INTRODUCTION TO INTL LAW _______________________________________________ 5
Intro ____________________________________________________________________________
Politics or norms? ________________________________________________________________
Characteristics of Int’l System (Wallace) _____________________________________________
Sanctions in Int’l law _____________________________________________________________
What’s the value of Int’l system?(Sancs) ______________________________________________
United Nations and Intl Law _______________________________________________________
Canada’s Role in Int’l Law ________________________________________________________
Theories/Foundations _____________________________________________________________
Johnston’s Models/Levels _________________________________________________________
Article 9 of the OSPAR Convention (Ireland v United Kingdom) _________________________
Future of Intl Law _______________________________________________________________
Responsibility to Protect _________________________________________________________
International Law and Justice ______________________________________________________
Changing Role of IL _____________________________________________________________
Problems with IL _______________________________________________________________
5
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7
7
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SUBJECTS OF INTL LAW ___________________________________________________ 11
Brownlie ____________________________________________________________________
Criteria of Statehood ____________________________________________________________
(1933 Montevideo Convention)  Objective Question ________________________________
Basic Rights of States____________________________________________________________
Cassese_____________________________________________________________________
Legal justifications for intervention _________________________________________________
Types of States _________________________________________________________________
Federalism and Canada __________________________________________________________
Re Ownership of Off-Shore Mineral Rights _________________________________________
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14
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Self-Determination of Peoples ______________________________________________________
Israeli Wall Case _____________________________________________________________
Western Sahara Case (ICJ Advisory Opinion) ______________________________________
Quebec Secession Reference (1996 SCC) __________________________________________
Indigenous Peoples in International Law _____________________________________________
Int’l Whaling Convention_______________________________________________________
WTO stuff with Intellectual Property (WordIPO) ____________________________________
ILO Convention 169___________________________________________________________
UNCHR - 1994/45 Draft United Nations Declaration on the rights of Indigenous peoples ____
Permanent Forum on Ind Issues at UN ____________________________________________
Arctic Council _______________________________________________________________
Non-Governmental Organizations __________________________________________________
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17
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18
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Individuals and Corporations as Subjects of Int’l Law _________________________________
Kazemi case _________________________________________________________________
Rios (Committee Against Torture –UN) ___________________________________________
Ahani (OCA) ________________________________________________________________
Lovelace ____________________________________________________________________
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Nationality ______________________________________________________________________
Citizenship of Corporations _______________________________________________________
Barcelona Traction ___________________________________________________________
Ships and Aircraft ____________________________________________________________
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LAW CREATION AND ASCERTAINMENT _____________________________________ 23
Other Sources of IL _____________________________________________________________ 23
Formation of Int’l Law: Three Steps ________________________________________________ 24
Customary International Law ______________________________________________________
1. Material Practice: where do look for it? ____________________________________________
Lotus Case (PCJ) _____________________________________________________________
North Sea Continental Shelf_____________________________________________________
Anglo Norwegian Fisheries Case ________________________________________________
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26
27
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International Treaties_____________________________________________________________
What is it? ____________________________________________________________________
 Three kinds of Treaties: _____________________________________________________
Terms that are important _________________________________________________________
Sources of Treaty Law ___________________________________________________________
29
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30
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31
Treaty Making in Federal States ____________________________________________________ 32
US Internal Treaty Restrictions ____________________________________________________ 32
Canada and Treaties _____________________________________________________________ 32
Treaty Rules: Reservations ________________________________________________________
Reservations ___________________________________________________________________
North Sea Continental Shelf_____________________________________________________
Anglo-French Arbitration ______________________________________________________
34
34
35
35
Interpretation ___________________________________________________________________ 36
OSPAR _____________________________________________________________________ 36
Treaty Rules: Invalidity and Termination ____________________________________________
Invalidity _____________________________________________________________________
Nigeria v. Cameroon __________________________________________________________
Termination of Treaties __________________________________________________________
Danube Dam Case ____________________________________________________________
Treaties and Third Parties ________________________________________________________
VCLT 34 -38_________________________________________________________________
38
38
38
38
39
41
41
Treaty Rules: Conflicts ___________________________________________________________ 42
THE USE OF FORCE _______________________________________________________ 43
Basics: Non-intervention and Prohibition on use of force _______________________________
Foundation for doctrine __________________________________________________________
Nicaragua __________________________________________________________________
Iran v. US - Oil Platforms Case __________________________________________________
Israeli Wall Case _____________________________________________________________
Cassese_____________________________________________________________________
Cassese_____________________________________________________________________
UN Peace and Security Structure ___________________________________________________
Process _______________________________________________________________________
Shifts in Force in 1990s __________________________________________________________
Peacebuilding __________________________________________________________________
Responsibility to Protect (R2P) ____________________________________________________
Implied auth. of Use of force ______________________________________________________
2
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43
43
43
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43
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45
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Unilateral Use of Force: Self-Defence ________________________________________________
Test: Necessary and Proportionate? _________________________________________________
Israeli Wall _________________________________________________________________
Oil Platforms ________________________________________________________________
Pre-emptive SD (Bush Doctrine) ___________________________________________________
Humanitarian Intervention ________________________________________________________
46
46
46
46
47
48
State Succession _________________________________________________________________
Article 73 ___________________________________________________________________
4 Scenarios of State succession ____________________________________________________
General Rules (CIL) _____________________________________________________________
Hungry v. Slovakia (ICJ case) ___________________________________________________
49
49
49
50
50
APPLICATION OF INTL LAW IN CANADA ____________________________________ 51
General Canadian Approach to Treaties _____________________________________________
Labour Conventions Case (1937) ________________________________________________
Canada and CIL ________________________________________________________________
Nfld Case ___________________________________________________________________
Baker SCC (1999) ____________________________________________________________
Spraytech v. Hudson (SCC) _____________________________________________________
Ahani Case (OCA) ____________________________________________________________
Suresh (2002) SCC____________________________________________________________
Quebec case v. Canada (QCA) __________________________________________________
51
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52
53
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54
INTERNATIONAL DISPUTE RESOLUTION ____________________________________ 55
Methods of Dispute Settlement ____________________________________________________ 55
ICJ Jurisdiction _________________________________________________________________
Canada v. Spain – Fisheries ____________________________________________________
Serbia/Montenegro v. Canada (Yugo Bombing) _____________________________________
Nicaragua v. US______________________________________________________________
Nicaragua – US arguments _____________________________________________________
Aftermath of Nicaragua __________________________________________________________
Non-Appearance _____________________________________________________________
56
57
58
59
60
60
60
Court’s Advisory Opinion Power ___________________________________________________
Key Points ____________________________________________________________________
Legality of the Threat or Use of Nuclear Weapons (1996, ICJ) _________________________
Israeli Wall _________________________________________________________________
Frontier Dispute Case _________________________________________________________
Aegean Sea Continental Shelf ___________________________________________________
Yugoslavia v. Canada _________________________________________________________
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62
63
63
63
What is the role of the ICJ? ________________________________________________________ 64
Nicaragua __________________________________________________________________ 64
3
JURISDICTION ____________________________________________________________ 65
Three types of Jurisdiction ________________________________________________________ 65
Acquisition of Land _____________________________________________________________ 66
Ocean Jurisdiction _______________________________________________________________ 67
Canadian Arctic _________________________________________________________________ 68
Jurisdiction over Ships and Aircraft _________________________________________________ 68
Jurisdiction over Individuals _______________________________________________________
Prescriptive Jurisdiction (aka Legislative Jurisdiction) __________________________________
SS Lotus ____________________________________________________________________
Romania v. Chang ____________________________________________________________
Concurrent Jurisdiction __________________________________________________________
Libman _____________________________________________________________________
Extradition ____________________________________________________________________
Jaffe _______________________________________________________________________
Alvarez _____________________________________________________________________
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71
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INTRODUCTION TO INTL LAW
Intro
Politics or norms?
Arguments against
1. No legislative body equivalent to parliament
2. No executive
3. No sanctions for breach of law
Evidence for international law
1. A set of rules does appear to exist that states do tend to follow
a. States feel bounded by these rules
b. Binding set of international rules makes things possible
c. Trade (to an extent) and mail
2. Foreign ministries refer to int’l law in their positions
a. Legal tools, incl. treaties are used all the time in international discourse
b. e.g. Hans Island – legal position of gov’t of Canada is set out on the
website
Int’l law suffers by comparison with domestic legal sys.
1. It is incomplete
2. Lack of centrality and sanctions are a problem
3. Universal application of the law a bit tricky
4. Immature system, analogy to early days of CL
5. High degree of compliance with Int’l law
a. Int’l law and air travel
b. Areas over which you can’t fly over, e.g. Vietnam, north korea, etc.
6. Breaches tend to be spectacular
a. Shoot down of Korean jet
7. Tendency of int’l law to look at all disputes as a breach
a. Not always the case
b. Canada and Denmark agree on law, but they disagree on the facts
8. Many of the disputes are really about what the facts are
IL = Order
1. If justice happens to result then great, but justice is trad. a secondary concern.
a. closer you get to justice, closer you get to core functions of a state
2. Justice is becoming a greater thing
a. Rome Convention on ICC
b. Int’l tribunals
5
Characteristics of Int’l System (Wallace)
1. Heterogeneous: Diversity of culture, languages and interests.
2. Decentralized: No central enforcement agency: System is decentralized
 Anarchical system
3. Consent: System is based on consensus (customary int’l law and treaty making)
 Sovereign equality and states must agree to enforcement
 Remember as Brierly says, the ultimate explanation of the binding force of all
law is belief in the legitimacy of that order.
 conciliatory rather than adversarial
 however, note that consent is not absolute (Custom and North Sea Case)
4. Lack of Enforcement:
 ICJ, Security Council (Sanctions), Collective self-defence
 Self Help Remedies : counter-measures, anti-dumping.
 Yet states tend to follow international law
Sanctions in Int’l law
i) ICJ’s decisions can be enforced by UNSC
o Complicated by veto power
ii) UNSC can take actions against states when inconsistent w/ IL
o UN sanctioned use of force against Iraq (Kuwait), Afghanistan, North Korea
[Chapter VII]
iii) Economic sanctions
o Apartheid
o Questions re: Effectivity and ethics
iv) Self-help remedies
o States can take countermeasures/reprisals against offending states
o Illegal act is made legal by another’s illegality – must be proportional
6
What’s the value of Int’l system?(Sancs)
1. Compliance is the norm and what we should focus on
 “Almost all nations observe almost all principles of IL and almost all of their
obligations almost all of the time” (Henkin)
 The IL system demonstrates a high degree of compliance (Schachter)
2. Sanctions should not be overvalued – only work if few people break law



Public opinion and mobilization of shame/politics of embarrassment
Coercive measures do have their place (e.g. ICTY, ICTR)
Breaches: will occur as a result of a cost-benefit analysis
3. Countries simply don’t want int’l law to be major player
a. B/c it in some way inhibits domestic sovereignty
b. Some countries are okay, some are not
1. Newly decolonized countries, less willing to relinquish sov’t
4. Still in the “laissez faire” mode of devt of the law (Brierly)  huge gaps exist (e.g.
refugees, nationality/citizenship, immigration)
5. Int’l law is really about certainty and predictability (Brierly)
United Nations and Intl Law
1. Not very important in IL
2. Gen Assem. is impt politically, but they are not a law creating body
3. Each state is equal in principle, each state is entitled to one vote
4. UNSC – 5 perm. members who have a veto. One rotating member
a. Japan is the biggest contributor of UN, but Japanese is not an official language
5. UN is perpetually under attack (by US)
6. UN Human Rights Commission
a. Filled w/ worst violators who focus on US and west
Canada’s Role in Int’l Law
1. Canada frequently does not follow int’l law
2. There is a high degree of compliance, but there are areas of IL that are
massively under developed
a. Self-defence is rooted in 18th c. notions
3. Cdn gov’t argues that not breaches, but that the law is wrong
a. We are “ahead of the law”
4. Legal advisor to dept of Foreign Affairs
a. Just b/c it’s the law doesn’t mean that the law follows it
7
Theories/Foundations



