Public International Law

Transcription

1 Kristina Gallo Public International Law Fall CAN [Date]

2 1 Contents Introduction... 9 What is International Law?... 9 Problem of Anarchy... 9 History of International Law... 9 Sources of International Law Treaties What is a Treaty? Elements of a Treaty Who May Conclude a Treaty? Form of a Treaty How is a Treaty Concluded? When Do Treaties Enter Into Force? Paris Agreement (2015) Treaties in Canada Reservations Reservations to the Convention on Genocide, ICJ Effects of Treaties Interpretation of Peace Treaties, Termination of Treaties Gabcikovo-Nagymaros, ICJ Customary International Law North Sea Continental Shelf (ICJ 1969) Problems of Custom Treaties and Customary Law Exceptions to Custom General Principles of Law International Status of South-West Africa ICJ Equity in International Law Problems of General Principles Judicial Decisions and Teachings Other Sources Some other Sources Jus Cogens Norms... 20

3 2 Erga Omnes Obligations Hierarchy of Sources International Legal Persons States Criteria for Statehood Recognition by States Disintegration of Yugoslavia National Implication of Recognition Rights and Duties of States Tinoco Arbitration State Succession Self-Determination Non-State Entities Exceptional Entities International Organisations (IOs) Legality of the Use by a State of Nuclear Weapons in Armed Conflict (ICJ 1996) The United Nations Namibia Case (ICJ 1971) Legal Personality of the UN Individuals Peoples Seeking Self-Determination Western Sahara Case (ICJ 1975) Declaration Concerning Friendly Relations Reference re Succession of Quebec (SCC 1998) Kosovo (ICJ 2010) NGOs and TNCs European Union National Application of International Law Role of the State Customary International Law R v Hape, SCC Jus Cogens in Canadian Law Suresh v. Canada (SCC 2002) Treaty Implementation Labour Conventions Case (Privy Council, 1937)... 32

4 3 R. v. Crown Zellerbach (SCC 1988) Interpretation and Conflicts Unimplemented Treaties Baker v. Canada (SCC 1999) Treaties with Indigenous Groups Canadian Foundation for Children v. Canada (AG) (SCC 2004) Paris Climate Agreement (2015) State Jurisdiction Establishing Jurisdiction The Concept of Jurisdiction Basics of Territory Sovereign territory Res Communis Terra nullius Limits of Sovereignty Methods to Acquire Territory Island of Palmas Case (PCA 1928) Territory in Canada Disputes Over Territory Jurisdiction Over Nationals Individuals Nottebohm Case (ICJ 1955) Corporations Barcelona Traction, Light and Power Co. (ICJ 1970) Ships, Aircrafts and Spacecraft Exercising Jurisdiction Introduction Subject Matter Jurisdiction The Steamship Lotus (France v. Turkey) (PCIJ 1927) Libman v. The Queen (SCC 1985) Exercising Extraterritorial Jurisdiction R. v. Klassen (BCSC 2008) Universal Jurisdiction R. v. Bow Street Magistrate (UK 2000) Case Concerning Arrest Warrant of 11 April 2000 (Congo v. Belgium) (ICJ 2002)... 44

5 4 Inter-State Coordination Jurisdiction Over the Person R. v. Hape (SCC 2007) Extradition Abduction and Extraordinary Rendition Immunities Scope of Immunity Foreign State State Organs and Agencies Trendtex Trading v. Central Bank of Nigeria (UK CA 1977) Mellenger v. New Brunswick Development Corp (UK CA 1971) State Property Attachment and Execution Exceptions to Immunities Waiver Commercial activities Personal Injury Actions (Some) Terrorism-related actions Diplomatic Immunity Diplomatic and Consular Relations in Tehran (USA v. Iran) (ICJ 1980) International Organization Immunity State Responsibility General Theory of State Responsibility Corfu Channel Case (UK v. Albania) (ICJ 1949) Rainbow Warrior (New Zealand v. France) Cosmos 954 Claim (Canada v. USSR) Basics of State Responsibility Attributing State Responsibility Acts of the StateTH Youmans Claim (US v. Mexico) (1926) Acts of Private PersonsMilitary Activities in Nicaragua (Nicaragua v. United States) (ICJ 1986) Acts of InsurgentAsian Agricultural Products Ltd. v. Sri Lanka (1990) Acts of International Organizations Defenses Gabçíkovo-Nagymaros Project (Hungary v. Slovakia) (ICJ 1997) Consequences... 58

6 Case Concerning the Factory at Chorzów (Indemnity) (PCIJ 1928) Rainbow Warrior Damages Aggravated Responsibility Invoking State Responsibility Countermeasures Responsibility for Injury to Aliens Standard of Treatment UNGA Declaration on the Human Rights of Individuals Who Are Not Citizens of the Country in Which They Live (1985) Protection of the Person Protection of Property Diplomatic Protection Espousal and Nationality of Claims Exhaustion of Local Remedies Canadian Practice International Dispute Settlement Background International Court of Justice Organization of the Court Parties Before the Court Jurisdiction of the Court Fisheries Jurisdiction Case (Spain v Canada), Legality of the Threat or Use of Nuclear Weapons, AO Applications of rules of law Remedies Compliance Appeals Other Dispute Resolution Mechanisms Effect on International Law International Criminal Law Background International Military Tribunal Geneva Conventions Protection of Civilians International Crimes Genocide

7 6 Torture Crimes Against Humanity Prosecution of International Crimes Tribunals International Criminal Court National Prosecution of International Crimes Law of the Sea Background Marine Zones Baselines Territorial Sea Contiguous Zone Exclusive Economic Zone Continental Shelf Islands and Archipelagos International Straits Corfu Channel Case (Albania v. UK) (ICJ 1949) High Seas Boundary Delimitation Canada and the Law of the Sea China-Philippines Arbitration (PCA 2016) International Human Rights Introduction UN System of Human Rights Regional Systems Europe North America Africa Conflicting Standards Specific Human Rights Standards Nature of State Obligations Special Nature of Human Rights Toonen v. Australia (UN HRC 1994) Respect and ensure civil/political rights Velasquez Rodriguez Case (1998)... 77

8 7 Social and Economics Rights Action Center v. Nigeria (2001) Progressive realization of economic, social, and cultural rights Limitation provisions, Derogations and Reservations Duties of states and individuals Invasion of Sovereignty Non-State Actors Reservations and Derogations Customary Human Rights Collective Rights and Self-Determination Marshall v. Canada (UN Human Rights Commission, 1986) Universality of Human Rights and Cultural Diversity Compliance and Enforcement UN Bodies Treaty mechanisms Non-treaty mechanisms International Environmental Law History and Development of IEL Trail Smelter Arbitration (US v. Canada) Pulp Mills on the River Uruguay (Argentina v. Uruguay) (ICJ 2010) Rio Declaration (1992) Principle of IEL Branch of IEL Transboundary air pollution Protection of the ozone layer Climate change Biodiversity Use of Force Prohibition on the Use of Force Introduction Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v US) Definition of Aggression (UNGA 1974) Justifications for the Use of Force Right of Self Defence Legality of the Threat of the Use of Nuclear Weapons Case concerning oil platforms... 96

9 8 Anticipatory Self-Defence The Caroline (1837) Nuremberg war Crimes Trials Israeli Attack on Iraqi Nuclear Research Center US post A More Secure World (UN Report, 2004) Non-State Actors and Self Defence Legal Consequences of the Wall in Palestine Territory Attacks Against Uganda Self Defence of Nationals Entebbe Raid Humanitarian Intervention Invitation Collective Measures Gulf War Gulf War II International Humanitarian Law Scope Tadic (ICTY, 1995) Humdan and Rumsfeld Scope and Principles IHL Core Principles Distinction Military Necessity Humanity Proportionality Protection of Individuals Controls on the Means and Methods of Warfare

10 9 Introduction What is International Law? It is the law the governs activity between states (but this is changing to include more than just states) Traditionally between states o What is a state? o A state and a nation are different! Today, more than just states o Individuals, corporations, international organizations Often divided into two o Private international law o Public international law Problem of Anarchy International Law operates in a world of anarchy!!! Anarchy=no one is in charge There is no global legislature or administrative body etc; this can become a problem Domestic legal system o Legislative, executive, judiciary International legal system o Sort of a judiciary o No clear legislative, no clear executive Note that international law commitments matter domestically eg. treaties History of International Law It has been around for a very long time (~4000 years) Ancient international law o Treaties with neighbours Middle Ages o Canon Law (aka church law, the pop was the supreme authority) o Law of merchants ( lex mercatoria )Rise of private law o Rise of nation-states Modern International Law o Peace of Westphalia (1648) States have sovereignty Example: Canada and the USA are separate and equal o Civilized vs. others International law was only for the civilized o International social organisations See the rise of international humanitarian organisations Great War (WWI) o Failure of anarchy o Created the League of Nations, but not all countries joined because it was not mandatory o Permanent Court of International Justice

11 10 o Ideas began to emerge about States not being able to police themselves Post-World War II o Created new league of NationsUnited Nations UN declaration of Human Rights, meant to apply to everyone in the world o Institutions and constitutions o Bi-polar world and tensions o States continue to cooperate, they started to believe in the rule of law and join the international community o You see the emergence of a Global World Post-Cold War o New World Order o New global problems Failed states, refugees, climate change, genocide

12 11 Sources of International Law Statute of the International Court of Justice (1945) 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 parties; 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 [which provides that the decision of the Court has no binding force except between the parties and in respect of that particular case], 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. Judicial Body (International Court of Justice), Apply 4 types of laws: 1. International Conventions (aka Treaties) 2. International Custom 3. General Principles of Law 4. Judicial Decisions and Teachings Treaties What is a Treaty? Go by many names Treaties set out obligations and rights Two types 1. Treaty-contracts: Rights and obligations between particular states (example: NAFTA) o does not create general rules of international law, but rather creates special rights and obligations like a private law contract o These may be bilateral or multilateral o In some cases treaty contracts may lead to the formation of rules of customary international law or be evidence of such rules 2. Law-making treaties: Codify general institutions; generally, very broadly applicable or even globally applicable [treaties in which a substantial number of states have declared what the law is or should be on a particular topic.] o Such agreements may codify, define, interpret or abolish existing customary or conventional rules of international law; or create new rules for future international conduct o Example: Vienna Convention on the Law of Treaties o Both of these types of treaties are based on mutual assent and give rise to binding legal obligations The basic principles of the law of treaties are set down in the 1969 Vienna Convention on the Law of Treaties (VCLT)

13 12 Elements of a Treaty Vienna Convention on the Law of Treaties (1969) o Parties must be subjects of international law (aka states) o Must intend to create binding obligations under international law o Agreement must be governed under international law Who May Conclude a Treaty? States International organisations (sometimes) Noteprivate companies CANNOT Under the VCLT o Article 7: The representative of the state must have full powers to give consent of his or her state o Article 8: If the representative does not have full power to give consent then the agreement it without legal effect unless afterwards confirmed by that state o Article 9: The mode of adoption of a treaty, whether by consensus or voting, has to be agreed upon o Article 10: The means to authenticate the definitive text (or texts if the original is in several languages) must be settled o Articles 11-16: the particular steps to express consent to the treaty need to be set down o Multilateral treaties usually require more than the signature of the representative at negotiations; typically, there must be subsequent confirmation by ratification, acceptance or approval of the state o Article 18: even when a treaty requires ratification, acceptance or approval the signature has some legal effect; there is an obligation that a state which has signed a treaty has to refrain from acts which would defeat the object and purpose of the treaty until it makes its intention clear not to become a party to the treaty Form of a Treaty Does not need to be formal o Can be a written record of an agreement, OR o Can be oral As long as their in and INTENT to be bound then it is sufficient Must set out that the agreement will be binding How is a Treaty Concluded? State representative Some mode of adoption Definitive / authentic text Steps to consent to the treaty o Note that Consent is the Biggest step in creating a treaty, it has two steps: 1. Signature (states are only bound by treaties they sign) Note that a signatory is obligated to not defeat the object or purpose 2. Ratificationformal consent by signatory states This can be a complex process depending on the country Ratification is a domestic Issue; each state determines the steps necessary for ratification Whether a treaty requires ratification to bind signators is determined by the treaty itself Most multilateral treaties require this Ratification is an internal constitutional matter for each country and differs from one country to the next

14 13 Registration with United Nations o Once an international agreement has come into force, it is also registered with the Secretariat of the UN; required by article 102 of the UN Charter and article 80 of the VCLT o In Canada the department of foreign affairs maintains up to date records on the status of all treaties affecting Canada, they are published in the Canada Treaty Series When Do Treaties Enter Into Force? It really depends when a treaty comes into force, it can be a variety of different times: o Upon ratification o X date specified in the treaty o Ratification of x number of states Article 24 VCLT: The date an agreement enters into force internationally varies according to the intention of the parties; but failing and explicit arrangements it will take effect as soon as consent to be bound has been given by all parties. BUTEven if treaty not in force Signatories cannot defeat object and purpose of the treaty Note, when you have a new agreement it generally trumps an older one Paris Agreement (2015) Is it a treaty? Is it in force? Has Canada ratified the Agreement? Has the United States ratified the Agreement? Treaties in Canada State representative o Generally seen as Minister of Foreign Affairs (Stephan Dion) Order-in-Council required to become party Consultation o Parliament (Generally a treaty is tabled for 21 days to allow parliament to debate; but they can t really vote it down) o Provinces Reservations Reservations are a way for a state to announce they are not going to abide (aka comply) by certain parts of the treaty Unilateral statement made by a state when signing, ratifying, accepting, approving or acceding to a treaty; it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to the state. VLCT prohibits Reservations when: o When a Treaty prohibits reservations o Not in list of reservations specifically allowed by treaty (note that some treaties allow for certain reservations) o Incompatible with object and purpose (Reservations must always be compatible with the object and purpose of the reaty)

15 Reservations to the Convention on Genocide, ICJ 1951 State can make a reservation and be considered a party to a treaty if not all states object (some states may object) HoldingReservation must be compatible with the object and purpose Facts/Issue: The convention on Genocide was unanimously adopted by the United Nations in Several states made reservations to one or more of its provisions. An opinion as to whether a party could express reservations and still be considered a signatory was laid before the International Court of Justice. Outcome o A reservation to the U.N. Convention on Genocide may be effected by a state and still be considered a party to the convention if the reservation is compatible with the object and purpose of the convention. o The determination of what kind of reservations may be made can be found within the characteristics of the convention (origins, character, object pursued) In this case the origins show that the intention of the UN was to condemn genocide as a crime under international law The object of the convention was adopted for humanitarian and civilizing purposes Object and purpose: it was intended that is should be adopted by as many states as possible o In a multilateral treaty, as long as the reservation does not defeat the purpose of the treaty, a reservation is permitted. o By virtue of its sovereignty, it has been argued that a state may effect any reservation. o In this case, the validity of each reservation must be examined on a case-by-case basis since numerous reservations were made by different states. 14 Effects of Treaties Parties cannot blame internal law for failure to live up to a treaty (Polish Nationals in Danzig) Third-party states cannot be brought in without consent o General Rule: there can be no imposition of obligations or grant of rights for a third state without its consent o Article 35: requires that a third sate expressly accept an obligation in writing o Article 36: the acceptance of a right for a third state is presumed so long as the contrary is not indicated, unless the treaty otherwise provides o In both cases it is necessary to establish that the parties to the treaty intended the agreement to have a legal effect with regard to the third party Amendments require consent of parties o Protocols o Article 39: a treaty can be amended by agreement between parties. Modifications cannot modify object and purpose o Article 41: modification must not affect the rights ad obligations of other parties Interpretation of Peace Treaties, 1950 Facts: peace treaties with Bulgaria, Hungary and Romania provided for a system of commissions to resolve disputes concerning their interpretation and execution. Charged were made about the suppression of human rights contrary to the treaties and then the countries refused to participate in the formation of a commission. Issue: whether the provision empowering the secretary-general to appoint the third member of the commission applied to the present case, in which the parties refused to appoint its own representative

