PUBLIC INTERNATIONAL LAW SUMMARY 2011

Transcription

1 PUBLIC INTERNATIONAL LAW SUMMARY 2011 LAWSKOOL CANADA

2 TABLE OF CONTENTS CASES... 4 STATUTES... 6 SECONDARY SOURCES INTRODUCTION INTERNATIONAL LEGAL PERSONS SUBJECTS OF INTERNATIONAL LAW STATES AND STATEHOOD TYPES OF STATES OTHER LEGAL PERSONS International Governmental Organizations Non-governmental Organizations Transnational Corporations People Individuals Peoples Seeking Self-Determination STATE SUCCESSION Changes of Government and State Continuity Succession to Rights and Obligations Respect for Private Rights Change of Nationality SOURCES OF INTERNATIONAL LAW TREATIES Treaty Making Conclusion of a treaty Ratification Publication and registration Entry into force Reservations Legal Effects of Treaties Operation of Treaties Amendment and modification Invalidity and jus cogens Termination and suspension Canadian Treaty Practice lawskool.com.ca

3 3.2 CUSTOM General Customary Law Regional or Special Customary Law GENERAL PRINCIPLES OF LAW OTHER SOURCES OF LAW NATIONAL APPLICATION OF INTERNATIONAL LAW NATIONAL APPLICATION IN CANADA Customary Law in Canada Treaties in Canada Treaty making Treaty implementation Treaty interpretation INFLUENCE OF INTERNATIONAL LAW ON CANADIAN LAW INTER-STATE RELATIONS RECOGNITION STATE IMMUNITIES DIPLOMATIC IMMUNITIES PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES DIPLOMATIC MEANS OF DISPUTE SETTLEMENT Negotiation Good Offices Mediation Commissions of Inquiry Conciliation ARBITRATION THE WORLD COURT OTHER AGENCIES OF PEACEFUL SETTLEMENT OF DISPUTES STATE JURISDICTION OVER TERRITORY LAND TERRITORY ARCTIC AND ANTARCTIC AREAS AIRSPACE AND OUTER SPACE NATIONALITY INDIVIDUALS CORPORATIONS SHIPS lawskool.ca Page 3

4 8.4 AIRCRAFT AND SPACECRAFT STATE JURISDICTION OVER PERSONS SUBJECT-MATTER JURISDICTION JURISDICTION OVER THE PERSON Abduction from a Foreign State Extradition Admission and Exclusion of Aliens EXTRATERRITORIAL ASSERTIONS OF JURISDICTION STATE RESPONSIBILITY GENERAL THEORY OF RESPONSIBILITY General Principles Basis of Responsibility Imputability Circumstances Precluding Wrongfulness Defining the Injured State RESPONSIBILITY FOR INJURY TO ALIENS Standard of Treatment Protection of the Person Protection of Property ENFORCEMENT OF CLAIMS Espousal and Nationality of Claims Exhaustion of Local Remedies and Waiver of Claims Canadian Practice REMEDIES lawskool.ca Page 4

