INTERNATIONAL LAW SUMMARY

Transcription

1 SUMMARY LAWSKOOL PTY LTD

2 TABLE OF CONTENTS 1. NATURE OF INTERNATIONAL LAW WHAT IS INTERNATIONAL LAW? EVOLUTION AND EXTENT OF INTERNATIONAL LAW ARRANGEMENT OF THE INTERNATIONAL SYSTEM Legal norms Organisations and international institutions LEGAL NATURE OF INTERNATIONAL LAW International law and the code of ethics argument Air Services Agreement Case (France v Unites States) SOURCES OF INTERNATIONAL LAW ARTICLE 38(1) OF THE STATUTE OF THE ICJ TREATIES CUSTOM Elements of customary law Proving the first element of CIL Jus Cogens Satisfying the second element of CIL Treaties generating custom Local custom GENERAL PRINCIPLES OF LAW Legal status given to general principles in IL Where do general principles come from? Relationship between general principles and the jus gentium JUDICIAL DECISIONS TEACHINGS OF PUBLICISTS ACTS OF INTERNATIONAL ORGANISATIONS UNILATERAL DECLARATION BY STATES SOFT LAW LAW OF TREATIES THE VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT) AND CUSTOMARY RULES.. 35 lawskool.com.au 2

3 3.2 MEANING OF TREATY Operating provisions Concluded between States In written form Governed by IL FORMATION The ability of States to conclude treaties in the international arena Full powers Acceptance of the text Official confirmation of the text Consent to be bound ENTRY INTO FORCE OF THE TREATY EFFECT Effect of treaty provisions before entry into force Effect of treaty provisions after entry into force Effect of binding treaties on third States Effect of domestic laws on treaty obligations Temporal effect of treaties What is the effect of inconsistent treaties? System of registration of treaties in IL RESERVATIONS Meaning and Role of reservations Significance of Reservations to the Genocide Convention case Incompatibility with object and purpose of a treaty in IL Acceptance and objection to reservations Reservations and their effects on human rights treaties Effects of reservations Circumstances where a State withdraws reservations and objections Differing Schools of Interpretation Rule of interpretation of treaties under the VCLT Additional means of interpretation Effect of treaties in different languages AMENDMENT AND MODIFICATION OF TREATIES IN IL INVALIDITY OF A TREATY... 54

4 3.9.1 Preliminary Principles Constitutional ultra vires of a treaty Ultra vires by representatives of a State in IL Relationship between error of treaty and invalidity Effect of fraud on a treaty Effect of corruption on a treaty Effect of coercion on a treaty Jus cogens and obligations erga omnes in IL Effect of the invalidity of a treaty Denunciation and Withdrawal from a treaty in IL TERMINATION AND SUSPENSION OF A TREATY Agreement or consent of the parties to the treaty Effect of incompatible later treaty in IL Effect of Material Breach on a treaty Effects of supervening impossibility on a treaty Effect of fundamental change of circumstances on a treaty Severance of diplomatic relations between parties New norm of the jus cogens occurring in IL Effect of termination and suspension on a treaty PROCEDURES INVOLVING THE INVALIDITY, DENUNCIATION, WITHDRAWAL, TERMINATION AND SUSPENSION OF A TREATY STATEHOOD AND PERSONALITY CONCEPTION OF PERSONALITY ESSENTIALS OF STATEHOOD Elements of Statehood Permanent population Defined territory Government Capacity to enter into relations with other States Association and membership of international organisations THE IMPORTANCE OF RECOGNITION Recognition of States in the international arena Recognition of governments in IL... 71

5 4.4 SELF DETERMINATION OF PEOPLES WITHIN THE INTERNATIONAL ARENA THE STATUS OF INTERNATIONAL ORGANISATIONS STATUS OF INDIVIDUALS IN IL STATE RESPONSIBILITY AND TREATMENT OF FOREIGN NATIONALS WHAT IS THE MEANING OF STATE RESPONSIBILITY IN IL? DRAFT ARTICLES ON STATE RESPONSIBILITY BASIC PRINCIPLES OF SR The existence of responsibility Need for an international wrongful act Capability to characterise conduct as wrongful ATTRIBUTION OF SR Organs of a State Other persons exercising official authority State organs at disposal of another State Ultra vires acts Direction or control of a State Application of lack of due diligence Absence or default of official authorities within a State Insurrectional and secessionist movements in IL Implications of Adoption by a State Direction, control or coercion by a State Aiding or assisting REPARATION & COMPENSATORY PAYMENTS Concept of reparation Restitutionary principles Payments in the nature of compensation What of satisfaction? DEFENCES Consent by a state Importance of self defence Place of countermeasures within IL Effect of Force Majeure Distress... 90

