Public International Law

Transcription

1 LAWS5005 Public International Law Week 1 INTRODUCTION TO INTERNATIONAL LAW International law is a binding regime of principles and rules that regulates the relations among states, and individuals and other non-state entities. The entities with the capacity in international law are states, international or intergovernmental organisations, trans-national corporations, individuals, non-government organisations (NGOs) Treaties are the major source of international law Intl law is expanding in its reach United Nations Charter Article 2(1): Based upon the principle of the sovereign equality of all its members (all states have equal rights and duties) This mean that no state: - May compel another to submit to judicial settlement of a dispute between them - Is bound by a new international rule unless that state has consented to it What is international law? The Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other (Oppenheim, 1905) International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law (Dixon, 2007) How, where and why international law developed 3000 BC Medieval Europe 15 th and 16 th centuries - Rise of the nation state: some powerful states emerged (Spain, Portugal, England, France, Netherlands, Sweden) in which internal authority became more centralised; especially in northern Europe where Protestant revolution most influential, these states refused to accept political authority of entities beyond themselves 16 th and 17 th centuries 1

2 - Modern IL emerged from turmoil of Europe s religious wars of 16th and 17th centuries Peace of Westphalia Recognised a legal system of independent states not subject to a superior authority - Treaties established rights of numerous small states to participate directly in international system with only symbolic concessions to pre-modern order represented chiefly by Holy Roman Empire - Confirmed modern state system of independent sovereign states 19 th century - European states consolidated after Napoleonic Wars and Congress of Vienna European balance of power also reinforced notion that IL was for European, Christian and civilised states - This was spread by European colonisation and thence to former colonies on independence esp. in the Americas - Unprecedented growth in negotiation of treaties, evolution of customary law and publication of scholarly works on IL - IL adopted a laissez faire approach to state behaviour - States began to develop rules to regulate behaviour between each other; rules about maritime conduct, trade and warfare - Scope of IL broadened beyond war and peace to international cooperation in a range of commercial and technical areas Communications Intellectual property Customs 20 th century - Permanent Court of Arbitration 1899/ Treaty of Versailles; League of Nations ToV established peace after WWI LoN a huge step forward for intl community; not open to all states but was open to all winners of WWI and later the losers of WWII One chapter of ToV established the Intl Labour Organisation (ILO) to improve rights of workers around the world Another chapter est. Permanent Court of International Justice 1921 LoN lacked power due to absence of US membership US opposed to premise of collective security United Nations A forum to which every state belongs; in which member states can draw up treaties to deal with particular matters UN Charter highly significant - ICJ and other intl courts and tribunals 2

3 Produce judgments and advisory opinions that contribute to the body of intl law - Many more multilateral treaties More customary intl law (states behaving in a certain way over time which develops into a form of obligation) - Expansion of IL to cover individuals, IOs Theories is IL really law? Natural law - St Thomas Aquinas: rules of natural law are discoverable through human intelligence or reasoning, and that reason enables man to order life according to the divine will or objectively correct moral principles - IL is more a positive morality than law because it fails the enforcement test (John Austin) Positive law - Laws are based on objective, ascertainable, scientific facts - Law as a creation of power; a command of a sovereign enforced by a sanction - Whereas natural law is said to exist above states, positivism says IL exists between (not above) states and depends on their consent, not necessarily subject to considerations of ethics or morality - Less concern with what states ought to do and more with what they actually do - IL has primary rules but no secondary rules i.e. there are obligations but no mechanism for change or enforcement. He also notes that there is no single and/or definitive source of IL law (HLA Hart) Natural law gave way to the positive approach in the 19 th century Consent theory - By consenting to it, states show that they accept intl law as law - Problems: It is generally accepted that any new state is automatically bound by existing customary intl law how does the consent theory explain this? Certain treaties regarding as binding all states, even those not party to them Reciprocal entitlement theory - If one state does wrong to another, the other state can withdraw benefit/impose a penalty in their dealings with each other - Form of enforceability No single, satisfactory general theory Summary: 3

