PUBLIC INTERNATIONAL LAW

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1 PUBLIC INTERNATIONAL LAW INTRODUCTION DEFINITION - Laws that regulate the legal relationships between states - Composed of principles and rules of conduct that states are bound to observe - Regulates the operations of International Institutions à this is becoming important for individuals (Human Rights/ Criminal) - National Law: has a recognized body to create laws, hierarchies of courts to settle disputes, executive dedicated to the state - International Law, does not fit the model of national law: there is no legislature (UNGA, but not really); No system of court with hierarchies (ICJ is just limited to states appearing); No Executive (Security Council but powers are constrained by P5); There are no sanctions like there are in National Law WHY DO STATES OBEY RULES OF INTERNATIONAL LAW? - It is a system of relationships that states rely on, contrary to popular belief violations of international law are rare - Compliance imports elements of stability and predictability to the conduct of international relations - Advantages from observance of the laws: cause alliances to form, brings public opinion to your side BASIS FOR OBLIGATIONS - Contract Theory of consent à what happens if consent is withdrawn what are the consequences? - Doctrine of consensus Influence of the majority of state rules, unless they have explicitly denied it they have consented to it - Legitimacy of the rules procedures must be in the interest of all states, and rules should advance the interests of all states INTERNATIONAL LAW AND POLITICS - Politics is much closer to the heart of the international legal system than is perceived within national legal orders, and power much more in evidence - There is no way to challenge P5 vetoes HISTORY - Deeply rooted in Western culture and political organization - Overcoming Eurocentrism Koskenniemi s four methods: o Tell the story of International law with Imperial and Colonial Powers o Point to the colonial elements that we are accustomed to à Sovereignty o Think in hybrids of colonial and anti colonial ideas o Provincializing Europe à stop thinking of the European story as universal think of I-Law as the history of humanity - Two key concepts: Sovereignty; Doctrine of Equality of States ISSUES TODAY - Fragmentation of International Law à many different bodies of law emerging, how do they interact? - Increased role and influence of non-state actors - Growing discontent among developing countries - Significant threats to international peace and security UNITED NATIONS - Has a legal personality it can sue and be sued and enter into contracts - UN Charter: o Article 1, Purpose: Peace and Security; Friendly relations among nations; Self determination of peoples o Article 2, Principles: Equality of all sovereign states; Express limitation on intervention o Article 4, Membership: Peace loving; Prepared to accept the obligation in the charter; allowed by SC and then GA - Other Organs of the UN: Economic and Social Council, Trusteeship Council (Suspended ops in 1994), ICJ, Secretariat SECURITY COUNCIL - Primary responsibility for the maintenance of international peace and security - Article 27 vote must be passed by 9 - Membership 15 members including 5 permanent members with veto power - Decisions are binding upon all member states - Lots of talk about reform of the Security Council but nothing has been done with any of the proposals GENERAL ASSEMBLY - Parliamentary body of the UN - Each member has one vote and the trend is to get consensus - Resolutions may reflect customary international law, they are not binding, but it becomes a basis on which the SC will decide - Cannot bind its members aside from budget 1

2 SOURCES OF INTERNATIONAL LAW Article 38 of the Statute of the ICJ states that there are 4 sources of International Law: International conventions (general or particular) that establish rules; International custom; General principles of Law; Judicial decisions and the teaching of the most highly qualified publicists. CUSTOM - Debate on the value of custom as a source of international law o It s a dynamic source of law in light of the nature of the international system and the lack of centralized government o Too clumsy and slow-moving to accommodate the evolution of international law, but also flexible and democratic o There is value in it because it is activated by spontaneous behaviour and thus mirrors the contemporary concerns - Two elements: Actual behaviour of states; and, the subjective belief that such behaviour is law (opinio juris sive necessitatis) - It becomes binding on all states à Positivists take issue with this because it lack explicit consent - Debate about the importance of both elements: Positivists say that opinio juris is more important but it is also challenging to prove is the action done out of a belief in a legal obligation or courtesy, also consistent with natural law through the practice and subjective belief STATE PRACTICE (OBJECTIVE/ MATERIAL) Issues to consider in respect of state practice: - 1) Generality Doesn t mean every state practice it, but many do (ie. if you are landlocked and don t participate in a rule about the seas) - 2) Uniformity of Practice - Consistency and repetition (a constant and uniform usage in question) o Deviations are seen as breaches rather than evidence of a new law - 3) Duration (no rigid time element) What is the effect of a failure to act? - Depends: was there a legal obligation not to act, an incapacity to act (ie. landlocked countries), an abstention could only give rise to the recognition of a custom if it was based on a duty to abstain. Should not infer consent from no act, needs to be a conscious duty to abstain Where to find evidence? - Legislation, courts, activities on the international stage, Newspapers, historical records, resolutions of the GA - The weight of an act from the head of state is different than an governmental official, different weights on different things OPINIO JURIS (SUBJECTIVE/ PSYCHOLOGICAL) This turns usage into a custom and renders it part of the rules of international law. It is a high threshold; confluence of practice is not enough. Do states believe that they are legally obligated? How can this be established? - If there is no legal obligation then why do