6 5.6.6 Necessity TREATMENT OF FOREIGN NATIONALS Introduction Standard of treatment Examples of mistreatment Expropriation of possessions and property in IL Precondition for diplomatic protection by States Nationality of claims The rule of exhaustion of local remedies STATE JURISDICTION WHAT IS JURISDICTION? BASIS OF TERRITORIAL PRINCIPLE Introductory point The subjective and objective elements NATIONALITY PRINCIPLE The Active and Passive nationality principles PROTECTIVE PRINCIPLE UNIVERSAL JURISDICTION Basis of Universal jurisdiction Acts that may attract Universal jurisdiction JURISDICTIONAL IMMUNITIES SOVEREIGN IMMUNITY DIPLOMATIC AND CONSULAR IMMUNITY Diplomatic immunities The issue of Consuls and immunities from jurisdiction HEADS OF STATE, HEADS OF GOVERNMENT AND FOREIGN MINISTERS STATE TERRITORY CHARACTER AND EXTENT OF STATE TERRITORY Significance of territory Extent of territory ACQUISITION OF TERRITORY Acquisition of territory through occupation

7 8.2.3 Acquisition of territory through cession Acquisition of territory through Accretion Acquisition of territory through Prescription Acquisition of territory through establishment of new states Unlawful acquisition of territory through force INTERNATIONAL USE OF FORCE PROHIBITION AGAINST THE USE OF FORCE IN IL Prohibition against the use of force principles Non-intervention NOTABLE EXCEPTIONS TO THE PROHIBITION AGAINST THE USE OF FORCE Individual Self-defence Impact of Armed attack Anticipatory self defence Collective Self defence Other exceptions to the prohibition against the use of force COLLECTIVE ACTION UNDER THE UN CHARTER Non-coercive action under Charter of the United Nations Chapter VII Coercive action under Charter of the United Nations Chapter VII International relations and Peacekeeping under the UN Charter

8 TABLE OF AUTHORITIES Cases Aaland Islands case (1920) Aegean Sea Continental Shelf case (Greece v Turkey) (19 December 1978) Air Services Agreement case (France v United States) (1978) 18 RIAA Ambatielos Arbitration (Greece v United Kingdom) (1953) case Amoco International Finance Corp v Iran case (1987)... 95, 96 Anglo Iranian Oil case (UK v Iran) (Preliminary Objection) (22 July 1952)... 36, 96 Anglo Norwegian Fisheries case (ICJ Reports 1951)... 25, 27 Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) (1972) Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka (1987) case... 82, 92 Asylum case (Colombia v Peru)... passim Attorney-General (Cth) v Tse Chu-Fai (1998) case Austro German Customs Union (1931) case Barcelona Traction (1970) case... 57, 99 Belilos v Switzerland (1988)... 45, 49 Bradley v Commonwealth (1973) British Petroleum Exploration Company (Libya) Ltd v Libyan Arab Republic (1973) case Caire Claim (France v Mexico) (1929) case Cantley v Queensland (1973) Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction First Phase) Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction First Phase) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility) (27 June 1986)... passim Case Concerning the Arrest Warrant of 11 April (2000) , 111 Certain Expenses of the United Nations case (1962) , 125 Chamizal Arbitration (United States v Mexico) (1911) case , 115 Chattin Claim (United States v Mexico) (1927) case Chorzow Factory (Indemnity) (Merits) case (Germany v Poland)... 31, 85, 86 Clipperton Island Case (France v Mexico) (1931) case