5 CASES Aerial Incident at Lockerbie Case (Libya v. United Kingdom) (1998), 37 Int. Leg. Mat Ambatielos Arbitration (Greece v. United Kingdom) (1956), 12 R.I.A.A Amoco International Finance Corp. v. Iran (1987), 15 Iran-U.S.C.T.R Asian Agricultural Products Ltd. v. Sri Lanka, International Centre for the Settlement of Investment Disputes Case No. Arb/87/3 (1990), 106 Int. L. Rep Barcelona Traction, Light and Power Co. Case (Belgium v. Spain) [1970] I.C.J. Rep , B.E. Chattin Claim (United States v. Mexico), General Claims Commission (1927), 4 R.I.A.A Chloride Industrial Batteries v. F & W Freight Ltd., (1991) 86 I.L.R. 152 (Eng. C.A.) Chorzow Factory Case (1928), P.I.C.J., Ser. A., No Chung Chi Cheung v. R., [1939] A.C Commonwealth of Australia v. Tasmania (1983), 68 I.L.R. 266 (Aust. H.C.) Congo v. Venne [1971] S.C.R Corfu Channel case (United Kingdom v. Albania) [1949] I.C.J. Rep Cosmos 954 Claim (Canada v. U.S.S.R.) (1979), 18 Int. Leg. Mat Delgamuukw v. British Columbia [1997] 3 S.C.R Dickinson v. Del Solar [1930] 1 K.B Donegani v. Donegani, (1834) 3 Knapp 62; 12 E.R. 571 (P.C.) East Timor Case (Portugal v. Australia), [1995] I.C.J. Rep Foreign Legation Case, [1943] S.C.R Gordon v. R., [1980] 5 W.W.R. 668 (B.C. S.C.) In Re Cannon (1908), 17 O.L.R. 352 (S.C.) Island of Palmas Case (Netherlands v. United States), (1928) 2 R.I.A.A Joyce v. Director of Public Prosecutions [1946] A.C. 347 (H.L.).. 8.1, 9.1 Juan Isamael and Co. Inc. v. Government of Indonesia [1955] A.C. 72 (J.C.P.C.) Legality of the Use by a State of Nuclear Weapons in Armed Conflict Case, Adv. Op. [1996] I.C.J. Rep Libman v. The Queen [1985] 2 S.C.R Mavrommatis Palestine Concessions Case (Greece v. U.K.) (1924), P.I.C.J., Ser. A., No Neer Claim (United States v. Mexico), General Claims Commission (1926), 4 R.I.A.A Nicaragua v. United States (Merits) [1986] I.C.J. Rep. 14, North American Dredging Company Claim (1926), 4 R.I.A.A North Sea Continental Shelf case (Federal Republic of Germany v. Denmark and v. Netherlands) [1969] I.C.J. Rep Notteböhm Case (Liechtenstein v. Guatemala) [1955] I.C.J. Rep Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania) (1939), P.C.I.J., Ser. A./B., No lawskool.ca Page 5

6 Queensland v. The Commonwealth (1989), 167 C.L.R Quintanilla Claim (United States v. Mexico) General Claims Commission (1926), 4 R.I.A.A R. v. Canada Labour Relations Board (1964), 44 D.L.R. (2d) 440 (Man. Q.B.) R. v. Parisien [1988] 1 S.C.R Rankin v. Iran (1987), 17 Iran-U.S. C.T.R , Re Arrow River and Tributaries Slide and Boom Co. Ltd. [1932] 2 D.L.R. 250 (S.C.C.) , Re Newfoundland Continental Shelf [1984] 1 S.C.R Reference re Secession of Quebec, [1998] 2 S.C.R Reparations Case, Adv. Op. [1949] I.C.J. Rep Richardson v. The Forestry Commission (1987), 164 C.L.R. 261 (Aust. H.C.) Rights of Passage over Indian Territory case (Portugal v. India) [1960] I.C.J. Rep Saint-John v. Fraser-Brace Overseas Corp. [1958] S.C.R St. Catherines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R Steamship Lotus Case (France v. Turkey) (1927), P.C.I.J. Ser. A., No Temple of Preah Vihear Case (Cambodia v. Thailand), [1962] I.C.J. Rep The Claire Claim (France v. Mexico) (1929), 5 R.I.A.A The Island of Palmas Case (Netherlands v. United States) (1928), 2 R.I.A.A The Lighthouse Arbitration (France v. Greece), (1956) 12 R.I.A.A The Schooner Exchange v. M Faddon, (1812) 11 U.S Tinoco Arbitration (Great Britain v. Costa Rica), (1923) 1 R.I.A.A Trail Smelter Arbitration ( ), 3 R.I.A.A Trendtex Trading Corp. Ltd. v. Central Bank of Nigeria [1977] 1 Q.B United Stated Diplomatic and Consular Staff in Tehran Case (United States v. Iran), [1980] I.C.J. Rep United States v. Alvarez-Machain, 112 S.Ct (1992) United States v. Toscanino, 500 F.2d 267 (U.S.C.A. 2d Cir. 1974) U.S.A. v. Allard and Charette (1991), 122 N.R. 352 (S.C.C.) Western Sahara Case, Adv. Op. [1975] I.C.J. Rep Yeager v. Iran (1987), 17 Iran-U.S. C.T.R STATUTES 1930 Hague Convention on Conflict of Nationality Law, 179 L.N.T.S. 89; 1930 Can. T.S. No. 7. An Act respecting the Ministère des Affaires internationals, S.Q. 1998, c. 41. Canada-U.S. Free Trade Agreement (1988), 27 Int. Leg. Mat Canadian Citizenship Act, R.S.C. 1985, c. C-29, as amended. Commercial Arbitration Act, R.S.C (2d Supp.), c. 17. lawskool.ca Page 6