you do it? - Established through duration and how it is practiced, look to what states are doing in the GA, where state officials take positions Regional and local custom - It is possible for rules to develop that will only bind a set group of states - Standard of proof is that the obligation has been maintained (the standard is higher in more general cases) North Sea Continental Shelf (1969) D and N were parties to a convention that G was not. They wanted to use the convention as a principle to govern the delimitation of their continental shelves. Customary law is not created by a convention it is through historical use and treatment of other states.. State practice would have to be extensive and virtually uniform. Fisheries Case (UK v Norway) (1951) The Case of the Lotus (France v Turkey) (1927) Military Activities, Nicaragua v USA (1986) Germany v Italy Asylum Case, Colombia v Peru (1950 N used straight baselines as the starting point for measuring its territorial sea and thus enclosed certain coastal waters as internal. UK objected claiming that international law obliged N to use low water mark along its coasts. UK argues that the system was not known. French ship crashed into a Turkish ship. On arrival in TK FR Captain was arrested and prosecuted. FR tried to argue that criminal proceedings were within the jurisdiction of the state whose flag is flown N claimed that US had unlawfully used force contrary to Article 2 (4) of the Charter. US had excluded from the scope of the Court s jurisdiction in this matter. Was article 2 (4) a customary law? Court found there was inconsistent treatment of the custom. While it may be true that States sometimes decide to accord an immunity more extensive than that required by international law, but if the grant of immunity is not accompanied by the requisite opinio juris it is not custom Political figure was given asylum at the Colombian embassy in Peru. Colombia argued there was customary (regional) law for him to get safe passage. The Norwegian system was used for a sufficiently long practice and England would have known the general toleration in the international community of the practice. If a method shows constant and sufficiently long practice, and there is no opposition in the past it is not contrary to I-Law. States had often abstained from instituting criminal proceedings in collision cases. But this wasn t done because they were conscious of a duty to abstain. There is no rule of I-Law to where collision cases are criminal pursued. Acts concerned must amount to a settled practice and are accompanied by opinio juris. Either the states taking such action must have behaved that their conduct is evidence of a belief that this practice rendered obligatory by the existence of a rule of law requiring it. The existence of a subjective element is implicit in the notion of opinio juris. The ICJ has adopted and maintained a high threshold with regard to the overt proving of the subjective constituent of customary law formation. Confluence of practice in itself is not enough Regional customary international law must be acted on by the state to show intention to be bound. This threshold was not met here. 2

3 TREATIES VCLT Art.2: an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation - The advantage of treaties is that they bring speed and clarity so the law may be created or advanced - A disadvantage, in comparison to customary law is that, it only bind parties that agree to them - They come into force from consent and not practice TREATY MAKING - Criteria for Treaties - Article 2/3 of the VCLT: o Parties must be subjects of International Law o They must intend to create binding obligations under international law o Their agreement must be governed by international law - Who has the capacity to enter into treaties? o Article 6 VCLT every state, the consent cannot be implied it must be express - Formalities o It can be made in whatever form the parties would like it to be, it is usually concluded by head of state but could happen with a government official - Obligatory nature o Article 26 Every treaty in force is binding upon the parties to it and must be performed by them in good faith - Consent and Binding Force o States need to consent before being bound i.e. They need to ratify as an Act of Parliament - Treaties and Customary Law o Treaties are a norm creating character, covers the same issues as customary law o Treaties are only binding to parties but customary can apply to a larger group - Entry into Force o When the instrument stipulates o States should not act in contravention of it before it becomes law o It must be registered with the UN Art 80 of the VCLC, and Art 102 of the UN Charter, this prevents secret treaties Anglo- Iranian Oil Co Case (IK v Iran) (1952) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (1994) Legal Status of Eastern Greenland (Denmark v Norway) (1933) Case Concerning Right of Passage over Indian Territory (Portugal v India) (1960) APPLICATION OF TREATIES Iran nationalized its oil. UK company was adversely affected; UK claimed that the agreement between the company and Iran was between the two states and that the new policy violated the treaty. Q and B agreed to 3 rd party mediation of their maritime boundaries by Saudi. Went on for years, finally Q agreed to a previous B formula to solve it. B, Q, and S signed the minutes recording that the reaffirmed the prior agreement. Q submitted that the dispute using the B formula. B did not agree Norway proclaimed sovereignty over Eastern Greenland, Denmark claimed all of Greenland and started these proceedings. Post WWI N had a claim to Spitzbergen if there was no issue with D s claim to Greenland. Portugal relied on 18 th C treaty where a local Indian ruler gave them sovereignty over certain enclaves and a right to passage to them. India objects because the treaty had not been validly concluded. The contract signed between the Company and Iran is not a treaty. UK gov t is not a part to the contract. The document had one purpose to regulate the relationship between the Company and the state. A written record of an agreement, even if informally drawn up and not having the outward appearance of a formal treaty, can give rise to a binding treaty relation. A verbal reply given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative to a foreign Power is binding on the country. The doctrine of inter-temporal law dictates that the validity of bygone treaty practice is to be assessed according to the law of treaties that governed at the time of that practice. It was valid. - Rights and Obligations o Only binds parties to the treaty can affect third parties but only if they have agreed to it o Article 34 A treaty does not create an obligations or rights for a third State without its consent o Article 35 Third Parties only have obligations if they expressly accept it and put it in writing - Interpretation o Approach to interpreting a treaty is purposive o Function is to determine the precise meaning of the provision (not to change it) o Article 31 general rule of interpretation refers to the ordinary meaning to be given to the terms of the treaty but must be interpreted in good faith o Doctrine of inter-temporal law provides that a legal right or obligation must be appreciated in light o the law applicable at the time it arose, and not of the law applicable at the time when a dispute in respect of such right or obligation arises 3

4 Rights and Obligations Treatment of Polish Nationals Case of the Free Zones of Upper Savoy and the District of Gex Rights of Nationals of the USA in Morocco (France v USA( (1952) Aegean Sea Continental Shelf (Greece v Turkey) (1978) Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) Case Concerning the Temple of Preah VIhear (Cambodia v Thailand), Merits, Judgement (1962) Termination of Human Rights Treaties North Korea Legal Consequence for States of the Continued Presence of South Africa in Namibia (1970) Hungary v Slovakia (1997) Fisheries Jurisdiction (UK v Iceland (1973) Danzig was a free-city established pursuant to a WW1 peace treaty. Dispute arose between Poland and Danzig with respect to the treatment of Polish nationals and whether they could relay on D s constitution or only on International Law. At issue was article 435 of the Treaty of Versailles to which France was a party but Switz was not. Fr. Abrogated the status of certain customs-free zones along the French-Swiss border. A state cannot rely, as against another State, on the provisions of the latter s Constitution, but only on International Law. It cannot be lightly presumed that stipulations favourable to a third state have been adopted with the object of creating an actual right in its favour. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case, it must be ascertained whether the states which have stipulated in favour of a third state meant to create for that state an actual right which the latter has accepted as such. Treaty Interpretation Treaty concluded between US and Morocco in Look to previous versions of the treaties and other treaties 1836 provided that if there was an issue with UC made in the same time and how historically the word was citizens in Morocco the American consul would interpreted. Disputes meant both civil and criminal. deal with it rather than local authorities. Issue was whether any dispute was civil or criminal. At issue was whether the parties had agreed to submit their dispute over their continental shelves to the court. Gr. Relied on a treaty where they had earlier had a reservation excluding disputes relating to the territorial status of Greece. The parties disagreed over the interpretation of a treaty that permitted CR to make navigational used for the purposes of commerce over a portion of the San Juan River. Issue was whether the word comercio should be limited to the meaning in 1858 or updated to meet the current meaning. Invalidity, Suspension and Termination of Treaties Parties disputed sovereignty over the border treaty said border-followed watershed. Maps were completed showing the area on Cambodian side. Later found out it was wrong. Hardly seems conceivable that in such a convention terms like domestic jurisdiction and territorial status were intended to have a fixed content regardless of the subsequent evolution of international law. Where the parties have used generic terms in a treaty the parties necessarily having been aware that the meaning of the word would evolve over time Presumed as a general rule to have intended those terms to evolve. In the interests of stability of contracts, the principle of error as vitiating consent is usually applied somewhat strictly. The authorities accepted the risk that such an error might occur and whoever does that accepts the errors as facts. ICCPR cannot be denounced unilaterally by a state. Moreover, it should be noted that the substantive provisions of it that track the Universal Declaration and or the expressly non-derogable rights have entered into customary international law. Post WWI SW Africa was deemed incapable of governing itself. SA was trustee over SWA. They persisted in occupying the area even with rulings asking them to leave. Termination or Suspension in Response to Impossibility System of locks on the Danube. Hungary wanted out of the agreement and argued principle of impossibility of performance. Iceland purported to increase the breadth of the fishing zone UK objected pursuant to a 1961 agreement with Iceland that disputes would be referred to the Court. Iceland contested that the agreement was not in force given changes in circumstances There is a right to leave a treaty unless it is a human rights one but the silence of a treaty is to the existence of such a right cannot be interpreted as implying the exclusion of rights which has its source outside the treaty. Article 61 requires the permanent disappearance or destruction of an object indispensible for the execution. Impossibility of performance may not be invoked for the termination of a treaty by a party to that treaty when it results from the party s own breach of an obligation. A fundamental change of circumstance must have been unforeseen. The only relevant change is the operability of the jurisdictional clause itself was changed, not to such thing as developments in fishery techniques. 4

