.
G. Article 11: conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent that the state
acknowledges and adopts the conduct in question of its own
vi. Remember ____hostages case
NOTE: you need to find some breach in international law,that is NOT already governed by a treaty, for the
following to apply
B - Rights of Injured State under state responsibility
2. article 42, 44, 48: Right to invoke state responsibility
a. 42: there has to be link between violation and the state
b. states only have this right if they are specially affected OR
c. If the breach is of such character that it can only change the position of all the other states to
which that state owes an obligation, and changes the performance of that obligation (?)
i. Has to be a link between violation and state overall
d. 48 (ergo omnes clause) allows for other states who have not been injured to invoke state
responsibility of another state if the obligation breached is owed to the international community
as a whole.
e. 44 also says that state responsibility cannot be invoked unless domestic remedies have not been
exhausted, but that mostly applies to issues of immunity
3. Article 49-53: Right to take counter measures (self-help)
a. Countermeasures are usually wrongful acts that are justified in these circumstances; for example
seizing assets, or breaching treaty obligations
b. It’s not like they allow use of force
4. Rules on using countermeasures
a. Can only be used to induce compliance (not just as revenge measure)
b. Countermeasures have to be proportional to harm
c. Countermeasures must not affect obligations that benefit individuals or the international
community as a whole; eg. Suspend human rights
d. Must meet certain procedural requirements to use countermeasures
i. Eg must ask the state to fulfill its international obligations first
ii. And then warn of the countermeasures
iii. And then suspend the countermeasures if the breach has ceased
e. Risk that countermeasures could spiral out of control
C - Responsibilities of Breaching state under state responsibility
State responsibility superimposes NEW obligations on the breaching state (on top of usual obligations they are
already breaching)
5. Article 30 : Mandates cessation and non-repetition
40
6. Article 31: Mandates duty to make reparations
7. Article 34: Reparations include restitution, compensation and satisfaction
a. Hierarchy of what is best to do: restitution to satisfaction
8. Article 35: Restitution
a. This obligation exists to the extent that it is possible
b. Or so burdensome that it is disproportionate to benefit of doing that
c. There have to be other remedies above and beyond t
9. Article 36: Compensation:
a. Duty to pay; inso far as it is established
10. Article 37: Satisfaction
a. Need to do this as far as restitution and compensation are not available
b. A formal apology, expression of regret and/or acknowledgement of the wrong done
7 defences available to breaching state
1.
2.
3.
4.
5.
Consent: when something is not an international wrong because the injured state consented to it
Self-defence: in conformity with UN charter
Lawful countermeasures: what we discussed above
Force majeure: the state’s actions wer a result of unanticipated events no one could have predicted
Distress: saving a life or lives when there is no other way to do so
a. Eg. Forced landing of an aircraft in dire emergency
6. Necessity: safeguarding national interests against grave and imminent peril;
a. can only done in a manner that does not impair essential interests of another international
obligation or breach jus cogens norms (most controversial)
7. Peremptory norm: NONE of these are meant to defend a breach of a peremptory norm
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