16 15 Outcome: The breach of a treaty obligation cannot be remedied by creating a commission which is not the kind of commission contemplated by the treaties; the court can only interpret treaties and not revise them. Thus, if one party fails to appoint a representative under the Peace Treaties where they were obligated to the secretary general of the UN is not authorized to appoint the third member of the commission upon request of the other party to a dispute. Termination of Treaties Usually set out in treaty o E.g., BREXIT and TEU Art. 50 Article 42(2): the termination of a treaty, its denunciation or the withdrawal of a party may take place only as a result of the application of the provisions of the treaty or of the present convention. The same rule applied to suspension of the operation of a treaty. Possible grounds for the termination or suspension of treaty obligations: the consent of the parties, material breach, supervening impossibility of performance, fundamental change of circumstance, conflict with a new norm. o Consent o Material breach o Impossibility of performance o Fundamental change of circumstances o Conflict with jus cogens norm Gabcikovo-Nagymaros, ICJ 1997 Hungary/Czechoslovakia treaty to build dams on Danube River Hungary abandoned the project, seeking to terminate the treaty Court uses customary international law to examine legality of termination Hungary s arguments o Necessity o Impossibility of performance o Fundamental change of circumstances o Czechoslovakia breached first o New requirements re environmental protection Facts: 1977 Hungary and Czechoslovakia concluded a treaty to build a series of dams in Slovakia and Hungary for the production of electricity, flood control and improvements to navigate the river. In 1989 Hungary suspended and later abandoned the project. Czech insisted they carry out the obligations, they ended up putting an alternate project of Slovak territory only, which affect Hungary s access to the River Danube. Issue: Whether Hungary brought the treaty to an end, or whether it did not meet the requirements of international law to end it, meaning that the treaty was not terminated. OutcomeBoth Hungary and Czech failed to comply with their obligation under the 1977 treaty, but none of this wrongful behaviour brought the treaty to an end or justified its termination. o o o Hungary made several arguments trying to support their position that the treaty was terminated Necessity: court said that even if a state of necessity is found to exist it is not a ground for termination of a treaty the treaty may be ineffective as long as that state exists but once one its cease to exist there is a duty of comply with treaty obligations. Impossibility of performance: Article 61 does justify termination on the grounds of impossibility of performance, but the courts found this not to be the case here

17 16 Customary International Law It is the General norms that are considered to be binding on all states Customary International Law in composed of two elements: [aka the creation of custom] o State Practice o Opinio Juris The acceptance of that practice as law (subjective element) North Sea Continental Shelf (ICJ 1969) Note this a sea territorial rights case; there was a treaty in force but Germany was not party to the treaty What is customary law in this case? o Denmark and Netherlands argue that equidistance principle is customary international law HoldingCourt does not accept equidistance as custom o No state practice o It was used as a backup method o There were reservations to the equidistance principle o The Geneva convention has only be in force 5 years o It wasn t really practiced widely o No opinio juris Dissent (Lachs) o State practice has to be more than just the number of ratifications (aka number of states) Dissent (Tanaka) o Opinio juris is difficult to discern Facts: A series of disputes that came to the International Court of Justice in They involved agreements among Denmark, Germany, and the Netherlands regarding the "delimitation" of areas rich in oil and gas of the continental shelf in the North Sea. Netherlands and Denmark argued that the equidistance-special circumstances principle in article 6(2) of the 1958 Geneva Convention should be used, but Germany relied on the doctrine of just and equitable share. The court held that since Germany had not ratified the convention they were not bound by article 6. Issue: What customary International Law existed to delimit the continental Shelf between the parties? Aka is the equidistance principle customary international law Outcome Basically: we know Germany is not bound by article 6 through the convention, but the issue remains whether they may be bound because it has become customary international law General or Customary law have equal force for all members of the international community (cannot be subject to any unilateral exclusions) Just because equidistance is written part of the convention, this does not prevent it from passing into customary international law Denmark and Netherlands argue that is it now a customary law In order for this to happen the provision should be of a fundamentally norm creating character such as could be regarded as forming the basis of a general rule of law In order to achieve this result two conditions must be met (1) the acts concerned amount to a settled practice (2) they must also be such or be carried out in a such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it Thus the states concerned must feel they are conforming to what amounts to a legal obligation In this case there is no evidence that states were acting so (aka using equidistance) because they felt legally obligated to The equidistance principle is not customary international law

18 But then what should be used to resolve this dispute. o Finding then that equidistance was not a rule of customary law, the majority ruled that equitable principles must be utilized in negotiations between the parties to delineate the boundaries Dissent: there was enough evidence to support equidistance being considered international customary law. (a number of states had followed it in agreement, legislation etc) 17 Problems of Custom State Practice o It must be more than counting states o How do we determine state practice? Take a holistic approach Look at whose engaging in it etc. Opinio Juris o States need to believe that they have an obligation to carry out the action o How do we measure this belief? State explains what they are doing o What happens when a state consistently acts against the norm? Treaties and Customary Law Treaties may crystallize custom Treaties can change custom Exceptions to Custom Regional customary law Rights of Passage over Indian Territory Case (Portugal v India) Facts: Portugal has several small enclaves of territory within India. One was on the coast but the others were inland. Portugal claimed a right of passage to its inland territories and alleged India has interfered with that right. Issue: Can there be local or regional, as opposed to universal, customary law? Outcome India says that local custom cannot be established between only two states The court sees no reason why a long continued practice between two states accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two states In these circumstances, the court was satisfied that the practice was accepted as law by the parties Where the court finds that a practice has clearly been established between two states and accepted bu the parties as governing the relations between the states the court must attribute decisive effect to the practice for the purpose of determining their specific rights and obligations Ratio: There can be local or regional customary law (aka between two states only). Persistent objectors o Made throughout o Clear and consistent

19 18 General Principles of Law Drawn from the domestic legal system o E.g., breach of contract necessitates reparation Used to fill legal gaps There is still some controversy about the status of general principles of law recognized by civilized nations Most commonly these general principles are understood as those that existed in all municipal systems of law that have reached a comparable stage of development International Status of South-West Africa ICJ 1950 South Africa was a trustee over South-West Africa (today: Namibia); they claimed that the trustee status was over Issuewas the trustee status over? What is the obligation of South Africa? [The UN Genreral Assembly asked the International Court to advise on the international status of South West Africa] Court looks to general principles of trusteeship (they decided this meaning by looking at domestic states) o Control over trustee is limited o Trustee is obliged to carry out trust for benefit of person (or public) o Attempt by trustee to absorb the property is illegal o Trustee must act on behalf and in the interest of the person The court rules that the trust still exists, South Africa must continue to act in the interest of South Aftica-West Does this approach really work? o Can looking at three different countries really establish a gernal principle? International law has recruited and continues to recruit many of its rules and institutions from private systems of law Article 38(I)(c) authorizes the could to apply general principles of law recognized by civilized nations Equity in International Law Equity in International Law o The expression equity has at least three different legal senses (1) may be used to adapt a law to the facts of individual cases (2) may be used to fill in gaps in a law (3) may be use as reason for refusing to apply unjust laws o It is important to distinguish equity in the international sense from its use in common law jurisdictions o Continental Shelf (Tusnisia v Libya), 1982 Equity as a legal concept is a direct emanation of the idea of justice, the court who is tasked to administer justice is bound by it A court may choose among several possible interpretations of the law the one that appears to be closest to the requirement of justice Problems of General Principles What is it? How do we know?

20 19 Judicial Decisions and Teachings Judicial decisions o ICJ decisions only binding between the parties But, court tries to follow previous decisions o Other courts, tribunals, establishing a track-record o Municipal courts may provide evidence of state practice Writing o Used to be highly valuable, less so now Other Sources Codification and Progressive Development Codification is one of the methods used for clarifying and developing international law The attempts at codification are the result of efforts by private organizations (such as the Institue de Droit, the International Law Association) or by international organizations (such as the UN) The UN General Assembly established the International Law commission, which is made up of 34 members who sit as individuals not representatives. Its object is the promotions of the progressive development and codification of international law There is a distinction between codification and progressive development, but the two notions over lap The progressive development of international law encompasses the drafting of legal rules in fields that have not yet been regulated by international law or sufficiently addressed in State practice In contrast, the codification of international law refers to the more precise formulation and systematization of rules of international law on subjects that have already been extensively covered by State practice, precedent and doctrine Some other Sources NOTEthese may matter, but are not binding International Law Commission o The UN General Assembly established the International Law commission, which is made up of 34 members who sit as individuals not representatives. Its object is the promotions of the progressive development and codification of international law United Nations Resolutions o UNGA Resolutions are not binding, but are instructive o The legal effect of General Assembly resolutions has proved a fertile subject of continuing discussion o The GA is empowered to make recommendations that are not considered binding per se but can have value as a means for determining international law o The GA resolutions are so varied in purpose, content and support that their legal value is very individual, depending upon the circumstances under which they are adopted and the principles that they state o Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 1996 The UN GA asked the court for an opinion of the questions: Is the threat or use of nuclear weapons in any circumstances permitted under international law? Here the courts considered the significance of resolutions for the formation of customary international law The court sais that although GA resolutions in certain circumstances help establish the existence of a customary law, it must be examined in the totality of the circumstances

21 20 In this case, several of the resolutions have been adopted with substantial numbers of negative votes and abstentions, thus they fall short of establishing the existence of opinion juris Unilateral decisions o It is possible for an obligatory rule to be formed by unilateral actions of a single state o This is extremely rare o Nuclear Tests (Australia v. France (ICJ, 1974) France has conducted nuclear test in the South Pacific, Australia and New Zealand protested and commenced these cases. But before they were heard France ended test and unilaterally announced it would not hold any more tests Declarations made by way of unilateral acts concerning legal or factual situations may have the effect of creating legal obligations An undertaking of these kind, it given publicly with the intent to be bound, even though not made within the context of international negotiations is binding. The court ruled that France had made a unilateral obligation Soft Law (do not create legal obligations or rights) o AKA: Lex Ferenda o Norms that have not yet achieved the status of settled law o Instruments that are not legally binding per se, but they affect the conduct of international relations by states and may lead to the development of new international law Jus Cogens Norms Peremptory norms, from which no derogation is permitted o Trumps treaties, it is the ULTIMATE form of custom They are not clearly devloped Potential norms o Genocide, slave trade, apartheid, attacks on diplomats, piracy, torture An open set of peremptory norms of international law It is a norm that has been accepted and recognized in the international community of States as a whole as a norm which no derogation is permitted which can be modified only by s subsequent norm of general international law having the same character AKA the principles that form the norms of international law that cannot be set aside A majority of international law does not have this character It is not the form of a general rule of international law but the particular nature of the subject matter which it deals with that give it the character of jus cogens Erga Omnes Obligations All states have a legal interest in following these obligations o E.g., ban on aggression, self-determination These don t pop up that often Hierarchy of Sources Jus cogens norms/erga omnes obligations Treaties/custom o Special over general (aka a special regime will trump a general one) o Recent over past Other sources

22 21 States Criteria for Statehood International Legal Persons Montevideo Convention (1933) o Permanent population Population must be significant and permanent No set number o Defined territory No set amount Does not need to be definitely settled Does not need to be contiguous o Government Some authority exercising governmental functions Aaland Islands (League of Nations, 1920) o Strong enough to assert without the assistance of foreign troops Today, this criteria is weaker o Congo, 1960 o Capacity to Enter Into Relations With Other States Competence under its own constitution, and practical capabilities Delegation of capacity does not undermine o Austro-German Customs Union o Bhutan o European Union 2007-today Recognition by States Done by states Declaratory vs. constitutive o Which is it? Recognition of governments vs. recognition of states Disintegration of Yugoslavia European Community Guidelines for Recognition o Respect for rule of law, democracy, human rights, rights of ethnic and national minorities, inviolable borders, settle disputes by agreement/arbitration o This seems to be a high bar! What about Kosovo? National Implication of Recognition Parent c. Singapore Airlines (QCCS 2003) o Is Taiwan a foreign state entitled to immunity under the State Immunity Act? No definition of foreign state in the act Look to customary international law Taiwan has the marks of a state

23 22 Rights and Duties of States Rights o o o Duties o o o o o o Tinoco Arbitration Independence/ sovereignty Self-defence Equality before the law Non-intervention Not threaten use of force Peaceful settlement of disputes Co-operate with states Promote self-determination Fulfil obligations Great Britain entered into agreements with Tinoco regime of Costa Rica o New government nullified obligations Was the Tinoco regime the government of Costa Rica? State Succession Absorption/merger o North Yemen + South Yemen = Yemen o West Germany + East Germany = Germany Independence/secession o East Timor from Indonesia o South Sudan from Sudan Dissolution o Czechoslovakia into Czech Republic and Slovakia Do the old states take on the rights of the new states? o Depends o Default is a blank slate Occupation does not eliminate statehood Idea of failed states is a political one What if a state loses its territory? Self-Determination The scope of this right is undetermined o Minority rights? o Autonomy? o Right to secession? Clash between norms o Secession versus stability of states

24 23 Non-State Entities Although states are prototypes of international legal persons, international law does not prevent other entities from acquiring a measure of personality In order to do so a candidates claim to exercise legal personality must be respected by other international persons (that is by the existing community of states) Main Question: does the practice of states demonstrate their readiness to permit this candidate to exercise any specific legal capacity on the international plane? o It yes, then it can be said to have attained international personality for that purpose (even though it may be very far from having plenary powers of a state Exceptional Entities Tiawan o They claim they are the representative of China, so both are claiming to represent China o At one time it was recognized by the western world as China o This changed for a number of political reasons TRNC Holy Sea o Vatican City o In the 1800 s the Vatican actually controlled territory that was eventually conquered by Italy o In 1929 a treaty between the Vatican and Italy said that the Vatican has sovereignty in international relations o Today it is short of a state, it has observer status in the UN International Organisations (IOs) Established by states via treaty o Treaty is a multilateral treaty o Treaty also sets out charter of IO They have an international personality For our purposes international organization refers to intergovernmental organizations, as opposed to nongovernmental organization of an international character There are hundreds of such organizations that currently exist and address every type of interest and activity of humanity Not only are they diverse but also have wide variation in scope, structure and powers, which makes it hard to identify one all encompassing model that explains the personality of such organizations The treaty serves two functions: o Normal Rules of Treaties o Rules of the IO (the Charter) Legality of the Use by a State of Nuclear Weapons in Armed Conflict (ICJ 1996) WHO asks for an advisory opinion from the ICJ To ask for an advisory opinion: o Organisation must be authorised under UN Charter o Question must be a legal question o Question must be within scope of activities of organisation WHO is a health organisation o This is not a health-related question

25 The United Nations The most widely understood IO!!! Note it is an IO Why the UN? o Maintain international peace and security o Bring about dispute resolution by peaceful means o Develop friendly relations among nations o Cooperate in addressing economic, social, cultural, and humanitarian issues and encourage respect for human rights The UN is a pre-eminent example among international organizations and its universality and breach of functions makes it unique in many respects Purpose o Purposes are set out in Article 1 of the Charter it includes: inter alia, to maintain international peace and security, including the taking of collective action for the prevention and removal of those threats to the peace and suppression of aggression; to bring about the settlement of international l disputes by peaceful means; to develop friendly relations among nations based on principles of equal rights and selfdetermination of peoples and to cooperate in addressing economic, social or humanitarian problems Fundamental principles o Guide to the organization and members in the pursuit of its purpose o Set out in article 2, includes: respect for principles of sovereignty and equality, a commitment to settle disputes in a peaceful manner and to refrain from the threat or use of force against the territorial integrity or political independence of any state In practice the UN s ability to cope with world crises is only as great at the commitment of the sovereign states who are its members, the powers provided to its principle organs and the institutional machinery provided to the organization Respects sovereignty and equality of states Six main organs o General Assembly Located in NY I state=1vote Only meet once a year for a couple weeks Parliamentary Assembly All states are members Makes non-binding recommendations but they serve as evidence of state practice Formulates and adopts multilateral treaties The General Assembly consists of all member states of the UN, with each having one vote. The GA has 6 main committees and a number of commissions and programs to report to The Assembly proceeds via recommendation rather than binding decisions (except for a few exceptions) o Security Council Executive body of the UN Fifteen members o P-5 and ten members for two-year terms Focus is on: o Pacific settlement of disputes o Enforcement measures o Peace Keeping The Security Council is made up of 5 permanent members (China, France, Russia, USA, and UK) and Ten other members elected by the GA (who are elected for 2 terms) 24

26 25 o o o o o The permanent members each have a veto power with respect to any non-procedural matters The council can make decisions that have a legal binding effect on members The SC is primarily responsible for the maintenance of international peace and security The SC may decide on mattes not involving the use of armed force to give effect to its decisions, but it can also take action when necessary to maintain or restore peace and security Economic and Social Council Secretariat International Court of Justice Trusteeship Council (defunct) The Trusteeship council completed its work in 1994 with the independence of Plau, the last of the Trust Territories, thus it is not defunct Namibia Case (ICJ 1971) Namibia became a German colony in 1884 Administered as a mandate under the League of Nations (recall the International Status case) South Africa refused to surrender the mandate UNGA revoked mandate/trusteeship Security Council called upon South Africa to withdraw Court finds: o South Africa materially breached the trusteeship o Security Council decisions are binding on UN Members Namibia Case, Advisory Opinion 1970 Facts: SC called upon South Africa to withdraw from Namibia. SA failed to do so and the SC passed resolutions that declared SA presence in N illegal. The SC request an advisory opinion to determine what the legal consequence for states of the continued presence of SA in N. Outcome The SC when adopting theses resolutions was doing what it deemed to be its primary responsibility, the maintenance of peace and security Article 24 invests in the SC the legal authority to take action, such as was done here The members states must comply with this decisions, including those who voted against it SA continued presence in N is illegal, and member and non member states must act in accordance with those decisions Legal Personality of the UN Article 104 of the UN Charter provides that the organization shall enjoy in the territory of each of its member states such legal capacity that may be necessary to exercise its functions and fulfill its purposes The ICJ determined the legal status and personality of the UN in the Reparations Case Reparations Case (ICJ 1949) UN mediator killed in Jerusalem (Israeli territory) Can UNGA bring a claim for damages on behalf of a) UN and b) survivors of the Count? UN needs some sort of legal personality to achieve its goals Charter does not give UNGA explicit authority to bring the claim o But, this authority should be implied as the UNGA should be able to look out for its agents