4 IL lacks the mechanisms of domestic law: - No legislature no democratic election of a law-making body - No compulsory court jurisdiction - New laws aren t binding without state consent - No police force - Horizontal rather than hierarchical (principle of equality between states) States generally comply because it is mutually advantageous to do so which creates international stability (i.e. reciprocal relationship between states) - International law is sanctioned by habit, interest, conscience and force (Wright, 1925) No system of punishment like in domestic legal systems; however, there are ways in which different states enforce their rights - e.g. countermeasures Public perception of IL is generally shaped by the few (but very dramatic) occasions when it is flagrantly broken/disrupted Even when IL is broken States generally try to argue they were complying with IL - e.g. the US justifying the invasion of Iraq by using justification of old Security Council resolution - this supports the notion that intl law is in fact binding INTRODUCTION TO THE UNITED NATIONS UN formed in 1945 w/ only 50 countries UN Charter a treaty that is binding on all members Purposes and principal features of the United Nations system Art 1 UN Charter: 1. To maintain intl peace and security 2. To develop friendly relations among nations 3. To cooperate in solving intl problems and in promoting respect for human rights 4. To be a centre for harmonising the actions of nations in the attainment of these common ends Principal organs: - General Assembly Main deliberative organ Member States are equally represented, with one vote each Members have to be voted in by GA and SC Pronouncements on matters relating to international peace and security, human rights, admitting new members, UN budget, peacekeeping budget decided by 2/3rds majority 4

5 Other matters decided by simple majority Resolutions not binding - Security Council Primary responsibility is to maintain international peace and security (Art 24) Presidency held in turn by members in alphabetical order of their names; each president holds office for one month Adopts resolutions; legally binding Art 25 UN Charter: all substantive decisions of SC are binding on members Permanent members (UK, US, China, France, Russia) have veto powers However an abstention won t block a SC resolution if the requisite majority support exists 10 permanent members; each non-permanent member has a two-year term Voting arrangements: Art 27 Other organs of the UN can make recommendations to govts, but SC alone has the power to make decisions which member states are obligated under the Charter to carry out Art 103: in the event of a conflict b/w the obligations of the members of the UN under the Charter and other obligations, obligations under UN Charter prevail - Economic and Social Council - Trusteeship Council Est. to provide intl supervision for 11 Trust Territories administered by 7 member states, and to ensure that adequate steps were taken to prepare the Territories for self-govt or independence - Secretariat Carries out substantive and administrative work of the UN as directed by the GA, the SC and other organs Headed by Secretary-General - International Court of Justice Principle judicial organ of UN; est. in 1945 by Charter Seat of the Court is in the Hague Role is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorised UN organs and specialised agencies Only hears disputes where states have actually consented Composed of 15 judges (P5 always provide judges) Intl Criminal tribunal for the Former Yugoslavia (ICTY) and Intl Criminal Tribunal for Rwanda (ICTR) created as subsidiary bodies of SC with judicial functions International Law Commission - Not part of the UN but creation was provided for in UN Charter 5

6 - Object of the promotion of the progressive development of intl law and its codification - 34 independent experts serving in individual capacity but nominated for election by their state 6

7 SOURCES OF INTERNATIONAL LAW Art 38(1) ICJ Statute: The Court shall apply: (a) International conventions, whether general or particular, establishing rules expressly recognised by the contesting states [i.e. treaties] VCLT Art 2 treaty definition: an intentional agreement between states (or between a state and an intl organisation, or between IOs) in writing governed by intl law whatever its particular designation (treaty/agreement/covenant/convention/protocol/charter) Once in force for the parties, a treaty is legally binding on the parties and any breach will be a violation of intl law Binds only those states that are parties to the treaty cf: customary intl law, which binds all states Treaties are a source of obligation and not a source of rules of general application May be reflective of or come to embody customary intl law The content of a treaty obligation depends on the interpretation of the treaty; a process governed by intl law (b) International custom, as evidence of a general practice accepted as law [i.e. customary international law] Oppenheim, 1905: Customary rules grew up by common, tacit consent of states States dealing with each other needed some rules of intl conduct Single usages became habitual, then obligatory Gradually turned into custom over time as a feeling of legal requirement grew up constant and uniform usage, accepted as law (Colombia v Peru (Asylum Case)) Colombia v Peru (Asylum case) (1950) Facts: 7

