JURD7270: LGC
Course Notes
1. Introduction
Int’l law and globalization
Bederman, ‘Globalization and International Law’
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Preface: considers rival definitions of ‘globalization’. E.g., Held and McGrew: globalization is a sociological
process embodying a transformation in the spatial organization of social relations and transactions- assessed
in terms of their extensity, intensity, velocity and impact- generating transcontinental or interregional flows
and networks of activities, interactions and the exercise of power.
Says intl’l law refers to the norms, rules and institutions that govern the relations among States and the
conduct of actors, transactions and relationships across national borders.
Suggests a concept of world law as an evolution of previous versions of transnational governance: says that
human history has seen at least three extraordinary epochs of globalisation (as well as periods of deglobalization) before the current period, each of which featured significant bodies of world law, as
manifested in attempts to structure IR along predictable and uniform lines.
Part 1: A short history of world law: for almost all of human history, the essential motivating {moving??- MR}
force for the creation, implementation and enforcement of rules of transnational behaviour have been
political aggregations.
Suggests Bull’s definition of a State system: a society of states (or international society) exists when a group
of states, conscious of certain common interests and common values, form a society in the sense that they
conceive themselves to be bound by a common set of rules in their relations to one another, and share in the
working of common institutions.
Suggests that humanity has gone through a number of historic “great” ages of globalization:
o The ancient world (500BCE-500CE): which featured the coalescing of Mediterranean and Near Eastern
societies into State systems, and an interaction with the sophisticated and large polities of the Indian
subcontinent and China. Suggests that the primary impulse for globalization in the ancient world was
the thrust for empire: ancient States sought to expand their reach politically, economically, socially and
religiously by conquest, absorption, and co-optation of peoples of various ethnicities, languages and
beliefs. Contrasts the authoritarian, coercive and unilateralist empires of the Near East with those of
the Eastern Mediterranean (i.e., Greek city states) which embodied a culture of personal autonomy,
freedom, a rich artistic and intellectual life, and wide-ranging economic and trading opportunities.
These societies constructed a conception of a global legal order around the notion of a hegemony.
Suggests that the Greek approach to globalization descended via the institutions of the Roman
Republic and Empire. Part of this was the Roman development of the ius gentium (the laws of
peoples), which was intended to govern the relations between Roman citizens and non-citizens and
which was used to foster peaceful and predictable relations between Rome and its neighbours.
Suggests the most sustained effort of ancient globalization was that of the various Chinese imperial
dynasties (beginning 221 BCE), which extended Chinese diplomatic, economic and cultural influence
across Asia, and into Africa, the Near East and the Pacific (e.g., Silk Road; Chinese codification of world
law laws which dominated the world law practiced by peoples of much of the globe until the early
Modern period). Suggests this period ended around 500CE.
o Age of exploration and colonisation (1450-1850): the emergence of nation-states in Europe saw new
imperial patters in globalization: this period coincided with both European and Chinese impulses for
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exploration, trade and colonization. By the mid-18th century, European colonial and trade networks
extended around the globe. At this time, European competition for access to colonial territories
became marked by conflict (e.g., the Seven Years War (1754-1763)). Trends in world law during this
second period of imperial globalization emphasized an amalgamation of European and Asian forms;
especially in the Indian subcontinent and East Indies, European trade and military incursions were still
conditioned by an international legal system that demanded the observance of local forms and usages.
Age of imperialism (1850-1914): With its apogee at the Berlin Conference of 1878, the European
powers (especially Britain, France, and Germany) sought to colonize vast swathes of territory in the
African hinterland and Indian subcontinent, to wrest key portions of the Near East away from the
tottering Ottoman Empire, to create trading establishments throughout the Pacific Rim, and to directly
confront the last remaining Asiatic nations (particularly China). Conflict was rife among the colonial
powers, with competition reaching a fevered pitch in the last years of the nineteenth century. Featured
striking economic and financial interdependence around the world: trade goods moved with relative
ease; foreign direct investment (FDI), flowing out of European markets and to North and South
America, to India, China, and Japan, and the African colonies, was a mainstay of the global economy.
Unlike the previous round of globalization in the 17th and 18th centuries, the emerging world law of this
age of empire was assuredly Eurocentric in focus, the content being dictated by European State
practice, European treaty settlements and by European legal writers. International legal doctrine was
heavily protective of the colonial prerogatives of European nations, of freedom of navigation and
commerce, and the unfettered ability of colonial powers to project force against recalcitrant
indigenous peoples: the international law of this period emphasized the sanctity of treaty
commitments (what was called the doctrine of pacta sunt servanda) and the territorial sovereignty of
nation-States.
McKeown ‘Periodizing Globalization’
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See quotes from Marx and Engels; Park; Millikan and Rostow; Castells; all of which paint a picture of new and
growing connections across the globe.
Suggests the era of globalization is that period in which a sense of living in the midst of unprecedented
change has dominated social and personal sensibilities. The “cult of newness.”
The belief in a new global era, pervasive since at least the early 19th century, marks the beginning of modern
globalization; perceptions of impending, often religious change existed before the 19th century; but the 19th
century marked a cult of newness that slowly replaced millenarian visions and enlightenment dreams,
entrenching itself as a description of a secular present.
A long-term periodization of globalization as something other than a process beginning in the present
compels criticism of histories detailing a past of borders, isolation and stasis. In contrast, a long-term
periodization imagines a history in which borders were as dynamic as flows, both continually reconstituted in
relation to each other. A long-term periodization also generates a dialogue between conceptualizations of
globalization that emphasize the qualitative transformations of the new eras, and those that search for
globalization in the measurement of flows of people, money and goods over time.
Suggests 1820 as a year that marks the emergence of markers of globalization: price convergences; the start
of industrial growth patterns in W Europe; improved transportation and communication technologies; a new
cycle of mass migration.
Suggests 1770-1820 as a transitional period, marked by the emergence of indispensable qualitative and
institutional conditions of globalization as we know it: free labour and the rights of man, the spread of the
nation-state, economic development as moral and political imperative, free trade versus protectionism
debates, and the development of the diplomatic, commercial and legal institutions that have shaped modern
interaction.
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However, considers alternatives to a globalization that begins in 1820:
o Early globalization: there is plenty of evidence of significant global interaction earlier, especially those
resulting from the events following 1492. Although massive bulk trades, rapid communication and
price convergence rarely characterised global interactions before the 18th century, those early
interactions still generated institutions and effects that linked economic and political change around
the world. Flynn and Giraldez suggest the founding of Manila in 1571; long distance trading; mapping;
exchanges following 1492. Similarly Bayly has suggested various flows after the 15th c. See also
Liberman. Suggests these accounts illuminate the Eurocentricity of “modern” accounts. Pinpointing
1820 suggests a Eurocentricity that is historically misleading.
o Post-1820 cycles: conversely, there is evidence of cycles of globalization and de-globalization in the
years after 1820. E.g., the World Bank: periods of globalizations early 19th c-1913 and 1950-present,
and a period of de-globalization 1914-1950. Suggests this is misleading and too fine-grained an analysis
since markers of globalization were also present 1914-1950 (not only economic markers but also
population flows). Similarly, these accounts are Eurocentric, since they do not apply to the rest of the
world.
Competing definitions of globalization are at stake in its periodization.
Megret, ‘International law as law’
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The debate about int’l law as law covers three distinct questions:
o What type of legal system is int’l law? Properties that are standardly presented as characteristic of int’l
law (and their problems) include:
 Subjective dimension: the defining characteristic of int’l law is that it is a law of states rather
than individuals: a system geared towards organizing relations between self-governing
collectivities. Int’l law confers full legal personality only on states. Problems: not all states are
recognized (e.g., colonized entities); recognition of non-state actors.
 Ethical dimension: int’l law can be taken as expressing a certain ethos of pluralism that emerged
from the end of the vision of united Christendom following the Reformation and the wars of
religion and the adoption of cuius regio, eius religio. Suggests that as a consequence, int’l law
was liberalized in resisting from impressing a single conception of the good life and accepting the
incommensurability of beliefs. Problems: certain ethical foundational norms and conceptions of
civilization are thought as obligatory regardless of place.
 Social dimension: because its principle subjects are states, int’l law operates anarchically
between equals and without a superior authority. As a consequence, classical conceptions of
int’l law assert that no int’l law can be imposed on a state except of their own choosing. The
system is merely procedural in that it aims at protecting co-existence rather than some common
substantive goal. Problems: norms of general customary int’l law thought to apply to all states; a
system that underwrites hierarchical empires.
 Epistemological dimension: modernity ended the idea that int’l law is a species of natural law
and the underlying conception has become positivist. Problems: underlying tensions exist with
tenets of natural law.
 Normative dimension: int’l law is “contractual” rather than “legislative”: an assortment of
bilateral and multilateral voluntary and synallagmatic engagements. Problems: unequal treaties;
push to verticalize some of its norms; erga omnes norms.
 Functional dimension: int’l law is said to lack many markers of a functioning domestic legal
order: e.g., a centralized legislative body; compulsory court system; centralized enforcement.
Moreover, the concept of separation does not seem as clearly visible in int’l law; see also the
central role of custom and consistent practice. These features reflect the mode of emergence of int’l
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law as a diffuse and bottom-up crystallisation of norms over time. Problems: these features are
changing, e.g., the role of the UNSC.
Can int’l law properly be called ‘law’? These debates ebb and flow with historical events (wars suggest
the breakdown of int’l law; institutional advancements confirm its status). Common positions in the
debate include:
 Deniers: who maintain that the lack of centralized organs (above) (e.g., Hobbes; Austin; see also
realists and Law and Economics) disables the claim of int’l law as law, both in practice and in
principle. Deniers criticise international lawyers for thinking that int’l law is the cause of that of
which it is only the consequence, and norms that appear to emerge are only patterns of
behaviour explicable on other grounds (e.g., interests; economic rationality). Int’l law is regarded
as a tool wielded voluntarily; not a binding framework.
 Idealists: tend to consider that int’l law is law because it is mandated by or derived from some
higher source; tend to be natural law theorists (see, e.g., Grotius; Kelsen).
 Apologists: start from the reality of the social practice that describes itself as int’l law, and infer
from some of its characteristics a sui generis legal character. Rather than applying a theoretical
definition of law taken from the domestic experience, they tend to scrutinise int’l law to identify
its ‘génie propre’ and begin from the starting point that int’l law is more often respected than it
is not. They also observe that states tend to justify their actions by arguing that they are in
conformity with int’l law norms, rather than by arguing that there is no such law. It is held there
must be int’l law since there is an int’l society, and that there are other reasons to respect int’l
than fear of force. They also pose problems for such a conception of domestic law. Commonly
reply to deniers by saying that their view of law relies too much on a domestic conception of
law.
 Reformists: do not deny that int’l law as it exists is better than no law, but are frustrated with its
primitiveness and with the apologists’ rationalisation of its particular legality; are wary of a statecentred int’l law that they see as incapable of transcending egotistical national interests.
Reformists typically argue for a ‘purposive’ concept of int’l law and hope it will evolve into a
system more like domestic law; they assert the commonality of basic values: they discredit the
idea that int’l law is necessarily a law of coexistence or at best of cooperation deprived of telos.
 Critics: see this debate as a veil for int’l law as a system of exclusion and oppression: i.e., as a
legitimisation portraying int’l law as something other than it is. For them, the issue is not
whether horizontal int’l law is really law, but whether int’l law is actually horizontal.
Is int’l law so changeable that it lacks the minimum stability a legal order should have, or is it constant
despite its appearance of changeability? Rather than being stagnant, int’l law is perhaps better
conceived as a legal system which permanently oscillates between four tendencies: its own surpassing,
absorption, dissolution and renewal:
 Surpassing: int’l law represents itself as tending towards centralization and a more domestic
character. See trends in this respect towards centralization; hierarchy; substantive
commitments; changing subject-matter.
 Absorption: the underlying Eurocentric and imperialistic concepts embedded in int’l law.
 Dissolution: the waning of the state and the collapse of the conceptual floor of int’l law trends
towards transcending of the state (e.g., lex mercatoria). At best the state serves as a sort of
conveyor belt for instructions coming from above; at worst it is seen as an irrational impediment
to a work of global regulatory homogenisation facilitating, most notably, the operation of the
world economy. Int’l law thus increasingly operates in the interstitial space between the public
and the private, becomes hybridised and eventually even fully privatised.
 Renewal: aims to restore the classical conception of int’l law and the primacy of sovereignty.
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Suggests that int’l law’s peculiar approach to law can perhaps best be described as that of a law that is ‘in
between’, characterised simultaneously by what it seeks to escape from (e.g. wars of religion), what it is not
(e.g. domestic law), and what it aspires to achieve (perpetuation, surpassing, transformation, etc.).
Int’l law and its sources
Dixon, ‘The Sources of Int’l law’
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Although int’l law does not possess formal institutions responsible for law creation, there are both
recognized and accepted methods by which legal rules come into existence and ways in which the precise
content of legal rules can be identified (i.e., says ‘sources’ is ambiguous between a constitutive, metaphysical
meaning, and an epistemic meaning). These are the sources of int’l law:
o Article 38 of the Statute of the ICJ: Art 38(1) authorizes the ICJ to decide disputes by reference to:
(a) Int’l conventions, whether general or particular, establishing rules expressly recognized by the
contesting States;
(b) Int’l custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to Art 59, judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as a subsidiary means for the determination of rules of law.
Art 38(2) allows the ICJ to decide a case ex aequo et bono if the parties consent.
However, Art 38 does not provide a complete and unambiguous statement of the sources of int’l law.
The ICJ considers a wider range of sources than that authorized by Art 38(1). For example, UNGA
resolutions and diplomatic correspondence: Nicaragua v USA 1986 ICJ Rep 14; Nauru v Australia
(Jurisdiction) 1992 ICJ Rep 240. And, law-creation by non-state actors not referred to in Art 38(1): e.g.,
int’l organizations concluding treaties (e.g., Status of Forces Agreements between the UN and
countries hosting UN forces) or the actions of individuals, groups or corporations (e.g., Texaco v Libya
(1977) 53 ILR 389) that contribute to the development of customary practice.
Note Art 38 does not contain an ordering or hierarchy for the various sources, or principles that
determine resolution of conflicting sources.
Notes the consensual nature of the jurisdiction of the ICJ and the possibility of two parties’ agreeing
that rules from a certain source are inapplicable to their dispute. But ICJ is reluctant to allow this: e.g.,
Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America).
Considers the so-called distinction between formal and material sources of law. Formal sources of law
are the procedures or methods by which rules become legally binding: they are law-creating (e.g.,
custom). Material sources of law are those sources of law that indicate the substance and content of
legal obligations, rather than the method by which those obligations become legally binding: they are
law-identifying.
Considers also the so-called distinction between material and evidentiary sources of int’l law: a
material source provides the substance of the rules that formal sources turn into law; whereas an
evidentiary source provides the precise content of the legal obligations that bind states.
o International treaties/conventions: int’l treaties or conventions are the only way states can consciously
create int’l law. A treaty is essentially a bargain between legal equals and may cover any aspect of int’l
relations, e.g.: defining the status of territory (e.g., the 1984 Agreement on the future of Hong Kong
between the UK and China); dealing with the rights or obligations of individuals (e.g., the International
Covenant on Civil and Political Rights 1966 and the Statute of the International Criminal Court 1998);
multilateral treaties instituting specific legal regimes (e.g., the 1959 Antarctic Treaty and the 1961
Vienna Convention on Diplomatic Relations). If a treaty satisfies all the formal requirements for its
existence and enters into force, failure to conform to its terms will incur int’l responsibility unless a
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defence is available (Hungary v Slovakia (1998) 37 ILM 162; Bosnia and Herzegovina v Serbia &
Montenegro (ICJ 2007)). A treaty is governed by a number of principles:
(a) Treaties are voluntary: no state can be bound by a treaty without having given its consent to be
bound by one of the methods recognized as effective in int’l law for this purpose (e.g., signature;
accession; ratification). Only parties to the treaty are bound by its terms.
(b) Once a state has signified consent to a treaty, it is bound by its terms vis-à-vis all and only the
other parties to the treaty (although note that treaties can themselves codify or develop
customary law).
(c) If a treaty codifies existing customary law, the substance of the obligations specified in the treaty
may bind all states because either they are parties to the treaty and are bound in the normal
way (rule II), or, although not a party to the treaty and therefore not bound by it, because the
treaty codifies existing customary law, a non-party is bound by the same obligations as
expressed in the treaty (rule I) (e.g., Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory). This can have consequences
depending on the jurisdiction of the ICJ to decide questions under treaties and questions of
customary law.
(d) Many multi-lateral treaties are a mixture of codification of current customary law and
progressive development of that law. The latter can have the effect of evolving recognized
customary law (e.g., the 1982 Law of the Sea Convention Tunisia v Libya 1982 ICJ Rep 18). But
see North Sea Continental Shelf Cases 1969 ICJ Rep 3: in order to extrapolate a general
customary norm from a treaty provision, that provision should be of a fundamentally norm
creating character such as could be regarded as forming the basis of a general rule of law. That
is, it must be capable of general application, and be intended to be the basis for future state
practice, and supported by the necessary opinio juris and by acts of practice by non-parties.
Notes the controversy concerning whether treaties create law, or merely impose obligations which the
law says must be carried out. Adherents to the former view point to the notion that treaties are the
only method by which states can consciously create binding law, and that is how they are used. For the
latter view, i.e., of the treaty as contract, see Maclaine Watson v Dep’t of Trade and Industry [1989] 3
All ER 523. On this view, the only law involved in a treaty is the customary law that says states must
fulfil their treaty obligations: pacta sunt servanda.
Custom: is the foundation stone of the modern law of nations. Customary int’l law is that law which
has evolved from the practice or customs of states. There are certain conditions that must be fulfilled
before practice crystalizes into customary law (see, e.g., North Sea Continental Shelf Cases; Lotus Case
(1927) PCIJ Ser A No 10; Anglo-Norwegian Fisheries Case 1951 ICJ Rep 116; Nicaragua v USA 1986 ICJ
Rep 14):
(a) State practice: the absence of state practice in relation to an alleged rule of customary law is
fatal (Advisory Opinion on the Accordance with Int’l Law of the Unilateral Declaration of
Independence in respect of Kosovo (2010)). State practice includes, but is not limited to, actual
activity (acts and omissions (see Jurisdictional Immunities of the State (Germany v Italy: Greece
Intervening (2012)), statements made in respect of concrete situations or disputes, statements
of legal principle made in the abstract (e.g., those made preceding the adoption of a UNGA
resolution), national legislation, the practice of int’l organizations.
(b) Consistency of practice: the state practice must be reasonably consistent, or consistent and
uniform (Loftus Case), or settled practice (Jurisdictional Immunities of the State Case). This
criterion does not require total consistency and is satisfied if there is substantial consistency. The
degree of consistency required may also vary with the subject-matter of the rule in dispute
(Anglo-Norwegian Fisheries Case): e.g., law requiring positive act versus mere omission. Further,
the more fundamental the customary rule, the more consistent any contrary practice must be
before a change in the rule could be recognized. See also Nicaragua Case: there mere existence
of some state practice contrary to an existing or emerging rule of customary law should not be
taken without more to be destructive of that rule- rather, it should be presumed to be action in
breach of the rule.
(c) Generality of practice: for a universal norm of customary law to develop, the practice must be
fairly general; i.e., the practice must be generally adopted in the practice of states (AngloNorwegian Fisheries Case): not all states need participate before a general practice can become
law (North Sea Continental Shelf Cases). If consistent practice is widespread, a rule of customary
law will be taken to exist (Jurisdictional Immunities of the State Case). The standard will vary
with the subject-matter. Art 38(1) encompasses local custom as well as general custom
(Colombia v Peru 1950 ICJ Rep 266; Rights of Passage Case 1960 ICJ Rep 6). Note, however,
special weight may be given to the practice of those states whose interests are specifically
affected by the subject-matter (North Sea Continental Shelf Cases). Further, if a state initially and
persistently objects to a particular practice carried on by other states or adopts a contrary
practice, it may not be bound by an evolving customary rule (Anglo-Norwegian Fisheries Case).
Further, if that state is a particularly important operator in the relevant field it may prevent the
emergence of a customary law for other states. Subsequent objection to an established rule of
customary law cannot prevent it from binding that state. Note also that a state that did not exist
at the time of the formation of a custom, particularly if that custom is discriminatory or colonial
in origin, may not be bound by it.
(d) Duration of practice: the length of time required will vary with the subject-matter of the custom
(North Sea Continental Shelf Cases); the passage of only a brief period of time is not necessarily
fatal.
(e) Opinio juris: it is insufficient that there is general, uniform and consistent state practice: to
constitute law, states must recognize the practice as binding upon them as law, i.e., that the
practice is obligatory rather than merely convenient or habitual or acts of comity or friendship
(Lotus Case; North Sea Continental Shelf Cases; Jurisdictional Immunities of the State Case).
Opinio juris cannot be inferred from the fact of practice alone and must be independently and
positively established (North Sea Continental Shelf Cases, per the majority- contrast the
minority). See the Jurisdictional Immunities of the State Case, in which the ICJ found the opinio
juris in the consistent practice of domestic courts and repeated and unvarying public statements
of gov’ts. It may also be possible to find opinio juris in UNGA resolutions, statements by state
representatives, and in the fact that treaties covering similar ground as customary law have
been concluded (Nicaragua v USA).
(f) Change: it is a paradoxical feature of the int’l legal system that only through prima facie unlawful
conduct can some rules be modified or abandoned.
Treaties and custom can give rise to parallel binding obligations (Nicaragua v USA).
However, difficulties can arise if the treaty and customary law stipulate contradictory or dissimilar
obligations. If the treaty is later in time than the custom, then, subject to the operation of rules of jus
cogens, the treaty will prevail. Where contrary customary law has developed subsequent to the
adoption of a treaty, the position is unclear. It is likely that subsequent custom can modify treaty
obligations for state-parties only in exceptional circumstances. The general superiority of treaties is
displaced where rules of jus cogens are concerned (e.g., Art 53 of the Vienna Convention on the Law of
Treaties 1969). Note the scope of the rule: the rule is that a treaty must not contradict the obligation
or norm that has attained the status of jus cogens; it is not that a treaty cannot regulate how that
obligation or norm is upheld. That is, a treaty cannot contradict the substance of such a rule- but the
treaty can deal with procedural or peripheral matters (e.g., Jurisdictional Immunities of the State Case
2012). Examples of jus cogens include the prohibition on the use of armed force in int’l relations
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(Nicaragua v USA), and the prohibition on war crimes and crimes against humanity (Jurisdictional
Immunities of the State Case 2012).
General principles of law: today the reference to ‘civilized nations’ in Art 38(1)(c) is ignored. There is
controversy concerning to what Art 38(1)(c) refers:
(a) Natural law: some believe that the effect is to incorporate natural law doctrines into int’l law.
(b) Material sources: some say that general principles are material sources only- and that the only
law-creating sources are treaty and custom.
(c) Rules common to all legal systems: a third view is that the purpose of Art 38(1)(c) is to ensure
that int’l law includes rules and principles (e.g., procedural and administrative) common to all
legal systems because such rules are part of the structure of the law: e.g., where one party has
not participated formally in its proceedings, the Court takes it upon itself to consider all the
points that the absent state would have raised (US v Iran 1980 ICJ Rep 3; Nicaragua v USA);
evidential rules such as the exclusion of circumstantial evidence (Corfu Channel Case 1949 ICJ
Rep 4); the general principle that a claimant is entitled to receive compensation for proven
injury (Chorzow Factory Case (1928) PCIJ Ser A No 17; Danube Dam Case, [152]); the principle of
res judicata (Bosnia and Herzegovina v Serbia & Montenegro ICJ 2007).
(d) Principles of equity: principles of fairness and justice may be within the ambit of Art 38(1)(c)
(River Meuse Case; Temple of Preah Vikhear Case 1962 ICJ Rep 6; Burkina Faso v Mali 1986 ICJ
Rep 554). The concept of equity is a source of int’l law in the sense that it may influence how
more substantive rules are applied; it is a form of equity that consists of a method of
interpreting the law in force (Frontier Dispute Case, 58; India v Pakistan (1968) 50 ILR 2). That is,
the use of equitable principles is not the same thing as its power under Art 38(2).
(e) General p’ples of int’l law: Art 38(1)(c) may also include general p’ples of int’l law: e.g., sovereign
equality of nations; exclusiveness of a state’s jurisdiction within its own territory.
Suggests the general trend is that Art 38(1)(c) has eroded the strict positivist view of int’l law.
Judicial decisions: judicial decisions are law-identifying, not law-creating sources (see Art 59; Certain
Phosphate Lands in Nauru Case (1993) 32 ILM 46). Nevertheless, it is clear that the ICJ pays great
regard to both the actual decisions it has reached in previous cases, and the law declared therein (e.g.,
Interpretation of Peace Treaties Case 1950 ICJ Rep 65; Exchange of Greek and Turkish Populations Case
(1925) PCIJ Ser B No 10). This issue raises the extent to which the ICJ is limited to determining disputes
according to pre-existing legal rules. Suggests the ICJ is more involved in the process of law-creation
than Arts 38 and 59 suggest. Failing to comply with an ICJ judgement involves a disputant in int’l
responsibility (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Case 2004 ICJ Rep [149]-[153]). Further, an ICJ decision may impact customary law by confirming
trends in state practice (e.g., Anglo-Norwegian Fisheries Case; Tunisia v Libya) or by confirming that a
principle first adumbrated in a treaty or draft treaty has now attained the status of general customary
law (Libya v Chad 1994 ICJ Rep 6; Palestinian Wall Case; Bosnia and Herzegovina v Serbia &
Montenegro ICJ 2007), or by influencing state practice by showing the direction of the development of
the law (e.g., Nottebohm Case 1955 ICJ Rep 4).
Note also that judicial decisions is not restricted here to ICJ decisions.
Writings of publicists: these are material or evidential sources only, although they may have a tangible
influence on state practice by virtue of being the every-day first reference of the practicing int’l lawyer.
Resolutions and decisions of int’l organizations: these are omitted from Art 38 but can play a significant
role in the elucidation and development of customary law, the identification of opinio juris and settling
matters relating to the constitution of the organisation. Generally, they are material or evidential
sources and are not binding, e.g., the UNGA (e.g., East Timor Case, 261), although note that UNGA
resolutions concerning the internal working of the UN or matters peculiarly within its competence are
binding. Other UNGA resolutions may also feature an interplay with customary law or also be used to
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attack customary law. Note also, however, that UNSC decisions are binding on states (ICJ Advisory
Opinion on the Accordance of Int’l Law of the Unilateral Declaration of Independence in respect of
Kosovo (2010)).
Soft law: describes two distinct phenomena: those rules of int’l law that do not stipulate concrete
rights or oblig’ns for the legal persons to whom they are addressed (e.g., Art 2 of the CESCR 1966);
alternatively it can also refer to those values, guidelines, ideas and proposals that may but have not yet
developed into rules of int’l law.
Statute of the ICJ: Art 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to
it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.
Pauwelyn, Wessel and Wouters
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Advances the stagnation hypothesis: formal int’l law is stagnating in terms of quality and quantity and is
being increasingly superseded by informal int’l lawmaking, involving new actors, new processes, new
outputs, in fields ranging from finance and health to internet regulation and the environment; the traditional
structures of lawmaking have become shackles. Suggests this is explained by saturation with the existing
treaties and changed policy preferences of states; the transition towards an increasingly networked society;
an increasingly complex knowledge society.
(Online) Customary int’l law and the Freedom and Justice Party Case
International Law Commission, ‘Text of the draft conclusions on identification of customary law’
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Customary international law (‘CIL’) is unwritten law deriving from practice accepted as law and is an
important source of public int’l law.
The ILC adopted the following draft conclusions:
o Conclusion 1: Scope: these draft conclusions concern how the existence and the content of rules of CIL
are to be determined.
o Conclusion 2: Two Constituent Elements: to determine the existence and content of a rule of CIL, it is
necessary to ascertain whether there is a general practice and whether that practice is accepted as law
(opinio juris). Commentary: these are the essential cond’ns for the existence of a rule of CIL. See, e.g.,
Colombian-Peruvian Asylum Case 1950 ICJ Rep 266, 277.
o Conclusion 3: Assessment of Evidence for the Two Constituent Elements: in assessing evidence for
ascertaining whether there is a general practice accepted as law, regard must be had to the overall
context, the nature of the rule, and the particular circumstances in which the evidence is to be found.
Each of the two constituent elements is to be separately ascertained. Commentary: whether a general
practice that is accepted as law exists must be carefully investigated in each case, in the light of the
o
o
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o
relevant circumstances (North Sea Continental Shelf per Tanaka J, 671; Freedom and Justice Party
[2018] EWCA Civ 179, [19]). The nature of the rule in question may also be of significance when
assessing evidence. The existence of one element may not be deduced merely from the existence of
the other: a separate inquiry needs to be carried out for each; nevertheless, it is possible that the same
material may be used to ascertain practice and acceptance as law. The important point is that the
material must be examined as part of two distinct inquiries, to ascertain practice and to ascertain
acceptance as law.
Conclusion 4: Requirement of Practice: the requirement of a general practice refers primarily to the
practice of states that contributes to the formation, or expression, of rules of CIL. In certain cases, the
practice of international organizations also contributes to the formation, or expression, of such rules.
Conduct of other actors is not practice that contributes to the formation, or expression, of such rules
but may be relevant when assessing the practice. Commentary: also called the ‘material’ or ‘objective’
element, this refers to those instances of conduct that (when accompanied by acceptance as law) are
creative, or expressive, of CIL. International organizations are not states but are entities established
and empowered by states (or by states and/or other international organizations) to carry out certain
functions, and to that end have int’l legal personality, i.e., their own rights and obligations under int’l
law. Within this framework, relevant IO practice arises most clearly where member states have
transferred exclusive competences to the IO, so that the latter exercises some of the public powers of
its member states and hence the practice of the IO may be equated with the practice of those states.
Conclusion 5: Conduct of the State as State Practice: state practice consists of conduct of the state,
whether in the exercise of its executive, legislative, judicial or other functions. Commentary: to qualify
as state practice, the conduct in question must be “of the state.” The conduct of any state organ is to
be considered conduct of that state, whether the organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the organization of the state, and whatever its character
as an organ of the central government or of a territorial unit of the state. An organ includes any person
or entity that has that status in accordance with the internal law of the state; the conduct of a person
or entity otherwise empowered by the law of the state to exercise elements of governmental authority
is also conduct “of the state,” provided the person or entity is acting in that capacity in the particular
instance. The relevant practice is not limited to conduct vis-à-vis other states or other subjects of int’l
law; conduct within the state, such as a state’s treatment of its own nationals, may also relate to
matters of int’l law.
Conclusion 6: Forms of Practice: practice includes a range of forms, both physical and verbal acts, and,
under certain circumstances, inaction. Forms of state practice include: diplomatic acts and
correspondence; conduct in connection with resolutions adopted by an international organization or at
an intergovernmental conference; conduct in connection with treaties; executive conduct, including
operational conduct “on the ground”; legislative and administrative acts; decisions of national courts.
There is no predetermined hierarchy among the various forms. Commentary: see detailed examples.
Conclusion 7: Assessing a State’s Practice: account is to be taken of all available practice of a state,
assessed as a whole. If the practice of a state varies, the weight to be given to that practice may,
depending on the circumstances, be reduced.
Conclusion 8: The practice must be general: the relevant practice must be general, i.e., sufficiently
widespread and representative, and consistent; no particular duration is required. Commentary: First,
the practice must be sufficiently widespread and representative. Second, the practice must exhibit
consistency. See the North Sea Continental Shelf cases: the practice in question must be “both
extensive and virtually uniform” and it must be a “settled practice”; no absolute standard can be given
for either requirement: the threshold that needs to be attained for each has to be assessed taking
account of context. An indispensable factor to be taken into account is the extent to which those
States that are particularly involved in the relevant activity or are most likely to be concerned with the
o
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o
alleged rule (“specially affected States”) have participated in the practice (North Sea Continental Shelf).
Some period of time must elapse for a general practice to emerge; there is no such thing as “instant
custom” (North Sea Continental Shelf). See other indicia.
Conclusion 9: The requirement of acceptance as law (opinio juris): this requirement means that the
practice in question must be undertaken with a sense of legal right or obligation, i.e., distinguished
from mere usage or habit. Commentary: this is also referred to as the subjective or psychological
element, which requires that in each case, there exists among states an acceptance as law as to the
binding character of the practice in question, i.e., the relevant practice must be undertaken with a
sense of legal right or obligation, i.e., it must be accompanied by a conviction that it is permitted,
required or prohibited by CIL (North Sea Continental Shelf Case, [77]). Acceptance as law is to be
sought with respect to both the states engaging in the relevant practice and those in a position to react
to it (Military and Paramilitary Activities In and Against Nicaragua, [207]). It is not necessary to
establish that all states have recognized (accepted as law) the alleged rule as a rule of CIL; it is broad
and representative acceptance, together with no or little objection, that is required (Legality of the
Treat or Use of Nuclear Weapons, [67]).
Conclusion 10: Forms of evidence of acceptance as law: evidence may take a wide range of forms,
including: public statements made on behalf of states; official publications; government legal opinions;
diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection
with resolutions adopted by an international organization or at an intergovernmental conference.
Failure to react over time to a practice may serve as evidence of acceptance as law, if states were in a
position to react and the circumstances called for some reaction. Commentary: see expanded
commentary on evidence.
Conclusion 11: Significance of certain materials for the identification of CIL: a rule contained in a treaty
may reflect a rule of CIL if it is established that the treaty rule: (a) codified a rule of CIL existing at the
time the treaty was concluded; or (b) has led to the crystallization of a rule of CIL that had started to
emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted
as law, thus generating a new rule of CIL. Note, the fact that a rule is set forth in a number of treaties
may, but does not necessarily, indicate that the treaty rule reflects a rule of CIL.
Conclusion 12: Resolutions of int’l organizations and intergov’t conferences: a resolution adopted by an
int’l organization or at an intergov’t conference cannot, of itself, create a rule of CIL. However, such a
resolution may provide evidence for determining the existence and content of a rule of CIL, or
contribute to its development. A provision in such a resolution may reflect a rule of CIL if it is
established that the provision corresponds to a general practice that is accepted as law.
Conclusion 13: Decisions of courts and tribunals: decisions of int’l courts and tribunals, in particular the
ICJ, concerning the existence and content of rules of CIL are a subsidiary means for the determination
of such rules. Regard may be had, as appropriate, to decisions of national courts concerning the
existence and content of rules of CIL, as a subsidiary means for the determination of such rules.
Conclusion 14: Teachings: teachings of the most highly qualified publicists of the various nations may
serve as a subsidiary means for the determination of rules of CIL.
Conclusion 15: Persistent objector: if a state has objected to a rule of CIL while that rule was in the
process of formation, the rule is not opposable to the state concerned for so long as it maintains its
objection. The objection must be clearly expressed, made known to other states, and maintained
persistently. This is without prejudice to any question concerning peremptory norms (jus cogens).
Commentary: the persistent objector is to be distinguished from a situation where the objection of a
significant number of states to the emergence of a new rule of CIL prevents its crystallization
altogether (because there is no general practice accepted as law). The timeliness of the objection is
critical: the state must express its opposition before a given practice has crystallized into a rule of CIL,
and its position will be best assured if it did so at the earliest possible moment; once the rule has come
o
into being, an objection will not avail a state wishing to exempt itself. The objection must be clearly
expressed, meaning that non-acceptance of the emerging rule or the intention not to be bound by it
must be unambiguous. There is, however, no requirement that the objection be made in a particular
form. A clear verbal objection, either in written or oral form, as opposed to physical action, will suffice
to preserve the legal position of the objecting state. The requirement that the objection be made
known to other states means that the objection must be communicated internationally; it cannot
simply be voiced internally. It is for the objecting state to ensure that the objection is indeed made
known to other states.
Conclusion 16: Particular CIL: a rule of particular CIL, whether regional, local or other, is a rule of CIL
that applies only among a limited number of states. To determine the existence and content of a rule
of particular CIL, it must be ascertained whether there is a general practice among the states
concerned that is accepted by them as law (opinio juris) among themselves. Commentary: see citations
at 187-8.
Wood and Sender, ‘State Practice’
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This article is concerned with state practice as an element in the formation and identification of rules of CIL.
It is state practice from which CIL is derived: Jurisdictional Immunities of the State [2012] ICJ Rep 99, 143.
State practice is the ‘raw material’ of CIL, it ‘both defines and limits it’ (Case concerning Right of Passage over
Indian Territory [1960] ICJ Rep 99).
State practice is therefore to be distinguished from subsequent practice in the application of a treaty under
Vienna Convention on the Law of Treaties (1969) Art 31(3)(b) and from the common legal principles
underlying ICJ Statute Art 38(1)(c).
See North Sea Continental Shelf Cases [1969] ICJ Rep 3 and Jurisdictional Immunities of the State [2012] ICJ
Rep 99 for the con’ns that need to be fulfilled before state practice crystallises into, or evidences the
existence of a rule of CIL. Briefly, the practice must be general (i.e., sufficiently widespread and
representative, as well as consistent), and accompanied by a recognition that a rule of law or legal obligation
is involved.
State practice takes many forms and no one form is a priori more important than any other: what we look for
as state practice (or what counts as sufficiently general state practice) may vary depending on the rule and
context concerned.
However, to qualify as state practice, the conduct in question must be ‘of the state’, i.e., attributable to it.
Verbal conduct, whether written or oral, can also count as state practice. For example, it is possible that if a
state acts unlawfully, but nevertheless seeks to justify what it has done (or omitted to do) with legal
argument, the justification may have more legal significance (in terms of preserving or reinforcing the law)
than the action itself: e.g., Nicaragua v USA [1986] ICJ Rep 14, [207]).
The actions of all the branches of the central gov’t of a state, exec, legislative or judicial, can be considered as
state practice. So too may the acts of others insofar as they are acting as agents of the state or the acts in
question are otherwise attributable to the state.
Practice is not limited to conduct vis-à-vis other states: conduct within the state, e.g., a state’s treatment of
its own nationals, may also relate to matters of int’l law. That is, the practice of states embraces not only
their external conduct with each other, but is also experienced by internal matters, e.g., their domestic
legislation, judicial decisions, diplomatic dispatches, internal gov’t memoranda, and ministerial statements in
P’ment and elsewhere. The ILC’s 2016 draft conclusions on the identification of CIL provide a non-exhaustive
list in draft conclusion 6(2)).
Operational conduct ‘on the ground’ refers to ‘actual assertions of sovereignty’ Fisheries Case [1951] ICJ Rep
116 by states, e.g., passage over territory, impounding of fishing boats, passage of ships in international
waterways, and battlefield behaviour.
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The decisions of national courts are state practice Arrest Warrant Case [58]; Germany v Italy [72]–[77].
See other examples of forms of state practice.
Although the term generally used is ‘state practice’, the concept of practice may also cover the acts of other
int’l legal persons, namely, int’l (intergovernmental) organizations such as the UN and the EU.