9 Compania Naviera Vascongado v Steamship Cristina (1938) case Corfu Channel case (1949) Costello-Roberts v United Kingdom (1994) case Deutsche Continental Gas Gesellschaft v Polish State (1929) East Timor case... 57, 73 Elettronica Sicula SpA (ELSI) case (United States v Italy) ( , 99 English Channel Arbitration (United Kingdom v France) Factory at Chorzow (Jurisdiction), Case Concerning the Gabcikovo Nagymaros Project (Hungary v Slovakia) (1997) Finnish Ships Arbitration (Finland v Great Britain) (1934) case Fisheries Jurisdiction (UK v Iceland) case... 56, 57, 63 Flegenheimer Claim (United States v Italy) (1958) case Forests of Central Rhodope (1933) case Frontier Dispute case (Burkina Faso v Mali)... 30, 34, 72 In The Marriage of Ibbotson and Wincen (1994) International Military Tribunal at Nuremberg (1945) Iran United States No A/18 5 (1985) case Island of Palmas case (Max Huber) , 113, 114, 115 Israeli Security Fence case (2004)... 73, 90, 116, 118 Joyce v Director of Public Prosecutions (1946) case Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)... 62, 73 Legal Status of Eastern Greenland case (Norway v Denmark) (1933)... 36, 37, 54, 115 Legality of the Threat or Use of Nuclear Weapons, advisory opinion delivered by the International Court of Justice (ICJ) on 8 July Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996) case Liangsiriprasert v Government of the United States of America (1991) case Libyan American Co Company (LIAMCO) v Libyan Arab Republic (1977) case Lotus case (1927, France v. Turkey)... passim Mabo v Queensland (No 2) (1992) case Massey Claim (United States v Mexico) (1927) case Mavrommatis Palestine Concessions case (Greece v UK) (1924)... 53, 91 Merge Claim (United States v Italy) (1955) case Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (1998) (No 3)

10 Neer Claim (United States v Mexico) (1926) Nicaragua (Merits) case... 26, 29, 81 Nicaragua v United States (Jurisdiction) case North Sea Continental Shelf cases (Federal Republic of Germany/Denmark and Netherlands)... 26, 28, 29 Nottebohm case (Liechtenstein v Guatemala) (1955) Noyes Claim (United States v Panama) (1933) Nuclear Tests cases (Australia v France, New Zealand v France) Oil Platforms (Islamic Republic of Iran v United States of America) (2003) case Panevezys Saldutiskis Railway case (Estonia v Lithuania) (Preliminary Objections) (1938)... 97, 100 Polish Postal Services in Danzig, Advisory Opinion (1925) Polyukhovich v Commonwealth (War Crimes Act Case) (1991) Prosecutor v Tadic case (1997) Prosecutor V. Thomas Lubanga Dyilo. Décision sur la confirmation des charges. Case No. ICC-01/04-01/ R v Bow Street Metropolitan Stipendiary Magistrate and others; ex Parte Pinochet Ugarte (No 3) case R v Turnbull Ex parte Petroff (1971) case Rainbow Warrior case (New Zealand v France) (1990)... 78, 87, 89 Reservations to the Genocide Convention case... 46, 47, 48 Right of Passage case (Portugal v India) River Meuse case (Netherlands v Belgium) Roberts Claim (United States v Mexico) (1926)... 91, 92 South West Africa cases (Ethiopia v South Africa, Liberia v South Africa (Second Phase) Spanish Zone of Morocco Claims (UK v Spain) (1924)... 54, 77, 83 Starrett Housing Corp v Iran (Interlocutory Award) (1983) case Temple of Preah Vihear case (Cambodia v Thailand) (Preliminary Objections) (15 June 1962)... 37, 55, 56, 86 Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya (1977)... 36, 94 The Anna & Secretary of State for India v Chelikani Rama Rao (1916) The Caroline Case (1837) The Paquete Habana case 175 U.S. 677 (1900)... 32

11 The Schooner Exchange v McFaddoni (1812) case Tinoco Arbitration (Great Britain v Costa Rica) (1923) case... 68, 70 United States Diplomatic and Consular Staff in Tehran case (United States v Iran) (1980)... 79, 84, 121 United States v Yunis (1988) case Velasquez Rodriguez v Honduras (1988) Ward v R (1938) Wemhoff v Germany (1968) Western Sahara case (1975)... 73, 113 Yeager v Islamic Republic of Iran (1987) case... 83, 92 Youmans Claim (United States v Mexico) (1926) case Other Authorities American Convention on Human Rights American Law Institute (Restatement (Third) of the Foreign Relations Law of the United States (1987), Vol 1, ξ102, 25) ANZUS Treaty Berne Convention for the Protection of Literary and Artistic Works Brussels Conference Case Concerning the Gabcikovo Nagymaros Project (Hungary v Slovakia) (1977) Chicago Convention on International Civil Aviation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on Offences and Certain other Acts Committed on Board Aircraft Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents Convention on the Prevention and Punishment of the Crime of Genocide , 105 Convention on the Safety of United Nations and Associated Personnel Convention on the Settlement of Investment Disputes Covenant of the League of Nations Crimes (Aviation) Act 1991 (Cth) Crimes (Hostages) Act 1989 (Cth) Crimes (Internationally Protected Persons) Act 1976 (Cth) Crimes (Torture) Act 1988 (Cth)