8 - Argument was whether there was a CIL rule permitting a state granting asylum (Colombia) the sole right to characterise the asylee s offence as political Issue: - Whether there was a customary intl legal rule of diplomatic asylum - Was it the right of Colombia to determine the nature of the offence and grant diplomatic asylum Held: - Peru failed to est. that there was a customary rule of diplomatic asylum - Colombia in breach of a treaty re diplomatic asylum Reasoning: - No customary rule because insufficient evidence of States abiding by this practice out of a subjective belief that they had to because of a feeling of legal obligation - Other Latin American states practice not consistent with Colombia s practice - Peru not bound by state practice anyway as it had also refrained from being part of the relevant treaty International custom = state practice plus opinio juris State practice: Material, objective element repeated acts by state Treaties, decisions of intl and national courts, national legislation, diplomatic correspondence, opinions of national legal advisers, and the practice of intl organisations (ILC s non-exhaustive list, 1950) Policy statements, press releases, official manuals on legal questions, executive decisions and practices, orders to naval forces, comments by govts on ILC drafts (Brownlie) ILC s Identification of customary law Draft conclusion 7 Forms of practice 1. Practice may take a wide range of forms. It includes both physical and verbal actions. 2. Manifestations of practice include, among others, the conduct of States on the ground, diplomatic acts and correspondence, legislative acts, judgments of national courts, official publications in the field of intl law, statements on behalf of states concerning codification efforts, practice 8

9 in connection with treaties and acts in connection with resolutions of organs of IOs and conferences 3. Inaction may also serve as practice 4. The acts (including inaction) of IOs may also serve as practice There is no precise length of time during which a practice must exist; it simply must be followed long enough to show that the other requirements of a custom are met (North Sea Continental Shelf cases) A practice does not have to be followed by all states for it to be the basis of a general custom, and the practice of states with a particular interest in the subject matter is the most relevant (North Sea cases) Opinio juris sive necessitas = accepted as law Subjective, psychological element a state s belief that it is obliged by law to act in a particular way, as distinct from comity or friendly relations Requirements (North Sea cases): 1. The acts concerned must amount to a settled practice 2. The acts must be such, or be carried out in 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 Intl customary law consists of a wide range of subject matter, e.g. Duty not to intervene in internal affairs of another state Immunity of heads of state and certain senior ministers from the jurisdiction of foreign courts The prohibition of torture Various rules re interpretation of treaties, e.g. Art 28 VCLT: a treaty does not bind a state re any act or fact before the treaty came into force for that state Art 27 VCLT: can t use domestic law to interpret a treaty Onus lies on the state arguing for the existence of a custom Asylum case - Colombia cf Nuclear Weapons advisory opinion (1996) Could not find sufficient state practice + opinio juris that the use of nuclear weapons would always be lawful or unlawful Custom can be universal, local or regional 9

10 Asylum case Right of Passage casoe (Portugal v India) 1960 constant and uniform practice accepted as law by the parties as to free passage between Portuguese enclaves Costa Rica v Nicaragua 2009 (fishing rights) Persistent objector = a state may exempt itself from the application of a new customary rule by persistent objection during the norm s formation (unless jus cogens) E.g. Anglo-Norwegian Fisheries case UK failed to protest at Norwegian use of straight baselines Norway consistently objected to any limit on the length of such baselines Evidence of objection must be clear, and there is a rebuttable presumption of acceptance Must oppose rule from the earliest possible time, and opposition must be consistent Persistent objector rule reinforces the principle of state consent in the creation of custom Subsequent objector? Deviate from a customary rule and violate IL But if lots of states deviate, the rule changes (c) General principles of law recognised by civilised nations IL may adopt certain principles from municipal law (if used by enough legal systems around the world) e.g. rules of procedure, good faith, res judicata [an issue decided by a court may not be reopened], ex injuria jus non oritur [no benefit can be received from an illegal act], unjust enrichment, estoppel, English law principle of interpretation expressio unius est exclusio alterius [to refer expressly to one is to exclude others] Chorzow Factory case 1927 [the right to receive compensation now applies where a state has wronged another] Intl tribunals choose, edit and adapt these elements from other developed systems; the result is a body of intl law the content of which has been influenced by domestic law but which is still its own creation Equity (principles of fairness) as part of the intl system Diversion of Water from the Meuse case (Netherlands v Belgium) (1937), opinion of Judge Hudson 10