The practice of states in the field of int’l law may be reflected in a wide range of sources, both primary and
secondary. Among the primary sources are diplomatic correspondence, and the proceedings of IOs and
national parliaments. Among secondary sources, many monographs and articles contain valuable information
about state practice, as does the work of scientific institutions, such as the ILC and ILA and reliable news
services, such as Keesings and Reuters.
R v Secretary of State for Foreign and C’th Affairs; Ex parte The Freedom and Justice Party [2018]
EWCA Civ 1719
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Arden LJ: the issue on appeal concerns the immunities to be given to “special missions,” which are temporary
missions, representing the state, sent by one state to another with the consent of the latter for the purpose
of dealing with it on specific questions or of performing in relation to it a specific task (UN Convention on
Special Missions 1969, adopted UNGA 8 Dec 1969, entered into force 21 June 1985). That is: (i) whether
under CIL the receiving state must grant, for the duration of the SM’s visit, the privileges of personal
inviolability (i.e., freedom from arrest and detention) and immunity from criminal proceedings (the “core
immunities”) in the same way that members of permanent missions are entitled to such immunities under
the Vienna Convention on Diplomatic Relations 1961, and (ii) whether such immunities are recognized by the
common law.
The UK has signed but not ratified the UNCSM for the reason that the UNCSM provides that SMs should
automatically have not only the core immunities but immunities extending beyond those which it might need
for its visit (Arts 25-28, 31.2).
The UNGA Res adopting the UNCSM described it as a measure of codification and progressive development
of int’l, although the UNCSM itself is silent as to whether its provisions reflect CIL.
The practice of the British gov’t is to provide consent in advance in appropriate cases to SMs, but to leave
questions of immunities to the courts (ministerial statement by the Foreign Sec to the House of Commons, 4
March 2013).
The Div Court below held that CIL requires a receiving state to secure, for the duration of the visit, the core
immunities for members of an SM accepted as such by the receiving state and that the common law gives
effect to this rule of CIL.
Agrees with the Div Court and dismisses the appeal.
The facts here are that Hegazy, who was accused of torture in Egypt, visited the UK as part of a delegation in
2015 which was accepted by the FCO as an SM. The appellants requested his arrest, but the FCO and CPS
stated that SM members are immune from arrest. No action was taken and he left the UK at the end of the
SM.
The UK would be bound under int’l law to confer immunity on an SM received and recognized by it only if CIL
required it to do so. Re-caps the two requirements of CIL. The practice said to represent a rule of CIL need
not be universal, but there must be a widespread, representative and consistent practice: substantial
differences of practice and opinion within the int’l community upon a given p’ple are not consistent with that
p’ple’s being law (Benkharbouche [2017] UKSC 62, [31]ff, citing ILC draft conclusions; Nicaragua v USA [1986]
ICJ Rep 14, [186]). See also North Sea Continental Shelf cases ICJ Rep 1969, 3.
The practice has to be virtually uniform and consistent but need not be universal; it is sufficient that it is
virtually uniform and consistent among those states which adopt the practice of recognising SMs and those
states which are in a position to react to the grant of the core immunities. They must have acted so that their
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conduct evidences a belief that they are required to grant those immunities by the existence of a rule of law
requiring it (Nicaragua v US ICJ Reports 1986, 108-9).
Recaps the history of the CIL on SMs. See 2012 report that found that certain basic principles enunciated in
the UNCSM, including the requirement of consent and the inviolability and immunity from criminal
jurisdiction of SMs, reflect CIL. Considers other evidence concerning whether there are rules of CIL
concerning the core immunities for the members of an SM. Considers state practice, including court decisions
and statements by the respective executives, asserting such a rule of CIL in the UK, USA, certain European
countries. Considers other sources of evidence: a CAHDI survey; the opinions of jurists.
CIL:
[78]ff: there is a very considerable amount of evidence of different types to satisfy the two elements required
for CIL and very little against.
The appellants submitted that the evidence is not sufficiently representative. Disputes this; further notes that
the primary concern is with affected states, i.e., states who either send (or wish to send) or receive and
recognize SMs. No such state has ever objected to the proposed rule. Considers others of the parties’
submissions.
Replies to the parties’ submissions.
[87]: the failure of the UNCSM to gain greater acceptance in the international community is not evidence
against the existence of the rule of CIL supporting the core immunities for SMs. It has failed to gain support
because of its inflexibility and the width of the immunities it confers. Its presence indicates the general
acceptability of the institution of SMs and that such missions should have some immunities to enable them
to function effectively. Far from rejecting the concept of ad hoc diplomacy, states have created substitute
mechanisms in the form of recognised SMs with limited immunities.
Various treaties like the UNCSM and the Havana Convention are evidence not only of state practice but also
opinio juris regarding the core immunities.
Notes Australia did not participate in the CAHDI survey.
Considers whether there is an exception to the core immunities for serious int’l crimes, e.g., torture. Says no,
and that there is no problem about this: see the Jurisdictional Immunities case: there is no conflict between
the CIL rule of immunity for members of an SM and the prohibition of torture as a norm of jus cogens since
jus cogens is a rule of substantive law and immunity is a matter of procedural law.
Similarly, rejects the submission that the immunity be limited to official acts since that would involve
invading the immunity to determine the officiality of an act.
Common law:
The second issue is whether the CIL rule of immunity for members of SMs accepted as such by the receiving
state forms part of the common law of England and Wales.
Originally, the view of the relationship between the common law and CIL was that CIL simply was part of the
common law (e.g., Triquet v Bath (1764) 3 Burr. 1478, 1481; Trendtex Trading Corp. v Central Bank of Nigeria
[1977] QB 529). The modern view, however, is that CIL is a source of common law rules, but will only be
received into the common law if such reception is compatible with general principles of domestic
constitutional law. See, e.g., R v Jones (Margaret) [2007] 1 AC 136, in which the House of Lords held that the
crime of aggression, recognised as a rule of CIL, did not establish the creation of such a crime domestically in
the common law, because the creation of new criminal offences is solely a matter for Parliament ([20]-[23],
[60]-[62]; [23]: Lord Bingham approved as a general proposition that “customary international law is
applicable in the English courts only where the constitution permits”). See also R (Keyu) v Secretary of State
for Foreign and Commonwealth Affairs [2016] AC 1355, [144]-[146], [150]: generally, the presumption when
considering any such policy issue is that [CIL], once established, can and should shape the common law,
whenever it can do so consistently with domestic constitutional principles, statutory law and common law
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rules which the courts can themselves sensibly adapt without it being, e.g., necessary to invite Parliamentary
intervention or consideration.
So, the presumption is that a rule of CIL will be taken to shape the common law unless there is some positive
reason based on constitutional principle, statute law or common law that it should not. The presumption
reflects the policy of the common law that it should be in alignment with the common customary law
applicable between nations.
However, the position is otherwise concerning unincorporated treaty obligations, which do not in general
alter domestic law. In part, since the making of treaties is a matter for the executive, this reflects the
principle that the Crown has no power to alter domestic law by its unilateral action (J.H. Rayner (Mincing
Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499-500; R (Miller) v Secretary of State for
Exiting the European Union [2017] 2 WLR 583). The common law is more receptive to the adoption of rules of
CIL because of the very demanding nature of the test to establish whether a rule of CIL exists. That is not
something that the Crown can achieve by its own unilateral action by simple agreement with one other state.
Accordingly, in the case of a rule of CIL the presumption is that it will be treated as incorporated into the
common law unless there is some reason of constitutional principle why it should not be. In the case of an
obligation in an unincorporated treaty the relevant rule is the opposite: it will not be recognised in the
common law.
These considerations mean that caution is required concerning the remarks of Wilcox J in Nulyarimma v
Thompson (1999) 165 ALR 621, [20].
The proper analysis here is that the reception of the rule of CIL into the common law means that a rule of law
is recognised according to which the exercise of prerogative powers may produce domestic law
consequences. But as per Miller, [52]: while the exercise of the prerogative power in such cases may affect
individual rights, the important point is that it does not change the law, because the law has always
authorised the exercise of the power.
The relationship between int’l law and Australian law
Devereux and McCosker, ‘Int’l law and Australian law
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Different kinds of relationships between int’l law (I-law) and municipal law (M-law) are possible: e.g., I-law
can be a source of law; I-law can be an influence on the interpretation of M-law; I-law can be an influence on
exec decision-making.
General rel’nship between int’l law and domestic law
Suggests the rel’nship between I- and M-law has become increasingly complex, due at least in part to four
factors:
o Increasingly interconnected world in which the delineation between I- and M-law is increasingly
blurred;
o Shrinking of the “reserved domain” of issues previously regarded as exclusively within the competence
of the nation state;
o Increasing focus in I-law on implementation, compliance and enforcement;
o Increasing awareness and understanding of I-law and its use as a tool of domestic advocacy and policymaking in Australia.
Considers different theories of the rel’nship between I-law and M-law:
o Monism and dualism: according to monism, I-law and M-law form part of the same universal
normative order, and so I-law does not need to be translated into an M-law system- rather, the act of
ratification of I-law automatically incorporates it into M-law. According to dualism, they are distinct
legal orders, and for I-law to apply domestically, it must first be transformed into M-law.
o Incorporation and transformation approaches: acc to the former, I- law is automatically incorporated
as part of M-law, to the extent that it does not conflict with domestic statutes or judicial precedents.
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Acc to the transformation approach, I-law must first be 'transformed' or translated into M-law by an
act of that state, such as by enacting legislation. See Trendtex Trading Corporation v Central Bank of
Nigeria [1977] QB 529, 553 (Lord Denning MR).
Says in Australia, the dualist and transformationist approaches dominate in relation to treaty oblig’ns
(treaties do not form part of Aust law unless their provisions have been validly incorporated into domestic
law by statute). Suggests the situation is more complex with respect to CIL.
Recaps the relevant const arrangements in Aust: the exec exercises the prerogative powers of the Crown
under s 61, including plenary power to negotiate and enter into treaties on any subject-matter without
requiring p’mentary approval. Under s 51(xxix), the C’th p’ment has the power to make laws with respect to
external affairs, and this includes the implementation of both treaties and CIL. Since the Const is largely silent
on the rel’nship between I-law and M-law, it is primarily determined by common law rules inherited from the
UK.
Treaty law and Aust law
Although the exec has plenary power (see above), note the 1996 reforms, e.g., requiring the tabling of
treaties in p’ment before binding action is taken, accompanied by a National Interest Analysis, and the
establishment of a Joint Standing Committee on Treaties to scrutinise potential treaty action.
As above, provisions of a treaty to which Aust has become a party do not form part of Aust law unless and
until their provisions have been validly incorporated into domestic law by statute (R v Burgess (1936) 55 CLR
608, 644, citing Walker v Baird (1892) AC 491; see also Tajjour v NSW (2014) 313 ALR 221, 250, 281), although
note the narrow exception with respect to self-executing treaties, e.g., treaties of peace and treaties
affecting belligerent rights. See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-7:
the principle has its foundation in the proposition that, in Aust’s const system, the making and ratification of
treaties fall within the province of the exec in the exercise of its prerogative power, whereas the making and
the alteration of the law fall within the province of the legislature; so, a treaty that has not been incorporated
into Aust’s municipal law cannot operate as a direct source of individual rights and obligations under that
law. See also Dietrich v R (1992) 177 CLR 292, 305; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 193. See
Minogue v Williams (2000) 60 ALD 366, 371 for an example.
Most treaties explicitly or implicitly leave to the discretion of the state the means or implementing their
oblig’ns. Australia’s publicly stated policy is to ensure that necessary legislation is enacted, either by the C’th
or state gov’ts, before ratification of a treaty.
If the C’th gov’t does take legislative action to implement a treaty, it often relies on s 51(xxix). In order to
enliven this power:
o The treaty provisions must be defined with sufficient specificity to direct the general course to be
taken by the contracting party (Victoria v C’th (1996) 187 CLR 416, 486). That is, treaty provisions that
are purely aspirational may not be sufficiently specific to attract the legislative power.
o The legislation must reasonably be considered to be appropriate and adapted to fulfilling the treaty
obligations (Airlines of NSW Pty Ltd v NSW [No 2] (1965) 113 CLR 54, 87; C’th v Tas (1983) 158 CLR 1,
131, 259; Richardson v Forestry Commission (Tas) (1988) 164 CLR 261, 289, 303). This requires a close
comparison between the nature of the obligation and the legislative provision introduced. It is not
necessary that the legislation picks up all aspects of a treaty (C’th v Tas (1983) 158 CLR 1, 234), or that
the legislation uses the exact language of the treaty or convention (e.g., DJL v The Central Authority
(2000) 201 CLR 226, 275). However, the subject matter must be sufficiently linked to performance of
an obligation. Where legislation involves partial implementation, it must not, because of its
selectiveness, have an impact inconsistent with the treaty.
Note that the external affairs power also supports the passage of legislation in anticipation of treaty action
(Richardson v Forestry Commission (Tas) (1988) 164 CLR 261, 295). However, Mason CJ in R v Australian
Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235, 243 added a caveat that the provisions
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should not come into operation before the treaty itself becomes binding on Australia. Note that even if a
treaty or convention were void or unlawful under int’l law or, if Australia's entry into or performance of the
treaty or convention involved a breach of Australia's obligations under int’l law, the Act and the
Consequential Act would not thereby be deprived of their character as laws with respect to 'external affairs'
for the purposes of s 51(xxix) (Horta v C’th (1994) 181 CLR 183, 195).
CIL and Aust law
The rel’nship between CIL and domestic law in Aust remains unsettled. Suggests the general approach is that
the courts have rejected any automatic incorporation of CIL into domestic law, but have allowed CIL as a
significant influence in relation to the development of the Aust common law.
The UK background: see Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553-4, per
Lord Denning MR: the English position conforms to the doctrine of incorporation. See also Maclaine Watson
& Co v Department of Trade and Industry [1988] 3 All ER 257, 324. However, see Ex parte Pinochet Ugarte
[No 3] [1999] 2 All ER 97, which seemed to move towards a transformation approach.
The Aust position: see Polites v C’th (1945) 70 CLR 60, 80-1, which seems to suggest an incorporation
approach. However, in Chow Hung Ching v The King (1948) 77 CLR 449, 477, Dixon J said that the idea that
int’l law is automatically incorporated in national law is without foundation; however, while not a part of
domestic law, int’l law is one of the sources of national law. In Nulyarimma v Thompson (1999) 96 FCR 153,
the issue was whether the customary prohibition of genocide was automatically part of Aust law in the
absence of implementing legislation. At 161, 166, 176, the FCA found that the prohibition was a jus cogens
norm, and therefore that the customary prohibitions concerning genocide exist independently of the
Convention; however, the majority found that without implementing legislation, the convention could have
no effect on national law. So, even in relation to a customary jus cogens norm, Aust courts remain reluctant
to recognize automatic incorporation. Note however Merkel J’s dissenting judgement that found that
genocide is a part of the Aust common law, at 205, see also 189-91. See also references at nn 74 and 75.
Indirect effect of int’l law
See various uses by Aust courts of int’l law as a source for developing the common law: e.g., Murphy J’s use
of the ICCPR in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 and McInnis v R (1979) 143 CLR 575.
See also Mabo [No 2] (1992) 175 CLR 1, 42: the common law does not necessarily conform to int’l law, but
int’l law is a legitimate and important influence on the development of the common law, especially when int’l
law declares the existence of universal human rights.
Subsequent cases, e.g., Dietrich v R (1992) 177 CLR 292, 306 suggested that the influence of treaties might be
limited to cases where the common law was uncertain or ambiguous, with less ambitious use of int’l law to
develop the common law. See also EPA v Caltex (1993) 178 CLR 477, 499; WA v C’th (1995) 183 CLR 373, 486;
Teoh (1995) 183 CLR 273, 288 for cautionary remarks.
There is also the Australian canon of SI that it is presumed that p’ment intends to give effect to Aust’s
obligations under int’l law (Polites v C’th (1945) 70 CLR 60, 68-9; Jumbunna (1908) 6 CLR 309, 363). But see
Teoh (1995) 183 CLR 273, 287-8; Coleman v Power (2004) 220 CLR 1, 28; Kruger v C’th (1997) 190 CLR 1, 71;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ( 2003) 214 CLR 1, 33
[100]; Kartinyeri v Commonwealth (1998) 195 CLR 337, 384; Plaintiff S157/2002 v Commonwealth (2003) 211
CLR 476, 492 n 64, cited by Kiefel J in Plaintiff Ml0/2011 v Minister for Immigration and Citizenship (2011) 244
CLR 144, 234. See also competing approaches in Al-Kateb v Godwin (2004) 219 CLR 562, 581; CPCF (2015) 255
CLR 514, [11], [462].
In addition to this common law presumption of SI, see also Acts Interpretation Act 1901 (Cth) ss 15AB(1) and
(2). See Plaintiff M70/2011 (2011) 244 CLR 144, 190, 192 and see other sources there in for conflicting
approaches.
The readiness to use int’l law in SI has not extended to CI- see, e.g., AMS v AIF (1999) 199 CLR 160, 180; AlKateb v Godwin (2004) 219 CLR 562, 589-95.
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Int’l law can also indirectly affect domestic Aust law via the exercise of administrative power. See, e.g., the
legitimate expectations approach in Teoh (1995) 183 CLR 273, 291 but subsequent expressions of disapproval
in Ex parte Lam (2003) 214 CLR 1, 32 and Plaintiff S10/2011 (2012) 246 CLR 636, 658.
Conclusion:
The approach of Australian courts to I-law remains somewhat uneven. While courts have been united in the
fundamental rule that I-law does not form a 'part' of Australian law, they have been willing to resort to I-law
as an 'influence' on M-law - particularly in the fields of SI and development of the common law
The cautiousness of Australian courts may also be, as Hilary Charlesworth has suggested, because the use of
international norms 'unsettles and challenges many of the rigidities and limitations of Australian law'.
French, ‘Legal practice in a global neighbourhood’
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The topic is to point to the ways in which Australian law and legal practice are increasingly affected by our
global legal environment.
Concrete cases:
o Koowarta v Bjelke-Petersen (1982) 153 CLR 168: Koowarta and his community wanted to acquire a
pastoral lease in QLD. He approached a C’th body, the ALFC, for finance to help with the purchase of
the ARPH. The ALFC agreed and in Feb 1976, entered into a contract to acquire the pastoral lease.
Under the Land Act 1962 (Qld), the transfer required the approval of the QLD Minister for lands, which
was not given based on Koowarta’s race. Koowarta commenced a proceedings under s 9 of the RDA;
the QLD gov’t replied that the act is invalid. The C’th contended that the RDA was validly enacted
pursuant to the s 51(xxix) on the basis that it was passed to give effect to Aust’s int’l obligations under
the CERD and also that the prohibition against racial discrimination had become a norm of CIL,
whereas the QLD gov’t contended that racial discrimination was a matter of purely domestic concern.
The HCA’s 4:3 decision established that s 51(xxix) authorized the C’th p’ment to make laws with
respect to a matter of international concern in respect of which Australia had undertaken treaty
obligations even if that matter was not otherwise the subject of the law-making powers of the C’th
p’ment. This decision opened the way for the Mabo decisions.
o Mabo v Qld [No 2] (1992) 175 CLR 1: see Brennan at 42: ‘the common law does not necessarily
conform with international law, but international law is a legitimate and important influence on the
development of the common law, especially when international law declares the existence of universal
human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and
political rights demands reconsideration’ (Mason CJ and McHugh J agreeing at 15).
o Dietrich v The Queen (1992) 177 CLR 292: Brennan at 321 referred to Art 14 of the ICCPR and said,
‘although this provision of the Covenant is not part of our municipal law, it is a legitimate influence on
the development of the common law’ (see also Mason CJ and McHugh J at 300).
See other examples of cases. Says these cases illustrate the interaction of int’l law with Australia’s domestic
law.
Globalization and int’l law, trade and commerce:
See AGO report: globalisation has seen a shift in the market place with the growth of 'global law' firms, an
increase in international trade in legal services and legal practice operating in a 'borderless environment'. See
also Finn: this international dimension is becoming of increasing importance as international commercial law
falls increasingly under the influence of internationally accepted general principles and trade practices and
usages, particularly in the context of international commercial arbitration.
Is int’l law truly law?
Summarizes both sides of the debate.
The sources of int’l law:
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International law and domestic law differ in the character of their sources: domestic law is derived from and
legitimated by the constitutional machinery of law-making, whereas there is no global constitutional machine
which acts as a formal source of international law.
Recaps Art 38 of the ICJ Statute.
Theories of the interaction between int’l law and municipal law:
The Monists regard international and domestic law as part of a single idea of law which binds individuals,
albeit in international law their conduct is attributed to States. Dualists, on the other hand, maintain that the
sources and content of international law and domestic law differ so greatly that the former can never
become part of the latter unless so made by the legislative power of the State.
Australian jurisprudence does not exclude the application of rules of CIL and of unincorporated treaty
obligations to the interpretation of domestic statutes, or the influence of international law in the
development of the common law. Six propositions going to the extent and limits of dualism in Australia were
set out by Gummow J in 1992 in Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529, 534-5:
o It is for Parliament not the Executive to make or alter domestic law. Legislation is necessary to render
international obligations enforceable in the courts.
o Mere legislative approval of treaties or other obligations assumed by the Executive does not render
the treaties or obligations binding on individuals within Australia nor does it create justiciable rights for
individuals.
o Absent parliamentary incorporation by legislation of a convention which has been ratified by Australia,
the terms of the convention may still be used in interpreting domestic legislation. The underlying
principle is that parliament should be presumed as intending to legislate in accordance with, and not in
conflict with, international law.
o In some cases a statute may adopt the language of a convention in anticipation of Australian
ratification. The provisions of the convention may be used to assist resolution of an ambiguity in the
interpretation of the statute but not so as to displace its plain words.
o ADMs may have regard, in exercising discretions under international law, to international obligations
or agreements which have not been incorporated into the domestic law.
o There may be cases in which an expression used in a domestic statute is given the meaning it bears in a
particular convention.
An example of dualism- int’l law and the interpretation of the Const:
See Polites v C’th (1945) 70 CLR 60, 78: the Court rejected the proposition that the law-making powers of the
Commonwealth were limited by rules of international law- the grants of power to the parliament are plenary.
Int’l law and the interpretation of statutes:
See Polites v C’th (1945) 70 CLR 60, 77: unless a contrary intention appear, general words occurring in a
statute are to be read subject to the established rules of international law.
See also principle of legality and listed freedoms recognized by the common law. Further, it is arguable that
some of the civil and political rights protected by some int’l conventions have become part of CIL which itself
may be incorporated in or inform the development of the common law. If such rights and freedoms become
part of the common law, they may be relied upon in the interpretation of statutes using the principle of
legality.
Int’l trade law:
International law, treaties and conventions have a big part to play in trade and commerce in which Australia
is involved. There are many bodies, e.g., WTO, the ILO, the World Bank, the World Intellectual Property
Organisation, the United Nations Conference on Trade and Development, APEC, which shape the content and
processes of international trade law and have their effects on domestic legal systems.
See the role of UNIDROIT, the work of which has given rise to many important int’l instruments including
Conventions relating to uniform laws for the international sale of goods, international wills, financial leasing,
factoring, franchise disclosure and international securities. Of particular importance are its published
Principles of International Commercial Contracts, on which, see Finn: the principles are in the nature of
default rules which can readily be incorporated into the terms of a domestic contract made in this country.
 In all of these developments in global trade and commerce, the future role of the Australian judicial system
might be thought to be at risk: this is a concern about the authority and visibility of the rule of law in
commercial disputes involving international actors which, although able to be classed as private disputes
governed by contract, may yield outcomes of great importance to the Australian community.
Roberts, ‘the divisible college of lawyers’
 This book is not about international law per se in the sense of the formal sources of international law, but
rather explores how different national communities of international lawyers construct their understandings
of international law in ways that belie the field’s claim to universality and perpetuate certain forms of
difference and dominance.
 To understand international law as a transnational legal field that encompasses multiple national traditions,
international lawyers need to be aware of certain national or regional differences in approaches to
international law, as well as the extent to which some of these approaches have come to dominate
understandings of the “international” in a way that can make them appear, or allows them to be presented
as, neutral and universal. Like processes of globalization more generally, the field of international law is
defined by a dynamic interplay between the centripetal search for unity and universality and the centrifugal
pull of national and regional differences. The balance between these forces of convergence and divergence
can also be disrupted by various changes, including technological innovation, changing domestic political
preferences, and shifts in geopolitical power.
2. Case study 1: Whaling and Int’l law
Whaling – Introduction to the law of the sea and to whaling in Australian waters
Introductory videos
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Says the law of the sea is one of the most important areas of public international law.
Laws relating to the ocean tend to be dated to the debate between Grotius and Selden. Grotius said that
apart from a narrow coastal strip, the open oceans are open and free to all users (mare liberum). Selden,
however, argued for mare clausum.
Says critical events occurred in the 20th century. First codification attempts in 1930s: focus was on the
territorial zone. See the canon shot rule and the high seas beyond the territorial zone. See also laws of naval
warfare and marine resources.
After WWII, technology influenced the shaping of the law of the sea, particularly fishing vessel technology
and the discovery and extraction of offshore fossil fuels from the continental shelf.
See Truman Proclamation and the ILC articles which led to the first UN conference on the law of the sea
(1956), culminating in the adoption of four treaties in 1958. Second conference in 1960. Much controversy
over the width of the territorial sea and EEZ. Note primary interests at stake in lead up to the third
conference: fish; oil and gas; polymetallic nodules; naval interests; int’l trade (and straits); marine
environment. Note negotiation blocs: the West; the USSR and allies; the G-77. But note other ways of
dividing up the stakeholders: naval powers v non-powers; long coastline states v short coastlines v landlocked
states; states with long range fishing fleets v states wishing to control access to fishing resources; states with
extensive continental shelves v short continental shelves; archipelagic states wishing to protect the seas
between their islands and those not; states wishing to maintain freedom of navigation v states wishing to
control access and control over the seas off its coast. UNCLOS (“the constitution of the oceans”) adopted in
1982 after 10 years negotiation. The key point of concern with UNCLOS was the regime adopted for the
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exploitation of the deep-sea bed: Pt 11 of UNCLOS established the ISA on the basis of the common heritage
of humankind. Many developed countries rejected this aspect of UNCLOS. In the 1990s exploitation of the
deep-sea bed came to be seen as less economically viable than first thought. Modified operation of the ISA
and developed countries began to adopt this aspect of UNCLOS which entered into force in 1994. It now has
almost 170 state parties.
UNCLOS is not the only relevant treaty for regulating ocean activities.
UNCLOS:
o Divides the ocean into different maritime zones and sets out the rights and duties of states in relation
to each of these zones (basic rule of thumb is that the closer to a state’s coastline one is, the more
control over that area the state has). Note the zones also exist for islands (except for rocks that cannot
sustain human habitation or an economic life of their own; a rock that is built up per artificial activity
does not graduate; see Art 121(3); note other kinds of rock features with different surrounding
maritime zones). States are entitled to claim maritime zones not only off their mainland, but also in
relation to any islands or other territories quite separate to the mainland and over which they have
sovereignty (Art 121(2)). The zones are:
 Internal waters: intimately connected to land and set by baselines. Within internal waters,
states have full sovereignty, as full as over land. UNCLOS Art 2.
 Territorial sea: the coastal state has sovereignty over the water, sea bed and airspace in this
zone (UNCLOS Art 2). Up to 12nm from the baseline. But sovereignty is not absolute: vessels of
all other states have rights of innocent passage, which allows vessels to enjoy continuous
passage provided it does not interfere with the peace, order and good security of the coastal
state (UNCLOS Arts 17-19). Activities that might violate innocent passage include: use or threat
of use of force, fishing, surveillance, unloading of goods or people in violation of national laws,
military exercises. UNCLOS Art 3; Cth v Yarmirr (1999) 101 FCR 171, 280-1.
 Straits: subject to a regime of transit passage, which allows passage in the normal mode of the
vessel (submarines can stay submerged, whereas for innocent passage, they must surface).
 Contiguous zone: can extend up to 24nm. States can claim the contiguous zone. Seas and
Submerged Lands Act ss 13A–13C; Migration Act 1958 (Cth) s 245B(4); UNCLOS Arts 33(1)-(2).
 EEZ: can extend up to 200nm from its baselines. Within EEZ, coastal states have sovereign rights
to explore, exploit, conserve and manage the natural resources of this zone (UNCLOS Art 56).
Coastal state has excl jurisdiction over the protection and preservation of the marine
environment, marine scientific research, and construction of artificial islands and installations.
Other states’ rights in this zone include freedom of navigation and freedom to lay submarine
cables and pipelines (UNCLOS Art 58). UNCLOS Art 57. Seas and Submerged Lands Act ss 10A10C.
 Continental shelf: coastal state has sovereign rights over seabed extending 200nm from
baselines for purposes of exploring and exploiting its natural resources. Note possibility of claims
of outer continental shelf zone. UNCLOS Arts 76-7.
 Maritime boundaries.
 High seas: beyond EEZ. No state has sovereignty here. Each state exercises exclusive authority
over the vessels flagged to it, or that have been registered in that state. No state can interfere
with the vessel flagged to another state on the high seas, although exceptions exist for rights of
visit and hot pursuit in certain circumstances. UNCLOS Arts 89; 87; 116-20. On the high seas, the
rights of states are limited to vessels flying their respective flags and, as a general rule, it is only
the flag state that may exercise jurisdiction over its vessels on the high seas (UNCLOS Art 92).
 Deep sea bed: below the high seas and beyond the continental shelf. No state has sovereignty
here- ISA has exclusive powers to authorize exploration and exploitation (UNCLOS Pt 11).
o There are also provisions dealing with specific marine issues.
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Contains a compulsory dispute settlement regime: it is commonly the case that states will not be able
to claim their full entitlement to an EEZ or over the continental shelf because it would overlap with the
claim of another coastal state; if so, the neighbouring states must agree to delimit the overlapping
zones, with UNCLOS requiring that they do so on the basis of IL to achieve an equitable solution (Arts
74, 83).
Note also the 1995 fish stocks agreement.
Moffa, ‘Two competing models of activism, one goal’
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Says that in recent years the NGO community has played an increasingly important and well-recognized role
in shaping IL. Says the 2011 events show that environmental NGOs now have the ability to compel
compliance with int’l commitments through unilateral action.
The New Haven theory of int’l lawmaking identifies 7 categories of actions: intelligence, promotion or
recommendation, prescription, invocation, application, termination and appraisal. Says this theory’s
function-based stages better describe the effects of activism than conventional designation that relies on the
identity of the actor or forum. NGO activism can be understood as carrying out four of these functions:
promotion, prescription, invocation, or application.
Notes the events of 2011 in which the Japanese whaling fleet was forced to return prematurely as a result of
harassment by the NGO SSCS. Notes also the historical background: e.g., the ICRW of 1946 now has 89
parties and is the primary legal document governing the whaling practices of participating nations; see the
scientific research or special permit exception in Art VIII. Says that even if Japan’s actions fall under Art VIII,
they do not conform to the CIL and VCLT principle of pacta sunt servanda.
This article examines the relative merits of two competing models of NGO activism via the case study of
whaling, each of which has had a greater impact on Japanese whaling than formal enforcement mechanisms
such as resolutions:
o Protest activism: adopted by Greenpeace’s utilization of consumer boycotts and protests to encourage
divestment. Consists of legal activities co-ordinated by the public and NGOs meant to put indirect
pressure on entities purportedly violating IL: this is a law-promoting or -prescribing function: it aspires
to shift public policy and community expectations. Says the greatest advantage of this model of
activism is its lawfulness under DL and IL. However, protest activism, though it serves law promotion
and prescription functions, ultimately lacks sufficient force to effectively change behaviour.
o Interventionist activism: adopted by SSCS’s utilization of a fleet of ships to directly intervene in and
obstruct whaling ops in the Southern Ocean: this is law-invocation and direct law-application to
implement existing laws and policies. Rather than promoting a certain policy or attempting to shift
community expectations, this type of interventionist activism explicitly invokes and applies
prescriptions already found in IL agreements. Says it is more powerful than protest activism, although
its drawback is its unlawfulness (e.g., piracy per Art 101 of UNCLOS and Castle John and Nederlandse
Stichting Sirius v NV Mabeco and NV Parfin 77 ILR 537, 537-41 (Belg Ct Cass 1986); contravention of
UNCSUA art(1)(b) 1678 UNTS 201) and undercuts the international rule of law: the legitimacy of the
international legal regime at its core depends on the ability of nations to make reciprocal
commitments, trusting that such agreements will be upheld (pacta sunt servanda): if enough actors
can ignore binding legal commitments without consequence, then the principle at the foundation of
the international legal system may be compromised beyond repair and cooperative international legal
efforts could become increasingly rare, or at the very least much more difficult to undertake, due to a
lack of trust.
For the reasons mentioned above, in order to remain an effective tool, interventionist activism should be
employed sparingly by social movements and aimed only at those causes with truly silent and undervalued
victims.
Klein and Hughes, ‘National litigation and int’l law: repercussions for Aust’s protection of marine
resources’
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Recent litigation before Australian courts in relation to the protection of certain marine resources (namely,
whales, southern bluefin tuna and hydrocarbon resources in the Timor Gap) may have repercussions for
Australia’s standing and responsibility within international legal regimes. This paper questions the extent to
which Australian courts should not only be generally cognisant of the IL framework in which their decisions
sit but also take specific account of Australia’s int’l rights and duties in determining a matter.
This raises the problem of how national courts should address cases involving IL issues. There has generally
been a reluctance in the form of judicial doctrines such as the need for the different branches of gov’t to
“speak with one voice” (The Arantzazu Mendi [1939] AC 256, 264; Thomas v Mowbray (2007) 233 CLR 307,
354–5), non-justiciability and deference to the executive (e.g., Thomas v Mowbray (2007) 233 CLR 307, 354;
Buttes Gas & Oil Co v Hammer [1982] AC 888, 931). But, the changing context in the 20th century led to
changing approaches: in the early 1990s, Koh argued that national courts should address those politically
charged cases ‘transnational public law litigation’, rather than applying judicial doctrines to avoid them (a
careful examination of whether a court has jurisdiction was to be the means for assessing whether cases with
int’l implications should be heard and resolved); see subsequently Benvenisti: for courts in most democratic
countries, referring to foreign and IL has become an effective instrument for empowering the domestic
democratic processes by shielding them from external economic, political, and even legal pressures.
So, national litigation related to Australia’s protection of marine resources allows a preliminary assessment
as to the extent to which Australian courts are embracing Benvenisti’s notion of empowering domestic
democratic processes. Says that consistently with Koh’s ‘doctrinal targeting’, the courts have carefully
considered whether they have jurisdiction to determine the cases presented or whether deference should be
accorded to the other branches of gov’t.
Aust’s rights and obligations under the law of the sea:
These are predominantly drawn from UNCLOS 1982 and have been enacted via a range of legislation, incl
Seas and Submerged Lands Act 1973. The law of the sea comprises a complex body of law: the oceans are
divided into various maritime zones, and the rights and duties of a state and its vessels will depend on the
location of the particular activity being undertaken. Any declaration of a maritime zone by a state will have
an international aspect (Fisheries Case (UK v Norway) [1951] ICJ Rep 116, 132) and virtually all activities
undertaken by states at sea are subject to varying degrees of international regulation: so, it could reasonably
be anticipated that any national court decision addressing ocean resources would involve some reference to
the IL of the sea.
Recaps the various zones and the ensuing rights and duties (see above). Under IL neither Australia’s
representatives nor any private citizen may board without consent a Japanese whaling vessel that is located
on the high seas.
Notes the AAT: Australia’s claim to maritime zones (see SSL Act ss 6, 10A, 11; see also EPBC Act s 225(1)) off
the AAT is controversial under IL as Australia does not have recognised sovereignty over this area; instead, an
int’l cooperative regime created through the adoption of the Antarctic Treaty and related instruments,
collectively known as the Antarctic Treaty System (‘ATS’). An important aspect of the Antarctic Treaty is the
‘freezing’ of all sovereignty claims by art 4, giving rise to considerable debate concerning whether maritime
zones can be claimed in the waters around the Antarctic.
Note that rights and duties can also vary with the particular type of marine resource under consideration,
e.g., a highly migratory species of fish (UNCLOS Annex 1) or whales (marine mammals: UNCLOS Art 65).
National courts in the ILS:
Note that it may be the case that a national court will act consistently with its own national legislation, but
that legislation runs counter to the international obligations of the state (e.g., LaGrand (Germany v United
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States of America) [2001] ICJ Rep 466, 497; Avena and Other Mexican Nationals (Mexico v United States of
America) [2004] ICJ Rep 12, 43–4, 63; Articles on State Responsibility art 32).
Further, domestic courts play an important role in determining how IL is applied within the state and IL
interacts with domestic law in the ways mentioned above.
Outlines the const limits of the judiciary and details the doctrine of non-justiciability, which refers to the lack
of competence of the court under Ch III of the Const to adjudicate on powers entrusted to the P’ment and to
the exec under Chh I and II respectively (Thomas v Mowbray (2007) 233 CLR 307, 354); non-justiciability may
refer to a situation in which there is no ‘matter’ capable of determination by reference to principles of law
under Ch III of the Const (Thomas v Mowbray (2007) 233 CLR 307, 354); a ‘matter’ is not capable of judicial
determination because P’ment has not conferred jurisdiction upon the court; there is a lack of judicially
manageable standards (Buttes [1982] AC 888, 938) and judgments are non-enforceable (Petrotimor (2003)
126 FCR 354, 379, 411, 414–15; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR
438, 447); the resolution of disputes concerning acts of state, and the validity of competing IL claims, must
take place on the international plane, and not before domestic courts (Petrotimor (2003) 126 FCR 354, 410).
Says that, if a national court’s decision could place Australia in violation of IL then it should abstain from
deciding the case even if jurisdiction exists.
Notes the connected act of state doctrine: every sovereign state is bound to respect the independence of
every other sovereign State, and the courts of one country will not sit in judgment on the acts of the
government of another done within its own territory (Underhill v Hernandez 168 US 250, 252 (1897); Coe v
Commonwealth (1979) 24 ALR 118, 128; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR
347, 371–2; Horta v Commonwealth (1994) 181 CLR 183, 195–6; Western Australia v Commonwealth (1995)
183 CLR 373, 422; Thorpe v Commonwealth [No 3] (1997) 144 ALR 677, 690–1); this is also a well-recognised
tool for a national court to avoid making a decision that could have serious implications under IL. Relevantly,
an extension of territory does not require parliamentary authorisation (Baker v Carr, 369 US 186, 212 (1962);
Seas and Submerged Lands Case (1975) 135 CLR 337, 388; Post Office v Estuary Radio Ltd [1968] 2 QB 740,
753; Petrotimor (2003) 126 FCR 354, 362) and the act of state doctrine ‘precludes any contest between the
executive and the judicial branches of government as to whether a territory is or is not within the Crown’s
Dominions’ (Mabo v Queensland [No 2] (1992) 175 CLR 1, 31). However, a public policy exception to the act
of state doctrine exists in English law: the judiciary need not shut its eyes to a breach of an established
principle of IL (Kuwait Airways Corporation v Iraqi Airways Co [Nos 4 and 5] [2002] 2 AC 883, 1080–1; 1108–
11; see also (2007) 156 FCR 574, 600).