27 Reparations Case, Advisory Opinion 1949 Facts: a Swedish national and UN mediator in Palestine was killer in Jerusalem which was in Israeli possession. At the time Isreal was not a member of the UN. The questions raised here was whether the UN had the legal capacity to bring a claim against the responsible government with the aim of reparations for damages caused to the UN and to the victim Outcome The UN is an international person This means it is subject to international law and capable of possessing international rights and duties, and within that capacity has the right to bring international claims When the organization has sustained damages result from a breach by a member it can obtain reparations by bringing an international claim Can it bring a claim on behalf of the victim? YES o Traditional rule is that diplomatic protection is exercised by the national state o o But this rule gives no reason that an organization cannot bring a claim for damages The charter does not expressly give the organization the capacity to include reparations for victims, but it may be the case the injuries sustained by a person will be in such a manner the national state cannot bring a claim o In order for the agent to perform their duties satisfactory they must feel that they are protected by the organization, they should not have to rely on protection for their own state o The organization can bring a claim reparation for damages suffered by the victim Can they make a claim against a state which is not a member of the organization? YES o Fifty states, which represent the majority of the international community, have the power in conformity with international law to bring into being an entity possessing objective international personality 26 Individuals Traditionally, do not have legal personality o Has to be exercised via state However, human rights treaties are changing this o E.g., European Convention on Human Rights, Inter-American Convention on Human Rights International criminal responsibility (which we ll discuss later!) Until the 20 th century the prevailing opinion was that the state alone possessed true international legal personality with respect to both rights and obligations The individual has increasingly been recognized as having some status at international law There has been a surge of conventions about human rights and humanitarian laws Individuals have had obligations impose by intentional law for a long time (example: WWII war crimes trials) Individuals can be prosecuted for criminal violations of international customary or conventional laws Peoples Seeking Self-Determination It is not entirely clear what self-determination entails Right for people to choose how they wished to be governed What does this mean re legal personality? The interests and identity of people are not limited to individual rights, groups of people around the work assert collective rights In the UN practice, the right to self-determination has been the basis for decolonization of dependent territories in the 1960s and 1970s (but this has not settled the issue of self-determination in a broader context)

28 27 Western Sahara Case (ICJ 1975) Former colony of Spain o Claimed by Morocco and Mauritania Do either of these states have legal ties to create a claim? o No Self-determination allows o Becoming a sovereign, independent state o Free association with an independent state o Integration with an independent state Israel building a wall in Occupied Palestinian Territory States have the duty to refrain from actions that deprive peoples of their rights to self-determination Today Westen Sahara is very much up in the air Western Sahara Case, Advisory Opinion 1975 Facts: Western Sahara have been a colony of Spain, its population was mostly nomads. UN invited Spain to decolonize and Morocco and Mauritania both claimed the territory. An advisory opinion was brought about the status of the territory, in course of dealing with that the court addressed the issue of self-determination Outcome Free association should be the result of a free and voluntary choice of the peoples of the territory concerned expressed through informed and democratic process Any integration into an independent state must be done as a result of freely expressed wished of the territory s people acting with the full knowledge of the change of their status The principle of self-determination is not affected by the fact that the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory at time (those instances were either based on the consideration that a certain population did not constitute people or due to some other special circumstances) 1970 Declaration Concerning Friendly Relations Nothing shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour. This activity violated the right of self-determination of Palestinians States cannot deprive persons of self-determination Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, AO 2004 Facts: A wall was being built by Israel, and General Assembly sought an advisory opinions about the legal consequences of such a wall Outcome The construction of the wall is contrary to international law, Israel was obligated to cease construction and make reparation payments Other states are obligated not to recognize or assist in maintaining the situation Palestinian people had been recognized, thus the wall impedes exercise of Palestinian people to selfdetermination, thus Israel is breaching that right The obligation erga omnes violated by Israel are the obligations to respect the right of Palestinian people to self-determination

29 28 Reference re Succession of Quebec (SCC 1998) Does international law grant a right to unilateral succession? o There is no prohibition, but there is importance on territorial integrity o If domestic law prohibits, international law is likely to prohibit as well Self-determination should be sought within the state Self-determination is accessible to: o Colonial peoples o Oppressed peoples o Peoples who are blocked from meaningful exercise of self-determination Reference re Secession of Quebec, 1998 Facts: Governor in Council refereed a questions to the SCC concerning the possibility of the secession of Quebec. Issue: does international law give the government of Quebec the right to secession from Canada unilaterally? Outcome International law does not specifically grant component parts of a sovereign state the right to secede unilaterally But it also does not expressly prohibit it International law places a lot of importance on the territorial integrity of national states and by and large leaves the creation of a new state to be determined by the domestic law of the existing state (thus if unilateral secession would be compatible with domestic laws international law will likely accept it) People have the right to self-determination, this is widely recognized and undisputed BUT, this does not mean that international law is encouraging or authorizing any action that would dismember of impair the territorial integrity of independent states International law principles of self-determination have evolved within the framework of respect for the territorial integrity of existing states Colonial peoples have the right to exercise self-determination (this is undisputed but irrelevant here) Self-determination is also permissible when a people are subject to alien subjugation, domination or exploitation outside the colonial context (also not the case here) Possible third circumstance? when a people are blocked from the meaningful exercise of its right to selfdetermination internally are allowed as a last resort to exercise secession o BUT even if this third one is possible, Quebec does not meet those conditions o They have not been denied access to government etc. If people do not meet the circumstances that have been established as acceptable for self-determination then they must achieve self-determination within the framework of their existing state If they chose the secede without any domestic or internationally approved means then it is unsure if they will be recognized by the international community (which will take into account a number of factors) Kosovo (ICJ 2010) Is the Kosovo declaration of independence a violation of international law? o No o This is not an effect of succession from Serbia o This was a declaration of independence, as opposed to succession

30 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, AO 2010 Facts: Kosovo came under the interim administration of an international civil and security presence, which continued until an assembly of Kosovar representatives declared independence from Serbia. The General Assembly sought an advisory opinion on whether the unilateral declaration of independence was in accordance with international law. Outcome The declaration did not violate any resolutions and there was no rule of customary international law prohibiting the declaration of independence The right to self-determination have experiences major developments during the second half of the 20 th century 29 NGOs and TNCs NGOs not international persons TNCs are not international persons But both are being subjected to soft-law standards Example: International corporations have to live up to human rights stanadards Non-Governmental Organisations There are many organization of a truly international character that are non-governmental in character These NGO s tend to be overlooked by lawyer as participants in the international system because they do not possess even the limited legal personality of the intergovernmental cousins The status of NGO s at international law has been recognized to some extent by the UN Charter (article 71) They have consultative status, which typically permits them to send representatives to meetings as observers, to submit written material as UN documents; aka they can participate but cannot influence the work of the body by voting etc. Transitional Corporations The traditional approach would be to deny transitional corporations status as subjects of international law But the actual status of them in must more complex They are still legally equated with the individual They have certain rights and sometimes responsibilities under international law European Union It does have an international legal personality Treated the same as IO s

31 30 National Application of International Law States are bound to absorb or translate international laws into domestic laws in order to give effect to them within their own jurisdiction Two Important questions: 1. To what extent is international law part of the law of Canada? 2. How is international law received in Canada? Remember that Canada is a sovereign state and has authority over its own governance, so the answers to these questions will be typically found in national law (constitution usually) rather than international law Role of the State Some law is purely international o E.g., peace treaty Much of international law affects domestic issues o E.g., harmonization of copyright law How is international law implemented? Two possible approached o Monist method Automatic incorporation International law is adopted or incorporated automatically within the internal legal system of the state o Dualist method Incorporated by the state Involves an act of transformation, typically legislative, but he state to translate international law into its domestic law The Canadian constitution hardly mentions the conduct of Canada with respect to foreign relations or the reception of international law; but the practice has been to follow British common law in the reception of international law Customary International Law Canada has a monist or adoption approach when it comes to customary international law This approach has had long standing in English law, but was only affirmed by Canada in R v Hape Customary international law modifies existing common law BUT has not effect in the fact of clearly contrary legislation R v Hape, SCC 2007 Facts Issue Outcome RCMP investigates Hape s alleged money-laundering in Turks and Caicos Turks and Caicos authorities cooperate with RCMP o No warrants were used in the RCMP searches (which was legal in Turks and Caicos) Did the searches violate the Charter? AND does the charter s.8 apply to searches and seizures conducted outside of Canada? Charter does not apply extraterritorially o Customary international law of sovereign equality and non-intervention

32 31 According to the doctrine of adoption the court may adopt rule of customary international law as common law rules in order to base their decisions upon, provided there is no valid legislation that clearly conflicts with the customary rule In Canada the court has implicitly and explicitly applied this doctrine, there is a long list of cases which have applied it The automatic incorporation is justified on the basis of international custom Parliamentary sovereignty dictates that a legislature may violate international law but it must do so expressly Jus Cogens in Canadian Law Jus cogen: peremptory norm of international law from which no derogation is permissible Suresh v. Canada (SCC 2002) Facts Issues Outcome Refugee from Sri Lanka Canada sought to deport Suresh for security reasons under the Immigration Act which granted the minister discretion to deport Suresh claimed that if he was deported, he would be tortured What role does jus cogens play in Canadian law? Is the prohibition on torture considered jus cogens? The Charter is influenced by international law o The minister has discretion o But, the prohibition against torture is so overwhelming, it must be considered The principles of fundamental justice expressed in s.7 of the Charter cannot be considered in isolation from the international norms which they reflect There is compelling evidence to support Torture as a premtory norm The court decides that international law rejects deportation to torture, even when national security interests are at stake, thus this norm must inform the content of the Charter Thus the Minister is obligated to exercise the disrection conferred upon them by the Immigration Act in accordance with the constitution; it follows that if the immigration act leave open the possibility of deportation to torture the minister should generally decline to deport a refugee where there is evidence there is a substantial risk of torture In exception cases it may be justified, because of the balancing of s.7 and s.1 Note Judges take notice of Canadian law and since customary international law in part of the law of Canada they should take notice of it too A majority of Canadian cases take notice of both customary and conventional international law without actually commenting on it Today international law can be complex so the courts often rely on lengthy submission and expert evidence to learn relevant international laws

33 Treaty Implementation Authority o Not allocated in the Constitution o Global Affairs suggests that this is a prerogative power o For some time the federal government has followed the practice of consulting with the provinces on various questions relating to treaty making and implementation Provinces o Can enter into agreements with foreign entities o Often done with federal cooperation o Quebec: maintain that the provinces have the capacity to enter into treaties with respect to matters that are within their exclusive jurisdiction Ratification o Undertaken by Cabinet (executive government) o 2008 Policy on Tabling of Treaties in Parliament Objective: to ensure that all instruments governed by public international law between Canada and other states or international organization are tabled in the house of commons following their signature or adopting by other procedure and prior to Canada formally notifying that it is bound by the instrument Explanatory Memorandum 21-day tabling period Implementing legislation generally required o Implementing in the process of giving effect to the provisions of the treaty within the national legal system o Modes of implementation by statute Incorporate the actual text of the treaty into domestic law Incorporate the substance of the treaty into Canadian law Note: sometimes legislation is enacted to give effect to a whole class of treaties Incorporate the underlying treaty as it may be amended over time o In Canada, for the purposes of applying international law locally a distinction is drawn between customary and conventional international law Customary international law is simply adopted automatically as part of the law of Canada (R v Hape) This approach (monist) does NOT apply to treaties Labour Conventions Case (Privy Council, 1937) Canada ratified ILO Conventions Federal Parliament passed legislation to comply Provinces claimed this intruded on their area to legislation under the Constitution Act, 1867 Making a treaty is within the federal government s authority Implementing the treaty requires domestic legislation, which implicates the Constitution Act, 1867 Executive must obtain assent of provinces More restrictive interpretation of POGG power 32 Note The strictures of Labour Conventions can be circumvented in some ways Examples: Federal State Clause (allows Canada to ratify a treaty with respect to one or more of the provinces that signify their agreement, however this kind of fractional ratification is unpopular internationally); Transformative

34 33 legislation is only necessary if a treaty s provisions call for a change in Canadian law; some treaties may not need statutory implementation because they may be carried out under existing law Process: typically, prior to ratification the DOJ looks at it and reviews issues of jurisdiction and make recommendation about legislative acts that need to happen to implement it (sometimes no action is recommended if it would just be repetitive etc)but it can be slightly dangerous to have no legislation on the treaty because the courts tend to look for an explicit statement of the intention to implement the treaty before they give effect to it in Canadian law o Thus it may happen that a judge make take the view that an existing treaty which does not require special implementing legislation (because there already exists a constitutional provision or law or regulatory power providing for its operation) in no genuinely implemented R. v. Crown Zellerbach (SCC 1988) Crown Zellerback charged with dumping waste into marine waters in BC territory Contrary to Ocean Dumping Control Act o This act brought Canada into compliance with London Convention on Marine Pollution Is the Ocean Dumping Act a valid exercise of federal authority? Court said yes, broadening the scope of POGG which was limited in Labour Conventions Marine pollution is extra-territorial in nature, and a Canadian concern Hard to set a clear boundary in the seas Ocean Dumping Control Act is a valid exercise of POGG powers Interpretation and Conflicts Customary o Adopted, absent conflicting legislation o Customary law modifies existing common law but does not have any effect in the face of clearly contradictory legislation Treaties o Statute prevails over unimplemented treaty o Statute is presumed to conform to implemented treaty, unless wording clearly compels otherwise o Treaties may have some effect on the way a statue is interpreted o Formally Canada would apply Canadian principles of statutory internpretation to legislation that implemented treaties, BUT that has changed and now the courts have adopted the view that they should use international rules of interpretation found in the Vienna Convention when interpreting legislation based on international treaties o R v Hape It is a well-established rule of statutory interpretation that legislation will be presumed to conform to international law (presumption of conformity) Court will strive to avoid constructions of domestic law to which the state would be in violation of its international obligations This is because the legislature is presumed to be compliant with Canada s international treaties and because the legislature is presumed to comply with values and principles of customary and conventional international law This presumption is rebuttable is parliament has demonstrated an unequivocal legislative intent to default on its international obligations

35 Unimplemented Treaties Government has not passed implementing legislation May be treaties which provisions requires changes in domestic law but the necessary legislation has not yet been passed HOWEVER, the courts may also consider unimplemented treaties as those treaties which stipulations are thought to be already embodied in Canadian law; these treaties are binding on Canadian law but their provisions have not been addressed by specific legislation because the DOJ has determined that existing law of Canada is sufficient to fulfil them Baker v. Canada (SCC 1999) Jamaican citizen enters Canada in 1981, stays o Never acquired permanent resident status o Gave birth to four children Government seeks deportation in 1992 o Baker seeks permanent residents on humanitarian and compassionate grounds What role does the International Convention on the Rights of the Child play? o Canada is a party (has ratified) o Language on interests of the child not in the Immigration Act International human rights law helps inform the contextual approach to statutory interpretation Treaties with Indigenous Groups Not treaties under international law Canadian Foundation for Children v. Canada (AG) (SCC 2004) S. 43 of the Criminal Code allowed parents and teachers to use minor physical force to discipline children Does this violate ss. 7 or 15 of the Charter? Court looks to the Convention on the Rights of the Child o Child is to be protected from violence o But, parties are also to respect rights and duties of parents o Clear that cannot torture or use cruel, inhuman, or degrading treatment No clear banning of all corporal punishment Court looks to European Convention on Human Rights o Canada is definitely not a party Court also looks to the European Court of Human Rights o Uses a case-by-case approach re corporal punishment, looking at the totality of the circumstances Should the SCC make reference to these instruments/bodies? This case demonstrates how international treaties are contextually relevant, as well as other related international material and may be used by the court to inform its interpretation of a statute Paris Climate Agreement (2015) As of Sept. 22 o 60 states ratified (55 threshold) o 47.7% of global GHG emissions (55% threshold) o Canada has not ratified, worth 1.95% of global GHG emissions (8 th -largest) Problems o Provinces are upset that agreement might be ratified prior to a First Ministers meeting o Federal government is talking about imposing a price on carbon 34

