Table of Contents
The Normativity of International Law ........................................................................... 16
Kindred 1-12 ...................................................................................................................................... 16
Louis Henkin et al, “The Nature of International Law”......................................................... 16
The Discourse of International Law ................................................................................ 17
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] .............. 17
Ratio: There can be no doubt as to the applicability of humanitarian law to threat/use
of nuclear weapons; however, court can’t make any conclusions on the legality of the
use of such a weapon were a state to be in a situation of last resort and extreme selfdefence (cop-out by the ICJ) ................................................................................................................... 17
Legality of the Threat or Use of Nuclear Weapons; Dissenting: (Weeramantry)......... 18
Ratio: Bland disembodied language should not be permitted to conceal the basic
contradiction between the nuclear weapon and the fundamentals of international law
............................................................................................................................................................................. 18
International Legal Subjects: States ................................................................................ 20
Kindred, (13-43) ............................................................................................................................... 20
1. States and Statehood.................................................................................................................. 21
Montevideo Convention on the Rights and Duties of States (1936).................................. 21
The original criteria for statehood ....................................................................................................... 21
Austro-German Customs Union Case [1931] ............................................................................ 21
Ratio: Where there is no relation of superiority and subordination, it is impossible to
speak of dependence within the meaning of international law ............................................... 21
2. Recognition ................................................................................................................................... 22
S. Williams and ALC de Mestral, “Theories of Recognition” ................................................ 22
Canadian Practice of Recognition of States [1972] ............................................................... 22
Approaches to Recognition of Governments [1988] .............................................................. 22
Charter of the Organization of American States [1948] ...................................................... 23
Tinoco Arbitration, Great Britain v Costa Rica [1923] ......................................................... 24
Ratio: * Non-recognition of a gov doesn’t affect the rights/responsibilities of the state,
but their execution is hindered; Treaties in force will continue to bind the state, but
may be inoperative during the period of an unrecognized gov; Foreigners investing in a
country with an unrecognized gov have added risk because their country of origin has
no diplomatic channels; in this case C.’s new gov wins because obligations made by T.
were against national laws. ..................................................................................................................... 24
Island of Palmas Case, Netherlands v United States [1928] ............................................... 24
Ratio: “Sovereignty in the relation between states signifies independence.
Independence in regard to a portion of the globe is the right to exercise therein, to the
exclusion of any other state, the functions of a state;” If a title has already been
completed based on continuous peaceful sovereignty a newcomer can’t, based on
inchoate title, push them out (This case is the major authority on title to territory). ... 24
Charter of the United Nations Articles 1 & 2 ............................................................................ 25
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations [1970]
................................................................................................................................................................ 26
Military Activities In and Against Nicaragua [1986]: ........................................................... 26
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Ratio: Court held that the adoption of the Declaration affords an indication of the legal
opinion of signatory states as to customary international law on the question of the
less grave forms of the use of force ..................................................................................................... 26
Types of States .................................................................................................................................. 27
SA Williams and ALC de Mestral, “Federal States” ................................................................. 27
Max Cohen, “Canada and the International Legal Order: An Inside Perspective ......... 27
Friedrich Nietzsche, “Thus Spake Zarathustra: A Book for All and None” ...................... 27
Bauman Zygmunt, “Modernity and the Holocaust” ............................................................... 27
International Legal Subjects: Peoples ............................................................................ 28
Kindred, (70-100) ............................................................................................................................. 28
Charter of the United Nations Articles 1(2), 55, and 73 ....................................................... 28
Declaration on the Granting of Independence to Colonial Countries and Peoples
[1960] ................................................................................................................................................... 29
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations .......... 29
Western Sahara Case [1975] ........................................................................................................ 29
Ratio: It is for the people to determine the destiny of the territory, not the territory the
destiny of the people; self-determination takes precedence over historic title ............... 29
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory [2004] ................................................................................................................................ 30
Ratio: The wall extremely limits the exercise of the Palestinians’ recognized right to
self-determination and constitutes a breach of Israel’s obligation to respect that right;
the right to self-determination is recognized as a legal right erga omnes (binding on all
states – in which all states have a legal interest) ........................................................................... 30
Reference re Secession of Quebec, [1998] ................................................................................. 30
Ratio: A state whose gov represents the whole of the people resident within its
territory on a basis of equality and without discrimination and respects the principles
of self-determination is entitled to the protection under international law of its
territorial integrity; right to external self-determination only present in extreme
circumstances: ex. decolonization; this doesn’t rule out de facto secession, which
would depend, for legitimacy, on international recognition..................................................... 30
Tinoco Arbitration, Great Britain v. Costa Rica, [1923] ....................................................... 32
Ratio: principle of State Continuity is the international norm; obligations entered into
by previous govs bind subsequent govs; this case is exception since T. bound Costa
Rica to obligations that were against its national laws, so they are unenforceable. ....... 32
Succession to Rights and Obligations ....................................................................................... 32
SA Williams, “International Legal Effects of Secession by Quebec” .................................. 32
Vienna Convention on Succession of States in Respect of Treaties, [1978] .................... 32
Mahatma Gandhi, “Selected Political Writings: Swaraj” ..................................................... 32
International Legal Subjects: International Organizations .................................... 33
Kindred (43-64) ................................................................................................................................ 33
SA Williams and ALC de Mestral, “Intergovernmental Organizations” .......................... 33
The United Nations.......................................................................................................................... 33
Namibia Case, Legal Consequences for States of the Continued Presence of South
Africa in Namibia Notwithstanding Security Council Resolution 276, [1970] .............. 33
Ratio: Member states are under an obligation to follow the resolution of the Security
Council and all member states are under an obligation to recognize the illegality of SA
and to refrain from lending support/recognition/assistance to SA as concerns
Namibia: UN Charter 25 ........................................................................................................................... 33
2
Aerial Incident at Lockerbie Case, [1992] ................................................................................. 34
Ratio: decision of the Security Council rendered binding under UN Charter 25
overrides the Montreal Convention treaty. ...................................................................................... 34
Reparations Case, [1949] ............................................................................................................... 35
Ratio: The UN is a subject of international law capable of possessing international
rights/duties, and is capable of maintaining its rights by bringing international claims
against states................................................................................................................................................. 35
International Legal Subjects: Non-Governmental Organizations ......................... 35
Kindred (65-67) ................................................................................................................................ 35
Prosecution v Simic .......................................................................................................................... 35
Ratio: The right to non-disclosure of information relating to the ICRC’s activities in the
possession of its employees in judicial proceedings is necessary for the effective
discharge by the ICRC of its mandate; the signors of the Geneva Conventions have an
obligation to respect this; the ICRC has disclosed in exceptional circumstances: ex.
Rwanda. ........................................................................................................................................................... 35
International Legal Subjects: Transnational Corporations .................................... 36
Kindred (67-69) ................................................................................................................................ 36
Texaco v Libya ................................................................................................................................... 37
Ratio: Expropriation of property is an uncontested/universally accepted principle of
permanent sovereignty over a state; however, exercise of that right is subject to some
conditions (compensation) ..................................................................................................................... 37
Sources: Treaties – ICJ Statute 38(a)............................................................................... 37
Kindred (107-110, 113-132, 137-147)....................................................................................... 37
Military Activities In and Against Nicaragua (Nicaragua v US), [1986] ......................... 38
Ratio: One state is justified in terminating the operation of a treaty on the ground of
the violation by the other party of an essential provision of the treaty (Vienna
Convention art 60, para 3(b)); But if the two rules also exist as rules of customary
international law, failure of the one state to apply the one rule doesn’t justify the other
State declining to apply the other rule ............................................................................................... 38
Vienna Convention on the Law of Treaties (criteria for treaty) ........................................ 38
Anglo Iranian Oil Company Case, [1952] .................................................................................. 38
K between gov of Iran and A-I Oil company held to create no obligations between
UK/Iranian governments; not a treaty, it is a K between the two signing parties only;
Vienna Convention only applies to written treaties between states ..................................... 38
Nuclear Tests Cases: Australia v France, New Zealand v France, [1974]........................ 39
Ratio: Declarations made by way of unilateral acts concerning legal/factual situations
may have the effect of creating legal obligations; intent is gleaned from interpretation
of the act.......................................................................................................................................................... 39
Conclusion of a Treaty ................................................................................................................... 39
Reservations to the Convention on Genocide Case, [1951] ICJ ........................................... 40
Ratio: A party that maintains a reservation that is objected to by one or more other
parties but not others can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention (promoting
flexibility in treaty formation to entice more states to sign on) .............................................. 40
Legal Effects of Treaties................................................................................................................. 41
Free Zones Case, France v Switzerland, [1932] ....................................................................... 41
Ratio: Nothing preventing a third State from agreeing to the object and effect of a
treaty and thereby creating rights in its favour if it is willed by the signatory states and
3
the third party; however, can’t force 3rd party to adhere to treaty of which it is not a
signatory: VC 34........................................................................................................................................... 41
Operation of Treaties ..................................................................................................................... 42
Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), [1997] ............ 42
Ratio: unless means of termination are included in the treaty, a party cannot
unilaterally terminate a treaty without consent of parties or in accordance with one of
the ‘Force Majeure’ provisions in the VC ........................................................................................... 42
Borrows and Rotman, “Aboriginal Legal Issues” (295-310) .............................................. 43
Sources: Custom – ICJ Statute 38(b) ................................................................................ 44
Kindred (148-167) ........................................................................................................................... 44
The Steamship Lotus, France v Turkey, [1927] ....................................................................... 44
Ratio: Vessels on the high seas are subject to no authority except that of the State
whose flag they fly; however, this doesn’t affect the exercise of territorial jurisdiction
in a state over acts which have occurred on board a foreign ship on the high seas; there
is no customary international law establishing exclusive jurisdiction of the State whose
flag was flown ............................................................................................................................................... 44
North Sea Continental Shelf Case, Germany v Denmark and v Netherlands, [1969]... 45
Ratio: Some treaties codify customary law, others try to create it; for a principle to
become customary international law, it must (1) be a settled state practice AND (2)
opinio juris (carried out by a majority of states who consider it a legal obligation) ....... 45
Right of Passage over Indian Territory Case, Portugal v India, [1960] .......................... 46
Ratio: Local custom can establish rules of customary international law between states
when the practice is recognized as long-standing and regarded as a right/obligation . 46
Asylum Case: Columbia v. Peru .................................................................................................... 47
Ratio: absent consistent compliance and opinio juris, customary principle of
international law will not be found; a clear indication of crystallization is codification;
refusal of this by one party is indication of no custom ................................................................ 47
Breugelmans and Poortinga, “Emotion without a Word: Shame and Guilt Among
Rara’muri Indians and Rural Javanese” ................................................................................... 47
Sources: General Principles and Soft Law – ICJ Statute 38(c) ................................ 47
Kindred 111-112, 167-182, 689-696 .......................................................................................... 47
Prosecutor v Erdemovic, [1997] (decision of McDonald/Vohrah; dissent of Cassese) 48
Ratio: there is no general principle of international law establishing Duress as a
defence to all crimes (Statute of the ICC applies Duress as a general defence
exonerating criminal responsibility: ICC 31(d)) ............................................................................ 48
Erdemovic Case ................................................................................................................................. 48
Texaco v Libya, [1977] .................................................................................................................... 49
Ratio: Right of expropriation is a right of all states as long as it obeys the general
principles of international law (accepted by a majority of states): (1.) In pursuance of a
public purpose (broadly interpreted: see Amoco International Finance Corp v Iran)
Doing it for money shouldn’t be, but often is, used as the main reason (has never really
been challenged; (2.) Non-discriminatory (hasn’t been used very often either); (3.)
Gives rise to appropriate compensation ........................................................................................... 49
Bindreiter, “Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine” . 50
National Application of International Law – Custom ................................................ 50
Kindred 183-195 ............................................................................................................................... 50
Foreign Legations Case, 1943 ....................................................................................................... 51
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Ratio: Canada has an adoptionist approach to customary international law, as long as it
does not directly conflict with existing national laws.................................................................. 51
Saint John v Fraser-Brace Overseas Corp, [1958] .................................................................. 51
Ratio: adoptionist approach to CIL ...................................................................................................... 51
Bouzari v Iran, [2004] ..................................................................................................................... 52
Ratio: customary international law does not apply where Canada has domestic
legislation directly contradicting it...................................................................................................... 52
* Department of Northern and Indian Affairs, “Statement by Canada’s New
Government” ...................................................................................................................................... 52
* “Regarding the United Nations Declaration on the Rights of Indigenous Peoples” (22936) .................................................................................................................................................... 52
National Application of International Law – Treaties .............................................. 52
Kindred 195-221 ............................................................................................................................... 52
Federal Position, from Canada, Department of External Affairs (1968) (p. 195) ..... 53
Ratio: Treaties in Canada are incorporated according to the transformationist
approach as opposed to the Adoptionist Approach taken with Customary International
Law .................................................................................................................................................................... 53
Canada v Ontario, [1937] Labour Convention Case............................................................... 54
Ratio: If treaty obligations signed by the federal government fall under provincial
jurisdiction, it cannot force the provinces to change laws to comply with its treaty
obligations; Constitution ss. 91/92 apply. ........................................................................................ 54
Re Arrow River and Tributaries Slide and Boom Co. Ltd., [1931] Ont.C.A. and SCC, p.
214......................................................................................................................................................... 55
Main idea is that each judge bends the Act or the Treaty so as to prevent an open
conflict ............................................................................................................................................................. 55
R v Crown Zellerbach Canada Ltd., [1988]................................................................................ 55
Ratio: if possible, courts should make effort to interpret Canadian law in line with its
international obligations (so opposite of Arrow River Case)..................................................... 55
* Borrows and Rotman, “Aboriginal Legal Issues: Cases, Materials and Commentary”
................................................................................................................................................................ 57
Law of the Sea.......................................................................................................................... 57
UN Convention on the Law of the Sea 1982 – entered into force in 1994........................ 57
R v. Perry ............................................................................................................................................. 58
Ratio: you can face prosecution for exploiting resources outside your state’s EEZ ........ 58
Deep Seabed ...................................................................................................................................... 59
Nationality................................................................................................................................ 59
Kindred 493-539 ............................................................................................................................... 59
1. Acquisition of Nationality ........................................................................................................ 59
Jus soli: nationality acquired by birth in territory of a state; Jus sanguinis: nationality
acquired by birth outside the state to nationals of the state; Naturalization: (direct)
general procedure by legislative, executive, judicial depending on state, (derivative)
minor becomes naturalized because of naturalization of parents ......................................... 59
Citizenship Act (Canada, 1985).................................................................................................... 60
Jus soli approach, except for diplomatic types; Jus sanguinis for both parents (some
countries only let the father pass on nationality).......................................................................... 60
2. Recognition of Nationality at International Law ............................................................. 60
Nottebohm Case – Liechtenstein v. Guatemala ....................................................................... 60
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Ratio: To prove dominant/effective nationality to espouse a person’s claim must show:
(1) basis of social fact of attachment – family, place of residence, etc. – (2) Genuine
connection – interests/sentiments – (3) Reciprocal rights and duties ................................ 60
Flegenheimer Claim: Italian-United States Conciliation Commission ............................. 61
Ratio: courts will generally rule in favour person to avoid statelessness at all costs .... 61
3. The Right of Diplomatic Protection ...................................................................................... 61
International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR,
2004 (p. 505) ..................................................................................................................................... 61
Ratio: state can defend dual citizen from other state if it is the dominant nationality;
state can give diplomatic protection to stateless person that is resident ........................... 61
4. Dual and Multiple Nationality ................................................................................................ 61
1930 Hague Convention on Conflict of Nationality Laws ..................................................... 62
Canevaro Case – Italy v. Peru ........................................................................................................ 62
Ratio: Dominant nationality is what matters in international claims ................................... 62
Iran-US Case No. A/18 ..................................................................................................................... 62
Ratio: A state can only espouse the claim of a citizen if it is that citizen’s “dominant and
effective nationality” .................................................................................................................................. 62
5. Allegiance....................................................................................................................................... 62
Joyce v Director of Public Prosecutions (1946) ....................................................................... 63
Ratio: holding yourself out as a citizen comes not only with right, but duties of
allegiance that if breached can result in liability ........................................................................... 63
6. Loss of Nationality and Statelessness .................................................................................. 63
Stoeck v. Public Trustee, p. 514 .................................................................................................... 63
Ratio: conflicts of nationality laws resulting in statelessness .................................................. 63
Eritrea Claims (2004) p. 521......................................................................................................... 64
Ratio: Expulsion of dual-nationals considered ‘enemies’ in times of war is state’s right
under Geneva Convention; however, there must be reasonable grounds for belief;
cannot simply revoke citizenship of all dual-nationals. .............................................................. 64
B. Corporations ................................................................................................................................. 64
Barcelona Traction, Light and Power Co. Case – Belgium v. Spain (p. 525) .................. 64
Ratio: only the national state of the company where the ‘Siège Social’ is located can
espouse the claim of the corporation against another state for wrongdoing;
shareholders have no standing ............................................................................................................. 64
Electronica Sicula S.p.A (ElSI Case), US v. Italy (p. 536)........................................................ 65
Ratio: applies the rules in Barcelona Traction; fact that shareholders were all in the US
has no import; the Siège Social was Italy, the company was Italian ...................................... 65
International Centre for the Settlement of Investment Disputes (ICSID) ....................... 66
Settles disputes between host states and foreign private investors ..................................... 66
State Jurisdiction over Persons ........................................................................................ 66
Distinction between a state’s ability to prescribe a rule of law (prescriptive jurisdition)
and a state’s ability to enforce that rule (enforcement jurisdiction) ..................................... 66
A. Subject-Matter Jurisdiction ..................................................................................................... 66
1. Scope of Jurisdiction .................................................................................................................. 66
The Steamship Lotus – France v. Turkey ................................................................................... 67
Ratio: For crimes not occurring completely in one state or the other, each is able to
exercise jurisdiction over the incident as a whole (concurrent jurisdiction); * UNCLOS:
now, only person’s state or the state of the ship a person is on can exercise jurisdiction
for events happening at sea .................................................................................................................... 67
2. Basis of Criminal Jurisdiction ................................................................................................. 68
6
3. Scope of Territorial Jurisdiction ............................................................................................ 69
Libman v. R. ........................................................................................................................................ 69
Ratio: For Canadian criminal law to apply extraterritorially, it is sufficient that there
was a real and substantial like between the offence and the Canada;
planning/perpetrating the fraud from Canada is enough to establish that link ............... 69
4. Scope of Universal Jurisdiction .............................................................................................. 70
Aut dedere aut judicare (extradite or prosecute) ........................................................................... 70
R. v. Bow Street Magistrate, ex parte Pinochet........................................................................ 70
Ratio: a crime will be subject to universal jurisdiction where it: (1) violates jus cogens;
(2) so egregious that it can be considered a crim against mankind (hostes humani
generis); in this case, Pinochet’s contravention of the UN Convention on Torture meets
those grounds: Aut dedere aut judicare (extradite or prosecute) ........................................... 70
Yerodia Case (Congo v. Belgium) ................................................................................................. 71
Ratio: Belgium has prescriptive jurisdiction here, but no enforcement jurisdiction;
foreign ministers must be able to travel freely/have diplomatic immunity based on
Sovereign Equality; however, “immunity isn’t impunity”; once he isn’t foreign minister
anymore, Belgium can get him .............................................................................................................. 71
Eichmann Case (1961) .................................................................................................................... 71
Ratio: first use of crimes against humanity; dubious jurisdictional grounds used to
justify the trials ............................................................................................................................................ 71
5. Suppression of Transnational Crimes of International Concern (Terrorism)...... 72
International Convention for the Suppression of Terrorist Bombings, U.N. Doc 199872
B. Jurisdiction over the Persons ................................................................................................. 72
A state has no difficulty enforcing jurisdiction if the person is inside its boundaries –
has plenary authority subject to international human rights rules; what about
jurisdiction over persons outside its boundaries? = Canada/US approach: mala captus
bene detentus (wrongly captured, properly detained); abduction of the person back to
Canada/US to prosecute (ex. Eichmann/Israel, Machain/US) ................................................. 72
United States v. Alvarez Machain (USSC, 1992) ...................................................................... 73
Ratio: mala captus bene detentus; where country hosting the criminal refuses to
prosecute/extradite, other means may be used; must balance the illegal arrest against
the merits/seriousness of the criminal charge ............................................................................... 73
Prosecutor v. Dragan Nikolic (ICTY, 2003)............................................................................... 74
Ratio: Must balance the injury of letting serious international criminals go free against
the harms to sovereignty of target state............................................................................................ 74
International Criminal Law ................................................................................................ 74
Kindred 727-775 ............................................................................................................................... 74
A. Development of International Criminal Law .................................................................... 74
1. International Responsibility After World War II............................................................. 74
Nuremburg War Crimes Trials .................................................................................................... 74
Ratio: introduces Crimes Against Humanity, although only when they have nexus with
war. ................................................................................................................................................................... 74
2. International Humanitarian Law (laws of war) ............................................................... 75
Jus ad bellum: when you can go to war; Jus in bello: how you can fight the war, whether
it’s just or not; Distinction Principle: have to distinguish between
civilians/combattants, between civilian targets and military targets: often depends on
context; Principle of Proportionality: means employed to achieve military objective
must be proportional to incidental civilian casualties/dmg to civilian objects ................ 75
3. Multilateral Conventions Specifying International Crimes ......................................... 76
7
Convention for the Prevention and Punishment of the Crime of Genocide (UN, 1948),
p. 743 .................................................................................................................................................... 76
Convention Against Torture (UN, 1984), p. 745 ...................................................................... 77
Draft Code of Crimes Against the Peace and Security of Mankind (GAOR, 1996) ........ 77
B. Prosecution in the Ad Hoc International Tribunals ....................................................... 77
Ad Hoc International Criminal Tribunal for the Former Yugoslavia (ICTY), p. 751 ... 77
Imposed criminal jurisdiction on states without their consent – Revolutionary ............. 77
The Prosecutor v. Dusko Tadic ..................................................................................................... 78
Ratio: the establishment of ad-hoc tribunals is a power that the Security Council holds
under UN Charter article 41 ................................................................................................................... 78
The Prosecutor v. Dusko Tadic (p759) ....................................................................................... 78
Ratio: Under the ICC statute no nexus with war is needed to prosecute for crimes
against humanity; however, under Geneva Conventions/ICTY statute, to prosecute for
“grave breaches” (genocide/crimes against humanity), there must be a nexus with
“international armed conflict;” recent state practice/declarations may show a shift in
opinio juris, but not enough to crystalize CIL yet .......................................................................... 78
The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case .............................. 78
Ratio: During the relevant time the acts alleged were committed, the conflict in Bosnia
can be considered to have been an international armed conflict, as external forces
were involved in internal conflicts; therefore Geneva Conventions/ICTY Statute apply
............................................................................................................................................................................. 78
Ad Hoc International Criminal Tribunal for Rwanda (ICTR), p. 766 ............................... 79
The Prosecutor v. Jean-Paul Akayesu ......................................................................................... 79
Principle of Command Responsibility...................................................................................... 80
Prosecution v Perisic, ICTY ............................................................................................................ 80
Ratio: P. didn’t have “specific direction” of forces who committed massacres; specific
direction is necessary element for prosecution to prove BARD in aiding/abetting ....... 80
C. The International Criminal Court ......................................................................................... 80
1998 Rome Statute of the International Criminal Court, p. 776 ........................................ 81
D. National Prosecution of International Crimes ................................................................. 83
Crimes Against Humanity and War Crimes Act (Canada, 2000), p. 810 ......................... 83
R v Munyaneza: indicted by QCCS for participation in Rwandan genocide after being
arrested in Toronto; convicted to life in prison no parole for 25yrs (1st degree murder)
............................................................................................................................................................................. 83
R. v. Imre Finta................................................................................................................................... 83
Ratio: to have jurisdiction under CC 7(3.71) for crimes not committed in Canada, must
be war crimes/crimes against humanity of particular “cruelty and barbarism”; here,
acts don’t constitute such ........................................................................................................................ 83
Ex Parte Pinochet (No. 3), 2000.................................................................................................... 84
Ratio: heads of state retain immunity for acts done in official capacity after retirement,
but not for crimes against humanity; P. doesn’t have immunity, can be extradited ....... 84
Yerodia Case (Belgium v. Congo), 2000 ..................................................................................... 84
Ratio: no impunity for international laws breached by heads of state; once they vacate
the position, immunity is gone and they can be held accountable ......................................... 84
Protection of Human Rights: Individual and Collective Rights ............................. 85
Kindred 835-856, 884-919 ............................................................................................................ 85
International criminal law looks at responsibility of the individual; HR law looks at
responsibility of the state ........................................................................................................................ 85
Universal Declaration of Human Rights (1948) ..................................................................... 85
8
International Covenant on Civil and Political Rights (ICCPR) (149 parties) ................. 86
Provides negative rights; freedom FROM infringement; creation of HR Committee that
hears petitions from individuals or states ........................................................................................ 86
International Covenant on Economic, Social, and Cultural Rights (ICESCR) (146
parties) ................................................................................................................................................ 86
Provides positive rights; rights TO provide certain things; resource driven; “one man,
one vote means nothing without one man, one bread” (Tanzania) ....................................... 86
Toonen v. Australia .......................................................................................................................... 87
Ratio: HR Committee sidesteps the real question which is about international law with
regards to homosexuality; HR Committee instead rules on question of infringement of
privacy ............................................................................................................................................................. 87
Velasquez Rodriguez Case ............................................................................................................. 88
Ratio: states have obligation to organize gov to ensure capability of ensuring free and
full enjoyment of HR by its citizens; see also ICCPR art. 2(1) ................................................... 88
B. Human Rights Standards.......................................................................................................... 88
1. Classifying Rights ........................................................................................................................ 89
2. Treaty Human Rights ................................................................................................................. 89
Committee on Economic, Social and Cultural Rights, General Comment, The Nature of
States Parties Obligations, p. 852) .............................................................................................. 89
3. Customary Human Rights ........................................................................................................ 90
Restatement of the Law, Foreign Relations Law of the United States, American Law
Institute (1987) ................................................................................................................................. 90
4. Universality of Human Rights and Cultural Diversity.................................................... 90
Cultural relativism has replaced arguments based on state sovereignty as greatest
challenged to HR law ................................................................................................................................. 90
Compliance and Enforcement ..................................................................................................... 91
Filartiga v. Pena-Irala (p. 917) .................................................................................................... 92
Ratio: US alien Tort Statute allows Fil to claim dmgs against PI, another US resident, for
HR abuses committed in Paraguay; torture, violation of law of nations; jurisdiction
granted on personal jurisdiction (nationality of victim, in this case the father) .............. 92
Bouzari v. Iran ................................................................................................................................... 92
Foreign states cannot be held civilly liable in domestic courts for injuries committed
abroad, even for breaches of jus cogens, because of the principle of sovereign equality
............................................................................................................................................................................. 92
Part 10 (b) – Collective Rights and Self-Determination ..................................................... 92
East Timor Case................................................................................................................................. 93
Ratio: right to self-determination is “one of the essential principles of contemporary
international law”, generating obligations erga omnes for all states .................................... 93
Mi’kmaq Case ..................................................................................................................................... 93
Ratio: ICCPR provision on self-determination can’t be invoked to violate the territorial
integrity of a sovereign state that governs democratically, treats subjects equally, etc.;
ICCPR is meant to consider individual, not collective HR .......................................................... 93
U.N. Draft Declaration on the Rights of Indigenous Peoples, 1994 (p.8 98) .................. 94
NB: Canada abstained on this declaration ........................................................................................ 94
Glendon, “Universality Under Siege” .......................................................................................... 94
John Peters Humphrey, “First Draft of the Universal Declaration of Human Rights
(1947)” ................................................................................................................................................. 95
Mutua, “Change in the Human Rights Universe” .................................................................... 95
Batliwala, “When Rights go Wrong”........................................................................................... 95
Thomas v Norris [1992] BCSC CanLII 354 ................................................................................. 95
9
Department of Indian and Northern Affairs Canada, “Statement of the Government of
Canada on Indian Policy, 1969 (the White Paper, 1969) ..................................................... 95
State Immunities .................................................................................................................... 95
Kindred 285-296, 305-311, 322-331 .......................................................................................... 95
1. Immunity Generally ................................................................................................................... 95
Congo v. Venne (SCC, 1971) ........................................................................................................... 95
Ratio: example of state sovereignty blocking liability, arguably in commercial context,
which is supposed to be exception to immunity; this employment of Absolute
Immunity changed with the State Immunity Act ........................................................................... 95
The Schooner Exchange v. M’Faddon (p. 286) ......................................................................... 96
Ratio: immunity applies to the public property of a sovereign nation on domestic
territory........................................................................................................................................................... 96
2. Scope of Immunity ...................................................................................................................... 96
State Immunity Act (Canada, 1985), page 292 ....................................................................... 97
Where a state recognizes the jurisdiction of the court through word or action,
immunity can’t be claimed; also exception for commercial activity and criminal
proceedings ................................................................................................................................................... 97
UN Convention on the Jurisdiction Immunities of States and Their Property (p296) 97
Commercial Activity Exception to Immunity ......................................................................... 97
Most common situation where a state loses its immunity from suit is when it has
engaged in a commercial activity (s.5 State Immunity Act); Very difficult to draw the
line between jus imperii (sovereign acts) and jus gestionis (commercial acts) ................. 97
Tendex Trading Corp. v. Central Bank of Nigeria, U.K. C.A. [1977] – per Denning (p.
307) ....................................................................................................................................................... 97
Ratio: application of Restrictive Immunity; this was commercial transaction; makes no
difference that concrete ordered was used to build barracks, no immunity; contrast
with Congo v Venne ..................................................................................................................................... 97
Personal Injury Exception to Immunity .................................................................................. 98
In addition to commercial activity, states can be subject to the jurisdiction of courts in
proceedings involving “death, personal or bodily injury, or damage or loss of
property”: State Immunity Act, s. 6. .................................................................................................... 98
Schreiber v. Canada (SCC, 2002), p. 323 .................................................................................... 98
Ratio: Court allows that mental injury may be a ground for exception to state immunity
under “personal injury” category where it is inordinately long or under abusive
conditions, but not for legal and commonplace detention as was seen here ..................... 98
Bouzari v. Islamic Republic of Iran (SCC, 2004), p. 325 ........................................................ 99
Ratio: the State Immunity Act must be read strictly, and does not offer exceptions to
state immunity under any other grounds than those provided; Canada is entitled to
legislate contrary to its international obligations ......................................................................... 99
Foreign Legations Case ................................................................................................................. 100
Must presume that the legislature intended to act in accordance with customary
international law, unless the statute specifically provides otherwise, in which case,
PARLIAMENTARY SUPREMACY ........................................................................................................ 100
Filartiga v. Pena-Irala ................................................................................................................... 100
NB: case where US found for the plaintiff under the Alien Tort Statute for an act of
torture committed in Paraguay .......................................................................................................... 100
Envoy loses right to drive over drinking, (2002) Toronto Star ........................................ 100
Jackman, “A Case of International Intrigue: Saudi Prince Claims Diplomatic Immunity
in Home Improvement Dispute” (2001) Washington Post ................................................ 100
10
State Responsibility ............................................................................................................ 100
Kindred 372-418 ............................................................................................................................. 100
A. General Theory of Responsibility ....................................................................................... 101
1. General Principles .................................................................................................................... 101
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 101
2. Basis of Responsibility ............................................................................................................ 102
Corfu Channel Case: UK v. Albania [ICJ 1949] ........................................................................ 102
Ratio: a state can be held liable for dmgs cause to another state if it knew or ought to
have known about a possible risk and failed to warn the other state; a state cannot
knowingly allow its territory to be used for illegal acts .......................................................... 102
Cosmos 954 Claim – Canada v. USSR ........................................................................................ 103
Ratio: treaties will sometimes set out the standard of liability between signatory
parties; suggests absolute liability for ultra-hazardous activities as general principle of
international law; violation of sovereignty establishes prima facie obligation to pay
compensation ............................................................................................................................................ 103
3. Attribution ................................................................................................................................... 104
a) Acts of the State ......................................................................................................................... 104
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 104
T.H. Youmans Claim, US v. Mexico [General Claims Commission, 1926], p. 649 ......... 105
Ratio: State can’t invoke abuse of authority by its agents to block a claim, where agents
were acting within their mandate – strict liability standard ................................................. 105
b) Acts of Private Persons........................................................................................................... 105
Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v. U.S. (ICJ,
1986) .................................................................................................................................................. 106
Ratio: no liability for US; they did not have ‘effective control’ of the Contras forces .. 106
Prosecutor v. Tadic (ICTY, 1999) ............................................................................................... 106
Ratio: Yugoslavian authorities had overall control that went to planning and
supervision, which amounts to effective control ........................................................................ 106
US Diplomatic and Consular Staff in Tehran Case (ICJ, 1980).......................................... 106
Ratio: If a state doesn’t have effective control of those perpetrating the crimes but
adopts the conduct after the fact, they can be held responsible for the conduct
retroactively ............................................................................................................................................... 106
c) Acts of Insurgents ..................................................................................................................... 106
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 106
Acts of insurrectional movement that becomes new gov of state will be considered acts
of that state; same deal if insurrectionists form new state..................................................... 106
Asian Agricultural Products Ltd. v. Sri Lanka (ICSID, 1991) ............................................ 107
Ratio: State on whose territory an insurrection occurs must exercise the care of a
reasonably well-organized modern State in providing protection to foreign investors;
failure to meet this minimum standard of care will result in liability ............................... 107
d) Acts of International Organizations .................................................................................. 107
4. Circumstances Precluding Wrongfulness (Defences) .................................................. 107
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 108
Consent (20), Self Defence (21), Countermeasures (22), Force Majeure (23), Distress
(24), Necessity (25)................................................................................................................................. 108
Gabcikovo Case - Hungary/Slovakia (ICJ, 1997) ................................................................... 108
11
Ratio: to invoke necessity, there must be a ‘grave and imminent peril’; apprehension of
a possible peril is not sufficient.......................................................................................................... 108
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories......................................................................................................................................... 109
Ratio: necessity defence only available in cases of grave and imminent peril where no
other options available; Israel hasn’t shown that the Wall was the only option to
protect itself from attack....................................................................................................................... 109
5. Consequences of International Responsibility............................................................... 109
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 109
Continued duty of performance (29), Cessation and Non-repetition (30), Reparation
(31) ................................................................................................................................................................ 109
Chorzow Factory (Indemnity) Case (PCIJ, 1928), p. 666 .................................................... 110
Ratio: Restitution is the preferred form of reparation for dmgs caused to another state;
reparation is always made to the state, not individuals, however dmg suffered by
individuals is convenient scale for calculation of dmgs suffered ......................................... 110
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 110
Reparation can be: Restitution (35), compensation (36), satisfaction (37) or
combination of any of them (34) ....................................................................................................... 110
6. Elements of Aggravated Responsibility ............................................................................ 111
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 111
For serious breaches that involve violation of peremptory norms (40.1: ex. torture,
genocide, etc.) involving a gross or systematic failure to fulfill obligations (40.2); calls
for collective measures to bring an end to breach (41) ........................................................... 111
B. Diplomatic Protection ............................................................................................................. 111
1. Espousal and Nationality of Claims .................................................................................... 111
International Law Commission, Draft Articles on Diplomatic Protection (2004) ..... 111
State can exercise diplomatic protection of its nationals (3), and also non-nationals if
they are stateless/refugees habitually resident when they suffer the injury/make the
claim (8) (but can’t in case of injury caused by state of nationality of refugee) (8)..... 111
Mavrommatis Palestine Concessions Case, Greece v. UK (PCIJ, 1924) ........................... 112
Ratio: a state has a right to protect its subjects when injured by acts contrary to
international law; this right is discretionary, limited to state’s intervention on behalf of
its own nationals (subject to provisions of Draft Article 8 above for refugees and
stateless persons) .................................................................................................................................... 112
2. Exhaustion of Local Remedies and Waiver of Claims................................................... 112
International Law Commission, Draft Articles on Diplomatic Protection (2004) ..... 112
Injured persons have to exhaust all local remedies including appeals before state can
bring international claim (14-16) ..................................................................................................... 112
Mavrommatis Palestine Concessions Case, Greece v. UK (RIAA, 1956) ......................... 112
Ratio: Unless a local remedy would be ‘obviously futile’, complainant must exhaust it
before turning to state espousal (Draft Article 14).................................................................... 112
Prior Waiver of Claim: The Calvo Clause ............................................................................... 113
North American Dredging Company (NADC) Claim (RIAA, 1926), p. 714 ..................... 113
Ratio: the Calvo Clause prevents NADC from turning to US for enforcement of the K,
but not for protection relating to violations of international law (this right belongs to
the state); however, in this case NADC didn’t exhaust any of its other options, so can’t
work; illuminates argument over applicability of Calvo Clauses ......................................... 113
12
3. Canadian Practice ..................................................................................................................... 113
Canadian Espousal of Claims (Department of External Affairs, 1987), p. 716 ......... 113
C. Invocation of State Responsibility ...................................................................................... 114
1. General Principles .................................................................................................................... 114
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 114
State that was injured can bring a claim (42), group of states injured by same wrongful
act can respond separately (46), where there is more than one state guilty of same act,
responsibility of each state can be invoked (47) ........................................................................ 114
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 114
If there is a collective interest at stake, a non-injured state can invoke responsibility; ie
when it is a violation erga omnes at stake (48) ........................................................................... 114
2. Countermeasures ...................................................................................................................... 115
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001 ....................................................................................... 115
Limits for countermeasures (49-53) ............................................................................................... 115
International Dispute Resolution .................................................................................. 115
Kindred 372-418 ............................................................................................................................. 115
The World Court............................................................................................................................. 116
Jurisdiction of the Court .............................................................................................................. 117
Fisheries Jurisdiction Case (Spain v. Canada) ....................................................................... 118
Ratio: reservations made by a state in respect of consent to ICJ’s jurisdiction must be
read giving attention to the intention of the declaring state as inferred from the text of
the relevant clause ................................................................................................................................... 118
Decisions of the Court .................................................................................................................. 118
Advisory Opinions ......................................................................................................................... 119
Legality of the Threat or Use of Nuclear Weapons (1996) ................................................ 119
Ratio: Court should not refuse to give an advisory opinion where jurisdiction is
fulfilled; it is not deciding a dispute, just giving advice, so vagueness of question is not
an issue; here court says nukes are illegal, but there might be some extreme cases
where they might be allowed = leaves issue open; Weeramantry dissent. ..................... 119
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (2004) ............................................................................................................................. 120
Ratio: fact that Israel hasn’t accepted court’s jurisdiction on this issue doesn’t matter; it
is an advisory opinion to the GA not a binding decision; court should only refuse to
give advisory opinion in “compelling circumstances” .............................................................. 120
Georgia v Russia Case (Akhavan’s case) ................................................................................. 120
Ariel Incident at Lockerbie (Libya v. UK) ................................................................................ 120
Ratio: possibility of judicial review role of ICJ over decisions of the SC (?) ..................... 120
Address by the President of the ICJ (Schwebel J, 1998) ...................................................... 121
The Use of Force ................................................................................................................... 121
Kindred 1109-1212 ........................................................................................................................ 121
A. Prohibition on the Use of Force ........................................................................................... 122
UN Charter, Art. 2............................................................................................................................ 122
Declaration on Principals of International Law Concerning Friendly Relations (1970,
a GA resolution, but authoritative) ........................................................................................... 122
Military Activities In and Against Nicaragua (Nicaragua v. US), ICJ, 1996 (p. 1113)
.............................................................................................................................................................. 123
13
Ratio: ‘Armed Attack’ at art 51 UN Charter is a much narrower concept than ‘use of
force’ at art 2(4) UN Charter; right to used armed force in self-defence is only triggered
by ‘armed attacks ..................................................................................................................................... 123
Definition of Aggression, UN GA Res 3314 (1974), p. 1127 ............................................... 123
Adopted unanimously; this is what SC uses to determine under UN Charter 39 whether
a direct/indirect use of force is in contravention of the Charter or not; however,
nations don’t usually argue that there actions aren’t in contravention, they usually just
argue a justification (see below)........................................................................................................ 123
B. Justifications for the Use of Force ....................................................................................... 125
* Excuses for Intervention (Williams and Mestral) ............................................................. 125
1. The Right to Self Defence........................................................................................................ 126
UN Charter, Art 51 .......................................................................................................................... 126
The Caroline, UK v. US (1837), p. 1138..................................................................................... 126
Ratio: to be legitimate, self-defence (pre-emptive strikes) must be necessary (instant,
overwhelming) and proportionate ................................................................................................... 126
Nuremberg War Crimes Trials (IMT, 1947), p. 1140 .......................................................... 127
Ratio: preventive action in foreign territory is only justified in cases of ‘instant and
overwhelming necessity for self-defence (Caroline) ................................................................. 127
Israeli Attack on Iraqi Nuclear Research Centre – Security Council Debate, 1981 (p.
1141) .................................................................................................................................................. 127
Ratio: SC unanimously finds that Israel owes Iraq reparation for premeditated and
unprovoked attack; US believed it was only against IL because Israel had failed to
exhaust non-violent means .................................................................................................................. 127
A More Secure World: Our Shared Responsibility (UN Panel, 2004), p. 1147 ............. 128
UN Charter 51 allows pre-emptive self-defence but only where threat is imminent;
otherwise, requires SC approval ........................................................................................................ 128
2. Self-Defence of Nationals ........................................................................................................ 129
The Entebbe Raid – SC Debate (1976) ...................................................................................... 129
Ratio: argument that terrorists are hostis humani generis; defence of nationals where
state they’re in is unwilling or unable is legitimate use of self-defence where force used
is proportionate ........................................................................................................................................ 129
3. Humanitarian Intervention ................................................................................................... 130
Shift from language of a “right” to intervene to a “responsibility” to protect threatened
populations ................................................................................................................................................. 130
The Responsibility to Protect (International Commission on Intervention and State
Sovereignty (ICISS), Dec. 2001), p. 1170.................................................................................. 130
State sovereignty implies responsibility to protect people in the state; if gov of that
state is unwilling/unable and population is suffering serious harm, principle of nonintervention yields to international responsibility to protect; use of force last resort
and requires proportionality .............................................................................................................. 130
4. Collective Measures Pursuant to the UN Charter .......................................................... 131
UN Charter: Responsibility of UN Member States (2, 24, 25) ............................................ 131
UN Charter: Chapter VII (39-51) ................................................................................................ 131
Uniting for Peace Resolution, GA Res 1951 ............................................................................ 132
Sets out conditions where majority of GA or SC could implement measures where SC
reaches impasse; probably doesn’t include right to authorize use of force Chapter VII
but can recommend and expense measures to preserve peace/security ........................ 132
Iraq-Kuwait Crisis (1990-91), p. 1182 ..................................................................................... 132
First time the SC exercised something approaching its full Chap. VII powers; after
steady escalation of non-violent measures, authorized “all necessary means” to kick
14
Kuwait out (open season); most extensive sanctions ever used by SC; US asserted
collective self-defence; first time SC recognized collective self-defence where assisting
state had not itself been attacked and no special treaty calling for assistance between
the states...................................................................................................................................................... 132
Responses to State-Sponsored Terrorism ............................................................................... 133
SC Res. 748 (1992) – unanimous (Libya) ................................................................................ 133
Law and Right: When they don’t fit together, The Economist .......................................... 134
15
The Normativity of International Law
Kindred 1-12
Jenks: International law is “a common law of mankind”
Develops from the sovereign states within the international community
How to enforce laws in a global society with no legislature, executive authority, etc.?
 Invasion of Iraq 2003: when it counts, international law fails to influence, much less
constrain, the powerful (2)
However, this ignores all the times where international law is followed and holds the exceptions as
the rule
 Ex. Postal service, diplomatic immunity, etc.
 Louis Henkin: “Almost all nations observe almost all principles of international law
and almost all of their obligations almost all of the time” (3)
 This ignores the situations where international law often doesn’t work; where fundamental
state interests are at stake and the use of military force is a political option
Positivism: (Cornelius van Bynkershoek, Hart) Law should be developed with reference to the actual
behavior of states; law can be defined as a body of rules
 Hart: the moral critique of law is necessary, but separate from law itself
 Voluntarism: States participate in the legal system as a matter of choice; direct outgrowth of
the preoccupation with sovereignty of those such as Machiavelli
 All law is grounded in the consent of states
 Fails to explain existence, evolution of customary law; overemphasizes the role of states in
the creation of law
Realism: (Posner) The law is completely derived from practice, and particularly from decisions of
courts, and concrete legal decisions are generally taken on the basis of policy considerations
 Rejects positivism; legal norms must be assessed against the trends of past decisions
 New Haven School (Lasswell and McDougal) most influential of contemporary international
law theories
Critical legal studies movement: (Koskenniemi) international law challenges social actors in
dominant positions rather than simply cloaking them with power
 States are more likely to comply when international laws are seen as legitimate
International law was the product of free interstate diplomatic relations, centered in Europe
 This had the side effect of having direct connections and influence on the colonization of the
19th century of much of the undeveloped world
 International law thus formed part of the toolbox of colonial domination and
repression
As more states joined the community, more perspectives were added and the role and purpose of
international law began to be questioned
 Ex. Soviet views; more recently, Latin American and African views
International law in the UN era has been forced to adapt very quickly
 One of biggest challenges has been to promote greater legal responsibility for international
actors in a variety of areas that will be discussed in the course
Louis Henkin et al, “The Nature of International Law”
1. Law is politics:
 The distinction between law and politics is only partly true; law emerges as a result of
political forces, and the influence of law on State behavior is also determined by political
forces
2. Law is the product of its own normative society
 Domestic law is construct of norms, standards, principles, institutions, and procedures that
serve the purposes of society
 International law is equally a product of its particular society
16