National litigation on marine resources: the approach of Australian courts towards IL: HSI v Kyodo:
HSI v Kyodo concerned a challenge to Japan’s scientific whaling program in Antarctic waters by Humane
Society International (‘HSI’) on the basis that Kyodo, the company responsible for conducting the whaling
program, was in violation of provisions of the EPBC Act. While Allsop J acknowledged that the executive’s
concerns were nonjusticiable matters, as issues entirely dependent on political sanctions and understandings
(See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 370), he regarded them as
relevant considerations to be weighed when exercising judicial discretion ([19]), and accepted that Japan
would consider service or the exercise of federal jurisdiction under the EPBC Act as contrary to IL and the
claim by the Court to the exercise of jurisdiction to be impermissible under the Antarctic Treaty ([27]-[28]).
Allsop J declined to exercise his discretion to grant leave to serve originating process in Japan ([37], [43]).
The applicants appealed against this decision, arguing that Allsop J’s discretion miscarried because he erred
in considering political and diplomatic issues incidentally associated with proceedings between private
litigants. HSI also argued that int’l comity was not infringed because the issues in the proceedings challenged
neither the conduct of Japan in its own territory ([15]) nor the validity of the Japanese Whale Research
Program ([16]). The FC held that diplomatic and political considerations were irrelevant where P’ment has
provided that the action is justiciable in an Australian court (HSI v Kyodo (Full Court) (2006) 154 FCR 425, 430,
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citing R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61, 107), and
the action was justiciable since the applicants had standing under EPBC Act ss 475, 479(1)(a), (1)(c) (429-31),
and so Allsop J erred in refusing leave, ‘even if the pursuit of the claim was contrary to Australia’s foreign
relations’ (430; 434-5).
Notes the EPBC Act makes no mention or reference to UNCLOS or the Antarctic Treaty. The EPBC Act
effectively puts Australian courts in a position of violating IL and triggering Australia’s international
responsibility unless the courts are willing to recognise as much and seek to rely on non-justiciability
doctrines.
According to the FC, HSI v Kyodo therefore dealt with a ‘matter’ that had arisen under a law that, despite
having already been preceded by a political assessment, was not a matter ‘making or challenging that
assessment’, because the international obligations entered into by the executive had become binding on
individuals through justiciable rights; i.e., by providing ‘standing’, P’ment had conferred jurisdiction because
there was an ‘immediate right, duty or liability’ to be determined by the Federal Court. The FC allowed the
appeal and set aside the order that dismissed the application for leave to serve the originating process in
Japan. The case was therefore resolved purely in terms of Australian law without further consideration of the
IL rights and duties involved.
Conclusion:
While greater account could have been taken of Australia’s int’l obligations in these cases, it is generally
preferable that the courts avail themselves of non-justiciability doctrines in order to avoid causing IL
disputes, despite any broader political goals for institutional reform that may exist.
Whaling – International organizations and the IWC
Klabbers, ‘International institutions’
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Introduction and functionalism and its limits:
Begins by recapping the functionalist story of why states look for other like-minded states to cooperate with
by setting up IOs: states do so when they identify common purposes: i.e., states create IOs in order to
achieve common goals and perform certain specified functions. Functionalism explains IOs in terms of their
functions. Institutional lawyers interpret an institution’s founding document in order to come to an
interpretation of its main function, and then apply a set of doctrines to do justice to this function (the more
practically relevant of these doctrines include the doctrine that organisations can engage in all sorts of
activities, even those left unmentioned in their foundational documents, as long as these activities can
contribute to the organisation’s functions (the doctrine of implied powers, as laid down in sweeping fashion
by the ICJ in Reparation for Injuries, ICJ Reports 1949, p. 174.
Functionalism often goes in hand with a history according to which today’s IOs owe much to developments
during the late 19th and early 20th century. Two such developments stand out: (i) permanent institutions were
created, from the mid-19th century onwards, to manage the maintenance and navigation of international
rivers; (ii) the regular organisation of conferences to address pressing political issues, in particular the
convocation, in 1899 and then in 1907, of the two Hague Peace Conferences; the Hague Conferences
introduced the notion of non-binding instruments that could be adopted by the conference, giving a voice to
the conference as a separate body and thereby paving the way for later institutionalisation; such
instruments, adopted by majority but considered nonbinding, were later conceptualised as the way to
reconcile state sovereignty with IO. By the beginning of the 20th century it had become commonplace to think
of IOs as possible frameworks for inter-state cooperation; early 20th international lawyers treated them first
and foremost as treaty regimes without further institutional ramifications, but slowly coming to embrace the
institutional element inherent in IOs.
But says this theory leaves certain phenomena unexplained: firstly, it is unclear what the function of a
particular IO is: function is in the eye of the beholder. Secondly, functionalism is eventually unhelpful when it
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comes to explaining how IOs are controlled. Functionalism is able to help explain why states set up IOs, why
and how IOs are granted competences and why IOs are granted privileges and immunities. But the flipside is
the issue of control: under functionalism, IOs go through life as uncontrolled and uncontrollable entities.
Their member states cannot control them because acts can often be justified on the basis of the implied
powers doctrine and, if all member states agree to engage in an activity, then this common agreement is
hard to ignore: the ultra vires doctrine, prohibiting entities from acting beyond their competences, is for all
overruled when all relevant actors agree that an act is within the entity’s competences – and IOs themselves
are considered best-placed to make this assessment (Certain Expenses, ICJ Reports 1962, p. 151). Two
intellectual problems in particular have made any attempt to formulate a control regime so far less than fully
satisfactory (and this says nothing at all about the practical possibilities of seizing tribunals): (i) it is not always
clear when exactly behaviour is to be attributed to an IO; (ii) it is by no means self-evident which rules would
apply to IOs, and why.
Institutional design:
Functionalism also has a hard time explaining the tension between formality and informality also informs the
very design of IOs. IOs are typically regarded as formal creatures: according to the standard definition, IOs
are set up, mostly, between states, on the basis of a treaty, with organs of their own and a will distinct from
that of their member states; these are rather formal requirements, and doubts arise when entities are set up
which do not meet one or more of these criteria. In such circumstances, many would claim that the entity
cannot be regarded as an IO or partake of the rights, privileges and obligations that IOs typically have: e.g.,
the OSCE. One of the more tangible effects of deformalisation is the by-passing of any form of control.
Towards accountability:
See global administrative law and the development of an attempt to build an accountability regime
concerning IOs. This poses another problem for functionalism by taking IOs out of the realm of state control.
More active, less glamorous:
This suggests that IOs, after an over-long period when they were deemed to contribute diffusely to the
‘salvation of mankind’ have come to be taken seriously as political actors. Their work, however mundane it
may often seem, is informed by political considerations and has political effects. It should come as no
surprise that they have slowly but surely come to be subjected to some form of scrutiny, all the more against
the background of a general surge in controlling public power: organisations have entered ‘the audit society’.
Prefers to focus on the tension between stability and flexibility (or formality and informality) and against a
background of globalisation, in which IOs play a role in global governance. This pits the theory of
functionalism in the law of IOs against the normative idea that the acts of organisations ought to be subject
to some form of control. IL has come to a large extent to be developed and formulated under the auspices of
IOs: it has become institutionalised.
Hurd, ‘Almost saving the whales’
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Begins by noting the success of the int’l regulation of whaling (reduced whale hunting dramatically from its
peak in the 1960s and brought almost all species of whales out of danger of extinction). These were due to
the IWC, the legal instrument of which is the ICRW (1946). Notes the phases in the history of the ICW: first
phase, dominated by whaling states, led to massive whaling quotas. The second phase featured the incursion
by anti-whaling states and the consequential lowering of whaling quotas. See, e.g., 1982 moratorium
declared by the IWC; entry into force 1986 (which seems to have been maintained because states could not
subsequently agree on a replacement quota). However, whaling continues despite the moratorium. That is
because of two features of the moratorium:
o Special permits: the moratorium allows governments to issue special permits to their citizens to “kill,
take, and treat whales for purposes of scientific research subject to restrictions as to number and
subject.”
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Objections: the convention allows governments that object to amendments to the treaty to exempt
themselves from those changes simply by lodging an objection to that effect.
In respect of the second, note that all treaties must somehow deal with the puzzle of institutional change: if
changes can be passed by a qualified majority of members, what are the legal rights and obligations of the
minority? The IWC solves this problem by permitting objectors to opt out of amendments. Other
organizations approach the dilemma differently: the UN Charter, for example, sets a high bar on
amendments, but then requires that even dissenters accept the changes; the Rome Statute of the ICC
specifies that dissenters can opt out of changes to some crucial clauses, but that most of the treaty can be
amended for all members by a 2/3 vote of the state parties. The vast majority of the world’s whaling today is
done by a small number of IWC members that argue for its legality by invoking either the scientific research
clause or their right to opt out of the moratorium.
Then notes the IWC, responsible for these successes, is in crisis, for the following reasons: the IWC now
comprises both the main whaling nations and the main anti-whaling nations (89 total), evenly split; the split
between the two is so stark that for years the organization has been barely functioning. Its opposing blocs of
anti- and pro-whaling states have mutually exclusive understandings of what the regime permits and evenly
divided power. Their mutual vetoes ensure that the dysfunctional status quo prevails, and the idea of
“success” is coming to look increasingly unclear. The rules that the IWC designed decades ago remain in place
today, but the members cannot agree to enforce or to change them. Chief among these rules is the ban on
commercial whaling, but despite this ban, several members continue to openly hunt whales, arguing with
technical legal reasoning why the ban does not in fact apply to their behaviour.
Notes the crisis that meant that the anti-whaling bloc saw attempts at compromise as raising the legal limit
from zero to some higher number, rather than as reducing the actual number of whales killed. The collapse
of the compromise suggests that it is a mistake to think about the dispute as centred on the continuous
variable of hunt quotas, where hunters want a high number and conservationists want a low number. Rather,
it is better seen in terms of a binary variable defined by the moratorium: it is in place or it is not; commercial
hunting is illegal or it is legal. This has had the effect of pushing pro-whaling states to the fringes of the
regime, where they find legal resources to justify behaving in anti-regime ways. Thus, the practice of whaling
has increasingly moved out of the ambit of the IWC and into a semi-unregulated space outside the regime. It
is increasingly a unilateralist practice, consciously avoiding the rules of the multilateral regime.
Says this all implies that the future of the anti-whaling movement may lie in the domestic politics of the prowhaling countries.
Says, further, that the problems experienced by the IWC illustrate the larger dilemmas of IL and IOs.
Ultimately, the centralizing force of the IWC has had a decentralizing effect: the legal regime on whaling has
become increasingly fragmented and particular rather than coherent and unified. States’ legal obligations
depend on the specific interpretation and scope that they have agreed to. At one level this reflects the
normal condition of IL, where states are only obligated to comply with rules to which they have consented.
But it shows that the effort to codify and formalize legal obligations can lead to more diversity of practice
rather than less. Legalization may not help organize the world; in this case, it helps disorganize it. Further,
and paradoxically, the IWC remains a powerful legitimating device for both sides, as evidenced by the way
that both sides try to use its name in defence of their positions. It makes it possible for the Sea Shepherd
group to claim that its interference with Japan’s whale hunt in the Antarctic Ocean is a defence of IL, that
Japan’s behaviour is illegal under the IWC, and that Sea Shepherd is enforcing the rules on behalf of the IWC.
On the other side, it also provides the language that Japan uses to justify its behaviour— i.e., that there is a
legal difference between scientific and commercial whaling, and that its behaviour is “research” rather than
“hunting.”
Whaling – The ICJ and dispute settlement and the Whaling in Antarctic Case
Plant, ‘Sovereignty, science and cetaceans: the Whaling in the Antarctic case’
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Mentions the procedural history of the Whaling in the Antarctic Case: Aust initiated proceedings against
Japan before the ICJ in May 2010, claiming that Japan’s whaling activities, carried out under the heading of
scientific research, were in breach of various of its obligations under the ICRW. NZ later intervened,
exercising its right under Art 63 of the ICJ statute, and oral pleadings involving the three states were held in
June and July 2013.
On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand
Intervening), finding that Japan had violated three provisions of the ICRW – (i) the moratorium on
commercial whaling; (ii) the ban on factory ships; (iii) and the prohibition on whaling in the Southern Ocean
Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme.
The central issue concerned the interpretation of Art VIII of the ICRW: which allows states parties to grant a
special permit authorising any of their nationals “to kill, take and treat whales for purposes of scientific
research”, subject to any restrictions that the authorising state might choose to impose. Since whaling
carried out under such a special permit “shall be exempt from the operation of the Convention”, the ICJ’s
primary task was to determine whether or not Japan’s grant of a special permit to the JARPA II programme
fell within the permissible scope of the Art VIII exemption.
Japan argued that the ICJ had no legal basis to review its discretion to issue a special permit since it was
entitled to a very wide degree of discretion (a “margin of appreciation”) when exercising the right –
conferred exclusively upon states parties to the ICRW under Article VIII – to authorise scientific whaling.
Australia and Nz maintained that the ICJ was competent to review JARPA II’s special permit in order to
determine whether it conformed with the objective requirements specified in Article VIII, namely that the
JARPA II programme was “for purposes of scientific research”.
The ICJ decided that Japan’s action was reviewable: while Article VIII gives states the discretion to grant
special permits for scientific whaling and to attach conditions to those permits, the essential question
“whether the killing, taking and treating of whales . . . is for purposes of scientific research cannot depend
simply on that State’s perception” ([61]).
Having determined that Japan’s grant of a special permit was subject to review, the Court next clarified the
appropriate standard to apply when undertaking this review. Note some dissenting judges (Owada and
Abraham) considered that the ICJ should only review whether Japan acted in good faith when exercising its
treaty rights; the ICJ declared that a higher standard of review was appropriate: specifically, whether Japan’s
decision to authorise the JARPA II programme was objectively reasonable. As the Court explained, this
objective review involves two tasks:
o (i) Assessing whether the objectives pursued by JARPA II could properly be characterised as scientific
research: this required the ICJ to interpret the undefined term “scientific research” in Art VIII and
raised an issue concerning the weight to be attached to resolutions and guidelines issued by the
ICRW’s supervisory body, the IWC. Aust and NZ argued that Art VIII should be interpreted restrictively,
in a way that minimises the conditions in which a state may authorise the use of lethal methods, to
reflect substantive developments in the ICRW’s system of collective regulation (e.g., the introduction
of the commercial whaling moratorium) and changes in the treaty parties’ views concerning the killing
of whales generally. In support, Aust pointed to resolutions and guidelines adopted by the IWC in
recent decades recommending that states only authorise lethal methods in exceptional circumstances
where non-lethal alternatives are not feasible and argued that these resolutions must inform the ICJ’s
interpretation of Art VIII since they constitute both “subsequent agreements” and “subsequent
practice” between the parties to the ICRW concerning its interpretation, within the meaning of Art 31
of the VCLT.
The Court rejected these assertions, and declined to use the resolutions as interpretive aids. The
resolutions did not qualify as agreements between the parties because they had not been adopted
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with the support of all of the treaty parties, nor did they establish any binding obligations, since they
were merely recommendatory in character ([83]). In this light, the ICJ’s description of the ICRW as “an
evolving instrument” ([45]) refers only to the fact that the ICRW establishes a specific procedural
framework for its amendment. See dissent by Judges Yusuf, Cançado Trindade and Charlesworth
disagreed with the Court on this point: the ICRW should be interpreted in light of various recent
developments, e.g., the IWC resolutions in favour of conservation, the emergence of the precautionary
principle in international environmental law, and the shift in international attitudes and societal values
concerning whaling generally.
Ultimately, the ICJ found that the JARPA II programme could “broadly be characterised as ‘scientific
research’” because its objectives fell within the research categories endorsed by the IWC Scientific
Committee ([127]), though it declined to offer any general definition of “scientific research” ([86]).
o (ii) Examining “whether, in the use of lethal methods, the programme’s design and implementation are
reasonable in relation to achieving its stated objectives” ([67]): the ICJ identified a number of problems
with the way in which JARPA II’s lethal sampling had been conceived and carried out. Japan produced
no evidence that it had studied the feasibility of non-lethal alternatives, nor that the programme’s
scale was reasonable. The ICJ also doubted the reasonableness of JARPA II’s lethal sampling on account
of the programme’s open-ended time-frame, its limited scientific output, and its failure to cooperate
with other scientific research institutions.
The ICJ concluded that it was not reasonable for JARPA II to use lethal methods in order to achieve its
stated research objectives.
Therefore, the special permit granted by Japan did not fall within the permissible scope of Art VIII, and so
Japan was in breach of three provisions of the ICRW: the moratorium on commercial whaling, the ban on
factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary. At the same time, the Court
found that Japan had satisfied the procedural requirement to furnish the IWC’s Scientific Committee with
information concerning requests to carry out scientific whaling.
The ICJ ordered Japan to revoke JARPA II’s existing permit, and to refrain from granting any further
authorisations to that programme.
Whaling in the Antarctic Case
Summary of judgement
See operative clause at 11-12.
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[1]-[29]: procedural history (see also above for brief summary).
[30]-[41]: jurisdiction of the court.
Aust invoked as the basis of the court’s jurisdiction the declaration made by both parties under Art 36(2) of
the ICJ statute.
Japan contests the Court’s jurisdiction over the dispute, arguing that it falls within reservation (b) of
Australia’s declaration, which Japan invokes on the basis of reciprocity: this excludes from the Court’s
jurisdiction “any dispute concerning or relating to the delimitation of maritime zones, including the territorial
sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the
exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”.
Aust and Japan have no overlapping claims to maritime areas which may render reservation (b) applicable;
further, the nature and extent of the claimed maritime zones are immaterial to the present dispute, which
concerns whether Japan’s activities are compatible with its obligations under the ICRW. Therefore concludes
that Japan’s objection to the Court’s jurisdiction cannot be upheld.
[42]-[243]: alleged violations of int’l obligations under the ICRW:
o
o
[42]-[50]: introduction: notes the historical background to the ICRW. In contrast to its predecessors,
the ICRW does not contain substantive provisions regulating the conservation of whale stocks or the
management of the whaling industry. These are to be found in the Schedule, which forms an integral
part of the Convention and which is subject to amendments, to be adopted by the IWC. An
amendment becomes binding on a State party unless it presents an objection.
Australia alleges that because JARPA II is not an Art VIII programme for purposes of scientific research,
Japan is in breach of three substantive obligations under the Schedule: (i) the obligation to respect the
moratorium setting zero catch limits for the killing of whales from all stocks for commercial purposes
(para. 10 (e)); (ii) the obligation not to undertake commercial whaling of fin whales in the Southern
Ocean Sanctuary (para. 7 (b)); (iii) the obligation to observe the moratorium on the taking, killing or
treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships
(para. 10 (d)). Australia further alleges that Japan has violated procedural requirements for proposed
scientific permits set out in paragraph 30 of the Schedule.
Japan argues that none of the provisions invoked by Australia applies to JARPA II, as this programme
has been undertaken for purposes of scientific research under Art VIII(1). Japan also contests any
breach of the procedural requirements stated in paragraph 30 of the Schedule.
[51]-[97]: interpretation of Art VIII(1): Art VIII is an integral part of the ICRW and, therefore, has to be
interpreted in light of its object and purpose and taking into account its other provisions, including the
Schedule. In light of the object and purpose of the ICRW, the preamble and other relevant provisions,
neither a restrictive nor an expansive interpretation of Art VIII is justified. Programmes for purposes of
scientific research should foster scientific knowledge; they may pursue an aim other than either
conservation or sustainable exploitation of whale stocks, including (per Annex Y) programmes that
“contribute information essential for rational management of the stock,” those that are relevant for
“conduct[ing] the comprehensive assessment” of the moratorium on commercial whaling, those
responding to “other critically important research needs”; and (per Annex P) programmes aimed at
“improv[ing] the conservation and management of whale stocks”, programmes which have as an
objective to “improve the conservation and management of other living marine resources or the
ecosystem of which the whale stocks are an integral part” and those directed at “testing hypotheses
not directly related to the management of living marine resources”.
Although Art VIII gives discretion to a State party to the ICRW to reject the request for a special permit
or to specify the conditions under which a permit will be granted, the question whether the killing,
taking and treating of whales pursuant to a requested special permit is for purposes of scientific
research cannot depend simply on that State’s perception.
The standard of review that will apply when examining the grant of a special permit authorizing the
killing, taking and treating of whales on the basis of Art VIII(1) is two-step: it will assess, first, whether
the programme under which these activities occur involves scientific research; and secondly, whether,
in the use of lethal methods, the programme’s design and implementation are reasonable in relation
to achieving its stated objectives.
The effect of the two elements of that phrase “scientific research” and “for purposes of” is cumulative:
even if a whaling programme involves scientific research, the killing, taking and treating of whales
pursuant to such a programme does not fall within Art VIII unless these activities are “for purposes of”
scientific research:
 “Scientific research”: is not defined by the ICRW; the Court does not consider it necessary to
devise criteria for or to offer a general definition of “scientific research”.
 “For purposes of”: even if the stated research objectives of a programme are the foundation of
a programme’s design, the scientific merit or importance of those objectives is not relevant to
an assessment of the purpose of the killing of whales under such a programme, neither is
whether the design and implementation of a programme are the best possible means of
o
achieving its stated objectives. Whether a programme’s use of lethal methods is for purposes
of scientific research turns on whether the elements of a programme’s design and
implementation are reasonable in relation to its stated scientific objectives. An objective test
of whether a programme is for purposes of scientific research does not turn on the intentions
of individual government officials, but rather on whether the design and implementation of a
programme are reasonable in relation to achieving the stated research objectives. So, whether
particular government officials may have motivations that go beyond scientific research does
not preclude a conclusion that a programme is for purposes of scientific research within the
meaning of Art VIII.
[98]-[227]: JARPA II in light of Art VIII of the ICRW: a lengthy description of JARPA I and JARPA II.
JARPA II contemplates the lethal sampling of Antarctic minke whales, fin whales and humpback whales,
and its Research Plan describes the key elements of the programme’s design, including: (i) its four
research objectives (monitoring of the Antarctic ecosystem; modelling competition among whale
species and future management objectives; elucidation of temporal and spatial changes in stock
structure; improving the management procedure for Antarctic minke whale stocks); (ii) its research
period and area (structured in six-year phases, JARPA II is a long-term research programme without a
specified termination date, which operates in an area that is located within the Southern Ocean
Sanctuary established in 7 (b) of the Schedule); (iii) its research methods and sample sizes (a mixture of
lethal sampling of 850 Antarctic minke whales, 50 fin whales and 50 humpback whales, as well as nonlethal methods, namely biopsy sampling, satellite tagging and whale sighting surveys); and (iv) the
expected effect on whale stocks.
At least for some of the data sought by JARPA II researchers, non-lethal methods are not feasible. So,
there is no basis to conclude that the use of lethal methods is per se unreasonable. However, an
examination of Japan’s decisions to use lethal methods in JARPA II and the scale of their use suggests
three reasons why the JARPA II Research Plan should have included some analysis of the feasibility of
non-lethal methods as a means of reducing lethal sampling: (i) IWC resolutions and Guidelines call
upon States parties to take into account whether research objectives can be achieved using non-lethal
methods; (ii) Japan states that, for reasons of scientific policy, “[i]t does not . . . use lethal means more
than it considers necessary” and that non-lethal alternatives are not practical or feasible in all cases;
(iii) the two experts called by Australia referred to significant advances in a wide range of non-lethal
research techniques over the past 20 years. However, there was no evidence of studies by Japan of the
feasibility or practicability of non-lethal methods, or of any examination by Japan whether it would be
feasible to combine a smaller lethal take and an increase in non-lethal sampling as a means to achieve
JARPA II’s research objectives.
See various findings about the programs, their output, objectives, etc.
Conclusion: the use of lethal sampling per se is not unreasonable in relation to the research objectives
of JARPA II. However, the target sample sizes in JARPA II are not reasonable in relation to achieving the
programme’s objectives: (i) the broad objectives of JARPA and JARPA II overlap considerably and the
evidence does not reveal how any differences lead to the considerable increase in the scale of lethal
sampling in the JARPA II Research Plan; (ii) the sample sizes for fin and humpback whales are too small
to provide the information that is necessary to pursue the JARPA II research objectives based on
Japan’s own calculations, and the programme’s design appears to prevent random sampling of fin
whales; (iii) the process used to determine the sample size for minke whales lacks transparency, as the
experts called by each of the Parties agreed; (iv) some evidence suggests that the programme could
have been adjusted to achieve a far smaller sample size, and Japan does not explain why this was not
done. The evidence before the Court further suggests that little attention was given to the possibility
of using non-lethal research methods more extensively to achieve the JARPA II objectives and that
funding considerations, rather than strictly scientific criteria, played a role in the programme’s design.
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So, JARPA II involves activities that can broadly be characterized as scientific research, but the evidence
does not establish that the programme’s design and implementation are reasonable in relation to
achieving its stated objectives. Hence, the special permits granted by Japan for the killing, taking and
treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to
Art VIII(1).
The reference to “commercial” whaling in paras 7 (b) and 10 (e) of the Schedule is explained by the fact
that in nearly all cases this would be the most appropriate characterization of the whaling activity
concerned. The language of the two provisions cannot be taken as implying that there exist categories
of whaling which do not come within the provisions of either Art VIII(1) or para 13 of the Schedule but
which nevertheless fall outside the scope of the prohibitions in paras 7 (b) and 10 (e) of the Schedule.
Any such interpretation would leave certain undefined categories of whaling activity beyond the scope
of the ICRW and thus would undermine its object and purpose.
Therefore:
(i) Concerning the moratorium on commercial whaling contained in paragraph 10 (e) of the Schedule, from
2005 to the present, Japan has not acted in conformity with its obligations under paragraph 10 (e) in
each of the years in which it has granted permits for JARPA II (2005 to the present) because those
permits have set catch limits higher than zero.
(ii) Regarding the factory ship moratorium contained in paragraph 10 (d) of the Schedule, by using the
factory ship Nisshin Maru, as well as other vessels which have served as whale catchers, for the
purpose of hunting, taking, towing, holding on to, or scouting for whales, Japan has not acted in
conformity with its obligations under paragraph 10 (d) in each of the seasons during which fin whales
were taken, killed and treated in JARPA II.
(iii) With respect to the Southern Ocean Sanctuary established by paragraph 7 (b) of the Schedule, this
provision does not apply to minke whales in relation to Japan (cf Japan’s objection to the paragraph). It
further observes that JARPA II operates within the Southern Ocean Sanctuary and concludes that Japan
has not acted in conformity with its obligations under paragraph 7 (b) in each of the seasons of JARPA
II during which fin whales have been taken.
o [234]-[232]: alleged non-compliance by Japan with its obligations under para 30 of the Schedule:
which requires contracting gov’ts to make proposed permits available to the IWC Secretary before they
are issued, in sufficient time to permit review and comment by the Scientific Committee. Japan’s
approach accords with the practice of the Scientific Committee, and Japan has met the requirements
of paragraph 30 as far as JARPA II is concerned.
[244]-[246]: remedies: because JARPA II is an ongoing programme, measures that go beyond declaratory
relief are warranted. Therefore orders that Japan shall revoke any extant authorization, permit or licence to
kill, take or treat whales in relation to JARPA II, and refrain from granting any further permits under Article
VIII(1) in pursuance of that programme.
3. Case study 2: the Assange affair
Assange – Introduction to different legal traditions
Claire Germain, ‘Legal traditions’
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Notes a typology of legal systems:
o Common law: not formulated in an academic way by scholars, but developed on a case-by-case basis
by courts. Importation of Norman aristocracy as central power structure in 1066; Henry II made
permanent the royal courts in the 12th century. See the Inns of Court. Strong principle of stare decisis;
law born out of procedure; students trained at Inns of Court, not universities. Emphasis on case reports
rather than treatises. Although see Coke and Blackstone.
o
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Civil law: descends from Roman law: ‘jus civile’ (the law applicable to Roman citizens). Justinian Code
533AD; subject of inquiry and commentary at Universities such as Bologna (1080, 1260) and
Sorbonne/Paris (1253) and attempts to apply to contemporary circumstances. Much interaction
between scholars throughout Europe in Latin, leading to jus commune. The corpus juris civilis compiled
with scholarly commentary. So law in these places developed as a scholarly activity by the academy,
see the tradition of treatises and lectures etc. Codification in the 19th century with the emergence of
the nation state- French Civil Code (1804); German Civil Code (1900). Followed the structure of the
Justinian Code- law of things; law of persons; law of property; law of obligations.
o Muslim law;
o Customary law;
o Mixed systems;
o Canon law:
Suggests a convergence of civil law and common law traditions since the 19th century rise of the nation state
with the desire to regulate by way of statute in both traditions, and globalization. Rise of constitutional
courts in most countries.
See also convergence of legal systems as a result of rise of international norms.
But still significant differences in mentalities; legal reasoning; styles of argument; organization and
methodology of law; legal education; the judicial process. See distinctive common law ideas: supremacy of
law and subjugation of state to law; strong principle of stare decisis; adversarial procedure.
Barnes, ‘Contemplating a civil law paradigm for a future international commercial code’
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Notes the array of legal systems: civil law; common law; customary law; Muslim law; mixed systems (see
footnotes 9-13 for definitions).
Says there have developed two major dominant systems of legal structure- the civil law and the common
law- see statistics at 683ff.
Basic origins, precepts and characteristics of the common law system:
Historical background: says that the fall of the Roman Empire in the West was in Britain followed by a
decline of lawfulness and economy: because of this development into an agrarian-based society, Britain, like
much of Western Europe, developed into such a state that markets, and sales and purchases generally, were
relatively rare, being only necessary in the event of a personal financial calamity. Because there were no
markets, and thus no systematically, recurring commercial transactions, there also came to be no real need
for a system of law in any organized sense, as had existed in the prior days of the Roman Empire. The AngloSaxon rule of law was regional, fragmented and arbitrary. This was attributable in large part to the feudal
societal structure, which tended to decentralize the region and prevent the rulers from exercising effective
control. The legal order of the day tended towards primitive processes, such as vengeance, compurgation,
the ordeal, and the hue and cry.
Following the Norman conquest in 1066, a more able administration claimed and established centralized
monarchical and political power. Much of the early thrust of English political influence was directed toward
the increasing centralization and unification of the English royal governmental structure and processes. A
critical innovation was the creation of the king's court, devised to impose orderly judicial rule. Serving at the
pleasure of the throne, these royal courts began to exercise competing jurisdiction with the local, feudal
courts of the pre-Norman period. The initial assumption of jurisdiction of these courts was a delicate matter,
and initially much effort was directed at not stepping lightly around areas still adjudged by the Saxon-era
courts. Under Henry I, the royal courts began to travel to the various municipalities in the country to hear
local disputes. Unlike the older Saxon courts, which rendered decisions in an often arbitrary and inconsistent
manner, the new royal courts began applying a uniform, or "common" law, throughout England, with the
purpose of normalizing and unifying the law for the entire country. The English gradually began to prefer
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these royal courts over the Saxon-era courts, perceiving them as superior sources of adjudicatory and
enforcement power (only the royal courts had the means to summon witnesses and to enforce judgments;
and only the king, apart from the church, could require the swearing of an oath). Thus, the royal courts
eventually became the main courts in England, and the Saxon-era courts eventually ceased to have
importance. The law adjudicated by the royal courts, "common to all the realm," began to completely
subsume and displace all of the "petty local and tribal peculiarities of which English law, at the time of the
Conquest, [had been] full”. From 1100 to 1272, the royal courts "declared the Common Law of England."
Basic mechanics of the common law system: early on, the royal courts developed a system of several dozen
specific writs- i.e., court orders for relief- which could be issued to a litigant. Only cases which had factual
patterns matching one of these situations could be granted relief via a writ. As a result, the early royal courts
in the first two centuries after the Norman conquest began to pay particularly close attention to the different
fact scenarios involved in the cases before them. As the case load increased, a principle of stare decisis came
to have effect (see Bracton). Until the beginnings of case reports in the 16th century, lawyers and judges
worked from memory and the official case file record.
The common law system is the process of applying rules derived from case precedents, to new factual
situations, for the purpose of producing uniform, consistent, and certain results. However, champions of the
common law praise it as dynamic and ever-evolving, able to adjust to new situations which have been
previously unaddressed by legal rules or principles. The common law courts and scholars have even imbued
the rule of stare decisis, though it is the certainty-imbuing mechanism of the common law, with limitations.
Legislation in common law systems: as a rule a common-law statute does not propose completely to
supersede the pre-existing traditional law governing the topics covered by it, nor does it propose to lay down
general principles of its own; rather, it presupposes the existence of general principles, relating to the topic
covered by it, that are part of the traditional common law predating the statute itself, and that may or may
not have crystallized into precise legal rules. The statute is meant to be understood and construed against
the background and to operate within the framework of such prior law. Thus, the general principles
underlying the statute are to be found within the realm of the traditional unwritten law. Statutes in common
law jurisdictions are "organic, a living creature": statutes, where applicable, do in theory govern preemptively, but even then cases may add "judicial gloss" to the statute by way of interpretation." The
presence of statutes in common law jurisdictions, though undeniably affecting the common law, has not
fundamentally transformed its basic essence and the law-making effect of case decisions.
Equitable power of the courts: equity gives the common law judge the ability to ameliorate the perceived
harshness of a legal rule in the context of a particular set of factual circumstances, so as to achieve justice in
the context of an individual dispute. While this poses the potential for tension between the twin desires for
certainty and justice in the law, in the common law system the mandate to maintain the balance between
these two competing interests is set squarely at the feet of the common law judge.
The role of the courts and judges in the common law system: see paper.
Basic origins, precepts and characteristics of the civil law system:
Roman origins and the Corpus Juris Civilis: the system almost certainly has its origins in the ancient Roman
Empire. However, not often cited in discussions of the history of Civil Law, is Hammurabi's Code, which far
pre-dated the Roman Empire. Hammurabi was a unifying leader over the ancient kingdom of Babylon
(present-day Iraq), and his rule occurred in approximately the year 1,750 B.C. Hammurabi, unlike the
arbitrary monarchical governments of that and subsequent ages, desired a uniform law which would obtain
social justice and protection of human rights. Therefore, he ordered the assembling of what has been called
"the forerunner of a modem legal code," one which contained provisions on family law, inheritances,
property law, criminal law, rules of evidence, womens' and slaves' rights, medical malpractice, lending, water
rights, agricultural activities, minimum wages, principal and agent rules, and appellate rights. The provisions
of the Code of Hammurabi were set forth in 282 separate sections, and were engraved onto stone tablets
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and set up for public viewing in Babylon. Perhaps Hammurabi's contributions to the modem code, and to the
Civil law system itself, are greatly underrated by legal historians.
Another significant event was the 450 B.C writing of the Twelve Tables in Rome. This was Rome's first system
of written law, codified around the time the Roman Republic was founded. The process of putting the law of
the Republic into written form was important, as one of its chief functions at the time was to give the Roman
citizenry the means to review the applicable legal standards of the day.
533AD: Corpus Juris Civilis: Justinian’s first rationale was that a reformation of Roman law was in order.
Justinian desired to return Roman law to its prior glory at the foundation of the Republic. His second
rationale was more pragmatic- he perceived a need for codification in light of the massive volume of
authorities, treatises, and commentaries on Roman law, many of which differed in opinion, and even directly
contradicted each other. Included were the Institutes (a treatise-like exposition of the code provisions), the
Digest (a collection of excerpts of writings from scholars on the pre-Justinian Roman law), the Codex (an
aggregation of royal pronouncements affecting the law), and the Novels, which were declarations of Justinian
himself, and were written in Greek. Justinian decreed that all pre-Code authority (which was not ncorporated
into the code itself or the supplementary code materials), such as jurisconsult commentary, was to be
thenceforth disregarded as legal authority, persuasive or otherwise.
Revived European study of the Corpus Juris Civilis: following the collapse of the WRE, and the gradual
replacement of feudal hierarchies, cruder, "vulgarized" versions of the Roman civil law, mixed with
indigenous cultures and customary law of invading tribes, came to be practiced in many parts of Western
Europe during this period. Then, at Bologna, law was one of the primary areas of academic interest, and the
law which was studied was not any of the indigenous laws of the various regions or the "vulgarized" Roman
law that had appeared in certain parts of Europe, but the the Corpus Juris Civilis. Irnerius is given credit for
being the first scholar to provide instruction based on the Roman code. Soon, other universities in Italy and
elsewhere in Europe were founded and studied the Corpus Juris Civilis. It was quickly realized that Justinian's
codification contained substantive legal principles which were well suited for the solution of many of the
dilemmas presented by the emerging commercial markets and increasingly sophisticated citizenry. With the
uniform study of the Corpus Juris Civilis throughout Europe, and its almost universal acceptance as the
foundation for all prospective thought about the law and what it should be, the Corpus Juris Civilis, along with
the commentary on it by the scholars of the day, became known as the "common law of Europe," or the jus
commune. In the 13th century and beyond, Roman law began to go beyond being the source of academic
study, and began also to be applied by the courts in Italy and elsewhere, so as to actually have the force of
binding law. This was known as the "Reception" of Roman law.
The rise of the nation state, the revolution, and the advent of national codes: The fall of the Roman Empire,
coupled with the renewed intellectual and philosophical energy that accompanied the Renaissance,
corresponded from the 15th century with the gradual ascendancy of the concept of the nation-state, and
national sovereignty. With this development, the idea of a jus commune began to decline, and instead
sovereign nations began to assume the lawmaking prerogative for their own populaces. Nevertheless, the
Corpus Juris Civilis continued to have a profound influence on the laws of these nations, as nearly all of the
continental European nations either formally received Roman law as having the actual binding force of law,
or at least were heavily influenced by Roman law in their own promulgation of laws.
Understanding the reason for the revolutionary hostility to the judicial function on the continent is critical to
understanding the modem civil law tradition as it exists today. The French revolutionary movement besieged
the judicial branch for at least two reasons- their propensity for favouring the land-owning aristocracy, and
also their tendency to make law outright rather than merely apply existing law. The French revolutionaries, in
part influenced by Montesquieu and others, came to conclude that the surest manner by which to prevent
such perceived abuses was to sharply isolate the judiciary from the legislative function, and to closely guard
against any operational judicial encroachment into such lawmaking areas. Thus, closely restricting the ability
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of judges to do anything other than strictly a law-application/enforcement function was of paramount
importance in French revolutionary thought.
Napoleon rose to power in 1799; in 1804, France adopted its Code Civil, or, the Napoleonic Code. The
substantive areas covered by the Napoleonic Code were very similar to Justinian's Corpus Juris Civilis, and
even the structure was quite comparable. The Napoleonic Code purported to abolish all prior laws. Because a
principal purpose of the French Code was to constrain the role of the judiciary to merely the application of
existing law, the drafters strove to make it consistent (so there were no conflicting provisions which a judge
could choose between and thereby "make law"), comprehensive in its coverage (so there were no "gaps" in
coverage which a judge might thereby fill in by making law), and clear (so as to minimize any reason for a
jurist to seek to engage in "lawmaking" or law interpreting). Thus, the ultimate goal of the French codifiers
was to draft a systematic, comprehensive code, which would be so all-encompassing and lucid that the
judicial role would be restricted simply to ascertaining the pertinent code section and applying it to
adjudicate the litigation before the court.
