Public Interational Law
Professor J. Ellis
Complete text notes, prepared by Haenyo, with use of case summaries
developed by others.
The following reading notes are generally cut directly from the text International
Law Chiefly as Interpreted and Applied in Canada, 8th ed. (2014). All case
summaries are included (even cases found in footnotes, text, etc.) There is,
unfortunately, no table of contents, or index included in this summary. If
someone creates one, please re-submit this pubdoc (and credit yourself) so
others can benefit.
Class notes are not included. Legislation and treaty text is included throughout.
The final is killer. Best of luck
Ellis - 2014
Public International Law
ACTORS
International law applies to certain entities as “subjects” of international law. These entities have
a legal personality—that is, a capacity similar to that of an individual person in domestic law, to
enter into legal relations, and to create the consequent rights and duties attached to that capacity. ... International law itself determines who shall have legal personality, and not all entities
possess the same personality. [Kindred]
STATE
Montevideo Convention on the Rights and Duties of States (1933)
Article 1 The state as a person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into
relations with other states.
 The 1933 Montevideo Convention provides the best-known articulation of the basic charac- teristics of statehood.
Although only United States, Haiti, and 14 Latin American states are members. [Kindred]
 Known as the “territory-government-people formula”
 See Parent c. Singapore Airlines
A. CRITERIAL FOR STATEHOOD
1. POPULATION
A permanent population is necessary for a state, although there is no minimum requirement.
There is likewise no requirement that the population possess the nationality of the state, because “[n]ationality is
dependent on statehood and not vice versa.”
 Secured with nationality; which links a person to a state
2. TERRITORY
that a state must possess a territory with respect to which it can exercise its functions, there is no requirement as to the
minimum amount of territory over which a pro- spective state must acquire power. A state maybe separated (ie Alaska).
A state may also come into being and continue to exist despite border disputes, or even where the entire territory may
be contested, as was the case with Israel.
 Secured with land; essential for statehood
3. GOVERNMENT
the governmental capacity to exercise power over an area of territory and population is the key feature, in that it is
fundamental to the concepts of independence and territorial sovereignty (which is only exercised through the means of
an effective government)
4. Capacity to Enter into Relations with Other States
in that it is both a prerequisite to and a consequence of statehood because, until other states accept the existence of the
new state, it is prevented from entering into diplomatic relations even if it is capable and willing to do so.19 Furthermore,
such capacity clearly requires an effective government that is independent
5. Independence
independence is closely connected to, and to some extent is defined by, the capacity for ef- fective government, in that
the claimant to statehood must be able, through its government, to exercise its self-determination, free of the authority,
though not necessarily the influence, of any other state.21 Although independence is often used interchangeably with
the word “sovereignty,”care should be taken in this regard as independence is a necessary component for the
attainment of the status, whereas sovereignty is a legal right that flows from it.
“dependent States.”These are States subject to the authority of one or more other States. The idea of
dependence therefore necessarily implies a relation between a superior State (suzerain, protector, etc.) and
an inferior or subject State (vassal, protégé, etc.); the relation between the State which can legally impose
its will and the State which is legally compelled to submit to that will.
It follows that the restrictions upon a State’s liberty, whether arising out of ordinary inter- national law or
contracted engagements, do not as such in the least affect its independence. As long as these restrictions do
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not place the State under the legal authority of another State, the former remains an independent State
B. RECOGNITION
there is no single organ having collective authority to determine claims for admission by new states and gov- ernments.
The decision is left to the established governments of existing states to exercise their sovereign and independent
judgment whether the claims of the new regime should be recognized.
Responsibilities, as well as rights, also accompany recognition
1. THEORY AND PRACTICE OF RECOGNITION
Recognition = “free act by which one or more States acknowledge the existence on a definite territory of a human
society politically organized, independent of any other existing State, and capable of observing the obligations of
international law, and by which they manifest therefore their intention to consider it a member of the international
Community.”33 Two elements in an act of recognition. (i) the claimant to recognition satisfies the legal criteria for
statehood and, (ii), that the recognizing state is publicly expressing its decision to respect the claimant as an
independent sovereign equal.
Distinction between recognition of states and governments; typically, a new state will be recognized and at the same
time the regime that established it will be recognized as the government. In practice, changes to states are not nearly so
frequent as changes of governments,
Under the constitutive approach, the act of recognition (or multiple recognitions) confers legal personality on claimant
states or governments, so that they are “only established as subjects of inter- national law by the will of the
international community through recognition.”34 The declaratory theory, on the other hand, “holds that statehood or
governmental authority does exist prior to recognition,”35 and the recognizing state is only declaring its acceptance of
this fact.
International law does not prescribe any particular form for the act of recognition. Recog- nition is a matter of the intent
of the recognizing government. But the intention to recognize must be clear and not ambiguous (treaties; diplomatic
relations; press conference)
Canadian Practice of Recognition of States (1972)
“As far as recognition of states is concerned, the Canadian Government must first be satisfied that any entity
claiming statehood meets the basic requirements of international law, that is, an independent government
wielding effective authority over a definite territory. When these conditions appear to be fulfilled, the timing
of recognition is determined in accordance with Canadian national interests, given the political and economic
consequences of recognition. Once granted, state recognition survives changes in governments, unless it is
explicitly withdrawn.”
There are three principal methods of according recognition to governments: express recognition, tacit
recognition and the recognition of states approach. These methods are distinguishable by the degree to which
they utilize a statement of recognition when an unconstitutional change in government occurs.
 Express Recognition: each and every unconstitutional change is the subject of a recognition statement.
o Advantages: clarity and specificity. Once a decision to accord or withhold recognition has
been made, that decision is entered into a recognition registry
o Disadvantages: method is cumbersome and time-consuming. Each and every
unconstitutional change must be reviewed. While a recognition decision is pending, other
states that do not follow this mode will continue normal relations, often to the detriment of
the state reviewing its position
 Tacit Recognition: a recognition statement is not as a general rule issued, though it can be in the event
of “exceptional circumstances.” (Canada + USA policy). When an unconstitutional change occurs,
relations are maintained on a business as usual basis. Recognition can only be inferred from the
relations
o Advantages: flexibility in meeting the requirements of most situations
o Disadvantages: lacks [clarity in] that our position vis-à-vis the new regime is to be inferred
from the nature of our relations with it.
 Recognition of States: recognition of states approach calls for the recognition of states only, not
governments. no statement of recognition is issued in the event of an unconstitutional change of
government
o Advantages: Clear, only states not governments are recognized. statements on recognition,
or inferences to be drawn from our relations with a new government under the policy of
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tacit recognition,
Disadvantages: Does not permit the state to make an express statement withholding or
according recognition, which maybe necessary in extreme situations.
The birth or demise of a state in violation of the UN Charter, such as by force, is a situation in which recognition should
be withheld.43 When the use of force has occurred, the Security Council may become involved and frequently will
expressly forbid member states from recognizing the new entity, pursuant to its authority under the Charter article 25,
as it did in the cases of Rhodesia and Northern Cyprus
Case Study: Yugoslav breakup
European Community issued certain Guidelines on the Recognition of New States in Eastern Europe and in the Soviet
Union, guidelines for recognition as follows: requirements, including, inter alia, respect for the UN Charter and the Helsinki
o
Accords, with respect to rule of law, democracy and human rights; “guar- antees for the rights of ethnic and national groups and
minorities”; respect for inviolable borders; and a commitment to settle state succession disputes by agreement, including arbitration.]
The Community and its Member States confirm their attachment to the principles of the Helsinki Act and the Charter of Paris [of the
CSCE], in particular the principle of self-determination.
The Community and its Member States will not recognize entities which are the result of ag- gression. They would take account of the
effect of recognition on neighbouring States.
After Slovenia, Croatia, and Bosnia-Herzegovina replied positively to these conditions, member states of the EC
granted them recognition, and subsequently the US and Canada did also. In May 1992 they were admitted to the UN.
In 1992, Serbia and Montenegro jointly proclaimed themselves the Federal Republic of Yugoslavia (FRY) as the
successor state to the former Socialist Federal Republic. The pro- claimed succession, however, was challenged by the
EC, the US, and Canada as well as by the newly independent states on the former Yugoslav territory. Partly on account
of its claims to succession and partly because it had been adjudged an aggressor in the Yugoslav conflict, the FRY was
not recognized. Its claims as successor state to occupy Yugoslavia’s seat at the UN was denied. FRY was forced to
reapply tp the UN and was admitted.
Macedonia was admitted after mediation over a name dispute with Greece.
The EC established an Arbitration Commission (commonly called the Badinter Com- mission, after its chairman) to
assist its Peace Conference on Yugoslavia.53 In Opinion No␣2 the Commission found
that international law as it currently stands does not spell out all the implications of the right to self-determination. However, it is well
established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the
time of independence (uti possidetis jure) except where the States concerned agree otherwise.54
Kosovo is still contenscious for Russia and the west.
In its later recognition of the secessions of Abkhazia and South Ossetia from Georgia in 2008 and Crimea from Ukraine
in early 2014, Russia pointedly invoked the actions of Western states with respect to Kosovo to justify its own actions.60
One important distinguishing feature of the Crimean case was the immediate annexation (by agreement) of the
seceding “state,” Crimea, by Russia, the recognizing state.
2. INTERNATIONAL EFFECTS OF RECOGNITION
All of the rights and responsibilities of a sovereign nation
Charter of the Organization of American States (1948)
Article 12
Thee political existence of the State is independent of recognition by other States. Even before being
recognized, the State has the right to defend its integrity and independence, to provide for its preservation
and prosperity, and consequently to organize itself as it sees ␣t, to legislate concerning its interests, to
administer its services, and to determine the jurisdiction and competence of its courts. ␣e exercise of these
rights is limited only by the exercise of the rights of other States in accordance with international law.
Article 13
Recognition implies that the State granting it accepts the personality of the new State, with all the rights and
duties that international law prescribes for the two States.
3. NATIONAL EFFECTS OF RECOGNITION
At a minimum, the recognized state or government may expect to have its sovereign authority respected in the
recognizing state. This respect is usually said to include the following rights: to sue in the courts of the recognizing
state; to take control of state property located in the recognizing state; to have effect accorded to its legislative and
executive acts of state; and to claim immunity from suit in the courts of the recognizing state for itself, its property, and
its representative
Executive Certificates and Proof of Status
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Certificates issued by the relevant government body in recognition of a state or treaty (see
Re Chateau-Gai Wines Ltd and Attorney-General for Canada,)
The ‘Act-of-State Doctrine’ - a nation is sovereign within its own borders, and its domestic actions
may not be questioned in the courts of another nation. Each sovereign state has complete control over
the laws within its own borders and that its acts cannot be questioned in the courts of another state.
The act-of-state doctrine is a common-law principle that prevents U.S. courts from questioning the
validity of a foreign country's sovereign acts that take place within its own territory. The "Act of State
Doctrine" says that courts should not decide cases that would interfere with their country's foreign
policy. (See Oppenheimer; Sabbatino; W. S. Kirkpatrick)
C.
Consequences of Statehood: Sovereignty and Equality
The rights and obligations that come with statehood—these can be summed up in the dual concepts of sovereignty and
equality of states
The rights include exclusive control over its territory, its permanent population (with certain provisos concerning the
international protection of human rights—see Chapter 8), and other aspects of its domestic affairs. The necessary
corollary is that there is a duty not to intervene overtly or covertly in the affairs of other states and thus not to interfere
with their exclusive domestic jurisdiction and the obligation not to resort to aggression or armed conflict.
UN Charter of Nations
Article 1: The Purposes of the United Nations are:
1. maintain international peace and security; 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 selfdetermination 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: Principles of the United Nations
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.
6. 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.
7. 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
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations (UN General Assembly Resolution 2625,)
o friendly relations and co-operation between nations are among the fundamental purposes of the United Nations,
o Recalling the established principle that outer space, including the Moon and other celestial bodies, is not subject
to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
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States shall settle their international disputes by peaceful means in accordance with the Charter,
Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major
obstacle to the promotion of international peace and security,
Considering that the progressive development and codification of the following principles:
(a) 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,
(b) 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,
(c) The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the
Charter,
(d) The duty of States to co-operate with one another in accordance with the Charter,
(e) The principle of equal rights and self-determination of peoples,
(f) The principle of sovereign equality of States,
(g) The principle that States shall fulfil in good faith the obligations assumed by them in accordance with
the Charter,
Principles
o 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
o refrain in its 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.
o Such a threat or use of force constitutes a violation of international law and the Charter of the United
Nations and shall never be employed as a means of settling international issues.
o A war of aggression constitutes a crime against the peace, for which there is responsibility under international
law.
o States have the duty to refrain from propaganda for wars of aggression.
o Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries
of another State or as a means of solving international disputes, including territorial disputes and problems
concerning frontiers of States.
o States have a duty to refrain from acts of reprisal involving the use of force.
o Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed
bands including mercenaries, for incursion into the territory of another State.
o Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or
terrorist acts in another State or acquiescing in organized activities within its territory
o No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
o shall settle their international disputes by peaceful means in such a manner that international peace and security
and justice are not endangered
o States shall seek early and just settlement of their international disputes by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means
of their choice.
o The parties to a dispute have the duty, in the event of failure to reach a solution by any one of the above
peaceful means, to continue to seek a settlement of the dispute by other peaceful means agreed upon by them.
o shall refrain from any action which may aggravate the Situation so as to endanger the maintenance of
international peace and security
o International disputes shall be settled on the basis of the Sovereign equality of States and in accordance with the
Principle of free choice of means.
o No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the
internal or external affairs of any other State. Consequently, armed intervention and all other forms of
interference or attempted threats against the personality of the State or against its political, economic and
cultural elements, are in violation of international law.
o No State may use or encourage the use of economic political or any other type of measures to coerce another
State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it
advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in
civil strife in another State.
o The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights
o
o
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and of the principle of non-intervention.
Every State has an inalienable right to choose its political, economic, social and cultural systems, without
interference in any form by another State.
State duty to co-operate
o To this end:
(a) States shall co-operate with other States in the maintenance of international peace and security;
(b) States shall co-operate in the promotion of universal respect for, and observance of, human rights and
fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of
religious intolerance;
(c) States shall conduct their international relations in the economic, social, cultural, technical and trade fields in
accordance with the principles of sovereign equality and non-intervention;
(d) duty to take joint and separate action in co-operation with the United Nations in accordance with the
relevant provisions of the Charter.
o States should co-operate in the economic, social and cultural fields as well as in the field of science and
technology and for the promotion of international cultural and educational progress. States should co-operate in
the promotion of economic growth throughout the world, especially that of the developing countries.
o The principle of equal rights and self-determination of peoples
o 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
o Every State has the duty to promote, through joint and separate action, realization of the principle of equal
rights and self-determination of peoples, in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle, in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples
concerned;
o The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and
distinct from the territory of the State administering it; and such separate and distinct status under the Charter
shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of selfdetermination in accordance with the Charter, and particularly its purposes and principles.
o Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would
dismember or impair, the territorial integrity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of peoples as described above and thus
possessed of a government representing the whole people belonging to the territory without distinction as to
race, creed or colour.
The principle of sovereign equality of States
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international
community, notwithstanding differences of an economic, social, political or other nature.
o In particular, sovereign equality includes the following elements:
(a) States are judicially equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State are inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic and cultural systems;
(f) Each State has the duty to comply fully and in good faith with its international obligations and to live in
peace with other States.
o Every State has the duty to fulfil in good faith its obligations under the generally recognized principles and rules
of international law.
o
CASE STUDY: RECOGNITION OF UNILATERAL QUEBEC SECESSION
Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that
Quebecers have been denied meaningful access to government to pursue their political, economic, cultural
and social development. In the circumstances, the National Assembly, the legislature or the government of
Quebec do not enjoy a right at international law to e_ect the secession of Quebec from Canada unilaterally.
the possibility of an unconstitutional declaration of secession leading to a de facto secession. ␣e ultimate
success of such a secession would be dependent on recognition by the international community, which is
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likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of
Quebec and Canada, in determining whether to grant or withhold recognition.
48 hour take home exam (at anytime during the exam period)
Architecture
Structure and process
Actors: Roles, rights, responsibilities
System boundaries
Interpreting and applying rules (ex. States decide for themselves when
they are brought before a court)
Hierarchies and lines of authority (there is not only one hierarchy but
many lines of authories)
Legitimacy; authority; validity
The state is the only actor in public international law that matters:
True to a point, but other actors are becoming more important
National and legal personality – CCQ
1. Every human being possesses juridical personality and has the full
enjoyment of civil rights
298.
Horizintal system, states both make and subject themselves to the rules
Montevideo Convention (defining ‘state’)
 Population
 Territory
 Government
 Capacity to enter into external relations with other states
Examples of difficult state situations: Antartica; Taiwan; Englan’s
Island of Jersey
Recognition
 Between apology and utopia (Koskenniemi) – Apology = states do
what they want anyways, and public international law exists to
explain their actions (ie USA Invaded panama because it could);
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Utopia = human rights/environmental side, with high hopes for a
perfect world. There is no middle ground
o Constitutive and declaratory theories (Constitutive=used to
constitute state creation; declaratory=makes a declaratory
statement or recognition for already existing state)
o Express and tacit recognition; recognition of states
o Non-recognition of governments (Canada recognizes states
not governments)

Non-interference
o Conflicting objectives

Political, economic, social stability

Principles stance against aggression, violent regime
change
 Why do states choose to stay silent rather than recognize? – In
principle, a state may have a policy of non-intervention;
national interest; in principle we should not interfere in other
state issues; self determination
 Don’t want to be the first state to recognize a new state made via
violent means (ie break-up of yugoslavia) Rather you can wait to
see what other states do (rather than creating a precedent)
Tinoco
 How was it established? (coup d’etat)
 What happened after it’s establishment?
o 20 states refused to recognize Tinoco’s government
o Britain acknowledged the Tinoca government was
illegitmate, but then said Costa Rica was responsible for the
debts it incurred regardless
 What was the reaction of international society?
o What was Great Britain’s reaction?
o What did the arbitrator make of that?
 Are there principled reasons for accepting the validity of acts
carried out by an illegally constituted regime
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Acts of State – Politics and Law – Judicial decisions on recognition
 Contexts
o Unrecognized governments
o Political authority in flux
o Egregious governmental acts
 Some considerations
o Rights of other sovereign states
o Judicial deference to executive authority (or better: division
of labour between judiciary and executive)
o Deference to international law
o Rights and interests of individual claimants
Recognition has both rights and duties
 Exclusive control of territory and right to non interference
 Obligation to protect interests of other states
 Las Palmas
o “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”
o “The right [of territorial sovereignty] has as a corollary a
duty: the obligation to protect within the territory the rights
of other states, in particular their right to integrity and
inviolability in peace and in war, together with the rights
which each state may claim for its nationals in foreign
territory
 Kuwait Airways Corp v Iraqi Airways Co
Great Britain v Costa Rica, [Tinoco Arbitration] (1923)
F
Government of Costa Rica was overthrown and the new
government passed a law invalidating all Ks and made a new
Constitution. When this government fell Great Britain sued Costa
Rica for debts. Costa Rica's new government claims no
responsibility for what the old government did.
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Great Britain says that Tinoco (the head of the old government)
was the government de facto and de jur – Cost Rica says Tinoco
wasn’t a government in international law.
Tinoco contracted a lot of foreign debt while running Costa
Rica, including with Great Britain.
I
(1) Can Great Britain sustain a claim against Costo Rica? [yes]
(2) Does it matter that Great Britain said Tinoca was
illegitimate? [no] Great Britain was able to sustain a claim
against Costa Rica because the Ks were made with Costa Rica
not Tinoco. [however the claim is unsuccessful do invalidity of
K]
D Tinoco was a sovereign government. Even though some sates did
not recognize it – that cannot outweigh the evidence disclosed
that de facto it was a government.
The question is not if the government abides by a constitution
but is: Has it established itself in such a way that all w/in the
its influence recognize its control, and that there is no opposing
force assuming to be a gov in its place
As long a it is the effective government of the state – it is the
government of the state. Debts owed are not owed by the
government of the day but between the state – the only legal
entity that is relevant is the state.
The British claim was ultimately rejected because the obligations undertaken by the Tinoco government
toward the Royal Bank and the other foreigners were held to be invalid under the law in existence at the
time—that is, the constitution and laws of Costa Rica under the Tinoco regime.
R Even an illegal government may bind a state to international
obligations. International law looks to the State, not the gov
entity w/in the state.
→ Caveat: when government in power contrary to international
law, not just domestic law, then doctrine of state continuity will
not generally apply
See: State recognition
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Luther v Sagor,
F
the plaintiff ’s sawmill and business was confiscated by decree of the Soviet government following the
Russian Revo- lution. Later, agents of the government sold some of the stock of plywood from the mill to
the defendant company. When it imported the plywood into Britain, the plaintiff brought suit, claiming to be
the true owner.
I
When are government acts recognized?
D Held that the recognition was retroactive, and that the
recognition was in fact valid from December 13th 1917, when
the Soviet Government assumed the position of the sovereign
government and purported to act as such.
R
Luther v Sagor decided that recognition extends back in time to validate all the public acts of the recognized
government since it came to power.
all states are sovereign equals and each state must respect the public acts of every other state it recognizes
Recognition is retroactive (once the gov is recognized, the recognition extends back to previous acts)
Notes: This decision raises two further issues. The first is a question of fact to determine in each case when a
newly recognized government acquired power. The second problem is a question of law as to the effect of the
acts of the previously rec- ognized government committed after the inception of the new regime but before it is in
turn recognized. The effect of later recognition on actions taken by the old regime in the interim period
See: State Recognition
The Arantzazu Mendi
F
During the Spanish civil war, the UK recognized de jure the
Republican government of Spain, but also recognized de facto
the rebel government (the Nationalists). Bother governments sued
in British courts to control the Spanish flagged vessel
Artantzazu Mendi, then in a British port.
I
Who should receive control of the ship at sea [de jure
recognition, the republican gov]
D At that time ship was at High Seas. Owner of the ship filed a
writ for taking possession of the ship when ship reached
London. By the time Republican of Spain issued writ for taking
possession of the ship. On the other hand government of General
Franco passed decree for taking possession of this as well as other
ships. Great Britain had bestowed de-jure recognition to Spain
and de-facto to Government led by General Franco.
It was held that there was no difference between de-jure and
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defector recognized government for present purpose and at the
date of writ Nationalist Government led by General Franco was
independent therefore could not be imp leaded as party.
It was held by the House of Lords that since the Nationalist was
a de-facto recognised sovereign ineffective contract over a large
portion of Spain, it was immune from the jurisdiction of the
local courts of other sovereign.
R A de facto government has control over state assets with in the
territory is controls. A de jure government has control over assets
in state territory and abroad
See: Recognition
Haile Selassie v Cable and Wireless Ltd (No.2)
Cases Regarding the conquest of Ethiopia (1939)
F
the conquest of Ethiopia, or Abyssinia, by Italy in 1935.66 Emperor Haile Selassie went into exile in London
but was still recognized by Great Britain as the legal sovereign of Ethiopia. At the same time the Italian
authorities were recognized as exercising governmental power de facto.
In Haile Selassie v Cable and Wireless Ltd (No␣2),67 the property in issue was a debt payable in London by the
defendant company on its contract with the Director-General of Posts, Tele- graphs and Telephones of
Ethiopia for the transmission of wireless messages. Haile Selassie, as the recognized de jure Emperor of
Ethiopia, claimed payment over the Italian government as the recognized de facto government within
Ethiopia.
I
Who should be able to collect payment of the debt (Emporor
Haile or Italy)? [Italy]
D
Application of the principle in Luther v Sagor that the recognized government had the right to state property
provided no obvious remedy, since the British government had granted a degree of recognition to both
claimants…..
The trial judge determined the matter according to the notional location of the property. Although
acknowledging the recognized authority of the Italian government over state property within Ethiopia, the
court found nothing had divested the Emperor of his title to sue for the debt collectable outside Ethiopia.
The decision was reversed on appeal because, by that time, the Italian government had been recognized as
exercising sole de facto and de jure authority over Ethiopia.
De Jure recognition was withdrawn from the Haile Selassie government and accorded to the King of Italy as
sovereign of Abyssinia, which led to the decision that it was the Italian authorities who became entitled to
recover debt due to the Ethiopian State in England.
R A judgement of the court below may be set aside on appeal if
before, or at the time of appeal the British government grants
recognition to a new government or state. But a cause of action
filed by a de jure recognized government may be nullified if at
any time of hearing, the British Government recognizes another
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government which was in control of the territory (and
recognized as such when the action was initiated)
See: Recognition; de facto recognition, de jure recognition
Gdynia Amerika Linie Zeglugowe Spolka Akcyjna v Boguslawski
(1953)
F
During the second World War the Polish government in exile
was recognized as the de jure government of Poland. On 28th
June 1945 the communist provisional government took effective
control of the country and was recognized as the de jure
government on July 5th. The Polish government in exile
undertook executive action on July 3rd
I
Is the executive action undertaken by the gov in exile effective?
[yes]
D
the House of Lords decided that the recognition “enables and requires the courts ... to regard as valid not
only acts done by the new government after its recognition but also acts done by it before its recognition
insofar as those acts related to matters under its control at the time when the acts were done
The house of lords emphasized the general principle of
retroactivity which would normally mean that all acts of the
communist government would be given effect to as from June
28th. However the acts of the government in exile with respect to
issues under their control remained effective up until the
withdrawl of recognition on the 5th of July. Therefore the action
taken by the government in exile on July 3rd would be effective.
R
he crucial element in addressing the overlapping recognition of two successive governments is the limitation
of the authority of each of them to “acts related to matters under its control at the time when the acts were
done
Notes: Same result as Civil Air Transport Inc v Central Air Transport Corp
See: Recognition, de facto recognition; de jure recognition;
retroactivity
Civil Air Transport Inc v Central Air Transport Corp (PC, 1952)
F
14
40 aircraft belonging to the Nationalist government of China were flown to Hong Kong shortly before the
advancing Communist forces took full control of the mainland. The Nationalist government, having
withdrawn to Taiwan, sold the aircraft but the individuals who flew them to Hong Kong seized control of
them in the name of the new Communist government. Shortly afterward the British government recognized
the Communist authorities as the government of China in place of the Nationalist regime. The purchaser of
the aircraft sued for their possession and succeeded because the Nationalist government was their owner
and controller at the time of sale while their subsequent seizure was illegal under Hong Kong law.
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I
Who owns the aircraft? (Purchaser, respect for de jure
government actions while they were in power)
D ‘Retroactivity of recognition operates to validate acts of a de facto
government which has subsequently become the new de jure
government, and not to invalidate the acts of a de jure
government. The sale to the plaintiffs took place at a time when
the Nationalist government was recognized de jure and in
principle that any title could not be impeached by a foreign
tribunal
The subsequent granting of de jure recognition to the communist
government could not operate retrospectively to invalidate or
annul a transaction made by the prior de jure government in
respect of assets that were still under its control at the operative
date,
The case law indicates that while recognition may operate
retroactively it will not operate to invalidate the acts of a de
jure government in respect of assets under its control
R recognition may operate retroactively it will not operate to
invalidate the acts of a de jure government in respect of assets
under its control
Notes: Same result as Gdynia Amerika Linie v Boguslawski
See: Recognition; de facto recognition; de jure recognition;
retroactivity
Re Chateau-Gai Wines Ltd and Attorney-General for Canada, (SCC,
1975)
F
the Institut National des Appellations d’origine des vins et eauxde-vie, brought an action in the Superior Court of the Province
of Quebec for an injunction and damages on the basis of a trade
treaty between Canada and France, brought into force in
Canada by The Canada-France Trade Agreement Act. Under art.
11 of the treaty respondents sought to have the word
“Champagne”, as an appellation of origin of their wines,
protected against use by the appellant to describe any of its
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sparkling wines produced in Canada. The Canada-France Trade
Agreement Act was assented to on May 23, 1933 and came into
force on June 10, 1933. On October 18, 1934 the Commissioner
of Patents registered the trade mark “Champagne” for wines, in
the name of the Government of the French Republic, in
accordance with The Unfair Competition Act, 1932 and
indicated June 10, 1933 as the date of registration.
I
Does the treaty adopted prevent the wine from being named
champagne (yes)
D The question of whether an international treaty between
Canada and another country has come into force must be
decided by within the realm of responsibility of the executive
arm of government and, being questions on which the state
should speak with one voice, they are questions with regard to
which the courts should accept from the appropriate minister of
the Crown a certificate as to Canada’s position. In my opinion,
this view of the law is well settled.
R Courts should seek executive certificates in matters of
recognition
See: Recognition, trade agreements, executive certificate
Duff Development v Kelantan (HL, 1924)
F
The government of Kelantan granted by a deed in 1912 certain
mining and other rights in the state to Duff Development. The
deed contained an arbitration clause which incorporated the
U.K. arbitration act, 1889, so far as applicable. Disputes arose as
to the effect of the deed and they were referred to an arbitrator
who made an award in favour of the company and directed the
Government of Kelantan to pay the costs of the arbitration.
In 1922, the company obtained from the King’s Bench Division
an order giving leave to enforce the award but the order was set
aside, upon application of the Kelantan Government, on the
ground that Kelantan was an independent sovereign state.
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(1) is Kelantan a sovereign state? [yes] (2) did the government of
I
Kelantan submit to the jurisdiction of the courts by either
assenting to the arbitration clause or by applying to the court to
set aside the award
D (1) yes, the Secretary of state for colonies has supplied an
executive certificate.
(2) no, sovereign immunity applies
R Security certificates can be used for a recognition of sovereignty.
See: Recognition; security certificate; jurisdiction
Parent c Singapore Airlines Ltd
F
I
François Parent, while a passenger on Singapore Airlines (SAL) from Singapore to Mont- real via
Taipei, Los Angeles, and Toronto, was injured in an accident at takeo_ from Taipei. He sued SAL for
damages, but SAL asserted that responsibility lay on Taipei airport’s Taiwanese governmental
administrator. SAL sought indemnity from the Civil Aeronautics Administration (CAA) of Taiwan,
but the CAA claimed immunity from suit under the State Immunity Act,
Does the CAA enjoy immunity from jurisdiction under the terms of the State Immunity Act? [yes]
D [T]he absence of a certi␣cate issued pursuant to section 14 of the Act does not necessarily mean
the absence of the right to state immunity. Indeed, Parliament does not say “whether a state is a
foreign state for the purposes of the Act is established by the production into evidence of a
certi␣cate issued by the Department”; Parliament says “a certi␣cate is admissible” to establish
whether a state is a foreign state. To say that a certificate is admissible does not mean that the
certificate is the only means of proof available to interested parties.
Thee existence of a state implies the presence of four elements:
According to international law, the existence of a State implies the presence of four elements: ␣ese elements
are identi␣ed in Section 1 of the Convention of Montevideo on the rights and duties of States, and are:
— the presence of a de␣ned territory; — the presence of a permanent population; — the presence of an
e_ective government; — the capacity to enter in relations with other States.
Furthermore, to have the greatest e_ect in the international community, the existence of a State must be
recognized by other States.
R The presence of an executive certificate is conclusive on
recognition. However if one does not exist the court may consider
the requirements for the definition of a state from Montevideo
Convention on the Rights and Duties of States Article 1
See: Recognition; Montevideo Convention; interaction with state
Republic of Somalia v Woodhouse Drake and Carey Suisse SA (QB,
1993)
F
17
the proceeds of sale of a cargo of rice owned by the Republic of Somalia. In light of the internal conflict in
Somalia after the overthrow of President Siad Barre, it was very uncertain who, if anyone, governed the
country and therefore had the right to receive the proceeds of sale. The British government responded by
letter to three requests with information about the confused situation but would not express a view on the
recognition of any regime.
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I
Who has the rights to the proceeds of the cargo sale?
D
The court accepted the responsibility for determining the government of Somalia for itself, using the British
government’s letters as the best evidence of its dealings with Somalia.
the factors to be taken into account in deciding whether a government exists are: (a) whether it is the
constitutional government of the state; (b) the degree, nature, and stability of administrative control that it
exercises in the state; (c) whether the British government has dealings with it and, if so, the nature of those
dealings; and (d) in marginal cases, the extent of international recognition it has achieved.
factors to be taken into account in deciding whether a government exists are: (a) whether it is the
constitutional government of the state; (b) the degree, nature, and stability of administrative control that it
exercises in the state (c) whether the British government has dealings with it and, if so, the nature of those
dealings; and (d) ithe extent of international recognition it has achieved.
R
See: Recognition; interaction with state
Underhill v Hernandez (US, 1897)
F
In an 1892 revolution, General José Manuel "Mocho" Hernández
expelled the existing Venezuelan government and took control of
Ciudad Bolivar, where plaintiff Underhill lived and ran a
waterworks system for the city. Underhill, an American citizen,
repeatedly applied to Hernandez for an exit passport, but his
requests were refused, and Underhill was forced to stay in
Ciudad Bolivar and run the waterworks. Hernandez finally
relented and allowed Underhill to return to the United States,
where he instituted an action to recover damages for his
detention in Venezuela.
I
D
In finding for the Defendant, a New York Court determined that Hernandez had acted in his official capacity as a military
commander so his actions were those of the Venezuelan government. The Court therefore refused to hear Underhill's
claim against the government based on the Act of State Doctrine. The Court reasoned, "Every sovereign state is bound to
respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another, done within its own territory.
Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country
will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances, by
reason of such acts must be obtained through the means open to be availed of by sovereign powers as between
themselves.
R
See: Recognition; act of state doctrine; state responsibility;
detainment
Banco Nacional de Cuba v Sabbatino, (US-SC, 1964)
F
Cuba nationalized its sugar industry, taking control of sugar
refineries and other companies in the wake of the Cuban
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revolution. A large number of Americans who had invested in
those companies lost their investments without compensation
when the Cuban government assumed control.
I
D
the United States Supreme Court applied the Act of State Doctrine even where the state action likely
violated international law.
the US Supreme Court recognized the effect of a Cuban decree confiscating a cargo of sugar despite the fact
that it was retaliatory, dis- criminatory, and without adequate compensation. The Court stated a less
absolute view than Underhill’s reliance on respect for state sovereignty, grounding the principle more
directly in the separation of powers and the impact on the executive’s conduct of foreign relations
The Sabbatino Court stated that although the Act of State
Doctrine is not found in the Constitution, explicitly or
implicitly, it does have constitutional underpinnings in the
concept of separation of powers. The Supreme Court reasoned
that because the Executive had exclusive authority to conduct
foreign affairs with other nations on behalf of the United States,
disputes arising from the official actions of foreign sovereign
powers should not be settled by the Judiciary because those
decisions could interfere with the Executive's conduct of foreign
affairs
R
Notes:
In response to the furor over Sabbatino, Congress quickly passed the “Hickenlooper Amendment” to the
Foreign As- sistance Act of 1961,90 reversing the particular decision in Sabbatino and allowing US courts to deny
recognition to an unlawful act of expropriation.
See: Recognition, Acts of State Doctrine; state responsibility;
nationalization
Laane & Baltser v Estonian SS Line (SCC, 1949)
F
the Supreme Court of Canada dealt with the dis- tribution of the proceeds of a judicial sale of the ship Elise
after its arrest in Saint John, New Brunswick. The vessel had left Estonia in 1939 and traded between Canada
and the UK, and when Estonia was annexed by the Soviet Union, the Soviet government issued a decree ordering the expropriation (with minimal compensation) of all Estonian-flagged ships. The plaintiff in the case,
the state corporation set up to run the nationalized shipping, was seeking the proceeds of the sale.
I
D
The Court was able to disregard the effect of the foreign decree, because the law in question was not to be
given extraterritorial effect:
The law of conflicts is concerned with the determination of rights in property and personal rela- tions which are
conceived as distinct from the law under which they arise; but, laws of the class in question are not migratory and are
deemed to be operative only within their own territories.
even if Estonian law governed the issue, it could only operate in a Canadian court through the authority of
Canadian law. This is a principle of conflicts of law, not public international law. By characterizing the
problem this way, Rand J was able to apply well-accepted controls of the forum state against unwanted
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intrusions of the foreign state. The inclination is strong for Canadian courts to resolve act of state problems
through conflict- of-law principles.
R
See: Recognition, conflict of laws; laws of other jurisdictions
WS Kirkpatrick & Co v Environmental Tectonics Corp,
International
F
According to respondent's complaint, petitioners obtained a
construction contract from the Nigerian Government by bribing
Nigerian officials. Nigerian law prohibits both the payment and
the receipt of such bribes. Respondent, an unsuccessful bidder
for the contract, filed an action for damages against petitioners
and others under various federal and state statutes. The District
Court ruled that the suit was barred by the act of state doctrine,
which in its view precluded judicial inquiry into the
motivation of a sovereign act that would result in
embarrassment to the sovereign, or constitute interference with
the conduct of United States foreign policy.
I
D
The issue was whether Nigerian officials were motivated by bribery in awarding the contract to the
defendant rather than the plaintiff? [this was a matter of fact that did not require a ruling on the legality of
the foreign act of state.]
US Supreme Court found that the act of state doctrine did not apply where the legality of the foreign act of
state in its own territory was not implicated in the litigation. The act of state doctrine does not apply
because nothing in the present suit requires a court to declare invalid the official act of a foreign sovereign.
R Courts will not hold domestic law, governing domestic property
to be invalid (since it recognizes the sovereignty of the concerned
state.)
See: Recognition, Act of State Doctrine,
Oppenheimer v Cattermole (UK-HL, 1976)
F
The 1941 decree of the National Socialist Government of
Germany deprived Jewish emigres of their German nationality
and, consequentially, lead to the confiscation of their property.
I
Should Nazi Germany decrees taking the property of Jewish citizens without
compensation be recognized?
D Held: A racially discriminatory and confiscatory law of this sort
was so grave an infringement of human rights and of ‘clearly
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established rules of international law’ that the courts of this
country ought to refuse to recognise it as a law at all.
R International law allows states to refuse to recognize laws that
“gravely infringe on human rights”
See: Recognition, Act of State Doctrine; recognition of law; law and
morality
Kuwait Airways Corp v Iraqi Airways Co (SCC, 2010)
F
the invasion and annexation of Ku- wait by Iraq in 1990. By a resolution of the Iraqi Revolutionary Command
Council, Kuwait Airlines was dissolved and all its assets, including the 10 aircraft involved in this case, were
transferred to the state-owned Iraqi Airways. Kuwait Airlines then sued Iraqi Airways in the English courts
for return of the aircraft or compensation.
I
Must Iraq return the planes? [yes]
D
Had the act of state doctrine been applied, the courts would simply have acknowledged the legislative act of
the Iraqi govern- ment and rejected the plaintiff’s claim. Instead, they refused to recognize the effect of the
Iraqi resolution. Recounting Iraq’s flagrant violation of international law and the Security Council’s
condemnation of its annexation of Kuwait, the House of Lords developed another exception to the act of
state doctrine, adding violations of the international prohibition against the use of force to the human rights
exception applied in Oppenheimer.
the scope of exceptions to the act of state doctrine is not fixed, but may potentially include any clear
violation of a well-established rule of international law
R
See: Recognition; Act of state doctrine
Island of Palmas Case Netherlands v United States (1928) p. 208
F
I
Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P)
maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own. The
claim of the U.S. (P) was back up with the fact that the islands had been ceded by Spain by the
Treaty of Paris in 1898, and as successor to the rights of Spain over the Philippines, it based its
claim of title in the first place on discovery. On the part of the Netherlands (D), they claimed to
have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the
present.
The Netherlands and the US referred the question of territorial sovereignty over Palmas to
arbitration.
Who owns the island of Palmas? [neatherlands] Can a title
which is inchoate prevail over a definite title found on the
continuous and peaceful display of sovereignty? [no]
D 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
A title that is inchoate cannot prevail over a definite title found
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on the continuous and peaceful display of sovereignty. The
peaceful and continuous display of territorial sovereignty is as
good as title. However, discovery alone without subsequent act
cannot suffice to prove sovereignty over the island. The
territorial sovereignty of the Netherlands (D) was not contested
by anyone from 1700 to 1906. The title of discovery at best an
inchoate title does not therefore prevail over the Netherlands (D)
claims of sovereignty.
R A title that is inchoate cannot prevail over a definite title found
on the continuous and peaceful display of sovereignty.
See: Recognition; territory acquisition; territorial sovereignty ;
peaceful display of sovereignty
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo (2010)
F
I
D
Kosovar representatives issued a unilateral declaration of independence from Serbia in February
2008. UN General Assembly requested an advisory opinion from the ICJ.
Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of
Kosovo in accordance with international law?
In a narrowly framed opinion the Court found that the Declaration did not violate either the
resolution or the framework, because the authors were not formally acting as one of the
provisional institutions established under the framework. Court used arguments of self
determination
IN considering unilateral seccession the court found Kosvo posed a drastically different situation
from that in Quebec.
R "the adoption of the declaration of independence of the 17
February 2008 did not violate general international law
because international law contains no 'prohibition on
declarations of independence'":[2] nor did the adoption of the
declaration of independence violate UN Security Council
Resolution 1244, since this did not describe Kosovo's final
status, nor had the Security Council reserved for itself the
decision on final status.[3] There were many reactions to the
decision, with most countries which already recognise Kosovo
hailing the decision and saying it was "unique" and does not set
a precedent; while many countries which do not recognise
Kosovo said they would not be doing so as the ruling could set a
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precedent of endorsing secession in other places.
See: Recognition; secession, precedent, security council ressolutions;
Jurisdiction
a state exercises its jurisdiction primarily by prescribing and enforcing its laws, “enforcement” being understood to
include the unilateral actions of a government’s executive which is entitled to so act under a state’s laws
describes the limits of legal competence of a state or other regulatory authority ... to make, apply, and enforce rules of
conduct upon persons
 sovereignty always implies jurisdiction. As jurisdiction is best understood as a manifestation of the sovereignty
of states
 Jurisdiction can include: competence of a court (“civil” or “criminal” jurisdiction); the scope of authority of a
particular state organ; ability of a state to regulate matters on its territory/nationals
 Nationality jurisdiction,” then, in international law means the competence of a state to prescribe and enforce
rules of domestic law governing the person, property, and conduct of its nationals.
 Uti possidetis juris principle, which provides that there is an obligation to respect pre-existing borders,
and the territorial implications that flow from them, in cases of state succession
o Often seen as relating strictly to post-colonial situations, a means for newly independent
states to maintain peace and stability as they consolidate their independence
o characterized as a rule of customary international law by the Arbitration Commission of the
Conference on Yugoslavia, which applied it as the governing principle respecting the
boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia
Jurisdiction includes all of the Montevideo criteria for statehood
 Territory = jurisdiction over the land (if a state loses all territory it can no longer exist, unless the loss is
deemed illegal and returned to the state)
o Exists in three forms:
 (1) sovereign territory - ex. the land territory of the state
 Defintion: 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 (Island of Palmas)
o
This right has as corollary a duty: the obligation to protect within
the territory the rights of other states, in particular their right to
integrity and inviolability in peace and in war, together with the
rights which each state may claim for its nationals in foreign
territory.
 Is always tri-dimensional:
o (a) surface (land and, if a coastal state, a portion of the sea),
 territory of costal states, extends seaward a maximum of
12 nautical miles. And further in the case of states
endowed with so-called historic bays (such as Hudson
Bay)
o (b) subsurface (usque ad inferos), and
o (c) a column of air (to an undetermined altitude coinciding with
that state’s land and sea boundaries)
 Means of Aacquiring territory (from Island of Palmas)
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o
1 - Conquest—acquisition of territory through war and subsequent
annexation (discredited under modern intl law and UN systen)
o 2 – Occupation – Requires: (1) the territory was res nullius when it
was occupied, and (2) the occupying state exercises effective
control over the territory
o 3 - Cession - the transfer of territory from one state to another by
way of a treaty of cession that was willingly entered into by both
states.
 Ex, the 1763 Treaty of Paris France ceded Upper and
Lower Canada to Britain. Or the Se
o 4 – Secession - the acquisition of territory by a new state through
the grant of independence by a colonial power, as well as the
creation of a new state by way of secession.
 Ex, South Sudan after a referendum in 2011.
o 5 – Prescription - the peaceable occupation of territory for a period
of time with the knowledge, and without the protest, of another
sovereign or state claiming sovereignty
o 6 – Accretion - the enlargement of a state’s territory by way of
natural forces
 Ex, the change in a river’s course or recession of the sea
 (2) res communis - shared by all states and incapable of lawful appropriation by any
state; ex. Outer space or the high seas, deep sea bed, antartica
 (3) res nullius - a piece of land unclaimed by any state—capable of lawful
appropriation by a state. Apart from an unclaimed portion of Antarctica, there is no
area of the planet Earth that can today be characterized as res nullius.
 Individuals = linked via nationality, which allows a state to prescribe and enforce domestic law over its
nationals (and its nationals abroad see Klassen)
o Nationality is the basic link between a person, whether a human being or a legal person like
a corporation, and the state
o NOTE: since states are sovereign and equal, it follows that one state may not exercise
jurisdiction in a way that interferes with the rights of other states. This means that
international law can and does place limits on the ability of a state to exercise its jurisdiction,
even over its own territory or nationals and certainly in any situation where another state’s
territory or nationals are involved. Referred to as extra territorial jurisdiction
Regulation of Air Space and Outerspace
 the Convention on International Civil Aviation (usually referred to as the Chicago Convention) was
concluded in 1944. Its provisions are now generally viewed as constituting customary international law.
o the Convention provided for the creation of the International Civil Aviation Organization (ICAO),
a specialized agency of the United Nations
Convention on International Civil Aviation (usually referred to as the Chicago Convention)
Article 1 of the Convention acknowledges the “complete and exclusive sovereignty” enjoyed by states
over the airspace above their territories,
Article 3 reflects the desire to protect this sovereignty by excluding from the scope of the Convention
“state aircraft” (military, customs, police), which may only enter the airspace of foreign states by
permission or special agreement. (Unauthorized entry into airspace by foreign military aircraft is often
considered a hostile act)
 Defence concerns are also reflected in the practice of coastal states of establishing “Air Defence
Identification Zones” (ADIZs) in the waters surrounding their territories, sometimes far out over the
high seas. The United States was the originator of these zones
Outer Space
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

Outer space is a legal “place,” that states make use of, and that it can be governed by international law.
In1963 the UN General Assembly issued an important resolution which expressed the principle that
neither outer space nor “celestial bodies” are susceptible to being appropriated by states. The principal
forum for international cooperation is the UN General Assembly’s Committee on the Peaceful Uses of
Outer Space; and the Committee’s Secretariat, the Office for Outer Space Affairs (UNOOSA)
Outer space, though also internationally regulated, is expressly beyond the sovereign control and
territorial jurisdiction of every state. It is generally accepted as essentially res communis.55 In particular,
the Moon Treaty begins by reiterating the principle expressed in the Outer Space Treaty that
exploration shall be carried out for the benefit and interests of all countries.
o The only three other areas of the planet that are res communis are the high seas, the deep
seabed, and Antarctica. All are beyond the sovereign appropriation and territorial jurisdiction of
any state, and all are also internationally regulated to varying degrees
Outer Space Treaty (1967) (p. 219)
Article I “[t]he exploration and use of outer space … shall be carried out for the benefit and in the
interests of all countries, … and shall be the province of all mankind.”
Article II prohibition on appropriation by claim of sovereignty ,
Article III encourage cooperation and maintenance of international peace and security in space
Article IV obliges states to refrain from “weaponizing” space by way of nuclear weapons or other
“weapons of mass destruction”
Article V “States Parties to the Treaty shall bear international responsibility for national activities in
outer space, … whether such activities are carried on by governmental agencies or by non-governmental
entities.”
Article VII states launching objects into outer space are liable for damage caused by the objects to other
states or their populations
Article VIII the principle that states launching objects and any personnel retain jurisdiction over them
Antartica
 Parts of it are the subject of long-standing national claims by seven states, some of which overlap, but
they have not been recognized by other states. Instead the multilateral Antarctic Treaty creates a
consultative regime for all interested states, whether territorial claimants or not. The original 12 parties
have risen to 50, including Canada.
 The Treaty also prohibits all military activities in Antarctica, thus making the continent the only fully
demilitarized part of the Earth,
 “[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited”
ACQUISTUION OF TERRITORY – CANADIAN CASE STUDIES
Canada and the International Legal Order: An Inside Perspective by Maxwell Cohen (p. 210)
 Story of how Canada was made - territorially
 Conquest, war-making, treaty law, and the right of a new subject people related to a grand imperialcolonial design marked the beginnings of the experiment that was to become canada. I
o the “victories” of 1759 and 1760, the proclamations establishing the new imperial government,
and the treaty of paris of 1763 all laid the foundations for what was then in fact in a united,
continental British North America(except for spanish Claims largely in the southern and
southwestern territories and the Russian presence on the Alaska mainland for another century)
 within less than two decades, in 1783, another treaty of Paris climaxed the revolution of 1776, and british
north america’s ambitions now were split between a “loyal” north and the rebellious south—the
independent Thirteen—now the united states of America.
 Hence it may be said that canada was sired in warfare, mothered in treaties, and nurtured in the
dedicated crèche of both imperial constitutional relations and international law as they were in the latter
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18th century.
 Canada’s boundaries were not made final until as late as the Alaska panhandle dispute of 1903
Union with Newfoundland (p. 214)
 Section 146 of the BNA Act providing for the entry at any time of Newfoundland, as well as of Prince
Edward Island and British Columbia, on such terms and conditions as might mutually be agreed.
Canadian policy throughout the years always was that the first move must come from Newfoundland.
Following a financial collapse in 1894, overtures for union were made by Newfoundland, but
negotiations broke down over financial terms, and no further formal moves toward union were made till
1947.
 Eventually, after some referendum Formal union took place on March 31, 1949.
The Canadian Arctic (p. 215)
 In 1870 Canada acquired from the Hudson’s Bay Company “Rupert’s Land and the NorthWestern
Territory,” which includes part of Baffin Island and areas adjacent to the now northern boundaries of
Manitoba and Saskatchewan.22 In 1880, through a UK Order in Council, confirmed by the 1895 Imperial
Colonial Boundaries Act, “all British possessions on the American continent not hitherto annexed to any
colony” that were British (primarily the Arctic islands) were transferred to Canada
 Norway made claims to some of the arctic in 1930, but these were withdrawn through negotiations
 There is no longer any debate that the islands of the Arctic archipelago are Canadian. With the
exception of the tiny, uninhabited Hans Island between Ellesmere Island and Greenland contested by
Denmark
Land Frontiers of Canada
 Since Newfoundland joined the Confederation in 1949, all of Canada’s land frontiers are with the United
States of America
 Difficulties have naturally arisen over boundaries between the two countries, but have always been
settled by peaceful means in accord with the spirit of the Treaty of Ghent of December 24, 1814 that
“there shall be a firm and universal peace between His Britannic Majesty and the United States.”
 Several maritime boundaries of Canada, along with Machias Seal Island, remain unsettled
St Catharines Milling and Lumber Co v The Queen (1887) p. 211
F
I
D
26
Canada believed that it was entitled under the Treaty, and its legislative authority under section 91 (24)
of the Constitution Act, 1867 for "Indians and Lands reserved for the Indians", to administer Treaty
lands. The lumber company was granted a federal permit to a timber berth on Lake Wabigoon, and that
permit was challenged by the Province.
Whether under the British North America Act (BNA act, now the Constitution Act, 1867) some 50,000
square miles of timberland in Ontario belonged to the province of Ontario or the dominion of Canada?
The lands in question formed part of lands surrendered by an Indian tribe by a treaty to Canada [federal]
On the discovery of the American continent the principle was asserted or acknowledged by all European
nations, that discovery followed by actual possession gave title to the soil to the government by whose
subjects, or by whose authority, it was made, not only against other European governments but against
the natives themselves. While the different nations of Europe respected the rights (i would say the
claims) of the natives as occupants, they all asserted the ultimate dominion and title to the soil to be in
themselves.”
In the case of France as a colonizer in North America: The king granted lands, seigniories, territories,
with the understanding that if any of these lands, seigniories, or territories proved to be occupied by
aborigines, on the grantees rested the onus to get rid of them, either by chasing them away by force, or
by a more conciliatory policy, as they would think proper. in many instances, no doubt, the grantees, or
the king himself, deemed it cheaper or wiser to buy them than to fight them, but that was never
construed as a recognition of their right to any legal title whatsoever. The fee and the legal possession
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were in the king or his grantees.
Now when by the treaty of 1763, France ceded to great Britain all her rights of sovereignty, property and
possession over Canada, and its islands, lands, places and coasts, including, as admitted at the
argument, the lands now in controversy, it is unquestionable that the full title to the territory ceded
became vested in the new sovereign, and that he thereafter owned it in allodium as part of the crown
domain, in as full and ample a manner as the king of France had previously owned it.
R It appears to them to be sufficient for the purposes of this case that there has been all along vested in
the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum
dominium whenever that title was surrendered or otherwise extinguished
Note: The assertion, accepted in the above case by the Supreme Court of Canada, that the native peoples of
North America possess no stronger right over the lands they inhabit than that of “occupants,” may have
been anachronistic even then. When the case went on appeal to the Privy Council, that body appeared to
take a more expansive approach, characterizing the Aboriginal claim to land as a “personal and usufructuary
right,” though declining to say more about it.18 This concept became known as “Aboriginal title,” and a
century after the St Catharines Milling case the Supreme Court of Canada brought the concept to its current
apogee in Delgamuukw v British Columbia
See: jurisdiction over land, federal versus provincial; division of legislative power;
Jurisdiction over Nationals
INDIVIDUALS
 An individual has the nationality of the state that confers it and domestic law controls its acquisition and
loss. Nationality is a legal relationship between the state granting it and the individual
 Definition from Lynch : “A man’s nationality forms a continuing state of things and not a physical fact
which occurs at a particular moment. A man’s nationality is a continuing relationship between the
sovereign State on the one hand and the citizen on the other. The fundamental basis of a man’s
nationality is his membership of an independent political community. This legal relationship involves
rights and corresponding duties on both—on the part of the citizen no less than on the part of the State”
 Acquisition of nationality
Nationality and Citizenship’ Williams & de Mestral, (1987) (p. 222)
 The term “citizen” refers to a person who is endowed with full political and civil rights in
the state concerned.
 The term “national” although it includes a citizen also refers to a person who is not a
citizen but yet has a right to the protection of the state and in turn owes allegiance to it
o a national may be denied the rights of citizenship but will not lose the nationality
itself on this basis.
 Most nationality laws have certain features in common:
o (a) Jus Soli and Jus Sanguinis
 nationality may be acquired by birth. This may result from birth in the
territory of the state (jus soli) or from birth outside the territory of the
state, but to parents who are nationals of the state (jus sanguinis).
o (b) Naturalization
 The acquisition of nationality after birth. An alien receiving a foreign
nationality upon an application made by him.
 In general, nationality by naturalization may be acquired by one of several
different methods:
 (i) direct naturalization of a person under general naturalization
laws, (can be a judicial process, a legislative process or an
executive process);
 (ii) derivative naturalization (for example a child who is minor
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

becomes naturalized because of the naturalization of either or
both his parents, or where a spouse becomes naturalized through
the other spouse’s naturalization, or where an alien becomes
naturalized through marriage to a citizen);
(iii) adoption of an alien minor;
(iv) group or collective naturalization, which occurs through the
transfer of territory from one state to another
Citizenship Act rsc 1985, c c-29 ()
[Acquisition of canadian citizenship by birth is regulated by section 3(1) of the current act, as follows:]
 subject to this act, a person is a citizen if
o (a) the person was born in canada after february 14, 1977;
o (b) the person was born outside canada after february 14, 1977 and at the time of his birth
one of his parents, other than a parent who adopted him, was a citizen;
o (c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in
the case of a person who is fourteen years of age or over on the day that he is granted
citizenship, he has taken the oath of citizenship; (c.1) the person has been granted
citizenship under section 5.1;
o (d) the person was a citizen immediately before february 15, 1977;
o (e) the person was entitled, immediately before february 15, 1977, to become a citizen
under paragraph 5(1)(b) of the former act; …
o (g) the person was born outside canada before february 15, 1977 to a parent who was a
citizen at the time of the birth and the person did not, before the coming into force of this
paragraph, become a citizen.
[The application of the jus soli principle in section 3(i)(a) is restricted by sections 3(2) and (3), which provide:]
 (2) paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a
citizen or lawfully admitted to canada for permanent residence and either of his parents was
o (a) a diplomatic or consular officer or other representative or employee in canada of a
foreign government;
o (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or
employee in canada of a specialized agency of the united nations or an officer or employee
in canada etc.
[naturalization in canada—and its legal consequences—are governed by sections 5 and 6 of the Citizenship
Act]
 Many countries still confer citizenship only if the father was a citizen. Canada’s Citizenship Act states
in section 3(1)(b) that a child born outside of Canada will be a Canadian if either one of the parents
was a Canadian citizen at the time. Also under the Canadian Citizenship Act, citizenship is not
automatically imposed upon a woman who marries a Canadian citizen, whereas this is still the case
in some other countries.
 marriage is not a ground for acquiring Canadian citizenship at all. Residence is what matters: see
section 5(1) of the Citizenship Act. Marriage may, however, make it easier for a foreign spouse to
take up residence in Canada and thus qualify for citizenship.
 It has long been accepted that the state of nationality is bound to admit or to receive its nationals, and
is under an obligation not to expel them to another state which does not wish to receive them (in
Canada this enshrined in the Charter in section 6(1) which says: every Canadian citizen has “the
right to enter, remain in and leave Canada.”)
Right to diplomatic protection
International Law Commission, Draft Articles on Diplomatic Protection (2006) (p. 231)
Part I: General Provisions
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Article 1
Definition and Scope for the purposes of the present draft articles, diplomatic protection consists of the
invocation by a state, through diplomatic action or other means of peaceful settlement, of the responsibility
of another state for an injury caused by an internationally wrongful act of that state to a natural or legal
person that is a national of the former state with a view to the implementation of such responsibility. …
Part II: Nationality Chapter I: General Principles
Article 3
Protection by the State of Nationality
1. The state entitled to exercise diplomatic protection is the state of nationality.
2. notwithstanding paragraph 1, diplomatic protection may be exercised by a state in respect of a
person that is not its national in accordance with draft article 8.
Chapter II: Natural Persons
Article 4
State of Nationality of a Natural Person for the purposes of the diplomatic protection of a natural person, a
state of nationality means a state whose nationality that person has acquired, in accordance with the law of
that state, by birth, descent, naturalization, succession of states or in any other manner, not inconsistent
with international law. …
Article 6
Multiple Nationality and Claim Against a Third State
1. any state of which a dual or multiple national is a national may exercise diplomatic protection in
respect of that national against a state of which that person is not a national.
2. two or more states of nationality may jointly exercise diplomatic protection in respect of a dual or
multiple national.
Article 7
Multiple Nationality and Claim Against a State of Nationality a state of nationality may not exercise
diplomatic protection in respect of a person against a state of which that person is also a national unless the
nationality of the former state is predominant, both at the date of the injury and at the date of the official
presentation of the claim.
Article 8
Stateless Persons and Refugees
1. a state may exercise diplomatic protection in respect of a stateless person who, at the date of the
injury and at the date of the official presentation of the claim, is lawfully and habitually resident in
that state.
2. a state may exercise diplomatic protection in respect of a person who is recognized as a refugee by
that state, in accordance with internationally accepted standards, when that person, at the date of
injury and at the date of the official presentation of the claim, is lawfully and habitually resident in
that state.
3. paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the
state of nationality of the refugee.
Treaty Establishing the European Community (as amended by the 1992 Maastricht Treaty on European
Union) (p. 232)
Article 8 (c) Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities
of any Member State, on the same conditions as the nationals of that State.
Adding, Proving, and Losing Nationality
 From a state’s point of view, if an individual has the state’s nationality and treating the individual as its
national (instead of as the national of another state) serves the state’s interest, it can be difficult to
prevent it from doing so whether or not it is the “predominant” state of the individual’s nationality (with
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reference to dual citizenship).
o See Canevaro Case, and the case of Iranian-Canadian journalist Zahra Kazemi, who was killed in
an Iranian prison in 2003.
 under international law states have the right to exercise jurisdiction over the conduct of their nationals
even when that conduct takes place outside the state’s territory (the “nationality” or “active
nationality” principle), and in some circumstances can exercise jurisdiction over an extraterritorial
crime where their national was a victim (the “passive personality” or “passive nationality” principle).
o Nationals owe allegiance to their state both in and out of the country, otherwise they risk
treason charges. In Canada this is found in section 46(3) of the Criminal Code
 the issuing of the passport does not create nationality, which is a matter of the domestic law
 Losing nationality - it can be renounced by an individual, under procedures prescribed by the state of
nationality.
 States can also strip individuals of their nationality, a process known as “denaturalization” or
“denationalization.” Some states do not allow people to retain their nationality if they acquire
additional nationalities
 Statelessness - The loss of all nationality renders an individual “stateless.” Statelessness has been
acknowledged as a significant problem under international law
o See Stoeck v Public Trustee (1921)
o It has long been accepted in principle that there is a human right to a nationality,91 “but it must
be remembered that the stumbling block to a solution is that it is the domestic law that deals
with the subject at the state and individual levels
Corporations
 Determining corporate nationality is difficult for 2 reasons:
o First, like individuals, they may have a variety of contacts with different countries.
o Second, unlike individuals, corporations are juridical persons by virtue of national legislation.
 Ex. Barcelona Traction, Light and Power Co Case Belgium v Spain
o Whether and when a state will exercise diplomatic protection of its nationals is a
discretionary choice of the government, subject only to domestic law. [re: Barcelona
Traction]
 some states have declared policies on the matter. Ex. The United Kingdom may
intervene to protect its nationals who have interests in a corporation that has been
injured by its state of incorporation; or the United States will generally consider a
claim on behalf of: (a) corporations organized in the United States if 50 percent or
more of their stock is owned by US citizens, and (b) American shareholders in a
foreign corporation if they own 25 percent or more of its stocW
International Law Commission, Draft Articles on Diplomatic Protection (2006) (p. 234)
Article 9
For the purposes of the diplomatic protection of a corporation, the State of nationality means the State
under whose law the corporation was incorporated. However, when the corporation is controlled by
nationals of another State or States and has no substantial business activities in the State of incorporation,
and the seat of management and the financial control of the corporation are both located in another State,
that State shall be regarded as the State of nationality.
Article 11
The State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic
protection in respect of such shareholders in the case of an injury to the corporation unless: (a) The
corporation has ceased to exist according to the law of the State of incorporation for a reason unrelated to
the injury; or (b) The corporation had, at the date of injury, the nationality of the State alleged to be
responsible for causing injury, and incorporation in that State was required by it as a precondition for doing
business there
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Article 12
To the extent that an internationally wrongful act of a State causes direct injury to the rights of shareholders
as such, as distinct from those of the corporation itself, the State of nationality of any such shareholders is
entitled to exercise diplomatic protection in respect of its nationals
Ships, Air Crafts, Space Crafts
 Ships
o A ship carries the nationality of the state whose flag it flies, and nationality is a status granted
by that state, the conditions for which are within the control of that state.
o Nationality provides the legal basis for the rights and duties pertaining to the ship.
o Nationality also imposes burdens upon the ship. The ship remains subject to the laws and treaty
commitments of the flag state for the duration of its operating life or until it lawfully changes its
national character.
o In time of national emergency or war, it may be pressed into the service of the government of
the flag state.
o Stateless ships are pirates (not allowed to exist) United States v Marino-Garcia
o Warships are not subject to the rules of international law governing the nationality of ships. A
warship is commonly registered in the naval list of a state to which it belongs, but such a list
does not have to be made public.
o All that international law requires is that in time of peace the nationality of warships must be
easily verifiable.
o Where crew members hold a nationality other than that of the ship, the state of nationality may
offer diplomatic protection in addition to the right of the flag state to “seek redress” for injuries
sustained in the “course of an injury to the vessel.”
International Law Commission, Draft Articles on Diplomatic Protection (2006) (p. 249)
Article 19
The right of the State of nationality of the members of the crew of a ship to exercise diplomatic protection is
not affected by the right of the State of nationality of a ship to seek redress on behalf of such crew members,
irrespective of their nationality, when they have been injured in connection with an injury to the vessel
resulting from an internationally wrongful act

Air Crafts and Space Crafts
o Aircraft, like seagoing vessels, have the nationality of the country of their registry
o No unregistered aircraft is allowed to fly in the national airspace of any country, including the
country of its origin, or in international airspace (that is, over the high seas). The state of
nationality is responsible for the conduct of the aircraft when it operates beyond its national
boundaries and the laws of that state apply to events aboard except when the aircraft is within
the territorial jurisdiction of another state
o Spacecraft are also subject to registration
o The registration regime for spacecraft differs from those applicable to ships and aircraft: in
addition to a national registry, there shall also be an international registry kept by the UN
Secretary-General; no distinction is made between military and non-military spacecraft, both
being subject to dual registration.
Exercise of Jurisdiction
 One state may not exercise jurisdiction in a way that interferes with the rights of other states.
 The international law of jurisdiction is the body of rules (mostly customary but also arising from treaties)
that places limits on how states exercise their jurisdiction
 The actions of a state to exercise its jurisdiction can be divided into three categories:
o (1) legislative (the ability to pass laws)
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o
o


32
(2) executive (the ability to enforce the laws)
(3) adjudicative (the ability of a state’s courts to interpret and apply the laws in resolving
disputes).
The key distinction, is between the state’s ability to prescribe a rule of law (prescriptive jurisdiction) and
its ability to enforce that rule (enforcement jurisdiction)
o Important because a state may have the jurisdiction to make a rule of law but lack the
jurisdiction to enforce it.
In order to lawfully exercise its jurisdiction and enforce its laws, whether civil, criminal, or regulatory, the
state must have a legal claim to jurisdiction over both the subject matter and the person involved.
Either the subject matter or the actor, or both, may be inside or outside the territory of the state seeking
to assert jurisdiction, and the rules may shift depending on the situation.
o A. Subject matter
 International Law of Jurisdiction
 As sovereign entities, states may, in principle, exercise jurisdiction over the
subject matter of anything within their territories. However, a state may not
legislate in violation of its international obligations without being liable under
the principles of state responsibility. International law, then, does prohibit the
exercise of prescriptive jurisdiction in some cases
Criminal Jurisdiction from Currie & Fikhof (2013) (p. 252)
 At international law, all states are sovereign equals, and each has a duty not to interfere
with the domestic affairs, and thus the sovereignty, of other states.
 Use of power on another state’s territory is referred to as an exercise of extraterritorial
jurisdiction.
o no principle of international law prohibits ab initio the establishment of
extraterritorial jurisdiction by a state, any act that exerts power outside the
state’s territory necessarily implicates the interests of other states. This is
manifestly so where the act in question affects another state’s territory or
citizens, as this quite directly engages the interests of the second state. it is
equally true, however, even for areas such as the high seas or outer space.
 concurrent jurisdiction, two or more states concurrently have at least a potential interest
in exercising jurisdiction.
o There are two primary responses to concurrent jurisdiction in international law.
 (1) states can negotiate treaties that set rules about which state will have
primacy of jurisdiction in predefined situations.
 (2) what are often referred to as “principles” of jurisdiction have
developed in customary international law, the goal of which is to broker
multiple concurrent state claims to jurisdiction and try to manage
conflict between them.
 each has the effect of legitimizing, a state’s claim to exercise
jurisdiction over persons, places, and things beyond its territory.
 in practical terms the state which has the most interest and also that which has custody of
the person of the alleged offender will do so
 The jurisdiction of states over crimes is a function of state sovereignty. Whereas the
jurisdiction of international criminal courts, such as the International Criminal Tribunals
for the Former Yugoslavia and Rwanda (ICTY and ICTR, respectively) and the
International Criminal Court (ICC) are over a limited range of crimes (genocide, crimes
against humanity, war crimes). The basis for their jurisdiction comes from the
international law instrument that set them up—for example, an order of the UN
Security Council, or a treaty
 In the case of “transnational crimes” —for example, narcotics trafficking, terrorism, or
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o