12 Customs Act 1901 (Cth) Declaration on Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the UN, General Assembly Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations 1970, General Assembly Resolution Declaration on the Granting of Independence to Colonial Territories and Peoples 1960, General Assembly Resolution 1514 (XV) Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Resolution 2131 (XX) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 1992, General Assembly Resolution 47 / Definition of Aggression, General Assembly Resolution 3314 (XXIX) , 122 Digest of US Practice in International Relations Draft Articles on Jurisdictional Immunities of States and Their Property , 108 Draft Articles on the Responsibility of States for Internationally Wrongful Acts passim European Convention for the Protection of Human Rights and Fundamental Freedoms European Convention on Human Rights Final Act of the Congress of Vienna Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the Rights of People for UNESCO: SNS 89 / Conf 602/ Geneva Convention Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws Hague Peace Conferences 1899 & Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens , 95 Human Rights Committee General Comment No ICJ Statute passim International Convention against the Taking of Hostages

13 International Convention for the Elimination of All Forms of Racial Discrimination International Convention for the Suppression of Terrorist Bombings International Convention on the Elimination of all Forms of Racial Discrimination International Covenant on Civil and Political Rights , 77, 93 International Covenant on Economic, Social and Cultural Rights International Law Commission Statute Montevideo Convention on Rights and Duties of States , 70 Narcotic Drugs Act 1967 (Cth) North Atlantic Treaty Paris Convention Paris Convention for the Protection of Industrial Property Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Reports , 74 Resolution on Permanent Sovereignty over Natural Resources 1962, General Assembly Resolution , 95 Resolution on the Definition of Aggression, General Assembly Resolution Rome Statute of the International Criminal Court SC Resolution 82, 25 June Security Council Resolution 276 (1970) Statute of the Nuremberg International Military Tribunal , 105 Treaty on the European Union , 77 Treaty of Bern Treaty of Osnabruck Treaty of Versailles UN Charter passim UN Security Council Resolution 1973 (2011) United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances United Nations Convention on the Law of the Sea , 112 United Nations Convention on the Suppression and Punishment of the Crime of Apartheid Uniting for Peace Resolution: General Assembly 377 (V), 3 November Universal Declaration of Human Rights Vienna Convention on Consular Relations

14 Vienna Convention on Diplomatic Relations , 110 Vienna Convention on the Law of Treaties passim War Crimes Act 1945 (Cth)

15 1. Nature of International Law 1.1 WHAT IS INTERNATIONAL LAW? In this summary, International Law refers to what is sometimes described as Public International Law. This is the body of rules and principles that regulates relations: between States and public international organisations; among States and individuals in the field of international human rights law; and between the international society and individuals who have committed international crimes. Public International Law stands in contrast to Private International Law (sometimes called conflict of laws ) which is a body of rules that determine the law and forum applicable to a dispute between private entities where there is a cross-border element (eg US business contracts with Australian business to establish a factor in Thailand). This summary will only deal with Public International Law, hereafter simply described as International Law (IL) Prior to the First World War, the concept of IL was regarded as a system of legally binding rules and principles that regulated relations solely among sovereign States. These States were considered to be the only subjects of IL and the only entities possessing legal personality at an international level. 1.2 EVOLUTION AND EXTENT OF INTERNATIONAL LAW IL goes as far back as the period of antiquity. A summary of the development of IL is considered below: Archaeologists have discovered treaties between kings of city states in ancient Mesopotamia, dating from around 3000 BC. These treaties indicate the existence of ordered relations among rulers. The use of treaties among rulers remained a key attribute of political life throughout antiquity in areas of the Middle East and the Mediterranean. During this period, most civilisations acknowledged the binding force of treaties and respected the role of diplomatic ambassadors.