The other great civil code of the 19th century was the German Civil Code enacted in 1896. Many German
scholars originally advised patterning after the much-admired Napoleonic Code- however, it was eventually
decided instead that the German Code would more directly codify existing and historical law, including
Roman law, and would tend toward the more detailed nature of the Prussian Code, though not to that extent
of excess. Unlike the Napoleonic Code, which was theoretically written so as to be understandable by
laymen, the German code was written strictly for legal professionals. One overarching similarity is the
adoption of a well-defined role for the judiciary and its complete prohibition from any type of law-making
function whatsoever.
Codification efforts in England and the US: see early suggestions in England for codification. See Blackstone,
then Bentham, and American flirtations (cf Louisiana). See reasons for failure in England and US.
The code in the modern civil law system: law is supposed to come from the code, and not from the decisions
of the judiciary. The lawmaking prerogative of the legislature is jealously guarded against incursion by a
lurking ambitious judicial system, which is to be avoided based on historical experience. The concept of
having all positive law stated in a written code has more pragmatic justifications as well. In making the law
enacted by the representative legislature firm, fixed, and unassailable by the threat of an activist judiciary,
the civil code ideology embodies the quintessence of majoritarian governmental rule.
The judicial function in the modern civil law system: the judicial function in modem civil law systems follows
inexorably from the ideology of the civil law code. There are at least two fundamental limitations placed on
civil law judiciaries. The first limitation is that, since positive law in a civil law jurisdiction is ideologically
expressed exclusively in the comprehensive provisions of the code, the power of courts to adjudicate
disputes is limited strictly to the scope of coverage of the code precepts. The court must come to its
resolution of the case by working strictly within the framework of the code. The function of the law is to
determine, by means of basic concepts, the general precepts of the law, and to establish principles fertile in
consequences, rather than to go into the details of questions that may arise with regard to each particular
matter. It is for the judge and the lawyer to attend to its implementation.
The second fundamental limitation on civilian judiciaries follows from the first- cases are not law. Only the
code is law. Civil law courts may not adopt prior cases as precedents, or "positive law" to be followed in
subsequent litigation. There is no stare decisis. There is at least one way in which civilians approach the
recognition of case authority, and that is in the doctrine of jurisprudence constante. Whereas a single court
decision is no authority at all in a civil law system, but is rather only an illustration of that court's opinion of
the correct solution to be deduced from the code, a series of decisions which reach the same result by the
same deductive process in the same or similar situation will eventually attain a much higher level of
persuasiveness than that of a single decision. This is jurisprudence constante- but even in light of such a line
of similar resolutions, the court facing the present dispute must satisfy itself of the correct deduction to be
reached.
Although the civil law courts do in fact practice the deductive and analogizing processes described herein,
they also may fairly be said to engage in a considerable amount of statutory interpretation. Civil law courts
are to take into account not only the express grammatical provisions of the code section, but they are also to
consider the legislative intent and the social goal of the provision. This is sometimes referred to as the
"teleological approach"-that is, interpreting legislation in light of evolving societal or market forces.
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Assange – Introduction to comparative law and extradition
Glendon, Carozza & Picker, ‘Goals and methods of comparative law’
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Comparative law is both an academic discipline and a variety of methods of looking at law.
Comparatists view diversity as neither an impenetrable barrier to comparison nor an aberration to be
ignored or reduced, but instead as an opportunity, and a crucible of creativity and dynamism. The modern
systematic study of comparative law had its origins in European law reform, and few major legislative
programs are undertaken in Europe today without extensive preliminary comparative surveys. Comparative
law is indispensable as well to international endeavours such as the harmonization of laws within global or
regional associations, and the framing, application and interpretation of supranational legal norms. Notes
also theoretical aims.
Since controlled experimentation in law is hardly ever possible, legal scholars often use comparative law to
expand their theatre of observation. to see how other legal systems have dealt with problems similar to ours.
The hope is that the experiences of countries at comparable stages of social and economic development will
give us insight into our own situation.
See also the role of comparative law in legal theory.
Notes the role of Ernest Rabel. For Rabel, legal rules, institutions, or systems cannot be compared without
knowing how they function, and how they function cannot be known without situating them in their legal,
economic and cultural context. It is useless to compare paper institutions, or rules and doctrines merely as
they appear in books. The comparatist's province is the operating institution and the law in action.
Brand: recites functionalism in comparative law: F is concerned with how to compare the law's consequences
across legal systems and therefore allows rules and concepts to be appreciated for what they do, rather than
for what they say; here, it is the "function" of a rule, its social purpose, that is the common denominator that
permits comparison.
Says F rests on three premises:
o Realism about law as an instrument for channelling human behaviour and about law as an answer to
social needs or interests- see the “problem-solution” approach of F-theorists. Comparisons begin by
choosing a particular practical problem. Then, they present legal systems with regard to how they
resolve this problem. In a third step, similarities and differences between the solutions are listed,
explained, and evaluated.
o The actual function of legal institutions is a matter of sociological concern.
o Legal systems tend to resolve practical questions in the same way.
Grounded on these three premises, Fs have been most interested in explaining how norms are similar or
different from one jurisdiction to another, how such norms are borrowed or transplanted, and how they are
expressed in differing or similar kinds of rules. Normatively, Fs have fostered the production of uniform law,
most suggestively with their attempt to delineate a common core of legal institutions.
Suggests some problems for F:
o Particularism: Gerber has accused F of producing results that are "particularist," i.e., unrelated to the
socio-economic and historical circumstances that dictated them. I.e., that the F method is formalistic
or "legocentric."
o
o
o
o
o
o
o
Externalism: F suffers from taking a purely external view on the legal systems under comparison, which
leads to a failure in understanding the ideas that lie behind foreign legal systems from the inside.
Ethnocentricity: cultural homogeneity and monopoly of focus by European cultures.
Disputes concerning the premise that law is a solution to social problems. Not all legal norms and
doctrines are functionally related to social life because they run counter to any conceivable need or
interest.
Disputes concerning the premise of similarity of problems: the implied universalism of this premise
confines comparatists to dealing with problems defined in similar practical terms. As soon as one
system attributes a different social significance to a particular problem, the similarity of function (and
the comparability of "solutions") ends. Another "blind spot" of functionalism is its lack of causal
explanation. By definition, the method reverses the usual order of cause and (social) effect by
explaining things in terms of what happens afterward, not what came before. Partly as a result of this,
F is unable to solve the problem of apparently similar social and economic conditions producing
radically different legal solutions, or even no solutions at all.
Disputes concerning the premise that problems are solved similarly: Fs neglect the cultural-historical
specificity of legal systems as long as, generally, their solutions to "problems" coincide. The assumption
of similarity works reasonably well within the same cultural sphere.
Pseudo-factuality: F begins by defining a social problem. A social problem, however, is a factual
situation plus the value judgment that this situation causes consequences that need to be remedied.
This value judgment is contingent. The answer to what makes a factual situation a problem can be
different from one legal system to another.
Contemporality: F is nearly exclusively occupied with studying contemporal legal problems (horizontal
or synchronous comparisons). It neither creates incentives to look at how a problem was solved in the
past, nor does it care to compare legal systems or institutions that are remote from each other in time
(vertical or diachronous comparisons).
Cryer, Friman, Robinson and Wilmshurst, ‘State co-operation with respect to national proceedings’
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Introduction: international law, treaty and custom, has not (yet) developed a special regime for State-toState cooperation concerning international crimes. The Geneva Conventions and Additional Protocol I, for
example, explicitly refer to cooperation in accordance with domestic legislation. One must therefore resort to
general principles and provisions of international and domestic law on international cooperation in criminal
matters.
Traditional forms of legal cooperation are: extradition, mutual legal assistance, transfer of criminal
proceedings and enforcement of foreign penalties. In addition, there is an increasing degree of cooperation,
at various levels of formality, between police and other law enforcement authorities in different States.
Int’l agreements:
Extradition was the first form of legal cooperation to be regulated by international agreements. Jn the 1960s,
further steps were taken, especially within the Council of Europe, to extend the cooperation into transfer of
criminal proceedings (delegation of prosecution) and post-conviction measures.
But there is no global extradition or mutual legal assistance treaty of general application, and many States
rely on international and national regimes that are rudimentary, outdated or restricted to special crimes. ln
order to assist States, the UN has developed Model Treaties concerning all major forms of cooperation.
More recent treaties, however, elaborate further on legal cooperation in criminal matters and include more
or less complete regimes for extradition, mutual legal assistance and sometimes other forms of legal
cooperation (see examples).
Some basic features:
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Cooperation in criminal matters is characterized by a dichotomy between State sovereignty, and hence a
preference for one's own system, and a common interest and solidarity among States in combating crimes,
which in turn requires trust in the legal systems of others. Some features:
o Traditional assistance and mutual recognition: traditionally, the requesting State asks for assistance
with a certain measure and the requested State, if granting the request, takes the measure according
to the conditions and the procedures prescribed by its domestic law. Strict formalities and lengthy
procedures often plague cooperation and a scheme of this kind docs not always produce results that
are useful in the requesting State, particularly if the laws are very different or if strict conditions apply
regarding, for example, the admissibility of evidence. A means of solving this within the EU was the
introduction of a principle of 'mutual recognition' of foreign judicial decisions as the cornerstone for
legal cooperation among the Member States (see, e.g., European Arrest Warrants).
o Double criminality, rule of speciality and statutory limitations: the principle of double criminality' (or
'dual criminality') has long been applied, requiring that the underlying act (or omission) is criminal in
both the requesting and the requested State. Many newer instruments, particularly in the EU, seek to
abolish the requirement, at least partially; the European Arrest Warrant, for example, does not require
double criminality regarding selected crimes. The rule of specialty, which is common in extradition
treaties, restricts the requesting State to bringing proceedings only with respect to the crimes for
which the suspect was extradited. See exceptions. See also statutory exceptions.
o Ne bis in idem (double jeopardy): this is a general criminal law principle in most national systems, but
one that is normally confined to application within the same system. However, so long as criminal
proceedings are not prevented by a judgment (or other final decision) in another State, criminal
proceedings concerning the same person and criminal act (or omission) might already be finalized in
the requested State when the request is made. See examples for embodiments in instruments.
Nonetheless, there is no general rule of international law preventing extradition because of a judgment
in a third State.
o Human rights and legal cooperation: extradition laws and treaties have traditionally been interpreted
in favour of the request. In common law jurisdictions the 'rule of non-inquiry ' has often discouraged
the courts from inquiring into the fairness of the proceedings of the requesting State. An early
expression of the human rights concerns is the non-refoulement principle which applies in refugee law
and provides that a refugee should not be returned to a country where he or she is likely to be
persecuted, as established in the 1951 Refugee Convention (see exceptions). See 1989 ECHR decision
of Soering.
Extradition:
Extradition is the surrender of a person by one State to another, the person being either accused of an
(extraditable) crime in the requesting State or unlawfully at large after conviction. Considers the principle of
aut dedere aut judicare.
Extradition agreements and the EAW: many States insist on reciprocity and require an international
agreement for extradition. Apart from numerous bilateral agreements, the basic multilateral treaty in Europe
is the 1957 European Extradition Convention and its Additional Protocols. The EU has followed suit and
adopted conventions in 1995 and 1996, which provide for simplified proceedings and reduced grounds for
refusal but they are not widely ratified. Among the EU Member States, however, the EAW has replaced the
traditional extradition scheme and introduced a system whereby a warrant in one State shall be recognized
and enforced (arrest and surrender) in all other Member States. The EAW restricts many traditional grounds
for refusal.
Extradition procedures: the extradition procedures follow the law and practice of the requested State and
applicable extradition agreements. ln common law countries, the habeas corpus principle extends also to
extradition and offers an additional ground to challenge a foreign request. Linked to this, these countries also
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require that the prosecution evidence against the fugitive justifies the trial for which extradition is sought;
supporting evidence is required and a prima facie test is applied. See also principle of non-inquiry.
Extraditable offences: extradition is normally restricted to serious offences, often by reference to a minimum
level of punishment. See also offences usually excluded (e.g., of a political nature). See exceptions.
Non-extradition of nationals: many States. primarily civil law jurisdictions, prohibit the extradition ofthcir
own nationals; the principle is based on a historical duty of the State to protect its citizens, sovereignty, and
indeed distrust in foreign legal systems, and it is often constitutionally protected. As a counterweight, many
of these States provide for extensive criminal jurisdiction over offences committed abroad. See exceptions.
Death penalty, life imprisonment, and other HR grounds: many States that have abolished capital
punishment domestically also prohibit extradition when the fugitive may face the death penalty, unless the
requesting State undertakes not to impose this penalty in the case at hand or at least not to enforce it.
Corporal punishment, poor prison conditions, lack of appropriate medical care, and harsh interrogation
methods may also meet the criteria for refusal. However, the fact that the fugitive will face potentially very
high penalties and possible detention in solitary confinement in a maximum-security facility is not necessarily
sufficient. Similarly, life imprisonment. See citations. See other HR considerations.
Re-extradition: the requesting State is generally not allowed to re-extradite the fugitive to a third State
without the consent of the requested State. This is provided, for example, in the 1957 European Extradition
Convention concerning re-extradition for offences committed before the surrender to the requesting State.
But see exceptions, e.g., EAW.
Abduction, rendition or expulsion: such activities often violate international law with respect to the
territorial sovereignty of another State and the human rights of the individual concerned. ln accordance with
the maxim male captus, bene detentus, national courts have long been prepared to try accused persons
regardless of how they came under the jurisdiction of the court, even if the arrest and surrender of the
person was unlawful under national or international law. See exceptions.
Mutual legal assistance:
Covers a wide range of measures that may relate to a criminal investigation, prosecution or trial, and include,
for example, the taking of witness statements, search and seizure, service of documents, and tracing of
persons and information. In Europe, the basic multilateral instrument is the 1959 Council of Europe
Convention on Mutual Assistance in Criminal Matters, to which Additional Protocols have been adopted in
1978 and 2001. See other examples and potential scope of activities covered.
Transfer of proceedings:
With diverging views on criminal jurisdiction and all the restrictions and difficulties concerning international
legal cooperation, alternative solutions have been considered. One model is the transfer of criminal
proceedings from one State to another, both of which have jurisdiction over the offence; a double-criminality
requirement always applies and, due to the nature of the cooperation, is often far-reaching. Most wellknown is a multilateral convention adopted by the Council of Europe.
Enforcement of penalties:
While States have historically been reluctant to recognize foreign criminal judgments formally, cooperation
does exist regarding enforcement of foreign prison sentences and other penalties. See examples.
Assange – Extradition of Assange
Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
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Sir John Thomas: recaps the facts. EWA was issued by the SPA on 26 November 2010 after proceedings in
Swedish courts; four offences: unlawful coercion; sexual molestation (two counts); rape. See particulars. On 6
December 2010 the EAW was certified by the SOCA under the Extradition Act 2003 as complying with the
requirements of that Act. There was a hearing and on 24 Feb 2011, the Senior District Judge ordered
Assange’s extradition.
Note the powers of the court in ordering the surrender of a person to another Member State of the
European Union are governed by Part I of the 2003 Act. It was enacted to implement the Framework Decision
establishing the EAW regime legislation adopted on 13 June 2002 by the Council of the European Union. Part
2 of the Act applies to extradition to other States with which the United Kingdom has extradition
arrangements.
Assange appeals on four grounds:
o The EAW was not issued by a judicial authority: dismisses this ground;
o Offences 1-3 in the EAW do not meet the dual criminality test; none was a fair and accurate description
of the alleged conduct; in relation to offence 4, the conduct, if fairly and accurately described, would
not have constituted rape.
The principle of dual criminality requires that a person only be extradited where the conduct is not
only an offence in the requesting state, but also in the host state. S 64 of the 2003 Act requires that all
offences that are not Framework Offences (here, offences 1-3) satisfy this principle. Further, s 2(4)(c)
requires the EAW to contain certain particulars, and any provision of the requesting state under which
the conduct is alleged to constitute an offence.
Says that, ordinarily, a court in the England and Wales jurisdiction will accept the designation of the
conduct as constituting an offence under the law of the requesting state; the particulars given in the
EAW should also ordinarily make clear whether the conduct would also constitute an offence under
the law of England and Wales.
The facts in the EAW must compel the inference that the defendant did the acts alleged with the
necessary mens rea: it must be the only reasonable inference to be drawn from the facts alleged.
Otherwise, a defendant could be convicted on a basis which did not constitute an offence under the
law of England and Wales, and thus did not satisfy dual criminality (e.g., an allegation that force or
coercion was used compels the inference not only that there was no consent, but that the defendant
had no reasonable belief in it; so, if the acts of force or coercion are proved, the inference that the
defendant had no reasonable belief in consent is plain).
Assange contended that the conduct described in offence 2 was not an offence under E and W law,
and alternatively, that if the offence had been fairly and accurately described, it was also not an
offence under E and W law. Says that the 2003 codification changed the position and that conditional
consent is no longer consent in all circumstances (subject to the fraud exceptions), but rather that it is
conditional and that the conduct as described now constitutes an offence under E and W law (note
that deception can still negative consent under s 74 even if it is not deception relevant to s 76).
So requirement of dual criminality is satisfied in relation to offence 2.
Assange also contended that there had to be a description of what is recognisable as rape as the term
is used in the language and law of European countries. Considers what is meant by ‘rape’. On this
approach, intentional penetration achieved by coercion or where consent is lacking to the knowledge
of the defendant amounts to rape. So, what was described in the EAW was rape. Coercion evidences
knowledge of a lack of consent and lack of a reasonable belief in consent. A requirement of proof of
coercion, if that is what Swedish law requires, is a more onerous test than the test for consent in the
2003 Act; it necessarily means however that the allegation that the defendant knew of the absence of
o
consent or had no reasonable belief in consent, is made out in the description of the offence. However,
says this is not the correct approach, which requires considering the law of the requesting state.
Although the court executing the EAW must scrutinise the EAW to ensure that it complies with the
requirements of particularity, it should ordinarily accept the classification of the issuing Member State,
unless there is an obvious inconsistency which shows that the conduct alleged does not amount to the
offence under the law of that state. Here, the Swedish Court considered offence 4 and raised no
objection to it. It can therefore be taken that rape is committed according to the law of Sweden when
a defendant has sexual intercourse with a woman in a helpless state. The particulars given in the EAW
set out that helpless state as being asleep. There is no inconsistency between what is set out in the
EAW and the classification of rape in Sweden.
The condition in the 2003 Act s 2(3) was not satisfied as Assange was not an accused. Here, it was
common ground that extradition is not permitted for investigation or gathering evidence or
questioning to see if the requested person should be prosecuted. But did the EAW unambiguously
request the surrender of Assange for the purpose of prosecution?
Here, A contended that the 2003 Act required it to be clear that criminal proceedings had commenced.
However, the EAW did not contain a statement that Mr Assange was accused of the commission of an
offence in Sweden, because he had not been accused of an offence, as criminal proceedings had not
been commenced. Further, A contended that if an EAW was issued prior to the point at which a
criminal prosecution had commenced and the person charged, it was not a valid EAW.
Considers the meaning of ‘accused’. See In re Ismail [1999] 1 AC 320, 326ff (question of fact; generous
construction required for extradition treaties; problems because procedural differences in different
jurisdictions; suggests purposive interpretation is req’d- substance over form; right test consists of the
broad question whether the competent authorities in the foreign jurisdiction had taken a step which
can fairly be described as the commencement of a prosecution). Recaps other authorities.
Here, the EAW stated that it requested Assange be surrendered for the purposes of conducting a
criminal prosecution. Although the EAW makes clear that the surrender is requested for the purpose of
conducting a criminal prosecution, set out the offences and does refer to the warrant being based on
the decision of the Svea Court of Appeal, there is nothing in the EAW that formally states he is accused
of an offence in Sweden.
Agrees with Toulson LJ in Bartlett that the EAW should make clear that the investigation has reached
the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought
to be tried for the specified offence or offences, and the purpose of the request for extradition must
be to place him on trial. Here, says the terms of the EAW read as a whole made clear that not only was
the EAW issued for the purpose of Assange being prosecuted for the offence, but that he was required
for the purposes of being tried after being identified as the perpetrator of specific criminal offences.
He was therefore accused of the offences specified in the EAW. Nothing in the EAW suggested he was
wanted for questioning as a suspect.
Here, however, Assange attempted to adduce extraneous evidence to show that the proceedings were
still at a preliminary stage. Says even if that is permitted, it does not help Assange. Looking at the
matter through cosmopolitan eyes it cannot be said that a person can be accused of an offence even
though the decision has not finally been taken to prosecute or charge; Ismail makes clear one cannot
simply look at the matter as a common lawyer. Assange is on the facts before this court "accused" of
the four offences. There is a precise description in the EAW of what he is said to have done. The
extraneous evidence shows that there has been a detailed investigation. The evidence of the
complainants AA and SW is clear as to what he is said to have done as we have set out. On the basis of
an intense focus on the facts he is plainly accused. A further way of addressing this broad question is to
ask whether the case against him has moved from where he can be seen only as a suspect where proof
may be lacking or whether there is an accusation against him supported by proof: cf the distinction
made by Lord Devlin in Hussein v Chong Fook Kam [1970] AC 942 at 948. Plainly this is a case which has
moved from suspicion to accusation supported by proof.
So the upshot is a contextual, comparative approach is required- not judging civil processes by
common law standards.
o The issue of the EAW and subsequent proceedings were not proportionate.
Assange v The Swedish Prosecution Authority [2012] 2 AC 471
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Note fundamental split in approach between Lords Phillips and Mance to meaning of ‘judicial authority’Mance suggests culture-independent principles, such that a judicial authority is not simply whatever a state
designates; Phillips suggests a contextual approach.
Lord Phillips: this appeal relates to one of the grounds in the earlier appeal: s 2(2) in pt 1 of the Extradition
Act 2003 ("the 2003 Act") requires an EAW to be issued by a "judicial authority", and Assange contends that
the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid. That
is, a "judicial authority" must be a person who is competent to exercise judicial authority and that such
competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the
Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a
"judicial authority". The respondent argued that the phrase "judicial authority", in the context of the
Framework Decision, and other European instruments, bears a broad and autonomous meaning. It describes
any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies,
some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of
which do not. In some parts of the Framework Decision the term "judicial authority" describes one type, in
other parts another. A prosecutor properly falls within the description "judicial authority" and is capable of
being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides.
It is logical to approach the interpretation of the words "judicial authority" on the presumption that
Parliament intended that they should bear the same meaning in Part 1 of the 2003 Act as they do in the
Framework Decision.
Says the ECJ’s approach to interpreting European legislation consists of: start with the terms of the
instrument in question, including its preamble; turning to preparatory documents; considering the usual
meaning of expressions used and [compare] different language texts of the instrument; considering the
purpose and general scheme of the instrument to be construed. Suggests a different order: begin with the
natural meaning of the words (note both ‘judicial authority’ and ‘autorite judiciaire’); then, the purpose and
general scheme of the FD (see recital (5); recaps the history of arrangements previous to the FD; considers
the role of the public prosecutor); the preparatory documents (the critical question here is whether the
changes made to the draft FD altered the meaning of "judicial authority" so as to exclude a public prosecutor
from its ambit. There are two possible reasons for removing the precise definition of "judicial authority" that
had been included the draft. The first is to restrict the meaning by excluding from its ambit the public
prosecutor. The second is to broaden the meaning so that it was not restricted to a judge or a public
prosecutor. Concludes the second, because, firstly, had the intention been to restrict the power to issue an
EAW or to participate in its execution to a judge, that would have been expressly stated (the change would
have been radical, and would have prevented public prosecutors from performing functions that they had
been performing in relation to the issue of provisional arrest warrants since 1957), and secondly, it is hard to
see why the majority of Member States would have wished to restrict the ambit of the issuing judicial
authority in this way- the significant safeguard against the improper or inappropriate issue of an EAW lay in
the antecedent process which formed the basis of the EAW, and thirdly, the removal of the definition of
judicial authority as being a "judge or public prosecutor" was not because Member States wished to narrow
its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or
a public prosecutor, and fourthly, aspects of the December draft suggest that the meaning of judicial
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authority was not restricted to a court or judge, and fifthly, the manner in which not merely the Member
States but also the Commission and the Council acted after the FD took effect was in stark conflict with a
definition of judicial authority that restricted its meaning to a judge (see VCLT art 31.3(b))).
So, the purpose of the FD, its general scheme, the previous European extradition arrangements, the existing
procedures of the Member States at the time that the Framework Decision was negotiated, the preparatory
documents and the variety of meanings that the French version of the phrase in issue naturally bears, the
manner in which the Framework Decision has been implemented and the attitude of the Commission and the
Council to its implementation all lead to the conclusion that the "issuing judicial authority" in the FD bears
the wide meaning that embraces the Prosecutor in the present case.
Further, it is necessary, if possible, to give "judicial authority" the same meaning in the 2003 Act as it bears in
the Framework Decision. Is it possible? Says yes.
Dismisses the appeal.
Lord Dyson: much the same as Lord Phillips.
Lady Hale: Article 31.3(b) of the VCLT provides that there shall be taken into account, along with the context,
"any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation". While the practice need not be that of all the parties to the treaty (as in this
case it obviously is not) the practice has to be such as to establish the agreement of all the parties as to its
interpretation. Given the lack of common or concordant practice between the parties, the failure to date of
those countries which do not authorise prosecutors and other bodies to object to those who do is not
sufficient to establish their agreement. Nobody in this country addressed their mind to the issue until it arose
in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of
affairs. Subsequent practice does not give support to the respondent's extreme position and there has been
no consideration of the principles which might distinguish some prosecutors from others. This is a flimsy
basis on which to hold that we are obliged to construe a UK statute contrary both to its natural meaning and
to the clear evidence of what Parliament thought that it was doing at the time.
Lord Mance: this appeal involves consideration of the interface between the European Framework Decision
operating at an inter-government level and the United Kingdom's domestic legislation in the form of the
Extradition Act 2003. The Act was introduced to give effect to the Framework Decision. There are two
different bases upon which this may be relevant. The first basis is the common law presumption that the
Framework Decision gave effect to the United Kingdom's international obligations fully and consistently.
However, the Act is in noticeably different terms, and it is not axiomatic that it did so in every respect. The
presumption is a canon of construction which must yield to contrary parliamentary intent and does not
exclude other canons or admissible aids (e.g., Ex parte Brind [1991] 1 AC 696, 748B-C). Secondly, the duty of
conforming interpretation, which the Court of Justice in Criminal proceedings against Pupino (Case C-105/03)
[2006] QB 83 held to be incumbent on domestic courts in the context of framework decisions (see other
references on this duty at [203]). Pursuant to this duty, domestic courts may depart from the precise words
used, eg by reading words in or out. The main constraint is that the result must "go with the grain" or "be
consistent with the underlying thrust" of the legislation being construed, that is, not "be inconsistent with
some fundamental or cardinal feature of the legislation": Vodafone 2, para 38, and Test Claimants in the FII
Group Litigation, para 97, in each case citing Ghaidan v Godin-Mendoza [2004] 2 AC 557. In this light,
considerable significance may attach to whether the European legal duty of conforming interpretation
applies or whether the case is subject only to the common law presumption that Parliament intends to give
effect to the United Kingdom's international obligations.
So what is the meaning of ‘judicial authority’? The correct interpretation of the Framework Decision is a
matter of European Union law. Lord Phillips suggests two possible reasons for the absence from the Council
redraft of any definition of judicial authority: one, to restrict the meaning to a judicial authority in the strict
court sense; the other, to broaden it beyond judge or prosecutor. He favours the latter (paras 60 and 65). But
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it is also possible that there was no consensus, and that the removal of any definition left the matter open, in
effect for whatever the Court of Justice might decide. In any event, the Court of Justice would not speculate,
but would focus on the final Framework Decision and seek to make sense of its text in the light of its purpose,
the principles underlying it and general principles of European law. Under article 6.3 of the Treaty on
European Union in its current form, these include "[f]undamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States".
For subsequent practice in the application of the parties to be relevant to be taken into account in the
interpretation of the Framework Decision, it must under article 31.3 be practice which "establishes the
agreement of the parties regarding its interpretation". It must be practice "which clearly establishes the
understanding of all the parties regarding its interpretation", although "subsequent practice by individual
parties also has some probative value": Brownlie, Principles of Public International Law, 7th ed (2008) pp 633634. Evidently suspect practice consisting of the use and nomination of executive authorities by a few states
cannot come near establishing "the agreement of the parties regarding [the] interpretation of the Framework
Decision" within the meaning of article 31.3 of the Vienna Convention on the Law of Treaties. On this I
disagree with Lord Phillips in paras 60 and 67.
My examination of the Framework Decision leads to a conclusion that it is far from easy to predict what the
attitude of the Court of Justice might be on the question whether a public prosecutor can qualify as an
issuing judicial authority for the purposes of reaching a judicial decision to issue a European arrest warrant in
a case in which he or she is conducting the criminal prosecution. There are strong arguments each way.
However, if a prediction has to be made as to what would be likely now to be held by the Court of Justice to
be the legal position under the Framework Decision, I would come down on balance on the same side as Lord
Phillips.
However, in relation to the Act, says no. It would be circular and undermine the parliamentary process and
clear intention if all that it meant was that British courts had to be satisfied that the issuing authority had the
function of issuing a European arrest warrant under its domestic law and that the relevant state had notified
the issuing authority to the Council as having that function. Further, the answer cannot be diluted by
reference to subsequent state practice, which is relevant to the interpretation of the Framework Decision,
but this cannot affect the guidance as to Parliament's actual intention in 2003 which is to be gained from the
course of the parliamentary debates and amendments in 2003. To treat Parliament as having intended that
the words "issuing judicial authority" should bear whatever meaning subsequent state practice might attach
to them, would undervalue the significance of the parliamentary process and the seriousness of the concerns
expressed, the assurances delivered and the amendments made during that process.
Assange – Individuals, the international legal order, diplomatic protection, and the provision of
consular services
Sloane, ‘Breaking the genuine link: the contemporary international legal regulation of nationality’
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This article is about the competence of states to deem or stipulate people as their nationals, and the
consequences for international law, given that nationality is seen as the link between international law and
the individual.
Notes the genuine link theory (see Nottebohm: “nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual
upon whom it is conferred . . . is in fact more closely connected with the population of the State conferring
nationality than with that of any other State”) of nationality ascription and proposes instead a functionalist
theory.
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Recaps the facts of Nottebohm (Liech v Guar) 1955 ICJ 4. Note that Nottebohm changed nationality to that of
Liechtenstein to evade the probable consequences of the int’l law of war, including his becoming in
Guatemala an enemy alien under int’l law, Guatemala’s being able to deport him and seize his assets. These
were noted by the ICJ.
Note that although Nottebohm is held as embodying the genuine link theory, if that were really true, the
court would have found him to have been Guatemalan on the facts (he was no more genuinely linked to
Germany as he was to Liechtenstein).
In 1951, Liechtenstein initiated proceedings on N’s behalf in the ICJ on the basis of diplomatic espousal.
Liechtenstein asked for reparations for his arrest, detention, and expulsion, and for the expropriation of his
property.
The ICJ took the question to be whether N’s acquisition of L’s nationality is one which must be recognized by
other states, subject to the qualifications that what is involved is not recognition for all purposes but merely
for the purposes of the admissibility of the application, and secondly, not recognition by all states but only by
Guatemala.
Notes that the genuine link theory was heavily criticised by the dissenting judges and was not founded on
law. Notes the context in which the theory originally evolved in the 19th century.
Says then that it is better not to regard Nottebohm as turning on the genuine link theory, but rather as
effectively atomizing nationality by function and scrutinizing one of these functions: authorizing a person's
state of nationality judicially to espouse a diplomatic claim in international fora. That is, that it was only for
this purpose that the majority emphasized the absence of a real and effective link between N and L.
The court itself acknowledged that the situation of positive law was that states enjoyed almost plenary
power to ascribe nationality as they see fit by internal law.
Note also that the court’s espousal of the genuine link theory (see above) is prima facie inconsistent with jus
soli and jus sanguinis which are undoubtedly valid principles of nationality ascription.
Suggests rather that the majority decision rested on a general principle of law within Art 38(1) of the ICJ
Statute – the abuse of rights (which denotes a violation of the core principle of good faith and requires that
every right be exercised honestly and loyally. Any fictitious exercise of a right for the purpose of evading
either a rule of law or a contractual obligation will not be tolerated- see other definitions of the doctrine at
19-20), specifically N abused his right to acquire L nationality to evade a rule of the law of war. Seen in this
way, it was that abuse of the right which vitiated G’s obligation to recognize L’s ascription of nationality to N
in the context of the judicial espousal of a diplomatic protection claim.
Dugard, ‘Diplomatic protection’
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Under international law, a State is responsible for injury to an alien caused by that State’s wrongful act or
omission (Aliens). Diplomatic protection is the procedure employed by the State of nationality of the injured
person to secure protection of that person, and to obtain reparation for the internationally wrongful act
inflicted. Such protection extends to both natural and legal persons. As diplomatic protection is part of the
law of State responsibility, the International Law Commission (ILC) has defined diplomatic protection, for the
purpose of its Draft Articles, as consisting of the invocation by a State ‘of the responsibility of another State
for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a
national of the former State with a view to the implementation of such responsibility’ (Art. 1 ILC Draft Articles
on Diplomatic Protection (2006) [‘Draft Articles’]). This definition was noted with approval by the
International Court of Justice (ICJ) in the Ahmadou Sadio Diallo Case (Republic of Guinea v Democratic
Republic of the Congo) para. 39.
7 Diplomatic protection has traditionally been seen as an exclusive State right, in the sense that a State
exercises diplomatic protection in its own right because an injury to a national is deemed to be an injury to
the State itself. This approach has its roots in a statement by the Swiss jurist Emmerich de Vattel in 1758 that
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‘whoever ill-treats a citizen indirectly injures the State, which must protect that citizen’ (at 136). Later in
1924, this view was approved by the Permanent Court of International Justice (PCIJ) in the Mavrommatis
Palestine Concessions Case when it stated that ‘by taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own
right, the right to ensure, in the person of its subjects, respect for the rules of international law’ (at 12). The
ICJ endorsed this approach in 1955 in the Nottebohm Case in which it stated: ‘Diplomatic protection and
protection by means of international judicial proceedings constitute measures for the defence of the rights of
the State’ (at 24). The view that an injury to a national is an injury to the State itself is a fiction, which is
contradicted by a number of rules of diplomatic protection, particularly the rule of continuous nationality,
which requires a State to prove that the injured national remained its national after the injury and up to the
date of the presentation of the claim. Logically, if the injury to the national is an injury to the State, the date
of injury should be sufficient. The exhaustion of remedies rule (see paras 53–67 below) and the practice of
fixing the quantum of damages suffered by the State to accord with the loss suffered by the individual are
also difficult to reconcile with the notion that an injury to a national is an injury to the State itself.
8 The fiction that an injury to the injured national was an injury to the State can be explained on the ground
that in the early years of international law the individual had no place, no rights in the international legal
order. Consequently if a national injured abroad was to be protected this could be done only by means of a
fiction—that an injury to the national was an injury to the State itself. That the purpose of diplomatic
protection is to protect the rights of the individual rather than those of the State was acknowledged by the
ICJ in the Interhandel Case (1959) when it spoke of the applicant State having ‘adopted the cause of its
national whose rights are claimed to have been disregarded in another State in violation of international law’
(at 27).
Article 36 Vienna Convention on Consular Relations gives treaty endorsement to one of the mechanisms of
diplomatic protection, namely the right of consular officials to communicate with, and to assist, nationals
imprisoned in the receiving State. The failure of the US to give effect to this right has been condemned by the
ICJ in the LaGrand Case (Germany v United States of America) (2001) and the Avena and Other Mexican
Nationals Case (Mexico v United States of America) (2004).
13 A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or
obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a
national, but international law imposes no such obligation. The position was clearly stated by the ICJ in the
Barcelona Traction Case (1970):
17 Diplomatic protection consists of primary and secondary rules. The primary rules prescribe the standards
that States are expected to observe in their treatment of the persons and property of aliens. Failure to
comply with these standards or rules will result in the responsibility of the wrong-doing State. Secondary
rules prescribe the conditions that must be met for the bringing of a claim of diplomatic protection, notably
the establishment of the nationality of the injured individual and proof that local remedies have been
exhausted in the host State. The present chapter is concerned largely with such secondary rules.
See pre-requisites (secondary rules) at para 18ff.
68 There is no duty on a State to provide diplomatic protection to an injured national (see para. 13 above).
This means that a State will make a political decision whether to exercise its discretionary power in favour of
diplomatic protection. In making its decision a State will be guided by such factors as its political and
economic relations with the respondent State, the gravity of the injury to the national, the reputation of the
justice system of the respondent State, its own reputation as a State that demands respect for its nationals,
and the degree of support for the injured national in the claimant State.
69 The ICJ and its predecessor, the PCIJ, distinguish between ‘diplomatic action’ and ‘international judicial
proceedings’ as the means for the enforcement of diplomatic protection (see Mavrommatis Palestine
Concessions 12; Nottebohm 24).
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73 Claims for diplomatic protection will usually demand reparation, in the form of restitution, compensation,
or satisfaction, consisting of an acknowledgement of the breach, an expression of regret, or formal apology.
In calculating the quantum of damages regard is generally had to the injury suffered by the national. On the
other hand, because the claimant State claims in its own right, it is under no legal obligation to disburse
compensation received to the injured national. This has been affirmed by both international tribunals
(Administrative Decision No V (1925) 152) and national courts (for example Lonrho Exports Ltd v Export
Credits Guarantee Department [1996] 687). Moreover it is common practice for States to agree to lump sum
settlements in respect of multiple individual claims, which in practice results in individual claimants receiving
considerably less than was claimed. In order to curtail the absolute right of the State to withhold payment of
compensation received on behalf of an injured national, the ILC has recommended in Art. 19 (c) Draft Articles
that a State exercising diplomatic protection should ‘transfer to the injured person any compensation
obtained for the injury from the responsible State subject to any reasonable deductions’.
81 The principal primary rule of diplomatic protection at this time required States to treat aliens in
accordance with an international minimum standard that was vaguely defined as encompassing the ‘ordinary
standards of civilization’ (Roberts Claim 80). After World War II, and the emergence of human rights as a
force to be reckoned with in international law, the international minimum standard came to be defined in
terms of international human rights norms proclaimed in the UDHR; the International Covenants on Civil and
Political Rights and Economic, Social, and Cultural Rights; and other universal and regional human rights
instruments. Inevitably this resulted in merger of diplomatic protection and human rights law in respect of
the treatment of aliens abroad.
Assange – Assange at the Ecuadorian Embassy
Shah, ‘Diplomatic Asylum’ (MPEIL)
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Summary: diplomatic asylum refers to the idea that a diplomatic mission of a sending State has the right to
offer protection to refugees present in the premises of the mission. It is distinguishable from the concept of
territorial asylum which entails an exercise of the sovereign right of a State to grant refuge from persecution
on its own territory.
Diplomatic asylum entails a derogation to the sovereignty of the State in which the sending State has its
diplomatic mission.