The people within the international society are states
Law and the Changing International Order
International law divides meaningfully between pre and post WWII
 The influence of the horrors of WWII is apparent
 The goals of the UN after WWII were frustrated by the Cold War
 Ideological struggle between new, mostly poor, third world states who often aligned with the
Communist bloc against the West which refused to compromise
End of the Soviet Union marked an extension of the authority/legitimacy of the UN Security
Council (see Gulf War 1991, Somalia 1992)
 Strife in multi-ethnic states resulted in “clamer” for new forms of collective action for
humanitarian assistance necessitating enlargement of the Security Council’s authority (see
breakup of Yugoslavia, Somalia)
Reisman, “International Law After the Cold War”
The Cold War held back the meaningful development of international law
The international political/legal systems are at a threshold of a time of hope
 The expectations of international law will be greater
The period of non-alignment during the Cold War did not mean NO advancement of international
law, it just meant, often, the lowest common denominator of agreement and, hence, advancement
 Ex. Human Rights, Air and Space Law, the law of the sea, etc.
Since the end of the Cold War writers of the former USSR have been stressing the need for
cooperation in international law
 Theories focused on the common interests and values of “all nations”
The Discourse of International Law
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996]
Ratio: There can be no doubt as to the applicability of humanitarian law to threat/use of nuclear
weapons; however, court can’t make any conclusions on the legality of the use of such a weapon were
a state to be in a situation of last resort and extreme self-defence (cop-out by the ICJ)
Issue:
Is recourse to nuclear weapons illegal in light of the principles/rules of international humanitarian
law applicable in armed conflict and of the law of neutrality?
Reasoning:
Large body of customary rules have developed that are “an integral part of the international law
relevant to the question”
* Jus ad bellum: right to war, Jus in bello: laws of waging war
The Hague Convention established the rules of modern warfare
Geneva Conventions protect non-combattants
 Together they form almost a cohesive body: international humanitarian law
New technologies have rendered some specific prohibitions necessary
 Dum-dum bullets, asphyxiating gasses, carpet bombs, mines, etc.
1. Protection of civilian populations; distinguishing between combatant and non-combatants
2. Prohibited to cause unnecessary suffering to combatants; thus prohibited to use weapons that
uselessly aggravate suffering they cause; states do not have unlimited freedom of choice in the
weapons they use
Martens Clause (art.1 para 2 of the Additional Protocol of 1977): in cases not specifically
covered by international law, civilians remain under protection of international law developed by
custom, the principles of humanity, and the dictates of public conscience
 Prohibits a number of types of weapons that cause harm greater than what is
17
necessary/unavoidable to achieve legitimate military objectives
These fundamental rules are to be observed by all States whether or not they have
ratified the conventions that contain them because they constitute intransgressible
principles of international customary law
These fundamental rules include: The Geneva Conventions, the Hague Convention (IV), the
Convention on the Prevention and Punishment of the Crime of Genocide, and the Charter of the
International Military Tribunal
 What applicability to the use of nuclear weapons?
 The fact that they weren’t specifically dealt with in pervious protocols does not have any
legal consequences (Marten’s Clause would apply nonetheless); the newness of the
weapons has no bearing on whether humanitarian law applies to their use
 US/UK/Russia have all confirmed their belief that jus in bello applies to nuclear weapons
* There can be no doubt as to the applicability of humanitarian law to nuclear weapons
The Principle of Neutrality
Hague Convention (V): the territory of neutral powers is inviolable
 This applies equally to conventional military forces as to the potential damage caused by the
use of nuclear weaponse
Different views on the legality of the use of nuclear weapons during hostilities
 1. Just because it’s regulated by the law of armed conflict doesn’t mean that it’s prohibited
(can be used in cases where civilian casualties are minimal)
 2. Recourse to nukes can never be compatible with the principles of humanitarian law, and
should be prohibited outright (impossible to draw distinctions between civilian/military
targets in their use)
Holding:
Court has insufficient evidence to make a conclusion concerning either PoV
Court must not ignore the right of every state to survival and self-defence; deterrence is a part of this
 Can’t make any conclusions on the legality of the use of such a weapon were a state to
be in a situation of last resort and extreme self-defence

* Treaty of the Non-Proliferation of Nuclear Weapons
 Art. VI: Obligation to negotiate in good faith a nuclear disarmament
* “Apply to all states whether or not they have ratified…”: does this not fly in the face of legal
positivism?
Legality of the Threat or Use of Nuclear Weapons; Dissenting: (Weeramantry)
Ratio: Bland disembodied language should not be permitted to conceal the basic contradiction between
the nuclear weapon and the fundamentals of international law
Reasoning:
The main powers who actually have the nuclear weapons have opposed the advisory opinion now
being given
 It is in the interests of the weak that rights/duties of the powerful in the use of force be
defined
* The question: Does the use of nuclear weapons produce factual consequence of such an inhumane
nature as to clash with the basic principles of humanitarian law?
 Connected point: what of the containability of nuclear war (neutral bordering states)?
1. Euphemisms Concealing the Realities of Nuclear War
Concealing the horrors of nuclear war with words like ‘deterrent’, ‘self-defence’, ‘collateral damage’,
and ‘proportionate damage’ is disgraceful
 Such expressions are detached from their human context and bypass the world of human
suffering, from which and for which humanitarian law has sprung
 Bland disembodied language should not be permitted to conceal the basic
contradiction between the nuclear weapon and the fundamentals of international law
18
2. The Effects of the Nuclear Weapon
The explosive power of the nuclear weapons used on Japan was equal to about 15,000 tons of TNT
(previous to that the biggest was 20 tons)
 Now, nukes are being measured in megatons (1M tons of TNT; would represent
approximately 70 Hiroshimas)
 A single 5 megaton nuke would represent more explosive power than all the bombs used in
WWII
It is unique in its uncontanability in both space and time
(a) Damage to the environment and the ecosystem
 nukes have the potential to destroy entire ecosystems not only with their blast and heat, but
also the ionizing radiation that follows, which can have effects on multiple subsequent
generations of plant life, food chains, etc.
(b) Damage to future generations
 The effects of some of the radioactive agents cause by nukes could last as long as 20,000yrs
 Incontrovertible evidence speaks to the massive pollution of the environment from nukes on
a scale that spans hundreds of generations
 This court would fail in its trust to not take serious note of the ways in which the distant
future is protected by present law
(c) Damage to civilian populations
 It is impossible to limit their effects in either space or time to military objectives
(d) The nuclear winter
 The dust and smoke clouds that would result from multiple nuclear explosions would
accumulate in the atmosphere and blot out the sun, causing massive crop failure and
eventual starvation
(e) Loss of life
 Hiroshima and Nagasaki: 140,000 and 74,000 respectively; these were ‘small’ nukes in
relatively sparsely populated cities (350,000 and 240,000 inhabitants respectively)
(f) Medical effects of radiation
 Instantaneous radiation results from a nuclear blast as well as radioactive fallout
 In addition to immediate effects, there are longer term effects of radiation poisoning that
may effect multiple future generations
 Chernobyl has shows clearly the effects of radiation: can cause cancers, bone marrow
damage, hemorrhage, central nervous system damage, vascular damage, and cardiovascular
collapse, birth deformities, etc.

The Chernobyl explosion was 1/25 of the Hiroshima bomb, which was 1/17 the size of a
megaton bomb
(g) Heat and blast
 The force of the blast and temperature make the number and kinds of injuries endless
(h) Congenital deformities
 Radiation causes genetic damage that can result in: deformed/defective offspring
 Unborn children of parents present when the explosions occurred were born mentally
challenged and generally underdeveloped
 This can last for multiple generations
(i) Transnational damage
 The explosion and subsequent effects of a nuke cannot be contained within a national
boundaries
 It would extend hundreds of kilometres downwind; gamma ray exposure could reach the
human body through radioactivity in the ground, through inhalation, consumption of
contaminated food, etc.
(j) Potential to destroy all civilization
 Could be achieved through the use of a fraction of the nuclear weapons already in existence
in the arsenals of the nuclear powers
 Social institutions would evaporate in the aftermath resulting in social chaos
 Economic structures would regress beyond that of the middle ages
19
 Cultural treasures representing the progress of civilization would be utterly lost
(k) The electromagnetic pulse
 Another feature distinctive to nukes; has effect of throwing electronic devices out of action,
cutting communications, essential health services, etc.
 Travels at immense speed and affects a large area; could also lead to a core melt accident in
other nukes within the affected area
(l) Damage to nuclear reactors
(m) Damage to food productivity
(n) Multiple nuclear explosions resulting from self-defence
(o) “The shadow of the mushroom cloud”
 Symbolic of the fear that the entire post-war generation lies under
4. The Uniqueness of Nuclear Weapons
(sites a list of unique features of the nuke based on the harms they cause listed above)
Juxtapose against these consequences the accepted principles of humanitarian law, and the result can
scarcely be in doubt
5. The Differences in Scientific Knowledge between the Present Time and 1945
Action with full knowledge of the consequences has much greater legal implications than acting
without any knowledge as the Americans did in 1945
6. Do Hiroshima and Nagasaki Show that Nuclear War Is Survivable?
Fact that the nation of Japan came out of the nuclear attacks resurgent and resilient only serves to lull
observers into a sense of false security that nuclear war is survivable
 Bombs were small compared to the ones in existence today
 The bombings ended the war, did not represent a ‘nuclear war’
 The target nation, Japan, was not a nuclear power
 The target cities were not strategic strongpoints either in terms of population or
infrastructure/government, etc.
 Major environmental catastrophe couldn’t occur from these small bombs
7. A Perspective from the Past
Even before the nuke was invented, its idea had been discussed/potential for destruction
contemplated as beyond imagination
 Ex. H.G. Wells “The World Set Free” based on work by Einstein
Potential for human error is present as well (unintentional nuclear war)
8. Violates principle of discrimination between civilian/combatants
9. Equally difficult to discern between damage caused to militant/neutral states
10. Would undoubtedly fall within the definition of Genocide
11. Whether used in aggression or self-defence, the weapons violate human rights
Those arguing against illegality continue as though once the jus ad bellum is met the self-defence
exception gives them exemption from jus in bello
 This is an untenable position juristically and logically
 The legality of the use of force does not justify a breach of humanitarian law
 No exception can be made for the use of nukes in self-defence
The large majority of states oppose nukes and support absolute prohibition
 Resolutions calling for their elimination are legion
Holding:
* The weapon should be declared illegal in ALL situations
International Legal Subjects: States
Kindred, (13-43)
Legal personality determines the ability to make a claim in international law, and international law
itself determines who will have that personality
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
Was originally reserved only for states, but has expanded over the years to include some
non-state international organizations and even some individuals
1. States and Statehood
What criteria for statehood? Recognition by other states
Montevideo Convention on the Rights and Duties of States (1936)
The original criteria for statehood
Article 1
1. A permanent population
a. No minimum requirement. Ex. Nauru: 8,421 in 1982 when it gained statehood
2. A defined territory
a. No minimum requirement here either. Ex. Nauru: 21 square km
b. May come into existence despite border disputes. Ex. Israel
3. A government
a. Can be regarded as the central defining characteristic; governmental capacity to
exercise control over a territory and population
b. Many examples of this principle being stretched. Ex. Croatia, Slovenia, Bosnia after
breakup of Yugoslavia
c. Also examples of civil strife preventing official granting of statehood. Ex. Aaland
Islands Case
i. Finland’s emergence as a state after having been given self-determination
by the USSR in 1917
ii. Finland deemed not to have become a state until after the civil strife began
to subside in 1918
d. Can existing states lose statehood?
i. By joining with another country. Ex. Union of Scotland with England
ii. But what about state that devolves into anarchy? Ex. Somalia
4. Capacity to enter into relations with other states
a. Important element for this is recognition by other states. Ex. In Chloride Industrial
Batteries v F & W Freight Ltd.
i. Island of Jersey deemed to not be a state because UK responsible for all of
its foreign relations
* Independence is also essential factor for statehood
 Capacity to exercise self-determination, etc.
 Independence is a necessary component for the attainment of the status, while sovereignty
is a legal right that flows from it
Austro-German Customs Union Case [1931]
Ratio: Where there is no relation of superiority and subordination, it is impossible to speak of
dependence within the meaning of international law
Facts:
Reference concerning the meaning of the word ‘independence’ within the Treaty of St. Germain of
1919 and the Protocol 1 of Geneva 1922, and the ‘inalienable’ independence of Austria. This was in
reference to a free-trade agreement between Austria and Germany.
Issue:
Does the free-trade agreement violate the independence of Austria according to the Treaty of St.
Germain and Protocol 1 of Geneva 1922?
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Reasoning: (Separate Opinion Judge Anzilotti)
As long as restrictions do not place the State under the legal authority of another State, the former
remains independent, however onerous those obligations may be
 Where there is no relation of superiority and subordination, it is impossible to speak of
dependence within the meaning of international law
The free-trade agreement does not violate Austria’s independence
Holding:
There is no alienation of Austria’s independence; however court also ruled that it would be
incompatible with the Treaty of St. Germain and Protocol of 1922.
2. Recognition
There is no central authority that grants entrance to states to the international community; this
depends on being accepted by the community itself
 Results in the opening of diplomatic relations, exchanging ambassadors, etc.
The Practice of Recognition
1. Claimant must satisfy the legal requirements
2. Public acceptance by another state to respect the claimant as an independent
sovereign equal
* Can be extended to governments, insurgencies, etc. and not just states
S. Williams and ALC de Mestral, “Theories of Recognition”
Constitutive Theory
States are only established as subjects of international law through the will of the international
community through recognition
 What about states that are only recognized by some other states?
 Are unrecognized states bound by international law?
Declaratory Theory/Evidentiary Theory
Recognition is only a formality, and statehood exists before it is given
 Majority of opinion lies with the declaratory theory
Theories are in direct conflict; correct position is probably somewhere between the two
Canadian Practice of Recognition of States [1972]
Letter by the Secretary of State for External Affairs
 State must meet the basic requirements of international law for statehood
 After that, recognition depends on Canadian national interests given the political/economic
consequences of recognition
 State recognition survives changes in government
Approaches to Recognition of Governments [1988]
Memorandum from the Canadian Dept of External Affairs
 Three approaches
1. Express Recognition
 Every time there is an unconstitutional change in government, a review of generally
accepted recognition criteria is done and an express statement made
 Provides clarity, but is cumbersome/time-consuming
2. Tacit Recognition
 As a general rule, when an unconstitutional change of government occurs, it’s business as
usual; Canada’s position vis a vis the new regime is inferred by its relations with it
 Express statements can be used in exceptional situations
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 Flexible but difficult to explain
3. Recognition of States Approach (introduced by Mexico’s foreign minister Estrada in the 1930’s)
 No statements of recognition of governments because it offends the sovereignty of
nations; recognition of states only
 Clear and simple, but policy wise is restrictive
* In 1988 Canada announced it would follow the ‘Estrada Doctrine’ of Recognition of States
Approach
 Allows states to avoid according recognition to foreign governments that it does not see eyeto-eye with; but this is a double edged sword
 Implies that once legal criteria are met, only political considerations will determine
when/if recognition is accorded
 How should other nations react if a province decides to succeed from Canada? Compare to
declaration of statehood of PLO within the Israeli occupied territories of the West Bank and
the Gaza Strip
 What if the creation of the state violates an article of the UN Charter?
Disintegration of Yugoslavia
Prior to 1991, Yugoslavia composed of 6 republics: Slovenia, Croatia, Serbia, Bosnia-Herzegovina,
Montenegro, and Macedonia
 Disintegrated on June 25, 1991 when Slovenia and Croatia unilaterally declared
independence
 Central Yugoslav authorities resisted; called out the armed forces
 Mixed Muslim, Croat, and Serbian population suffered heavily from ensuing violence
The European Community took a communal initiative on recognizing the new states:
 Constituted democratically
 Committed themselves in good faith to peaceful process and negotiation
1. Respect of the UN Charter, commitments in the Final Act of Helsinki, Charter of Paris
especially regarding rule of law, democracy, human rights
2. Guarantees for rights of ethnic/national groups and minorities
3. Respect of inviolability of all frontiers
4. Acceptance of commitments of disarmament, security, regional stability
5. Commitment to settlement of all regional disputes
*Notable addition of human rights criteria for recognition of statehood
International Effects of Recognition
Recognition entails not only rights but also duties
Charter of the Organization of American States [1948]
Art. 12
 Political existence of the State is independent of recognition by other States
 Even before recognition, the State has the right to defend its integrity and independence,
organize itself, legislate, etc.
Art. 13
 Recognition implies that the State granting it accepts the personality of the new State with
all the rights/duties that follow
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Tinoco Arbitration, Great Britain v Costa Rica [1923]
Ratio: * Non-recognition of a gov doesn’t affect the rights/responsibilities of the state, but their
execution is hindered; Treaties in force will continue to bind the state, but may be inoperative during
the period of an unrecognized gov; Foreigners investing in a country with an unrecognized gov have
added risk because their country of origin has no diplomatic channels; in this case C.’s new gov wins
because obligations made by T. were against national laws.
Facts:
In 1914, T. overthrew the gov of Costa Rica, assumed power, called an election, established a new
constitution. 1919, T. retired and moved to Europe. After his gov fell a month later, new gov passed
law nullifying many obligations assumed by T. toward foreigners. B. brought claim on account of
mistreatment of its nationals.
Reasoning:
B. argues that the T. gov was sovereign and the new gov can’t just renege on its obligations
C. argues that the T. gov was not de facto or de jure gov according to the rules of international law
T. peacefully governed for 2 years after seizing control from the former president
 There is no real evidence that his rule was not peaceful
* Real Question: must his government be considered a link in the continuity of the Government of
Costa Rica?
It is argued that many leading powers refused recognition of the T. gov, and this is the chief/best
evidence of the existence and continuity of a government
 The T. gov was recognized by 20 states (with notable exceptions like UK, US, Fr, Italy)
 Non-recognition loses value when it is based solely on irregularity of origin instead of the
sovereignty it controls, which is what international law is concerned with
C. also argues that UK is estopped from asserting that the T. gov was legitimate now since it
never recognized it before
 This can certainly be used against it to disprove the character of the T. gov that it now seeks
to uphold, but doesn’t bar UK from changing its position
Holding:
British claim ultimately rejected because the obligations undertaken by the T. gov were invalid under
the law in existence under the T. regime.
Sovereignty and Equality
Rights: exclusive control of the territory, permanent population, etc.
Duties: not to intervene in the domestic affairs of other states, obligation not to resort to aggression
or armed conflict, etc.
Island of Palmas Case, Netherlands v United States [1928]
Ratio: “Sovereignty in the relation between states signifies independence. Independence in regard to a
portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of
a state;” If a title has already been completed based on continuous peaceful sovereignty a newcomer
can’t, based on inchoate title, push them out (This case is the major authority on title to territory).
Facts:
In 1898, Spain ceded the island of Palmas to the US. In 1906 during a visit, a US official found the
Dutch flag flying. The two states then submitted the question to arbitration of which state had
sovereignty.
Reasoning:
Territorial sovereignty involves the exclusive right to display the activities of a State, and
corresponds with a duty to protect within the territory the rights of other States
 Although independence must be demonstrated to acquire statehood, once that status is
achieved, the state has a legal right to its continuance
“Sovereignty in the relation between states signifies independence. Independence in regard to a
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portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions
of a state.”
Netherlands has good title
 It had continually/peacefully occupied the island since 1700’s
 Policed the island, flew flag, took care of infrastructure, etc.
 Spain can’t cede more right to the island than it possessed originally
Holding:
Ruled for Netherlands
* Inchoate title can’t supersede definite title
 If a title has already been completed based on continuous peaceful sovereignty a newcomer
can’t, based on inchoate title, push them out
 Unless through Conquest
* Established States have a legal right to their continued independence
 Ex. Kuwait in 1990
 When Iraq invaded, it lost its independence in fact. However, it’s right to
independence didn’t disappear, and the deprivation thereof by Iraq gave the UN legal
grounds to authorize use of force to restore the situation
Charter of the United Nations Articles 1 & 2
Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to a
breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common
ends.
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance
with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement action.
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6.
7.
The Organization shall ensure that states which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the maintenance
of international peace and security.
Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter Vll.
* The legal doctrine of independence and equality of states as well as self-determination must be
distinguished from the political and economic reality of a finite world
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations [1970]
1. The principle that States shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State or in any other manner
inconsistent with the purposes of the United Nations
- The principle that States shall settle their international disputes by peaceful means in such a
manner that international peace and security and justice are not endangered
- The principle concerning the duty not to intervene in matters within the domestic jurisdiction of
any State, in accordance with the Charter
- The duty of States to co-operate with one another in accordance with the Charter - The principle of equal rights and self-determination of peoples - The principle of sovereign equality of States
- The principle that States shall fulfill in good faith the obligations assumed by them in accordance
with the Charter
2. In their interpretation and application the above principles are interrelated and each principle
should be construed in the context of the other principles. Nothing in this Declaration shall be
construed as prejudicing in any manner the provisions of the Charter or the rights and duties of
Member States under the Charter or the rights of peoples under the Charter, taking into account the
elaboration of these rights in this Declaration;
3. Declares further that: The principles of the Charter which are embodied in this Declaration
constitute basic principles of international law (jus cogens?), and consequently appeals to all States
to be guided by these principles in their international conduct and to develop their mutual relations
on the basis of the strict observance of these principles.
Declaration was originally a Soviet initiative in 1961
* What legal force does this declaration have?
 International Court of Justice’s decision in
Military Activities In and Against Nicaragua [1986]:
Ratio: Court held that the adoption of the Declaration affords an indication of the legal opinion of
signatory states as to customary international law on the question of the less grave forms of the use of
force
Another big one was the Helsinki Accords (1975)
 Big step easing tensions between East/West
 Discussed frontiers and security mostly
 Also first time both blocs had put their names jointly to a provision about human rights
(even though it was a non-binding affair)
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Types of States
SA Williams and ALC de Mestral, “Federal States”
Union of two or more units comprising a federal political unit and numerous internal political units
 Ex. US, Canada
Most states vest external affairs solely with the Federal gov, others grant limited treaty making
powers to their units (like Switzerland)
 Contested topic; some would the unities’ ability to enter into their own treaties as heralding
the dissolution of the federation
Max Cohen, “Canada and the International Legal Order: An Inside Perspective
Canada’s boundaries weren’t made final until as late as the Alaskan Panhandle dispute in 1903 with
the US
 Before that, was clothed in treaties and war
Roots in Commonwealth, but reality in the realpolitik of living next door to a mega power: the US
 However, Canada has kept its Commonwealth connections as well as the traits it has
developed from it’s bilateral dealings with the US
 Ex. creation of Department of External Affairs in 1928, separate declaration of war by
Canada on Sept. 9, 1939
* The EU is not a federation, but a grouping of independent states that have agreed on limitations in
some areas of their sovereignty
 Integration has become more and more total over the course of its history
Friedrich Nietzsche, “Thus Spake Zarathustra: A Book for All and None”
State is the name of the coldest of all cold monsters. It lies coldly, too, and this lie crawls out of its
mouth: “I, the state, am the people”
 It is a lie! It was creators who created peoples and hung a belief and a love above
them; thus they served life.
It is destroyers who set up pitfalls for many people and call them “state”; they hang a sword and a
hundred inordinate desires above them.
Bauman Zygmunt, “Modernity and the Holocaust”
A journalist interviewed former hijack victims and found unusually high divorce rate amongst
couples who had survived the experience together
 Saw their partners in a new light
Study concluded on the impossibility of spotting in advance the signs of individual readiness for
sacrifice, or of cowardice in the face of adversity
Did the Holocaust merely uncover another face of the same modern society whose other, more
familiar, face we so admire?
 Every ingredient of the Holocaust was normal; every step would not have been out of place
in an industrialized society of the same age; only added together did they materialize in the
horrific way that they did
The sovereign state claims as a part of its sovereignty, the right to commit genocide or engage
in genocidal massacres against people under its rule, and the UN for all practical purposes,
defends this right
 Is this really true? What about R2P?
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International Legal Subjects: Peoples
Kindred, (70-100)
Procedural capacity of the individual has begun to be recognized in more cases, especially in
scenarios of protecting the rights of individuals
Peoples seeking self-determination
Groups around the world assert collective rights
 Ex. Quebecois, First Nations, etc.
In UN practice, it has been the basis of decolonization, but without broader application
Charter of the United Nations Articles 1(2), 55, and 73
Article 1(2)
The purposes of the UN are:
To develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to strengthen universal peace
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote:
a) higher standards of living, full employment, and conditions of economic and social progress
and development;
b) solutions of international economic, social, health, and related problems; and international
cultural and educational cooperation; and
c) universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
Article 73
Members of the United Nations which have or assume responsibilities for the administration of
territories whose peoples have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories are paramount, and accept as a
sacred trust the obligation to promote to the utmost, within the system of international peace and
security established by the present Charter, the well-being of the inhabitants of these territories, and,
to this end:
a) to ensure, with due respect for the culture of the peoples concerned, their political,
economic, social, and educational advancement, their just treatment, and their protection
against abuses;
b) to develop self-government, to take due account of the political aspirations of the peoples,
and to assist them in the progressive development of their free political institutions,
according to the particular circumstances of each territory and its peoples and their varying
stages of advancement;
c) to further international peace and security;
d) to promote constructive measures of development, to encourage research, and to co-operate
with one another and, when and where appropriate, with specialized international bodies
with a view to the practical achievement of the social, economic, and scientific purposes set
forth in this Article; and
e) to transmit regularly to the Secretary-General for information purposes, subject to such
limitation as security and constitutional considerations may require, statistical and other
information of a technical nature relating to economic, social, and educational conditions in
the territories for which they are respectively responsible other than those territories to
which Chapters XII and XIII apply.
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Declaration on the Granting of Independence to Colonial Countries and Peoples [1960]
Passed by the UN General Assembly
2. All peoples have the right to self-determination ; by virtue of that right they freely determine
their political status and freely pursue their economic, social, and cultural development
3. Inadequacy of political, economic, social or educational preparedness should never serve as a
pretext for delaying independence.
Goes on to say that the state cannot impede the process, that inadequate social/political/economic
preparedness isn’t an excuse for delaying independence, etc.
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations
Point 5
The principle of equal rights and self-determination of peoples
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter
of the United Nations, all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social and cultural
development, and every State has the duty to respect this right in accordance with the
provisions of the Charter…
Western Sahara Case [1975]
Ratio: It is for the people to determine the destiny of the territory, not the territory the destiny of the
people; self-determination takes precedence over historic title
Facts:
W. had been Spanish colony since 1884. Spain invited to decolonize and asked to consult
neighbouring Mauritania and Morocco to determine procedures for holding referendum. Both states
claimed historic title.
Issue:
To whom does the land go? What influence does self-determination have?
Reasoning:
The application of the right of self-determination requires free/genuine expression of the will of the
peoples concerned
Three main choices open:
1. Sovereign State
2. Free association with an independent State
3. Integration with an independent State
Judge Dillard (separate reasons):
Is self-determination in the context of non-self governing territories a norm of international law?
 Opinion 1: The cumulative impact of many resolutions voted by overwhelming majorities on
the same subject create a norm of customary international law
 Opinion 2: Resisting the law creating powers of the GA, deny that the principle has
developed into any sort of right
He is of the opinion that it does indeed create a right
* It is for the people to determine the destiny of the territory, not the territory the destiny of the
people
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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
[2004]
Ratio: The wall extremely limits the exercise of the Palestinians’ recognized right to self-determination
and constitutes a breach of Israel’s obligation to respect that right; the right to self-determination is
recognized as a legal right erga omnes (binding on all states – in which all states have a legal interest)
Facts:
Court was requested by the GA to give an opinion on the legal consequences arising from the
construction of the wall in the occupied Palestinian territory.
Reasoning:
Principle of self-determination has been enshrined in UN Charter and reaffirmed by the GA many
times over
 States must not take forcible action that deprives peoples of their right to self-determination
Makes reference to the Western Sahara decision
The right of peoples to self-determination is today a recognized legal right erga omnes (binding on
all states, and in which all states have a legal interest: see East Timor Case)
The existence and right of the Palestinian people and the Israeli people to self-determination was
mutually recognized through letters exchanged in 1993 between Yasser Arafat and Yitzhak Rabin
 Each recognized the other
The wall extremely limits the exercise of the Palestinians’ recognized right to selfdetermination and constitutes a breach of Israel’s obligation to respect that right
 It is a violation of certain obligations erga omnes (“towards all”)