36 35 Establishing Jurisdiction State Jurisdiction The Concept of Jurisdiction limits of legal competence of a state to make, apply, and enforce rules of conduct upon persons Two types: Prescriptivesaying you can t go something etc. Enforcementactually enforcing it Two Methods Territorial Jurisdiction in international law means the competence of a state to prescribe and enforce rules of domestic law governing conduct within its territory [territory of the place it happened] Nationality Jurisdiction in international law means the competence of a state to prescribe and enforce rules of domestic law governing the person, property and conduct of its nationals [nationality of the person involved] Historically states were deemed to have complete autonomy over all matters within their territory This is an inaccurate conception since it is clear that when a state does on and with its territory is subject to specific limitations set by customary international law Since states are sovereign and equal it follows that one state may not exercise jurisdiction in a way that interfers with the rights of other states Basics of Territory In traditional international law the surface of the earth and the regions above and below it may be subject to one of three possible regimes o Sovereignty of a state o Res communis o Res Nullius Sovereign territory Territory of a state The Territory of each state is tri-dimensional o Surface: land, coastal areas o Subsurface o Airspace States have sovereignty over the airspace above their territories, but the idea was limited significantly in the 20 th century when air travel became possible The convention on international civil aviation (aka the Chicago convention) was in response to the need for inter-state cooperation regarding aviation Article 1: each state has complete and exclusive sovereignty over the airspace above their territories Unauthorized entry into airspace by a foreign military aircraft is treated as a hostile act The convention provided for the creation of the International Civil Aviation Organization, a special agency of the UN

37 Res Communis Terra nullius Despite there being generally agreed rules of civil aviation, state take intrusions into their airspace very seriously and there have been a number of incidents where civilian aircrafts were shot down by states which mistook them for military intruders Outer Space shared by all states and incapable of lawful appropriation by any state (ex: high seas, outer space) No set boundary The questions of when sovereignty ends and free outer space begins continues to defy all attempts at a resolution The matter remains legally unsettled It is clear that outer space is a legal space that states make use of and it can be governed by international law Outer space and celestial bodies are free for use and exploitation by all states Outer Space Treaty, 1967 o Cannot appropriate outer space nor celestial bodies o Cannot weaponise space Liability for satellites crashing o Cosmos 954 Antarctica Subject to claims by seven states Antarctic Treaty, 1959 suspends those claims (this means they can t fight over the claim) It is generally treated as a res communis kind of area Really, just a bit of Antarctica left A piece of land unclaimed by any state, but capable of being claimed (today there is only one portion of Antarctica that is re nullius) Limits of Sovereignty 36

38 37 Methods to Acquire Territory Effective apprehension (includes conquest; which is problematic and probably today isn t a viable option) Cession Secession Prescription (peaceful occupation) Accretion Island of Palmas Case (PCA 1928) Dispute over who exercised sovereignty over the Island of Palmas [between US and Netherlands] o US colonizing Philippines; Netherlands colonizing Indonesia o Dutch claimed continuous and undisputed display of authority Arbitrator examined how a state might acquire sovereignty Effective apprehension and cession discussed Note that they only looked at the Dutch and American Claims, this is telling of the time (dealing with colonies) Island of Palmas Case (Netherlands v US), 1928 Facts The island was considered by N to be part of the Dutch East Indies, the US said it was included in the Phillippine Archipelago ceded by Spain to the US. N claimed sovereignty by virtue of its continuous and undisputed display of authority over the island during a long period of time. Issue: Which state does the island belong to? Outcome Territorial sovereignty belongs always to one, or in exceptional circumstances to several states, to the exclusion of all others If a dispute arises over sovereignty over a portion of a territory it is customary to examine which state posses a title superior to that of the other state BUT if the facts show that the other party has actually displayed sovereignty then title is not enough Title of acquisition of territorial sovereignty in present day international law are either based on an act of effective apprehension, such as occupation or conquest or like cession presupposes that the ceding and cessionary power or at least one of them have the faculty of effectively disposing of the ceded territory The continuous and peaceful display of sovereignty is as good as titlethis is one of the most important considerations It should be noted that manifestations of territorial sovereignty may be in different forms according to the conditions of time and place Netherlands won Ratio When determining territorial sovereignty, you should look to see which state possess superior title. However, the continuous and peaceful display of sovereignty is as good as title. Territory in Canada Canada and the International Legal Order: An Insiders Perspective o Canada s boundaries were not made final until as late as the Alaska Panhandle dispute of 1903 St. Catharines Milling and Lumber Co v the Queen, 1887 o Questions before the court: whether under the BNA some 50,000 square miles of timerland in Ontario belonged to the province or the dominion of Canada o The kind was vested with the ownership of all the ungranted lands in the colony (Canada) as part of the crown domain

39 38 o The king granted lands with the understanding that if any of these lands were occupied by aboriginals it was the responsibility of the grantees to get rid of them (either by chasing them away or by conciliatory policy) o Thus the aboriginals were never construed as having a legal right to the territory o In 1763 France ceded to Great Britain all of her rights of sovereignty, property and possession over Canada- this included the land now contested o To exclude the lands occupied by Aboriginals would mean no land passed from France to Great Britain The islands of the Artic archipelago belong to Canada, with the exception of a tiny uninhabited island (Hans Island) which Denmark said is theirs (thus this island is still being contested) Difficulties have arisen over the years over the boundaries between USA and Canada, but they have always been settled in a peaceful means in accord with the spirit of the Treaty of Ghent (Dec 1814)- there shall be a firm and universal peace between his Birtannic Majesty and the US Disputes Over Territory Often over uninhabited islands (usually because of resources) Guiding principle of uti possidetis juris (respect for pre-existing borders) o These disputes are generally settled by respecting pre-existing borders o This is probably to keep some sort of peace and stability Almost all land territorial disputes in the last decade have related to either islands or to land land boundary disputes There has been a shift away from forceable acquisition in recent years to international courts and tribunals playing an important role in resolving disputes Most commonly these bodies that are disputed are left over from an era of post-colonization Uti possidestis juris principle: there is an obligation to respect pre-existing borders and the territorial implications that flow from them Jurisdiction Over Nationals Individuals Nationality is the link between the person and the state Controlled by domestic law (primarily) must be consistent with international law Establishment o Jus soli (being born in the territory of the state) In Canada we primarily use Jus Soli (Canada Citizenship Act); Canada is being a bit more restrictive of Jus Soli o Jus sanguinis (be born to a natural of the state) may be issue about whether it follows the mother or father o Naturalizationyou gain nationality (citizenship of that state) Right of protection by the state Statelessness Corporations Ships, aircraft, spacecraft Nationality is the legal relationship between the state granting it and the individual A mans nationality is a continuing relationship between the sovereign state and the citizen. The fundamental basis on a persons nationality If their membership of an independent political community. This legal relationship involves rights and corresponding duties for both the state and citizen

40 39 Nationality is important in international law because it is the basis of a states jurisdiction over persons, bother human and judicial, beyond its territory Nationality and Citizenship o The terms citizen refers to a person who is endowed with full political and civil rights in a state. The terms national, although includes a citizen, also refers to a person who is not a citizen but has a right to protection of the state and in turn owes allegiance to it. o A national may be denied the rights of a citizenship, but it will never lose its nationality itself on this basis o Nationality may be acquired by birth (birth in the territory, or birth outside the territory but to parents who are nationals of the state) o Naturalization: an alien receiving a foreign nationality upon an application made by them Canada s Citizenship Act has been amended a number of times in recent years, slowly becoming more restrictive in its approach Nottebohm Case (ICJ 1955) German national living in Guatemala Became a naturalized citizen of Liechtenstein in Oct Left Guatemala, tried to return in 1943, and denied entry (also had his possessions confiscated) Liechtenstein brought a case Was Nottebohm a national of Liechtenstein? Courts decided that even though it is up to states to determine nationality domestically; this does not necessarily mean international recognition This is a problematic case in international law the genuine connection aspect goes against the rule that countries get to decide domestically who is a national Nottebohm not a national of Liechtenstein for this case o Normally up to national law o But international effect is at play here o No genuine bond of connection Nottebohm Case (Liechtenstein v Guatemala), 1955 Facts An application filed by L against G claiming damages in respect of various war measures that G had taken against the person and property of N who was born a German national byt was alleged to have become an L citizen. G said L s claim was inadmissible, putting N s nationality at issue. Issue: Was N a national of L? (Whether the national status granted to N by L must be recognised by other states) Outcome The court must deal with this issue without considering the validity of N s naturalization according to the laws of L (L is a sovereign state and have a right to settle through its own legislation rules governing naturalization) The act of naturalization of N was within L s right to exercise domestic jurisdiction But the court must determine if the factual connection between N and L appears to be sufficiently close to regard the nationality conferred upon him as real and effective At the time of his naturalization does N appear to have been more closely attached to L then any other state? N was settled in G for 34 years, he returned there shortly after his naturalization and it remained the centre of his interests and business activities, when he left at one point and tried to come back G refused His connection to L are tenuous. No settled abode, no prolonged residency in the country, no intention of settling there has been shown (he actually shows an intention of returing to G) The facts establish the absence of any bond or attachment between N and L; but do show a close connection between him and G The naturalization was not based on any real prior connection with L; it was lacking in the genuineness Thus G is under no obligation to recognize a nationality granted in such circumstances, L cannot extend its protection to N

41 Ratio In the case of a person who may possibly be a national of different states, in determining if the nationality claimed must be recognised by other states the court will look to determine if there is a genuine connection between the person and the state. 40 Flegenheimer Claim, 1958 Facts F lost his US nationality in 1894 when he acquired German nationality. In 1940 under German law he lost his German nationality and was rendered stateless. The US espoused his claim before the commission for property damages in WWII. The commission dismissed his claim but still addressed the argument that even if he had retained his US nationality status it lacked the genuine connection required by N. Issue: Do different considerations apply in a case involving only one nationality? (as opposed to the N case which dealt with two) Outcome It is doubtful that the international court intended to establish a general rule of international law requiring that there must be an effective link between the person and state (N Case) This case dealt with a scenario where two bonds of nationality were equally found in law, thus a stronger one must be determined to see which one was effective In this case here the person is vested with only one nationality this different considerations are necessary Ratio In the case of a person vested with only one nationality there is not need to establish an genuine connection between person and state (aka the N rules do not apply) Both of these cases above deal with the right of a state of extend diplomatic protection to their nationals Adding Proving and Losing Nationality o An individual may have more than one nationality o As society becomes increasingly more globalized this is necessary o Diplomatic protection for the person is usually only available from the state whose nationality is predominant o Both having a nationality and losing it comes with significant legal consequences o Under international law states have the right to exercise jurisdiction over the conduct of their nationals even when the conduct takes place outside of the states territory o In terms of proving nationality, a valid passport is the best form of proof, although it is usually only considered as prima facie proof (issuing passports is a matter of domestic law) o Nationality can be renounced by an individual o A state can also stripe individuals of their nationality o Some states do not allow people to retain their nationality if they acquire additional nationalities (NOTE this is not the case in Canada, you can have multiple ones here) o The loss of a nationality renders a person stateless Stoeck v Public Trustee Facts The plaintiff sues PT for a declaration that he was not on January and is not a German National. Issue: Can an individual be stateless? Outcome The evidence shows the individual lost his German nationality for all purposes It is not suggested that he acquired any other nationality He is stateless German municipal law recognizes the condition of a stateless person- this this is possible for the individual here

42 41 Corporations Determining the nationality of corporations is complicated by two features of their character 1. They have a variety of contacts with different countries 2. Unlike individuals, corporations are judicial persons by virtue of national legislation Barcelona Traction, Light and Power Co. (ICJ 1970) BT formed under Canadian law, but business solely in Spain Shares largely owned by two Belgian corporations BT goes bankrupt, Belgium seeks to intervene Has a right of Belgium s been violated? o No Is Spain the national state of the company? o No Barcelona Traction, Light and Power Co Case (Belgium v Spain), 1970 Facts BTC was formed under Canadian Law. The company was declared bankrupt in Spain, at the time a high percentage of its shares were owned by two large Belgium corporations. Belgium claimed compensation from Spain on account of the manner in which the Spanish authorities permitted the bankruptcy of the company and disposal of its assets. Issue: Does Belgium have the right to bring the claim? Outcome When a state admits into its territory foreign investments or nationals it is bound to extend to them the protection of the law and assume obligations concerning the treatment afforded to thembut these obligations are not absolute nor unqualified In order to bring a claim in respect of the breach of a such an obligation a sate must first establish the right to do so Here the question becomes: has a right of Belgium been violated on account of its nationals having suffered infringement of their rights as shareholders in a company not of Belgium nationality? In this case the company still existedthe entity never ceased to exist this it is still capable of defending its rights etc. Canada is the national state of BTC (There is no generally accepted best of genuine connection for corporations) o It was incorporated in Canada and registered in that country o In remained under the law of Canada for a period of 50 years o Its registered office, accounts and share registers are in Canada o Board meetings took place there o At a certain point Canada stopped acting on behalf of BTC; but they were within their right to do so A state may exercise diplomatic protection by whatever means it thinks fit, a legal person has no remedy in international law if they feel their rights are not adequately protected (that is a domestic issue) The general rule when an unlawful act is committed against a company is that he national state of the company alone can make the claim The court rules that Belgium does not have a right to make a claim Ratio A national state of a corporation is the one with the right to bring claims when unlawful acts have been committed against it. A state is within its prerogative to exercise diplomatic protection as it sees fit (aka they may not act if they choose not to).

43 Ships, Aircrafts and Spacecraft Ships carry the nationality of the state whose flag they fly Aircrafts have the nationality of the country of their registry No unregistered aircraft is allowed to fly in the national airspace of any country or in international airspace MH14 Investigation o July 2014 a flight was shot down in Ukraine o Today investigation says it was shot from rebel territory but the missile came from Russia o Who has jurisdiction to maybe bring Russia to the ICJ? Malaysia: nationality of the aircraft Any of the nationals in the aircraft Ukraine: it happened in their territory Netherlands: where the aircraft took off (they have been leading the investigation, many Dutch were on board) 42 Exercising Jurisdiction how states go from claiming jurisdiction to acting exercising it Introduction Prescriptive and enforcement (prescribing a rule and then enforcing it) o Prescriptive domestic laws apply abroad, but they are difficult to execute States must have a legal claim over both the subject matter, and the person in exercising jurisdiction Subject Matter Jurisdiction States may exercise jurisdiction over any subject matter within their territory o So long as international obligations are not violated Exercise of jurisdiction in another state s territory: extraterritorial jurisdiction State in which a crime was committed has jurisdiction over the offence Problems begin to arise when activities take place across multiple states Examine the connection between the state and the offence The Steamship Lotus (France v. Turkey) (PCIJ 1927) Collision on the high seas outside of sovereign jurisdiction Lotus (French) collided with Boz-Kourt (Turkish) o Eight Turkish nationals died Lotus pulls into Constantinople (now Istanbul), and officer of the watch was convicted under Turkish law Could Turkey prosecute the French officer for actions on the high seas? The court looked at the Turkish penal code allowed it (prescriptive jurisdiction) The effects of the conduct were on the Turkish vessel o Treated as though the conduct took place on Turkish territory The court said there are not many restrictions on what a state could do, but there are some o If the ship had been pulled in a french port, Turkey they could not have arrested them o The Turkish boast is of Turkish nationality; thus it is treated as if it took place in Turkish territory o Basically because it was pulled into a Turkish port and Tukey was the ones feeling the effects of the collision they could arrest them

44 43 Libman v. The Queen (SCC 1985) Telemarketing scheme o Sales personnel employed in Toronto o Telemarketing to US residents o Shares in a Costa Rica company o Payments going to Costa Rica and Panama Multi-jurisdictional case L argued that Canada had no jurisdiction because the offence of fraud causes the loss of money and no Canadians lost money (Americans did) The SCC did not agree o There is a basic presumption against applying law outside of Canada (but this is not absolute) Libman argues that the fraud occurred in the US (deprivation of the victims) Basic presumption against applying laws outside of Canada but not absolute Does Canada have an interest in prosecution? o They looked to see if a significant portion of it took palace in Canada o Is there a real and substantial link? There was a real and substantial link o In this case, yes NoteWhat if a bunch of territories claim jurisdiction? There is a principle that states need to respect other countries process, thus if you are tried in one place the other states claiming jurisdiction won t pursue it (they technically can, but in reality they won t because it will look like you are questioning another states jurisdiction and process) Exercising Extraterritorial Jurisdiction Justifications for Extraterritorial Jurisdiction o Nationality o Passive personality A crime effects the nationals of a state; this is not substantially used In practice it doesn t work (Steamship case is a rare example) o Protective principles The act is going to be prejudicial to their security (generally for terrorism etc) o Universal principles Generally, for serious crimes and crimes states should cooperate with o Agreement States can make jurisdictional agreements in treaties etc. R. v. Klassen (BCSC 2008) Canadian charged under Criminal Code for actions in Colombia, Cambodia, and the Philippines S. 7(4.1) reads: o Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. o These activities done abroad are considered to be done in Canada (aka they can still go after you) Klassen argued s. 7(4.1) ultra vires Parliament and violation of state sovereignty