With the possible exception of its being a norm of regional international law, and except where it is
temporarily granted for humanitarian reasons, there is no general right in international law to grant
diplomatic asylum. Any right of diplomatic asylum is not subjective to an individual, but a right of a State as
against the sovereignty of another State.
History: the development of the concept is also linked to the changing understanding of the inviolability of
diplomatic missions in Europe. From the 15th century the practice of granting asylum within the premises of
diplomatic missions was commonly invoked, although it was not always recognized that, once such asylum
had been granted, the local authority could not exercise jurisdiction over such persons and was unable to
bring them to justice. The basis of such claims to grant asylum was that the premises of a diplomatic mission
enjoyed extraterritoriality, forming part of the home State of the diplomatic envoy. There was also an
understanding that an ambassador could not effectively perform his functions if his residence could be
entered and searched by officials of the receiving State. In the 16th and 17th centuries, as political and
religious dissent increased in Europe, foreign embassies became places to which dissidents frequently fled,
and heads of diplomatic missions denied local officials the right to enter and search their premises, even to
search for and arrest traitors and criminals.
Current law: in the Asylum Case, the ICJ said at 274-5: in the case of diplomatic asylum, the refugee is within
the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the
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territorial State and constitutes an intervention in matters which are exclusively within the competence of
that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is
established in each particular case.
Therefore, there was no general rule of international law permitting a grant of asylum and the existence of
such a rule in a particular case needed to be proved by a particular treaty or custom.
See also Haya de la Torre Case e.g., at 80-2.
The present state of international law mostly exists in the interstices of the norms contained in Art. 22 Vienna
Convention on Diplomatic Relations (1961) (‘VCDR’), which expresses in absolute terms the inviolability of the
premises of a diplomatic mission, and Art. 41 VCDR, which requires respect for the laws and regulations of
the receiving State, and non-interference in its internal affairs, as well as prohibiting the use of such premises
in any manner incompatible with the functions of the mission, as laid down in that Convention, by other rules
of international law, or by any special arrangement in force between the sending and receiving States. Thus,
the present tendency appears to favour the position that if a person takes refuge within diplomatic premises,
he should be handed over to the authorities if he is accused of a criminal charge and if a warrant for his
arrest has been issued by the competent authorities of the receiving State. However, there does not appear
to be any duty upon the head of a diplomatic mission to refuse entry to persons who wish to take refuge in
the embassy. It is also thought that temporary refuge may be granted in a diplomatic mission in order to save
human life, and for similar humanitarian reasons especially during times of civil and political unrest. The
refuge and safe passage granted to thousands of East Germans through the 1980s in the diplomatic missions
of Western countries located in the East Bloc States may be viewed in this light.
Besides the use of diplomatic missions for the purpose of providing shelter, the question of using consular
premises for similar reasons can also arise. While the inviolability of diplomatic premises, upon which the
right to diplomatic asylum depends, finds stronger expression in international law, consular premises are not
generally thought to be appropriate places for people seeking asylum, and in the few modern instances
where consulates were involved, the tendency has been to remove such people or to turn them over to the
local authorities. However, exceptions may be made on humanitarian grounds or on the ground that deeply
felt principles of human rights would be compromised.
At the present state of development of international law, a subjective right of diplomatic asylum does not
appear to exist.
Den Heijer, ‘Diplomatic Asylum and the Assange Case’
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The case of Assange illustrates the conflict inherent in diplomatic asylum between the receiving (or
territorial) state's territorial sovereignty and the sending (or extraterritorial) state's diplomatic inviolability.
Three questions seem to fight for supremacy: whether Ecuador has a right to grant Assange asylum, whether
the United Kingdom has a right to terminate any grant of asylum, and whether Assange can invoke a right to
be protected against alleged injustices in (primarily) the United States
The article submits that, although there would not seem to be a title in general international law or human
rights law for Ecuador to grant asylum to Assange, there is no obvious legal route for the United Kingdom to
terminate the asylum.
A short history of diplomatic asylum: diplomatic asylum originated in the 15th and 16th centuries in Europe as
a consequence of the transformation of temporary embassies into permanent ones and the corollary
extension of the privilege of the ambassador's personal inviolability to his dwellings (and other properties
such as his carriage). The spreading practice of diplomatic asylum in that era has further been explained by
the demise of more traditional forms of asylum, such as the abolition of cities of refuge and the falling into
disuse of church sanctuary. But also relevant was the still nascent and imperfect conception of territorial
sovereignty: the state was at the time quite familiar with sharing jurisdiction with other authorities. Until the
19th century, the right of diplomatic asylum was often explained by the now defunct idea of exterritoriality,
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holding that diplomatic premises are part and parcel of the sovereignty of the sending state, over which the
receiving state consequently wields no power. One of the first to reject this theory was van Bynkershoek,
who posited that the ambassador's immunities are functional and that his premises may not be used to offer
refuge to fugitives. Abuse of diplomatic privileges, the cementing idea of exclusive territorial sovereignty, and
insistence on the orderly administration of justice explain the waning popularity of diplomatic asylum in
Europe in the 19th century. One shift in thinking on diplomatic asylum was that extending asylum to common
criminal-law offenders was widely denounced and that, if the right was still considered to exist, it accrued
only to perpetrators of political crimes or persons fleeing from political upheaval. The endorsement of the
institution in Latin America is directly related to the frequent occurrence of political turmoil and civil war in
that part of the world, resulting in a state of affairs where today's government officials may be tomorrow's
refugees, and vice versa. From the second half of the 19th century onwards, a series of treaties were
concluded that aimed to regulate the exercise of the right. When serious consideration was given in the
1970s to codifying diplomatic asylum in a treaty of universal applicability, several Latin American countries
staunchly supported the idea, noting that the institution's humanitarian aspirations should be elevated into
the international legal order since political instability continued to endanger human beings in all parts of the
world. But attempts at codifying diplomatic asylum outside Latin America have remained inconclusive. It
does, however, not follow that diplomatic asylum has become extinct outside Latin America. On the contrary
- the 20th century has continued to abound with instances of diplomatic asylum.
See examples. What these examples show is not that diplomatic asylum must be considered to have
persisted as international custom that enjoys abundant practice or recognition of governments. They do
indicate, however, that requests for diplomatic asylum may be so exceptional or so intertwined in wider
international events, or entertain such significant political considerations, that it would be too sweeping and
absolute to discard every grant of asylum as an abuse of international law. Diplomatic asylum may be
perceived as a lamentable practice in strict legal terms, but its ramifications can be of such significance that it
remains in use even by those countries that most strongly disapprove of it.
The right of the sending state to grant diplomatic asylum: the problem with accepting a right on the part of
states to grant diplomatic asylum was aptly articulated in the Asylum case: in the case of diplomatic asylum,
the refugee is within the territory of the State where the offence was committed. A decision to grant
diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from
the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within
the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its
legal basis is established in each particular case.
The ICJ clarified, therefore, that diplomatic asylum must be distinguished from territorial asylum (i.e., asylum
granted by and in the territory of the petitioned state). Since territorial asylum benefits from the shield of
territorial sovereignty, it is commonly accepted, and this was affirmed by the ICJ in the Asylum case, that it
constitutes a normal exercise of state sovereignty that is to be respected by other states. The reverse
implication of the oft-invoked 'inherent' right of states to refuse entry to aliens as it sees fit is that the state is
also free to admit any alien it wishes to admit. But this maxim cannot be upheld in respect of diplomatic or
other forms of extraterritorial asylum.
So the question is what legal bases there could be for such inroads into the sovereignty of the territorial
state.
Considers various treaties and conventions, general int’l law, and custom, as considered by the ICJ in Asylum
Case, which found each of these to be unsatisfactory bases.
In view of the absence of worldwide treaty law on diplomatic asylum, Hague was correct in stating that the
UK is not bound by any instrument which requires it to recognize the grant of diplomatic asylum by a foreign
embassy. Neither is the practice of diplomatic asylum sufficiently extensive and uniform to belong to CIL,
quite apart from the fact that a range of governments have rejected outright the existence of such a right.
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However, it does not follow that all grants of diplomatic asylum must be considered illegitimate. First, the
absence of a right to grant diplomatic asylum merely implies that the grant remains subject to the territorial
sovereignty and therewith the approval or acquiescence of the receiving state. This means that if the
territorial authorities do not object to the grant, it is perfectly legal. Second, what we should make of those
utterances of states that, exceptionally, granting temporary refuge would be allowed if necessary to shield a
person from imminent danger: could it be upheld that, even if confronted with claims to surrender the
fugitive, exceptional humanitarian circumstances may make it legitimate for diplomatic missions to refuse
surrender? Runs through confirming practice of various states. Legal writers have underlined as well that
diplomatic asylum is essentially about reconciling the principle of territorial sovereignty with claims of
humanitarianism. Morgenstern has stated that '[i]t probably cannot be maintained that asylum can never be
granted against prosecution by the local government'. Grahl-Madsen does not rule out that in a case of 'the
most compelling considerations of humanity', heads of diplomatic missions may refuse to surrender a
person. See others. See also the ICJ in Asylum Case: in principle, therefore, asylum cannot be opposed to the
operation of justice. An exception to this rule can occur only if, in the guise of justice, arbitrary action is
substituted for the rule of law. Such would be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the political offender against any measures of a
manifestly extra-legal character which a government might take or attempt to take against its political
opponents.
However, the main problem with accepting diplomatic asylum as a humanitarian exception to territorial
sovereignty (or simply as an instrument of humanitarian intervention) is the inconsistent and contradictory
manner in which states have asserted a right to grant protection on such grounds. It does appear that
reasons of political expedience, much more than clearly outlined humanitarian principles, guide the practice
of offering refuge. Moreover, even if one sees support for a humanitarian exception in state practice, the
complication remains that no agreement exists on such auxiliary issues as what exactly the humanitarian
threshold is for granting asylum, what state has the right to determine whether that threshold is met, and
whether the grant is to be coupled with the right to effectuate a safe conduct out of the country.
So, the foregoing reveals the problems with the argument in favour of granting diplomatic asylum to Julian
Assange. His recourse to diplomatic asylum to preclude the ordinary application of United Kingdom
extradition laws and Swedish criminal laws may well be branded as abuse, in line with the ICJ's considerations
in the case of Haya de la Torre. Even if one accepts Assange's argument that his extradition to Sweden is a
mere prelude to his onward extradition to the US to face charges for a political crime, he has only alluded to
ineffective legal protections in Sweden and not explained, e.g., why a complaint before the ECHR in the event
his extradition is ordered would be futile. It is also to be observed that - quite apart from the question
whether any procedure in the US would be of manifestly extra-legal character – no formal request for his
extradition to the United States was pending at the moment Assange entered the embassy, questioning the
urgency of his claim. In sum, it is highly doubtful whether Assange was indeed in such an acute situation of
distress as to meet the conditions for diplomatic asylum as accepted even in Latin America, and as
interpreted by the ICJ in the Asylum case.
The right of the receiving state to terminate diplomatic asylum: diplomatic asylum for all practical matters
persists precisely for reason of diplomatic immunities. It is the framework of diplomatic law that both defines
the scope of diplomatic asylum and sets forth how disputes arising from grants of asylum ought to be
resolved. The Vienna conventions on diplomatic and consular relations (1961 Vienna Convention on
Diplomatic Relations, 500 UNTS 95, Art. 3; and 1963 Vienna Convention on Consular Relations, 596 UNTS 261,
Art. 5) do not categorize asylum as one of the recognized diplomatic or consular functions. This leaves us with
a somewhat unclear legal status of the institution of diplomatic asylum under diplomatic and consular law.
An implied reference to asylum can nonetheless be found in Article 41(3) of the Vienna Convention on
Diplomatic Relations (VCDR), which includes as recognized functions of the mission those functions laid down
in special agreements concluded between the sending and receiving states. See also Art 5(m) of the VCCR.
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This provision may be taken not only as allowing for the conclusion of agreements on consular asylum, but
also as recognizing asylum as a consular function if it does not come in conflict with local laws or does not
meet the disapproval of the receiving state, subject to the condition that asylum is granted with the consent
of the authorities of the sending state.
In the absence of special agreements, the question of asylum under both conventions depends, on the one
hand, on the duties not to interfere with domestic affairs and not to use diplomatic and consular premises in
any manner incompatible with recognized diplomatic or consular functions (VCDR art 41(1) and (3) and VCCR
art 55(1)-(2)) and, on the other hand, on the inviolability of diplomatic and consular premises (VCDR art 22(1)
and VCCR art 31(2)). Offering shelter to persons seeking to evade justice is in violation of the duty not to
interfere with local laws. Using diplomatic or consular buildings to offer shelter to refugees may further come
within the ambit of Article 41(3) VCDR or 55(2) VCCR, if the situation of asylum is considered 'incompatible'
with the functions of the mission. The element of 'incompatibility' not only refers to activity that violates
local laws, but also covers conduct that falls outside the scope of ordinary diplomatic functions. Grants of
refuge which meet disapproval of the territorial state may be an affront to friendly relations and therefore
incompatible with diplomatic and consular functions in Article 3(I)(e) VCDR and Article 5 (b) VCCR.
However, the prohibition to enter diplomatic premises laid down in Article 22(I) VCDR does not allow for
exceptions, implying that once an embassy has granted asylum, the territorial state is effectively inhibited
from terminating the grant of refuge. However, under the VCCR, the inviolability of consular premises is
considerably more limited. Article 31(2) prohibits the receiving state to enter that part of the consular
premises which is used exclusively for the purpose of the work of the consular post. This could be taken to
mean that, if the receiving state has reasonto believe that the consulate is used for other purposes, it is
permitted to enter the building and to arrest persons charged with an offence. It follows that consular grants
of asylum are more susceptible to termination and that consulates are less appropriate locations for persons
seeking asylum. Article 45(a) VCDR stipulates that even in the case of a breach of diplomatic relations, the
inviolability of premises and members of the mission remains intact, presumably indicating that the
diplomatic status is upheld until the mission is actually closed by the sending state.
See the UK’s invocation of the Diplomatic and Consular Premises Act 1987 (UK) in respect of their view that
they retained a legal basis on which to unilaterally terminate Assange’s asylum. The Act, which was adopted
with a view to implementing a firmer policy against abuse of the Vienna Conventions following the Libyan
embassy crisis in London of 1984, provides for the withdrawal of diplomatic or consular status from premises
if they are misused. One consequence resulting from loss of status is that the premises can be entered and
searched. But it is for two reasons questionable whether the UK is entitled to simply withdraw diplomatic
status from the Ecuador embassy and enter it. In the first place, as long as the embassy is also in use for
genuine diplomatic purposes, it is to be defined as a 'premise of the mission' in the meaning of Article 1(i)
VCDR and on that basis shielded from incursions by virtue of Article 22 VCDR. Second, although Article 41(3)
VCDR sets forth the prohibition of abusing diplomatic premises, it does not provide that inviolability is lost as
a consequence of such abuse.
Although current diplomatic law bestows near absolute protection on diplomatic cars, bags, and couriers,
precluding their opening, search or arrest," 2 the ICJ held in Tehran Hostages that the observance of the
principle of inviolability does not mean 'that a diplomatic agent caught in the act of committing an assault or
other offence may not, on occasion, be briefly arrested by the police of the receiving state in order to
prevent the commission of the particular crime'. States retain the right to protect public safety and to
prevent the commission of serious crimes.
The individual right to be granted diplomatic asylum: traditional discourse on diplomatic asylum revolved
exclusively around the reciprocal obligations of the sending and the receiving states. Under the current state
of international law, however, it is not possible to ignore any independent rights the person requesting
asylum may invoke against either the receiving or the sending state. Currently, the 'right of asylum' may
therefore refer to both the right belonging to the state vis-'a-vis another state to grant asylum on the latter's
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territory (diplomatic asylum) or to one of the latter's nationals (territorial asylum), and the right belonging to
the individual to seek, to be granted, or to enjoy asylum. Although, different from the context of territorial
asylum, no individual right to be granted diplomatic asylum has been formulated in international law,
individuals may well bring the argument that the safety of an embassy may guarantee against human rights
abuses. Diplomatic asylum may after all constitute an effective means to shield an individual from harm.
Considers the Refugee Convention. See problems- arts 1(A)(2), 1(F)(b). Another problem is that the Refugee
Convention was expressly conceived as providing solutions only for persons who have fled their own country
and who are unable to avail themselves of the protection of their home state. Other problems involving
expulsion.
Suggests more plausible bases under HR instruments of general scope. See, e.g., ECHR determinations in
respect of the ICCPR and ECHR. See, e.g., art 3 ECHR and art 7 ICCPR and case of WM v Denmark. See also
Mohammad Munaf v Romania. In the light of these cases, the argument is not too eccentric that if departure
from an embassy would expose a person to a real risk of being subjected to serious human rights violations,
the sending state's responsibility under human rights treaties will be engaged. See also Al-Saadoon.
UNGA, ‘Question of Diplomatic Asylum: Report of the S-G’
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Extremely detailed and useful summary: https://www.refworld.org/docid/3ae68bf10.html.
4. Case study 3: Private International Commercial Law – Castel Electronics v TCL Air
Conditioner
Introduction to private international law
Overview of case study 3
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Private international law (also known as conflict of laws) is the body of law employed by individual national
legal systems – and is thus a particular sub-category of national law – to determine which rules of law apply
to situations, transactions or relationships with a ‘foreign’ element and where and how legal questions
arising from them should be resolved.
Conflict of laws, or private international law, covers three broad areas: jurisdiction, choice of law, and
recognition and enforcement of foreign judgments (and arbitral awards). The field also covers the principles
and rules governing the interaction between legal systems within a federal State. Conflict of laws is important
where the potentially applicable systems of law would lead to different results in a case.
o Jurisdiction: does the domestic court have the power to hear a dispute involving an international
transaction or a case with some ‘foreign’ element? This generally involves showing that the court has
jurisdiction under local law both over the person sought to be sued, and over the subject-matter of the
dispute. It may also involve consideration of whether the court is the appropriate forum to hear the
case or whether it should exercise any discretion it has to leave the case to be litigated before the
courts of another State (forum non conveniens).
o Choice of law: choice of law rules specify the system of law that applies to particular types of
relationships or transactions (sometimes different laws will apply to different parts of the transaction
or relationship). The common law developed specific rules that still have application today, though in
many cases they have been modified by statute.
o Recognition and enforcement of foreign judgments and arbitral awards: another important area of
private international law is the enforcement of judgments obtained before a foreign court or of an
arbitral award obtained in foreign arbitration proceedings. Once an arbitral tribunal has handed down
an award, the successful party will often wish to enforce it against the assets of the losing party,
wherever they may be held. This is an area in which public international law and private international
law intersect, as the principal international harmonised scheme for recognition and enforcement of
foreign arbitral awards is contained in the New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards 1958 (and also the UNCITRAL Model Law provisions on the subject). This
provides for the enforcement of foreign arbitral awards in States parties to the Convention and allows
the local court to refuse to enforce such an award only in a very limited range of circumstances. The
New York Convention and the UNCITRAL Model Law have been implemented by the International
Arbitration Act 1974 (Cth).
Davies, Bell and Brereton, ‘Nygh’s Conflict of Laws in Australia’
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See Qld/NT example to illustrate conflict of laws. Note lex fori: the law of the forum (i.e., where the
proceedings are brought); vs lex loci delicti: the law where the wrong occurred. Note the HCA in that case
found in favour of the lex loci delicti to ward against forum shopping.
“Conflict of laws” and “private international law” are interchangeable. This is part of the municipal or
domestic national law of each country- and subject to unilateral changes by its legislature. Choice-of-law
rules vary between country.
There are three methods by which conflicts of laws can be reduced:
o Countries’ agreement on uniform conflicts rules. Countries are not forced to make their domestic law
conform to some int’l agreed norm, but are merely required to unify the conflict rules to be applied in
their courts. The main agency in this area is the Hague Conference on Private International Law, of
which Aust is a member (see examples of draft conventions ratified by Aust).
o Int’l conventions that seek to unify the substantive law of different countries by regulating
relationships between private citizens and organisations. This is the function of bodies such as
UNIDROIT and UNCITRAL. See examples in relation to arbitration, int’l transport and sale of goods.
These create transnational rules that supersede the conflict of laws.
o The model law- in contrast to the inflexibility of int’l conventions, model laws are designed to be a
model for domestic legislation rather than a package of rules that must all be applied in the adopting
country. See examples in Aust context.
The three stages of a conflicts problem:
o Jurisdiction: concerns the required connection between the forum in which the court is located and
either the subject matter or the parties.
o Choice-of-law: after jurisdiction is resolved, the court must decide on which is the applicable legal
system. Under traditional principles, the determination of which law shall prevail is normally made
according to a geographical connection- in the case of personal status, by reference to the place where
the person lives or has lived at the relevant time; in the case of the effect of a transaction, by reference
to the place where it occurred. See, by contrast, personal laws. See concept of a ‘law area’- a territory
that has a unitary system of law (which was defined by Deane J in Breavington v Godleman as a system
in which the substantive rule or rules applicable to determine the lawfulness and the legal
consequences or attributes of conduct, property or status at a particular time, in a particular part of
the territory, will be the same regardless of whereabouts questions in that territory questions
concerning those matters or their legal consequences may arise.
o Recognition and enforcement of a foreign/inter-state judgement or award.
The common law rules presently applied by Aust courts have their origin in rules developed by English judges
in the 19th c. Note the supervisory role of the HCA (only one common law in Aust).
The main indigenous contribution to the conflict of laws is in the federal area- the cross-vesting legislation
largely overcame conflicts between federal and state jurisdiction.
Introductory videos
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Under the (Australian) common law approach to private international law, a court will decide which body of
law applies to a particular issue with a foreign element according to the legal nature or legal characterisation
of that particular issue.
For example, the validity of a will is to be determined by the law of domicile of the testator (lex domicilii) at
the time of the will’s execution. Another example is the law governing liability for tort, which will be
determined according to the law of the place of the tort (lex loci delicti. And the law applicable to
interpretation of obligations under a contract will be determined by the law of the contract (the law chosen
explicitly or impliedly by the parties or if they have not made such a choice, by the law with which the
contract has the ‘most real and substantial connection (proper law of the contract)).
The choice of law process: when it goes about analysing a dispute involving a transaction or relationship with
a 'foreign' element, courts generally adopt the following four-step approach:
o Step 1: classify the issue with a foreign element that needs to be resolved, according to the law of the
forum (lex fori). The ‘forum’ is the court hearing the case, so if a case is being heard by the Supreme
Court of NSW, the law of the forum is the law of NSW. So it is characterised as a tort case, a contract
issue, a formation or termination of contract issue, the validity of a will, or a succession issue.
o Step 2: identify the applicable choice of law rule by identifying the relevant connecting factor and then
ascertain the system of law to which that connecting factor points. The connecting factor for a contract
is different from the connecting factor for a tort or for the validity of a will. So you find that connecting
factor and that is the signpost to the system of law that will be applied, what is known as the law of the
case/issue (lex causae).
o Step 3: if the signpost or connecting factor takes you to a foreign system of law, the content of that
foreign law must be proven. Courts may be taken to know the content of Australian law, but they are
not assumed to know the content of every system of foreign law. So normally the way in which that is
done is that the party seeking to rely on foreign law will produce expert evidence, generally by way of
written report or affidavit to the court and the court will make its findings as findings of fact on those
issues. Once that is done, if it is necessary, the court will then move to apply the applicable rules of law
of the system of law that it has identified by using the connecting factor. Note the problem of renvoi.
o Step 4: apply the applicable law: if foreign law, is it only substantive rules or also conflict rules (leading
to renvoi) that are applied? The court of the forum may refuse to apply some foreign rules if they
violate fundamental rules of public policy of the forum or are inconsistent with an overriding forum
statute.
Choice of law in contract: what’s the connecting factor or the choice of law rule when it comes to contract?
The general approach under Australian law (most common law jurisdictions) is generally to recognise the
autonomy of the parties: that is contracts are about agreement between the parties and what they agree on
will generally be given effect to by the courts. And if they want to choose the system of law to govern their
contract, then it is open to them to do so and courts will generally respect that choice.
To find that choice, the courts start with the contract and interpret it to see whether there is a choice by the
parties, whether the parties intended to choose a particular system of law to apply to their contractual
relations.
There might be an express choice of law (unless there is some overriding public policy reason or an overriding
forum statute (e.g., ACL s 67), the courts will normally give effect to both those types of clause), or it might
be an inferred choice of law based on the terms of the contract. Or if the court can’t find an express or
inferred intention, they will identify the proper law of the contract: i.e., the system of law which has ‘the
closest and most real connection’ with the transaction by reference to a range of factors, such as: where the
contract was made; where the contract is to be performed; the currency for performance of the payment
obligations under the contract; the place of residence or business of the parties; the nature of the transaction
or subject-matter of the contract; prior relationships and series of dealing between the parties.
Introduction to Private International Law and to Castel Electronics v TCL Air Conditioners
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83
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Allsop CJ, Middleton and Foster JJ: TCL, a company organised under the laws of PRC, and Castel, an
Australian company, were parties to an agreement for the distribution in Australia of air conditioning units
manufactured by TCL in China. Castel was the exclusive Australian distributor. The agreement provided for
arbitration in the event of any dispute that could not be resolved by mutual agreement. The arbitration
agreement was one to which the IAA applied.
Disagreements arose between the parties which were submitted to arbitration. On 23 December 2010, the
panel delivered an award in Castel’s favour of $2,874,870. On 27 January 2011, the arbitrators handed down
a further award of $732,500 in costs. The foundation of the award was TCL’s selling in Australia between
2004 and 2008, in breach of its promise to Castel of exclusivity of rights of distribution of TCL products, of air
conditioning units manufactured by TCL, but not bearing the TCL brand (OEM products). The quantum was
reached by assessing the financial impact of the importations of OEM products upon Castel’s sales. TCL
sought to set aside the award under Art 34 of the UNCITRAL Model Law, which has the force of law in
Australia by IAA s 16. Castel sought to enforce the award under Art 35 and TCL resisted enforcement under
Art 36.
The grounds for TCL’s two claims were both the asserted failure by the arbitrators to accord TCL PF such that
there had been a breach of the rules of NJ in connection with the making of the award, and so, it was
asserted, the award was in conflict with, or contrary to, the public policy of Australia: see Arts 34(2)(b)(ii) and
36(1)(b)(ii) and ss 16 and 19 of the IAA. The asserted breaches arose from the making by the arbitrators of
three central findings of fact (the “14% Starting Point Finding”, the “Uplift Finding” and the “Lost Sales
Finding”) that were said to have been made in the absence of probative evidence, and were findings upon
which TCL was said to have been denied an opportunity to present evidence and argument.
In [2012] FCA 1214), the primary judge rejected TCL’s contention as to how the application should be
approached; nevertheless, he examined the structure and foundations of the award, the evidence before the
arbitrators and the factual findings therein; and rejected TCL’s resistance to enforcement of the award. On 19
November 2012, the primary judge published a judgment on costs and made orders enforcing the award and
dismissing TCL’s application to set it aside. His Honour was correct to make the orders he did.
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2009] VSC 533
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Hargrave J: recaps the facts.
The distribution agreement contains a clause referring certain disputes to arbitration (‘the arbitration
clause’). Castel referred its claims against TCL to arbitration under that clause. The parties agree that some
aspects of Castel’s claims, in particular the claim for breach of the exclusivity covenant, fall within the terms
of the arbitration clause. TCL contends, however, that many of the claims made by Castel are outside the
scope of the arbitration clause.
The arbitrators delivered a considered interim award, in which they carefully reviewed the relevant legal
principles governing the approach to interpretation of arbitration clauses for the purpose of ascertaining the
scope of the reference to arbitration. TCL does not contend that the arbitrators erred in stating the principles
to be applied. Rather, it contends that the arbitrators erred in their application of these principles, by
interpreting the arbitration clause to include disputes concerning alleged breaches of sales contracts made
between the parties. TCL contends that, upon its proper construction, the reference to arbitration is limited
to disputes concerning alleged breaches of the terms of the distribution agreement. On this basis, TCL seeks
to set aside the interim award and claims declaratory relief.
The arbitration clause read: In case there is any breach of the provisions under this Agreement by either
party during the effective period of this Agreement, the parties hereto shall first of all try to settle the matter
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in question as soon and amicable as possible to mutual satisfaction or if not so settled within 60 days such
matters will be referred to arbitration in Territory for resolution.
Applicable principles of construction
Where the words of the arbitration clause are sufficiently elastic and general, or capable of broad and flexible
meaning, they should be given a liberal construction. The justification for this liberal approach is the
presumption that commercial parties are unlikely to intend the inconvenience of having possible disputes
from their transaction being heard in two places. A liberal approach is especially justified where the parties
are operating in an international market and come from different countries. See also Cross Pacific Trading:
There is no legal rule that a dispute necessarily falls within an arbitration clause unless the court can be
persuaded with ‘positive assurance’ that the clause is not susceptible of any meaning that would include the
dispute within the clause ... There is no legal presumption at work. See other principles and citations at [10][20].
What is the scope of the arbitration clause?
The scope of the arbitration clause depends upon the proper construction of the words: in case there is any
breach of the provisions under this agreement by either party ... the matter in question ... will be referred to
arbitration ...
The words ‘under this agreement’ are used in a number of places in the distribution agreement.
Castel submitted that the arbitration clause extends to include disputes concerning breaches of sales
contracts and other agreements made between the parties in consequence of, or under the umbrella of, the
distribution agreement. The arbitrators characterised the distribution agreement as a ‘constituent’ or
‘umbrella’ agreement which established a commercial relationship between the parties. In light of that
characterisation, they determined that it was appropriate to adopt a broad interpretation of the word
‘under’ in the arbitration clause. In giving the word ‘under’ a broad interpretation, the arbitrators adopted
BTR Engineering (Australia) Ltd v Dana Corporation: the word ‘under’ means ‘governed, controlled or bound
by; in accordance with’. On that basis, the arbitrators determined that breaches of sales agreements entered
into ‘under the umbrella of the relationship established by the distribution agreement’, or ‘in consequence
of’ that relationship, were ‘governed, controlled, or bound by; in accordance with’ the provisions of the
distribution agreement. The conclusion reached by the arbitrators as to the broad meaning of the word
‘under’, has the effect that the arbitration clause should be read as if the italicised words appearing in the reformulation below replaced the word ‘under’: In case there is any breach of the provisions governed,
controlled or bound by, or in accordance with, this agreement by either party ... the matter in question ... will
be referred to arbitration ...However, this reformulation of the arbitration clause begs the question: what are
‘the provisions’ governed, controlled or bound by, or in accordance with, this agreement? The arbitrators did
not expressly address this question. Having given the word ‘under’ the broad meaning referred to, they
concluded that, as a result, the arbitration clause applied to any breach of any provision of any of the sales
agreements entered into by the parties under the umbrella of the relationship established by the distribution
agreement, or otherwise in consequence of those arrangements.
However, this conclusion does not follow from giving the word ‘under’ the broad meaning attributed to it. If
the broad meaning is adopted, the arbitration clause would include disputes concerning breaches of
provisions contained in the distribution agreement which also apply to individual sales agreements. The
arbitrators have gone much further. In effect, they have read the words ‘the provisions under this
agreement’ as including the italicised words in the following further re-formulation: In case there is any
breach of the provisions under this agreement or under any sales agreement entered into under the umbrella
of, or in consequence of, this agreement by either party ... the matter in question ... shall be referred to
arbitration .... But the words chosen by the parties are not capable of bearing this meaning. It is one thing to
say that the breach of a term of an individual sales agreement which is specified in, and thus may be said to
arise under, the distribution agreement, is within the scope of the arbitration clause. It is another thing
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altogether to say that all other (unspecified) provisions of individual sales contracts are governed, controlled
or bound by, or in accordance with, the distribution agreement. As a matter of ordinary language, that is not
so. The parties have chosen to limit the scope of the arbitration clause to breaches of ‘the provisions under
this agreement’. The use of the two definite articles ‘the’ and ‘this’ is inconsistent with an intention by the
parties to extend the arbitration clause to include unspecified provisions of sales agreements to be
negotiated and effected under the umbrella of the arrangements constituted by the distribution agreement.
This conclusion is reinforced by the fact that the words used are inconsistent with the commercial
presumption that parties are unlikely to intend the inconvenience of having possible disputes being heard in
two places. The arbitration clause does not use the structure commonly adopted in drafting arbitration
clauses. The parties have not agreed to refer all disputes or differences ‘arising out of’ their respective rights
and obligations under the distribution agreement, or used other similarly wide language. Instead, the
arbitration clause is limited to any dispute (‘the matter in question’) in the event (‘in case there is’) one party
contends that the other is in breach of agreement. Thus, even if the language of the arbitration clause was
wide enough to include disputes about alleged breaches of sales contracts and other agreements made
under the umbrella of the distribution agreement, the scope of the arbitration clause would still be limited to
disputes concerning breaches of agreement. The language of the arbitration clause is not, on any view,
sufficiently elastic and general to include other claims which may arise concerning the distribution
arrangements between the parties. For example, a claim that one party engaged in misleading or deceptive
conduct in relation to the distribution agreement, in contravention of s 52 of the Trade Practices Act 1974
(Cth), is not capable of being described as a dispute about a breach of agreement.
For the above reasons, the arbitrators erred in their preliminary ruling on the scope of their jurisdiction. Their
jurisdiction is limited to disputes arising from alleged breaches of: (1) provisions of the distribution
agreement; or (2) any provision, of a sales contract or other agreement, which is specified in the distribution
agreement. Their jurisdiction does not otherwise extend to disputes concerning alleged breaches of sales
contracts or other agreements made in consequence of the distribution arrangements established by the
distribution agreement.
Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] VSC 548
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Daly AsJ: Between 2003 and 2008, Castel distributed airconditioners supplied by TCL in the Australian
market. The terms of the commercial relationship between Castel and TCL were governed by a document
titled “General Distributorship Agreement” (“GDA”), which was made on or about 29 December 2003. Under
the umbrella of the GDA, Castel and TCL entered into a series of separate contracts for the supply of
airconditioners (“sales contracts”). The sales contracts would be preceded by a series of meetings, telephone
discussions and email exchanges regarding such matters as the quantities and products Castel sought from
TCL for the forthcoming sales season (airconditioners being a seasonal product), what quantities TCL could
supply of particular models, price, and the particular technical and other requirements of the Australian
market and regulatory environment. Towards the conclusion of this process, Castel would send an order
form specifying the quantities of particular products it sought from TCL.
In its amended statement of claim dated 20 April 2011, Castel alleges that TCL, in respect of orders placed by
it in April, September and October 2006 for the 2006 sales season, and in August 2007 for the 2007 sales
season, breached the terms of the relevant sales contract by shipping the goods after the date specified in
TCL’s proforma invoice. Further, Castel claims that TCL breached the sales contracts by supplying defective
products. Castel alleges that each of the sales contracts was subject to terms implied by Article 35 of the
United Nations Convention on Contracts for the International Sale of Goods (“Vienna Convention”), which
obliges a seller of goods to: (a) deliver goods of the quantity, quality and description required by the relevant
sales contract; and (b) deliver goods which are fit for the purposes for which goods of the same description
would ordinarily be used.
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See details concerning service and jurisdiction.
Were the sales contracts made in Vic?
The law regarding the formation of the sales contracts is agreed by both parties to be governed by Part II of
the Vienna Convention. These provisions are to be read subject to Articles 8 and 9, under the General
Provisions.
Castel contends that the sales contracts were made in Victoria, in that TCL’s dispatch of a proforma invoice,
with final quantities and prices, viewed in the context of the precontractual communications and
negotiations between the parties, amounted to an acceptance of Castel’s offer as contained in the order
form sent by Castel to TCL, notwithstanding that the prices for some models may not have been set out in
the order form, and the quantities of goods would often change. NAB’s subsequent issue of a Letter of Credit
amounted to a performance of Castel’s obligation under a concluded contract, that is, the obligation to pay
the invoiced amount, rather than a communication of its acceptance of TCL’s offer (or counter offer) as
constituted by a proforma invoice. As such, the relevant contracts were made in Victoria (the place that
Castel received the pro-forma invoice).
TCL contended that the sales contracts were concluded by NAB’s dispatch of a Letter of Credit, signifying
Castel’s acceptance of the terms of TCL’s counteroffer, as contained in the proforma invoice. Counsel
submitted that under both the common law principles of contract formation, and the relevant provisions of
the Vienna Convention, the alleged “offer” said to be constituted by Castel’s order form was not sufficiently
certain to be capable of acceptance. As the Letters of Credit were received by TCL in China, the sales
contracts were made in China.
Were the sales contracts governed by the laws of Vic?
Castel contends the sales contracts were governed by the law of Victoria, in that the transactions which were
governed by the sales contracts have the closest connection with Victoria (or Australia). In particular, (a) the
GDA provided for Castel to be the exclusive distributor of the TCL airconditioners in Australia; (b) the TCL
airconditioners had to be saleable in the Australian market and comply with Australian safety and energy
requirements; (c) the TCL airconditioners were to be re-sold in Australia to Australian consumers; (d) the
parties’ dealings were in English, including the emails, order forms, pro forma invoices and Letters of Credit;
(e) the GDA specified the requirements for payment to apply to sales of TCL products by TCL to Castel; and (f)
under the GDA disputes concerning matters arising under that agreement were to be arbitrated in Australia,
(and, in fact, certain disputes between Castel and TCL were arbitrated in Australia).
The submissions made on behalf of Castel conceded that the following matters favour China as the place with
the closest connection with the sales contracts, being: (a) the TCL products were manufactured in China; and
(b) the TCL products were delivered FOB to a Chinese port.
In response, TCL contended that the sales contracts not governed by the law of Victoria, but by the provisions
of the Vienna Convention, which operates as the mandatory law of the forum, to the exclusion of the laws of
both Victoria and China.
Did any alleged breaches occur in Vic?
Castel contends that, to the extent that Castel makes claims in respect of allegedly defective goods, the sales
contracts were breached in Victoria, in that: (a) under the GDA, TCL accepted an obligation to be responsible
for defects beyond the time of FOB delivery; (b) the evidence shows that TCL acknowledged and accepted
liability for certain defects over the course of 2006 and 2007; and (c) in any event, the provisions of the
Vienna Convention provide that the seller is liable to the buyer for any lack of conformity which occurs after
the time when the risk passes to the buyer.
In response, counsel for TCL submitted that given that the sales contracts specified that the goods would be
shipped FOB, its alleged failure to ship the goods on time took place in China, not in Victoria. Further, any
obligations to supply goods which conformed with the sales contracts and were “fit for purpose” could only
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have been performed in China, as the goods were manufactured and packed in China. Therefore any breach
could only have been committed in China.
Conclusions
Applying this approach to the current case, I consider that Castel has established that the contentions that
the relevant sales contracts were made in Victoria, and were governed by the law of Victoria, are reasonably
arguable, and should not be dismissed on the basis that such contentions have no real prospect of success. In
any event, should I be wrong as regards the applicability and consequences of the reasoning of the High
Court in Agar v Hyde, I am in any event satisfied that Castel’s contentions that the sales contracts were made
in Victoria and were governed by the laws of Victoria are at least strongly arguable. I am not satisfied that
Castel’s contention that the alleged breaches occurred within Victoria has any real prospect of success.
See reasons for decision on formation.