Obligations which all States can be held to have a legal interest in their protection
Holding:
Court found that construction of the wall was contrary to international law, and that Israel was
obligated to cease construction and make reparations for dmgs.
* See development of ‘a right to self-determination
 In the East Timor Case (Portugal v Australia), [1995]:
o Court referred to the principle of self-determination as “one of the essential
principles of international law”
What criteria for recognizing a group as a “people”?
 In Palestine Wall Case, court seems to base its finding that the existence of the Palestinian
People is “no longer in issue” on the fact that Israel had recognized them
 Should it be based on: common language, ethnic background, identifiable territory?
 Does Quebec have a right to self-determination?
Reference re Secession of Quebec, [1998]
Ratio: A state whose gov represents the whole of the people resident within its territory on a basis of
equality and without discrimination and respects the principles of self-determination is entitled to the
protection under international law of its territorial integrity; right to external self-determination only
present in extreme circumstances: ex. decolonization; this doesn’t rule out de facto secession, which
would depend, for legitimacy, on international recognition.
Facts:
Governor in Council referred three questions to the court, one of which is relevant for this class.
Issue:
Does international law give the National Assembly, legislature or government of Quebec the right to
effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to selfdetermination under international law that would give the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
Reasoning: (SCC, the Court)
It is clear that international law does not specifically grant component parts of sovereign states the
30
legal right to secede unilaterally from their ‘parent’ state
Argument FOR the right is based on two points:
1. It’s not specifically prohibited anywhere
2. The implied duty of states to recognize the international law right of ‘a people’ to selfdetermination
a. Self-determination is considered a general principle of international law
Even if a referendum succeeded, the right of self-determination isn’t applicable to Quebec
 The right of secession and the dismemberment of the sovereign state is an exceptional
circumstance
Defining Peoples
IL gives right to self-determination to ‘peoples’
 The definition is somewhat uncertain
 No matter whether the Quebec ‘people’ make the cut, it makes no difference; they can’t just
unilaterally succeed
Scope of the right to self-determination
External self-determination can only happen in extreme scenarios (ex. Yugoslavia)
Various international treaties on the subject including the Declaration on Friendly Relations
are clear that a people’s right to self-determination is not to be construed as
authorizing/encouraging any action that would:
 “Dismember or impair…the territorial integrity or political unity of sovereign and
independent States conducting themselves in compliance with the principle of equal rights
and self-determination of peoples.”
* A state whose gov represents the whole of the people resident within its territory on a basis
of equality and without discrimination and respects the principles of self-determination is
entitled to the protection under international law of its territorial integrity
 Disagreement on changes to the constitution do not amount to a denial of selfdetermination
 The external self-determination right only applies in situations of former colonies
where a people is oppressed or where a definable group is denied meaningful access
to government to pursue their political, economic, social, or cultural development
* This does not rule out an unconstitutional declaration of secession leading to a de facto secession
 The ultimate success of this would depend on recognition by the international community
 This would not, however, provide an retroactive justification for the act of secession under
the Constitution of Canada or international law
Holding:
Answer to question 2: No.
State Succession
* Important to note the distinction between state succession and state continuity
 State Continuity: A state continues to exist regardless of changes of government, and is
bound by any acts or engagements of governments that may have become extinct
 State Succession: legal consequences that follow when one state replaces another by
absorption, independence from another state, merger, dismemberment, etc.
Questions follow succession:
 To what extent are the rights/obligations of the predecessor state extinguished/continued?
 Ratione materiae succession: involves treaty rights/obligations, territorial rights,
membership in international organizations, and K rights/obligations, etc.
 Ratione personae succession: includes rights and obligations (i) between the new State and
the predecessor State, (ii) between the new State and third States, (iii) of the new State with
respect to individuals (not subject governed by settled rules)
Changes of government and State Continuity
The new government inherits the rights/obligatinos of the persisting state and its act bind the state
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Tinoco Arbitration, Great Britain v. Costa Rica, [1923]
Ratio: principle of State Continuity is the international norm; obligations entered into by previous govs
bind subsequent govs; this case is exception since T. bound Costa Rica to obligations that were against
its national laws, so they are unenforceable.
(see more info above)
It is well settled international law that (Dr. John Bassett Moore): “Changes in government or in the
internal policy of a State do no as a rule affect its position in international law”
 “Though the government changes, the nation remains, with rights and obligations
unimpaired…. The principle of the continuity of States has important results.”
The rights and obligations of a state survive changes in gov whether they be legal or revolutionary
Succession to Rights and Obligations
Succession to Treaties:
SA Williams, “International Legal Effects of Secession by Quebec”
Classic way to decide whether a particular treaty applies is to ask whether the treaty is ‘personal’ or
‘real’
Personal Treaties
 based on premise that parties will continue unchanged; are primarily political concerned
with alliances, mutual defence pacts, etc.
Real Treaties
 comprise boundary treaties and others concerning the rights of transit over territory; law is
far from certain
Post-colonial practice has gone in a few directions
1. Assumption of all of the obligations by the former colonial master state for the former colony
state
2. Acceptance of all obligations for a short trial period, followed by declaration specifying
which treaties would be accepted
3. Adherence to rules of international law, but avoidance of adherence to any specific treaty
4. General declaration of succession to treaties
The Vienna Convention on Succession of States in Respect of Treaties attempts to codify the
customary international law in this area
 General principle of non-devolution of obligations for newly independent states
 For Quebec, Art. 34 is important
 Says that in the case of a new State being formed from separation, the successor is bound by
all treaties of its predecessor
However, Canada is not a party to the Vienna Convention; therefore QC wouldn’t be bound by it,
but would still be bound by principles of customary international law
Vienna Convention on Succession of States in Respect of Treaties, [1978]
Articles 2, 8, 9-12, 15-17, 24, 34 on page 92 Kindred
* Where territorial changes occur, treaties will likely be terminated either by provisions concerning
denunciation, or through rebus sic stantibus (doctrine of “fundamental change of circumstances”)
Mahatma Gandhi, “Selected Political Writings: Swaraj”
Swaraj is “infinitely greater than and includes independence”
32
 It’s about India “coming to her own”
 Through peaceful protest and defiance of English rule
His argument worked because it used the British moral values against them
 He used their own arguments and venerated philosophers against them
 He shamed the British by demanding respect for their own moral values
International Legal Subjects: International Organizations
Kindred (43-64)
SA Williams and ALC de Mestral, “Intergovernmental Organizations”
Must be differentiated from non-governmental organizations
IGO’s are set up by agreement between states
NGO’s are set up by individuals
The United Nations
Charter of the UN arts. 1, 2, 7-39, 55-105
1: purpose of the UN
2: principles of the UN
9, 10, 18, 23, 24, 27: composition, powers and voting procedures of the GA as compared to the
Security Council
33: responsibilities of member states regarding disputes
36, 39: powers of the Security Council over disputes
55, 62: purposes/powers of the Economic and Social Council
Ch.6, Section D: ICC is considered
United Nations’ Principles and Processes
High minded expectations of the UN Charter have created equally high expectations of the UN
itself which haven’t always been met
 UN’s ability to cope with international catastrophe is only as great as that which the member
states give it
 Creates balance of authority/powers between GA and Security Council
Chronology of events in Iran hostage and Afghan invasion crises
 Where did the failures occur in the sequences of events leading to UN inaction?
UN Charter Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter.
Namibia Case, Legal Consequences for States of the Continued Presence of South
Africa in Namibia Notwithstanding Security Council Resolution 276, [1970]
Ratio: Member states are under an obligation to follow the resolution of the Security Council and all
member states are under an obligation to recognize the illegality of SA and to refrain from lending
support/recognition/assistance to SA as concerns Namibia: UN Charter 25
Facts:
South Africa’s mandate over Namibia ended, but it refused to leave. Security Council then passed
Resolution 276 making SA’s presence there illegal and its actions invalid. Security Council then asked
for an advisory opinion.
33
Issue:
What are the legal consequences for states of the continued presence of SA in Namibia,
notwithstanding the Security Council’s resolution 276?
Reasoning:
Only the material breach of a treaty justifies termination: VC 60
1. A repudiation of the treaty not sanctioned by the Vienna Convention
2. The violation of a provision essential to the accomplishment of the object of purpose of the
treaty
GA resolution 2145 determines that both forms have occurred here
The mandate is the same as was passed by the League of Nations
 SA contends that the LoN never had the power to terminate a mandate for misconduct, and
therefore no such power can be passed to the UN
The UN as successor to the LoN is the supervisory institution competent to pronounce on the
conduct of the mandatary states with respect to international obligations, and competent to
act accordingly
When the Security Council adopted resolutions stating that SA was illegal in Namibia and not to deal
with them, they were acting in what they believed was its primary responsibility: maintenance of
peace and security
 UN Charter art. 24: vests in the Security Council the necessary authority to take action in
order to maintain international peace and security
 The only limits on these powers are the fundamental principles and purposes of Chapter I of
the Charter
Declaring a situation illegal is only the first step; in line with the Security Council’s
declaration, UN member states must act in accordance with the enforcement measures called
for at art. 25
 Art 25 does not only apply to enforcement measures under Chapter VII
 The decisions of the Security Council are binding on all member states of the UN
* A declaration of the illegality of the situation understands an obligation of putting an end to
the illegal situation
 Member states are under obligation to recognize the illegality of SA
 To refrain from lending support/assistance to SA
 No state that enters relations with SA concerning Namibia may expect the UN or its members
to recognize the validity or effects of such relationship or its consequences
Holding:
Member states are under an obligation to follow the resolution of the Security Council and all
member states are under an obligation to recognize the illegality of SA and to refrain from lending
support/recognition/assistance to SA as concerns Namibia.
Aerial Incident at Lockerbie Case, [1992]
Ratio: decision of the Security Council rendered binding under UN Charter 25 overrides the Montreal
Convention treaty.
Facts:
US told Libya that it had to give up 2 terrorists that it was harbouring from the bombing of Pan Am
flight 103 over Lockerbie, Scotland. Under the 1971 Montreal Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, Libya bound to extradite or prosecute the two.
Libya then applied to the Court for provisional measures against the US because it said it was
fulfilling its obligations to prosecute. Security Council ordered Libya under Chapter VII to hand the
terrorists over under pain of economic sanctions.
Issue:
Does the decision of the Security Council override the binding obligations of the treaty?
Reasoning:
The court decided that the Security Council’s decision rendered binding by article 25
34
prevailed over the Montreal Convention
Overriding character of the Security Council resolution
Reparations Case, [1949]
Ratio: The UN is a subject of international law capable of possessing international rights/duties, and is
capable of maintaining its rights by bringing international claims against states
Facts:
In 1948, a Swedish national and UN mediator in Palestine were killed in Jerusalem which was under
Israeli possession. Israel was not yet a UN member state. GA asked the Court for an opinion about the
legal capacity of the UN to bring the claim.
Issue:
Does the UN have the capacity to bring a claim for reparations against a government?
Reasoning:
The UN exercises rights and functions which can only be explained on the basis of possession of a
large measure of international personality
 It is an international person
 It is a subject of international law and capable of possessing international rights and
duties, and is capable of maintaining its rights by bringing international claims
Any right to seek damages must arise from the breach of a duty, which states owe eachother, but not
the UN
 BUT UN diplomats should not have to rely on the protection of their own state while on
missions of international importance; would jeopardize his impartiality
Undeniable right of the UN to demand that its members fulfill the obligations entered into by
them in the interest of the good working of the UN
 In a case of a breach of these obligations, the UN has the capacity to claim adequate
reparation; in assessing this reparation, it can include the dmg suffered by the victim
 This applies whether or not the dependant state is a member of the UN
There is no principle that places State rights to bring claims or UN rights to bring claims over the
other; common sense and discussion between the State and UN will prevail
Holding:
Yes the UN has International Person status and capacity to bring a claim.
International Legal Subjects: Non-Governmental Organizations
Kindred (65-67)
Prosecution v Simic
Ratio: The right to non-disclosure of information relating to the ICRC’s activities in the possession of its
employees in judicial proceedings is necessary for the effective discharge by the ICRC of its mandate;
the signors of the Geneva Conventions have an obligation to respect this; the ICRC has disclosed in
exceptional circumstances: ex. Rwanda.
Facts:
Concerns a motion from the prosecutors of a case involving war crimes in the former Yugoslavia.
Prosecutors brought motion seeking ruling as to whether a former employee of the ICRC can be
called to give evidence of facts that came to his knowledge by virtue of his employment with the
ICRC.
Issue:
Does the ICRC enjoy a right of non-disclosure over its employees?
35
Reasoning:
Prosecution
Can an employee of the ICRC, a non-aligned historically non-partisan and neutral organization, testify
to his experiences in order to prosecute war criminals?
Reasoning:
Prosecution emphasizes the importance of calling this particular witness in this case
 Refutes any general right in law or otherwise that the ICRC has a right of immunity enabling
it to prevent its former employees from testifying
ICRC
Asserts that allowing former employee to testify to evidence originating from ICRC operations would
be contrary to operating principles and would have disastrous consequences for its future operations
 The testimony of the ICRC employee would have detrimental impact on the ICRC’s
international reputation and legitimacy, which would impeded its ability to furnish the aid
that it is mandated to provide under the Geneva Conventions and the Additional Protocols
 They would be denied access to restricted areas like prison camps and detention facilities if
they thought the ICRC employees would testify against them in the future
The ICRC has made public statements of concern over situations on a few rare occasions, but
only in cases of major/repeated violations as a means to stop an ongoing violation and when
the ICRC is confident such statements will not prejudice its ability to discharge its mandate
 Ex. during the Rwandan genocide
Discussion
The founding principles of the ICRC are impartiality, neutrality and independence, which are
essential to ensuring the confidence of all parties
 Confidentiality is directly derived from neutrality and impartiality
 Is often a precondition to access to certain sites
The court accepts the ICRC’s submission that it has had a general policy as to non-testimony of its
delegates/employees since the Second World War
 It is imperative not to threaten the pivotal role the ICRC plays in the administration of
humanitarian aid through the powers given to it through the Geneva Conventions and their
Protocols
Holding:
The right to non-disclosure of information relating to the ICRC’s activities in the possession of its
employees in judicial proceedings is necessary for the effective discharge by the ICRC of its mandate;
the signors of the Geneva Conventions have an obligation to respect this
GONGO: governmental NGO’s sponsored by govs to influence policy/progress, infiltrate
meetings, etc.
 NGO’s aren’t all peace-loving progressive organizations
 Are terrorist organizations NGO’s?
ICRC is exceptional because it is recognized in the Geneva Conventions to implement/observe
the application of conventions
 Their neutrality/impartiality is their power: “We have no agenda except the humanitarian
cause”
 They get access to places nobody else can reach: ex. prison camps, etc.
 They only go public in exceptional circumstances; ex. Rwandan catastrophe in 1994
International Legal Subjects: Transnational Corporations
Kindred (67-69)
International integration; two narratives
1. Global cooperation; archetype of the EU
36
2.
Global exploitation
Transnational corporations
 Walmart, Exxon, for example, has more economic power than most states
 That economic power can be used to exert political power; makes them powerful actors on
the international stage
Regulation of Transnational Corporations becomes paramount
 Also regulation to enable them to operate; they’re presence can be both a boon and a bane
 Significant opportunity for foreign investment, but sometimes no protection for those
investors in underdeveloped/unstable states
Ex. Deepsea oil drilling
 Just the exploratory well looking for the oil is ~200M$ (takes years to find a viable well
 When you find one, you have to spend billions to get a rig in, get the oil out, transport it,
process it, and distribute it
As an investor, you want to make sure you have risk management
 The gov is not just going to take over and nationalize/expropriate your investment or give
the license to a buffoon
 Ex. Nationalization of the Suez Canal
 You want legal recourse
o But it’s not a level playing field
In terms of norms/jurisdiction:
 Avoid national courts
 Maintain the right to arbitrate internationally
 You want compensation
1. this is the whole point of recourse
They want to be able to play jurisdictions against each other to obtain the best compensation
possible; therefore exist between international and national law
Texaco v Libya
Ratio: Expropriation of property is an uncontested/universally accepted principle of permanent
sovereignty over a state; however, exercise of that right is subject to some conditions (compensation)
Sources: Treaties – ICJ Statute 38(a)
Kindred (107-110, 113-132, 137-147)
The rules of law binding on states emanate from their own free-will as expressed in
conventions or by usages generally accepted as expressing principles of law
Statute of the International Court of Justice
* Article 38 (1): The court’s function is to decided in accordance with international law such disputes
as are submitted to it, and applies:
a) International conventions expressly recognized by contesting states
b) International customs as evidence of general practice accepted as law
c) General principles of law recognized by civilized nations
d) Judicial decisions/teachings of the most qualified experts of various nations as subsidiary
means for determination
(2) The Court can decide a case ex aequo et bono if the parties agree
37
For court to apply any rule of positive international law, must show that rule is product of one or
more of (a)-(c)
 However, under (2) the Court can make a decision “in justice and fairness” rather than on
basis of a strict application of rules of law
Few occasions where Courts have had to express themselves on interplay between several applicable
rules; there is supposed to be no hierarchy between them
 Rare occasion: English Channel Arbitration [1977]
o Concerned delimitation of continental shelf between FR/UK
o Took place while the UN Conference on the Law of the Sea was still in progress;
court recognized the importance of the discussions in progress, but opted to apply
the Continental Shelf Convention of 1958 as a treaty actually existing between the
parties
Customary international law exists and applies separately from international treaty law, even
where the two categories have an identical content
Military Activities In and Against Nicaragua (Nicaragua v US), [1986]
Ratio: One state is justified in terminating the operation of a treaty on the ground of the violation by
the other party of an essential provision of the treaty (Vienna Convention art 60, para 3(b)); But if the
two rules also exist as rules of customary international law, failure of the one state to apply the one
rule doesn’t justify the other State declining to apply the other rule
Treaties
Law-making Treaties: where a substantial number of states have declared what the law is or should
be on a particular topic
1. Treaty-contracts: do no create general rules of international law; they create special
rights/obligations like private law K’s
 Distinction could be questioned since both are purely K nature since they are based
completely on mutual consent
Basic principles set down in the 1969 Vienna Convention on the Law of Treaties (1980)
 Department of External Affairs Memo: “the Convention must be viewed as virtually the
constitutional basis, second in importance only to the U.N. Charter, of the international
community of states.”
Vienna Convention on the Law of Treaties (criteria for treaty)

1.
2.
3.
Read together, Arts. 2/3 set three elements for treaty:
Parties must be subjects of International law
They must intend to create binding obligations under international law
Their agreement must be governed by international law
Anglo Iranian Oil Company Case, [1952]
K between gov of Iran and A-I Oil company held to create no obligations between UK/Iranian
governments; not a treaty, it is a K between the two signing parties only; Vienna Convention only
applies to written treaties between states
* So can statements be legally binding on states?
38
Nuclear Tests Cases: Australia v France, New Zealand v France, [1974]
Ratio: Declarations made by way of unilateral acts concerning legal/factual situations may have the
effect of creating legal obligations; intent is gleaned from interpretation of the act
Facts:
France is not party to the Nuclear Test Ban Treaty, detonated devices over South Pacific. NZ and AUS
commenced these actions. Before they were heard, FR ended tests and unilaterally announced it
would not hold any more in the atmosphere. The court treated claims as moot as a result of its
construction of the legal effect of FR’s announcement.
Reasoning:
Declarations made by way of unilateral acts concerning legal/factual situations may have the effect of
creating legal obligations
 Have to be very specific
 There must be requisite intention to be legally bound
 Must be made publicly
No acceptance or reply is required from other states
Intention is to be gleaned from the interpretation of the act
 When states make statements that restrict their freedom to act, a restrictive interpretation is
called for
Based on Good Faith as well
Holding:
FR is legally bound by the unilateral statement it made
Canadian Treaty Practice
Canadian practice over the years has adopted the following types of agreements:
 International agreements between heads of state
 Intergovernmental agreements; and
 Exchanges of notes
Over 70% of Canadian bilateral treaties since WWII have been in exchange of notes form
Term ‘treaty’ seldom used; invariably requires ratification
Tendency towards ‘Memoranda of understanding’ which are of a political/moral character and
are not regarded as creating legal obligations governed by international law
Conclusion of a Treaty
1.
2.
3.
4.

Representative must have full powers to give consent of his/her state (Vienna Convention
art 7)
Mode of adoption of the treaty has to be agreed upon (VC art 9)
Means to authenticate the definitive text must be settled (VC art 10)
Particular steps to express consent of the treaty must be set down (VC arts 11-16)
Often requires more than a signature
Ratification
Many multilateral law-making treaties don’t come into force until ratified by the signatory states
 Involves internal constitutional matter for each state to resolve themselves
In Canada:
 Ratification is part of the Royal prerogative exercised by the Executive; expressed by means
of an Order in Council issued by the GG, which authorizes the Minister of Foreign Affairs to
sign an instrument of ratification
 Ratification then delivered to the other party in an instrument signed by the Minister
 Instrument called Protocol of Exchange customarily signed at time the exchange of
instruments or ratification takes place
39
* Doesn’t require Parliamentary approval; however, important treaties are often brought
before the Houses for approval anyways; topics like:
 Military/economic sanctions
 Large expenditures of public funds or important financial/economic implications
 Political considerations of far-reaching character
 Obligations the performance of which will affect private rights in Canada
Depends on the gov whether these issues are brought before Parliament or not
* In many circumstances, treaty must be passed through Parliament
 Ratified treaty doesn’t mean anything if it’s not enacted through domestic legislation
Publication and Registration
Art. 102 of UN Charter and Art 80 VC require international agreements to be registered with the
Secretariat of the UN
 Then published in the UN Treaty Series
Department of Foreign Affairs keeps register of all treaties affecting Canada (dates of signature,
tabling, approval by Parliament, etc.)
Entry into Force
Varies according to intention of the parties: Art 24 VC
 On ratification or given period after the event
 Immediately or in given period after signature
 Exchange of Notes: the date of the second note
 Multilateral treaty: upon ratification by a given number of states as stated in the text of the
treaty
Failing specific provisions, takes effect when consent to be bound has been given by all parties
 Parties to a treaty are bound to refrain from acts that would defeat the object/purpose of the
treaty pending its entry into force: VC art 18
Reservations
Unilateral statement made by a state when signing, ratifying, accepting, approving, or
acceding to a treaty where it excludes/modifies the legal effect of certain provisions of the
treaty in their application to that state
 Usually, cannot have reservations unless the rest of the K’ing parties accept (see below)
 They cannot go against the object/purpose of the Convention
Reservations to the Convention on Genocide Case, [1951] ICJ
Ratio: A party that maintains a reservation that is objected to by one or more other parties but not
others can be regarded as being a party to the Convention if the reservation is compatible with the
object and purpose of the Convention (promoting flexibility in treaty formation to entice more states to
sign on)
Facts:
What effect does ratifying the Convention on Genocide with reservations have vis a vis other nations?
Is that nation nonetheless held to comply with it?
Reasoning:
In treaty relations a state cannot be bound without its consent
 However, no reservation is valid unless accepted by all contracting parties
Object and purpose of the Genocide Convention imply that it was the intention of the GA and of the
States which adopted it that as many States as possible should participate
 Don’t want to give up the whole venture because of a few minor reservations, but don’t want
to give up the object of the convention in favour of a vain desire to secure participants either
* It is the compatibility of a reservation with the object and purpose of the Convention that
40
must furnish the criterion for the attitude of a State in making the reservation as well as for
appraisal by a State in objecting to it
 There is no requirement at International Law that all K’ing parties accept the reservation
Signing a Convention does not make a State a party to it; ratification does. However, signing is the
first step to participation and establishes a provisional status in favour of that State
 Until ratification is made, objection of signatory state cannot have legal effect in regard to the
reserving State; merely expresses what the eventual attitude of the State will be
 Therefore, reserving state would have to decide whether to maintain the reservation or not
Holding:
1. A party that maintains a reservation that is objected to by one or more other parties but not
others can be regarded as being a party to the Convention if the reservation is compatible
with the object and purpose of the Convention
2. If a party objects to a reservation which it considers to be incompatible with the object/purpose of
the Convention, it can consider that the reserving State is not a party to the Convention
3. Until ratification, the objection of signatory state serves only as a notice to the other of the eventual
attitude of the signatory State (an objection by a State entitled to sign but which has not has no legal
effect)
*UN has recently been favouring more flexibility in the obligations of treaties by permitting the
contracting parties to enter reservations necessary to make the agreement acceptable
 More flexibility = more States participate
Some treaties don’t allow reservations
 Ex. Rome Statute of the International Criminal Court
Legal Effects of Treaties
Pacta Sunt Servanda
 VC arts 26, 27, and 30
o Art 26: Pacta sunt servanda
o Art 27: Party can’t invoke internal law as excuse for not performing treaty
o Art 30: Application of successive treaties relating to same subject; the later treaty
will apply in situations of conflicting provisions
o Art 31: treaty will be interpreted in good faith
o Art 32: supplementary means of interpretation
 Preparatory work, etc.
o Art 33: treaties authenticated in more than one language
o Art 34: Treaties don’t create obligations/rights for third states unless they agree to
it
Third States
Free Zones Case, France v Switzerland, [1932]
Ratio: Nothing preventing a third State from agreeing to the object and effect of a treaty and thereby
creating rights in its favour if it is willed by the signatory states and the third party; however, can’t force
3rd party to adhere to treaty of which it is not a signatory: VC 34
Facts:
Does Article 435 of the Treaty of Versailles, providing that FR and SWZ should settle between
themselves status of certain border territories, repeal the status of the territories or create an
obligation for SWZ to repeal it?
Reasoning:
Art 435 isn’t binding on SWZ because they’re not a party to the treaty of Versailles
SWZ entered agreement with powers for the ‘free zone’ and its perpetual neutrality
41

Nothing preventing a third State from agreeing to the object and effect of a treaty and
thereby creating rights in its favour if it is willed by the signatory states and the third party
See arts 34-38 of the VC
Operation of Treaties
Amendment and Modification
Depends a lot on whether all the parties agree to the changes
 VC art 39
Invalidity and Jus Cogens
See VC 42, 43, 46, 52, 53, 64, 69, 71
Part V: Invalidity, Termination, Suspension of the operation of treaties
Section 2: invalidity of treaties
Art 48: Error
Art 49: Fraud
Art 50: Corruption
Art 51: Coercion
Art 53: jus cogens – treaty invalid if it conflicts with peremptory norm of general international law
Termination and Suspension
See VC 42, 54-56, 60-63, and 70
 Art 42(2): termination of a treaty, etc. can only be done through the rules of the treaty itself
Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), [1997]
Ratio: unless means of termination are included in the treaty, a party cannot unilaterally terminate a
treaty without consent of parties or in accordance with one of the ‘Force Majeure’ provisions in the VC
Facts:
H./S. had treaty to build dams for electricity, flood control, etc. H. suspended/abandoned project,
with detrimental effects to Slovakia. S. insisted that H. carry out its obligations; in turn breached the
treaty.
Issue:
Did H.’s notification bring the treaty to an end or did it not meet requirements of international law?
Reasoning:
Arts 60-62 of the VC are important
H. argues necessity: this does not terminate a treaty; unless parties by mutual agreement terminate
the Treaty, it continues to exist: VC 54
 Also argued impossibility, which also didn’t work; impossible due to H.’s own breaches: VC
61
 VC 62: change of circumstances defence applied only in exceptional circumstances
Notification of termination was premature; no breach of the treaty by Czechoslovakia
(predecessor of S.) had yet taken place, H. was not entitled to invoke that breach as a ground
for terminating when it did
Both H. and S. failed to comply with the Treaty
 Still doesn’t justify its termination; this would violate pacta sunt servanda
Holding:
The treaty is still in effect; Hungary’s notification didn’t comply with any of the VC provisions for
termination
42
Borrows and Rotman, “Aboriginal Legal Issues” (295-310)
intro
·
Language used in treaties with the Indians (First Nations – FNs henceforth!) should never be
construed to their prejudice
·
E.g. “allotted” land means right, not favour.
·
Treaties with settlers were meant to create and maintain mutually beneficial relationships
between the Crown and FNs
·
It’s questionable whether, in many cases, FNs understood the legal and political
implications of the land conveyance documents they were asked to sign. It’s also unlikely that
FNs participating in post-Confederation numbered treaties knew that signed written texts
differed from oral arrangements
·
In making treaties, both parties recognized the other’s authority to enter into binding
commitments. FNs would not have committed to treaties unless their way of life was protected and
preserved (i.e. Crown promised not to interfered w/ their way of life)
·
FNs understood that they would continue to maintain their traditional governments, laws and
customs. Principle of fair exchange and mutual benefit was integral to the treaty making (lol!)
·
Parties based negotiations and consent on their own understandings, assumptions and values.
FNs were assured orally. They never agreed, nor were asked, to adopt non-Aboriginal ways of life.
·
Negations were at a broad general level, due to time and language barriers.
·
Issues such as co-existence, non-interference w/ the FN way of life (e.g. hunting, fishing) and
retention of adequate lands would therefore have been understood at the broadest level. These were
assumed to be sorted out over time
·
Parties had to rely on trustworthiness, good intentions, and good faith
·
Despite above, treaty docs referred to the Indian nations as “subjects of the Crown”
·
FNs saw it as “brothers” or “partners” of the Crown
·
FNs assumed since they were giving the land that they were the owners
·
FNs did not know of the limits on agreements and promises
Process of Treaty making
·
FN laws and protocols facilitated treaty making.
·
There have been over 500 treaties w/ FNs, many draw on some form of Indigenous legal
tradition.
Changing face of treaties
·
Shit changed when Brits conquered New France (1760). English no longer needed FNs as allies
to fight the French.
·
18th c treaties: were of “peace and friendship”. In exchange for peace from FNs, Brits agreed not
to disturb their way of life
·
Post-1763: negotiations were between specially commissioned agents and representatives of
the FNs to negotiate lump-sum payments for lands.
·
By 1810, imperial authorities complained about burden of fulfilling the Proclamation.
·
Crown paid annuities for land
·
The Robinson Treaties (1850s): i.e. reserves
·
Affected twice as much territory as all previous treaties combined. This was drastic change in
Canadian form of treaty making w/ Native people
·
In addition to annuities and assurances to preserving way of life, the Crown promised a reserve
territory for each bank signatory to the treaty. Basic formula: extinguish title to large tracts of
territory, offer vague assurances for existing hunting and fishing rights, and promising annuities in
addition to reserves
·
Reserves were most cost-effective means for securing extinguishment of Aboriginal title over
much larger tracts than had been in previous negotiations.
Conceptualizing Crown-native treaties
43
·
Once Crown no longer relied upon FNs as military or political allies, Treaties were looked as Ks
rather than compacts between nations. FNs saw them as agreements that were relationship-based
rather than individual agreements that were document-based
·
NB: FNs view Treaties as spiritual because chief`s political and spiritual role are not separable
Problems :
1. Courts didn`t consider FN understandings of treaties
2. Treaties regarded as promises at sufferance of Crown
3. Since courts didn`t view them as binding, they had no legal effect, allowing the Crown to
ignore treaty terms.
R v Syliboy 1929
·
Aboriginal man caught with pelts, charged under an Act (in Nova Scotia). He claimed he had the
rights under Treaties, so the Act in question did not apply
·
Superior Court of Racists: basically says that the Treaty was not made with the Mick Mack Tribe
as a whole but with a small body of that tribe living in the eastern part of N.S. So benefits accrued
only to that body and their heirs. Also, laws of NS don`t apply to Cape Breton because the statement
`Laws of NS` means only general laws of the Province and it’s misusing the word include ‘Treaty of
1752 as law’
 Also, the war that broke out put an end to the Treaty if it is law and does apply to Cape
Breton
 Such a treaty requires ratification by Parliament
 Where a statute and treaty conflict a British Court must follow the statute
 Treaties are between independent powers, but the Indians were never regarded as
independent powers because they were uncivilized and savage nations. Could never say that
they ever held a country as their own.
 Fact that FNs sought from Gov the privilege or right to hunt in NS shows that they are not an
independent nation
Recognize that Crown lulled FNs into believing that what they were signing were Treaties. But
not courts place to meddle.
Sources: Custom – ICJ Statute 38(b)
Kindred (148-167)
Requirements:
1. Consistent/general international practice among states; and
2. Practice must be accepted as law by the international community
Opinio juris: subjective element of acceptance as law
Based on principles of: consent, estoppel, reasonableness
Ex. The law of the sea (Professor Myres McDougal):
 The law of the sea is a process of continuous interaction
 It is not the unilateral claims of states but the reciprocal tolerances of the external decisionmakers which create the expectations of pattern and uniformity in decision, of practice in
accord with rule, commonly regarded as law
The Steamship Lotus, France v Turkey, [1927]
Ratio: Vessels on the high seas are subject to no authority except that of the State whose flag they fly;
however, this doesn’t affect the exercise of territorial jurisdiction in a state over acts which have
occurred on board a foreign ship on the high seas; there is no customary international law establishing
exclusive jurisdiction of the State whose flag was flown
Facts:
44
FR and TK ships collided on the high-seas, and upon arrival in TK the FR captain of the ship was
arrested and pursued in criminal proceedings under TK law.
Issue:
Is this contrary to International Law?
Reasoning:
One of the first rules of international law on jurisdiction is that a state cannot exercise its power in
any form in the territory of another state
 In this sense jurisdiction is territorial
Apart from special cases vessels on the high seas are subject to no authority except that of the
State whose flag they fly
 No state may exercise any territorial sovereignty over foreign vessels on the high seas
* BUT a state CAN exercise jurisdiction in its own territory for acts which have occurred on board a
foreign ship on the high seas
 If there were a customary rule of international law establishing the exclusive jurisdiction of
the State whose flag was flown, then it would overrule this; but none exists
Holding:
TK acted in line with international law
North Sea Continental Shelf Case, Germany v Denmark and v Netherlands, [1969]
Ratio: Some treaties codify customary law, others try to create it; for a principle to become customary
international law, it must (1) be a settled state practice AND (2) opinio juris (carried out by a majority of
states who consider it a legal obligation)
Facts:
G., D., and N. referred question about the delimitation of the boundaries of their North Sea
continental shelves to the court after failing to come to an agreement themselves. G. wasn’t a
signatory state to the Convention, so D./N. try to stick it to them by establishing it as customary
international law.
Issues:
What principles of international law apply to the delimitation of the continental shelf in the North
Sea?
Reasoning:
Did the Geneva Convention Codify a recognized Customary Principle in Art 6?
D. and N. argue that the ‘equidistance’ principle in the Geneva Convention art 6 should be considered
as customary international law
 This would make it applicable to G. even though it hadn’t ratified the Convention
Article 6 on continental shelves was proposed hesitantly and on an experimental basis
 It is also an article that states can make reservations under; shows it’s limited application
 If it were accepted as customary law, it wouldn’t have been included in the opt-outable
provisions
Has Article 6 developed since the creation of the Convention to become a principle of customary
international law?
 It’s status in the Convention (as mentioned above) prevents it from having this character
 The simple act of following the Convention does not create a custom of international law
To be customary international law it must:
1. Be a settled practice
2. Carried out in such a way as to be evidence of a belief that the practice is obligatory due to a
rule of law requiring it
* The need for the subjective belief is implicit in the notion of opinion juris
 There are many customs carried out for protocol/ceremony only motivated by
considerations of courtesy not any sense of legal duty
What customary principles do exist?
The delimitations of continental shelves must be reached by equitable agreement
45
 Equity doesn’t connote equality
(a) Cannot change nature; a state that doesn’t have access to the sea won’t have a continental shelf
(b) BUT in cases where the three states, as here, have similar coastlines, an incidental special feature
should be no reason to unjustifiably differentiate in treatment
(c) Proportionality must be used in establishing the necessary balance between straight, concave,
convex coastlines
Dissenting: (Tanaka)
Very difficult to get evidence of opinion juris existence in concrete cases
 Only way to ascertain it is to look at its external existence and its necessity felt in the
international community; looking at the subjective motives of each state is impossible
Dissenting: (Lachs)
The Convention on the Continental Shelf is followed not only by parties to the Convention, but other
states as well
 This is sufficient evidence to satisfy the criteria of general customary law
Dissenting: (Sorensen)
A quarter century of practice has made the rules embodied in the Geneva Convention on the
Continental Shelf rules of customary international law
Germany has recognized the application of other parts of the Convention in the past, and has asserted
its own rights based on it
 G. is not now in a position to say that it doesn’t apply
There is no incompatibility between the faculty of making reservations to certain articles and the
recognition of that Convention or particular articles as expressions of generally accepted rules of
international law
Holding:
If the Convention was not in its origins declaratory of customary international law for the purposes
of calculating continental shelves by equidistance, then neither has it created such a customary
principle since its enactment.
Regional or Special Customary Law
Can there be local as opposed to universal customary law?
Right of Passage over Indian Territory Case, Portugal v India, [1960]
Ratio: Local custom can establish rules of customary international law between states when the
practice is recognized as long-standing and regarded as a right/obligation
Facts:
 Portugal claims right of passage between Daman and the enclaves (that it controls) across
intervening Indian territory in order to exercise sovereignty – subject to India’s right of
control and regulation of passage and without any immunity in Portugal’s favour.
Basis of claim is local custom
Issues:
Can this right be asserted on the basis of local custom?
Reasoning:
 Local custom doesn’t have to involve more than two states
 During British and post-British periods, passage has been allowed and, therefore
custom has been established and has given rise to a right and obligation
Applies to this case, which concerns a time and a region where relations between states were not
regulated by precisely formulated rules (implies it might be different in other cases)
Holding:
Yes – custom established
* Akh: problem with this: India has only been independent for a little more than a decade
46

Now it is being bound by a custom that it inherited, that predated its independence
Asylum Case: Columbia v. Peru
Ratio: absent consistent compliance and opinio juris, customary principle of international law will not be found; a
clear indication of crystallization is codification; refusal of this by one party is indication of no custom
Jurisdiction
ICJ [1950]
Facts
Colombia claimed it had the right to offer asylum to a Peruvian on the basis of an alleged regional
custom peculiar to Latin American states
Issues
Can this right be asserted on the basis of local custom?
Holding
No – custom not established.
Ratio
Colombia has failed to show this was actually a local custom
 Too much inconsistency in the record
 Not clear whether states felt themselves bound
 However, even if a custom did exist, it couldn’t be invoked against Peru, which has
repudiated it by refraining from ratifying the various treaties purporting to codify it
* Customary law crystalizes over time
 Typically, no such thing as ‘instant custom’ (unless there’s a unanimous resolution meant to
be binding on states)
 Becomes important because it’s based on consensus on the topic
 Once established, gives rise to ‘State Responsibility’
Breugelmans and Poortinga, “Emotion without a Word: Shame and Guilt Among
Rara’muri Indians and Rural Javanese”
Dealing with small rural villages
A tribe of 500 people has a different social structure than a metropolis
In terms of identity as well
 The reason the social structures succeed is because of the intimacy between the individuals
 The reason you can have effective customary law is because of the feeling of belonging
and the revulsion of not belonging
 Bedouin tribes: worst punishment is exile
There is nothing outside of belonging
In international law, it lacks the intimacy; there are divergent interests; huge distance between States
 There isn’t the strong sense of family/intimacy from the village
 Custom takes on a different meaning
 Can we ever relate corporations with persons?
 Morals/feelings, etc.
There are groups of states that call eachother friends and have long history together
 Ex. Canada, US, UK
 What about divergent interests? Ex. North-West passage
 States that are otherwise friends can have divergent interests
* Limits how the shaming/ostracization can keep states in line
Sources: General Principles and Soft Law – ICJ Statute 38(c)
Kindred 111-112, 167-182, 689-696
Soft Law and Jus Cogens
Not mentioned/considered at ICJ statute art 38, but can be influential
47
Lex feranda often used synonymously with term ‘soft law’ (law as it should be)
Soft law refers to international soft-law instruments because they are not directly enforceable
in domestic courts or international tribunals
 They can, however, be influential
 Usually a declaration of principles instead of a hard treaty
Article 38 ICJ Statute sets out the law-making principles of International Law
Jus Cogens
 Open set of peremptory norms of international law
 Not mentioned at art 38
 Defined at art 53 Vienna Convention
o Treaty is void if it conflicts with jus cogens
 Ex: principle of ‘pacta sunt servanda’, prohibition on the use of force at art 2 UN Charter;
most would agree that prohibition on genocide, slavery, torture are also jus cogens norms
General Principles of Law
Found at ICJ statute art 38(1)(c)
Temple of Preah Vihear:
 Principles relating to error vitiating consent
International Status of South West Africa Case
 Uses private law to interpret what is meant by “sacred trust of civilization” – draws on nearuniversal municipal concept of trust (or equivalents)
 IL gets many of its rules and institutions from private system of law
 Look to private law as an indication of policy and principles; don’t import rules and
institutions directly
Division of Water from the Meuse Case (Netherlands v. Belgium), [1937]
 Application of equitable principle that you can only complain about a breach of an obligation
if you haven’t breached it yourself
Prosecutor v Erdemovic, [1997] (decision of McDonald/Vohrah; dissent of Cassese)
Ratio: there is no general principle of international law establishing Duress as a defence to all crimes
(Statute of the ICC applies Duress as a general defence exonerating criminal responsibility: ICC 31(d))
Erdemovic Case
Jurisdiction
Facts
Issues
Holding
Ratio
ICTY – appeals chamber
 Erdemovic was a Croatian locksmith married to a Serb who was promised a passport out of the
conflict area, was stranded in a Serb-controlled area, was pressured into joining the Bosnian
Serb army where he committed various illegal acts (under threat of death)  participated in the
Srebrenica massacre, where 8000 Muslim men and boys were killed
 Eventually refuses, is shot by own forces, talks to journalist in hospital, becomes witness,
indicted for crimes against humanity to save his life, only way Serbs would give him up
Is duress a legitimate defence for crimes against humanity?
No
 ICTY Statute (1993) was very rudimentary document  set out crimes but did not elaborate on
the finer points (such as whether duress was a valid defense)
o Thus, court had to look at international law to determine whether duress could function
as a defense
 In CML, duress is a defense to all crimes except murder and in some cases treason
o Majority (2 CML judges) say there is no general principle on duress in international
law, but that soldiers, who must accept death as an occupational hazard, cannot
rely on duress as a defense
48