Naturalists
o Law is “derived from principles of justice which has a universal and eternal
validity and which could be discovered by pure reasons; law was to be
found not made” (Akehurst)
o Examples of writers: Grotius, Vitoria
Positivists
o Actual behaviour of states as the basis of international law
o Key is consent (states have freedom of action and therefore consent to be
bound; consent IS the reason it is binding)
o Austin – “law as the general commands of a sovereign, supported by the
threat of sanctions” (Akehurst)
Sovereignty
o Pay attn to histories of countries for their hesitancy in yielding sovereignty
o Overall though, acquiescence/willingness of newer countries to “buy in”
Johnston’s Models/Levels
1. Litigational
 Realm within which most lawyers work
 Sustained by “Unitarian” commitment to doctrinal formalism (26)
 Because it is litigious, it requires high degree of like-mindedness among diverse
states
 Look at hard/clear obligations (“shall”/ “shall not”)
 Is it binding? What are the consequences of a breach?
 Example: WTO
 Judicial “utopia” b/c it is a “well-intentioned exercise in self-deception” (28)
2. Operational
 Concerned w/ regulation of interstate relations but realizes IL is one
consideration among many (incl political, economic, technological limitations)
 More about processes, expectations, procedures, guidelines
 Faith is in the contextual sense of reasonableness or fairness
 Places premium on prevention rather than remedy
3. Societal
 Embraces IL as a normative, even ethical, force for the potential benefit of intl
society at large
 Communitarian version – “world community”
 Individualistic version – individual at centre (e.g. intl HRs)
8
Article 9 of the OSPAR Convention (Ireland v United Kingdom)
Facts
Ireland commenced arbitration proceedings in 2001 against UK under
LOS and OSPAR Convention; also a case on the horizon before
European Court of Justice; all re: UK’s decision to build mixed oxide plant
o Arbitral tribunal est’d under art 32(1) of OSPAR and the question put
before it was whether the UK breached art.9 by not providing info to
Ireland re: MOX plant; tribunal (2:1) said no breach
o Ireland said it had “consistently protested against” use of UK site for
nuclear activities
Held
1. Took textual/acontextual approach that narrowed the issues to those
presented by OSPAR, and did not include other treaties in
interpretation/evidence
Cmt
1. Contrasts the operational and litigational models
2. In Court, Lit. model wins over operational
3. Arb. trib encourages 3rd party Arb, emphasized predictability
9
Future of Intl Law
Responsibility to Protect
1. Idea that UN is able to respond to humanitarian crisis and failed states, or state govt
is killing its own people (Rwanda)
2. UN should have responsibility
Problems
1) UN has no forces of its own
2) No such thing as UN Command
3) UN members not required to send troops
4) Peacekeepers are the ones that are usually sent
5) Very few with lift capacity
International Law and Justice
1. Movement toward human rights, environment
2. More treaties than ever before
3. International mechanisms
a. International Civil Aeronautics Org– Montreal
b. Biological Diversity – Montreal
Changing Role of IL
1. Hard to known where it is going
2. Number of players in the IL scene is growing
3. Difficult for non-players to participate b/c they lack capacity
4. Limits to what IL can do, what we can expect
a. Can’t expect world peace, can expect stds of action
b. Countries aren’t ready to sign onto big changes
c. Countries voting against UN reform
1. Chavez and Castro
d. Rift lines in UN are not where you would expect
5. Until Globalization takes over and cosmopolitan culture is the norm, we won’t have IL similar to
domestic law
6. Countries rely on other countries to rely on treaty obligations
7. Massive blind areas where states don’t want law, or don’t want the law clarified
Problems with IL
1. Disrespect for the law
2. Trust of institutions (e.g. UN)
a. UN more anti-American tilt
b. Argument that UN is massively inefficient (or corrupt)
3. US is not as international engaged today as they were
a. Aggressive US behaviour is becoming an issue
4. States in IL are not very coherent or cohesive in their views
5. States use IL for their own self-interest.
a. US does this clearly now
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SUBJECTS OF INTL LAW
Brownlie
Subject of IL: an entity capable of possessing rights and duties under IL and having the
capacity to maintain its rights by making intl claims
Characteristics of subjects:
a. Capacity to make treaties (VCLT, art. 6)
b. Capacity to present intl claims by diplomatic procedures or other forms
c. Liability for consequences of breaches of IL
d. Privileges and immunities in relation to the natl jurisdictions of States
All States have intl legal personality
Criteria of Statehood
(1933 Montevideo Convention)  Objective Question
1. Permanent population
 No minimum (e.g. Nauru; Lichtenstein )
2. Defined Territory
 No specified minimum (e.g. Andora) Not necessarily settled borders (Israel; Saudi
and Yemen)
 Guardianship: Exclusive right to display activities of the state and includes duty to
protect territory, integrity and inviolability of territory, exclude activities of other states
(Island of Palmas Case 1928).
3. Government
 Effective government
 A stable political community supporting a legal order in a certain area. (Brownlie)
 Evidence of administrative and legislative organs.
 Exist of govt not enough – Greenland, Finland, Canada 1926-1931(signed Treaties
though not official)
4. Independence or Capacity to enter into relations with other states.
 Entering into treaties with other states with other states and so forth.
Recognition is the most definitive issue as to whether something is a state or not
Easiest Test: Is State a member of the UN? (exceptions – Vatican, San Marino)
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Basic Rights of States
Cassese
1. Sovty and independence
a. Free to manage internal affairs (people and land and nat’l resources)
b. Restrictions on this HR, but still difficult to intervene
2. Freedom from the interference of other states (UN Charter 2(7))
a. Intervention exists legally and illegally
3. Diplomatic Immunity
a. States not subject to court of another country
b. UN Charter Art II (1) – All states are equal
4. Capacity to enter into intl relations
Legal justifications for intervention
1. UNSC approval (art. 51 UNC)
2. Self-defence (Six-day war)
3. To protect nationals
a. e.g. US Grenada, Iran
IsraelEntebbe
France Colonial Africa
4. Humanitarian Intervention
a. Probably not okay to intervene (NATO bombing)
b. Parameters unclear
5. By invitation
a. Need to be careful about legit of asker (East Timor/Indo, Panama/US)
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Types of States
1. Unitary States
2. Confederation
 Loose collection of independent states which have bound themselves by treaty (kind
of like EU)
 EU both confed and fed, e.g. Fisheries Treaty signed as EU and as individ countries
3. Federal State
1. In general, sub-units cannot have international personality: however, there is some
debate: e.g. Quebec: Vienna Conference on Law of Treaties rejected clause that
would allow federal units to enter into treaties.
2. State practice somewhat ambiguous:
o US Constitution says no.
o Switzerland, Germany and Old-USSR (Belarus/Ukraine)
o Canada has tended to say no (Re: Off-Shore Mineral Rights)
3. Problem this creates is that responsibility for breach is with the central
government
o Rule is that state cannot use federalism to avoid treaty obligation.
o See VCLT, Article 29 (Territorial scope of treaties)
o “Unless a different intention appears from the treaty or is otherwise
established, a treaty is binding upon each party in respect of its entire
territory.”
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Federalism and Canada
1. Constitution is largely silent on these matters
Federal
a. Arg. that Treaty making power rest with Royal Perogative (Van Ert)
1. Cabinet can exercise w/o consulting
2. Also executive as matter of custom
b. Minerals doesn’t say that Feds have, just that Intl Community looks to Feds.
Provinces
a. Provincial Arg for Treaty
1. Lieutenant Govr (Maritime Bank)
b. Provinces do enter into international things, but they don’t have law-making
capacity
1. Contracts
2. Understandings that don’t engage legal obligations
3. Cooperation agreements, may not be IL
4. Possible as a matter of delegated authority
5. Quebec is going to have a meeting with Ottawa to have more
independent voice (Francophonies, WTO, UNESCO)
c. Provinces must still implement the treaties (Labour Conventions Case)
1. “watertight compartments”
4. s. 132 – talks about parliament of Canada having the obligation to fulfill the
obligations of treaties entered into by the Commonwealth
Re Ownership of Off-Shore Mineral Rights
***Provs have no right to make Treaties.
 Canada is the sovereign state (Versailles 1919; Westminster 1931)
 It is Canada that will answer to claims
 Canada has the international legal rights
 Provinces don’t have international legal rights to enter into treaties.
14
Self-Determination of Peoples
1. Origin in Wilson’s 14 Points
o Political rather than legal
2. Some say it is ethno-cultural oneness that makes a people
- Higgins -- territorial question.
- Or may mean a distinct grouping: race, ethnicity and/or religion
- SCC in Que Secession suggests that it can be subset in territorial state
3. Definitional Problem – Who are Peoples?
a. Cultural, ethnic, or territorial context?
b. Territorial helps – Scots, Welsh, Eriteria
4. Self-Determ vs. Territorial integrity and intl stablity
a. Secessionist movements are not often well-liked
Israeli Wall Case
1. Since Israel had already recog. Palestine at least peoples, so it was not an issue.
2. Wall incurs on Territory contrary to Geneva Convention, art 49, para 6.
3. Israel violated erga omnes of Palestinean right to Self-Deter and obligation of HR law
e.g. of Secession:
 Gibraltar from Spain = UK Supports
 Falkland from Argentina?
 Punjab and Sikh Homeland
 Palestine and Self-determination
Three situations where self-determination applies:
1. Colonial Rule
 UN and League eventually recognized the right of self-determination
o League Mandates and UN Trusteeships ended for SD.
o Australia and Papa New Guinea: Aus. eventually allowed it to leave.
o Right always existed, but it was question exercising
Western Sahara Case (ICJ Advisory Opinion)
 F: Spanish colonial territory, Spain leaves
 Morocco and Mauritania has conflict over the area
 Not colonial in the sense that Spain had conquered it
 Held that it was up to the population to determine
2. Foreign Occupation
 Occupation is considered illegal (Namibia Case)
o Have right of self-determination
15
o Territories in question and peoples attached have external right of SD
3. Where Internal right of SD is continually blocked
o A group of peoples that is being systematically denied HR could lead to
justified assertion of external right (See Que Secession)
Quebec Secession Reference (1996 SCC)
Issue
Does int’l law give Que the right to secede from Canada?
Held
No Quebec does not have right to secede.
Ttwo aspects to Self-determination: Internal + External
 Internal SD not necessarily a right to secede:
o Right to participate in govt: that is, to chose political and cultural rights within
the framework of an existing state.
o This will only lead to independent state in certain circumstances
- i.e. denial of right to decide, participate and make choices
- Denial of fundamental human rights ofminorities within an established state
structure.
o These must be protected by the state, under law, but they do not amount to
external right to self-determination: no special international legal status.

