TITLE TO LAND... 5 OCCUPATION AND PRESCRIPTION... 5 Possession... 5 Administration... 5 Occupation or prescription?... 5 CONQUEST... 5 SECESSION...

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1 TITLE TO LAND... 5 OCCUPATION AND PRESCRIPTION... 5 Possession... 5 Administration... 5 Occupation or prescription?... 5 CONQUEST... 5 SECESSION... 6 ACCRETION AND AVULSION... 6 SELF-DETERMINATION (NOTE: PART OF IL NOT MUNICIPAL LAW)... 6 EVALUATING STATEHOOD... 6 RECOGNITION OF STATES AND GOVERNMENTS CONSTITUTIVE OR DECLARATORY... 7 AUSTRALIA S RECOGNITION OF FOREIGN GOVERNMENTS... 7 TERRITORY (I.E. TERRITORIAL SEA, JURISDICTION OF FOREIGN SHIPS)... 7 INTERNAL WATERS... 7 TERRITORIAL SEA... 7 JURISDICTION OF FOREIGN SHIPS (INCLUDING WARSHIPS AND GOVERNMENT SHIPS)... 8 CIVIL JURISDICTION... 8 OTHER MARITIME ZONES (CONTINGUOUS/EEZ)... 8 CONTINENTAL SHELF... 8 HIGH SEAS... 9 AIRSPACE, OUTER SPACE... 9 ANTARCTICA... 9 INTERNATIONAL ORGANISATIONS... 9 ICJ IN REACHING JUDGMENTS SOURCES OF LAW RELIED ON BY COURT ART.38(1)(C)! GENERAL PRINCIPLES OF LAW, INCLUDES: ESTABLISHING CIL REGIONAL CUSTOM NEED TO PROVE STATE PRACTICE OPINIO JURIS TREATY CRYSTALLISING INTO CUSTOM PERSISTENT OBJECTOR TREATIES GENERAL PROCESS CREATING/SIGNING/ACCEPTANCE TREATY RESERVATIONS OBSERVANCE AND APPLICATION OF TREATIES THIRD STATES TREATY INTERPRETATION VALIDITY OF TREATIES TERMINATION OF TREATIES When breach not fundamental PROVISIONS ON INVALIDITY, TERMINATION AND SUSPENSION MUNICIPAL LAW IN IL MONISM VS. DUALISM (AND THIRD SYSTEM) INCORPORATION VS. TRANSFORMATION

2 UK AND AUSTRALIA REGARDING CRIMES IN IL UNDER DOMESTIC LAW TREATIES IN AUSTRALIAN MUNICIPAL LAW STATUTORY INTERPRETATION STATE JURISDICTION CIVIL JURISDICTION GENERALLY CIVIL JURISDICTION IN AMERICA (ALIEN TORT CLAIMS ACT) CRIMINAL JURISDICTION Overview Territorial principle: element of offence committed within state territory Diplomatic and consular premises Nationality principle Protective (security) principles Passive personality/nationality principle Universality Absentia and lacking nexus Piracy (and maritime terrorism) Slavery State torture War crimes Crimes against humanity Genocide Aircraft hijacking EXTRADITION ILLEGALLY OBTAINED CUSTODY INTERNATIONAL CRIMINAL COURT (JURISDICTION) Illegally obtained custody (ICC) IMMUNITY FROM JURISDICTION VIENNA CONVENTION ON DIPLOMATIC RELATIONS 1961 (VCDR) CONVENTION HAS FORCE IN AUSTRALIA DEFINITIONS FUNCTIONS OF DIPLOMATIC MISSION INVIOLABILITY OF AGENT/PREMISES/RESIDENCE IMMUNITY TAXATION (AND INSPECTION OF PERSONAL BAGGAGE) DUTIES OF SENDING STATE RIGHTS OF RECEIVING STATE DUTIES OF THIRD STATES FOREIGN STATE IMMUNITY GENERALLY ABSOLUTE IMMUNITY VS. RESTRICTIVE IMMUNITY STATE IMMUNITY IN CIVIL SUITS IMMUNITY OF HEADS AND FORMER HEADS OF STATE Overview Civil actions Criminal actions AGENCIES AND INSTRUMENTALITIES OF STATE POLITICAL SUBDIVISIONS STATE TORTURE IN UK AND AUSTRALIAN COURTS (CIVIL PROCEEDINGS) RELATIONSHIP OF FOREIGN STATE IMMUNITY WITH ACT OF STATE DOCTRINE IMMUNITY BEFORE INTERNATIONAL CRIMINAL TRIBUNALS STATE RESPONSIBILITY GENERALLY GENERAL PRINCIPLES