Dissenting Italian (CVL) judge goes ballistic – says that there IS a general principle that duress is
a defense to all crimes: CML is the EXCEPTION
Other Sources of Law?
See ICJ Statute art 38(1)(d)
 Judicial Decisions
 Legal Commentaries
Law Making Through International Organizations
Codification is the best method for clarifying/developing international law
 * More likely to succeed when law and practice are already reasonably clear
Difficult to differentiate between codification and progressive development of the law; they become
intermingled
North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands), [1969]
 Judge Sorenson: “The very act of codifying an existing customary rule may have the effect of
defining its contents more precisely and removing such doubts as may have existed as to its
exact scope or the modalities of its application”
Resolutions of the United Nations
Under Charter, the GA only has power to make binding decisions with respect to
budgetary/administrative matters of the UN
 All other work, GA can make recommendations
See Namibia Case (South Africa mandate case)(earlier)
See Legality of the Threat or Use of Nuclear Weapons Case, [1996]
Texaco v Libya, [1977]
Ratio: Right of expropriation is a right of all states as long as it obeys the general principles of
international law (accepted by a majority of states): (1.) In pursuance of a public purpose (broadly
interpreted: see Amoco International Finance Corp v Iran) Doing it for money shouldn’t be, but often is,
used as the main reason (has never really been challenged; (2.) Non-discriminatory (hasn’t been used
very often either); (3.) Gives rise to appropriate compensation
Jurisdiction
1977 – arbitration
Facts
Libya nationalizes Texaco’s assets in Libya
 1. This is a recognized right of states; however, states must offer “appropriate
compensation” for doing this according to res.
o Set out in res. 1803 (1962)  this was done at a time when most of the world was
still not decolonized
o Notable that standard of compensation is “appropriate”, which means “fair market
value”
o Voted in 87 for; 2 against; 12 abstentions
 Then, UN GA passes Res. 3281 (1970) which allows states to take into account other
factors which they consider pertinent
o 2. Idea: why should states (especially new states) have to pay
“compensation” to companies that have been exploiting them for years?
o Voted in 118 for; 6 against; 10 abstentions
Issues
Which resolution is binding? What is the relative weight of the different resolutions?
Holding
1803 is binding; 3281 is not if the party didn’t ratify it
Ratio
 First resolution was adopted with a wide measure of consensus including developed (incl.
US, the most important) and Third World states
49



o Second resolution was not consented to by a large number of Western states
* Absence of binding force of GA resolutions implies they must be accepted by
members of UN
o In this case, only the first resolution was accepted by a majority representing all
the various groups
1803 set down was a pre-existing standard that applies until it has been displaced by a
new standard
3281 standard is a lex ferenda – hasn’t yet emerged as the new applicable norm
Expropriation of property is an uncontested/universally accepted principle of permanent
sovereignty over a state; however, exercise of that right is subject to some conditions (compensation)
Conditions
1. In pursuance of a public purpose (broadly interpreted: see Amoco International Finance Corp v
Iran)
 Doing it for money shouldn’t be, but often is, used as the main reason (has never really been
challenged
2. Non-discriminatory (hasn’t been used very often either)
3. Gives rise to appropriate compensation
Bindreiter, “Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine”
There is a hierarchy even though there isn’t supposed to be one
Art 38(1): International Court of Justice
1. Treaty
2. Custom
3. General Principles
General principles are not necessarily derived from national legal systems
You can’t just transplant from national law
What makes General Principles interesting?
It swings towards utopia more than any other
Stands for proposition that there is a ‘Grundnorm’
o The mystical foundation of law
o Important if we believe that the international system should not prostrate itself
before state sovereignty
National Application of International Law – Custom
Kindred 183-195
What ‘direct applicability’ of international law in the domestic legal system?
Adoptionist vs. Transformationist Approach
 Canada is adoptionist in respect of customary international law and transformationist
in terms of conventional treaty law
Federal government is only body that can bind Canada to international obligations
 Who can bring them into practical application is determined by ss.91/92 of the
Constitution Act (separation of powers)
 Particularly affects the commercial field
Canada maintains a ‘dualist’ position; unclear if courts feel any duty to enforce international legal
rules
50


Distrusted because it is essentially executive-made law; lacking legitimacy of law made by
democratically elected legislatures
Most courts would require some kind of ‘implementation’ of the treaty through legislation in
order to hold it binding
Customary International Law in Canada
See explanations of Adoptionist vs Transformationist approaches by Denning in Trendtex Trading
Corp. Ltd. v Central Bank of Nigeria
 Denning believes that the rule is Adoptionist in England
 In Canada it is the same
Foreign Legations Case, 1943
Ratio: Canada has an adoptionist approach to customary international law, as long as it does not
directly conflict with existing national laws
Jurisdiction
Facts
SCC [1943]
Reference as to whether the Ontario Assessment Act allowed the municipalities to collect taxes on the
foreign legations
Holding
Foreign legations cannot be taxed
Ratio



Principle of sovereign equality in CIL stipulates that states cannot tax each other (and each
other’s embassies, etc.)
o The Ontario Assessment Act did not specifically stipulate that municipalities could tax
foreign legations.
Must presume that the legislature intended to act in accordance with customary international
law, unless the statute specifically provides otherwise, in which case, PARLIAMENTARY
SUPREMACY
Adoptionist approach to customary international law
Saint John v Fraser-Brace Overseas Corp, [1958]
Ratio: adoptionist approach to CIL
Jurisdiction
SCC [1958]
Facts
 Canada and US agree to build a radar defence system
 Contractors build instalments in St. John with materials owned by the US government
 St. John taxes the materials, and the contractors sue to recover the amount paid
Holding
 Court looked at the Foreign Legations precedent, but were careful to indicate this was not
necessary – don’t need to have specific precedent for everything
o The implication of this is that customary law overrides prior case law (although
it does not override Parliamentary supremacy)
 Rule of exemption from taxation must apply to these materials as much as to an ambassador’s
furniture
 Courts should take judicial notice of CIL without too much regard for domestic
precedents
 Adoptionist approach to applying the rule
51
Bouzari v Iran, [2004]
Ratio: customary international law does not apply where Canada has domestic legislation directly
contradicting it
Jurisdiction
Federal Court of appeal [2004]
Facts
Bouzari argues there is a CIL norm that forces Canada to permit a civil remedy against a foreign state
for torture committed abroad
Holding
 NO – though Parliament is presumed to legislate consistently with its treaty
(conventional) and customary IL obligations, especially jus cogens, it is open to Canada
to legislate contrary to them
o Such legislation would determine Canada’s domestic law, although it would put
Canada in breach of its international obligations
 In this case, the SIA clearly excludes all other sovereign immunity law except itself (s. 3(1))
o Thus, even if Canada’s international law obligations required Canada to permit a civil
remedy, it has legislated in a way that does not allow this
* Department of Northern and Indian Affairs, “Statement by Canada’s New
Government”
* “Regarding the United Nations Declaration on the Rights of Indigenous Peoples” (22936)
National Application of International Law – Treaties
Kindred 195-221
Treaties in Canada are incorporated according to the transformationist approach as opposed
to the Adoptionist Approach taken with Customary International Law
Treaty making power in Canada is complicated because of Canada’s complicated evolution from
colony to independent state
 No provisions in the BNA Act stating who had the power to make treaties – Imperial
Government had full control of foreign policy
 Only section that dealt with treaties was s. 132  gave Parliament the power to implement
treaties concluded for it by the Imperial Government
 Canada had representatives at Washington Treaty in 1871, but they had no powers
 First treaty Canada signed was the Treaty of Versailles in 1919 – but they did so as a member
of the British Empire
 First treaty Canada signed in its own right was the Halibut Fishery Treaty in 1926
 Letters Patent 1947  delegate all remaining Royal Prerogatives to the Governor General
o Quebec argues the royal prerogatives also apply to it
Implementation of treaties in Canada
 Most treaties need to be implemented by Parliament or provincial legislatures – dualist
approach
 Thus, treaties made by federal government will bind Canada as a country, but its provisions
cannot affect internal law until they are specifically implemented
 Some, however, are self-executing
o Defense pacts, treaties of friendship (for example)
o Certain administrative treaties
52
o
Treaties whose substance is already contained in Canadian statutes
Two reasons for implementation:
 So that claimants can directly invoke the terms of the treaties before Canadian courts
o Subtle difference between this and invoking a treaty as a way of interpreting preexisting legislation
o Only in the first case is the treaty actually being treated as the source of rights
 So that treaties can be converted into domestic statutory language
o Terms negotiated by 190 states won’t be the ones used in Canadian legal system
o This isn’t always done – look at Extradition Act, which incorporates many treaties
Methods of statutory implementation
 Incorporate explicitly the actual text of the treaty into domestic law, in toto or in part
 Incorporate the substance into Canadian law
 Give effect to a whole class of treaties (e.g. Extradition Act, which gives effect to bilateral
extradition agreements)
Unless treaty wording is adopted explicitly, can be difficult to determine whether treaty has actually
been implemented
 Implementation must be manifest, not inferred (Laskin, Capital Cities Communications
v. Canadian Radio-Television Commission)
Monist approach (Mexico, France, etc)
 In monist systems there is no need to implement treaties through legislation, since domestic
and international law are seen as one single body of law
o In the Netherlands, it is Parliament that ratifies treaties  thus ratification
and implementation are the same act
 Akh: dualist system is no longer effective – dates from a pre-UN time before international
law had any real effect on domestic law
o Puts Canada at a disadvantage in international negotiations – forces us to worry
constantly about the home front (Parliament and provincial legislatures)
Federal Position, from Canada, Department of External Affairs (1968) (p. 195)
Ratio: Treaties in Canada are incorporated according to the transformationist approach as opposed to
the Adoptionist Approach taken with Customary International Law


Exclusive responsibility of Federal Government in the field of treaty-making rests on three
considerations:
o Principle of international law relating to the power of component parts of federal
states to make treaties
 Whether provinces (or other units) can make treaties depends on the
constitution of country concerned – international law can’t decide by itself
o Constitutions and constitutional practices of federal states
 No federal constitution allows provinces to enter freely and independently
into intl agreements
o Canadian constitution and constitutional practice
 Foreign affairs prerogative once exercised by the Queen is now
exercised by the GG – exclusive federal authority
Provincial Practice in Respect of Arrangements with Foreign States (p. 199)
o Long been the practice for provinces to enter into informal administrative
arrangements with foreign jurisdictions
 Not subject to international law
53
 And thus not considered by IL to be binding
Quebec Position
 Quebec thinks provinces have the right to enter into treaties on matters within their
exclusive jurisdictions
o Royal Prerogative must be shared between federal and provincial governments –
Letters Patent (1947) cannot take precedence over the Constitution
 If Fed Government wants to make a treaty touching provincial matters, it should involve the
provinces and get provincial assent
Canada v Ontario, [1937] Labour Convention Case
Ratio: If treaty obligations signed by the federal government fall under provincial jurisdiction, it cannot
force the provinces to change laws to comply with its treaty obligations; Constitution ss. 91/92 apply.
FACTS
In 1935, Canada ratified three conventions prepared by the International Labour Organization.
Parliament passed three laws implementing the details of the international treaty to give domestic
effect to its principles -- The Rest in Industrial Undertakings Act, the Minimum Wages Act, and the
Limitation of Hours of Work Act. The provinces, led by Ontario, challenged the new legislation,
claiming that it was invalid and unconstitutional because the power to legislate in these areas
belonged to the provinces under the Constitution Act 1867 (BNA Act). The Supreme Court was split
on this issue. The province appealed to the British Privy Council (the last court of appeal in Canada
until 1949).
ISSUE
Was the legislation passed by parliament, in compliance with its international obligations beyond the
authority outlined in Canada's constitution?
REASONING
It is a well-established fact that making a "treaty" is an "executive act", within the authority of the
federal government and Prime Minister. Implementation of any treaty that requires a change or
the passing of new laws will always require a legislative component to give effect to these new
obligations of the treaty.
 In Canada however, the constitution distributes legislative authority between the federal
government and the provinces as outlined in the Constitutions Act 1867. The
constitution does not have or grant the federal government special authority to
pass "treaty legislation" in areas that is not under its control.
If treaty obligations signed by the federal government fall under provincial jurisdiction, it
cannot force the provinces to change laws to comply with its treaty obligations.
Can’t let the Canadian parliament do through treaty what it isn’t able to do under the constitution
Holding
The legislation was beyond the scope and authority of the federal parliament.
Notes



Note: Lord Atkin didn’t decide whether federal executive has independent authority to enter
into a treaty relating to a matter under provincial legislative authority
o But the SCC said it did
Art. 46 of the Vienna Convention  presumption of competence to conclude treaties
o To avoid consequences of this provision, Canada sometimes includes a federal
state clause when negotiating treaties  Canada only agrees to be bound
when individual provinces agree to be bound
o Canada can also make a reservation to the same effect with its signature
o This is increasingly unpopular internationally
 Esp. for human rights obligations that have a jus cogens character (i.e.
treaties solely intended to codify basic law)
Courts have hinted that Labour Conventions might be reconsidered
54
o
Maybe POGG or general trade and commerce power could be used to give the fed
government more flexibility
 Analogy of GM v. City National Leasing  power to regulate trade in cases
where economy is treated as a single national unit and provinces would be
unable, jointly or severally, to solve the problem themselves
Re Arrow River and Tributaries Slide and Boom Co. Ltd., [1931] Ont.C.A. and SCC, p. 214
Main idea is that each judge bends the Act or the Treaty so as to prevent an open conflict
Facts
 Provincial Lakes and Rivers Improvements Act (1927) gave Arrow River Co. the right to fix tolls for
transport on the Pigeon River after making it navigable

The Webster-Ashburton Treaty of 1842 required that the Pigeon River (among others), which
formed part of the international boarder, be kept free
Ratio
Riddell (Ont. C.A.)
 Must interpret legislation so as not to breach treaty, if possible
 In this case, the Act only referred to charging tolls on waters “in Ontario”, not “partly in Ontario,
thus the Act does not apply to the Pigeon River
Smith (SCC)
 Overturns Riddell – Act cannot be read down to exclude boundary rivers
 Treaty only applies to rivers that were navigable in 1842, thus Treaty is read down to exclude the
Pigeon River (which was not)
Lamont (SCC)
 Disagrees with Ridell – says that if the Legislature had intended to exclude boundary waters, it
would have been stated in the Act (reverse of Foreign Legations Assumption?)
 Disagrees with Smith – Treaty applies to all waterways, not just the ones navigable in 1842
 However, allows the Act to supercede the Treaty
o The province has the power to override the treaty according to the division of powers in s.
92, unless the treaty itself imposes a limit on provincial legislative power (not the case
here)
o The Crown, by treaty-making, can’t alter existing law without the sanction of Parliament
(i.e. without implementing legislation)
o “For a breach of a treaty a nation is responsible only to the other contracting nation and
its own sense of right and justice”
Anglin (SCC)
 Interprets the “to be kept free” provision of the Treaty as not precluding tolls
R v Crown Zellerbach Canada Ltd., [1988]
Ratio: if possible, courts should make effort to interpret Canadian law in line with its international
obligations (so opposite of Arrow River Case)
Facts:
Federal government passed Ocean Dumping Control Act to regulate dumping of substances at sea as a
measure for prevention of marine pollution. S.4(1) of the Act prohibits dumping of any substance at
sea except in accordance with terms of a permit. Defines “sea” as including internal waters of Canada
other than fresh waters. Respondent maintains log dump on water lot leased from BC government.
He was charged under s.4(1) despite the fact that there is no evidence of his products having any
adverse effect on marine life / navigation.
55
Judicial History:
Trial judge found s.4(1) ultra vires. Decision reversed on appeal. Now at SCC.
Issue:
Does Federal power to regulate and prevent marine pollution extend to regulation of provincial
marine waters? Is s.4(1) valid under POGG National Concern Doctrine?
Legal Reasoning: (Le Dain J.)
General purpose = regulate dumping of substances at sea to prevent harm to marine environment.
 Respondent challenges federal jurisdiction to control dumping in provincial waters of
substances not shown to have pollutant effect in extra-provincial waters.
 Respondent and BC AG contend that s.4(1) should be read down so as not apply to
dumping in provincial waters.
 Federal government submits that control of dumping in provincial marine waters is a
single matter of National Concern/dimension (prevention of marine pollution) 
falls under POGG.
SCC holds that no basis for federal legislative jurisdiction over the control of marine pollution can be
found in any of the specified heads of s.91. (so turn to POGG to see if it’s a National Concern)
“National dimension / National Concern Doctrine”
Characteristics:
 1. National Concern branch is distinct from emergency branch
 2. Newness
 3. Singleness, distinctiveness, and indivisibility
 4. Provincial inability
POGG clause bestows only residual powers – existence of National Concern justifies no more
federal power than is necessary to “fill the gap” in provincial powers.
 Not emergency power – national dimension doesn’t give Parliament plenary jurisdiction
to legislate in relation to that matter (including intra-provincially).
Marine pollution = clearly a matter of national concern, clearly federal jurisdiction. BUT question is
whether control of pollution by regulating dumping in marine waters, including provincial marine
waters, is a single, indivisible matter from wider control of pollution.=> they answer yes
Dissent: (La Forest J.)
Fed Gov can legislate to prevent this under general power to control pollution (regulating pollution
at its source)
o There are many other ways that Fed Gov could have controlled this, National
Concern not necessary; expands Fed Gov’s power too much, upsets
Constitutional division of powers.
There has to be a link between the prohibition and the harm caused for there to be a recourse
to the National Concern Doctrine
o This prohibition is too broad because it is made with no proof as to this
link
Holding:
s.4(1) is intra vires federal power under National Concern branch of POGG. Appeal allowed.
Recently, SCC has shown a renewed willingness to interpret Canadian law in a manner consistent
with Canada’s international obligations
 Canadian Foundation for Children, Youth and the Law v. A. G. Can (2004)
 Ordon Estate v. Grail (1998)
o Notes that international law is not binding on Parliament or the provincial
legislatures, but court should presume whenever possible that legislative intent was
not to breach international law
Do Parliament and the provincial legislatures have the power to legislate contrary to international
law?
 Vanek: NO (Crown Zellerbach)
56
Constitution never explicitly gave this power, plus there is the Foreign Legations
presumption
o They can refuse to legislate international law, but not actively legislate against it
Macdonald: YES (Arrow River)
o They have plenary powers
o English parliament legislates contrary to CIL all the time
o Must apply to CIL, since the power to legislate against treaties was recognized in
Arrow River
o

* Borrows and Rotman, “Aboriginal Legal Issues: Cases, Materials and Commentary”
Law of the Sea
Distant History
 Romans: seas are communis omnium naturali jure – common to all by the operation of
natural law
 Spanish and Portuguese try to divide Atlantic Ocean between them in the 17 th century, but
Grotius’ freedom of the seas won the day
 States were permitted to make territorial claims immediately adjacent to their
coastlines
Modern History
 Virtually all modern laws of the sea are grounded in custom
 However, attempts to codify during 20th C - four comprehensive conventions at Geneva
(1958)
o Even countries that did not ratify the four comprehensive conventions
followed them in practice since they considered them customary law
 However, change continued after this codification
UN Convention on the Law of the Sea 1982 – entered into force in 1994

Delay largely caused by developed countries, esp. US, concerned about the exploitation of
seabed resources
 However, even before it came into effect, states were treating the Convention as customary
law
 Canada signed in 1982 and ratified in 2003
Governed by UNCLOS – largely based on customary law
Territorial Sea – UNCLOS arts. 2-14 (definition), arts. 17-26 (application), Chart p. 926
 Art. 1: sovereignty of a state extends to territorial sea
 Art. 2: 12 miles from the baseline
 Art. 5: normal baseline is the low-water line along the coast
 Art. 7: provisions for straight baselines (where coast is deeply indented)
o Qatar v. Bahrain Maritime Delimitation and Territorial Questions Case (2001)
 Straight baselines are an exception to the usual rules, must be applied
restrictively
 Only in cases where the coast is deeply indented or there is a fringe of
islands along the coast in its immediate vicinity
 Bahrain had not declared itself an archipelagic state under Part IV of
UNCLOS
 Art. 8: water landward of baselines is internal water of the state
 Art. 19: all states enjoy innocent passage through territorial seas
57

Art. 24: coastal state will not hamper this passage
Contiguous Zone – stretches from 12 to 24 miles from baselines (art. 33)
Exclusive Economic Zone (arts. 55-60)
 Art. 56: state has sovereign rights for the purpose of exploring and exploiting, conserving
and managing resources in the water or in the seabed, living and non-living
 Art. 57: breadth can’t exceed 200 nautical miles from the baselines

Oceans Act (1996), p. 949
o Canada claims an EEZ of 200 nautical miles starting at the outer limit of its
territorial seas
o Claims various exclusive rights in this zone


States must assert jurisdiction over EEZs expressly – doesn’t arise by mere operation of law
Beyond the territorial seas, criminal law does not apply in the EEZ – governed by the flag
state of the ship
Continential Shelf Chart p950
UNCLOS arts. 76-82
 Art. 76: minimum limit of 200 nautical miles, regardless of the extent of the physical
continental shelf
o Additionally, “wide margin” states can claim out to the edge of the physical
continental margin, which means they often have jurisdiction of the seabed well
beyond 200 nautical miles
 Art. 77: sovereign rights for purpose of exploring and exploiting natural resources on and in
the shelf
Rights do not depend on occupation or any proclamation (unlike EEZ, don’t need a specific claim)
The Truman Proclamation (1945)
 U.S. claims the resources in the bed of continental shelf (without affecting sovereignty of or
navigation on the high seas over top of it)
Oceans Act (1996)
 Fully consistent with rights accorded to states under art. 76 of the 1982 Convention
 [Canada thus claims the minimum 200 on its narrow-shelved Pacific coast and a huge margin
on its Atlantic coast)
Commission on the Limits of the Continental Shelf – group of scientists that provides
recommendations to states on where to set the outer limit of their shelf – ultimate determination left
to the states themselves
R v. Perry
Ratio: you can face prosecution for exploiting resources outside your state’s EEZ
 Lobstermen arrested for extracting lobsters beyond EEZ, some 400 miles from the coast
 Case talks about “sovereign rights” of Canada, but what they are really talking about is
Canada’s jurisdiction
 Lobstermen say that they couldn’t know how far the shelf goes – they were certainly well
outside the EEZ
 Why didn’t the prosecutor use s. 23(1) – which would create an irrefutable presumption that
any given point was part of Canada’s shelf?
o Probably because Canada didn’t want to have to define its shelf fully over a few
lobsters – more strategic to keep it uncertain
58
Deep Seabed




Developed and developing countries deeply divided on this issue
GA passed a Moratorium Resolution (1969) on sea-bed exploitation beyond national
jurisdiction by persons or states
o (Passed with a large measure of support, though 56 mining-interested states voted
no or abstained
Seabed Declaration (1970)
o Seabed and ocean floor is the common heritage of mankind
o All exploration and exploitation will be governed by an int’l regime to be established
– will be carried out for the benefit of mankind as a whole
o (Adopted without a dissenting vote)
In 1980, US Congress stated that exploration and commercial exploitation of deep
seabed resources are freedoms of the high seas – restrained only to the extent of
reasonable regard for the exercise by other states of these or other freedoms
recognized in int’l law
Nationality
Kindred 493-539
A. Individuals



Nationality is the basic link between an individual and the state
Individual owes the state allegiance – individual can’t commit treason
State owes the individual measures of protect, both diplomatic protection (abroad)
and protection of the individual’s human rights
 Fundamental right – art. 6(1) of the Charter – every citizen of Canada has the right to enter,
remain in, and leave Canada
Re Lynch
 Nationality is a continuing relationship
 Involves rights and responsibilities on both sides
 Nationality is the basis of a state’s jurisdiction over persons beyond its territory
1. Acquisition of Nationality
Jus soli: nationality acquired by birth in territory of a state; Jus sanguinis: nationality acquired by birth
outside the state to nationals of the state; Naturalization: (direct) general procedure by legislative,
executive, judicial depending on state, (derivative) minor becomes naturalized because of
naturalization of parents
de Mestral and Williams
 Citizen refers to a person who is endowed with full political and civil rights in the state
 National includes citizen, but also includes non-citizens who have the right to the protection
of the state and owe allegiance to it
 Up to domestic law of each state to set its own requirements, but practice of states shows
that most nationality laws have certain features in common
o Jus soli  nationality acquired by birth in the territory of the state
59
o
o
Jus sanguinis  nationality acquired by birth outside the state to nationals of the
state
Naturalization  acquisition of nationality after birth
 Direct naturalization – general procedure (can be legislative, executive, or
judicial depending on the state)
 Derivative naturalization – where for example a minor becomes naturalized
because of the naturalization of his parents
Citizenship Act (Canada, 1985)
Jus soli approach, except for diplomatic types; Jus sanguinis for both parents (some countries only let
the father pass on nationality)
 Basis for getting Canadian citizenship is permanent residence in Canada - requires 3 year’s
residence – can’t just get married and bypass it
2. Recognition of Nationality at International Law
In general, domestic law governs the conferring of nationality (subject to restrictions based on HR –
can’t be discriminatory)
 Nothing to prevent states from selling passports!
 However, international law is not obligated to recognize a state’s conferral of nationality
Nottebohm Case – Liechtenstein v. Guatemala
Ratio: To prove dominant/effective nationality to espouse a person’s claim must show: (1) basis of social fact of attachment
– family, place of residence, etc. – (2) Genuine connection – interests/sentiments – (3) Reciprocal rights and duties
Jurisdiction
ICJ [1955]
Facts
Nottebohm was born a German citizen. Moved to Guatemala and lived there for about 34 years.
Application made to Liechtenstein to become a citizen – granted. Guatemala confiscates his property for
business issues. Liechtenstein espouses his claim
Issues
Determination of whether Liechtenstein can espouse his claim – standing issue
Holding
Dominant nationality is not that of Liechtenstein, so Liechtenstein cannot espouse his claim
 Nationality there was granted without regard to the concept of nationality adopted in
international relations
Guatemala therefore under no obligation to recognise Leichtenstein nationality.
Ratio
There are many examples of acts performed by states in the exercise of domestic jurisdiction which do
not necessarily or automatically have international effect
Test for cominant and effective nationality (not merely the verbal preference of the person seeking
nationality):
1. Basis of social fact of attachment (family, place of residence).
2. Genuine connection of existence – interests and sentiments
3. Reciprocal rights and duties
N’s closest were to Guatemala, but this is not at issue: the relevant point is that he has closer ties to
Germany than to Liechtenstein.
Actual connections to Liechtenstein are extremely tenuous – no settled abode, no prolonged
residence, no intention of settling there, no interest in economic activities there

Akh: Perhaps it is a question of remedies – if he were without any other state, perhaps the
court would have to allow him nationality of Liechtenstein  otherwise he would be
stateless.
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Flegenheimer Claim: Italian-United States Conciliation Commission
Ratio: courts will generally rule in favour person to avoid statelessness at all costs
Jurisdiction
RIAA [1958]
Facts
 F lost US nationality in 1894 when he gained German nationality. Lost German nationality by law
in 1940 and became stateless.
 US espoused his claim before the commission for property damage in WWII. Commission
dismissed his claim but considered nationality arguments.
Issues
Even if F had retained US nationality, would the nationality lack the genuine connection required by
Nottebohm?
Holding
No – test does not apply when the person only has one nationality
Ratio
There does not in fact exist any criterion of proven effectiveness for disclosing the effectiveness of a bond
with a political collectivity such as a nation.
3. The Right of Diplomatic Protection
International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR,
2004 (p. 505)
Ratio: state can defend dual citizen from other state if it is the dominant nationality; state can give
diplomatic protection to stateless person that is resident
 Art. 7
o Allows for a state to protect one of its citizens against the state of that citizen’s other
nationality if the protecting state is the dominant nationality
o Controversial article
o Contrast with supremely positivist state-power 1930 Hague Convention, which said
a state could NEVER afford a dual national protection against his other state
 Convention was never widely ratified, but still represents the general
thinking of the time
 Art. 8
o A state may exercise diplomatic protection over a stateless person lawfully and
habitually resident in that state
Maastricht Treaty
 Art. 8(c)
o Every citizen of the EU can be protected by any member state on the same
conditions as the nationals of that state (in a third state where his own state is not
represented)
4. Dual and Multiple Nationality
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
International law sanctions the practice of states to require the same obligations and
responsibilities (i.e. military service) of their citizens who are dual nationals as their
citizens who are not
1930 Hague Convention on Conflict of Nationality Laws




Art. 1: Up to each state to determine who its nationals are under its own laws
Art. 3: Person with two nationalities may be regarded as a national of both states
Art. 4: State cannot afford a dual national protection against his other state
Art. 5: Third state required to recognize only the nationality of a person of where he
habitually and principally resides or is most closely connected
Canevaro Case – Italy v. Peru
Ratio: Dominant nationality is what matters in international claims
Jurisdiction
Permanent Court of Arbitration, The Hague, 1912 (p.508)
Facts
Italy espouses the claim of Canevaro brothers against Peru for money owed to them
by the Peruvian government. One brother was Peruvian by birth but Italian under art.
4 of Italian Civil Code, on the basis that his dad was Italian.
Issues
What is Raphael’s nationality for the purpose of this case?
Holding
Peruvian (therefore Italy cannot espouse his claim)
Ratio
 Raphael acted as a Peruvian citizen (ran for Senate, etc) and Peru has
the right to deny his status as an Italian claimant
 Other two brothers were solely Italian and succeeded in their claim
Iran-US Case No. A/18
Ratio: A state can only espouse the claim of a citizen if it is that citizen’s “dominant and effective nationality”
Jurisdiction
Iran-US claims Tribunal [1984]
Facts
Many claims brought against Iran on behalf of dual US–Iranian citizens.
Issues
Doses Tribunal have jurisdiction to hear cases?
Holding
If the dominant and effective nationality of the claimant during the relevant period was that of the US,
then a claim can be brought against Iran
Ratio
Used customary law, since Hague Convention was not applicable or clear
 Article 4 of the Hague Convention must be interpreted cautiously – very old (many
changes have occurred since then) and only ratified by 20 states
 Probably cannot be used in cases where a dual national, by himself, brings a claim against one
of the states of his nationality
 Also, this is a different situation than envisaged in the Hague Convention – deals with the
rights of individuals, not states (doesn’t deal with diplomatic protection)
“Dominant and effective nationality” has many relevant factors
 Habitual residence, centre of interests, family ties, participation in public life and other
evidence of attachment
5. Allegiance

Duty owed to state while at home or abroad
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Joyce v Director of Public Prosecutions (1946)
Ratio: holding yourself out as a citizen comes not only with right, but duties of allegiance that if
breached can result in liability
 British citizen fraudulently obtained UK passport
 Works for the German propaganda ministry during the war
 HoL holds that he committed treason
o If you hold yourself out as a British citizen, regardless of how fraudulent the process
by which you obtained it, you owe allegiance to UK
o Effect of the passport was that he was entitled to British protection abroad,
and with this goes responsibilities
o He had not surrendered the passport or taken any other such action upon leaving
Britain
6. Loss of Nationality and Statelessness

Nationality laws may provide an individual with the option to renounce nationality (s. 9 of
Canadian Citizenship Act)
 Can also occur by way of legislation e.g. for the commission of serious crimes
o s. 9 of Canadian Citizenship Act allows the government to revoke citizenship
obtained fraudulently
See also Flegenheimer Case
Statelessness
 Statelessness can arise from:
o Conflict of nationality laws
o Changes in sovereignty over territory
o Denationalization by the state
Stoeck v. Public Trustee, p. 514
Ratio: conflicts of nationality laws resulting in statelessness
Jurisdiction
UK, 1921
Facts
 Plaintiff sues the government for a declaration that he was not, on the date of the Peace Treaty,
and is still not a German national within the meaning of the Peace Treaty.
 Born in Prussia, obtained his discharge of Prussian nationality in 1896 and came to England,
which he made his permanent home
 Never naturalized in England
 Deported in 1918
Issues
Is he a German national?
Holding
No
Ratio
 He lost his German nationality and became stateless
 The relevant law to look at is German law, and this law does not recognize him as a
German national (and recognizes the condition of statelessness)
Williams and de Mestral, Problems of the Stateless Individual
 Art. 15 of Universal Declaration of Human Rights - Everyone has the right to a nationality.
 Prerogative of states to adopt own national laws and there is no limit on their liberty to
adopt rules that may make people stateless
 Serious lacuna which threatens the application of the principles of international law
 Two UN conventions on stateless people
63


Problem is that it is domestic law that deals with the subject at the state and individual levels
States should take a flexible approach and allow for both jus soli and jus sanguinis
Convention on the Reduction of Statelessness (1961)
 Art. 10: states contracting territory must ensure that no one becomes stateless as a result
International Law Commission Draft Articles on Nationality of Natural Persons in Relation to the
Succession of States (1999), p. 518
Eritrea Claims (2004) p. 521
Ratio: Expulsion of dual-nationals considered ‘enemies’ in times of war is state’s right under Geneva Convention;
however, there must be reasonable grounds for belief; cannot simply revoke citizenship of all dual-nationals.
Jurisdiction
Eritrea-Ethiopia Claims Commission, 2004
Facts
 When Eritrea first split from Ethiopia in 1991, relations were amicable and it didn’t really
matter which citizenship you had
 Then relations soured, a war began, and Ethiopia expelled a bunch of “enemy aliens”, as they
are entitled to do in time of war by the Geneva Convention
 Some investors from Pakistan etc. hadn’t even thought of whether they were Ethiopian or
Eritrean
Finding
 Ethiopia’s actions in expelling, in time of war, dual nationals whose actions indicated a possible
threat to Ethiopia’s security, and revoking their Ethiopian nationality was justified at
international law, even though the process was less than perfect and fair
o Likewise dual nationals who left for Eritrea voluntarily
o Likewise dual nationals who were in Eritrea
 However, contrary to international law to revoke Ethiopian nationality of dual national
who didn’t pose a threat and remained in Ethiopia – no evidence suggesting this group
was a threat
o Likewise dual nationals who were outside the country at the time or left Ethiopia to go
to third countries
o Likewise dual nationals who were expelled for other (non-security) reasons
Latvian example  Russian majority after USSR split – how to decide who gets citizenship?
B. Corporations
Problems:
 Variety of contacts with different countries  registered, head office, place of business
 Different company laws in different countries to recognize nationality
Barcelona Traction, Light and Power Co. Case – Belgium v. Spain (p. 525)
Ratio: only the national state of the company where the ‘Siège Social’ is located can espouse the claim of the corporation
against another state for wrongdoing; shareholders have no standing
Jurisdiction
ICJ [1970]
Facts
 Company incorporated in Canada, operated in Spain through subsidiaries, very high
percentage of shareholders in Belgium
 Company declared bankrupt in Spain
 Belgium shareholders (through Belgium) sued Spain on account of the way Spain had
permitted the bankruptcy of the company and the disposal of its assets
 Spain raised a preliminary objection  since injury was to the company, not the shareholders,
64
Issues
Holding
Ratio
Belgium had no standing
Jus standi (standing)
Belgium has no standing
 The company has a right to redress for the wrongs committed to it by the Spanish government;
the shareholders do not (international law has no provision for this)
Question whether Canada is the national state of the company
 Only national state of company can make claims on behalf of the company at IL; in this
case it’s Canada
 Nationality of corporations at IL is based to a limited extent on IL rules for nationality of
individuals
Siège Social Test – seat or management or centre of control  genuine link.
 Incorporated in Canada and remained its registered office, accounts, and share registers there
for 50 years; board meetings also held there
o “Close and permanent connection, fortified by the passage of over half a
century”
 This has been recognized by other governments
 Canada excercised diplomatic protection on behalf of the company
o Later cessation of diplomatic protection does not invalidate nationality
Rejects Nottebolhm test as too difficult. Would have to weigh shareholders and seat of corporation
against each other
 So many countries’ nationals are shareholders – will open floodgates if diplomatic protection
of shareholders were allowed
 If people set up a corporation in a country other than their own, they are probably doing it for
tax reasons, etc., in which case it seems fair that they should take the risk that this new country
might not be as good at defending them as their own country
Electronica Sicula S.p.A (ElSI Case), US v. Italy (p. 536)
Ratio: applies the rules in Barcelona Traction; fact that shareholders were all in the US has no import; the Siège Social was
Italy, the company was Italian
Jurisdiction
ICJ [1989]
Facts
 Italian corporation was the wholly owned subsidiary of two US companies
 Assets of company were requisitioned
 Question whether that was a violation of Italy’s international obligations to the US under the
Treaty of Friendship, Navigation, and Commerce giving their companies the right to control
and manage corporations in the other country.
Issues
Can the US sue on behalf of the two companies?
Holding
No
Ratio
 Skips issue of standing
 American companies have no more rights than the rights granted to shareholders under Italian
law
 The requisition order did not affect the “direct rights” of those corporations, thus no FCN
Treaty rights were breached
o Only affected rights of an Italian corporation – Americans were shareholders,
but who cares? (Barcelona Traction)
 Basically that there was nothing stopping the treaty from allowing the US to espouse its
national’s interest as shareholders in the Italian company (???)
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International Centre for the Settlement of Investment Disputes (ICSID)
Settles disputes between host states and foreign private investors
 S. 25(2) of the Convention allows the parties to agree that a corporation is a national of
another contracting state, even if the laws of the host country require that the corporation be
incorporated locally
o However, there must still be a “genuine link”
State Jurisdiction over Persons
Distinction between a state’s ability to prescribe a rule of law (prescriptive jurisdition) and a state’s
ability to enforce that rule (enforcement jurisdiction)