33
human smuggling—prosecution occurs in domestic courts of states despite the
transnational aspect. The modern trend has been for states to enter into treaties that
expand their ability to extend extraterritorial jurisdiction
 state legislatures or courts themselves have developed rules governing jurisdiction in civil
cases, referred to as “conflicts of law” or “private international law.” 136 The only
other standard imposed by international law is that a state must maintain an adequate
system of adjudication in civil cases
 Few rigid limits on jurisdiction over an offence are set down by customary international
law. Ex. The Steamship Lotus
 The practical limitation, however, is that no state will generally attempt to exercise
jurisdiction over matters in which it has no substantial interest or concern.
 Most inter-state conflicts regarding the exercise of criminal jurisdiction are resolved by
diplomacy or negotiation
 The state in whose territory a crime was committed has jurisdiction over the offence.
 The state therefore has jurisdiction over conduct by all individuals on its
territory, whether or not those individuals are nationals or even residents.
Accordingly, when an individual leaves his home state, he is subject to the laws
and procedures of whatever foreign state he goes to.
Canadian Criminal Code – Section 6(2)
Subject to this Act or any other Act of Parliament, no person shall be convicted or
discharged under section 730 of an offence committed outside Canada.
Extended Territorial Jurisdiction (typical example of a murder from across a border)
o State practice that reflects the customary international law principle of “extended” or
“qualified” territorial jurisdiction can be categorized in:
 The subjective or initiatory principle (an act may be deemed to have been committed in
the place where it is commenced);
 the objective or terminatory principle (the state where the act is consummated or where
the last constituent element of the offence occurs has jurisdiction);
 the injured forum theory (a state that has felt detrimental effects can take jurisdiction
over the offence).
o The more modern approach has been to examine the connection between the state and the
offence itself.
o Ex. Libman v The Queen, R v Ouellette
o While it originated with Criminal Code offences, the Libman test has been used to ground
jurisdiction over cross-border cases involving copyright, human rights, anticompetitive practices,
and corruption of foreign public officials.
Canadian Criminal Code – Section 465(4)
It is an offence to conspire outside of Canada to commit an offence in Canada, even where no
steps are taken in Canada toward the commission of the offence.
o Extended territoriality has become much more important in the age of cybercrime, since
Internet-based offences might be committed everywhere simultaneously.
Extraterritorial Jurisdiction
o Principles of Extra territorial Jurisdiction:
 Nationality Principle: The nationality of the offender is accepted as a basis of jurisdiction
and is used extensively by civil law states, primarily because their laws or constitutional
orders prohibit the extradition of nationals to be prosecuted in foreign states.
 The Criminal Code now provides for nationality-based jurisdiction for crimes
such as treason (section 46(3)); certain crimes related to the International
Space Station (section 7(2.3)); crimes committed against internationally
protected persons and UN personnel (sections 7(3) and (3.74)); and certain
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
34
sexual offences taking place outside Canada (section 7(4.1)).
o There is an international trend toward extending the nationality
principle, or something like it, to persons who have nationality-type
links to the state, such as resident aliens, foreign citizens who are
employed by the government or armed forces, and permanent
residents.
o The combination of the use of the territorial and nationality principles
may create parallel concurrent jurisdiction over an offence and hence
potential double jeopardy. As a result, some states will exercise
nationality-based jurisdiction on a “double criminality” basis, that is,
only where the conduct which is criminal under their domestic law is
also criminalized in the foreign state.
 Passive Personality (or Nationality) Principle: a state may claim jurisdiction over crimes
committed abroad, even by aliens, against its nationals.
 The use of this principle has been controversial. (It was contested by France in
The Steamship Lotus)
 Ex. In the Canadian criminal code: 7(3)(d)(i) and (ii), which give jurisdiction to a
Canadian court where complainant is persons recognized as representing
Canada or members of their families; and section 7(3.1)(e) dealing with hostage
taking.154 See also section 8(a)(iii) of the Crimes Against Humanity and War
Crimes Act.
 Protective Principle - a state may exercise jurisdiction over acts committed abroad that
are prejudicial to its security, territorial integrity, and political independence.
 Ex. treason, espionage, and counterfeiting of currency, postage stamps, seals,
passports, etc.
 Universal Principle - three interpretations of this principle have been put forward by
states:
 (i) that a state may exercise jurisdiction over all crimes, committed by anyone,
wherever they may occur. This is seldom, if ever, used
 (ii) serious crimes where the international nature of the offence justifies its
universal repression and the perpetrators are considered enemies of
humankind. Any state may, as a matter of customary international law,
prosecute any individual for these crimes, regardless of where they were
committed or the individual’s nationality. This applies to such crimes as piracy,
slavery, genocide, war crimes, crimes against humanity, and torture.
 (iii) emerges from treaties in which states agree that any of them may
“universally” try individuals who commit the crimes dealt with in the treaties
themselves. This is imperative in areas such as hostage taking, hijacking, and
other international terrorist offences.
o Based on the presence of the accused on the territory of the forum
state, and is thus sometimes called “conditional” or “custodial”
universal jurisdiction.
 To this end, Canada has criminal code provisions to
allow prosecution of piracy (Sec. 74), Hijacking (sec
7(2))
By Agreement
o Jurisdiction of one state within the territory of another state may always be granted by
agreement.
 Ex. North Atlantic Treaty Status of Forces Agreement, allowing US military forces in
Canada and US jurisdiction
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
Trends in extraterritorial assertions of jurisdiction
o Increasing interdependence of states means events that would have previously occurred in one
jurisdiction occur in many
o the advocacy of national legislation to penalize foreign individuals and companies for
undertaking legal activities in foreign jurisdictions that are considered by the legislating state to
be environmentally destructive or inconsistent with worker, children’s, or human rights
o the defensive measures that states are taking to protect their interests from the exercise of
extraterritorial jurisdiction by other states.
 Initially American antitrust laws were the primary cause for alarm but lately other subject
areas, such as export controls, taxation, securities, asset controls, corrupt practices, and
bankruptcy and insolvency.
 Canadian case study – Canadian Rational for extraterritorial conduct
o (1) the conduct has a strong connection to Canada;
o (2) the conduct occurs extraterritorially but is an aspect of the public face of Canada;
o (3) extraterritorial action is needed to avoid lawless territory; and
o (4) there is an international agreement to be implemented.
Demands for Production of Documents Located Abroad
Foreign Extraterritorial Measures Act (1985) (p. 278)
Disclosure of Records to Foreign Tribunals
3(1) allows the AG to restrict access to records where there could be harm to Canadian interests
Measures of a Foreign State or Foreign Tribunal
5(1) allows the AG to prevent persons in Canada from complying with the measures where Canada’s
interests or sovereignty might be affected
Recognition and Enforcement of Foreign Judgments
7.1 any judgment given under the law of the united states entitled Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1996 [Helms-Burton Act] shall not be recognized or enforceable in any manner in canada.
8(1) Where a foreign tribunal has given a judgment in proceedings instituted under an antitrust law the AG
may declare the judgment unenforceable in Canada
o This act was passed in response to increased extrajurisdictional incursions, in particular the US HelmsBurton-Act, allowing those who claim to have property confiscated by the Castro regime in Cuba.
o Measures may only be taken under the Foreign Extraterritorial Measures Act when the foreign state
order adversely affects significant Canadian interests in international trade or infringes Canadian
sovereignty. These two criteria are quite different grounds for action. The infringement of
sovereignty is a public matter touching high state policy and foreign relations, as in the Gulf Oil case.
o Mutual Legal Assistance Treaties (MLATs)
o Becoming more and more common, especially in criminal matters
o Streamline the transferring of evidence between jurisdictions
o Universal Jurisdiction
o universal jurisdiction: any state may exercise criminal jurisdiction over individuals accused
of those crimes that have attracted a sufficient level of international opprobrium to allow it.
o Applying universal jurisdiction does not require a link between the prosecuting state on the
basis of, for example, territory or nationality, but stems from the nature of the crime and
the collective interest of the international community in combatting it.
 Ex. Piracy, genocide
 Eichmann; Demjanjuk v Petrovsky
 Pinochet (R v Bow Street Magistrate)
 Yerodia Case (Congo v Belgium)
o There have been many critiques of universal jurisdiction, particularly by the African Union,
with complaints of being unfairly singled out—to the point of describing international
criminal justice as a new form of colonialism
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o
o
36
In Canada, section 8 of the Crimes Against Humanity and War Crimes Act provides for
universal jurisdiction over genocide, war crimes, and crimes against humanity, if “after the
time the offence is alleged to have been committed, the person is present in Canada”
 There have been two prosecutions under this section: R c Munyaneza, resulted in
convictions for genocide, war crimes, and crimes against humanity. R c Jacques
Mungwarere, resulted in an acquittal.
Inter-State Coordination of Jurisdiction: Suppressing Transnational Crime
o “transnational criminal law,” a body of international law based around the “suppression
conventions,” multilateral treaties that obligate states to criminalize certain types of
behaviour and to cooperate in prosecuting them. The suppression conventions deal with a
multitude of topics, including slavery, counterfeiting, narcotics trafficking, terrorism, and
organized crime. The United Nations has often been the moving force behind many of
these conventions
o The ‘suppression conventions’ are a means for states to assert jurisdiction over individuals,
in three ways:
 1 – each adhering state must criminalize a certain kind of behaviour—that is,
provide for prescriptive jurisdiction over the offence
 2 – party states must agree to exercise certain forms of extraterritorial jurisdiction
over the offence in question, and to accept such assertions by other party states
 3 – when the state has custody of a person alleged to have engaged in the
criminalized act, it must either extradite the individual to another party state that is
willing to prosecute him, or proceed toward prosecuting the individual domestically
(this is referred to as ‘aut dedere, aut judicare’, “either extradite or prosecute.”)
 aut dedere obligation is a treaty mechanism whereby states that have
custody of an alleged offender must, if they do not extradite him or her,
submit the case to investigation with a view to prosecution. It effectively
obligates the state to exercise extraterritorial criminal jurisdiction over the
individual, potentially in a case.
o This is similar to universal jurisdiction, but different because
Universal jurisdiction is permissive in nature; it allows states to
exercise extraterritorial jurisdiction over a small number of crimes
and as against the rest of the world, but does not require them to
do so. Assuming jurisdiction under the aut dedere principle by
contrast, is obligatory as regards the particular crime in question,
and operates only as between the parties to the treaty in which it
is found.
o Ex. Suppression of Terrorism (‘aut dedere, aut judicare’)
International Convention for the Suppression of Terrorist Bombings (1997) (p. 295)
Article 2
Definition of a terrorist
Article 3
T his convention shall not apply where the offence is committed within a single state, the
alleged offender and the victims are nationals of that state, the alleged offender is found in
the territory of that state and no other state
Article 4
each state party shall adopt such measures as may be necessary: (a) to establish as criminal
offences under its domestic law the offences set forth in article 2 of this convention; (b) to
make those offences punishable by appropriate penalties
Article 5
each state party shall adopt such measures as may be necessary, including, where
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appropriate, domestic legislation, to ensure that criminal acts within the scope of this
convention
Article 6
1. each state party shall take such measures as may be necessary to establish its jurisdiction
over the offences set forth in article 2 when:
(a) The offence is committed in the territory of that state; or
(b) The offence is committed on board a vessel flying the flag of that state or an
aircraft which is registered under the laws of that state at the time the offence is
committed; or
(c) The offence is committed by a national of that state.
2. a state party may also establish its jurisdiction over any such offence when:
(a) The offence is committed against a national of that state; or….
(prescribes the bases of jurisdiction They divided into mandatory and optional bases)
Article 7-15
Extradition and cooperation on the prosecution of terrorists
B. Jurisdiction over the Person
1. Rule Against Extraterritorial Enforcement Jurisdiction
 Beyond possessing prescriptive jurisdiction over the subject matter, a state also needs jurisdiction
over the person in order to enforce its laws. Normally the state requires custody of the human or
legal persons involved in order to execute its will. Occasionally states assert jurisdiction against the
property of absent persons
R v. Hape (2007) (p. 301)
F
I
D
Hape, a canadian citizen, was charged with money laundering. some of the evidence against him was
gathered by rcmp officers who were working in the british protectorate of turks & caicos. The officers
were assisted by local police, including a detective sergeant who asserted authority over the
investigation. searches and seizures were done, some under a warrant issued by the local court and all in
accordance with turks & caicos law. Hape argued that the searches breached section 8 of the Canadian
Charter of Rights and Freedoms and applied to have the documents seized excluded under section 24(2)
of the charter. The crown argued that the charter did not apply to the activities of canadian police in the
foreign state
T he issue in these cases is the applicability of the Charter to the activities of canadian officers
conducting investigations abroad.
As a general rule, then, canadian criminal legislation is territorial unless specifically declared to be
otherwise.
The majority’s insistence that extraterritorial application of human rights laws breaches international
law is in marked contrast to a strong line of international case law indicating that states are, in fact,
obliged to apply their human rights laws extraterritorially. The European Court of Human Rights, the
UN Human Rights Committee, and the Inter-American Commission on Human Rights have all made
findings to this effect
R The Charter cannot be applied extraterritorially, except when Canada’s international human rights law
obligations are engaged.
Notes: LeBel J’s suggestion that international human rights law could act as a constraint on the actions of
Canadian officials abroad was applied relatively quickly after Hape. Omar Khadr, a Canadian citizen, was
famously imprisoned by the US government in the notorious Guantanamo Bay detention facility in Cuba when
he was a teenager
See: jurisdiction over a person; prescriptive jurisdiction;
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United States of America v Khadr
F
Omar Khadr, a Canadian citizen, was 15 years old when he was
captured and seriously injured in a firefight in Afghanistan on 27
July 2002. The US accused Khadr of throwing a grenade that
killed US Army Sergeant First Class Christopher Speer and injured
two others. He was charged with murder and attempted murder,
conspiracy to commit terrorism, providing support for terrorism,
and spying.
On 25 October 2010, Khadr pleaded guilty to murder and
attempted murder in violation of the laws of war, conspiracy to
commit terrorism, providing support for terrorism, and spying, and
was sentenced to eight years of imprisonment.
In spite of Khadr's young age at the time of his capture, the United
States imprisoned him together with adults.
Khadr was the first person since World War II to be prosecuted in a
military commission for war crimes committed while still a minor.
His conviction and sentence were widely denounced by civil rights
groups and various newspaper editorials. He has been frequently
referred to as a child soldier.
I
Does Canada have a right to demand Khadr’s extradition to Canada
[]
D The “human rights exception” as applied in the Khadr cases
appears to work in this way: Canadian state officials operating in
foreign State A, with that state’s permission, must follow the local
law and cannot attempt to adhere to Charter standards, because to
do so would be a breach of State A’s sovereignty. However, if
following the local law would appear to breach Canada’s
international human rights obligations, then the officials must
comply with the Charter.
R On 23 May 2008, the Supreme Court of Canada ruled that Omar
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Khadr has a constitutional right to see confidential documents, but
that the government could withhold some information for national
security purposes.
Furthermore, on 23 April 2009, the Federal Court ruled to order
Canada to seek Khadr's repatriation from Guantanamo Bay, but the
Supreme Court overturned this decision on 29 January 2010. The
Supreme Court also unanimously found that Canada had breached
Khadr's rights under the Canadian Charter of Rights and Freedoms.
See: Recognition of nationality, right of diplomatic protection;
extradition; human rights; minors; jus cogens; terrorism; nationals;
extradition.
Amnesty International Canada v Canada (Chief of the Defence Staff)
F
In 2007, the BCCLA and Amnesty International launched an
application for judicial review of the actions of Canadian Forces
regarding the transfers that have taken place under the CanadaAfghanistan Detainee Agreement signed on 18 December, 2005.
The BCCLA and Amnesty criticized the transfer deal for not
providing adequate safeguards to ensure that individuals captured
or detained in Afghanistan would not be tortured by Afghan forces.
Our organizations had strong grounds to believe that Afghan forces
are torturing detainees. An extensive record of pervasive and
widespread torture in Afghanistan has been well documented by
international organizations monitoring human rights issues.
We argue that transfers of these detainees violates the Canadian
Charter of Rights and Freedoms and Canada’s international human
rights obligations not to transfer detainees when there is a high
probability of torture or ill treatment.
We sought an injunction to halt the transfer of all detainees to
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Afghanistan authorities, or any other country where torture may be
likely. We also filed an application to determine whether the
Charter of Rights and Freedoms binds Canadian Forces operating
abroad to refrain from transferring prisoners of war to face a
significant risk of torture.
I
Does the Canadian Charter apply to prisoner transfers in
Afghanistan [no]
D In February 2007, Federal Court Justice Anne Mactavish dismissed
the application for judicial review. She ruled that she would not
grant a temporary injunction prohibiting Canadian Forces from
transferring detainees into Afghan custody. She concluded that
there is no way of knowing whether transfers will ever resume in
future given the risk of torture in Afghan prisons, or, if they do
resume, what additional safeguards may be put in place to protect
detainees while they are in the hands of the Afghan authorities.
The Judge dismissed the motion on this ground alone, without
prejudice to the parties’ right to seek another injunction if transfers
resume. She also concluded that the Charter does not apply to the
actions of Canadian soldiers in apprehending, detaining and
transferring prisoners in Afghanistan.
R the Canadian Charter does not apply to the actions of Canadian
soldiers in apprehending, detaining and transferring prisoners in
Afghanistan.
See: Jurisdiction over prisoners, transfer of prisoners; charter; human
right obligations; torture; jus cogens
2. State Responses to the Rule Against Extraterritorial Enforcement Jurisdiction
 one post-Hape decision held that data-gathering by the Canadian Security Intelligence Service in a
foreign state would be unlawful on this basis.
 The legal response of states is to enter into agreements that authorize extraterritorial enforcement
jurisdiction. Mutual legal assistance treaties are one example.
o A - Lawful Responses: Extradition
 defined as “the formal rendition of a criminal fugitive from a state that has custody
(the requested state) to a state that wishes either to prosecute or, if the fugitive has
already been convicted of an offence, to impose a penal sentence (the requesting
state). Often done through treaties
 from extradition practice and treaties, a set of international extradition law
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principles arose, designed to facilitate orderly extradition, protect state interests,
and accord certain protections to the individuals in the extradition process.
 Double criminality: Extradition can only be requested for acts that are criminal
under the laws of both the requesting and requested states
 Specialty: An individual cannot be tried for any offence in the requesting state
other than those for which he or she was extradited. This gives the requested state
a certain amount of control over the fugitive’s ultimate fate and protects its courts
from abuse.
 Evidence: Traditionally, common law states required the requesting state to
present a prima facie case for extradition, in the form of some actual evidence
implicating the fugitive. Civil law states, by contrast, tended to require simply a set
of formal documents that summarized the nature of the requesting state’s case.
 Political offence exception: Most extradition treaties contain certain grounds for
refusal, including that the individual is being sought for a “political offence.” The
meaning of “political offence” has varied through time and history; it definitely
covers purely political crimes such as treason, sedition, espionage, and sabotage,
and often covers those crimes which are motivated by a desire to attack the state’s
political order.
 Discrimination: This ground of refusal originated in the 1957 European Convention
on Extradition, and is applicable where the requested state reasonably believes
that a request has been made “for the purpose of prosecuting or punishing a
person on account of his race, religion, nationality or political opinion, or that that
person’s position may be prejudiced for any of these reasons.
Canada – United States Treaty on Extradition (p. 309)
Article 2 provides a generous double criminality requirement
Article 12 provides for specialty, but allows the requested state to consent to
prosecution by the requesting state should it wish to.
Article 4 has a strong political offence clause, though it excludes crimes of violence,
kidnapping/abduction, and the use of explosives.
Article 17 provides that where both states have jurisdiction over the offence for which
extradition is sought, the requested state can make a decision about whether to
extradite or prosecute, based on where the relevant act was committed, the nationality
of the victim, and the availability and location of the evidence.
 In Canada’s Extradition Act (1999) The Minister is responsible for making the
final decision as to whether the individual sought will be extradited or
“surrendered.”
United States of America v Cobb (SCC, 2001)
F
Along with several other individuals, the appellants, who are
Canadian citizens, allegedly defrauded American residents through
a telemarketing scheme executed from Canada. The U.S. requested
their extradition on charges of fraud and conspiracy to commit
fraud. While many of the co-conspirators have voluntarily
attorned to the jurisdiction of Pennsylvania, the appellants have
contested their extradition on the basis that extraditing them would
unjustifiedly violate their rights under s. 7 of the Canadian
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Charter of Rights and Freedoms , in light of statements made by the
American judge and prosecuting attorney with carriage of the
matter in the U.S. First, as he was sentencing a co-conspirator in
the scheme, the American judge assigned to their trial commented
that those fugitives who did not cooperate would get the “absolute
maximum jail sentence”. Second, the prosecuting attorney hinted
during a television interview that uncooperative fugitives would be
subject to homosexual rape in prison.
Based on these comments, the extradition judge refused to order
committal of the appellants and stayed the extradition proceedings,
even though the U.S. had presented a prima facie case against them
I
Should cnaada extradite cobb in light of the comments? [no]
D In this case, a stay of proceedings was justified either as a remedy
based on s. 7 of the Charter or on the basis of the doctrine of
abuse of process. Both statements, or at the very least the
prosecutor’s statement, were an attempt to influence the unfolding of
Canadian judicial proceedings by putting undue pressure on the
appellants to desist from their objections to the extradition request.
The success or failure of that interference is immaterial. The
intimidation bore directly upon the very proceedings before the
extradition judge. Aside from the intimidation itself, a committal
order obtained in the present circumstances would clearly not be
consistent with the principles of fundamental justice. The existence
of potential remedies at the executive stage does not oust the
jurisdiction of the courts to preserve the integrity of their own
process. The violation of the appellants’ rights occurred at the
judicial stage of the process and calls for redress at that stage and in
that forum.
R the Supreme Court of Canada stayed the extradition because the
American prosecutor and judge in the case had made threats of
reprisal (including rape in prison) against the individual sought if
he continued to contest extradition.
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See: Extradition; threats; Canadian Charter; human rights
Kindler v Canada (Minister of Justice) (SCC, 1991)
F
The appellant was found guilty of first degree murder, conspiracy
to commit murder and kidnapping in the State of Pennsylvania
and the jury recommended the imposition of the death penalty.
Before he was sentenced, the appellant escaped from prison and fled
to Canada where he was arrested. After a hearing, the extradition
judge allowed the U.S.'s application for his extradition and
committed the appellant to custody. The Minister of Justice of
Canada, after reviewing the material supplied by the appellant,
ordered his extradition pursuant to s. 25 of the Extradition Act
without seeking assurances from the U.S., under Art. 6 of the
Extradition Treaty between the two countries, that the death
penalty would not be imposed or, if imposed, not carried out.
I
whether the Minister's decision to surrender the appellant to the
U.S., without first seeking assurances that the death penalty will not
be imposed or executed, violates the appellant's rights under s. 7 or
s. 12 of the Canadian Charter of Rights and Freedoms . In
addition, this Court stated the following two constitutional
questions: whether s. 25 of the Extradition Act infringes s. 7 or s.
12 of the Charter ; and, if so, whether such infringement is
justified under s. 1 .
D Canada has committed itself in the international community to the
recognition and support of human dignity and to the abolition of
the death penalty. These commitments, like the Charter and this
Court's judicial pronouncements, reflect Canadian values and
principles. The preservation of Canada's integrity and reputation
in the international community require that extradition be refused
unless an undertaking is obtained pursuant to Art. 6 . To take this
position does not constitute an absolute refusal to extradite. It
simply requires the requesting state to undertake that it will
substitute a penalty of life imprisonment for the execution of the
prisoner if that prisoner is found to be guilty of the crime.
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R Canada must receive a guarantee that an accuses will not face the
death penalty should they be extradited. But can still extradite
Notes: Overruled by United States v. burns
See: Extradition; death penalty, charter, human rights
United States v Burns (SCC, 2001)
F
This case involved the decision of whether or not to extradite the
accused without first receiving assurances that the receiving country
would not impose the death penalty.
two Canadian citizens, Glen Sebastian Burns and Atif Ahmad
Rafay, who were accused of murdering Rafay's family by the police
department in Bellevue, Washington, of the United States.[2] After
returning to Canada, Burns and Rafay confessed to undercover
Royal Canadian Mounted Police. After the investigation was
complete, Burns and Rafay claimed their confessions were
fabricated, but plans were nevertheless made to extradite them.[3]
I
Can burns be extradited to the US [no]
D The ruling means that the government is constitutionally required
to seek assurances from the requesting state that the death penalty
would not be applied before deciding to order extradition.
Stemming from the Burns case, Canadian courts have stayed
extraditions or remitted them for reconsideration by the Minister in
situations where the human rights situation in the requested state
would “shock the conscience” or be “simply unacceptable.”
R reversal of kindler decision. Extradition to face the death penalty
would violate section 7 of the Charter except in exceptional
circumstances.
See: Extradition; death penalty, human rights, Canadian charter
 B. Unlawful Responses: Abduction and Extraordinary Rendition
 Abduction occurs when state officials and/or their agents capture an individual on the territory
of another state, usually (but not exclusively) for the purpose of criminal prosecution.
 The most famous inter-state abduction is probably still that of prominent Nazi leader
Adolf Eichmann, taken from Argentina by Israeli agents to Jerusalem where he was tried,
convicted, and executed for his crimes during the Second World War. See Eichmann
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 While the matter was diplomatically settled between the two states, the Security Council
declared that the abduction had breached Argentinian territorial sovereignty.
 It has long been settled that inter-state abduction is unlawful. As well it violates
international human rights (such as due process)
 There are two approaches to an accused illegally captured:
o (1) Mala captus principle - Courts of the abducted can still try the accused [mala
captus bene detentus (literally, “wrongly captured, properly detained” ) ex.
Eichmann and United States v Alvarez-Machain,]
o (2) jurisdiction given to the courts to uphold the legality and legitimacy of the legal
process. Illegality in the accused’s arrest—including, but not limited to,
international law violations that may have occurred—can constitute an “abuse
of process” that moves the court to decline jurisdiction. Ex. Ex parte Bennett
United States v Alvarez-Machain, (US, 1992)
F
Agents of the DEA abducted Alvarez-Machain (D) from his office in
Mexico because he was wanted in the U.S. (P) for alleged complicity
in the torture-murder of a DEA agent. But by contending that his
abduction violated a U.S.-Mexico extradition treaty, Alvarez (D)
sought to dismiss the indictment. His prayer was granted by the
district court and the indictment was dismissed. The court of
appeals affirmed while the U.S. Supreme Court granted review.
I
Does the presence of an extradition treaty between the United States
and another country does not necessarily preclude obtaining a
citizen of that nation through abduction? [no]
D a majority of the US Supreme Court found that the abduction of a
Mexican national by agents retained by the US Drug Enforcement
Administration did not provide the individual with a
jurisdictional bar to criminal prosecution. The international law
violation was a matter between the two states involved but was not
justiciable at the instance of the accused. The decision was
extremely controversial internationally, but represents the current
practice of the United States and other states.
R The presence of an extradition treaty between the United States and
another country does not necessarily preclude obtaining a citizen of
that nation through abduction.
Dis: (Stevens, J.). the majority opinion fails to distinguish between acts of private citizens, which do not violate
any treaty obligations and conduct expressly authorized by the executive branch, which undoubtedly
constitutes a fragrant violation of international law and a breach of the U.S. (P) treaty obligations.
Notes: Alvarez (D) lost this battle but won the war. In 1993, he was tried in Los Angeles. The trial judge Edward
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Rafeedie dismissed the case for lack of evidence at the close of the prosecution case. The judge used some harsh
language in his order, apparently believing the case should never have been brought.
See: mala captus principle; Abduction; human rights; sovereignty; jurisdiction; acts of state agents
Ex parte Bennett (UK-HL, 1993)
F
the British police were complicit in the illegal deportation of an
individual from South Africa and the extradition arrangements
between the two states were deliberately flouted.
The appellant is a New Zealand citizen who is wanted for criminal
offences which it is alleged he committed in connection with the
purchase of
a helicopter in this country in 1989. The essence of the case against
him is
that he raised the finance to purchase the helicopter by a series of
false
pretences and has defaulted on the repayments.
The English police eventually traced the appellant and the
helicopter
to South Africa. Where he was abducted by authorities (rather than
seeking extradition)
I
Can the court consider the means in which a defendant was
brought to trial? [yes]
D the court, in order to protect its own process from being degraded
and misused, must have the power to stay proceedings which have
come before it and have only been made possible by acts which
offend the court’s conscience as being contrary to the rule of law.
Those acts by providing a morally unacceptable foundation for the
exercise of jurisdiction over the suspect taint the proposed trial and,
if tolerated, will mean that the court’s process has been abused.”
Your Lordships are now invited to extend the concept of abuse of
process a stage further. In the present case there is no suggestion that
the appellant cannot have a fair trial, nor could it be suggested
that it would have been unfair to try him if he had been returned
to this country through extradition proceedings. If the court is to
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have the power to interfere with the prosecution in the present
circumstances it must be because the judiciary accept a
responsibility for the maintenance of the rule of law which
embraces a willingness to oversee executive action and to refuse to
countenance behaviour that threatens either basic human rights or
the rule of law.
R The courts, of course, have no power to apply direct discipline to
the police or the prosecuting authorities, but they can refuse to
allow them to take advantage of abuse of power by regarding their
behaviour as an abuse of process and thus preventing a
prosecution.”
Dis: the High Court may look at how an accused person was brought within the jurisdiction when examining a
question about that person’s detention. It is axiomatic “that a person charged with having committed a criminal
offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for
it at all.” Proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is
impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system
that a trial should take place. It was proper to order a stay of a prosecution (Lord Oliver of Aylmerton
dissenting).
See: Abduction; court jurisdiction over improper extradition; human rights; fundamental justice; acts of
state agents
Prosecutor v Dragan Nikolic (ICTY, 2003)
F
the Appeals Chamber of the International Criminal Tribunal for
the former Yugoslavia dealt with a case where the accused had been
abducted by persons unknown from his home in the Federal
Republic of Yugoslavia (FRY) and smuggled across the border into
BosniaHerzegovina, where he was arrested by UN forces. He argued
an abuse of process on the basis of a violation of the FRY’s
sovereignty and requested dismissal
I
Does the abduction of Nikolic invalidate his trial [no]
D The Appeals Chamber ruled that even where an abduction is in
breach of a state’s sovereignty (which it found was not true in this
case), it should not decline jurisdiction due to the importance to
international peace and security of the fight against “Universally
Condemned Offences”
R jurisdiction should only be set aside if the accused’s arrest had
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involved extremely serious human rights violations, which was not
the case regarding Nikolic himself.
In the case of genocide, crimes against humanity and war crimes, the
exercise of jurisdiction by an international criminal tribunal is not affected
by the fact that custody of the offender was obtained by forcible abduction in
circumstances involving violation of a sovereign state’s territorial integrity.
See: Abduction; human rights; ICJ, jus cogens; acts of state agents

Extraordinary rendition developed after 9/11. Involved government officials seizing individuals
without any legal process and transporting them secretly to locations (often torture friendly
countries) where they faced detention, interrogation, and sometimes torture. Chief instigator
was US.
 This practice obviously violates a number of international human rights and/or criminal law
norms, including the prohibition on torture—a jus cogens norm
3. Unique Problems of Jurisdiction Over the Person:
 Admission of Immigrants and Refugees
 The sovereign right to exclude aliens is, however, subject to exceptions by agreement. Four
classes of exceptional migrants are significant.
o 1- international commerce demands the transnational movement of business
people for the conduct of trade and investment.
o 2 - diplomats.
o 3 – Trade and free movement agreement; ie the European Union and NAFTA allow
for the movement of goods and people
o 4 – refugees
 Exclusion, Deportation, and Non-Refoulement
 a state may arrest and deport illegal immigrants. The class includes not only individuals
who have found their way into the country without passing through the immigration
process but also those who attained admission by fraudulent application. States also
reserve the right to expel legal immigrants, especially those who, before they become
citizens, commit serious crimes or constitute national security risks.
o These powers are limited in two ways
 1 - the expulsion must be undertaken in a manner that comports with
international law. Ex. Mugesera v Canada (Citizenship and Immigration)
 non-refoulement obligation, - states cannot deport or otherwise
forcibly send a refugee to a state where they will face persecution
in some form. See: Convention relating to the Status of
Refugees Art. 33; IRPA (Canada) section 115; UN Convention on
torture Mugesera v Canada; Suresh v. Canada; Németh v. Canada;
Gavril v. Canada
Convention relating to the Status of Refugees (1951) (p. 321)
Article 1F T he provisions of this convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such crimes. …
Article 32
1. The contracting states shall not expel a refugee lawfully in their territory save on grounds of national
security or public order.
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2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due
process of law. except where compelling reasons of national security …
Article 33
1. no contracting states shall expel or return ( “refouler” ) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, …
 2–
Mugesera v Canada (Citizenship and Immigration) (2012 (p. 321)
F
Mugesera was a Rwandan citizen who gained permanent residency
in Canada in 1993. In 1995 the Minister of Citizenship and
Immigration commenced deportation proceedings against him on the
basis of evidence indicating he was implicated in incitement to
genocide and the crime against humanity of persecution, stemming
from a speech he had made in Rwanda prior to the 1994.
This was launched under what is now section 35 of IRPA, which
provides that a permanent resident or foreign national “is
inadmissible on grounds of violating human or international
rights” if there are reasonable grounds for believing they are
implicated in crimes under the Crimes Against Humanity and War
Crimes Act
I
In this appeal, this Court is required to determine whether the
Federal Court of Appeal erred in overturning a decision of the
Immigration and Refugee Board (Appeal Division) that had found
the respondent inadmissible to Canada? [did not err, Mugesera
returned]
D After a full decade of hearings and procedural wrangling, the
Supreme Court of Canada upheld both the immigration board’s
finding that Mugesera was inadmissible and the government’s
deportation order. However, the deportation was stayed on the basis
that Mugesera faced human rights violations if deported to
Rwanda, and thus Mugesera remained in Canada despite repeated
requests for his deportation by the government of Rwanda, which
wished to prosecute him. It was not until 2011, after both the
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European Court of Human Rights306 and the International
Criminal Tribunal for Rwanda307 had ruled that it was safe to
transfer individuals to Rwanda for trial, that the government of
Canada finally felt able to deport Mugesera.
R Once a state is satisfied and the deported will not face torture, they
may be returned.
See: deportation; non-refoulement obligation, jus cogens; torture human rights
Suresh v Canada (Minister of Citizenship and Immigration) (SCC,
2002)
F
Suresh was a Sri Lankan born Tamil. He came to Canada in 1990
and made a refugee claim based on fear of persecution by the Sri
Lankan government. Suresh was also a supporter of the Tamil Tigers
(a listed terrorist organization) and had done some fundraising for
them. The Solicitor General and Minister of Immigration filed a
certificate under s. 40.1 of the Immigration Act (now s. 77 of the
Immigration and Refugee Protection Act) alleging that Suresh was
inadmissible to Canada on security grounds. Suresh was detained
the following day. The certificate was referred to the Federal Court
for determination of whether it was reasonable, and the court
agreed with the Minister. He was given a deportation hearing, and
the board held that while Suresh was not directly engaged in
terrorism, his membership in a terrorist group was sufficient
grounds for deportation. Under s. 53(1)(b), the Minister gave notice
to Suresh that she was considering issuing an opinion that she
considered him to be a danger to the security of Canada, which
would permit the Minister to deport him despite the risk of torture.
In response, Suresh submitted written and documentary evidence on
this topic. An immigration officer, Gautier, considered Suresh's
submissions, and found that allowing Suresh to remain in Canada
would "run counter to Canada's commitments to fight against
terrorism". While he acknowledged the risk of torture Suresh faced
upon return to Sri Lanka, this was tempered by Suresh's high
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profile, and was counterbalanced by his membership in a terrorist
group: on balance, there were insufficient humanitarian and
compassionate grounds to warrant extraordinary consideration. As a
result, the Minister issued an opinion that Suresh constituted a
danger to Canada. Suresh never received a copy of the opinion, nor
was he given an opportunity to respond to it orally or in writing
(no such requirement existed under s. 53(1)(b)).
Suresh brought a claim on substantive, constitutional, and
procedural grounds. On the procedural side he argued that in order
to make meaningful submissions, he needed disclosure, especially
the material/recommendation/opinion written by Gautier
indicating that he is a danger to Canada. He was not given an
opportunity to respond to the opinion, nor was he given reasons for
the opinion.
I
Would deporting Suresh be in contradiction to Canada’s obligation
under the torture convention? [no]
D Generally to deport a refugee, where there are grounds to believe
that this would subject the refugee to a substantial risk of torture,
would unconstitutionally violate the Charter's s. 7 guarantee of
LLSOP. This said, we leave open the possibility that in an
exceptional case such deportation might be justified either in the
balancing approach under ss. 7 or 1 of the Charter.
The procedures for deportation under the [now IRPA], when
applied properly and in line with the safeguards outlined above,
conforms to the Charter.
individuals could not be deported to face a risk of torture, except in
“exceptional circumstances” which it declined to define
R the Convention against Torture, which Canada has ratified, should
constrain the government’s authority to return a refugee who poses a
security risk if to do so would likely be to deport him to torture
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See: deportation; non-refoulement obligation, jus cogens; torture; human rights
Németh v. Canada (SCC, 2010) and Gavril v. Canada (SCC, 2010)
F
a Hungarian Roma couple were granted refugee status after having
been persecuted in their home state. Some years later, Hungary
requested their extradition from Canada to face fraud charges.
I
Can the minister extradite refugees to face charges? [not unless the
situation in their hom country has changed from when they
received refugee status]
D The Supreme Court held that the non-refoulement obligation under
the Refugee Convention applied to extradition, but that Canada
had implemented this aspect of nonrefoulement via the Extradition
Act rather than IRPA. While the Minister was permitted to extradite
someone who still had refugee status under IRPA, if the conditions
in the home state which led to refugee status being granted had not
changed by the time extradition was sought then refusal of
extradition was mandatory.
The Court held that the Minister's decision in this case was based
on incorrect legal principles and was unreasonable. Among other
things, the Minister had imposed a burden on the appellants to
show a continuing risk of persecution, and failed to respond to the
appellants' submission to him that they did not fall within the
"serious crime exception" to refugee protection. As a result, the Court
remitted the matter to the Minister for reconsideration in
accordance with its reasons.
R Refugees cannot be returned to their country of origin to face
charges unless the situation which led to their refugee
determination has imporved
A person who has obtained refugee status meets the test for
prejudice, and the Minister must refuse to surrender that person for
extradition unless it is shown that the person has become ineligible
for refugee status. In determining this issue, the refugee does not
have the burden of showing that the circumstances giving rise to
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his refugee status continue to exist. The Minister must consult with
the Minister of Citizenship and Immigration concerning current
conditions in the requesting state, and owes a duty of fairness.
Notes: probably important that these were relatively minor crimes, not murder or something.
See: deportation; non-refoulement obligation, refugees; human rights; extradition
V. FOREIGN STATE IMMUNITY FROM JURISDICTION
 A state is entitled under international law to immunity from the jurisdiction of the courts of other
states. See The Schooner Exchange v M’Faddon
o A state may use the courts of another state to bring an action if it wishes, but it cannot generally
be compelled to submit to their authority. This principle applies whether a private person begins a
civil action against the head of state or, even more strongly, if a local state official should initiate
criminal proceedings for an offence under national law.
 There has been departure from the theory of absolute immunity, in which the state was
held to be immune from jurisdiction relating to all its activities, regardless of their character,
in favour of the restrictive theory, under which states are immune with respect to sovereign
acts (jure imperii), but not commercial acts (jure gestionis).
State Immunity Act (1985) (p. 327) [Canada]
Interpretation 2. in this act, “agency of a foreign state” means any legal entity that is an organ of the
foreign state but that is separate from the foreign state; “commercial activity” means any particular
transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial
character; “foreign state” includes (a) any sovereign or other head of the foreign state or of any political
subdivision of the foreign state while acting as such in a public capacity, (b) any government of the foreign
state or of any political subdivision of the foreign state, including any of its departments, and any agency of
the foreign state, and (c) any political subdivision of the foreign state; “political subdivision” means a
province, state or other like political subdivision of a foreign state that is a federal state. “
State Immunity
3(1) except as provided by this act, a foreign state is immune from the jurisdiction of any court in canada. …
[except where it willingly submits]
7(1) a foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
(a) an action in rem against a ship owned or operated by the state, or
(b) an action in personam for enforcing a claim in connection with a ship owned or operated by the
state, if, at the time the claim arose or the proceedings were commenced, the ship was being used
or was intended for use in a commercial activity. …
 Scope of Immunity
o Presumption of immunity; that is, the immunity of the state is recognized subject to any
exceptions which may apply.
 This is the structure adopted in the SIA, section 3(1), whereby foreign states are
immune from the jurisdiction of Canadian courts, “[e]xcept as provided by this Act.”
 The immunity of a foreign state is generally regarded as extending beyond the
state itself and the head of state to (Sec. 2 SIA):
— the government and all governmental organs; and public corporations
independently created but operating in effect as governmental organs; (Trendtex v
Central Bank of Nigeria; Mellenger v New Brunswick; Western Surety Co v Elk Valley
Logging; Athabasca Chipewyan v. BC; Pembina County Water v Manitoba; Ferranti-
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Packard Ltd v Cushman Rentals; Walker v Bank of New York);
— the leader of the government, the foreign minister and other ministers, officials,
and agents of the state with respect to their official acts; (ex. Jaffe v Miller)
— state-owned property (Juan Ysmael v Indonesia)


Immunity only extends to land, buildings, goods, chattels, money,
and other intangible assets which are the “property of a foreign
state.”
Section 7 of the SIA now provides that a foreign state is not
immune in proceedings related to foreign state ships and cargo in
circumstances where the ship or cargo are “used or … intended for
use in a commercial activity
The Schooner Exchange v M’Faddon (US-SC, 1812)
F
two American citizens claimed that the schooner Exchange had
been unlawfully taken from them by French forces two years
previously, and obtained an order for its arrest when it was driven
into Philadelphia by a storm. The United States Attorney stated that
the vessel, now the French public ship Balaou, was owned by the
Emperor of France, and should be released from arrest.
I
Does a US court have jurisdiction to consider the ownership of a
foreign flagged ship [no]
D The district court found that it did not have jurisdiction over the
dispute. On appeal, the circuit court reversed the decision of the
district court, and ordered the district court to proceed to the merits
of the case.[1] The Supreme Court reversed the circuit court's
decision, and affirmed the district court's dismissal of the action.
The Supreme Court of the United States, in deciding that the vessel
was “exempt from the jurisdiction” of the US courts: “The
jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed
by itself.”
R all states being sovereign equals, one cannot exercise authority over
another.
the Federal courts' jurisdiction over a claim against a friendly
foreign military vessel visiting an American port. The court,
interpreting customary international law, determined that there
was no jurisdiction.
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See: sovereignty immunity; jurisdiction; foreign laws
Jaffe v Miller (ON-SC, 1990)
F
Jaffe’s suit against officials of the state of Florida, for conspiracy to
kidnap him in Toronto and convey him to Florida for criminal
prosecution, was dismissed on account of the officials’ immunity
while acting within the scope of their duties
I
Are the state agents immune from action due to state immunity?
[yes]
D As defendants were functionaries of the state of Florida, their
positions were created by the state constitution, and their actions,
despite possible malicious conduct, were within the scope of their
duties. They were entitled to state immunity. Plaintiff's personal
injury claim allegedly arising out of the kidnapping did not
provide an exception to the general rule of sovereign immunity, as
the kidnapping occurrence prior to the enactment of the Act made
the Act and the statutory exception inapplicable.
R actions, despite possible malicious conduct, were within the scope of
their duties of state agents are immune from prosecution under
sovereign immunity.
See: sovereign immunity; jurisdiction; state officials; actions of state agents; abduction; agents acting in their
duties
Mellenger v New Brunswick Development Corporation (1971) (p. 336)
F
mellenger and levin, canadian citizens, brought action against the
new brunswick development corporation with respect to commission
fees they alleged were owed to them. as a preliminary matter, lord
denning mr found that the province of new brunswick was, for the
purposes of this matter, a “sovereign state in its own right, and
entitled, if it so wishes, to claim sovereign immunity.” The issue
was whether the new brunswick development corporation was
entitled to shelter behind that immunity
I
55
Does state immunity also apply to province [yes]
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D An entity which is constituted in such a way that its purpose is to
assist, promote and advance the industrial development, prosperity
and economic welfare of the area in which it operates, can be seen
as effectively carrying out government policy in the way that a
government department does and therefore to assume the position of
an organ of government. The New Brunswick Development
Corporation was an arm or the alter ego of the Government of New
Brunswick which was a sovereign state and so it was entitled to
immunity from suits in the courts of this country. A state within a
federal state may in certain circumstances partake of the
sovereignty of the state as a whole and obtain State Immunity.
Against the background of the 1872 Act, the mere fact that New
Brunswick did not have control over international relations did not
mean that for that reason alone that it could not be entitled to state
immunity.
R inter alia that for purposes of defining state immunity, the
Province of New Brunswick could be considered to be a “sovereign
state.
Notes: The question that arises is whether it should follow that there is interprovincial immunity before
Canadian courts. It is clear that the SIA does not apply to the benefit of Canadian provinces (dealing as it does
with “foreign” states)
See: sovereign immunity; jurisdiction; state agency or organ
Western Surety Co v Elk Valley Logging (BC-SC, 1985)
F
The defendant contractors Elk Valley Logging Ltd. and C-11
Industries Ltd. (“Elk Valley” and “C-11”) entered into a contract
with the Department of Transportation for the Province of Alberta
for construction of certain highways in Alberta. There was a default
and Alberta was sued as a surety in the province of BC.
I
(1) Can the plaintiff sue alberta in the province of BC [no] (2) does
the doctrine of sovereign immunity apply [yes] (3) can the plainff
still sue alberta in the province of alberta [yes]
D the British Columbia Supreme Court applied Mellenger in deciding
that Alberta is a sovereign state vis-à-vis British Columbia and
thus granted immunity, on a restrictive basis, to Alberta in the BC
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court action.
R Sovereign immunity can be granted to provinces
Over ruled by Athabasca Chipewyan First Nation v British Columbia
See: sovereign immunity; jurisdiction; state agency or organ
Athabasca Chipewyan First Nation v British Columbia (AB-CA, 2001)
F
In 1998, British Columbia Hydro and Power Authority (B.C. Hydro)
applied to the National Energy Board (NEB) for electricity export
permits. The appellants and others filed interventions with the
NEB, alleging that the issuance of the permits would result in
adverse environmental effects downstream. They argued that this
would cause and contribute to the alteration of the natural flow
pattern of the rivers on which B.C. Hydro operates its dams, causing
significant adverse environmental effects. The NEB issued the
permits, having concluded that there would be no significant
adverse environmental effects. This was an appeal from that
decision. The only issue was whether the NEB had sufficient
information before it to justify its conclusion.
I
Can Athabasca Chip sue BC hydro, or province of BC in an Alberta
court [, or province of BC in an Alberta court [yes, mellenger
principle abandoned]
D Hunt J of the Alberta Court of Appeal reviewed the conflicting
caselaw and rejected this application of Mellenger as based on a
fundamental misunderstanding of the principles involved, saying:
In my view, the use of the Mellenger principle in an
interprovincial context is misplaced. To the extent that the
rationale underlying sovereign immunity has any importance in a
federal state, that function is already fulfilled by Crown immunity.
The fact that some Canadian courts confuse the two concepts further
suggests that they play the same role.
R Saovereign immunity does not apply to provinces [Distinguished
from Mellenger v New Brunswick Development Corporation, but
subsequently overruled by Western Surety Co v Elk Valley Logging]
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See: sovereign immunity; jurisdiction; state agency or organ
Trendtex Trading Corp Ltd v Central Bank of Nigeria (1977) (p. 344)
F
The plaintiff sold cement that was destined for nigeria for the use
of the government of the day in its many building projects. The
central bank of nigeria issued a letter of credit for the cement. a
very large number of similar contracts were also made. on becoming
inundated with arriving shipments of cement, the succeeding
nigerian government had to take emergency action, which included
ordering the central bank not to honour the letter of credit in this
case. The plaintiff sued the bank for payment. although finding
that commercial transactions were not subject to immunity, lord
denning nonetheless considered the status of the central bank, in
the event that immunity was to apply
I
Is the central bank of Nigeria entitled to state immunity [no]
D The Court of Appeal (Lord Denning MR, Lord Justices Stevenson,
and Shaw)—having to decide whether there was State immunity for
the Central Bank of Nigeria under the law of the United Kingdom
(‘UK’) barring the UK from exercising jurisdiction—had to decide on
two preliminary issues: first, what effect, if any, would a
conflicting rule of international law have in the UK legal order?
Secondly: what was the rule of international law concerning State
immunity? A third issue concerned whether the Central Bank of
Nigeria was a separate legal entity from the Nigerian State
altogether, in which case State immunity would apply only
exceptionally.
5 While their Lordships agreed that the Central Bank of Nigeria
was not entitled to sovereign immunity, their reasons differed. All
agreed, however, on the finding that the Central Bank of Nigeria
was an entity separate from the Government of Nigeria, and
therefore not entitled to immunity. The majority (Lord Denning MR
and Lord Shaw), in addition, rested their decision ‘on the ground
that there is no immunity in respect of commercial transactions,
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even for a government department’ (Trendtex Trading Corporation v
Central Bank of Nigeria Court of Appeal [‘Trendtex’] 560) and that
this rule of international law can be applied by the Court of
Appeal, thus modifying the doctrine of stare decisis in English law.
It is mainly in this respect —the relationship of international and
UK domestic law— that the judgment has become significant.
R Their Lordships agree that international law has moved on from a
doctrine of absolute to restrictive immunity and that the issue of a
letter of credit was, by its nature, a commercial action. The purpose
of the overall transaction was considered to be irrelevant; hence,
even if one wanted to look behind the abstract nature of the act—a
letter of credit—which is separate from the contracts of purchase,
immunity would not be granted.
functional approach to the definition of state organs found in Trendtex
See: sovereign immunity; jurisdiction; state organs and agencies; Commercial Activity (jure gestionis);
functional approach
Pembina County Water v Government of Manitoba (FC, 2008)
F
the Federal Court considered the status of three government entities,
a county and two water agencies which were created by the State of
North Dakota, impleaded as third parties in a case involving flood
management in Manitoba and its impacts in the United States. The
Court accepted that all three constituted “political subdivisions”
under the SIA
I
Is this case bared by state immunity [yes]
D ach of the State Third Parties is a separate legal entity pursuant to
North Dakota law. A waiver of sovereign immunity must be clear
and unequivocal, and cannot be presumed. Although certain
political subdivisions of the State of North Dakota have accepted
the jurisdiction of the Federal Court by commencing this proceeding
as Plaintiffs, there is no indication that the State Third Parties
have attorned or otherwise submitted to the Federal Court’s
jurisdiction over the Third Party Claim. Consequently, I conclude
that the State Third Parties are entitled to state immunity and
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should be struck as third parties to the proceeding.
R The learned justice rejected the Defendants’ forum non conveniens
arguments. Finally, in accepted the Third Parties’ state immunity
argument
Note: Section 2 of the SIA defines a political subdivision as “a province, state or other like political subdivision of
a foreign state that is a federal state.”
See: sovereign immunity; jurisdiction; state organs and agencies; political sub divisions
Ferranti-Packard Ltd v Cushman Rentals Ltd et al (ON-HC, 1980)
F
Canadian Plaintiff company was the owner of equipement which
had been damaged when the lorry in which it was being
transported hit a bridge on a high way in the state of new york.
The plaintiff instiutied proceedings against the driver and lessor of
the vehicle the New York State Thruway Authority, whose function
was to construct and operate the highway system in New York State,
was denied immunity in the Ontario courts on account of its
independence in establishing its policies and executing its
responsibilities
I
Is ther New York State Thruway Authority entitled to sovereign
immunity [no]
D The Authority was not an organ or an alter ego of the sate of new
york, but an independent body, constituted to conduct its own
commercial activities. It is not entitled to sovereign immunity
whether absolute or restrictive theory is adopted. The Authority was
created by statute which regarded it as performing a “government
function”, however this was not conclusive, since internatl
arrangements made by one satate were not binding upon the court
of another state in matters of sovereign immunity.
R Organizations created by statue are not automatically entitled to
sovereign immunity, rather their nature, obligations, and previous
legislative considerations should be evaluated.
See: sovereign immunity; jurisdiction; state organs and agencies;
Walker v Bank of New York Inc
60
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F
bank employees had, at the request of US law enforcement officers,
assisted in the criminal investigation of the plaintiff by misleading
him as to the identity of an undercover officer, and in luring him
to the United States, where he was arrested. In an action against the
bank for, inter alia, deceit and breach of fiduciary duty, the
Ontario Court of Appeal treated the bank and its employees as
agents of the United States and thus entitled to immunity.
I
Are the bank employees entitled to sovereign immunity [yes]
D The Court of Appeal rejected the trial judge’s view that the SIA
required the entity claiming immunity to have an “ongoing
institutionalized relationship” with the state, and found that in
enacting the relevant provisions in the SIA Parliament intended to
“protect individuals and institutions who act at the request of a
foreign state in situations where that state would enjoy sovereign
immunity.”
The Court of Appeal found that immunity can be granted on the
basis of activities engaged in by the claimant, rather than their
institutional status, so that any individual or legal entity could
potentially be entitled to immunity, as long as they had acted on
the request of a foreign state. This approach seems inimical to the
entire scheme of the SIA, which is based on immunity for defined
institutions and the individuals that conduct their work.
Subsequent cases do not appear to have adopted the expansive
approach of this decision.
R immunity can be granted on the basis of activities engaged in by
the claimant, rather than their institutional status, so that any
individual or legal entity could potentially be entitled to
immunity, as long as they had acted on the request of a foreign
state.
Note: The Court of Appeal in this decision appears to have expanded the concept of a state agency, and to have
ignored the functional approach to the definition of state organs found in Trendtex and Mellenger
See: sovereign immunity; jurisdiction; state organs and agencies; responsibility of the state.
Juan Ysmael and Co Inc v Government of Indonesia (PC-UK)
61
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F
the plaintiff claimed possession of a ship which it had previously
chartered to the Indonesian government, but the government
asserted it had purchased the ship through an agent of the
plaintiff, and retained the ship at the end of the charter.
I
Is the state of Indonesia immune to the claim for the ship [no]
D The Privy Council found that where the foreign sovereign is
“directly impleaded” as a party, no inquiry as to the validity of its
assertion would be made. However, in the situation where the
foreign sovereign was claiming an interest in property that would
be “affected by the judgment in an action to which it is not a
party,” then it may at least be required to “produce evidence to
satisfy the court that its claim is not merely illusory, nor founded
on a title manifestly defective.” The Privy Council found that the
assertion of ownership was “manifestly defective” and rejected the
claim to immunity.
R directly impleaded” as a party, no inquiry as to the validity of its
assertion would be made. However, in the situation where the
foreign sovereign was claiming an interest in property that would
be “affected by the judgment in an action to which it is not a
party,” then it may at least be required to “produce evidence to
satisfy the court that its claim is not merely illusory, nor founded
on a title manifestly defective
Notes: where property is concerned and the state is not a direct party, immunity can be waived (I think.)
See: sovereign immunity; jurisdiction; state property
Exceptions to state immunity
 Includes waiver of immunity, proceedings related to commercial activities, and certain classes of
personal injury and terrorism-related actions, all of which are discussed in the following subsections.
 Generally immunity it a preliminary discussion in the trial (since the state need not face proceedings if
immune.) However it can be raised at any point in the trial (Schreiber v Canada (Attorney General))
 Given this overall structure, the burden of proof regarding the applicability of any exception is on the
party wishing to benefit from it (Bombardier Inc v AS Estonian Air).
 Waiver of immunity - a waiver was only effective if it was made in the face of the court and at the
time that jurisdiction was being determined. Usually this occurs when a foreign state initiates an
action as the plaintiff
o The SIA, however, also provides that waiver can occur “by written agreement or otherwise
either before or after the proceedings commence” (section 4(2)(a)) or by intervening or
taking “any step in the proceedings” (section 4(2(c))
o Ex. Dorais c Saudi Arabian General Investment Authority; Smith v Chin; United States of
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America v Friedland
 Commercial Activity (jure gestionis) - The two most popular yet contending tests to distinguish
commercial activities are to inquire into the purpose of the transaction (a public act has a public
object), or to scrutinize the nature of the action (a commercial deal is a commercial act whatever its
purpose)
o See: Congreso del Partido, Re Canada Labour Code; Lovell v New Zealand Tourism Board;
Butcher v Saint Lucia; Kuwait Airways Corp v Iraq; NML Capital Ltd v Republic of Argentina,
o This is often particularly difficult with employment contracts and consular staff, as
evidenced in Maroc (Gouvernement du Royaume du) c El Ansari; Bentley v Consulate General
of Barbados/Invest Barbados; Greco v Holy See (State of the Vatican City), and Roy v South
Africa (not below)
UN Convention on Jurisdictional Immunities of States and Their Property (2004)
Article 1(c) “commercial transactions” = any commercial contract or transaction for the sale of goods or
supply of services,” “any contract for a loan or other transaction of a financial nature, and contracts of a
commercial, industrial, trading or professional nature.
article 2(2)
In determining whether a contract or transaction is a “commercial transaction” under paragraph 1(c),
reference should be made primarily to the nature of the contract or transaction, but its purpose should
also be taken into account if the parties to the contract or transaction have so agreed, or if, in the
practice of the State of the forum, that purpose is relevant to determining the non-commercial
character of the contract or transaction.
 Personal Injury, Property Damage, and Damage Related to Terrorism
o a foreign state may be subjected to the jurisdiction of the courts in proceedings related
to two additional categories of claims: death, personal injury, and loss or damage to
property in Canada (territorial tort exception), under section 6 of the SIA; and damage
resulting from the commission or support of terrorism by certain designated states,
under section 6.1.
o Territorial tort exception See: Schreiber v Canada (Attorney General), Bouzari v Islamic
Republic of Iran; Jurisdictional Immunities of the State (Germany v Italy); Islamic Republic
of Iran c Hashemi
o State supported terrorism see: Steen v Islamic Republic of Iran
Justice for Victims of Terrorism Act (JVTA) (2012)
Created a cause of action against “listed entities” and designated foreign states engaged in terrorism or the
support of terrorism, and by associated amendments to the SIA removed the immunity of foreign states
from the jurisdiction of Canadian courts in such proceedings.
Section 4(1) actions may be brought against:
(a) any listed entity (defined under a procedure in the Criminal Code) or designated foreign state that
committed the act or omission; or
(b) any listed entity or foreign state that commits an act or omission punishable under the Criminal
Code provisions proscribing various forms of financial or other support for terrorist entities or
activities.
Schreiber v Canada (Attorney General) (SCC, 1998)
F
Karlheibmz Schreiber, a Canadian citizen living in both Canada
and Europe, was being investigated by the RCMP for criminal
activity involving kickbacks. The investigation was based on the
context that Schreiber along with then Prime Minister Brian
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Mulroney and Frank Moores had received sums of money in return
for rewarding lucrative government contracts to certain companies.
To determine whether the money from the kickbacks had been
deposited in a Swiss bank, a letter of request on behalf of the
Attorney General and the Minister of Justice was sent to the Swiss
government in 1995. A letter of request between friendly states is
often used in the absence of a treaty. The letter requested that the
Swiss government provide the Canadian government with Mr.
Schreiber’s banking records. In response, the Swiss seized Schreiber’s
bank records. Prior to the letter of request being sent, the RCMP
had not obtained a search warrant.
Schreiber sued the Attorney General of Canada arguing that his
constitutional right to be secure against unreasonable search and
seizure under s. 8 of the Charter of Rights and Freedoms had been
violated. The Attorney General’s position was that the Charter did
not apply to privacy issues outside Canada and the search and
seizure of documents was done by the Swiss authorities acting
under Swiss law.
I
Does the Canadian Charter apply to search and seizures outside of
Canada [yes]
D In a 5:2 decision, the Supreme Court of Canada allowed the appeal.
While s. 8 of the Charter protects Schreiber from intrusions upon
his privacy by the Government of Canada, by itself, the specific act
of sending the letter does not violate s. 8 of the Charter. Moreover,
an individual claiming a breach of s. 8 must show that he or she
has an expectation of privacy in the place searched or the material
seized. A Canadian residing in a foreign country should expect that
his or her privacy will be governed by the laws of that country and
that reasonable expectation will correspond with the degree of
protection that those laws provide. There is no evidence that
Schreiber’s records were seized illegally in Switzerland and
therefore his reasonable expectation of privacy was not violated. As
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a result there was no violation of s. 8.
R The Charter does apply to bank transactions out side of Canada,
however Shreiber’s charter rights were not engaged.
See: sovereign immunity; jurisdiction; Charter rights; search and seizure
Bombardier Inc v AS Estonian Air (ON-CA, 2014)
F
Bombardier alleged that the Republic of Estonia induced Estonian
Air to breach its contract with Bombardier, intentionally
interfering with its economic relations. Bombardier therefore sought
to bring the Republic before the courts of Ontario by invoking the
“commercial activity” exception as described in s. 5 of the Federal
State Immunity Act, RSC 1985, c S-18 (the “Act”).
The commercial activity exception provides that a foreign state is
not immune from the jurisdiction of Canadian courts “in any
proceedings that relate to any commercial activity of the foreign
state.” “Commercial activity” is defined as “any particular
transaction, act or conduct or any regular course of conduct that by
reason of its nature is of a commercial character.”
I
Is Estonia engaged in commercial activity? [no] Can sovereign
immunity be waiver? [no]
D A party seeking to bring a foreign state before the court, by invoking
the commercial activity exception, cannot simply plead facts
constituting a cause of action and then plead that those facts are
commercial activity, thereby grounding jurisdiction … . It must do
more. It must provide an evidentiary record to enable a court to
perform the necessary contextual analysis to determine that the
state has engaged in commercial activity and that the proceedings
relate to that activity … . [6] Although that analysis does not
require a determination of the underlying merit of the cause of
action, it is a merits-based analysis of the evidence supporting or
refuting the assertion that the court has jurisdiction based on the
exception
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Based on the evidentiary record, the court held that the Republic’s
activities were restricted to oversight as shareholder and to the
furtherance of governmental objectives. It had no involvement in the
management, governance or commercial activities of Estonian Air
and that the decision to end negotiations with Bombardier was
made by the airline and not the Republic. Although the Republic
owned over 90 percent of the shares of the airline, this did not
establish that it was engaged in commercial activity. The Republic’s
activities were sovereign in both purpose and nature, and therefore
Bombardier’s claim was dismissed.
R Burden on the plaintiffs to prove commericial activity by a foreign
state (to avoid sovereign immunity)
See: sovereign immunity; jurisdiction; plaintiffs burden, definition of commercial activity
Dorais c Saudi Arabian General Investment Authority (2013 QCCA)
F
Here, the Respondent is suing the Petitioners in front of the Quebec
Superior Court for professional services rendered. He is suing them
in this province because, pursuant to his allegations, the "contrat de
représentation" at the basis of the claim was concluded in Montreal
where most of the services were also rendered.
[13] On the Petitioners' lack of jurisdiction argument based on
Article 3148 (2) C.C.Q., the judge ruled that the evidence did not
support their assertion that the parties had chosen, implicitly or
explicitly, to submit to the jurisdiction of the Kingdom of Saudi
Arabia by agreement.
I
Can a forum agreement in contract allow the parties to avoid state
immunity (or waive it)? [no]
D the defendant Investment Authority, in addition to taking routine
procedural steps such as agreeing to a timetable and moving to be
relieved of a default to appear, had filed an omnibus motion
arguing “(1) lack of jurisdiction; (2) in the alternative, for a stay
on the basis of forum non conveniens; and (3) in the further
alternative, to dismiss the action as against the Government of the
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Kingdom of Saudi Arabia,” 370 due to there being no cause of
action disclosed. Despite the fact that both the forum non
conveniens argument and the motion to dismiss as against the
government went beyond the “purpose of claiming immunity” in
section 4(3)(a), Collier JSC of the Quebec Superior Court found that
these submissions were pleaded only in the alternative to the
primary claim of immunity, and as such did not suffice to
constitute a waiver
R Contracts claiming forum selection agreements waiving state
immunity are invalid.
See: sovereign immunity; jurisdiction; waiver of state immunity
Smith v Chin (ON-SC, 2004)
F
The defendant Jonathan J. Chin (“Chin”) resides in Toronto.
The plaintiffs allege that at the material times he represented he
was a director of the corporate defendants.
[5]
The defendant Connie Liesman (“Liesman”) resides in the
state of Georgia, U.S.A., and allegedly represented herself to be the
Chief Executive Officer of the defendant Life-Line Solutions LLC
(“Life-Line”), incorporated in Georgia. The defendant Lee W.
Kennedy (“Kennedy”) also resides in Georgia and allegedly was the
Chief Operating Officer of Life-Line.
[6]
The moving defendants state that, commencing in 1984,
in an effort to diversify its economy, the St. Kitts Government
implemented an “Economic Development Program” (“Program”)
whereby an individual can obtain St. Kitts’ citizenship and a St.
Kitts passport by investing US $250,000.00 into a company which
has acquired status under an Approved Investment Project. Mr.
Allen promotes business opportunities in St. Kitts and offers advice
to individuals wishing to invest in businesses in St. Kitts.
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[7]
The plaintiffs claim that the defendants Chin, Allen,
Liesman and Kennedy held themselves out to be representatives of
the Program and fraudulently or negligently represented that LifeLine was an approved investment under the Program with plants to
be built in St. Kitts and that Mr. Smith would receive credit under
such Program for an investment.
I
The issue is whether the moving defendants Allen and St. Kitts
have immunity under the Act? []
D the Ontario Superior Court of Justice found submission to the
jurisdiction in “a motion for summary judgment on the merits,
cross-examination of the plaintiff on his responding affidavit in
respect of the merits and maintaining a statement of defence on the
merits
The possible issue as to whether the Act applies to an individual
was not addressed. The parties agreed that if St. Kitts has immunity,
then Mr. Allen also has immunity provided his actions at issue
were done as a sate representative on behalf of St. Kitts.
For the reasons given, I find that the defendants Allen and St. Kitts
have submitted to the jurisdiction of this Court. That is, they are
not immune from the jurisdiction of the Court by reason of the Act.
R State immunity not waived for individuals who submit to the court.
See: sovereign immunity; jurisdiction; waiver of state immunity
United States of America v Friedland
F
I
Did the USA waive the State Immunity Act? [no]
D the United States had obtained an ex parte Mareva injunction in
Ontario, pursuant to a garnishment order for environmental
cleanup costs in Colorado. In obtaining the Mareva injunction, the
United States made an undertaking to pay any damages to
Friedland arising out of the imposition of the ex parte order. When
he subsequently initiated a counterclaim against the United States,
the Court of Appeal found, first, that any waiver must be clear and
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explicit and, second, that the submission to the jurisdiction
represented by the undertaking was “limited to the extent
undertaken—viz., a submission to the jurisdiction of the court to
inquire under the undertaking—and goes no further. The
undertaking does not constitute an explicit waiver for the purposes
of Friedland’s counterclaim within the meaning of s. 4(2)(a) of the
SIA.”
R that any waiver must be clear and explicit and, second, that the
submission to the jurisdiction represented by the undertaking was
“limited to the extent undertaken
See: sovereign immunity; jurisdiction; waiver of state immunity
Congreso del Partido (1983 UK-HL)
F
Cuban state enterprise was selling sugar to a Chilean state enterprise pursuant to a contract of sale,
cargoes of sugar were dispatched to Chile on the vessels Playa Larga and Marble Islands. While the
vessel was in transit the Pinochet Coup d’etat occurred (removing socialism from Chile), and Cuba cut all
diplomatic ties with Chile and refused to deliver the sugar to Chile.
I
Is this action protected by sovereign immunity?
D "If a trader is always a trader, a state remains a state and is capable at any time of acts of sovereignty.
The question arises, therefore, what is the position where the act upon which the claim is founded is
quite outside the commercial, or private law, activity in which the state has engaged, and has the
character of an act done jure imperii. The restrictive theory does not and could not deny capability of a
state to resort to sovereign or governmental action: it merely asserts that acts done within the trading
or commercial activity are not immune. The inquiry still has to be made whether they were within or
outside that activity.
"(I)n considering, under the restrictive theory whether state immunity should be granted or not, the
court must consider the whole context in which the claim against the state is made, with a view to
deciding whether the relevant act(s) upon which the claim is based, should, in that context, be
considered as fairly within an area of activity, trading or commercial, or otherwise of a private law
character, in which the state has chosen to engage, or whether the relevant act(s) should be considered
as having been done outside that area, and within the sphere of governmental or sovereign activity."
R Restrictive theory is formed because of the growth of state intervention in commercial matters. This
theory also implies that a foreign state and instrumentalities are not as regards of transactions that are
governmental in character. It is also part of common law which was adopted by the House of Lords in I
Congreso del Partido [1983] 1 AC 244.
See: Jure imperii and Jure gestionis; state sovereignty; commercial activity
Re Canada Labour Code (1992) (p. 347)
F
69
sixty canadian civilian employees on the us naval base at argentia, newfoundland sought union
certification before the canada labour relations board. The canadians were employed as firefighters and
tradespeople to do maintenance work on the twosquare-mile base, which supported anti-submarine
warfare command and tactical forces through the operation of a high security communications centre.
When maintenance was required in the communications centre, the canadian employees had to have a
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special pass and a military escort, and the work area was sealed off. The united states claimed immunity
from the certification proceedings pursuant to the sia sections 2 and 5, but the board held that it had
jurisdiction and the federal court of appeal affirmed that decision
I
Can the US claim sovereign immunity?
D certain aspects of employment at the base are commercial, but in other respects the employment
relationship is infused with sovereign attributes. accordingly, the certification proceeding affects both
the commercial and sovereign aspects of employment at the base. The issue then becomes whether the
effect on the commercial realm is sufficiently strong as to form a “nexus” so that it can truly be said
that the proceedings “relate” to commercial activity. in my view, a nexus exists only between the
certification proceedings and the sovereign attributes of labour relations at the base. The effect on
commercial activity is merely incidental, and cannot trigger the application of s. 5 of the State Immunity
Act.
although the contracts of employment at the argentia base might (in the loosest sense of the word) be
“related” to the certification proceedings, in that they serve as a condition precedent to the
certification application, they do not lie at the heart of the matter. rather, the application seeks to
supplant the private contractual relationship between the employees and employer with a statutory
scheme of collective bargaining which by definition regulates the management of the base. The union
certification procedure relates most obviously and directly to the sovereign attributes of a foreign state,
which must remain immune from such proceedings.
Lead to case-by-case reasoning
R (1) despite the definition of “commercial activity” in section 2 as one which “by reason of its nature” is
commercial, it is still necessary to consider the purpose of the activity as part of the context which helps
define the true nature of the activity. (2) it was recognized that activities (including the employment
relationship) may be multi-faceted, with sovereign and commercial aspects. (3), where the
“proceedings” relate to both aspects—sovereign and commercial—it is necessary to determine which
aspect the “proceedings” most significantly affect. Immunity, then, depends on the interaction
between the “proceedings” (here a union certification) and an “activity,” or an aspect of it.
See: Jurisdiction; state immunity; commercial activity
Lovell v New Zealand Tourism Board (BC-SC, 1992)
F
I
Is the state acting in a commercial role in a labour dispute? [yes]
does state immunity apply [no]
D decided several months after Re Canada Labour Code, the Supreme
Court of British Columbia applied the reasoning of the majority to
a contract of employment with a New Zealand government agency,
and reached a different conclusion on the facts while applying the
same reasoning
In my view what is in issue in this matter is the enforcement of a
term of an employment contract providing for a severance payment
on the plaintiff's position being declared redundant. I do not
understand, therefore, how the dignity of New Zealand sovereignty
could be affected if this court was to accept jurisdiction in this case.
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I accept the submission of counsel for the plaintiff that the State
Immunity Act cannot in the face of pre-existing common law and
the Supreme Court of Canada's interpretation of the statute be
interpreted so as to offer immunity to the Defendant in the
circumstances of this case. To do so would be an illogical extension
of the concept of sovereign immunity
R Sovereign immunity does not apply to states who breach
employment contracts.
See: sovereign immunity; jurisdiction; commercial activity; employment contracts
Butcher v Saint Lucia (ON-CA, 1999)
F
sovereign aspects of the employment relationship were more clearly
engaged. The government of Saint Lucia offered Butcher the position
of Consul General to Canada but shortly afterward suspended the
appointment as a result of negative media coverage around his
criminal conviction in Canada. Butcher instituted proceedings
against the Prime Minister of Saint Lucia for breach of their
agreement, and Saint Lucia claimed state immunity.
I
Does the waiver of state immunity based on commercial activity
apply [no]
D
R The cases indicate that the commercial activity exception does not
apply to employees holding the status of consul general appointed to
establish a consulate for St. Lucia in Toronto, to be St. Lucia’s
principal representative in Toronto and to be responsible for
carrying on all normal consular activities in Toronto (Butcher).
See: sovereign immunity; jurisdiction; commercial activity
Kuwait Airways Corp v Iraq (SCC, 2010) (p. 356)
F
in the course of the iraqi invasion of kuwait in 1990, the stateowned iraqi airways company (iac) was directed by the iraqi
government to confiscate the airplanes of the plaintiff kuwait
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airways corporation (kac). subsequently, kac obtained a judgment
against iac in the uk courts with respect to the continued retention
and use of the aircraft. The iraqi government was not a party to this
action, but pursuant to the uk’s rules for award of third-party costs,
kac sought and obtained an order for costs against iraq on the
grounds that it had substantially funded and directed iac’s defence
in the litigation. kac then applied to the Quebec superior court for
recognition of the uk order, seeking to enforce it against certain
assets of iraq in canada. The superior court and the Quebec court of
appeal both found that iraq was entitled to immunity, and that the
commercial exception did not apply. kac successfully appealed to
the scc. lebel j, for the court, confirmed the approach taken in Re
Canada Labour Code,
I
Is IrIs Iraq entitled to immunity [yes]; does the commercial exception
apply [no]
D Justice LeBel concludes,
[33]For the purposes of this appeal, therefore, the first step is to
review the nature of the acts in issue in KAC’s action against Iraq
in the English courts in their full context, which includes the
purpose of the acts. It is not enough to determine whether those acts
were authorized or desired by Iraq, or whether they were performed
to preserve certain public interests of that state. The nature of the
acts must be examined carefully to ensure a proper legal
characterization.
[34]To this end, it is necessary to accept the findings of fact made
by Steel J. in the judgment the Quebec court is being asked to
recognize. As I mentioned above, the Quebec court is not to review
the merits of the case. Steel J.’s findings are clear and compelling.
According to him, starting in 1991, Iraq, the sole proprietor of IAC,
its state-owned corporation, had controlled and funded IAC’s
defence throughout the long series of actions for damages brought
against IAC in the English courts by the appellant. Iraq had
participated throughout this commercial litigation in the hope of
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protecting its interests in IAC. In doing so, it was responsible for
numerous acts of forgery, concealing evidence and lies (judgment,
July 16, 2008, at paras. 10‑ 14). These acts misled the English
courts and led to other judicial proceedings, including the one in
issue in the application for enforcement in which Steel J. found
that Iraq was not entitled to state immunity and ordered it to pay
substantial costs.
[35]The Quebec Superior Court and the Quebec Court of Appeal
found that, owing to the nature of Iraq’s acts, state immunity
applies and the commercial activity exception does not. But Steel
J.’s findings of fact lead to a different legal characterization. It is
true that the acts alleged against Iraq that resulted in the litigation
were carried out by a state for the benefit of a state‑ owned
corporation. However, the specific acts in issue here are instead
those performed by Iraq in the course of the proceedings in the
United Kingdom courts. When all is said and done, the subject of
the litigation was the seizure of the aircraft by Iraq. The original
appropriation of the aircraft was a sovereign act, but the subsequent
retention and use of the aircraft by IAC were commercial acts:
Kuwait Airways Corp. v. Iraqi Airways Co. (1995), at p. 711. The
English litigation, in which the respondent intervened to defend
IAC, concerned the retention of the aircraft. There was no
connection between that commercial litigation and the initial
sovereign act of seizing the aircraft. As a result, Iraq could not rely
on the state immunity provided for in s. 3 of the SIA. The
respondent’s exception to dismiss the application for recognition
should have been dismissed. This conclusion means that it will not
be necessary to discuss the issue of immunity from execution raised
at first instance with respect to certain property the respondent
allegedly owns in Montréal.” [emphasis added]
Is the Court’s conclusion that there was “no connection” between the
English commercial litigation and the initial sovereign act of
seizing the aircraft
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R reaffirms the “commercial activity” exception under s. 5 of
Canada’s State Immunity Act based upon the doctrine of restrictive
immunity.
Note that in Jaffe, the Ontario Court of Appeal found that the “allegedly illegal and malicious nature of the
acts” purportedly committed by the officials did not affect the immunity of those officials.
See: sovereign immunity; jurisdiction; commercial activity
NML Capital Ltd v Republic of Argentina, (UK-SC)
F
relates to sovereign bonds issued by the Republic of Argentina
(Argentina) in 2000 pursuant to a Fiscal Agency Agreement (FAA)
with Bankers Trust Company. The terms governing the bonds were
contained in both the FAA and the bonds themselves. Both were
expressly governed by New York law. The FAA contained an express
submission to the jurisdiction of New York courts. The bonds
contained a clause by which Argentina agreed that a final
judgment on the bonds could be enforced in any court which
Argentina is subject to and waived any immunity for that purpose
(the Submission Clause).
In 2001 Argentina declared a moratorium on all its debt and
underwent a large scale sovereign debt restructuring with the
assistance of the IMF and the World Bank. Between June 2001 and
September 2003 NML’s affiliates purchased (at a significant
discount) bonds issued pursuant to the FAA for a total principal
value of US$172,153,000. Instead of taking part in the
restructuring, NML sought a payment of the principal amount of
the bonds and outstanding interest in a Federal Court in New York
and on 11 May 2006 obtained a summary judgment for the total
amount of US$284,184,632.30.
I
Argentina was entitled to claim state immunity in the enforcement
proceedings? [no]
D an action to enforce a US judgment against Argentina involving a
moratorium on payment of that state’s foreign debt, the UK Supreme
Court allowed enforcement of the US judgment on other grounds.419
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The majority held, however, that a request for enforcement of a
foreign judgment was not itself a proceeding related to a commercial
transaction, regardless of whether the original foreign litigation was
related to a commercial activity.
R states cannot claim immunity when facing enforcement in England
of foreign adverse judgments in commercial cases.
Note: The Kuwait Airways case is, of course, distinguished from NML in that the “improbability” is heightened
by one further degree of separation, as the original proceedings which related to the commercial activity were
not lodged against Iraq.
See: sovereign immunity; jurisdiction; commercial activity
Schreiber v Canada (Attorney General)
F
Karlheinz Schreiber brought an action against Canada and
Germany for alleged personal injuries arising from Germany’s
request to extradite him to answer charges of tax evasion and other
offences, and his subsequent arrest and detention (for eight days) in
Canada, and Germany asserted its immunity under the SIA.
I
Does the Canadian Charter apply to search and seizures outside of
Canada [yes]
D The SCC clearly approached the application of section 6 as an
exception to a general rule, both in the SIA and customary law,
providing for immunity, which has implications both for the
burden of proof on the plaintiff (as noted above) and in requiring
exclusion of any matters not falling squarely within the
exception.423 Schreiber claimed that, as a result of his
imprisonment, he suffered damages in the form of mental distress
and damage to his reputation. LeBel J, for the Court, found, first
that lawful imprisonment is not in and of itself an injury to the
person under Canadian law424 and, second, that the words
“personal or bodily injury” 425 in section 6 did not include
mental distress and upset, except where linked to a physical injury.
R The territorial tort exception (allowing persons to sue a state in
another jursidiction), only applies to actual physical injury not
nervous shock.
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See: sovereign immunity; jurisdiction; territorial tort exception
Bouzari v Islamic Republic of Iran (ON-CA, 2004) (p. 360)
F
In 1992, Houshang Bouzari, an Iranian citizen who had moved to
Italy with his wife and children, was to secure a deal between a
consortium of companies, interested in the oil and gas field in Iran
and the National Iranian Oil Company. In June 1993, as a result
of his refusal to accept the assistance of the then Iranian President
for the closing of deal for a commission of $50 million, Iranian
government agents broke into Bouzari’s apartment in Tehran, Iran,
robbed him and abducted him. Bouzari was transferred to a State
prison and held for several months without due process and was
tortured repeatedly.
Around a year later, Bouzari was released and managed to escape
Iran by paying a ransom. After fleeing to Canada in July 1998
Bouzari instituted civil proceedings for damages against Iran
I
Is state immunity waived due to the territorial tort exception? [no]
D Sovereign states are presumptively immune from suit in Canada
unless the case meets one or more exceptions contained in the SIA.7
Bouzari argued for the application of three exceptions to immunity;
the section 18 exception for criminal proceedings; the tort exception
found in section 6 which provides that ‘a foreign state is not
immune from the jurisdiction of a court in any proceedings that
relate to (a) any death or personal or bodily injury, or (b) any
damage to or loss of property’; and the section 5 ‘commercial
activity’ exception. Bouzari also claimed that the SIA must be read
in conformity with Canada's international legal obligations and
that, both by treaty and peremptory norms of customary
international law, Canada is bound to permit a civil remedy
against a foreign state for torture abroad. Specifically, Bouzari
contended that Article 14 of the Convention Against Torture8
required Canada to provide him with the opportunity to seek
redress from his torturers.
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R Canadian law precludes claims against foreign sovereigns for acts
not enumerated in the statute, including torture. Goudge JA
declared that ‘the wording of the SIA must be taken as a complete
answer to this argument. Section 3(1) could not be clearer. To
reiterate, it says: “(1) Except as provided by this Act, a foreign state
is immune from the jurisdiction of any court in Canada.”
Notes: In sum, the Court of Appeal concluded that the SIA occupies the field in this area and that it provides no
exception for torture. Like the Superior Court, the Court of Appeal agreed that the prohibition against torture
constitutes a rule of jus cogens, but held that the norm does not encompass the civil remedy sought by Bouzari.
SCC refused leave to appeal
UN Committee Against Torture (CAT), the international body tasked with monitoring implementation of the
treaty, expressed concern at Canada's failure to provide a civil remedy through the domestic judiciary for all
victims of torture.
See: sovereign immunity; jurisdiction; territorial tort exception, jus cogens; human rights; convention against
torture
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)
(ICJ, 2012) (p. 363)
F
italian courts had allowed actions against germany by plaintiffs
who had been subjected to violations of international
humanitarian law (including forced labour) during the second
World War, had registered for enforcement judgments obtained
against germany in greece by greek nationals with regard to
massacres that occurred during the war, and had taken measures of
constraint against german state property in italy. germany brought
this action before the icj to claim that italy had by these assertions
of jurisdiction violated germany’s entitlement at international law
to state immunity. The icj first rejected the italian argument that
the “territorial tort” exception (that is, no immunity for torts
committed on the territory of the state) applied on these facts, as it
is inapplicable to actions committed by armed forces and other state
organs in the course of armed conflict (paragraph 78). The court
went on to consider italian arguments that denial of immunity is
justified by grave violations of international law and additionally
by violations of jus cogens.
I
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Is Italy forced to recognize german state immunity [Yes]
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D By a vote of 12 to 3, the court rejected both proposed exceptions to
the doctrine of state immunity put forward by Italy.[9]
First, the court rejected a theory of "territorial tort," in which Italy
would be entitled to ignore immunity because torts were committed
on Italian territory.[10] The court analyzed this exception within
the narrow confines of the facts of the case: here the torts were
committed by an armed force during armed hostilities. The court
noted that while the general territorial tort certainly has support
for jure gestionus, or commercial activities of state, it is clear that
such a tort is not meant to apply to armed forces engaged in an
armed conflict. The court cited the European Convention on State
Immunity, the United Nations Convention on Jurisdictional
Immunities of States and Their Property, and the state practice of a
number of countries to establish that there was little support for
extending the territorial tort as far as Italy proposed.
Second, the court rejected a more expansive exception to state
immunity, under which immunity would be lost if serious human
rights violations were alleged and no reparations were forthcoming.
Italy advanced three "strands" to this argument: first, Italy argued
that the gravity of the violations required elimination of state
immunity; second, that to not eliminate state immunity would
effectively derogate from a peremptory, or jus cogens norm; and
third, that immunity was lost because the claimants had no other
means of redress.[11] Italy also argued that these three strands, if
not each independently sufficient to warrant a loss of immunity,
were sufficient when combined together.
Finally, having rejected the strands of Italy's argument
individually, the Court rejected their aggregate as well, specifying
that immunity could not be based on a substantive balancing test
applied by national courts.[20] After finding that Italy was obliged
to grant Germany immunity before Italian courts, the Court found
that the petition for enforcement of a Greek judgment (application
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for exequatur) was subject to the same rules and should likewise
have been denied due to immunity.
R Upholding of sovereign immunity; denial of territorial tort
exception
See: sovereign immunity; jurisdiction; territorial tor exceptions; jus cogens
Islamic Republic of Iran c Hashemi (QCCA, 2012)
F
an action by the estate of Zahara Kazemi and her son Stephan
Hashemi arising from the alleged torture and murder of Ms. Kazemi
(a dual citizen of Canada and Iran) and injuries to her son in
Canada
I
Is iran immune under the sovereign immunity act? [yes]
D Upheld Bouzari view on torture abroad.
The Court of Appeal in Hashemi also returned to the issue of what
constitutes a “personal or bodily injury” for the purposes of section
6(a) of the SIA, and followed Schreiber in concluding that
“allegations of a breach of physical integrity, not simply
psychological or psychic integrity, are a prerequisite if a claim is to
survive an exception to dismiss under the SIA.”
The Quebec Court of Appeal held that s. 3 of the SIA is a complete
codification of state immunity and exceptions thereto:
“[42]
The Estate and some of the interveners invite us not to
adopt the interpretation of s. 3(1) the SIA which the Court of
Appeal for Ontario favoured in Bouzari v. Islamic Republic of
Iran.[15] In my view, what Goudge J.A. wrote on behalf of the Court
in paragraphs [56] to [59] of his reasons is entirely apposite – in
fact, it coincides with most of the preceding observations on the SIA.
I therefore see no reason to depart from his reasoning: the exceptions
to state immunity in Canadian positive law are those set out in the
SIA, not in some remnant of a hypothetical common law doctrine
that would coexist with the Act, or in some rule of customary
international law that might modulate the interpretation of a
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statutory phrase which in fact is in no need of interpretation. Such
a rule of customary international law, if it existed, could easily
have been integrated in the SIA by a legislative amendment but
Parliament did not do so.
Citing with approval the recent judgment of the International
Court of Justice (“ICJ”) in Jurisdictional Immunities of the State
(Germany v. Italy: Greece Intervening Quebec Court of Appeal noted
a lack of connection between the jus cogens doctrine and state
immunity and held:
[55]
In my respectful opinion, this judgment of the ICJ
provides a conclusive refutation of the arguments against
jurisdictional immunity which several parties in this case based on
customary international law and on a jus cogens protection of
human rights.
R upheld state immunity for torture of Canadian citizens abroad.
Notes follows: Bouzari; in Jurisdictional Immunities of the State (Germany
v. Italy
See: sovereign immunity; jurisdiction; territorial tor exceptions; jus cogens; torture
Steen v Islamic Republic of Iran (ON-CA, 2013)
F
Between 1982 and 1988, Iran directed the kidnapping and
detention of 18 American citizens in Beirut, Lebanon, for the
purpose of collecting a ransom. Steen and Jacobson were two of the
individuals kidnapped. The appellants (Steen and his wife and
Jacobsen’s children and sister) sued the respondents, Islamic
Republic of Iran, Iranian Ministry of Information and Security,
and Iranian Revolutionary Guard, in two separate actions the
United States District Court for the District of Columbia for
damages. The respondents did not appear. The court awarded
judgments of US$342,750,000 and US$6,400,000 against the
respondents. The appellants commenced an action in Ontario
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seeking to enforce the judgments.
I
Does the sovereign immunity act apply barring action? [yes]
D The Ontario Superior Court, in a decision reported at [2011] O.T.C.
Uned. 6464, granted the respondents’ motion on the basis that the
SIA barred the appellants’ claim for enforcement of the American
judgments. The court held that kidnapping and detention did not
constitute “commercial activity” under the SIA and the exception
under s. 5 did not apply. The court also concluded that the SIA was
a complete code that permitted no common law exceptions. Despite
the respondents’ success on the motion, the appellants were awarded
costs of $70,000.
I would dismiss the appeal without prejudice to the appellants’
right to take the appropriate steps to have their judgments
recognized by the Superior Court pursuant to the new legislative
regime under the JVTA and the SIA referred to above….
R Commercial activities exception to sovereign immunity recognized
as the only exception to the SIA. However passing of the JVTA
introduced the terrorism likely to be successful
While this case was waiting for appeal the
, the Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s. 2 (the “JVTA”), came into force on March 13, 2012.
Section 4(5) of the JVTA provides:
A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the
criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or
damage [as a result of terrorist acts that would be punishable under Part II.1 of the Criminal Code]. However, if
the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of
the State Immunity Act for the judgment to be recognized.
Concomitantly, the SIA was amended to provide for a list of countries that would “not [be] immune from the
jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985”: SIA, s.
6.1(1). On September 7, 2012 – after this appeal had been heard – the Governor General in Council established
the list of countries, which includes the Islamic Republic of Iran: Order Establishing a List of Foreign State
Supporters of Terrorism, SOR/2012-170, s. 2.
See: sovereign immunity; jurisdiction; terrorism exception
OTHER LEGAL PERSONS