5 OTHER SOURCES GENERAL PRINCIPLES - Existence of gaps in the law, this is prominent in international law because the body of law is not that extensive when compared to National - General Principles may appear in municipal systems, these are applicable to the relations between states o Every violation of an engagement involves an obligation to make reparation o Admission of circumstantial evidence o A judgment rendered has binding force between the parties to the dispute o Principle of estoppel o Principle of respect for acquired rights o Good Faith JUDICIAL DECISIONS Article 59 of the ICJ: The decision of the Court has not binding force except between the parties and in respect of that particular case. - If taken literally this means that the doctrine of precedent does not apply but in practice there is stare decisis - Refer to decisions in regional courts (EU, AU, ICJ), they will also pay attention to develop in national courts WRITERS - Art.38 (d) of the ICJ refers to teachings, historically this was more influential than today - Writings of scholars continue to be important: consolidate and synthesize, commentators on principles not creating them HIERARCHY OF SOURCES - There is a presumption against normative conflict but no rule around it, Article 38 ICJ gives a sense of hierarchy, but it s not really a hierarchy - Treaties always prevail over a judicial decision, judicial decisions and writing have a subordinate function - Priority as between customary and treaties is more complex à more specific treaty should prevail over general ones - Rules of Jus Cogens (Peremptory norms) are superior to all other sources o Are non derogable o EG. Pacta sunt servanda à states must perform their treaty undertakings in good faith - VCLT Art 53 - A Treaty is void if it conflicts with a peremptory norm of general international law - VCLT Art 64 If a new peremptory norm emerges, any treaty that conflicts with it becomes void and terminates 5

6 APPROACHES TO INTERNATIONAL LAW International Law Theories Natural Law Idea that there are fundamental shared moral values that underlie the system of all peoples. It comes from God and is so unalterable that God cannot even change it. Modern Natural Universal in application but not derived from God but from a basis in rationality, derived from reason. The legacy of this Law school of thought is the Charter. Critiques Not grounded in any democratic sense, who decides what is natural law? It is only grounded in western morality Positivism Dominant theory at the time of global colonialism. Law is determined or observed in the actions and statements of states. True law is only created through laying down that law, laying down must be performed by a sovereign entity. Strict positivism was articulated by Austin and Hart. There is no international sovereign so there is no international law Modern Positivism Norms to which states have expressly or implicitly consented to à this opens a door to customary law. Doesn t like the idea of jus cogens unless it is articulated. Critiques Look at the actual behaviour of states; we can observe that they are abiding by a body of rules that they believe are obligatory. Customary law is an obligation on statehood, and therefore the idea of consent is a legal fiction. There are enforcement mechanisms, but it s not the same as in the domestic context. MODERN INTERNATIONAL LAW - Re-emergence of Natural Law post WW2, the human rights movement - It has brought legitimacy and clarity but the enforcement is limited à called Soft Law - International Law/ International Relations o The difference is in the focus one describes states behaviours, the other asks why do states do what they do o o ILaw asks: What is the point of the legal analysis? What should states do? Not just about explaining behaviour but solving IR looks to: explaining why states do what they do looks to influence of intergovernmental organization, personality of leadership, national culture and history IS INTERNATIONAL LAW MERELY CODIFIED INTERNATIONAL POLITICS? Approach to Culture - Mainstream: Primarily seen itself as not embodying a culture, articulates itself as universal - Critique: It embodies western values, property, rights, sovereignty; assertion of the idea of the west only emerged as it defined the other (Native, Uncivilized); process of contributing to stereotypes of both West and non-west - Limitation: How do we overcome its embodiment in western values? o Radical approach says that it is not reform-able but is defined by the colonial experience o Reformist approach advocates a redefinition of culture by either recognizing mainstream stereotyping of cultural groups, or better contextualizing legal problem solving, or transcendence of subjectivity and other acts of will Approach to History and Sovereignty - Mainstream: Sovereignty was about the moral authority wielded by government over the rights of the inhabitants, it is a story of progress - Critique: The account of sovereignty evolving is wrong, the linear idea prevents us from innovating our conception - Limitation: Implicated in creating inequality and disadvantage on the basis that we have the ability to question and change rules of international law in light of the history Approach to language - Tells us that law is the product of practise, sometimes the language we use is ambiguous - In the new stream approach language and law are articulated in a different relationship - Not created by the behaviour of states or what states believe about what they are doing, rather, it is created by an argumentative process EUROCENTRISM - International law is based off conflicts in the 17 th century - Sovereignty was a fundamental concept tin the Treaty of Westphalia, the purpose of sovereignty was to promote world peace - Two modes as to why international law exists because of Colonialism: o Sovereignty s function as a doctrine (Exclusive to non-europeans); Function to include non-europeans Exclusion - Both natural law and positive law were doctrines that rationalized and excluded the third world - Indians fulfill their standards of having government and therefore are bound by the law but are not protected by it - Terra nullius - could enter into treaties but they weren t sovereign, legal capacity to transfer their land but could not rule it Inclusion - Mandate system took control of these countries until it determined that they had the right institutions in place to be considered sovereign, but this created dependency and four main legacies are ongoing: o Continuation of economic dependency: this justified intervention and international control o Ideological legacy: adopted the ideologies of the west o Pathological third world states o War on Terror: system of law was reformed so the doctrines that justify force and what is a legitimate practice in war are shifting 6