11 see also Art 38(2) ICJ statute if the parties agree, they can ask the court to decide a case not on the basis of law, but on the basis of ex aequo et bono (equity and fairness) (d) Judicial decisions [municipal and international] and the teachings of the most highly qualified publicists [academic writings] as subsidiary means for the determination of rules of law Judicial decisions can be decisions of ICJ, other intl courts and tribunals, domestic courts, arbitral tribunals Art 59 ICJ Statute: decisions of the ICJ have no binding force except between the parties and in respect of that particular case No strict doctrine of precedent, but the ICJ strives to follow its own jurisprudence and maintain judicial consistency; employs the technique of distinguishing previous decisions Note ICJ statute Art 59, but there are many examples of ICJ developing new rules of IL: Reparation case 1949: UN has international legal personality Reservations case 1950: rules on reservations to multilateral treaties Nuclear Tests case 1974: effect of a unilateral act (can be binding on other states) Anglo-Norwegian Fisheries case 1951: drawing of straight baselines Nottebohm case 1955: principle of real and effective nationality Teachings of the most highly qualified publicists No hierarchy between (a) and (c), but (d) is intended as subsidiary means Cases: Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) 2012 (ICJ) Principle: - State practice of particular significance is to be found in the judgment of national courts faced with the question whether a foreign state is immune, the legislation of those states which have enacted statues dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States - Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law according them a right to such immunity from the jurisdiction of other states; in the acknowledgement, by States granting immunity, that intl law imposes upon them an obligation to do so; and conversely, in the assertion by states in other cases of a right to exercise jurisdiction over foreign States 11

12 SS Lotus Case Facts: - Collision between French and Turkish ships; both captains arrested for manslaughter - France argued Turkey had no right to exercise criminal jurisdiction over a French national Held: - State practice + opinio juris had to be shown to the extent that it would demonstrate that a state could not charge a foreign national in relation to an offence that occurred on the high seas and outside their jurisdiction *North Sea Continental Shelf cases Principle(s): A rule in a treaty can also be or become part of a custom: 1. It may be declaratory of [a pre-existing] custom at the time that provision is adopted 2. It may crystallise custom as states agree on provision during treaty drafting process 3. It may come to be accepted and followed by states as custom in their practice after treaty s adoption For a treaty provision to be or become CIL: 1. Treaty provision must be of a fundamentally norm-creating character 2. Must be widespread and representative participation in the treaty 3. Passage of short period of time not necessarily a bar 4. But in that time state practice should have been extensive and virtually uniform 5. Must be general recognition of a rule/legal obligation Facts: Dispute over equidistance principle of drawing maritime boundaries/claims over continental shelf Denmark and the Netherlands sought to invoke against Germany a customary rule identical to art(2) Geneva Convention on the Continental Shelf (i.e. principle of equidistance) Germany was not a party to the Convention (had signed but not yet ratified it) Issue: Whether a treaty rule was binding as custom upon a non-party to the treaty Held: Treaty and CIL can coexist; rule of CIL (born out of state practice + opinio juris) may develop after treaty is concluded While there may have been evidence of state practice in the form of a number of states being party to the treaty, it still appears that the equidistance principle not a custom because of insufficient evidence of opinio juris - that states drew boundaries according 12

13 to this principle because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so Furthermore, the fact that treaty was subject to reservations undermine its propensity to be fundamentally norm-creating Dissenting opinion from Judge Tanaka: Significance of ratifications/practice varies e.g. large maritime state v small landlocked state Ascertaining opinio juris from external existence of custom Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) Issue: - Costa Rican subsistence fishing right: time + lack of protest by Nicaragua = customary right Military and Paramilitary Activities (Nicaragua v USA) (1986) Principle(s): Customary rule can co-exist with treaty rule No need for absolute rigorous conformity of state practice But there is a need for conduct generally consistent with the rule Facts: Nicaragua claimed that US had used armed forced and intervened in its affairs contrary to intl law prohibiting the use of force US argued that the use of force prohibition is a treaty provision, to which states must consent. The US had consented with reservations with the effect that the US was excluded from disputes arising from a multilateral treaty (which the UN Charter is) Issue: Whether customary rules applied in relations between two states when rules covering the same ground also existed in treaties to which those states were parties Held: Court affirmed Nicaragua s argument that treaty does not displace customary law Some issues How does new CIL evolve? - De lege ferenda the law as it should be, not the law as it is now - If multiple states decide a rule it is not satisfactory, their practice which is contrary to the rule will initially be a violation of IL, but if it is acquiesced to by other states, it becomes a new rule of CIL 13