45 44 Canada is party to Convention on the Rights of the Child and the Optional Protocol (which obligated it to exercise this type of jurisdiction) This section does not mean that they go into another country and intervene (aka they wait for him to come back to Canada) Parliament can legislate extra-territorially S. 7(4.1) does not seek to intervene in a state o States that are parties to the Optional Protocol have similar legislation Universal Jurisdiction Any state may exercise enforcement jurisdiction For the most serious crimes o Piracy, crimes against humanity Potential political problem R. v. Bow Street Magistrate (UK 2000) August Pinochet, President of Chile ( ) Arrested on charges of torture, hostage taking, and murder The court looked at whether the UK has jurisdiction to arrest him in the first place they said no rule prohibits a state form trying a person but they should offer to extradite Did Pinochet have immunity? YES To have universal jurisdiction o Jus cogens o Crimes must be serious and on a scale that attacks the international legal order o Universal jurisdiction applies to crimes against humanity Case Concerning Arrest Warrant of 11 April 2000 (Congo v. Belgium) (ICJ 2002) Belgian court issues arrest warrant for Abdulaye Yerodia Ndombasi (Congolese Minister of Foreign Affairs) Charges of war crimes and crimes against humanity Court s discussion on universal jurisdiction o There s no established practice of universal jurisdiction, but it s not forbidden o Basic rule: Can exercise universal jurisdiction in your state It does not authorize a state s agents to head into another state to exercise jurisdiction If there is an exercise of jurisdiction, the state should offer the national state of the accused to try the accused, first Inter-State Coordination Increasing through suppression of transnational crime treaties o States criminalize the behaviour o States agree to exercise certain extraterritorial jurisdiction o Extradite or prosecute Jurisdiction Over the Person Normally, a state must have custody to execute the judgement o Save for in rem actions State can charge, and even try a person o But cannot send their police to another state

46 45 R. v. Hape (SCC 2007) Does the Charter apply extraterritorially? o No The law of the state where the activity took place is applied, unless human rights are violated o This was applied in Khadr (2008) Canada can make extraterritorial laws But you have to apply the law of the state where it took place; charter does not apply except for human rights violations Extradition Formal rendition of a criminal from a state that has custody to a state that wishes to prosecute or sentence Often done via treaty Extradition Requirements o Reciprocity (agreement must go both ways) o Double-criminality o Specialty (only can be extradited for the crimes specified) o Evidence o EXCEPTIONS Political offence exception Non-discrimination (can t extradite a person who is going to be tries for discriminatory reasons) Abduction and Extraordinary Rendition Abduction o State agents go into another state, and capture Extraordinary rendition o Capturing without legal process, transporting to secret locations to avoid being subject to human rights/procedural protections These are unlawful under international law

47 46 Immunities A state is entitled under international law to immunity from the jurisdiction of the courts of other states The rationale for this rule (set out in The Schooner Exchange v M Faddon) is that all states being sovereign equals, one cannot express authority over another In the modern context, the ICJ in Jurisdictional Immunities of the State has emphasized the close relationship of state immunity to the concept of sovereign equality The long standing acceptance of the basic principle of state immunity does not mean that it has remained static, the most fundamental evolution of the rule was the departure form the theory of absolute immunity (what meant the state was immune from jurisdiction relating to all activities) o Now we have the restrictive theory which states that they are immune with respect to sovereign acts, but not commercial acts Steps 1. Establish an Immunity (Defendant) 2. Prove and Exception (Plaintiff) Scope of Immunity The fundamental approach to the scope of a state s immunity from jurisdiction in international law is based on the presumption of immunity; that is immunity of the state is recognized subject to any exceptions which may apply The procedural impact of this presumption is that any exceptions to immunity must be proved by the plaintiff Despite the presumption the court must still first determine that a particular person or entity is entitled to immunity (which requires consideration both of the individuals and other actors falling within the definition of a state for this purpose and the scope of the legal process subject to immunity) The immunity of a foreign state is generally regarded as extending beyond the state itself and the head to state to: o The government and all governmental organs; o The leader of the government, foreign minister and other ministers, officials, and agents of the state with respect to their official acts o Public corporations independently created but operating in effect as government organs; and o State-owned Property Foreign State States are equal and cannot exercise authority of each other, including: o Head of state o Government and its organs o Leader of the government, other ministers, and their agents o Public corporations o State-owned property o Sub-entities of the state (example: provinces) The SIA s. 14(1) provides that a certificate issued by the minister of foreign affairs is admissible as evidence of conclusive proof that the entity is in fact a state In the absence of a certificate the court is entitled and required to determine whether or not the particular entity is a state according to the rule of customary international law (this is true even when the state has failed to take any step in the proceedings) Immunity extends to lower state officials with respect to their conduct on behalf of the state because the state is entitled to immunity for its acts which inevitably are performed for it by its agents

48 State Organs and Agencies A state may need to demonstrate that an actor is a state agency State authority is exercise through a great variety of governmental organs and agencies A foreign state includes: the state itself, its departments and agencies as well as its political subdivisions such as the provinces of a federal state) The act encompasses all these components of the state within the scope of immunity, but some are subject to special rules First Step: Does the foreign defendant have the status of state organ or agency within the meaning of s.2 od the SIA? Trendtex v Central Bank looks at this Trendtex Trading v. Central Bank of Nigeria (UK CA 1977) Is the Central Bank of Nigeria immune? Court Looks at functions and control o Court found that bank should not be considered an organ of the Nigerian government and not subject to immunity o They were doing a number of sovereign functions o BUTthe bank was not immune Trendtex Trading Coprt Ltd. v Central Bank of Nigeria, 1977 Facts The plaintiff sold cement destined for Nigeria for the use of government projects. The Central Bank issued a letter of credif for the cement. On becoming inundated with arriving shipments of cement the succeeding Nigerian Government had to take emergency action which included ordering the bank not to honour the letter of credit. The plaintiff sued the bank for payment. Issue: Does the Central Bank have immunity because it is a state organ or agency? More broadly, how do we discover if a body is an organ of the government? Outcome Different states arrange their internal affairs But the difference should not affect the availability of immunity in international law; aka a foreign department ought to not lose its immunity simply because it conducts some of its activities as a separate legal entity The TestLook to the functions and control of the organization o Look to all the evidence and determine if the organization was under government control and exercised government functions Application o The central bank has governmental functions in that is issued legal tender, acts as banker and financial advisor to the government, it acts as banker for other banks in Nigeria and aboard, it has account with other banks o The courts decisions- in these circumstances it is hard to decide whether the C 47 Mellenger v. New Brunswick Development Corp (UK CA 1971) Is the New Brunswick Development Corp., an agent of a Canadian province, immune? There were some business powers bit never used by the corporation It carried out government functions In practice, it carries out the policy of New Brunswick o Immunity applies

49 Mellenger v New Brunswick Development Corporation,1971 Facts Canadian citizens brought an action against the New Brunswick development corporation with respect to commission fees they alleged were owned to them. Lord Denning found that New Brunswick was for the purposes of the matter a sovereign state in its own right and entitled if it wishes to claim sovereign immunity. Issue: Whether the New Brunswick Development Corporations was entitled to shelter behind that immunity? Outcome If the corporation is part and parcel of the government of New Brunswick, it can clearly claim immunity BUT we have to look to the statute which set it up o Certain sections show a close connection of the corporation with the government o But a later section gives the corporation power to carry on business of an industrial, commercial or any agricultural nature (but the evidence shows they have not exercised this power) o All the corporation has done to promote the industrial development of the province in that way that a government department does o In these circumstances it would seem it is part and parcel of the government Apart from the statue the functions of the corporation as carried out in practice, show that it is carrying out the policy of the government of New Brunswick itself (it is its alter ego) State Property The property of a foreign state, subject to exceptions, fall within the scope of the states immunity Under the SIA immunity includes protection from any relief by way of injunction, specific performance or the recovery of land and property Immunity only extends to land, buildings, good, chattels, money and other intangible assets which are the property of the foreign state Sometimes there may be doubt as to what property is for the meaning of the SIA, for instance when a states interest is less than ownership Attachment and Execution Immunity is granted to all phases of the judicial process, including not only the merits but also attachment of property prior to judgement and measure of execution after judgment Where the foreign state has waived its immunity to the jurisdiction of the court under section 4 of the SIA, section 11(2) makes it clear that such a waiver does not extend to order for relief such as an injunction or a direction for specific performance or recovery of property; section 11(1) further requires that any separate consent to the remedial measure must be in writing Exceptions to Immunities The general scheme of the SIA as set out in section 3 is to establish a presumption of foreign state immunity from the jurisdiction of the Canadian Courts; subject also to certain defined exceptions Given this structure, overall burden of proof regarding the applicability of any exception is on the party wishing to benefit from it 1. Waiver 2. Commercial Activity 3. Personal Injury 4. Terrorism Related Activities 48

50 Waiver Even under the absolute theory of immunity it has always been recognized in customary international law that a foreign state may choose to waive its immunity This position has been legislative in section 4 of the SIA A waiver is only effective if it is make in the face of the court and at the time that jurisdiction was being determined The SIA does provide that waiver can also occur by written agreement or otherwise before or after the proceedings commence or by intervening or taking any step in the proceedings Waiving immunity a state gives up its rights and privileges by choice and the court must be careful to ensure it has clearly and deliberately consented Commercial activities Two possible tests: o Purpose of the transaction Is it for a public purpose? Or a commercial purpose? o Nature of the transaction Is it a commercial transaction? The most common situation in which a state loses its immunity from suit is when it is engaged in commercial activity The theory of restrictive immunity emerged and flourished in cases such as Tredtex, so that it eventually became customary international law The two most popular yet contending test to distinguish commercial activities are to inquire into the purpose of the transaction (a public act has public object) or to scrutinize the nature of the action (a commercial deal is a commercial act whatever its purpose Re Canada Labour Code (SCC 1992) Is the US immune from the jurisdiction of the Canadian Labour Relations Board? The court looked at the activities on the base There were consistently commercial aspects (example: contracts of service) Contracts of service at issue o Some minimum standards to be expected o But, some sovereign issues (they had to right to dismiss) The military base is clearly a sovereign activity, and the US is entitled to control of the base There were commercial elements but those were merely incidental to the sovereign ones US was immune They considered to purpose of the activity as part of the context Re Canada Labour Code, 1992 Facts 60 Canadian civilian employees on the US naval base in Newfoundland sought unior certificate before the Canada Labour Relations Board. The US claimed immunity from the certification proceedings pursuant to SIA section 2 and 5, but the board held it had jurisdiction. Issue: Is the US naval base immune? Does the activity constitute commercial activity Outcome Certain aspects of employment at the base are commercial, but in other respects the employment relationship is infused with sovereign attributes Employment at a military base is a multi-faceted relationship 49

51 50 The US says: the work performed by the Canadians is an integral part of its defence mission, that it takes place within the context of an international agreement which gives the US the rights of management and control over the base The board: says the court should only consider the threshold nature of activity, namely a contact of employment There is no activity more inherently sovereign than the operation of such a base The US must be granted the authority to manage and control employment activity at the base The activity at the base does have a double aspect (both commercial and sovereign) The US is entitled to absolute control of the base and so over the availability of its labour force, particularly in times of war (example possible strikes and bargaining deals may curtain the US base) Kuwait Airways Corp. v. Iraq (SCC 2010) Is Iraq immune from using confiscated Kuwait Airways Corporation aircraft? No o The appropriation of the aircraft was a sovereign act, entitled to immunity o The ongoing use of the aircraft is a commercial act, not entitled to immunity o The claim in this case was not over the initial appropriation but the continued use (thus they were not immune) Kuwait Airways Corp v Iraq, 2010 SCC Facts In the course of the Iraqi invasion of Kuwait in 1990 the state owned Iraqi airways company IAC was directed by the government to confiscate airplaines of the plaintiff Kuwait Airways Corporation KAC. KAC obtained a judgement against IAC in the UK courts with respect to the continued retention and use of the aircrafts. The Iraqi government was not party to this action but KAC sought an obtained an order for costs against them on the grounds they had substantially aided and funded IAC s defence. KAC then applied to the Quebec courts for recognition of the UK order, seeking to enforce it against certain assets of Iraq in Canada. The superior court and court of appeal found that Iraq was entitled to state immunity, and that the commercial exception did not apply. KAC appealed to the SCC Issue: Is Iraq entitled to state immunity? Outcome The nature and purposes of the activities in question need to be considered in context It is not enough to determine that the acts were authorized or desired by Iraq, it is the nature of the acts that must be examined in determine the proper legal characterization The original appropriation of the aircraft was a sovereign act The subsequent retention and use of the aircraft by IAC were commercial The litigation concerned the retention of the aircraft, thus there was not connection between that and it initial sovereign act of taking the aircraft Thus Iraq cannot rely on stat immunity! Personal Injury Actions (Some) S. 6 of the State Immunity Act (1985) No immunity for death, personal or bodily injury, or damage to property occurring in Canada Section 6 of the SIA provides that a foreign state is not immune with respect to any proceedings that relate to death or personal or bodily integrity or damage or loss of property where such injury or damage occurs in Canada These circumstances of loss of immunity are often referred to collectively as the territorial tort exception

52 Bouzari v. Islamic Republic of Iran (ONCA 2004) Bouzari abducted, imprisoned, and tortured in Iran Is Iran immune from proceedings in Canada? Yes o The activities occurred in Iran, not in Canada o The SIA exception requires that the harm take place in Canada Bouzari v Islamic Republic of Iran, 2004 ONCA Facts B was abducted and imprisoned and tortured by agents of the Islamic Republic of Iran. He escaped in eventually came to Canada and now seeks to sue Iran for the damages he suffered. The court found that his action as barred by the State Immunity Act, on appeal the court agreed. Issue: Is Iraq Immune? Does immunity still apply when there has been a violation of a Jus Cogen? Outcome This issue engages two important principles: the prohibition of torture and the requirement that sovereign states not be subjected to each others jurisdiction The balance between these principles prohibits this action being brought The section 6 exception does not apply because the physical breach of personal integrity has to have happened in Canada to apply The prohibition of torture is a jus cogenbut does this extend to a requirement to provide a civil remedy for torture committed abroad by a foreign state? NO- this norm does not carry with it any obligation to provide a civil remedy The SIA does not include a civil remedy for damages from torture The prohibition of torture as a rule of jus cogen is not determined with a particular view of what is required to make it meaningful, but rather by the widespread and consistent practice of states Note although B was not successful here he later brought an action against the individuals for the treatment he suffered on their behalf. They were not immune because they were not acting as state agents. 51 Jurisdictional Immunities of the State (Italy v. Germany) (ICJ 2012) Is immunity voided by grave violations of international law, or violations of jus cogens? o No, even though jus cogens trump other rules, there is not conflict here because jus cogens=substantive; immunities=procedural Immunity is not dependent on either of these issues o Immunity is a procedural rule, not substantive Jurisdictional Immunities of the State (Germany v Italy), 2012 Facts Italian courts had allowed an action against Germany by plaintiff who have been subjected to violations of international humanitarian laws during the second world war. Germany brought an action before the ICJ to claim that Italy by its assertions of jurisdiction have violated Germany s entitlement at international law to state immunity. Issue: Was Germany immune? Outcome Under customary international law as it presently stands a state is not deprived of immunity by reason of the fact that it is accused of serious violations of international hum rights law or the international law of armed conflict Even on the assumption that the proceedings in the Italian courts involved violations of Jus Cogen rules, the applicability of international law on state immunity was not effected.