16 Medieval Europe enjoyed a more intricate form of IL, although the structure of feudal realms was not well suited to the emergence of a distinctly separate legal system for the regulation of relations among monarchs. Power was shared internally between an aristocratic class and federal princes who upheld their own vassals and owed mutual obligations to a lord or monarch. The lord or monarch in turn regularly owed political allegiance to external authorities such as the Holy Roman Emperor or the Church. During the course of the 15 th and 16 th centuries, several authoritative States surfaced (England, France, Sweden, Netherlands, Spain and Portugal). Such States declined to follow political authority beyond their own jurisdictional rule. This prepared the way for the modern system of IL. At the start, the contemporary system of IL was concerned almost wholly with regulating relations among States as armed actors on the European stage. Rising from the chaos of Europe s religious wars in the 16th and 17th centuries, modern IL was long subjugated by norms regulating the conduct of war and illuminating matters about which disagreements might lead to conflict. The treaties concluding the Peace of Westphalia at the end of the Thirty Years War ( ) gave rise to the modern state system. The treaties provided that the religion of inhabitants of a territorial area was to be determined by the political ruler of that area, not by any external political or religious authority. This led to the increasing political autonomy of what became today s nation-states. Moreover, the 1648 Treaty of Osnabruck protected the principle of religious tolerance for minorities in several parts of Europe. In 1815, the Final Act of the Congress of Vienna (FACV), and related international agreements sought to adopt the Westphalian State system and apply it to settle the multiplicity of issues arising from the French Revolutionary Wars, the Napoleonic Wars, and the dissolution of the Holy Roman Empire. The main European powers established a formal arrangement of collective security against revolutionary and radical disorder within Europe, which was effectively invoked on several occasions. The FACV s official condemnation of the slave trade was also an important development in IL, and made for another vital theoretical link between human rights concerns and the continuation of international peace and stability.

17 In 1864, the first treaty of the Geneva Convention granted legal protection to the injured in global military conflicts, as well as to those seeking to help the wounded. Subsequently, the Brussels Conference of 1874, and the Hague Peace Conferences (HPC) of 1899 and 1907, prepared and settled upon rules protecting non combatant civilians, and the treatment of prisoners of war, in the area of international armed conflicts. The HPC of 1899 also established the Permanent Court of Arbitration in an effort to give a standing mechanism for the diplomatic and peaceful resolution of international disputes. The 19 th and very early 20 th centuries witnessed the advent of globalisation in its modern form. This era of IL began to evolve further beyond matters of war and peace, focusing on the facilitation of international co-operation in a range of areas. Noteworthy accomplishments during this period include: 1. the Paris Convention establishing the International Telegraph Union (1865); 2. the Treaty of Bern establishing the General Postal Union (1874); 3. the Paris Convention for the Protection of Industrial Property (1883); and 4. the Berne Convention for the Protection of Literary and Artistic Works (1886). In 1919, and at the conclusion of World War I, the Paris Peace Conference established the League of Nations (LON). Article 14 of the Covenant of the League of Nations, created after the Treaty of Versailles, allowed the League to investigate setting up an international court. This led to the establishment of the Permanent Court of International Justice (PCIJ) by the LON which first sat on 30 January 1922 at the Peace Palace, The Hague. Although the PCIJ only lasted until 1945, it made lasting contributions to the expansion of IL in a variety of fields. By the time the PCIJ had finished, it had handed down 32 judgments in contentious cases between States, and 27 advisory opinions at the request of institutions related to the LON. Significantly, the International Court of Justice (ICJ) replaced the PCIJ in 1945 upon the establishment of the United Nations (UN). On 26 June 1945, the UN Charter was opened for signature while the war against Japan was still continuing. By 24 October 1945, the UN Charter had entered into

18 force and the International Military Tribunal for the Punishment of War Criminals had held its first session in Germany. Notably, the trial and conviction of numerous Nazi leaders for offences against the peace, crimes against humanity and war crimes, was of immense importance in demonstrating that individuals, not only states, could be held accountable under IL. In relation to human rights protection, the involvement of IL with the preservation of international peace was recognised in numerous international instruments: 1. the Preamble to the Universal Declaration of Human Rights (1948); 2. the European Convention on Human Rights (1950); 3. the International Covenant on Civil and Political Rights (1966) (ICCPR); and 4. the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR). To order the complete version of the Lawskool International Law Summary please visit