Although states are the prototypes of international legal persons, international law does not prevent
other entities from acquiring a measure of personality. In order to do so, a candidate’s claim to
exercise legal personality must be respected by other international persons— that is, by the existing
community of states.

Chief candidates are: international organizations, individuals, and “peoples seeking self-
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determination.” Brief consideration is also given below to international nongovernmental
organizations and transnational corporations.
International Organizations

refer to intergovernmental organizations (as opposed to NGOs) of an international character. The
distinctive characteristic—the formation of the international entity through the joint action of two or
more states—is essential to an understanding of the legal personality and capacities of the entity in
question, in that only states, not individuals, have the capacity to endow organizations with a degree
of international legal personality, whether by treaty or some other arrangement.

The diversity interests/activities, coupled with wide variations in scope (regional and global), structure,
and powers, makes it impossible to identify one all-encompassing model that explains the legal
personality of such organizations.
o In general, one must look first to the treaty by which the organization was created, which
will frequently endow the organization with a measure of legal personality both
internationally and within the territories of the member states, as well as specifying
such matters as the privileges and immunities attributable to the organization.
o Reference to the treaty alone may not, however, provide a sufficient answer in every
case; as the International Court of Justice (ICJ) emphasized in the Reparations Case, the
legal personality of an organization may also be implied by the functions the
organization is required to serve.
 Case study: the United Nations
o Organs and Agencies of the UN
 General Assembly - consists of all the member states of the UN, with each
having one vote, and has six main committees, as well as a number of
commissions and programs that report to it. With the exception of some
specific functions for which it may make binding decisions, the Assembly is “a
deliberative organ which proceeds via recommendation rather than binding
decision
 Thus any attempt to draw analogies with a national assembly,
parliament or legislature is misleading
 Security Council - comprises five permanent members (China, France, Russia,
the United States, and the United Kingdom), and ten other members elected
by the General Assembly
 The permanent members each exercise a veto with respect to any nonprocedural matters (article 27(2)), which has at times impeded the
Council from acting forcefully in any matter that affects the interests
of any of those members
 it is the Council that can make decisions that are of binding legal effect
on members under article 25
 it is the Security Council that is assigned the primary responsibility for
the maintenance of international peace and security (article 24(1))
o The Council’s role in this regard may be broadly summarized as
encompassing the pacific settlement of disputes (Chapter VI),
coercive enforcement actions (Chapter VII), whether by armed
force or other means, and other measures, including the
deployment of peacekeeping missions and the establishment
of ad hoc international criminal tribunals as subsidiary organs.
 Where the Security Council determines that article 41 measures (no
use of armed forces) “would be inadequate or have proved to be
inadequate,” then it may “take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and
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security
Economic and Social Council (ECOSOC) - the general mandate to advance the
UN’s work on economic, social, and cultural matters, including human rights,
and carries out this mandate through a number of functional and regional
commissions
 Secretariat
 ICJ
 Trusteeship Council - completed its work in 1994 with the independence of
Palau, the last of the Trust Territories, and is now defunct.
 In addition to the principal organs and their subsidiary bodies, the UN also
encompasses a number of important specialized agencies (such as the Food
and Agricultural Organization [FAO] and the International Labour Organization
[ILO])
 See Namibia Case
Charter of the United Nations
Article 1 – the UN was founded to to maintain international peace and security, including the taking of
collective action “for the prevention and removal of threats to the peace” and suppression of aggression; to
bring about the settlement of international disputes by peaceful means; to “develop friendly relations
among nations” based on principles of “equal rights and self-determination of peoples;” and to cooperate in
addressing “economic, social, cultural, or humanitarian” problems and in “encouraging respect for human
rights and for fundamental freedoms.”
Article 2 - The fundamental principles which are to guide the Organization and members include respect for
the principles of sovereignty and equality, and a commitment to settle disputes in a peaceful manner and to
refrain from “the threat or use of force against the territorial integrity or political independence of any
state.”
Article 7 - The UN is composed of six principal organs: the General Assembly, the Security Council, the
Economic and Social Council (ECOSOC), the Secretariat, the ICJ, and a Trusteeship Council. Subsidiary
organs may be established under the terms of the Charter, and the Assembly, the Security Council and
ECOSOC all have such subsidiary bodies.
Article 24(1) - the Security Council that is assigned the primary responsibility for the maintenance of
international peace and security. Through pacific settlement of disputes (Chapter VI);
Article 25 - The Security Council that can make decisions that are of binding legal effect on members
Article 27(2) - The permanent members of the Security Council each exercise a veto with respect to any nonprocedural matters; coercive enforcement actions (Chapter VII),
Article 34 - the Security Council has the power to investigate “any situation which might lead to
international friction or give rise to a dispute
Article 36(1) - the Security Council may, “at any stage of a dispute” that may endanger peace and security,
recommend “appropriate procedures or methods of adjustment
Article 37 – Security Council can recommend actual “terms of settlement as it may consider appropriate”
Article 41 - the Council may decide on measures “not involving the use of armed force” to give effect to its
decisions, and “call upon the Members” to apply them. These measures can include severance of diplomatic
communications and interruption of transport and communications, but most commonly involve economic
sanctions.
Article 71 - the Economic and Social Council may grant consultative status to NGOs
Article 104 - the UN “shall enjoy in the territory of each of its Members such legal capacity as may be
necessary for the exercise of its functions and the fulfilment of its purposes

Namibia Case legal consequences for states of the continued presence of south africa
in namibia (south-West Africa) (ICJ, 1970) (p. 120)
F
83
following resolution 2145 (XXi), in which the general assembly terminated south africa’s mandate, the
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I
D
security council called upon south africa to withdraw from namibia. south africa failed to do this and so
the security council passed resolution 276 (1970)170 in which it declared that south africa’s presence in
namibia was illegal and its actions there were invalid. The security council further requested an advisory
opinion from the icj
“What are the legal consequences for states of the continued presence of south africa in namibia,
notwithstanding security council resolution 276 (1970)?”
HOLDING AND DECISION: Yes. Mandates adopted by the United Nations are binding upon all Member
States, and violations or breaches result in a legal obligation on the part ,of the violator to rectify the
violation and upon the other Member States to recognize the conduct as a violation and to refuse to aid
in such violation. The Member States have assumed an obligation to keep intact and preserve the rights
of other States and the people in them. When a party to the Mandate giving rise to this obligation fails
to fulfill its own obligations under it, that party cannot be recognized as retaining the rights that it
claims to derive from the relationship. The General Assembly found that South Africa (D) was in
material breach of the Mandate because of deliberate and persistent violations of it by occupying
Namibia. The Assembly has the right to terminate the Mandate with respect to a violating Member
State, which was accomplished by resolution 2145 (XXI) in this case. The decisions and resolutions of the
Security Council in enforcing such termination are binding upon all Member States, regardless of how
they voted on the measure when adopted. South Africa (D) is thus subject to the Mandate, the
resolution terminating it as to South Africa (D), and the enforcement procedures of the Security
Council. South Africa’s (D) illegal action gives rise to an obligation to put the violative conduct to an end.
Mandates adopted by the United Nations are binding upon all Member States and violations or
breaches result in legal obligations on the part of the violator to rectify the violation, and upon the other
Member States to recognize the conduct as a violation and to refuse to aid in such violation.
Analysis:
South Africa (D) did not restore independence to Namibia despite agreeing to do so with the United
Nations The General Assembly adopted a number of resolutions imposing mandatory sanctions for
enforcement South Africa [D) was "strongly condemned" for its actions.
R mandates adopted by the UN are binding upon all member states, and violations or breaches result in a
legal obligation on the part of the violater to rectify the violation and upon the other member states to
recognize the conduct as a violation and refuse to aid in such violation.
See: UN mandates; binding nature; non-compliance; International organization status; other legal persons;
international legal personality
Reparations Case (ICJ, 1949) (p. 124)
F
I
D
84
in 1948, count bernadotte, a swedish national and the un mediator in palestine, was killed in jerusalem,
which was in israeli possession. at that time israel was not yet a member of the un. before commencing
an action for compensation against israel, the general assembly asked the icj for an opinion about the
legal capacity of the organization to bring the claim.
in the event of an agent of the united nations in the performance of his duties suffering injury in
circumstances involving the responsibility of a state, has the united nations, as an organization, the
capacity to bring an international claim against the responsible de jure or de facto government with a
view to obtaining the reparation due in respect of the damage caused (a) to the united nations, (b) to
the victim or to persons entitled through him?
the court has come to the conclusion that the organization is an international person.
The first is that the defendant state has broken an obligation towards the national state in respect of its
nationals. The second is that only the party to whom an international obligation is due can bring a claim
in respect of its breach. This is precisely what happens when the organization, in bringing a claim for
damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the
rule of the nationality of claims affords no reason against recognizing that the organization has the right
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to bring a claim for the damage
in order that the agent may perform his duties satisfactorily, he must feel that his protection is assured
to him by the organization, and that he may count on it. to ensure the independence of the agent, and,
consequently, the independent action of the organization itself, it is essential that in performing his
duties he need not have to rely on any other protection than that of the organization
Why is the UN a plaintiff? – A UN employ/agent was involved
Traditional view. If your national was hurt by the act of another state, you can claim you as a state
suffered an injury. But the UN Is not a state, how can the UN make a claim? A UN employ/agent was
involved. UN agent assassinated. This injury makes it hard for the UN to carry out its duties since no one
will want to step into the shoes of an assassinated coworker.
Must make a link between UN employees actions and the obligation Israel owes the UN
Refer to the functions of the UN and conclude states must have wanted UN operatives in dangerous
territory protected.
UN cannot operate in a world, where non-member states refuse to recognize its authority (as Israel was
not a member at the time). Thus UN does have an international legal personality which allows it to be
opposable to non-member states (third parties)
accordingly, the court arrives at the conclusion that an affirmative answer should be given to Question i
(a) and (b) whether or not the defendant state is a member of the united nations.
R
See: International organization status; other legal persons; international legal personality
Notes: In class analysis, what if this occurred between Sweden and Israel? Could this work? Consider injury
(for UN death of employee) and Obligation (UN to Israel). If it were Sweden, we could say Sweden lost a
citizen, that's enough to bring a claim. The UN had to go one step further, since it doesn’t have citizens it
must show addition obligations owed.
Non-Governmental Organizations
 they do not possess even the limited legal personality of their intergovernmental cousins.
 Although they have not been accorded any official authority by governments, many of the larger
structured NGOs also make and apply rules and standards for their fields of concern that are
accepted generally as the international norms of conduct in those areas of endeavor
 The status of NGOs at international law has been recognized, to a degree, by the UN Charter, article
71. It provides that the Economic and Social Council may grant consultative status to NGOs, and
several hundred of them have accepted it.
 Consultative status typically permits the NGO to send representatives to meetings as observers, to
submit written materials for circulation as UN documents, and to use the services provided by the
Secretariat
 The contribution of NGOs to law-making, and to some extent to monitoring the compliance of states
with international law, has flourished noticeably since the UN Conference on Environment and
Development (UNCED) in 1992. Even more significantly, at the Rome Conference to establish the
International Criminal Court in 1998 the coalitions of accredited NGOs had a signal influence on the
contents and the conclusion of the Statute,
Transnational Corporations
 Three categories:
o government corporations - “wholly or largely government owned and with greater or lesser
freedom from direct governmental control.” Apart from the implications of this status for
such questions as sovereign immunity, there may be occasions on which such entities
“engage in international transactions at the behest of government policy.”
o Intergovernmental corporations “may bring together a number of governments, and
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o
possibly private enterprises also, for functions such as the creation or servicing of public
utilities—for example, the building of a tunnel under the English Channel, or the
organization of an airline, or for the development of natural resources,” and may give rise to
international law implications through the agreements that establish them
non-governmental corporations, - “importance of private corporate activities to the
international legal system is yet to be accommodated in legal theory, which still equates
them with the individual.”
 No civil body of transnational law by which to regulate these corporations.
 NCs [transnational corporations] have limited rights and responsibilities, such as
the right to sue and be sued, the ability to assert a right, and the acceptance of
legal responsibility in judicial forums, but not have the status of a party to
intergovernmental forums and international instruments
 The ability of corporations to bring claims before international tribunals, even
though it may be dependent on interstate obligations, nonetheless constitutes a
significant example of these entities being accorded some level of legal status
under international law:
 For example, a treaty created under the World Bank enables corporations to
submit disputes to binding arbitration by the International Centre for the
Settlement of Investment Disputes. And under NAFTA
UN Sub-Commission on the Promotion and Protection of Human Rights approved the
Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights (2003) (p. 147)
article 1 the general obligations for states, which retain the “primary responsibility” to
promote and secure human rights, and corporations, which, within their sphere, “have the
obligation to promote, secure the fulfilment of, respect, ensure respect of and protect
human rights recognized in international as well as national law, including the rights and
interests of indigenous peoples and other vulnerable groups
Individuals
 In the area of protection of human rights the individual has attained standing before some
international bodies, beginning with recognition of the procedural capacity of the individual
 With respect to obligations created and imposed by international law, individuals have had legal
status for a longer period of time. Especially since the war crimes trials after the Second World War,
it is without controversy that individuals can be prosecuted for criminal violations of international
customary or conventional law.
HUMAN RIGHTS
 If the UN Charter heralded a major step in the development of international human rights law, the
Universal Declaration commenced a second stage in the process
 After 18 years of debate, states finally accepted three instruments that elaborated on the rights in the
Universal Declaration: the International Covenant on Civil and Political Rights (ICCPR),6 the
International Covenant on Economic, Social and Cultural Rights (ICESCR),7 and an Optional Protocol to
the Covenant on Civil and Political Rights.8 The last treaty grants individuals the right to petition the UN
Human Rights Committee if they believe that a state that has ratified the Protocol has violated their
rights under the ICCPR.
 Owing to the continued resistance of states to incur duties in what was previously their reserved domain,
it took another decade to obtain the 35 ratifications needed for the Covenants to enter into force.
 There are now 193 states parties to the UN Charter, compared with 168 parties to the ICCPR, for
example
 Human rights are in some respects distinct from most international law, particularly in that they seek to
govern the relations of a state and individuals under its control rather than interstate relations.
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o
Ex. Toonen v Australia
 In the Toonen case, the petitioner’s communication related primarily to statutory
provisions and statements by Tasmanian officials. There is no “international” element
to this complaint, in the sense that all facts took place within Australian territory and
involved only the Australian state and its nationals.
 Drittwirkung (literally “effect on third parties”) of human rights norms—that is, their applicability to
inter-individual relations.
o international human rights norms were framed essentially as a bulwark protecting individuals
against abuses originating in the state
o Feminist critiques of human rights have denounced such a construction of human rights as
flawed, because it closes the door to invoking human rights norms against such widespread evil
as domestic abuse, which is much more likely to affect women’s enjoyment of basic rights than
state violations. They also argue that this position reinforces the artificial public/private
dichotomy
o The issue of the horizontal application of human rights arises not only in private but also in the
public sphere. In particular, corporations are one type of actor that can effectively wield
considerable power over individuals and communities
 Ex. Presbyterian Church of the Sudan v Talisman Energy
 The United Nations has articulated the human rights implications for corporations in its
Guiding Principles on Business and Human Rights adopted in 2011 by the Human Rights
Council.
 state responsibility stands as the central pillar of human rights law. All norms are
articulated in terms of the possible responsibility of a state for not complying with its
obligations, with a role for individual criminal responsibility limited chiefly to mass
atrocities like genocide, crimes against humanity, and war crimes
Charter of the United Nations
Preamble
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other
sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
to practice tolerance and live together in peace with one another as good neighbours, and
to unite our strength to maintain international peace and security, and
to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used,
save in the common interest, and
to employ international machinery for the promotion of the economic and social advancement of all
peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco,
who have exhibited their full powers found to be in good and due form, have agreed to the present Charter
of the United Nations and do hereby establish an international organization to be known as the United
Nations.
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
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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 selfdetermination 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.
. 6. 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.
Article 8
The United Nations shall place no restrictions on the eligibility of men and women to participate in any
capacity and under conditions of equality in its principal and subsidiary organs.
Article 13
1. The General Assembly shall initiate studies and make recommendations for the purpose of: a. promoting
international co-operation in the political field and encouraging the progressive development of
international law and its codification; b. promoting international co-operation in the economic, social,
cultural, educational, and health fields, and assisting in the realization of human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.
2. The further responsibilities, functions and powers of the General Assembly with respect to matters
mentioned in paragraph 1 (b) above are set forth in Chapters IX and X.
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 self-determination of
peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and
development;
b. solutions of international economic, social, health, and related problems; and international cultural
and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without
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distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the Organization for
the achievement of the purposes set forth in Article 55.
Article 62 - Functions and Powers
1 .The Economic and Social Council may make or initiate studies and reports with respect to international
economic, social, cultural, educational, health, and related matters and may make recommendations with
respect to any such matters to the General Assembly to the Members of the United Nations, and to the
specialized agencies concerned.
2. It may make recommendations for the purpose of promoting respect for, and observance of, human rights
and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with respect to matters falling
within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations, international conferences on
matters falling within its competence.
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.
Article 74
Members of the United Nations also agree that their policy in respect of the territories to which this Chapter
applies, no less than in respect of their metropolitan areas, must be based on the general principle of goodneighbourliness, due account being taken of the interests and well-being of the rest of the world, in social,
economic, and commercial matters.
Article 76
The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid
down in Article 1 of the present Charter, shall be:
a. to further international peace and security;
b. to promote the political, economic, social, and educational advancement of the inhabitants of the
trust territories, and their progressive development towards self-government or independence as may
be appropriate to the particular circumstances of each territory and its peoples and the freely
expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship
agreement;
c. to encourage respect for human rights and for fundamental freedoms for all without distinction as
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to race, sex, language, or religion, and to encourage recognition of the interdependence of the
peoples of the world; and
d. to ensure equal treatment in social, economic, and commercial matters for all Members of the
United Nations and their nationals, and also equal treatment for the latter in the administration of
justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions
of Article 80.
Universal Declaration of Human Rights
Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been proclaimed as the highest aspiration of the common
people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human
rights, in the dignity and worth of the human person and in the equal rights of men and women and have
determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full
realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples
and all nations, to the end that every individual and every organ of society, keeping this Declaration
constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms
and by progressive measures, national and international, to secure their universal and effective recognition
and observance, both among the peoples of Member States themselves and among the peoples of
territories under their jurisdiction.
Article I
All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of
the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
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Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are
entitled to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in
the determination of his rights and obligations and of any criminal charge against him.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute
a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the protection of the law against such
interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to
marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its
dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State.
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in community with others and in public or private, to
manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions
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without interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Article 21
1. Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote
or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his dignity and the free development of
his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work
and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family
an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic
holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the activities of the United Nations
for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this
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Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the general welfare in
a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set
forth herein.
Toonen v Australia (UN HRC Communication, 1994) (p. 580)
F
nicholas toonen was an australian national and gay rights activist
living in the state of tasmania. He petitioned the Human rights
committee seeking a declaration that two provisions of the
tasmanian Criminal Code prohibiting “unnatural sexual
intercourse” (section 122) and “indecent practice between male
persons” (section 123) contravened articles 2(1), 17, and 26 of the
iccpr (reproduced in the documentary supplement). He alleged that
he and other homosexuals and lesbians in tasmania had been the
victims of a campaign of official and unofficial hatred. The
australian government, as the state party, forwarded the arguments
of the tasmanian state government while disputing the validity of
many of them. The Human rights committee deemed the
communication admissible and proceeded to examine the merits of
the petition.
I
(1) Has Mr. Toonen has been the victim of an unlawful or arbitrary
interference with his privacy? [yes] (2) Has he been discriminated
against in his right to equal protection of the law? [after 1 is found,
2 is irrelevant]
D it is undisputed that adult consensual sexual activity in private is
covered by the concept of “privacy,” and that mr. toonen is actually
and currently affected by the continued existence of the tasmanian
laws. The committee considers that sections 122(a), (c) and 123 of
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the tasmanian criminal code “interfere” with the author’s privacy,
even if these provisions have not been enforced for a decade. in this
context, it notes that the policy of the department of public
prosecutions not to initiate criminal proceedings in respect of
private homosexual conduct does not amount to a guarantee that no
actions will be brought against homosexuals in the future.
With regards to arbitrariness: The committee interprets the
requirement of reasonableness to imply that any interference with
privacy must be proportional to the end sought and be necessary in
the circumstances of any given case.
the committee notes that the criminalization of homosexual
practices cannot be considered a reasonable means or proportionate
measure to achieve the aim of preventing the spread of aids/Hiv.
since the committee has found a violation of mr. toonen’s rights
under articles 17(1) and 2(1) of the covenant requiring the repeal
of the offending law, the committee does not consider it necessary to
consider whether there has also been a violation of article 26 of the
covenant.
R Although the principle of non-intervention in the internal affairs
of other states is reaffirmed in article 2(7) of the UN Charter,
human rights have now carved a very significant exception to that
rule, placing issues of respect for fundamental rights such as those
raised in Toonen squarely within the confines of international
concern.
See: human rights; UN Charter; principle of non intervention
Advisory Opinion on the Effect of Reservations on the Entry into Force of the American Convention on
Human Rights (Inter-American Court of Human Rights, 1982)
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modern human rights treaties in general, and the American Convention in particular, are not
multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights
for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic
rights of individual human beings irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these human rights treaties, the States can be
deemed to submit themselves to a legal order within which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals within their jurisdiction.
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Human rights impose on states obligations erga omnes, i.e. “towards all,” meaning they do not involve
the creation of multiple bilateral relations between all state parties, similar to, for example, trade
conventions. Because the international community as a whole has an interest in the state’s nonreciprocal undertaking to respect human rights, all states bound by the same norm as well as
institutions like the Human Rights Committee can be said to have a legal interest.
R
See: human rights
Presbyterian Church of the Sudan v Talisman Energy (SDNY, 2003)
F In 2001 the Presbyterian Church of Sudan filed a lawsuit against the Canadian oil and gas producer,
Talisman Energy, under the US Alien Tort Claims Act, which provides US courts with original jurisdiction
over certain tort claims filed by aliens. In the suit, it was claimed that Talisman aided the Government of
Sudan in the commission of genocide, war crimes and crimes against humanity. According to the claim,
Talisman worked alongside the Sudanese Government in the creation of buffer zones around certain oil
fields, which effectively assisted human rights violations and the perpetration of international crimes in
order to gain access to oil by displacing the population living in the areas around the oil fields and
attacking their villages.
I
Can corporations be held liable for breaching jus cogens norms
D he District Court of New York dismissed the claim on 12 September 2006. On 3 October 2009, the
decision was affirmed by the US Court of Appeals for the Second Circuit. The Court of Appeals held
that, due to previous case law, it had to look at international law to decide what standard was applicable
to establishing aiding and abetting liability for human rights violations. Turning to international law, the
Court held that purposefully intending the violations, rather than knowledge of the violations alone,
was the applicable standard. So, in order to determine liability under the Alien Tort Claims Act the
plaintiffs must show that “Talisman acted with the “purpose” to advance the Government’s human
rights abuses.” The Court held that the claimants had failed to establish that Talisman “acted with the
purpose to support the Government’s offences”.
“[g]iven that private individuals are liable for violations of international law in certain circumstances,
there is no logical reason why corporations should not be held liable, at least in cases of jus cogens
violations.”
R Court acknowledgement that corporations can be held liable for breaching jus cogens norms, however
the standard under the US Alien Tort Claims Act is to show the MNC acted wit ‘purpose’ noe just
knowledge of the violations.
See: human rights; MNC obligations; jus cogens
F
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Velásquez Rodríguez Case (Inter-am CT HR, 1988) (p. 584)
petitioners presented a claim against Honduras following the disappearance of a number of students
after their abduction by seven armed men dressed in civilian clothing and using an unlicensed car.
although the petitioners could not categorically prove the involvement of state agents, the court
nevertheless found Honduras responsible on the basis of the state’s duty not only to “respect” but also
to “ensure” rights, found in article 1(1) of the american convention on Human rights (acHr).]
Burden of proof in human rights disappearce claims [see ratio]
The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a
legal system designed to make it possible to comply with this obligation—it also requires the
government to conduct itself so as to effectively ensure the free and full exercise of human rights. …
an illegal act which violates human rights and which is initially not directly imputable to a state (for
example, because it is the act of a private person or because the person responsible has not been
identified) can lead to international responsibility of the state, not because of the act itself, but because
of the lack of due diligence to prevent the violation or to respond to it as required by the convention. …
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The state is obligated to investigate every situation involving a violation of the rights protected by the
convention. if the state apparatus acts in such a way that the violation goes unpunished and the victim’s
full enjoyment of such rights is not restored as soon as possible, the state has failed to comply with its
duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is
true when the state allows private persons or groups to act freely and with impunity to the detriment of
the rights recognized by the convention.
in the instant case, the evidence shows a complete inability of the procedures of the state of Honduras,
which were theoretically adequate, to carry out an investigation into the disappearance of manfredo
velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible, as set
out in article 1(1) of the convention.
R After concluding a pattern or practice existed and was "supported or tolerated" by the government, the
IACHR stated that if the applicant could link the disappearance of a particular individual to that practice,
then the "disappearance of [a] particular individual [could] be proved through circumstantial or indirect
evidence or by logical inference." The value of the IACHR's holding is significant because it lowers the
burden of proof for an individual to establish that a forced disappearance occurred. This lowering of the
evidentiary burden increases the likelihood of success on the merits.
See: human rights; state obligations
Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (African
commission on Human and peoples’ rights, 2001) (p. 586)
F The petitioners alleged that the military government of nigeria had allowed an oil consortium to exploit
oil reserves in ogoniland with no regard for the health or environment of the local communities,
disposing toxic wastes into the environment and local waterways in violation of applicable international
environmental standards. The consortium also neglected and/or failed to maintain its facilities causing
numerous avoidable spills in the proximity of villages. The resulting contamination of water, soil, and air
has had serious short- and long-term health impacts for the ogoni people. The petition further alleged
that the nigerian army had directly participated in human rights violations.
I
What human rights obligations do states owe citzens [respect, promote, fulfill]
D obligations engendered by human rights generate at least four levels of duties for a state that
undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these
rights.
 respect entails that the state should refrain from interfering in the enjoyment of all fundamental
rights; it should respect rightholders, their freedoms, autonomy, resources, and liberty of their
action.
 protect right-holders against other subjects by legislation and provision of effective remedies.
This obligation requires the state to take measures to protect beneficiaries of the protected
rights against political, economic and social interferences.
 promote the enjoyment of all human rights. The state should make sure that individuals are able
to exercise their rights and freedoms
 fulfil the rights and freedoms it freely undertook under the various human rights regimes. it is
more of a positive expectation on the part of the state to move its machinery towards the
actual realisation of the rights. This is also very much intertwined with the duty to promote
R obligations engendered by human rights generate at least four levels of duties for a state that
undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these
rights.
See: human rights; state obligations;
Self-Determination
 groups of people around the world assert collective rights
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
in Canada over the years have made it abundantly clear that First Nations, Metis, and Québécois, for
example, consider they have a right to self-determination, that is, a right to choose how they wish to be
governed.
 In the international context, it must be asked whether the principle of self-determination of peoples has
achieved the status of a rule of customary international law or even jus cogens and what legal
personality pertains to groups seeking to exercise the right.
 In UN practice, the right to self-determination was the basis for the decolonization of dependent
territories during the 1960s and 1970s, but this experience did not settle its wider application outside the
colonial context.
 Impetus was given to its advancement as a legal right by inclusion in the UN Charter, where it is referred
to but not defined, and in other resolutions, declarations and jurisprudence—moreover, it has been
nurtured by the same movement that has supported the development of individual human rights.
o See UN Charter Article’s: 1, 2, 55, 73
 External self-determination can be defined as in the following statement from the Declaration on
Friendly Relations (referenced in Quebec Secession Reference):
o T he establishment of a sovereign and independent state, the free association or integration
with an independent state or the emergence into any other political status freely determined by
a people constitute modes of implementing the right of self-determination by that people.
o Internal self-determination occurs with a people’s pursuit of its political, economic, social and
cultural development within the framework of an existing state.
Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) (p. 131)
The General Assembly … Declares that: 1. The subjection of peoples to alien subjugation, domination and
exploitation constitutes a denial of fundamental human rights, is contrary to the charter of the united
nations and is an impediment to the promotion of world peace and co-operation. 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
education preparedness should never serve as a pretext for delaying independence.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations (1970)
Fifth Principle
Every State has the duty to refrain from the threat or use of force to violate the existing international
boundaries of another State or as a means of solving international disputes, including territorial disputes and
problems concerning frontiers of States.
International Covenant on Civil and Political Rights (ICCPR) – UNCTAD (1976)
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice
to any obligations arising out of international economic co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of
Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Definition of Aggression - United Nations General Assembly Resolution 3314
Article 7
Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-
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determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that
right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under
colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to
that end and to seek and receive support, in accordance with the principles of the Charter and in conformity
with the above-mentioned Declaration.
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[East Timor] Western Sahara Case [Advisory Opinion] (ICJ, 1975) (p. 132)
Western sahara had been a colony of spain since 1884. its population was mostly nomads. its assets lie
in phosphates. in 1966, the general assembly of the un invited spain to decolonize on the basis of
resolution 1514 and asked spain in resolution 2229 to consult with neighbouring mauritania and
morocco to determine procedures for holding a referendum under the auspices of the un. spain agreed
to hold a referendum in 1975. at that time, morocco under king Hassan claimed the territory based on a
“historic title” that predated spain’s acquisition. mauritania did the same. at the behest of morocco and
mauritania, the general assembly sought an advisory opinion in 1974 as to the status of the territory. in
the course of its opinion the court addressed the issue of self-determination.
Is there a right to self determination?
General assembly resolution 1514 (Xv) provided the basis for the process of decolonization which
resulted in the creation of many states which are today members of the un. it is complemented in
certain of its aspects by general assembly resolution 1541 (Xv), which has been invoked in the present
proceedings. The latter resolution contemplates for non-self governing territories more than one
possibility, namely:
(a) emergence as a sovereign independent state;
(b) free association with an independent state; or
(c) integration with an independent state.
principle vii of resolution 1541 (Xv) declares that: “free association should be the result of a free and
voluntary choice by the peoples of the territory concerned expressed through informed and democratic
processes.”
The validity of the principle of self-determination, defined as the need to pay regard to the freely
expressed will of peoples, is not affected by the fact that in certain cases the general assembly has
dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were
based either on the consideration that a certain population did not constitute a “people” entitled to selfdetermination or on the conviction that a consultation was totally unnecessary, in view of special
circumstances.
R
See: human rights; self-determination; erga omnes
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion]
(ICJ, 2004) (p. 133)
F The court was requested by the general assembly to render an advisory opinion on “the legal
consequences arising from the construction of the wall being built by israel, the occupying power, in the
occupied palestinian territory.” The court found that the construction of the wall was contrary to
international law, that israel was obligated to cease construction and make reparations for damages,
and that other states were obligated not to recognize or assist in “maintaining the situation” of
illegality. one of the violations of international law identified by the court related to the principles of
self-determination.
I
D the court observes that the existence of a “palestinian people” is no longer in issue. such existence has
moreover been recognized by israel in the exchange of letters of 9 september 1993 between mr. Yasser
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arafat, president of the palestine liberation organization (plo) and mr. Yitzhak rabin, israeli prime
minister.
The obligations erga omnes violated by israel are the obligation to respect the right of the palestinian
people to self-determination, and certain of its obligations under international humanitarian law.
R the Court stated that the right to self-determination was an obligation erga omnes, thus binding on all
states, and one in which all states have a legal interest.
Note: Judge Higgins in a separate opinion stated: “There is a substantial body of doctrine and practice on
‘selfdetermination beyond colonialism.’ The United Nations Declaration on Friendly Relations, 1970 …
[reproduced in the Documentary Supplement] speaks also of self-determination being applicable in
circumstances where people are subject to ‘alien subjugation, domination, and exploitation.’ … The
Committee on Human Rights has consistently supported this post-colonial view of self-determination.”
See: human rights; self-determination; erga omnes
Reference re Secession of Quebec (SCC, 1998) (p. 136)
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Does international law give Quebec the right to affect the secession of Quebec from canada unilaterally
(Is there a right to self-determination under international law that would give Quebec the this right)?
International law contains neither a right of unilateral secession nor the explicit denial of such a right,
although such a denial is, to some extent, implicit in the exceptional circumstances required for
secession to be permitted under the right of a people to self-determination.
The existence of the right of a people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond “convention” and is considered a general
principle of international law.
as will be seen international law expects that the right to self-determination will be exercised by peoples
within the framework of existing sovereign states and consistently with the maintenance of the
territorial integrity of those states. Where this is not possible, in the exceptional circumstances
discussed below, a right of secession may arise.
international law grants the right to self-determination to “peoples.” accordingly, access to the right
requires the threshold step of characterizing as a people the group seeking self-determination.
 The precise meaning of the term “people” remains somewhat uncertain.
 “a people” may include only a portion of the population of an existing state.
the right to self-determination of a people is normally fulfilled through internal self-determination—a
people’s pursuit of its political, economic, social and cultural development within the framework of an
existing state. a right to external self-determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances
 The right of colonial peoples to exercise their right to self-determination by breaking away from
the “imperial” power is now undisputed, but is irrelevant to this reference.
 The other clear case where a right to external self-determination accrues is where a people is
subject to alien subjugation, domination or exploitation outside a colonial context. This
recognition finds its roots in the Declaration on Friendly Relations
 a number of commentators have further asserted that the right to self-determination may
ground a right to unilateral secession in a third circumstance. … [t]he underlying proposition is
that, when a people is blocked from the meaningful exercise of its right to self-determination
internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration,
supra, requirement that governments represent “the whole people belonging to the territory
without distinction of any kind,” adds credence to the assertion that such a complete blockage
may potentially give rise to a right of secession.
In all three situations, the people in question are entitled to a right to external self-determination
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because they have been denied the ability to exert internally their right to self-determination. such
exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. accordingly,
neither the population of the province of Quebec, even if characterized in terms of “people” or
“peoples,” nor its representative institutions, the national assembly, the legislature or government of
Quebec, possess a right, under international law, to secede unilaterally from canada.
although there is no right, under the constitution or at international law, to unilateral secession, that is
secession without negotiation on the basis just discussed, this does not rule out the possibility of an
unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a
secession would be dependent on recognition by the international community, which is likely to
consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of
Quebec and canada
R
See: human rights; self-determination; declaration on friendly relations
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[Advisory Opinion] (ICJ, 2010) (p. 141)
F pursuant to security council resolution 1244 in 1999 and a constitutional framework established under
its authority,190 kosovo came under the interim administration of an international civil and security
presence, which continued in place until an assembly of kosovar representatives issued a unilateral
declaration of independence from serbia in february 2008. The general assembly requested the icj to
provide an advisory opinion in response to the following question: “is the unilateral declaration of
independence by the provisional institutions of self-government of kosovo in accordance with
international law?” much of the court’s opinion addressed the legality of the declaration under the
applicable, and binding, security council resolution and the framework established under it. in a
narrowly framed opinion the court found that the declaration did not violate either the resolution or the
framework, because the authors were not formally acting as one of the provisional institutions
established under the framework, and resolution 1244 did not otherwise explicitly bar such a declaration
outside the context of those institutions. T he court also had to determine whether the declaration was
in violation of general international law, which led to it considering the impact of the right to selfdetermination on the legality of unilateral secession.
I
D The court went on to determine that there was no rule of customary international law prohibiting the
declaration of independence.
R
See: human rights; self-determination
SOURCES OF INTERNTATIONAL LAW
 In order for the Court to apply any asserted rule of positive international law, it must be shown that the
rule is the product of one, or more, of the three law-creating processes mentioned in paragraph (a), (b),
or (c). For the Court, these law-creating processes are exclusive. Under article 38(2), however, the parties
to a dispute may request that it be decided ex aequo et bono (“in justice and fairness,” or “according to
what is just and good”) rather than on the basis of a strict application of rules of law. In practice the ICJ
has never been invited to exercise this power.
 Although article 59 of the Statute of the International Court of Justice provides that “[t]he decision of
the Court has no binding force except between the parties and in respect of that particular case,” the
Court uses its judgments for guidance in later cases, and they are widely relied on by other tribunals and
by states as persuasive opinions as to the state of international law. In contrast, scholarly writings are
seldom cited by the ICJ,6 although scholars have traditionally played a significant role in synthesizing
and elucidating international law.
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Statute of the International Court of Justice (P. 3)
Article 38
1. The court, whose function is to decide in accordance with international law such disputes as are submitted
to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized
by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the court to decide a case ex aequo et bono, if the parties
agree thereto.
 Article 38(1) makes no hierarchical distinction among the three law-creating processes. They are all of
equal authority. The potential exists, therefore, for a conflict between rules from different sources. As
between the parties, for example, a treaty could override pre-existing custom or a subsequent custom
might supplant a treaty.
o Ex. English Channel Arbitration
 Conflict between norms
 Where there is a clear inconsistency, a more specific norm will ordinarily prevail over a general norm and
a more recent norm will generally prevail over an earlier norm
 It is possible that the same rule may be derived from more than one of the law-creating processes. For
example, treaties may include provisions that are codifications of custom
o Customary international law continues to exist alongside treaty law.
o See: [Military Activities In and Against Nicaragua] Nicaragua v United States
English Channel Arbitration (1977)
F There was a suggested conflict between the 1958 Continental Shelf Convention (which gave states rights on the
continental shelves which though not exclusive did give them control over the exploitation of the natural
resources) and customary law given the evolution of the law of the sea (UN Conference on the law of the Sea
was still in progress at this time).
I
D
Which laws apply? [custom and treaty]
The court agreed that there may be valid reasons to apply customary law despite the presence of a binding
treaty. However they limited this to “only the most conclusive indications of the intention of the parties…to
regard (the treaty) as terminated”. Despite this conclusion the court warned that they still were entitled to take
into account the recent developments in customary law as relates to the case at hand.
R Acknowledgement of custom applying to treaties
See: Sources of law, conflict between treaties; custom; usage
[Military Activities In and Against Nicaragua] Nicaragua v United States (ICJ1986)
F
The U.S. argued that the existence of certain principles in the U.N. Charter or other treaties precluded the
possibility that similar rules could exist independently in customary law.
In this case it was decided, despite relevant treaties, that the U.S. had violated its customary IL obl’s (a) not to
intervene in the affairs of Nicaragua and (b) not to use force against it.
I
D
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
In a legal dispute affecting two States, one of them may argue that the applicability of a treaty rule
to its own conduct depends on the other State’s conduct in respect of the application of other rules,
on other subjects, also included in the same treaty.
o For example, if a State exercises its right to terminate or suspend the operation of a treaty
on the ground of the violation by the other party of a “provision essential to the
accomplishment of the object or purpose of the treaty” () it is exempted, visà-vis the other
State, from a rule of treaty-law because of the breach by that other State of a different rule
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of treaty-law.
But if the two rules in question also exist as rules of customary international law, the failure of the one
State to apply the one rule does not justify the other State in declining to apply the other rule.
The United States had violated its customary international law obligations (a) not to intervene in the
affairs of Nicaragua and (b) not to use force against it.
R One state breaching custom does not justify a second state breaching custom
See: Sources of law, conflict between norms, custom
Treaties
 Two types
o law-making treaties – treaties in which a substantial number of states have declared what the
law is or should be on a particular topic (ex. Vienna Convention on the Law of Treaties)
o treaty-contract - whether bilateral or multilateral, does not create general rules of international
law. It creates special rights and obligations like a private law contract
o since both types of agreements are based on mutual consent and both give rise to binding legal
obligations.
 Three essential elements: (1) The parties must be subjects of international law, (2) they must intend to
create binding obligations under international law, and (3) their agreement must be governed by
international law. (Article 2 & Article 3 VCLT)
 “Convention” is a common alternative for “treaty.” A “protocol” is a treaty but is not independent;
rather it is a subsidiary agreement appended to the principal treaty. “Exchange of notes” and
“exchange of letters” are terms which are often used to describe bilateral treaties concluded less
formally and at a lower level of intergovernmental representation.
o But whatever an international agreement happens to be named, whether it is a treaty or not will
be determined by reference to the criteria indicated in the VCLT.
Vienna Convention on the Law of Treaties (VCLT)
Article 1
Article 2
Article 3
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Article 15
Article 16
Article 18
Article 19
Article 20
Article 21
Article 22
Article 24
Article 25
Article 26
Article 27
Article 28
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Article 30
Article 31
Article 32
Article 34
Article 35
Article 36
Article 37
Article 38
Article 39
Article 40
Article 41
Article 42
Article 43
Article 45
Article 46
Article 47
Article 48
Article 49
Article 50
Article 51
Article 52
Article 53
Article 54
Article 55
Article 56
Article 60
Article 61
Article 62
Article 63
Article 64
Article 66
Article 69
Article 70
Article 71
 It is frequently assumed that when two states make an agreement they intend to create binding
obligations at international law. However, that presumption may be rebutted by evidence of the parties’
intent that they did not mean their agreement to have legal force. A well-known example is the Helsinki
Accords
o Low-level intergovernmental arrangements of an administrative character are often concluded
as “memoranda of understanding” that are not intended to have binding legal effect.
 The VCLT uses the term “treaty,” as the generic term, to describe a legally binding international
agreement. There is no fixed terminology.
Treaty Adoption (1 Conclusion > 2 Ratification > 3 Publication & Registration > 4 Entry into force > 5
Reservations)
1. Conclusion of a Treaty (VCLT Art. 7-16)

o The representative of a state must have “full powers” to give the
consent of his or her state to a treaty (Article 7 of the VCLT)
o if she or he does not, his or her agreement is without legal
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effect unless afterward confirmed by that state (article 8).
o the mode of adoption of the treaty, whether by consensus or
voting, has to be agreed upon (article 9)
o the means to authenticate the definitive text, or texts if the
original is in several languages, must be settled (article 10).
Finally, the particular steps to express consent to the treaty
need to be set down (articles 11-16)
o Multilateral treaties frequently require more than the
signature of a representative at the negotiations, demanding
the subsequent confirmation by ratification, acceptance, or
approval of the state
The Canadian procedure for treaty-making on the international

plane follows the steps outlined above. However, the constitutional
division of powers between the federal and provincial governments
complicates Canada’s involvement
2. Ratification – formal confirmation by the signatory states (this is

beyond being signed by officials, usually occurs with multilateral
law-making treaties)
o Whether or not a particular treaty requires ratification to bind
signatory states is determined by the treaty itself: the VCLT does
not stipulate either way.
o Ratification processes are an internal constitutional matter for
each country and they may frequently differ from one country
to another. In Canada, ratification is part of the royal
prerogative and is exercised by the Executive,
o Canadian law and practice does not require parliamentary
approval for ratification but in 2008 the Canadian
government adopted a policy of tabling every new treaty in
Parliament for 21 sitting days before moving to its ratification:
3. Publication and Registration

o Once an international agreement has come into force, it is also
registered with the Secretariat of the United Nations, as
required by article 102 of the UN Charter, and article 80 of
the VCLT
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4. Entry into Force

o The date an agreement enters into force internationally varies
according to the intention of the parties (art. 24 VCLT) and
may be:
 (1) on ratification or a given period after that event, or
 (2) if ratification is unnecessary, immediately or in a
given period after signature, or
 (3) in the case of an Exchange of Notes, normally on the
date of the second note, or
 (4) in the case of a multilateral treaty, usually upon
ratification by a given number of states as stated in the
text of the treaty.
 See also: failing any explicit arrangements, that it will
take effect as soon as consent to be bound has been given
by all the parties. Articles 25 and 28 recognize that
exceptionally, if the parties so indicate, a treaty may be
applied provisionally pending its entry into force, or it
may be made to operate retroactively.
Thus, the first few ratifying states may not de jur be bound by the

convention qua treaty law for some time. However, Article 18 of the
VCLT, requires a state that has expressed its consent to be bound by
a treaty to refrain from acts that would defeat the object and purpose
5. Reservations

o A reservation is a unilateral statement made by a state when
signing, ratifying, accepting, approving, or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that
state.
 These are extremely controversial. See Reservations to the
Convention on Genocide
 the majority of UN members favouring greater flexibility
in the obligations of treaties by permitting the
contracting parties to enter reservations necessary to make
the agreement acceptable, thus making it possible for a
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larger number of countries to participate
 see art. 2, 19, 20, 21, 22 VCLT
 The trend in multilateral treaty-making is to control the
difficulties that can arise by specifying in the treaty
itself which articles may and which may not be the
subject of reservations. This practice adds the question of
reservations to the negotiations of the substantive matters
in the treaty-making process
 A distinction that must be kept in mind is the difference
between a reservation and an interpretive declaration.
The ILC has provided the following definition of a
declaration: “a unilateral statement, however phrased or
named, made by a State … whereby that State … purports
to specify or clarify the meaning or scope of a treaty or of
certain of its provisions.
Legal Effect of Treaties

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Furthermore, a party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. Ex. Polish Nationals in Danzig

Successive treaties on the same matter, between the same parties,
prevail over the earlier treaties in the event of incompatible
provisions, unless it was clearly made subject to the earlier treaty.
Third Party States (Art. 34, 35, 36, 37, 38 VCLT)

o Neither rights nor obligations are ordinarily created for states
that are not parties to a treaty. Ex. Free Zones Case (France v
Switzerland)
o Unless the parties clearly intend to have effect on third
parties… by grant obligations (Art. 35 VCLT) and/or rights (Art.
36 VCLT)
 Ex. Third party rights: GATT most favoured nation clause
(below)
General Agreement on Tariffs and Trade (GATT)
Most Favoured Nation (MFN) Clause: any reduction in tariff or
other benefit granted by one state party to GATT on the
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importation of goods from another state party will
automatically be extended to all the other parties to GATT.
Interpretation of Treaties
Interpreted in good faith in accordance with the ordinary meaning

to be given to its terms in their context and in the light of its object
and purpose (Art. 31 VCLT)
o Article 32 provides that recourse may be had to supplementary
means of interpretation, including the preparatory work of the
treaty, where Art. 31 leads to an obscure, ambiguous, or
absurd result
3 theories (from Fitzmaurice)

1 - intentions of the parties” or “founding father
 Flaw: the element of unreality or fictitiousness frequently
involved. There are so many cases in which the dispute
has arisen precisely because the parties had no
intentions on the point, or none that were genuinely
common.
2 - “textual” or “ordinary meaning of the words”
 Flaw: the subjective elements involved in the notions of
“clear” or “ordinary” meaning, which may be differently
understood and applied according to the point of view of
the individual judge. There may also be cases where the
parties intended a term to be understood in a specialized
sense, different from its ordinary one, but failed to make
this clear on the face of the text.
3 - “teleological” or “aims and objects” (its sphere of
operation almost entirely in the field of general multilateral
conventions)
 Flaw: always in danger of “spilling over” into judicial
legislation: it may amount, not to interpreting but, in
effect, to amending an instrument in order to make it
conform better with what the judge regards as its true
purposes.
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Reservations to the Convention on Genocide [advisory opinion] (ICJ, 1951) (p. 11)
The convention on Genocide was unanimously adopted by the United Nations in 1951. Several states
made reservations to one or more of its provisions. An opinion as to whether a party could express
reservations and still be considered a signatory was laid before the International Court of Justice.
I
May a reservation to the U.N. Convention on Genocide be made by a state and still be considered a
signatory thereto? [yes]
D Yes. A reservation to the U.N. Convention on Genocide may be effected by a state and still be
considered a signatory thereto. In a multilateral treaty, as long as the reservation does not defeat the
purpose of the treaty, a reservation is permitted. By virtue of its sovereignty, it has been argued that a
state may effect any reservation. In this case, the validity of each reservation must be examined on a
case-by-case basis since numerous reservations were made by different states. (The court held that the
state objecting to a reservation could if it desired, consider the reserving state not to be a party to the
Convention.
Politics was at play in this case as it has also been in other cases. Going by precedence, international law
usually held that reservations to a multilateral treaty had to be accepted by all other parties. Unanimous
acceptance of the Convention would not have made the Convention possible if the rule was followed.
The Court was undoubtedly determined to facilitate such unanimity
R A reservation to the U.N. Convention on Genocide may be effected by a state and still be considered a
signatory thereto.
Notes: No solution to the fundamental question of the admission of reservations having been reached and all
attempts to achieve a compromise having failed, the 1952 General Assembly adopted resolution 598 (VI),
requesting the Secretary General to continue to act as depositary of documents containing reservations or
objections without passing on their legal effect. The Secretary-General was asked to communicate the text of
such documents to all states concerned, leaving it to each state to draw legal consequences from them.
See: Sources of law, treaties, reservations
F
Treatment of Polish Nationals in Danzig [Advisory Opinion] (ICJ, 1932)
F The Free City of Danzig (German: Freie Stadt Danzig; Polish: Wolne Miasto Gdańsk) was a semiautonomous city-state that existed between 1920 and 1939, consisting of the Baltic Sea port of Danzig
(now Gdańsk, Poland) and nearly 200 towns in the surrounding areas. It was created on 15 November
1920[1][2] in accordance with the terms of Article 100 (Section XI of Part III) of the 1919 Treaty of
Versailles after the end of World War I.
During the interwar period Polish minority was heavily discriminated by the German population, which
openly attack its members using racist slurs and harassment, and attacks against Polish consulate by
German students were praised by authorities[54]
Several disputes between Danzig and Poland occurred in the sequel.
I
Was there discrimination (test below)
D The prohibition against discrimination, in order to be effective must ensure the absence of
discrimination in fact as well as in law. A measure which in terms is of general application, but in fact is
directed against Polish nationals and other persons of polish orgin or speech, constitutes a violationof
the prohibition. Whether a measure is or is not in fact directed against these persons is a question to be
decided on the merits of each particular case. No hard and fast rule can be laid down
R [A] State cannot adduce as against another State its own Constitution with a view to eroding
obligations incumbent upon it under international law or treaties in force
See: Sources of law, treaties
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Free Zones Case (France v Switzerland) (PCIJ, 1932)
F
The 1919 Treaty of Versailles, to which S was not a party, stipulated that France and S settle their border
dispute. Court was asked whether this created any obligation for S.
-treaty is NOT binding on S, except to the extent they accepted it
I
D
Can third parties gain rights from other treaties? [case by case analysis]
It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the
object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign
states from having this object and this effect. The question of the existence of a right acquired under an
instrument drawn between other states is therefore one to be decided in each particular case: it must be
ascertained whether the states which have stipulated in favour of a third state meant to create for that
state an actual right which the latter has accepted as such.
R Third party rights in treaties must be evaluated on a case by case basis.
See: Sources of law, treaties, third parties
F
Interpretation of Peace Treaties [advisory opinion] (ICJ, 1950) (p. 17)
The 1947 peace treaties with bulgaria, Hungary, and romania provided for a system of commissions to
resolve any disputes concerning their interpretation and execution. When charges were made about the
suppression of human rights contrary to the treaties, bulgaria, Hungary, and romania refused to
participate in the formation of a commission. in an effort to settle the growing dispute, the un general
assembly asked the court to interpret the treaty provisions respecting the constitution of such
commissions. The relevant treaty provisions asked bugaria hungary and Romania to appoint arbitrators
to settlement disputes. They refused, frustrating the settlement process.
I
D
R
The ICJ stepped in to interpret the treaty where the concerned partied refused to act.
Court held treaties must be interpreted by other only in situations where the concerned parties fail to
agree (I think…)
See: Sources of law, treaties, interpretation
F
I
D
Amoco International Finance Corp v Iran (1987)
United States Claims Tribunal had to apply both a treaty and a customary rule of international law.
As a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis,
namely customary international law. This does not mean, however, that the latter is irrelevant in the
instant case. On the contrary, the rules of customary law may be useful in order to fill in possible
lacunae of the treaty, to ascertain the meaning of undefined terms in its text or, more generally, to aid
interpretation and implementation of its provisions.
R Rules of custom can be used to fill holes in the treaty text.
See: Sources of law, treaties, applying treaty and custom
F
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Jesse Lewis (The David J. Adams) Claim (United States v. Great Britain) (1921)
In the Treaty of London of 1818, the United States (P) agreed that its citizens would not fish in Canadian
(D) waters. Precisely in 1886, an American fishing schooner was seized by Canadian (D) authorities for
allegedly violating the Treaty. After finding that the vessel had indeed violated the Treaty and Canadian
legislation, A Canadian (D) court condemned the vessel.
Based on this judgment, the United States (P) sought damages from the British government (D) on the
grounds that the seizure of the schooner was wrongful based on an erroneous interpretation of the
Treaty. Britain (D) however posited that the Arbitral Tribunal was not competent to re-examine the
Canadian (D) court’s interpretation.
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I
Is it the duty of an international tribunal to determine, from an international perspective, how he
provisions of a treaty are to be interpreted and applied to the facts? [yes]
D The fundamental principle of the juridical equality of States is opposed to placing one State under the
jurisdiction of another State. It is opposed to the subjection of one State to an interpretation of a Treaty
asserted by another State. There is no reason why one more than the other should impose such an
unilateral interpretation of a contract which is essentially bilateral. The fact that this interpretation is
given by the legislative or judicial or any other authority of one of the Parties does not make that
interpretation binding upon the other Party.
The Tribunal found that the Canadian (D) did not err in its interpretation. Some courts have held that
unilateral interpretations of treaties have only an advisory effect. Others opine that such interpretations
are to be seen as amendments to the treaty.
R The determinations, from an international perspective of how the provisions of a treaty are to be
interpreted and applied to the facts are the duties of an international tribunal
See: Sources of law, treaties, interpretation, national implementation acts for treaties
Operation of Treaties
Amendment and Modification

o a treaty may be amended by agreement between the parties
(Art. 39 VCLT). Thus, a proposal for its amendment may be
negotiated and concluded by all or some of the parties
 the amending agreement does not bind parties to the
original treaty who do not accept it (article 40(4)), and
the amendments may not prejudice their existing treaty
rights and obligations (article 41). A state that becomes a
party to the treaty after its amendment will be considered
a party to the amended treaty