53 52 Terrorism-related actions Fairly recent (established in Canada in 2012) A state is not immune if they are listed as a state supported of terrorism (only two are listed) State supporter of terrorism not immune (SIA, s. 6.1) o Iran and Syria Sept. 2016, Justice Against Sponsors of Terrorism Act passed in USA o Removes immunities for states connected with terrorism o Broad-reaching o A state that is connected to terrorism in any way can be brought in under this act o This was passed to allow 911 victims the right to sue Saudi Arabia o Obama vetoed it saying there is already a mechanism to stripe immunity of a state o It basically says that there is not immunity if a private citizen asserts it (make an allegation) o Reciprocity plays a substantial role in international relations (because states are equal) o Thus the concern becomes if the US allows this other states will do it to them o Congress passed it anyways, but later seems to regret this Diplomatic Immunity Vienna Conventions on Diplomatic Relations (1961) and Consular Relations (1963) Inviolability of: o Premises** o Diplomatic agents and their families o Archives and documents o Correspondence ( diplomatic bag ) Role of diplomatsto be able to represent Canada abroad, help aliens aboard, keep an eye on what s going on in the other state, keep friendly relations This is probably the oldest of international laws Typically, if a diplomate screws up they are pulled out Diplomatic and Consular Relations in Tehran (USA v. Iran) (ICJ 1980) What were Iran s responsibilities re US embassy? o To protect the embassy (which they failed to do) o To end the infringement (Iran endorsed the seizure and the keeping of hostages) Iran allows non state actors to invade the embassy and endorsed it Even if the embassy is abandoned there still may be a duty to protect it It is a big part of international law not to violate the premises of an embassy International Organization Immunity Dependent on: o Conventions establishing the IO o Domestic legislation Immunity is not presumed It is common practice for international organizations to be granted privileges and immunities by states, both for their headquarters and for any activities conducted in other member states

54 53 State Responsibility General Theory of State Responsibility The law of state responsibility concerns what happens when things go wrong and states behave in a manner that is inconsistent with their international obligations Primary Rules: includes all the substantive obligations under international law Example duty to protect diplomatic personnel or the duty to refrain from military use of outer space Secondary Rules: articulate the conditions under which a primary rule will be considered to have been breach and map out the consequences of such a breach ILC Draft Articles on Responsibility of StatesThese are not 100% binding, but do have some force (generally accepted) o Internationally wrongful act = international responsibility (Art. 1) o Internationally wrongful act defined (Art. 2) o International law governs internationally wrongful acts (Art. 3) o NOTEthere is No requirement for damages, a breach in itself is enough General Principles o The work of the ILC on the topic of state responsibility has become a necessary reference point for any analysis of this field of international law o The ILC finally and formally adopted its Draft Articles on the Responsibility of States for Internationally Wrongful Acts in 2001 o The draft articles, despite not having result in a binding convention have already had considerable influence on international practice and judicial decisions Main QuestionWhat were a breach of an international obligation? (only a breach can lead to state responsibility) IF SOare there any applicable defence? IF NO DEFENCES o What are the consequences? Corfu Channel Case (UK v. Albania) (ICJ 1949) A state must answer for an international wrong suffered by another state Albania had a duty to warn the UK about the mines in the Corfu channel Albania said they didn t know about the mines Courts said that just because it was in Albanian waters doesn t mean they knew, aka you can t presume knowledge But UK could use indirect evidence to prove knowledge Court said that the length of the minefield could not have happened without the knowledge of Albania, they should have known Thus they were obligated to warnthey are internationally responsible Corfu Channel Case (UK v Albania), 1949 ICJ Facts A group of British warships passed through the strait between the greek island of corfu and Albania. While in Albanian territorial waters two of the warships hit mines causing damage to the ships and killing a number of sailors. The ICJ was tasked with deciding the responsibility of Albania for minelaying. Issue: Outcome

55 54 Knowledge of minelaying cannot be imputed into the Albanian government by reason merely of the fact that a minefield was discovered in Albania waters International practice shows that a state on whose territory or in whose waters acts contrary to international law have occurred may be called upon to give an explanation It cannot be concluded that a state by the mere fact it exercises control over its territory and waters necessarily knew or ought to have known of any unlawful act perpetrated therin The victim state may be unable to furnish direct proof of facts Thus it may be established by indirect evidence that Alania had knowledge of minelaying in the waters From all the facts and observations, the court decides that the laying of the minefield could not have been accomplished without the knowledge of Albania Government Thus there was an obligation on Albanian authorities to notify ships of the minefield They did not notify or attempt to prevent the disaster Thus Albania is responsible under international law for the explosions Rainbow Warrior (New Zealand v. France) Greenpeace ship (NGO boat) France sent people to find the ship, someone died Is France responsible for the acts of its servicemen? o Yes, violation of New Zealand sovereignty Cosmos 954 Claim (Canada v. USSR) Is the USSR responsible for the damage caused by the satellite? Strict liability regime o Convention on International Liability for Damage Caused by Space Objects (1972) o Absolute liability for high-risk activities (general principle) Also, violation of Canadian sovereignty USSR failed to do anything to minimize the effects It is uncertain if this risky activity is absolute liability Cosmos 954 Claim (Canada v USSR), 1979 Facts SU placed in orbit a satellite it identified as Cosmos 945 and officially informed the secretary general of the UN of this fact. The Satellite carried on board a nuclear reactor. On Jan 24 th 1978 it entered earths atmosphere intruding into Canadian airspace. Debris from it was deposited on Canadian territory. The cost of the clean up was around 14 million, Canada claimed 6 million from the SU Issue: Outcome (on behalf of Canada(?)) Under article 2 of the convention of international liability for damages caused by space objects a launching state shall be absolutely liable to pay compensation for damages caused by its space objects on the surface of earth The deposit of hazardous materials fro the satellite on Canada rendering part of it territory unfit for use constituted damage to property within the meaning of the convention The SU failed to give notification of the imminent re-entry of Cosmos Thus it failed to minimize the effects The costs incurred by Canada in this claim were solely as a consequence of the intrusion of the satellite into Canadian airspace

56 Damages should be awarded which would restore the claimant to the condition which it would have existed in the damages had no occurred The intrusion of Cosmos into Canada constituted a violation of Canada s sovereignty International precedents recognize that a violation of sovereignty gives rise to an obligation to pay compensation The standard of absolute liability for space activities, in particular activities involving nuclear energy, is considered to have become a general principle of international law Note about Cosmos Negotiations towards a settlement did not begin for almost a year after the submission of this claim Finally a 3 million settlement was reached, that did not expressly acknowledge legal liability (ex gratia payment) The fact that payment in the cosmos claim was made on an ex gracis basis, coupled with the absence of claims following Chernobyl shed considerable doubt on whether a principle of absolute liability for ultra-hazardous activities has emerged in customary international law 55 Basics of State Responsibility It has been a subject of confusions as to whether responsibility is grounded in risk, damage or fault In the draft articles there is no reference to the mental state of the actor involved in the commission of an internationally wrongful act; thus they take a neutral stance neither requiring nor excluding fault or negligence as an element of international responsibility The basis of state responsibility is neither fault nor risk but rather the breach of international obligation Non-state actors o Requires some proof of fault or negligence on behalf of the state o United States Diplomatic and Consular Staff in Tehran o Corfu Channel o Trail Smelter Arbitration Attributing State Responsibility ILC Draft Articles o Any state organ (Art. 4) o If non-state organ exercises state authority (Art. 9) o If state adopts conduct of non-state actors (Art. 10) State generally does not have responsibility over acts of private persons (ILC Draft Art. 8) o But does if it provides instructions/clear support The issue of attribution, or whether an act may be imputed to a state is a key element in international responsibility The state will generally be held responsible if: 1. one of its organs has directly committed an internationally wrongful act or 2. if it has endorsed the acts of non-state actors such as private persons, 3. insurgent movements, 4. IO s or 5. if it failed to react to private acts in a situation where international law required it to do so. Acts of the StateTH Youmans Claim (US v. Mexico) (1926) Mayor ordered troops to calm riot that erupted during a wage dispute o Troops ended up firing on those who they were supposed to protect Is there state responsibility for troops acting outside of their authority?

57 56 o Yes A government cannot say they escape liability by saying their agents acted out of their authority In this case Mexico was responsible Generally, with private actors for the state to be liable to actor must be acting as an agent (must be some sort of connection etc) TH Youmans Claim (US v Mexico) o Facts: claim for damaged made by the US on behalf on TH the son of Henry Youmans who was an American citizen that was killed at the hands of a mob in Mexico o Issue: Can Mexico be held responsible? o The claim is predicated on the failure of Mexico Government to exercise due diligence to protect the claimants father from the fury of the mob acts of the soldiers were in question o A little confused on what happened here o May establish the rule that a state may no invoke an abuse of authority by its agents to block a clai Acts of Private PersonsMilitary Activities in Nicaragua (Nicaragua v. United States) (ICJ 1986) In principle the state is generally not responsible for the conduct of private persons or entitles But circumstances may arise where such conduct is attributed to the state because the state factually has a relationship of control of the state over the individuals This control can take two forms o Direct and Positive- consists of clear instructions and clear support (example: recruiting, arming, commanding mercenaries) o Indirect and Passive (example the state purposefully harbouring terrorist groups in its territory United States funded contra regime who was fighting against the Nicaraguan government Is there US state action? o Court found US control was not sufficient to give rise to state action Facts: N presented a claim against the US alleged it had tried to destabilize the country by way of its control of the insurgent group known as contras. Issue: Can contras be imputed to the US, or should they be considered the acts of private persons for the purposes of the international responsibility of the US? Outcome o N says that the contras are no more than a band of mercenaries which have been recruited, organized, paid and commanded by the US government (thus they do not have their own autonomy or government) o The court takes the view that the US participated in organizing, financing, training and supplying equipment of the contras BUT this is still insufficient o All these forms of participation mentioned would not in themselves mean without further evidence that the US directed or enforced the perpetration of the acts contrary to human rights and humanitarian laws alleged by N o These act could have been committed by contras without the control of the US o For the conduct to give rise to the legal responsibility of the US the claimant state would have had to prove effective control of the military or paramilitary operations in the course of which the alleged violations took place Acts of InsurgentAsian Agricultural Products Ltd. v. Sri Lanka (1990) Is the state assumes no responsibility of the acts of individuals not under its control then it will in principle not incur international responsibility for the conduct of groups engaged in rebellion against the government

58 Exceptions to this principle center on the states due diligence obligation to protect the interests of other states on its territory and on the situations in which insurgents successfully overturn the government and assume power 57 Is Sri Lanka responsible for the acts of an insurgent group, or taken in fighting the insurgent group? o Sri Lanka had a responsibility to avoid the fighting, if possible SL fighting with TT s (insurgent group); a factory was destroyed during this Arbitrator said SL has an responsibility to avoid fighting Facts: SL army destroyed a plant owned by AA on the basis of reports that It was being used by local rebels. SL was alleged to have not exercised its due diligence to prevent damages by the insurgent Tamil Tigers Outcome o Doctrinal authority states: a state on whose territory an insurrection occurs is no responsible for loss or damages sustained by foreign investors unless it can be shown that the government of that state failed to provide the standard of protection required by either treaty of under general customary law o There is extensive and consistent state practice support the duty to exercise due diligence o There is a sliding scale of liability related to the standard of due diligence- criteria that takes into consideration the relatively limited existing possibilities of local authorities in a given context o The tribunal considers that the respondent through said inaction and omission violated its due diligence obligation which required undertaking all possible measure it could be reasonably expect to prevent the eventual occurrence of killings and property destruction Acts of International Organizations As independent bodies they do not tall under the sovereignty of any state The principle remains that the facts that a state is a member of an international organization or that the organization is present of its territory will not entail the international responsibility of the state if a wrong is committed by the organization Whether they can be held responsible depends of the legal personality So they MAY be responsible Defenses Consent Self-defence Countermeasures Force majeure (something outside of their control) Distress Necessity Compliance with peremptory norms A certain number of defence or circumstances precluding wrongfulness can be invoked by a state as shield against the invocation of international responsibility The effect of these defences is not the make lawful what would otherwise be unlawful, but rather to excuse nonperformance of most obligations stemming from the rules on state responsibility while the circumstances persist Gabçíkovo-Nagymaros Project (Hungary v. Slovakia) (ICJ 1997) Hungary repudiates treaty with Slovakia Can Hungary claim necessity? o No

59 o Hungary s defence does not meet the requirements of necessity (not a grave imminent peril, the harms are uncertain) Hungary v Slovakia, 1997 Facts Same as earlier. They concluded a treaty to build a series of dams, Hungary suspended the later abandoned the project saying it involved grave risk to the environment and the water supply of Budapest. Issue: Does necessity excuse the wrongfulness of the treaty violation? Outcome The state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an action not in conformity with international obligations This ground may only be accepted on an exceptional basis A state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied It must have occasions by an essential interest of the state which is the authority of the act conflicting with its international obligations, the interest must be threatened by a grave and imminent peril, the act being challenged must be the only means of safe guarding the interest, and the act must not have seriously impaired an essential interest of the state towards which the obligation existed and the state which is the author of the act must not have contributed to the occurred of the state necessity Application It is an essential interest to Hungary But state necessity cannot exist without peril at the relevant time point The danger were of a long term nature and remained uncertain Peril was not imminent at the time Hungary suspended the project The elements necessary to support a state of necessity are not present here; thus it cannot rely on it to jusify its failure to comply with treaty obligations 58 Consequences Compliance o Cessation (Art. 30) Stopping the activity o Non-repetition (Art. 30) Reparation o Restitution (Art. 35) Put them back to the original place Does not need to be provide when it is materially impossible o Compensation (Art. 36) Can be monetary or non-monetary o Satisfaction (Art. 37) Acknowledgement of breach Note if restitution doesn t work you go to compensation (restitution is the preferred regime) Case Concerning the Factory at Chorzów (Indemnity) (PCIJ 1928) Is Poland liable for reparations for taking a nitrogen factory? International law is between states, not between states and private companies (so we are concerned with the effect on Germany)

60 59 Yes o International law leads to international responsibility, which includes the duty to provide reparations Rainbow Warrior Damages France is responsible for its acts Restitution not really available Compensation $7 million Satisfaction Apology to France, promise that servicemen will serve their sentence on Hao atoll Aggravated Responsibility Gross, systematic violation of jus cogens (Art. 40) States shall cooperate to bring an end to the action (Art. 41) o Example: must step in if genocide Invoking State Responsibility Usually the Injured state does it State that is part of a broader international regime that is affected Countermeasures Acts that are normally unlawful but allowed in response to a prior unlawful act Used because actually obtaining damages in international law can be hard States can invoke countermeasures, if they are: o Limited to the time the wrongful act is ongoing o Does not frustrate the performance of the obligation o Proportionate with the injury suffered o Cannot: Threat or use of force Violate fundamental human rights Violate humanitarian norms Violate jus cogens States cannot use countermeasures if a case is pending or before the state has been notified Typically, a state would take the other to a tribunal or court and are awarded damages, if they never get them then they start countermeasures Responsibility for Injury to Aliens Standard of Treatment o How should aliens (e.g., foreigners) be treated? Universal standard (industrialized nations like the idea of universal standards) National standard o Neer Claim (1926) US claim against Mexico, Us says Mexico did not exercise due diligence in protecting Neer (he was killed) Negligence in regards to treatment of aliens is:

61 60 o o Bad faith, outrage, willful neglect of duty, insufficient government action that falls painfully obviously short of international standards Basic position of aliens Should be protected by local law, should also observe local law Private injury means private remedy State responsibility invoked only when local remedies are exhausted Probably some base international standards o This isn t entirely set out in stone o This would be like some positive rights for aliens UNGA Declaration on the Human Rights of Individuals Who Are Not Citizens of the Country in Which They Live (1985) Sets out rights aliens generally enjoy Aliens shall enjoy o Right to life, security o Equality before the courts o Right to found a family o Freedom of through/opinion/religion o Right to retain own language/customs/traditions o Right to transfer earnings abroad Subject to restrictions for national security/public order o Right to leave the country o Freedom of expression o Peaceful assembly o Own property alone Protection of the Person Admission and Expulsion o Aliens who are in a state lawfully cannot be expelled arbitrarily or discriminatorily o When someone is expelled they have the burden to prove the expulsion was wrongful o Cannot be discriminatory o Cannot be arbitrary (Case Concerning Ahmadou Sadio Diallo, ICJ 2010) o Must be within the bounds of the law Detention and physical injury o Government is not responsible for everything that may happen to someone in their custody, but must at least account for them (Quintanilla Claim, 1926) Maladministration of justice o Proceedings must be consistent with international standards (BE Chattin Claim, 1927) o Generally speaking foreign states are given a lot of deference for their courts Protection of Property Tangible and intangible Basic Principles o States may expropriate foreign property, if: NOTE all must be met For public purpose; On a non-discriminatory basis; In accordance with due process of law;

62 61 Upon payment of compensation Expropriate in generally okay as long as the above conditions are met and there is compensation Texaco v. Libya (1974) Standard of compensation o Generally fair market value of the property o Shahin v. Iran Debate over appropriate compensation versus full compensation Diplomatic Protection Espousal and Nationality of Claims The protection of a states own nationals State of nationality is entitled to exercise diplomatic protection of nationals State of habitual residence may exercise diplomatic protection of stateless persons or refugees o Except against national state of refugees Mavrommatis Palestine Concessions Case (Greece v. UK) (PCIJ 1924) Exhaustion of Local Remedies Local remedies must be exhausted before international claim is brought Exceptions o No reasonably available local remedies o Undue delay o Manifest preclusion (aka no Canadian can bring a claim in the state court) o Waiver Ambatielos Arbitration (Greece v. UK) (1956) o Failing to call appropriate witnesses is not an exhaustion of local remedies o He could have called the witness, he choose not to so that was the risk he took North American Dredging Company Claim (1926) o Waiver of right to claims regarding interpretation of contract is valid o They could waive certain rights but still have some protections o AKA cant completely eliminate the practice of diplomatic immunity Canadian Practice Global Affairs will o Exercise good offices (usually something like a negotiation) o Espouse the claim