7 Constitution Act, 1982, in the Canada Act, 1982 (U.K.), c. 11. Convention on State Immunity, reprinted in (1972), 11 Int. Leg. Mat Declaration on the Rights of Individuals Who Are Not Citizens of the Country in Which They Live, G.A. Resolution 144 (XL), U.N. GAOR, 40 th Sess., Supp. No. 53 (1985). Diplomatic Missions and International Organizations Act, S.C. 1991, c. 41. Extradition Act, S.C. 1999, c. 18. Foreign Missions and International Organizations Act, S.C. 1991, c. 41. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. ss International Law Commission, Draft Articles on State Responsibility, Report of the International Law Commission on the Work of Its 48 th session, GAOR, 51 st Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996), 125. Montevideo Convention on the Rights and Duties of States (1934), 165 L.N.T.S. 19. North American Free Trade Agreement (1993), 32 Int. Leg. Mat State Immunity Act, R.S.C. 1985, c. S-18, as am. Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963), 704 U.N.T.S World Bank Guidelines on the Treatment of Foreign Direct Investment (1992), 31 Int. Leg. Mat Secondary sources Castel, J.-G. Legal Services Provided by the Department of External Affairs with Respect to International Judicial Co-operation and Other Matters, Department of External Affairs (1987). Crawford, J. The Creation of States in International Law, (1979). Kindred, Hugh et al., International Law, Chiefly as Interpreted and Applied in Canada, (Toronto: Emond Montgomery Publications Ltd., 2000). LaForest, G.V. May the Provinces Legislate in Violation of International Law? (1961), 39 Can. Bar. Rev. 78. Macdonald, R. St. J. in Macdonald, Morris, and Johnston, eds., Canadian Perspectives on International Law and Organization (1974). Pharand, D. The Legal Status of the Arctic Regions (1979), 163 Hangue Recueil 51. S.A. William and A.L.C. de Mestral, An Introduction of International Law (2d ed. 1987). Sahurie, E.J. The International Law of Antarctica (1992). The Secretary of State for External Affairs, Canada Practice of Recognition of States (1972), 10 Can. Y.B. Int. L. Vanek, C. Is International Law a Part of the Law of Canada? ( ), 8 U.T.L.J Weiss, P. Nationality and Statelessness in International Law (2d ed., 1979). Williams, S.A. International Legal Effects of Secession by Quebec, Study No. 8 of the York University Constitutional Reform Project (1991). lawskool.ca Page 7

8 1. INTRODUCTION Public international law has traditionally been regarded as a system of principles and rules designed to govern relations between sovereign states. However, today the scope of international law has been expanding beyond the law that governs relations of states. Individuals, as well as corporations, have gained status in the international legal process. In the field of human rights, for example, individuals now possess international legal rights independently of their national state. The beginnings of international law are traced to the 16 th and 17 th centuries. The treaties of Westphalia, which ended the Thirty Years War in 1648, are the root of the system of sovereign states and the core of international law. The relations between Greek state and between Roman citizens and foreigners inspired political philosophers of later centuries who sought to impose rational order in inter-state relations, following the break up of the Holy Roman Empire into many warring political units. Today, the international legal system faces challenges of several problems that requires communal concerns that transcend state boundaries, for example, environmental damage, human rights violation, unjustified use of force and trade conflicts. These problems cannot be resolved by individual sovereign states within a traditional legal system. Therefore, it is necessary that there is a set of international law that applies to all sovereign states in order to protect the new world order from conflicts. It is clear that the new world order will have to be less state-centered, and more human centred, and will have to reflect the solidarity of mankind rather than its division. This summary outlines general rules and important issues regarding public international law in Canada. Unlike private international law which only involves relations between private entities, public international law involves states relations. Although public international law also governs rights and obligations of individuals and some private entities such as international organizations and corporations, it does not deal with private dealing such as cross-border commercial contracts between individuals or an injury caused by an individual to another person of different nationality. This summary omits the discussion of issues concerning international criminal law, protection of human rights and environment, international trade law, the law of the sea, and limitation of the use of force, as these subjects can be studied separately and independently from the general rules of public international law themselves. lawskool.ca Page 8