7 INTERNATIONAL LEGAL PERSONALITY LEGAL CRITERIA FOR STATEHOOD Article 1, Montevideo Convention on the Rights and Duties of States 1. Permanent Population (stable political community, no minimum number but should be significant and permanent) 2. Defined territory (no minimum area, borders do not need to be settled, some territory unquestionably under control) 3. Effective Government (important to established statehood, temporary slips not fatal, and no particular form required) 4. Capacity to enter into relations with other States (can have another acting on its behalf) 5. * This isn t a requirement but it is discussed that Recognition by other States could be considered a 5 th criterion a. By a political act of other states (express or implicit) b. Constitutive theory: Statehood require recognition, necessary for foreign relations c. Declaratory theory: No formal recognition is required, satisfaction of the Montevideo Convention is sufficient Memo from Actin Secretary of State for External Affair, Indo Chinese States, Recognition was not extended to the Indo-Chinese states (Vietnam, Laos, and Cambodia) Communist forces were fighting with the French - UK recognized it but only under French rule, Canada s approach to his was a result of politics - constitutivism is unattractive legal theory HOW TO BECOME A UN MEMBER? Article 4, UN Charter 1. Membership in the UN is open to all other peace loving states, which accept the obligation contained in the present Charter and, in judgment of the Organization, are able and willing to carry out these obligations 2. The admission of any such state to membership in the UN will be effected by a decision of the GA upon the recommendation of the Security Council This is the reason many states like Taiwan or Palestine are not recognized states, the influence of politics. Non Member Observers - Holy-See: does not meet the traditional criteria for statehood but is given full voting rights and can be apart of UN groups, is a permanent observer - Palestine: PLO has powers to be the provisional government for the state of Palestine (2013), is a permanent observer - International Government organizations: can be granted standing - NGOs: Can show up and speak, and participate in an advisory role but have to be endorsed by a member state CHANGE IN GOVERNMENT STATE SUCCESSION - Different versions of this are: Dissolution of a predecessor state creation of a new state; Secession part of the territory splits off as a new state; Creation of supranational organization; Decolonization; Merger, absorption, annexation of territory between existing states - Estrada Doctrine of Recognition: a state abstains from taking any position on the validity of a new government in another state, on the basis that taking such a position would constitute an unjustified interference in the domestic affairs of that state. - Tobar Doctrine: allows states to not recognize Government that came into power as a consequence of a coup d etat, or of a revolution against the recognized government, so long as the freely elected representative of the people thereof have not constitutionally reorganized the country - Legal effects of change of government within a state change nothing - Even if domestically illegal it does not affect the continuity of state, their international obligations, and human rights obligations apply CHANGE OF STATE SOVEREIGNTY OVER TERRITORY - Do international legal obligations continue when there is a change in state sovereignty? - Customary legal rights and obligation presumptively continue to bind state - Dominant rule of non-transmissibility does not necessarily mean that a new state may never become a party to a treaty ratified or acceded to by a predecessor state. Rather it means that this does not happen automatically, as an inherent consequence of succession. Gabcikovo-Nagymaros Project (Hungary/ Slovakia), [1997] Territorial Dispute (Libyan Arab Jamahiriya/ Chard), [1994] Slovakia left Czechoslovakia. Hungary claimed there was no rule of succession.. Slovakia argued that the general rule of continuity applied. Border dispute. What was at issues was how an old treaty between France (as a predecessor to its former colony, Chad) and Libya. Treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties. Therefore the treaty is not affected by the succession of states. A boundary established by treaty achieves a permanence, which the treaty itself cannot enjoy. Critique here about why are arbitrary borders drawn up by colonial power. Quebec Secession Reference 1. Can the government of Quebec secede from Canada unilaterally? No à unwritten principles 2. Is there a right to self-determination under international law that would give the government of Quebec the right to effect the secession of Quebec from Canada unilaterally? No RIGHTS AND DUTIES OF STATES - Fundamental Rights: Sovereignty, Equality, Freedom from intervention - Fundamental duties: Non aggression, Non-intervention, Perform internal law duties (including human rights obligations) o Human rights are universal and inalienable 7

8 PEOPLES AND SELF DETERMINATION In what circumstances will a peoples right of self-determination transcend its traditional internal dimension to become a right of external selfdetermination usually reserved for states? 