Article 41 imposes significant restrictions, in
particular that the rights and obligations of other
parties must not be affected and that the
modification should not relate to a provision
“derogation from which is incompatible with the
effective execution of the object and purpose of the
treaty as a whole” (article 41(1)(b)(ii)).
Invalidity and Jus Cogens (Art. 42, 43, 46, 52, 53, 64, 69, and 71
VCLT)
Article 45 recognizes that a state may agree, either expressly or

tacitly, to having a treaty that is potentially voidable.
Articles 46-50 address circumstances that a state may invoke as

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invalidating its consent to be bound by the treaty.
Articles 51-53, in contrast, dealing respectively with coercion of a

representative of a state, coercion of a state by threat or use of force,
and conflicts with jus cogens, provide that treaties to which these
articles apply are “without legal effect” or “void.”
Article 46 is an important limitation on a state’s ability to escape

liability for breach of a treaty by claiming it was never bound
because of some technical requirement of its internal law. In this
respect, the article complements article 27, which prevents a state
from justifying its breach of a treaty to which it is bound by
invoking provisions of its internal law.
Articles 53 and 64 on jus cogens or peremptory norms (these are very

controversial)
o the VCLT makes particular provision for disputes about
peremptory norms. According to article 66, any one of the
parties to a dispute concerning the application or the
interpretation of article 53 or 64 may, by a written
application, submit it to the ICJ for a decision, unless the
parties by common consent agree to go to arbitration.
Termination and Suspension (Articles 42, 54-56, 60-63, and 70
VCLT)
Possible grounds for terminating or suspending treaty obligations

(Currie):
A - the consent of the parties
B - material breach,
C - supervening impossibility of performance, (art. 61 VCLT)
D - fundamental change of circumstances (rebus sic stantibus),
and (art. 62 VCLT)
E - conflict with a new norm of jus cogens.
o Ex. Case Concerning the Gabçíkovo-Nagymaros Project
(Hungary v Slovakia)
A treaty may be suspended by consent of all the parties (article 57),

o or by agreement among some parties only, provided their
action does not prejudice the rights and obligations of the
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other parties or the purposes of the treaty (article 58)
o Suspension releases the parties from further performance of the
treaty but it does not otherwise affect their continuing legal
relations.
o The parties are also bound to refrain from actions that might
obstruct resumption of the treaty’s operation (article 72).
F
I
D
Case Concerning the Gabçíkovo-Nagymaros Project (Hungary v Slovakia) (ICJ, 1997) (p. 24)
in 1977, Hungary and czechoslovakia concluded a treaty to build a series of dams in slovakia and
Hungary for the production of electricity, flood control, and improvements to navigation on the river
danube. in 1989, Hungary suspended and later abandoned the project, invoking grave risks to the
environment and to the water supply of budapest. slovakia, as successor to czechoslovakia, denied
these allegations and insisted that Hungary carry out its treaty obligations. it planned and subsequently
put into operation an alternative project only on slovak territory, the operation of which affected
Hungary’s access to the waters of the Danube.
(1) What are the legal effects are of the notification of termination of the treaty? (2) Did Hungary’s
notification of 19 may 1992 terminate the 1977, under international law?
The vienna convention is not directly applicable to the 1977 treaty inasmuch as both states ratified
that convention only after the treaty’s conclusion. Consequently only those rules which are
declaratory of customary law are applicable to the 1977 treaty.
The 1977 treaty does not contain any provision regarding its termination. nor is there any indication that
the parties intended to admit the possibility of denunciation or withdrawal.
Hungary posits they are acting under necessity, however, even if a state of necessity is found to exist, it
is not a ground for the termination of a treaty. Rather it suspends the treaty until it becomes possible to
complete obligations again.
T he changed circumstances advanced by Hungary are, in the court’s view, not of such a nature, either
individually or collectively, that their effect would radically transform the extent of the obligations still
to be performed in order to accomplish the project.
in the court’s view, therefore, the notification of termination by Hungary on 19 may 1992 was
premature. no breach of the treaty by czechoslovakia had yet taken place and consequently Hungary
was not entitled to invoke any such breach of the treaty as a ground for terminating it when it did.
the notification of termination by Hungary of 19 may 1992 did not have the legal effect of terminating
the 1977 treaty and related instruments.
R
See: Sources of law, treaties, interpretation, grounds for termination, VCLT and custom
F
I
D
Ex Parte O’Dell and Griffe (HC, 1953)
two individuals whose extradition was sought by the United States argued inter alia that there was no
extradition treaty between Canada and the United States because the Ashburton Treaty of 1842, an
imperial treaty, ceased to have validity upon the enactment of the Statute of Westminster.
-if the Ashburton or any other treaty was intended to have ceased effect, it would have been expressly declared
as such.
-Canada can now enter a new treaty if it likes, but nothing thwarts the bindingness of the old one
R Treaties remain binding, despite a lapse in validity
See: Sources of law, treaties, interpretation, termination, change of circumstances
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CUSTOM
 article 38(1)(b) of the ICJ Statute: (1) state practice, and (2) the
acceptance of that practice as law.
 The subjective element of acceptance as law is often referred to as
opinio juris
o some commentators have called for a more flexible approach
to the opinio juris requirement, the ICJ continues to treat it
as an essential aspect of the ascertainment of custom.
Jurisdictional Immunities of the State
 North Sea Continental Shelf Cases
 A customary norm binds all states regardless of whether they
participated in its formation. However, it has been suggested that
a state may “opt out” of a customary norm if it openly and
consistently objects to the application of the norm throughout the
period of its crystallization into custom
 Regional or special customary law
o Regional or local customs may vary from general customary
international law by adding to or detracting from it.
However, they must not violate existing rules of jus cogens.
o Right of Passage over Indian Territory Case)
o Asylum Case (Colombia v Peru)
North Sea Continental Shelf Cases Federal Republic of Germany v Denmark and v Netherlands (ICJ, 1969) (p.
31)
F
In 1964 and 1965 the federal republic of germany entered into agreements with the netherlands and
denmark for the purpose of delimiting the boundaries of their north sea continental shelves. These
agreements only established a partial dividing line for a short distance from the coast beginning at the
point at which the land boundary between the states is located. in order to determine the lateral or
median lines with more precision, a matter which proved to be impossible to settle by agreement, the
federal republic of germany, the netherlands, and denmark agreed to refer the problem to the
international court of justice.
I
What principles and rules of international law are applicable to the delimitation as between the parties
of the areas of the continental shelf in the north sea which appertain to each of them beyond the
partial boundary [already] determined? What customary international law existed to delimit the
continental shelf between the parties?
D
T he netherlands and denmark argued that the “equidistance-special circumstances principles” in
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article 6(2) of the 1958 geneva convention on the continental shelf applied whereas the federal
republic of germany relied on the doctrine of the just and equitable share.
T he court held that the federal republic of germany, which had not ratified the convention, was not
bound by the provisions of article 6.
The majority spent a significant amount of the decision considering what constitutes a customary rule
of law. They considered three ways the equidistance rule could be customary law:
the rule predated the Convention and was simply codified;
the Convention crystallized equidistance as a rule of customary law; or
the rule became custom in light of subsequent state practice.
They also identify three elements necessary for an element to constitute a customary rule of law:
the provision must be of a norm-creating character such that it could be regarded as forming the basis
of a general rule of law;
the provision must be a settled practice based on the acts of state actors; and
the provision must be such, or be carried out in such a way, as to be evidence of a subjective belief that
this practice is rendered obligatory by the existence of a rule of law requiring it, i.e. opinio juris.
Applying this reasoning to the facts, both Denmark and the Netherlands had admitted at the hearing
that the law in this area had not yet settled at the time of the Convention, but they both felt the law
had crystallized when the Convention came into force. Article 6 of the Convention stated that
equidistance was the secondary method to be used in delimitation, which seemed to contradict the
idea of it as a general rule of law, plus there was a facility for making reservations to Article 6, making it
difficult to conclude it was now crystallized by the Convention.
On subsequent state practice, the majority found fifteen examples where equidistance was used, more
than half between states subject to the Convention. They stressed strongly, however, that even were
there far more examples of the use of equidistance, the subjective belief that the states were doing so
out of obligation must be present.
Finding then that equidistance was not a rule of customary law, the majority ruled that equitable
principles must be utilized in negotiations between the parties to delineate the boundaries.
R
Customary rules of law are difficult to establish; there must be a settled practice among states carried
out such that the actors have a subjective belief that there is an obligation to carry out such a practice.
Dis [Applied in Anglo-Norwegian Fisheries Case]
See: sources of law, custom
F
I
D
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Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)
concerning the extent of state immunity before the International Court of Justice. The case was brought
by Germany after various decisions by Italian courts to ignore the state immunity of Germany when
confronted with claims against Germany by victims of Nazi-era war crimes. The court found that Italy
was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its
courts against Germany without effect.
Is state immunity was customary law?
In the present context, State practice of particular significance is to be found in the judgments of
national courts faced with the question whether a foreign State is immune, the legislation of those
States which have enacted statutes dealing with immunity, the claims to immunity advanced by States
before foreign courts and the statements made by States, first in the course of the extensive study of
the subject by the International Law Commission and then in the context of the adoption of the United
Nations Convention [on Jurisdictional Immunities of States and Their Property]
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Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that
international law accords them a right to such immunity from the jurisdiction of other States; in the
acknowledgment, by States granting immunity, that international law imposes upon them an obligation
to do so; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over
foreign States. While it may be true that States sometimes decide to accord an immunity more
extensive than that required by international law, for present purposes, the point is that the grant of
immunity in such a case is not accompanied by the requisite opinio juris and therefore sheds no light
upon the issue currently under consideration by the Court.
R
See: Sources of law, custom, state practice, opinio juris
Military Activities In and Against Nicaragua (ICJ)
F
I
D
It is not to be expected that in the practice of States the application of the rules in question should have
been perfect, in the sense that States should have refrained, with complete consistency, from the use of
force or from intervention in each other’s internal affairs. The Court does not consider that, for a rule to
be established as customary, the corresponding practice must be in absolutely rigorous conformity with
the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules, and that instances of State conduct
inconsistent with a given rule, should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a
recognized rule, but defends its conduct by appealing to exceptions or justifications contained within
the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance
of that attitude is to confirm rather than to weaken the rule.
R
See: Sources of law, treaties, custom, state practice
F
I
D
Anglo-Norwegian Fisheries Case (ICJ, 1951)
The United Kingdom requested the court to decide if Norway had used a legally acceptable method in
drawing the baseline from which it measured its territorial sea. The United Kingdom argued that
customary international law did not allow the length of a baseline drawn across abay to be longer than
ten miles. Norway argued that its delimitation method was consistent with general principles of
international law.
The Court was asked to decide, inter-alia, the validity, under international law, of the methods used to
delimit Norway’s territorial sea/ fisheries zone
quoted in Judge Sorensen’s dissent in the North Sea Continental Shelf Cases
The court held that the fact that this consistent and sufficiently long practice took place without any
objection to the practice from other states (until the time of dispute) indicated that states did not
consider the Norwegian system to be “contrary to international law”.
“The notoriety of the facts, the general toleration of the international community, Great Britain’s
position in the North Sea, her own interest in the question, and her prolonged abstention would in any
case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led to
conclude that the method of straight lines, established in the Norwegian system, was imposed by the
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peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been
consolidated by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to international law.”
Relationship between international and national law
The court alluded to the relationship between national and international law in delimitation of maritime
boundaries. In delimitation cases, states “must be allowed the latitude necessary in order to be able to
adapt its delimitation to practical needs and local requirements…” The court would also consider
“…certain economic interests peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its
legal validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon
the will of the coastal State as expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it,
the validity of the delimitation with regard to other States depends upon international law. (p. 20)”
R
See: Sources of law, custom; international law and domestic law
Right of Passage over Indian Territory Case Portugal v India (ICJ, 1960) (p. 44)
portugal held several small enclaves of territory within india. one, daman, was on the coast, but the
others were inland. portugal claimed a right of passage to its inland enclaves and alleged that india had
interfered with the exercise of this right.
I
Does Portugal have a customary right over Indian territory to its enclaves? [yes]
D India argued before the Court that practice between only two states was not sufficient to form a local
custom. The Court rejected this reasoning, finding no reason why a century and a quarter of practice
based on mutual rights and obligations was insufficient for local custom to arise. This local practice,
thus, prevailed over any general rules.
T he court, therefore, concludes that, with regard to private persons, civil officials and goods in general
there existed during the british and post-british periods a constant and uniform practice allowing free
passage between daman and the enclaves. This practice having continued over a period extending
beyond a century and a quarter unaffected by the change in regime in respect of the intervening
territory which occurred when india became independent, the court is, in view of all the circumstances
of the case, satisfied that that practice was accepted as law by the parties and has given rise to a right
and a correlative obligation. …
The Court, while accepting the customary law right claimed by Portugal, held that India had not violated
it. Subsequently, India absorbed the Portuguese territories.
R Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made
out.
See: Sources of law, regional custom
F
F
I
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Asylum Case (Colombia v Peru) (ICJ1950)
the Colombian government claimed that it had the right to give asylum to the Peruvian Haya de la
Torre, who had sought refuge in the Colombian Embassy in Peru. It relied not only on the rules arising
from agreements, but on an alleged regional or local custom peculiar to Latin American states.
Can the Colombian government offer asylum under local custom? [no, No such local custom exists
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sufficient to be binding at international law.]
The Court cannot … find that the Colombian Government has proved the existence of such custom. But
even if it could be supposed that such a custom existed between certain LatinAmerican States only, it
could not be invoked against Peru which, far from having by its attitude adhered to it, has on the
contrary, repudiated it by refraining from ratifying the Montevideo Convention of 1933 and 1939, which
were the first to include a rule concerning the qualification of the offence in matters of diplomatic
asylum.
The Court held that the party which relies on a custom of this kind has the burden of establishing that
the custom exists in such a way that it has become binding on the other party, through constant and
uniform usage of the states.
D
On the facts, very few states had ratified the conventions which Colombia relied on and there was
significant discrepancy in the practice of asylum. Because of this, the Court was unable to find a custom
which met the standard in the North Sea Continental Shelf case.
R A party which claims a custom exists must prove that the custom was established in such a manner that
it has become binding on the other party.
See: Sources of law, regional custom
GENERAL PRINCIPLES OF LAW
still some controversy about the status of “the general principles of

law recognized by civilized nations,” referred to in article 38(1)(c)
of the Statute of the International Court of Justice.
these general principles are understood as those that exist in all

municipal systems of law that have reached a comparable stage of
development
They are of limited importance because:

o (1) international courts and tribunals have remained
reluctant in their use and reference to general principles,
o (2) general principles as such have limited use as independent
formulations of enforceable obligations and have rarely been
referred to as a basis for a legal claim
o (3) legal scholars have contributed with their criticism to
mark general principles a rather ‘ambiguous source of law
International Status of South West Africa Case discussed how general

principle are introduced.
General principles are acknowledged in: Chorzów Factory Case;

Temple of Preah Vihear Case; Effect of Awards of UN Administrative
Tribunal Case; Effect of Awards of UN Administrative Tribunal
Case; Gulf of Maine Case; Sea-Land Service, Inc v Iran
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Equity in International law
“equity” has at least three different legal senses.

o (1) Equity may be used to adapt the law to the facts of
individual cases (equity intra legem)
 International tribunals can apply equity intra legem.
o (2) it may be used to fill gaps in the law (equity praeter legem)
 it is doubtful international tribunals can apply equity
praeter legem; although, on occasion, they have claimed
such power
o (3) it may be used as a reason for refusing to apply unjust laws
(equity contra legem)
 International tribunals cannot apply equity contra legem
in the absence of an express authorization
Note that the ICJ’s power under Statute article 38(2) to decide a case

“ex aequo et bono” is not to be equated to equity in this legal sense
either. North Sea Continental Shelf Cases
o Continental Shelf (Tunisia v Libya) Case
Equity in the sense of humanitarian considerations and principles

of morality also has a role to play in the creation of rules of
international law.
F
I
D
R
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Chorzów Factory Case (Germany v. Poland) (1928)
German Empire had a contract with a company, where the company undertook to establish for
theReich and forthwith to begin the construction of a nitrate factory at Chorzow, Upper Silesia.
Subsequently, Germany and Poland signed a convention concerning the Upper Silesia of Geneva. A
polish was then delegated with the full powers to take charge of the factory, thus, causing the end of
the contract between Germany and the companies. Germany brought action in behalf of the companies
in violation of the Geneva Conventions.
Did poland unlawfully expropriate german interests in the factory (in violation of it’s treaty obligations)
[yes]
it is … a general conception of law, that any breach of an engagement involves an obligation to make
reparation
In virtue of the general principles of International Law, must be added that of compensating
losssustained as the result of the seizure. The impossibility of restoring the Chorzow factory therefore
has no othereffect but that of substituting payment of the value of the undertaking for restitution; it
would not be inconformity with the principles of law or with the wish of the parties to infer from that
agreement that thequestion must henceforth be dealt with though an expropriation properly so called
was involved.
Acknowledgement of general principles of law. The reparation of a wrong may consist in an indemnity
corresponding to the damages with nationals of the injured party state have suffered as a result of the
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act which is contrary to international law.
Reparation for the taking of property requires compensation. Reparation is due when there is a
breachof an obligation.
See: Sources of law, general principles of law; compensation; reparations
Temple of Preah Vihear Case, (ICJ, 2013)
The Temple has been a source of contention between Cambodia and Thailand since Cambodia’s
independence from French rule in the mid-1900s. On 11 November, the ICJ rendered a judgment on
Cambodia’s Request for Interpretation of the Court’s 1962 judgment in the Preah Vihear case.
I
Who owns the temple [cambodia]
D It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if
the party advancing it contributed by its own conduct to the error
R Acknowledgement of general principles of law
See: Sources of law, general principles of law
F
Effect of Awards of UN Administrative Tribunal Case
F
I
D
“According to a well-established and generally recognized principle of law, a judgment rendered by a
judicial body is res judicata and has binding force between the parties to the dispute.”
R Acknowledgement of general principles of law
See: Sources of law, general principles of law
F
Gulf of Maine Case (ICJ, 1984)
the location of the maritime boundary between Canada and the
United States in the Gulf of Maine, on October 12, 1984.
I
D
“in any case the concepts of acquiescence and estoppel, irrespective of the status accorded to them by
international law, both follow from the fundamental principles of good faith and equity,”
R Acknowledgement of general principles of law
See: Sources of law, general principles of law
Sea-Land Service, Inc v Iran, (PSO, 1984)
Sea-land requested relief on various bases : breach of contract, expropriation; and unjust enrichment
Are these contractual doctrines viable in international law [law]
Iran – US Claims Tribunal held that the concept of unjust enrichment is “widely accepted as having been
assimilated into the catalogue of general principles of law available to be applied by international
tribunals
R Acknowledgement of general principles of law
See: Sources of law, general principles of law
F
I
D
F
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International Status of South West Africa Case [Advisory Opinion] (ICJ, 1950) (p. 46)
in 1949, the un general assembly asked the international court to advise on the international status of
south West africa (now namibia). This request caused the court to interpret the terms of the mandate of
that territory to south africa. in the course of his separate opinion, sir arnold mcnair drew upon general
principles of law in order to determine the meaning of the “sacred trust of civilization” accepted by
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south africa under the mandate.
I
D
International law has recruited and continues to recruit many of its rules and institutions from private
systems of law. article 38(i)(c) of the statute of the court bears witness that this process is still active,
and it will be noted that this article authorizes the court to “apply … (c) the general principles of law
recognized by civilized nations.”
nearly every legal system possesses some institution whereby the property (and sometimes the
persons) of those who are not sui juris, such as a minor or a lunatic, can be entrusted to some
responsible person as a trustee or tuteur or curateur.
T here are three general principles which are common to all these institutions:
(a) that the control of the trustee, tuteur or curateur over the property is limited in one way or another;
he is not in the position of the normal complete owner, who can do what he likes with his own, because
he is precluded from administering the property for his own personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal obligation, based on confidence and
conscience, to carry out the trust or mission confided to him for the benefit of some other person or for
some public purpose;
(c) that any attempt by one of these persons to absorb the property entrusted to him into his own
patrimony would be illegal and would be prevented by the law.
R Demonstrates the process by which general principles of law are found and applied by the ICJ
See: Sources of law, general principles of law
F
I
D
Norwegian Shipowners Claims (Norway v. US) (US, 1922)
Ships had beet taken form shipowners in a neutral country during times of way. Court eventually
offered full compensation after considering equity in international law.
“law and equity” are to be understood to mean “general principles of justice as distinguished from any
particular system of jurisprudence or the municipal law of any State.” It is important to distinguish
equity in this international sense from the technical use of the same term in common law jurisdictions
R
See: Sources of law, general principles, equity in international law, compensation; retitution
North Sea Continental Shelf Cases Federal Republic of Germany v Denmark and v Netherlands (ICJ,1969) (p.
48)
F
I
D read particularly paragraphs 88, 89, 91, and 98.
The Parties were under an obligation to act in such a way that in the particular case, and
taking all the circumstances into account, equitable principles were applied. There was no
question of the Court's decision being ex aequo et bono. It was precisely a rule of law that
called for the application of equitable principles, and in such cases as the present ones the
equidistance method could unquestionably lead to inequity. Other methods existed and
might be employed, alone or in combination, according to the areas involved. Although the
Parties intended themselves to apply the principles and rules laid down by the Court some
indication was called for of the possible ways in which they might apply them.
R
See: Sources of law, general principles equity in international law
Continental Shelf (Tunisia v Libya) Case (ICJ, 1982) (p. 48)
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F
I
D
In its judgment in the Continental Shelf case between Tunisia and Libya, the Court
declared the principles and rules of international law which are applicable to the
delimitation of the areas of continental shelf appertaining respectively to Tunisia and Libya
in the region concerned in the dispute.
It enumerated the relevant circumstances to be taken into account for the purpose of
arriving at an equitable delimitation and specified the practical method to be used for the
delimitation itself
equity as a legal concept is a direct emanation of the idea of justice. The court whose task is by
definition to administer justice is bound to apply it.
moreover, when applying positive international law, a court may choose among several possible
interpretations of the law the one which appears, in the light of the circumstances of the case, to be
closest to the requirements of justice. application of equitable principles is to be distinguished from a
decision ex aequo et bono. The court can take such a decision only on condition that the parties agree
(art. 38, para. 2, of the statute), and the court is then freed from the strict application of legal rules in
order to bring about an appropriate settlement. The task of the court in the present case is quite
different: it is bound to apply equitable principles as part of international law, and to balance up the
various considerations which it regards as relevant in order to produce an equitable result.
R
Dis
Much more is here involved than a difference of opinion as to how equity should be conceived: what is at
issue is the decision dividing a continental shelf between two States which requested that it be delivered in
accordance with the law. If a State claiming a right to an area of continental shelf really possesses that
right such as it describes it, it is not equity to deprive it of it but an error of law, and therein lies a farreaching complaint since the judgments of the Court are irreversible as between the Parties. Equity is not a
sort of independent and subjective vision that takes the place of law.
See: Sources of law, general principles equity in international law
Beyond Traditional Sources of International Law
Law-Making Through International organizations

o Codification and Progressive development
 attempts at codification of law are the result of efforts by
private organizations such as the Institut de Droit
International and the International Law Association or
by international organizations such as the United
Nations and its subsidiary organs.
 the UN General Assembly, pursuant to the Charter article
13(1), established the International Law Commission.
Composed of 34 members elected by the General Assembly
for at least a five-year term, who sit as individuals and
not as representatives of their governments, its object is
the promotion of the progressive development and
codification of international law
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 Codification: “the more precise formulation and
systematization of rules of international law in fields
where there already has been extensive State practice,
precedent and doctrine.” (ILC)
 Progressive Development: “the preparation of draft
conventions on subjects which have not yet been
regulated by international law or in regard to which the
law has not yet been sufficiently developed in the
practice of States”
o The reports, documents, and summary records of discussions of
the ILC are published by the United Nations in Yearbooks of
the International Law Commission, and they provide an
important source of evidence and opinion on the state of
customary international law
o Resolutions of the UN - Under the Charter [art. 17], the
General Assembly has clear authority to make binding
decisions only with respect to budgetary and administrative
matters of the United Nations.
 For all its other work, the General Assembly is empowered
to make “recommendations” (articles 10-16) that are not
considered binding per se but can have value as a means
for the determination of international law.
 South West Africa, Voting Procedure Case, Western Sahara
Advisory Opinion; Legality of the Threat or Use of
Nuclear Weapons, Military and Paramilitary Activities
In and Against Nicaragua
 General Assembly resolutions are so varied in purpose,
content, and support that their legal value is very
individual, depending upon the circumstances under
which they are adopted and the principles that they state
 Canadian opinion is: General Assembly resolutions do not
create legal rights or obligations for any state
 Security Council resolutions are more straightforward in
the light of the mandatory language of the Charter article
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25, which has been authoritatively interpreted by the
Court in the Namibia Case
UN Charter
Article 10 – Functions and Powers
The General Assembly may discuss any questions or any
matters within the scope of the present Charter or relating to
the powers and functions of any organs provided for in the
present Charter, and, except as provided in Article 12, may
make recommendations to the Members of the United
Nations or to the Security Council or to both on any such
questions or matters.
Article 11
1. The General Assembly may consider the general
principles of co-operation in the maintenance of
international peace and security, including the principles
governing disarmament and the regulation of armaments,
and may make recommendations with regard to such
principles to the Members or to the Security Council or to
both.
2. The General Assembly may discuss any questions relating
to the maintenance of international peace and security
brought before it by any Member of the United Nations, or
by the Security Council, or by a state which is not a
Member of the United Nations in accordance with Article
35, paragraph 2, and, except as provided in Article 12,
may make recommendations with regard to any such
questions to the state or states concerned or to the Security
Council or to both. Any such question on which action is
necessary shall be referred to the Security Council by the
General Assembly either before or after discussion.
3. The General Assembly may call the attention of the
Security Council to situations which are likely to endanger
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international peace and security.
4. The powers of the General Assembly set forth in this
Article shall not limit the general scope of Article 10.
Article 12
1. While the Security Council is exercising in respect of any
dispute or situation the functions assigned to it in the
present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation
unless the Security Council so requests.
2. The Secretary-General, with the consent of the Security
Council, shall notify the General Assembly at each session
of any matters relative to the maintenance of international
peace and security which are being dealt with by the
Security Council and shall similarly notify the General
Assembly, or the Members of the United Nations if the
General Assembly is not in session, immediately the
Security Council ceases to deal with such matters.
Article 13
1. The General Assembly shall initiate studies and make
recommendations for the purpose of: a. promoting
international co-operation in the political field and
encouraging the progressive development of international
law and its codification; b. promoting international cooperation in the economic, social, cultural, educational,
and health fields, and assisting in the realization of
human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
2. The further responsibilities, functions and powers of the
General Assembly with respect to matters mentioned in
paragraph 1 (b) above are set forth in Chapters IX and X.
Article 14
Subject to the provisions of Article 12, the General Assembly
may recommend measures for the peaceful adjustment of
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any situation, regardless of origin, which it deems likely to
impair the general welfare or friendly relations among
nations, including situations resulting from a violation of
the provisions of the present Charter setting forth the
Purposes and Principles of the United Nations.
Article 15
1. The General Assembly shall receive and consider annual
and special reports from the Security Council; these reports
shall include an account of the measures that the Security
Council has decided upon or taken to maintain
international peace and security.
2. The General Assembly shall receive and consider reports
from the other organs of the United Nations.
Article 16
The General Assembly shall perform such functions with
respect to the international trusteeship system as are
assigned to it under Chapters XII and XIII, including the
approval of the trusteeship agreements for areas not
designated as strategic.
Article 17
1. The General Assembly shall consider and approve the
budget of the Organization.
2. The expenses of the Organization shall be borne by the
Members as apportioned by the General Assembly.
3. The General Assembly shall consider and approve any
financial and budgetary arrangements with specialized
agencies referred to in Article 57 and shall examine the
administrative budgets of such specialized agencies with a
view to making recommendations to the agencies concerned.
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.
125
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F
I
D
South West Africa, Voting Procedure Case (ICJ, 1962)
The Territory of South West Africa, a German colony prior to the First World War, was entrusted to
South Africa in 1920 as a Mandate under the League of Nations Covenant. The Mandate System, of
which South West Africa is the one vestigial remnant, comprised certain colonies and territories which,
as a consequence of the war, had ceased to be under the sovereignty of the defeated states.
Resolution recommending to an Administering State a specific course of action creates some legal
obligation which, however rudimentary, elastic and imperfect, is nevertheless a legal obligation and
constitutes a measure of supervision. The State in question, while not bound to accept the
recommendation, is bound to give it due consideration in good fait
R
See: Non-traditional sources of law, General Assembly Resolutions; legal obligations
F
I
Western Sahara Advisory Opinion (ICJ, 1975)
In the summer of 1975, the court considered two questions regarding the disputed territory of Western
Sahara (then Spanish Sahara). In 1969, Spain returned the region of Ifni to Morocco.[1]
:I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory
belonging to no one (terra nullius)?
And, should the majority opinion be "no", the following would be addressed:
D
:II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian
entity?
he Sahrawi population were "overwhelmingly" in favor of independence from both Spain and
Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next
day.
For the former question, the Court decided by a vote of 13 to three that the court could make a decision
on the matter, and unanimously voted that at the time of colonization (defined as November 28, 1884),
the territory was not terra nullius (that is, the territory, did belong to someone).
For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the
opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the
Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties
between this territory and the "Mauritanian entity". However, the Court defined the nature of these
legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied
sovereignty or rightful ownership over the territory. These legal ties also did not apply to "selfdetermination through the free and genuine expression of the will of the peoples of the Territory.
Spain's last soldier departed the territory on February 26, 1976[citation needed]. The next day, the
Saharawi Arab Democratic Republic was declared by Polisario Front representatives[citation needed].
Morocco intensified their military presence in the region, and by the end of the year, Mauritania and
Morocco had partitioned the territory. Mauritania was too weak militarily and economically to compete
and were forced to renounce their claims in 1979. Morocco immediately annexed that territory in
addition. To this day, most of Western Sahara is administered by Morocco, but its sovereignty has not
been recognized by the UN or any country in the world. At the same time, 82 governments have
recognized the Sahrawi Republic as the legitimate government of Western Sahara
R
126
here the ICJ made extensive use of General Assembly resolutions in the course of establishing and
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applying the principle of self-determination of peoples
See: Non-traditional sources of law, General Assembly Resolutions
Legality of the Threat or Use of Nuclear Weapons [advisory opinion] (ICJ, 1996) (p. 51)
F
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is the threat or use of nuclear weapons in any circumstances permitted under international law? [yes,
however it was a split decision of, but majority in favour]
"There is in neither customary nor conventional international law any specific authorization of the
threat or use of nuclear weapons"
There is in neither customary nor conventional international law any comprehensive and universal
prohibition of the threat or use of nuclear weapons as such"
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the
United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful
the threat or use of nuclear weapons would generally be contrary to the rules of international law
applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in
view of the current state of international law, and of the elements of fact at its disposal, the Court
cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful
in an extreme circumstance of self-defence, in which the very survival of a State would be at stake
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to
nuclear disarmament in all its aspects under strict and effective international control
R
See: Non-traditional sources of law, General Assembly Resolutions
Military and Paramilitary Activities In and Against Nicaragua
F
I
D
The Court has however to be satisfied that there exists in customary international law an opinio juris as
to the binding character of such abstention [from the use of force]. This opinio juris may, though with all
due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards
certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations.” The effect of consent to the text of such
resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty
commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the
validity of the rule or set of rules declared by the resolution by themselves. The principle of non-use of
force, for example, may thus be regarded as a principle of customary international law.
R
See: Non-traditional sources of law, General Assembly Resolutions
Namibia Case [advisory opinion] (ICJ, 1971)
F
I
D
R
127
[see above]
Member States of the United Nations are bounded by its mandates and violations or breaches results in
a legal obligation on the part of the violator to rectify the violation and upon the other Member States
to recognize the conduct as a violation and to refuse to aid in such violation.
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See: Non-traditional sources of law, Security Council Resolutions
Jus Cogens

o refers to an open set of peremptory norms of international law
 ie. Torture: Questions Relating to the Obligation to
Prosecute or Extradite Belgium v Senegal
o Some principles of international law that have the status of jus
cogens can be found in treaties, others in custom. Michael
Byers has argued that jus cogens rules are of a constitutional
character: “Nowhere else in the international legal system is
the ability of some rules to limit the ability of States to develop,
maintain or change other rules, or to prevent them from
violating fundamental rules of international public policy, so
clear
VCLT
Article 53. norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character
ILC, Commentary on Draft Article 50, “Treaties conflicting with a
peremptory norm of general international law (jus cogens)” (1976)
the commission concluded that in codifying the law of treaties it

must start from the basis that to-day there are certain rules from
which states are not competent to derogate at all by a treaty
arrangement, and which may be changed only by another rule of
the same character.
it would therefore be going much too far to state that a treaty is void

if its provisions conflict with a rule of general international law.
nor would it be correct to say that a provision in a treaty possesses
the character of jus cogens merely because the parties have
stipulated that no derogation from that provision is to be permitted,
so that another treaty which conflicted with that provision would
be void.
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it is not the form of a general rule of international law but the

particular nature of the subject-matter with which it deals that
may, in the opinion of the commission, give it the character of jus
cogens.
The commission considered the right course to be to provide in

general terms that a treaty is void if it conflicts with a rule of jus
cogens and to leave the full content of this rule to be worked out in
state practice and in the jurisprudence of international tribunals.
o Examples:
 (a) a treaty contemplating an unlawful use of force
contrary to the principles of the charter,
 (b ) a treaty contemplating the performance of any other
act criminal under international law, and
 (c) a treaty contemplating or conniving at the commission
of acts, such as trade in slaves, piracy or genocide
The commission decided against including any examples of rules of

jus cogens in the article for two reasons.
o first, the mention of some cases of treaties void for conflict with
a rule of jus cogens might, even with the most careful drafting,
lead to misunderstanding as to the position concerning other
cases not mentioned in the article.
o secondly, if the commission were to attempt to draw up, even
on a selective basis, a list of the rules of international law
which are to be regarded as having the character of jus cogens,
it might f ind itself engaged in a prolonged study of matters
which fall outside the scope of the present articles.
The article, therefore defines rules of jus cogens as peremptory norms

of general international law from which no derogation is permitted
“and which can be modified only by a subsequent norm of general
international law having the same character.”
Questions Relating to the Obligation to Prosecute or Extradite Belgium v Senegal (ICJ, 2012)
F
129
In 2009, Belgium took Senegal to the ICJ, alleging that it had failed to comply withits obligations under the UN
Convention on Torture to prosecute Hissène Habré for acts including crimesof torture and crimes against
humanity or to extradite him to Belgium to face trial there.
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I
D
In the Court’s opinion, the prohibition of torture is part of customary international law and it has
become a peremptory norm (jus cogens). That prohibition is grounded in a widespread international
practice and on the opinio juris of States. It appears in numerous international instruments of universal
application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva
Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of
1966; General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it
has been introduced into the domestic law of almost all States; finally, acts of torture are regularly
denounced within national and international fora.
The ICJ also clarified that a state cannot justify its breach of the obligation under Article 7(1) of the
Torture Convention by invoking provisions of its domestic laws, or by invoking financial difficulties as a
reason for failing to initiate proceedings against the suspect.34 Seeking guidance from an international
organization also does not justify a state’s delay in complying with the obligations under the
Convention.35
R The ICJ held that under the Torture Convention the obligation to prosecute arises irrespective of the
existence of a prior request for the extradition of the suspect.
See: Non-traditional sources of law, Jus Cogens Norms, Torture; extradition
F
Jurisdictional Immunities of the State (ICJ, 2012)
concerning the extent of state immunity before the International Court of Justice. The case was brought
by Germany after various decisions by Italian courts to ignore the state immunity of Germany when
confronted with claims against Germany by victims of Nazi-era war crimes. The court found that Italy
was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its
courts against Germany without effect.
I
D
To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do
so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court
sees no basis for such a proposition.
A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope
and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those
substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus
cogens which would require their modification or would displace their application.
The Court has taken that approach in two cases, notwithstanding that the effect was that a means by
which a jus cogens rule might be enforced was rendered unavailable. In Armed Activities, it held that
the fact that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which it
would not otherwise possess. Thus where a foreign official is accused of criminal violations of jus cogens
rules his country should not be deprived the customary international law right to demand immunity on
his behalf.
The Court considers that the same reasoning is applicable to the application of the customary
international law regarding the immunity of one State from proceedings in the courts of another.
R
See: Non-traditional sources of law, Jus Cogens Norms and custom
Unilateral Legal Oblbigations

o it is possible for an obligatory rule to be formed by the
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unilateral action of a single state. Extremely rarely will a state
undertake an obligation of its own initiative that limits its
freedom of action vis-à-vis other states, which, in turn, are
entitled to rely upon it
o ex. Nuclear Tests Cases
o Whether legal obligations are created by a unilateral
declaration will depend on the intention of the state in
making it. No special form for making the declaration is
required nor is any quid pro quo or acceptance or reaction
from other states necessary
The Legal Bureau of the Department of External Affairs (1980)
We recognize that a State may incur obligations or acquire
rights on the plane of international law by unilateral acts, for
example, by the acceptance in writing of rights or obligations
as a “third State” under the terms of a treaty, or by a
declaration under Article 36 (the Optional Clause) of the
Statute of the International Court of Justice (a unilateral act
by which a State makes an offer to eligible parties).
Unilateral acts of the type discussed in the previous paragraph
obviously create obligations in international law which are
binding until modified or withdrawn. They should be
distinguished from a unilateral declaration of policy or a
statement of intention. Declarations of this kind are not
normally intended to give rise to obligations which can be
relied upon by other States
F
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Nuclear Tests Cases Australia v France; New Zealand v France (ICJ, 1974) (p. 58)
france, not being a party to the nuclear test ban treaty, conducted nuclear tests in the atmosphere in
the south pacific. australia and new Zealand protested and commenced these cases. before they were
heard, france ended tests and unilaterally announced it would not hold any more tests in the
atmosphere.
May declaration made through unilateral act has effect of creating legal obligations? [yes]
it is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations.
When it is the intention of the state making the declaration that it should become bound according to
its terms, that intention confers on the declaration the character of a legal undertaking, the state being
thenceforth legally required to follow a course of conduct consistent with the declaration. an
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undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within
the context of international negotiations, is binding. in these circumstances, nothing in the nature of a
quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from
other states, is required for the declaration to take effect,
Whether a statement is made orally or in writing makes no essential difference
one of the basic principles governing the creation and performance of legal obligations, whatever their
source, is the principle of good faith.
of the statements by the french government now before the court, the most essential are clearly those
made by the president of the republic.
in announcing that the 1974 series of atmospheric tests would be the last, the french government
conveyed to the world at large, including the applicant, its intention effectively to terminate these tests.
it was bound to assume that other states might take note of these statements and rely on their being
effective.
The objects of these statements are clear and they were addressed to the international community as a
whole, and the court holds that they constitute an undertaking possessing legal effect
R Declaration made through unilateral acts may have the effect of creating legal obligations.
See: Non-traditional sources of law, Unilateral legal obligations
Soft Law

o The rules that emanate from the law-creating processes listed
in article 38 are sometimes referred to as “hard law,” or lex
lata. The term lex ferenda, in contrast, refers to norms that
have not yet achieved the status of settled law. Lex ferenda is
sometimes used interchangeably with the term “soft law,” but
the latter is more accurately employed to describe instruments
that are not legally binding per se, though they affect the
conduct of international relations by states and may lead to
the development of new international law
 Ex. Helsinki Accords
o These instruments are called “soft law” because they are not
directly enforceable in domestic courts or international
tribunals. They may, however, be very influential.
 Consider the influence of the Universal Declaration of
Human Rights as the foundation of modern international
human rights law even though it is a UN General
Assembly resolution rather than a treaty.
o It is also worth bearing in mind that soft law instruments may
incorporate specific norms that are legally binding by virtue of
their status as custom or separate existence in treaties.
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 An important recent example is another General Assembly
resolution, the 2007 United Nations Declaration on the
Rights of Indigenous Peoples
APPLICATION OF INTERNATIONAL LAW IN CANADA
states are the centres of authority not only for governing their own

societies but also for ensuring the performance of international legal
obligations.
Thus states are bound to absorb or translate international laws into

domestic law in order to give effect to them within their own
jurisdiction.
Theories on domestic adoption of international law:

o Monist - international law is said to be adopted or
incorporated automatically within the internal legal system of
the state.
o Dualist - involves an act of transformation, typically
legislative, by the state to translate international law into its
domestic law.
o See Trendtex Trading Corp Ltd v Central Bank of Nigeria
given the indication in the preamble to the Constitution Act, 1867

4 that Canada has “a Constitution similar in Principle to that of
the United Kingdom,” Canadian practice has followed British
common law in the reception of international law.
o This practice distinguishes the two principal sources of
international law (custom and treaty) and, for constitutional
reasons, treats them differently
o there still awaits for final determination the force and effect of
those special rules of international law in Canada that have
reached the customary law status of jus cogens or peremptory
norms.
 See: R v. Hape customary law
o Jus Cogens reception by the Canadian legal system raises
similar issues to other customary rules but at a deeper level
because jus cogens commands obedience by all levels of
133
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government. Since customary international law is
automatically adopted as Canadian law, it would seem to
follow that a rule having the standing of jus cogens should
carry peremptory force and effect within Canada. This
conclusion raises the question whether the enactment of a
statute that conflicts with jus cogens would be valid legislation.
Judicial Notice

o Black’s Law Dictionary as “[a] court’s acceptance, for purposes
of convenience and without requiring a party’s proof, of a
well-known and indisputable fact.”
o See: The Ship “North” v The King
o The great majority of Canadian cases take judicial notice of
both customary and conventional international law without
comment that they are doing so.
 this admittedly expedient approach should not be allowed
to blur the lines between foreign law, which must be
proved, and international law, which can be judicially
noticed and applied by a court
Treaties in Canada
Treaty-Making – There is a lack of explicit allocation of the power

in the Constitution Acts to make/enter into treaties. And the
provinces and federal government have differences of opinion on the
matter
o the “royal prerogative,” which is the discretionary power of
the Crown to exercise governmental authority
o Federal Position
Canada, Department of External Affairs, Federalism and
International Relations (1968) (p. 160)

The exclusive responsibility of the federal government in
the field of treaty-making rests upon three considerations:
1 - the principles of international law relating to the
power of component parts of federal states to make
treaties;
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 the international law commission, a subsidiary
organ of the united nations general assembly, has
taken the view that the question whether a
member of a federal union can have a treatymaking capacity depends upon the constitution
of the country concerned.
2 - the constitutions and constitutional practices of
federal states; and,
 no federal constitution authorizes the constituent
parts to enter freely and independently into
international agreements.
 even in the case of constitutions which authorize
the constituent members to enter into
international agreements (Switzerland, USA,
Germany, USSR) in certain fields, all provide
that this authority must be exercised either
under federal control or through the
intermediary of the federal government.
3 - the canadian constitution and constitutional
practice.
 Constitutional practice must be considered both
prior to and after full independence (1982).
Prior to indepence the Queen through her
Governor General was responsible for external
affairs.
 It may be concluded that the foreign affairs
prerogative is now exercised by the governorgeneral. (terms of the letters patent, read in
conjunction with the 1939 provision for a great
seal for canada)
 Further judicial opinion tells us, particularly in
the Labour Conventions Case, (1937) is that the
authority to enter into international agreements
resides exclusively with the federal authority.
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 Also the BNA says federal executive is empowered
to disallow acts passed by provincial legislatures
whether or not such acts deal with matters
within the legislative competence of the
provinces. Thus, if the provincial governments
possessed treaty-making powers under the bna
act, they would be in a position in which the
federal government could prevent them from
implementing any such agreements.
 There has never been any delegation of such
prerogative powers to the lieutenant-governors of
the provinces. nor is there any authority for the
assertion that the provinces received any part of
the royal prerogative with respect to foreign
affairs and the power to make treaties.

Recognized dealings between provinces and foreign entities,
not fegarded as subject to the provisions of International Law
o it has been the practice for canadian provinces to
enter into various kinds of administrative
arrangements of an informal character with foreign
jurisdictions. Arrangements of this type often involve
the reciprocal recognition of legislation between two
jurisdictions, for example, legislation concerning
automobile licensing as between ontario and other
jurisdictions

Arrangements Between the Provinces and Foreign
Governments Which Are Subsumed Under Agreements
Between Canada and the Foreign Government Concerned
o Indemnity Agreements
 the federal government, after consultation with a
province or provinces, enters into an agreement
with the government of a foreign state on a
matter of interest to a province. The agreement is
supplemented, by an agreement between the
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Canadian federal government and the province
undertakes to provide such legislative authority
as might be necessary to enable the discharge
within its territory of its obligations under the
agreement. The province also indemnifies the
federal government in respect of any liability
that might arise by reason of the default of the
province in implementing the obligations of
canada.
 An example of this technique is the Columbia
river treaty and protocol
o Ad Hoc Covering Agreements
 allows the provincial authorities a direct way of
achieving international arrangements in matters
affecting their interests. it would normally take
the form of an exchange of notes between the
federal government and the foreign state
concerned,
 The exchange of notes gives international legal
effect to the arrangements between the province
and the foreign entity, but does not involve the
province itself acquiring international rights or
accepting international obligations. only the
canadian government is bound internationally
by the agreement, but the province participates
fully in treaty-making through co-operation
with the federal authorities.
 an example of this procedure is the “education
entente” … [signed february 27, 1965] in which
an understanding in the field of education
between Quebec and france was given
international status by an exchange of notes
between the french ambassador in ottawa and
the secretary of state for external affairs
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o General Framework Agreements or Accords Cadres
 This technique is similar to the ad hoc procedure
described above except that it is not intended to
be restricted in its application to a specific
agreement between a province and a foreign
entity, but rather to allow for future agreements
in a given field by any province which may be
interested.
 the provinces are provided with an open-ended
opportunity to provide for their interests in a
given field, for example, educational or cultural
exchanges,

Contracts Subject to Private Law
o For ex. many canadian provinces maintain offices in
the united states or europe and it may be assumed that
they have entered into contracts with governmental
agencies in the jurisdictions within which their
offices are located relating to leases, fuel and power
supply,

Co-operation in Treaty-Making and Implementation
o for some time the federal government has followed the
practice of consulting with the provinces on various
questions related to treaty-making and treatyimplementation. This procedure provides a means for
harmonizing the interests of the federal and
provincial governments and fulfilling provincial
government wises
Quebec Position - Since the Constitution Act, 1867 is silent on

treaty-making, the Quebec government, on several occasions,
especially between 1964 and 1969, has maintained that the
province has the capacity to enter into treaties with respect to
matters that are within its exclusive legislative jurisdiction.
o Quebec has enacted An Act Respecting the Ministère des
Relations Internationales.
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 The statute deals with both the conclusion of agreements
directly negotiated by the government of Quebec and with
international treaties negotiated by the government of
Canada pertaining to matters within provincial
legislative jurisdiction. Important instances of both types
of agreement must be signed by the Minister, approved by
the National Assembly, and ratified by the government
in order to become valid in respect of Quebec.
Other Provinces

o While treaties with foreign states continue to involve purely
intergovernmental matters, they increasingly concern private
interests, such as family matters and local property and civil
rights, most of which fall within provincial authority.
 As a result, a cooperative approach to treaty-making has
developed, in which federal and provincial governments
discuss Canada’s negotiating position in advance and
Canadian delegations to law-making conferences, though
led by federal officials, frequently contain provincial
representatives.
o Even if the provinces do not have treaty-making powers, they
may and do conclude international agreements with foreign
states
Ratification of Concluded Treaties by Canada

o For Canada, all the stages of treaty-making are undertaken by
the executive government as part of its constitutional authority
over foreign affairs.
 Thus Canada may in theory become bound by
international treaty rules without any involvement, even
knowledge, of elected representatives in Parliament or the
provincial legislatures.
 The undemocratic character of this process may be
contrasted with the practice of other states. In the United
States, for instance, a formal agreement negotiated by the
US government may be introduced in the Senate and its
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affirmative resolution by a two-thirds majority will give
the president authority to ratify the treaty externally and
will bring its provisions into force internally.
 In Canada, the federal government has made a practice of
laying before Parliament some treaties that it has
concluded and regards as important prior to ratifying
them, thus allowing an opportunity for their scrutiny by
members of the House of Commons. But the experience
was very spotty and the process was uncertain until a
new policy was established in 2008.
Policy on Tabling of Treaties in Parliament Canada, department of
foreign affairs and international trade, treaty law division
2. Policy Objective
The objective of this policy is to ensure that all instruments governed
by public international law, between canada and other states or
international organisations, are tabled in the House of commons
following their signature or adoption by other procedure and prior to
canada formally notifying that it is bound by the instrument.
4. Policy Statement
The government’s policy on the tabling of treaties in parliament is as
follows:
The minister of foreign affairs will initiate the tabling of all
instruments, accompanied by a brief explanatory memorandum in the
House of commons following their adoption by signature or otherwise,
and prior to canada’s expression of its consent to be bound by
ratification, acceptance, approval or accession.
5. Definition of “Treaty”
Canada adheres to the vienna convention on the law of treaties of
1969, which can be described as a codification of public
international law on treaties. The convention defines treaty in article
2 as follows:
“treaty means an international agreement concluded between states
in written form and governed by international law, whether
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embodied in a single instrument, or in two or more related
instruments and whatever its particular designation.”
canada is a party to many such instruments. These can be called
treaty, convention, agreement, protocol or some similar word. an
exchange of diplomatic notes or letters can also be a treaty.
6. Policy Requirements
…..
6.2 Tabling Period for Treaties
The government can accept the obligations within many treaties
without new legislation. in other cases, canada must amend its
domestic law before undertaking treaty obligations.
a. When treaties do not require implementing legislation, the
government will observe a waiting period of at least twenty-one
sitting days after a treaty is tabled before taking legal steps to bring
the treaty into force.

During this twenty-one sitting day period, Members of
Parliament could initiate a debate. members of parliament
might also request a vote on a motion regarding the treaty in
the House of commons. for example, opposition parties may use
an opposition day to debate and to present and subsequently
vote on a motion.
• The Government will not seek the legal authority to be
bound by the instrument before this twenty-one day period
has been observed.
b. for treaties that require implementing legislation before the
government can proceed to ratification, acceptance, approval or
accession (“ratification”), the government will:

Observe a waiting period of at least twenty-one sitting
days before the introduction of the necessary implementing
legislation in parliament;

Will allow Members of Parliament the same opportunities
to debate, present and vote on motions, as for those treaties
which do not require implementing legislation;
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
Will subsequently introduce the implementing legislation
for these treaties;

Seek, only when the legislation is adopted, the
authorisation from the Governor in council to express
consent to be bound by the treaty.
6.4 Explanatory Memorandum
An explanatory memorandum will accompany each treaty that is
tabled in the House of commons.
6.6 Post-Tabling
once a treaty and its explanatory memorandum have been tabled in
the House of commons and the waiting period has passed:
a. The government will consider any concerns raised by the
opposition parties during the tabling process. …
b. The government will then decide whether to ratify the treaty or
to introduce legislation that may be necessary before bringing the
treaty into force.
c. if the government decides to proceed, the treaty section of the
department of foreign affairs and international trade will work …
to complete the final process:

A submission to the Governor in Council to obtain the
authorisation to ratify the treaty; and

Once the Order in Council is granted, the Treaty Section
… will take the necessary actions to bring the treaty into
force.
Modes of Treaty Implementation
1 - incorporate the actual text of the treaty into the domestic law
2 - incorporate the substance of the treaty into Canadian law. In
this case, the text of the treaty does not become a part of the
domestic law; the source of rights and obligations is that part of the
domestic law that reflects the treaty’s substance
3 - legislation is occasionally enacted to give effect to a whole class
of treaties as each one is concluded.
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4 - incorporate the underlying treaty as it may be amended over
time, thus requiring direct reference to the current status of the
agreement itself in order to fully understand the scope of the
legislative provision.
Explicit legislative approval or confirmation of a treaty is not

necessarily equivalent to implementation. Ex. Pfizer Inc v Canada
o Whenever a statute is not explicit, there may also be difficulty
in determining whether the treaty in question has actually
been implemented. (Ex. National Corn Growers Assn v Canada,
and MacDonald v. Vapor)
o In addition, there remains the conundrum about how to
regard those treaty obligations which Crown officials in the
Department of Justice have deemed not to require new
legislation because their substance can be found in existing
common or statute law.
Conflicts Between International Law and Canadian Law
Customary international law, is adopted as part of the law of

Canada in the absence of conflicting legislation (R v. Hape). So
customary law clearly modifies existing common law but has no
effect in the face of clearly contrary legislation.
When a statute conflicts with a treaty that has not been

implemented by any other enactment, the statute prevails, although
the treaty may have some effects on the way the statute is interpreted
Interpretation of Implemented Treaties
In Canadian practice, there used to be three different general

approaches to interpreting the words of a statute:
(1) apply the plain meaning in ordinary usage (sub nom. the
textual approach);
(2) apply the particular meaning in their context (the
intentional approach); and
(3) when they are unclear, apply the object and spirit of the
legislation as a whole (the teleological or purposive approach).
Today there is only one approach combining all three: “the words of

an Act are to be read in their entire context, in their grammatical
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and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament”.
The international interpretation stance is found in Article 31 and