Furthermore, I agree with counsel for Castel that, given the absence of any formal choice of law provisions
within the sales contracts, and the difficulty in inferring any choice of law from the terms of the sales
contracts, the test is with which system of law the transaction has the closest connection. I also agree that
the preponderance of connecting factors lies with Victoria. Of particular significance is the fact that the GDA,
which governed the broad parameters of the commercial relationship between Castel and TCL, provided for
disputes between the parties to be arbitrated in Australia, and the acceptance by TCL of ongoing obligations
with respect to the repair and replacement of goods found to be defective in Australia. Further, by reason of
the GDA, Castel was to be TCL’s exclusive distributor in Australia, and the goods had to be manufactured to
Australian specifications. Transactions were conducted in English, and the focus of the communications of
the parties were the particular needs of the Australian market.
As for the submissions by counsel for TCL that the proper law of the contract is the Vienna Convention, that is
of course correct. However, the terms of the Vienna Convention only apply to the sales contracts by reason
of the enactment by the Parliament of Victoria of the Sale of Goods (Vienna Convention) Act 1987 (Vic)
(“Act”), which gave legal effect to the terms of the Vienna Convention. Thus, the Vienna Convention does not
displace the laws of Victoria, rather, they form, in applicable circumstances, part of the law of Victoria. I do
not disagree with the submissions of Counsel for TCL regarding the terms of the Vienna Convention obviating
the need for disputes between parties to contracts subject to the terms of the Vienna Convention to be
determined in accordance with principles governing private international law, or that the Vienna Convention
in such cases is the mandatory law of the forum. However, that submission ignores the fact that, regardless
of the fact that the terms of the Vienna Convention apply in this case, the Vienna Convention is simply a
piece of legislation. It is not, of itself, and does not provide for, a forum in which disputes between parties to
international sales contracts can be determined. Ultimately, the choice of forum is between Victoria and
China, and a choice must be made. Accordingly, the fact that the sales contracts are governed by the terms of
the Vienna Convention does not displace a finding that the proper law of the sales contracts is the law of
Victoria.
However, I think it can be said with some degree of certainty that the alleged breaches pleaded by Castel
took place in China. Certainly, under FOB sales contracts, any breach of the obligation to ship goods on time
must have taken place in China. Further, any defects in the goods must have been caused by the
manufacture and/or packing of the goods, which again took place in China. See also Fujitsu Australia Ltd v
Dewar Electronics Pty Ltd. However, given my findings that Castel has at least a strongly arguable case that
the sales contracts were made in Victoria, and/or are governed by the law of Victoria, the inability of Castel
to make good its right to service out of the jurisdiction on this ground has no practical consequences. Once
Castel’s entitlement to service out is established under r 7.01(1)(f)(i) and (iii), it can seek to recover damages
for any alleged breaches of the sales contracts, regardless of where the breaches occurred.
Castel Electronics v TCL Air Conditioners: Arbitration – Law, Policy and International Dimensions
Mortensen, Garnett and Keyes, ‘International Arbitration’
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The International Arbitration Act 1974 (Cth) (‘IAA’) exclusively regulates international commercial arbitration
in Aust.
In the context of PIL, the three main issues in int’l commercial arbitration are:
o Enforcement of int’l arbitration agreements: the IAA was enacted to give effect to the 1958 UN
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention). See s 7
of the IAA which gives effect to the NY Conv for arbitration agreements (note mandatory stay of court
proceedings brought in breach of arbitration clause/agreement when cond’ns are met). S 7 also applies
to clauses that create an option to arbitrate if party so elects. See also s 3 writing requirement (and
post-2010 expanded definition) and art II(2) of the NY Conv. See case references including burden of
proof reqs.
See also ss 7(2)-(3) for conditions and property (see Cape Lambert [2013] WASCA 66, [95], [110]).
See s 7(2): defeating a stay application requires showing no matter capable of arbitration. This requires
showing one of the following:
 The subject-matter of the dispute is not arbitrable in the sense that the public interest requires the
issues to be heard in court: arbitrable categories include consumer protection (FTM v VAA (1996) 39
NSWLR 160), competition (MMC v SCP (1985) 473 US 614; C v NS [2012] FCA 691, [50]; but c.f. N v
IIDC [2009] FCA 1177, [59], [61]), corporations (ACD [2002] NSWSC 896, but see [192]), certain IP
matters (e.g., Larkden [2011] NSWSC 268), certain tax matters (AED [2009] VSC 534; Passlow [2012]
NSWSC 225; Flint [2014] VSCA 166), trusts matters (Rinehart [2012] NSWCA 95, [176]).
 The plaintiff’s claims do not fall within the scope of the arbitration agreement and so are beyond an
arbitral tribunal’s jurisdiction: see Comandate [2006] FCAFC 192, in which it was held that in
interpreting the scope of an arbitration agreement or clause, a wide and flexible approach should be
taken, with the aim of referring as many of the plaintiff’s claims as possible to arbitration. It was held
that ‘arising out of’ is equivalent in scope to the previously used wide ‘arising in connection with’
and would cover matters relating to the making, terms and performance of the principal contract,
and its breach ([175]). See also other cases and contrast the English approach.
In Comandate it was also held that where parties enter into foreign arbitration and choice of law
clauses, they should be held to their bargain even if the result is that they are not entitled to bring
claims under an Aust statute such as the ACL, because e.g., the foreign arbitrator refuses to apply
that legislation (at [241], see also Transfield [2006] VSC 175, [73]). That is, the policy is to enforce
arbitration agreements wherever possible.
See also presence, status and consequence of third parties at [6.9]-[6.11].
 The arbitration agreement is invalid or inoperative: an arbitration agreement or clause may be
invalid due to the operation of a mandatory statute of the forum (e.g., Carriage of Goods by Sea Act
1991 (Cth) s 11(2) [but see restricted scope here at n 38]; ACL s 67; Insurance Contracts Act 1984
(Cth) s 8(2), s 43(1)) or the conduct of a party (e.g., fraud or unconscionability in the procuring of an
agreement) (IAA s 7(5)). Invalidity must relate to the arbitration agreement or clause itself, not
merely the principal contract in general (e.g., Ferris (1994) 34 NSWLR 474; Comandate [2006] FCAFC
192, [229]). Note also what is required for waiver (Zhang [2006] VSCA 133). See examples at [6.13].
o Applicable law: the three principle laws are:
 The law governing the substance or merits of the dispute (lex causae): generally, this is the law
that applies to the principal contract in which the arbitration agreement or clause is contained. If
parties make an express choice of substantive law, that will generally be given effect to
according to the principles of choice of law for contracts, where the choice of law was made in
good faith and (possibly) does not infringe mandatory rules of the forum (although this is
controversial since an intl arbitration tribunal does not have a forum in the same sense as a
o
national court- see [6.15]; see e.g., UNCITRAL Model Law on ICE (‘Model Law’) art 28(1),
implemented in Aust via IAA s 16). Via Art 28(1) of the Model Law, an arbitral tribunal must give
effect to the rules of law as chosen by the parties. See scope for development of ideas around
new lex mercatoria (e.g., DS [1990] 1 AC 295). See also Art 28(3).
If there has been no express choice of law, the Arbitral Tribunal or Court will first look for an
implied choice of law, and if this cannot be found, the law with which the contract is most
closely connected. The choice of a place or seat of arbitration will constitute an implied choice of
such law as the substantive law of the contract (Akai (1996) 188 CLR 418), although such a
choice might be able to be overcome via a preponderance of connections with another country
(Compagnie [1971] AC 572). These, however, are the Aust common law rules and may not apply
in the case of a Model Law arbitration (e.g., Art 28(2)).
 The law governing the arbitration agreement: this is rarely expressly chosen. In Aust court
decisions, when the law governing the arbitration agreement is foreign, it has only been
occasionally pleaded (Recyclers [2000] FCA 547; BHPB [2008] FCA 551). Where the arbitration
agreement is a clause in a larger contract it is generally assumed that the law governing the AA is
the same as that applicable to the principle contract, at least where the law governing the
principal contract has been expressly chosen (Intl Tank [1975] QB 224; Recyclers [2000] FCA 547,
[22]; but c.f., Enesa [2012] EWCA Civ 638). However, if no such choice has been made, the
governing law of the arbitration agreement might be the same as the law of the place or seat of
arbitration (Deutsche [1990] 1 AC 295, 310). The application of mandatory rules of the forum to
AAs (e.g., rules that invalidate such agreements) is unclear, although such rules apply in the
context of stay applications via IAA s 7(5).
 The law governing the arbitration procedure (lex arbitri): this concerns matters like the powers
and duties of arbitrators, the requirements for their appointment and removal, challenges to
awards, pleadings, hearings, evidence and award of interim measures by the arbitral tribunal
and court. This law is the law of the place where the arbitration is to be held (the seat) (James
Miller [1970] AC 583). Although it is theoretically possible for the parties to choose this, this is
rarely assumed to have been made given the practical problems (Naviera [1988] 1 Lloyd’s Rep
116). Note also the difference between the seat of the arbitration and the place where the AT
chooses to conduct part of the proceedings, inspect evidence or examine witnesses (Model Law
art 20(2)). To alter the seat or procedural law, a new express agreement is req’d (Garuda [2002]
SGCA 12).
The Model Law was enacted by IAA s 16; it only applies to intl commercial arbitration (Model
Law art 1). Once the parties’ agreement is found to involve ICA, the Model Law will apply as the
procedural law of the arbitration. See s 21: Model Law is mandatory for all ICAs with their seat in
Aust. (Although see timing issues at [6.24]).
Enforcement of arbitral awards: this is governed by two regimes: the Model Law and the NY Conv. In
the case of foreign awards (i.e., awards made by an arbitral panel outside Aust), IAA s 20 provides that
if both the NY Conv and the Model Law could apply to enforcement, the Conv will prevail. So Arts 35
and 36 of the Model Law apply, in practice, only to awards made in Aust where the Model Law was the
procedural law of the arbitration.
 Foreign awards/enforcement under the NY Conv: the provisions in the NY Conv concerning
enforcement of foreign awards (Arts III, V and VI) are given effect by s 8 of the IAA. If the Conv is
applicable, see ss 8(2), (3), 9(1), 9(3), of the IAA for formalities. If these matters are satisfied, an
Aust court will enforce the award unless there is an Art V Conv defence (IAA ss 8(5) and (7) and
(3A)). See defences and case law.
 Enforcement under the Model Law: arts 35-36 of the Model Law; the Model Law provisions on
enforcement are effectively identical to the NY Conv so the foregoing should apply equally.
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See also IAA s 35 and the CSID.
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR
533
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French CJ and Gageler J: IAA s 16(1) gives the force of law in Aust to the Model Law. Under s 76(ii) of the
Const, an application to enforce an arbitral award under Art 35 of the Model Law is a matter arising under a
law made by the Cth p’ment, since rights in issue in an application depend on Art 35 for their recognition and
enforcement, and because the Model Law (as given effect by s 16(1) IAA) is a law made by the Cth p’ment. So
the FCA has jurisdiction via s 77(i) Const and Judiciary Act 1903 s 39B(1A)(c). So the FCA is a competent court
under Art 35 of the Model Law. In an application to enforce an arbitral award under art 35 of the Model Law,
the FCA has power under s 23 of the FCA Act to make such orders as are appropriate in relation to a matter in
which it has jurisdiction under s 39B(1A)(c) Judiciary Act 1903.
Here, TCL argued that the jurisdiction conferred on the FCA in an application under Art 35 is incompatible
with Ch III Const. The argument was that the inability of the FCA under Arts 35 and 36 to refuse to enforce an
arbitral award on the ground of error of law appearing on the face of the award either: undermines the
institutional integrity of the FCA as a court exercising the judicial power of the Cth, by requiring the FCA
knowingly to perpetrate legal error; or impermissibly confers the judicial power of the Cth on the arbitral
tribunal that made the award, by giving the AT the last word on the law applied in deciding the dispute
submitted to arbitration. Note also that the arbitral award to be enforced by the FCA, in spite of any legal
error that may appear on its face, is one that Art 28, or an implied term of the arbitration agreement,
requires to be correct in law.
Rejects this argument. Runs through the interpretive approach to the ML: e.g., IAA ss 39(1)(b), (2)(a), 2D(e),
17, ML Art 2A(1). These considerations of intl origin and intl application make imperative that the ML be
construed without any assumptions that it embodies common law concepts or that it will apply only to
arbitral awards or arbitration agreements that are governed by common law principles. So much of the text
of the ML that has its origin in the NY Conv be construed in the context, and in the light of the object and
purpose of the NY Conv (VCLT Art 31). Both the NY Conv and the ML presume a conception of the nature of
an AA, and a conception of the nature of the relationship of an AA to an arbitration agreement, that is
identical in substance to the common law conception (e.g., Dobbs (1935) 53 CLR 643, 653-4; Associated
Electric [2003] 1 WLR 1041, 1046 [9]; Westport (2011) 244 CLR 239, 261-2 [20]). See also Comandate (2006)
157 FCR 45, 94-5 [192]-[193] on the role of the NY Conv and the Model Law. That conception places the
parties’ consensual choices at the centre of the matter- see, e.g., Model Law arts 7, 10(1), 11, 19(1), 28. This
conception is followed through in Model Law Art 36 and NY Conv Art V, which provide for recognition and
enforcement of an arbitral award to be refused at the request of a party against whom it is invoked if and to
the extent that the party can furnish proof to the competent court of one or more specified grounds of
refusal. Whether one or more of those grounds is established is an objective question to be determined by
the competent court on the evidence and submissions before it, unaffected by the competence of an arbitral
tribunal to rule on its own jurisdiction under Model Law art 16 (Dallah Real Estate [2011] 1 AC 763, 808-13
[20]-[30]).
Art 28 is based on Art 42 of the CSID, according to which a mis-application of the rules of law chosen by the
parties does not amount to an excess of power leading to nullification of an arbitral award. The plaintiff’s
argument that Art 28 limits the authority of the arbitral tribunal to a correct application of the chosen rules
of law finds no foothold in the text of Art 28, runs counter to the autonomy of the parties to an arbitration
agreement which infuses the Model Law, and is opposed by the drafting history of Art 28. Art 28 is directed
to the rules of law to be applied, not the correctness of their application.
Also rejects the plaintiff’s alternative argument, that it is an implied term of every arbitration agreement
governed by Australian law that the authority of the arbitral tribunal is limited to a correct application of law.
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That argument is answered by the combination of the autonomy of the parties guaranteed by Art 28 and the
absence from Art 36 of any ground to refuse recognition or enforcement of an arbitral award under Art 35
for error of law. No term limiting an arbitral tribunal to a correct application of law is to be implied by force
of law in an arbitration agreement within the scope of the Model Law. Nor is such a term “necessary for the
reasonable or effective operation of [an agreement] of that nature” so as to be implied on the basis of the
presumed or imputed intention of the parties. The presumed or imputed intention is ordinarily to the
contrary: parties who enter into an arbitration agreement for commercial reasons ordinarily intend all
aspects of the defined relationship in respect of which they have agreed to submit disputes to arbitration to
be determined by the same arbitral tribunal (Comandate at 87-93 [162]-[187]; Fiona Trust [2007] 4 All ER
951, 956-8 [5]-[14]).
Aust’s obligation as a Contracting State under Art III of the NY Conv is given effect by IAA s 8. The manner in
which s 8 implements the NY Conv assists in the translation and application of Art 35 of the Model Law.
Ch III of the Constitution prevents the conferral by the Cth Pment of the Cth judicial power other than on a
court referred to in s 71 of the Constitution (Waterside Workers’ Federation (1918) 25 CLR 434), and prevents
the conferral by the Cth pment on a court referred to in s 71 of the Constitution of any function that is not
within or incidental to the judicial power of the Commonwealth (Ex parte Boilermakers’ (1956) 94 CLR 254; AG (Cth) (1957) 95 CLR 529). One dimension of Cth judicial power concerns the nature of the function
conferred: involving the determination of a question of legal right or legal obligation by the application of law
as ascertained to facts as found “so that an exercise of the power creates a new charter by reference to
which that question is in future to be decided as between those persons or classes of persons” (R v Trade
Practices Tribunal (1970) 123 CLR 361, 374; Breckler (1999) 197 CLR 83, 110). Another dimension concerns
the process by which the function is exercised: involving an open and public inquiry (unless the subject
matter necessitates an exception) (Russell (1976) 134 CLR 495, 505, 520, 532), and observance of the rules of
procedural fairness (Bass (1999) 198 CLR 334, 359; Ex parte Aala (2000) 204 CLR 82, 101). Another dimension
concerns the overriding necessity for the function always to be compatible with the essential character of a
court as an institution that is, and is seen to be, both impartial between the parties and independent of the
parties and of other branches of government in the exercise of the decision-making functions conferred on it
(Totani (2010) 242 CLR 1, 43). The fundamental character of judicial power is as a sovereign or governmental
power exercisable, on application, independently of the consent of those whose legal rights or legal
obligations are determined by its exercise. That fundamental character of judicial power is implicit in the
description of judicial power as “the power which every sovereign authority must of necessity have to decide
controversies between its subjects, or between itself and its subjects”, the exercise of which “does not begin
until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal
or not) is called upon to take action” (Huddart Parker (1909) 8 CLR 330, 357; Breckler (1999) 197 CLR 83, 11011). Judicial power “is conferred and exercised by law and coercively”, “its decisions are made against the will
of at least one side, and are enforced upon that side in invitum”, and it “is not invoked by mutual agreement,
but exists to be resorted to by any party considering himself aggrieved” (Waterside Workers’ (1918) 25 CLR
434, 452).
So herein lies the contrast with arbitration: where parties agree to submit their differences for decision by a
third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its
nature, judicial power is a power that is exercised independently of the consent of the person against whom
the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of
private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually
embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any,
depends on the law which operates with respect to it (CFMEU (2001) 203 CLR 645, 658; Hi-Fert (1998) 190
FCR 1, 14). So, this distinction requires a differentiation between recognition of an arbitral award as binding
on the parties by force of Art 35 of the Model Law, and enforcement of an arbitral award by a competent
court, on application, under Art 35 of the Model Law. The making of an arbitral award, which is recognised as
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binding on the parties from the time it is made by force of Art 35, is not an exercise of Cth judicial power
because the existence and scope of the authority to make the award is founded on the agreement of the
parties in an arbitration agreement. The exercise of that authority by an arbitral tribunal to determine the
dispute submitted to arbitration for that reason lacks the essential foundation for the existence of judicial
power. However, the enforcement of an arbitral award by a competent court, on application, under Art 35 of
the Model Law is an exercise of Cth judicial power. That is because the determination of an application under
Art 35 is always to occur in accordance with judicial process and necessarily involves a determination of
questions of legal right or legal obligation at least as to the existence of, and parties to, an arbitral award.
Where a request is made under Art 36, determination of an application under Art 35 must also involve a
question of whether the party making the request has furnished proof of a ground for refusal. An order of
the competent court determining the application on the merits then operates of its own force as a court
order to create a new charter by reference to which those questions are in future to be decided as between
the parties to the application. That is so for an order dismissing the application just as it is for one ordering
that the arbitral award be enforced.
Notwithstanding that it is affected by an error of law, an arbitral award, as recognised under Art 35, remains
one founded on the agreement of the parties in an arbitration agreement. A proceeding for the enforcement
of the arbitral award, on application under Art 35, remains a determination of questions of legal right or legal
obligation resulting in an order that then operates of its own force. Similarly, the inability of the FCA, to
refuse to enforce an arbitral award on the ground of error of law does nothing to undermine its institutional
integrity. Enforcement of an arbitral award is enforcement of the binding result of the agreement of the
parties to submit their dispute to arbitration, not enforcement of any disputed right submitted to arbitration.
The making of an appropriate order for enforcement does not signify the FCA’s endorsement of the legal
content of the award any more than it signifies its endorsement of the factual content of the award.
Castel Electronics v TCL Air Conditioners – Enforcement of arbitral awards in Australia and abroad
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361:
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Allsop CJ, Middleton and Foster JJ: the foundation of the arbitral award of 23 December 2010 against TCL
was the selling by TCL in Aust between 2004 and 2008, in breach of its promise of exclusivity of rights of
distribution of TCL products, A/C units manufactured by TCL but not bearing the TCL brand (OEM products).
The quantum of the award was reached by assessing the financial impact of the importations of OEM’s
products on Castel’s sales.
TCL sought to set aside the award under Model Law Art 34 (see IAA s 16). Castel sought to enforce the award
under Art 35. TCL resisted enforcement under Art 36. The grounds for TCL’s claim to set aside the award
under Art 34 and to resist enforcement under Art 36 were identical: the asserted failure by the arbitrators to
accord TCL procedural fairness such that there had been a breach of the rules of natural justice in connection
with the making of the award, and so, it was asserted, the award was in conflict with, or contrary to, the
public policy of Australia: see Arts 34(2)(b)(ii) and 36(1)(b)(ii) and IAA ss 16 and 19. The asserted breaches of
the rules of NJ arose from the making by the arbitrators of three central findings of fact. The three findings,
the “14% Starting Point Finding”, the “Uplift Finding” and the “Lost Sales Finding”, were said to have been
made in the absence of probative evidence, and were findings upon which TCL was said to have been denied
an opportunity to present evidence and argument. See IAA ss 19 and 8(7A).
Endorses the following conclusions by the judge at first instance:
o ‘Public policy’ in the IAA refers to procedural questions as well as substantive law.
o ‘Public policy’ in Arts 34 and 36 and in the IAA in relation to setting aside an award and enforcement
have the same meaning.
o
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The extent of the review required of the Court when an award is challenged for breach of the rules of
NJ does not necessarily involve examining the case afresh and revisiting in full all questions before the
arbitrator. Rather, the extent of the enquiry depends on the circumstances in question.
o SS 19(b) and 8(7A)(b) of the IAA is not confined to a breach of the rules of NJ in connection with the
actual making of an award, as opposed to the reasons underpinning it.
The proper approach to ss 8(7A) and 19 of the IAA in relation to natural justice and public policy: if the rules
of NJ encompass requirements such as the requirement of probative evidence for the finding of facts or the
need for logical reasoning to factual conclusions, there is a grave danger that the international commercial
arbitral system will be undermined by judicial review in which the factual findings of a tribunal are reagitated and gone over in the name of NJ, in circumstances where the hearing or reference has been
conducted regularly and fairly. That danger is acute if NJ is reduced in its application to black-letter rules, if a
mindset appears that these rules can be “broken” in a minor and technical way and if the distinction between
factual evaluation of available evidence and a complete absence of supporting material is blurred.
An ICA award will not be set aside or denied recognition or enforcement under Arts 34 and 36 of the Model
Law (or Art V of the NY Convention) unless there is demonstrated real unfairness or real practical injustice in
how the international litigation or dispute resolution was conducted or resolved, by reference to established
principles of NJ or PF. The demonstration of real unfairness or real practical injustice will generally be able to
be expressed, and demonstrated, with tolerable clarity and expedition.
Recaps the general background to the ML and NY Conv.
The ML was designed and drafted to be available to be taken up as a form of national law (as has been done
in Australia) to govern ICA carried on in the country in question, and in other countries. The ML dealt with
many aspects of arbitration and arbitral procedure not touched upon by the NY Conv, which was broadly
limited to protecting, recognising and enforcing awards in the field of ICA. Thus, the ML deals with such
topics as the composition of the arbitral tribunal, the jurisdiction of the arbitral tribunal and its competence,
interim measures and preliminary orders, the conduct of arbitral proceedings, the making of the award, the
termination of proceedings, and, most importantly for present purposes, the grounds for setting aside the
award. The ML also deals with subjects covered by the NY Conv: the arbitration agreement, and the
recognition and enforcement of awards. While the NY Conv dealt with the subject of recognition and
enforcement of the foreign award utilising the limited grounds in Art V for refusal of such, it did not purport
to regulate the grounds on which an award could be set aside, though the possibility of such an action was
recognised by Art V(1)(e).
Note the similarities between Arts 34(2)(b)(ii) and 36(1)(b)(ii) and Art V(2)(b) of the NY Conv, i.e., the figuring
of public policy.
Makes three points concerning public policy in the NY Conv. First, the common law term “public policy” was
recognised as broadly equivalent to the civilian notion of “ordre public”, though the latter perhaps has a
wider application, sufficiently wide to include principles of procedural justice. Secondly, the legislative history
of Art V(2)(b) reveals that the phrase was understood to be directed to fundamental principles and was not
to be given a broad interpretation that might pick up particular national domestic policy manifestations.
Thirdly, the text of Art V(2)(b) is “the public policy of that country”. These words do not mandate particular
domestic national public policy; rather they denote a concept recognising the international place of the
Convention and the need for public policy to be restricted to the state’s most basic, fundamental principles of
morality and justice in order that there be the fullest commonality of international approach to the question.
The negotiation of, and discussion leading to, agreement on Arts 34 and 36 of the ML reflected aspects of
these features of the NY Conv: the discussion covered the scope of ordre public and its extension to
procedural justice. See the Report of the Commission. See also the Mustill Report. ML Art 18 expresses a
fundamental principle of all arbitration: that it has to be fair. “Public policy” was understood not to be
equivalent to the political stance or international policies of the state, but comprised fundamental notions
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and principles of justice. Breaches of Art 18 could constitute a state of affairs contrary to such. There was,
however, reluctance to make explicit the fact that a breach of Art 18 was a ground to set aside the award, not
because of any expressed view that a breach of Art 18 should not lead to invalidity of the award (it was
thought that it could), but the perceived greater importance of aligning Arts 34 and 36, than of aligning Art
34 and a proposed Art 18. The potential lack of complete concordance between the concepts of ordre public
and public policy, and the place of procedural justice reflected most clearly in the ML in Art 18, led some
common law jurisdictions to legislate to place the position beyond doubt: that the rules of NJ were part of
the concept of public policy.
There was no purpose in the introduction of IAA ss 19 and 8(7A) of amending the meaning of ‘public policy’
to incorporate any idiosyncratic national approach. The rules of NJ fall within the conception of a
fundamental principle of justice (i.e., within the conception of public policy), being, as they are, equated with,
and based on, the notion of fairness: Kioa v West, 583; Wiseman [1971] AC 297, 308, 309 and 320. Fairness
incorporates the underlying requirement of equality of treatment of the parties. The incorporation of the
rules of NJ into the IAA embodied a fundamental principle contained within public policy and ordre public –
fairness and equality of treatment of the parties – which is at the heart of the arbitral process in Art 18.
There is nothing technical or domestically particular about the requirement that an arbitration be conducted
fairly. The conceptions of fairness and equality lie at the heart of the constitutional conception of due process
and are inhering elements of law and justice that inform and bind any legal system and any legal order (e.g.,
Green (2011) 244 CLR 462, [28]; Jarratt (2005) 224 CLR 44, [26]).
Notes the need to pay regard to reasoned decisions of other countries the laws of which are based on, or
take their support from, intl conventions or instruments such as the ML and the NYC, in order to create or
maintain intl harmony and concordance of approach to ICA (see IAA ss 2D and 17; ML Art 2A; see citations). A
review of the intl jurisprudence leads to the conclusion that the interpretation of ‘public policy’ in NY Conv
Art V and ML Arts 34 and 36 is as it was understood at the time of the completion of the preparatory work: it
is limited to the fundamental principles of justice and morality of the state, recognising the international
dimension of the context (see citations). See Mason and Bokhary quotes.
But is the making of a factual finding without probative evidence a breach of the rules of NJ in the context of
an ICA? Certainly, the making of a factual finding by a tribunal without probative evidence may reveal such a
breach, e.g., if the fact was critical, was never the subject of attention by the parties, and where the making
of the finding occurred without the parties having an opportunity to deal with it. That is unfairness; the
parties have not been given an opportunity to be heard. It does not follow, however, that any wrong factual
conclusion that may be seen to lack probative evidence (and so amount to legal error) should necessarily,
and without more, be characterised as a breach of the rules of NJ in this context.
Runs through the authorities on this question. These cases deal with the exercise of public or state power.
The context of ICA is the exercise of private power through an arrangement and a tribunal to which the
parties have consented under a regime wherein errors of fact or law are not legitimate bases for curial
intervention: TCL 251 CLR 533, [81]. Further, the essence of NJ is fairness — it is its root as a legal conception
and it lies at the heart of its operation. Unless there is unfairness, true practical injustice, there can be no
breach of any rule of NJ. Further, the relevant context of the placement of the rules of NJ is ICA. The ML and
the IAA embody a framework of law for the regulation of arbitration. The intent of both is to facilitate the use
and efficacy of ICA: (e.g., UNGA Res 40/72 (11 December 1985); ML Art 5; IAA s 2D). Basal to the working of
the NY Conv Art V and ML Arts 34 and 36 was the absence of any ground for the review or setting aside or
denial of recognition or enforcement of awards because of errors by the arbitrator in factual findings or in
the application of legal principle (as viewed by national courts). The system enshrined in the ML was
designed to place independence, autonomy and authority into the hands of arbitrators, through a
recognition of the autonomy, independence and free will of the contracting parties. The a-national
independence of the international arbitral legal order thus created required from national court systems for
its efficacy: first, a recognition that interference by national courts, beyond the matters identified in the ML
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as grounds for setting aside or non-enforcement would undermine the system; and secondly, the swift and
efficient judicial enforcement and recognition of contracts and awards. The appropriate balance between
swift enforcement and legitimate testing of grounds under Arts 34 and 36 is critical to maintain; essential to
it is courts acting prudently, sparingly and responsibly, but decisively when grounds under Arts 34 and 36 are
revealed. An important part of that balance is the protection by the courts of the fundamental norms of
fairness and equality embodied in the rules of NJ within the concept of public policy. The real question is
whether an international commercial party has been treated unfairly or has suffered real practical injustice in
the dispute and litigation context in which it finds itself. Formalism in the application of the so-called rules is
not the essence of the matter: fairness and equality are. How unfairness is revealed or demonstrated in any
particular case will depend on the circumstances. The requirement of a fair hearing in an ICA has been
discussed in many cases. Reference need only be made to the cases cited by the primary judge and referred
to at [42] above. So, Arts 34 and 36 should be seen as requiring the demonstration of real practical injustice
or real unfairness in the conduct of the reference or in the making of the award. The rules of NJ are part of
Australian public policy. The assessment as to whether those rules have been breached by reference to
established principle is not a matter of formal application of rules disembodied from context, or taken from
another statutory or human context. The relevant context is ICA. No international arbitration award should
be set aside for being contrary to Australian public policy unless fundamental norms of justice and fairness
are breached. The provisions (IAA ss 8(7A), 19 and Arts 34 and 36) deal with fundamental conceptions of
fairness and justice. It suffices to say that no international award should be set aside unless, by reference to
accepted principles of NJ, real unfairness and real practical injustice has been shown to have been suffered
by an international commercial party in the conduct and disposition of a dispute in an award. It is likely that
real prejudice, actual or potential, would be a consideration in the evaluation of any unfairness or practical
injustice.
Generally, a party who says that it has suffered such unfairness or practical injustice should be able to
demonstrate that without the kind of detailed re-examination of the facts that occurred in this case.
Applications involving review, enforcement and recognition under Arts 34, 35 and Art 36 (or Art V of the NY
Conv) should not be permitted to be used (or hijacked) to undertake, in substance, a rehearing of factual or
legal reasoning under the guise of a complaint about a breach of the rules of natural justice based on the “no
evidence rule”. Unfairness or practical injustice in the conduct of ICA should, if it exists, be able to be
expressed shortly and demonstrated tolerably shortly. It will not be demonstrated as a result of a detailed
factual analysis of evidence regularly and fairly brought forward involving asserted conclusions of facts
different to those reached by the arbitrator. If a party can demonstrate that it has been, in essence, denied
the opportunity to be heard on an important and material issue as revealed by such a finding made without
material, real unfairness or real practical injustice may be shown. That was not the case here.
5. Case study 4: International Child Abduction Case Study
International Child Abduction – The Hague Convention
US State Dep’t ‘The Hague Convention on the Civil Aspects of ICA: Legal Analysis’
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The Hague Convention is the primary civil law mechanism for parents seeking the return of the children from
other treaty partner countries. Countries that are party to the Convention have agreed that a child who was
living in one Convention country, and who has been removed to or retained in another Convention country in
violation of the left-behind parent's custodial rights, shall be promptly returned. Once the child has been
returned, the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. The
Convention does not address who should have custody of the child; it addresses where the custody case
should be heard.
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Each party to the Convention designates a Central Authority, a specific government office, to carry out
specialized Convention duties. CAs communicate with each other and they assist parents in filing applications
for return of or for access to their children under the Convention. The Department of State is the U.S. Central
Authority for the Convention. The Department’s Office of Children’s Issues within the Bureau of Consular
Affairs is responsible for administering the day-to-day functions of the U.S. Central Authority.
See definitions and terms (including ‘abduction’).
1. Children protected by the HC. See threshold questions concerning application of the HC.
2. Conduct actionable under the convention.
3. Judicial proceedings for return of child.
4. Central authority.
5. Access rights.
6. Miscellaneous and final clauses.
Perez-Vera, ‘Explanatory Report on the 1980 Hague Convention’
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General characteristics:
The Convention reflects a compromise between two concepts, different in part, concerning the end to be
achieved: the desire to protect factual situations altered by the wrongful removal or retention of a child, and
that of guaranteeing, in particular, respect for the legal relationships which may underlie such situations. On
the one hand, it is clear that the Convention is not essentially concerned with the merits of custody rights
(article 19); on the other hand it is equally clear that the characterization of the removal or retention of a
child as wrongful is made conditional upon the existence of a right of custody which gives legal content to a
situation which was modified by those very actions which it is intended to prevent
Definition of the convention’s subject-matter:
With regard to the definition of the Convention's subject-matter, the situations envisaged are those which
derive from the use of force to establish artificial jurisdictional links on an international level, with a view to
obtaining custody of a child. Two elements are invariably present in all cases which have been examined and
confirm the approximate nature of the foregoing characterization. Firstly, the removal from its habitual
environment of a child whose custody had been entrusted to and lawfully exercised by a natural or legal
person. A refusal to restore a child to its own environment after a stay abroad to which the person exercising
the right of custody had consented must be put in the same category. In both cases, the outcome is the
same: the child is taken out of the family and social environment in which its life has developed. What is
more, in this context the type of legal title which underlies the exercise of custody rights over the child
matters little, since whether or not a decision on custody exists in no way alters the sociological realities of
the problem. Secondly, the person who removes the child (or who is responsible for its removal, where the
act of removal is undertaken by a third party) hopes to obtain a right of custody from the authorities of the
country to which the child has been taken. The problem therefore concerns a person who, broadly speaking,
belongs to the family circle of the child; indeed, in the majority of cases, the person concerned is the father
or mother.
The objectives of the Convention:
The Convention's objects (article 1) can be summarized as follows: since one factor characteristic of the
situations under consideration consists in the fact that the abductor claims that his action has been rendered
lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to
deprive his actions of any practical or juridical consequences. The Convention, in order to bring this about,
places at the head of its objectives the restoration of the status quo, by means of 'the prompt return of
children wrongfully removed to or retained in any Contracting State'. The insurmountable difficulties
encountered in establishing, within the framework of the Convention, directly applicable jurisdictional rules
indeed resulted in this route being followed which, although an indirect one, will tend in most cases to allow
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a final decision on custody to be taken by the authorities of the child's habitual residence prior to its removal.
Although the object stated in sub-paragraph b, 'to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other Contracting States' appears to stand by itself,
its teleological connection with the 'return of the child' object is no less evident. In reality, it can be regarded
as one single object considered at two different times; whilst the prompt return of the child answers to the
desire to re-establish a situation unilaterally and forcibly altered by the abductor, effective respect for rights
of custody and of access belongs on the preventive level, in so far as it must lead to the disappearance of one
of the most frequent causes of child abductions.
The one matter the Convention has tried to regulate in any depth is that of the return of children wrongfully
removed or retained. That is because the most distressing situations arise only after the unlawful retention of
a child and they are situations which, while requiring particularly urgent solutions, cannot be resolved
unilaterally by any one of the legal systems concerned. Taken as a whole, all these circumstances justify the
Convention's development of rules for regulating the return of the child, whilst at the same time they give in
principle a certain priority to that object. Thus, although theoretically the two above-mentioned objects have
to be placed on the same level, in practice the desire to guarantee the re-establishment of the status quo
disturbed by the actions of the abductor has prevailed in the Convention.
Importance attached to the interests of the child:
The legal standard 'the best interests of the child' is at first view of such vagueness that it seems to resemble
more closely a sociological paradigm than a concrete juridical standard. How can one put flesh on its bare
bones without delving into the assumptions concerning the ultimate interests of a child which are derived
from the moral framework of a particular culture? It is by invoking 'the best interests of the child' that
internal jurisdictions have in the past often finally awarded the custody in question to the person who
wrongfully removed or retained the child. It can happen that such a decision is the most just, but we cannot
ignore the fact that recourse by internal authorities to such a notion involves the risk of their expressing
particular cultural, social etc. attitudes which themselves derive from a given national community and thus
basically imposing their own subjective value judgments upon the national community from which the child
has recently been snatched.
For these reasons, among others, the dispositive part of the Convention contains no explicit reference to the
interests of the child to the extent of their qualifying the Convention's stated object, which is to secure the
prompt return of children who have been wrongfully removed or retained. However, its silence on this point
ought not to lead one to the conclusion that the Convention ignores the social paradigm which declares the
necessity of considering the interests of children in regulating all the problems which concern them. On the
contrary, right from the start the signatory States declare themselves to be 'firmly convinced that the
interests of children are of paramount importance in matters relating to their custody'; it is precisely because
of this conviction that they drew up the Convention, 'desiring to protect children internationally from the
harmful effects of their wrongful removal or retention'. These two paragraphs in the preamble reflect quite
clearly the philosophy of the Convention in this regard: the struggle against the great increase in
international child abductions must always be inspired by the desire to protect children and should be based
upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of
more or less arguable rights concerning its person is one of the most objective examples of what constitutes
the interests of the child. It is thus legitimate to assert that the two objects of the Convention — the one
preventive, the other designed to secure the immediate reintegration of the child into its habitual
environment — both correspond to a specific idea of what constitutes the 'best interests of the child'. And,
because the removal of the child can sometimes be justified by objective reasons which have to do either
with its person, or with the environment with which it is most closely connected, the Convention recognizes
the need for certain exceptions to the general obligations assumed by States to secure the prompt return of
children who have been unlawfully removed or retained. For the most part, these exceptions are only
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concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the
guiding criterion in this area.
Exceptions to the duty to secure the prompt return of the child:
Article 13a accepts that the judicial or administrative authorities of the requested State are not bound to
order the return of the child if the person requesting its return was not actually exercising, prior to the
allegedly unlawful removal, the rights of custody which he now seeks to invoke, or if he had subsequently
consented to the act which he now seeks to attack. Consequently, the situations envisaged are those in
which either the conditions prevailing prior to the removal of the child do not contain one of the elements
essential to those relationships which the Convention seeks to protect (that of the actual exercise of custody
rights), or else the subsequent behaviour of the dispossessed parent shows his acceptance of the new
situation thus brought about, which makes it more difficult for him to challenge.
Article 13 1b and 2 contain exceptions which clearly derive from a consideration of the interests of the child.