1) Who qualifies as people? - Inhabitants of a colonized or other non-self governing territory constitute a people - Reasonable degree of homogeneity (Objective factors) - Conceive of itself as a distinct group (Subjective factors) 2) Conditions giving rise to the Right - Colonial and alien subjugation - Any conditions depriving a people of its right to internal self-determination triggers right to external self-determination - Not to be exercised in a manner that impairs territorial integrity there is tension between self-determination and territorial integrity Article 1 International Covenant on Economic Social and Cultural Rights International Covenant on Civil and Political Rights 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence 3) Permissible Consequences - Sovereign state - Free association in the state - Integration in the state Western Sahara, Advisory Opinion (1972) ICJ Rep 12 East Timor Case (1995) (Portugal v Australia) Construction of the Wall in the Occupied Palestinian territory Seccession Reference Bring all colonial doctrines to an end. The Salt Water Doctrine said if there is a body of slat water they could exercise their right to self-determination, but what if there is not salt water? This case did not include the occupying power, Timor Leste. It is off Australia and was occupied by Indonesia after Portugal left. A negotiated a treaty with T and P takes issues and says it in violation of right to SD. No legal ties between WS and M, the people of WS have a right to self-determination. No remedy could be provided because the occupying party was not a part of the case, now it is a sovereign nation. Do Palestinian people have the right to self-determination? This was accepted at the International level. The construction of the wall was in violation of their right. Important case in terms of increasing readiness of Canadian courts to consider international law. UNDRIP - Longest negotiated human rights instrument started in 1985 and was passed in Declarations are political instruments (Where as treaties and conventions are legal instruments) - Canada voted against it but has since changed its position as of Declaration is overly broad, unclear and capable of a wide variety of interpretations and putting into question matter settled by treaty - Concept of Free, Prior and informed consent are unduly restrictive - Establishment of a complete veto power over legislative and administrative action for a particular group is incompatible with Canada s parliamentary system - Then became confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with the Constitution s legal framework - It is an international document with endorsement from the international community, it cannot be limited to an aspirational document - Growing consensus that it forms part of customary international law Courts are applying and indigenous people are claiming it UNDRIP Article 3 Article 20 Article 23 Article 46 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions Indigenous peoples have the right to determine and develop priorities and strategies around issues like: health, housing and other economic and social issues. Territorial Integrity - The exercise of the rights are subject to limitations as are determined by law and in accordance with international human rights obligations. 8

9 STATES AND TERRITORY JURISDICTION OVER LAND This includes: Land base (incl. includes); Subsoil below; Airspace above; Lakes and rivers (inland waters); Internal waters (marine); Territorial Sea ACQUISITION OF TERRITORY - Past acts of acquisition would be considered illegitimate under modern law - Colonial Doctrines would be a breach of the UN Charter and Human Rights instruments - These doctrines still affect us because of the doctrine of intertemporal law, this dictates that when interpreting a legal document look at the law in effect at the time it was created - But international law at it s root is based in these colonial doctrines Colonial Doctrines - Doctrine of Discovery: primary basis in North America, implement in case law starting with Johnson v M Intosh - Conquest: use of military force, annexation, this is how Latin America was settled - Cession: consensual transfer of land requires a treaty, this happened in North America but a very unfair version of it - Effective Occupation: argued by European colonial nations, it was meant to understand who had control over what territory without having to engage in war Island of Palmas Case (Netherlands v US) (1928) 2 RIAA 829 Spanish cession of the Philippines to the US. They claim sovereignty over this island. Netherland argued their claim because of the Dutch East India Company, effect control and occupation. The Netherlands had the stronger claim the exercise and displayed authority. Denmark v Norway Greenland (1933) POLAR SOVEREIGNTY Only territorial dispute in the polar regions settled by an International court. The Danish claim was upheld because they were able to display effective occupation from the Vikings. Arctic - Russia has a sector theory, runs to the north pole from extension of territory, Canada claims land territory, plus coastal maritime zones - Unresolved issues: Northwest passage (internal water, territorial sea, or international strait), issues lie with the resources in the sea bed Antarctica - Largest land mass not yet incorporated, 7 nations have claimed territory based on sectoral claims - Some nations have made no claims but refuse to recognize the legitimacy of other claims (USA) - The Antarctic Treaty of 1959 was suspended and has not been renewed INLAND WATERS - Bodies of water enclosed by land, they are under national jurisdictions - Some are considered boundary waters and can be subject to international treaties, i.e. Canada-US Boundary Waters Treaty - Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), 2009 à River that separates CR from N, 1858 customary riparian laws give CR a right to the waterways, N states that it is an inland river and that the treat in 1858 acknowledges that the customary law is trumped by treaty. o It is irrelevant to determine what the borders of the river are, it allows for international waterway of the river between CR & N - Three types of Rivers: within a state, between two states, used as a border between two states JURISDICTION OF WATER UN OCEANS AND LAW OF THE SEA - A division of the UN that looks to conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction - Significant gaps in agreements to ensure oceans are protected à Russia, Canada and the US might oppose a new instrument being created - The Convention that guides this department is UNCLOS UNCLOS - Marine areas deals with rights of coastal states and freedom of the high seas - Small margin where coast states have special rights, vast majority is the high seas which are considered res communis, so no state can claim sovereignty - Establishing baselines: Article 5 - starting points are the coastal low-water mark; Article straight baselines across mouths of harbours, rivers, bays, including historic bays (HB); Article 121 Islands generate baselines NEW INTERNATIONAL REGIME ON MARINE BIODIVERSITY IN ABNJ - Negotiations will address conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction - Legally binding international instrument, UNGA resolution A/RES/ 69/ 292 setting forth the development of this 9