External SD is limited right in international law: ICCPR/Charter
o Right to SD exists in ICCPR and Charter
o It is generally inconsistent with principle of territorial integrity
o Groups should not be encouraged to split states. Concerns about stability.
o Right exists in international law
o Situation of Quebec does not meet test for External SD (colonial oppression
disons!)
16
Indigenous Peoples in International Law
1. Are indigenous Peoples independent actors on a state centric model?
2. If not subject of international law, are there special entitlements as a result of
treaties? How are nations to treat indigenous peoples?
1. Not actually actors on the Intl stage at present
a. Greater respect in treaties to deal with Ind Peoples internally
b. Still push against Ind People
c. Mostly from developing countries worried about stability issues
2. Rights that Matter to Ind People
1. External is impt, but Internal right may be more impt
a. Self-govt, land and resources, cultural protection
b. Under Convention of Bio Diversity and Technology
c. Involvement in decision-making
Definitions Problems
1. Continuing problem for Ind Peoples
2. Very difficult to figure out in many parts of the world
3. Lots of discussion at UN level
4. ILO Convention 107 – took on task of creating definition (1957)
a. Occupy special status in national societies
b. Collectivity of rights for traditional lands
c. Changed wording in 1989, talks about peoples as opposed to
population
5. 1971 Part of Commission on HR (UN) Did Study
a. Advanced the proposals that discrimination of Ind. Peoples tied to lack
of self-govt
b. Draft declaration is official stalled on rights of SD
c. Definition of Ind Peoples is still undetermined
Treaties giving entitlements
Int’l Whaling Convention
1. The IWC does provide for aboriginal whaling
2. There is a quota yielded to aboriginal people (1946-8) –McCaw of Wash.
a. Does the right extend beyond Ind People in the country that’s signing
b. Does it attach to the country, or to the Ind population
WTO stuff with Intellectual Property (WordIPO)
- Convention on biological diversity
ILO Convention 169
- Deals with conditions of working when entering an industrial economy
- replaces 107
17
UNCHR - 1994/45 Draft United Nations Declaration on the rights of Indigenous
peoples
- Issues are things like rights of self-determination, internal external; issues of collective
communal rights v. individual rights; definition of indigenous peoples.
- Currently stalled
Permanent Forum on Ind Issues at UN
a. Indep. experts
b. Govts involved
c. Subgroup of Econ and Social Council
d. est. 2000
Arctic Council
1. Has accredited particular Indig Peoples groups, which goes beyond observer
a. Organization that doesn’t have significant power
b. It is not a full treaty organization
c. Ind Peoples are not quite indep members, but it is close
Non-Governmental Organizations
1. No legal personality but play important role, particular with HR and Enviro, publicity
2. Sometimes they can be part of delegations for negotiating treaties.
3. Sometimes they can have a role assigned to them under a treaty
a. e.g. ICRC Geneva Conventions; TRAFFIC under CITES; Intl Standards Org
under WTO)

Certain Important Ones have nearly int’l legal status
1. International Committee of the Red Cross
- Swiss corporation but has roles and immunities under humanitarian Conventions
2. International Standards Organization
- These orgs have a particular role
3. Convention on the Trade in Endangered Species
- Traffic NGO group has a particular role that has been assigned by members
rather than treaties.
4. WWF
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Individuals and Corporations as Subjects of Int’l Law
Individuals
1. Not recognized at IL, no right against own state
a. Can be held acct. for war crimes, priracy, etc.
b. Can’t enter treaties
c. Can’t raise claim in IL must get backer
– Damage is to the state, not the person
d. Individual actions may be attributable to state
e. Diff b/w obliging right to make domestic leg and stand alone right (Akehurst)
Kazemi case
Facts
Female Iranian/Cdn journalist beaten to death in Iran
1. Canada has interceded with Iran, but no tribunal to hear the case
a. Iran not party to compulsory treaties
Human rights Claims
1. Some movement under HR treaties
2. Conditions
a. Party to the treaty
b. There are complaint procedures that are separate and apart
1. Must be agreed to separate to the treaty
2. In the 4 UN HR, country has to consent to procedure
c. Exhaustion of local remedies
1. may not mean, absolutely everything
d. European Court of Human Rights
1. Does have an individual access process
2. Can you take examples of Europe and apply them elsewhere
3. Does expand out to other countries (outside EU)
3. In UN, no individual process except through compliant procedures
a. Convent Discrim Women
b. ICCPR – Civil and Political rights
c. Convention on Torture
d. Convention on Elimination of All forms of Racial Discrimination
Rios (Committee Against Torture –UN)
Facts
Applied for refugee status, doesn’t want to go back to mexico afraid of torture
under art. 29. Govt argued you couldn’t use Convention of Torture to do an end
run around domestic law. Rios had not fulfilled all the remedies. He hadn’t
applied directly to the minister on compass. grounds.
Held
1. Fact that Rios had not taken all the steps, didn’t nec. invoke the bar on
exhaustion of local remedies b/c decision of Min was on purely humanitarian
grounds and so it was not a legal question
2. Deportation would be violation of art. 3
3. Concern Minister wasn’t impartial
1. Canada deported anyway b/c not binding
Cmt
19
Ahani (OCA)
Facts
Iranian. applied for refugee status in Canada. Was going to be deported,
some concern about terrorist concerns. He applies to govt and is rejected.
Applies to Committee Civil and Political Rights. Committee asks Canada
for a stay of deporation until the HR Committee has a chance to hear all
the evidence.
Held
1. OCA rejects Ahani’s arguments
2. Interim measure was not found to be legally binding on Canada
3. If court is correct, means that if complaint process is out there it does
not result in a binding process
4. Was it binding?
a. Committee itself doesn’t recognize its own decision as binding
b. (Ted more Impt) Treaty ICPR, complaint procedure doesn’t
generate a binding result
c. Other courts do not recognize decisions of HR committee as
being binding – Privy Council, Eur Court of Human Rights
d. Cda does not always follow the decisions that come out of HR
Committee
5. If non-binding on Canada in IL, and internal procedure followed, then
there was no recourse for Ahani
Cmt
1. ICCPR is in fact binding on Canada
2. It is the HR Committee decisions that are not binding
3. 2004 HR Committee found Canada had in fact violated a number of
parts of treaty, including for not granting the stay
Canadian Examples
Lovelace
Facts
(FN woman) went to HR committee and got decision implemented by govt
of Canada. Prior to Lovelace case in 1970s, if you were a FN woman and
you married a non-status Indian, you as the woman you lost your rights as
a FN person. Lovelace successful argued this was inconsistent with
ICCPR.
Waldman
Facts
Held
Ont at the time provided public funding to public schools and catholic
funding. Challenge to legislation, b/c kids went to denominational schools
1. Committee said very discriminatory
2. Canada said no, sorry its in the Constitution
1. But that is not a defense in IL
20
Nationality
1. Individual does not necessarily control your own citizenship, e.g. Syria
a. Intl Law commission trying to let you at least renounce
2. Link between the individual and the state (Nottebam)
a. For dual citizenship will probably be stronger link
b. Sampson case – Sovt immunity – sued individuals but also used Brit citznshp
3. As long as you as are a Canadian national, the government must take you
a. Can extradite you though
b. Cnd Minister can deny a passport to Cdn citizen
No Common IL in this area
1. Individual countries control
a. Canada – born in Canada, born to Cdn parents, applies
b. Singapore – not automatically a Singaporean citizen
c. If you are born in Syria, you are Syrian and you can’t get rid of it
d. China – If you were born to Chinese citizens anywhere in the world
e. German – to be a citizen had to be of German parents
Stateless
1. To be a Brunei citizen you must be of Brunei heritage
2. Overseas Chinese living there for generations, can’t be citizens
Nottebam Case
Facts
German citizen lives in Guatamela, WWII, thought his property would be
nationalized, got Litchenstein citizenship. Gutamelans expropriate it
anyway. Lichtenstein sues Guatamela.
Held
1. Court says Guatamela does not need to recognize citizenship if there is
no nexus and no genuine link.
2. Guat could look behind citizenship
21
Citizenship of Corporations
1. Company cannot declare a citizenship, that’s for individuals
1. Citizenship is where Corporations have their home office and registered
2. Exceptions
a. Under Bilateral Investment Treaties
b. e.g. Italy recognized right of American Shareholders w/ substantial interest will
allow America to sue Italy for damage done
4. Some treaties that exist that do try to pierce the veil, but they haven’t been pierced
yet.
Barcelona Traction
Facts
Belgians are shareholders. BT is Cdn registered company. Bt is doing
business in Spain. Spain does something bad to BT. Belgians feel
aggrieved go to court.
Held
1. Canada should have been the country to bring the action
2. Company had been registered in Cda for 50 years, incorp,
3. Canada had been involved in discussions w/ Spain, but had dropped
out
4. Wouldn’t look behind the veil of the company, wouldn’t see that all
shareholders were Belgian
Ships and Aircraft
Ships
1. Ship has nationality, and so does airplane
2. Formally attach nationality
3. Rowboat has deemed nationality, even if not formally attached
4. Flag of the vessel
5. Ownership of the vessel is irrelevant
6. The Martin vessels are almost all registered in Bahamas and Bermuda
Aircraft
1. Mostly the same as ships
2. Mostly registered in the country of origin, because of bilateral landing agreements
22
LAW CREATION AND ASCERTAINMENT
Article 38 – Statute of the Int’l Court of Justice
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.
Currie – Relevance and Definition of Sources
1. Intl Legal system is typified by absence of central constit. structure or legislature
2. Comprised mainly of a voluntary structure
3. Even the UNSC has only the authority to bind member states, and is acting on
authority delegated by treaty
4. What constitutes the sources of IL is still a subject of great debate
Other Sources of IL
General Principles of Law
1. Not an independent source, but the ability to argue by analogy
Judicial Decisions
1. Supposed to be unimportant, but often they are used a lot
Publicists
1.More useful to point to
Other:
UN General Assembly Resolutions (almost totally useless)
a. may be useful for est. CIL
UNSCR
1. Until recently no one would suggest that UNSC source of IL
2. UN Charter does direct that UNSC can adopt law that is binding on members (could
become CIL, but would depend on the wording)
a. Have to be careful about when they are actually using it
b. Most UNSCR say “recommends”
3. Difficulties with UNSCRs
23
a. Issue of Participation – 5 permanents, 10 temporaries
b. Concern about UNSC creating legal obligations is questionable
4. Canada does and has relied in UNSC for measures
a. Naval boarding measures in Arabian Gulf, create the legal right to do that
Acts of Other Int’l Orgs
1. Can only make IL that is binding on members, but members are free to opt out
(e.g. Intl Whaling Commission and prohibition on whaling)
Softlaw (Birnie)
Codes, practice, recos, guidelines, resolutions, decs of principles, standards
1. Difference b/w litigational and operational law
2. Lots of docs that are clearly not legally binding but they often have lots of good ideas
in them
3. May provide good evidence of Opinio Juris, interp of treaty
3. Environmentalist have referred to this as soft law
a. Used by UNEP and IAEA (atomic eng)
b. Setting minimum stds, failure to meet can be seen as fail treaty commitments
4. Soft law is one of those things that operationally countries will take seriously
Formation of Int’l Law: Three Steps
1. States engage in practice: Assertion
2. States reacts: Either making similar claims or rejecting policy.
3. Rule is rejected or crystallizes.

This seems massively unstable.
o But sometimes states test the limits of int’l law
- e.g. Canada arresting boats.
 Could Canada take an action against to prevent enviro. disaster.
 Canada was not claiming more territory, they were breaching int’l law to
deal with a particular circumstance.
24


Customary International Law
Law that binds all states in the absence of treaties
Rules that owe their existence to the practice of states
Two elements of customary international law (Nicaraugua Case)
1. Material Practice of States: 3 Objective Components
2. Opinio Juris: Subjective element: state’s belief in being bound by rule.
Malanczuk – Customary IL
Custom
1. Two Elements (Nicaragua Case)
a. Objective – general practice
1. Substance must be looked at in GP (Continental Shelf Libya v. Malta)
b. Subjective – accepted as law, opinio juris
2. Evidence
a. Published reports of state action, state’s laws and jurisp, or UN docs
b. Writings of int’l lawyers
c. Treaties
1. Material Practice: where do look for it?