63 62 International Dispute Settlement Background Fundamental purpose of international law is to maintain peace Two techniques of conflict management o Diplomatic procedures Resolving things through negotiation or other means (good officer, mediation, inquiry etc) o Adjudication Arbitration or formalized courts Generally, a dispute may bounce between the two ways International Court of Justice Permanent Court of Arbitration created in 1899 o It was not a permanent or a court Following WWI, League of Nations established the Permanent Court of International Justice o The PCIJ became the International Court of Justice following WWII A great number and variety of international courts and tribunals fulfil law making functions; but the ICJ is the pre-eminent judicial institutional and its judgements are regarded as highly persuasive opinions of international law Organization of the Court 15 Judges o Elected by UNGA and Security Council o Terms of three years o Regardless of nationality, but represent the principal legal systems of the world The ICJ is one of 6 principle organs of the UN It functions according to the UN Charter articles and its own statute All members of the UN are ipso facto parties to the statute Article 94 of the Charter says that UN members undertake to comply with a decision of the ICK in any which to which they are parties The ICJ has no enforcement power of its own The court is composed of 15 members Judges must be persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris consults of recognized competence in international law By informal understanding the permanent members of the Security Council each have a national sitting as judge on the court Nationality comes into play when cases are being heard No member of the court may participate in the decisions of any case in which he or she has previously taken part as an agent, counsel or advocate for one of the parties or as a member of a national or international court or of a commission of enquiry or in any other capacity You may ask for an ad hoc judge with a national of your country o But these ad hoc judges really just always vote in favour of their state

64 Parties Before the Court Only states may be parties in contentious cases before the court The court is not open to every state automatically Non UN member states must either become parties to a statute by accepting conditions laid down by the general assembly or appear in a particular case by meeting the conditions laid down by the security council IO s cannot be parties to contentious cases but may be asked for information or may provide their own initiative Jurisdiction of the Court The court decides its own jurisdiction The ICJ is different from national courts in that it does not automatically have jurisdiction over all disputes between parties with standing Its jurisdiction over states is based on voluntary acceptance by the parties Thus, the court cannot hear contentious cases even though the litigant states are parties to the statute unless they all consent In certain cases the court may be precluded from exercising jurisdiction over a dispute in which two parties have accepted its jurisdiction because of the effect on third parties that have no accepted the courts jurisdiction Compulsory Jurisdiction under ICJ Statute Article 36(2)Aka optional clause o Only about 1/3 of the member states of the UN have accepted the compulsory jurisdiction of the ICJ o States can make optional clause declarations (aka unilaterally make a declaration Consent o Special agreement o Treaty clause o Declaration Like a declaration accepted the ICJ; accepting compulsory jurisdiction There can have reservations Fisheries Jurisdiction Case (ICJ 1998) Advisory Opinions o The ICJ is empowered to give advisory opinions on legal questions put to it by the General Assembly, Security Council and such other organs and specialized agencies of the UN o Only under compelling reasons would they refuse to give an AO o Legality of Threat of Nuclear Weapons (ICJ 1996) Fisheries Jurisdiction Case (Spain v Canada), 1998 Facts Canada arrested a Spain fishing trawler that was found fishing near Newfoundland. It was brought to St. Johns and charged with violation of the Coastal Fisheries Protection Act. Canada had replaced its declaration under the optional clause and added an exclusion of disputes arising over fisheries etc. Spain filed an application to the ICJ on the basis of the option clause declaration that each state have made, alleging that Canada have violated the principle of freedom of the high seas and infringed upon the sovereignty of Spain. Canada denied the its declaration have jurisdiction to the court. It is for each state in formulating its declaration to decide upon the limits it places upon its acceptance of the jurisdiction of the court Conditions or reservations operate to define the parameters of a state s acceptance of the compulsory jurisdiction of the court A declaration of acceptance of the compulsory jurisdiction of the court whether there are specified limits set to the acceptance or not is a unilateral act of state sovereignty Every declaration must be interpreted as it stands having regard to the words actually used Every reservation must be given effect as its stands 63

65 64 Declarations and reservations must be read as a whole The court will interpret the relevant words of a declaration including reservations contained therin in a natural and reasonable way, having due regard to the intention of the state concerned at the time when it accepted the compulsory jurisdiction of the court Rulingthe dispute came within the terms of reservation in Canada s declaration, and therefor the court does not have jurisdiction. (aka Canada clearly states their reservation and it was found to be effective) Legality of the Threat or Use of Nuclear Weapons, AO 1996 Facts The General assembly asked the court for an advisory opinion on the question: is the threat or use of nuclear weapons in any circumstance permitted under international law? Issue: Should the court decline to give an advisory opinion? The court had determined it had jurisdiction to answer, but then considered whether it should decline to The court may give advisory opinions, the statute leave a discretion as to whether or not it will give an advisory opinion that has been requested When considering each request the court should not in principle refuse to give an AO Only compelling reasons should lead to a refusal The purpose of the AO is not to settle (directly) disputes between states, but to offer legal advice to organs and institutions requesting the opinion The fact that a question does nto relate to a specific dispute should consequently not lead the court to decline to give an AO The court may give an AO on any legal issues, abstract or not It is not for the court to decide whether an AO is needed by the assembly for the performance of its functions, the GA has a right to decide for itself the usefulness of an opinion in light of its own needs The court cannot legislate The contention that the giving of an answer to a question posed would require the court to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter, the court states existing laws it does not legislate Rulingthe court has the authority to deliver an opinion on the question posed by the GA and there exists no compelling reasons which would lead the court to exercise its discretion not to do so Applications of rules of law 4 sources of International law o Treaties o Customary Law o General Principles of Law o Judicial Decisions Remedies Generally, the court gives declaratory remedies In some cases they have ordered monetary reparations, but this is not common Compliance The court doesn t really have any compliance measures It does not contemplate states not respecting the rule Practically the SC will back up the ICJ (but keep in mind the veto powers)

66 65 Appeals There are not appeals You can ask for revisions if something new and relevant comes up (this has happened maybe once) Other Dispute Resolution Mechanisms WTO Dispute Settlement Body o Trade disputes under WTO World Bank Inspection Panels o Issue non-binding decisions o Individuals can complain about World Bank-funded projects Court of Arbitration for Sport o Individuals (e.g., anti-doping), sport federations (e.g., recognition of a national federation) Effect on International Law Judicialization o Courts gain authority to define the law o Negotiation takes place in the shadow of the law Proliferation o We are starting to see some lesser need for consent for some of the courts o Inconsistency and confusion? all of these courts may lead to inconsistency and confusion o Advance of international law? But it can help us advance international law Effects on international legal personality

67 66 Background International Criminal Law International crimes o Include crimes within armed conflict and outside of armed conflict Different than transnational crimes (those are crimes that cross state boundaries) International crimes are explicitly defined o Can be prosecuted by international criminal court, or domestic courts with universal jurisdiction o Concurrent jurisdiction Prior to 1945, international crime essentially piracy or slave trading Following WWII, punishment of war criminals International Military Tribunal Nuremburg Charter o Jurisdiction: Crimes against peace War crimes Crimes against humanity o Official government position has no consideration o Following orders not a defence, but may mitigate punishment o With the Nazi s they were going after the big fish There were concerns that this would be a kangaroo court The court said this was not a arbitrary court of power by the victors of the war and then explained why they exist Geneva Conventions Four Geneva Conventions from Protection of wounded soldiers 2. Protection of sick and shipwrecked sailors 3. Protection of prisoners of war 4. Protection of civilians in occupied territory (1949) Supplemented by two protocols in 1977 Protection of Civilians Geneva Convention IV (1949) o Those who are in the hands of an occupying power of which they are not nationals, or a Party to the convention o A number of actions are set out as breaches Protocol I to the 1949 Geneva Convention (1977) o Sets out further breaches o Grave breaches are war crimes o Breaches are grave breaches if they are committed against: Persons in the power of an adverse Party Refugees and stateless persons

68 67 Wounded, sick, and shipwrecked Medical or religious personnel Protocol I to the 1949 Geneva Convention (1977) o Also grave breaches when willfully cause death or serious injury by: Attacking civilian population Indiscriminate attacks Attacking someone who is hors de combact Deceitful use of the Red Cross or Red Crescent emblem Protocol I to the 1949 Geneva Convention (1977) o Also grave breaches when: Population transfer (in or out) Unjustifiable delay in repatriating POWs or civilians Apartheid practices Attacking clearly-recognized historical monuments, works of art, or places of worship Depriving person of the rights of a fair and regular trial Geneva Conventions Common Art. 3 (1950) o In internal conflicts, non-hostiles shall be treated humanely Protocol II to the 1949 Geneva Conventions (1977) o Cannot make no survivors order o Respect for honour, convictions, and religious practices of persons o Prohibitions on a number of acts Generally, the Geneva conventions are set out to protect citizens at times of war International Crimes Genocide It a crime at ALL times (war and peace) Convention on the Prevention and Punishment of the Crime of Genocide (1951) Intent to destroy in whole, or in part, a national, ethic, racial, or religious group by: o Killing o Causing serious bodily or mental harm o Inflicting conditions of life calculated to bring about a group s physical destruction o Preventing births o Forcible transfer of children Those charged with genocide are to be tried by domestic courts of international tibunals Note that this term is politically loaded Torture Convention Against Torture (1984) o Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted to: Obtain information/coercion of the person or a third person for punishment, or based on discrimination o Must be instigated by a public official acting in an official capacity (aka doesn t apply to private persons) o No exceptional circumstances as a justification o No one can expel someone to a place where it is expected they will be subjected to torture

69 68 Crimes Against Humanity Tend to be more general, no clearly defined Generally includes: o Murder o Extermination o Enslavement o Deportation o Imprisonment o Torture o Rape o Persecutions on political, racial, and religious grounds Prosecution of International Crimes Tribunals Tribunals are explicitly connected to the States where people are being changed (aka they have specialized jurisdiction when formed) They shut down once they are done prosecuting Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) set up under Art. 41 of the UN Charter o Tadic case ICTY found that these Chapter VII powers were validly exercised T argued that setting up tribunals was not within the UN power But it was found that they could for internal and extern conflicts This was a step away from the idea that sovereignty is absolute ICTY established in 1993 o Breaches of the 1949 Geneva Conventions o Violations of the laws of war o Genocide o Crimes against humanity ICTR established in 1994 o Breaches of the 1949 Geneva Conventions o Genocide o Crimes against humanity International Criminal Court Rome Statute for the International Criminal Court (1998) o Genocide o Crimes against humanity o War crimes (for external and internal conflicts) o This was contentious and raised a lot of questions (who has jurisdiction, who does it cover, what does it cover ) o There are 124 partiesbut many big states are not party (USA, Russia, China) Investigations o Invitation by States Parties o Reference by UN Security Council Controversies o Major non-parties include:

70 69 o o o o China, India, Indonesia, Pakistan, Turkey, USA Few investigations, or convictions Most have been against African states It is very slow moving There have only been 4 convictions in 14 years National Prosecution of International Crimes Still a primary way to prosecute international crimes Eichmann Case (Israel 1962) o He was tried for war crimes in Isreal under the exercise of universal jurisdiction o Court exercising universal jurisdiction o Despite likely illegal way Eichmann was arrested Crimes Against Humanity and War Crimes Act (2000) o Genocide, crimes against humanity, war crimes (inside or outside of Canada) o Section 7 and 8commanders and superiors are obligated to prevent these crimes o Applies to commanders or superiors for orders to commit the above crimes o Defncessection 13 and 14 o Following orders not a defence, unless (all three must be met) Accused under legal obligation to obey orders Accused did not know order was unlawful Order was not manifestly unlawful Immunities o R v. Bow Street Magistrate (UK 2001) Two types of immunities Immunity while in office (ratione personae) Immunity for acts they committed while in office (ratione materiae) Acts that violate international criminal law cannot be subject to ratione materiae immunities What if you stop being in office, does immunity continue? Probably, but not for activities that violate international criminal law o Case Concerning Arrest Warrant (Congo v. Belgium) (ICJ 2002) Immunity of government official, while they remain a government official

71 70 Law of the Sea Background Initial focus was on the high seas and ship transit It has been around for centuries Historically it was about to get from A-B on the sea Recent focus has been on territorial seas and resources We are interested in how sovereignty works on the sea Marine Zones Baselines Drawn according to low-water line (aka low tide) Can use straight baselines o Where you make a rough estimate using a straight line Territorial Sea 12nm from baseline State sovereignty o In this zone a state maintains absolute sovereignty Two exceptions 1. Some limitations on laws that can be passed Aka you cannot apply laws that regulate the design of a foreign state 2. Right of innocent passage Allows a ship to get though, but you can only pass through not stay Historic waters? o Some waters may be classified as historical internal waters o States will have to prove this (for instance that they always exercised authority of it) Contiguous Zone 24nm from baseline (aka as from baseline) Prevent and punish infringements of their customs, fiscal, immigration, or sanitary laws You can pass certain laws but it falls short of sovereignty In its contiguous zone, a coastal State may exercise the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea Exclusive Economic Zone 200nm from baseline State may exploit natural resources, but this is a more limited sovereignty Other states have right of overflight, laying cables/pipelines, and other lawful uses (example: overflight)

72 71 Continental Shelf Sovereign rights over seabed and subsoil Islands and Archipelagos Naturally formed areas of land, surrounded by water, which is above water at high tide States can measure their zones beginning from the islans There have been disputes about islands, but its not really about the island itself and more about the exclusive economic zone (example: Okinotorishima Island) If it cannot maintain human habitation, or economic life on its own, it cannot have an EEZ Archipelagic baselines o Cluster of islands o There must be some sort of connection between the state and the archipelagos Examples: o Okinotorishima Island o Philippians International Straits Vital economically (states cannot block passage though these areas) Right of transit passage (this is different than innocent passage) Duties of ships Duties of states o States must cooperate with other states adjacent to the strait

73 72 Corfu Channel Case (Albania v. UK) (ICJ 1949) UK naval vessels hit underwater mines in Albanian waters Was Albanian sovereignty violated? Customary international law right for warships to exercise innocent passage in times of peace o Albania would have been justified in imposing some regulations Albania did not have it to be an international strait But the court sided with UK, saying it has been used for passage for so long it created a custom Sending of ships does not violate sovereignty Minesweeping activities does violate sovereignty High Seas Freedoms Navigation Overflight Laying of cables and pipelines Construct installations/artificial islands Fishing Scientific research You can do almost anything in the high seas (with some exceptions) CollisionsDealt with by the state that owns the ship Hot Pursuit If there is good reason to believe the state has violated the laws of the sovereign state in their territorial waters then they can be followed out onto the high seas (aka they cannot escape to the high seas) Ban on piracy, slave trade, drug trafficking Seabed is common heritage of mankind Boundary Delimitation Equidistance principles, then adjust to circumstances Canada and the Law of the Sea Baseline issues o Canada used a number of straight baselines on the Atlantic and Pacific Arctic o Dispute over a possible strait forming in the Artic (US argues it should be an international strait) China-Philippines Arbitration (PCA 2016) This has been going on for 10 years Dispute over delimitation of maritime zones o China claimed historic waters o China also claimed that reefs generated an EEZ o China built several artificial islands in support of this claim Philippines brought a claim to the PCA under UNCLOS o China refused to participate and said it would not recognize any decision o But under a treaty they signed there is compulsory jurisdiction (aka they don t need Chinas consent) PCA found that:

74 73 o China had no historic rights, and the reefs had been heavily modified to make sure they were naturally above high tide (the court cares about the natural state) o Reefs only above high tide due to modifications by China o China s actions violated Philippines EEZ rights o China aggravated the dispute through land reclamation This case was hailed as historic, essentially because they found bad faith on the part of China which is a very high international bar

75 74 Introduction International Human Rights Over the past 60 years, human rights have emerged as one of the most significant agents of change in the creation of international legal norms Although it can be a powerful tool, it is not easy to yield this is because of its disjointed evolution which has resulted in a system that is shapeless, uneven and even inconsistent Development o Before WW2 human rights had a limited place at best in international law o The idea that individuals are endowed with fundamental rights can be traced back to the Greek or Roman philosophy, but these rights were not recognized as having a binding limitation of the sovereign s absolute power over their subjects o A slow emergence of human rights in positive international law has evolved in a constant struggle to roll back to concept of state sovereignty o Some norms we would now regard as human rights were adopted in the wake of WW1 (example: specific protections for minority groups) o Some norms followed the expansion of the Europeans colonial empire, with the need to protect nationals traveling outside their empires o The holocaust and other atrocities committed during WW2 acted in a part as a catalyst for the rise of a movement seeking to integrated binding human rights standards in international law o In 1948 (two years after it was created) the Commission on Human Rights completed a draft declaration for presentation to the general assembly as a resolution o Later that year the general assembly adopted the resolution (of the 56 UN members 48 voted in favor and 8 abstained) NOTETreaty Human Rights Human rights entrenched in treaties present the significant advantage that their very existence cannot be disputed, an issue often presenting great challenges when referring to customary law The converse of this benefit is that treaty norms are binding solely on states which have ratified the treaty Treaties on human rights also usually provide for the creation of some form of compliance mechanism UN System of Human Rights Charter of the United Nations (Article 55) Universal Declaration of Human Rights (UDHR) o First big international document o This is non-binding, it was a declaration adopted by the GA o Although non-binding it does back up the UN Charter and some states argue it is customary international law o It is unlikey that a state would stand against it o It is a pretty broad document ICCPR and ICESCR o These are binding NOTE: The UNDHR, ICCPR and ICESCR make up the Global Bill of Rights (they are the three main Human Rights intruments) UN-Sponsored Treaties o CERD (Racial Discrimination) o CEDAW (Women)