9 Note that the term international law and public international law are used interchangeably in this summary. 2. INTERNATIONAL LEGAL PERSONS 2.1 Subjects of International Law International law applies to a limited group of entities. These entities are referred to as subjects of international law. These entities have a legal personality that is, a capacity similar to that of an individual person in domestic law to enter into legal relations and to create the consequent rights and duties attached to that capacity. Without this capacity, an entity will be unable to maintain any claims. One function of international law is to determine who has legal personality. One of the entities that are subject to international law is individuals. Individuals possess certain rights and duties; however, these rights and duties are not the same as those obtained by states. Legal rights and duties of individual are very limited compared to that of states. States are still the dominant feature of international relations. This section looks at candidates for legal personality. It is only when recognition has been accorded by the international community that an entity will acquire the status of personality and the extent of its rights and duties laid down. 2.2 States and Statehood States are the principle subjects of the international legal system. Therefore, the primary question in international law concerns characterization of statehood. The Montevideo Convention, 1933 is the best known formula for setting out the basic characteristics of statehood. Despite a small number of parties to this Convention, it reflects the classical conditions under customary international law that a prospective state must satisfy. This definition is replicated in 201 of the 1987 Restatement (Third) of the Foreign Relations Law of the United States. Article I The state as a person of international law should possess the following qualifications: (a) a permanent population; lawskool.ca Page 9

10 (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states. 1 Population A permanent population is necessary although there is no minimum requirement. For example, Canada recognized Nauru, which had a population of 8,421 in 1982, and the Seychelles, which had a population of 69,000 in It is not necessary that the population possess the nationality of the new state. Nationality is dependant on statehood and not vice versa. 3 Territory There is no minimum requirement for the amount of territory necessary for a prospective state to acquire power over. Likewise, there is no requirement that a state have territorial unity. For example, Pakistan was in two parts before A state may come into being and continue to exist despite ongoing border disputes, as was the case with Israel. 4 Government This requirement and independence are central criteria to the candidature for statehood, as both indicate separate effective control of the state itself. A state needs the governmental capacity to exercise power over and area of territory and population. However, some countries have gained statehood despite weak governmental authority. For example, following the disintegration of the former U.S.S.R., new member states of Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyztan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan were admitted to the United Nations in 1992 as new states although problems of government establishment was ongoing in these countries. 5 Capacity to enter into relations with other states This requirement is both a prerequisite and a consequence of statehood because, until other states accept the existence of the new state, it is prevented from entering into a diplomatic relations even if it is capable and willing to do so. In Chloride Industrial Batteries v. F & W Freight Ltd., it was held that the island of Jersey is not a sovereign state because the United Kingdom is responsible for its 1 Montevideo Convention on the Rights and Duties of States (1934), 165 L.N.T.S. 19, Article 1. 2 Hugh Kindred et al., International Law, Chiefly as Interpreted and Applied in Canada, (Toronto: Emond Montgomery Publications Ltd., 2000) at J. Crawford, The Creation of States in International Law, (1979) at Supra note 2. 5 Ibid. lawskool.ca Page 10