State Actions:
o Political statements, diplomatic correspondence, policy statements, etc.
o Enactment of legislation can be an assertion about the law.
o Generally more important what it does than says
o Huge documentary evidence problems here.
o Statements by people who represent the state – Monarch’s comments irrelevant

Treaties can represent practice:
o Treaties may evolve into custom.
o Difference b/w multilateral and Bilateral
o Treaties can be a codification for customary int’l law (e.g. LawofSeaConvet)
- May only be part of the treaty
o Treaties, through practice, can become customary int’l law.
o But even widespread acceptance may not make it custom.
o i.e. Why is there a treaty if it is custom? (Standard Provisions)

Resolutions of Int’l Organizations:
o If binding at all, they are only binding on members
o General Assembly Decision is not bind
- GA Res with wide acceptance is evidence of practice (Pelagic Drift Nets)
- Issue: Was this custom or simply political content?
25
Testing Practice 3 sub-components for evidence:
I. Generality: You must show generality of practice.
a. Extensive: ?
b. Common: ?
c. Representative of different groups: not just quantitative but qualitative
 Developed and developing states
 Should reflect the states with most interest
o Nuclear Weapons Case = US/Russia, China, etc.
II. Consistency: You must show repetition with several states.
 Series of states and their actions on the rule should be uniform and consistent
 However, perfect consistency is not necessary (Nicaragua)
 Minor inconsistencies do not undermine practice (Fisheries Case) - Norway
III. Duration of Practice: There should be some time period.
 There is a time element. It should evolve over time
 Customary int’l law can move quickly, e.g. North Sea Continental Shelf
 but “instant” CIL seems to be rejected (Nicaragua)
2. Opinio Juris: The subjective Element
Belief that practice is obligatory (North Sea Continental)
 States should be following law because they believe that it is law.
o Practice must be accompanied by conviction that it reflects a legal obligation
o Different from comity or courtoise (flag salutes/red carpets)
 Acquiescence can also suggest that some has accepted custom, i.e. show opinion.
law
 There can be tension b/w states on emerging norms
o e.g. division b/w opposition to nukes and deterrence (Nuclear Weapons)
Lotus Case (PCJ)
Facts
French ship collides with Turkish ship killing some turks. Turkey
prosecutes Lieutenat Demons for manslaughter
French:
No state practice, CIL or other that says Trk has jurisd.
Held
1. While T could not point to CIL that justified, France could not point to
CIL that prohibited what leg Turkey could create and give extraterritorial
reach.
Cmt
1. You can do anything you want in IL as long as it is not prohibited
26
North Sea Continental Shelf
Facts
Dispute b/w Ger, Dk, Neth on division of continental shelf
D and N :
1.G is bound by equidistance principle (art.6) in the 1958 Geneva Conv.
2. art. 6 just codified CIL, maybe wasn’t CIL in ’58, but it is in 1969
Ger:
It is not b/c not signatory and art. 6 not custom
Issue
Is equidistance principle a matter of CIL?
Held
1. Rejected codification argument
a. Para 63, 1958Con allowed for the making of reservations, Court
says if reservations are allowed then the Convention (art. 6) is not
CIL b/c it would have been binding on all
2. Negotiating history of this provision, it is evident there is a debate going
on b/w the people who wanted equidistance and those who wanted equal
3. No evidence that countries felt it was a codification
4. At the time it was done this was not a codification of CIL
5. Rule should be equity and proportionality…
Cmt
1. Many treaties today have no reservations allowed
2. Most of negotiating history today are done by NGOs, so it is more
argumentative
3. Need to look at what went before in terms of what countries had been
doing
Anglo Norwegian Fisheries Case
Facts
UK Claims agst Norway for legis. for exclusive fishing rights off Nor coast.
Held
1. Court upheld Nor. method of boundary fixing
2. Minor inconsistencies in practice won’t kill CIL
Persistent Objector
 You can have customary int’l law that is not binding on some states.
o Persistent Objector (Anglo Norweigian Case) :
- Country(ies) who persistently objects may not have rule apply.
- Require very clear rejections, consistent, maintained, take actions.
- e.g. U.S. Open Seas Policy for Straight Baselines
o Cannot have subsequent objector: Acquiescence can be acceptance.
e.g. Formation of the 200 nms EEZ as custom
 States pushing limits can lead to quick formation
 Initially asserted artic pollution prevention zone (b/c Manhattan Tanker)
 Then, asserted 200 nms in1977 and other states followed suit  LOSC/Custom
27
Other Issues in CIL
1. CIL changes - dynamism
2. Countries are reticent to make changes
3. No real arbiter of what CIL is, but ICJ doesn’t get involved very often
4. GA has opinions, but their analysis is couched in UN political issues
5. Countries will sometimes do whatever they want and claim it is CIL
6. Tends to deal with broad principles, not with really specific things
a. 200 mile zone okay, what to do about a boat in the zone that you want to
shoot, not really answer
28
International Treaties
Introduction
 To some extent the are replacing custom
 Treaties may be binding even if state is not signatory through CIL or erga omnes
 Depend on fundamental principle of consent and equality of states

Treaty is only binding on those parties that are treaties, except:
a. When it is a codification
b. Or if it has emerged as CIL (Int’l Whaling Conv. –Action agst Whaling)
Language
1. Called agreements, convention, protocal (doesn’t really matter much)
2. Resolutions (not usually binding)
3. Declarations and statements (varies)
What is it?
1. Anything b/w states that engages legal obligations
a. Creates legal obligations, or est. relations
2. Oral agreements don’t count
3. Where arrangement is done by municipal law then it is not
4. Arrangements that do not create legal obligations
a. MOU are popular
b. Heads of govt make statements –but is there an intent to create obligations
5. While not determinative, formality is helpful
6. A lot of Int’l agreements can be done through the exchange of private letters
7. Threshold for intent
a. Usu. self-evident, Court usually set high std.
Treaty Making
 An attribute of statehood is to be able to conclude treaties
o VCLT art. 6 “Every State possesses capacity to conclude treaties.”
o There has been some effort to make private citizens and corps parties to treaty,
but still limited
o Can be negotiated by head of state or authorized delegate.
 You are expected to fulfill your obligation under a treaty in good faith (Pacta Sunt
Servunda)
VCLT art. 26: Every treaty in force is binding upon the parties to it and must be
performed by them in good faith
29
 Three kinds of Treaties:
1. Multilateral Treaty Norm Creating (Legislative see Genocide Convention)
o contains provisions which “are of a fundamentally norm-creating character”
o usually open to all states, create Intergov. orgs,
o e.g. Charter
2. Collaborative Mechanism (Contract treaties)
o regulate a particular area of interest, e.g. trade (GATTs)
o may be universal or not
3. Bi-lateral treaties
o most common treaty and deals with particular relation in particular area
Also
Objective Regimes
1. 1959 Antarctic Treaty
2. Freezes new claims in Antarctic, even for state not party to it
It is like custom but not and seems to create obligations on third states
e.g. Panama Canal Treaty creates certain rights and obligations
Terms that are important
Signature
1. Multi-laterals usually have clause that says when they come into force, only come
into force when it says it comes into force and how.
a. e.g. “When sixty countries have ratified”
2. Bi-lateral usually happens when it is agreed
3. Usually means very little, usu a formality that mean country is well-disposed to the
treaty.
4. If you sign treaty, you are not supposed to undermine purpose of treaty
5. Depository – Is where the treaty goes to
Ratification
1. Provides opportunity to bring the treaty home and to look at that
2. Treaties also usually involve changes to domestic legislation
3. Party to a treaty once you have ratified.
Accession
State accepts the offer or the opportunity to become a party to a treaty already
negotiated and signed by other states. It has the same legal effect as ratification.
30
Sources of Treaty Law
Statute of the ICJ
Art. 38 (1) The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply: (a) International conventions, whether
general or particular, establishing rules expressly recognized by the contesting states;
Vienna Convention on the Law of Treaties
Art. 1(a) “treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation;
Two different kinds of states:
o Monists states
- Once ratified becomes part of domestic law.
- Treaties are said to be self-executing
- e.g. US and France
o Dualist States
- Common law states – dualists
- Non non-self executing.
- Requires introduction of legislation.
Can’t invoke Internal Law to justify a treaty breach (art. 27 VCLT)
VCLT - Article 18: Can’t defeat purpose of treaty
A State is obliged to refrain from acts which would defeat the object and purpose of a
treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into
force of the treaty and provided that such entry into force is not unduly delayed.
31
Treaty Making in Federal States

Some states will allow constituent units enter into treaties
- e.g. Switzerland, Federal Republic of Germany, USSR
- However, it is usually limited to particular areas
Art 29 VCLT: “Unless a different intention appears from the treaty or is otherwise
established, a treaty is binding upon each party in respect of its entire territory.”

Article 29 is rarely applied and has largely been overcome by “federal state clauses”

Federal State clause, allows other federal states to deal with art. 29 VCLT
1. Treaty will only become binding on federal state units that consent to the treaty
a. Allows for treaties to be passed w/o having to wait for all to be passed
b. Fed govt will take reasonable efforts to ensure that that provinces complies
1. So Ont could act inconsistently and Canada would not be on the hook
c. Rest of the world don’t like Federal State clauses
Visible in GATTs, WTO, FTA, NAFTA.

US Internal Treaty Restrictions
1. Signed by Pres but need 2/3 Senate to ratify
2. Exceptions
a. Executive Agreements
1. Not in Constit.
2. USSC has supported the concept
3. Not subject to Senate ratification
d. Canada is not concerned about it
1. Always concerned about whether Treaty will be Exec. or Senate
3. Makes signature and ratification very impt in US context
4. Trade Agreements to go through the House and Senate
Canada and Treaties
1. Federal Government who gets to negotiate
a. Some argue that since the power comes from the sovereign, then both the gov
gen and lieut. gov could negotiate treaty, but not proved out so far
2. Federal govt does consult with provinces, but no requirement to consult on ratification
3. Feds have treaty making power
a. SCC agrees: Re Resolution to Amend the Constitution of Canada;
Newfoundland Continental Shelf Reference
32
4. Ratifying the treaty is different than implementing treaty (Fed govt can’t implement)
a. Labour Conventions case (PC)
b. But maybe could be done under pogg, but no case has existed thus far (Van
Ert)
c. Cabinet doesn’t even have to ratify
5. Criticism that this is not an open process
Re Labour Conventions [Privy Council 1937]
Facts
Feds sign ILO treaty and want to implement rules. Problem is that Labour
falls under provincial head of power 92.13
Held
1. Treaty making is executive act, but implementation is legislative
2.You must implement treaty through the water tight compartments of the
BNA.
33
Treaty Rules: Reservations
Reservations


VLCT Art. 2d: (d) “'reservation”' means a unilateral statement, however phrased or
named, 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 Stat. [CIL – Anglo French Arb.]
Fewer res. being allowed, but “interp. statement” okay
o State saying “this is how we understand it”, some weight to that
VCLT art. 19 -23
Formulation A State can reserve unless:
Art. 19
(a) it is prohibited by treaty.
(b) treaty only allows certain reservations.
(c) it is incompatible with the object and purpose of the treaty.
Acceptance
Art. 20
1. Express reservation doesn’t require other parties’ consent.
2. A res. requires acceptance if it was essential to consent of other
states.
3. A res. against IGO requires consent of IGO.
4. In cases not falling under the preceding paragraphs and unless
the treaty.
Effect of
res +
objections
Art. 21
1. Res established above,
(a) modifies relations only to the extent of res.
(b) modifies those provisions with regard to other parties in relation
to the reserving State.
2. Res does not modify treaty b/w other non-res states.
3. When a State objecting to a reservation has not opposed the
entry into force of the treaty between itself and the reserving State,
the provisions to which the reservation relates do not apply as
between the two States to the extent of the reservation.
1. A res may be withdrawn at any time w/o consent of other states.
2. An objection to a reservation may be withdrawn at any time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) must give notice of withdrawal of res which starts when other
state receives.
(b) ibid. withdrawal of an objection
Withdrawal
and
objecns
Art. 22
Law Regarding Reservations
 Until 1950s, reservations were generally not allowed: unanimity principle
 In Reservation to Genocide Convention ICJ said that unanimity was not int’l law
o ICJ says that res cannot fundamentally undermine the object and purpose of
Convention.
34



Flexible approach is in Vienna Convention has crystallized into customary int’l law c
Reservations will generally be read contra preferentum (against the drafter)
States are to be bound only to the extent that they consent to be bound (Genocide;
Anglo-Fr)
North Sea Continental Shelf
Application of equidistance princip. in art. 6 1958 Geneva Convention on Continental
Shelf
Issue: CIL?
Held
Not CIL because you can reserve against it.
Anglo-French Arbitration
Facts
Legal effect to be given a reservation to an article to which there had been
an objection. UK said b/c of objection there was nullity
Held
Parties can only be bound to those provisions of the treaty to which they
consented.
35
Interpretation

VCLT uses textual approach (s. 31-32)
 These articles are consid CIL in (Libya v. Chad)
 States must consider reciprocity when interpreting the law
 Methodology as offered in Canada, “Interpretation”
o Good faith  Ordinary meaning Context
o Assumes something like a hierarchy or structure
States Interpret Treaties
1. Sometime look to subseq practice of states for interp, or if all pass subsequent
resolution
2. General Principles is that you interepret obligation and exception “restrictively”
(McDorman)
OSPAR
Facts
Held
Cmt
Dispute b/w UK and Ireland about whether UK is obligated to reveal
certain info. Ireland said that treaty needs to be interpreted in light of
interpretation of similar words in subseq. treaties. UK says the meaning at
the time of the treaty was signed should be the meaning
1. Tribunal - need to look at meaning at time of treaty signed
a. Esp since the subsequent treaties were all treaties that were not
bound b/w UK and Ireland
2. Litgationally you are on thin ice b/c you end up right back at the treaty
Three Types of Interpretation