Issue here is co-existence with other states. Extra-territorial effect of a state’s jurisdiction
over persons might infringe on sovereignty rights of other states.
o Therefore, there must be limits to a state’s jurisdiction over persons from a
legislative and enforcement perspective.
Note the difference between prescriptive and enforcement jurisdiction – can prescribe law
but that does not mean it can be enforced.
Also note that there must be jurisdiction not only over the person involved but also the
subject matter (ie the objects, acts and events that might be complained of)
Distinction between a state’s ability to prescribe a rule of law (prescriptive jurisdition) and
a state’s ability to enforce that rule (enforcement jurisdiction)
o A state may have jurisdiction to make a rule of law but lack the jurisdiction to
enforce it
Distinction between control of objects, acts, and events complained of – the subject
matter over which jurisdiction is asserted – and power over the actors who
perpetrated the alleged wrongs
o State must have jurisdiction over both the person and subject matter involved in
order to validly prescribe and enforce its laws (civil or criminal)
A. Subject-Matter Jurisdiction
1. Scope of Jurisdiction
Territoriality: In principle, a state may legislate over the subject matter of anything within its
territory (as long as it is not in violation of international law)
 Possible for more than one state to claim jurisdiction over the subject matter, in which case
international rules apply
 Jurisdiction of national courts cannot be conferred by the sovereign when he has no
jurisdiction according to principles of international law.
 In civil matters, no conventional or CIL rules (except in the area of state and diplomatic
immunities) governing other than that states must have an adequate system of adjudication
and apply rules of private international law where applicable
CRIMINAL JURISDICTION
 In order for a state to exercise criminal jurisdiction, act must have a connection to the state
(jurisdiction in rem) and the suspect must be physically inside the state so he can be put
on trial (jurisdiction in personam)
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


Jurisdiction over the crime (reach of legislative power of the state) vs. jurisdiction over the
person (reach of the processes of the courts)
The practice of individual states with respect to the exercise of jurisdiction over persons,
property, acts, or events is not uniform
o Anglo-Amer tradition always adhered to territorial principle of jurisdiction (b/c
were historically surrounded by water and was hard to escape) whereas Western
European States followed the nationality principle
Distinction between:
o International crimes (e.g. genocide)
o Transnational crimes of international concern (e.g. international terrorism or drug
trafficking)
o Transnational crimes of domestic concern (i.e. common crimes with constituent
elements occurring in more than one state
The Steamship Lotus – France v. Turkey
Ratio: For crimes not occurring completely in one state or the other, each is able to exercise jurisdiction over the incident as
a whole (concurrent jurisdiction); * UNCLOS: now, only person’s state or the state of the ship a person is on can exercise
jurisdiction for events happening at sea
Jurisdiction
PCIJ [1927] (submitted by special agreement between France and Turkey)
Facts
After a collision on the high seas, Turkish authorities arrested M. Demons, officer of the watch, tried and
convicted Demons under Turkish law (which has extra-territorial application) for deaths of eight Turkish
sailors
Issues
Did Turkey act in conflict with international law?
Holding
No (Turkey)
Ratio
- Rules of IL flow from the consent of states, therefore restrictions on states can never be
presumed.
- A state cannot exercise power of any form in the territory of another state, but it CAN
exercise jurisdiction outside its own territory, subject only to certain rules
France has to show that such a violation of IL exists, rather than compelling Turkey to establish a ground
for its national jurisdiction
- France argues that the offense must be regarded as having taken place on French territory (the
French ship), and thus Turkey has no jurisdiction
- This is invalid; constituent elements of the offence (viz., its effects) occurred on Turkish territory
(the Turkish ship) and there is no principle of international law which limits a state’s ability to
prosecute in these circumstances
In cases such as this, where the constituent elements of the incident do not occur entirely in either
State’s territory, each is able to exercise jurisdiction over the incident as a whole (concurrent
jurisdiction)
Comments
 Case shows few rigid limitations on jurisdiction over the offence set down in customary
international law
o But practical limitation in that state will not generally attempt to exercise
jurisdiction over matters in which it has no substantial interest or concern.
 Jurisdiction is territorial, but it doesn’t follow that a state cannot exercise that
jurisdiction with respect to events that occurred extra-territorially
o E.g. If you shoot a gun across the border, and kill someone on the other side, both
states have jurisdiction over the crime, on a territorial basis
 Not the case anymore – see art. 97 of the UNCLOS – “penal jurisdiction … over navigation …
cannot be enforced against that person, only his national state or the state of his ship’s flag”
67
2. Basis of Criminal Jurisdiction
There are 6 bases upon which claims to prescriptive or enforcement jurisdiction may be founded –
no hierarchical order, but some are universally accepted while others are not
1. Territorial Principle
 The state in whose territory a crime is committed has jurisdiction over the offence
 Primary working rule – also the basic position in Canada
 Includes landmass, internal waters and their beds, territorial sea and its subsoil,
airspace above all of the former.
 Can be extended to 200 nautical mile EEZ
 Five possible different applications of this:
o Subjective or Initiatory Principle: act deemed to have been committed in the
place where it commenced
o Objective or Terminatory Principle: state were act is consummated or the last
constituent element of the offence occurs has jurisdiction
o Injured Forum Theory: state that felt detrimental effects takes jurisdiction
o Lord Diplock’s Theory in Treacy: state may take jurisdiction if any element of the
offence occurred within its borders
o * Reasonable and Legit Interest (Real and Substantial Link Test): Where state
has reasonable or legitimate interest in doing so compared with other states
involved.
 In Libman, SCC took approach that Canadian courts will take
jurisdiction where a significant portion of the activities took place in
Canada
2. Nationality principle
 Based on nationality of the author of the crime
 Used extensively in CVL countries, not so much in CML countries (Canada claims
jurisdiction on this ground only for a few serious crimes, like treason)
 There has been a reemergence of this principle, even in states that don’t normally accept this
approach  e.g. sex-tourism
 The nationality principle is not contrary to international law, so Canada is free to change the
Criminal Code to allow it to apply in more cases
 But, as of now, if you commit a murder on a row-boat on the high seas, you cannot be
charged under Canadian criminal law
o Problem with double jeopardy if two states claim concurrent jurisdiction – thus,
best confined to the most serious offences
3. Passive personality principle
 Based on the nationality of the victim
 This principle is not as well accepted in international law
o France contested in The Steamship Lotus, but the court reserved its opinion as it was
not the sole basis of Turkey’s claim
 Problem with this – a person coming into contact with foreigners in his own country may
unknowingly be subject to a bunch of foreign criminal provisions (dissenting Judge Moore in
The Steamship Lotus)
o Canada has limited jurisdiction on this basis, dealing with internationally
protected persons, hostage-taking, and war crimes
 There has been a resurgence of this approach: Spain requested extradition of Pinochet for
crimes against Spanish citizens in Chile
 Terrorist acts  has generated extensions of criminal jurisdiction on the basis of nationality
of the victims: the US has jurisdiction over terrorist acts committed against US citizens
abroad (traditionally US only stuck the territorial principle)
68
4. Principle of Protection:
 Behaviour by foreigners abroad threatens the security of the state or its fundamental
interests
o E.g. espionage, treason, counterfeiting of money or passports
o E.g. Spanish Trawlers on the high seas (?)
5. Universal Jurisdiction:
 Three interpretations:
o 1. A state may exercise jurisdiction over all crimes, committed by anyone, wherever
they occur
 Rarely if ever used
o 2. Applies to serious crimes where the perpetrators are considered hostes humani
generis – enemies of humankind
 Applies to piracy, war crimes, torture
o 3. Applies where states agree in treaties that any of them may “universally” try
individuals who commit crimes dealt with in the treaties themselves
 Important in cases where states, to whom other basis of jurisdiction are
applicable, are unwilling or unable to prosecute or extradition is not
possible for some other reason
 Based on the presence of the accused on the territory of the forum state
 Canada uses second two principles in a limited fashion
 A # of treaties grant extra-territorial jurisdiction (Convention against torture)
 The recent shift is towards international criminal tribunals
 Recent case where a Rwandan was prosecuted in Montreal for war crimes committed
in Rwanda
6. By Agreement
 E.g. 1985 Visiting Forces Act – agreement between US and Canada which allows US to
exercise jurisdiction over military personnel who are on bases on Canadian Territory.
Extra-territorial jurisdiction
 Canada claims jurisdiction beyond its maritime boundaries (Arctic Water Pollutions Act,
arrest Spanish fishermen far beyond EEZ)
 Competition Act – can criminalize corporate dealings that take place outside Canada because
they have an effect on the Canadian marketplace
 Also criminalization of certain dealings with rogue states – US law can apply to foreign
nationals who trade with Cuba, for example (?)
3. Scope of Territorial Jurisdiction
Libman v. R.
Ratio: For Canadian criminal law to apply extraterritorially, it is sufficient that there was a real and substantial like between
the offence and Canada; planning/perpetrating the fraud from Canada is enough to establish that link
Jurisdiction
SCC [1985]
Facts
Libman operated a boiler room in Toronto; would telemarket to Americans to invest in a mining
operation in Costa Rica. The $ would be shipped to Costa Rica, it would be deposited in off-shore
accounts. Charged with fraud.
Issues
Jurisdiction to prosecute in Canada?
Holding
Yes
Ratio
As a basic principle, Canadian crim law does not try to apply extra territorially  Unlike Turkish law
69
which binds the actions of all its citizens, whether at home or abroad, Anglo-American states in general
attempt to refrain from extra-territorial jurisdiction
Libman argued that because the execution involved victims in the US sending $ to Costa Rica, the
essential crime (fraud) actually happened in the US
 La Forest J – 2 elements – territorial connection; or effect of crime is connected to Canadian
territory
 Court found planning the fraud was enough of a territorial connection to prosecute him in
Canada
There must be a real & substantial link between the offense and the country
“In a shrinking world, we are all our brothers’ keepers.”
4. Scope of Universal Jurisdiction
Aut dedere aut judicare (extradite or prosecute)


Conceptually simple: any state may exercise criminal jurisdiction over individuals accused of
crimes that have attracted sufficient international opprobrium to allow it
Question is: what crimes count?
R. v. Bow Street Magistrate, ex parte Pinochet
Ratio: a crime will be subject to universal jurisdiction where it: (1) violates jus cogens; (2) so egregious that it can be
considered a crim against mankind (hostes humani generis); in this case, Pinochet’s contravention of the UN Convention on
Torture meets those grounds: Aut dedere aut judicare (extradite or prosecute)
Jurisdiction
HoL [2001]
Facts
 Pinochet inflicts illegal torture, imprisonments, and disappearances on his own citizens
 After civilian government is reinstated, Pinochet goes to UK for medical treatment
 While he was there, Spain called for his extradition, based on his illegal torture and execution of
Spanish citizens (based on passive personality) and Chileans (on the basis of universal
jurisdiction)
Issues
Is there universal jurisdiction to try Pinochet?
Holding
Yes (but he is not tried on compassionate grounds because of his health)
Reasoning
Majority
 Finds there is a basis for universal jurisdiction under the UN Convention Against Torture (CAT)
o CAT stipulates that a state that has a torture-accused person on their soil must either
extradite him or prosecute him themselves
 Aut dedere aut judicare (extradite or prosecute)
 (Designed to prevent impunity)
Lord Millet
 Crimes justify universal jurisdictions under international law if two conditions are met:
o 1. Violation of jus cogens (pre-emptory norm of international customary law)
o 2. So serious that the crimes must be considered an attack on the whole
international legal order
 Isolated offences, even if committed by public officials, do not qualify
Notes
 “Cross-pollination” of domestic and international jurisdictions – Millet cites foreign cases
 According to Professors Bantekas and Nash, the missing ingredient of Millet’s formula is “the
consent of states to subject an offence to universal jurisdiction through treaty or custom”
70
Yerodia Case (Congo v. Belgium)
Ratio: Belgium has prescriptive jurisdiction here, but no enforcement jurisdiction; foreign ministers must be able to travel
freely/have diplomatic immunity based on Sovereign Equality; however, “immunity isn’t impunity”; once he isn’t foreign
minister anymore, Belgium can get him
Jurisdiction
ICJ [2002]
Facts
 A Belgian court issued an arrest warrant for Yerodia, at that time sitting foreign minister of the
DRC
o Belgium has essentially a global court – it has removed the “on its own soil” requirement
for application of universal principle, so they can basically try anybody they want, in
absentia
Issues
 1. Was Belgium’s exercise of universal jurisdiction lawful?
 2. Is it legitimate to try a sitting Foreign Minister?
Holding
1. Yes (Belgium), 2. No (Congo)
Reasoning
Universal Jurisdiction
 No established practice in which States exercise “pure” universal jurisdiction, with no link
whatsoever to forum state
 However, this is not to say that it COULDN’T be legal, and international law is trending in that
direction
o But it is essential that procedural safeguards are put in place – e.g. national State of the
accused must have the opportunity to respond, prosecutor must act in full independence
from his government
o Also, can only be exercised over the most heinous crimes in the eyes of the
international community
 Piracy is the classic example: hostes humani generis (crime against mankind)
Immunity
 A foreign minister must be able to travel freely, so Belgian courts can’t just indict him in
absentia (this point prevails)
 However, “Immunity, not impunity”  that is, once the foreign minister quits his post, you can
get him
Eichmann Case (1961)
Ratio: first use of crimes against humanity; dubious jurisdictional grounds used to justify the trials
Facts: Eichmann was tried for crimes against humanity
Notes:
- 1. Basis of jurisdiction  erga omnes – universal jurisdiction over the crime significant
- However, it is dubious that these were crimes at the time of criminal law
o It created crimes after the fact (against non-retroactivity of crim law) – this is a
troubling aspect of the Nuremberg trials
- 2. Second basis – nationality of victims –
o But during the war Israel didn’t exist so they didn’t really have Israeli nationality
- The court found there was a nexus between the Israeli state and the Jewish people which
justified the jurisdiction on the basis of the protective principle (and that it could be
applied to a ‘people’)
- Much of the norms we have today were developed after WWII; specifically to enable the
international community to prosecute people like Eichmann
o It would have made a lot more sense to prosecute him in Germany or Poland on
territoriality principles
- It is a significant challenge to have a fully justified explanation of Israel’s position in international
law
71
5. Suppression of Transnational Crimes of International Concern (Terrorism)




If a terrorist act doesn’t qualify as a crime against humanity, there is no universal
jurisdiction
Bribery greatly distorts the global marketplace – affects Canadian interests – a UN
convention is getting underway on this
Throughout 20th C, states have generally taken a cooperative approach to dealing with
transnational crimes – multilateral treaties that obligate states to criminalize certain types of
behaviour and cooperate in prosecuting it
When a state has custody over an accused in such a crime, it must deport or prosecute: aut
dedere aut judicare
o Like universal jurisdiction, implicates states in prosecutions to which it may have no
jurisdictional links
o But different from universal jurisdiction in that it is not permissive, but obligatory,
for the state to take action
Suppression of Terrorism
 International community has dealt with this in a piecemeal way – different conventions that
deal with different manifestations of terrorism
 One such convention is dealt with below
International Convention for the Suppression of Terrorist Bombings, U.N. Doc 1998
Art. 4
Art. 6
Art. 7
Art. 8
Art. 11
Art.12
Notes

Each State is to adopt criminal offences punishable by appropriate penalties in their
domestic law
Each state must take all necessary measures to establish jurisdiction over the
offences based on territoriality or nationality principle, and has the option of
establishing jurisdiction based on lesser principles (committed against a
national, against a State or government facility, by a stateless person who has
residence etc.)
Each state must make all efforts to investigate and arrest
Mandatory requirement to extradite or prosecute without undue delay: aut
dedere aut judicare
None of the offences in art. 2 are to be regarded as political offences or inspired by
political motives for the purpose of extradition or mutual legal
assistance….however…art.12….
This eliminates any obligation to extradite or afford mutual legal assistance where the
person will be prosecuted or punished on account of race, religion, nationality, ethic
origin, or political opinion.
Intended to fill gap left by piecemeal approach of dealing with international terrorism
B. Jurisdiction over the Persons
A state has no difficulty enforcing jurisdiction if the person is inside its boundaries – has plenary
authority subject to international human rights rules; what about jurisdiction over persons outside its
boundaries? = Canada/US approach: mala captus bene detentus (wrongly captured, properly detained);
abduction of the person back to Canada/US to prosecute (ex. Eichmann/Israel, Machain/US)
72
But if a state has jurisdiction over a person who is not inside its boundaries, how does it get its hands
on him?
 Occasionally states assert jurisdiction against the property of absent persons
 Abduction
 Extradition (not covered)
Question: does abduction or fraudulent luring of a fugitive invalidate the jurisdiction of the national
court who tries him?
 US says no, based on the principle of mala captus bene detentus (wrongly captured,
properly detained)
o Once a court has possession of the accused, has jurisdiction and all that is required
for a fair trial – doesn’t matter how the accused got there
 Canada and US weigh the illegal arrest against the merits of the criminal charge
 Arguments against jurisdiction gained through illegal acts
o Government officials should not have a separate set of rules as regards their conduct
o Respect for the authority of a government will be affected
o Right to be protected from abduction is a basic human right
o There is no other way of ensuring that states won’t abduct (criminal and civil
penalties against state officers won’t work)
United States v. Alvarez Machain (USSC, 1992)
Ratio: mala captus bene detentus; where country hosting the criminal refuses to prosecute/extradite,
other means may be used; must balance the illegal arrest against the merits/seriousness of the criminal
charge
Facts:
Mexican nationals kidnapped A-M in Mexico and brought him to the US for trial for the torture and
killing of a DEA agent
Issue:
Can the US legally prosecute someone brought to the country illegally?
Held:
Yes.
Reasoning:
- Extradition treaty does not exclude other means of acquiring defendants beside extradition,
thus treaty was not violated
- May be correct that abduction was “shocking” and violated international law, but it
did not violate the extradition treaty, and thus does not prohibit his trial in the US for
violations of US law
- Mexico refused to prosecute/extradite, so US had the right to take AM since extradition
treaty didn’t disallow it
Dissent:
- US violated territorial integrity of Mexico, and thereby undermined the purposes of the
treaty.
- Treaty was designed to cover the entire subject of extradition
- If the treaty did not prohibit kidnapping, it would be mere verbiage
- There is no justification for disregarding the rule of law
Note: Canada submitted an amicus curiae brief in this case in which it condemned the US
conduct
Same type of case with Israel going after Eichmann
Other cases, like Toscanino (US) and Ebrahim (South Africa), take the opposite position, against mala
captus bene detentus
73
Prosecutor v. Dragan Nikolic (ICTY, 2003)
Ratio: Must balance the injury of letting serious international criminals go free against the harms to
sovereignty of target state
Facts:
Accused was abducted in Serbia by unknown individuals and transferred to Bosnia, where he was
arrested by SFOR and taken to the Hague
Issue:
Do the violations of Serbia’s sovereignty and the accused’s rights prevent the ICTY from exercising
jurisdiction?
Held:
No – court can still exercise jurisdiction
Reasoning:
- No case law in the Tribunal, so have to look to national jurisprudence
- Setting aside jurisdiction is not an appropriate remedy for the violation of procedural rights
in cases of extremely serious crimes universally condemned as such
- Balancing approach: injury caused by letting commiters of extremely serious crimes
go free is higher than the injury to the sovereignty of the target state by limited
incursion into its territory
- If there is no complaint by the state whose sovereignty was breached (as in this case), or if
the issue was resolved diplomatically, it is even easier for courts to assert their jurisdiction –
the accused cannot raise this objection if the state does not
o Certain extreme human rights violations would be so serious that jurisdiction
would have to be declined, but court does not specify what those are
International Criminal Law
Kindred 727-775
Relationship between International Humanitarian Law and International Criminal Law
 Overlap to the extent that violations of IHL may be international crimes, ICL goes beyond
armed conflicts
International law reflects the convergence of the penal aspects of international law and the
international aspects of national criminal law
A. Development of International Criminal Law
1. International Responsibility After World War II
Nuremburg War Crimes Trials
Ratio: introduces Crimes Against Humanity, although only when they have nexus with war.
Jurisdiction
[1947] – Conducted Pursuant to the Nuremburg Charter, 1945
Ratio
The making of the Nuremburg Charter was the exercise of the countries to which the German Reich
unconditionally surrendered and their right to legislate over occupied Germany, which has been recognized
by the civilized world
74
Reasoning
Notes
Dealt with three types of crimes:
Crimes Against Peace
 Violations of Kellogg-Briand Pact (1928)
 Idea that you could still prosecute someone for going to war was revolutionary in 1945
 US adamantly against the Nuremburg definition of just war, since this would make any nondefensive war not authorized by UN illegal
War Crimes
 Violations of Geneva and Hague Conventions
 Least controversial part of the tribunal
Crimes Against Humanity
 Radical innovation – Under CIL at the time the way in which a government treated its own citizens,
citizens of allied countries, or stateless people, would not be protected by Geneva Conventions
 Source for this was the third, least trusted principle of international law: general principles
o These acts so shock the conscience that they have to be prosecuted
o Relationship with R2P?
 Limitation – had to have a nexus with war – Art 6(c) of the Nuremburg Charter – committed in
connection with War Crimes or Crimes against peace (done in order to restrict scope of CAH so
that Soviets and others couldn’t be haunted by it)
 Trying to link crimes against humanity to war crimes – this is to make war crimes seem less like a
radical intrusion of state sovereignty
Justification for prosecution
 This is not just victor’s justice but adherence to international law.
 International law can concern itself with the actions of individuals, not only states
 State immunity cannot be considered a defence – international crimes are committed by men, not
entities, and they must be held to account
 “He who violates the laws of war cannot obtain immunity while acting in pursuance of the
authority of the State if the State in authorizing action moves outside its competence under IL”
 “To initiate a war of aggression … is the supreme international crime”
 Maxim of nullum crimen sine lege had been complied with – the acts were criminal at
international law at the time they were committed
2. International Humanitarian Law (laws of war)
Jus ad bellum: when you can go to war; Jus in bello: how you can fight the war, whether it’s just or not;
Distinction Principle: have to distinguish between civilians/combattants, between civilian targets and
military targets: often depends on context; Principle of Proportionality: means employed to achieve
military objective must be proportional to incidental civilian casualties/dmg to civilian objects
Historical law of war
 In many societies (Zulus), they are the most ancient and regulated legal norms
 In European tradition, used to be different standards for wars between Christians and
between Christians and infidels; and later, between civilized and uncivilized peoples
1. Historically, jus ad bellum – law about when you are allowed to go to war – was the primary focus
2. In the 19th C, shift towards jus in bello – laws of how wars are fought – doesn’t matter whether
war is just or not, have to respect these laws
 Distinguish between civilians/combatants (Distinction Principle)
 Distinguish between civil targets and military objects.
o Note the lines between the two are often blurred and context driven
 Principle of proportionality – means employed to achieve military object must be
proportional to the incidental civilian casualties or damage caused to civilian objects.
Modern law of war
 Beginnings of Red Cross movement after Battle of Solferino
75
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




First Geneva Convention (1864)
o Narrow focus – dealt with wounded soldiers
St. Petersburg Declaration (1868)
o Banning of dum-dum bullets
Hague Convention (1907)
o Codified rules of land warfare
o Dealt with means and methods of war
o Some would say this is contradictory – in wartime laws break down, so it’s hard to
enforce laws like this
Four Geneva Conventions (1949)
o Dealt with people in the hands of a belligerent
 POWs and civilians within occupied territory
o Idea is once you have occupied a territory, there is no more active combat
o Only operate in the context of war, specifically international armed conflict
o A single brief article, Article 3, common to all four conventions, specifies very
basic humanitarian protections in internal armed conflicts
o 1949 Geneva Convention IV (Civilians) – p. 736
 Arts. 27, 32: humane treatment of protected persons
 Art. 146, 147: obligates (not discretionary) states to prosecute perpetrators
of grave breaches of these laws
 Rape is not included as a grave breach
Two additional Protocols to the Geneva Conventions (1977)
o Protocol I:
 Merged Hague and Geneva Conventions
 Extended the application of the conventions to national liberation
movements
o Protocol II:
 Enlarges humanitarian protections
 Applies to internal armed conflicts (defined as between government forces
and organized armed groups which control part of state territory  not
riots)
 Protocol II lacks widespread support of other Conventions
Laws of war have come closer to the field regulated by the law of human rights
3. Multilateral Conventions Specifying International Crimes

IHL is only one source of international criminal responsibility – also specific treaties
Convention for the Prevention and Punishment of the Crime of Genocide (UN, 1948), p.
743






First of the specific treaties
Relatively weak means of enforcement  looked ahead to international tribunals for
enforcement
Imposes obligation on states parties to prevent or punish genocide
Art.1: applies during war and peacetime
Art. 2-3: definition of crime
o Victim is the group, not the individual
o Does not include political groups
Art. 4: holding public office does not confer immunity from punishment
o See arrest warrant issued for Omar al-Bashir (Sudan)
76
Convention Against Torture (UN, 1984), p. 745

Art. 1: definition of crime
o Severe mental or physical pain and suffering
o Inflicted by, or with the consent of, persons acting in their official capacity –
limitation
 Art. 2: states must take action to prevent in their territory
o The order of a superior is not a defence
 Art. 3: no state shall expel or extradite a person to a State where there is a good chance he
would be tortured [non-refoulement]
 Art. 4: Persons committing genocide or any of the other acts enumerated in Art 3 shall
be punished, whether they are constitutionally responsible rulers, public officials or
private individuals
 Art. 5: states must take measures to establish jurisdiction if the offence was committed on its
territory or if the offender is a national of the state
o States have the option of doing so if the victim was a national of that state
o Also, states must establish jurisdiction or extradite if the alleged offender is in their
territory (Aut dedere aut judicare)
Provides for Universal Jurisdiction (Ex parte Pinochet)
Draft Code of Crimes Against the Peace and Security of Mankind (GAOR, 1996)


Not official law, but instructive
Art. 16: individuals who participate as leaders in aggression committed by a state are
criminally responsible
B. Prosecution in the Ad Hoc International Tribunals
Established by the SC pursuant to Ch. 7, arts. 39, 41, 42
 Why didn’t they establish it by treaty?
o Wanted to be fast
o Need to be able to proceed without the consent of countries like Serbia (under
Milosevic)
With the establishment of the ICTY and ICTR, systematic rape has been recognized as a war
crime and a crime against humanity
What are the objectives of these tribunals?
 Retribution?
 Deterrence?
 Incapacitation?
Ad Hoc International Criminal Tribunal for the Former Yugoslavia (ICTY), p. 751
Imposed criminal jurisdiction on states without their consent – Revolutionary
 Established by SC Res. 827 (1993)
 Provides for prosecution of severe violations of international humanitarian law
o Art. 2: Grave breaches of the 1949 Geneva Conventions (killing, torture, hostage
taking, etc.)
o Art. 3: Violations of the laws or customs of War
o Art. 4: Genocide
77
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

o Art. 5: Crimes against humanity (murder, rape, persecution of minorities, etc.)
ICTY puts everyone from all sides on trial…..but not going to intervene. Punishment only
after the fact. Accepting crimes on the ground and then punishing
This was considered an international (and not merely a domestic) situation because of the
intervention of the Yugoslav army in Bosnia (?)
Imposed criminal jurisdiction on states without their consent  revolutionary
o Former Yugoslavia would not have consented to a treaty when its own head of state
would probably be prosecuted
The Prosecutor v. Dusko Tadic
Ratio: the establishment of ad-hoc tribunals is a power that the Security Council holds under UN Charter article 41
Jurisdiction
ICTY [1995]
Issues
Was the tribunal properly established and have subject matter jurisdiction?
Holding
Yes
Ratio
 Based on decisions in the Lockerbie case, Namibia Advisory Opinion, and another case, there seems
to be no basis for the tribunal to review the actions of the SC
o Chapter VII confers very wide powers on the SC – the setting up of a tribunal falls within
Art. 41
 The fact that the tribunal was set up by a political body does not invalidate it  this happens all
over the world with legislatures
 It IS possible to create a truly independent and judicial body
The Prosecutor v. Dusko Tadic (p759)
Ratio: Under the ICC statute no nexus with war is needed to prosecute for crimes against humanity; however, under Geneva
Conventions/ICTY statute, to prosecute for “grave breaches” (genocide/crimes against humanity), there must be a nexus with
“international armed conflict;” recent state practice/declarations may show a shift in opinio juris, but not enough to crystalize
CIL yet
Jurisdiction
ICTY [1995]
Issues
Applicability of the “grave breaches” provisions of the Geneva Conventions, 1949
Ratio
 Art. 2 of the ICTY statute, which deals with “grave breaches” of the Geneva Conventions, only
applies to those breaches committed within the context of international armed conflicts
o Statement by permanent member of the SC that art 2 is not limited to armed conflicts is
nothing but an opinion and, with time and other opinions, could signify a change in opinio
juris leading to a change in CIL
 Requirement of nexus with “international armed conflict” for prosecution for genocide and
crimes against humanity, however, still apply
The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case
Ratio: During the relevant time the acts alleged were committed, the conflict in Bosnia can be considered to have been an
international armed conflict, as external forces were involved in internal conflicts; therefore Geneva Conventions/ICTY Statute
apply
Jurisdiction
ICTY [1998]
Facts
Celebici was a prison camp where the four accused were stationed. Delalic was the commander. All four
were charged under art 7(1) of the ICTY Statute (for murder, torture, rape and other horrible things) and
Mucic and Delalic were also charged because of his responsibility as commander, causing great suffering,
plunder of private property
Holding
All guilty
78
Ratio


The conflict in Bosnia must be regarded as an international conflict throughout 1992, as
external forces were involved in internal conflicts (most especially the forces of the JNA =
Yugoslav Armed Forces)
o Therefore, Geneva Conventions apply and ICTY Statute is applicable
o Not only military commanders, but also civilians holding positions of authority, are
encompassed by the doctrine
Also includes people in de facto positions of authority
Ad Hoc International Criminal Tribunal for Rwanda (ICTR), p. 766





Established by SC Res. 955 (1994)
Art. 2: Genocide
Art. 3: Crimes against humanity – includes rape as a crime against humanity
The Rwandan conflict was basically internal
o Thus, it is restricted to genocide, crimes against humanity, and violation of art.
3 of the Geneva Conventions 1949 and art. 4 of Additional Protocol II, which
apply to internal conflicts
 No grave breaches of Geneva Conventions provisions like in ICTY (See
Prosecutor v Tadic)
o Unlike the ICTY, the ICTR can prosecute persons for crimes against humanity
whenever committed as part of a widespread attack against a civilian
population –> ICTY can only prosecute for crimes against humanity when
committed in armed conflict
Otherwise, ICTR statute is similar to ICTY statute
The Prosecutor v. Jean-Paul Akayesu
Jurisdiction
Facts
Issues
Holding
Ratio
Notes

ICTR [1998]
Elected bourgmestre of Taba commune in 1993 – traditionally had extensive powers in Rwanda. Indicted
on 15 counts. First full trial of an accused for genocide
Is Akayesu guilty of genocide, inciting genocide and violations of art 3 common to conventions?
Yes on crimes against humanity (art 3), genocide (art 2) and inciting genocide (art 2) but not on art 3.
Crime of genocide does not imply the actual extermination of a group, but an act committed to
destroy “in whole or part” a distinct national, ethnic, or religious group
 Requires “special intent” (second mens rea) – not just intent to kill (or displace, etc.), but intent to
destroy in whole or part a distinct group
Intent can be inferred from a number of intentions of fact
 Genocide: In this case, intent could be inferred from the circumstances – every man, woman and
child was killed without exception.
 Crimes against humanity: All rapes were committed against Tutsi women with intent to kill
afterwards
 Incitement of genocide: Accused repeatedly made statements calling for the commission of
genocide.
 Fact that genocide occurred while the RPF and RAF were in conflict cannot be mitigating
circumstance.
No conviction on Geneva Convention common article 3
 Prosecution failed to prove BARD that A. was member of armed forces duly mandated/expected in
capacity as public official or agent or person otherwise vested with public authority of a de facto
representative of the gov to support and otherwise carry out the war effort
Tutsis – declared to be a different racial group by the Belgians – should they be treated as
one
79

Is sexual violence a part of genocide?
o Clearly it is a crime, but genocide?
o Opinion: we need to equate rape in genocide to raise awareness of rape
o Some feminist groups approved (this shows how bad rape is) and some didn’t (can’t
rape be taken seriously without needing to be called genocide)?
Principle of Command Responsibility
Makes the commander responsible for the behavior of his subordinates
3 principles:
1. Effective command (your orders are obeyed)
2. You have knowledge that crimes are being committed
3. You fail to act, investigate, etc.
* See Convention on Torture Article 2(3); command principle doesn’t apply
 What about Genocide Convention? Articles 3, 4 might suggest that command principle
doesn’t apply to it either
Prosecution v Perisic, ICTY
Ratio: P. didn’t have “specific direction” of forces who committed massacres; specific direction is
necessary element for prosecution to prove BARD in aiding/abetting
Trial : convicted under command responsibility principle in 2011 as aider/abetting siege of Sarajevo
and massacre in Srebrenica
Appeal: acquitted for lack of “specific direction” of forces who committed acts
 Specific direction first set down in Prosecutor v Dusko Tadic appeal
 Specific direction is necessary to be proved BARD for aiding/abetting
C. The International Criminal Court
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

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Established by Rome Statute of the International Criminal Court, 1998
Basically a treaty body (though the possibility of Chapter 7 referrals still exists)
Intended to be a court of universal jurisdiction – plans for such a court followed WWII,
delayed by onset of Cold War
o Fall of the USSR and war crimes tribunals in Yugoslavia and Rwanda give new
impetus to its creation in the 1990s
Second only to Law of the Sea Convention in its scope
o But FAR MORE INTRUSIVE than that one
Previously, international crimes were dealt with in domestic courts (Eichmann in Israel;
Barbie in France)
Not possible to arrive at unanimity for this statute
o US, along with 7 other states, cast dissenting votes
Unprecedented impact of NGOs in the decision-making process, including small local
organizations
o Some govs were very receptive to the NGOs, others found them presumptuous and
annoying
o Gender-specific crimes were brought forward largely through NGO efforts
Divisive questions at the Rome Conference
1. Which crimes would be included?
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Eventually decided to include only the most serious INTERNATIONAL CRIMES
Question of whether use of force should be included
 US and other states obviously did not want the use of force included
 However, Nuremburg Charter already included crimes against peace – how
can we adopt a more regressive definition than 50 years ago?
 Solution: include aggression, but not define it, so it becomes essentially
useless
o Terrorism not included  US thought national courts would be much more
aggressive in prosecuting it
Would the ICC have automatic jurisdiction over core crimes, or would an “opt-in”
approach be taken case-by-case?
o * All or nothing approach: states can’t make reservations
o Different from the ICJ: for the ICC, there is no additional step to determine whether
jurisdiction applies
Would certain states have to be party to the statute as a precondition to the ICC
exercising jurisdiction – and if so, which ones?
o Germany wanted universal jurisdiction; US wanted a requirement that the
territorial state AND the national state of the accused were members
o * Compromise: ICC can apply jurisdiction if the territorial state OR the
national state of the accused are members
Would the prosecutor be able to initiate prosecution?
o Yes, but this power is rarely used
Role of the SC?
o
o
2.
3.
4.
5.
1998 Rome Statute of the International Criminal Court, p. 776




Complementary to national criminal jurisdictions (art. 1)
Seat is at the Hague
Court has international legal personality (art. 4)
Crimes limited to most serious crimes of concern to international community as a
whole (art. 5)
o Genocide
o Crimes against humanity
o War crimes
o Aggression (once a definition of aggression has been established  hasn’t happened
yet)
 Jurisdiction only with respect to crimes committed after entry into force of Statute (and
after entry into force in each state unless specific declaration made) (art. 11)
 No statute of limitations (art. 29)
 No reservations are allowed (art. 120)
Art. 1 and “Complementarity” of the ICC to national courts.
17
 The ICC will only take jurisdiction where states are unwilling (art. 17.2 =
question of due process being denied) or unable (art. 17.3 = national judicial
system has collapsed, referring state doesn’t have access to the scene of the
crime [South Ossetia]) to do so.
 Thus, prosecutor not only has to prove its case, but also prove that the
domestic courts are not willing or able to pursue the case themselves
(except, of course, in the case of a state referral)
 This can be contrasted to art. 9 of the ICTY which gives primacy to the ICTY
over national courts, or to the ICJ, which also has jurisdictional primacy
Art. 6
Genocide
 Takes its definition from the 1948 Genocide Convention
 But no longer needs a nexus with armed conflict
o This is a problem, since all the crimes included (murder, rape, torture,
enslavement, deportation, etc.) are all domestic crimes – only
81
Art. 7
Art. 8
Art. 12
Art. 13(b)
Art. 14
Art. 16
Art. 31
Art. 98
difference is scale
 This immediately raises the question of how many systematic
individual crimes you need to constitute a crime against
humanity
 Obviously this can’t be approached with mathematical
precision
Crimes against humanity
 This is a more advanced definition than the one used in the Ad Hoc Tribunals
o Applies to acts committed as part of a “widespread or systemic
attack directed against any civilian population, with knowledge of
the attack”
 Includes rape and forced pregnancy
War crimes
 Convoluted list of war crimes – apply both to international and internal
conflicts
 Some relate to Geneva Law violations (protected persons in the hands of a
state)
 Others relate to Hague Law violations (conduct of war)
Conditions for applicability
 State on the which the complained conduct occurred (including vessels and
aircrafts)
 OR state citizenship of the accused (NOT the victim)
 A state not party to the ICC Statute can, by declaration, accept the exercise of
jurisdiction by the Court with respect to the crime in question
Security Council referral
State referral
 States cannot refer specific people – only specific situations
 SC under Ch. VII can block investigation or prosecution for 12 months,
renewable
Defences
 Spells out defenses explicitly (distinction from the ICTY case Erdemovic, where
courts could not settle on whether duress is a defense)
 In the ICC Charter, duress IS an absolute defense
Surrender of accuseds
 Deals with surrender provisions – states can’t proceed with a request for
surrender that would violate international law (e.g. surrender of diplomats
serving in their countries)
Security Council Resolution 1593 (p. 806)
 SC refers Darfur situation to the ICC
 It was US Secretary of State Colin Powell who first called what was happening in Darfur
genocide
 SC established a commission of inquiry
o Found ethnic cleansing was taking place – some atrocities
o Proposal that the issue be referred to the ICC
 ICC is interesting in that it excludes almost all the key powers, except the
Europeans
 US was placed in a difficult position, having called the situation genocide, but not
wanting to cast a vote endorsing the ICC
 In the end, they abstained – essentially approving of the referral
82
D. National Prosecution of International Crimes