32 of the VCLT, the SCC is now in favour of using international
rules for treaty interpretation
Vienna Convention on the Law of Treaties
Article 31 – General rules of interpretation
1. a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between
all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in
connexion with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the
relations between the parties.
4. a special meaning shall be given to a term if it is established that
the parties so intended.
Article 32 – Supplemental Rules of Interpretation
recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
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(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Trendtex Trading Corp Ltd v Central Bank of Nigeria
F
I
D
Monist theory says that the rules of international law are adopted into English law automatically and
considered to be part of English law unless they are in conflict with an Act of Parliament. Dualist theory
holds to the doctrine of transformation. It says that the rules of international law are not to be
considered as part of English law except in so far as they have been already adopted and made part of
our law by the decisions of the judges, or by Act of Parliament, or long established custom.
The difference is vital when you are faced with a change in the rules of international law. Monist theory,
when the rules of international law change, our English law changes with them. But, under dualist
theory, the English law does not change. It is bound by precedent. It is bound down to those rules of
international law which have been accepted and adopted in the past. It cannot develop as international
law develops.
Lord denning thinks the doctrine of incorporation (adoption) (Monist theory) was the correct one for
English law in respect of customary international law.
R
Notes: there is debate on the scope the adoptionist approach (monist theory) Professor Crawford, for example,
has suggested that the proper understanding is “not that custom forms part of the common law … but that it is
a source of common English law that the courts may draw upon as required,” and that “the relationship of
custom and the common law is more nuanced than either the doctrines of incorporation (monist) or
transformation would suggest (dualist)
See: Application of international law in Canada, Theories on adoption, adoptionist approach, monist theory
F
I
D
145
R v Hape (SCC, 2007) (p. 151)
[in the course of investigating Hape’s money-laundering activities between canada and the turks and
caicos islands (t&c), rcmp officers made searches and seizures in t&c with the permission and under the
control of t&c police and in accordance with t&c law.
The sole issue in this appeal is whether s. 8 of the Charter applies to searches and seizures conducted by
rcmp officers outside canada. This issue requires the court to consider the question of the
extraterritorial application of the Charter. This in turn requires the court to consider the more general
question of the relationship between canadian criminal and constitutional law, on the one hand, and
public international law, on the other
Despite the court’s silence in some recent cases, the doctrine of adoption (monist theory) has never
been rejected in canada.
in my view, following the common law tradition, it appears that the doctrine of adoption operates in
canada such that prohibitive rules of customary international law should be incorporated into domestic
law in the absence of conflicting legislation.
customary international law is only adopted “in the absence of conflicting legislation.” Constitutionally,
Parliament and the provincial legislatures are sovereign and therefore the courts must apply their
enactments even if they conflict with international law and potentially place Canada in breach of it.
customary international law should be automatically adopted within Canadian law and thus becomes
part of the common law and may influence the interpretation of statutes, both federal and provincial.
“automatic incorporation” is justified by the fact that “international custom, as the law of nations, is also
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the law of Canada” (assuming Parliament has not legislated to the contrary, as discussed above).
“the courts may look to … customary international law to aid in the interpretation of Canadian law and
the development of the common law.” The reception of international law into Canadian law, whether by
adoption or transformation, is entirely different from the use of international law as an aid to interpret
Canadian law,
R
See: Application of international law in Canada, custom
F
I
D
146
Suresh v Canada (Minister of Citizenship and Immigration) (SCC, 2002) (p. 154)
suresh was recognized as a refugee in canada but later he was detained with a view to deportation on
account of his membership in the tamil tigers, which was considered to be a terrorist group by the
canadian government. He sought judicial review of his deportation order on the ground that he risked
being tortured if returned to sri lanka. The case turned on the application of section 53(1)(b) of the
Immigration Act, which, in giving statutory effect to a provision of the convention relating to the status
of refugees (refugee convention), declared that a refugee may not be removed from canada to a
country where the individual’s life or freedom would be threatened, except when the minister
determined that he or she constituted a danger to the security of canada. suresh asserted that this
provision violated the principle of fundamental justice in section 7 of the canadian charter. T he supreme
court ultimately decided that suresh could not be deported without a further and fairer hearing, but in
its reasons for judgment, a unanimous bench considered arguments based upon jus cogens as well as
submissions about conflicts among relevant treaties and between those treaties and canadian
legislation and the canadian charter
international treaty norms are not, strictly speaking, binding in canada unless they have been
incorporated into canadian law by enactment. However, in seeking the meaning of the canadian
constitution, the courts may be informed by international law.
in our view, the prohibition in the iccpr and the cat on returning a refugee to face a risk of torture
reflects the prevailing international norm. article 33 of the Refugee Convention protects, in a limited
way, refugees from threats to life and freedom from all sources. by contrast, the cat protects everyone,
without derogation, from state-sponsored torture.
recognition of the dominant status of the cat in international law is consistent with the position taken
by the un committee against torture, which has applied article 3(1) even to individuals who have
terrorist associations.
We conclude that the better view is that international law rejects deportation to torture, even where
national security interests are at stake. This is the norm which best informs the content of the principles
of fundamental justice under s. 7 of the Charter.
The minister is obliged to exercise the discretion conferred upon her by the Immigration Act in
accordance with the constitution. This requires the minister to balance the relevant factors in the case
before her. …
in canada, the balance struck by the minister must conform to the principles of fundamental justice
under s. 7 of the Charter. it follows that insofar as the Immigration Act leaves open the possibility of
deportation to torture, the minister should generally decline to deport refugees where on the evidence
there is a substantial risk of torture.
We do not exclude the possibility that in exceptional circumstances, deportation to face torture might
be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s.
1. … insofar as canada is unable to deport a person where there are substantial grounds to believe he or
she would be tortured on return, this is not because article 3 of the cat directly constrains the actions of
the canadian government, but because the fundamental justice balance under s. 7 of the Charter
generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it
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will rarely be struck in favour of expulsion where there is a serious risk of torture.
in these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter. What is at issue is not the
legislation, but the minister’s obligation to exercise the discretion s. 53 confers in a constitutional
manner.
R
See: Application of international law in Canada, custom, jus cogens
F
I
D
Bouzari v Islamic Republic of Iran (OC-CA, 2004)
the Ontario Court of Appeal addressed the definition of jus cogens in the context of a claim by the
plaintiff against Iran for damages resulting from his abduction and torture by agents of that state.
Justice Goudge referred to peremptory norms as “a higher form of customary law,” from which “no
derogation is permitted.” The status of the prohibition of torture as jus cogens was not contested in the
Court of Appeal, but it was found that the scope of the rule did not extend to overriding Iran’s right to
immunity from suit in Canadian courts. The Court determined that though there is a jus cogens right to
be free from torture, there is not necessarily a civil remedy for breach of it.
R
See: Application of international law in Canada, custom, jus cogens
The Ship “North” v The King (SCC, 1906)
F
I
D
concerned the application of the international law of hot pursuit. He said: “the Admiralty Court … is
bound to take notice of the law of nations” and the right of hot pursuit “being part of the law of nations
was properly judicially taken notice of and acted upon”
R
See: Application of international law in Canada, custom, notice
The Attorney General of Canada v The Attorney General of Ontario and others Labour Conventions Case
(PC,1937)
F andmark decision of the Judicial Committee of the Privy Council concerning the distinct nature of
federal and provincial jurisdiction in Canadian federalism.
I
D Chief justice duff: “as regards all such international arrangements, it is a necessary consequence of the
respective positions of the dominion executive and the provincial executives that this authority (to enter
into international agreements) resides in the parliament of canada. The lieutenantgovernors represent
the crown for certain purposes. but, in no respect does the lieutenantgovernor of a province represent
the crown in respect to relations with foreign governments. The canadian executive, again,
constitutionally acts under responsibility to the parliament of canada and it is that parliament alone
which can constitutionally control its conduct of external affairs.”
R the authority to enter into international agreements resides exclusively with the federal authority.
See: Application of international law in Canada, treaty-making, federal powers
F
147
Pfizer Inc v Canada (SCC, 2012)
Pfizer’s patent relating to sildenafil, the effective compound in Viagra, did not meet the disclosure
requirements of the Patent Act, R.S.C. 1985, c. P 4. The Court deemed the patent to be invalid because
of Pfizer’s failure to comply with those requirements. As a result of the decision, other pharmaceutical
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companies, including the appellant Teva Canada Limited, will have an opportunity to begin selling
generic versions of the drug in advance of the patent’s expiry date in 2014.
I
D
the Federal Court held that the statement in part I, section 8 of the World Trade Organization
Implementation Act that “the [WTO] agreement is hereby approved” did not translate the Agreement
as a whole into Canadian law. By contrast, part II, headed “Related and Consequential Amendments,”
made a large number of specific changes to federal statutes so as to give domestic legal effect to
particular provisions of the WTO Agreement. Whether an implementation act in name does or does not
implement a treaty in fact is a matter of ordinary statutory construal of its intended function
R
See: Application of international law in Canada, Modes of Treaty Implementation, implementation acts
F
I
D
National Corn Growers Assn v Canada (Import Tribunal) (SCC, 1990)
The Canadian Import Tribunal conducted an inquiry of the importation of grain from the US under s.42
of the Special Import Measures Act. The Tribunal found that the subsidization of grain imports were
potentially the cause of "material injury" to the production in Canada.
The National Corn Growers Association applied for judicial review of the decision. They argued that the
Tribunal had no jurisdiction to determine potential injuries under the Act.
whether it was acceptable for the Canadian Import Tribunal to have referred to the General Agreement
on Tariffs and Trade (GATT) and its Code on Subsidies and Countervailing Measures for the purpose of
interpreting section 42 of the Special Import Measures Act?
judges in both the Federal Court of Appeal and the Supreme Court were divided in their
interpretations.
Justice Gonthier expressed the majority view that it was reasonable to make reference to the
underlying treaty at the very outset of consideration of the domestic legislation as an aid to its
interpretation.
R
Dis
Wilson J: It is not the court’s role on an application for judicial review to look beyond the Tribunal’s statute
to determine whether the Tribunal’s interpretation of that statute is consistent with Canada’s
international obligations. If the interpretation is not consistent with Canada’s obligations under the GATT,
then it is for the legislature to address this matter
See: Application of international law in Canada, Modes of Treaty Implementation, implementation acts,
interpretations
F
I
D
148
R v Hape (SCC, 2007) (p. 182)
RCMP officer conducted a search and seizure of a Canadian businessman in the Turks & Caicos Islands
who was suspected of money laundering. Detective of domestic police force wanted to stay in charge of
investigation.
Are the actions of the police officer subject to the Charter?
legislation will be presumed to conform to international law. The presumption of conformity is based on
the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic
law pursuant to which the state would be in violation of its international obligations, unless the wording
of the statute clearly compels that result.
The presumption has 2 aspects:
 first, the legislature is presumed to act in compliance with canada’s obligations as a signatory of
international treaties and as a member of the international community. in deciding between
possible interpretations, courts will avoid a construction that would place canada in breach of
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those obligations.
 The second aspect is that the legislature is presumed to comply with the values and principles of
customary and conventional international law.
The presumption is rebuttable, however. parliamentary sovereignty requires courts to give effect to a
statute that demonstrates an unequivocal legislative intent to default on an international obligation
The presumption applies equally to customary international law and treaty obligations.
This court has also looked to international law to assist it in interpreting the Charter. Whenever possible,
it has sought to ensure consistency between its interpretation of the Charter, on the one hand, and
canada’s international obligations and the relevant principles of international law, on the other.
R The judgment in this case confirms that the Canadian constitutional principle of parliamentary
sovereignty requires the courts to give effect to a statute that clearly and deliberately contravenes
international law binding on Canada, whether customary or conventional
Even so, conflicts between Canadian law and international law are not to be expected; indeed, to the
contrary, “legislation will be presumed to conform to international law” (paragraph 53). Consequently
courts must strive to interpret and apply a statute in a way that complies with international law binding
on Canada
Because of comity, Charter doesn’t apply unless 1) there has been a violation of international human
rights or 2) the domestic state gives direct consent.
See: Application of international law in Canada, Modes of Treaty Implementation, conflicts between Canadian
and International law
F
Slaight Communications v. Davidson (SCC)
Appellant dismissed Davidson from job as "radio time salesman" on ground of inadequate performance.
Davidson filed complaint for unjust dismissal. Failure to settle complaint among parties. Davidson asked
that complaint be referred to adjudicator.
I
D
“the Charter should generally be presumed to provide protection at least as great as that afforded by
similar provisions in international human rights documents which Canada has ratified.”
employs a presumption of minimum Charter rights by reference to international standards, without
limiting the possibility of wider or greater Canadian constitutional protections
R minimum standard of international human rights to the Charter as directed by Slaight Communications
Notes: Overruled by the Hape ‘presumption of conformity’
See: Application of international law in Canada, Modes of Treaty Implementation, conflicts between Canadian
and International law; charter
F
I
D
Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia
In a stunning decision reached on June 8, 2007, the Supreme Court of Canada finally recognized a
constitutional right to collective bargaining. The decision overturned the Court's previous jurisprudence
in which it held that collective bargaining was not protected by the guarantee of freedom of association
in s. 2(d) of the Canadian Charter of Rights and Freedoms.
[T]he Charter, as a living document, grows with society and speaks to the current situation and needs of
Canadians. Thus Canada’s current international law commitments and the current state of international
thought on human rights provide a persuasive source for interpreting the scope of the Charter. … It is
reasonable to infer that … the Charter should be interpreted as recognizing at least the same level of
protection
R
Notes: Came out the day after Hape, seen as a return to minimum standard of international human rights to the
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Charter applied in Slaight Communications
See: Application of international law in Canada, Modes of Treaty Implementation, conflicts between Canadian
and International law; charter
F
I
D
Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC, 1998) (p. 186)
pushpanathan claimed refugee status in canada under the convention relating to the status of refugees
as implemented by the Immigration Act. His claim was denied by virtue of article 1f(c) of the
convention, which excludes individuals “guilty of acts contrary to the purposes and principles of the
united nations.” in reversing this decision, the supreme court discussed the interpretation of the
convention incorporated in the statute.
Should international sources be used in interpreting the immigration act [yes]
although some non-governmental organizations advocated the determination of exclusion under article
1f(c) of the convention by the united nations High commissioner for refugees, it was ultimately decided
that each contracting state would decide for itself when a refugee claimant is within the scope of the
exclusion clause … . since the purpose of the act incorporating article 1f(c) is to implement the
underlying convention, the court must adopt an interpretation consistent with canada’s obligations
under the convention.
Court uses Article 31 and 32 of VCLT
R
Notes:
See: Application of international law in Canada, Modes of Treaty Implementation, Treaty interpretation
F
I
D
R v Parisien (SCC, 1988)
Appellant, a Canadian citizen, was arrested in Brazil after a warrant for arrest on a charge of fraud had
been laid against him in Canada. There was no extradition treaty between Canada and Brazil, but an
arrangement was entered into by the two countries which provided in particular that no surrender
should take place unless the requesting state agreed that the person surrendered would not be
imprisoned nor tried for other acts which occurred before the extradition request.
Appellant was surrendered to Canada in respect of five counts of fraud and was tried and sentenced. At
the expiry of the sentence, Crown counsel notified appellant that further charges for offences
committed prior to his extradition would be proceeded with. On appellant's return to Canada from a
visit to Portugal, a new information was sworn charging him with thirty-nine offences.
Hoe should the court interpret the extradition arrangement?
the Supreme Court stated that in interpreting the extradition treaty between Canada and Brazil, as in
the case of other international agreements, it must be read in context and in the light of its object and
purpose as well as in the light of general principles of international law.
R
See: Application of international law in Canada, Modes of Treaty Implementation, interpretation
End of PIL
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) (SCC,
2004) (p 189)
F The supreme court had to decide whether section 43 of the Criminal Code, which allows
parents and teachers to use minor physical force to discipline children under their care,
violated section 7 or 15 of the charter or was otherwise void as being constitutionally vague.
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in the course of deciding that the provision was constitutionally valid, the court referred to a
variety of international instruments.
I Can international instruments be used to clarify vague concepts within the consititution [yes]
D Statutes should be construed to comply with canada’s international obligations: Ordon Estate
v. Grail, [1998] 3 s.c.r. 437, at para. 137.
Canada’s international commitments confirm that physical correction that either
harms or degrades a child is unreasonable. [32] Canada is a party to the united
nations Convention on the Rights of the Child. Article 5 of the convention requires
state parties to respect the responsibilities, rights and duties of parents or … other
persons legally responsible for the child, to provide, in a manner consistent with the
evolving capacities of the child, appropriate direction and guidance in the exercise by
the child of the rights recognized in the present convention. article 19(1) requires the
state party to protect the child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.
From these international obligations, it follows that what is “reasonable under the
circumstances” will seek to avoid harm to the child and will never include cruel, inhuman or
degrading treatment.
The european court of Human rights, in determining whether parental treatment of a child
was severe enough to fall within the scope of article 3, held that assessment must take
account of “all the circumstances of the case, such as the nature and context of the treatment,
its duration, its physical and mental effects and, in some instances, the sex, age and state of
health of the victim”
international treaties that are contextually relevant, as well as other related international
materials, may be used by a court to inform its interpretation of a statute. It also shows the
readiness of courts to refer to international treaties to which Canada is a party whether they
have been implemented into Canadian law by specific legislation or not
R Canadian law should be brought in line with treaty obligations. Courts are free to use treaties
and international court rulings to interpret obligations
Notes: Notice the court use of a Euro Court of Human Rights ruling, which is not binding upon
Canada
in short, it considered a foreign court’s opinion of a foreign treaty. Since “[s]tatutes should be
construed to comply with Canada’s international obligations” (paragraph 31), the Supreme
Court surely crossed a line in this case without explaining itself: the European Convention is not
law for Canada, unlike the other treaties the Court referred to.90 The failure to make this
distinction is common and may have come about under the influence of judicial reference to
“relevant and persuasive” international human rights instruments as aids to interpretation of the
Canadian Charter.
This is opposite to the position adopted in Amaratunga v Northwest Atlantic Fisheries
Organization
Considered Convention on the Rights of the Child and the ICCPR. Notice that the Chief Justice
made no mention, comparable to Justice L’Heureux-Dubé (in Baker), of treaty implementation,
of direct application, or of treaty values and principles. She simply proceeded to apply the
contextual approach to statutory interpretation by calling in aid relevant international treaties
and practice under them in accordance with the presumption of legislative compliance with
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Canada’s international obligations.
See: Treaties in Canada, statutory interpretation, international sources
F
Amaratunga v Northwest Atlantic Fisheries Organization
The appellant plaintiff in Amaratunga claimed for breach of a contract of employment and of
a post-employment contract by the defendant organization, which, in response, relied on
immunity granted under an order issued pursuant to statute
I
D it is noteworthy how the Supreme Court dealt with the introduction by the Canadian Civil
Liberties Association, as intervenor, of the jurisprudence of the European Court of Human
Rights concerning the interpretation of rights similar to section 2(e) of the Canadian Bill of
Rights 93 (right to a fair hearing). Justice LeBel summarily dismissed the relevance of the
case law, stating that “the European cases upon which the intervener relies arose in a
different legal context, namely that of the [European Convention].”94 He likewise rejected
any relevance of this jurisprudence to an interpretation of the right to a court hearing found
in article 14(1) of the ICCPR,95 despite the substantially identical nature of the relevant
provisions. Furthermore, compare for consistency LeBel J’s refusal to consider the European
jurisprudence in Amaratunga with his directives in Hape
R
Notes: Opposition position of the SCC on international sources to the spanking case.
See: Treaties in Canada, statutory interpretation, international sources
Impact of Unimplemented Treaties
 Although the courts have said often enough that a treaty must be implemented by legislation
in order to change existing Canadian law, they do not exclude the influence of
unimplemented conventions. As the Supreme Court confirmed in R v Hape, the courts should
do their best to avoid interpretations of domestic law which would violate Canada’s treaty
obligations
 Definition of unimplemented treaties:
o When a treaty’s provisions require a change in domestic law but the necessary
legislation has not been passed.
 The federal gov holding up ratification until at least most of the required
implementing legislation is in place reduces the number of occasions on
which unimplemented treaties are an issue before the courts.
 treaties whose stipulations are thought to be already embodied in Canadian
law. These treaties are binding on Canada but their provisions have not been
addressed by specific legislation because the Department of Justice has
determined that the existing law of Canada, federal and/or provincial, is
sufficient
 An important group of treaties in this position are all the human rights
conventions to which Canada is a party. Often the courts seem not to
take into account the possibility that this category of treaties is already
encompassed by Canadian law but simply treat them as
unimplemented
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
In court the parties may always urge the use of a human rights treaty binding on Canada as an
aid to interpret the Canadian Charter, but they may not demand direct application of any of
its provisions.
o As a result, there is no way to challenge the original assessment of the Department of
Justice that no new legislation was necessary. Put another way, there is no
opportunity for complainants to rely directly on their internationally protected human
rights before a Canadian court.
Professor R St J Macdonald, “The Relationship Between International Law and Domestic
Law in Canada”
Suggestion: “To the separation of powers between the Crown and parliament, it is submitted that
this could be preserved while still enabling (and forcing) Canada to fulfill her international
obligations by according ratified but unimplemented treaties a status superior to common law but
inferior to statute. Thus, if a ratified treaty changed domestic law which was not covered by
statute, the treaty would be effective even without legislation. If the treaty changed domestic law
governed by statute, the statute and the treaty would be interpreted to avoid conflict, but if that
were impossible then the statute would rule until and unless the treaty were implemented by
legislation. Thus parliament would still have the final word, yet Canada’s solemn international
commitments would have some meaning”
 In line with this, Australian and English Courts have already expected legitimate that the
Minister, when exercising his discretion under immigration law, would act in conformity
with unimplemented treaties and required the Minister to do so. (Minister of Immigration
and Ethnic Affairs v Ah Hin Teoh; R v Secretary of State for the Home Department, Ex
parte Ahmed)
Baker v. Canada (Minister of Citizenship and Immigration) (SCC, 1999) (p. 192)
Ms. baker, a jamaican citizen, entered canada in 1981 but never acquired permanent resident
status. she gave birth to four children in canada. she was ordered deported in 1992 but she
sought to apply for permanent residency based on humanitarian and compassionate grounds
(H & c), pursuant to the Immigration Act, section 114(2). The immigration officer denied her
application, stating there were insufficient H & c considerations. ms. baker appealed on
several grounds, including the argument that the minister’s discretion under section 114(2)
had been improperly exercised. part of this argument depended on the international
convention on the rights of the child, to which canada is a party.
I (1) Can the convention on the rights of the child be used to inform Canadian human rights
law regarding asylum? [yes] (2) Should the best interests of children must be a primary
consideration when assessing an applicant under s. 114(2) and the regulations. [yes]
D indicator of the importance of considering the interests of children when making a
compassionate and humanitarian decision is the ratification by canada of the Convention on
the Rights of the Child, and the recognition of the importance of children’s rights and the
best interests of children in other international instruments ratified by canada. international
treaties and conventions are not part of canadian law unless they have been implemented by
statute: Francis v. The Queen, [1956] s.c.r. 618, at p. 621; Capital Cities Communications
Inc. v. Canadian Radio-Television Commission, [1978] 2 s.c.r. 141, at pp. 172-73. i agree
with the respondent and the court of appeal that the convention has not been implemented by
F
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parliament. its provisions therefore have no direct application within canadian law. [70]
nevertheless, the values reflected in international human rights law may help inform the
contextual approach to statutory interpretation and judicial review.
The principles of the convention and other international instruments place special importance
on protections for children and childhood, and on particular consideration of their interests,
needs, and rights. They help show the values that are central in determining whether this
decision was a reasonable exercise of the H & c power. …
While deference should be given to immigration officers on s. 114(2) judicial review
applications, decisions cannot stand when the manner in which the decision was made and
the approach taken are in conflict with humanitarian and compassionate values. T he
minister’s guidelines themselves reflect this approach. However, the decision here was
inconsistent with it.
for the exercise of the discretion to fall within the standard of reasonableness, the decisionmaker should consider children’s best interests as an important factor, give them substantial
weight, and be alert, alive and sensitive to them. That is not to say that children’s best
interests must always outweigh other considerations, or that there will not be other reasons
for denying an H & c claim even when children’s interests are given this consideration.
However, where the interests of children are minimized, in a manner inconsistent with
canada’s humanitarian and compassionate tradition and the minister’s guidelines, the
decision will be unreasonable. … [76] Therefore, … because the exercise of the H & c
discretion was unreasonable, i would allow this appeal.
R Justice L’HeureuxDubé, writing for the majority of the Court, found that the Convention on
the Rights of the Child had no direct application within Canadian law, she did allow the
Convention’s “values and principles” to inform her judgment as to the statutory standard
expected of decisionmakers in adjudicating H & C applications.
Notes: shows the important impacts of a treaty on domestic law even if it is judicially regarded
as unimplemented,
Decisions is based on the presumption of legislative conformity with international law, which
encompasses, first, a presumption of legislative compliance with binding international
obligations and, second, an expectation of legislative “respect” for the values and principles of
international law
Contrast with Hape where the court said: expectation that the legislature will “comply” with the
values and principles,
It is hardly to be believed that the federal government would ratify such a significant human
rights treaty and then fail to promote its implementation by legislation unless it determined that
none was needed. Thus the case also highlights the unresolved misunderstanding between the
courts and the government about the circumstances in which treaties are to be treated as part of
Canadian law.
See: Treaties in Canada, statutory interpretation, international sources, unimplemented treaties
Németh v Canada (Justice) ()
F [see above]
I
D Any remaining doubt about the hierarchy of the competing concepts of “conformity,”
“compliance,” and “respect” for obligations versus values and principles is removed.
Justice Cromwell carefully delineates the varying status and attendant interpretive
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consequences of the different sources: “I also accept, of course, that, where possible, statutes
should be interpreted in a way which makes their provisions consistent with Canada’s
international treaty obligations and principles of international law. … [I]t is presumed that
the legislature acts in compliance with Canada’s obligations as a signatory of international
treaties and as a member of the international community as well as in conformity with the
values and principles of customary and conventional international law”
R
Notes:
See: Treaties in Canada, statutory interpretation, international sources, unimplemented treaties
Indian Treaties
 reflects the fact that the agreements with the indigenous peoples living in Canada are
referred to as treaties in the Indian Act,
 the question of interest in the present context is whether these agreements may also be
international treaties. An affirmative answer would mean that they are not limited in their
effect to the constitutional status and judicial interpretation prescribed by Canada but they
are opposable to Canada in international fora.
 SCC found indian treaties are not created or interpreted under international law (simon)
o However international law might not have the same answer:
 Consier intertemporal principle of interpretation: namely specific
treaty must take into account that one must always interpret a
document in the context of its historical making and according to the
law of its day (Samson v The Queen, 1957)
 Additionally, in bringing the original meaning and intent of the
document forward into contemporary circumstances of operation,
its interpretation must take account of any subsequent agreement
or practice of the parties.
 The Canadian approach to historical treaties expressed by the Supreme Court may
usefully be compared with the international practice in concluding and interpreting
treaties that has developed under customary international law.
o the definition of a treaty and the rules of treaty-making and interpretation set out
in the Vienna Convention on the Law of Treaties, reflect modern treaty practice,
they incorporate to a high degree the customary law of treaties. Indeed the
customary rules of treaty law continue to exist in parallel with the Vienna
Convention to govern agreements that fall outside the specific limits of the
Convention.
o The international effect of historic Indian treaties may be assessed against these
norms.
 how close does the following Mi’kmaq Treaty come to being an international treaty
enforceable against Canada today?
Treaty of 1752 Between His Majesty the King and the Mi’kmaq
treaty or articles of peace and friendship renewed
between His excellency and delegates of the said tribe, for themselves and their said tribe their
Heirs, and the Heirs of their Heirs forever
1. it is agreed that the articles of submission and agreement, made at boston in new england by
the delegates in the year 1725 ratified & confirmed by all the nova scotia tribes, at annapolis
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royal, in the month of june 1726, & lately renewed with governor cornwallis at Halifax, &
ratified at st. john’s river, now read over, explained and interpreted, shall be and are hereby from
this time forward renewed, reiterated, and forever confirmed by them and their tribe;
2. That all transactions during the late War shall on both sides be buried in oblivion with the
Hatchet, and that the said indians shall have all favour, friendship & protection shewn them from
this His majesty’s government.
3. That the said tribe shall use their utmost endeavours to bring in the other indians to renew and
ratify this peace, and shall discover and make known any attempts or designs of any other
indians or any enemy whatever against His majestys subjects within this province so soon as
they shall know thereof and shall also hinder and obstruct the same to the utmost of their power,
and on the other hand if any of the indians refusing to ratify this peace, shall make War upon the
tribe who have now confirmed the same;
4. it is agreed that the said tribe of indians shall not be hindered from, but have free liberty of
Hunting & fishing as usual:
5. That a Quantity of bread, flour, & such other provisions as can be procured, necessary for the
familys, and proportionable to the number of the said indians, shall be given them half yearly for
the time to come;
6. That to cherish a good Harmony & mutual correspondence between the said indians & this
government, hereby promises on the part of His majesty, that the said indians shall upon the first
day of october Yearly, so long as they shall continue in friendship, receive presents of blankets,
tobacco, and some powder & shot; and the said indians promise once every Year, upon the first
of october to come by themselves or their delegates and receive the said presents and renew their
friendship and submissions. …
8. That all disputes whatsoever that may happen to arise between the indians now at peace, and
others His majesty’s subjects in this province shall be tryed in His majesty’s courts of civil
judicature, where the indians shall have the same benefit, advantages and priviledges, as any
others of His majesty’s subjects.
at Halifax this 22nd day of nov. 1752, in the twenty sixth year of His majesty’s reign.
F
Simon v The Queen (SCC, 1985)
Appellant, a registered Micmac Indian, was convicted under s. 150(1) of Nova Scotia's
Lands and Forests Act for possession of a rifle and shotgun cartridges. Although appellant
admitted all essential elements of the charges, it was argued that the right to hunt set out in
the Treaty of 1752, in combination with s. 88 of the Indian Act , offered him immunity from
prosecution under the provincial act. Article 4 of that Treaty stated that the Micmacs have
"free liberty of Hunting & Fishing as usual" and s. 88 provided that provincial laws of
general application applied to Indians, subject to the terms of any treaty.
I
D in the course of determining the status of the Treaty of 1752 between the Mi’kmaq of
Maritime Canada and the British Crown, the Supreme Court observed: “While it may be
helpful in some instances to analogize the principles of international treaty law to Indian
treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement
sui generis which is neither created nor terminated according to the rules of international
law.”
In the course of determining the status of the particular agreement in that case—that is,
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whether it qualified as a treaty within the Indian Act—the Supreme Court adopted the view
that “[t]he question is … to be resolved not by the application of rigid rules of construction
without regard to the circumstances existing when the document was completed nor by the
tests of modern day draftsmanship.”
R the Supreme Court expressed what it regarded as a “generally accepted view that Indian
treaties should be given a fair, large and liberal construction.”
Court applied intertemporal treaty interpretation
Notes: Although this opinion of the Supreme Court as to the character and status of Indian
treaties may be definitive from a Canadian constitutional viewpoint, it is not necessarily the final
word on the international plane. Would an international tribunal reach the same conclusion?
See: Treaty implementation, Indian Treaties, Status under international law; intertemporal
treaty interpretation
F
R v Sioui (SCC, 1990)
In the Sioui case (1990), 4 aboriginal persons (Régent, Conrad, Georges and Hugh Sioui)
were charged with having cut trees, camped and set fires at places not designated for such
purposes at Jacques Cartier Park in Québec, contrary to sections 9 and 37 of the regulations
I
D the Supreme Court expanded on its views in Simon by remarking on three important and
separate features of treaties and treaty-making. The Court stated: (1) “In our quest for the
legal nature of the document … we should adopt a broad and generous interpretation of what
constitutes a treaty,” (2) “this liberal and generous attitude, heedful of historical fact, should
also guide us in examining the preliminary question of the capacity to sign a treaty,” and (3)
“once a valid treaty is found to exist, that treaty must in turn be given a just, broad and
liberal construction.” Further, in reviewing a great amount of historical evidence, the Court
noted it had been presented for three distinct purposes: (1) to substantiate the intent of the
parties to enter into a treaty, (2) to establish the circumstances of the making and signing of
the treaty, and (3) by reference to the parties’ subsequent conduct, to confirm the conclusion
of the treaty. The Court was also careful to examine the subsequent conduct of the parties,
both agreements and disagreements and hostilities, to determine that the treaty had not been
extinguished in the course of time.
R
Notes:
See: : Treaty implementation, Indian Treaties, Status under international law;
STATE RESPONIBILITY
 The law of state responsibility concerns what happens when things go wrong and states
behave in a manner that is inconsistent with their international obligations.
 Primary rules include all substantive obligations under international law—for example, the
duty to protect diplomatic personnel or the duty to refrain from the military use of outer
space.
o Secondary rules articulate the conditions under which a primary rule will be
considered to have been breached and map out the consequences of such a breach.
They will cover issues such as “defences” or circumstances precluding wrongfulness
 principles borrowed from tort law or delictual responsibility cannot be easily transposed onto
the international plane
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
In international law state responsibility is essentially non-jurisdictional, since parties to a
dispute only rarely turn to a jurisdictional mechanism to settle the matter.
General Principles
o Initially centred on issues touching on the responsibility of states for injuries to aliens,
the work of the ILC was enlarged in the early 1960s to cover all areas of the law of
state responsibility, with priority being given to the elaboration of the general rules
governing international responsibility of states.
o reports and the recorded debates on their recommendations by the ILC represent a
most significant body of thinking on the issue.
 ILC wrote draft articles. The UN General Assembly took note of and annexed
the Draft Articles in resolution 56/83 in 2001, with appropriate language
emphasizing the importance of the subject. The Draft Articles, despite not
having resulted in a binding convention, have already exerted considerable
influence on international practice and judicial decisions, but some elements
remain controversial or unsettled
 Articles 1-3 (below) can be taken as an expression of existing basic principles
of customary law on state responsibility
 They reflect the idea that a new relationship arises automatically under
international law from the wrongdoing of one or several states, as a
direct consequence of any internationally wrongful act.
 International responsibility is thus not to be seen as merely a means to allocate risks but,
more generally, as a tool to enforce standards of conduct imposed on states and an attempt to
maintain the rule of law within the international sphere
 The Draft Articles deal only with the responsibility of the state for conduct that is
internationally wrongful, meaning that it contravenes an international legal norm. There may
be cases where international law will impose on states the obligation to compensate for the
injurious consequences of conduct that is not prohibited by international law. This is the
issue of strict liability that arises most often with respect to international environmental
norms
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (1951) (p. 380)
Report of the International Law Commission on the Work of Its Fifty-third Session,
UNGAOR
Article 1 Responsibility of a State for Its Internationally Wrongful Acts
every internationally wrongful act of a state entails the international responsibility of that state.
[Both actions and omissions are covered by the provision, does not contain any reference to
damage as a condition of international responsibility. It is generally accepted that, unlike most
municipal legal systems, damage is not a required element of the international responsibility of
states (especially in human rights and environmental law standards).]
Article 2 Elements of an Internationally Wrongful Act of a State
There is an internationally wrongful act of a state when conduct consisting of an action or
omission:
(a) is attributable to the state under international law; and
(b) constitutes a breach of an international obligation of the state.
Article 3 Characterization of an Act of a State as Internationally Wrongful
The characterization of an act of a state as internationally wrongful is governed by international
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law. Such characterization is not affected by the characterization of the same act as lawful by
internal law. [reflects the autonomous nature of the international and municipal legal systems. It
mirrors article 27 of the Vienna Convention: a state cannot escape its international
responsibility by invoking the fact that its conduct is permitted or required by municipal law.]
Basis of Responsibility
 The question of the basis of international responsibility—that is, whether responsibility is
grounded in risk, damage, or fault—has generated much confusion.
o ILC Draft Articles 1 and 2, in their statement of the basic elements of international
responsibility, do not refer to the mental state of the actor involved in the commission
of an internationally wrongful act
 The Draft Articles codify a sui generis regime of responsibility, common to no other legal
system, rooted in the requirement that the state has behaved in a manner inconsistent with its
international legal obligations (article 12)
o The basis of state responsibility is neither fault nor risk but rather the breach of an
international obligation.
 That being said, the nature of many substantive international obligations will
invite an assessment of the mental state of the actor in order to determine
whether the latter’s behaviour was in conformity with a given obligation.
 One of the many relevant elements in assessing the place of fault in international
responsibility is whether the internationally wrongful act is directly imputable to the state, or
whether responsibility derives from the state’s failure to react to private acts threatening the
rights of other states. (see Corfu Channel)
o Cases of intentional commission of a wrongful act by state agents on instruction of
their government pose relatively few problems with regard to culpability, in contrast
to the situation in the Corfu Channel Case. (ex. Rainbow warrior case)
o When state agents are not under instruction to act illegally, as in the Rainbow
Warrior, but still act within their mandate in such a way as to contravene international
obligations, there is usually no requirement to show fault or negligence on the part of
the agent in order to establish international responsibility (ex. Jessie, Thomas F
Bayard, and Pescawha Claim)
o When the 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 on the part of the state
will usually be required in order to engage its responsibility, due to the nature of the
substantive obligation engaged (ex. United States Diplomatic and Consular Staff in
Tehran Case)
 the Declaration on Friendly Relations holds that 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.
o This obligation plays a central role in the international suppression of terrorism,
because it prohibits states from harbouring on its territory terrorist groups planning to
carry out attacks against states (see UN Security Council Resolution 1373 (2001)).
(Post 9-11 Afghanistan)
o The attribution of the acts of private actors to a state, as opposed to responsibility for
failing to prevent those acts, is a distinct issue
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
the basis of responsibility in international law is the absolute assumption of risk for certain
types of activities. (see Cosmos 954 Claim)
Corfu Channel Case (United Kingdom v Albania) (ICJ, 1949) (p. 381)
in october 1946, a group of british warships passed through the strait between the greek
island of corfu and albania. While in albanian territorial waters, two of the warships hit
mines, causing heavy damage to the ships and killing a number of sailors. The case was
submitted to the icj by compromis, to decide the potential responsibility of albania for the
minelaying and of the united kingdom (uk) for its subsequent unilateral clearing of the
mines in albanian waters. The uk was unable to prove either that albania had itself laid the
mines or that it had colluded with Yugoslavia to do so.
I
has it been established by means of indirect evidence that albania had knowledge of
minelaying in her territorial waters independently of any connivance on her part in this
operation [yes]
D
submitted to the icj by compromis, to decide the potential responsibility of albania for the
minelaying and of the united kingdom (uk) for its subsequent unilateral clearing of the
mines in albanian waters. The uk was unable to prove either that albania had itself laid the
mines or that it had colluded with Yugoslavia to do so.
The proof may be drawn from inferences of fact, provided that they leave no room for
reasonable doubt. The elements of fact on which these inferences can be based may differ
from those which are relevant to the question of connivance. …
from all the facts and observations mentioned above, the court draws the conclusion that
the laying of the minefield which caused the explosions on october 22nd, 1946, could not
have been accomplished without the knowledge of the albanian government.
The obligations incumbent upon the albanian authorities consisted in notifying, for the
benefit of shipping in general, the existence of a minefield in albanian territorial waters
and in warning the approaching british warships of the imminent danger to which the
minefield exposed them. such obligations are based, not on the Hague convention of 1907,
no. viii, which is applicable in time of war, but on certain general and wellrecognized
principles, namely: elementary considerations of humanity, even more exacting in peace
than in war; the principle of the freedom of maritime communication; and every state’s
obligation not to allow knowingly its territory to be used for acts contrary to the rights of
other states … .
in fact, nothing was attempted by the albanian authorities to prevent the disaster. T hese
grave omissions involve the international responsibility of albania. T he court therefore
reaches the conclusion that albania is responsible under international law for the
explosions which occurred on october 22nd, 1946 in albanian waters and that there is a
duty upon albania to pay compensation to the united kingdom.
a state must not let its territory be used for acts contrary to the rights of other states
R
In situations where a state should have had knowledge of a harmful event they have an
duty to warn, if they are unable to act.
Dis: The responsibility of a State in consequence of an international delinquency presupposes,
at the very least, culpa on the part of that State. One cannot found the international
responsibility of a State on the argument that the act of which the State is accused took
place in its territory—terrestrial, maritime, or aerial territory.
As I have already stated, I cannot find in the organization and functioning of the Albanian
F
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coastal watch—having regard to the limited resources of that small country—such a lack
of diligence as might involve the responsibility of Albania. I do not find any evidence of
culpable negligence.
Notes: Same principle in Tehran Hostages and Trail Smelter Arbitration (state must not let its
territory be used for acts contrary to the rights of other states)
See: state responsibility, knowledge of danger, failure to warn
Rainbow Warrior (New Zealand v France) (1987)
F a Greenpeace ship involved in protesting French nuclear testing in the Pacific was disabled
and sunk by two bomb blasts while moored at Auckland, New Zealand in July 1985,
resulting in the death of a Dutch national. Two French agents were subsequently arrested and
pleaded guilty in New Zealand to manslaughter and criminal damage, and were sentenced to
ten years in prison. Although the French government initially claimed that the two agents
were only dispatched on a surveillance mission, it eventually acknowledged that they had in
fact been acting at the behest of the French Directorate-General of External Security.
I Is the wrongfulness of an act of a state not in consonance with an international obligation
precluded by the “distress” of the author state if there exists a situation of extreme peril in
which the organ of the state has, at that particular moment, no means of saving himself or
persons entrusted to his care other than to act in a manner inconsistent with the requirements
of the obligation at issue?
D The matter was subsequently referred to the UN Secretary-General for arbitration, with the
result being payment of compensation to New Zealand in the amount of $7 million and
release of the two agents into French custody on condition that they be “isolated” at a French
Polynesian military establishment for three years and not be allowed to leave without the
consent of both governments.
R The wrongfulness of an act of a state not in consonance with an international obligation is
precluded by the “distress” of the author state if there exists a situation of extreme peril in
which the organ of the state has, at that particular moment, no means of saving himself or
persons entrusted to his care other than to act in a manner inconsistent with the requirements
of the obligation.
Notes: Also relevant for consequences of state responsibility/remedies: the Tribunal held that
“an order for the payment of monetary compensation can be made in respect of the breach of
international obligations involving … serious moral and legal damage, even though there is no
material damage.” However, the Tribunal declined to order monetary compensation on the
ground that New Zealand was seeking alternative remedies. Instead, it declared that
condemnation of France for its breaches of treaty obligations owed to New Zealand, made
public by the Tribunal’s decision, was appropriate satisfaction for the legal and moral damage
suffered by New Zealand.
See: state responsibility, actions of state agents, consequences of state responsibility
Jessie, Thomas F Bayard, and Pescawha Claim (GREAT BRITAIN) v. UNITED STATES (1926)
F Fundamental principle of international maritime law concerning interference with foreign
vessels on the high seas. The United States, though admitting illegal and unauthorized
character of search, denies liability because of good faith of searching officer, because of
insufficient evidence, and because of exaggeration and fraudulent character of claims
United States held liable, notwithstanding good faith of naval authorities: responsibility for
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errors in judgment of officials purporting to act within the scope of their duties and vested with
power to enforce their demands. Liability not affected by alleged exaggeration and fraudulent
character.
I
D the American and British Claims Arbitration Tribunal noted that the good faith of state
officials offered no defence against an international claim and concluded that “any
government is responsible to other governments for errors in judgment of its officials
purporting to act within the scope of their duties and vested with power to enforce their
demands
R
Notes:
See: state responsibility, actions of state agents within their duties
United States Diplomatic and Consular Staff in Tehran Case (United States v Iran), (ICJ, 1980)
F United States diplomatic offices and personnel were seized by militant revolutionaries.
I Can Iran be held responsible for the hostage taking? [yes]
D that Iran had breached its international obligations in not reacting to protect the embassy and
diplomatic personnel of the United States after an assault by private persons.
R
Notes: Same principle as Corfu Channel, and Trail Smelter Arbitration: state must not let its
territory be used for acts contrary to the rights of other states
See: state responsibility, actions of non-state actors; acts attributable to the state, acts of private
persons
Trail Smelter Arbitration (United States v. Canada) ()
F he Tail Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail Smelter
resulted in the damage of the state of Washington between 1925 and 1937. This led to the
United States (P) suit against the Canada (D) with an injunction against further air pollution
by Trail Smelter.
I Is it the responsibility of the State to protect to protect other states against harmful acts by
individuals from within its jurisdiction at all times?
D Yes. It is the responsibility of the State to protect other states against harmful act by
individuals from within its jurisdiction at all times. No state has the right to use or permit the
use of the territory in a manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein as stipulated under the United States (P) laws and the
principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is
responsible in international law for the conduct of the Trail Smelter Company. Hence, the
onus lies on the Canadian government (D) to see to it that Trail Smelter’s conduct should be
in line with the obligations of Canada (D) as it has been confirmed by International law. The
Trail Smelter Company will therefore be required from causing any damage through fumes
as long as the present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or
measure of control shall be applied to the operations of the smelter since it is probable in the
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opinion of the tribunal that damage may occur in the future from the operations of the
smelter unless they are curtailed.
Responsibility for pollution of the sea or the existence of a duty to desist from polluting the
sea has never been laid at the feet of any country by any international tribunal. Although
regulation of pollution is just commencing, it must ensure that there is equilibrium against
freedom of the seas guaranteed under general and long established rules of international law.
R “[N]o 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 or the properties or persons therein, when the
case is of serious consequence and the injury is established by clear and convincing
evidence.”
The duty to protect other states against harmful acts by individuals from within its
jurisdiction at all times is the responsibility of a state.
Notes: Same principle as Corfu Channel and Tehran Hostages : state must not let its territory be
used for acts contrary to the rights of other states
See: state responsibility, actions of non-state actors
F
Post 9-11 Afghanistan and UN Security Council Resolution 1373 (2001)
Afghanistan, where the Taliban regime refused to take action against al Qaeda in the wake of
the September 11, 2001 attacks against the United States.
I
D adopted unanimously on 28 September 2001, is a counter-terrorism measure passed
following the 11 September terrorist attacks on the United States.[1] The resolution was
adopted under Chapter VII of the United Nations Charter, and is therefore binding on all UN
member states.
marks a shift in international law, as the latter was presumed to be valid only if the
concerned state had voluntarily signed the international treaty; whereas here the Security
Council imposed the resolution on all member states.
R
Notes: Note that the consequence of such a breach, the international responsibility of the state, is
not necessarily coextensive with the legitimate use of force in self-defence.
See: state responsibility, actions of non-state actors
F
I
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Cosmos 954 Claim (Canada v USSR) (1979) (p. 385)
on september 18, 1977, the soviet union placed in orbit a satellite identified as Cosmos 954,
and, as required, officially informed the secretary-general of the UN of this fact. The satellite
carried on board a nuclear reactor working on uranium enriched with an isotope of uranium
235. on january 24, 1978, the satellite entered the earth’s atmosphere, intruding into canadian
airspace. on re-entry and disintegration, debris from the satellite was deposited on canadian
territory, including portions of the northwest territories, alberta, and saskatchewan.
immediately, the canadian armed forces and the atomic energy control board of canada
undertook operations directed at locating, recovering, removing, and testing the debris and
cleaning up the affected areas. The total cost incurred by the various canadian departments
and agencies involved in phases i and ii of the operations was around $14 million, $6 million
of which canada claimed from the soviet union.
(1) Did the USSR breach the relevant international agreements and in particular the 1972
convention on international liability for damage caused by space objects to which both
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canada and the ussr were parties, [yes] and (2) Is the USSR in contradiction to general
principles of international law?
D (1) The union of soviet socialist republics, as the launching state of the cosmos 954 satellite,
has an absolute liability to pay compensation to canada for the damage caused by this
satellite. The deposit of hazardous radioactive debris from the satellite throughout a large
area of canadian territory, and the presence of that debris in the environment rendering part
of canada’s territory unfit for use, constituted “damage to property” within the meaning of
the convention.
The government of the union of soviet socialist republics failed to give the government of
canada prior notification of the imminent re-entry of the nuclear powered satellite and failed
to provide timely and complete answers to the canadian questions of january 24, 1978
concerning the satellite. it thus failed to minimize the deleterious results of the intrusion of
the satellite into canadian air space. …
(2) The intrusion of the cosmos 954 satellite into canada’s air space and the deposit on
canadian territory of hazardous radioactive debris from the satellite constitutes a violation of
canada’s sovereignty.
Negotiations toward a settlement did not begin for almost a year after submission of this
claim. Finally, after three sessions in February, June, and November 1980, a $3 million
settlement that did not expressly acknowledge legal liability (ex gratia payment) was
concluded in Moscow on April 2, 1981.
R
Notes: The fact that payment in the Cosmos 954 claim was made on an ex gratia basis, coupled
with the absence of claims following the Chernobyl accident, sheds considerable doubt on
whether a principle of absolute liability for ultra-hazardous activities has emerged in customary
international law,13 let alone as a “general principle of law” as suggested in the claim.
See: state responsibility, actions of state actors; ultra hazardous activities; absolute liability
Attribution
 The issue of attribution, considers whether an act may be imputed to a state,
 international law does not contain a definition of “state functions,”
o Article 4 of the ILC below is the closest we come to definitions. Also:
 The UK commented in this respect that “if [municipal] law itself designates
the organ as an organ of the State, it may be appropriate for international law
to adopt a similar position. If, however, the municipal law of a State does not
treat an organ as part of the State, it does not necessarily follow that the
organ’s acts are not attributable to the State
1. Acts of the State
o To speak of acts of the state is to ask which persons ought to be considered as acting
on behalf of the state. The general rule in international law is that the only conduct
that may be attributed to the state is that of organs of government or of others who
have acted under the direction, instigation, or control of those organs
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art. 4 - Conduct of Organs of a State
1. The conduct of any state organ shall be considered an act of that state under
international law, whether the organ exercises legislative, executive, judicial or any
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
other functions, whatever position it holds in the organization of the state, and
whatever its character as an organ of the central government or of a territorial unit of
the state.
2. an organ includes any person or entity which has that status in accordance with the
internal law of the state.
Art. 5 - Conduct of Persons or Entities Exercising Elements of Governmental
Authority
The conduct of a person or entity which is not an organ of the state under article 4 but
which is empowered by the law of that state to exercise elements of the governmental
authority shall be considered an act of the state under international law, provided the
person or entity is acting in that capacity in the particular instance.
Art. 6 - Conduct of Organs Placed at the Disposal of a State by Another State
The conduct of an organ placed at the disposal of a state by another state shall be
considered an act of the former state under international law if the organ is acting in
the exercise of elements of the governmental authority of the state at whose disposal
it is placed.
Art. 7 - Excess of Authority or Contravention of Instructions
The conduct of an organ of a state or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the state under
international law if the organ, person or entity acts in that capacity, even if it exceeds
its authority or contravenes instructions. …
Art. 9 - Conduct Carried Out in the Absence or Default of the Official
Authorities
The conduct of a person or group of persons shall be considered an act of a state
under international law if the person or group of persons is in fact exercising elements
of the governmental authority in the absence or default of the official authorities and
in circumstances such as to call for the exercise of those elements of authority. …
Art.11 - Conduct Acknowledged and Adopted by a State as Its Own
Conduct which is not attributable to a state under the preceding articles shall
nevertheless be considered an act of that state under international law if and to the
extent that the state acknowledges and adopts the conduct in question as its own.
States may not invoke an abuse of authority by its agents to block a claim (see: TH Youmans
Claim United States)
o At a minimum, the actions of a state agent abusing authority must have been taken
under cover of their official character; otherwise, they will be considered private acts
F
I
165
Sydney Jaffe,
a Canadian, who in September 1981 was forcibly abducted from Canada by two US bail
bondsmen allegedly acting under colour of authority of the state of Florida. Jaffe, accused of
fraudulent land dealings in Florida, had “jumped” bail and returned to Canada. When the
Florida state court issued a bench warrant for his arrest, the bail bondsmen kidnapped Jaffe
from his home in Toronto and took him against his will back to Florida, where he was tried
on 28 counts of fraud and for his failure to appear to answer the charges. Jaffe was convicted
and sentenced to 35 years in jail and a fine of $152,250.
Did the Florida state judge provide the bail bonding agency with an incentive for the
abduction because he had ordered the forfeiture of the $150,000 bond that the agency had
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put up for Jaffe? [yes] If so is it an act attributable to the state? [maybe]
D The Canadian Embassy in Washington presented six diplomatic notes that objected to the
breach of US treaty obligations and the violation of Canadian sovereignty. Since at the time
of Jaffe’s abduction the rendition of fugitives from justice between the United States and
Canada was governed by the Treaty on Extradition of December 3, 1971,17 the action taken
by the bail bondsmen at the instigation of Florida constituted a flagrant violation of that
treaty, which was ignored. This internationally wrongful act entailed the responsibility of the
United States toward Canada.
After many different initiatives, Jaffe succeeded in his appeal against the convictions for
fraud and in November 1983 he was released from jail in Florida and allowed to return to
Canada. In 1986 the two bail bondsmen were extradited to Canada and convicted for
kidnapping Jaffe. On January 11, 1988 the governments of Canada and the United States
exchanged correspondence creating an understanding between them that they would
cooperate to prevent transborder abduction.
R Judges could represent an ‘organ of the state’
Notes: This engages 4(2) of the ILC draft articles – who are organs of the state. Some are
concerned that a state could successfully shield itself by legislating that a particular organ is not
part of the state, which is problematic as private actors are performing more state functions.
See: State responsibility, acts attributable to the state, state organs
TH Youmans Claim United States v Mexico general claims commission (1926)
F claim for damages in the amount of $50,000.00 is made in this case by the united states of
america against the united mexican states in behalf of Thomas H. Youmans, the son of
Henry Youmans, an american citizen, who, together with two other americans, john a.
connelly and george arnold, was killed at the hands of a mob on march 14, 1880, at
angangueo, state of michoacán, mexico.
T he attack against connelly when he endeavoured to surrender to police authorities was led
by pedro mondragón, a person styled the Jefe de Manzana, with whom connelly had been on
friendly terms. stephens, followed by a part of the mob, proceeded to the Casa Municipal and
requested the mayor, don justo lopez, to endeavour to protect the americans in the house.
The mayor promptly went to the house, but was unable to quiet the mob. He then returned to
his office and ordered josé maria mora, Jefe de la Tropa de la Seguridad Pública, who held
the rank of lieutenant in the forces of the state of michoacán, to proceed with troops to quell
the riot and put an end to the attack upon the americans. T he troops, on arriving at the scene
of the riot, instead of dispersing the mob, opened fire on the house, as a consequence of
which arnold was killed. connelly and Youmans were forced to leave, and as they did so they
were killed by the troops and members of the mob. …
I Did Mexico fail to protect Youmans and the others [yes]. Are the acts attributable to mexico
[yes]
D Held, by the U.S.–Mexico General Claims Commission, that the Government of Mexico
showed a lack of diligence in the punishment of persons implicated in the crime; that
adequate protection to foreigners was not afforded where the proper agencies of the law
charged to afford protection participated in murder; and that the participation of the soldiers
in the murder could not be regarded as acts committed in their private capacity since, at the
time of the commission of those acts, the men were on duty under the immediate supervision
and in the presence of a commanding officer. The Commission awarded damages of
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$20,000.
R
Notes: At a minimum, the actions must have been taken under cover of their official character;
otherwise, they will be considered private acts
in Yeager v Iran, the Iran – US Claims Tribunal found that bribes taken by a state airline
employee were not imputable to the state, while theft carried out by revolutionary guards
performing customs duties were so imputable.
See: State responsibility, acts attributable to the state, state agents, abuse of authority
2. Acts of Private Persons
 In principle, the state is not generally responsible for the conduct of private persons or
entities.
o However, where the state factually has a relationship of control of the state over the
individuals there can be responsibility
o For the acts to be attributable, however, the control must be effective enough to
establish a real link between the person or group performing the act and the state.
o Two forms:
 1 - either a direct and positive control of the state over individuals, consisting
of clear instructions and clear support to the conduct of the private persons—
for example, recruiting, arming, and commanding mercenaries
 2 - indirect and more passive control of the state—for instance, a state
purposely harbouring terrorist groups on its territory.
International Law Commission, Draft Articles on the Responsibility of States
for Internationally Wrongful Acts (2001)
Art. 8 - Conduct Directed or Controlled by a State
The conduct of a person or group of persons shall be considered an act of a State
under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the
conduct.
 Situations can more through different phases of responsibility:
o Ex. Tehran hostages - when Ayatollah Khomeini and other members of the
government, instead of taking measures to protect the embassy, approved its
continued occupation, the “militants” became, in legal effect, agents of Iran for whose
continuing acts the state itself was directly responsible. This is codified in ILC Draft
Article 11, which attributes to the state private conduct that the latter acknowledges
and adopts as its own.
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v US) (ICJ, 1986) (P.
395)
F The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible
for illegal military and paramilitary activities in and against Nicaragua (P) in the suit the
plaintiff brought against the defendant in 1984. Though a declaration accepting the
mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried
to justify the declaration in a 1984 notification by referring to the 1946 declaration and
stating in part that the declaration “shall not apply to disputes with any Central American
State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also
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argued that Nicaragua (P) failed to deposit a similar declaration to the Court. On the other
hand, Nicaragua (P) based its argument on its reliance on the 1946 declaration made by the
United states (D) due to the fact that it was a “state accepting the same obligation” as the
United States (D) when it filed charges in the I.C.J. against the United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed
out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the
Permanent Court of International Justice, even though Nicaragua had failed to deposit it with
that court. The admissibility of Nicaragua’s (P) application to the I.C.J. was also challenged
by the United States (D).
I (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the
Court’s jurisdiction, within the jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a
state to the International Court of Justice admissible?
D (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the
States accepted the Court’s jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua (P) declaration of 1929 was not deposited with the
Permanent Court, because of the potential effect it had that it would last for many years, it
was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J
because the declaration was made unconditionally and was valid for an unlimited period.
The intention of the current drafters of the current Statute was to maintain the greatest
possible continuity between it and the Permanent Court. Thus, when Nicaragua (P) accepted
the Statute, this would have been deemed that the plaintiff had given its consent to the
transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the application of such
a state to the International Court of Justice is admissible. The five grounds upon which the
United States (D) challenged the admissibility of Nicaragua’s (P) application were that the
plaintiff failed because there is no “indispensable parties” rule when it could not bring forth
necessary parties, Nicaragua’s (P) request of the Court to consider the possibility of a threat
to peace which is the exclusive province of the Security Council, failed due to the fact that
I.C.J. can exercise jurisdiction which is concurrent with that of the Security Council, that the
I.C.J. is unable to deal with situations involving ongoing armed conflict and that there is
nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because the
dispute has other aspects due to the fact that the case is incompatible with the Contadora
process to which Nicaragua (P) is a party.
Although the questions of jurisdiction and admissibility are primarily based on the principle
that the I.C.J. has only as much power as that agreed to by the parties, these can be quite
complicated. The 1946 declaration of the United States and the 1929 declaration of
Nicaragua was the main focus of the case on declaration and each of these declarations
pointed out the respective parties’ intent as it related to the I.C.J’s jurisdiction.
R Nicaragua (P) brought a suit against the United States (D) on the ground that the United
States (D) was responsible for illegal military and paramilitary activities in and against
Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as well
as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United
States (D).
Notes: this decision clearly inspired the formulation of ILC Draft Article 8
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The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY),
in Prosecutor v Tadic, explicitly rejected the position adopted by the ICJ in Nicaragua.
See: State responsibility, acts attributable to the state, acts of private persons
F
Loizidou v Turkey (ECtHR, 2001)
On 22 July 1989 a Cypriot national Mrs. Titina Loizidou filed an application against Turkey
to the European Court of Human Rights, represented by Greek-Cypriot lawyer Achilleas
Demetriades. Mrs. Loizidou had been forced out of her home during Turkey's invasion of
Cyprus in 1974 along with around 200,000 other Greek-Cypriots. During more than 20
years, she made a number of attempts to return to her home in Kyrenia but was denied entry
into the Turkish occupied part of Cyprus by the Turkish army.
Her application resulted in three judgments by the European Court of Human Rights
(Strasbourg) which held Turkey responsible for human rights violations in the northern part
of Cyprus, which is under overall control of the Turkish armed forces.
I Is Mrs. Loizidou’s denial of return attributable to turkey? [yes]
D The ECHR ruled that Turkey had violated Mrs. Loizidou's human rights, that she should be
allowed to return to her home and that Turkey should pay damages to her. Turkey initially
ignored this ruling.[2]
adopted the wider criteria proposed by the Court in Nicaragua to conclude that the fact that
Turkey “exercise[s] effective overall control” of the “Turkish Republic of Northern Cyprus”
entailed its international responsibility for the latter’s acts.
R
Notes: Opposite ruling of Nicaragua v. US
See: State responsibility, acts attributable to the state, acts of private persons; human rights
F
Prosecutor v Tadic (ICTY)
For committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina, Tadic
(D) was prosecuted in Court. The jurisdiction of the tribunal was however challenged by
Tadic (D) on the ground that it exceeded the authority of the U.N. Security Council. This
argument of Tadic (D) was dismissed by the trial court but Tadic (D) appealed.
I What is the required control over forces for an act to be attributable to a state?
D the requisite degree of control by the Yugoslavian authorities over the armed forces was one
of “overall control going beyond the mere financing and equipping of such forces and
involving also participation in the planning and supervision of military operations.
R explicitly rejected the position adopted by the ICJ in Nicaragua.
Notes: despite the explicit foray by the ICTY into the law of state responsibility, the issue it was
directly concerned with was the application of international humanitarian law, more precisely
the degree to which a foreign state must control an insurgent group in order for a civil war to
become an international armed conflict.
See: State responsibility, acts attributable to the state, acts of private persons
3. Acts of Insurgents
 In general no responsibility imputed to the state.
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
o BUT: Exceptions to the principle centre on the state’s due diligence obligation to
protect the interests of other states on its territory and on the situations in which
insurgents successfully overturn the government and assume power.
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art. 10 - Conduct of an Insurrectional or Other Movement
1. The conduct of an insurrectional movement which becomes the new government of
a state shall be considered an act of that state under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing
a new state in part of the territory of a pre-existing state or in a territory under its
administration shall be considered an act of the new state under international law. 3.
This article is without prejudice to the attribution to a state of any conduct, however
related to that of the movement concerned, which is to be considered an act of that
state by virtue of articles 4 to 9.
The fact that an insurgent movement is active in a country does not automatically relieve the
state of any international responsibility for insurgents’ acts, even in those instances where the
insurrection remains unsuccessful. The general duty of due diligence developed in the Corfu
Channel Case remains applicable, a point related not to attribution but to the scope of a
state’s primary obligations.
The threshold for the application of the rule embodied in Draft Article 10 is that the
movement is advocating change outside the constitutional framework of the state. (things
change if that group forms government)

Asian Agricultural Products Ltd v Sri Lanka (Intl Investment Disputes, 1990) (p. 398)
F in 1987, the sri lankan army destroyed a plant owned by asian agricultural products ltd.
(aapl) on the basis of reports that it was being used by local rebels. after negotiations failed,
aapl presented a claim to the international centre for settlement of investment disputes (icsid)
for arbitration pursuant to the sri lanka – united kingdom bilateral investment treaty, alleging
that sri lanka had not exercised due diligence to prevent damages by the insurgent tamil
tigers.
In the particular factual circumstances of this case, Sri Lanka was held internationally
responsible for the destruction in 1987 of a Hong Kong owned seafood factory in Sri Lanka
during counter-insurgency operations conducted by Sri Lankan security forces against a
Tamil separatist rebel movement. Although there was no conclusive evidence that members
of either the Sri Lankan security forces or the separatist rebel movement had destroyed the
factory, the factory was under the exclusive control of the security forces during the relevant
two week period in which it was destroyed. The tribunal found that Sri Lanka had failed to
exercise due diligence to prevent damage to this foreign owned property
I Is the destruction of the factory attributable to Sri Lanka? [yes]
D
A state on whose territory an insurrection occurs is not responsible for loss or
damage sustained by foreign investors unless it can be shown that the
government of that state failed to provide the standard of protection required,
either by treaty, or under general customary law, as the case may be; and
(ii)
170
- Failure to provide the standard of protection required entails the state’s
international responsibility for losses suffered, regardless of whether the
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damage occurred during an insurgents’ offensive act or resulting from
governmental counter-insurgency activities.
If a state is not responsible for the revolutionary events themselves, it may nevertheless be
responsible for what its authorities do or not do toward the consequence, within the limits of
possibility. …
In the light of all the above-mentioned arbitral precedents, it would be appropriate to
consider that adequate protection afforded by the host state authorities constitutes a primary
obligation, the failure to comply with which creates international responsibility.
Furthermore, “there is an extensive and consistent state practice supporting the duty to
exercise due diligence”
R
Notes:
See: State responsibility, acts attributable to the state, acts of insurgents; due diligence
Short v Iran; Rankin v Iran (US Iran Claims Tribunal, 1987)
F claims were brought against the government of Iran for injury caused as a result of alleged
anti-American acts on the part of the revolutionary movement.
I Are the acts of the anti-governemnt movement attributable to Iran? [no]
D the Tribunal emphasized that mere reference to actions of agents of the Iranian government
was insufficient to establish state responsibility. In the absence of an established policy
directly attributable to the Islamic government, state responsibility could not be engaged.
The Tribunal did note in Short, however, that the determination would depend upon a
consideration of the facts in each case.
R
Notes:
See: State responsibility, acts attributable to the state, acts of insurgents
4. Acts of International Organizations
 International organizations are entities that can possess an international legal personality
distinct from that of their member states (such as UN in reparations case)
 As independent bodies, they do not fall under the sovereignty of any state. On the other hand,
the legal personality of organizations is partly derivative of that of states,
 The principle remains that 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.
 “the question of immunity from legal process is distinct from the issue of legal compensation
for any damages incurred as a result of acts performed by the United Nations or by its agents
acting in their official capacity. The United Nations may be required to bear responsibility
for the damage arising from such acts
 ex. Might be Canadian torture and capture of a Somalian boy, during a UN mission
F
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Immunity of a Special Rapporteur case (ICJ, 1999)
Mr. Cumaraswamy currently faces several lawsuits filed in Malaysian courts by plaintiffs
who assert that he used defamatory language in the interview and seek damages in a total
amount of US$ 112 million. However, according to the United Nations Secretary-General,
Mr. Kofi Annan, Mr. Cumaraswamy spoke in his official capacity of Special Rapporteur and
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was thus immune from legal process by virtue of the above-mentioned Convention.
I
D “the question of immunity from legal process is distinct from the issue of legal compensation
for any damages incurred as a result of acts performed by the United Nations or by its agents
acting in their official capacity. The United Nations may be required to bear responsibility
for the damage arising from such acts
R The UN can have acts attributed to it too
Notes:
See: State responsibility, acts attributable to the state, acts of international organizations
Circumstances Precluding Wrongfulness
 can be invoked by a state as a shield against the invocation of international responsibility.
Despite the expression, the effect of these defences is not to make lawful what would
otherwise be unlawful, but rather to excuse non-performance of most obligations stemming
from the rules on state responsibility while the circumstances persist.
 ILC Article 27(b) reserves, without deciding on the issue, the possibility that a state
legitimately relying on a circumstance precluding wrongfulness might nevertheless be
required to compensate for material losses caused by its actions.
International Law Commission, Articles on the Responsibility of States for Internationally
Wrongful Acts (2001)
Art. 20 – Consent
valid consent by a state to the commission of a given act by another state precludes the
wrongfulness of that act in relation to the former state to the extent that the act remains within
the limits of that consent.
Art. 21 - Self-Defence
T he wrongfulness of an act of a state is precluded if the act constitutes a lawful measure of selfdefence taken in conformity with the charter of the united nations.
Art. 22 - Countermeasures in Respect of an Internationally Wrongful Act
T he wrongfulness of an act of a state not in conformity with an international obligation towards
another state is precluded if and to the extent that the act constitutes a countermeasure taken
against the latter state in accordance with chapter ii of part Three.
Art. 23 - Force Majeure
1. The wrongfulness of an act of a state not in conformity with an international obligation of that
state is precluded if the act is due to force majeure, that is the occurrence of an irresistible force
or of an unforeseen event, beyond the control of the state, making it materially impossible in the
circumstances to perform the obligation.
2. paragraph 1 does not apply if:
(a) The situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the state invoking it; or
(b) The state has assumed the risk of that situation occurring.
Art. 24 – Distress
1. The wrongfulness of an act of a state not in conformity with an international obligation of that
state is precluded if the author of the act in question has no other reasonable way, in a situation
of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. paragraph 1 does not apply if:
(a) The situation of distress is due, either alone or in combination with other factors, to
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the conduct of the state invoking it; or
(b) The act in question is likely to create a comparable or greater peril.
Art. 25 – Necessity
1. necessity may not be invoked by a state as a ground for precluding the wrongfulness of an act
not in conformity with an international obligation of that state unless the act:
(a) is the only way for the state to safeguard an essential interest against a grave and
imminent peril; and
(b) does not seriously impair an essential interest of the state or states towards which the
obligation exists, or of the international community as a whole.
2. in any case, necessity may not be invoked by a state as a ground for precluding wrongfulness
if:
(a) The international obligation in question excludes the possibility of invoking necessity;
or
(b) The state has contributed to the situation of necessity.
Art. 26 – Compliance with Peremptory Norms
nothing in this chapter precludes the wrongfulness of any act of a state which is not in
conformity with an obligation arising under a peremptory norm of general international law.
Art. 27 - Consequence of Invoking a Circumstance Precluding Wrongfulness
T he invocation of a circumstance precluding wrongfulness in accordance with this chapter is
without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) The question of compensation for any material loss caused by the act in question.
Case Concerning the Gabçíkovo-Nagymaros Project (Hungary v Slovakia) (ICJ, 1997) (P. 403)
F in 1977, Hungary and czechoslovakia concluded a treaty to build a series of dams in slovakia
and Hungary for the production of electricity, flood control, and the improvement of
navigation on the river danube. Hungary in 1989 suspended and later abandoned the project,
invoking grave risks to the environment and to the water supply of budapest. slovakia, as
successor to czechoslovakia, denied these allegations and insisted that Hungary carry out its
treaty obligations. it planned and subsequently put into operation an alternative project only
on slovak territory, the operation of which affected Hungary’s access to the waters of the
danube
I (1) The Court was asked to decide first, whether Hungary was entitled to abandon the
Project; (no hungary was in breach, it’s ecological reasons wer insufficient) (2), whether
Czechoslovakia was then entitled to proceed with Variant C [no Czechoslovakia was found
to have acted unlawfully in depriving Hungary of its rightful‘equitable and reasonable
share’ of the Danube] and (3), whether Hungary was entitled to terminate the Treaty [no,
invalid]
D The Court found that both Hungary and Slovakia had breached their legal obligations. It
called on both States to negotiate in good faith in order to ensure the achievement of the
objectives of the 1977 Budapest Treaty, which it declared was still in force, while taking
account of the factual situation that had developed since 1989.[11]
Each Party must compensate the other Party for the damage caused by its conduct.[12][13]
R
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Notes:
See: State responsibility, acts attributable to the state, circumstances precluding wrongfulness;
compensation
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ
[Advisory])
F The wall which Israel (D) constructed on the Palestinian territory and its route impaired the
freedom of the Palestinians. The I.C.J. was however asked to provide an advisory opinion on
the matter when the U.N. General Assembly (P) requested Israel (D) to halt and reverse the
construction of the wall
I Was Israel acting in a ‘state of necessity’ [no]
D In that case, the Court concluded that the exception could not be invoked successfully
because it had not been shown that the construction of a wall along the route chosen by Israel
was the only means available to protect itself against the threat of terrorist attacks.
R reaffirmed the customary character of the state-of-necessity exception.
International Law, the Fourth Geneva Convention of 1949, The Hague Convention, relevant
Security Council and General Assembly resolutions were all contravened by Israel (D), the
occupying power, for constructing a wall on the Palestinian occupied territory.
Notes:
See: State responsibility, acts attributable to the state, circumstances precluding wrongfulness
Consequences of International Responsibility
 The breach of an international obligation entails two types of legal consequences:
o first, it creates new obligations for the wrongdoer, principally, duties of cessation and
non-repetition, and a duty to make full reparation;
o second, it creates new rights for the injured state.
 Cessation is, together with reparation, the general and immediate consequence of an
internationally wrongful act. In most international disputes, cessation will be the main focus
of the controversy.
 State responsibility is concerned with the legal consequences of the breach of an international
obligation and not with the possible continued existence of such an obligation. In the case of
a breach of treaty, whether the obligation subsists despite the breach is a matter not of state
responsibility but of the law of treaty
 The obligation to make full reparation is the second general obligation of the responsible
state. This general principle was first stated by the Permanent Court in the Chorzów Factory
Case.
 The injured state may demand restitution in kind over other forms of reparation, if it is
materially possible in the circumstances, since it is the form of reparation that is best suited
to return the situation to the status quo ante. It can also combine this and other forms of
reparation
 the Draft Articles show a clear order of priority among the different means of reparation,
with a preference for restitution.
o Draft Article 34, restitution is then the first of the forms of reparation.
 Compensation is intended only to indemnify quantifiable losses suffered by the injured state,
excluding exemplary or punitive damages that go beyond remedying the actual harm suffered
as a result of the wrongful act.
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