11 international and external relations. The status of the island is that of a dependent territory, not a country within the meaning of that term in the Convention on the Contract for the International Carriage of Goods by Road, Note that independence is also an essential condition for statehood. The claimant to statehood must be able to exercise its self-determination through its government, free of authority of any other state. Independence is often used interchangeably with sovereignty. However, independence is a necessary component for the attainment of the status whereas sovereignty is a legal right that flows from it. The distinction between these two terms was raised in the Island of Palmas Case (Netherlands v. Unites States). The case concerned a dispute for the title to the Island of Palmas which is now part of the Philippines. In 1898 by the Treaty of Paris, Spain ceded the Philippines to the United States. In 1906 an official of the United States visited the island and found the Dutch flag flying there. The Netherlands and the United States referred the question of territorial sovereignty over Palmas to arbitration. The decision of arbitrator Huber contained the following remarks on state sovereignty: Sovereignty in the relation between States signifies independence. Independence is regarded to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State Territorial sovereignty, as has already been said, involved the exclusive right to display the activities of a State. The right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war; together with the rights which each state may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. 7 In that case, it was decided that the Netherlands had good title as they had continually and peacefully occupied the island since before Spain could not transfer to the United States more right to the island that it possessed. 2.3 Types of States The organizations of states are varied. They include unitary and confederal states as well as less than sovereign units, such as protectorates, dependencies and colonies. For confederal states like Canada, the external treaty-making power lies in the hands of the federal executive. The treaty implementation competence is divided depending on whether the subject-matter 6 Chloride Industrial Batteries v. F & W Freight Ltd., (1991) 86 I.L.R. 152 (Eng. C.A.). 7 Island of Palmas Case (Netherlands v. United States), (1928) 2 R.I.A.A. 829 at lawskool.ca Page 11

12 falls within section 91 or 92 of the Constitutional Act, This is different from other federal states such as Australia where the federal government not only possesses the treaty-making power but also the ability to legislate internally with regard to external affairs, although ordinarily the subjectmatter would be within state and not federal jurisdiction Other Legal Persons Although states are the prototypes of international legal persons, international law does not prevent other candidates from acquiring personality. In order to do so, a candidate s claim to exercise legal personality must be respected by the existing community of states. This reduces to a functional question of whether the practice of states demonstrates their readiness to permit this candidate to exercise specific legal capacity on the international plane. If so, the candidate attains personality for that purpose, even though it is close to having the plenary powers of a state. The chief candidates which are in the process of developing international personality are international organizations, individuals, and people seeking self-determination International Governmental Organizations International organizations can be divided into two types: international governmental organizations (IGOs) and non-governmental organizations (NGOs). IGOs are set up by agreement between states. NGOs are set up by individuals. Legal personality of these subjects depends on the circumstances of their arrangements. Therefore, in order to determine the type of legal personality that an international organization may obtain, it is necessary to look at the organization s constitution that describes its standing. For example, article 104 of the U.N. Charter provides that the organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. This article means that the United Nations has personality under the domestic laws of all its members. 8 See Commonwealth of Australia v. Tasmania (1983), 68 I.L.R (Aust. H.C.); Richardson v. The Forestry Commission (1987), 164 C.L.R. 261 (Aust. H.C.); and Queensland v. The Commonwealth (1989), 167 C.L.R lawskool.ca Page 12

13 Personality in the context of international organizations is a relative concept. One organization may have certain rights that others do not. Each organization has to be examined in detail to determine such factors. 9 Although the organizations constitutions or charter are main indications of personality that organizations may obtain, personality may be implied through the ability of the organization to fulfil the functions for which it was set up. In the Reparation Case, the International Court of Justice (ICJ) was asked by the General Assembly of the U.N. whether the U.N. had recognized legal capacity in order to bring a claim against Israel for the death of a Swedish national and a U.N. mediator in Palestine who were killed in Jerusalem, which was then in Israeli possession. At that time Israel was not a member of the U.N. The ICJ held that the powers possessed by an organization do not have to expressly incorporated it its charter but can be implied as long as it is necessary for the organization to able to fulfill its functions. 10 Certain national legal systems might not necessarily recognize legal personality of an IGO. In Canada, where international law or treaty does not affect local rights and law without domestic implementation by legislation, the adhesion of Canada to a convention constituting an IGO has no immediate or direct impact on Canadian law. In other words, Canada is blind to the legal character of an IGO which is created under international law or convention. To overcome these problems, section 5 of the Diplomatic Missions and International Organizations Act allows the Governor in Council to designate those IGOs that may have legal capacities as corporate bodies in Canada, and to fix the extent of immunities available to them by reference to the Convention on the Privileges and Immunities of the United Nations. Therefore, under this statute the Governor in Council has the permissive power to determine the personality and capacity of an IGO in Canada. To order the complete version of the lawskool Public International Law Summary please visit 9 Supra note 2 at Reparations Case, Adv. Op. [1949] I.C.J. Rep lawskool.ca Page 13