Subjective (Ted likes)
Intention of the parties
Look at travaux
preparatoires (TP)
Negotiating history,
explanations and the
choice
Approach difficult re lack
of records. e.g. Kyoto
protocol = no official
record
Some NGO groups are
now trying to develop a
negotiating history



Objective
Teleological approach
Primary goal is to look  primary goal is to
to the text
interpret in light of
purpose and objective
This is the textual
of treaty
approach
 environmental treaty
Approach of VCLT
 Interpret it in light
of protecting the
environment
 Interpret it to give
effectivity to the treaty
36
VLCT
Article 31
General rule
1.Good faith in accordance with the ordinary meaning with
object and purpose.
2.Context shall comprise, in addition to the text, including its
preamble and annexes:
3. There shall be taken into account, together with the context:
(a) subsequent agreements re interpretation of the treaty
(b) any subsequent practice in the application of the treaty
(c) 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
Recourse to supplementary means if art. 31
Supplementary (a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
37
Treaty Rules: Invalidity and Termination
Invalidity
VCLT at art. 46-52.
1. art. 52 – VCLT – Can’t use threat or force to get treaty to be signed
2. Some states say physical force needed, others argue that this included economics
3. Probably part of CIL
4. China took the view that treaties of a particular era were all invalid b/c they were all
unequal.
Nigeria v. Cameroon
Facts
Nigeria sends PM to sign treaty with Cameroon. Nigeria argued that prime
minister didn’t have authority
Held
Court said Cameroon could take at face value that PM had authority
Termination of Treaties
See VCLT at art. 54 to 62

Intrinsic grounds within treaty (clause)
o Normally terminates by application of its own provisions (fixed term)
o Art 54 VCLT = can suspend in conformity with treaty
- Sometimes set period by time or by action

Extrinsic grounds:
o Ad hoc clauses
- Should x event arise…no more treaty
- Vague grounds “supreme interest” in NPT
o Suspension b/c of subsequent treaty
- VCLT art 57  treaty can be suspended at any time with
consent/consultation
- parties free to decide consent requirements: it could mean a new treaty
 Express termination in new treaty is rare.
- Art. 58 of VCLT  Parties can agree, inter se, to suspend parts or whole of a
treaty.
-
Tacit termination:
 Art. 59
(a) appears in treaty or made clear that it was intended to supersede
(b) provisions are inconsistent with one another
38
o Termination by Application of rules of int’l law:
-
Jus Cogens Rule
 These norms can actually have the effect of amending inconsistent
treaties
-
Denunciation art 60
 Unilateral withdrawal if established that parties intended it as possibility
-
Breach art 60 (in whole or in part)
 material breach of bilateral entitles other to terminate
 MB of multi allows to unanimously suspend treaty
 MB that affects one party allows that party to suspend b/w other party and
itself
 MB will allow suspension if it radically changes threat.
-
Supervening impossibility of performance art 61
 When something changes so obligation can’t be done
 Force majeur may be an excuse
 Rejected in Hungarian Slovak Case
-
Fundamental Change in circumstances (art 62)
 rebus sic stantibus:
(a) if existence of circumstances constituted an essential basis of consent
to be bound
(b) and the effect of the change was radically to transform the scope of
obligations still to be performed,
 Then you can terminate treaty (except for boundaries and if you caused
the change)
 Rejected in (Hungarian/Slovak Case)
- Countermeasures
a. Allowed if proportional and you try and negotiate first. (Danube Dam)
Danube Dam Case
Facts
1977-78 Bilateral agreement about Danube b/w Czech and Hungary on
hydro, damns, locks. Both sides had specific obligations. In 1989, Hungary
abandoned work on its part of the D, and citing Econ and Enviro reasons
for not continuing. Czech announced an alt. plan for its part of the D.
treaty. Then Hungary terminatated the treaty in 1992 b/c it would deny
Hungary water on its part of the D. 1993 ICJ gets involved. Lots of
questions about the treaty
39
Held
Issue 1: Was H decision in 1989 not to proceed a failure to comply w/
Treaty
1. Yes, 14-1 it was a breach
2. Hungary was not entitled to suspend its obligations
3. Ecological necessity argument didn’t fly, no basis for that
4. H could have sought negotiations w/ Czechslovakis, but didn’t
Issue 2: Termination
1. Just b/c there is no term clause doesn’t mean you can’t terminate, but
2. H. termination was not valid, necessity argument didn’t fly
Cmt
No CIL that necessity allows for termination
Grounds for termination under VCLT Arguments
art. 61 VCLT - impossibility of perfromance
1. If the thing treatied over no longer exists
2. Not a permanent disappearance or destruction or an
object says ICJ and ICJ says that H could have negotiated
art. 62 rebus sic stantibus
1. If there is a fund. change of circs you can term. the treaty
2. Generally been given restrictive circ
3. Is change essential basis of the consent?
4. Radically different circs
5. H argued political change in Hungary, all plans for Hydro were
not econ viable (communist set-up), looked at new enviromental
law
6. Court reject all of these
Cmt
1.almost no cases supporting art. 62
art. 60 - material breach
1. H said C went out and do some stuff
2. Problems with the timing of the C actions in this case (happened after
termination)
5. H argued that new norms of CIL of environment that had developed by
1992, req’d H to breach the treaty
a. Need to be cautious as new environmental norm
b. Neither H or Slovakia went as far as that
c. In this case an emergence of CIL would not override the bilateral
treaty if it is not directly related to the subject matter
Cmt
Any countries do terminate based on material breach
1. Becomes a prob. in environmental treaties
40
2. If mulitlateral and one country violates, does terminating get you
anything?
Jus cogens (Super CIL essentially)
a. if norm of CIL emerges and it is considered to be JC, the treaty is invalid and
can be terminated
b. Very narrow category – usually slavery, etc.
c. Argument that was not raised but should have been was that environmental
precaution had become jus cogens
Countermeasures
1. As response to breach, you can take action inconsistent with the treaty
2. Have to ask for damages and ask to negotiate first
3. Part of countermeasures have to be to try to induce compliance
4. Proportionality
5. Helpful if countermeasures are reversable
6. ICJ – Treaty still in force, obligation to negotiate in good faith to resolve the
issue
Treaties and Third Parties
VCLT 34 -38
1. Treaties do not bind third parties
2. Treaties can’t create obligations for third parties, but may be able to create a right/benefit
3. There are exceptions
a. Antarctica Treaty
b. Suez Canal Treaty
c. Panama Canal Treaty – Right of transit for 3rd parties
This only becomes right if translated by some collateral agreement.
 However, there are some
o 1. Unless interference with right, third state has no right of redress, even if the treaty
affects it detrimentally.
o 2. Non-intervention may give rise to some right of redress (See UN Charter, CIL)
o 3. Rules of treaty may become international custom (North Sea Cont; LOSC)
o 4. Succession of treaties, sort of.

VCLT art 35 says that an obligation can arise on a third state if both
o parties intend it
o third state has accepted it in writing

VCLT art. 36 says a third state can derive a benefit if both
o parties intended it
o third state agreed, however, presumption of agreement

VCLT art. 37 says
o obligation may be revoked or modified only with consent of third state
o right cannot be revoked unless it was intended to be given that possibility + consent
41
Treaty Rules: Conflicts
1. Treaties that conflict with each other
2. e.g. CITES (Lots of countries 100+ parties)
a. WTO says you can’t have trade embargo
b. CITES is to stop endangered species
Which Treaty takes priority?
1. If Country and A and B both belong to WTO, and only A belongs to CITES then WTO
wins
a. This is the formalistic law
2. If both parties to both, VCLT would say that most recent trumps the old
a. Formal law
d. TedMcD – informal law would say it is more complicated
f. Specific vs. General
1. Specific will trump general
42
THE USE OF FORCE
Basics: Non-intervention and Prohibition on use of force
Foundation for doctrine
1. UN Charter
art. 2(4) – prohibition on use of force
art. 2(7) – non-interference with the affairs of state
s. 51
– self defence provision
Chapter VII – Legalizes UN to deal with force
2. CIL
a. Some of Charter wording and understanding taken up by CIL
b. Don’t need UN approval to be legal
- But NATO bombing hard to justify
3. Cases
Nicaragua
Iran v. US - Oil Platforms Case
Israeli Wall Case
4. General Assembly resolutions and UNSC resolutions
Non-Intervention
Cassese
1. State can’t decide which organ of another state to deal with
2. May note interfere b/w govt and nationals of another country
3. State may not assist insurgents unless they are nat’l lib movements (CIL)
4. Some arguments that Economic force may be proscribed if coercive
Prohibition on Threat of Force
Cassese
1. Ban is absolute and all-inclusive
a. Except Chap VII (collective enforce), art. 51(SD), art. 53 (regional agencies)
2. Only military force proscribed
a. Brazilian amend to add economic rejected
3. Only inter-state use of force banned
Currently
1) Force or threat may not be used against states or people having representative (e.g.PLO)
2) Assistance to rebels may be regard as threat of use of force but not armed attack
(Nicaragua)
3) Force must not be used to forestall and imminent attack –no anticip SD
4) SD must not be used to repel indirect armed aggression
5) Extreme econ coercion amounting to threat to peace are prohbited
43
UN Peace and Security Structure
Chapter VII – breaches of peace, acts of aggression
art. 43 – UN Standing Army by agreement (no agreement ever, premise does exist)
UNSC Cannot
 Order troops or require
 Req UN Command
 No Legal capacity to act alone even if they want to
UNSC Can
 Request troops
 Authorize states to act
Process
art. 42 – UNSC may take action by forces as may be nec. to maintain or restore
“international peace and security”
art. 39 – UNSC “to determine existence of threat to beach, breach of p. act of aggress.
a. Act of Ag. Rare – but – RSA-apartheid, Israel attacks on neigh. states
b. breach of peace – Iran/Iraq War
art. 40 – UNSC may make provisional measures (e.g. sancs) before force
art. 41 – UNSC to decide types of non-force measures
Process is the ad hoc arrangement
1. UNSC uses Chap. VII as a whole
a. Auth states to assist S.Korea - not clear in c. 7 where that comes from
2. UNSC authorizing Iraq War I – “all necessary means”
a. Not in Charter, but it’s the std now
NB- Could make an argument that becomes CIL b/c of state practice
Shifts in Force in 1990s
Balance b/w state sovt and humanitarian
Somalia- “all nec. means” to protect relief effort (no time limit)-true humanitarian effort
Rwanda - Chapter VII, “all nec means” to protect civilians- took too long
Haiti – Chapter VII auth states to form multilateral force use “all nec means” to facilitate
the departure of military govt –1st use of Chap. VII to restore democ
Yugoslavia – Use of force under UNSC – but time limited and very specific sits
44
Peacebuilding
“all nec means”
East Timor – Australia
Afghanistan – UNSC use of force
Kosovo- Macedonian – UN has authorized
1. Shift away from strictly humanitarian like Somalia
2. Security Council has taken broad (and fluid) view of what “Int’l peace of security”
3. Pushback from China (state interference concerns)
4. No judicial review of Chp. VII use
5. UNSC has no obligation – no consensus on change
Responsibility to Protect (R2P)
Create threshold of when UNSC is obliged to recognize need for humanitarian
intervention
1. UNSC must recognize, but UN member states must respond by providing forces (not
explicitly statement)
Criteria: right authority, just cause, right intention, last resort, proportional means and
reasonable prospects.
Implied auth. of Use of force
General view is that you must have express auth from UNSC for use of force
a. Easy to say that this is the practice, could argue its CIL, but no doc to prove
1. If state does something by UNSC and state fails to do that, does that imply a use of
force, especially if the implication was made clear?
2. UNSCR1441 – US argues justification
a. Iraq failed to do what it should, so there are “serious consequences”
b. US argues “serious consq means “all nec means”
c. France and others argued that more was needed
3. US and UK maintained no fly zone pursuant to an implied UNSCR
a. Iraq’s continued breach of ceasefire gave auth for use of force
b. No country objected to this
4. TM- hard to come to US conclusion, the wording is pretty weasely
a. says “recalls” that force is necessary as opposed to “decides” which makes it
more difficult
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Unilateral Use of Force: Self-Defence
Self-defence (art. 51)
1. Does it apply where you are recovering lost property
a. Is Falklands War (liberating that which was yours) caught by the
prohibition of use of force
Civil War (not usu)
Use of Force to protect nationals (prob no basis, req to let embassy officials leave)
Pursuit of Democracy (OAS invite US to Panama)
Self-Defence Intro
s. 51 – indivdual or collective self-defence
a. Narrow view that s. 51 reqs armed attack
b. Also that “inherent right” precludes reliance on CIL
c. Or “inherent right” means that Charter endorse existence of SD outside of CIL
2. Under Narrow view – if armed attack occurs, comes out of WWII occurance (i.e. state
v. state)
Test: Necessary and Proportionate?
Israeli Wall
Facts
Israel built wall around Pal. argued that wall was SD
Held
1. No “imminence of harm”
Oil Platforms
Facts
US using navy against Iranian oil platform in P. Gulf
Held
1. For SD there must be an “armed attack”
a. Burden of US to show “armed”, US had no phys evidence
2. Must necessary and proportionate – US actions not
Cmt
1. Narrow reading of SD
46
Pre-emptive SD (Bush Doctrine)
How imminent? - Imminence is very much in the eye of the beholder
PSD could be impossibly wide.
Nicaragua intentionally left the matter unresolved.
1. Israel argued PSD in attack on Iraq nuclear facility 1981 (killed two French guys
a. Israel said develp bomb and Iraq claimed to be at war anyway
b. UNSCR 487 19 June 81 – strongly condemned – only US and UK sit out
Six day war – UNSC didn’t blame anybody- UNSCR 233, 6 June 1967
US Bombing of Libya – Reagan said “pre-emptive” for café bombs
a. only UK supported, but no Res. condemning
2. Prior to Bush both US and UK showed some support for PSD in undefined circs
a. US and UK in Iraq scenario unclear how much they’ve rested defence on SD
or on UNSCR 1441 (UN Resolution)
3. Traditional SD vs. stateless terror
a. US action after Sept. 11 in Afghanistan based on SD
- Attacks against harborers justified
b. Process for UNSC to acknowledge but not endorse SD
a. US got UNSC resolution to ackg. US action in Afghanistan
b. UNSC Res recognizes US SD in Afghanistan and 9-11
c. Statelessness and lack of def. of terror is a problem
d. UNSCR had sweeping support for UN Res.
c. Fact that SD could now be used to deal with Terrorism was a big departure
a. US thought impt to broaden this notion of SD for deterrence and get
support for PSD
b. TM- PSD might be restricted to terroism and not okay in state to state
d. Afghan response proportionate?
4. US extended SD to “axis of evil” – Iran, Iraq, and North Korea
a. Unclear if the law supports this
5. Arg: Right of SD in terrorism cases only exists where UNSC has recog and
affirm (UNSCR of Afghanistan)
a. Not an indep right in CIL, but you need UNSCR
b. US probably would like that
47
6. SD is not subject to a lot of constraints (states want flex)
a. TM-general theory of what goes around comes around
7. Argument that impt to have the law even if you know it will be broken
a. High ground
b. May deter
c. Or, it may delegitimize all laws
New Proportionality: not to specific attacks but to object of those attacks, i.e. – get rid of
terrorism.
Humanitarian Intervention
Part of the literature that sug. except for intervention for humanitarian purposes
1. Very little legal support for this
2. Arguably the NATO bombing in Kosovo would fall into this category
3. US and UK no fly zone might be justified
4. But this opens up all sorts of problems
5. Literature seems to say that you need UN sanction
6. Highly problematic, but very emotional
Malcolm
1. NATO seemed to justify Kosovo with mix of implied UNSC and humanitarian
arguments
2. Supporters point to earlier interventions
- India to support self-determ in Bangladesh
- Tanzania overthrow of Idi Amin
- Vietnam and Khmer Rouge
3. At ICJ Belgium argued jus cogens for intervention in Kosovo
4. UK Principles to Sec. Gen – should intervene but with overwhelming evidence
a. collective, proportionate, urgent, object no alternative.
Brownlie
1. Rejection of Humantarian Intrvene -Ministerial declration of Group 77 (132 countries)
2. No-fly zones and ECOWAS in Liberia both don’t fit as justification
a. No-fly problematic, Liberia – part of regional peacekeeping
48
State Succession