14 Inconsistency between treaty and custom, or two rules from the same source? - Apply sensible rules of interpretation that apply to ML as well as IL - If there were two conflicting rules of CIL, common sense approach also applies and the more recent rule will displace the earlier - But in theory, there is no hierarchy of rules of IL The role of UNGA (United Nations General Assembly) resolutions: - There have been major resolutions relating to the prohibition on the use of force - Resolutions can have binding effect e.g. Namibia advisory opinion (1971) UNGA s resolution effectively terminated the apartheid mandate in Namibia - But generally not legally binding (unlike UNSC resolutions) - (Voting; speeches) accepted as evidence of state practice and opinio juris either of existing CIL or contributing to its formation e.g. in Nicaragua case 1986, Nuclear Weapons opinion 1996 Nicaragua case: US use of force/wrongful intervention in Nicaragua court looked to resolutions passed in 1970s and 80s elaborating what constitutes an unlawful use of force (e.g. supporting rebel forces); relied on those resolutions as est. state practice and opinio juris Nuclear Weapons opinion: the court also looked to UNGA resolutions for evidence of state practice and opinio juris - Some argue they can create instant customary law e.g. rules re outer space developed in the mid-20 th century Most agree there is no such thing as instant CIL - Considerations apply to UNGA and any other IO of universal membership - See also ILA Report 2000, pp view on UNGA resolutions What is soft law? 1. Written instruments that spell out rules of conduct that are not intended to be legally binding (e.g. UNGA resolutions), OR - A misnomer not law, but can elaborate on the meaning of a rule of IL 2. Binding but vaguely worded or inchoate instruments (e.g. World Heritage Convention 1972) Note: they are not subject to the law of treaties and do not generate the opinio juris required for them to be state practice contributing to custom International Law Commission (ILC) work Codification and progressive development of IL (UN Charter Art 13) Suggests how ILC law should develop No formal legal binding effect, but their work is highly influential because of: 14

15 1. The standing of those who comprise the ILC (independently elected and acting in an individual capacity) 2. Their method of work (they survey state practice in great detail) 3. Their articles are drafted as if they are to become treaties, and the intl community then decides what to do with them; those draft articles are still of great influence even if they are not given formal status Jus cogens Peremptory norms proscribing conduct that is fundamentally unacceptable to the intl community - Peremptory norms of IL from which no derogation is permitted ; a body of supreme or constitutional principles Cassese - Concept born out of developing nations desire not to be bound by treaties that contradicted fundamental rules of IL - These norms trump any sources of IL (treaties, CIL etc.) Concept is of long standing e.g. Oppenheim 1905 noted that immoral or illegal obligations could not be the object of a treaty: - Immoral (e.g. to attack a third state without provocation) such treaties were not binding - Illegal (e.g. to commit piracy) [ obligations at variance with universally recognised principles of IL ] treaty would be null and void But term itself originated in treaty law, during negotiations for the 1969 VCLT: a treaty provision that violates a jus cogens norm is void No definition/agreed list, but includes e.g. prohibitions of aggression (use or threat of force), slavery, genocide, apartheid, torture, piracy and the right to self-determination (only positive peremptory norm) - Persistent objectors cannot oppose peremptory norms - If a CIL competes with a peremptory norm, it cannot apply What is the effect of a jus cogens norm being violated? - Under the rules of state responsibility, other states under a duty not to recognise the violation Unilateral acts Unilateral acts can bind a state a certain individual can bind a state simply by an individual act: - Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ Rep Ser A/B No. 53 Status of a declaration given by the Minister of Foreign Affairs 15