3 ATTRIBUTION Conduct of state Conduct of army Absence/default of official authorities Insurrectional movement as conduct of state Official vs. private conduct State responsibility for conduct of person/group of persons State responsibility for property destroyed during civil war/insurrection WHEN IS THERE A BREACH OF INTERNATIONAL OBLIGATION? Serious breach by State of jus cogens obligation CIRCUMSTANCES PRECLUDING WRONGFULNESS (WHEN STATE RESPONSIBILITY NOT ENGAGED). 33 LEGAL CONSEQUENCES (REPARATION, RESTITUTION, ETC.) INJURED OR OTHER STATE S RIGHT TO INVOKE STATE RESPONSIBILITY COUNTERMEASURES MISTREATMENT OF FOREIGN NATIONALS Theory of responsibility Standard of treatment of alien RIGHT TO ADMIT/EXCLUDE FROM STATE RIGHT TO EXPEL EXPROPRIATION Generally Property Requirements for lawful expropriation Measure of compensation DIPLOMATIC PROTECTION Generally Obligation? Nationality of claims Dual nationality Corporations and shareholders Exhaustion of local remedies When state takes up claim Compensation USE OF FORCE PROHIBITION OF USE OF FORCE UN Charter Interpretation of UN Charter by GA Resolutions TWO EXCEPTIONS TO PROHIBITION OF FORCE UN Charter Cases generally Self-defence Collective self-defence (same as above) Anticipatory/Pre-emptive self-defence Self-defence against non-state actors (NSA) COLLECTIVE SECURITY UN Charter Notes on UN Charter Humanitarian intervention Responsibility to protect INTERNATIONAL DISPUTE SETTLEMENT UN CHARTER (OBLIGATION TO SETTLE DISPUTES PEACEFULLY) METHODS OF DISPUTE SETTLEMENT (GENERALLY) Arbitration ROLE OF ICJ Contentious jurisdiction

4 Establishing jurisdiction Art.36(2) declarations (and reservations) Self-judging reservations Modifying reservations Reciprocity Establishing Admissibility Absent parties and third states Provisional measures Judgment of ICJ ADVISORY JURISDICTION Statute of ICJ UN Charter, art Generally REVIEW OF SC DECISIONS

5 Title to land Occupation and prescription Has there been possession and administration? Possession Formal act (i.e. planting flag, making proclamation, with intent to occupy) Acts by private individuals without state authority not sufficient (but sovereign can later recognise act) Usually also requires actual settlement But actual settlement may not be required if territory is particularly inaccessible or inhospitable (Clipperton Island arbitration (1931)) Administration Continuous and peaceful display of state authority at the critical date (effectivités) (Palmas Islands) Sovereignty: right to exercise, to exclusion of all others, functions of a state (Palmas Islands) Examples of state authority: taxation (Palmas Islands), rehabilitation of environment (Pulau Litigan), provision of lighthouses (Pulau Litigan), investigation of marine accidents (Pedra Branca), installation of naval communications equipment (Pedra Branca) Extent of proof depends on kind of territory, population (Eastern Greenland) Duration: long enough for reasonable chance of asserting rights Peaceful = acquiescence by other interested states Apply intertemporal law: legal effect of act assessed by law in force when act occurred (Palmas Islands) Discovery alone without subsequent act does not suffice (Palmas Islands) Inchoate title of discovery must be completed within reasonable period by effective occupation of region claimed to be discovered (Palmas Islands) Inchoate title could not prevail over continuous and peaceful display of authority by another State; prevails even over prior, definitive title put forward by another State (Palmas Islands) Principle of contiguity does not apply (perhaps applicable when allotting islands between two states) (Palmas Islands) Occupation or prescription? If land terra nullius then occupation (otherwise, prescription) o Territories inhabited by tribes or peoples having a social and political organisation, not regarded as terra nullius (Western Sahara) o Although was evidence of personal allegiance owed by Saharan tribes to Morocco, there was no political authority of sort associated with sovereignty (Western Sahara) Prescription: acquiring title by possession where territory previously under another sovereign o Adverse possession: exercising sovereign authority over territory for so long that previous sovereign is regarded as having forfeited title o Immemorial possession: for so long that any competing claims have been forgotten Conquest No longer possible (only relevant historically) 5

6 Intertemporal law: legal effect of act assessed according to law in force when act occurred (Palmas Islands) Secession Two means of secession 1. Voluntary secession Government agrees to hold, respect outcome of referendum 2. If people are (Reference re Secession of Quebec) a. Governed as part of a colonial empire b. Subject to alien subjugation, domination or exploitation c. Denied any meaningful exercise of self-determination within their state Populace can make unilateral declaration (not contrary to IL) but does not give right to secede (Kosovo) When country secedes, succeeds to previous country s legal obligations, i.e. treaties, established boundaries Accretion and avulsion Accretion: slow (i.e. estuary island formed by silt deposit) o If international boundary affected, will change with it Avulsion: sudden (i.e. volcanic eruption creating island in territorial waters) If international boundary affected, i.e. a river o If international boundary affected, will not change with it (Chamizal Arbitration) Self-determination (note: part of IL not municipal law) UN Charter principle, customary IL (Western Sahara case) Self-determination is jus cogens and ergo omnes Political future of colonial/similar non-independent territory should be determined in accordance with wishes of its inhabitants (peoples), within limits of principle of uti posseditis o Confirmed in Frontier Dispute (Burkina Faso v Mali) case 1986 In particular applies to territories whose inhabitants arbitrarily excluded from share in government When not a state, has right of self-determination (i.e. choose own political organisation) o Can lead to independence of unit as separate state or incorporation into/association with another state on basis of political equality for people of unit When already a state, principle of self-determination represented by rule against intervention in internal affairs! in particular choice of form of government Evaluating statehood Applying Montevideo Conventions (art.1) 1. Permanent population: no minimum number, includes nomadic groups and international movement of peoples (Western Sahara case) 2. Defined territory: reasonably defined territory with sufficient consistency (North Sea Continental Shelf case), does not include potentially submerged island states (Pacific Microstates) 3. Government: practical identity, effective control, stable political organisation (Aaland Islands Question)! does not apply during civil war where collapse of law and order in state that already exists, includes failed states (but though retains legal capacity, has for all practical purposes lost ability to exercise it) 4. Capacity to enter into relations with other States: can t be puppet state 6