76 75 o o o o CRC (Child) CRPD (Disabilities) Migrant Workers Criminalization treaties Genocide, apartheid, torture, disappearance Regional Systems The international system are supplemented by regional systems Each system has their own human rights court etc They each reflect the value of the region Europe Council of Europe European Convention of Human Rights Having experienced the horrors of the two world wars and the atrocities associated with them, and strong demand existed in the Western European states for a super national human rights regime The European convention for the Protection of Human Rights and Fundamental Freedoms entered into force nearly 12 years before the UN had agreed on the text of its treaties comprising of the international bill of rights North America Africa Organisation of American States American Declaration of the Rights and Duties of Man and American Convention on Human Rights Seven months before the UN adopted the Universal Declaration of Human Rights the organization of American States adopted its own American Declaration on the Rights and Duties of Man The document in many ways is similar to the Universal Declaration A significant different=the chapter on duties Includes individual duties to educate one s children, acquire elementary education, to pay taxes and work according to ones capacity Canada has ratified none of these inter-american Human rights instruments African Union African Charter on Human and People s Rights More recent region to adopt its own Human Rights treaty, it did so under the Organisation for African Unity

77 76 In answer to repeated calls from the UN to create an African Human Rights instrument and OAU adopted the African Charter on Human and Peoples Rights It is grounded in African traditions and values Conflicting Standards Two possible ways of classify rights (1) Generations of Rights (2) hierarchical Generations of Rights o Generations of rights 1st Civil and political 2nd Economic, social, and cultural 3rd Collective rights o This was first proposed on the basis of three generations First Generation=Civil and Political Rights Protects the individual from interferences from the state (this is grounded in idea of liberty) Listed in articles 2-21 on the Universal Declaration of Human Rights Second Generation=Economic, Social and Cultural Rights represents claims by individuals for an equitable share of economic and social resources Listed in articles Third Generation=Collective Rights collective human rights relying on universal solidarity; represent collective claims to sharing the global power and wealth o The ordering of these generations is under considerable debate Hierarchies of Rights o International lawyers tend to replicate municipal systems, such as the hierarchical structure of norms o There are ideas that some human rights should be superior to others o But human rights instruments do not contain clear indications that some categories ought to be superior to others o Some have suggested a small number of rights may not be suspended in a state of emergency, and are thus labelled as superior Specific Human Rights Standards Absolute/near-absolute o Examples: torture, right to life, Genocide Qualified rights o Liberty, security of the person, right to a fair trial Fundamental freedoms o Peaceful assembly, opinion/expression, religion Participation rights o Right to vote and engage in political affairs Economic, social, and cultural rights Protection of minority groups Non-discrimination o Rights should not be applied in a discriminatory manner

78 Nature of State Obligations Special Nature of Human Rights Human rights are in some respects distinct from most international law, particularly in that they seek to govern the relations of a state and individuals under its control rather than interstate relations Toonen v. Australia (UN HRC 1994) Tasmanian Criminal Code prohibits unnatural sexual intercourse and indecent practice between male persons T Challenged the CC provisions NoteThere is no international aspect to this (which is interesting) Do these contravene the ICCPR protections of privacy and equal protection? Committee finds that they contravene the ICCPR, and that the defences are insufficient Toonen v Australia, 1994 Toonen was an Australian national and gay rights activist living in the state of Tasmania He petitioned the Human Rights Committee seeking a declaration that two provisions in the Tasmania Criminal Code prohibited certain homosexual acts as contravening articles 2(1), 17 and 26 of the ICCPR The committee was called upon to determine whether Toonen had been a victim of unlawful or arbitrarily interference with him privacy contrary to article 17 and whether he had been discriminated against in his right to equal protection of the law (contrary to s 26) It is undisputed that consensual sexual activity in private is covered by the concept of privacy The committee considers the CC provisions to interfere with privacy Tasmania claimed that the provisions were justified for health and moral grounds The committed found no basis for these arguments (no proof it was a reasonable measure to prevent HIV etc) Under article 2(3)(a) of the covenant the victim of a violation of articles is entitled to a remedy; in this case the effective remedy would be the repeal of the CC provisions 77 Respect and ensure civil/political rights Velasquez Rodriguez Case (1998) Disappearance of students Duty to respect and ensure human rights State must PREVENT and PUNISH any obligations Velasquez Rodriguez Case, 1988 This was a landmark case by the Inter-American Court of Human Rights The petitions presented a claim against Honduras following the disappearance of a number of students after their abduction by 7 men dressed in civilian clothing Although the petitioners could not categorically prove the involvement of state agents, the court but found Honduras responsible on the basis of a states duty not only to respect but to ensure rights (found in article (1) of the American convention on Human Rights The states party to the convention have an obligation to ensure the free and full exercise of the rights recognized by the convention to every person subject to its jurisdiction This requires the government to conduct itself effectively to ensure a free and full exercise of rights An illegal act which violates human rights and which is initially not directly imputable to a state can lead to international responsibility of the State, not because of the act itself but because of lack of due diligence to prevent a violation or to respond to as required by the convention Thus the state has a legal duty to take reasonable steps to prevent human rights violations and the use the means at its disposal to carry out a serious investigation of violations committed in its jurisdiction

79 If the state acts in such a way that a violation is not punished and the victim s full enjoyment of rights is not restored as soon as possible then the state failed to comply with its duty In certain circumstances it may be difficult to investigate acts that violate an individual s rights; the duty to investigate like the duty to prevent is not breached merely because the investigation did not have a satisfactory outcome In this casethe evidence shows a complete inability of the procedures of the state of Honduras to carry out an investigation into the disappearance of the victim, and of the fulfillment of its duties to pay compensation and punish those responsible as set out in article (1) of the convention 78 Social and Economics Rights Action Center v. Nigeria (2001) Nigerian government allowed oil company to exploit reserves with no regard to health/environment Duty to respect, protect, promote, and fulfill human rights Said states have a duty to respect, promote protect and fulfil human rights Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, 2001 Petitioners alleged that the government of Nigeria had allowed an oil company to exploit oil reserves in Ogoniland with no regard for the heath and environment of the local communities As a result the water was contaminated and soil and air, leaving long and short term impacts on Ogoni People At a primary level the state has an obligation to respectthis entails the state refraining from interfering with enjoyment of fundamental rights Secondary Level is ProtectThe state must protect rights holders against other subjects by legislation and provide provisions of effective remedies The must also Promotethey must promote the enjoyment of all human rights; they should ensure individuals are able to exercise their rights and freedoms Last layer is fulfilthe state is required to fulfil the rights and freedoms it freely undertook under the various human rights regimes Progressive realization of economic, social, and cultural rights May include legislation, but also administrative, financial, educational, and social measures Not immediate realization, but expectation of expedition Limitation provisions, Derogations and Reservations Human rights embodies in reaties are the result of long and usually difficult negotiations; as such they can represent a number of divergent views Once the formulation of a human right has been agreed upon and entrenched into a binding instrument, it is then subjected the further assaults on the part of states trying to minimize its legal impact Reservations, limitation clauses and derogation during times of emergency are three tools that allow states to both ratify human rights treaties and restrict the scope of their application Limitation Provisions Some rights may be limited to secure the rights of others, or for interests of public order, public health, public morals, national security, or public safety There may be a worry that states will abuse these limitationsto deal with this there are some rules for each reason to limit a right Derogations Temporary suspension of rights in times of emergency Some rights are non-derogable

80 79 Duties of states and individuals Certain instruments have duties (example: state must provide education) Individuals may also have duties towards the state (this is really where the regional difference comes into play) Invasion of Sovereignty If sovereignty is the most fundamental right of a state, how does a case like Toonen fit? o No international element o International Human rights law deals with the States AND individuals; there may sometimes be no international element UN Charter art. 2(7) o Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state Non-State Actors International Organisations? o This is set out in draft articles NGOs? Corporations? We know that International Human Rights law bind states, other actors may be bound (this will be determined by draft articles) Reservations and Derogations States has used reservations rather liberally when ratifying human rights treaties There are more than 150 reservations to the ICCPR The problem in this area has been to determine whether the reservations are acceptable, who should make that determination and what the effect of an invalid reservation is Customary limitation to the making of reservations any reservation incompatible with the object and purpose of the treaty is invalid You must then define the purpose of object of a human rights treaty to determine if a reservation is inconsistent with it The Human Rights Committee has proposed a general rule that treaty provisions codifying customary international law cannot be the object of reservations (although this positions has been criticized) Many rights entrenched in human rights conventions can be limited under normal circumstances for pubic policy reasons Reservations cannot defeat the object and purpose of the treaty Reservations CANNOT be made on non-derogable rights (aka jus cogens) Derogations should be proportional o They must be the least intrusive means to achieve the purpose o The rights can only be derogated from during the state of emergency o Notethis raises issues about how long a state of emergency can exist Derogations from Human Rights in Time of Emergency o Most human rights treaties contain clauses permitted the suspension of many fundamental human rights during a state of emergency o The rationale for these clauses is that there can be no protection for fundamental rights without a minimally stable society in which the state can enforce the rule of law o Example: the ICCPR allows for derogation in article 4

81 o Brannigan & Mcbride v UK, 1993 States have a wide margin of appreciation in determining a state of emergency It is ultimately up to the state to determine if there is a state of emergency and how hard they need to go But they are required to officially proclaim the state of emergency (because the public needs to know that their rights are being limited) But it can still be supervised Facts: applicants challenged the legality of their detention by British forces in Northern Ireland, alleging they had a right to be brought promptly before a judge (violation of ECHR article 5). The UK argued that it has given notice of a state of emergency, thus any violation was justified by derogation. Issue: Who decides when there is state of emergency? Are there any requirements? By reason of direct and continuous contact with the pressing needs of the moment, the national authorities are in a better position than an international judge to decide on the presence of a state of emergency and the nature and scope of the derogations necessary to avert it Thus the decision that a state of emergency exists is best left to the national authorities; along with the necessary derogations (aka scope) BUT these parties do no enjoy an unlimited power, the court can rule that the states have gone beyond the extent strictly required by the exigencies of the crisis Application: in light of the facts there appeared to be a state of emergency in this case NOTE: states must also provide an official proclamation of the state of emergency, so that the public is warned that their fundamental rights might be limited 80 Customary Human Rights States might be bound by international human rights law even if they didn t sign on to international treaties Many states around the world are reluctant to ratify some or most Human Rights Conventions for many reasons ranging from ideological opposition to the content of the treaty to concern over national sovereignty For states not party to relevant human rights treaties, the question is whether or not the international norms have acquired customary international status (because then they may still be held accountable) Restatement of LawUS (example of customary international law?) Restatement (3d) Foreign Relations (1987) o This is somewhat persuasive globally, although it only applies to the US o It has been argued that it is customary international law o If, as a matter of state policy Genocide Slavery Murder/disappearance Torture, cruel/inhuman/degrading treatment Prolonged arbitrary detention Systematic racial discrimination Consistent patterns of gross violations UN HRC o This is much broader than the restatement o Probably most states won t argue against this, but some states may have issues o It is arguable that is it emerging into customary international law o It includes: Freedom from slavery Freedom from torture, or cruel/inhuman/degrading treatment

82 81 Right to life Freedom from arbitrary detention Freedom of thought, conscience and religion Presumption of innocence Ban on execution of pregnant women or children Ban on advocacy of national, racial, or religious hatred Freedom to marry Freedom of minorities to enjoy their own culture Collective Rights and Self-Determination Many states, often western developed ones, have been reluctant to accept the concept of collective rights in the same what they have accepted individual human rights The critics of collective rights fear that governments may rely on them to deprive persons of their individual human rights They also maintain that collective rights are not human right concerns and to treat them as such would confuse the issues On the other hand, the promotion of collective rights is viewed as an important goal by some groups (example indigenous) UN Declarations of the Rights of Indigenous People o Article 1: Right as a collective or individuals to all rights and fundamental freedoms in the Charter of the UN and the Declaration of Human Rights o Article 2: Right to be free from discrimination o Article 3: Right to self-determination o Article 4: In exercising the right to self-determination have the right to autonomy or self government o Article 5: have the right to maintain their distinct political, legal, economic, social and cultural institutions o Article 14: right to establish and control their education systems o Article 18: have the right to participate in decision making that would effect their own rights o Article 19: States shall cooperate and consult in good faith with indigenous peoples o Article 26: have the right to their lands, territories and resources o Article 27: states shall recognize indigenous traditions, customs and land tenure systems o Article 46: Nothing in this treaty should be interpreted as authorizing or encouraging any action which would dismember or impair the territorial integrity of the sovereign state Marshall v. Canada (UN Human Rights Commission, 1986) Claims that the Mi kmaq suffered violations of rights to self-determination, and to participate in public affairs Arguing a violation of article 1 of the ICCRP and 25 He said their rights were violated because they couldn t participate in constitutional conventions as a group The commission found that individuals could not act for the group in respect of self-determination They said there is a right to participate but this does not mean that your group has a right to be represented at constitutional conventions Commission found the right to self-determination inadmissible as individuals cannot claim to have selfdetermination rights violated Commission allowed the claim of participation in public affairs, but found that Canada was not allowed to require direct representation of Mi kmaq at constitutional conferences

83 Universality of Human Rights and Cultural Diversity The preamble of the Universal Declaration of Human Rights grounded human rights in the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family Those who espouse cultural relativism say that human rights are norms of western construct imposed on the rest of the world Human Rights: A Precious Tree and Soil to Grow It In (commentary piece) o Western cultures have many material and spiritual values that deserve respect, some of those values have been inherited worldwide since they are accepted universal values o BUT it is impossible to demand that all western cultural values be imposed on the East or the world in general 82 Compliance and Enforcement International Human Right Laws suffer from the same compliance problems affecting public international law as a whole States have been reluctant to impose on themselves binding human rights obligations, and even more so to agree with compliance to such obligations UN Bodies UN High Commissioner for Human Rights (something of a human rights ombudsperson overseeing compliance with all human rights around the world) UN Human Rights Council (created in 2006, it addresses situations of human rights and conducts reviews on the human rights records of all member states) Office of the High Commissioner for Human Rights UN Human Rights Council Other specialised bodies Treaty mechanisms Petitions for investigations/adjudication o Bring your complaint about a states violation o Domestic remedies must be exhausted first o A number of human rights treaties provide for the possibility of an individual or an organization to present communication alleging that a state is failing to comply with treaty obligations o The jurisdictions of a treaty body to entertain such petitions is sometimes optional (aka the state my ratify a treaty but refuse to accept the treaty body s competence to review communication concerning its compliance with the human rights entrenched in the treaty) Periodic reports o Increase transparency and create an opportunity for dialogue o Governments are often unwilling or unable to complete the reports (generally there is not sanction for non-compliance) o A significant number of human rights treaties require that all state parties submit periodic reports relating their progress in implementing the rights entrenched in the treaty o The presentation of such reports to supervisory bodies provides an opportunity for a dialogue on human rights issues between independent experts and the state representatives o Some bodies, including the human rights committee, have adopted the practice of sending a targeted list of issues they would like the see addressed in the states report

84 83 o The preparation of reports can he a lengthy and expensive process, and there is no sanction for states no living up to their reporting obligations o The bodies then tend to issue written comments in response to each states report Enquiries o The possibility of a treaty body initiating of its own authority an enquiry into the situations of human rights in a given country represents a potentially powerful tool for ensuring compliance with fundamental rights Advisory opinions o The ACHR and the ECHR both endow the courts that they create with power to issue advisory opinions o They are merely advisory and create no obligation on the states, but can generally be a persuasive tool Non-treaty mechanisms There are a number of mechanism outside the structure created by treaties to stimulate compliance with customary human rights This includes the structures established by international organs, like the UN and well as actions undertaken by NGO s UN bodies (above) UN Human Rights Council NGOs o Write reports, play an important role in collecting information on human rights violations and generating public pressure on governing and IO s to react to such situations o But NGO s are answerable to no one, so who is watching them? State sanctions o States themselves may rely on general institutions of international law such as countermeasures to unilaterally adopt sanctions against states disregarding fundamental rights (but they rarely do this)