Governed VCLT and General Principles of Int’l law
o Very little useful law on the area just a treaty not in force
 Treaties dealing with land boundaries run with the land (Libya/Chad Case ICJ)
- Emerges largely from practice in Africa and Latin America
- uti possidetis – pre-existing colonial boundaries become those of new states
- This is despite fact that boundaries were often administrative
o Boundary treaties flow into successor states
o Hungary/Czech case – S not successor, but take over treaty b/c the treaty is
with the territory of the Danube - water
o Difficulty is determining when treaties deal with rights to land
- Suceeded Qc would have same boundaries
Article 73
Cases of State succession, State responsibility and outbreak of hostilities
The provisions of the present Convention shall not prejudge any question that may arise
in regard to a treaty from a succession of States or from the international responsibility
of a State or from the outbreak of hostilities between States
4 Scenarios of State succession
1. Colonial Power Leaves/New State Created
 e.g. East Timor, Portugal and Indonesia
o what about portugese treaties from before
 States emerging from colonialism generally have clean slate
o Bi-lateral treaty, both have choice to continue.
o Multi-lateral treaties, the new country is not automatically a part of it.
2. Dissolution of Annexed part of previous confederation:
 Soviet Union blows apart
o Treaties of Russian federation
o Normally believed that parts were bound by treaties entered into by Russia
 Less clear than colonial situation
 Balkan states have been treated as being clean slate cases
 Ukraine, etc., the “Stans” are not entirely clean slate
o US has argued that old treaties should continue to apply.
o EU, UK, Jap., etc. want arms control.
3. States splitting apart: No successor
 Yugoslavia: Slovenia, Croatia, Bosnia and so on.
 Ethiopia/Eritrea
 No good law on this
 Serbia/Montenegro has argued that it is successor
49

o Court has treated each of the bits as new states
Czechs and Slovaks are both considered to be successor states.
4. States coming together: Unifying States
 East/West Germany In case of Germany, most previous agreements were
respected
 Korea reunifies
General Rules (CIL)






New state does not succeed automatically if treaty closely linked to relations of
predecessor state
Territorial rights, boundaries, etc. automatically transfer
When absorbed through unification. Treaties of absorbed will lapse and absorbing
apply. – e.g. Germany
New state normally succeeds to multilateral treates
Transfer of part of territory will not transfer treaties
A new state will not succeed to IGO if predecessor still exists (e.g. PRC and
Yugoslavia/serb-montengro)
e.g. Break up of Former Yugoslavia
 F: by 1993, Yugoslavia was broken up; Serbia/Mont claimed to be successor
 Bosnia/Herze, Croatia, Macedo. Slovenia
Hungry v. Slovakia (ICJ case)
Facts
1977/8 entered into a bilateral agreement to build a damn on the Danube
Held
1. Slovakia was a successor state on this particular treaty
a. b/c of river boundary
Quebec Separation from Canada and Treaties?
 Quebec says that it would stay with all of treaties but is this so?
 Art. 34 of ILC Draft Treaty Succession Convention gives support for Que
 However, not necessarily customary norm of int’l law
 Might be questions in situations where Canada must consent (NAFTA)
50
APPLICATION OF INTL LAW IN CANADA
- Two Models for absorbing IL, Canada is usually dualist
- Cdn approach to CIL very fuzzy
Dualistic Model
1. IL and Dom. Law completely different
2. Court can only deal with domestic law, not obligated to consider IL
 except – “heroic” interp (UN Headquarters Case (PLO Office) – judge said
Congress did not seek to legislate in a manner inconsistent w/ IL obligations of US -
3. Court should not be directly applying CIL b/c it undermines Cdn law
4. Govt determines Intl Legal Obligations, Courts can’t give consent
5. You need transformative act for IL to get into Canada – legislation that implements it
Monistic or Adoptive Approach
1. Direct relationship b/w PIL and Cdn law
2. Domestic Court can rely on PIL (Trendex v. Nigeria)
3. Supporters
a. Cdn law must be applied in a way not to breach Intl obligations
b. Certain expectation that what govt says and does and is binding on it
should be able to be relied upon
c. Seamlessness b/w public Intl and domestic law
General Canadian Approach to Treaties
1. Usually dualistic
2. Persuasive, but can’t be relied on in court (all cases say this), unless statutized
Constitutional Basis
1. Royal Prerogative, Fed has power to make treaties
2. Feds can’t implement though (if prov jurisd.) (Labour Conventions)
Labour Conventions Case (1937)
Facts
Suggestion that 1931 Stat of Westminster that Canada free to make
treaties, and so to implement. Fed govt having lost on bring leg through in
1924, then tried to bring it forward on treaty basis.
Held
1. PC said can’t do this, can’t use treaties as a head of power
2. Feds cannot bring leg in if it overrides an area of prov juris.
Cmt
1. Aust. HC overturned case, feds now have power to enact
51
2. Cda rarely backs off obligations, but often waits to ratify
Canada and CIL
1. Status is ambiguous after (Re Foreign Legations)
2. Statutes should be read wherever possible so as not to breach Intl obligations
(Van Ert, Currie)
3. Arg that Baker stands for prop. that IL is context not presump of conformity
Nfld Case
Held
1. Court dismissed concept that CIL could be used to invalid domestic law
2. No such thing as judicial review of statute b/c of CIL
3. Canadian law prevails over IL (custom and treaty)
Baker SCC (1999)
Facts
Deportation Order for women to Jamaica. Should Best Interest of the child
be the primary factor in making decision. Applicant relied on art. 3(1) of
Conv. Rights of Child (rights of child primary factor). Treaty binding on
Cda, but no federal implment legislation.
Def.
B/C of treaty, legit expectation that it would be applied internal
TJ
1. Legit doesn’t give rise to substantive right
Held
L’H-D
1. Direct application of Rights of Child (at para 69) was not on
2. (para 70) Values in Intl HR law may help inform context
a. Limited extent to inform contextual approach to stat. interp.
Cmt
1. Aust. case held that legit expectation was a good idea
52
Spraytech v. Hudson (SCC)
Facts
Town bans pesticides that are legal in Qc. and Canada. Town argued that
it acted in accordance with IL and precautionary approach to
environmental law
Held
1. Court sides with town
2. para 30 –“consistent with intl law and policy”
3. This case is about statutory interp.
4. L-HD when dealing with stat intepr you can rely on IL to a point, that is
the legal context with which things should be interpreted.
Cmt
1. L-HD looks to see if there is an Intl principle of pre-caution
a. Ted’s view – Dangers of having SCC deciding what IL is, esp.
where it hasn’t been argued
b. L-HD looks to ministerial declaration by Lucien Bouchard in
Barrie in 1970
c. Other stuff they look at David Vaderschwag alleges it is CIL
d. Very little state practice to back this up.
Ahani Case (OCA)
Facts
Guy facing UN-HRC asks Canada for stay of deportation
Held
1. HR commitments of Canada were found to inform the context of s. 7 of
the Charter (how fundamental justice is to be understood)
2. Intention of Def. is to enforce of UN-HRC
3. No leg implementation and UN-HRC said it was not binding by its own
treaty
Cmt
1. Intl law as informing context
Suresh (2002) SCC
Facts
Deportation to torture situation
Held
1. Prohibition on torture reflects and international norm
2. Sent issue to be reexamined b/w balance of Cdn security and torture
3. IL rejects deportation to torture, not binding, but informs s. 7
53
Quebec case v. Canada (QCA)
Facts
Federal Youth Court Justice Act are inconsistent with Rights of Child.
Held
1. Treaties do not have a direct part of Canadian law
2. How do you deal with leg that is contrary to IL?
a. Clear legislation (fed or prov) can be inconsist with treaties/IL
b. But a presumption that govt does not intend to enact legislation
inconsistent with its international obligations
c. Domestic repercussion of not following IL is nothing, but may
give rise to liability at the Int’l level
3. View of treaty might inform understanding of s. 7
Cmt
1. Case lays out how Cdn law and IL works together.
54
INTERNATIONAL DISPUTE RESOLUTION
A state cannot be forced before any kind of adjudicatory body without the
consent of the state.
Methods of Dispute Settlement
Art. 33 – Charter supposed to resolve disputes peacefully- “Good Offices”