Satisfaction, the third possible form of reparation, is a term primarily applied to
compensation for the moral or non-material consequences of an act for which a state is
internationally responsible. In principle, it is only in those cases where the injury cannot be
made good by restitution or compensation
o common forms satisfaction may take include apologies or amends of a diplomatic
character
Special remedial regimes may be established by states on a bilateral basis
o The UN Compensation Fund for Claims Against Iraq provides a unique example of a
dedicated multilateral remedial regime.
o the UN Security Council declared that Iraq was liable under international law for
“any direct loss, damage, including environmental damage and depletion of natural
resources, or injury to foreign Governments, nationals and corporations” as a result of
its unlawful invasion and occupation of Kuwait. For this purpose, it established the
UN Compensation Fund and the UN Compensation Commission (UNCC) and
directed the Commission to administer the Fund
International Law Commission, Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art. 29 – Continued Duty of Performance
The legal consequences of an internationally wrongful act under this part do not affect the
continued duty of the responsible state to perform the obligation breached.
Art. 30 - Cessation and Non-repetition
The state responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.
Art. 31 – Reparation
1. The responsible state is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
2. injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a state.
Art. 32 - Irrelevance of Internal Law
T he responsible state may not rely on the provisions of its internal law as justification for
failure to comply with its obligations under this part.
Art. 33 - Scope of International Obligations Set Out in This Part
1. The obligations of the responsible state set out in this part may be owed to another
state, to several states, or to the international community as a whole, depending in
particular on the character and content of the international obligation and on the
circumstances of the breach.
2. This part is without prejudice to any right, arising from the international responsibility
of a state, which may accrue directly to any person or entity other than a state.
Art. 34 - Forms of Reparation
full reparation for the injury caused by the internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in combination, in
accordance with the provisions of this chapter.
Art. 35 – Restitution
a state responsible for an internationally wrongful act is under an obligation to make
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restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation.
Art. 36 - Compensation
1. The state responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established.
Art. 37 - Satisfaction
1. The state responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by
restitution or compensation.
2. satisfaction may consist in an acknowledgement of the breach, an expression of regret,
a formal apology or another appropriate modality.
3. satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible state.
LaGrand case (Germany v. US) (ICJ, 2001)
considered the legal consequences of the United States’ failure to inform Karl and Walter
LaGrand of their right to communicate with their consular representative, following their
arrest for bank robbery and murder
The Vienna Convention on Consular Relations, Article 36(1)(b), provides that a state trying
an alien in a death sentence case must inform the alien of his rights to have his consular
authorities informed of the arrest. A suit which claimed the United States law enforcement
personnel f ailed to advice aliens upon their arrest of their rights was filed by Paraguay (P),
Germany (P) and Mexico (P) at the international Court of Justice. The plaintiffs also claimed
that as a remedy for violation of the Vienna Convention, state courts should review and
reconsider the death sentences to determine if the lack of consular access prejudiced the
aliens. The German’s (P) case involved LaGrand and his brother who were executed before
the matter came to the I.C.J. the Court found that the U.S. (D) had breached its obligations to
Germany (P) under the Vienna Convention by not giving notice about LaGrand and his
brother of right to consular notification, and by failing to provide judicial review of the
conviction and sentence.
I Does a state which breaches its obligations to another under the Vienna Convention on
Consular Relations? [yes]
D By the time the Court issued its decision on the merits, both brothers had been executed
despite an ICJ order for provisional measures requiring a stay of the executions. Cessation in
this specific case was no longer an issue. Compensation was requested, but clearly played a
role secondary to a request for guarantees of non-repetition on the part of the United States.
The Court found that the repeated undertaking of the United States to enact a broad and
detailed program to ensure compliance with the Vienna Convention on Consular Relations
fulfilled its obligation in this respect. It noted, however, that any future breach would trigger
not simply a duty to offer an apology, but also an obligation to provide an opportunity to
F
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reconsider any criminal conviction and sentence.
R A state that breaches its obligations to another under the Vienna Convention on Consular
Relations by failing to inform an arrested alien of the right to consular notification and to
provide judicial review of the alien’s conviction and sentence also violate individual rights
held by the alien under international law.
Notes:
See: State responsibility, acts attributable to the state, consequences of state responsibility;
cessation
Case Concerning the Factory at Chorzów (Indemnity) (PCIJ, 1928)
F in its judgment no 7 concerning German Interests in Polish Upper Silesia, 1926,40 the pcij
held that the attitude adopted by the polish government toward the oberschlesische
stickstoffwerke a-g and the bayerische stickstoffwerke a-g in taking possession of the nitrate
factory at chorzów was incompatible with the provisions of the geneva convention 192241
between germany and poland, concerning upper silesia. The german government now sought
to recover an indemnity from poland in respect of the damage suffered by these companies.
T he court, by nine votes to three, ruled that poland owed reparation to germany in respect of
damage suffered by the two companies and reserved the amount of compensation due until
after an expert inquiry had been held.
I [see other summary]
D Poland wrongfully expropriated the factory in breach of treaty, and owes Germany
reparations.
R represents the classic exposition of the basic principles regarding the duty to provide
reparation, which have been codified in Draft Articles 34-37
Notes:
See: State responsibility, acts attributable to the state, consequences of state responsibility
Temple of Preah Vihear Case (Cambodia v Thailand), (ICJ, 1926)
[see summary 1]
F
I
D Thailand was ordered to return certain religious artifacts taken from the temple prior to its
return to Cambodia. Article 35 states the possibility of derogating from restitution whenever
restitution is impossible, or when it would place a burden out of all proportion on the
responsible state.
R
Notes:
See: State responsibility, acts attributable to the state, consequences of state responsibility
F
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I’m Alone case (1929)
the sinking of a Canadian-flagged rum-runner by the US Coast Guard, a part of the remedy
constituted satisfaction
a British ship of Canadian registry controlled and managed by United States citizens that was
sunk. It was alleged that the ship was used in smuggling alcoholic liquor into the United
States. At that time, it was illegal to smuggle alcohol. It was ordered to stop for inspection at
a point outside the U.S territorial waters but declined. This led to a pursuit of the ship by a
vessel, Wolcott and after two days of pursuit it was joined by the coast guard vessel, Dexter,
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which eventually sunk the ‘I’m Alone’. This resulted to death of one person and the rest of
the crew was rescued.
I
D The Commissioners recommended the payment by the United States of $25,000 as material
amends in respect of the wrong committed by that country in sinking the Canadian vessel, an
amount not linked to the value of the ship. They also recommended that the United States
apologize to the Canadian government
R
Notes: see also Rainbow Warrior
See: State responsibility, acts attributable to the state, consequences of state responsibility;
satisfaction as a remedy
Elements of Aggravated Responsibility
 Traditionally, international law has not made any space for the criminality of state behaviour.
Even the Nuremburg trials were silent
o Punishment was reserved for the actual individuals responsible for committing such
crimes.
 After WWII states have been blamed, in particular in genocide sitations
 In response the ILC adopted various articles detailing the consequences of breaches of jus
cogens norms
 Article 40 sets out two criteria to distinguish “serious breaches of obligations under
peremptory norms of general international law” from other types of breaches. One relates to
the character of the obligation breached, the second to the intensity of the breach.
o The first criteria requires breach of a jus cogens norm such as prohibitions against
aggression, torture, slavery, genocide, and apartheid.
o commentaries suggest that to be regarded as serious or systematic, a violation would
have to be carried out in an organized and deliberate way
 Two special legal obligations of states faced with the commission of “serious breaches” are
set out in article 41. Paragraph 1 calls for a joint and coordinated effort by all states to
counteract the effects of the most serious breaches of international law,
o Paragraph 2 sets out a general duty of abstention, comprising both the obligation not
to recognize as lawful the “serious breaches” and the obligation not to render aid or
assistance in maintaining that situation. Thus, for example, the Security Council in
resolution 66250 in 1990 called on all states not to recognize the “eternal merger” of
Kuwait and Iraq, proclaimed by the latter in the aftermath of its invasion.
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art. 40 - Application of This Chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach by
a state of an obligation arising under a peremptory norm of general international law.
2. a breach of such an obligation is serious if it involves a gross or systematic failure by the
responsible state to fulfil the obligation.
Art. 41 - Particular Consequences of a Serious Breach of an Obligation Under This
Chapter
1. states shall cooperate to bring to an end through lawful means any serious breach within the
meaning of article 40.
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2. no state shall recognize as lawful a situation created by a serious breach within the meaning of
article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this part and to such
further consequences that a breach to which this chapter applies may entail under international
law.
Barcelona Traction, Light and Power Co Case (Belgium v Spain), (ICJ, 1970)
F The Barcelona Traction, Light, and Power Co, was incorporated and registered in Canada for
the purpose of developing and operating electrical power in Spain (D). The company was
declared bankrupt by a Spanish court after the Spanish Civil War and its assets were seized.
After the end of the Canadian interposition, an action for damages against Spain (D) was
brought by Belgium (P) for what it termed expropriation of the assets of the traction Co. on
the ground that a large majority of the stock of the company was owned by Belgian (P)
nationals. Preliminary objections was raised by Spain (D) that the plaintiff lacked standing to
bring suit for damages to a Canadian company.
I Was there a failure of the state to pay compensation [yes]
D As stated in the Restatement of the Foreign Relations Law of the United States S 185, failure
of a state to pay just compensation for the taking of the property of an alien is wrongful
under international law, regardless of whether the taking itself is conceived as wrongful. This
wrongful taking is characterized either as tortious conduct or as unjust enrichment.
R The ICJ in the Barcelona Traction Case recognized the existence of obligations erga omnes,
in the violation of which every state can be said to have an interest.
Notes: Possible now expressed in ILC Draft Articles 40-41
See: State responsibility, acts attributable to the state, Elements of Aggravated Responsibility
RESPONSIBILITY FOR INJURED ALIENS
 The significance of this field has been lessened by the emergence of two normative regimes
in public international law over the last century: first, the general principles of international
responsibility studied earlier, detached from any reference to the treatment of aliens; and
second, international human rights norms, which overlap to some degree with standards
designed to protect aliens.
 Unlike the secondary rules studied in Section I, the norms surveyed in this section
embody primary rules, setting out the parameters of lawful state behaviour in the
treatment of aliens.
 Standard of Treatment
 Colonial and now industrialized countries, on the one hand, have defended the
international minimum standard in order to ensure protection of their nationals and
their investments, irrespective of how the local state may treat its own nationals.
 Latin American and developing, decolonized countries, on the other hand,
traditionally have argued in favour of the national treatment standard, invoking a
state’s right to control its own political and economic development.
 The admission of aliens into a State immediately calls into existence certain
correlative rights and duties. The alien has a right to the protection of the local law.
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He owes a duty to observe that law and assumes a relationship toward the State of his
residence sometimes referred to as “temporary allegiance.
 The State has the right to expect that the alien shall observe its laws and that his
conduct shall not be incompatible with the good order of the State and of the
community in which he resides or sojourns. It has the obligation to give him that
degree of protection for his person and property which he and his State have the right
to expect under local law, under international law, and under treaties and conventions
between his State and the State of residence
 When local remedies are available the alien is ordinarily not entitled to the
interposition of his government until he has exhausted those remedies and has been
denied justice. This presupposes the existence in the State of orderly judicial and
administrative processes. In theory an unredressed injury to an alien constitutes an
injury to his State, giving rise to international responsibility.
 Even if such a linking of human rights and standards on the treatment of aliens is
accepted, aliens may be entitled to better remedies than nationals, since the home
state may intervene diplomatically on behalf of its nationals or present a claim against
the wrongdoing state to obtain redress. Also, in the case of taking of property
belonging to aliens, they have, under general principles of international law, a right to
be compensated, which may not be enjoyed by nationals of the expropriating or
nationalizing state
 It must be pointed out that the national treatment standard or the international
minimum standard only applies to certain areas of activity by aliens. In other areas, it
is perfectly legitimate under customary international law for states to treat aliens as
such in their discretion and to limit their activities—for instance, by preventing them
from holding a public office.
 Protection of persons
 The Declaration represented in part an attempt to codify customary standards on the treatment
of aliens and in part an expansion of these standards.
o The rights contained in article 8, for example, have not generally been found
in practice related to the treatment of aliens. See, however, the articulation of
rights of migrant workers found in the 1990 International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families,56 including article 26 (participation in trade unions), article 27
(social security), and article 28 (medical care).
 Hackworth, in his Digest of International Law, described denial of justice thus: In a
broad sense denial of justice may result from acts or omissions of authorities of any
one or more of the three branches of government, i.e., the executive, legislative, or
judicial
o Denial of justice may consist either of denial of access to the courts or of
injustice at their hand. It may not be predicated solely on the fact that the
decision of the court might have been different or that reasonable men might
differ as to its correctness
o As a general proposition if the decision appears to have been unjust and is
shown to have been influenced by improper motives; if corruption of the court
is shown to have existed; or if there was prejudice or discrimination against
the alien because of his nationality or against aliens generally; or if there was
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unconscionable delay by the court or other grave irregularities resulting in
serious injustice; the foundation is laid for diplomatic representation or for
international adjudication.
Declaration on the Human Rights of Individuals Who Are Not Citizens of the Country
in Which They Live (1985)
Art. 1
For the purposes of this declaration, the term “alien” shall apply, with due regard to
qualifications made in subsequent articles, to any individual who is not a national of the state
in which he or she is present. …
Art. 5
1. aliens shall enjoy, in accordance with domestic law and subject to the relevant international
obligations of the state in which they are present, in particular the following rights:
(a) The right of life and security of person; no alien shall be subjected to arbitrary
arrest or detention; no alien shall be deprived of his or her liberty except on such
grounds and in accordance with such procedures as are established by law;
(b) The right to protection against arbitrary or unlawful interference with privacy,
family, home or correspondence;
(c) The right to be equal before the courts, tribunals and all other organs and
authorities administering justice and, when necessary, to free assistance of an
interpreter in criminal proceedings and, when prescribed by law, other proceedings;
(d) The right to choose a spouse, to marry, to found a family;
(e) The right to freedom of thought, opinion, conscience and religion; the right to
manifest their religion or beliefs, subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others;
(f) The right to retain their own language, culture and tradition;
(g) The right to transfer abroad earnings, savings or other personal monetary assets,
subject to domestic currency regulations.
2. subject to such restrictions as are prescribed by law and which are necessary in a
democratic society to protect national security, public safety, public order, public health or
morals or the rights and freedoms of others, and which are consistent with the other rights
recognized in the relevant international instruments and those set forth in this declaration,
aliens shall enjoy the following rights:
(a) The right to leave the country;
(b) The right to freedom of expression;
(c) The right to peaceful assembly;
(d) The right to own property alone as well as in association with others, subject to
domestic law. …
Art. 7
an alien lawfully in the territory of a state may be expelled therefrom only in pursuance of a
decision reached in accordance with the law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons why he or she should not
be expelled and to have the case reviewed by, and be represented for the purpose before, the
competent authority or a person or persons specially designed by the competent authority.
individual or collective expulsion of such aliens on grounds of race, colour, religion, culture,
descent or national or ethnic origin is prohibited.
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Art. 8
1. aliens lawfully residing in the territory of a state shall also enjoy, in accordance with the
national laws, the following rights, subject to their obligations under article 4:
(a) The right to safe and healthy working conditions, to fair wages and equal
remuneration for work of equal value without distinction of any kind, in particular,
women being guaranteed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work;
(b) The right to join trade unions and other organizations or associations of their
choice and to participate in their activities. no restrictions may be placed on the
exercise of this right other than those prescribed by law and which are necessary, in a
democratic society, in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(c) The right to health protection, medical care, social security, social services,
education, rest and leisure, provided that they fulfil the requirements under the
relevant regulations for participation and that undue strain is not placed on the
resources of the state.
2. With a view to protecting the rights of aliens carrying on lawful paid activities in the
country in which they are present, such rights may be specified by the governments concerned
in multilateral or bilateral conventions.
Art. 9
No alien shall be arbitrarily deprived of his or her lawfully acquired assets.
F
Neer Claim United States v Mexico (1926)
The united states presented a claim against mexico, following the murder of neer, a us citizen
killed by unknown assailants while working in mexico. The united states alleged that mexico
had not exercised due diligence in investigating the crime with a view to punishing the
perpetrators. The commission unanimously rejected the claim.
I
D Without attempting to announce a precise formula, it is in the opinion of the commission
possible … to hold (first) that the propriety of governmental acts should be put to the test of
international standards, and (second) that the treatment of an alien, in order to constitute an
international delinquency, should amount to an outrage, to bad faith, to wilful neglect of
duty, or to an insufficiency of governmental action so far short of international standards that
every reasonable and impartial man would readily recognize its insufficiency. Whether the
insufficiency proceeds from deficient execution of an intelligent law or from the fact that the
laws of the country do not empower the authorities to measure up to international standards
is immaterial.
R
Notes: one of the most famous cases on denial of justice, fair and equitable treatment, and
minimum standard of treatment in international law
See: State responsibility, responsibility for injured aliens
F
182
Rankin v Iran (1987)
Rankin, who was employed by a us company, requested and was granted permission to be
evacuated out of iran with other employees in the aftermath of the islamic revolution in
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1979. The tribunal dismissed his claim for lost salary and abandoned property.
I
D according to the practice of states, the writings of scholars, the decisions of international
tribunals, and bilateral treaty provisions such as those contained in the treaty of amity,
economic relations and consular rights of 1955 between iran and the united states which
entered into force on 16 june 1957, international law imposes certain restraints on the
circumstances and the manner in which a state may expel aliens from its territory. a claimant
alleging expulsion has the burden of proving the wrongfulness of the expelling state’s action,
in other words that it was arbitrary, discriminatory, or in breach of the expelling state’s treaty
obligations. These restraints have usually been considered in the context of specific measures
directed against an individual emanating directly from the state or legally attributable to it.
However, these general principles apply equally to a situation in which, while there is no
law, regulation, or directive which forces the individual alien to leave, his or her continued
presence in the host country is made impossible because of conditions generated by wrongful
acts of the state or attributable to it.
R Burden of proof is on the plantiff that they were forced to leave by state action
Notes:
See: State responsibility, responsibility for injured aliens
F
Case Concerning Ahmadou Sadio Diallo (ICJ, 2010)
Citizen of the Republic of Guinea, expelled from the Democratic Republic of the Congo,
allegedly in violation of provisions of the International Covenant on Civil and Political
Rights58 and the African Charter on Human and Peoples’ Rights.
I
D The Court, in addition to stressing the applicability of associated obligations such as
informing consular officials and a prohibition on arbitrary treatment, defined the necessary
interplay of domestic law and international law obligations involved in decisions to expel
It follows from the terms of the two provisions cited above that the expulsion of an alien
lawfully in the territory of a State which is a party to these instruments can only be
compatible with the international obligations of that State if it is decided in accordance with
“the law,” in other words the domestic law applicable in that respect. Compliance with
international law is to some extent dependent here on compliance with internal law.
However, it is clear that while “accordance with law” as thus defined is a necessary
condition for compliance with the above-mentioned provisions, it is not the sufficient
condition. First, the applicable domestic law must itself be compatible with the other
requirements of the Covenant and the African Charter; second, an expulsion must not be
arbitrary in nature,
R The rule at issue in this case which is “the rule of local remedies”, originally developed in
the area of diplomatic protection has been extended to the area of human rights. It is
primarily designed to ensure respect for the sovereignty of the host state, which is allowed to
resolve the dispute by its own means before international mechanisms are invoked.
As a matter of grace, the possibility of reconsideration by an administrative authority of an
administrative decision does not constitute a local remedy that must be exhausted before the
decision can be challenged in an international proceeding.
Notes:
See: State responsibility, responsibility for injured aliens
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Quintanilla Claim United States v Mexico (1926)
Alejo Quintanilla, a mexican national, was killed in july 1922 near edinburg, Hidalgo
county, texas. Quintanilla was involved in an incident in which he lassoed a young girl
named agnes casey on horseback, who was thrown from the horse, and whose father reported
the matter to deputy sheriff bernard. bernard and one Weaver took Quintanilla by car, first to
the casey house and then in the direction of the jail at edinburg. Three days later his corpse
was found by the side of the road. bernard and Weaver were arrested on the complaint of the
mexican consul, and the case was submitted to a grand jury, which deferred the case twice
and ultimately took no action.
I It the family of the deceased owed compensation (yes)
D MEAUSRE OF DAMAGES, WRONGFUL. DEATH. Measure of damages in case involving
wrongful death held to include satisfaction due parents for loss suffered by international
delinquency committed by respondent Government.
R
Notes:
See: State responsibility, responsibility for injured aliens; Detention and Physical Injury
F
F
BE Chattin Claim United States v Mexico (1927)
chattin, an american employee of a mexican railroad, was arrested on july 9, 1910 on charges
of embezzlement. He was tried and convicted in january-february 1911, and sentenced to
two years’ imprisonment. He was released during disturbances in may or june 1911, and
returned to the united states. The us government claimed on his behalf that the arrest, trial,
and sentence were unlawful, and that his treatment in jail was inhumane
I
D The Commission decides that the Government of the United Mexican States is obligated to
pay to the Government of the United States of America, on behalf of Mary Ann Turner,
$4,000.00 (four thousand dollars), without interest.
R
Notes:
See: State responsibility, responsibility for injured aliens; Maladministration of Justice
Invocation of State Responsibility
General Principles
 international responsibility is not necessarily defined in a direct relational manner between
two parties.
o Globalization and the proliferation of multilateral instruments, however, have
rendered this traditional approach obsolete.
o The ILC Draft Articles have incorporated that need to focus on re-establishing and
upholding the international rule of law, in the interest of both the injured state and of
the international community at large, by allowing invocation of state responsibility to
both injured and, in certain circumstances, non-injured states.
 No definition of “invocation” is given in the ILC Draft Articles. However, according to the
commentaries: invocation should be understood as taking measures of a relatively formal
character—for example, the raising or presentation of a claim against another state or the
commencement of proceedings before an international court or tribunal. A state has not
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invoked the responsibility of another state merely because it criticized that state for the
breach and called for observance of the obligation, nor even if it reserves its rights or protests
 Article 42 codifies three hypothetical situations in which a state will be considered entitled,
as an injured state, to invoke the responsibility of another state. First, under article 42(a), a
state will be considered injured when it has an individual right to the performance of the
obligation that has been breached. This will occur not only in the case of breach of a bilateral
treaty but also in other cases including unilateral commitments made by one state to another,
multilateral treaties where a particular obligation binds one state party toward another, or
customary international law dealing with the relations between states.
 Second, according to article 42(b)(i), a state will be considered injured if it is the victim of a
violation of a collective obligation owed to a group of states or the international community
as a whole, and is “specially affected” by such a breach. This could include, for example,
pollution of the high seas, in violation of the multilateral obligations set out in the 1982
United Nations Convention on the Law of the Sea, but that particularly affects the nearest
coastal state.
o Lastly, article 42(b)(ii) deals with those obligations whose breach will be considered
as affecting in itself every other state to which they are owed. This paragraph covers
“integral obligations” or “all or nothing” regimes characterized by the fact that “each
state’s continued performance of the obligation is in effect conditioned upon its
performance by each other party” and that “a breach of such an obligation threatens
the treaty structure as a whole.”Consequently, every state to which such obligations
are owed will be considered injured by its breach. One example would be the breach
of a treaty providing for nuclear non-proliferation.
o 3) Articles 46 and 47 deal with those cases where there are several injured states or
several responsible states. It is stipulated that in those instances, any of the injured
states is entitled to invoke the responsibility of any wrongdoer, as long as the required
reparation does not exceed the actual harm that has been suffered by that state.
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art 42 - Invocation of Responsibility by an Injured State
a state is entitled as an injured state to invoke the responsibility of another state if the obligation
breached is owed to:
(a) That state individually; or
(b) a group of states including that state, or the international community as a whole, and
the breach of the obligation:
(i) specially affects that state; or
(ii) is of such a character as radically to change the position of all the other states
to which the obligation is owed with respect to the further performance of the
obligation. …
Art. 46 - Plurality of Injured States
Where several states are injured by the same internationally wrongful act, each injured state may
separately invoke the responsibility of the state which has committed the internationally
wrongful act.
Art. 47 - Plurality of Responsible States
1. Where several states are responsible for the same internationally wrongful act, the
responsibility of each state may be invoked in relation to that act.
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2. paragraph 1:
(a) does not permit any injured state to recover, by way of compensation, more than the
damage it has suffered;
(b) is without prejudice to any right of recourse against the other responsible state.
Invocation by Other States
 The injury caused by an internationally wrongful act may be of a general nature, meaning
that all states bound by a given norm will be considered injured by its violation. This
corresponds to the category of obligations erga omnes, which do not create a series of
parallel bilateral relationships, but only an omni-directional, non-bilateral relation with all
other states bound by the norm. In the Barcelona Traction Case, the Court identified
aggression, human rights, and the prohibition of genocide as three examples of norms erga
omnes, the breach of which will injure every other state.
 When a state tortures one of its own nationals, for instance, there is no specifically injured
state, and the only basis on which international responsibility may be activated is the erga
omnes dimension of the norm prohibiting torture. The significance of the emergence of this
third type of international responsibility is illustrated by the hesitation of the ICJ in this
respect, first seeming to accept the idea in the South West Africa Cases (Preliminary
Objections) in 1962, then backtracking to refuse the idea of an actio popularis, whereby any
state may take legal action to vindicate a public interest, in the Second Phase of the same
case in 1966,104 before finally embracing the concept of obligations erga omnes in the
Barcelona Traction Case in 1970.
 Article 48 “recognizes that other States, by virtue of their participation in a multilateral
regime or as a consequence of their membership of the international community, have a legal
interest in the performance of certain multilateral obligations.”105 The notion of injury is in
this context replaced by the broader concept of legal interest flowing from membership in a
designated group to whom the obligation is owed, or to the international community as a
whole.
 A distinction is drawn in article 48 between those obligations that are owed to the
international community as a whole (obligations erga omnes) and those that only concern a
limited group of states (obligation erga omnes partes). For a state other than those injured to
invoke responsibility in the latter case, an additional criterion must be satisfied. According to
article 48, paragraph (1)(a), the obligation must have been established for the protection of a
collective interest; it might concern, for example, the environment or security of a given
region.
 Invocation of state responsibility by a state other than those injured is of a more limited range
than invocation by the injured state itself. As explained in the commentaries, “the position of
the broader class of states interested in the breach of a collective or community obligation is
ancillary or secondary. These states have the right to call for cessation of the internationally
wrongful act and for assurances and guarantees of non-repetition. They may also insist on
compliance by the responsible state.” They may not, however, claim compensation on their
own account.
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2001)
Art. 48 Invocation of Responsibility by a State Other Than an Injured State
1. any state other than an injured state is entitled to invoke the responsibility of another state in
accordance with paragraph 2 if:
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(a) The obligation breached is owed to a group of states including that state, and is
established for the protection of a collective interest of the group; or
(b) The obligation breached is owed to the international community as a whole.
2. any state entitled to invoke responsibility under paragraph 1 may claim from the responsible
state:
(a) cessation of the internationally wrongful act, and assurances and guarantees of nonrepetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured state or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured state under articles 43, 44
and 45 apply to an invocation of responsibility by a state entitled to do so under paragraph 1.
Counter-Measures
 when a dispute does occur, there is often no international institution to which the injured state
can turn for help in persuading the wrongdoing state to provide reparation. Countermeasures
are a form of self-help by which the injured state may lawfully apply pressure on the
wrongdoing state to obtain the cessation of the wrongful act as well as reparation.
 Countermeasures are acts that would normally be unlawful but are nevertheless considered
licit by their character as a response to a prior internationally wrongful act of another state.
They are to be distinguished from mere retortion measures, which are acts of an unfriendly
nature but which breach no international obligation of the state—for example, the suspension
of development assistance.
 A state may adopt countermeasures that need not mirror the initial violation to which they are
a response. Thus, a state may react to the breach of a customary right of innocent passage of
ships in the territorial sea by suspending a trade agreement.
 Consider how counter-measures relate to terminate a treaty in case of breach by the other
party (Vienna Convention on the Law of Treaties article 60,
 A set of both substantive and procedural limitations seeks to ensure that countermeasures
remain within acceptable bounds and strictly correspond to the specific requirements of the
situation. Among the several substantial safeguards, countermeasures shall be directed only
at the responsible state(s) and not at third parties (article 49(1)); they are to be taken
temporarily, for the duration of the internationally wrongful act (article 49(2)); and they shall
be as far as possible reversible in their effect and not affect the resumption of performance of
the obligation at stake and the future legal relations between the states involved (article
49(3)). Lastly, countermeasures must be proportionate to the injury suffered (article 51) and
shall never impair human rights, humanitarian norms, or peremptory norms (article 50(1)).
 As to procedural limitations, the main and most controversial one is the constraint put on the
adoption of countermeasures whenever there exists an international court or tribunal with
authority to make decisions binding on the parties in relation to the dispute.
International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (2010)
Art. 49 - Object and Limits of Countermeasures
1. an injured state may only take countermeasures against a state which is responsible for an
internationally wrongful act in order to induce that state to comply with its obligations under part
two.
2. countermeasures are limited to the non-performance for the time being of international
obligations of the state taking the measures towards the responsible state.
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3. countermeasures shall, as far as possible, be taken in such a way as to permit the resumption
of performance of the obligation in question.
Art. 50 - Obligations Not Affected by Countermeasures
1. countermeasures shall not affect:
(a) The obligation to refrain from the threat or use of force as embodied in the charter of
the united nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
2. a state taking countermeasures is not relieved from fulfilling its obligations:
(a) under any dispute settlement procedure applicable between it and the responsible
state;
(b) to respect the inviolability of diplomatic or consular agents, premises, archives and
documents.
Art. 51 – Proportionality
countermeasures must be commensurate with the injury suffered, taking into account the gravity
of the internationally wrongful act and the rights in question.
Art. 52 - Conditions Relating to Resort to Countermeasures
1. before taking countermeasures, an injured state shall:
(a) call on the responsible state, in accordance with article 43, to fulfil its obligations
under part two;
(b) notify the responsible state of any decision to take countermeasures and offer to
negotiate with that state.
2. notwithstanding paragraph 1(b), the injured state may take such urgent countermeasures as are
necessary to preserve its rights. 3. countermeasures may not be taken, and if already taken must
be suspended without undue delay if:
(a) The internationally wrongful act has ceased, and
(b) The dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties. 4. paragraph 3 does not apply if the responsible state
fails to implement the dispute settlement procedures in good faith.
Art. 53 - Termination of Countermeasures
countermeasures shall be terminated as soon as the responsible state has complied with its
obligations under part two in relation to the internationally wrongful act.
The Legal Bureau of the Department of External Affairs wrote in a memorandum dated
November 24, 1989
The mere existence of a dispute settlement procedure in a treaty acts as an absolute bar to the
parties to the treaty from taking counter-measures.
The better view, in our opinion, is that the existence of an institutional framework for dispute
settlement puts certain checks on the resort to counter-measures. For example, the exhaustion of
the peaceful settlement procedure is a prerequisite to taking counter-measures.
In other words, the existence of the dispute settlement mechanism is a prima facie ban to
resorting to counter-measures. This ban can be overridden in certain circumstances, such as the
inability of the tribunal to provide the protection sought.
Air Service Agreement Case (France v. US) (1978)
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F
In 1978 Pan AM flew flights from LA via London to Paris. In London passengers changed
planes and boarded a smaller plane to go to paris. French authorities referred to the plane
exchange as changes of gauge in violation of the air services agreement.
On May 3 1978 French authorities ordered a Pan Am plane to return to London after landing
at Paris Orly Airport (without letting people or luggage off). A continuing spat ensued before
going to arbitration
I Had France instituted counter measures or breached international law? [countermeasures.]
D Counter-measures should be proportional
R affirmed the state’s broad right to adopt countermeasures in reaction to a violation of its
rights by another state.
The expression “countermeasures” replaced the older term “reprisals”
Notes: ILC draft Article 52 is “a rephrasing of the relevant holding from Air Services Agreement
that once a dispute is submitted to a tribunal that has the ‘means to achieve the objectives
justifying the countermeasures,’ the right to initiate countermeasures is vitiated and those
already in force may be ‘eliminated,’ but only to the extent that the tribunal can provide
equivalent ‘interim measures of protection.’ ”
See: State responsibility, counter-measures
LaGrand (2001)
F [see above]
I
D the ICJ found that provisional measures ordered by the Court were binding on parties, but
the United States failed to comply with these measures.
R
Notes: Questions whether it is opportune to drastically restrict the recourse to countermeasures
whenever a court or tribunal is asked to settle the dispute?
See: State responsibility, counter-measures
LIMITATIONS OF THE USE OF FORCE
 Until as recently as the beginning of the 20th century, international law did not impose limits
on states’ rights to resort to war. Indeed, use of armed force was seen as a lawful means for
states to promote their interests or resolve disputes.
 Following the Second World War, a sweeping prohibition on the use of force was enshrined
in the Charter of the United Nations (UN Charter).
o States were not to use force unilaterally, except in self-defence.
 Responses to threats to international peace and security, including military steps, were to be
within the exclusive authority of the UN Security Council (SC).3 However, due to the
tensions of the Cold War, the UN’s collective security system failed to operate as envisioned
by the drafters of the Charter. In particular, Security Council action was often blocked
through a veto exercised by one of its permanent members.
Prohibtion on the use of force
o The League of Nations was created in 1919 with the object to promote international
cooperation, peace, and security
 The Covenant required League members to submit disputes to arbitral or
judicial settlement and not to resort to war until three months after an award or
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decision. However, the Covenant left it up to each member state to decide
whether or not a breach had taken place and whether to take sanctions
 In 1928, 15 states signed the General Treaty for the Renunciation of War,7 otherwise known
as the Pact of Paris or the Kellogg-Briand Pact In the Pact, the parties declared that they
“condemn recourse to war forthe solution of international controversies, and renounce it, as
an instrument of national policy in their relations with one another” (article I)
 The Pact helped pave the way for the emergence of the prohibition on the use of force as a
rule of general international law. It is still in force, but may be said to have been superseded
by article 2(4) of the UN Charter,
 The League of Nations, having failed to avert the Second World War, was formally dissolved
in 1946, when the UN came into existence.
The Prohibition of the Use of Force and the Principle of Non-Intervention Charter of the
United Nations articles 2(3), (4), and (7)
Art. 2(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.
Art. 4
1. Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able
and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a
decision of the General Assembly upon the recommendation of the Security Council.
Art. 7
1. There are established as principal organs of the United Nations: a General Assembly, a
Security Council, an Economic and Social Council, a Trusteeship Council, an International Court
of Justice and a Secretariat.
2. Such subsidiary organs as may be found necessary may be established in accordance with the
present Charter.
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations
Charter of the Organization of American States (1948)
Art. 18
no state or group of states has the right to intervene, directly or indirectly, for any reason
whatever in the internal or external affairs of any other state. The foregoing principle prohibits
not only armed force but also any other form of interference or attempted threat against the
personality of the state or against its political, economic and cultural elements.
Art. 19
no state may use or encourage the use of coercive measures of an economic or political character
in order to force the sovereign will of another state and obtain from it advantages of any kind.
Art. 20
T he territory of a state is inviolable; it may not be the object, even temporarily, of military
occupation or of other measures of force taken by another state, directly or indirectly, on any
grounds whatever. no territorial acquisitions or special advantages obtained either by force or by
means of coercion shall be recognized.
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Art. 21
T he american states bind themselves in their international relations not to have recourse to the
use of force, except in the case of self-defense in accordance with existing treaties or in
fulfilment thereof.

Although the Charter of the UN contains no provision that deals explicitly with the principle
of non-intervention by states, this principle must be regarded as implicit in it.
 The principle is embodied in article 2(1), which proclaims the sovereign equality of states
and thus prohibits one state from interfering in the affairs of another state and protects the
second state against such interference.
o In customary law, sovereign equality was the foundation of the duty of nonintervention, and sovereign equality would be meaningless if states were entitled to
intervene in the domestic affairs of other states. Thus, the legal concept of
nonintervention as between member states of the UN could be regarded as springing
from the concepts of respect for the personality and political independence of the
state,
 In addition, since article 2(7) of the UN Charter prohibits intervention by the Organization in
the domestic affairs of member states, that prohibition should extend a fortiori to member
states in their relations with each other.
o The principle of non-intervention could then be considered as a corollary of the
principle of respect for the territorial integrity and political independence of states
protected by article 2(4) of the Charter,
 The duties to avoid the use of force and refrain from intervention in another state are
reiterated in the first and third principles of the 1970 Declaration on Friendly Relations,
reproduced in the Documentary Supplement.
Use of Force, Aggression, and Armed Attack, Definition of Aggression14 ga res
3314(XXiX), UNGAOR, (1974)
Recalling that the security council, in accordance with article 39 of the charter of the united
nations, shall determine the existence of any threat to the peace, breach of the peace or act of
aggression and shall make recommendations, or decide what measures shall be taken in
accordance with articles 41 and 42, to maintain or restore international peace and security,
Article 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 other manner inconsistent with the charter of
the united nations, as set out in this definition. Explanatory note: in this definition the term
“state”:
(a) is used without prejudice to questions of recognition or to whether a state is a member
of the united nations, and
(b) includes the concept of a “group of states” where appropriate.
Article 2
T he first use of armed force by a state in contravention of the charter shall constitute prima facie
evidence of an act of aggression although the security council may in conformity with the
charter, conclude that a determination that an act of aggression has been committed would not be
justified in the light of other relevant circumstances including the fact that the acts concerned or
their consequences are not of sufficient gravity.
Article 3
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any of the following acts, regardless of a declaration of war, shall, subject to and in accordance
with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by armed forces of a state of the territory of another state, or
any military occupation, however temporary, resulting from such invasion or attack, or
any annexation by the use of force of the territory of another state or part thereof;
(b) bombardment by the armed forces of a state against the territory of another state or
the use of any weapons by a state against the territory of another state;
(c) The blockade of the ports or coasts of a state by the armed forces of another state;
(d) an attack by the armed forces of a state on the land, sea or air forces, or marine and air
fleets of another state;
(e) The use of armed forces of one state which are within the territory of another state
with the agreement of the receiving state, in contravention of the conditions provided for
in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
(f) The action of a state in allowing its territory, which it has placed at the disposal of
another state, to be used by that other state for perpetrating an act of aggression against a
third state;
(g) The sending by or on behalf of a state of armed bands, irregulars or mercenaries,
which carry out acts of armed force against another state of such gravity as to amount to
the acts listed above, or its substantial involvement therein.
Article 4
T he acts enumerated above are not exhaustive and the security council may determine that other
acts constitute aggression under the provision of the charter.
Article 5
1. no consideration of whatever nature, whether political, economic, military or otherwise, may
serve as a justification for aggression.
2. a war of aggression is a crime against international peace. aggression gives rise to
international responsibility.
3. no territorial acquisition or special advantage resulting from aggression are or shall be
recognized as lawful.
Article 6
nothing in this definition shall be construed as in any way enlarging or diminishing the scope of
the charter including its provisions concerning cases in which the use of force is lawful.
Article 7
nothing in this definition, and in particular article 3, could in any way prejudice the right to selfdetermination, freedom and independence, as derived from the charter, of peoples forcibly
deprived of that right and referred to in the declaration on principles of international law
concerning friendly relations and co-operation among states in accordance with the charter of the
united nations particularly peoples under colonial and racist régimes or other forms of alien
domination: nor the right of these peoples to struggle to that end and to seek and receive support
in accordance with the principles of the charter and in conformity with the above-mentioned
declaration.
Article 8 in their interpretation and application the above provisions are interrelated and each
provision should be construed in the context of the other provisions.
Comments by Canadian Delegation press release no 14 (10 october 1974)
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Article 2
The canadian government attaches considerable importance to intent as one of the necessary
elements which, in combination, constitute the wrongful act. This is the mens rea of the criminal
law. admittedly, it is difficult to establish and prove this element, more so in the area of
international conflict. nonetheless, it is of central importance and in many cases could be one of
the most important factors to be considered by the security council. as understood by canada, the
use of armed force raises a rebuttable presumption that an act of aggression has been committed.
it is an important, but not an exclusive determinant. The existence of an aggressive intent may be
significant as one of the other “relevant factors” that can either rebut or support this presumption.
Article 3
T he list of acts of aggression on paras. (a) to (h) of article 3 is intended to be illustrative rather
than exhaustive. it is important to read the two articles in conjunction for it then becomes
obvious that this is a two-stage process, governed by article 2 and supplemented by article 3.
The process of determination would be as follows: first, with the aid of this non-exhaustive list
as a guideline, the council would examine the particular act in question. if the act fell within one
of the five categories the council’s deliberations would be substantially simplified. Whether it
did or not, however, by virtue of article 2, the act would still constitute only prima facie evidence
of aggression. The council would then broaden the scope of its inquiry into the other relevant
circumstances in order to arrive at a final determination. The conclusion to be drawn then is that
this list is intended to be an aid, albeit an important one.
The canadian delegation placed on record its understanding that nothing in this definition, and in
particular article 3(d) shall be construed as in any way prejudicing or diminishing the authority
of a coastal state to exercise its rights in maritime zones within the limits of its national
jurisdiction.
paragraph (g) provides further elaboration on the idea of indirect aggression. The inclusion of
this paragraph is an indication of the acceptance of the thesis that the distinction between direct
and indirect aggression is artificial. The determining factor should be the degree of force used
and the degree of responsibility which can be attributed to the state rather than the means or
modalities by which that force is used. This paragraph represents a recognition of the fact that
aggression which is perpetrated under the guise of a third or intermediary agent is just as much
an act of aggression as an outright attack by one state on another. T he acquiescence in or indeed
encouragement by one state of attacks of armed bands against a second state is rejected by the
world community in this paragraph. This paragraph is an encouraging sign of movement in the
right direction. …
Article 5
While the first paragraph of this article is perhaps a truism, the second is of value in that it makes
reference to international law and in particular affirms the continuing validity of the principles of
the nuremberg charter and the declaration of friendly relations. T he last paragraph is a necessary
corollary to the fact of the illegality of aggression in that it stipulates the fruits of aggression will
not be recognized.

193
The search for a generally acceptable definition of aggression was begun by the UN over 50
years ago, and was continued intermittently since then by the International Law Commission
(ILC) and four UN Special Committees. The debate has proceeded on two intertwined tracks,
one focused on the question of criminal responsibility of individuals for crimes of aggression,
the other concerned with the responsibility of states for the use of armed force.
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

The crime of aggression came to be included in article 5 of the 1998 Rome Statute on the
ICC
o However, article 5(2) stipulated that the ICC would not exercise jurisdiction over
aggression until such time as a generally accepted definition of the crime was adopted
by amendment to the Rome Statute. In what is widely hailed as a major milestone
According to the Rome Statute’s new article 8bis, the crime of aggression is committed when
leaders plan or execute “an act of aggression which, by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United Nations.” In turn, an act of
aggression consists in the use of armed force against “another State, or in any other manner
inconsistent with the Charter of the United Nations,” including the acts set out in General
Assembly resolution 3314.
the definition of aggression provided in what became General Assembly resolution 3314 was
drafted by the 35-member UN Special Committee on the Question of Defining Aggression
that was established in 1967 with a membership chosen to reflect the principal legal systems
and geographical areas of the world.
o it received approval by consensus without a formal vote. (A decision is reached by
consensus when no state formally objects to it. There is still a consensus when
negative views are put on the record before or after the decision is taken but without a
formal objection being raised.)
o the definition as drafted does not purport in any way to limit the primary
responsibility of the Security Council for the maintenance of international peace and
security, pursuant to article 24 of the UN Charter, nor does it purport to fetter the
ultimate discretion of the Security Council in determining under article 39 of the
Charter whether an act of aggression has been committed in a particular instance.
However, the definition serves as a useful guide to the Security Council when it has
to decide under article 39 of the Charter whether the direct or indirect use of armed
force by a state has been such as to constitute an illegal use of force in contravention
of the Charter.
o According to the ICJ in the Nicaragua case, the term “armed attack” in article 51 is
considerably more narrow than the concept of “use of force” in article 2(4). The
Court’s approach to the distinction, which remains controversial, has important
implications. In particular, the ICJ concluded that the right to use armed force in
selfdefence was triggered only by uses of force that, due to their gravity, amounted to
“armed attacks” and not by “less grave forms of the use of force.

Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States)
(1986)
F
[in the merits phase of this case, nicaragua claimed, inter alia, that the united states had
acted in violation of article 2(4) of the un charter and of the customary international law
obligation to refrain from the threat or use of force, and that its conduct amounted to
intervention in the internal affairs of nicaragua. The united states did not file any pleadings
on the merits of the case and was not represented at the hearings before the international
court of justice (icj). However, in its counter-memorial on the earlier adjudicated questions
of jurisdiction and admissibility,10 the united states had claimed that by providing, upon
request, proportionate and appropriate assistance to third states not before the court it was
acting in reliance on the inherent right to collective selfdefence in article 51 of the charter
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I
D
paragraph 202 of the decision, the Court observed that “it was never intended that the
Charter should embody written confirmation of every essential principle of international
law in force. The existence in the opinio juris of States of the principle of nonintervention
is backed by established and substantial practice.”
R
confirmed that the principle of nonintervention, despite not infrequent examples of
violation and notwithstanding the lack of specific reference to the principle of nonintervention in the UN Charter, is part of customary international law.
Dis Judge Schwebel: did not agree with construing article 51 of the UN Charter as if it were
worded: “Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence, if and only if, an armed attack occurs.” He was of the view that the
wording and intent of article 51 do not eliminate the right of self-defence under customary
international law or confine its overall scope to the expression in article 51.
Notes: In the preceding excerpts from the Nicaragua case (paragraphs 175-176, 188), which
remains its most important decision on the rules governing the use of force, the ICJ confirms i.
Prohibition of the Use of Force 793 the widely held view that article 2(4) of the UN Charter
codifies a rule of customary international law binding on all states.
Does the 1970 Declaration on Principles of International Law Concerning Friendly Relations
(Declaration on Friendly Relations) clarify article 2(4) of the Charter concerning whether
economic or political measures short of armed force are prohibited
Note that the 1970 Declaration on Principles of International Law Concerning Friendly
Relations was adopted by consensus. It elaborates on some of the provisions of the UN Charter.
It is, nevertheless, still only a UN General Assembly (GA) resolution
The Court itself stated that its judgment did not address the question of anticipatory self-defence
See: limitations of the use of force; UN charter 2(4), self-defence UN Charter Art. 51
Justifications of the use of force
 there are some circumstances in which recourse to force against another state may be lawful
 Conceptually, these circumstances are exceptions to article 2(4).
 The UN Charter recognizes in article 51 the inherent right of states to self-defence against
armed attacks and provides in Chapter VII that the UN Security Council can authorize
collective military action to address threats to international peace and security.
 In the Nicaragua case, and in its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, the ICJ affirmed that a customary international law right to self-defence
exists alongside article 51. But note that the text of article 51 is more limited in its scope than
the right granted under customary law
Charter of the United Nations
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.
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F
Legality of the Threat or Use of Nuclear Weapons [advisory opinion], (ICJ, 1996)
The un general assembly had requested that the court provide an advisory opinion on
whether “the threat or use of nuclear weapons [is] in any circumstances permitted under
international law.” in answering this question, the court also offered a number of general
observations on the requirements of the right to self-defence.
I
D The submission of the exercise of the right of self-defence to the conditions of necessity and
proportionality is a rule of customary international law. as the court stated in the case
concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America): there is a “specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and necessary to respond to it, a rule
well established in customary international law” This also applies to s. 51 of the UN Charter
The proportionality principle may thus not in itself exclude the use of nuclear weapons in
self-defence in all circumstances. but at the same time, a use of force that is proportionate
under the law of self-defence, must, in order to be lawful, also meet the requirements of the
law applicable in armed conflict which comprise in particular the principles and rules of
humanitarian law.
article 51 specifically requires that measures taken by states in the exercise of the right of
self-defence shall be immediately reported to the security council; this article further
provides that these measures shall not in any way affect the authority and responsibility of
the security council under the charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security. These requirements of article 51
apply whatever the means of force used in self-defence.
R
Notes:
See: limitations of the use of force; justifications on the use of force
Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (2003,
ICJ) (p. 802)
F [in the context of the 1980-1988 war between iraq and iran, the united states and other states
agreed to reflag tankers and other commercial vessels operating in the persian gulf, so as to
bring them under the protection of the new flag states. The united states provided naval
escorts to all such us flagged vessels. a number of incidents ensued in which us f lagged
vessels were damaged by missile attacks or mines, which the united states alleged originated
from iran. one of the incidents that gave rise to the Oil Platforms case involved a missile
attack on the tanker Sea Isle City. Three days after the incident, us naval forces destroyed
two iranian offshore oil platforms. The united states argued that it had acted in self-defence.
I Did the US act in Self-defence [no]
D [t]o establish that it was legally justified in attacking the iranian platforms in exercise of the
right of individual self-defence, the united states has to show that attacks had been made
upon it for which iran was responsible; and that those attacks were of such a nature as to be
qualified as “armed attacks” within the meaning of that expression in article 51 of the united
nations charter, and as understood in customary law on the use of force
The united states must also show that its actions were necessary and proportional to the
armed attack made on it, and that the platforms were a legitimate military target open to
attack in the exercise of self-defence. …
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the evidence indicative of iranian responsibility for the attack on the Sea Isle City is not
sufficient to support the contentions of the united states. The conclusion to which the court
has come on this aspect of the case is thus that the burden of proof of the existence of an
armed attack by iran on the united states, in the form of the missile attack on the Sea Isle
City, has not been discharged.
even taken cumulatively, and reserving … the question of iranian responsibility, these
incidents do not seem to the court to constitute an armed attack on the united states, of the
kind that the court, in the case concerning Military and Paramilitary Activities in and against
Nicaragua, qualified as a “most grave” form of the use of force
R the Court confirmed its view that only force of a certain level of gravity would constitute an
armed attack that could trigger the right to self-defence.23 It also addressed the question
whether a series of minor attacks, taken together, could constitute an armed attack. Finally, it
confirmed that the burden of proof is on the state seeking to justify its recourse to force as
self-defence.
Notes:
See: limitations of the use of force; justifications on the use of force
The Legality of Anticipatory Self-Defence and Preventive Strikes
 One of the enduring controversies concerning the right to self-defence is whether article 51
must be read to apply if and only if an armed attack occurs. This section considers the fate of
the customary law rule of anticipatory self-defence.
 There continues to be debate on whether or not a customary international law right to
anticipatory self-defence has survived the advent of the Charter and its article 51.
 In the aftermath of the events of September 11, 2001, there appears to be growing consensus
on the existence of a right of anticipatory self-defence against an imminent attack. (A More
Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats,
Challenges and Change, para 188-192)
 Retorsion is a form of self-help open to a state in reply to an injury done to it by another
state. This injury may be caused by lawful or unlawful acts. Retorsion is a legal but
unfriendly act. The classic examples are the severing of diplomatic relations and the cutting
off of economic aid. Reprisals, or countermeasures, differ from acts of retorsion in that they
are illegal acts, done in retaliation and not self-defence.
o Since the inception of the UN the customary international law right to reprisal has
been curtailed by articles 2(4) and 51 of the Charter
 While “anticipatory” or “pre-emptive” self-defence would presuppose an imminent threat,
“preventive” self-defence would entitle a state to take military measures against potential or
merely emerging threats. The legality of preventive war was forcefully rejected by the IMT
in the Nuremberg War Crimes Trials
o Similarly, the responses to the Israeli bombing of the Osiraq reactor suggest that
states considered preventive strikes to be beyond the scope of self-defence
 The US National Security Strategy suggested inter alia that the concept of “imminent threat”
be adapted in the light of contemporary threats.
o Daniel Bethlehem: proposes: “[T]here may be some advantage to [a] new concept of
“catastrophic threat,” or more properly, the “threat of catastrophic attack.” Faced with
an attack of this kind, it would … be appropriate to begin to think beyond imminence
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to reasonable foreseeability, ie, away from temporal notions of threat and towards
action required to neutralise the risk of catastrophic harm.”
o Thomas Franck argued, by contrast, that the preventive strike doctrine is “not system
transformation but system abrogation.
November 27, 1981 from the Canadian Legal Bureau of the Department of External Affairs
(Canada’s view on Preventive Strikes)
Some States and some writers are therefore favourable to that traditional concept (which fell
from respect) that anticipatory self-defence is permissible under international law, although this
view is vigorously disputed by others. In the opinion of the former, Art. 51 of the Charter cannot
be interpreted so as to prevent a State from acting in its own defence. It would therefore be
permitted to engage in anticipatory “attack in self-defence” if:– an armed aggression is imminent
according to clear evidence based on the facts;– this armed aggression, if allowed to happen,
might put in jeopardy the existence of the victim-State (as opposed to inflicting even serious
damages). The proof of the necessity of such self-preservation falls on the State that
accomplishes the “first-strike” action. Such an occurrence would only be conceivable in the case
of the small State, from the point of view of which no effective self-defence is possible after the
moment of a massive armed attack by a more powerful neighbour or an over-whelming coalition
of other States. This conclusion appears at least indirectly supported by the terms of Art. 2 of the
aforementioned UNGA resolution on Definition on Aggression: “The first use of armed force by
a State in contravention of the Charter shall constitute prima facie evidence of an act of
aggression although the Security Council may, in conformity with the Charter, conclude that a
determination that an act of aggression has been committed would not be justified in the light of
other relevant circumstances.”
National Security Strategy of the United States of America us policy document (september
2002) at 13, 15-16 (p. 813)
o given the goals of rogue states and terrorists, the united states can no longer solely rely on a
reactive posture as we have in the past. The inability to deter a potential attacker, the
immediacy of today’s threats, and the magnitude of potential harm that could be caused by
our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies
strike first. …
o We must adapt the concept of imminent threat to the capabilities and objectives of today’s
adversaries. rogue states and terrorists do not seek to attack us using conventional means.
They know such attacks would fail. instead, they rely on acts of terror and, potentially, the
use of weapons of mass destruction—weapons that can be easily concealed, delivered
covertly, and used without warning.
o T he targets of these attacks are our military forces and our civilian population, in direct
violation of one of the principal norms of the law of warfare. as was demonstrated by the
losses on september 11, 2001
o The greater the threat, the greater is the risk of inaction—and the more compelling the case
for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time
and place of the enemy’s attack. to forestall or prevent such hostile acts by our adversaries,
the united states will, if necessary, act preemptively.
o T he united states will not use force in all cases to preempt emerging threats, nor should
nations use preemption as a pretext for aggression.
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A More Secure World: Our Shared Responsibility report of the High-level panel on
Threats, challenges and change, un doc a/59/565 (2004) (p. 814)
o The language of [article 51 of the un charter] is restrictive. … However, a threatened state,
according to long established international law, can take military action as long as the
threatened attack is imminent, no other means would deflect it and the action is
proportionate. The problem arises where the threat is not imminent but still claimed to be
real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making
capability.
o The short answer is that if there are good arguments for preventive military action, with good
evidence to support them, they should be put to the security council, which can authorize
such action if it chooses to. if it does not so choose, there will be, by definition, time to
pursue other strategies, including persuasion, negotiation, deterrence and containment—and
to visit again the military option.
o for those impatient with such a response, the answer must be that, in a world full of perceived
potential threats, the risk to global order and the norm of non-intervention on which it
continues to be based is simply too great for the legality of unilateral preventive action, as
distinct for collectively endorsed action, to be accepted. allowing one to act is to allow all.
o We do not favour the rewriting or reinterpretation of article 51. …
o in the world of the twenty-first century, the international community does have to be
concerned about nightmare scenarios combining terrorists, weapons of mass destruction and
irresponsible states, … which may conceivably justify the use of force, not just reactively but
preventively and before a latent threat becomes imminent. The question is not whether such
action can be taken: it can, by the security council as the international community’s
collective security voice, at any time it deems that there is a threat to international peace and
security.
2005 World Summit Outcome un doc a/res/60/1, 15 September 2005, Use of Force Under the
Charter of the United Nations
o We reiterate the obligation of all member states to refrain in their international relations from
the threat or use of force in any manner inconsistent with the charter.
o We reaffirm that the relevant provisions of the charter are sufficient to address the full range
of threats to international peace and security. We further reaffirm the authority of the security
council to mandate coercive action to maintain and restore international peace and security.
We stress the importance of acting in accordance with the purposes and principles of the
charter.
o We also reaffirm that the security council has primary responsibility in the maintenance of
international peace and security. We also note the role of the general assembly relating to the
maintenance of international peace and security in accordance with the relevant provisions of
the charter.
F
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The Caroline United Kingdom v United States (1837)
The 1837 canadian rebellion found active support from volunteers in the united states. T hese
volunteers joined with the rebels and encamped on navy island and the chippewa channel in
canadian waters. from there this force raided the canadian riverside and british ships. The us
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authorities knew of these activities but did not stop them. The ship Caroline was involved in
supplying men and materials to navy island. on december 2930, 1837, the british seized the
Caroline, which was docked at fort schlosser on the us side. They set her alight and sent her
over niagara falls. two us citizens were killed. This action was discussed in correspondence
between the british and us governments, when the british sought to obtain the release of one
mcleod, a british subject who had been arrested on charges of murder and arson.
I
D This incident has been used to establish the principle of "anticipatory self-defense" in
international politics, which holds that it may be justified only in cases in which the
"necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and
no moment for deliberation". This formulation is part of the Caroline test. The Caroline
affair is also now invoked frequently in the course of the dispute around preemptive strike
(or preemption doctrine).
The terms "anticipatory self-defense", "preemptive self-defense" and "preemption"
traditionally refers to a state's right to strike first in self-defense when faced with imminent
attack.[3] In order to justify such an action, the Caroline test has two distinct requirements:
1 - The use of force must be necessary because the threat is imminent and thus
pursuing peaceful alternatives is not an option (necessity);
2 - The response must be proportionate to the threat (proportionality).[4]
In Webster's original formulation, the necessity criterion is described as "instant,
overwhelming, leaving no choice of means, and no moment of deliberation". This has later
come to be referred to as "instant and overwhelming necessity"
R This incident was the first apparent recognition internationally of anticipatory (or “preemptive”) self-defence. To be legitimate, self-defence must not only be born out of
necessity, it must also be proportionate to the harm to be countered. (these requirements are
well established in customary international law, apply equally to article 51 of the UN
Charter, whatever the means of force employed.)
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
F
Nuremberg War Crimes Trials (1947) (p. 807)
final judgment of the international military tribunal (imt) at nuremberg. The 22 defendants,
the major war criminals whose crimes had no exact geographical location, were indicted
with crimes against peace, war crimes, and crimes against humanity. They were also charged
with participating in the formulation or execution of a common plan or conspiring to commit
all these crimes. The tribunal held that to initiate a war of aggression is the supreme
international crime. it further held that under article 6 of the charter of the imt that there was
individual responsibility for such offences
I
D it must be remembered that preventive action in foreign territory is justified only in case of
“an instant and overwhelming necessity for self-defense, leaving no choice of means and no
moment of deliberation.” (“The caroline case,” Moore’s Digest of International Law, vol. ii,
at 412). How widely the view was held in influential german circles that the allies intended
to occupy norway cannot be determined with exactitude. Quisling asserted that the allies
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would intervene in norway with the tacit consent of the norwegian government. The german
legation at oslo disagreed with this view, although the naval attaché at that legation shared it.
in the light of all the available evidence it is impossible to accept the contention that the
invasions of denmark and norway were defensive, and in the opinion of the tribunal they
were acts of aggressive war.
R The legality of preventive war was forcefully rejected. (preventive” self-defence would
entitle a state to take military measures against potential or merely emerging threats)
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
Israeli Attack on Iraqi Nuclear Research Centre Security Council Debate un doc (1981) (p. 808)
& Security Council Resolution 487 (1981)33 un doc (p. 809)
F on sunday, june 7, 1981, at 6:37 p.m. local time in iraq, israeli military aircraft flew over iraq
and bombed the nuclear installation situated near baghdad. iraq asserted this was an act of
aggression, while israel claimed that it was an act of self-preservation. The following is an
excerpt from the security council’s debate followed by other materials from its reports.
Iraq: on sunday, 7 june 1981, at 1837 hours baghdad local time, israeli war-planes raided the
nuclear installations situated near baghdad, causing many civilian casualties and much
material damage. The Zionist aggressors announced on the following day their responsibility
for the attack, brazenly claiming the total destruction of the installations. …
Israel: in destroying osiraq, israel performed an elementary act of self-preservation, both
morally and legally. in so doing, israel was exercising its inherent right of self-defence as
understood in general international law and as preserved in article 51 of the united nations
charter. a threat of nuclear obliteration was being developed against israel by iraq, one of
israel’s most implacable enemies. israel tried to have that threat halted by diplomatic means.
our efforts bore no fruit. ultimately we were left with no choice. We were obliged to remove
that mortal danger. We did it cleanly and effectively. The middle east has become a safer
place. We trust that the international community has also been given pause to make the
world a safer place. …
I Did Israel act in self defence [no]
D Noting furthermore that israel has not adhered to the non-proliferation treaty on
nonproliferation of nuclear Weapons, Deeply concerned about the danger to international
peace and security created by the premeditated israeli air attack on iraqi nuclear installations
on 7 june 1981, which could at any time explode the situation in the area, with grave
consequences for the vital interests of all states, Considering that, under the terms of article
2, paragraph 4, of the charter of the united nations: “all members shall refrain in their
international relations from the threat or use of force against the international integrity or
political independence of any state, or in any other manner inconsistent with the purposes of
the united nations,” 1. Strongly condemns the military attack by israel in clear violation of
the charter of the united nations and the norms of international conduct; 2. Calls upon israel
to refrain in the future from any such acts or threats thereof; 3. Further considers that the said
attack constitutes a serious threat to the entire safeguards regime of the international atomic
energy agency, which is the foundation of the treaty on the non-proliferation of nuclear
Weapons;
4. Fully recognizes the inalienable sovereign right of iraq, and all other states, especially the
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developing countries, to establish programmes of technological and nuclear development to
develop their economy and industry for peaceful purposes in accordance with their present
and future needs and consistent with the internationally accepted objectives of preventing
nuclear-weapons proliferation;
5. Calls upon israel urgently to place its nuclear facilities under the safeguards of the
international atomic energy agency;
6. Considers that iraq is entitled to appropriate redress for the destruction it has suffered,
responsibility for which has been acknowledged by israel; 7. Requests the secretary-general
to keep the security council regularly informed of the implementation of the present
resolution.
R
Notes: [meanwhile, the international atomic energy agency (iaea) passed a resolution32 in
which it condemned israel for “this premeditated and unjustified attack” on the iraqi nuclear
research centre and recommended the suspension of technical assistance to israel by the agency.
it also recommended that the un general assembly consider israel’s membership in the un and
reminded states of the un resolution calling for an end to the transfer of nuclear materials and
technology to israel. This iaea resolution was communicated to the security council, which noted
it in the preamble to the following resolution of its own.]
Note that Iraq was a party to the Non-Proliferation Treaty35 and had accepted IAEA
safeguards. Israel had not. The United States, through its ambassador, Ms. Kirkpatrick, stated
after the vote that it was of the view that the Israelis only violated the UN Charter because Israel
had not exhausted peaceful means for the resolution of the dispute
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
F
Cuban Missile Crisis (fact situation, not a case)
President Kennedy announced that the United States intended to impose a strict quarantine
on all offensive military weapons and materials being shipped to Cuba. The UN Security
Council took no action. The Council of the OAS adopted a resolution38 that recommended
that its member states, in accordance with articles 6 and 8 of the Rio Treaty,39 should take
all individual and collective measures, including the armed force deemed necessary, to
prevent Cuba from continuing to receive military material from the Sino-Soviet powers. The
resolution stated that such supplies would threaten the peace and security of the continent.
Through the quarantine, the Cuban missiles were prevented from becoming an active threat.
I
D The US did not justify the “quarantine” on the basis of the right to selfdefence but relied on
the OAS resolution
Were this quarantine and the resulting interceptions of two ships (one a USSR tanker and
one a foreign ship under charter to the USSR) on the high seas justifiable, or were they acts
of aggression? Was the quarantine in breach of article 2(4) of the UN Charter? Was it
justifiable as self-defence?40 Was it justifiable under Chapter VIII of the UN Charter
concerning Regional Arrangements?
R
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
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F
Libya Line of Death (fact situation – not a case) (1981)
In 1981 the United States sent Navy jet fighters across the line proclaimed by Libya as
marking the baseline from which the territorial waters of Libya would be measured (the “line
of death” as it was called by Moammar Gadhafi), with the waters landward of the line
becoming internal waters. The United States stated that it was asserting internationally
accepted rights, as the line drawn across the Gulf of Sidra (at points up to 130 miles from the
Libyan coast) was in violation of international law.
” The US fighters shot down two Libyan planes after one attacked them. Was this a case of
self-defence by the United States? Was it provocation? Again in March 1986 the United
States crossed the “line of death,” when it sent part of the US 6th Fleet and responded to a
missile attack by Libya by sinking at least three Libyan boats, and hitting a shore battery.
Was the United States acting in an acceptable way? Further, was the subsequent US action in
bombing certain “strategic targets” in Libya justifiable on account of Libya’s alleged part in
encouraging international terrorism and thus its complicity in an international crime?
I
D
R
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
F
US – Target Killings since 9-11 (fact situation – not a case)
Since the terrorist attacks of September 11, 2001, the United States has increasingly resorted
to so-called targeted killings, “both as part of combat operations in Afghanistan and Iraq, as
well as in counterterrorism efforts in Pakistan, Yemen, and Somalia.”45 Under the Obama
administration, many of these operations have been conducted through unmanned drone
strikes. The US government considers that it remains “in a state of armed conflict with alQaeda and associated forces” and argues that targeted killings of persons “who are planning
attacks, both in and out of declared theaters of war” can be justified as self-defence.46 Can
targeted killings be justified on that basis?47 Could they constitute selfdefence or
anticipatory self-defence?
I
D
R
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes
Attacks by Non-State Actors and Self-Defence
o After the Second World War, subversion was among the most common and most dangerous
forms of intervention, whether it consisted of hostile propaganda, incitement to revolt or
violently overthrow the established order, or “proxy wars” in which third parties rather than
the opposing states engage in fighting.
o Against this backdrop, the Nicaragua case addressed the circumstances under which
attacks by irregular forces or other non-state actors could be attributed to a state such
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that it would responsible for an armed attack and exposed to potential self-defence
measures.
o Since the events of September 11, 2001, the heightened concern over global terrorism
has renewed the debate over the scope of the right to self-defence against attacks
perpetrated by non-state actors.
o According to many observers, state practice since September 11, 2001 confirms that states
have the right to use force in self-defence against attacks by non-state actors.57 For some
observers, this right includes the right to strike the responsible actors in another state when
that state has directed or supported the attack, or is unwilling or unable to control the armed
activities of non-state actors in its territory.58 Other observers insist that the Nicaragua case
remains authoritative and that the right to self-defence must continue to be read narrowly in
this respect.
Security Council Resolution 1368 (2001)54 un doc s/res/1368 (2001)
o 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took
place on 11 september 2001 in new York, Washington (d.c.) and pennsylvania and regards
such acts, like any act of international terrorism, as a threat to international peace and
security;
o 5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11
september 2001, and to combat all forms of terrorism, in accordance with its responsibilities
under the charter of the united nations 6. Decides to remain seized of the matter.
Security Council Resolution 1373 (2001)55 un doc s/res/1373 (2001)
o T he Security Council, Reaffirming its resolutions 1269 (1999) of 19 october 1999 and 1368
(2001) of 12 september 2001,
o Reaffirming the inherent right of individual or collective self-defence as recognized by the
charter of the united nations as reiterated in resolution 1368 (2001),
o Reaffirming the need to combat by all means, in accordance with the charter of the united
nations, threats to international peace and security caused by terrorist acts,
o Deeply concerned by the increase, in various regions of the world, of acts of terrorism
motivated by intolerance or extremism,
o Calling on states to work together urgently to prevent and suppress terrorist acts, including
through increased cooperation and full implementation of the relevant international
conventions relating to terrorism,
o Recognizing the need for states to complement international cooperation by taking additional
measures to prevent and suppress, in their territories through all lawful means, the financing
and preparation of any acts of terrorism,
o Reaffirming the principle established by the general assembly in its declaration of october
1970 (resolution 2625 (XXv)) and reiterated by the security council in its resolution 1189
(1998) of 13 august 1998, namely that every state has the duty to refrain from organizing,
instigating, assisting or participating in terrorist acts in another state or acquiescing in
organized activities within its territory
o Acting under chapter vii of the charter of the united nations,
o 1. Decides that all states shall:
 (a) prevent and suppress the financing of terrorist acts;
 (b) criminalize the wilful provision or collection, by any means, directly or
indirectly, of funds by their nationals or in their territories with the intention
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that the funds should be used, or in the knowledge that they are to be used, in
order to carry out terrorist acts;
 (c) freeze without delay funds and other financial assets or economic
resources of persons who commit, or attempt to commit, terrorist acts
o 2. Decides also that all states shall:
 (a) refrain from providing any form of support, active or passive, to entities or
persons involved in terrorist acts, including by suppressing recruitment of
members of terrorist groups and eliminating the supply of weapons to
terrorists;
 (b) take the necessary steps to prevent the commission of terrorist acts,
including by provision of early warning to other states by exchange of
information;
 (c) deny safe haven to those who finance, plan, support, or commit terrorist
acts, or provide safe havens;
 (d) prevent those who finance, plan, facilitate or commit terrorist acts from
using their respective territories for those purposes against other states or their
citizens;
 (e) ensure that any person who participates in the financing, planning,
preparation or perpetration of terrorist acts or in supporting terrorist acts is
brought to justice and ensure that, in addition to any other measures against
them, such terrorist acts are established as serious criminal offences in
domestic laws and regulations and that the punishment duly reflects the
seriousness of such terrorist acts;
 (f) afford one another the greatest measure of assistance in connection with
criminal investigations or criminal proceedings relating to the financing or
support of terrorist acts, including assistance in obtaining evidence in their
possession necessary for the proceedings;
 (g) prevent the movement of terrorists or terrorist groups by effective border
controls and controls on issuance of identity papers and travel documents, and
through measures for preventing counterfeiting, forgery or fraudulent use of
identity papers and travel documents;
o 3. Calls upon all states to:
 (a) find ways of intensifying and accelerating the exchange of operational
information, especially regarding actions or movements of terrorist persons or
networks; forged or falsified travel documents; traffic in arms, explosives or
sensitive materials…;
 (b) exchange information in accordance with international and domestic law
and cooperate on administrative and judicial matters to prevent the
commission of terrorist acts;
 (c) cooperate, particularly through bilateral and multilateral arrangements and
agreements, to prevent and suppress terrorist attacks and take action against
perpetrators of such acts;
 (d) become parties as soon as possible to the relevant international
conventions and protocols relating to terrorism, including the international
convention for the suppression of the financing of terrorism of 9 december
1999; (e) increase cooperation and fully implement the relevant international
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