16 Foreign Minister of Norway, in the context of post WWII negotiations over territory, said to the Danish representative that Norway would not try to claim Eastern Greenland, but later they did ICJ stated that Norway was bound by this promise - Nuclear Test cases (Aust/NZ v France) [1974] ICJ Reps 253 Aus and NZ complained about France s testing of nuclear weapons near their territory Declaration by French President that there would be no more atmospheric nuclear test - was there an intention to give a legal undertaking when the statement was being made? Court understood this as binding France, but the case was moot - Armed Activities (New Application: 2002) (DRC v Rwanda) [2006] Counsel for Rwanda; statement of intention to withdraw reservations - Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ Belgium had heard rumours that Senegal was going to release Chad s dictator; went to court to get urgent order that Senegal must keep him in custody Counsel for Senegal said they would not release him; Court considered this statement binding on the state - Questions relating to the Seizure and Detention of Certain Documents and Data (Timor- Leste v. Australia) (March 2014) - ILC Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations (2006) 16

17 Week 2 THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW Effect of municipal law (ML) on IL - State practice (Art 38(1)(b) ICJ Statute) and general principles (Art 38(1)(c)) Monism and dualism Monism = only 1 legal system to which both PIL and ML are a party - IL applies automatically in domestic legal order; prevails over inconsistent ML (e.g. intl human rights law says no person may be imprisoned without trial and ML says otherwise) - In practice, monism means that state should ensure national rights and obligations conform to IL and if they do not, IL should prevail - Many European jurisdictions (e.g. the Netherlands) approach treaty law and customary IL from a monist perspective treaties are given direct effect; are supreme over domestic law New states or new Constitutions often provide for how IL is to be incorporated Dualism = PIL has no direct impact on ML and must be implemented through executive order / legislation / judicial decision - Il and national legal systems distinct and independent IL = collective will of sovereign/states; ML = will of sovereign/state IL law is b/w states, national law is within states - IL cannot invalidate ML and vice versa - IL not automatically part of ML; to apply domestically, IL must be adopted or transformed into ML Effect is that govt may be acting lawfully within its own territory even though in breach of intl obligations (e.g. violating HR obligations) - Australia = a dualist State following the transformation doctrine re treaties and probably also re customary international law A third way? - Separate systems of law - Similar to dualist theory in effect by less theoretical - IL and ML deal with different subject matter (cf monism and dualism which say IL and ML deal with the same subject matter) - IL and ML do not operate in the same sphere - IL and ML are separate systems of law, so never contradict each other 17

18 - Any conflict (e.g. IL says no person may be imprisoned without trial and national law says otherwise) is resolved like any conflict of laws by the rules of the particular court Doctrines of incorporation and transformation More relevant in practice is which approach is followed in ML incorporation or transformation The doctrines of incorporation and transformation determine whether and if so, how national courts will apply IL in any given case - Incorporation: rules of IL automatically a part of ML w/o need for express adoption by local courts or legislature hard variant = courts to apply PIL unless inconsistent with statute or common law soft variant = courts to apply PIL unless inconsistent with statute only (i.e. prevails over common law) - Transformation: IL must be transformed into ML by being expressly adopted by the local courts; IL not ipso facto part of ML and requires deliberate act by the state hard variant = only legislation may transform soft variant = either legislation or judgments can transform Some correlation b/w theories of monism and dualism and doctrines of incorporation and transformation, but not always - e.g. UK case is a dualist state but follows an incorporation approach to CIL And practice not always consistent - R v Jones (UK): intl crime of aggression not automatically a crime in UK law even though incorporation theory accepted in principle Often a distinction b/w custom and treaty rules - UK and Aus follow transformation approach to treaties The contents of the treaties have to be implemented in ML by legislation - UK (generally) follows incorporation approach to customary rules - Aus (probably) follows transformation approach to customary rules (e.g. Nulyarimma v Thompson) but soft transformation approach not clearly endorsed Trendtex Trading Corp v Central Bank of Nigeria [1977] UK position Principle: - Incorporation approach accepted; i.e. custom can form part of domestic law Facts: - P = Trendtex, Swiss company selling cement to English company with which D had contracted; D = Central Bank of Nigeria 18