7 Entity/state is legally independent when it is not subject to control by another state or external power (Austro-German Customs Union Case) If it is a puppet state, not independent (French Indemnity) Note: state does not lose its statehood if it no longer can fulfil one criteria Recognition of states and governments constitutive or declaratory Constitutive theory: recognition by other states is precondition to statehood Declaratory theory: recognition by other states does not create an entity s statehood, merely acknowledges it o If state meets four criteria of Montevideo, then is a state (art.3, Montevideo) o More widely accepted (recognition as political and discretionary act) Note: Fact of recognition may still be important in determining actual existence of state from evidentiary perspective Australia s recognition of foreign governments " 1998 policy: Will not extend formal recognition (de facto or de jure) to new governments taking power in other countries. Will conduct relations with new regimes to extent and manner which may be required by circumstances of each case. " Judicial criteria for recognition (Sierra Leone, UK case but steps used in Australia) o Constitutionality of new government; o Control by government over territory; o Dealings on government to government basis; and o Extent of international recognition " Stimson doctrine: recognition of state may not be extended when state created as result of an act of aggression, and is still not independent of aggressor state " De facto recognition: when in possession of territory illegally or precariously (i.e. Somaliland) " De jure recognition: when thought entitled to possess sovereignty but do not (i.e. Palestine) " Without legal recognition, states have no locus standi (no privileges/immunities from jurisdiction) Territory (i.e. territorial sea, jurisdiction of foreign ships) Internal waters Include waters on landward side of baseline of nation s territorial waters, except in archipelagic states o Includes waterways, i.e. rivers, canals, sometimes water within small bays Foreign vessel s authorisation to enter inland waters is subject to laws of coastal State unless flag on ship is same as State Territorial sea UNCLOS 1982 arts.2-15 Up to 12 nautical miles from baseline Baseline: usually low-water mark, except: o Islands with fringing reefs o Coastline deeply indented, or there is fringe of islands adjacent to coast o Bays, deltas, etc. 7

8 o Archipelagic states Coastal state has sovereignty (includes airspace above and seabed and subsoil) All ships have right of innocent passage through territorial sea o Passage : traversing territorial sea or going to and from part o Must be continuous and expeditious o Innocent: not prejudicial to peace, good order or security of coastal state (art.19) Jurisdiction of foreign ships (including warships and government ships) Warships/government ships operating for non-commercial purposes immune from coastal state s jurisdiction o Special rules: arts Warships not complying with laws re passage through territorial sea may be asked to leave Coastal state has limited criminal jurisdiction over other foreign ships in territorial sea for acts committed on board within territorial sea art.27 UNCLOS o If consequences of crime extend to coastal state, or o Drug offences If ship just left internal waters, coastal state can exercise usual criminal jurisdiction (27(2)) No criminal jurisdiction for crimes committed before ship entered territorial sea unless ship enters internal waters (27(5)) Civil jurisdiction More limited (art.28) Coastal state should not stop/divert foreign ship passing through territorial sea for purpose of exercising civil jurisdiction in relation to person on board ship Coastal state may not levy execution against/arrest ship in any civil proceedings except o Obligations/liabilities assumed/incurred by ship itself in course or for purpose of its voyage through waters of coastal State, or o If ship is lying in territorial sea or has just left internal waters Other maritime zones (continguous/eez) Contiguous zone up to 24 nautical miles from baseline (art.33) o Coastal state may exercise control necessary to " Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; " Punish infringement of these laws and regulations committed within its territory or territorial sea Exclusive economic zone 200 nautical miles o Coastal state has " Sovereign rights of exploring and exploiting, conserving and managing natural resources, whether living/non-living, of waters superjacent to seabed and of sea-bed and its subsoil, and with regard to other activities for economic exploitation and exploration of zone, such as production of energy from water, currents and winds (art.56) " Jurisdiction re marine scientific research, protection and preservation and of marine environment, etc. o But all states have freedom of navigation, over flight, laying of cables and pipelines (art.58) Continental shelf Sea-bed and subsoil of area beyond territorial sea, throughout natural prolongation of coastal state s land territory to outer edge of continental margin (art.76) 8