Mediation
IGOs Intl Orgs provide a venue
Fact-finding
Conciliation
Arb. is the least impt
1. Countries very reluctant to have 3rd parties to get involved (don’t want to give up
control)
2. Engagement with 3rd parties on occasion
1. Stalemate, Good Offices can sometime help
2. Public Opinion can play a role
3. Need for progress
4. Issues like if you don’t resolve it all the fish will be gone, motivates mediation
5. Great way to remove a minor irritant
a. e.g. St. Pierre et Miquellon – Have to get resolution, mediator failed
1. Had to get France to go to arbitration
b. e.g. Canada and US
1. One of things minor, and regional that just kept cropping up on
the agenda
6. 3rd party brings impartiality
7. 3rd Party often brings finality
8. Political ability to blame loss on the court is impt
International Court of Justice
1.1899 and 1907 – Permanent Court of Arbitration, then PICJ
2. UN in its structure borrow heavily from US constitutional structure
3. If you are a UN member not automatically a party to Statue of ICJ
Structure

16 judges elected by maj in UNSC and GA, UNSC member (perm.) have guaranteed seats
and veto (9 year term) – very political process
 Rep. major legal systems of the world
 West Eur and Other (Cda, Austl), 2 from E. Europe (incl. Russia), US, UK, 6 from Afc & Asia
 Right to appt ad hoc judge when you go before court
55
ICJ Jurisdiction
art. 36(1) – Provides Consent in Compromis or Compromissory clause
1. Consent comes from binding treaty
a. Called a “compromissory clause”
b. clause is embedded in treaty
c. Often wording will say MAY use ICJ = no juris. b/c consent not clear
2. Compromis – two countries get together and agree court has jurisdiction
a. Usu. no debate about juris. in that case
b. Was exchange of letters intl treaty that giving ICJ juris? Court said Yes
art. 36 (2) – Optional Protocol
1. Country can agree that ICJ has compulsory jurisdiction (act as compromissory clause
2. You have got to agree separately clearly that you agree to 36(2) and to juris of ICJ on
disputes involving you.
3. Canada agrees to 36(2)…except for these specified disputes (Spanish Fisheries)
a. Arctic Waters, Fisheries Case
b. Other countries can rely on our opting out if we wanted to sue for instance reciprocity
art. 36(1) and art. 36(2) are independent from each other
art. 36(6) – Court determines its own jurisdiction (ICJ only open to states)
a. e.g. Taiwan can’t participate
56
Canada v. Spain – Fisheries
Facts
Cdn arrest seizure of Spanish fishing trawler outside the 200 naut. mile
limit, according to Cdn law that had been passed recently. Canada had
previous to this (1991) entered a reserve that said that Canada accepted
the juris. of the court, but not in cases regarding the fisheries. Spain
applied to ICJ for a declaration that Cdn action was illegal. Canada
exempted ourself from any compulsory juris. Under 36(2) was the only
way to get Canada. (Canada not a party to law of the sea at the time). p.
108- Declaaration from (d) issues to do with fishing.
Sp. Arg.
1. Not as a fishing dispute, but as arrest on the high seas.
2. Reservation of Canada was a nullity b/c it undermines the effectiveness
of the court.
a. Prob. – Would it vitiate the juris of the ICJ itself
Held
1. Canada able to convince court that action related to vessel fit within the
wording of the restriction.
a. Canada had not consented to this type of dispute
b. s. 36(2) invoked
Cmt.
Point – Interp of restrictions on compulsory juris, usu. interpreted
narrowly
1. If Spain sued now that Canada is part of law of the sea convention, then
b/c 36(1) and 36(2) are independent, Spain could get jurisdiction that way.
Cmt
57
Serbia/Montenegro v. Canada (Yugo Bombing)
Facts
Serbia sought recourse against NATO, for NATO’s use of force. About 12
cases put forward, none of case went forward on the merits. Case
commenced in 1999 by Fed. Rep. of Yugo. In 2000,
Serb./Montenegro(Fed. Yugo) became part of Stat court of justice
Serbia arg.
1. Could get to court through s. 36(2), said they(Serb) signed onto in 1999,
but how could they sign on if not members of UN, or a recog state?
2. Are situations under 35(2) ICJ Stat provide that even if you are a nonstate you may have access to the ICJ if there was a compromissory
clause in a statute in force, but only for treaties in force.
a. Serbia said this was open to any treaty, like Genocide
Convention
Canada:
This only applied to treaties in force in 1946, when ICJ Stat was signed.
a. For future treaties you had to be member of ICJ member.
b. Problem - Serbia not seen as successor state to Yugo
Held
1. Serbia while they may have tried to join ICJ Stat., they were not a state
2. At time of filing of the acton, Serbia was not subject to Opt. Protocal
a. Couldn’t use 36(2)
3. After Serbia became part of UN, couldn’t do anything b/c bombing was
a continuous event, and filing of case predated membership in ICJ (so
36(2) not okay)
4. Under Genocide Convention there is a compromissory clause that says
dispute goes to ICJ under 36(1) --- ??
5. Canada was successful
Cmt
1. Under ICJ Stat. Country can seek interim order of protection (like a
temporary injunction)
a. In this case they wanted the bombing to stop, if there is juris.
b. None of cases was interim measures granted
2. To use 36(1) you have to be a party to the statute
a. Incl. compro clause, bilateral, multilateral
b. Except – if treaty with compromissory clause predates the ICJ
stat, then you don’t have to be party to the Stat.
58
Nicaragua v. US
Facts
Nicaragua argued optional protocol and bi-lateral treaty with
compromissory clause. US was mining the harbour. US did not agree to
go to the court. US (was at that time) had made their declaration under
36(2). Nicarag. signed the PCIJ Stat in 1939. At time of singing declared
they accepted compulsory juris. (Ratification still req’d). In 1930s Nicarg.
sent instrument of ratification (unclear if it hade been received, and
unclear if Nic. became a party to the PCIJ, legal status unclear).
Nicaragua signed and ratified ICJ Stat. w/o ref to their position on the
optional protocol.
Held
1. Court had jurisdiction on two bases
a. Can have juris under 36(1) or 36(2)
2. Court said that declaration made for PCIJ carried forward.
a. Court looked at fact that in ICJ docs themselves, the ICJ always
listed Nicaragua, so court declined to take technical approach here.
3. Court also suggested that fact that Nic. itself say its name in light under
36(2) had acquiesced to it, and that that was suff enough understanding
that you didn’t need a declaration. Fact that country had name on the list
put out by ICJ, and not objected.
4. US had in its declaration – US is trying to reserve out – if dispute arises
under multilateral treaty, then all parties of treaties must be before court
a. Court rejected this (“affects other parties”, is merits issue)
b. Everybody in the UN has to show up? That is way to many
people, nonsensical
5. Timing Issue with Optional Protocol
a. Countries want to change declaration before the court action
begins to opt-out
b. Days before case launched, US attempted to modify its
acceptance of compulsory juris to add “no case involving Latin
America”
c. Court held this didn’t work
d. US said you have to give six month notice if you pull out
1. Court said that six months applied to modification AND to
cancellation (In this case modification is essentially
cancellation)
e. Nic. didn’t have six month notice req., US argued that US should
be allowed to get out of six month notice too, b/c of reciprocity
1. Court – Reasonable time is to be implied (can’t have
instantaneous
2. Court – What does reciprocity attach to
a. Based on previous cases
b. Time limits not subject to reciprocity b/c they were
only procedural matters, and therefore US couldn’t
rely on Nic.’s “reasonable notice” alone
6. Court found that they did have jurisdiction b/c of Optional protocol.
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Nicaragua – US arguments
US Arguments
Number 1
 Other Latin American countries are indispensable
 No
 Cmt: Some evid for argument – Port v. Aust for viol. in Indon. –ICJ – Indon
indispensable and couldn’t be before court so no juris.
Number 2
 This is peace/non-peace under UNSC jurisd. – separation of powers
 Held – UNSC has diff jurisd., but not exclusive
Number 3
 Collective SD
 Held – US seems to have been acting on its own
Number 4
 Not proper for ICJ to meddle in ongoing conflict
 Held – ICJ ruling might help, might make facts difficult, but doesn’t kill jurisd.
Number 5
 Process in place to make peace, ICJ interfere can harden positions
 ICJ said that is not really important as to whether we have jurisdiction.
On Merits
1. US violated CIL by aiding contras
2. Interfered with internal affairs - Attacks directly attributable to US
3. Laying of mines in internal waters also violation
4. US should cease and pay reparations
Aftermath of Nicaragua
 US refused to give consent to ICJ proceedings
o Beginning of US viewing IL as impinging on them – only “political” uses
 Historically, only jurisd. where it was very clear, ICJ less cautious now
Enforcement: done by UNSC
Non-Appearance
1. Almost a litigational strategy – Iceland first to do in 1970s
2. Other cases since then, doesn’t matter domestically
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Court’s Advisory Opinion Power
Article 65
1. May give advise opinion under UN Charter
2. Questions upon which the advisory opinion of the Court is asked shall be laid before
the Court by means of a written request containing an exact statement of the question
upon which an opinion is required, and accompanied by all documents likely to throw
light upon the question.
Key Points


Must be legal matter, no binding judgment, not an adversarial process
art. 66 – States can submit views on issues but there are no parties to these
cases. Can’t stop cases from going forward (e.g. Western Sahara)

“The purpose of the court’s advisory jurisdiction is to enable it to give legal
opinions at the request of international organizations” (Merrills)