19 - P claimed against D for payments due in respect of the Bank s breaches and repudiation of letters of credit Issue: - Whether Nigeria has immunity before UK courts - Whether doctrine of precedent applied to CL rules which incorporated PIL rules, so that if there were a change in PIL, it could only be recognised by courts as part of CL w/in the limits of stare decisis. Majority held: - Lord Denning strayed from his previous decision and transformation approach in Thakar to the incorporation approach - Under the incorporation approach, domestic law changes as the rules of international law change - Shaw LJ and Denning: exception to the doctrine of stare decisis = Court could apply new rule of PIL even if it were to the contrary of the old rule used in an earlier decision. Stare decisis did not apply. Chow Hung Ching v R (Aus) Principle: - Rejects incorporation approach Facts: - 2 Chinese who assaulted/detained a local in PNG. Appeal against the convictions on the grounds that Supreme Court of PNG didn t have jurisdiction to try the charges because the offences were committed by members of an armed force of a friendly foreign power admitted to PNG w/ consent of Cth and under govt. of Cth. Issue: - The extent of immunity in the case of visiting armed forces Latham CJ: - [17] legislation provides that authorities of vising forces should have jurisdiction over their members in relation to discipline/internal administration but nevertheless local jurisdiction should be preserved of local courts - Concluded that accused were not members of armed force of China, ergo, objections to the jurisdiction of the court should not be sustained - [13] Int. law is not a part of the law of Aus; but a universally recognised principle of int. law would be applied by our courts Dixon J: - Principle of immunity from local jurisdiction asserted in favour of members of a foreign military force; bring their own military law = said to form part of the law of nations - In Australia, the law of nations (in regard to questions of jurisdiction) is adopted by the CL and is held to be a law of the land. 19

20 - The theory of Blackstone (automatic incorporation) is regarded as without foundation and the true view is that of Brierly that international law is not part, but is one of the sources of Australian law. - Immunity of foreign armed forces held to be part of common law Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] Facts: - Bikie consorting case two of the Ps pleaded that the state law contravened the ICCPR rights of freedom of association Results: - Four justices dismissed claim - French CJ: Aus is a dualist state; ICCPR has no effect as it has not been implemented Influence of international law on Australian law Treaties clearly not part of ML unless implemented by domestic legislation: Teoh (1995) - NB: implementation = making IL obligation part of ML; ratification = binds the state to comply w/ treaty But legislation must be interpreted as far as possible so as to conform with IL: Polites (1945) IL can influence the development of the common law: Mabo (1992) Customary international law - Does not automatically form part of domestic law, but may have an indirect effect e.g. by influencing the development of the common law, and through statutory interpretation Statutory interpretation - In the absence of express words to the contrary, legislation should be interpreted subject to Australia s international legal obligations - Courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless intention clearly manifested by unmistakable and unambiguous language - Principle of statutory interpretation that: every statute is to be so interpreted and applied, so far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law - Latham CJ in Polites - This is in part because : There is a presumption that the legislature does not intend to violate by a statute any established rule of international law McTiernan J in Polites - Where a rule of IL arises through a treaty to which Aus is a party, rather than a rule of CIL, position not clear 20

21 Chu Keng Lim v Minister for Immigration: courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty [i.e. same as a rule of CIL] - Brennan, Deane and Dawson JJ Teoh: BUT subsequently clarified as being limited, probably, to cases where the legislation is enacted after, or in contemplation of [Australia becoming party to] the relevant [treaty] - Mason CJ and Deane J Constitutional interpretation - Debate as to whether same approach to statutory interpretation applies to the Constitution Coleman v Power Facts: - P a public speaker; argued his right of free speech had been infringed when he had been charged with using offensive language Results/reasoning: - Kirby J: the principle of statutory construction that where words of a statute are susceptible to an interpretation that is consistent with international law, that construction should prevail over one that is not [240] - Gleeson CJ: Acknowledged the principle that courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty, but implicitly agreed with those formulations that confined it to: Legislation enacted after the treaty was entered into, or Legislation enacted in contemplation of Australia becoming a party to the treaty, or more narrowly Legislation intending to give effect to the treaty - Gleeson CJ rejected the suggestion that the 1966 ICCPR (in force for Australia 1980) could influence the interpretation of a 1931 statute particularly a State statute - Kirby J replied that: The suggestion that the meaning of the Act in question here is forever governed by the intention of the legislators who sat in the Queensland Parliament in 1931 is not one that I would accept. [245] i.e. statute should be read and interpreted as of today, not 1931: This Court must keep pace with such changes in doctrine, not rest on its legal laurels [249] 21