The interest of the child in not being removed from its habitual residence without sufficient guarantees of its
stability in the new environment, gives way before the primary interest of any person in not being exposed to
physical or psychological danger or being placed in an intolerable situation.
In addition, the Convention also provides that the child's views concerning the essential question of its return
or retention may be conclusive, provided it has, according to the competent authorities, attained an age and
degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children
the possibility of interpreting their own interests.
Thirdly, there is no obligation to return a child when, in terms of article 20, its return 'would not be permitted
by the fundamental principles of the requested State relating to the protection of human rights and
fundamental freedoms'. This rule was the result of a compromise between those delegations which favoured,
and those which were opposed to, the inclusion in the Convention of a 'public policy' clause.
Articles 13 and 20 – Possible exceptions to the return of the child:
The exceptions in these two articles do not apply automatically, in that they do not invariably result in the
child's retention; nevertheless, the very nature of these exceptions gives judges a discretion — and does not
impose upon them a duty — to refuse to return a child in certain circumstances.
With regard to article 13, the introductory part of the first paragraph highlights the fact that the burden of
proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the
child, be he a physical person, an institution or an organization, that person not necessarily being the
abductor. The exceptions contained in a arise out of the fact that the conduct of the person claiming to be
the guardian of the child raises doubts as to whether a wrongful removal or retention, in terms of the
Convention, has taken place. On the one hand, there are situations in which the person who had the care of
the child did not actually exercise custody rights at the time of the removal or retention. The Convention
includes no definition of 'actual exercise' of custody, but this provision expressly refers to the care of the
child. Thus, if the text of this provision is compared with that of article 5 which contains a definition of
custody rights, it can be seen that custody is exercised effectively when the custodian is concerned with the
care of the child's person, even if, for perfectly valid reasons (illness, education, etc.) in a particular case, the
child and its guardian do not live together. It follows from this that the question of whether custody is
actually exercised or not must be determined by the individual judge, according to the circumstances of each
particular case. The exceptions contained in b deal with situations where international child abduction has
indeed occurred, but where the return of the child would be contrary to its interests, as that phrase is
understood in this sub-paragraph. Each of the terms used in this provision is the result of a fragile
compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus
it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring
the inclusion of an express provision stating that this exception could not be invoked if the return of the child
might harm its economic or educational prospects,44 that the exceptions are to receive a wide interpretation
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It is significant that the possibility, acknowledged in article 20, that the child may not be returned when its
return 'would not be permitted by the fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms' has been placed in the last article of the chapter: it
was thus intended to emphasize the always clearly exceptional nature of this provision's application. As for
the substance of this provision, two comments only are required. Firstly, even if its literal meaning is strongly
reminiscent of the terminology used in international texts concerning the protection of human rights, this
particular rule is not directed at developments which have occurred on the international level, but is
concerned only with the principles accepted by the law of the requested State, either through general
international law and treaty law, or through internal legislation. Consequently, so as to be able to refuse to
return a child on the basis of this article, it will be necessary to show that the fundamental principles of the
requested State concerning the subject-matter of the Convention do not permit it; it will not be sufficient to
show merely that its return would be incompatible, even manifestly incompatible, with these principles.
Secondly, such principles must not be invoked any more frequently, nor must their invocation be more
readily admissible than they would be in their application to purely internal matters. Otherwise, the provision
would be discriminatory in itself, and opposed to one of the most widely recognized fundamental principles
in internal laws. A study of the case law of different countries shows that the application by ordinary judges
of the laws on human rights and fundamental freedoms is undertaken with a care which one must expect to
see maintained in the international situations which the Convention has in view.
Article 16 – prohibition against deciding on the merits of custody rights:
This article, so as to promote the realization of the Convention's objects regarding the return of the child,
seeks to prevent a decision on the merits of the right to custody being taken in the State of refuge. To this
end, the competent authorities in this State are forbidden to adjudicate on the matter when they have been
informed that the child in question has been, in terms of the Convention, wrongfully removed or retained.
This prohibition will disappear when it is shown that, according to the Convention, it is not appropriate to
return the child, or where a reasonable period of time has elapsed without an application under the
Convention having been lodged. The two sets of circumstances which can put an end to the duty contained in
the article are very different, both in the reasons behind them and in their consequences. In fact, it is
perfectly logical to provide that this obligation will cease as soon as it is established that the conditions for a
child's return have not been met, either because the parties have come to an amicable arrangement or
because it is appropriate to consider on the exceptions provided for in articles 13 and 20. Moreover, in such
cases, the decision on the merits of the custody rights will finally dispose of the case.
International Child Abduction – Implementation of Hague Convention in Australia
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Note Family Law Act 1975 (Cth) s 111B and Family Law (Child Abduction Convention) Regulations 1986.
De L v D-G, Dep’t of Community Services (NSW) (1996) 187 CLR 640
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Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ: recaps the facts. Notes that the
respondent is the CA for NSW. Notes the litigation history.
This appeal concerns the proper construction of reg 16(3)(c), and the scope of regulation-making power
conferred by the Act, and whether the FCFC orders were made in breach of the requirements of PF.
Sch 1 to the Regulations sets out the English text of the Convention (see reg 2(1)). The provisions of the
Regulations thus have to be read with those of the Convention. As a matter of municipal law, the Schedule
forms part of the Regulations as a whole. Schedule 2 lists those countries as between Australia and which the
Convention has entered into force, incl the USA. The Convention was concluded at The Hague on 25 October
1980. It entered into force for Australia on I January 1987. The Convention applies to any child habitually
resident in a Contracting State immediately before any breach of custody or access rights and ceases to apply
when the child attains the age of sixteen years (Art 4).
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Article 3 relevantly provides that the removal of a child to, or the retention of a child in, any Contracting State
is to be considered wrongful where it is in breach of rights of custody attributed to a person, either jointly or
alone, under the law of the State in which the child was habitually resident immediately before the removal
or retention. The effect of Art 31 is that, in the present case, the reference in Art 3 to habitual residence is to
be construed as referring to habitual residence in Virginia. The Regulations, so far as is material, defined
"removal" as meaning "wrongful removal or retention of a child within the meaning of the Convention" (reg
2(1)). The primary judge found that, at the time of removal of the children, their father was a guardian of the
children under the law of Virginia and that this included rights of custody. It followed that the action of the
wife was a removal of the children which attracted the operation of the Regulations.
Recites the preamble and objects. Thus, it may be said that the Convention is concerned with reserving to the
jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody
and of access. This entails preparedness on the part of each Contracting State to exercise a degree of selfdenial with respect to "its natural inclination to make its own assessment about the interests of children who
are currently in its jurisdiction by investigating the facts of each individual case." Recites other articles.
See 649: the Convention reflects a compromise.
FC jurisdiction in this matter conferred by s 39(5) of the Act (s 39(5)(d) and s 111B).
See 650: constitutional authority for the Act and Regulations- subject matter of s 111B of the Act and the
Regs is an externality, so authorized under the external affairs power independent of the Convention. So the
relationship between the Regs and the Convention does not matter in the sense of treaty implementation
under the external affairs power.
Recaps the scheme of the regulations and the proceedings.
The majority of the Full Court approached the matter on the basis that there should be a "strict and narrow
reading" of what it identified as the exceptions to the obligation imposed upon the court to order the prompt
return of the abducted child to the jurisdiction of habitual residence. They endorsed the proposition that the
word 'objects' imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of
the child in a custody dispute. However, there is no particular reason why reg 16(3)(c) should be construed by
any strict or narrow reading of a phrase expressed in broad English terms, such as "the child objects to being
returned". The term is "objects". No form of words has been employed which would supply, as a relevant
criterion, the expression of a wish or preference or of vehement opposition. No "additional gloss" is to be
supplied. Cites other decisions to the same effect. The policy of the Convention is not compromised by
hearing what children have to say and by taking a literal view of the term "objection". That is because it
remains for the Court to make the critical further assessments as to the child's age, maturity and whether in
the circumstances of the case the discretion to refuse return should be exercised. It follows that the majority
of the Full Court misconstrued what had been the task of the primary judge in applying reg 16. So, the appeal
must succeed.
Considers other aspects of reg 16. Firstly, as the Act stood at the time of the decision in the present case, s
64(1)(a) provided that in proceedings in relation to the custody, guardianship or welfare of, or access to, a
child, the court must regard the welfare of the child "as the paramount consideration". Section 64 was
contained in Pt VII of the Act (ss 60-70F) and s 63 conferred jurisdiction on the Family Court (and certain
other courts) in relation to matters arising under that Part. This jurisdiction had an affinity to the parens
patriae jurisdiction of the Court of Chancery, where the welfare of the minor was the first and paramount
consideration. In the appellant's submissions to this Court, s 64 and the parens patriae jurisdiction were said
to embody "the paramountcy principle”. It was contended for the appellant that, by reason of s 64(1)(a), the
paramountcy principle applies in proceedings under the Regulations. This proposition treats s 64(1 )(a) as
governing proceedings under the Regulations. That proposition must be rejected. The Regulations reflect the
objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring that
forum which has been the habitual residence of the child. The underlying premise is that, once the forum is
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located in this way, each Contracting State has faith in the domestic law of the other Contracting States to
deal in a proper fashion with matters relating to the custody of children under the age of sixteen. Necessarily,
proceedings under the Regulations are to be seen as standing apart from proceedings to which s 64(1)(a) is
directed. It follows that they are not subject to the paramountcy principle.
Alternatively, it was contended that the Regulations are, and at all relevant times have been, invalid. This
argument must also be rejected. That argument proceeds on the basis that, if the paramountcy principle
does not apply, the Regulations are, and at all times have been, inconsistent with the Act and thus beyond
the regulation-making power conferred by s 111B. It was also put that they are beyond the power conferred
by s 125 of the Act which provides that regulations may be made "not inconsistent with this Act, prescribing
all matters that are required or permitted '" or are necessary or convenient ... for carrying out or giving effect
to [the] Act". However, s 111B confers a regulation-making power which is separate and distinct from that
conferred by s 125 of the Act. Unlike s 125, it is not subject to the requirement that regulations be consistent
with the Act. But even if it were, there could be no question of inconsistency so long as the Regulations
conformed to the terms of s 111B. And, as appears from what has been said as to the construction of reg
16(3)(c) in its previous form, that regulation satisfied the terms of that section which authorises regulations
which are "necessary to enable the performance of the obligations of Australia, or to obtain for Australia any
advantage or benefit, under the Convention". Moreover, as we have already indicated, s 39 of the Act
conferred jurisdiction with respect to proceedings instituted under regulations pursuant to s 111B. It follows
that the question whether the Regulations exceed the power conferred by s 125 of the Act is irrelevant.
Finally, considers the appellant’s argument that the orders of the FC were made in breach of the
requirements of PF. If, as here, children are not separately represented in proceedings under the Regulations,
the only practical means of ascertaining whether or not they object to being returned to their country of
habitual residence is by the obtaining of a report from a Court Counsellor directed to that question. It is in
that context that we turn to consider the significance of the terms in which the instruction was given to the
Court Counsellor in this case and the further procedural consequences of the point made by the Chief Justice
that the children should have been afforded an opportunity to be heard in an appropriate manner. The
report of the Court Counsellor identified the proceedings as involving an application under the Convention
for the return of the children and a cross-application for custody in Australia. It continued that the purpose of
the report was "to ascertain the wishes of the children and their maturity to express those wishes". While
that description might have been apt in relation to a custody application, it did not correctly identify the issue
which arose under the Convention application. Thus, the present application was determined by the primary
judge upon reliance, at least to a significant degree, upon the report of the Court Counsellor which had not
been directed to the relevant issue concerning the objections of the children. The Full Court was correct in
holding that, on that account, the proceedings were "fatally flawed". However, given the evidence of the
appellant that the children did not want to return to the United States and given the practical difficulties
confronting her in establishing whether or not they objected to being returned, procedural fairness requires
that there be a rehearing of the matter to determine whether, in fact, they do object to that course.
Moreover, the question which arises on the Convention application closely concerns the interests of the
children, making it most appropriate that a properly directed report be obtained. That likewise will be the
case, for example, where it appears to the Court that there is a question of the exposure of the child to
physical or psychological harm on return of the child or that the return would otherwise place the child in an
intolerable situation, within the meaning of reg 16(3)(b). Where issues of the kind involved in this case arise,
or appear to the Court to arise with respect to a child of the age and degree of maturity spoken of in reg
16(3)(c), there ordinarily should be separate representation. See, e.g., s 68L of the Act.
Note, if a child objects to being returned to the country of his or her habitual residence and has attained the
age and degree of maturity spoken of in reg l6(3)(c), it remains for the judge hearing the application to
exercise an independent discretion to determine whether or not an order should be made for the child's
return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion
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and the "discretion is, therefore, unconfined except in so far as the subject matter and the scope and
purpose of the [Regulations]" enable it to be said that a particular consideration is extraneous. That subject
matter is such that the welfare of the child is properly to be taken into consideration in exercising that
discretion.
It should also be noted that, in its present form, the effect of reg 15(1) is to provide that, in making an order
in relation to the return of a child from Australia, the Court may include in its order a condition the Court
considers appropriate to give effect to the Convention. It is impossible to identify any specific and detailed
criteria which govern the exercise of the power whereby the Court may impose such conditions on the
removal of the child "as the court considers to be appropriate to give effect to the Convention". Many of the
criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian
and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the
Court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the
Regulations.
See orders in conclusion section.
Kirby J: begins with facts and proceedings.
Note FC’s jurisdiction for s 111B regulation matters lies in s 39(5)(d).
Notes the extreme delay in this case and the extent to which it is contrary to the Conv and Regs (669).
Runs through the Convention and the Act.
Notes the problem concerning which version (pre or post amendment) of reg 16(3) applied, raising the issue
of onus of proof.
Suggests it was intended by the rule maker that the words in the Regulations would attract the same
meaning as would be given by int’l law to the words of the Convention.
Recaps the approach to interpretation.
Notes the vulnerability of the common law to ensure PF and ascertain the best interests of the child- this runs
counter to the objectives of the Conv. Save in exceptional cases, the procedures for return under the Conv
should not be effectively transformed into a hearing about the custody of the child.
Dismisses the appellant’s arguments for the invalidity of the regs. Says reg 16(3) is a valid exercise of s 111B.
Says the exceptions should be narrowly construed- any other approach would be completely inconsistent
with the language, objectives and history of the Convention. Adopts, therefore, a meaning of "objects" which
"imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a
custody dispute."
When the foregoing principles are applied to the evidence in this case, I do not doubt that such evidence fell
far short of establishing an objection of the kind to which the Convention and reg 16(3)(c) speak. It was no
more than an expression of preference, of the children's wishes and convenience. It should not have stood in
the way of an order for return.
Michael Kirby, ‘Children caught in conflict – the child abduction convention and Australia’
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Begins with Nygh’s suggestion that the trend of Australian judicial interpretation of the Conv is away from
the int’l consensus that the exceptions in Art 13 be narrowly construed.
Recaps the background to the Conv.
To give effect to the obligations created by the Conv in Aust, s 111B was inserted into the FLA.
Notes that not each contracting party is compelled to recognize every other contracting party- so here, that is
for the exec.
Notes the reciprocity p’ple and its importance in this area.
Considers 5 HCA cases on the Conv:
o De L v D-G, NSW Dep’t of Community Services: the primary issue here was the HCA’s rejection of the
FC’s majority decision that ‘objects’ be interpreted narrowly.
o
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DP v CCA: the primary issue here was the HCA’s rejection of the FC’s majority decision that a narrow
and not a broad construction should be given to the “exposed to a grave risk of harm” exception.
o JLM v D-G, NSW Dep’t of Community Services: as above, the primary issue here was the HCA’s rejection
of the FC’s majority decision that a narrow and not a broad construction should be given to the
“exposed to a grave risk of harm” exception.
o MW v D-G of the Dep’t of Community Services: this was essentially an issue of fact.
o LK v D-G of the Dep’t of Community Services: this concerned the precondition that the child that is the
subject of an application under the Conv must be habitually resident in the country from which they
are taken. The HCA decided that the FC had applied notions of domicile, which imports parental
intention, as opposed to habitual residence, which is primarily factual.
Considers additional decisions, featuring Nygh, of the FC:
o D-G of the Dep’t of Family & Community Services v Davis: the child’s anxiety did not warrant the
conclusion that he would be at grave risk of psych harm. The FC emphasized the Convention object of
discouraging or eliminating unilateral removal. This case was applied in later FC decisions.
Consequences of the HCA decisions: says a fair reading of cases in the Family Court of Australia since the
series of decisions in the HCA indicates a much greater vigilance on the part of Full Courts to the factors
favouring non-return than was earlier the case:
o Zafiropoulos:
o Timms:
o Frampton:
o Tarrit:
See statistical data: first instance applications resulting in a return order are now taking significantly longer in
Aust; overall return rate of 42% (compared to global average of 51%) in 2003; note trend towards greater
refusal and decrease in returns; note increase in duration of proceedings resulting in a return and decrease in
duration of proceedings resulting in a refusal; etc.
International Child Abduction – Vincenti/Garnett/Garrett Case
Dep’t of Communities & Garning [2011] FamCA 485
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Forrest J: see orders.
See introduction and factual background.
Runs through the regulations; note reg 4(2) and definition of rights of custody. Note the determination of
those rights on the part of the father (separation agreement; Italian code).
The mother put forward several arguments as to why the children should not be returned:
o The children’s removal to or retention in Aust was not in breach of rights of custody: this was based on
the father’s consent to her bringing the children to Aust. However, see Department of Child Safety and
Stratford [2005] FamCA 1115; (2005) FLC 93-249 per O’Reilly J: once the applicant simply establishes
that the removal or retention is contrary to or interferes with rights of custody then the removal or
retention will be held to be wrongful and that the question of consent or acquiescence is not to be
considered at that stage, but rather, as the regulations provide, as a matter for the respondent to raise
and prove so as to give rise to a discretion not to order return of the children notwithstanding the
wrongful removal. I.e., at [39]: for the purposes of presenting a competent application it would simply
need to be averred and sworn that at the time of a child’s removal, or retention, there was actual
exercise of the rights of custody or that they would have been exercised if the child had not been
removed or retained, without more.
So, the onus of proof in founding a competent application lies with the central authority. The onus of
proof then shifts to the respondent if he or she seeks to establish, by a consent or acquiescence, the
o
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removal or retention was not actually in breach of rights of custody as provided for in regulation 16(3)
which, if proved, then simply enlivens the discretion not to order the return of the children.
At the time of the children’s retention, the father was not actually exercising rights of custody: the
mother asserted in evidence that the father was not always spending time with the girls on the
weekends in the period leading up to their departure from Italy in June 2010, as he would sometimes
forego weekends with the girls in favour of other activities. Further, the mother relies on evidence that
was put before the Court that even when the girls went to the father for weekends he would often not
spend much of the time with them, preferring to play computer games on his computer.
However, those matters of fact go more to the nature of the relationships between the father and his
four daughters rather than to the question of whether or not he was actually exercising “rights of
custody”. Clearly, by continuing to spend time with the children of whatever nature, and having
involvement in decision making in respect of their travel to Australia the father was exercising his
rights of custody. See Director General Department of Community Services v Crowe (1996) FLC 92-717
at 83,637.
The father consented: notes the contradictory evidence by the mother and father. Justice Lindenmayer
in Regino (1995) FLC 92-587 at page 81,814 gave some cautious advice that care must be taken not to
unfairly disadvantage the absent party by “presumptively giving greater credit to the testimony of the
other party who happens to be within the jurisdiction before the Court”. Justice Jordan in the case of
Panayotides (unreported, 31 May 1997, BR1272/95) made some comments that were referred to with
apparent approval by the Full Court in its decision in the appeal from the decision of Justice Jordan,
reported at (1997) FLC 92-733 at page 83,897. His Honour said: it would generally be inappropriate to
absolutely reject the filed testimony of a deponent that was submitted by counsel for the central
authority. I simply must do the best I can. I look to the versions of each of the parties, I find their
common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course,
when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to
the conduct of the parties, and any documentary or corroborative evidence which may help to
determine that issue. See also the English Hague Convention case of Re F [1992] 1 FLR 548 at pages
533-544 and the rule in Jones v Dunkel (1959) 101 CLR 298.
Finds on the evidence that the father did not consent.
The father acquiesced in or consented to their retention in Aust: counsel for the central authority
submitted that acquiescence is a subjective state of mind: In Re H (Minors) (Abduction; Acquiescence)
[1997] UKHL 12; (1998) AC 72 at page 87, Lord Browne-Wilkinson said that the use of the term
“acquiescence” in the regulations applicable in Hague Convention applications in England was actually
looking to the subjective state of mind of the wronged parent.
It seems, to me, reasonably clear that in that very short space of time within which the father sent the
texts that are in evidence that he could, at least, be said to be consenting to or acquiescing in the
retention of the girls in Australia. Certainly, too, on my reading of the English translation of the email
letter sent to the mother a few hours after those texts, the father still appears to be of the view that he
will stop the Hague Convention proceedings and that he was only looking to negotiate visitation rights
for the girls with the mother. Is the evidence of that momentary acquiescence sufficient to determine
the matter? See Department of Communities and Clementine (unreported [2010] FamCA 746, at
paragraph 70: once acquiescence is demonstrated, it cannot subsequently be retracted. But rejects this
view: see, subsequently, Department of Communities (Child Safety Services) v Rowe-Dalley
(unreported, delivered on 29 April 2011) in which his Honour considered that view of O’Reilly J just
referred to. In paragraph 109 of that decision Barry J said: I do not wish to engage in semantics, but it is
a question of fact in each case whether the so called acquiescence is unequivocal if shortly after it was
given, a contrary view was expressed and effectively the acquiescence is withdrawn. See also
Department of Health and Community Services v Casse [1995] FamCA 71; (1995) FLC 92-629 where at
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page 82,311 his Honour said: In my view there cannot be true acquiescence where the parties are in a
state of confusion and emotional turmoil ... being hopeful of a reconciliation in this case the husband
was prepared to pamper the wife’s demands over the weeks following 27 March. The wife’s counsel
was unable to point to any conduct on his behalf after that time which could clearly and unequivocally
amount to an acquiescence by him.
In the light of (a) the evidence of the father’s mental health issues and (b) the evidence that the father
has pursued his Hague Convention remedies over a period of ten months following the mother’s
wrongful retention of the children in Australia on 20 July 2010 and (c) the fact that the only evidence
put before the Court to support an argument that he has acquiesced or consented to their continued
retention is that displaying his feelings within a two hour window just weeks before the hearing of this
application, where after he clearly presses for the return of the children, I cannot determine that the
father’s alleged acquiescence as evidenced by the texts and the email letter demonstrated a clear, well
thought out, unequivocal position maintained by him in such a way that it would be unjust to prevent
the mother from relying upon it.
The grave risk exception: the mother’s case was that returning the children to Italy would expose them
to a grave risk of physical and psychological harm because of the father’s state of mental health, his
history of physical and verbal violence towards the mother and, indeed, towards the children, and that
returning them to Italy would place them in an otherwise intolerable situation because of the father’s
lack of financial support for them in circumstances where the mother is not financially well off or able
to support herself and the girls without employment, which she finds difficult to get.
There is simply insufficient evidence for me to determine that the father’s state of mental health poses
a grave risk of physical or psychological harm to the girls in itself.
The nature of these Hague Convention applications is such that a court in this country has, to a
significant degree, accept the capacities of the Courts and the law enforcement agencies of countries,
such as Italy from whence these children came, to provide suitable protection and remedies for the
mother in such circumstances. Conscious of this, I simply cannot accept the mother’s evidence that the
Italian system is such that she cannot get such protection and remedial support.
See other evidence. With all due respect to the mother, in all of these circumstances, although I am
concerned that the father’s authoritarian style of parenting might not create the ideal environment for
a completely healthy development of these four young girls, I cannot find on the evidence that is
before me that returning the girls to Italy, where their ongoing parenting arrangements can clearly be
the subject of further consideration in the courts of Italy, places them at a risk of physical or
psychological harm that can be described as reaching the level of ‘grave’.
Ultimately though, I cannot be satisfied that even if the father is not paying his child support pursuant
to the agreement that the mother could not do anything to remedy the situation through the courts of
Italy. I am just simply not satisfied to the requisite degree necessary in respect of these matters
pertaining to finances that returning the children to Italy will, because of financial circumstances, place
the children in a situation that could be described as intolerable.
Accordingly, I find that the mother has not made out the defence provided for in regulation 16(3)(b).
The children object to being returned: Certainly though, I get no impression from either of those
reports, more particularly from Ms E’s report, that the girls’ objection to being returned to Italy shows
a strength of feeling beyond the mere expression of a preference or of ordinary wishes, as is the
requirement in order to give rise to the defence. Ms E reports that the children each identified missing
aspects of their lives in Italy, including school, friends and family members. She reports that they each
identified being happy in Australia, that they enjoyed their school and they were making friends. They
reported that their mother is happier in Australia. Ms E recorded her view that the basis for the girls’
objections to returning to Italy was predominantly related to their perception that their father had
historically perpetrated violence against their mother, that he has subjected each of them to
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inappropriate physical disciplining and that in their opinion he was not an active or involved father. She
reported also that each expressed a fear of potential repercussion of returning to Italy after disclosing
negative sentiments about their father. Finally, in respect of this point, Ms E reported that the girls had
stated that if the Court ordered their return to Italy for a decision about the parenting issue to be
made in the Italian Courts that they did not want to live with their father in his villa and that they
would accept returning to Italy if their mother accompanied them. Considering all of this evidence, I do
not find that the children’s objections show a strength of feeling beyond the mere expression of a
preference or of ordinary wishes.
o The children settled in their new environment: The determination of whether or not a child has settled
in his or her new environment only arises in the context of regulation 16(2). Pursuant to that subregulation, the Court only has to consider whether or not the person opposing the return has not
established that the child has settled in his or her new environment in circumstances where the
application is filed more than one year after the day on which the child first removed to, or retained in
Australia. See regulation 16(2)(b) and (c). However, in this case, the children were wrongfully retained
at 20 July 2010 and the application was filed on the 18th of February 2011, well within the 12 month
period. Accordingly the provisions of sub-regulation 16(2) do not apply at all to this case. No
consideration is to be given, therefore, in this case, to the issue of whether or not the children are
settled in their new environment.
If indeed I am wrong in my determination that the mother has not made out any of the defences on the
evidence, I would nevertheless, in the exercise of the residual discretion that would then arise, determine in
this case to still order a return of the four children to Italy. See reasons. See conditions.
Garning and Dep’t of Communities [2012] FamCA 839
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Forrest J: I did not, in (the above) judgment, determine that the four children are better off living with their
father. I did not determine that it is in the children’s best interests to return to live in Italy. That was not my
responsibility. Indeed, had I determined either of those things, I would have erred at law. That is because the
multitude of nations that negotiated the terms of the Hague Convention determined, by the provisions
written into the Convention, that when children are wrongfully removed or retained away from the country
of their habitual residence, court proceedings to determine which parent they should live with, and in which
country their best interests are met, should take place in that country of their habitual residence, from which
they were wrongfully removed or from which they were retained away. Many Australian parents whose
children are wrongfully removed or retained away from Australia every year benefit from the application of
the provisions of the Convention and have their children promptly returned to Australia. But for the existence
of the Convention and its observance by the Courts of the signatory states throughout the world, this might
not happen. Child abduction as between separated and conflicted parents, particularly in its international
form, has long been recognised as abhorrent and, in itself, not in a child’s best interests. What has happened
with the four children in this case, in the last year particularly, in my view demonstrates the correctness of
that recognition.
Australia is one of the only signatory states to the Hague Convention whose enactment into domestic law of
the Convention provides this Court with the power to discharge a return order. I shall not even begin to
speculate on why that might be. Suffice to say that the power is enlivened if the Court is satisfied of at least
one of four express pre-conditions. If so satisfied, discretion to discharge a return order is enlivened.
Discharge is not mandatory on such satisfaction. Regulation 19A of the Regulations is where the power is
found.
The meaning of ‘impracticable’ in reg 19A(2)(b): Dawe J in Ustinov, at [11], determined that “impracticable”
requires something that makes it “unmanageable or unable to be carried out”. However, in Soysa, at [148],
Thackray CJ expressed the view that the formulation ““unable to be carried out” comes too close to
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“impossibility” which is clearly not the test”. His Honour went on to reason that “unmanageable” is the more
apt synonym in the context of the Regulations “because it allows “some degree of reason” to enter into the
process of determining whether the discretion to discharge the order has been enlivened”. I respectfully
agree with Thackray CJ’s approach.
The meaning of ‘exceptional circumstances’ in reg 19A(2)(c): In Ustinov, at [11], Dawe J considered that
“exceptional circumstances” “requires the finding of something unusual or something in the nature of
exception.” In Soysa, at [174]-[178], Thackray CJ respectfully discussed the issue further. Whilst he pointed
out that there is “eminent authority to support her Honour’s view[3]”, his Honour went on to say that he
“would be inclined to treat the everyday meaning of the word “exceptional” in reg 19A, as being something
more than “unusual”. His Honour gave his reasons for that at [177], saying: When construing the word
“exceptional” in the context of reg 19A, I consider it would be proper to have regard to the strength of the
language employed in those other parts of the Regulations that allow a court discretion not to order the
return of a child. ....The strength of the language used elsewhere leads me to conclude that accepting
something “unusual” as sufficient to activate the discretion in reg 19A would not be a construction that pays
regard to the objects of the Convention. This is particularly so because, in my experience, cases arising under
the Regulations commonly already possess “unusual” elements.
Whilst paragraph (2)(b) expressly requires the circumstances that make a return order “impracticable” to be
carried out to have arisen since the order was made, there is no requirement that the “exceptional
circumstances that justify the return order being discharged” must have arisen since the order was made.
Thackray CJ accepted that in Soysa at [180]. I respectfully accept that as correct.
Is it impracticable for the return order to be carried out? I do not consider that the actions of adults who are
members of the children’s family, or otherwise close to and known by the children, done in deliberate
defiance of the Court’s orders, can be relied upon by the mother as circumstances that make it
“impracticable” for the return order to be carried out simply because the date and time that the children
were to be delivered to the airport has passed. To find that would make a mockery of the Hague Convention
legal process and do nothing but encourage such actions in similar circumstances in the future by parents as
equally determined to continue to wrongfully retain their children in this country.
See other evidence.
In all these circumstances, I am not persuaded that since the order was made, it has become impracticable
for the return order to be carried out.
Are there exceptional circumstances that justify the discharge of the return order? The case for the mother
though, as I understand it, is that the apparent strength of the children’s objections to return to Italy,
manifesting itself in escalating psychological distress, and, particularly in so far as one of them is concerned,
in threats of self-harm, constitutes the “exceptional circumstances” that justify discharge of the order.
See evidence.
In Ustinov, at [42], Dawes J was quite strong in holding that the correct interpretation of the Regulations,
taking into account the purpose behind the Convention, does not allow the absconding parent to hold out as
a circumstance that would justify the discharge of a return order the fact that she will not return to the
country of origin. In Soysa, at [150] to [159], Thackray CJ carefully discussed the same issue. See other
citations at [54]ff.
See range of other factors and evidence considered.
Does reg 19A(2)(d) apply? Says no- see reasons.
How would I have exercised the discretion had I found it to be open to be exercised? After considering all of
the evidence and all of these matters, and being acutely aware of the fact that I am making difficult decisions
involving the lives of four children who have expressed strong views that they do not want to return to Italy, I
have determined that I would not set aside the return order, even if I had an entitlement to do so after
determining the ‘exceptional circumstances’ point or the one year timing point.
International Child Abduction – Interaction of treaty regimes
Schuz, ‘Thirty years of the Hague abduction convention: a children’s rights’ perspective’
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On the one hand, as will be seen below, the Convention’s automatic return mechanism and the way in which
its provisions have been interpreted and applied over the years can be seen as incompatible with children’s
rights ideology in a number of ways. It is of particular note that one of the main criticisms of the operation of
the Convention has been that insufficient account is taken of domestic violence perpetrated by the leftbehind parent against the abductor. On the other hand, courts and policy-makers have become more aware
of the need to ensure that children’s rights are protected in Convention cases and have taken some steps in
this direction.
It is necessary to refute at the outset the claim that a children’s rights analysis of the Convention is irrelevant
because the Convention is intended to be a procedural vehicle to determine jurisdiction and enforce foreign
court judgments with rapidity, and that the real issue is whether the substantive domestic custody and
access orders were issued in accordance with the CRC. This claim itself is fundamentally incompatible with
the philosophy of children’s rights because it treats the child as the mere object of a technical jurisdiction
determination and completely ignores the fact that Convention decisions have fateful implications for the
lives of children both in the short-term and often also in the long-term. Moreover, in many cases there has
not yet been a domestic custody or access decision and in some cases, if the child is returned, there may not
be one, because the abductor is not in a position to instigate proceedings in the country of origin. Moreover,
as already mentioned, some courts are now recognising the relevance of the CRC to Convention cases.
Accordingly, it is certainly appropriate to analyse to what extent the Convention and the way in which it has
been applied are consistent with the most significant elements of children’s rights ideology.
The child as subject
Perhaps the most fundamental aspect of the doctrine of children’s rights is its recognition not only that
children are not owned by their parents, but that their separate independent identities should be recognised
by the law. In other words, they are subjects and not simply the objects of disputes between their parents.
Problem: definition of ‘wrongful’: under the Convention, the obligation to return the child to the country of
origin is triggered by the finding that there has been a wrongful removal or retention. Article 3 provides that
a removal or retention is to be treated as wrongful where it is in breach of the rights of any person or
institution. Defining wrongful removal or retention in terms of rights of adults, usually those of the parents,
treats children as an object. The message given is that the victim of the abduction is the left-behind parent
and that the breach of his rights in relation to his child enables him to request return of the child, in much the
same way as an owner who has been dispossessed of his property would request its return. No recognition
appears to be given to the fact that the child is the primary victim and that his rights, in particular his right to
contact with both parents, have been violated. Thus the Convention does not protect abducted children in
cases where the left-behind parent did not have rights of custody under the law of the place of origin.
Problem: determining habitual residence: further, a pre-condition to the obligation to order return under the
Convention is that the child was habitually resident in another Member State immediately before the
wrongful removal or retention (Article 4). The drafters of the Convention did not appreciate the difficulty
involved in determining the habitual residence of children as opposed to adults, and that is that children are
usually not in a position to decide where they live. Accordingly, in the UK and most other common law
jurisdictions, the courts have, at least until recently, determined the habitual residence of the child in the
light of the intentions of the parent(s) who has/have the right to determine where he should live. This
approach is inconsistent with the recognition that the child is a subject, an independent actor with his own
interests and rights because it bases the determination of the child’s habitual residence on the intention of
his parent(s), without any inquiry as to whether this is either necessary for, or even consistent with, the
child’s interests and without any consideration of the child’s perspective.
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Problem: interpretation of settlement: the exception in Article 12(2) of the Convention will be established
where one year has passed between the date of the wrongful removal or retention and the commencement
of proceedings and the child has become settled in his new environment. See problems with the different
juridical approaches to this issue.
Positive developments: wide interpretation of parental rights; increasingly child-centric interpretative
approach in some jurisdictions.
The way forward: the message that the child is an object, rather than an independent rights-holder, which is
conveyed by treating breach of parental rights as the trigger for return, cannot be adequately countered
without amending the Convention. Even the most child-centred domestic rules for determining the
substantive dispute cannot change the fact that the Convention’s return mechanism is predicated on
violation of an adult’s custody rights in relation to the child and not upon a breach of that child’s rights.
However, efforts can be made to limit the damage caused by the Convention’s focus on parental rights. For
example, courts can make a point of mentioning the fact that there has also been a breach of the child’s right
to contact with his parents and can emphasise that the return remedy is designed to protect that right. Since
the problem identified here is of perpetuating a message which is inconsistent with the ideology of children’s
rights, rather than an actual breach of those rights, appropriate children’s rights language can go some way
to minimising the damaging impact of the formal regime, which treats the child as an object. In addition,
there is room to interpret the concept of custody rights even more broadly. Thus, for example, the doctrine
of inchoate rights could also be applied to cases where an unmarried father was caring for the child together
with the mother, and the New Zealand approach to access rights could be adopted. Further, it is to be hoped
that the more child centric approach to habitual residence will be universally adopted. Yet, the decision of
the majority in In the Matter of LC (Children) [2014] UKSC 1, according to which the state of mind of only
adolescent children should be taken into account in determining their habitual residence, does not go far
enough because children’s rights ideology is not limited to mature children. Accordingly, Lady Hale’s view
that the perceptions of even younger children are a relevant factor in determining the quality of their
residence (at [58]) is clearly to be preferred. Indeed, her comment that ‘the relevant reality is that of the
children and not of the parents’ (at [87]) is to be welcomed as recognition that the child is the subject and
not the object of Convention proceedings. In particular, it is clear that the question of settlement for the
purposes of the exception in Article 12(2) has to be determined from the child’s perspective. Moreover, if
there is to be discretion to order return of settled children, it must be exercised with extreme caution, on the
basis of the child’s interests and not those of the parents or the community at large.
Child’s right to participate
The child’s right to participate, which includes both his right to be heard and his right to have appropriate
weight attached to his views in accordance with his age and maturity (Article 12, CRC), is derived from the
recognition of children’s autonomy. As a human being, who has a personality, existence and views of his
own, independent and distinct from those of his parents or other adults, he has the right to have a say in the
shaping of his life, and his views are deserving of respect. Empirical research shows that children have a
capacity to participate in decision-making concerning their lives: children often have clear views which they
are able to express articulately and cogently about their living arrangements and other matters affecting
them, and that sometimes they even suggest creative solutions to disputes which had not occurred to the
adults. Furthermore, most children do want to be consulted about arrangements which will have a major
impact on their lives, and feel dissatisfied and hurt when they are excluded from decision-making. So, true
participation in decision-making involves access to the ultimate decision-maker and that the child’s right to
be treated as an individual is only fully realised if he is given the opportunity to be heard directly by the judge
deciding the case. In some types of cases, the only way to ensure that the child’s voice is properly heard by
the court is to order separate legal representation of the child.
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Problem: failure to hear children: there is no provision in the Convention itself requiring courts to ascertain
the views of children. Thus, traditionally their views were only heard where the abductor raised the defence
of the child’s objections. The policy of not hearing children routinely in abduction cases, which still applies in
many jurisdictions, seems to stem from the concern that this will cause delay in what is designed to be a
summary process and from the perception that there is no point in hearing the children’s views if they will
not influence the decision. However, it is clear that neither of these reasons can justify violating the child’s
right to be heard (per Baroness Hale in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [57]), especially
in view of the fact that the CRC right to be heard is considered an independent right and not purely
instrumental. In addition, in many, probably most, Contracting States, abducted children are not routinely
provided with separate representation.
Problem: insufficient weight attached to children’s views: see citations. there are two main explanations for
the reluctance of some courts to refuse to return children on the basis of their objections. The first is a lack of
understanding of the significance of the child’s right to participate and/or a paternalistic worldview about the
capacity of children. The second is the belief that the policy of mandatory return and the need for
international comity override the child’s right to have his views respected. The weight attached to the views
of the children in the case-law discussed in this section is inconsistent with the approach under which the
wishes of mature children should be respected unless this will manifestly cause them real harm.