Traditional way of enforcing international criminal law was, and still is, through national
criminal justice systems
Debate whether prosecution should be before national or international courts
 Question of unwillingness, inability of national courts
 Question of domestic ownership and participation in criminal proceedings
o Is the best way to deal with the situation in Rwanda with a court sitting a planet
away in the Hague?
o One solution: hybrid courts
 Sierra Leone special tribunals
 Cambodia Extraordinary Chambers
Eichmann Case
 “It is the universal character of the crime in question which vests in every state the authority
to try and punish those who participated in their commission”
Crimes Against Humanity and War Crimes Act (Canada, 2000), p. 810
R v Munyaneza: indicted by QCCS for participation in Rwandan genocide after being arrested in
Toronto; convicted to life in prison no parole for 25yrs (1 st degree murder)
 Allows for prosecution of persons for war crimes if the person is present in Canada, or in
certain other quite broad situations (Canadian victim, accused was a national of a state in an
armed conflict against Canada, etc)
 Allows for prosecution of crimes committed before the enactment of the Statute
 Munyaneza was indicted under this act in October 2005 for his role in the Rwandan genocide
after he was arrested in Toronto
o See R v Munyaneza, [2009] QCCS (affd on appeal)
o Convicted to life in prison no chance of parole for 25yrs

Interesting reference to inclusion of CAGs at Nuremburg 60 years after the fact – justified on
the basis of customary law (not true) and general principles
R. v. Imre Finta
Ratio: to have jurisdiction under CC 7(3.71) for crimes not committed in Canada, must be war crimes/crimes against humanity
of particular “cruelty and barbarism”; here, acts don’t constitute such
Jurisdiction
SCC [1994] – per Cory J.
Facts
Finta was part of a Hungarian paramilitary group. In 1944 was involved in deportations of Jews, robbed
people, sent them to camps, etc.
Issues
How to interpret s. 7(3.71) of the Criminal Code – what is basis for jurisdiction? What distinguishes crimes
against humanity from a comparable crime under the Criminal Code?
Holding
In order to have jurisdiction over the matter not committed on Canadian territory under s. 7(3.71), the act
committed has to be defined as a war crime or crime against humanity. Finta’s acts do not constitute war
crimes.
Ratio
Cory J.
 “Cruelty and barbarism” is required for Canada to be able to prosecute crimes with no connection
to Canada under international law
 Accused in this case cannot be assumed to really know that he was part of a plot to
exterminate an entire race of people (very high standard)  thus his acts cannot be
83
presumed to be war crimes
 Thus he cannot be prosecuted
La Forest [Dissenting]
 Cruel and barbaric not needed. More subjective analysis. Look to the objective context for the
crime against humanity and then look to the AR and MR for murder (very low standard)
 The accused must have intended the factual quality of the offence but normal MR would be
adequate
Immunity from Arrest and Prosecution
 Nobody, even a head of state, is immune at international law from arrest and
prosecution before an international court or tribunal
 However, ordinarily no national state can try a high official of another state, because of the
principle of sovereign equality
Ex Parte Pinochet (No. 3), 2000
Ratio: heads of state retain immunity for acts done in official capacity after retirement, but not for crimes against humanity; P
doesn’t have immunity, can be extradited
Jurisdiction
HoL [2000]
Finding
 Pinochet can be extradited
 Basic principle of international law that one sovereign state (the forum state) does not adjudicate
on the conduct of a foreign state – this immunity extends to both criminal and civil liability and to
all activities public or private
 Extends to head of state and the state’s diplomatic representation (Vienna Convention on
Diplomatic Relations, arts. 29, 31, 39)
When the official leaves his post, he retains immunity for acts he performed in his public capacity while in
office, but not for private acts
 Torture (and other crimes against humanity and jus cogens) cannot be considered acts done
in an official capacity on behalf of the state
o How could it be, when torture is criminalized by international law?
 Thus, Pinochet does not have immunity for any acts of torture committed after the adoption of CAT
Yerodia Case (Belgium v. Congo), 2000
Ratio: no impunity for international laws breached by heads of state; once they vacate the position, immunity is gone and
they can be held accountable
Jurisdiction
I.C.J [2002]
Facts:
A Belgian court issued an arrest warrant for Yerodia, at that time sitting foreign minister of the DRC
 Belgium has essentially a global court – it has removed the “on its own soil” requirement for
application of universal principle, so they can basically try anybody they want, in absentia
Finding
 Arrest warrant is invalid
o Immunities accorded to Ministers of Foreign Affairs are not for their personal benefit, but
to ensure effective performance of their functions
o Must be able to travel internationally freely
 No possible distinction between “official” and “private” acts of a MFA, or between acts
performed before or after he assumed office
 No exception for crimes committed under international law (war crimes or crimes against
humanity)
 However immunity does not mean impunity:
o MFAs can still be tried in their own countries
o Will lose immunity if their state waives it
o Will lose immunity when they cease to hold the office of MFA
84
o
Can be subject to criminal proceedings before certain international criminal courts
Protection of Human Rights: Individual and Collective Rights
Kindred 835-856, 884-919
International criminal law looks at responsibility of the individual; HR law looks at responsibility of the
state
 Human rights are now so well-entrenched in the international legal system that no
government challenges their existence or their applicability to state action in its own
territory
 Different from most international law, since they govern the relations between state
and individuals it controls, rather than interstate relations
 Highly intrusive – regulates what have traditionally been within the domestic jurisdiction of
states – incompatible with positivist view of state sovereignty
 International criminal law looks at responsibility of the individual; HR law looks at
responsibility of the state
History of HR Law
 Idea of fundamental or natural human rights goes back to Greek and Roman philosophy 
echoed in Medieval natural law doctrines
o However, never recognized as putting limitations on a sovereigns absolute power
over his subjects
 From 18th C – international customary law standards on the treatment of aliens
 After WWII – atrocities committed during the war motivate integration of HR into
international law
o When UN charter drafted, no automatic assumption that HR should be part of it
 Considerable divergence of views as to whether HR should be content of
international law and what the content of those rights should be
o Great powers don’t really care
o Relatively strong HR provisions in Charter were the result of lobbying by
NGOs and individuals
Universal Declaration of Human Rights (1948)
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Adopted in the context of atrocities of WWII
o Perceived need to establish human rights as a universal human goal
Articles of the UNC promote HR and allow for UN bodies to make decisions based on the
promotion of HR – including decisions that are based in the Economic and Social Council,
declarations regarding non-self-governing territories and the international trusteeship
system.
If UN Charter was a major step in international human rights law, Universal Declaration was
an important second step
In most respects, replicates western liberal approach to human rights
o Inspired by Virginia Bill of Rights, Declaration de droits de l’homme
o Constitutional approach – similar to US and Canadian Constitutions, for example
Criticism of Universal Declaration
o Not truly universal – product of western individualist thought – most of the world
was under colonial domination at the time
o Soviet bloc countries abstained
85
Argued that UD privileged individual rights over social rights (rights to
food, health care, etc.)
South Africa abstained – had institutionalized discrimination
Saudi Arabia abstained – right to change religion conflicted with Islamic law
Canada was reluctant – UD seen as too Marxist/revolutionary
 Right of anyone to work in the public service would mean COMMUNISTS
would be allowed in
 In the end, signed because they did not want to be grouped with such
unsavoury company

o
o
o
Human Rights – Truly Universal?
 Arguably this is not just a set of legal norms, but a particular social and historical experience
 One possible interpretation: this is cultural hegemony!
o Victim/savages/saviours paradigm of Western/non-Western relations
o A hegemony that views culture as an obstacle to exporting universal (Western)
human rights
 Another possible argument: so what if they aren’t universal?
o E.g. we believe men and women are equal as a fundamental matter of human
dignity, so it doesn’t matter if some cultures have entrenched practices to the
contrary, they are WRONG
Process of incorporation into international law
 Declaration took some time to become binding treaties (see below)
 But even before this occurred, it was increasingly seen as an expression of
international customary law
International Covenant on Civil and Political Rights (ICCPR) (149 parties)
Provides negative rights; freedom FROM infringement; creation of HR Committee that hears petitions
from individuals or states
 Negative rights (freedom of expression, prohibition against torture; freedom FROM
infringement)
 Apolitical (or was it?), cost-free (or was it?), justiciable
 Not resource-driven: state cannot torture no matter how poor it is
 Basis for the Canadian Charter of Rights and Freedoms
 There are several differences with the UDHR
o Right to self determination included in ICCPR (not in UDHR)
o Rights of minorities
 ICCPR provides for the creation of an 18 member HR Committee that can hear
petitions from Individuals or states alleging a breach of the Covenant
o Every party to the ICCPR must present periodic reports on their progress in
implementing the rights recognized therein
o Committee may from time to time adopt general comments on content or meaning
of rights entrenched in the covenant in question
International Covenant on Economic, Social, and Cultural Rights (ICESCR) (146 parties)
Provides positive rights; rights TO provide certain things; resource driven; “one man, one vote means
nothing without one man, one bread” (Tanzania)
 Positive rights and imposes positive duties on states
 Reflects socialist viewpoint that was also shared by a number of new ex-colony states
 “One man, one vote” means nothing without “one man, one bread” (leader of Tanzania)
86
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
Doesn’t impose duties of result on states, but imposes duties of conduct – state must work
“to the maximum available resources” to provide food, education, health care, employment,
etc.
o Resource-driven
Not justicable
Optional Protocol to the Covenant on Civil and Political Rights (104 parties)
 Gives a right of petition to individuals who believe that a state that has ratified the Protocol
has violated their rights under the ICCPR
UN reconciles these two competing visions by saying all these rights are inextricable – can’t
have one without the other
 With the end of the Cold War, the ICESCR – ICCPR debate has become a North-South debate
 Many Southern states (China, Singapore) argue that the important thing is to provide for
everyone and maintain order, through authoritarianism if necessary  democracy can come
later
ICESCR and ICCPR are complemented by
 Genocide Convention
 1966 International Convention on the Elimination of All Forms of Racial Discrimination
(CERD) – largely in response to apartheid in SA
 1979 Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
– significant reservations have been entered.
 1984 Convention Against Torture
 1989 Convention on the Rights of the Child (CRC)
Toonen v. Australia
Ratio: HR Committee sidesteps the real question which is about international law with regards to homosexuality; HR
Committee instead rules on question of infringement of privacy
Jurisdiction
HR Committee [1992]
Facts
 Gay activist in Australia petitioned HR Committee seeking a declaration that the two provisions of
the Tasmanian Criminal Code prohibiting “unnatural sexual intercourse” and “indecent practice
between male persons” contravened articles 2(1), 17 and 26 of the ICCPR
o Arts. 17: Privacy
o Arts. 2, 26: Discrimination
 Tasmania argued, with respect to privacy rights, moral issues are a matter for domestic jurisdiction
 Australia argued that law should be repealed as all other states had done so
Issues
Was Toonen the victim of an unlawful or arbitrary interference with privacy? Was he discriminated
against?
Holding
Yes and Yes
Ratio
- Undisputed that sexual relations fall under the concept of “privacy”, and the provision
interferes with it, even though they have not been enforced for over a decade – still could be
enforced (thus the provisions do interfere with his rights)
- Doesn’t matter that the interference is provided for by law
- It is arbitrary because unreasonable and disproportionate for the ends sought by the state—
prevention of HIV—there is no factual or reasonable link between the two
- Moral issues are not, as Tasmania claims, strictly of domestic concern for the purposes of art. 17
* Similar to the approach taken by the ICJ in Use and threat of Nuclear Weapons case
Comments
 (HR Committee’s views are not binding on states)
87
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Note that there was no international element to this complaint
o Although non-intervention in domestic matters is reaffirmed in art. 2(7) of the UN
Charter, HR law has carved a very significant exception to that rule placing concerns
like the ones in this case within the confines of international concern
Committee uses rights to privacy (art. 17) rather than non-discrimination (art. 26).
Why?
o Perhaps half of all states criminalize homosexual acts
o Thus, you can’t say that there is a universal norm of non-discrimination
o Was there an intention on the part of signatory states to include sexual orientation?
 Maybe some, but not others
o So, which way do you go?
 1. Do you go with general practice or the intention of state signatories
(which would preclude something as radical as mandating the legality of
homosexuality)
 2. Or just plow forward as an activist judge, calling it a fundamental
principle, and thus hold that our standards are superior to theirs?
o To avoid inflaming the sensitivities of other states, court decides not to go
there
ICJ in Case Concerning Reservations to the Convention of Genocide put forward the idea
that states do not have an interest of their own in entering HR treaties, but rather a common
interest – these are obligations erga omnes (towards all)
Most International HR law is directed at states, and can apply to other actors only indirectly.
Many, including feminists, argue that this places many egregious violations out of bounds
and reinforces the harmful public/private distinction
o Drittwirkung – “effect on third parties” (individuals harming individuals)
o Hard to expand the regimes because they’re all framed within the context of
state responsibility
Difficult question of whose values get prioritized
o E.g. in Singapore, illegal to abandon your parents in old age, but legal to cane people
Parts of slums in some countries that have no government presence at all (Egypt) –
“governed” through religious charities, etc – what is the role of human rights in situations
like this?
Velasquez Rodriguez Case
Ratio: states have obligation to organize gov to ensure capability of ensuring free and full enjoyment of HR by its citizens; see
also ICCPR art. 2(1)
Jurisdiction
Inter-American Court of Human Rights [1988]
Facts
Claim against Honduras following disappearance of a number of students after abduction by seven armed
men dressed in civilian clothing. No proof that the kidnappers were state actors. Honduras did not
investigate.
Issues
Responsibility of Honduras?
Holding
Honduras responsible not only to respect but also “ensure” rights found in art 1 of American convention of
HR
Ratio
 State is obliged to organize the government and its structures to ensure that they are capable of
juridically ensuring the free and full enjoyment of HR.
 Obligation to prevent, investigate and punish perps, restore right violated if possible and to
compensate

A duty to ensure rights is also found in the ICCPR (art. 2(1))
B. Human Rights Standards
88
1. Classifying Rights
i) Generations of Rights
 Proposed by Karel Vasak
o First Generation – Liberté – Civil and Political Rights
 Essentially “freedom from”
 Arts. 2 to 21 of the UDHR
 Right to life, freedom from torture, etc.
 Inspired by natural law and laissez-faire Individual rights
 Formal equality
o Second Generation – Egalité – Social & economic rights
 “Right to”
 Individual claims for an equitable share of economic and social resources
 Right to education, social security, adequate housing, equality, etc.
 Arts. 22 to 27 of the UDHR
 Were promoted by East bloc countries and developing countries.
 Equality in fact
o Third Generation – Fraternité – collective rights
 Play on interdependence of all people
 Self-determination of nations, cultural protection, etc.
 Collective claims on the sharing of global power and wealth
 Solidarity rights. Common international commitment
 Right to development, environment, peace
 Were promoted most forcefully by developing countries


This classification allows us to conceptualize these rights better – but still subject to criticism
o Seems to establish a hierarchy among these rights
o A very Eurocentric/western approach to HR
o Suggests, that you have to achieve them in order and critiqued for this reason
 Many developing states say you need fundamental economic and social
transformations BEFORE “first-generation” rights are possible
Interrelation: right to food (second generation) cannot be a reality without freedom of
movement (first generation) and the right to a healthy environment (third generation)
ii) Hierarchies of Rights
 No consensus as to the hierarchy
o This is problem because conflicts of rights are a constant occurrence
o It would be possible to consider certain rights jus cogens but the controversy still
exists as to which rights
2. Treaty Human Rights



Advantage that their existence cannot be disputed
However, binding only on states that have ratified the treaty, with only diffused and
disputed effects on non-party states
ICCPR and ICESCR are broad in scope but the implementation mechanisms are weak
o Petitions
o Recommendations
o Periodic reporting
Committee on Economic, Social and Cultural Rights, General Comment, The Nature of States Parties
Obligations, p. 852)
Jurisdiction
UN Doc [1994]
89
Art 2 of the ICESCR is seen as having dynamic relationship with all other provisions in the convenant.
Two “immediate” obligations are imposed (unlike the rest of the covenant)
1. Undertaking to guarantee that the relevant rights will be exercised without discrimination
2. Undertaking to “take steps” (art. 2(1))
o Steps towards goal must be taken in a reasonably short time – deliberate, concrete and targeted
clearly towards meeting obligation
o Means should be all appropriate means, including legislation  this is not exhaustive of obligation
o Judicial remedies could be appropriate
o Must take steps towards “progressive realization” – flexibility but expeditiously
Comments
 Note that the implementation provisions in the ICESCR are much weaker that the ICCPR
 Committee like the HR Committee was created but there is no right to petition to that
committee
 Only requires states to submit reports
 Two covenants are completed by a large number of other universal human rights treaties (p.
854, see above)
3. Customary Human Rights
Question of whether treaty norms have acquired customary status (critically important for
states that have not signed these treaties)
Restatement of the Law, Foreign Relations Law of the United States, American Law
Institute (1987)



Certain rules are customary (e.g. genocide, slavery, systematic racial determination,
etc.)
Includes only those human rights whose states as customary law is generally accepted and
whose scope and content are generally agreed – list is not necessarily complete and is not
closed
No state claims the right to commit these practices, and few would deny they were violations
of international law
Comments
 Considered highly persuasive both within and outside of the UNS
 Seen by authors as a conservative minimum of rights accepted as CIL
 Criticised by many as not including right to be free from discrimination based on sex.
 HR Committee has much more expansive list that is not restricted to those rights listed in the
US Bill of Rights.
* Debate as to whether UDHR has attained the status of CIL
4. Universality of Human Rights and Cultural Diversity
Cultural relativism has replaced arguments based on state sovereignty as greatest challenged to HR law
 Non-western states criticise international human rights norms as a Western construct
imposed on the rest of the world
Voice of Vietnam Radio
 HR is a Western imposition
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

HR should not be separated from historical, geographical and cultural conditions and the
development of different countries and peoples
A new “cold peace” after the Cold War
A plant, however precious it is, should be grown in suitable soil otherwise its fruit will be
poisonous
Compliance and Enforcement



HR suffers from many compliance problems – some criticised as mere utopian ideals
Some types of rights systematically unprotected around the world (social, economic and
cultural)
Creation of UN High Commissioner for Human Rights (UNHCR) by the GA in 1993 sought to
provide some needed coherence
o Can be seen as a universal HR ombudsman overseeing compliance with all human
rights around the world
Treaty Mechanisms
Four types of mechanisms created by human rights treaties to promote compliance – most treaties
include only some of these
 1. Petitions to a treaty body
o Used by the ICCPR, Convention Against Torture, and some others
o Sometimes a state may ratify a treaty but refuse to accept the treaty body’s
jurisdiction to accept petitions
 E.g. ICCPR, through Optional Protocol, which provides for the petition
procedure (p. 906)
 Of 144 parties to the ICCPR, 94 had accepted the Optional Protocol
o Human Rights Committee (ICCPR) is not a court, and its “decisions” are not binding
on states
o Decisions of European Convention on Human Rights (ECHR) and Inter-American
Court of Human Rights ARE binding
o Criticised that investigating cases is daunting (threats to witnesses, difficulties of
travel, etc)
 2. Periodic reports
o Used by the ICCPR, Convention Against Torture, and some others
o Useful in that they provide an opportunity for dialogue
o Many developing states lack the resources to make reports
o HR Committee has adopted the practice of issuing responses to each state’s report
 Last report to Canada criticised record on women’s issues, Aboriginal
issues, etc.
 3. Enquiries
o Initiated by the treaty body itself – powerful tool for ensuring compliance with
fundamental rights
o Inter-American Commission of HR has sweeping powers in this regard
 4. Advisory opinions
o Create no obligations they can carry significant persuasive power.
o Geographic treaties like the European Committee on HR (ECHR) or the InterAmerican HRC
o No UN treaty body has this power
Non-Treaty Mechanisms
UN Commission on HRs (a subsidiary body of the Economic and Social Council)
Reports written by NGOs like Amnesty International, Human Rights Watch, etc.
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Play an essential role in collecting and disseminating information and pressuring
governments
o “Marshalling of shame” has played an important role in securing rights
State measures (like unilateral sanctions against states disregarding HRs)
o Rarely used (but see embargo of South Africa during Apartheid)
o

Civil Suits in National Courts
Filartiga v. Pena-Irala (p. 917)
Ratio: US alien Tort Statute allows Fil to claim dmgs against PI, another US resident, for HR abuses committed in
Paraguay; torture, violation of law of nations; jurisdiction granted on personal jurisdiction (nationality of victim, in
this case the father)
Jurisdiction
US court [1980]
Facts
 Fil is a Paraguayan National – 17 year old son kidnapped and tortured by Pena-Irala who
was Inspector General of police in Paraguay
 Both PI and F became residents of US and F files suit for $10 million in compensatory and
punitive damages for his son’s death
Holding
For plaintiff
Ratio
 Torture is violation of the law of nations. Prohibition is clear and unambiguous.
 Jurisdiction is granted because the US courts exercise personal jurisdiction over the
parties wherever the tort occurred (based on nationality of victim)
 Relevance – use of the U.S. Alien Tort Statute to win a claim for a HR violation
Bouzari v. Iran
Foreign states cannot be held civilly liable in domestic courts for injuries committed abroad, even for
breaches of jus cogens, because of the principle of sovereign equality
 Note: Akhavan recently intervened at the SCC in a case that sought to bring action against
Iran for torture/murder of Zahra Kazemi
 See Estate of the Late Zahra Kazemi v Islamic Republic of Iran
Part 10 (b) – Collective Rights and Self-Determination



Potential to clash or “compete” with individual rights
o e.g. affirmative action (collective) v. equality (individual)
Hard to define
Many states have been reluctant to accept collective rights the way they have accepted
individual rights
History
 Westphalian notion in Western Europe went with the idea that every group needed to have
its own state
o Assimilation solution  France
o Ethnic cleansing solution  Turkey/Greece
 After WWII, UN Charter expressed principle of self-determination of peoples.
Mix of successes and failures in the history of decolonization
 Failure: Democratic Republic of Congo
o Has been in a state of civil war since decolonization from Belgium in the 1960s
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
UN is effectively governing many failed states, including parts of DRC
Self determination
 Existence of a right to self determination is now well established
o Enshrined in UN Charter, ICCPR article 1, ICESCR article 1
o Proclaimed by a large number of resolutions
East Timor Case
Ratio: right to self-determination is “one of the essential principles of contemporary international law”,
generating obligations erga omnes for all states
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


ICCPR


Erga omnes is significant – states have to work towards full self-determination not only for
peoples under their own control, but also peoples controlled by other states
Same finding in Legal Consquences of the Construction of a Wall in the Occupied
Palestinian Territory
No set definition of “people” – issue is not decided in Mi’kmaq and SCC skirts it in Quebec
Secession Reference
Self-determination is distinct (though related) to the rights of minorities (art. 27 ICCPR)
Art. 1 – sets out collective rights (self determination)
Art. 27 – guarantees rights to minority groups to speak their own languages and practice
their own religion
How are indigenous people different from other minorities?
 Their relationship with territory
o Some would argue that the very identity and survival of the people depends on their
spiritual and physical connection to their ancestral lands
 Applies all over the world, not only in the New World
Mi’kmaq Case
Ratio: ICCPR provision on self-determination can’t be invoked to violate the territorial integrity of a sovereign state that
governs democratically, treats subjects equally, etc.; ICCPR is meant to consider individual, not collective HR
Jurisdiction
HR Committee [1990 and 1992] (p. 889)
Facts
Mi’kmaq Case
 Mi’kmaq argue that they were separate and distinct Commonwealth under British Crown and
could not have lost their right to self-determination as a result of dealings between Britain and
Canada
o Have never surrendered their right to self-determination
 Allege right to self-determination (art. 1 of UN Charter, art. 1 of ICCPR)
Canadian Case (they wanted a representative at the Charlottetown Conference)
 Right to self-determination can’t be invoked where it violates territorial integrity (Akh: this
pre-supposes internal self-determination – other options for exercising self-determination)
*Mi’kmaq are not people within the meaning of art. 1 of ICCPR  small and scattered with no
geographic specificity
 Mi’kmaq is putting forward a collective right, but only individual rights are to be considered by the
ICCPR
o Canada sees self-determination as the contextual background for the exercise of individual
rights
 Treaty between Crown and Mi’kmaq was not international, and so not a “treaty”
 The constitutional conferences that the Mi’kmaq wanted access to do not relate to self-
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Holding
determination
o Participation in these conferences has no connection with the right of self-determination
that the Mi’kmaq are seeking
M Response
 Use art. 25 instead of art. 1  art 1 is an individual procedure
 Art. 25:
o Right to take part in the conduct of public affairs
o Relates to art. 1 in that it refers to internal self-determination: democratic rights
o Argument is that M are being denied their individual rights to participate in public affairs
(internal self-determination)
Canadian response:
 You can’t just participate in the democratic process in any mode you want! You are represented
through the political process
 Could not possibly require that all citizens of a country be invited to a constitutional conference
 Art. 1 claim is inadmissible
o Optional Protocol does not provide a means for peoples to advance their rights –
only for individuals to claim their individual rights
 Art. 25 claim is admissible (since Constitutional Conferences clearly are part of the conduct of
public affairs), but fails on the merits  no violation
o Participation at the constitutional conference was not subjected to unreasonable
restrictions
U.N. Draft Declaration on the Rights of Indigenous Peoples, 1994 (p.8 98)
NB: Canada abstained on this declaration
Content
Art. 3 – right to self-determination
Art. 12 – among other things, right to be compensated for cultural property taken away from them
Art. 31 – right to autonomy or self-government as a specific form of the exercise of self-determination
Art. 33 – right to indigenous institutional structures
 In Canada, issues with sentencing circles
o Can affect what jail the person should be sent to: R v Gladue
 To what extent should these institutions be recognized and implemented?
 Subject to international law standards – thus torture would not be allowed
Notes
Studiously avoids defining “Indigenous Peoples”
Canada abstained
 Didn’t want to express opinio juris because it would eventually become part of customary law
 Don’t want this because arts. 26 and 27 give the right to control and use resources of territory.
 Art. 27 gives the right of restitution to such lands and the right to get a just and fair compensation
– could be a problem with territory under Vancouver, Toronto, etc.
Is this about internal self-determination, or just about protecting the rights of minorities? Tension
between recognizing unique status of Aboriginals on the one hand, and not creating a total partition
wall between cultures on the other
Glendon, “Universality Under Siege”
China contravenes human rights laws all the time
 Says: rights are relative to local conditions and many are parochial Western notions
inapplicable in Chinese circumstances
 Blanket cultural exemption
This is a farce; there is a core of fundamental values shared by almost all cultures
To accept the claim that meaningful cross-cultural discussions of freedom and dignity are impossible
is to give up on the hope that the political fate of humanity can be affected by reason and choice
 (see Stimson: “pragmatic idealism”)
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But is the UDHR a Western document despite its aspirations of universality?
 Are rights relative?
UDHR
 Many peoples living in non-Western nations weren’t represented when the
declaration was enacted
 Many of the rights in J.P. Humphrey’s first draft appeared first in NA and SA documents
The declaration has since received endorsement by most of the nations who weren’t present
when it was drafted
 Has served as the model for the rights provisions of many nations’ constitutions (including
Canada)
It was never thought or believed that the UDHR was a perfect document; but it has consistently been
seen as an important milestone
John Peters Humphrey, “First Draft of the Universal Declaration of Human Rights
(1947)”
Mutua, “Change in the Human Rights Universe”
Batliwala, “When Rights go Wrong”
Thomas v Norris [1992] BCSC CanLII 354
Department of Indian and Northern Affairs Canada, “Statement of the Government of
Canada on Indian Policy, 1969 (the White Paper, 1969)
State Immunities
Kindred 285-296, 305-311, 322-331
1. Immunity Generally
A recognized state is entitled by international law to immunity from the jurisdictions of the courts of
other states
 Reason: states are all sovereign equals, so one cannot exercise authority over another
(Foreign Legations Case)
Immunities extended to
 Officials
 Governmental agencies
 State property nationally operating or held in sovereign’s name
Congo v. Venne (SCC, 1971)
Ratio: example of state sovereignty blocking liability, arguably in commercial context, which is
supposed to be exception to immunity; this employment of Absolute Immunity changed with the State
Immunity Act
 Canadian architect designs pavilion; Congo does not pay him for his work
 He sues the Congo in Canadian court
 SCC says Canada cannot exercise jurisdiction over another state
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
Commercial role of the state here and, still absolute immunity employed
The Schooner Exchange v. M’Faddon (p. 286)
Ratio: immunity applies to the public property of a sovereign nation on domestic territory
Jurisdiction
US [1812] – per Marshall CJ
Facts
Two Americans claimed ship belonged to them when it arrived in Philadelphia – alleged it had been
seized by French and improperly taken from them. US attorney stated it was a public ship of France
Issues
Immunity of property
Holding
The ship has immunity
Ratio
 Jurisdiction of a nation within its own territory is exclusive and absolute – all limitations on this
must be traced to the consent of the nation itself
 All nations have relaxed their absolute jurisdiction to the extent that they extend
immunity to other sovereigns in their property in domestic territory – this is an “implied
promise”
 Sovereign understood to waive right to absolute jurisdiction with respect to (a) the person of a
foreign sovereign (b) foreign ministers (c) passage of foreign troops
o Does not apply to private individuals, private ships, or (possibly) even the private
property of the sovereign which he acquires in a foreign jurisdiction
 In this case, court finds it also applies to ships of war
 Sovereign can override this implication, but until he does so unambiguously, immunity
applies
2. Scope of Immunity
Extends to:
1. Government and all governmental organs
a. E.g. trade office in a foreign country
2. Leader of the government, foreign minister and other ministers, officials, and agents of the
state with respect to their official acts
a. If you committed certain acts or were aware of acts in capacity as head of state, you
are immune
b. However, this does not apply to certain acts (genocide, etc.)
c. What about private citizens who are attached to official delegations of states? Look
at basis under which they came into the country (diplomatic passport or not)
3. Public Corporations
4. State-owned Property
Diplomatic representatives are excluded from the list because they are subject to special
immunities and privileges fixed by multilateral treaty
Immunity is from all phases of the judicial process: judgment on the merits, execution, etc.
Absolute immunity
 Sovereign state has a right to immunity in all occasions
 Set down by the UK in The Parlement Belge (1880) and by Canada in Dessaulles v. Republic of
Poland (SCC, 1944)
 Now no longer used
 Canada was for a while the only state in the western world to stick to this theory (Congo v.
Venne), but this changed with the 1985 State Immunity Act
Restrictive immunity
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

Approach developed with the increasing involvement of governments in foreign commercial
ventures
Immunity does not attach for commercial acts (jure gestionis), only for sovereign acts (jure
imperii)
o Problems with distinguishing between the two
Almost universally practiced as a matter of CIL
State immunity is mostly a question of Customary International Law
But European states, UK, and US have adopted a Convention on State Immunity
State Immunity Act (Canada, 1985), page 292
Where a state recognizes the jurisdiction of the court through word or action, immunity can’t be
claimed; also exception for commercial activity and criminal proceedings
 Includes federated states: e.g. government of the state of New York
 S. 3(1): presumption is that a foreign state is immune from the jurisdiction of any court in
Canada
 S. 4(1): state can waive its immunity
o S. 4(4) However, once the state recognizes jurisdiction (either by initiating
proceedings or taking a step in proceedings), it can’t claim immunity (obviously
excluding the case where state applying for immunity!)
 S. 5: commercial activity exception
 S. 6: foreign state is not immune for personal/property injury IN CANADA
 S. 12: foreign state property is immune for attachment or seizure unless the state has
waived, it is commercial, or it is seized in execution of a judgment which the state is not
immune to (doesn’t apply to military property which is immune no matter what)
 S. 14: Foreign Minister will issue certificate saying whether a country is a foreign state (for
cases like Taiwan)  courts don’t test this themselves
 S. 18: act does not apply to criminal proceedings
UN Convention on the Jurisdiction Immunities of States and Their Property (p296)
Commercial Activity Exception to Immunity
Most common situation where a state loses its immunity from suit is when it has engaged in a
commercial activity (s.5 State Immunity Act); Very difficult to draw the line between jus imperii
(sovereign acts) and jus gestionis (commercial acts)
Two most popular tests
 Test 1: Purpose of the transaction – a public act has a public object
 Test 2: Nature of the action – commercial deal is commercial no matter who transacts it
U.K. State Immunity Act (1978) (page 305), US Foreign Sovereign Immunities Act of 1976 (page 306)
offer vague tests
Tendex Trading Corp. v. Central Bank of Nigeria, U.K. C.A. [1977] – per Denning (p. 307)
Ratio: application of Restrictive Immunity; this was commercial transaction; makes no difference that concrete ordered was
used to build barracks, no immunity; contrast with Congo v Venne
Facts
 Nigeria ordered concrete – the Central Bank of Nigeria issued a letter of credit for the price of the
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concrete
Nigeria gets too much concrete from other orders, and orders its central bank not to honour the letter
of credit
 Plaintiff sues the Bank in UK court
Does the Central Bank of Nigeria have sovereign immunity?
No (because of restrictive immunity, and probably even under absolute immunity because Central Bank is not
a government organ)
 The “consensus” theory of sovereign immunity is a fiction; it is for each state to define its own rules
of sovereign immunity

Issues
Holding
Ratio






Notes


So many states (including US, Germany, Netherlands) have switched from absolute to
restrictive immunity that restrictive has replaced absolute as a rule of international law
Thus, restrictive immunity applies
With respect to the case at hand, this was a straightforward commercial transaction like any
other: irrelevant that the concrete may have been used to build barracks
o This was commercial activity regardless of whether Bank was state organ or not
Even if we are still bound to apply absolute immunity, still have to determine whether a particular
organization is an organ of a government or not
Must look to “functions and control” of organization
On the whole “doesn’t think” the Central Bank of Nigeria is a state organ
Very little international law on state immunities  every state can decide whatever they
want
E.g. in US there are exceptions in foreign state immunity act for terrorist acts
Personal Injury Exception to Immunity
In addition to commercial activity, states can be subject to the jurisdiction of courts in proceedings
involving “death, personal or bodily injury, or damage or loss of property”: State Immunity Act, s. 6.
Schreiber v. Canada (SCC, 2002), p. 323
Ratio: Court allows that mental injury may be a ground for exception to state immunity under
“personal injury” category where it is inordinately long or under abusive conditions, but not for legal
and commonplace detention as was seen here
Facts
 Germany asked Canada to arrest Schreiber and extradite him for tax evasion
 S. held in jail for 8 days and then released
 He sued Germany for personal injuries suffered through his arrest and detention
 Germany claimed state immunity from the suit
Issue:
Do wrongful arrest and imprisonment constitute “personal injury”
Holding:
NO
Reasoning:
 “Personal injury” has to be physical or have some physical manifestation (like nervous
shock)
Application of international human rights law
 Amnesty International (intervener) argues that protection of mental integrity and
compensation for its violation has risen to the level of a peremptory norm of
international law which prevails over the doctrine of sovereign immunity
 True for some types of incarceration, like inordinately long sentences or abusive conditions
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
But not regular incarceration
o Without physical harm element, every prisoner incarcerated by Canadian penal
system would be entitled to damages from the state!
Mental injury may be compensable in some form at international law, but there is no
peremptory norm of international law that would oust the doctrine of state immunity
in this case
Bouzari v. Islamic Republic of Iran (SCC, 2004), p. 325
Ratio: the State Immunity Act must be read strictly, and does not offer exceptions to state immunity
under any other grounds than those provided; Canada is entitled to legislate contrary to its
international obligations
Facts
 B. was abducted, imprisoned and tortured by agents of Iran
 He was released, escaped Iran and made it to Canada as a landed immigrant
 Now wishes to sue Iran for the damages he suffered
Issue:
Is the action barred by the State Immunity Act?
Holding:
YES
Reasoning:
 Civil action is not allowed, though a criminal prosecution would be
 Principle of restrictive immunity continues to have general state immunity as its foundation
 this is incorporated into Canadian law via State Immunity Act
Plaintiff’s arguments:
 Seeking punitive damages, so this can fit under the criminal law exception (s. 18)
o NO  punitive damages come out of civil trials
 Suffering continues in Canada as a result of injuries committed; this counts as injury in
Canada (s. 6)
o NO  the injuries were inflicted in Iran
 Iran’s torture was related to the plaintiff’s commercial activity, thus it falls under the
commercial exception (s. 5)
o NO  regardless of their purpose, these were acts of state policing: inherently
sovereign and not commercial
 La Forest Test: acts (torture) are not themselves commercial, and the
present proceedings do not relate to commerce
 The SIA does not displace the common law of state immunity, and under common law,
torture cannot be legitimized as state activity
o NO  SIA does provide a complete codification of the law of sovereign
immunity (s. 3(1))
Public International Law issue
 Plaintiff claims that SIA must be read in conformity with Canada’s PIL obligations
o By the peremptory norms of CIL, Canada is bound to permit a civil remedy
against a foreign state for torture committed abroad
o PIL requires that SIA be interpreted to provide an exception to state immunity
for such a claim
 NO – though Parliament is presumed to legislate consistently with its treaty (conventional)
and customary IL obligations, especially jus cogens, it is open to Canada to legislate contrary
to them
o Such legislation would determine Canada’s domestic law, although it would put
Canada in breach of its international obligations
 In this case, the SIA clearly excludes all other sovereign immunity law except itself (s. 3(1))
o Thus, even if Canada’s international law obligations required Canada to
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
permit a civil remedy, it has legislated in a way that does not allow this
[Trial judge found there was no such duty in any case]
Comments:
 Language of SIA itself says that it is meant to be a codification of customary law, thus should
it not have actually been interpreted to include this obligation, if it is part of customary law?
 Akh clearly doesn’t find this convincing.
 Could he have brought an action against his torturers, since SIA provides immunity for
benefit of states, not for the personal benefit of officials?
o Most lower officials still get immunity when performing acts of state
o But systematic torture might be different, depending on whether there was an
effective remedy for it in the state where the torture was committed: Jones v.
Ministry of Interior of Kingdom of Saudi Arabia [UK]
 Do we want Canadian courts to become HR courts for anyone? What would be the
consequences of making it open to hundreds of thousands of litigants? Should we be
courageous and at forefront?
Foreign Legations Case
Must presume that the legislature intended to act in accordance with customary international law,
unless the statute specifically provides otherwise, in which case, PARLIAMENTARY SUPREMACY
Compare with:
Filartiga v. Pena-Irala
NB: case where US found for the plaintiff under the Alien Tort Statute for an act of torture committed in
Paraguay
Envoy loses right to drive over drinking, (2002) Toronto Star
Jackman, “A Case of International Intrigue: Saudi Prince Claims Diplomatic Immunity
in Home Improvement Dispute” (2001) Washington Post
State Responsibility
Kindred 372-418
Steps under ILC Draft Articles:
 (Art 2(b) Determine whether there was a wrongful act
 (Art 2(a) Determine whether it can be attributed to a state
 ( Determine whether there are no applicable circumstances precluding wrongfulness
 Determine what fourth step the consequences are
 State responsibility is both a precondition for and a consequence of the emergence of
an international legal system imposing positive obligations on states
 One of the most fundamental principles of international law, coextensive with the doctrine of
the sovereign equality of states
 Initially developed on the basis of compensation paid by states for injury to the person or
property of aliens
 Since the 1960s, has evolved to provide that every internationally wrongful act of a state
entails its responsibility
100
A. General Theory of Responsibility