10 OVERVIEW OF MARINE ZONES - Territorial Sea: Article 3 UNCLOS, maximum 12 nm à part of the territory of the state, still limits to accommodate navigational interests of other states, right of innocent passage by foreign vessels without prior permission, this is unlike an internal water - International Straits: Waters connecting two parts of high seas used for international navigation, Northwest passage; Narrow ocean passages used for shipping and transit, customary international law recognizes right of innocent passage through international straits o Article 34: Legal status of water forming straits used for international navigation, sovereignty of states bordering the strait is subject to this article o Article 36: High seas routes through exclusive economic zones through straits used for international navigation. Rules do not apply if there exists through the strait an area of high seas o Article 38: The concept of right of transit passage - Contiguous Zones: Article 33 - Maximum extent is 24 nm from baselines, but it must be claimed, this is the scope of jurisdiction for customs and fiscal laws - Exclusive Economic Zone: Part V Costal State jurisdiction includes subsoil, sea bed and ll living resources in the water column, from the outer edge of territorial sea to max 200 nm from baselines o Rights: Regulation/ licensing of all economic activity, power of enforcement against foreign vessels Art.73 o Duties: Respect navigational rights, other high seas freedoms of foreign states - Continental Shelf: Often rich in mineral (oil and gas) and living resources; inner limit: outer edge of territorial seabed, outer limit Art. 76, 200 nm from baselines and subject to max limit of 250 nm from baseline o Rights: Regulation/ licensing of all resource exploration activity àpowers of enforcement, especially against foreign vessels o Duties Respect navigational rights other high seas freedoms of foreign states - High Seas: All waters beyond territorial seas, res communis area freedom of the high seas; Art. 87 main freedoms, navigation, over flight, lay cables/ pipelines, construct artificial islands, fishing, scientific research o Limits: Art 87 (2), due regards for other states; Art , fisheries conservation; Part XII - Environmental protection; Other limits imposed by treaty regimes - Deep Seabed: Part XI implements common heritage of human kind, equitable distribution of proceeds, only affects economic resources of the seabed (art.135) - Archipelagic Waters: Art.47 may draw straight baseline joining the outermost points of the islands, length of baseline not exceed 100 nm - Northwest passage: If it s an internal water as an archipelago (by way of historic title, used by Inuit peoples) different that if is considered a territorial sea à right of innocent passage applies, if it s considered an international strait there is a right of transit passage o Canada enacted Arctic Waters Pollution Prevention Act (1985) asserting jurisdiction 100 miles out 10

11 INTERACTION OF INTERNATIONAL AND CANADIAN LAW Much of International Law looks to domestic law and policy for its implementation and enforcement. Municipal law regulated relations between the individual sunder the sway of the state. International law regulated relations between states. - International Law regards the state as a unit, but in domestic law a state is comprised of various state organs - I-Law binds a state without necessarily binding its individual components RECEPTION OF INTERNATIONAL LAW IN CANADA DUALIST/ MONIST RECEPTION SYSTEMS - Monist systems regard international law as part of a single legal order with domestic law, there is no need for domestic implementation of legislation o It is applicable as soon as it is created - Dualist systems see international and domestic law as two distinct legal orders à I-Law needs to be transformed into domestic law o This is the system in Canada, treaty making responsibility is the executive branch of federal government but implementation happens through an act of Parliament o Treaty making power is subject to Parliamentary Sovereignty à powers are unlimited and it can legislate on any subject AG Canada v AG Ontario RE Weekly rest in Industrial Undertakings Act, Minimum Wage Act and Limitation of work hours Act, [1937] Parliaments ability to ratify 3 conventions adopted by the ILO. They tried to give it effect through federal parliament. Provinces argued that it contravened the division of powers. Can Canada enter into treaties at the federal level when it deals with an issue dealt with by the provinces? SCC held that the fed exec had treaty-making power but in terms of ratifying treaties they were divided. If the content of the treaty infringes on provincial jurisdiction the province must ratify it. If you are going to implement international treaties if the issue falls under s. 92 you need provincial consent. Capital Cities Communications Inc. v Canadian Radio- Television Commission, [1978] 2 SCR 141 Francis v Canada, [1956] SCR 618 APPLICATION OF INTERNATIONAL LAW IN THE COURTS US broadcasters challenged a CRTC decision that permitted substitution of commercials. Conflict between the Broadcasting Act and the American Radio Communication Convention. The later was not ratified. He was an Indian. Bought various items in the US and he tried to claim the import feeds back by means of the Jay Treaty. Where a legislative body fails to transform a treaty into Canadian law, that treaty is not a source of law that can be applied by Canadian courts. Nothing in the Broadcasting Act gives the commission the ability to consider the convention. No rights under a treaty of cession can be enforced in the courts except in so far as they have been incorporated in municipal law. - Only bound to the legislation that implements the treaty and not the treaty itself à although practically courts look to the treaty - Domestic legislation should be interpreted to comply with Canada s binding legal obligations even if unimplemented à this get close to the adoptionist approach to customary law Implemented Treaties National Corn Growers Assn. v Canada (Import Tribunal), [1990] 