conventions and protocols relating to terrorism and security council
resolutions 1269 (1999) and 1368 (2001);
(f) take appropriate measures in conformity with the relevant provisions of
national and international law, including international standards of human
rights, before granting refugee status, for the purpose of ensuring that the
asylum seeker has not planned, facilitated or participated in the commission of
terrorist acts;
(g) ensure, in conformity with international law, that refugee status is not
abused by the perpetrators, organizers or facilitators of terrorist acts, and that
claims of political motivation are not recognized as grounds for refusing
requests for the extradition of alleged terrorists; …
US Letter to the President of the UN Security Council, 7 October 2001 un doc s/2001/946, 7
october 2001
o in accordance with article 51 of the charter of the united nations, i wish, on behalf of my
government, to report that the united states of america, together with other states, has
initiated actions in the exercise of its inherent right of individual and collective selfdefence
following the armed attacks that were carried out against the united states on 11 september
2001.
o since 11 september, my government has obtained clear and compelling information that the
al-Qaeda organization, which is supported by the taliban regime in afghanistan, had a central
role in the attacks. There is still much we do not know. our inquiry is in its early stages. We
may find that our self-defence requires further actions with respect to other organizations and
other states.
o T he attacks on 11 september 2001 and the ongoing threat to the united states and its
nationals posed by the al-Qaeda organization have been made possible by the decision of the
taliban regime to allow the parts of afghanistan that it controls to be used by this organization
as a base of operation. despite every effort by the united states and the international
community, the taliban regime has refused to change its policy. from the territory of
afghanistan, the al-Qaeda organization continues to train and support agents of terror
o in response to these attacks, and in accordance with the inherent right of individual and
collective self-defence, united states armed forces have initiated actions designed to prevent
and deter further attacks on the united states. These actions include measures against alQaeda terrorist training camps and military installations of the taliban regime in afghanistan.
in carrying out these actions, the united states is committed to minimizing civilian casualties
and damage to civilian property. in addition, the united states will continue its humanitarian
efforts to alleviate the suffering of the people of afghanistan. We are providing them with
food, medicine and supplies.
o i ask that you circulate the text of the present letter as a document of the security council.
F
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US invasion of Afghanistan (Fact situation – not a case)
UN Security Council had previously determined that the Taliban regime in Afghanistan had
allowed terrorist organizations, including al Qaeda, to operate training camps in Afghanistan,
and was providing safe haven to Osama bin Laden. In several resolutions, the Security
Council demanded that the Taliban stop sheltering terrorists and turn over Osama bin Laden.
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It also imposed sanctions on the Taliban regime to pressure it into compliance.53
Immediately after the attacks, the Security Council adopted resolution 1368, recognizing
states’ right to individual and collective selfdefence. In resolution 1373, acting under
Chapter VII of the UN Charter, the Council required that states take a broad range of actions
to suppress terrorism. On October 7, 2001, the United States sent a letter to the Security
Council President, reporting that it had initiated military actions in Afghanistan in the
exercise of its right of individual and collective self-defence.
I
D
R
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes; Attacks by Non-State Actors and Self-Defence
F
I
D
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Advisory Opinion (ICJ, 2004)
[a]ccording to israel: “the construction of the barrier is consistent with article 51 of the
charter of the united nations, its inherent right to self-defence and security council
resolutions 1368 (2001) and 1373 (2001).
[The un general assembly had asked the court for an advisory opinion on the legal
consequences of the construction by israel of a wall in the occupied palestinian territories.
T he court considered, inter alia, the following israeli argument:]
article 51 of the charter … recognizes the existence of an inherent right of self-defence in
the case of armed attack by one state against another state. However, israel does not claim
that the attacks against it are imputable to a foreign state. T he court also notes that israel
exercises control in the occupied palestinian territory and that, as israel itself states, the
threat which it regards as justifying the construction of the wall originates within, and not
outside, that territory. The situation is thus different from that contemplated by security
council resolutions 1368 (2001) and 1373 (200l), and therefore lsrael could not in any
event invoke those resolutions in support of its claim to be exercising a right of selfdefence. consequently, the court concludes that article 51 of the charter has no relevance in
this case.
R
Dis Judge Buergenthal: T]he United Nations Charter, in affirming the inherent right of selfdefence, does not make its exercise dependent upon an armed attack by another State,
leaving aside for the moment the question whether Palestine, for the purposes of this case,
should not be and is not in fact being assimilated by the Court to a State. … Moreover, in
the resolutions cited by the Court, the Security Council has made clear that “international
terrorism constitutes a threat to international peace and security” while “reaffirming the
inherent right of individual or collective selfdefence as recognized by the Charter of the
United Nations as reiterated in resolution 1368 (2001).” … In its resolution 1368 (2001),
adopted only one day after the September 11, 2001 attacks on the US, the Security Council
invokes the right of self-defence in calling on the international community to combat
terrorism. In neither of these resolutions did the Security Council limit their application to
terrorist attacks by State actors only, nor was an assumption to that effect implicit in these
resolutions. In fact, the contrary appears to have been the case.
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Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes; Attacks by Non-State Actors and Self-Defence
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v Uganda) (ICJ, 2005)
F The democratic republic of the congo (drc) claimed that ugandan troops were operating on
drc territory in violation of article 2(4) of the un charter. uganda claimed to be acting in selfdefence against attacks by the allied democratic forces (adf), an antiugandan rebel group
operating from drc territory in the border area.
I Are Ugandan troops in the DRC acting in self defense? [no]
D The court would first observe that in august and early september 1998 uganda did not report
to the security council events that it had regarded as requiring it to act in self-defence. 146. it
is further to be noted that, while uganda claimed to have acted in self-defence, it did not ever
claim that it had been subjected to an armed attack by the armed forces of the drc. The
“armed attacks” to which reference was made came rather from the adf. T he court has found
… that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of
the government of the drc. The attacks did not emanate from armed bands or irregulars sent
by the drc or on behalf of the drc, within the sense of article 3(g) of general assembly
resolution 3314 (XXiX) on the definition of aggression, adopted on 14 december 1974. The
court is of the view that, on the evidence before it, even if this series of deplorable attacks
could be regarded as cumulative in character, they still remained non-attributable to the drc.
for all these reasons, the court finds that the legal and factual circumstances for the exercise
of a right of self-defence by uganda against the drc were not present. accordingly, the court
has no need to respond to the contentions of the parties as to whether and under what
conditions contemporary international law provides for a right of selfdefence against largescale attacks by irregular forces. …
as to the question of whether the drc breached its duty of vigilance by tolerating antiugandan rebels on its territory, the court notes that this is a different issue from the question
of active support for the rebels, because the parties do not dispute the presence of the antiugandan rebels on the territory of the drc as a factual matter. The drc recognized that antiugandan groups operated on the territory of the drc from at least 1986. under the declaration
on friendly relations, “every state has the duty to refrain from … acquiescing in organized
activities within its territory directed towards the commission of such acts” (e.g., terrorist
acts, acts of internal strife) and also “no state shall … tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another state … .” as stated
earlier, these provisions are declaratory of customary international law … .
during the period under consideration both anti-ugandan and anti-Zairean rebel groups
operated in this area. neither Zaire [the drc’s predecessor state] nor uganda were in a position
to put an end to the rebel’s activities. However, in the light of the evidence before it, the
court cannot conclude that the absence of action by Zaire’s government against the rebel
groups in the border area is tantamount to “tolerating” or “acquiescing” in their activities.
R Self defense is only justified where a real attack can be shown by another state, or group
permitted to operate in it’s territory by that state.
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
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and Preventive Strikes; Attacks by Non-State Actors and Self-Defence; duty of vigilance;
declaration of friendly relations
Self-Defence of Nationals
o In the 19th century, this type of intervention was accepted as lawful, based on the doctrines
of self-preservation, self-defence, and necessity. The mainstay of the argument was that
nationals of a state are an extension of the state and their protection is crucial
o Is there any basis for this excuse in the UN Charter? What arguments could be made
to support the view that such action is not contrary to article 2(4) of the Charter? Can
a state’s use of force in another state to rescue nationals be justified as self-defence?
The Entebbe Raid (Security Council Debate)
on june 28, 1976, after a stopover in athens, an air france airplane with over 250 passengers
and 12 crew en route from israel to france was hijacked by terrorists. The airplane was
forced to land at benghazi, libya and then finally at entebbe airport, uganda. The hijackers,
acting on behalf of the popular front for the liberation of palestine, demanded the release of
about 153 terrorists imprisoned in france, israel, kenya, switzerland, and West germany. on
june 30, 1976, they set free 47 passengers who were not israeli citizens. T he next day they
freed an additional 100. The other 104 passengers and crew remained at entebbe until
rescued by an israeli military commando unit on july 3, 1976, which then flew them to israel.
The reports following the rescue indicated that 3 hostages, 1 israeli soldier, 7 of the
hijackers, and a number of ugandan soldiers were killed. opinions conflicted at the time
about whether the ugandan government had tried to protect the hostages and negotiate their
release or whether it had been collaborating with the hijackers.
I T he security council debated the incident without reaching any definite conclusion. Most
aksed how should we view Israel’s actions?
D mr. HerZog (israel):[66] … uganda violated a basic tenet of international law in failing to
protect foreign nationals on its territory. furthermore, it behaved in a manner which
constituted a gross violation of the 1970 Hague convention on the suppression of unlawful
seizure of aircraft. This convention had been ratified by both israel and uganda.[67] …
T he right of self-defence is enshrined in international law and in the charter of the united
nations and can be applied on the basis of the classic formulation, as was done in the wellknown caroline case. … That was exactly the situation which faced the government of israel.
…israeli forces were not attacking uganda—and they were certainly not attacking africa.
They were rescuing their nationals from a band of terrorists and kidnappers who were being
aided and abetted by the ugandan authorities. The means used were the minimum necessary
to fulfil that purpose, as is laid down in international law.
F
mr. oYono (united republic of cameroon):[68] … israel took the initiative of attacking the
territory of uganda—a sovereign state separated from israel by more than 3,000 kilometres—
with commandos from its regular army, airlifted by three military planes. in so doing, israel
deliberately initiated hostilities against uganda and for that reason is the aggressor in this
affair, as defined by international law.
T he security council, which is responsible for international peace and security, must
vigorously condemn this barbaric act which constitutes a flagrant violation of the norms of
international law and flouts the spirit and letter of the united nations charter, article 2,
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paragraph 4. …
mr. scranton (united states):[69] … israel’s action in rescuing the hostages necessarily
involved a temporary breach of the territorial integrity of uganda. normally, such a breach
would be impermissible under the charter of the united nations. However, there is a well
established right to use limited force for the protection of one’s own nationals from an
imminent threat of injury or death in a situation where the state in whose territory they are
located is either unwilling or unable to protect them. The right, flowing from the right of
self-defence, is limited to such use of force as is necessary and appropriate to protect
threatened nationals from injury. …
it should be emphasized that this assessment of the legality of israeli actions depends heavily
on the unusual circumstances of this specific case. in particular, the evidence is strong that,
given the attitude of the ugandan authorities, co-operation with or reliance on them in
rescuing the passengers and crew was impracticable. it is to be hoped that these unique
circumstances will not arise in the future.
R
Notes:
See: limitations of the use of force; justifications on the use of force; Anticipatory Self-Defence
and Preventive Strikes; Attacks by Non-State Actors and Self-Defence; Charter art: 2(4)
Humanitarian Intervention
o In the 19th century it seems that the majority of international law publicists admitted that a
right of humanitarian intervention existed, on the basis that a state that had abused its
sovereign powers by inflicting excessively inhumane treatment on persons within its borders,
whether nationals or aliens, made itself liable to intervention by any state prepared to do so to
ameliorate conditions there.70 Examples of state practice given in support included the 1827
intervention by Austria, Great Britain, France, Prussia, and Russia in aid of Greek
insurgents,71 and the French action and occupation of parts of Syria in 1860-61 to prevent
the massacre of Maronite Christians
o In creating the UN Charter, the world community evidenced a distrust for unilateral action on
the part of states. The prohibition in article 2(7) of intervention in the domestic affairs of
states is one of the fundamental principles of the modern international system.
o Although article 51 allows for self-defence in certain defined circumstances,
including arguably the defence of a state’s own nationals a right to intervene forcibly
for humanitarian reasons remains acutely controversial. A primary concern is that if
the claim to self-defence of nationals is open to abuse, humanitarian intervention
would be even more susceptible to aspersions being cast on its altruistic and genuine
nature
o notably, the concern is that some governments could use the claim of right to
intervene as an excuse for meddling in the affairs of a less powerful state.
o Such was the case of the Security Council authorizing assistance to the Kurds in Iraq in
resolution 688 of April 5, 1991.74 It should be noted that most members of the Council were
of the view that the Kurdish situation was itself a threat to international peace and security.
The measures taken by the UN in matters ostensibly within the domestic purview of Iraq
were indicative of the expanded role and mandate that the organization may have in
situations where there are serious questions of human rights violations. Notwithstanding the
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o
cautious wording of resolution 688, a precedent was set for future situations involving
serious humanitarian concerns.
The failure of the UN to act decisively in the face of the Rwandan genocide in 1994 and the
1999 NATO intervention in Kosovo, which occurred without Security Council authorization,
prompted renewed engagement with the thorny questions surrounding recourse to force for
humanitarian purposes. The debate about a right to intervene came to be recast as one of a
“responsibility to protect.”
o The UN General Assembly endorsed this notion in the 2005 UN World Summit
Outcome document. However, it remains unclear whether the concept, as endorsed in
the Outcome document, brought about a significant change in the international law on
the use of force.
o while the concept was invoked by the Security Council in its resolution S/RES/1973
(2011), authorizing military intervention in Libya, the Security Council refrained
from taking similar action in the case of the Syrian civil war.
o In September 2013, the Security Council finally did adopt resolution 211876 on
Syria, setting out a regime for the destruction of chemical weapons. In resolution
213977 of February 2014, it focused on the deteriorating humanitarian situation in
Syria. But neither resolution invoked the responsibility to protect, let alone authorized
intervention.
Is intervention to restore democracy part of humanitarian intervention? It seems that this was
one of the grounds used by the United States in its 1989 intervention in Panama. consider
also the provisions of article 21 of the Universal Declaration of Human Rights
Are there any circumstances in which states can lawfully undertake a humanitarian
intervention without Security Council authorization? Could the NATO bombings in 1999 of
the then Federal Republic of Yugoslavia (FRY), which had not been authorized by the UN
Security Council, be justified as humanitarian intervention to end the “ethnic cleansing” of
the Kosovar population? Kosovo was at the time part of FRY but with a population that was
90 percent ethnic Albanians. It is argued the Russia china vetos played a role in security
council inaction
o a Russian draft resolution, condemning NATO’s “unilateral use of force” as a
“flagrant violation of the United Nations Charter” and demanding immediate
cessation of NATO aggression, was defeated by a vote of 12 to 3?
o public statement by then NATO Secretary-General Javier Solana.: I have just directed
… General Clark to initiate air operations in the Federal Republic of Yugoslavia. …
All efforts to achieve a negotiated, political solution to the Kosovo crisis having
failed, no alternative is open but to take military action. … Let me be clear: NATO is
not waging war against Yugoslavia. We have no quarrel with the people of
Yugoslavia who for too long have been isolated in Europe because of the policies of
their government. Our objective is to prevent more human suffering and more
repression and violence against the civilian population of Kosovo. We must also act
to prevent instability spreading in the region. …
o We know the risks of action but we have all agreed that inaction brings even greater
dangers. … We must stop an authoritarian regime from repressing its people in
Europe at the end of the 20th century. We have a moral duty to do so.
The report of the Independent International Commission on Kosovo, chaired by the eminent
South African jurist Richard Goldstone, concluded that the 1999 NATO military intervention
o
o
o
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was “illegal but legitimate. It was illegal because it did not receive prior approval from the
United Nations Security Council. However, … the intervention was justified because all
diplomatic avenues had been exhausted and because the intervention had the effect of
liberating the majority population of Kosovo from a long period of oppression under Serbian
rule.”
o The debate on whether, in what circumstances, and by whom there should be outside
intervention in a sovereign state to avert or halt humanitarian disasters has been marked by a
gradual shift away from discussions of a right to humanitarian intervention and toward a
responsibility to protect particularly threatened populations. The ICISS report is among the
most comprehensive articulations of this framework.
o The ICISS report is one of several efforts aimed at formulating “guidelines” that could assist
decision-makers in future cases of extreme crisis. The development of such guidelines, along
with the “emerging norm” of a responsibility to protect, was endorsed by the Highlevel Panel
on Threats, Challenges and Change, which the UN Secretary-General had convened in 2003
to examine global threats and challenges to international peace and security and to identify
the contribution that collective action can make in addressing these challenges.
o Guidelines have also been advocated by some governments, such as the British and
Dutch governments. Other states, especially in the developing world, remain
suspicious of any effort to establish a legal basis for humanitarian or “protective”
interventions. The United States too has shown little enthusiasm for relevant
initiatives.
o the UN Secretary-General accepted the High-level Panel’s report and embraced the
responsibility to protect in his own report to the General Assembly in March 2005,
titled In Larger Freedom: Towards Development, Security and Human Rights for All.
o If many observers were inclined to see the Security Council’s decisive action in the Libyan
crisis as strengthening the responsibility to protect doctrine,93 an even larger number
concluded that the Council’s inability to agree on a forceful approach to the dire situation in
Syria demonstrates the doctrine’s ultimate weakness.
UN Secretary-General Kofi Annan in his 1999 address to the UN General Assembly:
To those for whom the greatest threat to the future of international order is the use of force in the
absence of a Security Council mandate, one might ask—not in the context of Kosovo—but in the
context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of
States had been prepared to act in defence of the Tutsi population, but did not receive prompt
Council authorization, should such a coalition have stood aside and allowed the horror to unfold?
To those for whom the Kosovo action heralded a new era when States and groups of States can
take military action outside the established mechanisms for enforcing international law, one
might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient,
security system created after the Second World War, and of setting dangerous precedents for
future interventions without a clear criterion to decide who might invoke these precedents, and in
what circumstances
Security Council Resolution 688 (1991)79 un doc s/res/688 (1991)
o Recalling the provisions of article 2, paragraph 7 of the charter of the united nations,
o Gravely concerned by the repression of the iraqi civilian population in many parts of iraq,
including most recently in kurdish populated areas which led to a massive flow of refugees
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o
towards and across international frontiers and to cross border incursions, which threaten
international peace and security in the region,
reaffirming the commitment of all member states to the sovereignty, territorial integrity and
political independence of iraq and all other states in the area, …
1. Condemns the repression of the iraqi civilian population in many parts of iraq, including
most recently in kurdish populated areas, the consequences of which threaten international
peace and security in the region;
2. Demands that iraq, as a contribution to removing the threat to international peace and
security in the region, immediately end this repression … ;
3. Insists that iraq allow immediate access by international humanitarian organizations to all
those in need of assistance in all parts of iraq and to make available all necessary facilities for
their operations;
4. Requests the secretary-general to pursue his humanitarian efforts in iraq and to report
forthwith, if appropriate on the basis of a further mission to the region, on the plight of the
iraqi civilian population, and in particular the kurdish population, suffering from the
repression in all its forms inflicted by the iraqi authorities;
5. Also requests the secretary-general to use all the resources at his disposal, including those
of the relevant united nations agencies, to address urgently the critical needs of the refugees
and displaced iraqi population;
6. Appeals to all member states and to all humanitarian organizations to contribute to these
humanitarian relief efforts;
7. Demands that iraq cooperate with the secretary-general to these ends;
o
o
o
o
o
o
o
Security Council Resolution 794 (1992)80 un doc s/res/794 (1992)
o T he Security Council, … Recognizing the unique character of the present situation in
somalia and mindful of its deteriorating, complex and extraordinary nature, requiring an
immediate and exceptional response,
o Commending the ongoing efforts of the united nations, its specialized agencies and
humanitarian organizations and of non-governmental organizations and of states to ensure
delivery of humanitarian assistance in somalia,
o Responding to the urgent calls from somalia for the international community to take
measures to ensure the delivery of humanitarian assistance in somalia,
o Sharing the secretary-general’s assessment that the situation in somalia is intolerable and that
it has become necessary to review the basic premises and principles of the united nations
effort in somalia, and that unosom’s existing course would not in present circumstances be an
adequate response to the tragedy in somalia, …
o Recognizing that the people of somalia bear ultimate responsibility for national reconciliation
and the reconstruction of their own country,
o 1. Reaffirms its demand that all parties, movements and factions in somalia immediately
cease hostilities, maintain a cease-fire throughout the country, and cooperate with the special
representative of the secretary-general
o 2. Demands that all parties, movements and factions in somalia take all measures necessary
to facilitate the efforts of the united nations, its specialized agencies and humanitarian
organizations to provide urgent humanitarian assistance to the affected population in somalia;
o 3. Also demands that all parties, movements and factions in somalia take all measures
necessary to ensure the safety of united nations and all other personnel engaged in the
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delivery of humanitarian assistance
o 6. Decides that the operations and the further deployment of the 3,500 personnel of the united
nations operation in somalia (unosom) authorized by paragraph 3 of resolution 775 (1992)
should proceed at the discretion of the secretary-general in the light of his assessment of
conditions on the ground; and requests him to keep the council informed
o 10. Acting under chapter vii of the charter of the united nations, authorizes the secretarygeneral and member states cooperating to implement the offer referred to in paragraph 8
above to use all necessary means to establish as soon as possible a secure environment for
humanitarian relief operations in somalia;
o 11. Calls on all member states which are in a position to do so to provide military forces and
to make additional contributions, in cash or in kind, in accordance with paragraph 10 above
and requests the secretary-general to establish a fund through which the contributions, where
appropriate, could be channelled to the states or operations concerned;
o 12. Authorizes the secretary-general and the member states concerned to make the necessary
arrangements for the unified command and control of the forces involved, which will reflect
the offer referred to in paragraph 8 above;
o 13. Requests the secretary-general and the member states acting under paragraph 10 above to
establish appropriate mechanisms for coordination between the united nations and their
military forces; …
The Responsibility to Protect report of the international commission on intervention and
state sovereignty (iciss), The Responsibility to Protect (december 2001)
o T his report is about the so-called “right of humanitarian intervention”: the question of when,
if ever, it is appropriate for states to take coercive—and in particular military—action,
against another state for the purpose of protecting people at risk in that other state.
o there continues to be disagreement as to whether, if there is a right of intervention, how and
when it should be exercised, and under whose authority.
o external military intervention for human protection purposes has been controversial both
when it has happened—as in somalia, bosnia and kosovo—and when it has failed to happen,
as in Rwanda
o nato’s intervention in kosovo in 1999 brought the controversy to its most intense head.
security council members were divided; the legal justification for military action without new
security council authority was asserted but largely unargued; the moral or humanitarian
justification for the action, which on the face of it was much stronger, was clouded by
allegations that the intervention generated more carnage than it averted; and there were many
criticisms of the way in which the nato allies conducted the operation.
o at the un general assembly in 1999, and again in 2000, secretary-general kofi annan made
compelling pleas to the international community to try to find, once and for all, a new
consensus on how to approach these issues, to “forge unity” around the basic questions of
principle and process involved. He posed the central question starkly and directly: “[i]f
humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we
respond to a rwanda, to a srebrenica—to gross and systematic violations of human rights that
affect every precept of our common humanity?”
o it was in response to this challenge that the government of canada, together with a group of
major foundations, announced at the general assembly in september 2000 the establishment
of the international commission on intervention and state sovereignty (iciss).
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o “The responsibility to protect,” the idea that sovereign states have a responsibility to protect
their own citizens from avoidable catastrophe—from mass murder and rape, from
starvation—but that when they are unwilling or unable to do so, that responsibility must be
borne by the broader community of states. The nature and dimensions of that responsibility
are argued out, as are all the questions that must be answered about who should exercise it,
under whose authority, and when, where and how.
The Responsibility to Protect: Core Principles
o (1) Basic Principles
o a. state sovereignty implies responsibility, and the primary responsibility for the
protection of its people lies with the state itself.
o b. Where a population is suffering serious harm, as a result of internal war,
insurgency, repression or state failure, and the state in question is unwilling or unable
to halt or avert it, the principle of non-intervention yields to the international
responsibility to protect.
o (2) Foundations T he foundations of the responsibility to protect, as a guiding principle for
the international community of states, lie in:
o a. obligations inherent in the concept of sovereignty;
o b. the responsibility of the security council, under article 24 of the un charter, for the
maintenance of international peace and security;
o c. specific legal obligations under human rights and human protection declarations,
covenants and treaties, international humanitarian law and national law;
o d. the developing practice of states, regional organizations and the security council
itself.
o (3) Elements: T he responsibility to protect embraces three specific responsibilities:
o a. The responsibility to prevent: to address both the root causes and direct causes of
internal conflict and other man-made crises putting populations at risk.
o b. The responsibility to react: to respond to situations of compelling human need with
appropriate measures, which may include coercive measures like sanctions and
international prosecution, and in extreme cases military intervention.
o c. The responsibility to rebuild: to provide, particularly after a military intervention,
full assistance with recovery, reconstruction and reconciliation, addressing the causes
of the harm the intervention was designed to halt or avert.
o (4) Priorities
o a. prevention is the single most important dimension of the responsibility to protect:
prevention options should always be exhausted before intervention is contemplated,
and more commitment and resources must be devoted to it.
o b. The exercise of the responsibility to both prevent and react should always involve
less intrusive and coercive measures being considered before more coercive and
intrusive ones are applied.
The Responsibility to Protect: Principles for Military Intervention
o (1) The Just Cause Threshold military intervention for human protection purposes is an
exceptional and extraordinary measure. to be warranted, there must be serious and irreparable
harm occurring to human beings, or imminently likely to occur, of the following kind:
o a. large scale loss of life, actual or apprehended, with genocidal intent or not, which is
the product either of deliberate state action, or state neglect or inability to act, or a
failed state situation; or
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o b. large scale “ethnic cleansing,” actual or apprehended, whether carried out by
killing, forced expulsion, acts of terror or rape.
o (2) The Precautionary Principles
o a. right intention: The primary purpose of the intervention, whatever other motives
intervening states may have, must be to halt or avert human suffering. right intention
is better assured with multilateral operations, clearly supported by regional opinion
and the victims concerned.
o b. last resort: military intervention can only be justified when every non-military
option for the prevention or peaceful resolution of the crisis has been explored, with
reasonable grounds for believing lesser measures would not have succeeded.
o c. proportional means: The scale, duration and intensity of the planned military
intervention should be the minimum necessary to secure the defined human
protection objective.
o d. reasonable prospects: There must be a reasonable chance of success in halting or
averting the suffering which has justified the intervention, with the consequences of
action not likely to be worse than the consequences of inaction.
o (3) Right Authority
o a. There is no better or more appropriate body than the united nations security council
to authorize military intervention for human protection purposes. The task is not to
find alternatives to the security council as a source of authority, but to make the
security council work better than it has.
o b. security council authorization should in all cases be sought prior to any military
intervention action being carried out. Those calling for an intervention should
formally request such authorization, or have the council raise the matter on its own
initiative, or have the secretary-general raise it under article 99 of the un charter.
o c. The security council should deal promptly with any request for authority to
intervene where there are allegations of large scale loss of human life or ethnic
cleansing. it should in this context seek adequate verification of facts or conditions on
the ground that might support a military intervention.
o d. The permanent five members of the security council should agree not to apply their
veto power, in matters where their vital state interests are not involved, to obstruct the
passage of resolutions authorizing military intervention for human protection
purposes for which there is otherwise majority support.
o e. if the security council rejects a proposal or fails to deal with it in a reasonable time,
alternative options are:
 i. consideration of the matter by the general assembly in emergency special
session under the “uniting for peace” procedure; and
 ii. action within the area of jurisdiction by regional or sub-regional
organizations under chapter viii of the charter, subject to their seeking
subsequent authorization from the security council.
o f. The security council should take into account in all its deliberations that, if it fails
to discharge its responsibility to protect in conscience-shocking situations crying out
for action, concerned states may not rule out other means to meet the gravity and
urgency of that situation—and that the stature and credibility of the united nations
may suffer thereby.
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A More Secure World: Our Shared Responsibility report of the High-level panel on
Threats, challenges and change, un doc a/59/565 (2004)
o We endorse the emerging norm that there is a collective international responsibility to
protect, exercisable by the security council authorizing military intervention as a last resort,
in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of
humanitarian law which sovereign governments have proved powerless or unwilling to
prevent. …
o The guidelines we propose will not produce agreed conclusions with push-button
predictability. The point of adopting them is … to maximize the possibility of achieving
security council consensus around when it is appropriate or not to use coercive action,
including armed force; to maximize international support for whatever the council decides;
and to minimize the possibility of individual member states bypassing the security council.
o in considering whether to authorize … the use of military force, the security council should
always address … at least the following five basic criteria of legitimacy:
o (a) Seriousness of threat. is the threatened harm to state or human security of a kind,
and sufficiently clear and serious, to justify prima facie the use of military force? in
the case of internal threats, does it involve genocide and other large-scale killing,
ethnic cleansing or serious violations of humanitarian law, actual or imminently
apprehended?
o (b) Proper purpose. is it clear that the primary purpose of the proposed military
action is to halt or avert the threat in question, whatever other purposes or motives
may be involved?
o (c) Last resort. Has every non-military option for meeting the threat in question been
explored, with reasonable grounds for believing that other measures will not succeed?
(d) Proportional measures. are the scale, duration and intensity of the proposed
military action the minimum necessary to meet the threat in question?
o (e) Balance of consequences. is there a reasonable chance of the military action
being successful in meeting the threat in question, with the consequences of action
not likely to be worse than the consequences of inaction?
2005 World Summit Outcome un doc a/res/60/1, 15 september 2005, ungaor - Responsibility
to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against
Humanity
o each individual state has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This responsibility entails the
prevention of such crimes, including their incitement, through appropriate and necessary
means. We accept that responsibility and will act in accordance with it. The international
community should, as appropriate, encourage and help states to exercise this responsibility
and support the united nations in establishing an early warning capability.
o The international community, through the united nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other peaceful means, in accordance with chapters
vi and viii of the charter, to help to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. in this context, we are prepared to take collective
action, in a timely and decisive manner, through the security council, in accordance with the
charter, including chapter vii, on a case-by-case basis and in cooperation with relevant
regional organizations as appropriate, should peaceful means be inadequate and national
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authorities are manifestly failing to protect their populations
Implementing the Responsibility to Protect: Report of the UN Secretary General un doc
a/63/677 (2009)
The provisions of paragraphs 138 and 139 of the summit outcome suggest that the responsibility
to protect rests on the following three pillars:
Pillar One: The Protection Responsibilities of the State
o (a) pillar one is the enduring responsibility of the state to protect its populations, whether
nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity,
and from their incitement. The declaration by the Heads of state and government in
paragraph 138 of the summit outcome that “we accept that responsibility and will act in
accordance with it” is the bedrock of the responsibility to protect. That responsibility, they
affirmed, lies first and foremost with the state. The responsibility derives both from the
nature of state sovereignty and from the pre-existing and continuing legal obligations of
states, not just from the relatively recent enunciation and acceptance of the responsibility to
protect;
Pillar Two: International Assistance and Capacity-Building
o pillar two is the commitment of the international community to assist states in meeting those
obligations. it seeks to draw on the cooperation of member states, regional and subregional
arrangements, civil society and the private sector, as well as on the institutional strengths and
comparative advantages of the united nations system. prevention, building on pillars one and
two, is a key ingredient for a successful strategy for the responsibility to protect;
Pillar Three :Timely and Decisive Response
o pillar three is the responsibility of member states to respond collectively in a timely and
decisive manner when a state is manifestly failing to provide such protection. demonstrated
by the successful bilateral, regional and global efforts to avoid further bloodshed in early
2008 following the disputed election in kenya, if the international community acts early
enough, the choice need not be a stark one between doing nothing or using force. a reasoned,
calibrated and timely response could involve any of the broad range of tools available to the
united nations and its partners. These would include pacific measures under chapter vi of the
charter, coercive ones under chapter vii and/or collaboration with regional and subregional
arrangements under chapter viii. The process of determining the best course of action, as well
as of implementing it, must fully respect the provisions, principles and purposes of the
charter. in accordance with the charter, measures under chapter vii must be authorized by the
security council. The general assembly may exercise a range of related functions under
articles 10 to 14, as well as under the “uniting for peace” process set out in its resolution 377
(v). chapters vi and viii specify a wide range of pacific measures that have traditionally been
carried out either by intergovernmental organs or by the secretary-general. either way, the
key to success lies in an early and flexible response, tailored to the specific needs of each
situation.
Security Council Resolution 1973 (2011) un doc s/res/1973 (2011)
o T he Security Council, Recalling its resolution 1970 (2011) of 26 february 2011,
o Deploring the failure of the libyan authorities to comply with resolution 1970 (2011),
o Expressing grave concern at the deteriorating situation, the escalation of violence, and the
heavy civilian casualties,
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o Reiterating the responsibility of the libyan authorities to protect the libyan population and
reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible
steps to ensure the protection of civilians,
o Condemning the gross and systematic violation of human rights, including arbitrary
detentions, enforced disappearances, torture and summary executions, …
o Recalling paragraph 26 of resolution 1970 (2011) in which the council expressed its
readiness to consider taking additional appropriate measures, as necessary, to facilitate and
support the return of humanitarian agencies and make available humanitarian and related
assistance in the libyan arab jamahiriya,
o Recalling the condemnation by the league of arab states, the african union, and the secretary
general of the organization of the islamic conference of the serious violations of human rights
and international humanitarian law that have been and are being committed in the libyan arab
jamahiriya, …
o Recalling the condemnation by the league of arab states, the african union, and the secretary
general of the organization of the islamic conference of the serious violations of human rights
and international humanitarian law that have been and are being committed in the libyan arab
jamahiriya, …
o Recalling its decision to refer the situation in the libyan arab jamahiriya since 15 february
2011 to the prosecutor of the international criminal court, and stressing that those responsible
for or complicit in attacks targeting the civilian population, including aerial and naval
attacks, must be held to account, …
o Considering that the establishment of a ban on all flights in the airspace of the libyan arab
jamahiriya constitutes an important element for the protection of civilians as well as the
safety of the delivery of humanitarian assistance and a decisive step for the cessation of
hostilities in libya, …
o Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and
national unity of the libyan arab jamahiriya,
o Acting under chapter vii of the charter of the united nations,
o 1. Demands the immediate establishment of a cease-fire and a complete end to
violence and all attacks against, and abuses of, civilians;
o 2. Stresses the need to intensify efforts to find a solution to the crisis which responds
to the legitimate demands of the libyan people and notes the decisions of the
secretarygeneral to send his special envoy to libya and of the peace and security
council of the african union to send its ad hoc High level committee to libya with the
aim of facilitating dialogue to lead to the political reforms necessary to find a
peaceful and sustainable solution;
o 3. Demands that the libyan authorities comply with their obligations under
international law, including international humanitarian law, human rights and refugee
law and take all measures to protect civilians and meet their basic needs, and to
ensure the rapid and unimpeded passage of humanitarian assistance;
o Protection of Civilians
o 4. Authorizes member states that have notified the secretary-general, acting nationally
or through regional organizations or arrangements, and acting in cooperation with the
secretary-general, to take all necessary measures, notwithstanding paragraph 9 of
resolution 1970 (2011), to protect civilians and civilian populated areas under threat
of attack in the libyan arab jamahiriya, including benghazi, while excluding a foreign
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occupation force of any form on any part of libyan territory, and requests the member
states concerned to inform the secretary-general immediately of the measures they
take pursuant to the authorization conferred by this paragraph
o No Fly Zone
o 6. Decides to establish a ban on all flights in the airspace of the libyan arab
jamahiriya in order to help protect civilians; …
o 8. Authorizes member states that have notified the secretary-general and the
secretary-general of the league of arab states, acting nationally or through regional
organizations or arrangements, to take all necessary measures to enforce compliance
with the ban on flights imposed by paragraph 6 above, as necessary, and requests the
states concerned in cooperation with the league of arab states to coordinate closely
with the secretary general on the measures they are taking to implement this ban,
including by establishing an appropriate mechanism for implementing the provisions
of paragraphs 6 and 7 above, …
F
I
Security council resolution 688 – Kurds in Iraq
Concerning the plight of the Kurds in the north of Iraq and the Shi’ite Muslims in the south
of Iraq, it can be argued that humanitarian assistance was slow in coming. Leading up to
Security Council resolution 688 it was estimated that between 400 and 1,000 Kurdish
refugees were dying every day at the Turkish border
Did the Security Council, in resolution 688, authorize a humanitarian intervention to protect
the Kurds in Iraq? How does resolution 794, adopted in 1992 to address a humanitarian crisis
in Somalia and to enable relief efforts, differ from resolution 688?
D
R
Notes:
See: limitations of the use of force; justifications on the use of force; Humanitarian protection
Invitation
o When an invitation is issued by one government to another to participate in its domestic
or external affairs, such involvement would not be classed as intervention or aggression.
However, the requesting government must be in control of the country and must be the
lawful government.
o Naturally, the invitation must be genuine and voluntary and no untoward pressure must
have been put on it that would vitiate the agreement. The invitation must have emanated
from a person with the authority to make it. This issue was raised in the context of the
1983 US intervention in Grenada, when Sir Paul Scoon, the Governor-General of
Grenada, exercised a purported constitutional power to invite the United States and the
Organization of Eastern Caribbean States (OECS) to assist.
o Such a request may be seen as a legitimate response to acts of aggression by a
third state in contravention of article 2(4) of the Charter.
o Such action could fall within the “inherent right of … collective self-defence”
contained in article 51 of the Charter and at customary international law, provided
the relevant conditions are satisfied.
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o after the invasion of Kuwait by Iraq on August 2, 1990 the Kuwaiti government in exile
appealed for help to the international community. The assistance given by the coalition
states was authorized under the various UN Security Council resolutions to be discussed
in the next section. However, even without such cohesive action at the UN an argument
for collective self-defence based on invitation could have been made.
Collective Measures Pursuant to the UN Charter
o The UN Security Council is the organ that is given primary responsibility for international
peace and security under article 24 of the Charter.
o By article 25 its decisions, as opposed to its hortatory resolutions, are binding on member
states (see namibia)
o Pursuant to Chapter VII of the Charter, decisions relating to threats to the peace, breaches of
the peace, or acts of aggression are so binding. In order for the Security Council to exercise
the powers in Chapter VII it has first to determine the existence of a threat to or breach of the
peace. It managed to do so (engage chapter VII) in only three situations prior to the Iraq –
Kuwait crisis of 1990.
o 1 - in 1950 following the invasion of South Korea by North Korea. [the USSR was
absent for all 3 resolutions, does this accord with art. 27 of the UN Charter (and 2428)] The Security Council adopted a resolution determining the breach, called for the
cessation of hostilities and the withdrawal of the North Korean forces, and called on
member states to assist the UN in Korea.
 When the North Koreans neither ceased hostilities nor withdrew their forces
to the 38th parallel as called for, the Security Council recommended in a
second resolution that member states furnish such assistance to the Republic
of Korea as was necessary to repel the armed attack and restore international
peace and security in the area. The third resolution on Korea welcomed the
support already given to assist the Republic of Korea in defending itself
against armed attack and recommended that all member states providing
armed forces and other assistance pursuant to the earlier resolutions make
such forces and assistance available to a unified command under the United
States.
o 2 - following the Argentine invasion of the Falklands/Malvinas Islands. On April 3,
1982 the Security Council adopted a resolution in which it determined that a breach
of the peace existed and demanded the immediate cessation of hostilities, followed by
the immediate withdrawal of the Argentine forces.
o 3 - The third occasion was in the Iran – Iraq Gulf War of 1980-1988, when the
Security Council adopted a resolution in which it determined that there was a breach
of the peace in that conflict, acting specifically under articles 39 and 40 of the
Charter.
o Other issues in not engaging chapter VII were due to the times, or vetos. Before the
temporary post – Cold War cohesiveness in the Security Council, which in 1999 was sorely
tested over Kosovo, as it was also after 1997 over continued sanctions against Iraq and then
the 2003 invasion of Iraq, the exercise of the veto by one of the permanent members too
often created an impasse in that body. Recognizing this inherent weakness in the system, the
General Assembly sought to complete the authorization of collective measures by way of the
Uniting for Peace resolution.
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o The Uniting for Peace resolution (below) was adopted by 52 votes for and 5 against with 2
abstentions. The General Assembly adopted this then controversial resolution at the time of
the Security Council’s impasse over the Korean crisis in 1950. It has been used a number of
times since Korea, including for Suez in 1956, Hungary in 1956, Jordan and Lebanon in
1958, the Congo in 1960, Afghanistan in 1980, and Namibia in 1981.
o What is the effect of the General Assembly “making appropriate recommendations to
Members for collective measures”? Are member states bound to undertake the
measures if they disagree with them? What authority does the General Assembly have
with regard to collective measures? Consider the UN Charter articles 10-17,
o “The Right of Self-Defence,” subsists until the Security Council has acted to maintain
international peace and security. However, because of the veto power contained in article
27(3) it may be impossible for the Security Council to do so. In that case the right of selfdefence under article 51 will continue.
Charter of the United Nations
article 2(7),
article 24,
article 25,
article 39
article 40
article 41
article 42
article 43
article 44
article 45
article 46
article 47
article 48
article 49
article 50
article 51
Uniting for Peace Resolution 103 ga res 377v(a), ungaor, 5th sess, supp no 20, un doc
a/1775 (1951)
o T he General Assembly, … Finding that international tension exists on a dangerous scale, …
o Reaffirming the importance of the exercise by the security council of its primary
responsibility for the maintenance of international peace and security, and the duty of the
permanent members to seek unanimity and to exercise restraint in the use of veto,
o Reaffirming that the initiative in negotiating the agreements for armed forces provided for in
article 43 of the charter belongs to the security council, and desiring to ensure that, pending
the conclusion of such agreements, the united nations has at its disposal means for
maintaining international peace and security,
o Conscious that failure of the security council to discharge its responsibilities on behalf of all
the member states, particularly those responsibilities referred to in the two preceding
paragraphs, does not relieve member states of their obligations or the united nations of its
responsibility under the charter to maintain international peace and security,
o A.1. Resolves that if the security council, because of lack of unanimity of the permanent
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members, fails to exercise its primary responsibility for the maintenance of international
peace and security in any case where there appears to be a threat to the peace, breach of the
peace or act of aggression, the general assembly shall consider the matter immediately with a
view to making appropriate recommendations to members for collective measures, including
in the case of a breach of the peace or act of aggression the use of armed force when
necessary, to maintain or restore international peace and security. if not in session at the time,
the general assembly may meet in an emergency special session within twenty-four hours of
the request therefor.
o c.7. Invites each member of the united nations to survey its resources in order to determine
the nature and scope of the assistance it may be in a position to render in support of any
recommendations of the security council or of the general assembly for the restoration of
international peace and security;
o 8. Recommends to the members of the united nations that each member maintain within its
national armed forces elements so trained, organized and equipped that they could promptly
be made available, in accordance with its constitutional processes, for service as a united
nations unit or units, upon recommendation by the security council or general assembly,
without prejudice to the use of such elements in exercise of the right of individual or
collective self-defence recognized in article 51 of the charter.
Security Council Resolution 660 (1990)106 un doc s/res/660 (1990)
o T he Security Council, Alarmed by the invasion of kuwait on 2 august 1990 by the military
forces of iraq,
o Determining that there exists a breach of international peace and security as regards the iraqi
invasion of kuwait, Acting under articles 39 and 40 of the charter of the united nations, 1.
Condemns the iraqi invasion of kuwait; 2.
o Demands that iraq withdraw immediately and unconditionally all its forces to the positions in
which they were located on 1 august 1990;
Security Council Resolution 661 (1990)107 un doc s/res/661 (1990),
o T he Security Council, … Deeply concerned that … [resolution 660 (1990)] has not been
implemented and that the invasion by iraq of kuwait continues with further loss of human life
and material destruction,
o Noting that the legitimate government of kuwait has expressed its readiness to comply with
resolution 660 (1990),
o Affirming the inherent right of individual or collective self-defence, in response to the armed
attack by iraq against kuwait, in accordance with article 51 of the charter,
o Acting under chapter vii of the charter of the united nations,
o 1. Determines that iraq so far has failed to comply with paragraph 2 of resolution 660
(1990) and has usurped the authority of the legitimate government of kuwait;
o 2. Decides, as a consequence, to take the following measures to secure compliance of
iraq with paragraph 2 of resolution 660 (1990) and to restore the authority of the
legitimate government of kuwait;
o 3. Decides that all states shall prevent:
 (a) The import into their territories of all commodities and products
originating in iraq or kuwait exported therefrom after the date of the present
resolution;
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
(b) any activities by their nationals or in their territories which would promote
or are calculated to promote the export or trans-shipment of any commodities
or products from iraq or kuwait; and any dealings by their nationals or their
flag vessels or in their territories in any commodities or products originating
in iraq or kuwait and exported therefrom after the date of the present
resolution, including in particular any transfer of funds to iraq or kuwait for
the purposes of such activities or dealings;
 (c) The sale or supply by their nationals or from their territories or using their
flag vessels of any commodities or products, including weapons or any other
military equipment, whether or not originating in their territories but not
including supplies intended strictly for medical purposes, and, in humanitarian
circumstances, foodstuffs, to any person or body in iraq or kuwait or to any
person or body for the purposes of any business carried on in or operated from
iraq or kuwait, and any activities by their nationals or in their territories which
promote or are calculated to promote such sale or supply of such commodities
or products;
o 4. Decides that all states shall not make available to the government of iraq or to any
commercial, industrial or public utility undertaking in iraq or kuwait, any funds or
any other financial or economic resources and shall prevent their nationals and any
persons within their territories from removing from their territories or otherwise
making available to that government or to any such undertaking any such funds or
resources and from remitting any other funds to persons or bodies within iraq or
kuwait, except payments exclusively for strictly medical or humanitarian purposes
and, in humanitarian circumstances, foodstuffs;
o 5. Calls upon all states, including states non-members of the united nations, to act
strictly in accordance with the provisions of the present resolution notwithstanding
any contract entered into or licence granted before the date of the present
resolution; …
o 9. Decides that … nothing in the present resolution shall prohibit assistance to the
government of kuwait, and calls upon all states:
 (a) to take appropriate measures to protect assets of the legitimate government
of kuwait and its agencies;
 (b) not to recognize any régime set up by the occupying power.
o
Security Council Resolution 662 (1990)108 un doc s/res/662 (1990),
o T he Security Council, …
o Gravely alarmed by the declaration by iraq of a “comprehensive and eternal merger” with
kuwait,
o Demanding once again that iraq withdraw immediately and unconditionally all its forces to
the positions in which they were located on 1 august 1990,
o Determined to bring the occupation of kuwait by iraq to an end and to restore the
sovereignty, independence and territorial integrity of kuwait,
o Determined also to restore the authority of the legitimate government of kuwait,
o 1. Decides that annexation of kuwait by iraq under any form and whatever pretext has no
legal validity, and is considered null and void;
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o 2. Calls upon all states, international organizations and specialized agencies not to recognize
that annexation, and to refrain from any action or dealing that might be interpreted as an
indirect recognition of the annexation;
o 3. Demands that iraq rescind its actions purporting to annex kuwait;
Security Council Resolution 665 (1990)109 un doc s/res/665 (1990)
o T he Security Council, … Having decided in resolution 661 (1990) to impose economic
sanctions under chapter vii of the charter of the united nations,
o Gravely alarmed that iraq continues to refuse to comply with resolutions 660 (1990), 661
(1990), 662 (1990) and 664 (1990) and in particular at the conduct of the government of iraq
in using iraqi flag vessels to export oil,
o 1. Calls upon those member states cooperating with the government of kuwait which are
deploying maritime forces to the area to use such measures commensurate to the specific
circumstances as may be necessary under the authority of the security council to halt all
inward and outward maritime shipping in order to inspect and verify their cargoes and
destinations and to ensure strict implementation of the provisions related to such shipping
laid down in resolution 661 (1990);
o 2. Invites member states accordingly to cooperate as may be necessary to ensure compliance
with the provisions of resolution 661 (1990) with maximum use of political and diplomatic
measures, in accordance with paragraph 1 above;
o 3. Requests all states to provide in accordance with the charter such assistance as may be
required by the states referred to in paragraph 1 of this resolution;
o 4. Also requests the states concerned to coordinate their actions in pursuit of the above
paragraphs of this resolution using as appropriate mechanisms of the military staff committee
and after consultation with the secretary-general to submit reports to the security council and
its committee established under resolution 661 (1990) to facilitate the monitoring of the
implementation of this resolution.
Security Council Resolution 678 (1990)110 un doc s/res/678 (1990)
o T he Security Council, …
o Noting that, despite all efforts by the united nations, iraq refuses to comply with its
obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant
resolutions, in flagrant contempt of the security council,
o Acting under chapter vii of the charter,
o 1. Demands that iraq comply fully with resolution 660 (1990) and all subsequent relevant
resolutions, and decides, while maintaining all its decisions, to allow iraq one final
opportunity, as a pause of goodwill, to do so;
o 2. Authorizes member states co-operating with the government of kuwait, unless iraq on or
before 15 january 1991 fully implements, as set forth in paragraph 1 above, the foregoing
resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and
all subsequent relevant resolutions and to restore international peace and security in the area;
o 3. Requests all states to provide appropriate support for the actions undertaken in pursuance
of paragraph 2 of the present resolution;
o 4. Requests the states concerned to keep the security council regularly informed on the
progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;
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Security Council Resolution 687 (1991)111 un doc s/res/687 (1991)
o T he Security Council, …
o Welcoming the restoration to kuwait of its sovereignty, independence and territorial integrity
and the return of its legitimate government,
o Affirming the commitment of all member states to the sovereignty, territorial integrity and
political independence of kuwait and iraq, and noting the intention expressed by the member
states cooperating with kuwait under paragraph 2 of resolution 678 (1990) to bring their
military presence in iraq to an end as soon as possible consistent with paragraph 8 of
resolution 686 (1991), …
o Conscious of the need to take the following measures acting under chapter vii of the charter,
o 1. Affirms all thirteen resolutions noted above, except as expressly changed below to achieve
the goals of this resolution, including a formal cease-fire;
o 2. Demands that iraq and kuwait respect the inviolability of the international boundary and
the allocation of islands set out in the “agreed minutes between the state of kuwait and the
republic of iraq regarding the restoration of friendly relations,
o 3. Calls upon the secretary-general to lend his assistance to make arrangements with iraq and
kuwait to demarcate the boundary between iraq and Kuwait
o 7. Invites iraq to reaffirm unconditionally its obligations under the geneva protocol for the
prohibition of the use in War of asphyxiating, poisonous or other gases, and of
bacteriological methods of Warfare, signed at geneva on 17 june 1925, and to ratify the
convention on the prohibition of the development, production and stockpiling of
bacteriological (biological) and toxin Weapons and on Their destruction
o 8. Decides that iraq shall unconditionally accept the destruction, removal, or rendering
harmless, under international supervision, of:
o (a) all chemical and biological weapons and all stocks of agents and all related
subsystems and components and all research, development, support and
manufacturing facilities;
o (b) all ballistic missiles with a range greater than 150 kilometres and related major
parts, and repair and production facilities;
o 9. Decides also, for the implementation of paragraph 8 above, the following:
o (a) iraq shall submit to the secretary-general, within fifteen days of the adoption of
the present resolution, a declaration of the locations, amounts and types of all items
specified in paragraph 8 and agree to urgent, on-site inspection as specified below;
o (b) The secretary-general, in consultation with the appropriate governments and,
where appropriate, with the director-general of the World Health organization, within
forty-five days of the passage of the present resolution, shall develop, and submit to
the council for approval, a plan calling for the completion of the following acts within
forty-five days of such approval:
 (i) The forming of a special commission, which shall carry out immediate
onsite inspection of iraq’s biological, chemical and missile capabilities, based
on iraq’s declarations and the designation of any additional locations by the
special commission itself;
 (ii) The yielding by iraq of possession to the special commission for
destruction, removal or rendering harmless, taking into account the
requirements of public safety, of all items specified under paragraph 8(a)
above, including items at the additional locations designated by the special
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o
commission under paragraph 9(b)(i) above and the destruction by iraq, under
the supervision of the special commission, of all its missile capabilities,
including launchers, as specified under paragraph 8(b) above;
 (iii) The provision by the special commission of the assistance and
cooperation to the director-general of the international atomic energy agency
required in paragraphs 12 and 13 below;
10. Decides further that iraq shall unconditionally undertake not to use, develop, construct or
acquire any of the items specified in paragraphs 8 and 9 above and requests the secretarygeneral, in consultation with the special commission, to develop a plan for the future ongoing
monitoring and verification of iraq’s compliance with this paragraph, to be submitted to the
security council for approval within one hundred and twenty days of the passage of this
resolution;
11. Invites iraq to reaffirm unconditionally its obligations under the treaty on the nonproliferation of nuclear Weapons of 1 july 1968;
12. Decides that iraq shall unconditionally agree not to acquire or develop nuclear weapons
or nuclear-weapons-usable material or any subsystems or components or any research,
development, support or manufacturing facilities related to the above
20. Decides, effective immediately, that the prohibitions against the sale or supply to iraq of
commodities or products, other than medicine and health supplies, and prohibitions against
financial transactions related thereto contained in resolution 661 (1990) shall not apply to
foodstuffs notified to the security council committee established by resolution 661 (1990)
concerning the situation between iraq and kuwait or, with the approval of that committee,
under the simplified and accelerated “no-objection” procedure, to materials and supplies for
essential civilian needs
22. Decides also that upon the approval by the security council of the programme called for
in paragraph 19 above and upon council agreement that iraq has completed all actions
contemplated in paragraphs 8, 9, 10, 11, 12, and 13 above, the prohibitions against the import
of commodities and products originating in iraq and the prohibitions against financial
transactions related thereto contained in resolution 661 (1990) shall have no further force or
effect;
23. Decides further that, pending action by the security council under paragraph 22 above,
the security council committee established by resolution 661 (1990) shall be empowered to
approve, when required to assure adequate financial resources on the part of iraq to carry out
the activities under paragraph 20 above, exceptions to the prohibition against the import of
commodities and products originating in iraq;
24. Decides that, in accordance with resolution 661 (1990) and subsequent related resolutions
and until a further decision is taken by the security council, all states shall continue to
prevent the sale or supply, or the promotion or facilitation of such sale or supply, to iraq by
their nationals, or from their territories or using their flag vessels or aircraft, of:
o (a) arms and related matériel of all types, specifically including the sale or transfer
through other means of all forms of conventional military equipment, including for
paramilitary forces, and spare parts and components and their means of production,
for such equipment;
o (b) items specified and defined in paragraphs 8 and 12 above not otherwise covered
above;
o (c) technology under licensing or other transfer arrangements used in the production,
o
o
o
o
o
o
227
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utilization or stockpiling of items specified in subparagraphs (a) and (b) above; (d)
personnel or materials for training or technical support services relating to the design,
development, manufacture, use, maintenance or support of items specified in
subparagraphs (a) and (b) above;
o 25. Calls upon all states and international organizations to act strictly in accordance with
paragraph 24 above, notwithstanding the existence of any contracts, agreements, licences or
any other arrangements; …
o 32. Requires iraq to inform the security council that it will not commit or support any act of
international terrorism or allow any organization directed towards commission of such acts to
operate within its territory and to condemn unequivocally and renounce all acts, methods and
practices of terrorism;
o 33. Declares that, upon official notification by iraq to the secretary-general and to the
security council of its acceptance of the provisions above, a formal cease-fire is effective
between iraq and kuwait and the member states cooperating with kuwait in accordance with
resolution 678 (1990);
Security Council Resolution 1441 (2002) un doc s/res/1441 (2002),
o T he Security Council,
o Recalling all its previous relevant resolutions, in particular its resolutions 661 (1990) of 6
august 1990, 678 (1990) of 29 november 1990, 686 (1991) of 2 march 1991, 687 (1991) of 3
april 1991, 688 (1991) of 5 april 1991, 707 (1991) of 15 august 1991, 715 (1991) of 11
october 1991, 986 (1995) of 14 april 1995, and 1284 (1999) of 17 december 1999, and all the
relevant statements of its president,
o Recalling also its resolution 1382 (2001) of 29 november 2001 and its intention to implement
it fully,
o Recognizing the threat iraq’s non-compliance with council resolutions and proliferation of
weapons of mass destruction and long-range missiles poses to international peace and
security,
o Recalling that its resolution 678 (1990) authorized member states to use all necessary means
to uphold and implement its resolution 660 (1990) of 2 august 1990 and all relevant
resolutions subsequent to resolution 660 (1990) and to restore international peace and
security in the area,
o Deploring the fact that iraq has not provided an accurate, full, final, and complete disclosure,
as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of
mass destruction and ballistic missiles with a range greater than one hundred and fifty
kilometres, and of all holdings of such weapons, their components and production facilities
and locations, as well as all other nuclear programmes, including any which it claims are for
purposes not related to nuclear-weapons-usable material, …
o Recalling that in its resolution 687 (1991) the council declared that a ceasefire would be
based on acceptance by iraq of the provisions of that resolution, including the obligations on
iraq contained therein,
o Determined to ensure full and immediate compliance by iraq without conditions or
restrictions with its obligations under resolution 687 (1991) and other relevant resolutions
and recalling that the resolutions of the council constitute the governing standard of iraqi
compliance, …
o Acting under chapter vii of the charter of the united nations,
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o 1. Decides that iraq has been and remains in material breach of its obligations under
relevant resolutions, including resolution 687 (1991), in particular through iraq’s
failure to cooperate with united nations inspectors and the iaea, and to complete the
actions required under paragraphs 8 to 13 of resolution 687 (1991);
o 2. Decides, while acknowledging paragraph 1 above, to afford iraq, by this resolution,
a final opportunity to comply with its disarmament obligations under relevant
resolutions of the council; and accordingly decides to set up an enhanced inspection
regime with the aim of bringing to full and verified completion the disarmament
process established by resolution 687 (1991) and subsequent resolutions of the
council;
o 3. Decides that, in order to begin to comply with its disarmament obligations, in
addition to submitting the required biannual declarations, the government of iraq shall
provide to unmovic, the iaea, and the council, not later than 30 days from the date of
this resolution, a currently accurate, full, and complete declaration of all aspects of its
programmes to develop chemical, biological, and nuclear weapons, ballistic missiles,
and other delivery systems such as unmanned aerial vehicles and dispersal systems
designed for use on aircraft, including any holdings and precise locations of such
weapons, components, sub-components, stocks of agents, and related material and
equipment, the locations and work of its research, development and production
facilities, as well as all other chemical, biological, and nuclear programmes, including
any which it claims are for purposes not related to weapon production or material;
o 4. Decides that false statements or omissions in the declarations submitted by iraq
pursuant to this resolution and failure by iraq at any time to comply with, and
cooperate fully in the implementation of, this resolution shall constitute a further
material breach of iraq’s obligations and will be reported to the council for
assessment in accordance with paragraphs 11 and 12 below; …
o 11. Directs the executive chairman of unmovic and the director general of the iaea to
report immediately to the council any interference by iraq with inspection activities,
as well as any failure by iraq to comply with its disarmament obligations, including
its obligations regarding inspections under this resolution;
o 12. Decides to convene immediately upon receipt of a report in accordance with
paragraphs 4 or 11 above, in order to consider the situation and the need for full
compliance with all of the relevant council resolutions in order to secure international
peace and security;
o 13. Recalls, in that context, that the council has repeatedly warned iraq that it will
face serious consequences as a result of its continued violations of its obligations;
US Letter to the President of the UN Security Council, 20 March 2003 un doc s/2003/351,
21 march 2003
o coalition forces have commenced military operations in iraq. These operations are necessary
in view of iraq’s continued material breaches of its disarmament obligations under relevant
security council resolutions, including resolution 1441 (2002).
o The operations are substantial and will secure compliance with those obligations. in carrying
out these operations, our forces will take all reasonable precautions to avoid civilian
casualties.
o T he actions being taken are authorized under existing council resolutions, including its
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o
resolutions 678 (1990) and 687 (1991). resolution 687 (1991) imposed a series of obligations
on iraq, including, most importantly, extensive disarmament obligations, that were conditions
of the ceasefire established under it. it has been long recognized and understood that a
material breach of these obligations removes the basis of the ceasefire and revives the
authority to use force under resolution 678 (1990).
This has been the basis for coalition use of force in the past and has been accepted by the
council, as evidenced, for example, by the secretary-general’s public announcement in
january 1993 following iraq’s material breach of resolution 687 (1991) that coalition forces
had received a mandate from the council to use force according to resolution 678 (1990).
iraq continues to be in material breach of its disarmament obligations under resolution 687
(1991), as the council affirmed in its resolution 1441 (2002). acting under the authority of
chapter vii of the charter of the united nations, the council unanimously decided that iraq has
been and remained in material breach of its obligations and recalled its repeated warnings to
iraq that it will face serious consequences as a result of its continued
The resolution then provided iraq a “final opportunity” to comply, but stated specifically that
violations by iraq of its obligations under resolution 1441 (2002) to present a currently
accurate, full and complete declaration of all aspects of its weapons of mass destruction
programmes and to comply with and cooperate fully in the implementation of the resolution
would constitute a further material breach.
T he government of iraq decided not to avail itself of its final opportunity under resolution
1441 (2002) and has clearly committed additional violations. in view of iraq’s material
breaches, the basis for the ceasefire has been removed and use of force is authorized under
resolution 678 (1990).
iraq repeatedly has refused, over a protracted period of time, to respond to diplomatic
overtures, economic sanctions and other peaceful means, designed to help bring about iraqi
compliance with its obligations to disarm and to permit full inspection of its weapons of mass
destruction and related programmes. The actions that coalition forces are undertaking are an
appropriate response. They are necessary steps to defend the united states and the
international community from the threat posed by iraq and to restore international peace and
security in the area. further delay would simply allow iraq to continue its unlawful and
threatening conduct.
o
o
o
o
Written Answer of the UK Attorney General to a Parliamentary Question on Iraq uk, Hl,
Parliamentary Debates, vol 646, col Wa3 (17 march 2003)
o authority to use force against iraq exists from the combined effect of resolutions 678, 687 and
1441. all of these resolutions were adopted under chapter vii of the un charter which allows
the use of force for the express purpose of restoring international peace and security:
o 1. in resolution 678 the security council authorised force against iraq, to eject it from kuwait
and to restore peace and security in the area.
o 2. in resolution 687, which set out the ceasefire conditions after operation desert storm, the
security council imposed continuing obligations on iraq to eliminate its weapons of mass
destruction in order to restore international peace and security in the area. resolution 687
suspended but did not terminate the authority to use force under resolution 678.
o 3. a material breach of resolution 687 revives the authority to use force under resolution 678.
o 4. in resolution 1441 the security council determined that iraq has been and remains in
material breach of resolution 687, because it has not fully complied with its obligations to
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o
disarm under that resolution.
5. The security council in resolution 1441 gave iraq “a final opportunity to comply with its
disarmament obligations” and warned iraq of the “serious consequences” if it did not.
6. The security council also decided in resolution 1441 that, if iraq failed at any time to
comply with and cooperate fully in the implementation of resolution 1441, that would
constitute a further material breach.
7. it is plain that iraq has failed so to comply and therefore iraq was at the time of resolution
1441 and continues to be in material breach.
8. Thus, the authority to use force under resolution 678 has revived and so continues today.
9. resolution 1441 would in terms have provided that a further decision of the security
council to sanction force was required if that had been intended. Thus, all that resolution
1441 requires is reporting to and discussion by the security council of iraq’s failures, but not
an express further decision to authorise force.
o
o
o
o
Certain Expenses of the United Nations case [advisory opinion] (ICJ, 1962)
When several members of the UN, including the USSR and France, objected to paying for
peacekeeping expenses assessed as part of their financial contributions to the UN by the
General Assembly under its budgetary power in article 17(2), the GA asked the ICJ for an
advisory opinion. The objectors claimed that the peacekeeping forces raised under the
Uniting for Peace resolution for Suez in 1956 (UNEF) and for the Congo in 1960 (ONUC)
were unconstitutional.
I Do states have to contribute to GA resolutions they voted against [yes]
D In its decision in the Certain Expenses of the United Nations case,104 the ICJ, noting that the
Security Council’s responsibility under article 24 is primary and not exclusive, advised that
by articles 14 and 18 the GA may take decisions (subject to article 12) recommending
measures in respect of international peace and security that would constitute “expenses of the
Organization” within article 17(2). The Court also opined that the UN Charter, through
article 11(2), draws a distinction between enforcement action, which only the SC may
authorize under Chapter VII, and other measures to preserve peace and security. The Court
declared that the peacekeeping operations of the UNEF and ONUC, which essentially were
ceasefiremonitoring missions, were not enforcement actions, but were legitimately
recommended and expensed by the GA.
R Recognition of actions available to the general assembly
Notes:
See: limitations of the use of force; justifications on the use of force; Collective Measures
Pursuant to the UN Charter; Uniting for Peace Resolution
F
F
231
The 1990-91 Iraq – Kuwait Crisis: Gulf War I (fact situation not a case)
The first occasion when the Security Council exercised something approaching its full
powers under Chapter VII of the UN Charter (with all members present and voting) was the
Iraq – Kuwait crisis, which arose in 1990. On August 2, 1990 Iraq under the leadership of
President Saddam Hussein invaded another state, Kuwait, with, it was estimated, over
100,000 troops. These troops had massed along the border between the two states the week
before. Within 48 hours Iraq had control of Kuwait. On August 8, 1990 President Hussein
announced “the comprehensive and eternal merger” of the two countries. Kuwait was to be
“Province No. 19” of Iraq. It has been surmised in retrospect that President Hussein thought
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that the major powers on the Security Council would simply view this step as regional
realpolitik, and not become involved in a distant and expensive conflict. This was a serious
miscalculation. Iraq failed to anticipate the universal condemnation of one of the most
blatant acts of armed aggression since the Second World War. Also, it did not allow for the
changes in international outlook in the then Soviet Union and the fact that that state would
join the consensus and not use the veto.
I
D
R
Notes: see SC resolutions: 660-663, 665, 678, 687, in total there were 12 SC resolutions.
The United States asserted a right of collective self-defence with Kuwait and Saudi Arabia. Note
how in resolution 661 (August 6), the Security Council recognized for the first time that
collective self-defence applied in a given case, even where the assisting state has not itself been
attacked and has no special treaty arrangement to give assistance. Are there limits to
participation in collective acts of self-defence or may any friendly state join in?
Once the Security Council was seized of the Iraq – Kuwait crisis, was the right of individual or
collective self-defence under article 51 suspended?
The economic sanctions imposed by these resolutions are the most extensive ever declared by the
Security Council
In April 1991 while the Security Council condemned Iraq for repression of the Kurds and the
Secretary-General sought to establish humanitarian centres, some members of the coalition
forces organized safe havens and provided basic services to the population in several places
inside Iraq. What was their legal authority for doing so? Are there lawful grounds for this kind
of humanitarian intervention? See articles 2(1) and (7) and resolution 688
See: limitations of the use of force; justifications on the use of force; Collective Measures
Pursuant to the UN Charter;
F
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The 2003 Invasion of Iraq: Gulf War II (fact situation not a case)
By resolution 687 (1991), the Security Council had established the terms and conditions for a
formal ceasefire between Iraq and the coalition of member states cooperating with Kuwait.
Section C of the resolution addressed the elimination, under international supervision, of
Iraq’s weapons of mass destruction and ballistic missiles with a range greater than 150
kilometres, together with related items and production facilities. It also called for measures
to ensure that the acquisition and production of prohibited items were not resumed. In May
1991, the UN Special Commission (UNSCOM) was established to implement the nonnuclear provisions of the resolution and to assist the International Atomic Energy Agency
(IAEA) in the nuclear areas. While Iraq initially allowed UNSCOM to monitor military
installations, it later denied access to sites designated by UNSCOM, expelled US national
members of UNSCOM, and, by so doing, flagrantly violated previous resolutions. These
actions were condemned by the Security Council.114 But it likely did not go unnoticed in
Iraq that the Security Council as of mid-October 1997 did not appear to be capable of
maintaining its earlier cohesion concerning further sanctions for non-compliance. The game
of cat and mouse continued. In resolution 1154 (1998), adopted unanimously, the Security
Council stated that if Iraq did not comply in granting immediate, unconditional, and
unrestricted access to inspection sites, it would face the “severest consequences.”115 In
October 1998, Iraq formally ended all cooperation with UNSCOM. In December 1998, after
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further, fruitless back-and-forth between Iraq, UNSCOM, and the Security Council, the
United States and the United Kingdom launched a bombing campaign dubbed “Operation
Desert Fox.” Although several Security Council members declared the operation to be
unlawful, the United States and the United Kingdom maintained that it was validly based on
the authority contained in resolution 678. It was said to have been revived as a result of
Iraq’s “material breaches” of the ceasefire conditions set out in resolution 687.116 The
Security Council as such neither endorsed nor rejected that line of reasoning.
Through resolution 1284 (1999),117 it established the UN Monitoring, Verification and
Inspection Commission (UNMOVIC). However, it was not until the United States, in 2002,
began pressing for a military intervention in Iraq to enforce compliance with resolution
687118 that Iraq indicated renewed willingness to cooperate with UN inspectors. The United
States, supported by the United Kingdom, sought adoption of a resolution that would have
stiffened the inspection regime and disclosure requirements imposed on Iraq. Most notably,
under the proposed resolution, further “material breaches” by Iraq of its obligations would
have authorized member states to take military enforcement measures. However, other
members of the Security Council were reluctant to set the tracks toward the use of military
force. After intense negotiations, a compromise was enshrined in resolution 1441 (2002),
adopted unanimously.
I Was the US and UK authorized in using force?
D In the weeks following the adoption of Resolution 1441, UNMOVIC inspectors were unable
to uncover clear evidence that Iraq had weapons of mass destruction or had resumed its
weapons programs. The Security Council could not reach agreement on whether Iraq’s
conduct and its degree of compliance with the requirements set out in resolution 1441
warranted an armed intervention, and no further resolution explicitly authorizing such
intervention was adopted. The United States and Britain maintained that an additional
resolution providing specific authorization of force was not required.
In March 2003, the United States led coalition forces that included troops from the United
Kingdom, Australia, the Czech Republic, Poland, and Slovakia in an invasion of Iraq
(“Operation Iraqi Freedom”). In a letter to the Security Council President, the United States
legally justified this military intervention
R
Notes: See SC Resolution 1441 and US and UK letters
Consider article 60 of the Vienna Convention on the Law of Treaties Was the ceasefire
arrangement under resolution 687 akin to a treaty and thus subject to termination or suspension
in the face of “material breach” by one party
In 2009, then British Prime Minister Gordon Brown launched the Chilcot Inquiry, which
conducted extensive hearings and reviewed declassified government documents, inter alia,
relating to the legal justification for the Iraq intervention.123 The Inquiry confirmed that the UK
Attorney General, Lord Goldsmith, prior to March 2003, had expressed misgivings about the
“revival” argument concerning resolution 678 that is contained in his written answer to
Parliament, and also in the US letter to the UN Security Council,
the legal advisers in the UK Foreign Office had consistently advised that the 2003 Iraq
intervention could not be legally justified without an explicit authorization by the Security
Council. Indeed, then Deputy Legal Adviser Elizabeth Wilmshurst resigned over the issue, noting
that she could not “in conscience go along with advice … which asserts the legitimacy of
military action without such a [new] resolution, particularly since an unlawful use of force on
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such a scale amounts to the crime of aggression.”
See: limitations of the use of force; justifications on the use of force; Collective Measures
Pursuant to the UN Charter;
Responses to State-Sponsored Terrorism
o The UN General Assembly and two specialized agencies, the International Civil Aviation
Organization (ICAO) and the International Maritime Organization (IMO), have sponsored 10
multilateral conventions and 2 protocols against terrorism. These seek to prevent, if not to
punish
o The thrust of these conventions and protocols is to secure the prosecution of the perpetrators
of such crimes through widespread implementation. They obligate the states parties (1) to
amend their domestic criminal law to provide for wide bases of jurisdiction over the offence,
including universal jurisdiction, and (2) either to extradite an arrested alleged perpetrator or,
if not, to submit the case to their own authorities for the purpose of prosecution.128
However, since treaties bind only those states that ratify them, key states remain beyond the
reach of these obligations to suppress terrorism.
o Since the attacks of September 11, 2001, terrorism has increasingly come to be seen as a
matter of national and international security, rather than primarily a matter for international
cooperation in criminal law matters.
o if a state sponsors terrorist acts or aids terrorist groups in any way to further its or their goals
against other states or their nationals, it would be in violation of article 2(4) of the Charter
and of the 1970 Declaration on Friendly Relations, and an act of aggression under article 3(g)
of the 1974 Definition of Aggression. A victim state could respond in self-defence and the
Security Council could become seized of the matter.
o For example, the Security Council determined that the Taliban regime in Afghanistan
had allowed terrorist organizations, including al Qaeda, to operate training camps in
Afghanistan and was providing safe haven to Osama bin Laden. In several
resolutions, the Security Council demanded that the Taliban stop sheltering terrorists
and turn over Osama bin Laden. It also imposed sanctions on the Taliban regime to
pressure it into compliance.
o In addition, in resolution 1373 (2001) the Council required that states take extensive
measures to suppress terrorism. Some observers have asked whether it was within the
Security Council’s powers to adopt a resolution with such wide-ranging requirements,
resembling “legislation” more than situation-specific decisions.
o Recourse to “legislative” resolutions has been the most controversial aspect of the
Security Council’s increased activity in the terrorism context after September 11,
2001.132 In particular, through a series of resolutions, the Council established a
regime under which all states were required to impose certain restrictions (for
example, asset freezes and travel restrictions) on individuals or organizations deemed
to be associated with Osama bin Laden,133 named on a list compiled by a UN
Sanctions Committee pursuant to those resolutions.134
o The “listing” resolutions of the UN Security Council and the practice of the Sanctions
Committee operating under it generated much negative response. In the absence of an
international process, individuals affected by resultant sanctions turned to national
and European courts to challenge the sanctions
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o
I n response to highly critical judicial decisions, interventions by states and other
international actors, and academic commentary, the SC listing system has since been
significantly revised. Now a process exists through which individuals can challenge
listing decisions. In addition, an ombudsperson, Canadian Judge Kimberly Prost, was
appointed.
Course notes
JURISDICTION
 Strong overlap between the criteria for statehood and jurisdiction
(the Montevideo Convention)
TERRITORY
 State territory
 Res nullius [unowned land, no other sovereignty claim], ex. now
only antartica; formerly Africa before international law
 Res communis [), ex. high seas
 Dimensions of territory
o Vertical – air column; ‘air space’
o Maritime –

Territorial waters

costal waters (territory of a state);
 territorial sea (now 12 nautical miles from
coastlines);

exclusive economic zone (not territorial; economic
rights)
Island of Palmas (Miangas)
 example of how colonization times had different understandings of
territory. Most of the things below are now illegal as displayed in
the Iraq invasion of Kuwait (which would have been totally legal
at the times of Palmas)
 Independence: right to exercise in a certain territory the functions
of a state to the exclusion of other states
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 Title (colonizers got title or property of the colony)
 Display of sovereignty
o “The continuous and peaceful display of territorial
sovereignty (peaceful in relation to other states) is as good as
title
 Means of acquisition
o Occupation
o Conquest
o Cession (regardless of wishes of local population; )
 Sovereignty: rights and duties
Colonial Canada and Indian Title
 Indian treaties and international law
o What followed the treaties is forgetting what was promised.
And the person negotiating the treaty was not the one
fulfilling the obligations
o As well the SCC would not enforce what was promised
o Today indian title is seen as a part of international law
 Discovery followed actual possession
 Territory as property
Hans Island (Canada v. Denmark)
Airspace and Outerspace
 Even in space there is a lot of law
 Sovereignty claims
 Common interests
 Regulation in air and space
INDIVIDUALS (NATIONALS)

Starting position: subjects of the state; objects from the point of
view of international law
o To which state does an individual ‘belong’?
o This is why in Tinoco case Great Britain had to bring the
claim, only a state had standing

Now Individuals do have standing in public international law
(especially in human rights)
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o Starting point: No international legal personality
o Espousal of claims (who has the right to make claims on
behalf of individuals?)
o Ex. Dutch princess born in a stateless zone (after Canada
declared the hospital room stateless, so she could become a
dutch citizen and reign)
Nottebohn – the horizontal system at work

Born in Germany (citizen)

Lived in Guatemala (34 years, not a citizen or national)

Acquired Liechtenstein citizenship (had no connection, brother
there, visited briefly)
o Germany went to war with Guatemala – Guatemala
refused to let Nottebohn back in
 It was ruled Guatemala had the right to refuse
recognition of Nottebohn (since he was not a citizen)

Nottenbohn could not sue Guatemala because he is a citizen
with no standing in international law. He needs a state to
represent him.
Flegenheimer
 Lost US nationality when he became a German citizen (US did not
recognize dual citizenship)
 Lost his German citizenship and became stateless (during WWII,
likely lost during holocaust)
 US espousal of claim / exercise of diplomatice protection
 Difference between Nottenbohn and Flegenhimer
o Nottenbohn is NOT about shoding citizens must have a
genuine link between two countries

It’s about when a citizen falls between 2 chairs
(doesn’t want to evoke his citizenship)
o Flegenhiemer is about Statelessness
Statelessness and Refugees
 Horizontal system
o If an individual is not part of a states, who will take their
case to international law? (individuals have no standing)
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 Human right to nationality
o Enforcement (how to enforce a human right to nationality?
International law says its up to states)
 Alleviating impacts
o Some states declare a right to espouse claims of stateless
persons (Such as Canada, not claiming a person is
Canadian but that using standing to discuss their claim)
CORPORATIONS (NATIONALS)
 Nationality of corporation
o Do we care if they have a link? Do the HQ need to be in the
country of nationality?
o Diplomatic protection

For which entities

For what purposes

Under what circumstances
o BITs and other treaty arrangements

Nationality of corporations

Rights of foreign investors, corporations
o All these questions decided by treaties, international law,
free trade agreements, and domestic laws. Focused on
investment
Jurisdiction – ships, aircraft, and spacecraft
 Legal personality (under municipal not international law)
 Nationality
o Registration
o Flag state (state exercise jurisdiction over a ship)
o Piracy (where a ship no longer belongs to a state, thus no
one has jurisdiction over it)
o Flag of convenience (ships can register anywhere they want,
those seeking a lax jurisdiction will find a country looking
to collect on registration fees)

Reflects ‘freedom of the high seas’ since only the flag
state can hold ships accountable for their actions
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(exclusive flag state jurisdiction)
o Genuine link v. effective control (Nottenbohm showed that a
person doesn't have to have a genuine link in being a state)

UN law of the seas says flag ships should have a
genuine link to the state

Others say this is not a problem, rather we should be
concerned with whether the flag state exercises
effective control
 First problem – exercising jurisdiction within the state – Crossing
the boards
o Rule prohibiting consumption of alcohol in public
 Everyone in the state is subject to this rule
(including foreigners)
 If this rule has a discriminatory application (ie
only to women of colour)
 Your nationality country must respect sovereignty,
however if the rule is discriminatory your state
of nationality can use diplomatic protection
o There are international treaties which
forbid discrimination, see if both countries
are signatories

Charged, convicted, 3 – year jail sentence
 State can claim disproportionate penalty
 Foreign nationals are entitled to an ‘international
standard of treatment’ so in come cases they
receive better treatment than locals, who aren’t
guaranteed international treatment
o So you can claim this penalty for drinking
alcohol is beyond the proportionality
allowed by international law

Jailed without formal charge of trial
o Rule against consensual sexual relations between members
of the same sex
 You country could appeal based on human rights,
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but its their choice

Rule applies in your state but not in your host state
 You could be prosecuted when you get back
 Second Problem – People are standing on two different sides of an
international border, one shoots the other (This is analoguous to
the lotus case)
o Where did the murder take place

It happened when the death occurred (victim’s
location)
o Which state has the most compelling case for assuming
jurisdiction? Why?
Lotus case
Legal Landscape
State sovereignty

 Territorial Integrity
 Jurisdiction
o Right to exercise
o Obligation to exercise
 Right to non-interference
Commity

o Infavour of extraterritorial exercise of jurisdiction
o Against
Difficulties with Lotus

That which is not prohibited is permitted – not quite

Vessels are notionally part of the territory of the state whose flag
they fly – Not any more
France has jurisdiction because the effects were felt on its ‘territory’

– Not quite –vessels are now nationals of a state, not territorty
USA sees the Lotus case as giving rise to something called the ‘Effects

Doctrine’ (only recognized in the US not international)
o USA says if you feel the effects of something it is your
jurisdiction
 Prof seems to think they’re fucking crazy
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 This doctrine only exists in USA
Jurisdcitional Principles
NB: These principles are not equally well accepted; some are highly
controversial
 Territorial
o Subjective or initiatory
o Objective or Terminatory
 Nationality
o Imposing terriorory on one of your nationals
o If they are abroad you are imposing on the territorially
jurisdiction of another nation (unless you wait for the
person to return to your country)

Commity comes into play (being respectful and polite
to other nations;)
 Passive Personality
o Nationality of Victim
o Related to so-called-effects-doctrine
o Controversial
 Protective
o Treaon, espionage, counterfitting…
o Somewhat controversial if interpreted expansively
 Universal
Situating the crime (different theories)
 Gist or gravamen
o Murder
o Fraud
 Completion or termination of the crime (where it ended)
 Real and substantial link (who has the most links to the crime)
 Comity and respect for sovereignty (commity usually means hands
off, a country can take care of its own jurisdiction.)
o Las Palmas
 Other considerations?
Pearl and Shiek (US journalist killed in Pakistan)
 How can this US make this it’s jurisdiction
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o Passive personality principle
o Effects doctrine, powerful (but illegitimate in international
view)
o If it’s terrorism try to apply universal jurisdiction
 Pakistan
o Nationality of accused
o Territoriality (crime occurred in Pakistan)
Klassen
 Prohibited acts
o Heinous acts, child abuse / pornography, causes Canada to
assert jurisdiction
 International convention
o Canada has signed international conventions protecting the
rights of children
 Extraterritorial jurisdiction in the Convention – principles
invoked?
o All involved jurisdictions prohibited the acts
o Heinous nature of the crimes
o Territorial, nationality, passive protective, universal
 International comity – Adherence to convention
o Sovereignty? – always consider sovereignty

Comity means being polite and respectful to other
nations.
 Types of jurisdiction – Prescriptive, adjudicatory, enforcement
 Nationality and the international comity
o There is not just a moral convention against child abuse but
an international convention
 Universal principle
o What grounds were invoked for the exercise of jurisdiction

Universal principle concerns nature of the act and
state of the consent: examples of universal principles:
piracy; war crimes; crimes against humanity; torture;
genocide

242
Judges in Klassen invoke the universal principle…why
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us this wrong?