Concerns what happens when states break their international obligations
Deals with secondary rather than primary rules (Hart)
o Not substantive norms (like the duty to protect diplomats), but rather the rules for
what constitutes the breach of a primary rule and what the consequences will be
o Also defences, reparations that can be demanded, etc.
Careful when drawing parallels with responsibility in domestic law
o Criminal and civil liability is somewhat blurred in international context
o Likewise distinction between tort and contract
Unlike domestic law, state responsibility is essentially non-jurisdictional, in that states will
rarely turn to courts or other such mechanisms to settle the matter
o Rather, is applied in the context of unstructured diplomatic relations
o Has started to change with bilateral and multilateral international institutions (e.g.
ICSID)
1. General Principles
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
ILC (body of experts selected by UN GA) has worked for decades on a code that sets out the rules of
state responsibility – multi-generational effort
 It has not been implemented by treaty, but nonetheless courts treat it as authoritative,
referring to it many times
o Akh: might be better not to subject it to the process of treaty compromising – might
end up with something diluted and worse (due to reservations, etc.)
 Responsibility is expressed as a set of general principles rather than strict rules
Art. 1: Every internationally wrongful act of a State entails the international responsibility of that
State
Art. 2: There is an international wrongful act of a State when conduct consisting of an act or omission
a) Is attributable to the State under international law; and
b) constitutes a breach of an international obligation of the State
Art. 3: The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the same act as
lawful by internal law.
Notes




Arts. 1-3: expression of the existing basic principles on state responsibility – other articles
proceed from here
o Generated little debate within or outside of ILC
Art. 1 covers both actions and omissions
Damage is not a required element of international responsibility
o Some international obligations may be violated even without identifiable moral
damage to another state
 E.g. human righta and environmental law standards
o Thus, not only a means to allocate risks, but also a tool to enforce standards of
conduct imposed on states
Articles deal only with responsibility for contravening international legal norms
o IL could also impose on a State the obligation to compensate for injury caused by
conduct not prohibited by international norms – not covered by the Articles
 Arises most frequently with respect to international environmental norms
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2. Basis of Responsibility
What is the standard for state responsibility? Fault? Risk?
 Basis of liability is neither fault nor risk, but rather the breach of an international obligation
 However, many substantive international obligations will invite an assessment of the mental
stat
 Depends on the primary rules that apply
o Russian satellite that crashed in Canadian Arctic – strict liability, because of the
hazards of the thing involved
o Other situations – require culpability
Corfu Channel Case: UK v. Albania [ICJ 1949]
Ratio: a state can be held liable for dmgs cause to another state if it knew or ought to have known
about a possible risk and failed to warn the other state; a state cannot knowingly allow its territory to
be used for illegal acts
Facts:
Two UK ships hit mines in Albania’s territorial waters. UK was unable to prove that Albania laid them
or that it colluded with Yugoslavia to do so. The UK insisted Corfu channel is an international straight
– open to any ship sailing peacefully. Albania insisted it was part of its territorial waters  there was
no open sea between the channel & the island – and the waters were closed to international traffic.
Issue:
Is Albania responsible?
Holding:
Yes  must pay compensation to the UK
Reasoning:
o The mere fact that the mines were on Albania territory is not enough to trigger state
responsibility
o Can’t conclude that just because it happened in their territory, they know or ought
to have known
o However, because the breach occurred on or within the denying State’s territory, the victim state
is often unable to furnish direct proof of the facts it alleges
o Such a victim state should be allowed a more liberal recourse to inferences of fact and
circumstantial evidence
o In this case, there are enough inferences and indirect evidence to establish that Albania
knew about the minefield
o Albania thus had an obligation to warn
o This obligation comes from “general and well-recognized principles”: elementary considerations
of humanity; freedom of navigation, obligation of every state not to allow [knowingly (not in
French original)] its territory to be used for illegal acts
o The laying of the mines is not attributed to Albania – the basis of its responsibility is its
failure to react; Albania should have known based on the evidence
Dissent:
o Responsibility of a state at IL requires culpa on the part of the state
o No evidence of culpable negligence – not impossible to lay mines in secret that a small poor state
like Albania wouldn’t see
Notes


No distinction at IL on the basis of the source of the obligation—treaty, custom or other (ILC
Draft Articles, art. 12)
International responsibility may result from any breach irrespective of its seriousness
102


Relevant for assessing the place of fault in international responsibility whether conduct is
directly imputable to the state or derives from the state’s failure to react to private acts
“Right of Innocent Passage”: ships have the right to pass through international straights
Acts committed by state agents or non-state actors
 Intentional wrongful acts committed by state agents on the instruction of their governments
pose relatively few problems
o Rainbow Warrior Case: French agents blow up greenpeace ship in NZ and kill a
Dutch national as a result; FR eventually admits the agents were acting under
orders, have to pay NZ 7M$ compensation, hold agents in custody)
 When state agents are not under instruction to act illegally, but still act within their mandate,
there is usually no requirement to show fault or negligence on the part of the agent to
establish international responsibility
o Thus, good faith of the state officials is no defence to an international claim (Jessie,
Thomas F. Bayard, and Pescawha Claim)
 When illegal acts are carried out by non-state actors and their action can in no way be
imputed to the state, proof of some fault or negligence of the state will usually be required in
order to engage its responsibility
o Corfu Channel Case
o US Diplomatic and Consular Staff in Tehran Case – Iran breached its international
obligations in not reacting to protect the embassy after an assault by private
persons
o Trail Smelter Arbitration (US-Canada) – “no state has the right to use or permit the
use of its territory in such a manner as to cause injury by fumes in or to the territory
of another…”
o Declaration on Friendly Relations – a state is under a general obligation to
prevent the use of its territory by persons or groups planning to commit hostile acts
against a foreign state
 Plays a central role in international suppression of terrorism (Afghanistan)
Cosmos 954 Claim – Canada v. USSR
Ratio: treaties will sometimes set out the standard of liability between signatory parties; suggests absolute liability
for ultra-hazardous activities as general principle of international law; violation of sovereignty establishes prima facie
obligation to pay compensation
Jurisdiction
[1979]
Facts
USSR satellite with nuclear reactor falls into Canada, high cost of cleanup.
Issues
USSR responsibility for chunk of cost.
Holding
USSR settled out of tribunal for less than amount claimed and did not accept liability
CANADA
Canada’s statement of claim:
statement of
 Based on:
claim
o 1972 Convention on International Liability for Damage Caused by Space
Objects (both Canada and USSR were parties)
o General principles of international law
o (Also another treaty)
 Treaty
o Treaty says that the standard is absolute – thus the substantive law actually sets
out the standard for its own interpretation
o USSR failed to give Canada prior notification of imminent re-entry, thus failed to
minimize damage
o Canada had a duty at IL to take necessary measures to mitigate the damage –
undertake search and recovery operations – this would not have been necessary
but for the crash of the satellite
103
Treaty provides for prompt compensation for restitution ad idem
(This accords with general domestic law trend whereby inherently
hazardous activities often carry absolute liability)
o Operations undertaken by Canada to mitigate damages would not have needed to
be taken were it not for damage caused
o Canada has made a fair estimate of damages, looking only at reasonable,
proximate causes
General Principles of International Law
o Violation of Canada’s sovereignty – established by mere fact of trespass of
the satellite
o International precedents recognize that a violation of sovereignty gives rise to an
obligation to pay compensation
o Standard of absolute liability for space activities is considered to have become a
general principle of international law
o
o

Notes



So: you need to have a wrongful act (look to treaty law, customary law, general principles to
determine this)
Canada was claiming under the standard of absolute liability. Basis is inherent risk
associated with launching satellite with nuclear components on board. Note that claim not
dealt with as there was a settlement
Absence of claims following Chernobyl sheds doubt on whether a principle of absolute
liability for ultra-hazardous activities has emerged in general international law
3. Attribution
a) Acts of the State
The only conduct that can be attributed to a state is that of organs of government or of others who
have acted under the direction, instigation, or control of those organs
Also a limited number of instances in which the action of other non-state entities will be considered
as attributable to the State
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Art. 4: (1) Conduct of any State organ (whatever its character) shall be considered an act of that
State under international law
- Includes legislative, executive, and judicial organs
(2) Includes any person or entity which has status in accordance with the internal law of
that State
Art. 5: Includes private persons empowered by the law of the State to exercise elements of
governmental authority (e.g. Blackwater), if they are acting in that capacity when they commit the
wrong
Art. 6: Conduct of an organ placed at the disposal of a State by another state will be considered an act
of the former State
Art. 7: Applies even if the organ or actor acts in excess of authority or contravenes instructions
Art. 8: The conduct of a person or group shall be considered an act of a State if the person or group is
in fact acting on the instructions of, or under the direction or control of that State in carrying out the
conduct.
Art. 9: Applies even if people are acting in the absence or default of official authorities
Art. 11: Applies to conduct that the State adopt or acknowledges as its own (e.g. American embassy
in Iran)
104
Notes


Aim to cast the net as wide as possible to capture de jure and de facto conduct that can
be linked to the state
Problem that attribution of an act to a state depends on municipal law to determine what is
part of the state apparatus?
o No IL definition of “state functions”
o Could state shield itself by delegating shrewdly?
o UK: municipal law should not be determinative in making this determination (now
reflected in Art. 4)
T.H. Youmans Claim, US v. Mexico [General Claims Commission, 1926], p. 649
Ratio: State can’t invoke abuse of authority by its agents to block a claim, where agents were acting
within their mandate – strict liability standard
Facts:
- US claims on behalf of an American national, whose father was killed
- Three US businessmen were attacked by a mob over a wage dispute
- Local authorities summon the army, but the army joined the mob and participated in the killing of
the Yanks
Issue:
Is Mexico liable for failing to exercise due diligence to protect the aliens?
Holding:
Yes
Reasoning:
- Not enough of a defense to argue that an agent was acting outside his competency, since that would
negate liability in virtually every case
- Uncertain whether there would have been liability if the troops were behaving in their
private capacity, but in this case they were not – they were on duty under the immediate
supervision of their commanding officer
- The governor behaved reasonably – sent troops, but the troops (state agents) acted
unreasonably
Ratio:
State may not invoke abuse of authority by its agents to block a claim  Strict Liabiliy Standard
Comments
 Doesn’t matter that Mexican troops were contravening Mexican law  Mexico is still liable
 For the state to be liable, the act of its agent must have been taken under cover of
agent’s official character  otherwise, it will be considered a private act
b) Acts of Private Persons



In principle, the state is not responsible for the conduct of private persons or entities
However, this can arise in two ways:
o Direct and positive control of the State over individuals, consisting of clear
instructions and clear support to the conduct of private persons
 E.g. recruiting mercenaries
o More passive control of the State
 E.g. harbouring terrorist groups
Control has to be effective enough to establish a real link
105
Art. 8: The conduct of a person or group shall be considered an act of a State if the person or group is
in fact acting on the instructions of, or under the direction or control of that State in carrying out the
conduct.
Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v. U.S. (ICJ, 1986)
Ratio: no liability for US; they did not have ‘effective control’ of the Contras forces
Issue
Were the acts of the contras attributable to the US (art. 8), or were they private acts?
Holding
Private  US is not responsible
Ratio
Degree of control is very important. Here, despite the US’s extensive participation in financing, training and
supplying them, there is no proof that the U.S. had effective control (standard) of the acts of the group
Prosecutor v. Tadic (ICTY, 1999)
Ratio: Yugoslavian authorities had overall control that went to planning and supervision, which
amounts to effective control
 Test is whether the State exercises control, but the degree of control may vary according
to the factual circumstances of each case
 Shouldn’t be a high threshold in every case
 In this case, the Yugoslavian authorities had overall control, going beyond mere financing to
planning and supervision
US Diplomatic and Consular Staff in Tehran Case (ICJ, 1980)
Ratio: If a state doesn’t have effective control of those perpetrating the crimes but adopts the conduct
after the fact, they can be held responsible for the conduct retroactively
 Seizure of the embassy and taking of hostages was not directly imputable to Tehran, since
there was no evidence the students who took over the embassy were taking government
orders
 Thus, Iran was initially only responsible indirectly for failing to ensure the security of the
embassy
 However, when the Iranian government approved the occupation instead of trying to
stop it, they became responsible for the conduct retroactively (art. 11)
c) Acts of Insurgents


State will in principle not be responsible for the acts of insurgents on its territory
Exceptions:
o If state does not exert due diligence to protect the interests of other states on its
territory
o If insurgents successfully overturn the government and assume power
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Acts of insurrectional movement that becomes new gov of state will be considered acts of that state;
same deal if insurrectionists form new state
Art. 10: (1) The conduct of an insurrectional movement which becomes the new government of a
State shall be considered an act of that State under IL.
106
(2) Same deal if the insurgents form a new state on part of the territory (will be considered
an act of the new state)
(3) This article is without prejudice to the attribution to a State of any conduct which is to be
considered an act of that State by virtue of arts. 4 to 9
 Insurrectional movement = movement advocating change outside the constitutional
framework of the state
Asian Agricultural Products Ltd. v. Sri Lanka (ICSID, 1991)
Ratio: State on whose territory an insurrection occurs must exercise the care of a reasonably wellorganized modern State in providing protection to foreign investors; failure to meet this minimum
standard of care will result in liability
Facts
 Sri Lankan army destroyed a AAPL plant based on reports that local rebels were using it
 AAPL presented a claim to ICSID alleging that Sri Lanka had not exercised due diligence to
prevent damages by the insurgent Tamil Tigers
Finding
Sri Lanka is responsible for the damage
Reasoning
 State on whose territory an insurrection occurs is not responsible for the damage
caused to foreign investors by it unless it can be shown that government failed to
provide the standard of protection required (by treaty or customary law as the case
may be)  this is a general principle of international law
o Applies both to rebel offences and government countermeasures
 Degree of vigilance required depends on the circumstances  “sliding scale”
o Used to be subjective, now most authorities favour an objective standard of
vigilance – what foreign investors can reasonably expect from a reasonably wellorganized modern State
 In this case, government failed to exercise even its normal public authority to get
undesirable persons out of sensitive areas
Notes


Corfu Channel standard remains applicable
South Africa
o New government responsible for acts occurring under Apartheid
o New government also responsible for illegal acts done by the ANC
d) Acts of International Organizations


The fact that a state is a member of an international organization or that the organization is
present on its territory will not entail the international responsibility of the state if a wrong
is committed by the organization
UN can be endowed with international rights and duties (Reparations Case)
o This applies to violations of international humanitarian law committed by members
of UN forces
4. Circumstances Precluding Wrongfulness (Defences)

These don’t actually make the act less wrongful; it just means the state will not be
responsible
107
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Consent (20), Self Defence (21), Countermeasures (22), Force Majeure (23), Distress (24), Necessity (25)
Consent (art. 20)
 Doesn’t work as a defence for violations of jus cogens norms (like genocide)
 Claim of USSR in Afghanistan and US in Vietnam  we were invited.
 E.g. Rwanda
o Rwanda and Uganda are invited into Zaire by the insurgency to assist in fighting the
government
o Insurgency became new government and ask Rwanda and Uganda to leave
o They don’t  does consent apply?
o There are limits to consent, and it can be withdrawn
Self-Defence (art. 21)
 Must be lawful  in accordance with art. 51 of the UNC
Countermeasures in Respect of an Internationally Wrongful Act (art. 22)
 E.g. Free trade agreement breached by one party – other party responds by also breaching.
This is reprisal or a counter-measure which is legit
 Only precludes wrongfulness with respect to the state who committed the first wrongful act,
not other states
Force Majeure (art. 23)
 Occurrence of an irresistible force or an unforeseen event
 Beyond the control of the state
 Makes it impossible in the circumstances to perform the obligation
 DOESN’T APPLY IF
o State contributed to the situation of force majeure
o State assumed the risk of the situation occurring
Distress (art. 24)
 Author of act of a State has no other reasonable way to save his life or the lives of others
entrusted to author’s care
 E.g. Military ship adrift in territorial waters fish illegally to feed themselves
 DOESN’T APPLY IF
o State contributed to the situation of force majeure
o Act in question is likely to create a comparable or greater peril
State of Necessity (art. 25)
 Essential interests of state are threatened
 Grave and imminent peril
 No other way to safeguard interest
 Can’t seriously impair an essential interest of the State or States towards which the
obligation exists, or the international community as a whole
Gabcikovo Case - Hungary/Slovakia (ICJ, 1997)
Ratio: to invoke necessity, there must be a ‘grave and imminent peril’; apprehension of a possible peril
is not sufficient
Facts:
Hungary reneges on its treaty obligations to build Danube dams because of concerns that the project
could involve grave environmental risks
108
Holding:
Court rejects state of necessity defence
Reasoning:
The “mere apprehension of a possible peril” does not suffice for a grave and imminent peril
 Dangers were long term (thus not imminent), and more importantly they were
uncertain
 Also, Hungary could have responded to the dangers in other ways
 State of necessity is ground for precluding wrongfulness – must have “grave and imminent
peril”
 Here concerns were real but not perils
 ICJ not satisfied this was the only way to protect the Danube river
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories
Ratio: necessity defence only available in cases of grave and imminent peril where no other options
available; Israel hasn’t shown that the Wall was the only option to protect itself from attack
State of necessity can’t justify the Wall because Israel hadn’t shown that it was the only means
available to protect itself from terrorist attacks
 Reaffirmed customary character of state-of-necessity exception
Art. 26: None of these articles apply to breaches of peremptory norms of IL
Art. 27: Invoking any of these articles doesn’t change the need to comply when the special
circumstance no longer exist,
State might still be required to compensate for its actions, even if it successfully invokes a defence
precluding wrongfulness
5. Consequences of International Responsibility
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Continued duty of performance (29), Cessation and Non-repetition (30), Reparation (31)
Continued Duty of Performance (art. 29)
 Legal consequences of an internationally wrongful act do not affect responsible state’s
continued duty to perform the obligation breached
Cessation and Non-repetition (art. 30)
 State is obligated to cease the act and offer appropriate guarantees of non-repetition if
applicable
 This is usually the main focus of the controversy
Reparation (art. 31)
 State is obligated to make full reparation for all material and moral injuries caused by
internationally wrongful act
109
Chorzow Factory (Indemnity) Case (PCIJ, 1928), p. 666
Ratio: Restitution is the preferred form of reparation for dmgs caused to another state; reparation is always made to the state,
not individuals, however dmg suffered by individuals is convenient scale for calculation of dmgs suffered
Facts
Claim for reparation by Germany against Poland for having taken possession of factories belonging to 2 German
companies.
Holding
Poland owed reparation to Germany for damages suffered by the two companies.
Ratio
 Principle of international law that any breach of an engagement involves an obligation to make
reparation
 The rules of law governing reparation are the rules of IL in force between the two States
concerned
o Not the law governing relations between the State who has committed a wrongful act and the
individual affected
 The damage suffered by the individual is never identical to that suffered by the State and can
only provide a convenient scale for the calculation of reparation due to the State
o Looks only at the loss to the individual on whose behalf the case is being launched – not third
parties
 This was not expropriation but seizure. Here it is correct for Poland to restore the undertaking
and if that is not possible to pay its value at the time of the indemnification. To this, in virtue of
the general principles of IL, must be added that of compensating loss sustained as the result of
the seizure.
 Restitution is the preferred form of reparation
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Reparation can be: Restitution (35), compensation (36), satisfaction (37) or combination of any of them
(34)
Irrelevance of Internal Law (art. 32)
Form of Reparation (art. 34)
 Shall take the form of restitution, compensation and satisfaction, either singly or in
combination
 Restitution (art. 35)
o State must re-establish the situation that existed before its intentionally wrongful
act – impossible to derogate from:
 Unless this is materially impossible
 Or involves a burden out of all proportion to the benefit deriving from
restitution instead of compensation
 Compensation (art. 36)
o (1) State must offer compensation for damage insofar as it is not made good by
restitution
o (2) Includes lost profits insofar as this is established, plus interest
 Only if not unduly speculative – this is why new enterprise will usually not
be awarded income.
o Doesn’t include exemplary or punitive damages

Satisfaction (art. 37)
o (1) State must give satisfaction for the injury insofar as it cannot be made good by
restitution or compensation
o (2) May consist in an acknowledgement of the breach, an expression of regret, a
formal apology, or other thing
110
o
o
(3) Shall not be out of all proportion to the injury and should not be humiliating to
the responsible state
In the Rainbow Warrior arbitration, the court found that the condemnation of
France was appropriate satisfaction for legal and moral damage suffered by New
Zealand
6. Elements of Aggravated Responsibility

Recognition (hotly debated) that some breaches of international obligations are much worse
than others
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
For serious breaches that involve violation of peremptory norms (40.1: ex. torture, genocide, etc.)
involving a gross or systematic failure to fulfill obligations (40.2); calls for collective measures to bring
an end to breach (41)
Art. 40: (1) Chapter applies to serious breaches of peremptory norms (first condition) of
international law (such as torture , genocide, apartheid, aggression, slavery)
(2) A breach is serious if it involves a gross or systematic failure (second condition) to
fulfill the obligation
Art. 41: (1) States will cooperate to bring an end to serious breaches through lawful means (call for
collective measures)
(2) No State will recognize as lawful a situation created by a serious breach, or render aid
and assistance in maintaining that situation (e.g. ICJ called on all states not to recognize Iraq’s
annexation of Kuwait)
B. Diplomatic Protection
Human rights standards endow individuals directly with rights under IL
Treatment of aliens standards, on the other hand, vest rights in the state
 Thus individuals cannot bring a claim against a wrongdoing state: the state must
endorse/espouse the claim of one of its citizens
1. Espousal and Nationality of Claims
International Law Commission, Draft Articles on Diplomatic Protection (2004)
State can exercise diplomatic protection of its nationals (3), and also non-nationals if they are
stateless/refugees habitually resident when they suffer the injury/make the claim (8) (but can’t in case
of injury caused by state of nationality of refugee) (8)
Art. 3: State can exercise diplomatic protection of its nationals (or non-nationals in accordance with
art. 8)
Art. 5: Rules about when protected person had to have the nationality of the state that is exercising
diplomatic protection
Art. 8: States can diplomatically protect stateless persons and refugees habitually resident in the
state (but can’t protect a refugee in respect of an injury caused by an internationally wrongful act of
the state of nationality of the refugee)
- State practice to this effect is extremely limited
111
Mavrommatis Palestine Concessions Case, Greece v. UK (PCIJ, 1924)
Ratio: a state has a right to protect its subjects when injured by acts contrary to international law; this
right is discretionary, limited to state’s intervention on behalf of its own nationals (subject to provisions
of Draft Article 8 above for refugees and stateless persons)
 Elementary principle of international law that a state is entitled to protect its subjects when
injured by acts contrary to IL committed by another state, when they have been unable to
obtain satisfaction through the ordinary channels
 The state is asserting its own rights: its right to ensure in the person of its nationals respect
for the rules of international law
 Once a state has taken up a case on behalf of one of its subjects before an international
tribunal, it is the sole claimant
This right is limited to a state’s intervention on behalf of its own nationals (PanevezysSaldutiskis Railway Case)
Decision to exercise diplomatic protection is discretionary – no human right to diplomatic
protection, even in cases of violations of jus cogens norms (International Law Commission, South
African Constitutional Court)
2. Exhaustion of Local Remedies and Waiver of Claims
International Law Commission, Draft Articles on Diplomatic Protection (2004)
Injured persons have to exhaust all local remedies including appeals before state can bring
international claim (14-16)
Art. 14: Injured person has to exhaust all local remedies (courts, etc.), including appeals, before
person’s state can bring an international claim
- No need to exhaust purely discretionary procedures, like appeals for clemency
Art. 15: Local remedies are exhausted when the claim is brought on behalf of an art. 8 (stateless,
refugee) person
Art. 16: Exception to the local remedy rule where the local remedies provide no reasonable
possibility of effective redress, there is undue delay, no relevant connection between the person and
the state alleged to be responsible, or the state alleged to be responsible has waived the requirement
that local remedies be exhausted
- States can waive the need to exhaust domestic remedies, for example, in establishing
General Claims Commissions
Mavrommatis Palestine Concessions Case, Greece v. UK (RIAA, 1956)
Ratio: Unless a local remedy would be ‘obviously futile’, complainant must exhaust it before turning to
state espousal (Draft Article 14)
 Commission rejects Greece’s claim because its national hadn’t exhausted local remedies
 Up to defendant state to prove that there are remedies in its internal law which have not
been used
o Includes procedural facilities in addition to courts and tribunals (where these are
essential to establish the claim before the courts)
o Ineffective remedies don’t count
 Test is whether such remedies would be obviously futile
 In this case, the guy did not exhaust his options
112
o
o
Didn’t call a witness who could have helped his case (his own choice, though
influenced by cost)
Didn’t appeal
Prior Waiver of Claim: The Calvo Clause
An alien who has been injured by a state in a manner wrongful under international law can always
waive or settle his claim, provided this is not done under duress
Some states require that aliens waive their right to intervention in advance – this is called a
Calvo Clause
 Dispute whether this works – general position is that they cannot be given full effect because
the right to present an international claim belongs to the state and not to the individual
North American Dredging Company (NADC) Claim (RIAA, 1926), p. 714
Ratio: the Calvo Clause prevents NADC from turning to US for enforcement of the K, but not for
protection relating to violations of international law (this right belongs to the state); however, in this
case NADC didn’t exhaust any of its other options, so can’t work; illuminates argument over
applicability of Calvo Clauses
Facts
Agreement between government of Mexico and NADC included a Calvo Clause,
depriving the company and its employees of any rights as aliens
US espouses their claim
Holding
US cannot espouse their claim
Ratio
 Clause prevented NADC from turning to US for the enforcement of the
contract
 It did not prevent NADC from turning to US for protection relating to
the violations of international law (for example, if he was denied
justice)
o In this case, NADC didn’t even try to get redress using the Mexican
justice system (Draft Article 14)
 This situation illustrates how legitimate the concerns of certain nations are
respecting the abuse of the right of protection by the nationals of certain
states. The NADC has acted as if the Calvo Clause didn’t even exist, only
using it to get the K in the first place.
Is there a
Industrialized countries argue (with the support of writers and tribunals) that Calvo
practical
clauses cannot be given full effect because the right to present an international
application of claim belongs to the state and not to the Individual or corporation. Developed
this clause?
countries argue the opposite, that Calvo clauses can effectively prevent a state from
espousing a claim of one of its nationals.
3. Canadian Practice
Canadian Espousal of Claims (Department of External Affairs, 1987), p. 716



Only espouse claims where claimants were Canadian citizens at the time of loss and
continuously until claim is presented
All foreign legal remedies must be exhausted without satisfaction, including the court of final
appeal
Canada can make an exception to these rules in cases of “special merit” through its informal
“good offices” (which is short of a formal espousal), but normally won’t
113


Claims by companies are treated according to Barcelona Traction Case
o With the further requirement that there be a substantial Canadian interest so as to
justify Canadian diplomatic intervention (depends on where the business is carried
on, active trading interests in Canada, and the extent to which the company is
beneficially owned in Canada)
Canada may also intervene to protect companies where Canadians have interests (as
shareholders or otherwise)
o Deviates from Barcelona Traction Case!
C. Invocation of State Responsibility
1. General Principles
a) Invocation by the Injured State
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
State that was injured can bring a claim (42), group of states injured by same wrongful act can respond
separately (46), where there is more than one state guilty of same act, responsibility of each state can
be invoked (47)
Art. 42: When a state counts as an injured state (individually and in a group)
- (a) When the breach affects the state individually
- (b)(i) When the breach affects a group of states and specifically affects that state (e.g.
pollution of the high seas, which violates a general treaty (UNCLOS) and the claiming state is closest)
- (b)(ii) When the breach affects all states to whom it is owed (i.e. when the breach of any
state party threatens the treaty structure as a whole) (e.g. treaty of nuclear non-proliferation)
Art. 46: A group of states injured by the same internationally wrongful act can respond separately
Art. 47: Where there is a group of guilty states, the responsibility of each state can be invoked (but
no overcompensation)
b) Invocation by Other States
 Injury caused by an internationally wrongful act may be of a general nature, meaning
all states bound by a given norm will be considered injured by its violation
o Corresponds to injuries erga omnes – omni-directional obligation
 E.g. when a state tortures one of its own nationals
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
If there is a collective interest at stake, a non-injured state can invoke responsibility; ie when it is a
violation erga omnes at stake (48)
Art. 48: Invocation of responsibility by a state other than the injured state
 Notion of injury completely set aside
 42(1)(a): note the requirement for a collective interest in order for a non-injured state to be
able to invoke
 Non-injured states cannot claim compensation on their own account
114
2. Countermeasures



Typical feature of decentralized system of international law
A form of self-help that states can use to apply pressure on wrongdoing state to get
cessation and reparations
Acts that would ordinarily be unlawful but are legitimate because they are a response to a
prior internationally wrongful act by another state
o Problem: who decides?
o Different from retortion measures, which are unfriendly but legal acts (like
suspending development aid)
International Law Commission (ILC) Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, 2001
Limits for countermeasures (49-53)
Art. 49: Object and limits of countermeasures
Art. 50: Obligations not affected by countermeasures (can’t justify threat or use of force, peremptory
norms of IL)
Art. 51: Proportionality
Art. 52: Conditions relating to resort to countermeasures (unless urgent, state must call on
responsible state and announce the use of countermeasures, must be stopped if the case is going to
tribunal)
Art. 53: Termination of countermeasures (as soon as responsible state has complied with its
obligations)
Notes

Countermeasures need not mirror the initial violation (e.g. state could respond to a breach of
the right of innocent passage by suspending a trade agreement)  connects to Vienna
Convention Treaties art. 60
 Substantive limitations:
o Countermeasures are only directed at responsible states, not third parties (49(1)),
they are temporary, for the duration of the wrongful act (49(2)) and they are
reversible as far as possible (49(3))
 Procedural limitations
o The main (and most controversial one) is that the countermeasures must stop if the
case is going to a tribunal with the power to make binding decisions
 Department of Foreign Affairs: this is not entirely supported by state
practice, or many scholars
Better view is that the existence of an institutional framework puts certain checks on resort to
countermeasures
International Dispute Resolution
Kindred 372-418
Judicial Bodies
 Vast majority of international disputes are settled by private arbitral bodies, not the
ICJ (even though we talk mainly about the ICJ)
 There are also a number of other non-ICJ courts
o The Court of the WTO
o The Court of the International Convention of the Law of the Sea
115


This multiplicity of judicial bodies gives the international legal system some flexibility
However, there is the problem that parties can go “forum-shopping” to some extent
o Each judicial body has its own jurisdiction: there is no hierarchy
o Also fragmentation of jurisprudence
 Problem: where tensions among states are the highest, judicial mechanisms are the least
effective. When there is lack of confidence states are less and less willing to submit
The World Court
Organization of the Court
 Refers to International Court of Justice (ICJ) and Permanent Court of International Justice
(PCIJ) (1921)
o Statutes of the two are practically identical
 ICJ is one of the 6 principle organs of the UN – it is the principle judicial organ (Charter
art. 92)
 Functions selon Charter arts. 92-96 and its own Statute which is annexed to the Charter
 All members of the UN are parties to the statute
Judges of the Court
 Composed of 15 members elected by GA and the SC (ICJ Statute arts. 4-8, 10-12)
 Must have high moral character and possess qualifications for highest judicial offices in their
own countries
 By informal understanding, each of the five permanent SC countries have a judge
 Usually:
o 5 from W Europe and N America
o 2 from E Europe
o 3 from Africa and Middle East
o 3 from Asia
o 2 from Latin America
 Parties to a case may appoint a judge ad hoc if none of the judges have their
nationality (ICJ art. 31)
o These judges tend to side with the party appointing them – problematic?
 Judges cannot have political interests or affiliations with the parties in the cases (ICJ art.
17(2))
Parties before the Court
 Only states may be parties (states can espouse claim of a national)
 Not open to every state automatically – only open to parties to the statute
Three ways to qualify (ICJ Statute art. 35 and Charter art. 93):
1) Members of the UN are ipso facto parties to the statutes (great majority of
states)
2) Non-members can become parties by accepting the conditions laid down by the
GA (Switzerland)
3) Any other state can qualify by accepting conditions laid down by SC in 1946
(accepting jurisdiction of the court)
 International organizations cannot be parties, but may be asked for information or
provide it on their own initiative (art. 34(2))
o Also, GA and certain other UN bodies can request advisory opinions
116
Jurisdiction of the Court

Different from national courts in that it does not automatically have jurisdiction over
disputes between parties with standing
 Court is unlimited as to subject matter (art. 36(1))
 However, limited to cases where all states concerned have consented to the case being
heard
Three methods by which states can consent (art. 40):
 1. By special agreement – parties agree to submit a particular dispute to the Court (art.
36(1))
o Advantage of conferring jurisdiction without question – thus often used even when
other options are available
 2. By compromissory clause – parties agree to submit disputes arising out of the treaty, or
parts of it, to the Court (art. 36(1))
 3. By declaration under art. 36(2) – state accepts compulsory jurisdiction of the Court in
relation to any other state accepting the same obligation – “Optional Clause”
 Court has the power to determine whether or not it has jurisdiction (art. 36(6))
 Over the years, states have failed to appear to answer cases brought by unilateral application
o Court may give default judgment; however, the non-appearing state will likely
ignore it
o Also, respondent can send communications saying what they WOULD say if they
WERE to appear – have the advantage of having their arguments aired without
appearing
 Other states may intervene (arts. 62 and 63)
Court has accepted that a state may intervene not only when the operative part of a judgment
may affect its legal interests, but also when the reasoning behind a judgment can affect its
legal interests
o The nature of the interest required remains unclear
 Court might be precluded from exercising jurisdiction over two consenting parties because
of the effect on third parties that have not accepted the Court’s jurisdiction
o E.g. Case Concerning East Timor (Portugal-Australia, affected Indonesia)
Jurisdiction by Special Agreement
 Sometimes a matter of interpretation whether a document constitutes a special agreement
o In a case between Qatar and Bahrain, Court had to determine whether
correspondence between each party and Saudi Arabia (and a trilateral treaty)
counted as a special agreement to submit the dispute to the Court
 Found that it did, based on Vienna Convention
 Art. 40 provides only that subject of dispute and parties must be indicated, but special
agreements may include more
Jurisdiction by Treaty
 Hundreds of treaties provide for this
Compulsory Jurisdiction under ICJ Statute Art. 36(2)
 Relatively small number of states (59, out of over 190) have accepted compulsory
jurisdiction of International Court
o Including Canada and the UK
o US and France terminated their declarations under 36(2)
 Many of these declarations are subject to reservations, involving limitations ranging
from subject matter to time frame
o E.g. Canada has reservations for disputes involving Atlantic fishing and disputes
with other Commonwealth countries, among others
o Also fairly common to exclude jurisdiction over matters falling within domestic
jurisdiction
117
“Conally clauses” – country reserves for itself the right to determine what
counts as domestic
Are these reservations permissible selon art. 36(3)?
Substantive reservations in country A’s declaration can be invoked by country B (because of
notion of reciprocity)
Restrictions on procedural matters are also common
o E.g. right to subtract or add to any of the other reservations with immediate effect
o Unlike substantive reservations, not subject to condition of reciprocity
 Thus, in Military Activities in and Around Nicaragua, US was not allowed
to take advantage reciprocally of Nicaragua’s provision that they could add
reservations instantaneously – they were stuck with their own, which
required 6 months’ notice