Positive developments: overall, children seem to be participating more in Convention proceedings, although
there are still considerable differences between countries. Perhaps the most significant development is the
enactment of Brussels II Revised Regulation (EC) no. 2201/2003 Article 11.2 which requires that the child is
given the opportunity to be heard in Convention proceedings, unless this appears inappropriate having
regard to his or her age or degree of maturity. Further, some judges have been prepared to take the child’s
right to participate very seriously in abduction cases (see examples).
The way forward: children’s participation rights can only be fully respected if they are given the opportunity
to be heard directly by the judge, and, in many cases, only if they are provided with separate representation.
In addition, in order to ensure that judicial reference to participation rights of abducted children is not
merely lip service, it is necessary for judges to internalise the scope of these rights and the rationale behind
them and to interpret and apply the Article 13(2) defence accordingly. Whilst the more child-centric
approach now being applied by the English courts to the children’s objections exception is clearly to be
welcomed, the decision of Lady Hale in Re M (Abduction: Zimabawe) [2007] UKHL 55, which seems to have
been the inspiration for the change of approach, does not go far enough. In particular, I would take issue with
the view expressed there that in exercising the discretion whether to return a mature objection child, it is
legitimate to take into account ‘the various aspects of the Convention policy’ (at [43]). With respect, I would
argue that the so-called policy of the Convention is an extraneous consideration in determining the
appropriate weight to be given to the views of particular child and cannot justify violating the participation
rights of mature children who genuinely object to return. Indeed, the exceptions should be considered as
part of the policy of the Convention because in enacting them, the drafters recognised that there are values
which override the mandatory return mechanism.
Best interests of the child
Article 3 of the CRC mandates treating the best interests of the child as a primary consideration in decisions
relating to children. Firstly, the article appears to have a collective focus because it refers to all actions
concerning children in the plural. This would mean that decisions concerning children have to take into
account the best interests of children generally and not only the best interests of the particular child in
relation to whom the decision is being made. However, it seems that the reason for the use of the plural
form is that legislatures and some of the other institutions referred to in the article make decisions about
groups of children. Accordingly, where a court is making a decision about a specific child, the individual
standard should be adopted, as suggested by the use of the singular form in the phrase ‘best interests of the
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child’ at the end of Article 3. Secondly, the phrase ‘primary consideration’ in Article 3 is preceded by the
indefinite and not the definite article. In other words, there is no requirement that the best interests of the
child are the sole or even the principal consideration as long as they are one of the main considerations. This
formulation gives considerable discretion to courts and other decision-makers to determine what weight to
give to the best interests of the child viz-a-viz other considerations. Thus, the Article 3 standard allows the
court to give less weight to the interests of the child than does the traditional paramountcy principle.
Problem: lack of consideration of best interests: the Convention scheme appears to be fundamentally
inconsistent with the requirement to treat the child’s best interests as a primary consideration. Whilst the
assumption which underpins the Convention is that the best interests of the child require immediate return,
it is abundantly clear that there will be cases where this assumption is not correct. Nonetheless, it will not be
possible to identify such cases since the judge is not allowed to assess what are the interests of the child in
each individual case. The reasoning behind this prohibition is the belief that carrying out such an
investigation will necessarily cause delay, which will prevent speedy return of the child and thus postpone
the restoration of the status quo, substantially undermining the deterrent effect of the Convention. The
likelihood that return will not be in the best interests of the child is considerably greater than originally
expected, because in practice the stereotype case is abduction by the primary carer or joint primary carer
(73% of cases, usually the mother (69% of cases)), and not by the non-custodial father, as envisaged by the
drafters of the Convention. There is evidence that the drafters envisaged that the defence in Article 13(1)(b)
would cover the situation where the mother was fleeing from domestic violence. More fundamentally, the
question arises whether sacrificing the interests of even a few children in order to protect other children can
be justified: utilitarianism is inconsistent with the normative values of autonomy and equality.
Problem: separation of siblings: see ISC case. It is difficult to see how a court which had treated the interests
of the older child as a primary consideration could have ordered return, without at least examining the
implications for him of being returned without his younger brother. Furthermore, no consideration was even
given to the interests of the younger child, which were inevitably affected by the decision.
Positive developments: some courts do now appreciate the relevance of the interests of children in
Convention cases. For example, some judges have shown awareness of the harm caused to children by being
exposed to domestic violence (e.g. Van De Sande v Van De Sande, 431 F.3d 567, 570–71 (7th Cir). 2005;
Baran v Beaty, 526 F.3d 1340, 1346 (11th Cir). 2008). Moreover, there has been increasing recognition of the
need to put in place protective measures to ensure the safety of returning children (e.g. Re E [2011] UKSC 27)
and a few courts have started to understand the importance of ensuring that such measures are enforceable
(e.g. Danaipour v McLarey 286 F.3d 1 (1st Cir, 2002); Simcox v Simcox 511 F3d 594 (6th Cir, 2007); generally
Schuz, 2013: 294-296). Perhaps the most striking and controversial example of the recognition of the need to
take into account the interests of children in Abduction Convention cases can be found in the jurisprudence
of the European Court of Human Rights (ECtHR) in a line of cases, starting with Neulinger v Shuruk and
Switzerland App no 41615/07 6.7.10). In these cases, the ECtHR stated that a child’s return cannot be
ordered automatically or mechanically without consideration of the child’s best interests. The recent decision
of the Grand Chamber of the ECtHR in X v Latvia (Application no. 27853/09, 26.11.13) represents an attempt
to find middle ground, by clarifying that in return cases the best interests of the child have to be evaluated in
the light of the exceptions in the Convention, i.e. more narrowly than in custody cases. The focus of the
decision, which was accepted also by the minority judges, is the need to take seriously claims of risk of harm.
This approach represents a much better attempt to reconcile the Convention’s mandatory return mechanism
with the best interests principle than that in Neulinger and should prevent a head-on clash between
Strasbourg and national courts. Nonetheless, the new approach is too vague. Indeed, the knife-edge majority
of 9-8, caused by the lack of agreement among the Grand Chamber judges themselves as to whether the new
standard had been adhered to in this case, would seem to testify to the inherent lack of clarity.
The way forward: the distinction between short term interests of children and their long-term interests made
by Thorpe LJ in Re E [2011] EWCA Civ 361 [69] (also in Sonderup v Tondelli 2001 (1) SA 1171 (CC)) provides a
workable basis for a reconciliation between the Abduction Convention and the best interests principle. The
court in the requested State has to consider only the short-term interests of the child. Where there is a grave
risk of real harm to the child’s interests in the short term, then return should be refused on the basis of the
grave risk exception. However, where this is not the case, issues relating to long term interests should be left
to the court of habitual residence and so return should be ordered. In addition, in order to ensure that
children are protected without causing delay, it is necessary to adopt appropriate expedited procedures for
identifying risk of harm and for enabling children to express their views. Only in cases where this preliminary
investigation reveals that one of the exceptions might apply is it necessary to take more time to check things
out thoroughly. This will not have any effect on the majority of cases, in which it can be ascertained relatively
quickly that exceptions do not apply and return can be ordered.
X v Latvia
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Recaps procedural history.
Recaps facts.
Relevant Domestic and Int’l Law and Practice
The Hague Convention:
o Considers Perez-Vera’s ER on the Conv: it appears from this report that, in order to discourage the
possibility for the abducting parent to have his or her action recognised as lawful in the State to which
the child has been taken, the Convention enshrines, in addition to its preventive aspect, the
restoration of the status quo, by an order for immediate return of the child, which would make it
possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with
custody rights is almost entirely absent from the scope of this Convention, as this matter is to be
discussed before the relevant courts in the State of the child’s habitual residence prior to removal. The
philosophy of the Hague Convention is to fight against the multiplication of international abductions,
based always on a wish to protect children by acting as interpreter of their real interests. Accordingly,
the objective of prevention and immediate return corresponds to a specific conception of “the child’s
best interests”. However, as the child’s removal may be justified for objective reasons which have to
do either with his or her person, or with the environment with which he or she is most closely
connected, the Convention allows for certain exceptions to the general obligations on the States to
ensure an immediate return (§ 25). Since the return of the child is the basic principle of the
Convention, the exceptions to the general duty to secure it form an important element in
understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive
their justification from three different principles (§ 27). Firstly, the authorities of the requested State
are not bound to order the return of the child if the person requesting the return was not actually
exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28).
Secondly, the first paragraph, (b), and second paragraph of Article 13 contain exceptions which clearly
derive from a consideration of the interests of the child, to which the Convention gives a definite
content. Thus, the interest of the child in not being removed from his or her habitual residence without
sufficient guarantees of stability in the new environment gives way before the primary interest of any
person in not being exposed to physical or psychological danger or being placed in an intolerable
situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her
return “would not be permitted by the fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out
those exceptions, also emphasises the margin of appreciation inherent in the judicial function.
o In 2003 the HCCH published Part II of the Guide to Good Practice under the Hague Convention of 25
October 1980 on the Civil Aspects of International Child Abduction. Although primarily intended for the
new Contracting States and without binding effect, especially in respect of the judicial authorities, this
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document seeks to facilitate the Convention’s implementation by proposing numerous
recommendations and clarifications. The Guide repeatedly emphasises the importance of the
Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret
coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the
transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In
particular, it emphasises that the judicial and administrative authorities are under an obligation, inter
alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious
procedures”). Expeditious procedures should be viewed as procedures which are both fast and
efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4
“Case management”). The Guide to Good Practice specifies that delays in enforcement of return
orders, or their non-enforcement, in certain Contracting States are matters of serious concern, and
recommends that States Parties ensure that there are simple and effective mechanisms to enforce
orders for the return of children within their domestic systems, noting that the return must actually be
effected and not just ordered (point 6.7 “Enforcement”).
The CRC:
o In its General Comment No. 7 (2005) on Implementing child rights in early childhood, the Committee
on the Rights of the Child wished to encourage recognition by States Parties that young children are
holders of all rights enshrined in this Convention and that early childhood is a critical period for the
realisation of these rights. The best interests of the child are examined, in particular, in section 13,
which is worded as follows: Best interests of the child. Article 3 sets out the principle that the best
interests of the child are a primary consideration in all actions concerning children. By virtue of their
relative immaturity, young children are reliant on responsible authorities to assess and represent their
rights and best interests in relation to decisions and actions that affect their well-being, while taking
account of their views and evolving capacities. The principle of best interests appears repeatedly
within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early
childhood). The principle of best interests applies to all actions concerning children and requires active
measures to protect their rights and promote their survival, growth, and well-being, as well as
measures to support and assist parents and others who have day-to-day responsibility for realizing
children’s rights:
(a) Best interests of individual children. All decision-making concerning a child’s care, health, education,
etc. must take account of the best interests principle, including decisions by parents, professionals and
others responsible for children. States parties are urged to make provisions for young children to be
represented independently in all legal proceedings by someone who acts for the child’s interests, and
for children to be heard in all cases where they are capable of expressing their opinions or preferences.
See also Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49-55, ECHR 2010.
Charter of Fundamental Rights of the EU.
Note also Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility
(known as “the Brussels II bis Regulation”).
Latvian sources of law: Latvian Const; Latvian Civil Procedure Act.
Australian sources: Family Law Act 1975 (Cth) ss 61B, 61C, 111B.
Here, the applicant claimed to have been a victim, on account of the decision by the Latvian courts to order
the return of her daughter to Australia, of an infringement of her right to respect for her family life within the
meaning of Article 8 of the Convention. The Government expressly indicated in the proceedings before it that
they did not contest that the decisions by the Latvian courts ordering the applicant to send E. back to
Australia amounted to interference with her right to respect for her family life as protected by Article 8 of the
Convention. The interference with the applicant’s right to respect for her private and family life found above
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is in breach of Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to
be determined whether the interference was “in accordance with the law”, pursued one or more legitimate
aims as defined in that paragraph and was “necessary in a democratic society” to achieve them.
So was the interference in accordance with law? The expression “in accordance with the law” not only
requires that the impugned measure should have some basis in domestic law, but also refers to the quality of
the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its
effects (see, among many other authorities, Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II;
Slivenko v. Latvia [GC], no. 48321/99, § 100, ECHR 2003-X; and Kurić and Others v. Slovenia [GC], no.
26828/06, § 341, ECHR 2012). The Court observes that the decision to return the child to Australia was taken
by the Riga Regional Court on the basis of the Hague Convention of 1980, a text signed and ratified by Latvia
in 1982. Furthermore, the Latvian Civil Procedure Act, section 644 of which governs matters regarding the
unlawful removal of children across borders into Latvia, makes its application conditional on express
compliance with the Hague Convention, the Brussels II bis Regulation and the European Convention on
Human Rights. The applicant alleged that at the time of her departure from Australia she had been alone in
exercising parental responsibility for her daughter. The Court notes, however, that that issue was expressly
examined by the Latvian courts dealing with the application for the child’s return. Those courts, while stating
that they could neither interpret nor alter it, applied the Australian Family Court’s decision of 6 November
2008, which confirmed T.’s paternity and the existence of joint parental responsibility for the child from her
birth. In consequence, both the District Court and the Riga Regional Court found that T.’s application
complied with the Hague Convention in this respect. Moreover, the Court considers that it is not for it to
decide whether the international removal of a child was or was not “unlawful” within the meaning of Article
3 of the Hague Convention. Indeed, it is not the Court’s function to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have infringed rights and freedoms protected
by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I): it is for the domestic
courts to resolve problems of interpretation and application of domestic legislation, and of rules of general
international law and international treaties (see Maumousseau and Washington v. France, no. 39388/05, §
79, 6 December 2007, and Neulinger and Shuruk, cited above, § 100). In the instant case, the applicant, in
addition to failing to exercise the available remedies to challenge the Australian decision confirming T.’s
paternity and the existence of joint parental responsibility for the child at the time of her departure from
Australia, which was a direct precondition for application of the Hague Convention, has not shown either that
it was impossible for her to challenge the Australian decision or how the domestic courts had erred in that
respect. In conclusion, the Court considers that the impugned interference was in accordance with the law
within the meaning of Article 8 of the Convention.
Says the interference protected a legitimate aim.
But was the interference necessary in a democratic society? The Court considers it appropriate to reiterate
at the outset certain principles which must guide it in its examination of the case, and to which it drew
attention in its recent judgment in Nada v. Switzerland ([GC], no. 10593/08, § 167, ECHR 2012), in the
following terms:
o According to established case-law, a Contracting Party is responsible under Article 1 of the Convention
for all acts and omissions of its organs regardless of whether the act or omission in question was a
consequence of domestic law or of the necessity to comply with international legal obligations. Article
1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a
Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention (see Bosphorus [Hava Yolları
Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98], § 153[, ECHR 2005-VI], and United
Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports [of Judgments and
Decisions] 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of
the Convention in respect of that State may thus engage its responsibility for Convention purposes (see
Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited
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above, § 154, and the cases cited therein). Moreover, the Court reiterates that the Convention cannot
be interpreted in a vacuum but must be interpreted in harmony with the general principles of
international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna
Convention on the Law of Treaties, of ‘any relevant rules of international law applicable in the relations
between the parties’, and in particular the rules concerning the international protection of human
rights (see, for example, Neulinger and Shuruk[, cited above], § 131 ...; Al-Adsani v. the United Kingdom
[GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29,
Series A no. 18). When creating new international obligations, States are assumed not to derogate
from their previous obligations. Where a number of apparently contradictory instruments are
simultaneously applicable, international case-law and academic opinion endeavour to construe them
in such a way as to coordinate their effects and avoid any opposition between them. Two diverging
commitments must therefore be harmonised as far as possible so that they produce effects that are
fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; AlAdsani, cited above, § 55; and [Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99],
§§ 55-57[, ECHR 2001-XII]; see also the references cited in the International Law Commission study
group’s report entitled ‘Fragmentation of international law: difficulties arising from the diversification
and expansion of international law’ ...).”
As regards, more specifically, the question of the relationship between the Convention and the Hague
Convention on the Civil Aspects of International Child Abduction of 25 October 1980, the Court reiterates
that in the area of international child abduction the obligations imposed by Article 8 on the Contracting
States must be interpreted in the light of the requirements of the Hague Convention (see Ignaccolo-Zenide,
cited above, § 95; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003-V; and Maumousseau and
Washington, cited above, § 60) and those of the Convention on the Rights of the Child of 20 November 1989
(see Maire v. Portugal, no. 48206/99, § 72, ECHR 2003-VII; Maumousseau and Washington, cited above; and
Neulinger and Shuruk, cited above, § 132), and of the relevant rules and principles of international law
applicable in relations between the Contracting Parties (see Demir and Baykara v. Turkey [GC], no. 34503/97,
§ 67, ECHR 2008).
This approach involves a combined and harmonious application of the international instruments, and in
particular in the instant case of the Convention and the Hague Convention, regard being had to its purpose
and its impact on the protection of the rights of children and parents.
The decisive issue is whether the fair balance that must exist between the competing interests at stake –
those of the child, of the two parents, and of public order – has been struck, within the margin of
appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62),
taking into account, however, that the best interests of the child must be of primary consideration and that
the objectives of prevention and immediate return correspond to a specific conception of “the best interests
of the child” (see paragraph 35 above).
There is a broad consensus – including in international law – in support of the idea that in all decisions
concerning children, their best interests must be paramount (see paragraphs 37-39 above). The same
philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status
quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence
in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove
justified for objective reasons that correspond to the child’s interests, thus explaining the existence of
exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)).
Thus, it follows directly not only from Article 8 of the Convention but also from the Hague Convention itself,
given the exceptions expressly enshrined therein to the principle of the child’s prompt return to his or her
country of habitual residence, that such a return cannot be ordered automatically or mechanically (see
Maumousseau and Washington, cited above, § 72, and Neulinger and Shuruk, cited above, § 138). In the
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context of an application for return made under the Hague Convention, which is accordingly distinct from
custody proceedings, the concept of the best interests of the child must be evaluated in the light of the
exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the
conditions of application of the Convention (Article 13 (a)) and the existence of a “grave risk” (Article 13 (b)),
and compliance with the fundamental principles of the requested State relating to the protection of human
rights and fundamental freedoms (Article 20). The Court must satisfy itself that the decision-making process
leading to the adoption of the impugned measures by the domestic courts was fair and allowed those
concerned to present their case fully, and that the best interests of the child were defended (see Eskinazi and
Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005-XIII; Maumousseau and Washington, cited above; and
Neulinger and Shuruk, cited above, § 139).
The Court considers that a harmonious interpretation of the European Convention and the Hague Convention
(see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly,
the factors capable of constituting an exception to the child’s immediate return in application of Articles 12,
13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the
proceedings, must genuinely be taken into account by the requested court. That court must then make a
decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions
have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the
Convention (see Neulinger and Shuruk, cited above, § 133).
In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a
particular procedural obligation in this respect: when assessing an application for a child’s return, the courts
must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must
also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take
account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague
Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the
requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due
consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic
and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention,
which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This
will also enable the Court, whose task is not to take the place of the national courts, to carry out the
European supervision entrusted to it.
Before the Riga Regional Court, the applicant submitted, in the context of her appeal, a certificate prepared
at her request by a psychologist on 16 December 2008, that is, after the first-instance judgment. This
document indicated that, while the child’s young age prevented her from expressing a preference as to her
place of residence, an immediate separation from her mother was to be ruled out on account of the
likelihood of psychological trauma (see paragraph 22 above). Yet, while the District Court, examining the
request for a stay of execution of the return order, took account of that certificate in ordering, in the child’s
interests, a stay of execution of the return order pending the outcome of the appeal proceedings (see
paragraph 24 above), the Regional Court refused to take it into consideration. The appeal court considered
that the findings of the psychological report concerned the merits of the custody issue and could not
therefore serve as evidence in ruling on the question of the child’s return that was before it. In so doing, and
in view of this reasoning, the Riga Regional Court refused to examine the conclusions of the psychological
report in the light of the provisions of Article 13 (b) of the Hague Convention, even though it was directly
linked to the best interests of the child in that it drew attention to a risk of psychological trauma in the event
of immediate separation from her mother (see, conversely, Maumousseau and Washington, cited above, §
63).
But Article 8 of the Convention imposed a procedural obligation on the Latvian authorities, requiring that an
arguable allegation of “grave risk” to the child in the event of return be effectively examined by the courts
and their findings set out in a reasoned court decision (see paragraph 107 above). Under Article 13, first
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paragraph, (b) of the Hague Convention, the courts examining the return request are not obliged to grant it
“if the person, institution or other body which opposes its return establishes that ... there is a grave risk”. It is
the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. In
the instant case, it was therefore for the applicant to provide sufficient evidence to substantiate her
allegations, which, moreover, had to concern the existence of a risk specifically described as “grave” by
Article 13, first paragraph, (b). The applicant fulfilled her obligation by submitting a psychologist’s certificate
concluding that there existed a risk of trauma for the child in the event of immediate separation from her
mother. Furthermore, she had also submitted that T. had criminal convictions and referred to instances of illtreatment by him. It was therefore for the Latvian courts to carry out meaningful checks, enabling them to
either confirm or exclude the existence of a “grave risk” (see B. v. Belgium, no. 4320/11, §§ 70-72, 10 July
2012). The Court accordingly considers that the refusal to take into account such an allegation, substantiated
by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could
disclose the possible existence of a grave risk within the meaning of Article 13, first paragraph, (b) of the
Hague Convention, was contrary to the requirements of Article 8 of the Convention. The issue of whether it
was possible for the mother to follow her daughter to Australia and to maintain contact with her should also
have been dealt with. The Court further emphasises that, in any event, since the rights safeguarded by Article
8 of the Convention, which is part of Latvian law and directly applicable, represent “fundamental principles of
the requested State relating to the protection of human rights and fundamental freedoms” within the
meaning of Article 20 of the Hague Convention, the Regional Court could not dispense with such a review in
the circumstances of this case.
While Article 11 of the Hague Convention does indeed provide that the judicial authorities must act
expeditiously, this does not exonerate them from the duty to undertake an effective examination of
allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13
(b) in this case.
In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference
with her right to respect for her family life, in that the decision-making process under domestic law did not
satisfy the procedural requirements inherent in Article 8 of the Convention, the Riga Regional Court having
failed to carry out an effective examination of the applicant’s allegations under Article 13 (b) of the Hague
Convention. So, there has been a violation of Article 8 of the Convention.
Salter ‘Getting Hagued: The impact of int’l law on child abduction by protective mothers’
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The Hague Convention was formulated in the late 1970s prior to widespread recognition of the role of abuse
and violence in separation and divorce. This article argues that the Hague Convention has the effect of
trivialising domestic violence and child abuse and perpetuating stereotypes of protective mothers as mentally
ill and malicious. This article will examine how those drafting and then interpreting the Hague Convention
have misunderstood the gendered nature of international child abduction before going on to analyse the
impact of ‘getting Hagued’ in two important Australian cases of international child abduction.
The majority of abductors of children are their parents and other relatives. Parental abductions often
originate within conflicts over divorce and child custody. In the latter half of the 20th century, such conflicts
took on an international dimension due to rises in bi-national marriage, the ease of overseas travel and
increased rates of separation and divorce.
The Hague Convention was developed by the Hague Conference on Private International Law and adopted
unanimously in 1980. Over time the number of signatories, or ‘contracting States’, has grown to 91. The
Hague Convention created a civil remedy for child abduction that aims to return an internationally abducted
child from one contracting State to another as expeditiously as possible for the adjudication of the custody
dispute in their country of ‘habitual residence.’
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The remedy offered by the Hague Convention is subject to limited exceptions, the most commonly argued of
which is the ‘grave risk’ exception in Article 13b. ‘Grave risk’ is not defined in the Convention and while
subject to different interpretations it has generally been narrowly construed to allow for the protection of
the child from only serious irreparable harm such as those posed by ‘war, famine or disease’. Nonetheless,
under Article 18, courts may exercise discretion and order a return even if a defence is proven, if such an
order would further the aims of the Hague Convention. Where there is evidence that return poses a risk to
the child, courts have applied non-enforceable ‘undertakings’ that set conditions on the return of the child in
an effort to assure their safety.
The gendered nature of ICA:
Research undertaken subsequent to the development of the Hague Convention finds that child abductions
follow a highly gendered pattern, with women abducting children to escape or protect them from violence
and abuse, and men abducting children as an extension of a pattern of violence. Maternal abductions often
take place after a court order grants the father access in spite of an allegation or evidence of domestic
violence and/or child abuse. Contested allegations of child sexual abuse are over-represented in instances
where women abduct their children. Maternal abduction can be triggered where ‘children’s protective
agencies and courts may fail to take measures to protect the child’, instead trivialising the allegation of sexual
abuse as ‘invalid or the product of a malicious divorce’. International surveys of Hague Convention cases from
1999, 2003 and 2008 have found that approximately 70% of abductors are mothers, and most of these
women are the primary caretakers of the child. Many of these women report that their primary motive or
abduction was to protect themselves and their children from domestic violence and/or child abuse, often
after successive failings by national authorities and courts. Shetty and Edleson’s review of all published and
unpublished Hague Convention cases available to them found that approximately one third of cases included
references to ‘family violence’. However, some courts and Convention advocates now argue that allegations
and findings of violence and abuse are so routine in Hague cases that to consider it grounds to deny a
petition would undermine the entire Convention.
The conflict between the child’s best interests, prompt return and comity:
There is a clear conflict between the Convention’s stated commitment to the best interests of the child and
the principles of prompt return and comity. Firstly, the Hague Convention assumes that abduction that it
deems ‘wrongful’ is inherently harmful to children. However this formulation does not adequately distinguish
between non-protective and protective abduction. Further, the principle of prompt return has been
legitimised as a deterrent against ‘forum shopping’ by a parent searching for a more favourable jurisdiction
for the adjudication of the custody matter. However the evidence is that abducting women are primarily
returning to their home countries often in order to recover from a prolonged period of violence and abuse in
a more supportive environment. Further, the commitment of the Convention to comity obliges contracting
states to the view that the legal systems of other Contracting States are capable of applying and enforcing
their own laws. This contradicts the cumulative evidence of systemic failures to protect children and women
from family violence and abuse. There is ample evidence of a judicial bias against protective mothers in
family courts in the determination of post-separation parenting disputes in Australia and overseas. Finally,
such bias is also evident in the adjudication of Hague petitions, which have been populated by references to
abducting mothers as hostile and manipulative. This view of maternal abductors as unfit to parent and
deserving of punishment reflects their widespread stigmatisation as ‘abductors’ and obscures the fact that at
least a substantial minority have reasonable concerns for their own and/or their children’s safety.
The Aust response:
Australia’s ratification of the Convention came into effect from 1 January 1987. A 1997 discussion paper
circulated by the Attorney-General estimated that there were between 80 and 100 child abductions a year to
or from Australia to Hague Convention countries and that internal abductions could be as high as 500 a year.
After more formal data collection practices were put in place, the Australian Central Authority reported 167
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applications in 2003 and 202 applications in 2008. In 2008 67% of the ‘taking persons’ from Australia were
mothers, and 91% of these were the primary carers of the child. In comparison, 25% of taking fathers were
the primary carer.
The position of Australian family courts has been that the return of the child should be ordered even where
there is high risk of exposure to violence and abuse (e.g., Murray v Director General of Family Services (1993)
FLC 92-416).
See analysis of Aust case law, including jurisprudential differences between HCA and Family Courts.
See the examples of Hadzic and Stratton.
6. Appendix: LRW
Class 1
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Some useful databases:
o WORLDLII: useful for int’l legal research.
o Lexis/Westlaw: have some links to int’l legal research (make sure to select int’l databases).
o Oxford Reports: int’l legal decisions from int’l legal bodies as well as domestic courts; case summaries if
original decision is not in English.
o Justis: focus on int’l legal decisions with translations if not in English.
o HeinOnline: international, comparative, and foreign law primary material, as well as a broad range of
secondary materials.
o GlobalLex: international, comparative, and foreign law research.
Says int’l law is made challenging because there is:
o No central plenary legislative authority. Law-making authority is distributed and in certain respects
horizontal, with many actors contributing. For example, UN General Assembly Resolutions are for the
most part non-binding as such; there exist a variety of international courts with varying jurisdictions,
and no international apex court with compulsory jurisdiction over all States and the power to render
binding judgments on all issues of international law. (ICJ decisions are only binding on states that agree
to its jurisdiction.)
o No single repository of information.
o Language barriers.
o Must often look to how international law is implemented and applied within national legal systems.
Suggests keeping a research log:
o Primary v Secondary source
o Authoritativeness of the text or related information (e.g. text from website of treaty depository v text
on NGO website)
o Timeliness / Currency
o Accuracy
o Sources with specialist focus
o Comprehensiveness
o Source bias (e.g. sources often influenced by the views / motivations of the entity that created them)
Treaties: notes monism/dualism/hybridism.
The Vienna Convention on the Law of Treaties constitutes a 'guidebook' to the international law relating to
the nature, conclusion and entry into force, territorial application, interpretation, termination, invalidity and
suspension of treaties (among other matters). In many cases the VCLT sets out default rules: parties may
agree that the default rules will not apply in most, though not all, cases. The VCLT:
o Defines a number of important terms in Article 2 (including 'treaty').
o Sets out the standard (default) procedural rules/requirements for the conclusion and entry into force
of treaties and how individual States become bound by them.
o
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Describes the legal consequences that flow from becoming a signatory or party to a treaty, eg treaties
are binding only upon parties to them who must perform the obligations they have assumed in good
faith.
o Sets out general rules of interpretation (Section 3): Articles 31 to 33 of the VCLT set out the accepted
approach to the interpretation of international treaties. The starting point is the ‘ordinary meaning’ of
the terms of the treaty in their context and in light of the object and purpose of the treaty.
The context includes the text of the treaty, its preamble, its annexes and any agreement relating to the
treaty made by all parties in connection with its conclusion, or made by one or more parties and
accepted by the other parties as an instrument related to the treaty. (See, e.g., the various annexes
attached to the Joint Declaration of the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong
1984, 1399 UNTS 33, 61).
In addition to the text and context of a treaty, the VCLT outlines additional sources must that may be
taken into account when interpreting the treaty referenced, such as: (1) subsequent agreements
between the parties; (2) subsequent practice under the treaty which establishes the agreement of the
parties; and (3) relevant rules of international law applicable in the relations between the parties.
Finally, Article 32 provides that the drafting history of the treaty (the travaux préparatoires) may be
taken into account as a supplementary means of interpretation to confirm the meaning, to elucidate it
where the above approach has left the meaning ambiguous or obscure or would lead to an absurd or
unreasonable interpretation.
o Sets out rules regarding the termination, invalidity and suspension of treaties.
The texts of treaties can be found in various places, depending on the specific treaty; status information can
be found on the website of the official depositary of the treaty (though may also be available on other
websites). You should consult the most authoritative source, to ensure that you have the most up-to-date
information. The major sources of treaty texts are:
o (a) International treaty databases and series
 United Nations Treaty Collection: Includes the text of all multilateral and bilateral treaties
deposited with the UN Secretary-General pursuant to Article 102 of the Charter in the authentic
texts and official languages (these are ultimately all included in the United Nations Treaty
Series). It also provides status information and the text of declarations, reservations and
objections made by States parties under all multilateral treaties for which the UN SecretaryGeneral is the depositary.
The United Nations Treaty Series (UNTS) is part of the UN Treaty Collection. Under Article 102 of
the UN Charter, member States agree to deposit treaties with the UN Secretariat after the treaty
comes into force. These treaties will (eventually) be published in the UNTS. The UN Treaty
Collection provides:
(a) Official or ‘authentic’ texts of treaties, including the different language versions, generally in all
authentic languages;
(b) Where the UN Secretary-General is the depositary of the treaty:
(i) ‘status information’, that is details of which States have signed, ratified, acceded or
otherwise
adhered to the treaty; and
(ii) access to the texts of any reservations and declarations made by States, as well as any
objections by other States parties.
(c) Where the UN Secretary-General is not the depositary of the treaty, you will have to consult the
relevant website of the depositary government or organization for status and other information
relating to the treaty.
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Other specialized agencies and bodies of the United Nations may also maintain up-to-date
databases of treaty texts and status information of treaties adopted under their auspices, eg the
International Labour Organization, the International Maritime Organisation and UNESCO (among
many others).
 Other international organisations such as the Hague Conference on Private International
Law also maintain comprehensive websites and databases containing the text of treaties and
relevant status and other information in relation to treaties adopted under their auspices.
o (b) Regional treaty databases and series
 Regional and sub-regional bodies such as the Council of Europe, the Organisation of American
States, the African Union and the Association of South East Asian States (ASEAN), maintain
collections of treaties and status information relating to the treaties adopted under their
auspices.
o (c) National treaty databases
 A significant number of countries maintain official national databases of the multilateral and
bilateral treaties to which they are party. In some cases a government may be the depositary for
a multilateral treaty and you will need to consult that government’s treaty database in order to
access status information in relation to that treaty (eg status information about the International
Convention for the Regulation of Whaling is obtainable through the website of the US
Department of State, as the US is the depositary of that convention). Examples of national treaty
databses are: Australia: DFAT database and Australian Treaties LIbrary on AustLII; Argentina;
France; United Kingdom.
o (d) WorldLII
 See the International Treaties Library on WorldLII.
In the period between conclusion of a treaty and the treaty’s entry into force, as well as between treaty
registration and actual publication in the UNTS, it is possible to find the treaty text in, e.g., the text of the
resolution by which the treaty was adopted or other relevant document considered by the adopting body
(e.g., an Annex to a UNGA Res); the website of a specialist organisation or agency (eg ILO, IMO, UNESCO);
national treaty series or government gazettes; the text of laws that may have given effect to the treaty
domestically (or to non-governmental sources if no official version is available).
Class 2
CIL module
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Overview of CIL and challenges of demonstrating the nec requirements:
o State practice: one challenge is to ensure that the practice examined covers a significant proportion of
the int’l community (if coverage of the practice of all States is not possible), including that of 'specially
affected' States. Another issue is evaluating the weight of any particular instance of State practice, as
some instances are of greater legal weight than others (e.g. a formal statement of government's
position on the current status of a rule as part of CIL, as opposed to a comment in a doorstop interview
by a government minister or a tweet). Another difficulty arises where States endorse a rule as part of
CIL, but engage in conduct which appears to be inconsistent with that rule (e.g. use of torture or
unlawful use of force). The ICJ has taken the view that, where the State endorses and defends its
conduct as falling within a permitted exception to the rule (even if the defence is not accepted in a
given case), the apparently inconsistent conduct should not be viewed as conduct inconsistent with the
existence of the rule. So, if a State justifies its use of force as a resort to self-defence under Article 51
of the UN Charter - even though others may reject that argument - the conduct is seen as not
inconsistent with the existing CIL rule on the use of force (which exists simultaneously with the
prohibition in Article 2(4) of the Charter).
o
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Opinio juris: demonstrating opinio juris also has its challenges, as States often do not articulate why
they are engaging in particular conduct or that they are doing so because the rule is part of CIL.
Sometimes they do this - an example is the formal statement by the then Australian Attorney-General
Senator George Brandis QC on 11 April 2017 on the right of self-defence against imminent armed
attack in IL. However, sometimes State officials do the converse and state that they are engaging in
particular conduct as a matter of policy rather than because there is a binding obligation under IL. For
example, one State has noted that 'States often include guidance [on the implementation of treaty
rules] in their military manuals for policy, rather than legal, reasons' and it may not therefore be
appropriate to rely on those statements to conclude that 'those treaty rules apply as a matter of CIL in
non-treaty contexts.' (John B. Bellinger, III and William J. Haynes II, 'A US government response to the
International Committee of the Red Cross Study Customary International Humanitarian Law' (2007)
89 International Review of the Red Cross 443, 447). More often, though, there may be no explicit
statement of the State's intention. In such cases, approaches to determining the existence of opinio
juris have varied. In some cases, the view has been taken that where there is widespread and
consistent State practice, then opinio juris can be inferred from the fact of that practice. In other cases
where practice is less widespread and consistent, then more concrete evidence of opinio juris may be
required.
Evidence of State practice and opinio juris may be found in:
o Actions of State organs (e.g. sailing of vessels through areas considered to be high seas in freedom of
navigation exercises);
o Support for resolutions or formal statements in international fora (including, for example, explanations
of vote);
o Diplomatic correspondence setting out a government's views;
o The legal opinions of governmental (international) legal advisers;
o Responses by States to drafts prepared by international bodies (e.g., ILC);
o Responses by States to decisions or recommendations of independent expert bodies;
o National legislation;
o National judicial decisions, official manuals (e.g. military manuals);
o Pleadings and arguments before international courts and tribunals;
o Public statements and formal or parliamentary statements;
o State digests: some countries collect State practice systematically in Digests, or in national Yearbooks
of International Law. GlobaLex has an excellent guide to state practice, including a list of state digests,
while the Peace Palace Library contains an extensive collection of State digests, as well as subject
matter-based resources. Two additional useful guides are:
 International Law Commission (ILC), Identification of customary international law: Ways and
means for making the evidence of customary international law more readily available,
Memorandum by the Secretariat, A/CN.4/710 (2018) (38 pages of text, with 134 pages of
annexes containing useful lists of state and other sources of relevant material, including national
treaty series, regional collections and thematic collections of material)
 Ralph Gaebler and Alison Shea, Sources of State Practice in International Law (Martinus Nijhoff,
2nd rev ed 2014), e-book available through UNSW Library.
Frequently the work of the ILC on specific topics involves the compilation or extensive discussion of
relevant State practice. See the Analytical Guide to the work of the Commission.
Some bodies will also prepare collections of State practice in particular areas: see, for example, the
many publications on State practice relating to the law of the sea prepared by the Division for Ocean
Affairs and the Law of the Sea, Office of Legal Affairs.
o Other useful sources include:
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o
WorldLII / CommonLII / AustLII: The LIIs index a range of information relevant to state practice,
including national court decisions, legislation, regulation and policy, as well as some Yearbooks
of International Law, among other sources.
 HeinOnline: HeinOnline, accessible through the UNSW Library. contains a number of State
practice resources, The link 'Foreign and International Law Resources Database - Part I:
International Yearbooks and Periodicals' contains a number of international law yearbooks
(African, Asian, Australian, European, etc.) will take you to a range of sources.
 HeinOnline also maintains an International Law Association Reports database with conference
and committee reports, which can be good sources for finding State practice.
Google Advanced Search: Google Advanced Search can be helpful in finding State practice. If the
information you seek is not in a digest, report, or other synthesised format, Google allows you to
search a range of materials, including materials directly from the source.
Case law module
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When you are asked to advise on or analyse a situation or a problem, you will in many cases need to
ascertain whether the situation or problem raises any IL issues. As noted earlier, this can arise in many areas,
including those that are not obviously international or transnational. You should consider, among other
matters:
o Are there rights or obligations involved that are potentially covered by international instruments"?
o Are these standards embodied in domestic law)? If not, how does that affect the situation?
o Are there cross-border transactions/interactions/actors involved?
o Would your client benefit from your undertaking an analysis drawing on international or foreign law?
Does your professional duty to exercise the highest level of skill in advising your client require you to
ensure that you have properly considered international or comparative law issues?