They insinuated that the crimes in Klassen are
analogous with the list of universal principle crimes
UNIVERAL PRINCIPLE (in general)
 Jus cogens – norms that can’t be contracted out of (obligations to
which the universal principal is attached; violation is
exceptionally serious)
 Erga Omnes – manner in which the obligation is owed [toward all
states in international society; so every state can complain of a
violation]
 Consider these with Pinoche case in mind (he happened to be in
England, when spain called for his extradition for torture)
 Date of adoption of Convention
 Customary law and common law [In Pinoche torture is a violation
of customary law principles, and thus a violation of UK law]
 State consent [why have a Pinochet trial in the UK, why not just
extradite him to Spain? – due process, he needs a trial before his
extradition; also Chile wanted to move past what happened not
have a long trial]
 Nullum crimen sine lege (There is not crime without a rule of law
stating there is a crime, do did Pinoche commit a crime with
regards to universal principles? Look at dates that UN conventions
on torture came into force - 1987)
DRC foreign minister case
 Acussed of war crimes (specifically inciting hatred)
 War crimes accusations in Africa are problematic because of:
o War crimes
o Also he’s not a very effective foreign minister if he can't
travel, this creates a state sovereignty issue since he may not
be able to carry out with the foreign affairs of the state

He’s alleged to have incited hatred, if no trial has
occurred, there is only a warrant, he is still
considered innocent, so he is being punished before
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being found guilty
o Double standard: there are war crimes candidates in the
West but they will never be prosecuted.
Notteböhm Case Liechtenstein v Guatemala (1955) (p. 226)
F
I
D
An application was filed by liechtenstein against guatemala, claiming damages in respect of various war
measures that guatemala had taken against the person and property of friedrich notteböhm, who was
born a german national but who was alleged to have become a citizen of liechtenstein. Guatemala
objected that liechtenstein’s claim was inadmissible.
What nationality is Notteböhm?
the court must consider whether such an act of granting nationality by liechtenstein directly entails an
obligation on the part of guatemala to recognize its effect, namely, liechtenstein’s right to exercise its
protection. in other words, it must be determined whether that unilateral act by liechtenstein is one
which can be relied upon against guatemala in regard to the exercise of protection
R
Note: See International Law Commission, Draft Articles on Diplomatic Protection for ILC response to these
cases. Note: this case is NOT a good analogy for determining nationality of a corporation
See: Recognition of nationality, right of diplomatic protection
Flegenheimer Claim Italian – United States Conciliation Commission
(1958) (p. 230)
F
flegenheimer had lost his united states nationality in 1894 when
he acquired german nationality. in 1940, under german law, he
lost his german nationality and was rendered stateless. The united
states espoused his claim before the commission for property damage
in the second World War. The commission dismissed his claim but
still addressed the italian argument that even assuming that he
had retained his united states nationality, it lacked the genuine
connection required by Notteböhm
I
D
R
Note: see International Law Commission, Draft Articles on Diplomatic Protection for the ILC response
to these cases.
See: Recognition of nationality, right of diplomatic protection
Canevaro Case (Italy v Peru) (1912)
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F
I
D where Italy was unable to bring a claim against Peru on behalf of
a dual Peruvian-Italian concerning debts allegedly owed to him by
the government of Peru—Peru essentially chose to treat Canevaro as
its national, despite his Italian nationality, and thereby disentitled
Italy to any claim on his account
R
See: Recognition of nationality, right of diplomatic protection
Zahra Kazemi Case
F
I
D More recently, Iran has consistently frustrated Canada’s attempts to
exercise diplomatic protection in the case of Iranian-Canadian
journalist Zahra Kazemi, who was killed in an Iranian prison in
2003.
R
See: Recognition of nationality, right of diplomatic protection
Stoeck v Public Trustee (1921) (p. 235)
F
I
D
R
See: Recognition of nationality, statelessness
Barcelona Traction, Light and Power Co Case Belgium v Spain (1970)
(p. 237)
F
The barcelona traction company had been formed under canadian
law. its business involved the exploitation of hydroelectric facilities
in spain, where it had many operating subsidiaries. When the
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company was declared bankrupt in spain, a very high percentage of
its shares had been beneficially owned for more than 25 years by
two large belgian corporations. belgium claimed compensation from
spain on account of the manner in which the spanish authorities
had permitted the bankruptcy of the company and the disposal of
its assets. spain raised several preliminary objections, in one of
which it asserted that since the alleged injury was to the company,
not the shareholders, belgium had no standing to bring the claim.
I
(1) Has a right of belgium been violated on account of its nationals’
having suffered infringement of their rights as shareholders in a
company not of belgian nationality? (2) Whether it is legitimate to
identify an attack on company rights, resulting in damage to
shareholders, with the violation of their direct rights?
D an essential distinction should be drawn between the obligations of
a state towards the international community as a whole, and those
arising vis-à-vis another state in the field of diplomatic protection.
The court would here observe that, within the limits prescribed by
international law, a state may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its
own right that the state is asserting. should the natural or legal
persons on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in international
law. all they can do is to resort to municipal law, if means are
available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the state an
obligation to protect its citizens abroad, and may also confer upon
the national a right to demand the performance of that obligation,
and clothe the right with corresponding sanctions. However, all
these questions remain within the province of municipal law and
do not affect the position internationally.
The general rule of international law authorizes the national state
of the company alone to make a claim.
Thus, in the present state of the law, the protection of shareholders
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requires that recourse be had to treaty stipulations or special
agreements directly concluded between the private investor and the
state in which the investment is placed. states ever more frequently
provide for such protection, in both bilateral and multilateral
relations, either by means of special instruments or within the
framework of wider economic arrangements. … no such instrument
is in force between the parties to the present case. …
for the above reasons, the court is not of the opinion that, in the
particular circumstances of the present case, jus standi is conferred
in the belgian government by considerations of equity.
R
See: Recognition of nationality, corporate nationality
Elettronica Sicula SpA (ELSI Case) United States v Italy (1989) (p. 245)
F
I
D
R
See: Recognition of nationality, corporate nationality; treaties
protecting FDI
United States v Marino-Garcia ()
F
I
D Vessels without nationality are international pariahs. They have no
internationally recognized right to navigate freely on the high seas.
… Moreover, flagless vessels are frequently not subject to the laws of
a flag-state. As such, they represent “floating sanctuaries from
authority” and constitute a potential threat to the order and
stability of navigation on the high seas. …
The absence of any right to navigate freely on the high seas coupled
with the potential threat to order on international waterways has
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led various courts to conclude that international law places no
restrictions upon a nation’s right to subject stateless vessels to its
jurisdiction
R
See: Recognition of nationality, stateless ships;
F
I
The Steamship Lotus - France v Turkey (1927) (p. 255)
A collision occurred on the high seas between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus. In Turkey, the officer on
watch of the Lotus (Demons), and the captain of the Turkish ship were charged
with manslaughter. Demons, a French national, was sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the
release of Demons or the transfer of his case to the French Courts. Turkey and
France agreed to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed
by a French national, outside Turkey? [No] If yes, should Turkey pay compensation to France? [No
violation]
D
R
Dis
Strong rejection of the passive personality principle: No one disputes the right of a state to subject its
citizens abroad to the operations of its own penal laws, if it sees fit to do so. But the case is fundamentally
different where a country claims either that its penal laws apply to other countries and to what takes place
wholly within such countries, or, if it does not claim this, that it may punish foreigners for alleged
violations, even in their own country, of laws to which they were not subject.
Notes: This judgment strongly projects a consensual view of international law in the way it venerates the
sovereign independence of a state to act as it wishes unless and until an international rule prohibiting its
conduct can be proved against it. In siding with Turkey’s approach and against France’s contention, the
Court firmly established that a state does not have to demonstrate the existence of an international rule
permitting its choice of action.
See: Limits of international law; Passive personality principle
Libman v The Queen (1985) (p. 261)
F
Libman employed sales personnel in toronto to telemarket to us
residents shares in two companies purportedly engaged in gold
mining in costa rica. The purchasers were induced to buy the
shares by deliberate misrepresentations, and were told to send their
payments to offices operated by libman’s associates in costa rica and
panama, where he collected his share. libman was charged with
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fraud and conspiracy to commit fraud. in defence he argued that
the gist of the offence of fraud is the deprivation of the victims,
which occurred in this case either in the united states, where the
purchase moneys were mailed, or in costa rica or panama, where
they were received. either way, the deprivation was completed
outside of canada and so there was no jurisdiction to prosecute him
in canada.
I
D As noted earlier, the territorial principle in criminal law was
developed by the courts to respond to two practical considerations,
first, that a country has generally little direct concern for the
actions of malefactors abroad, and secondly, that other states may
legitimately take umbrage if a country attempts to regulate matters
taking place wholly or substantially within their territories. for
these reasons the courts adopted a presumption against the
application of laws beyond the realm, a presumption later codified
in this country in s. 5(2) [now 6(2)] of the Criminal Code.
That provision does not say that criminal law is confined to
canadian territory; it says rather that no person “shall be
convicted … for an offence committed outside canada.”
The protection of the public in this country is widely acknowledged
to be a legitimate purpose of criminal law, and one moreover that
another nation could not easily say offended the dictates of comity.
In summary, all that is necessary to make an offence subject to the
jurisdiction of our courts is that a significant portion of the
activities constituting that offence took place in canada. as it is put
by modern academics, it is sufficient that there be a “real and
substantial link” between an offence and this country, a test well
known in public and private international law, this does not
require legislation.
R Upholding of the real and substantial link requirement for
jurisdiction
See: Extended Territorial Jurisdiction
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R v Ouellette
F
the accused was charged with manslaughter after assaulting the
victim while in the Dominican Republic. The victim died from
injuries sustained during the assault after returning home to
Canada.
I
D The court held that there was jurisdiction over the manslaughter
charge, based inter alia on the fact that the victim had died in
Canada and the harmful consequences of the offence occurred in
Canada
R
See:
Pearl and Shiek (US journalist killed in Pakistan)
F
I
D
R
See:
R v. Klassen (2008) (p. 272)
F
I
D
250
klassen, a canadian citizen, was charged with a number of different sexual offences against children.
The charged conduct took place over the course of several years in colombia, cambodia, and the
philippines. section 7(4.1) of the Criminal Code provides that a number of enumerated offences
(including all of those with which klassen was charged) are deemed to have been committed in canada if
the perpetrator is a canadian citizen or permanent resident. The provision was brought into the code to
allow canada to combat the odious practice of “child sex tourism.” klassen challenged the
constitutionality of section 7(4.1) on a number of grounds, including that such extraterritorial
jurisdiction was ultra vires the federal parliament and breached the sovereignty of the foreign states
involved.
(1) Whether, in enacting s. 7(4.1), parliament has encroached on the authority of other states to decide
freely and autonomously in respect of matters occurring within their sovereign territory? [no] (2) Does
the reach of s. 7(4.1) conforms with international law. [yes]
T he principle thrust of the applicant’s argument is, however, deflected by the fact that s. 7(4.1) is not an
enforcement provision implicating enforcement jurisdiction. rather, it is prescriptive and engages
prescriptive and adjudicative jurisdiction. it does not seek to intervene in “the power of each state freely
and autonomously to determine its tasks or organize itself and to exercise within its territory a
monopoly of legitimate physical coercion.” What it does do is seek to control the conduct of canadian
nationals abroad, but only by the use of enforcement measures in canada. as such, s. 7(4.1) does not run
afoul of the principle of sovereign equality or impinge upon the concept or requirements of comity.
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international law recognizes nationality or permanent residence as a foundation for prescriptive or
adjudicative jurisdiction.
Of primary relevance to the present case is the nationality principle which covers conduct abroad by
citizens or residents of a state
it is clear, however, that s. 7(4.1) is not the only legislation enacted in Canada as some 44 countries
currently have comparable legislation. in addition, 129 countries have ratified the relevant treaty and
accepted its implications. in my view, this strongly augurs in favour of a conclusion that this legislation
itself forms a part of customary international law under the universal principle in much the same way as
the Crimes Against Humanity and War Crimes Act does. (thus granting legitimacy to any Canadian
incursion into sovereignty)
T hus, s. 7(4.1) rests on two of the bases recognized as sources of jurisdiction by international law: the
nationality principle and the universal principle. The nationality principle reflects canada’s clear interest
in taking steps to prevent its own nationals or residents from using the advantages of canadian
nationality and residence to perpetuate the economic and/or sexual exploitation of children in other
nations.
in considering s. 7(4.1), i can see nothing in the principle of sovereign equality, the principle of nonintervention, or in the concept of comity as described in Hape, that would justify interpreting the
provision in a way so as to limit its scope to require a real and substantial link between canada and the
offences, alleged as would be necessary in a domestic prosecution resting on the territorial principle
alone.
R
See: Extraterritorial jurisdiction; nationality principle; universal principle
Gulf Oil Corporation v Gulf Canada Ltd et al
F
I
D
For its part, the Supreme Court of Canada in Gulf Oil Corporation v Gulf Canada Ltd et al177 refused to
enforce a US court order for the compulsion of documents held in Canada by Gulf Canada Ltd, because
the order conflicted directly with regulations enacted by the Canadian government to deny exactly such
an order as a matter of state policy and foreign relations
R
See: extraterritorial compulsion of documents
Attorney General of Israel v. Eichmann (1962)
F
I
D
following a detailed examination of the authorities, including the judgment of the permanent court of
international justice in the Lotus case, 7 september 1927, it concluded that there was no rule of
international law which prohibited a state from trying a foreign national for an act committed outside
its borders. T here seems no reason to doubt this conclusion. The limiting factor that prevents the
exercise of extra-territorial criminal jurisdiction from amounting to an unwarranted interference with
the internal affairs of another state is that, for the trial to be fully effective, the accused must be present
in the forum state. significantly, however, the court also held that the scale and international character
of the atrocities of which the accused had been convicted fully justified the application of the doctrine of
universal jurisdiction. it approved the general consensus of jurists that war crimes attracted universal
jurisdiction: …
R Introduced universal jurisdiction powers: any state could prosecute persons accused of crimes against
humanity on a massive scale, on the basis of universal jurisdiction.
See: Universal jurisdiction
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R v Bow Street Magistrate, ex parte Pinochet (No 3) (HL, 2000) (p. 284)
Spain requested the united kingdom to extradite senator Pinochet, the former president of Chile, to
face charges involving hostage taking, torture, and murder of numerous individuals, including Spanish
citizens in Chile and elsewhere while he was head of state. Pinochet claimed immunity from arrest and
prosecution.
F
I
D
The House of lords ruled that Pinochet was not immune from arrest and might be extradited for torture
and conspiracy to torture
crimes prohibited by international law attract universal jurisdiction under customary international law if
two criteria are satisfied. first, they must be contrary to a peremptory norm of international law so as to
infringe a jus cogens. secondly, they must be so serious and on such a scale that they can justly be
regarded as an attack on the international legal order. isolated offences, even if committed by public
officials, would not satisfy these criteria.
R
Note: A majority of the Lords disagreed with Lord Millet that the United Kingdom could exercise universal
jurisdiction over the crime of torture as of 1973. They found instead that Pinochet could only be extradited for
torture that allegedly occurred after 1988, the year that the United Kingdom implemented the Torture
Convention. This resulted in the possible extradition of Pinochet for a smaller number of charges than the
Spanish government had requested.
See: Universal jurisdiction; in absentia
Demjanjuk v Petrovsky (1985)
John Demjanjuk was extradited by the United States to Israel to be prosecuted for crimes against
humanity committed in Poland in the Second World War under the same 1951 statute as Eichmann. The
jurisdictional basis upon which extradition was granted was the universal principle, even though
Demjanjuk was in the custody of the United States. It was based on the nature of the crime being
universally condemned.
F
I
D
R
See: Universal Jurisdiction; in absentia
F
Case Concerning the Arrest Warrant of 11 April 2000 (Yerodia Case) Congo v Belgium (ICJ, 2002) (p. 288)
A belgian court issued an arrest warrant for abdulaye Yerodia ndombasi (who was at the time the
minister of foreign affairs of the congo), charging him with war crimes and crimes against humanity
under a belgian statute that allowed belgian courts to exercise universal jurisdiction over these crimes.
congo instituted proceedings in the icj to have the arrest warrant set aside because: (1) belgium’s
exercise of universal jurisdiction was unlawful; and (2) as an incumbent foreign affairs minister, Yerodia
was immune from belgium’s criminal jurisdiction. since congo chose to argue only the immunity issue in
its final submissions, the court addressed that issue
I
D In a joint separate opinion, three of the judges addressed Universal Jurisdiction.
R
See: Universal jurisdiction; colonialism; in absentia
SOVERIGN IMMUNITY
 Sovereignty implies equality – no one state has the right to exercise its authority over another state
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o Ie Russia in Crimea, and Western responses
o Ysmael evidence back to assertion of government ownership
 Three key exceptions
o Waiver
o Commercial activity
o Terrorism
 Immunity and the welfare state
o Elizabethan England was very different, sovereign was involved with many commercial
activities. Line between public and private very blurred, anything the sovereign became
interested in became a sovereign affair
o Today we are far from this situation, we have a deep entrenchment of public and private
 What is the state?
o Are there principles reasons for finding that the Central Bank of Nigeria is not an organ of
the government ant the New Brunswick Development Corporation is?
o Do the factors considered in the two judgments appear substantially different?
[Optional] Assignment (Due 24th of October)
 Assume the Declaration on Friendly Relations is binding law. Don’t bother to get into intricacies of the
force of declarations
 Contrast the rights of self-determination with the rights of sovereign states.
 Groups to consider: state, persons of a state (nationals), other states looking in who make judgements.
 Question is about legal rights and obligations. And what they ARE (not what they could or should be).
Don't only discuss morality.
o Use material discussing what the state it, what sovereignty is, etc. Don’t summarize the
readings.
o
SOVERIEGN IMMUNITY – Commercial Activity
 Terminology
o Absolute and restrictive immunity
 Due to changing implication of states in commercial activitiy (where state acts as a
normal market participant, and not a state), and the rise of the welfare state.
o Jure imperii (state is acting like a state) and jure gestionis (state is acting like a commercial
actor)
 We can distinguish by looking at purpose of transaction, nature of transaction
o Purpose of transaction and nature of transaction
o Public and Private
SOVEREIGN IMMUNITY- INJURY
 Terminology – Jus cogens (a norm states cannot contract out of; particularly important norms, ie
torture; war crimes; crimes against humanity)
 Possible justifications for the rule: there are times agents of the state (police/military) commit torture
o However state agents who commit torture can claim immunity
o The exception: Terrorism
 Why is torture not an appropriate exception, but terrorism is
 Because 9/11 changed everything, the US began exercising its jurisdiction
inappropriately under claims of fighting terrorism. This the exceptions has
been removed in many ways
o Immunity for Jus Cogens violations
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
Two scenarios:
 Exceptions to state immunity are commercial activity (jure gestionis) and
waiver only
 Third exception: terrorism
ACTORS – INTERGOVERNMENTAL
 The United Nations (and governmental analogies)
o General Assembly (is like a parliament)
 Analogy is false because: General Assembly resolutions are NOT binding; the
general assembly is not elected (and has many undemocratic members, who may
not be justified in representing their state); and is only narrowly representative
(since each state has one vote, regardless of size)
 Some states are not members
o Security council (is like an executive, or cabinet)
 Security council members have a veto (so it would be a poorly constructed
executive, since it cannot exercise power well)
 General info / authority
 Executive authority: arts 24-25 &103
 Namibia Case
o Acted like both the executive and the judicial authority
o Caused South Africa to argue the security council isn’t a court
o Enforcement action
 Namibia and Reparations
 Non recognition (security council asked member states
not to recognize south African sovereignty in Namibia in
their dealings)
 Opposable (to non-UN member states as well) erga omnes
 Actors in international are to follow their
declarations. While these declarations cannot be
imposed on the third party state (non-member)
the third party state must still acknowledge the
declarations binding the other state, and not
force them to break these obligations
 International Legal personality (Reparations case)
 State are not ‘granted’ authority, just as persons
are not ‘granted’ human rights? We have them
because we were born and are humans
o This is not the same with international
organizations, they must be granted
rights and authorities by other states,
such as the UN.
o International organizations cannot make
law (in the sense of binding states)
 Reparations, the statue of individuals, the injured
party
 Opposability (Objective personality)
o International Court of Justice (is like a supreme court)
 ICJ doesn’t automatically have jurisdiction (states must agree to come, cannot be
subpoenaed and brought against it’s will)
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ACTORS: Not the state
Non-governmental Organizations
 Cannot make public international law
 More resemble a club
o If you want to be in a club you must follow their laws… however, there isn’t much
enforcement other than being kicked out
Transnational Corporations
 Rights (stem from the contract)
o International standards of treatment
 Often not just state laws apply, but international laws operational in transnational
space apply. So many of these are governed by international law
o Access to international adjudication
 Responsibilities
o UN code of conduct
o UN global impact
 Set of principles that are not legally binding
o Nuremburg
 It was never definitively answered if corporations could have responsibilities under
international criminal law (for example a corporation using slave labour)
o Alien Tort Statute
 A US statue to allow them to sue (on US soil) a transnational corporation with some
ties to the US for human rights abuse. Used to sue corporations breaching
international law. Usually the execs sued are not American
INDIVIDUALS AND LEGAL PERSONALITY
 Traditional view - no international legal personality
 International standard of treatment – foreigners can expect and international standard of
treatment today, which may be higher than the local standard
 Minorities post WWI
 Human Rights post WWII
 Obligations
o International law
Human Rights Law
 Legal status of UDHR – is not in itself a binding source (though most provisions are considered binding
as customary law)
o Declaration means a document is not binding in and of itself (unlike treaties)
 The UDHR was followed by conventions (which mean states bind themselves to
obligations and grant rights)
o There were abstentions, but no votes against
o TO whom are the obligations owed?
 Toonen
 Owed to individuals inside the state.
o Who has standing to take legal action?
 Human Rights bodies: commissions; courts (individuals can be granted standing,
countries are questionable since if its an internal state matter, how can another state
claim injury)
o What is the nature of the obligation?
 Social and Economic Rights Action Centre v. Nigeria
 Valasquez (the state can violate human rights by doing nothing, by standing around
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and letting atrocities occur)
Toonen
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Social and Economic Rights Action Centre v. Nigeria
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Valasquez
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INDIVIDUALS AND HUMAN RIGHTS
Human rights – Our purposes
 International legal personality of individuals
 Architecture, structure of international law
Implementation and Enforcement
 Individuals as plaintiffs, state of nationality as defendant
o Individuals can’t go before the ICJ, only states
o However, different commissions / tribunals were created to allow individuals to assert their
rights
o Courts that exist to protect human rights, are regional courts
 Not as of right – in virtue of a treaty
 Self-determination
o Actors: Peoples
o Recognition in international law
 Western Sahara (recognized, the people in the territory held a right to self
determination) over ruled Island of Palmas
 Island of Palmas (not recognized, population can be subjected to colonizer sovereignty,
however, colonization nations cannot violently oppose other colonizers)
 Recognition is born from the end of colonialism
 Self-determination is very new
o Erga Omnes
 Hard for a state to bring a human rights violation, since it is the individual who suffers,
not a third party state (unless the victim holds dual citizenship of both nations)
 Thus there is no ‘potential defendant’ under international law
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
The analogous situation in domestic law would be a environmental damage in
a national park – who is injured? Who has standing?
 Thus Erga Omnes means any state should be able to complain about violations of this
right. Put another way, any state has standing to complain about the violation
 This is also present in self determination, where the right holder would be the
group.
o Right-holding entity
 In self-determination the group is a right holder.
Peoples and Remedial Secession
 Ie. Armenian subjugation by France, where a long violent war ensued
 Colonialism is illegal – cannot subjugate people through colonial means
o But are there still people’s who have a right to self-determination, and are still being
subjugated in post-colonial times
 We can look at violations of human rights and self determination (remedial
secession):
 ie: US ethnic cleansing of Native Americans ‘the trail of tears’; US and
South African apartheid;
o self determination doesn’t always refer to succession, and a new
state, but it can be remedial secession (seeking more participation
in the country, such as occurred in apartheid regimes)
 What about people who seek self-determination and aren’t mistreated (ie. QB,
Scotland)
 This is not remedial secession.
 Usually this is done via referendum and negotiations with the sovereign
state
 What about ‘queer nation’ (this can be analogulous to apartheid, since this
‘nation’ doesn’t want to secede but be recognized as having rights)
o How is queer nation like a nation (not a nation-state): they have a
flag; a culture or subculture; unique community; shared
history/collective experience of oppression; definable criteria of
citizenship (who is and is not a member)
o And how is queer nation unlike a nation: not located in one
territory (however we do have predominant spaces in most major
cities); no common language or ethnicity
 Yugoslavs – tells us nation is something we attribute to ourselves, or can be attributed to us
o When Yugoslavia broke up, many people identified as a Yugoslav, thus they lost both their
nation and identity
 Roma – what makes the Roma a nation is the fact they have no ‘space of their own’ on Earth (so
does it matter LGBTQ community doesn’t have a ‘territory’ in the traditional sense)
 Nation as a term suggests some form of self government
o What does it mean to be a people?
 Do you have a right to remedial succession
 Consider QB referendum, and the Kosovo unilateral declaration of independence
 Quebec – It was an advisor opinion from the SCC and ICJ, on whether or
not QB has a right to secede unilaterally.
o The answer was no….but (duty to negotiation on the rest of
Canada)
 Kosovo – No question right, but issued a unilateral declaration of
independence while under the tutelage of a UN mediation (Kosvo wanted
independence, Serbia did not want to let Kosovo go)
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o


Majority in the ICJ said there was no declaration in Internatiol law
that lead them to believe this was illegal,
 However, this was criticized for asking the wrong
questions. Court should have considered is it legal, not ‘is
it not illegal’
 Court seems to have occupied the large grey area
of the law
Self-determination beyond the colonial context: The declaration on friendly relations
o Rights of people
o Rights of state claiming sovereignty
o Rights of …
Declaration of Friendly Relations – a compromise document, seems to be upholding state
sovereignty and an obligation to assist at the same time.
o this is political
o but its hard to do any better, since we don’t have a large governing entity (an international
high court with authority)
 this can be contrasted with Canada, a vertical society, headed by the Supreme
Court
 All we can do is try and make better legal arguments than everyone else
CREATION OF INTERNATIONAL LAW - TREATIES
 Custom came before treaties
o And the treaties generally have a grounding in custom
 Rules of recognition
o Function
o Sources
 Custom (International law is made by states, for states, and generally in the interest
of states)
 Treaty
o Comparison to domestic law
 Domestic law has a constitution
 Much of the international law of treaties changed after the Vienna convention
 Introduction to the VCLT (Vienna Convention Law on Treaties)
o Rules of recognition on formation of treaty law
 Impacts on decentralization
o Paradox: A treaty about treaties
o Before the VCLT
o Treaties compared to contract and statute
 Treaties like contracts: binding on the parties; shows agreement between the
parties; privity in both;
 Treaties like a statute: establishes rules, if you breach these rules there are
consequences; the UN charter seems to look like a statute (however it was adopted
like a treaty)
 Essential terminology
 X
 X
 X
 X
Effect of signature
 Vienna Convention Article 18: Frustration of the object and purpose
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
Come up with a scenario in which a violation of art. 18 is fairly clear
o Two scenarios: treaty signed but not yet in force; and difference between signatories to a
convention, and parties to a convention
 When a treaty enters into force it’s binding on the parties
 What happens before the treaty enters into force?
 What are the signatories bound to?
o Prof example: ‘Violation’ and the ‘Frustration of the object and purpose’
 States sign a covenant promising education as a right: ‘free and compulsory to
all’
 One state party to the covenant has a fee-based primary school
system available only to boys, if they pass and entrance exam
o Is this a violation of the covenant? Or is this a violation of art.
18 of the VTLC?
 We need to articulate the object and purpose to know
if art. 18 has been violated
 This is difficult
 It could be the fact pattern for the exam
Reservations in obligations
 Bilateral binding relationships = states agree to a convention are bound to the same obligations
o But we think of it as a group of states bound by a collective obligation
 When this starts to break down, we can think of a series of bilateral
relationships
 This occurs when state’s start to make reservations (states decide to not
accept all facets of the conventions; aka opting out of some conventions)
 This can happen cause all states are soversign, they can do what they
like
 However other parties to the convention are also sovereign, and they
can do what they like, so they may come up with their own response
(and it could be a different response for each state)
o This could involve the reservations introduced by the other
states, or a refusal to allow the initial reservation (objection to
the reservation), or an acceptance of the reservation
 Objecting states can be saying ‘I want this article
included in the convention, its important’ – it's not
possible for the objecting state to enforce the
provision against the reserving state
 this is the same result as if no one objects, the
reserving state is no longer bound by the
provision (and cannot bind others)
 Why object? – to take a public stance.
 Sometimes these responses are written in the
convention itself, with different regimes for different
sections
o Note the differences between violation of the Covenant and Violation of the VCLT
 Good faith obligations
 Participant – a generic term meaning a state who participated in the drafting, who signed or did
not sign, or who signed at a later date
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
States are not always upfront about entering reservations. But other states claim they have
reservations, if they interpret a treaty too narrowly. And other times they directly say they habe
reservations
o These reservations can be viewed state by state on the UN webpage
INTERPRETATION OF TREATIES
 VCLT art. 31(1): A treaty shall be interpreted in good faith accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object and purpose.
o Interpretation: Textual interpretation (ordinary meaning) & considerations of the object and
purpose
 Art. 32: Recourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting
from the application of Article 31, or to determine the meaning when the interpretation according to
Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly
absurd or unreasonable.
o Interpretation: this article is conditional, where there are ambiguities after application of art.
31(1)
o Keep in mind international law can seem incoherent since it is horizontal, and different, equal
courts, may interpret the same rules in different ways
 Constitutional mindset: Article 31(3) VCLT
o Art. 31 3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or
the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
(c) any relevant rule of international law applicable in the relations between the
parties.
 Material breaches are necessary to terminate a treaty (art ?)
 Interpretation of Peace Treaties Case
o Consider what would happen with different approaches to interpretation?
 A purposive or teleological approach (object and purpose)?
 A textual approach (ordinary meaning)?
AMENDMENTS TO TREATIES
 Remember states must consent to new rules in international law, before they apply to them
(dependence of state consent)
o Art. 54-59 VCLT are examples of these state consent
 Modifications are ideal when all states agree to modify a treaty, however this is rare; usually states don’t
agree, so treaties can generally be modified without consensus (usually 2/3 approval is required)
o States who don’t agree to the modification, can then formally object to it (otherwise it applies
to them)
JUS COGENS TREATIES
 Art. 1413 CCQ: A contract whose object is prohibited by law or contrary to public order is null
 Art. 53 VCLT: [A] peremptory norm of general international law is a norm accepted and recognized by
the international community of states as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the same
character
o This is not exhaustive of Jus Cojens norms, but tells us how to deal with Jus Cogens norms in
other treaties (such as torture)
o Note: public order is in the CCQ but not the VCLT. The VCLT is much more procedural
12 Creation of IL – Treaty and Custom
 NOTE: VTLC AND TREATIES WILL BE ON THE EXAM!
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Interpretation of Peace Treaties
 What is the object or purpose of the treaties?
o Cooperation and peace
 What outcome does one arrive at applying a purposive or teleological approach?
 What outcome applying a textual approach (ordinary meaning)?
Termination as a consequence of breach
 Material breach of a treaty, and breach of a treaty are different
 Who has standing to terminate a treaty over a breach?
 Art. 60 of the VCLT
o This doesn’t automatically terminate the treaty after a material breach, but gives a party a
right to seek termination
 In class exercise: impossibility of performance.
Fundamental change of circumstances (Rebus sic stantibus)
 Is Congreso del Partido an example of this? (Case where Chile’s socialist gov. fell and Cuba refused
to supply sugar)
o Specificially, can Cuba invoke Rebus sic stantibus as a justification
o What if we shift to a contract for Venezuela to supply oil to Cuba, and Cuba underwent a
regime change
o What about a military alliance, between 2 socialist regimes? When one changes to a rightwing military dictatorship over night
 These example represent a continuum, going from less to more political
CUSTOM
 Doesn’t have ‘rules’ like treaties. We have to identify a rule, and make and argument that it exists
 Statute of the ICJ art. 38(1)
o Accepts custom as a source of law in the form of:
 International practice (state practice)
 Accepted as law (opinion juris)
 Very difficult to identify
 Cobertt’s Analogy
o How is a path across a field like and unlike customary law?
 Which aspect of customary law does the path analogy best represent?
 Maybe a number of different paths across the field
 Nothing noteworthy about a particular path
 But they emerge as more and more people cross the field
o People who cross more often will have a greater influence on the
emergence of a path
o Also those who tread heavier
 This is analogous to establishment of custom
o This is especially convincing as international practice (can use the
path) but less convincing as opinion juris (you are not forced onto
that one path, but can walk anywhere you choose)
 Many human rights are recognized as customary law
 An other way to make the ‘law not law distinction’ is looking at the reaction to the breach of a ‘rule’
o Is it: indifference, anger, outrage, apathy, surprise, formal sanctions
 These reactions tell us the expectations
 Is the rule flexible?
CUSTOM AND OTHER SOURCES
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




North Sea Continental Shelf Cases (Follow underlined steps on an exam)
o Is the equidistance rule customary? (1- How is the rule at issue established? Is it international
law?)
o What events or phenomena does the court (and the individual judges whose judgements
are excerpted) refer to in answering that question? (2 - What evidence is used?)
o What is the role of the 1958 convention? (3 – How was custom/law developed, what
conventions or treaties are relevant)
o What does the court say about the potential role of conventions in general in development
of customary law? (4 – What role do relevant conventions play? Which rule are you referring to
if there is more than one)
o What evidence does the court present to support the existence of the equidistance / special
circumstances rule that applies? (5 – How is evidence contested? What is the timeline for
emersion of the rule?)
Conventions don’t always codify customary law, sometimes it is more extreme because the
signatories are trying to push the law further
o If such a convention exists customary law is not irrelevant
o And customary law may continue to develop on its own
o Customary law building blocks: (1) state practice, (2) what states do (3) what states think
about what states do
o Custom and convention law develop separately but interact with one another
Baxter Paradox – The fact that states honour obligations because they are signatories to treaties
does not indicate that they consider the rule part of customary international law. (easiest to
understand when considered with examples). From North Sea Continental Shelf Cases
o Where there is a widely ratified treaty (like the Geneva Conventions) which operates in an
area, which practice does one look at in assessing what customary international law in that
area is. Does one look at the practice of the parties to the treaty? The problem with this is
that presumably the practice of the parties is not supported by opinio juris since that
practice follows from the obligations the parties have undertaken under the treaty. Or does
one use only the practice of non-parties? The problem is that only a few states would then
be creating customary international law. So since there are only about 30 states not party to
Add. Protocol I, is it only their practice that counts? This would be bizarre.
o Some have tried to get round this problem by saying that one can use the practice of States
parties to treaties in their relations with non-parties.
Evidence of custom (opinio iuris)
o ‘law creating activities’ – consider the state’s activities, possible examples: signing
multilateral conventions, arresting ‘trespassing’ fishing vessels, ratifying a convention with
other states creating a free trade zone, deportation of a criminally charged person to
another state to stand trial, passing laws.
o ‘reactions to behavior’ – assertion a legal wrong has been committed, deman behavior be
stopped, that reparations be made, and apologies be given, formal sanctions (these are
both actions, and a showcase of how states are thinking)
 Remember the above are not proof, they could be points of evidence
Regional custom is possible, but is hard to prove.
GENERAL PRINCIPLES OF LAW
 Statute of the ICJ Art. 38 (1)(c): [The court will use, in addition to custom and convention] The general
principles of law recognized by civilized nations
 2 possible definitions (however these have not been accepted)
o 1- institutions required by all legal systems - Functional approach
o 2 - principles derived through reason – Natural law approach
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o However these laws have not gained traction
Generally Accepted Definition: borrowing or transplanting – Comparative law approach
Identifiying general principles
o The ICJ tends to avoid relying on general principles. Rather they prefer to use them as additional
support for a conclusion reached using other sources
 Thus this discussion relies on how general principles could be used
o Apparent Lacunae in interntional law
o South West Africa case: Essence of the institution
o Equity as a general principle
o State consent: Reliance on and effacement of the rule’s origins
Legal Status of General Assembly (GA) Resolutions
o Powers of the GA
o Voting as state practice
o Voting as evidence of opinion iuris
 States are voting for a proposition: ‘it ought to be the case that…’
o What are states trying to communicate through proposing and voting on GA resolutions? What
intentions or objectives could be attributed to them? How do we know?



FINAL EXAM
o 48 hour final
o prepare throughout the term
o there is a text online with guidelines
Another look at jus cogens
o Natural law approach: fundamental principles derived through reason
o Prof thinks this is tricky – international society is diverse and pluralistic
o Natural law gives us too many jus cogens norms, that don’t exist
o Procedural approach: principles identified as fundamental and made non derogable
o This is prof’s favourite
o Does not expand jus cogens beyond its relatively small category.
o Has the requirement of state consent, limiting jus cogens norms. (there are only some
supreme things state’s shouldn’t be allowed to contract out of.)
o Jus cogens as constitutional law
o Also gives us too many jus cogens norms
o Thinking of US cogens norms as ‘a bill of rights.’ Prof thinks this is a false analogy,
constitutions are about organization of political authority, bills of rights are usually
contained in these.
o Policy approach: principles deemed necessary to pursue fundamental objectives
Jus cogens norms are international scholars trying to make sense of international law by making a
hierarchy of rules.
OTHER SOURCES: Unilateral Legal Obligations
o Normally states can’t bind themselves unilaterally
o However in international law they can.
o Legally binding but effectively unenforceable
o Ex. UN Framework on Climate Change art. 1
o ‘Soft-law’ [prof things legally binding things that are vague are NOT soft law]) – is non legally
binding rules (lots of debate about what fits in this category)
o its still important, can’t just ignore it
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o
o
o
what is soft about it: extracting meaning from legally binding texts that are vague,
general horatory (ex. Many meanings of the UN Charter articles)
Non-legally binding but enforceable
o Ex. Basel III: The liquidity..
o Ex, Bis – Codex Alimentarius, General Principles for food Additives
Exercises: (in class, but more are also available online)
Nuclear Test cases (not in text)
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Court finds France had bound itself to no longer hold nuclear tests.
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See: Unilateral Legal Obligations
Implementation of international law
o Deboulemment fonctionnel
o Ambition of international agenda
o Domain reserve
o Rules of reception
o Rules that govern how international law is drawn down into Canadian law and seen to be
binding
MONISM AND DUALISM
o Monism
o The municipal (domestic) and the international are one system
o International law has direct effect domestically
o International law is automatically adopted or incorporated into municipal law
o Dualism
o Municipal and international law are two separate systems
o International law has no direct effect domestically
o International law must be transformed into municipal law, normally through legislation
o Is Canada monist or dualist?
o It depends. . . with custom usually monist, with treaty law dualist
o Why treat custom and treaty differently
 Doesn’t apply for new government refusing to apply past governments treaty
obligation
 In international law when you ratify you’re bound
 Executive has treaty making authority, not the house of commons (put it it the
house is just tradition not law, doesn’t have to be put to a vote.)
 Thus if treaties are passed by the executive, and automatically enter into
Canadian domestic law, they can enter into force, as law with out entering
the legislature
o Presumption of compliance with custom
o Context: legislation that addresses a matter covered by customary international law
o Background principles: Parliamentary sovereignty; self-governance; pluralism
o Practical consideration I: Legislator may not have turned its mind to customary rules (transl.
legislator may have no idea what the customary rules are)
o Why presume compliance with custom? Again – treat custom and treaty differently for this
purpose.
o Source of law v. part of the law
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o
o
o
o
o
‘Source of law’ (pp. 153-4) in the sense of raw material, data, bbody of rules to which a court
may turn
‘Part’ of the law (Trendtex): customary law flows automatically into the stream of common
law; the courts must apply it (absent legislation expressly to the contrary)
Jus Cogens
o What is the source of the rule of recognition through which jus cogens norms come into
existence
 The source of Jus Cogens norms is custom
o What is the status of customary law in Canada?
 It is law.
Suresh: Critical Analysis
o Think about reception in Canadian law as it relates to:
 Prohibition on torture: sources, status in international law
 Prohibition on torture as jus cogens: status in Canadian law
 Prohibition on deportation to torture: status in international law
 Conflict in international law between prohibition on deportation to torture and
right to return a refugee who is a risk to security
 Prohibition on deportation to torture in Canadian law
o How did the SCC answer these questions? Are they right?
International perspective
o Law-making entities must possess international legal personality
o Montevideo Convention: capacity to enter into foreign relations with other states
 There is a complicated aspect of QB right to enter into treaty, or other provinces for
that matter (this won’t be on exam)
 There is no Canadian legal text that says it is the federal government only
who makes treaties (rather this has evolved over time and been accepted
domestically)
Implications on dualism
 Starting point
o A treaty to which Canada is a party has entered into force is not law in Canada. It must be
transformed into Canadian law by the legislature
o This is an oversimplification would be treaty for which statute has not been adopted is still
not law in Canada, rather the statute is law (not the treaty)
 Presumption of consistency
o Charter
o Statutes implemented subsequent to entry into force of convention
o Statutes implemented prior to entry into force
o Statutes that do not appear to be implementing legislation
 Interpretation
o When is a court to turn to the international convention?
 1. When the ordinary meaning of the statute is unclear
 2. As soon as the interpretive process begins
o What sources of international law is the Court referring to?
 1. The treaty text itself
 2. Preparatory work
 3. Subsequent practice regarding treaty interpretation
 4. Subsequent agreement relating to the treaty
 Implemented and Unimplemented treaties
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o




Unimplemented treaty: ratified in force but not drawn down into Canadian law through
implementing legislation
 1. According to a strict dualist interpretation would judges be obligated to apply the
treaty
 2. In Canada, must judges turn to the treaty to interpret Canadian legislation?
Baker – Status of international law
o Reference to foreign law
o Values and principles of the convention
o Canada’s ratification of the Convention
o Another route – Legitimate expectation
Baker – Impact on legal rules
o Adminsitrative decisions and judicial review
o Reasonable nature of Minister’s decision
o Teoh and administrative decisions
Suresh relevant provisions – summary
o Torture Convention, Article 4: Prohibition on torture
o ICCPR, Article 7: Prohibition on deportation to torture
o Refugee Convention, art. 33: right to deport a refugee who is a danger to security
o Immigration Act: Non-refoulement is case of risk of torture; does not apply in case of
inadmissibility ‘on grounds of security… if, in the opinion of the Minister, the person should
not be allowed to remain in Canada on the basis of the nature and severity of acts
committed or of danger to the security of Canada
Indian Treaties
o Status in international law
 What are the relevant features of the treaty that can help us to make this
determination?
 Parties
 Bilateral, location of adoption
 Peace treaty
 Self-determination
 Facilitates trade between parties
o Treaty no. 7 (1877) – the last of the numbered treaties
 Treaty between a sovereign (the Queen) and another entity
o Relevant principles of interpretation
 Principles of inter-temporal interpretation
 How can we describe the object and purpose of these treaties in light of
contemporary developments in international law
RESPONSIBILITY OF STATES
 Status of draft articles
o Drafted by pre-eminent international legal scholars
o Adopted by UNGA
o Circulated and commented upon by state representatives
o Subsequently relied on by states, courts and tribunals
o What sources of international law are referred to above?
 Art. 38 ICJ statute tells us what sources of international law are
 customary
 court opinions
 publicists chosen to draft articles (not binding, but can be referred to)
Wrongfulness
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

Internationally wrongful act
Requirements
o Breach
o Attribution
 Consequences
o Xx
o Xx
 ILC Draft articles – Responsibility 2001
Article 1 – Responsibility of a State for its internationally wrongful acts. Every internationally wrongful
act of a State entails the international responsibility of the State
Article 2 – Elements of an internationally wrongful act of a State. There is an internationally wrongful
act of a State when conduct consisting of an action or omission:
(a) is attributable to the state under international law
(b) Constitutes a breach of an international obligation of the State
 Note: when an individual does something – in a fact pattern- you must consider
how the individual relates to their state
o (i) Are they acting in the name of their state (ie head of state, ministers,
army, police)
o (ii) Are they not acting in the name of the state, but the state should have
intereferred to prevent that harm that the individual ended up causing
 Corfu Channel
 State can be held responsible even for fault of their nationals or corporations if they did not take
care (?)
 X
 X
 X
Sovereign over territory
 Island of Palmas: responsibility to protect the interests of other sovereign states
 Illustrations of this priniciple
o Corfu Chanel: Failure to warn
o Teheran Hostages: Failure to protect
o Trail Smelter: Failure to regulate pollution source
o Taliban in Afghanistan: Failure to take action against Al-Qaeda
 This is not a case, but they US legal justification for invading Afghanistan
 What does the state take responsibility for?
o In each case the state was not directly responsible (the underlying wrongful act), rather there
was a supervening wrongful act, where the state did not act to prevent damage
 Strict liability is not a general provision in international law
o Something close to strict liability only exists in space law
 Ex. Cosmos: Conventional Basis
 ILC’s Draft Articles on Transboundary Harm: Strict Liability for transboundary harm was
not included
Imputability (when can it be said a state has acted)
 Organs of state (art. 4)
o Ex. Soldiers
o These are more extensive in welfare states, since the state could be seen as acting in more areas
 Entities exercising governmental authority by law (art. 5)
o Ex. State owned corporation (‘authority by law’ = a piece of domestic legislation suggesting that
entity is legally entitled to exercise government authority)
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
Excess of authority (art. 7)
o Ex. A soldier taking hostages (without authorizations by superiors); aka acting under colour of
law
 Entities under direction and control of the state (art. 8)
o Ex. A state in control of an insurgent army or band of militia which are directed across the
border to commit violations of international law. Some say this describes the situation in
Ukraine (although this could also be “organs of the state” art. 1). Key example is Nicaragua
 Absence of authority (art. 9)
o Ex. A failed state, like Somalia, where another actor will step in a region in place of a state
authority
o Ex. Arresting people stealing or looting, or preventing people from leaving or coming into the
country
 Insurrectional movement (art. 10)
o Ex. More of a timeline from art. 9. Where government is in control, then insurgents are in
control, then government it in control again, or it could be that the insurgents for the
government
o When can each group be held responsible
 Conduct subsequently acknowledged and adopted (art. 11)
o Ex. Tehran hostages case (involves both article 8 and article 11)
o Art. 11 is concerned with after the hostages had been taken. The Iranian government
acknowledged the hostages were taken, then took over and actively supported the students
(whereas before they may have not been involved with the students)
 2 moments: Court did say the government did not go far enough to direct the hostage
taking, rather is should have prevented the attacks, but did nothing (art. 8 not fulfilled)
 second moment, is taking control over the hostages from the students (art. 11)
o Ex. Private state builds a dam encroaching on foreign territory, then the government takes over
construction regardless of the incursion.
Immutability of Private acts to the state
 Is the basis for responsibility different in the Youmans (Mexican mob) case than in the Corfu Channel case?
o Youmans is an art. 4 case
 Can you see a potential difference between the case of bribes and the case of theft in Yeager?
o Revolutionary guards (this is employment by a state agency)
 A self constituted militia under art. 9 and art. 10
o State airline employee (likely not acting on anyone’s instruction, but on his/her own behalf)
 This is imputable under art. 5 entities exercising government authority
 However crown corporations are not always exercising government authority,
some are set up for purely governmental reasons
Examples cases and Degrees of Control
 Rainbow Warrior: Instructions from Directorate-General of External Security to destroy the vessel
o What provision would be applicable here? – French government ordered the fog men (?) to blow
up the rainbow warrior, thus art. 8
o What about in Jaffe? –
o The facts which point to responsibility here are that the bombers where French citizens in
employment of the government
 Change of facts to remove liability: France could have trained non-citizens with a dislike
of green peace to carry out the attack
 Nicaragua:
o US financing, organizing, training, supplying, equipping Contras; selection of targets; planning
of the operation
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
o
US government in violation of an arms embargo, sold weapons to Iran, it then used the
income form those weapons to fund the Contras. US refused to appear before the ICJ
when the case came to light
 Court used customary law. Did not find this to be a close enough relationship to be an
art. 8 relationship (wow!)
No US responsibility was found (none of the supervision from Tadic) also contras and trainers
were not direct agents of the state (USA)
 Change of facts to encourage liability: more direct supervision from USA

Tadic:
o Serbian government overall control; financing, equipping; participation in planning and
supervision of military operations
 It is suggested the supervision sets this case apart from Nicaragua, even though they
seem very very similar
o Liability found because of ‘overall control and supervision’
 Change of facts to remove liability would be removing the overall control and
supervision, so this is more analogous to Nicaragua
 Teheran Hostages:
o Exhortation to students to ‘expand with all their might their attacks against the United States’
o Liability not found b/c Iranian gov. just told people to attack the US (not the embassy)
 Facts changed to find state responsibility: If a group government agents stormed the
embassy (not just students)
Insurgents
 De Facto loss of control over territory
o Applying Las Palmas and Corfu Channel, what would appear to be the appropriate conclusion
 Tells us the normal situation: states should exercise their authority over their territory,
if they can’t exercise that responsibility they don't have it
 Asian Agricultural Products
o Arbitral panel: What could the government in fact have done in these precise circumstances to
prevent the loss? – Highly fact-driven, context analysis
 Context is the clash and counter-attack between Sri Lankan government and tamil
tigers
 Argument is Sri-Lankan gov could have prevented the farm from being overrun by the
tamil tigers
 Article 9
How to know if a state will be responsible:
o Question one: is the involved party and agent of the government
o Reasonable care taken by state (if it is an on-going situation; suddenness, preparedness)
o Circumstances under which act took place
o Instructions from concerned state
o Response of concerned state
o Investigations, arrests, adoptions of concerned acts
o Even if state is not responsible for initial act, they could be liable for subsequent response
and actions
o Were insurgents involved who later became the government?
o **This will be on the exam!!**
Insurgents group work:
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Existing
Government
o
Mob
Insurgency group
Newly created
government
o
o
Are the mobs actions attributable to the government
o This is a scale
 Where the mob just sprung up and the government has no opportunity to act, they
shouldn’t be responsible
 However if the mob exists for such a time that the government should have done
something it can be held responsible
When can the mobs actions be attributable to the insurgents or existing government?
When can the existing or newly established government become responsible for the mobs acts
o New government – when it wasn't a spontaneous mob, but acting under the direction and
control of the new government
o Existing government – if the mob arises in an area they control effectively, and due to a lack of
due diligence, they do not act to stop the mob.
Circumstances precluding wrongfulness
 Countermeasures
o Unique to horizontal legal systems
o Ex. Embargos
o Consider article 22
o We don't want people taking the law into their own hands
o But when there is no adjudicating body, states must take things into their own hands
 So counter measures are necessary
 Force majeure and distress
o Art. 23(2)(a)
o An irresistible or unforeseeable force + material impossibility of performance
o Force majeure is worth invoking in many scenarios (even if it doen’t work it worth a try)
 For ex. After a financial crisis, it could help relieve debts. Argentina tried this during
their crisis, however, it didn’t work
o Difference between force majeure necessity, and distress:
 Distress focuses on the life of somebody (lost life); it is a narrow set of circumstances
 Necessity relates to a disaster that has not yet occurred (Force majeure relates to a
disaster that has already occured)
 Force majeure is an involuntary response (there is no choice in the matter),
whereas necessity is a voluntary choice (as is distress), making the best of
things.
Obligations Arising from a Wrongful Act
 Articles 29-37
 Similarities in private law
o This section is patterned on private law
 Calculation of damages
o Need to make distinction between harm to individual versus harm caused to a country (prof
uses example of bernedat case)
 Role of reparations
o Reperations don’t always play a role in international law. Often admitting a wrong and ceasing
conduct will be sufficient
 Role of satisfaction
 Jus Cogens (Arts 40 ff)
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o
o
Terminology
 Aggravated responsibility
 Serious breach
 Peremptory norm
 Gross systematic failure
Special consequences
INJURY TO ALIENS
 A person is abroad, and foreign person is injured due to state negligence
 This is where international compensation really started
 Have a relationship to diplomatic protection
 Key contexts
o Foreign workers
o Foreign investors
 In particular where states nationalize and appropriate private resources
 International Standard
o At times foreigners of a country can have better treatment than nationals of that state
 This is dependent on the willingness of your state to intervene on your behalf
 Enforcement of human rights obligations
THE INJURED STATE: STANDING
 Analogous domestically to a persons challenging legislation which doesn’t involve them, example
challenging abortion law or environmental law, despite not owning the law or having an abortion
 In international law this usually manifests in human rights law
 Injured state (means violation of legal obligation, not actual injury)
o Art: 42 injured state
 Obligation owed to one state
 To a group of states
 Specifically affected
 Radically changes position
 Limitations
 Violation of human rights of its citizens by a state
 Dumpling on high seas (difficult for any state to characterize itself as the
injured state)
o Art. 48: Not an injured state
 Circumstances giving rise to standing
 Remedies
USE OF FORCE
 Formalism v. Instrumentalism
 Prohibitions and Justifications
Timeline
 1919 - League of Nations (1919): Article 12: The members of the league agree that, if there should arise
between them any dispute likely to lead to a reputure…..
o This was a modern event, however it involves no prohibition on the use of force
o Use of force in 1919 is governed by international law, however it is not illegal
 1924 - Kellog-Briand Pact (1924): Article I, Article II
o Prohibition on force is introduced
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

1948 - UN Charter: Article 2(4): All remembers shall refrain in their internation relations from the treat or
use of force againse the territorial integrity or political independence of any state
o This is the prohibition we have today
o Still meant to represent modernity
o US delegation brought a woman
Justifications
o Self-defence – UN Charter acknowledges an inherent right to self-defence
 This right is found in customary international law
 Many argue the UN charter frames self defence as smaller, than the customary right of
self defence
 This is also a criticism of the ICJ use of self-defence in Nicaragua
 This is also an example of the Baxter paradox
 Prior to 1924 a state did not have self-defence constrained as the same way as it does
post 1924,
 Because when use of force was not illegal, a state could attack be cause they
felt like it and say it was self defence
 So take cases prior to 1924 with a grain of salt, for example the caroline case.
 Caroline Case – a case of Pre-emptive strike
o Necessity of self-defence, instant , over-whelming leaving no choice of
means and no moment for deliberation . . . [T]he act, justified by the
necessity of self defence, must be limited by that necessity and kept
clearly within it
 Necessity
 Potential allied invasion of Denmark and Norway
 Proportionality
 Nuclear Strike
o Is it ever appropriate to launch nuclear
weapons, or respond to a first strike
 Time; imminence
 Osirak
 Military technology
 Pre-emptive / anticipatory self-defence; preventative self
defence
 National Security Strategy 2002 (USA) [regarding
access of evil]
o US concept of ‘Rogue states’
 Who: sponsor terrorists; possess
weapons of mass destruction;
prepared to deploy weapons, tactics
designed to inflict damage on civilian
population; ideologically driven;
pursue objective of total annihilation
of the enemy; irrational
 US suggests negotiation/peaceful
resolution of dispute is not possible
 If all the above is true what does the
state have legal grounds to do? –
(maybe targeted killings of terrorists,
perhaps assinations of Heads of
State, regime change)
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o
o
o Necessity and proportionality not present in Caroline
Pre-emptive strike [continued]
 Pre-emptive strikes do not always involve a lining up of armies at the border. In Caroline
this was the case, but Osirak (Israel case) is far different.
 Consider imminence of attack, and sufficiency of defense mechanisms (for instance if
you have air missile defenses, then maybe though an attack is imminent you are not
threatened b/c you could shoot the missiles out of the sky)
 But Israel still uses missle attacks as excuse for pre-emptive attack, even
though they can prevent 95% of missiles from entering its territory
 Can also consider these arguments as used during the cold war
Armed attack
 Oil Platforms (bombing)
 If this is not an armed attack on the US, what is it?
 Nicaragua
 Aiding contras
 US Activities: mines, attacks on ports etc.; military maneouvres
 Flow of arms from Nicaragua to Salvadorian opposition
 Think about how these change with the prohibition on the use of force.
 Oil platforms
 Before prohinition: If one country bombs on oil platform, you can bomb theres.
o After you cannot. Especially if they bombing is over, you cannot claim
self-defence if the attack is over
Caroline Case
F
I
D
R
See: Use of force

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None state actors
o Compare images of US army (state based actors) with Contras (not state based, guerrilla force)
with Spanish civil war (doesn’t look like army, civilian clothes, women), with the little green men
(the Russian soldiers in Crimea without Russian military insignia; perhaps comparable to the
contras since the state is in the shadows), with Bin laden (doesn’t look like a soldier)
o 2001 attack on US
 Key actors
 US
 Al-Qaeda
 Osama Bin Laden
 Afghanistan
 Afghani government (Taliban)
o Though the ‘Afghani government’ was never referred to in the lead up
to the 2001 invasion, rather it was the Taliban. Suggests perhaps there
was no government in effective control
o Taliban gov tolerated Al-Qaeda operation in Afghanistan (permission)
 Proportion: The 2001 attack on the US is imputable to Afghanistan (is Afghanistan
responsible for 9-11)

Think about state responsibility
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


o
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agents of the state (from Nicaragua, though remember Nicaragua is subject to
criticism so use this cautiously)
government in effective control (and responsibility of Afghani government if
Al-Qaeda was there and up to no good, from island of palmas and Corfu
Channel)
o Corfu channel is duty to warn
o However, if the Taliban gov is stronger than Al-Qaeda they are
expected to do more than warn.
o All of this shows that is hard to show Afghanistan attacked the US
The security council did not authorize the invasion of Afghanistan
o Instead the US and UK used self-defence to justify the invasion of
Afghanistan
o They were not condemned by the international community. Not one
state outside the ‘axis of evil’ claimed the US had acted illegally
o Another problem with ‘self-defence’
 There was no further military capacity in Afghanistan and AlQaeda to militarily attack the US
 While there was still a threat
 However this response looks like retaliation
Armed attack
 Oil Platforms
 Use of force?
 Was the use of force attributable to Iran?
 Was the US response justified as self-defence?
 If this I not an armed attack on the US what is it?
o Attack on a ‘US national’ b/c the vessel was flying a US flag. So this
counts as an injury to the USA.
o Could be analogulous to the reparations case (except here it is US a
state, and not UN)
 Nicaragua
 US activities
o Aiding contras
o Mines, attacks on ports etc.; military maneouvres (things US actually
undertook to do, US claims it acts on behalf of and in the name of
Honduras, el Salvador, etc, thus framing it as self defence)
 Alleged Nicaraguam activities: Flows of arms from Nicaragua to Salvadorian
opposition
o SO we are looking at two events
 US armed attack on Nicaragua on behalf of el Salvador,
Honduras.
 By adding the contras – does not constitute an armed
attack (court says contras not agents of the use – this is
controversial)
 Mines/attacks on ports are attacks
 Military maneouvres are also not an attack b/c it is not
on Nicaraguan territory. It’s just war games
 Nicaraguan response by attacking el Salvador
 Is this an armed attack – yes
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
Gaza situation this summer is an example of where armed attacks are launched on a state but not
necessarily by a state.
o This is quite common, guerrilla fighter situations pop up all the time.
o Wars between states and none states
 Self-defence and non-state actors
1. State a constituted a militia and order the militia to carry out an attack on State B.
o Ex. Russia in crimea
o Right of self-defence: This is state action. State B can enter state A in self-defence
2. State A provided assistance to a militia which then carried out an attack on state B.
o Ex. Nicargua contras
o Right to self-defence: No, state B is not under attack by State A. However state B still acting
illegally by assisting militia
o State B should engage the militia on its territory. It cannot move it’s attack on to state A
o This is basic rule. It gets more complicated
3. State A provided no assistance to the militia but was aware of their activities and did nothing to
stop it.
o Right to self-defence: No, state B is not under attack by state A. No right to self, defence,
however state A is still likely acting illegally
o Duties of state A:
 Duty to warn: corfu channel
 Due diligence obligation to stop the militia (if they have the means): more
important after 9-11. Ex. Afghanistan pre-9-11
4. State A was not aware of the militia’s activities but did not take measures to make it more
difficult for guerillas or terrorists to operate on its territoey.
o Right to self-defence: no
5. The government of State A does not have effective control over a portion of its territory; a militia
operates in that portion of the territory, with the government’s knowledge but not acquiescence
o Right to self-defence: no, but this is also similar to pre-9-11 Afghan
6. Same as above, but the government does not know of the militia’s activities
Response to Power Vacuum
o Acts of militia not attributable to state on whose territory it is operation
o State not in violation of obligations to take measures against militia
o Ex.somalia, Afghanistan, etc. state does not control whole land mass. Breeding
ground for violence, terrorism, etc.
o Do attacks against a neighboring state by the militia qualify as an armed attack? – 9-11 tells us
yes
o Does the neighboring state have a right to self defence? – no it can only defend itself against
the militia on its own turf
o In the face of a massing of forces near the border in preparation for attack would the state
have the right to strike pre-emptively? – base answer is no, (this answer is becoming
stranger)
o Self-defence against none state actors cases:
o Nicaragua
o Wall
o Congo (not in readings, note dissent. ICJ case with power vacuum) DRC incursions
into Uganda
o Afghanistan
Protection of nationals
o Entebbe – Uganda rescuing hostages in DRC with loss of life (isreal?)
o What rules or principles are at play
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




Prohibition on the use of force is at play
 However it is not clear if force is used (planes and personal coming in)
Obligations of territorial standards: international standard of treatment for foreign
nationals
 Hostage taking state must respect this
Rights of territorial state: non-intervention, territorial integrity, self-defence (?)
Obligations of state of nationality: respect for sovereignty, prohibition on the use of
force
 Armed attacks against Uganda?
Rights of state of nationality: self-defence; distress (?)
 Distress = Art. 24
o Is it worth making the argument, would it be a good one.
EXAM
 3 parts. 1 question has 2 choices.
 Essay questions and fact patterns
 Both essay and fact patterns have guidance on what to write, where to focus your

answer
In the third section those who don’t write the midterm have to answer. Those who
wrote the midterm assignment have more choice.
ONE QUESTION WILL BE ON SELF-DETERMINATION kind of
Should be possible to complete exam in 6 hours of ‘working time’. But splice in
reflection time, etc.


HUMANITARIAN INTERVENTION
 Legal status
o Be very careful when making assertions about the legality of unilateral humanitarian
intervention i.e. outside the scope of SC authorization. Justifications for the use of force:
 Self-defence (including pre-emption, collective self-defence) [section 51 of UN
charter]
 Authorization by the Security Council [Chapter 7 UN charter]
 That’s it. (No other legal basis for use of force)
o “The legal consequences of the responsibility to protect, its ability to influence decision making
in the UN, remain uncertain.” (Kindred at 828)
 Political and Strategic Context (for the two justifications for the use of force)
o Dysfunction in the Security Council (permanent 5 with veto, and not democratic states within
UN don’t recognize the will of their populations)
o Highly unequal distribution of military and other capabilities among states
o Highly divergent views in international society of the right and the good
o Prevalence of self-interest, ideology (on all sides)
o Complex and often ambitious objectives of armed intervention
o Consequences of armed intervention
Responsibility to project – Trajectory
1. responsibity to protect (2001) (this is the only place where unilateral use of force is mentioned)
 Obligations attendant on sovereignty
o Island of Palmas: Protect the interests of other states (colonial rule, must be
peaceful to other colonizing countries)
o Responsibility to protect: Protect the interests of one’s citizens
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o
New international economic order, Permenant sovereignty over natural resources:
Protect the interests of one’s citizens, of natural society with respect to the state’s
natural resources
 Just cause, precaution, right authority
 Precaution:
o RTP: Intention; last resort; reasonable means; reasonable prospects
o MSW: Seriousness of threat; proper purpose; last resort; proportional measures;
balance of consequences
 Right to authority:
o Do the authors claim that unilateral intervention may be legal under some
circumstances
2. A More Secure World (2004) (UN document)
 Many overlaps between this and R2P? Compare
 However A more secure world, rejects that the security council has been efficient
o Tries to identify a thresh-hold where the security council MUST act
 Principles guiding decisions on the use of force:
o Serious threat of force
o Proper purpose
o Last resort
o Proportional measures
o Balance of consequences
3. World Summit (UN document)
 Where does responsibility lie?
 Under what circumstances?
 Unilateral Action?
4. Implementing responsibility to protect (2009)
 Three pillars
 Who bears responsibility for taking action?
 Unilateral action?
 Implications of bush administration approach?
Kofi Annan, 1999
 Unilateral humanitatrian intervention: Lessons from Rwanda and Kosovo
o If an armed force had been ready to enter Rwanda to stop the genocide. And they security
council refused, could they have gone in anyways, with out security council authorization?
o What about in Kosovo?
o This right to humanitarily intervene legally in situations where the security council does not
authorize is dangerous
 Failure to respond can result in tragedy like Rwanda
 However, responding without authorization could be used to justify a Kosovo/Ukraine
involvement. How do we write a rule that lets us enter Rwanda, but not Kosovo
Security Council
 Virtually unlimited power when they can agree
o Can act as
 A judge
 Executive
 Police force.
 Article 24
 Article 25
o ie Nambia case
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

Article 27 (voting in the security council)
Chapter 7: Action with respect to threats to the peace, breaches of the peace, and acts of
aggression
o Article 39
o Article 40
o Article 41
o Article 42
 Example of Use-of-force authorized in Security Council:
o Korea and 1st gulf war
o But it wasn’t UN forces it was willing states
 Just like in the 2nd gulf war, and Kosovo
 These can be ruled on by ICJ who can render advisory decisions
o Ie. United for peace resolutions.
UN Charter: Chapter VI: Pacific Settlement of Disputes and Chapter VII
 Think of Israeli destruction of Osiraq
o What powers were the security council exercising in this case
 Expressed deep alarm over the the threat of the act (to international peace and
security)
o Full aware of the fact that Iraq, being a party to the Treaty on the Non-Proliferation of
Nuclear Weapons, has subscribed to the International Atomic Energy Agency Safeguards
regime, and that the agency has testified that these safeguards have been satisfactorily
applied.
o Security council does not always overtly say they are using chapter 7, or “authorizing use of
force”. Rather the resolution often says more muddled opaque things.
o Saying “ACT OF AGRESSION” – has meaning in international law, and legal ramifications
 September 11 2001 – Exercise
o Security Council Resolutions: 1368 and 1373
 By virtue of what powers is the Security Council exercising its authority
 What actors are being addressed
 What rights and obligations held by these categories of actors does the SC affirm
(You will need to generalize here)
 What are the implications of…
 X
 X
 X
First and Second Gulf Wars
 Iraqi invasion of Kuwait, August 1990
 Operation Desert Storm launched January 1991 (US action into mideast to restore Kuwait sovereignty)
 “Cat and mouse game” – UNSCOM (UN group UNSCOM trying to search for nukes in Iraq)
 The case for war – US, UK
 Operation Iraqi Freedom
o Compare with Panama
 Bush senior said it was for: Panamanian human rights, stop dictator, open panama
canal, and ….?
 Here legal justification was an afterthought (after the invasion)
 Bush junior did not invoke human rights for the invasion of Iraq
 In this case legal justifications were introduced first.
 What was the case for war
o UN security council resolutions
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o
o
WMDs, chemical weapons, dirty bombs
In press conferences human rights were referred to, but these were not raised as a legal
argument before the UN
State sponsored terrorism/axis of evil


o
o
Security council resolutions 677 (1990), 678 (1990), 687 (1991), 1154 (1998), 1441 (2002)
Focus on 1441:
o Material breach
o Final opportuntity
o 30 days deadline
WMD in Iraq
Revival Argument


END OF TERM
 There are fact patterns on mycourses to practice
USE OF FORCE
State Sponsored terrorism: A new role for the security council
 Al-Qaeda Sanctions Committee
o The sanctions regime was first established by resolution 1267 (1999) on 15 October 1999 and
has been modified and strengthened by subsequent resolutions, including resolutions 1333
(2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008), 1904 (2009),
1989 (2011), 2083 (2012) and resolution 2161 (2014) so that the sanctions measures now apply
to designated individuals and entities associated with Al-Qaida, wherever located. The names
of the targeted individuals and entities are placed on the Al-Qaida Sanctions List. Narrative
summaries of reasons for listing the individuals ….
Weddall and Kuraka Fact Pattern
EXAM QUESTIONS
 How to treat draft articles on the exam
o Explain you know they are draft
o But many are based on custmary law
o Also many are based on the UN charter, but an expansion of ideas
o The Declaration of Friendly Relations is authoritative because judges etc. treat it as such.
o International law commission documents are also authoritative because of ‘eminent publicists’
 Not a primary source of law, but a subsidiary source of law
o Can a country invade if an army is lined up on its border?
 The pre-eminent case is the Congo v. Uganda
 Must stress self-defence and not the overthrow of government.
o When can a state be ‘its own security council’ and decide to invade unilaterally? – Ex. USA in 2nd
gulf war into Iraq
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~by Haenyo