Fisheries Jurisdiction Case (Spain v. Canada)
Ratio: reservations made by a state in respect of consent to ICJ’s jurisdiction must be read giving
attention to the intention of the declaring state as inferred from the text of the relevant clause
Facts:
 Canada arrested a Spanish fishing trawler for violation of the Coastal Fisheries Protection Act,
which permitted Canadian regulation of fisheries beyond 200 nautical miles
o This violates international law: states cannot exercise jurisdiction on the high seas
except for ships that fly its flag (and cannot regulate fisheries outside its EEZ for
non-bottom-dwelling fish)
 Spain filed an application with the ICJ on the basis of the optional clause declarations that
each state had made
o Argued that Canada’s action was not a conservation action, but an illegal use of force
 Canada denied that its declaration gave jurisdiction to the Court, because of its specific
reservation for this kind of fishery issue
Reasoning:
Majority
 Declarations and reservations are facultative, unilateral engagements that states are
free to make or not make
 There is no reason to interpret these reservations restrictively – all elements of a 36(2)
declaration should be read together as a whole, applying the same principles of
interpretation throughout
o Contractual principle that terms should be read against their drafter does not apply
 Court will give attention to the intentions of the declaring state, inferring from text of
the relevant clause and the context it is read in
 (Unstated concern that if Court does not respect reservations, no state will make
declarations, and the court will be useless)
 Dispute comes within Canada’s reservations
Dissent
 If a violation of a “bedrock principle of international law” is brought to the attention of the
Court, Court shouldn’t disregard it just because it is subsumed within a reservations clause
 Court should take a broader view where possible – shouldn’t forego jurisdiction in every
case where the literal text of a reservation excludes it
 Can only know whether or not there is jurisdiction once the facts of the case are presented –
until then, the court cannot reject Spain’s application
Decisions of the Court
Contentious Cases
118
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Court decides cases according to sources of international law listed in ICJ Statute art. 38
In the event of a tie, the President has a deciding vote
Judgments are final and without appeal – subject to revision only in limited circumstances
Courts can grant “provisional measures” in urgent situations to prevent the threat of
irreparable harm (see request made by Akhavan for provisional measures in Georgia
v Russia case)
o However, these are often not honoured by states
o This was the basis for the Labrond case that Germany brought against the US to get
one of their citizens off Death Row
o However, in less urgent cases (such as the construction of a bridge (Denmark) or a
potentially polluting mill (Argentina) – provisional measures were not granted
o Not clear (because not decided) to what extent states must establish jurisdiction
before they can issue provisional measures
Advisory Opinions

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Court can give legal advisory opinions to GA, SC, and other organs of the UN that request
them (Charter art. 96, Statute art. 65)
States CANNOT request advisory opinions (just contentious cases)
Some of Court’s most influential decisions have been rendered this way (Western Sahara)
Court turned down a question about the legality of nukes put by the WHO
o Not because it was a political rather than a legal question (it was a legal question)
o But because it did not fall within the scope of activities of the WHO, which had no
competence over the legality of nukes
However, when the question was put by the GA, the Court decided to give an advisory
opinion (despite objections)
Legality of the Threat or Use of Nuclear Weapons (1996)
Ratio: Court should not refuse to give an advisory opinion where jurisdiction is fulfilled; it is not
deciding a dispute, just giving advice, so vagueness of question is not an issue; here court says nukes
are illegal, but there might be some extreme cases where they might be allowed = leaves issue open;
Weeramantry dissent.
 Art. 65(1) of the Statute gives the Court discretion to give opinions as it chooses
 As the chief UN judicial organ, it should not, in principle, refuse to give an advisory opinion
o Only “compelling reasons” can justify a refusal
o Court has never declined to give an advisory opinion when the conditions of
jurisdiction were met (as they were not in the WHO request)
 Purpose of advisory function is not to settle the issue, but to provide legal advice
o Thus the fact that the issue is vague and there is no specific dispute is not important
 Court doesn’t determine whether the GA needs the opinion – that is for the GA to decide
 (A couple of other specific counter-arguments refuted)

Akh: difficult situation for the court
o Can’t ignore international law (esp. Hague Convention that bans indiscriminate
weapons)
o But, can’t take a utopian view that ignores the fact that the permanent members are
going to keep their nukes whatever the court says
o Court solves the issue by saying that nukes are illegal, but there are certain
extreme cases of self preservation that the court cannot speculate on, in which
they might be allowed (which leaves the issue open)  classic Solomonic
justice!
* Except for the scathing dissent of Weeramantry (see above)
119
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(2004)
Ratio: fact that Israel hasn’t accepted court’s jurisdiction on this issue doesn’t matter; it is an advisory
opinion to the GA not a binding decision; court should only refuse to give advisory opinion in
“compelling circumstances”
 Argument that court should not give an opinion because it concerns the wider IsraeliPalestinian dispute, which Israel has not consented to accept the Court’s jurisdiction about
o No bearing on Court’s jurisdiction to give an advisory opinion, which has no binding
force
 Except in certain circumstances, where conditions of judicial propriety
should oblige the Court to refuse an opinion (Western Sahara (?))
 Also, this is not only a bilateral matter between Israel and Palestine – it concerns the UN
directly
Georgia v Russia Case (Akhavan’s case)








RUS invaded Georgia to annex certain areas
RUS very careful to enter reservations to all treaties, etc.
However, USSR removed some of its reservations for Human Rights Treaties during
Gorbachev’s HR phase, and RUS inherited it
So Akhavan argued to apply this extraterritorially; requested provisional measures pending
the decision on the merits
Interesting context; in the middle of the ongoing war; supremely political
Akhavan won on provisional measures by one vote (this was with clear evidence of ethnic
cleansing)
Russia comes back with challenge to jurisdiction
o Court held that despite 17yrs of conflict over Georgia, 200 docs of evidence of ethnic
cleansing, treaty was never invoked by Georgia until after war broke out in 2008
and should have negotiated with Russia before bringing it to the court (9-7)
o So failure to exercise all alternative recourses
Shows how the court is mainly an instrument for the powers; bullying works
* Really needs consent of both parties for ICJ to work
Too bad, since it’s really the small states that need international law the most, but it’s the large states
that control it
Judicial Review Power for the Court?
Does the ICJ have the power to review the legality of the acts and decisions of the other UN organs?
 Many CML systems hold that courts should have the power to strike down legislation (Marbury
v. Madison)
 (Not true of CVL systems)
Ariel Incident at Lockerbie (Libya v. UK)
Ratio: possibility of judicial review role of ICJ over decisions of the SC (?)
 Question: does the Court have the power to pronounce on the validity of a SC resolution?
 Court cites art. 103 of the UN Charter
120
In the case of a conflict between the UN Charter and any other treaty, the
Charter triumphs
In stating this, however, the ICJ was taking a judicial review role over the SC
 Schwebel (American judge) wrote a powerful dissent – “Court was not and was not
meant to be invested with a power of judicial review of the legality or effects of decisions of
the SC”
o ICJ has several times disclaimed possessing a power of judicial review in advisory
opinions
o Total absence of any provision granting judicial review, and “so extraordinary a
power is not ordinarily meant to be implied”
o Lots of national and international legal systems rely not on judicial review but on
self-censorship
o Grafting on judicial review at this point would be “revolutionary”  IL has no
principle of judicial review: where it exists it is specifically provided for by treaty
o Would weaken the effectiveness of the SC and weaken the integrity of the Charter
o
Significance of the International Court of Justice
 Relatively few cases are brought before the ICJ
o Governments are reluctant to surrender control of their affairs
o Many states lack confidence in the ICJ
o Often one state party thinks the law needs to change – doesn’t want to be ruled
against under existing law
Address by the President of the ICJ (Schwebel J, 1998)






Courts are great, but haven’t proved to be a substitute for war
o But they do play an important role in promoting peace
o States stop using them at times of high international tension
Courts may help disputing states to clarify their positions – no longer seen merely as a
last resort
ICJ is the supreme interpreter of the UN Charter
Has contributed to the growth and refinement of international law
o Must maintain judicial independence
Issue of proliferation of other national tribunals with potentially conflicting outlooks
Budget too low (26 million) – far less (around 10%) of the ICTY budget in 2002-03
The Use of Force
Kindred 1109-1212
Until 19th C, the law of war was mainly concerned with WHEN war was allowed
 Jus ad bellum  war against non-believers, uncivilized nations, etc
In the 19th C, mainly concerned with HOW wars are fought
 Jus in bello
 Prevalence of positivist ideas – don’t want to restrict states’ rights to declare war
 Rather, outlaw cruel weapons, practices, etc.
League of Nations
 Unlike UN Charter, Covenant of LoN did not legislate on the legality of war
 LoN was successful in resolving minor disputes, but not major ones
 Some predicted that Iraq War would spell the end of the UN in the same way
121
Kellogg-Briand Pact, 1928
 Revolutionary first attempt to outlaw war
 Did not come from LoN
 Did not prohibit war as such, but tried to restrict it
 Still in force, but superseded by UN Charter (art. 2(4))
 This was the basis for the prosecution of the Nazi war criminals for their presumptive attack
on Scandinavia
 No enforcement mechanisms
 BUT they relied on it at the Nuremberg Trials anyways
A. Prohibition on the Use of Force
UN Charter, Art. 2
(3) International disputes to be settled in a manner that international peace and security, and justice,
are not endangered
(4) Must refrain from threat or use of force against territorial integrity or political independence
of any state or any other manner inconsistent with Purposes of UN
Note: this codifies rule of customary international law binding on all states. Does not prohibit economic
or political pressure. But can be complemented by 1970 Declaration below, which does call for
prohibition of unwarranted/unreasonable economic/political pressure.
(7) UN not authorized to intervene in matters that are essentially within jurisdiction of any state. No
state required to submit such internal matters to settlement under UN.
BUT this doesn’t prejudice application of Ch. VII enforcement measures.
Declaration on Principals of International Law Concerning Friendly Relations (1970, a
GA resolution, but authoritative)
• Outlines basic principles of international law, emphasizing good neighbourliness, good faith and
the strict obligations arising from sovereignty and equality of states – including non intervention and
coercion.
• These principles constitute basic principles of international law and require strict observance.
Principle 1: States to refrain from threat or use of force against territorial integrity or political
independence of any State
- War of aggression = crime against the peace for which there is responsibility under
international law.
- Duty to refrain from propaganda for wars of aggression
- Duty to refrain from acts of reprisal involving the use of force
- Duty to refrain from organizing irregular forces/groups for incursion, acts of terrorism or
civil strife in another State
- No territory can be militarily occupied as result of use of force.
Principle 2: Duty not to intervene in matters within domestic jurisdiction of any State
- Violation of international law includes threats against personality of State, its political,
economic or cultural elements
- Every state has inalienable right to choose its political, economic, social and cultural systems
without interference
Principle 3: Duty to co-operate with one another in accordance with Charter
Principle 4: Equal rights and self-determination of peoples
- No external interference and every State must respect this right in accordance with Charter
- If forcible action occurs, peoples are entitled to seek and receive support to react and resist
122
Limit to this is if it dismembers or impairs territorial integrity or political unity of sovereign
States conducting themselves in compliance with principle of equal rights and selfdetermination
Principle 5: Sovereign equality of states
Principle 6: States shall fulfill in good faith their assumed obligations
-
Notes: Adopted by concensus. Is it a reflection of CIL or a guide to interpreting the Charter?
Charter of the Organization of America States, 1948 ammended in 1967
Bans not only coercion by force, but also threats to economic, political, and cultural elements
Military Activities In and Against Nicaragua (Nicaragua v. US), ICJ, 1996 (p. 1113)
Ratio: ‘Armed Attack’ at art 51 UN Charter is a much narrower concept than ‘use of force’ at art 2(4) UN
Charter; right to used armed force in self-defence is only triggered by ‘armed attacks
 No general right of intervention in support of an opposition within another state in
international law
 “Armed attack” (art. 51) is considerably more narrow a concept than “use of force” (art. 2(4)).
 Armed attack includes sending armed bands or mercenaries (Definition of Aggression, GA) –
reflects CIL
o But it does not include providing logistical support to rebels, as in this case
 However, logistical support to rebels is still a violation of art. 2(4)
o And it constitutes an intervention in the internal affairs of the target state, and thus a
clear breach of the principle of non-intervention
 So, this is indirect intervention and a use of force (art. 2(4)), but it doesn’t constitute an armed
attack (art. 51), which would turn this into an international conflict, make Geneva Conventions
applicable, etc.
 “Armed attack” (art. 51) is considerably more narrow a concept than “use of force” (art. 2(4).
o Right to use armed force in self-defence is triggered only by “armed attacks”, not
by lesser uses of force
Principle of non-intervention is part of customary international law (despite frequent
violations)
 Backed up by opinion juris and established practice
 Implied by art. 2(1) (sovereign equality of states)
 Doesn’t matter that there is no specific reference to the principle of non-intervention in the
Charter – Charter was never intended to be comprehensive
Definition of Aggression, UN GA Res 3314 (1974), p. 1127
Adopted unanimously; this is what SC uses to determine under UN Charter 39 whether a direct/indirect
use of force is in contravention of the Charter or not; however, nations don’t usually argue that there
actions aren’t in contravention, they usually just argue a justification (see below)
Preamble: SC shall determine existence of any threat to peace, breach of peace or act of aggression.
Art 1:
- Aggression is the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State or in any manner inconsistent with Charter.
Art 2:
- First use of armed force against the principles of the Charter= prima facie evidence of act of
aggression
- Though SC can draw another conclusion after looking at relevant evidence
- Considers among other factors whether the acts were of sufficient gravity (Surinam/Guyana
123
Art 3:
-
Art 4:
Art 5:
-
Art 7:
-
gunboat dispute was not)
Note deference to SC
Lists what qualifies as act of aggression: invasion, military occupation, annexation by use of
force; bombardment; blockade of ports; attack on land, sea or air or fleets of another State;
use of armed forces stationed in the State against it; (f) allowing other State into yours to
attack a 3rd state; (g) sending armed group to attack a State (indirect aggression – links to
terrorism)
Note that declaration of war is not necessary
Acts in art. 3 are not exhaustive and SC may deem something else to be aggression.
No consideration of whatever nature may serve as a justification for aggression. War of
aggression = crime against international peace and gives rise to international
responsibility. No acquisition or advantage resulting from aggression can be recognized as
lawful.
Definition not to prejudice right to self-determination, freedom and independence of peoples
deprived of self determination (esp. under colonial rule)
Comments by Canadian Delegation, 1974
Art 1:
Art 2:
Art 3:
-
Art 7:
-
Canada satisfied with basic definition, even if it does not refer to cases of indirect aggression
Aggressive intent is another criteria to consider. It is the mens rea of criminal law. Use of
armed forces raises a rebuttable presumption that an act of aggression has been committed.
It must be complimented by intent.
Must be read with art 2. List is to be an aid. SC can still decide upon course other than
determination of act of aggression with view of encouraging parties to seek peaceful
settlement of their differences.
3(d) on blockage of ports is not to be construed as prejudicing or diminishing authority of
coastal state to exercise its rights in maritime zones within limits of its natl jurisdiction.
3(f) + (g) on indirect aggression: determining factor should be degree of force used and
degree of responsibility which can be attributed to state rather than means or
modalities by which force is used.
Reference to struggles of self-determination must mean struggle by peaceful means
and not one which condones use of force contrary to provisions of Charter. The article
is not to be interpreted as endorsing assault on territorial integrity of any state or condoning
dismemberment of any state by violent means.
Notes
 Definition received approval by consensus, without final vote
 This is used by Sec Council when it decides, under art. 39, whether direct or indirect use of
armed force is an illegal use of force in contravention of the Charter
o Meant to serve as a guide for SC, not constrain it
 States have not tried to argue that there are no rules to prohibit their conduct; rather, they have
tried to justify their actions by trying to bring them within the recognized exceptions
Military Activities In and Against Nicaragua, 1986
o “Armed attack” (art. 51) is considerably more narrow a concept than “use of force” (art.
2(4).
o Right to use armed force in self-defence is triggered only by “armed attacks”, not
by lesser uses of force
124
No defined crime of aggression (yet) under the ICC Statute
 Under Nuremburg, there was “crimes against peace” – basically aggression
 In ICC Statute, the US thought aggression was an issue for Security Council to decide  too
political  so definition was left till later
Arms Control
 Relates to jus in bello – the way war is conducted
 Early and continuing priority of the UN, particularly nuclear disarmament
 However, most of the progress has been made by multi-lateral and bilateral treaties
Legality of nuclear weapons
 Use
o Fairly widespread view that a state that initiated a nuclear exchange would be in
violation of international law
o Russia and China have unconditionally renounced first use; US and NATO have not, in
the event of aggression in Europe
 Possession
o More complicated
o Predominant view is that they are legal – state is free to do whatever it is not explicitly
forbidden to do
B. Justifications for the Use of Force
* Excuses for Intervention (Williams and Mestral)
(1) Collective intervention by enforcement action under authority of SC  Chapter VII of
Charter
 Primacy given to SC – this even supersedes the right to self-defence
 Thus, in Bosnia, SC imposes an arms embargo (which helped the Serbs, who already had
lots of weapons) while sending in a highly ineffective peacekeeping force  SC clashes
with self defence
 Also a controversy in Darfur – one statesman has argued the UN should not send
peacekeepers, but money to buy AA guns
(2) Possibly also if sanctioned by the GA pursuant to UPS Resolution of 1950
 Where there is a 2/3s majority of the SC that support armed force then the GA should be
able to act on it (because for a long time actions were stymied by the Cold War)
(Otherwise UN is prohibited under art. 2(7) from intervening)
(3) Where state seeks to protect the rights and personal safety of its nationals who are in state
it proposes to intervene in
 There can be no other recourse available, there must be imminent danger, and the
intervention must be proportionate
 (e.g. 1976 Israeli intervention in airport in Uganda. Hijacked plane – Entebbe Raid see
below)
(4) Individual or collective self-defence, to repel danger of armed attack (art. 51 of Charter)
 This has been held to include preemptive strikes where the danger is proven to be
imminent – see Israeli attack on Iraqi Nuclear Centre
(5) State acting in affairs of protectorate state which it’s obligated to assist (i.e. under treaty)
125
(do these treaties have to be open? These types of undisclosed treaties led to WWI)
(6) Where state intervened upon has committed gross breach of international law against the
intervening state
 Has been extended to include “humanitarian intervention” where a state denies
fundamental human rights to its own citizens (R2P?)
 Argued that humanitarian considerations outweigh reasons against intervention if
offending state does not reform: NATO in Korea, Kosovo
 Where there is no personal and selfish motive by intervener, this is OK. But this can
easily be used as excuse to meddle in other state’s affairs.
(7) When government has invited the intervention in a genuine and real manner
 Doesn’t work if the outcome of a domestic war is doubtful (since then the government
can’t hold itself out to speak for the state)
 However, if the civil war has been aided by another outside state, the government does
have the right to ask for help
1. The Right to Self Defence
UN Charter, Art 51
If armed attack occurs against UN Member, then nothing impairs right to individual or collective selfdefence. Such measures are to be reported immediately to SC and do not affect authority or
responsibility of SC to take action it deems necessary to maintain or restore international peace and
security.
 In Nicaragua, affirmation that a customary international law right to self-defence exists
alongside art. 51, which is much more limited
o Is right to self-defence restricted to cases of ‘armed attack’?
o Armed attack standard is high – provision of weapons to an insurgent group is not
necessarily an armed attack
 What about customary rule of pre-emptive self-defence? Does it survive the Charter?
The Caroline, UK v. US (1837), p. 1138
Ratio: to be legitimate, self-defence (pre-emptive strikes) must be necessary (instant, overwhelming)
and proportionate
Facts:
 US knew rebels were raiding Canadian riverside and British ships during 1837 Canadian
rebellion.
 The ship Caroline involved in supplying men and materials. It was seized by British forces on
US waters, who lit it and sent it over Niagara Falls. Two US citizens killed.
 Action discussed in US-UK diplomatic correspondence when Brits sought release of McLeod,
charged with murder and arson.
Mr Webster:
US does not believe that UK can prove that the necessary conditions existed. These are:
1. Necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment
of deliberation.
2. That local authorities of Canada did nothing unreasonable or excessive in entering US
3. Admonition to those on the Caroline was impracticable or would have been no remedy
4. That there was necessity to attack the Caroline, present and inevitable, and to not separate
guilty from innocent
Lord Ashburton:
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Agree on principle of international law applicable to this case – particularly the inviolable character
of the territory of independent nations.
Notes:
• UK argues there was necessity of self-preservation and danger of future threats. US rejected this
plea.
• To be legitimate, self-defence must be necessary and proportionate to harm encountered.
Nuremberg War Crimes Trials (IMT, 1947), p. 1140
Ratio: preventive action in foreign territory is only justified in cases of ‘instant and overwhelming
necessity for self-defence (Caroline)
Crimes had no exact geographical location. Defendants indicted with crimes against peace, war
crimes and Crimes Against Humanity. Also charged with participating in formulation or execution of
common plan or conspiring to commit all these crimes
 International Military Tribunal (IMT) held that to initiate war of aggression is the supreme
international crime, and there was individual responsibility for this under art 6 of IMT
Charter
Judgment:
Hitler considered invasion of Norway and Denmark in Mar ‘40 memo and as early as Oct ‘39. It was
carried out on Apr 9.
 Defendants contend Germany was compelled to attack Norway to forestall Allied invasion,
therefore it was preventive action.
 Preventive action in foreign territory is justified only in case of “an instant and
overwhelming necessity for self-defence, leaving no choice of means and no moment
of deliberation” (Caroline)
Plans to attack were not made for purpose of forestalling Allied landing but prevent future Allied
occupation. But it was not at all imminent
 Defendants argued it was for Germany, under Kellogg-Briand Pact, to decide whether
preventive action was a necessity and such decision was conclusive. But if international
law is ever to be enforced, then whether self-defence act was aggressive or defensive
must be subject to investigation and adjudication
• Acts against Denmark and Norway deemed aggressive war
• Forceful rejection of the right to preventative war
 Note that Nuremburg did not reject pre-emptive self defence outright
 Rather it rejected this particular argument on the facts
Israeli Attack on Iraqi Nuclear Research Centre – Security Council Debate, 1981 (p.
1141)
Ratio: SC unanimously finds that Israel owes Iraq reparation for premeditated and unprovoked attack;
US believed it was only against IL because Israel had failed to exhaust non-violent means
Israeli military bombed nuclear station near Baghdad. Iraq says it was act of aggression. Israel says it
was an act of self-preservation.
Security Council Debate
• Hammadi (Iraq):
- Civilian casualties and much material damage when Israel attacked.
• Blum (Israel):
- Pilot’s mission was to destroy nuclear reactor.
- This was elementary act of self-preservation, both morally and legally. It was an exercise of right to
self-defence under art 51 and general international law.
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- Threat of nuclear obliteration was being developed against Israel by Iraq. Israel tried diplomatic
route.
- Actions taken were clean and effective. Middle East is a safer place because of it, as is international
community
[Meanwhile, International Atomic Energy Agency passed resolution condemning Israel for
premeditated, unjustified attack on Iraqi nuclear research and recommended suspension of technical
assistance to Israel. It reminded states of UN resolution to end transfer of nuclear materials and
technology to Israel]
Security Council Resolution 487 (1981)
 Iraq is party to Non-Proliferation Treaty and has applied safeguards satisfactorily.
 Israel has not adhered to NPT
 Its premeditated attacks created danger – installations could have exploded
 Given art.2(4) of Charter, the attacks are strongly condemned.
 Call on Israel to refrain from such acts or threats in future and to place its nuclear facilities
under IAEA regime
 Attacks constitute serious threat to IAEA regime.
 Recognition of inalienable sovereign right of Iraq to establish programmes of nuclear
development for peaceful purposes consistent with internationally accepted objectives of
preventing proliferation.
 Iraq entitled to appropriate redress for destruction it has suffered by Israel.
Notes
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Israel says that Iraq had declared war on Israel in 1948 and therefore this was a state of war.
First Strike capabilities are central to this
Mr Blum argued that strikes were proportional since they were on Sunday and the loss of life
was minimal.
Sec Council voted unanimously against Israel. US was of view that Israelis only
violated Charter because they had not exhausted peaceful means
National Security Strategy of the USA (US Policy Document, Sept. 2002), p. 1146
 Cannot allow rogue states and terrorists to strike first
 International law has long recognized preemptive “defence” against an imminent danger of
attack
A More Secure World: Our Shared Responsibility (UN Panel, 2004), p. 1147
UN Charter 51 allows pre-emptive self-defence but only where threat is imminent; otherwise, requires
SC approval
 Art. 51 allows a threatened state to take pre-emptive action, but
o Threatened attack has to be imminent
o No other means would deflect it
o Action is proportionate
 There is no right to preventative action (that is, where threat is not imminent) without
SC approval
o Reinforces judgments in Nuremburg and Israeli Bombing
Security Council Resolution 1368 (12 September, 2001) (page 1150)
 Recognizes states’ rights to individual and collective self-defence
 Condemns terrorist attacks on Sept. 11th
 Calls on international community to prevent terrorism
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SC Res. 1373 (28 September 2001) (page 1151)
 Required that states take a broad range of actions to suppress terrorism
o Freezing funds, etc.
 Not support terrorism!
Collective Self-Defence
 NATO claimed the right to collective self-defence after 9/11 – an attack on one is an attack
on all
 However, Nicaragua case introduced two prerequisites to the legitimate exercise of the
right
o Victim state must make a formal and public statement that it has been attacked
o Assisting states must receive a formal and public request from the victim state
2. Self-Defence of Nationals
• In 19th C nationals were seen as extension of the state and their protection was crucial and lawful.
Today?
The Entebbe Raid – SC Debate (1976)
Ratio: argument that terrorists are hostis humani generis; defence of nationals where state they’re in is
unwilling or unable is legitimate use of self-defence where force used is proportionate
Israel (Mr Herzog):
- Uganda violated international law in failing to protect foreign nationals in its territory and also
1970 Hague Convention on hijacking
- Uses scholarly arguments that right of intervention has been claimed by all states and only its limits
are disputed
- If UN is not in position to move in time and there’s need for instant action, then cannot deny
legitimacy of action in defence of nationals
 Make argument that hijackers are pirates, and therefore hostis humani generis (enemies of
human race)
- This was exercise of Israel’s right to self-defence
- No consideration other than a humanitarian one motivated Israel and operation was not directed at
Uganda.
- Means used were minimum necessary to fulfil the purpose of rescuing nationals from band
of terrorists who were being aided and abetted by Ugandan authorities
- Draws parallel with right of individual to use appropriate means to defend himself if someone’s
trying to kill him.
Cameroon (Mr Oyono)
- Isreal took initiative to attack Uganda. This was hostile action and makes Israel the aggressor under
international law.
- Asks SC to condemn ‘barbaric’ act since it violates arts. 2(4) and 51 of Charter. Asks for punishment
of violation
- There was no attempt to solve dispute by peaceful means. UN can’t allow this anarchy or for might
to make right.
- There can be no justification for violation of state sovereignty.
US (Mr Scranton)
- This act was necessarily a temporary breach of territorial integrity of Uganda. Normally, that’s
impermissible.
- But you can use limited force for protection of one’s own nationals when state they’re
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in is unwilling or unable to protect them. -- This self-defence right is limited to
necessary and appropriate use of force.
- Here such requirements were met – specially because there’s evidence Uganda was helping the
terrorists.
- Uganda’s failures raises question of their failure to live up to its international legal obligations
under Hague Convention.
- That Israel could have secured release of hostages by meeting demands does not alter these
conclusions. It would be a self-defeating and dangerous policy to release the prisoners and
accept demands of terrorists.
- This situation was unique given Uganda’s behaviour, so it should not set strict precedent.
Notes
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Several parties in the case refer to the Caroline precedent
Justification of self-defence of nationals was also used in US interventions in Grenada (83)
and Panama (89)
3. Humanitarian Intervention
Shift from language of a “right” to intervene to a “responsibility” to protect threatened populations
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Occurred in the 19th century: 1827 intervention of western European states to protect Greek
insurgents
Post UN Charter, a general right to intervene forcibly for humanitarian reasons remains
controversial
Art. 51 allows for self-defence (arguably a state’s own nationals)
But 2(7) prohibits intervention in the domestic affairs of states!
o SC documents calling for interventions in Iraq (1991) and Somalia (1993) (p. 1164)
o How does preserving democracy relate to humanitarian intervention?
Kosovo (1999) – plan to end ethnic cleansing, but without SC approval (“illegal but not
illegitimate”, Richard Goldstone)
Shift from language of a “right” to intervene to a “responsibility” to protect threatened
populations
The Responsibility to Protect (International Commission on Intervention and State
Sovereignty (ICISS), Dec. 2001), p. 1170
State sovereignty implies responsibility to protect people in the state; if gov of that state is
unwilling/unable and population is suffering serious harm, principle of non-intervention yields to
international responsibility to protect; use of force last resort and requires proportionality
 Humanitarian military intervention is controversial both when it happens and when it
doesn’t
 Principles
o State sovereignty implies responsibility to protect people in the state
o When a population is suffering serious harm (large loss of life actual or
apprehended, or ethnic cleansing actual or apprehended) as a result of internal war,
insurgency, repression or state failure and the state is unwilling or unable to halt it,
principle of non-intervention yields to international responsibility to protect
 Foundations
o Obligations of sovereignty
o Responsibility of SC under art. 24 to maintain international peace and security
o Specific legal obligations re human rights, peace and security
o Practice of states, regional organizations and SC itself
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Military intervention is always a last resort and requires proportionality
Should go through the SC, or alternatively the GA under the “Uniting for Peace” procedure, or
alternatively regional organizations
A More Secure World: Our Shared Responsibility (UN, 2004), p. 1175
 Affirms collective responsibility to protect
 SC should consider seriousness of threat, proper purpose, last resort, proportional measures,
balance of consequences
4. Collective Measures Pursuant to the UN Charter
UN Charter: Responsibility of UN Member States (2, 24, 25)
Art 2(7): Unless applying Ch. VII powers, nothing authorizes UN to intervene in matters of domestic
jurisdiction or requires members to submit such matters to settlement
Art 24: Primary (note: not exclusive) responsibility for maintaining international peace and security
is with the SC
Art 25: Members agree to accept and carry out decisions of SC in accordance with the Charter.
Still consent-based, since states have consented to be bound by SC in the first place
Still, the closest we have in IL to a supra-national policing function
UN Charter: Chapter VII (39-51)
Art 39: SC determines existence of any threat to peace, breach of peace or act of aggression and
makes recommendations to maintain or restore international peace and security.
Art 40: SC can pass provisional measures, without prejudice to rights, claims or position of parties
concerned.
Art 41: SC can decide non armed force measures to give effect to decisions. Includes complete or
partial interruption of econ relations, means of communication and severance of diplomatic
relations.
Art 42: If measures in art. 41 are inadequate, SC can send in forces necessary to restore international
peace and security. Includes demonstrations, blockade and operations by air, sea or land.
Art 43: All nations make available to SC armed forces, rights of way, facilities, assistance by
agreement(s).
Art 44: If member giving forces is not on SC, it’s invited to SC to participate in decisions concerning
their use.
Art 45: For urgent military measures, members shall hold available air force contingents.
Art 46: Military Staff Committee (MSC) to help SC on use of armed force.
Art 47: MSC established by Chiefs of Staff of perm members and any other member whose
participation’s needed
Art 48: Actions required to carry out decisions of SC for international peace and security to be taken
by all Members or some as SC determines.
Art 49: Members to join in affording mutual assistance in carrying out measures decided by SC.
Art 50: If SC takes preventive or enforcement measures against a state, any other state economically
affected has right to consult SC with regard to resolution of the problem.
Art 51: Nothing here takes away from right to individual or collective self-defence UNTIL THE SC HAS
TAKEN MEASURES

SC has only 3 times prior to 1990 (Iraq-Kuwait) managed to determine a threat to or breach of
the peace that allowed it to exercise Chapter VII powers
o 1950 – invasion of S. Korea by N. Korea
 SC called for cessation of hostilities and for N to withdraw, then called on
member states to assist in S’s defence
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Question whether this was constitutional in the absence of USSR (arts. 24-28) –
do you need every permanent member to cast an affirming vote, or is their vote
no longer required when they refuse to vote?
 Was the USSR itself in violation of art. 28 by its absence?
1982 – invasion of the Falklands Islands by Argentina
 Demanded cessation of hostilities and for Argentina to withdraw
 Authorized intervention by UK
1980-88 – Iran-Iraq War
 Determined there was a breach of the peace (in 1987, after 500,000 had already
been killed)
 Previously, there had been interest in keeping the war going as a policy
of dual containment
 Only when oil supplies were threatened did the SC choose to act
 Cynical use of international law?

o
o
Uniting for Peace Resolution, GA Res 1951
Sets out conditions where majority of GA or SC could implement measures where SC reaches impasse;
probably doesn’t include right to authorize use of force Chapter VII but can recommend and expense
measures to preserve peace/security
 If SC fails to act because of lack of unanimity in the event of a threat or breach, GA will make
recommendations about what to do (including use of force?)
o Requires seven votes in SC or a majority of UN members
 Intend to correct the inherent weakness of the SC-veto system for authorizing
collective measures
 Adopted in the initial impasse over Korea
 Used in Suez, Hungary, Jordan, Lebanon, the Congo, Afghanistan, etc.
o Always in situations where one of the permanent members had an interest
 Unclear whether the member states are bound to follow the GA recommendations
 Uncertain whether a recommendation authorizes the use of force, but Akh says the
better view is no
 Certain Expenses of the UN Case (1962) – ICJ finds that
o SC’s responsibility under art. 24 is primary, not exclusive
o Only SC may authorize under Chap. VII, but GA may recommend and expense
measures to preserve peace and security (which actions in Congo, etc. were found to
be)
Iraq-Kuwait Crisis (1990-91), p. 1182
First time the SC exercised something approaching its full Chap. VII powers; after steady escalation of
non-violent measures, authorized “all necessary means” to kick Kuwait out (open season); most
extensive sanctions ever used by SC; US asserted collective self-defence; first time SC recognized
collective self-defence where assisting state had not itself been attacked and no special treaty calling
for assistance between the states
 Timeline – over several months, SC applies tougher measures, finally culminating in
use of force
o declares annexation of no effect
o demands withdrawal
o calls for economic sanctions and the freezing of Iraqi assets abroad
o calls on all states not to take any action implicitly recognizing the annexation
o calls on all states with maritime forces in the area to halt all inward and outward
shipping
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calls on all states to stop any aircraft from flying from their territories to Iraq or
Kuwait, or any Iraqi or Kuwaiti aircraft to overfly its territories, and to detain Iraqi
ships in their ports and deny entrance to other Iraqi ships (with a couple of
exceptions)
o Authorizes “all necessary means” and requests state to provide support (Res.
678) (p. 1190)
 This means open season – including and up to the use of armed force
(unanimous at the SC)
After the restoration, SC establishes post-war measures: formal cease-fire, demilitarized
zone, boundary demarcation, restoration of Kuwaiti property, etc. (Res. 687)
o Also places restrictions on Iraq’s weapons programs, mandates inspections, etc.
o Holds Iraq liable for damage caused
o Establishes a fund financed by Iraq’s oil revenues to pay these claims
o Voids Iraq’s repudiation of its foreign debts
o Calls for arms embargos against Iraq
o Requires Iraq to renounce support for terrorism
o
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US asserted a right of collective self-defence with Kuwait and S. Arabia – first time SC
recognized collective SD where assisting state had not itself been attacked and there
was no special treaty arrangement to give assistance
Most extensive sanctions ever declared by SC
Responses to State-Sponsored Terrorism
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GA and two specialized agencies, the International Civil Aviation Organization (ICAO) and
the International Maritime Organization (IMO) have sponsored 10 multilateral conventions
and two protocols against terrorism
o Seek to prevent airplane hijackings, attacks on ships and fixed platforms, etc.
o Thrust is to ensure prosecution of perps by obligating state parties to either
prosecute (amending domestic crim law if necessary) or extradite = aut
dedere aut judicare
Since 9/11, terrorism has come to be seen more in terms of national or international
security, rather than international cooperation in crim law
o Thus, role of SC is more important
If a state sponsors or aids terrorist groups, it would be a violation of art. 2(4) of the
Charter and the Declaration on Friendly Relations (1970) and an act of aggression
under art. 3(g) of the Definition of Aggression (1974)
SC put sanctions on Afghanistan for sheltering Al Qaida and required states to take extensive
measures to suppress terrorism
o Some questioned whether such wide-ranging requirements were in SC’s power to
grant
Many (esp. non-Western) states question the power of SC to impose sanctions under
Chap. VII for not extraditing alleged terrorists (as was done to Libya – see below) – is
this a mater of domestic affairs under 2(7)?
SC Res. 748 (1992) – unanimous (Libya)
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
(A response to Libya’s failure to comply with previous SC demands that Libya take action to
find (and probably extradite) Lockerbie hijackers)
Cites art. 2(4)
Takes action under Chap. VII
Imposes sanctions – requires member states to:
o Restrict airplane arrivals, destinations, and overflights if Libya is involved
o Prohibit importation of aircraft component weapons, training, etc.
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Notes
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o Downgrade diplomatic staff
Sets up a SC Committee to follow up on this
Emphasis underlying 748 is “collective security” against the terrorist threat
Was Libya’s refusal to extradite a threat to international peace and security?
Impasse was broken when Libya agreed to deport suspects (to a “Scottish” court in the
Netherlands)
ICJ turned down an application by Libya for provisional measures that would enjoin the US
and UK from further attempts to coerce Libya into surrendering the suspects
o Found that provisional measures were not appropriate – would have impaired the
effects of res. 748
SC lifted sanctions in 2003, when Libya agreed to accept responsibility for the
bombings, renounced terrorism, compensate the victims’ families, and to co-operate
with any future Lockerbie investigation
Contrast controversy over invasion of Iraq with NATO’s unauthorized intervention in Kosovo for
humanitarian reasons
 SC couldn’t act because Russia, a close ally of Serbia, would almost certainly veto
 NATO, whose mandate is to defend its member states, started a radical plan to stop the
Kosovars
 SC sort of condones it afterwards as a purely disinterested intervention, which really
was motivated by the desire to stop ethnic cleansing and preserve stability in the
region (which was threatened by some one million ethnic Albanian refugees)
Law and Right: When they don’t fit together, The Economist
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