2 SCR 1324 Pushpanathan v Canada, [1988] 1 SCR 982 Inconsistency between section 42 of the Special Import Measures Act and a corresponding provision under the General Agreement on Tariffs and Trade. His claim was denied on the basis of the clause in Article 1 (f)(c) of the convention that provided that refugee status does not apply to a person who has been guilty of acts contrary to the purposes and principles of the UN. The appellant had been convicted of conspiracy to traffic in a narcotic. When the domestic legislation is unclear it is reasonable to examine any underlying international agreement. And it is reasonable to make reference to an international agreement at the outset of an inquiry. FCA erred in dismissing the objects and purposes of the treaty, and in according virtually no weight to the indication provided in the travaux preparatoires (minutes). The participation in conspiracy to traffic in a narcotic was not a violation of Article 1 f c. Unimplemented Treaties Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 Merck Frost Canada Ltd v Canada (Health) The Immigration Act did not expressly incorporate the language of Canada s international obligations with respect to the International convention on the Rights of the Child. Must a federal immigration authority treat the interest of the child as a consideration in assessing an applicant? Canada to decide whether information is a trade secret. Merck argues the definition should be consistent with NAFTA. Because the convention has not been implemented by Parliament it is not a part of our law and has no direct application. Nevertheless the values reflected in it may help to inform the contextual approach to statutory interpretation and judicial review. To the extent possible domestic legislation should be interpreted so that it is consistent with Canada s international obligation. However, Canada is not necessarily required to adopt the treaty definition of trade secrets into its access to information law in order to fulfill its obligation. 11

12 CUSTOMARY INTERNATIONAL LAW - The English tradition follows an adoptionist approach to the reception of customary law, it is incorporated into domestic law through the common law - The courts may adopt rules of customary international law as common law rules in order to base their decisions, provided there is no valid legislation that clearly conflicts with the customary rule (R v Hape, 2007 SCC) RELEVANCE TO THE CHARTER - There were values that were left out by the makers of the charter, should the courts recognize new values through s.7 - Slaight Communication Inc v Davidson, [1989] à The Charter should generally be presume to provide protection at least as great as that afforded by similar provisions in international human rights documents, which Canada has ratified; Whenever possible the court should ensure consistency between its interpretation of the Charter and Canada s international obligations - Facilities Subsection Bargaining Assn v BC, [2007] à Canada s adherence to international documents recognizing a right to collective bargaining supports recognition of the right in s.2. - Kazemi Estate à Prepared to accept that jus cogens norms can generally be equated with principles of fundamental justice and that they are particularly helpful to look to in the context of issues pertaining to international law. DELIMITING APPLICATIONS OF THE CHARTER - Charter is subject to the same jurisdictional limits as the country s other laws or rules - It cannot be enforce in another states territory without the other state s consent - R v Hape, [2007] 2 SCR 292 à Canadian businessman suspected of money laundering in Turks and Caicos. The RCMP were given authority to conduct part of their investigation there. No warrant for a perimeter search but everything was within the laws of the islands. The Charter did not apply. - Kazemi Estate v Republic of Iran, 2014 SCC 62 à Canadian journalist was arrested, beaten, tortured and died. Her son challenged the constitutionality of certain provisions of the State Immunity Act. Could you start a civil action in Canada against the state of Iran? And does s.7 fo the charter prohibit state immunity Iran? o SIA does not withdraw immunity in cases of torture, parliament has embraced principles of comity and state sovereignty over the interests of individual wishing to sue a foreign state o Prohibition of torture is a jus cogens but customary international law does not extend so far as to require a civil remedy for torture committed in a foreign state PLEADING AND RELYING ON INTERNATIONAL LAW INTERPRETING INTERNATIONAL TREATIES Vienna Convention on the Law of Treaties Article 31 General Rule of Interpretation: interpreted in good faith; context will be given to the preamble and annexes; taken into account any other agreement between the parties, any practice between the parties, any relevant rule of international law that applies Article 32 Supplementary means of interpretation: May look to preparatory work of the treaty and circumstances of its conclusion when the meaning, as interpreted through Art. 31, is ambiguous or leads to a result that is absurd PROVING INTERNATIONAL LAW Judicial Notice - Foreign law in Canada is treated as a question of fact à bring in experts to determine this - But Canada s obligations are treated as something to take judicial notice of à question of law, don t need to prove anything - With Customary law you may have to bring in an expert, you will have to lead some evidence to prove what states are actually doing Expert Evidence - Canadian courts should treat international law as a legal matter (when it is UK, US Sources) - But in terms of treatment of other foreign law, judicial notice should not be taken on this - Foreign municipal law must be proved as facts, but it is not so with the law of nations - R v Mohan: Relevance, Necessity, Not subject to any exclusionary rule, is given by a properly qualified expert - R v Appulonappa: I agree with the respondents that, to the extent that both experts strayed not providing opinions on the interpretation and application of international law and s. 117 of the IRPA, their testimony was not properly admissible as there were questions of law for the court. I accordingly limit my consideration of their evidence to factual matters 12