Court needs to consider the object and purpose of the request, the origin and
nature of the dispute, and the adequacy of available evidence
Legality of the Threat or Use of Nuclear Weapons (1996, ICJ)
Is the threat or use of nuclear weapons in any circumstance permitted under
international law?” [GA submitted question under art.96(1) of UNC]
 Political aspects of the question did not deprive the Court of its competence to
consider the legal questions (similar to rejection of US argument in Nicaragua v US)
Held
1. UNC art.2(4) (attacks against another state inconsistent w/ purposes of
UN; dealt w/ “threat” and “use”) and art.51 (self-defence; necessity and
proportionality) and art.42 (UNSC military enforcement in conformity w/
Chapter VII)
2. Wording of SD doesn’t prohibit or permit particular weapon – neutral.
3. Mere possession of NW not illegal, but threat a problem under art. 2(4)
4. Many treaties about having them but not enough to create blanket –
prohib
5. 8-7 Decision – use of NW would be contrary, but might be okay if
EXTREME case of SD
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Israeli Wall
Referred by UNGA
Held
1. Concerns about legitimacy
2. Bilateral aspects, but also multilateral
Jurisdiction arguments
1. Political not legal question (Nicaragua)
2. Proprietary question
 Israel’s non-consent did not vitiate an advisory opinion; looked at
larger context
 Decision wouldn’t interfere w/ whatever negotiations are possible;
 Effectivity concerns should be directed at GA b/c they referred
Held
Merit arguments
1. Legality of the construction of the wall
 Israel - “occupying power”
 Territorial acquisition inconsistent w/ UNC
 GA Res. that W. Bank settlements themselves were illegal violations;
self-determination; IHL; human rights treaties
 Court dismissed self-defence and security on account of the lack of
proportionality
Legal consequence of the construction (unu. discussion)
o Israel must respect right of Self-Determ., cease construct, respect
humanitarian treaties.
o Other states must not recognize the wall/recognize its illegality
o Must not render assistance to the construction of the wall
Cmt
1. Canada said ICJ should deal with case – political ends
2. Is Canada promoter of IL or resolver of disputes
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ICJ and Interim Measures
 Under ICJ statute, a country can ask for interim or provisional measures of
protection
 Art. 41: Provisional Measures  preservation of parties rights pending hearing
 Art. 73 of the Statute of the ICJ
o Something like injunctive relief.
o But ICJ has been resistant to use of interim measures
 Court essentially looks for prima facie jurisdiction
 Series of case coming out of Law of the Sea that have interim measures stuff:
Frontier Dispute Case
 Burkina Faso and Mali fingth
 Court ordered ceasefire and withdrawal of troops from frontier.
Aegean Sea Continental Shelf
 Near War b/w Greece and Turkey
 Crt did not order intermim measure b/c Security Coucnil had already.
Yugoslavia v. Canada
 F: Yugoslavia wants intermim measures imposed on NATO coalition bombing
 Bombing began in March, Yugoslavia deposited declaration in April
 Canada said you can’t accept jurisdiction through protocol after conflict has started
 Also question as to whether Yugoslavia was part of the Genocide convention.
 Held: Court says that there is not jurisdiction because dispute arose before desposit
 Also held that no prima facie case for genocide convention.
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What is the role of the ICJ?
Australia v. Portugal –is an indispensable parties doctrine
World Health Organization – they can ask questions but only within their jurisdiction
Israeli Wall  advisory opinion – GA quite clearly has the authority to ask the question
Nicaragua
1) Promoter of Law
2) Resolving disputes in a legal context
Comments
1. Not mutually exclusive
2. How legitimate is the court here
3. Should the court be making judgments that no one listens to?
a. Too far in front and law will be disregarded
b. But stds are good in some areas, e.g. Humanitarian law
c. e.g. Nigeria v. Cameroon, unlikely that Cameroon will comply
WTO Tribunal
1. Compromissory clause allows one party to drag other into Arb.
2. Actually lots of cases
a. In the area of domain name disputes and passing off, almost completely
disappeared from domestic courts
3. Developed system slowly under GATT, not treatified until WTO
Law of the Sea convention (again no detail)
1. LOSC has very complicated process and structure
2. For certain types of disputes there is a compromissory clause saying thou shalt
adjudicate. Oddly -Options
1. ICJ
2. Law of sea tribunal
3. Some other thing
3. LOSC – spent lots of time negotiating an elaborate dispute resolution process – if we
build it they will come: but they don’t.
a. Suggests that the evolution model might have benefits
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JURISDICTION
May be defined as the authority to engage in activities of control or regulation within a
certain geographic area
 Characteristic of statehood that depends on control of territory (Island Palmas
Case)
 Right of Control means the ability to limit the legally relevant practice of other states.
Three types of Jurisdiction
1. Internal rules: strongest area of control
- Exceptions such as sovereign immunity
- Absolute control eroded over time, e.g. compensation for exprop.
2. Boundary rules: relate to insersection of other states’ jurisdictions
- Breadth of territorial sea and high seas
- Principles guiding constructive extension of law:
Passive personality principle: jurisdiction exists because extraterritorial act has
caused harm to national of the state exercising jurisdiction
 Someone hurts one of your nationals aboard, you say you have juris.
Protective principle: extraterritorial jurisdiction over activities which are prejudicial
to the security interests of the state.
 e.g. someone tries to overthrow state from outside.
Nationality principle: jurisdiction of state over acts committed by national.
 e.g. one of your nationals does something bad abroad so you claim to
have jurisdiction.
3. External Rules
- restrictions which states seek to impose on the freedom of other states in
their territory
- e.g. US Anti-Trust Legislation, Helms Burton Act, etc.
- States will respond with blocking legislation.
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Territory  Four property regimes:
Sovereignty



Over land Canada has everything:
Exceptions to diplomatic immunity and so forth
some debate over height of air space.
Common
Property Res
Communis



Not possible to appropriate as part of your country
But they are open to all states.
Outerspace and High Seas
Unclaimed Land 
Res Nullius


Common
Heritage of
Humanity
(CHH)




Antarctica: Some part has not been claimed.
Arguments that come up but you have conflict over
claims.
There are conflicting claims
Similar to res communis , but subject to governance by
int’l community.
Managed to benefit humanity as a whole
e.g. Moon Treaty + Sea floor outside of EEZ and/or
continental

Idea arose in the 1960s and 1970s
CHM has become environmental consideration to some
extent
Acquisition of Land
1. Effective occupation argument
2. Treaty argument (Nigeria v. Cameroon)
Canada’s Island Disputes
1. Hans Island (Dk)
2. Machias Seal Island (US)
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Ocean Jurisdiction
Zones Of Jurisdiction
A)
Internal Waters
1. Might as well be land
2. Harbour, waters b/w Vancouver Island and Mainland, rivers, etc.
GREAT LAKES?
B)
Territorial Sea – 12 naut miles
1. Criminal juris extends
2. Absolute juris – above, on and below
3. Subject to Right of Passage
a. Vessel not subject to Cdn law while in passage
b. Only if it’s innocent passage
C)
12 to 200 naut mile limit
1. Air above is open airspace
2. Sea floor is Cdn for all intents and purposes (except laying of sub cables)
3. Fish, whales, etc. are Cdn
4. Foreign vessels have free reign (except fishing vessels)
5. Balance b/w high seas (open seas for anybody) and idea that Cdn has control
for resources
6. Construction of sea floor doesn’t matter, Canada owns
D)
Beyond 200 naut miles
1. On east coast, Cdn has juris over sea floor and resources out to 460 miles
a. Because of continental shelf, b/c of the composition of the sea floor
b. St. Lawrence dumps out sediment and leaves bits
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Canadian Arctic
1. Islands in Arctic are Cdn
2. 200 naut north is Cdn
3. One area toward Denmark where it is likely that Cdn will extend beyond 200 naut on
sea floor
4. Danes made it clear that Geo North Pole is on Danish shelf area beyond 200
Northwest Passage
1. Law is unclear about the Northwest Passage
2. In last 18 mos to 2 years that melting of arctic ice, and consequences this may have
for NWP
3. The waters are unquestionably Canadian
a. Cdn argues that they are historic internal waters, not territorial waters
b. All water enclosed by the islands are all Cdn all the time
c. Whether passage is made easier by melting is irrelevant
d. US view is that b/c these waters connect high seas waters, these waters are
therefore int’l strait
1. If true, then you would have international navigation
2. Would allow passage w/o permission
4. What is an Intl strait
a. Cdn says need Geographic and it has to have been used for Intl Navigation
1. Only 120 passages in the last century
Jurisdiction over Ships and Aircraft
 States can apply their laws to activities which take place on ships and aircraft
registered in their states.
Ships
 Rule is generally that law of place of registration applies
 A vessel flagged in Canada, wherever it goes, is subject to Canadian law
 It could be subject to the law of other states depending on where it is.
Aircraft
 Registered with flag state
 Generally same as ships but more highly controlled by treaty than ships
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Jurisdiction over Individuals
Enforcement vs. capacity to prescribe
Enforcement
1. Can’t enforce in foreign country – violation of territorial sovt
2. Extradition treaties deal with extradition
Prescriptive Jurisdiction (aka Legislative Jurisdiction)
Five Recognizable Bases
1. Territorial
 Covers both when an offence is committed in your territory as well as when the
effects of an offence are felt in the territory (Lotus)
 Not nec. exclusive jurisd.
 Cdn CC attaches to territorial sea
Effects felt in Territory
1. US has broad view of effects (EU starting to do this to)
2. Extraterritorial legn exists (e.g. US Sherman Anti-Trust)
a. If Cdn monopoly is making product and sending to US, that has an
effect in US, so the US can seize assets or arrest if people come to US
b. Cuba
3. Illegal for US to do this? Ted doesn’t know.
a. In Cuba case, it does seem to reach into Canada
2. Nationality
 Deals w/ criminality attaching to nationality – (Cda-CC-treason, bigamy, s.74.1kid abuse)
 Creates conflicts of laws problems (Some EU countries have – France)
 Arg: this interferes with state’s sovt
3. Protective Principle
 Allows states to punish acts directed against the security of the state, even if
committed by foreigners in a different country
 Counterfeiting passports or money and treason
 Some countries take broad view of security
4. Universality
 Areas where CAH, piracy, slavery, aerial hijacking, etc. where Canada has
jurisdiction if the person is in the country, regardless of where the event occurred
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

Obligation under aut dedere aut judicare (prosecute or extradite)
Treaties say you must make is crime under nat law to transport weapons of mass
destruction
5. Passive Personality (aka passive nationality principle)
 Law based on the Nationality of that victim
 Seldom used
 Problematic (Belgian guilty of violate Cdn law in Belg. get arrested in Cdanotice?)
 US has been known to assert jurisdiction based on doing harm to a US person
anywhere in the world
a. Some of US terrorism laws, make it domestic crime if an act of terrorism is
committed against someone from US
Problem with all of these in Intl Law
1. Interference?
2. What are the limits?
3. So you get a CIL understanding of states limiting themselves, or as a question of
comity (not something you should do)
4. Not clear that this is an IL limitation
SS Lotus
Facts
Case where French steamer gets into collision at sea in high seas. Turkish
and French boat. 8 turks killed. Mr. Demons on watch on French vessel.
When French vessel arrives in Turkey. Turks arrest Mr. D. charged him
with manslaughter. Went all the way to PCIJ.
France
1. Jurisdiction
a. Actual legislation and application of legislation took place outside
of Turkey. Mr. Demon was always on the French vessel.
b. Intl Law puts limitation on how you can use your law
Turkey
1. Act is done abroad, but b/c Turk was killed juris flows from victims
nationality
Held
7-6 Turkey
Jurisdiction Point
1. Act causing death clearly done in France
2. Even though France had juris where event took place, this did not
prevent Turkey from having juris. b/c the effects of the incidents applied in
Turkey (on board Turkish vessel)
3. Turkey get juris b/c they also have the juris to enforce.
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Cmt
1. If it is not criminal, it’s private IL and Conflicts
Romania v. Chang
Facts
Taiwan reg vessel, captain and officers. Part of crew were Fillipinos. On
board the vessel were Romanian stowaways who were tossed overboard
on way from Rotterdam to Halifax. Events occurred outside of Canada,
either occurred on high seas. Taiwan crew reveals what happen to Cdn
authorities. Romania sought the extradition of captain and crew of vessel.
Issues
1. Can Cdns do anything with this in Criminal Law?
Held
1. No real basis for jurisdiction, not even any effect in Canada
2. Events did not occur in Canada and there were no Canadians involved
3. Reference to jurisdiction in the Act dealt w/ “territorial jurisdiction” and
b/c of that it would necessitate the alleged crimes to have been committed
“within the geographical boundaries of Romania”
4. Court rejected Passive Personality principle b/c of how the legn was
structured and how “jurisdiction” is treated generally in the world
Concurrent Jurisdiction
Libman
Facts
Held
LaForest
Cmt
Boiler room making calls from Toronto to US selling bogus shares in
Costa Rican goldmine. Money all went to Panama. Libman charges with
Tel. fraud in Canada.
1. Non-interference in internal affairs of other states is a concern
2. Effects is part of territoriality
3. CC provs don’t apply outside of Canada
4. Looks at all connection in effect.
5. If prosecution takes place in Canada, will this upset people in IL
6. Effects require “Real and substantial links” – Limit on Territoriality
a. In this case there is b/w Libman and Canada
b. Def. made calls from Cda
1. Puts limits on territorality
2. Fact that US can’t prosecute Libman in Canada (b/c he’s in Canada), so
they want Canada to prosecute (TM- this shadows the decision a little bit)
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Extradition
Jaffe
Facts
Held
Alvarez
Facts
Charged with fraud in US. He fled back to Canada. Bounty hunters came
and kidnapped Canadian in Canada, and took back to US to stand trial.
Canada interceded. Florida courts took a long time to sort this out.
1. Canada able to convince Florida to let Jaffe go
a. They granted bail to Jaffe and he fled
b. Florida just chose not to prosecute.
2. Bounty hunters arrested in US and extradited to Canada, found guilty of
kidnapping
Mex. doctor accused of engagement with cocaine. Had been removed
from Mex. by DEA.
Issue
Can US criminal courts deal with this guy since he was kidnapped by the
US govt.
Held
1. Rehnquist – Yes there is an extradition treaty, but nothing in extradition
treaty prevents abduction
2. No IL to say that abduction is inconsistent with IL
a. TM – probably accurate
3. Even if it were against CIL, isn’t an issue for US Courts
4. Courts don’t look behind how person they got there (unless
Constitutional issues)
Dissent
1. Took view that US invaded Mex
2. Outraged by blindness to due process
3. Extradition treaty is not ‘a’ method, it is ‘the’ method
72