LAWS5005 Public International Law Exam problem question notes SOURCES OF INTERNATIONAL LAW Issue: is there a rule of international law? Article 38 ICJ Statute Treaty provision: article 38(1)(a): A treaty is an intl agreement b/w states in writing, governed by IL, whatever its particular design: art 2 VCLT - Binding only on those that are PARTIES; must have expressed consent to be bound (by signature: art 12; ratification: art 14, by accession: art 15) by an authorised person: art 7 ((a) head of state/govt, (b) head of diplomatic mission, (c) representative at intl conference) If consent to be bound expressed by unauthorised person, state can later verify it: art 8 - Treaty enters into force as soon as consent to be bound has been expressed by all negotiating states: art 24(2) - If treaty is unratified, a state will still be obliged to refrain from performing acts which would defeat the object/purpose of the treaty: art 18 Unless the state indicates an intention never to ratify the treaty - The legal effect of the treaty once it has entered into force is that the agreement is binding and there is an obligation of good faith (pacta sunt servada): art 26 - Internal law cannot excuse non-performance: art 27 - Treaty provisions do not apply retroactively: art 28 - If there is any inconsistency b/w treaties, earlier treaty applies only to the extent that is provisions are compatible w/ later treaty: art 30 International custom: art 38(1)(b) ICJ Statute 1
International custom indicated by constant, uniform usage; accepted as law (Asylum case). This means there must be evidence of state practice and opinio juris. - NB: CIL is binding on ALL STATES State practice: - Acts concerned must amount to settled practice: North Sea Continental Shelf cases - Can be 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) - Can be policy statements, press releases, executive decisions and practices (Brownlie) - No precise length of time required, just long enough to show that other requirements of custom (i.e. opinio juris) have been met: North Sea cases - Does not have to be followed by all states; practice of states w/ a particular interest in the subject matter the most decisive/relevant: North Sea cases - No need for absolute conformity of state practice, but there is a need for conduct generally consistent w/ the rule: Military and Paramilitary Activities (Nicaragua v USA) case Opinio juris: - Acts must be such/carried out in such a way as to evidence a belief that this practice is obligatory: North Sea cases Argument in Asylum case failed because of insufficient evidence of States abiding by this practice out of a subjective belief that they had to because of a feeling of legal obligation In North See cases, equidistance principle not a custom because of insufficient evidence of opinio juris - that states drew boundaries according 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 Onus is on state arguing for the existence of custom: Nuclear Weapons Advisory Opinion International custom can be local/regional: - Right of Passage case (Portugal v India) 1960: constant and uniform practice accepted as law by the parties as to free passage between Portuguese enclaves Persistent objector: - A state may exempt itself from the application of a new customary rule by persistent objection during the norm s formation unless it is a jus cogens norm 2
- Evidence of objection must be clear, must arise from the earliest possible time, and must be consistent: Anglo-Norwegian Fisheries case - There is a rebuttable presumption of acceptance of an norm Relationship b/w treaties and CIL can a rule in a treaty also be or become party of a custom? Treaties do not displace CIL: Nicaragua case Customary rule can co-exist w/ a treaty rule: Nicaragua case North Sea Continental Shelf cases: - A rule in a treaty can: Be declaratory of a pre-existing custom Crystallise custom as states agree on provisions during drafting processes/negotiation Come to be accepted and followed by states in their practice after treaty s adoption - For a treaty provision to be or become CIL: Must be of a fundamentally norm creating character Must be widespread and representative participation in the treaty Passage of short time not necessarily a bar, but in that time, state practice should have been extensive and virtually uniform Must be general recognition of legal obligation Principle of domestic law: art 38(1)(c) IL can adopt certain principles from ML 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] Judicial decisions + academic writings: art 38(1)(d) SUBSIDIARY MEANS for determination of rules of IL Judicial decisions can be decisions of ICJ, other intl courts and tribunals, domestic courts, arbitral tribunals 3
- NB: 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 Examples of ICJ decisions 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 Other sources of IL (that may support existence of a rule of IL) UNGA Resolutions - soft law ; not binding - 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 - Resolutions passed in the 1970s and 80s re the use of force relied on as est. state practice and opinio juris in Nicaragua case Unilateral acts - Acts of an individual can bind a state Legal Status of Eastern Greenland 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 case 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 ICJ understood this as binding France 4
- Test for whether a unilateral declaration creates legal obligations: whether the language employed in any give declaration reveals a clear intention: Nuclear Test case - No need for statements to be directed to any particular state: Nuclear Test case Jus cogens (peremptory norms) - Proscribe conduct fundamentally unacceptable to the intl community - These norms trump any sources of IL - Examples: Prohibition of use of force, slaver, genocide, torture, piracy Right to self-determination ILC work - No formal legal binding effect, but work is highly influential THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW Issue: is a rule of IL part of a state s domestic law? NB: a state cannot rely on its ML to avoid its international legal obligations: Alabama Arbitration Is the state monist or dualist? Does it follow the incorporation or transformation approach? Monism: IL applies automatically in domestic legal orders and prevails over ML - Incorporation approach: rules of IL automatically part of ML without any need for express adoption by national courts or the legislation UK position: UK follows an incorporation approach re CIL (Trendtex Trading Corp v Central Bank of Nigeria) so custom can form part of domestic law HOWEVER: a customary norm may only be transposed into the CL of the UK to the extent that it does not conflict w/ an Act of Parliament: Chung Chi Cheung 5
Dualism: IL has no direct impact on ML and must be implemented through executive order, legislation or judicial decision - Transformation approach: IL must be transformed into ML by being expressly adopted (by legislation, national courts etc.) UK position: Treaties UK follows transformation approach to treaties (Parlement Belge) so a treaty is not part of English law unless and until it has been incorporated into the law by legislation Crimes under CIL Crime under IL cannot automatically be incorporated into ML; is a special case. Also for a customary norm to be translated into CL, it must conform to the Constitution: R v Jones Up to Parliament to delineate crimes, thus aggression not a crime under UK ML: Jones And Jones could not rely on UK s act of aggression in Iraq as a defence Australian position: Treaties Australia a dualist state that follows the transformation approach w/ regards to treaties: Teoh Treaties cannot be part of Australian ML unless implemented by domestic legislation: Teoh HOWEVER: entry into treaty by Australia creates a legitimate expectation in administrative law that the executive will act in accordance w/ the terms of the treaty, even where those terms have not yet been incorporated. Thus, where a decision-maker proposes to make a decision inconsistent w/ this legitimate expectation, procedural fairness requires that the person affected by given notice and adequate opportunity to argue it: Teoh An unincorporated treaty may be relevant for interpreting legislation In cases of ambiguity, legislation must be interpreted as far as possible to accord with obligations of Australia under a treaty: Chu Kheng Lim NB: constitutional and legislative considerations Power to enter into treaties an exec power: s 61 Power to implement treaties into ML a legislative power 6
External affairs power broad enough to allow parliament to enact a treaty on any subject into Aus law. But the legislation must be appropriate and adapted to the terms of the treaty: Tasmanian Dam case CIL Australia also probably follows the transformation approach re CIL: Chow Hung Ching CIL not part of Australian law, BUT a universally recognised principle of IL (i.e. the law of nations re questions of immunity) would be applied by our courts: Chow Hung Ching CIL can influence the development of the CL: Mabo Legislation should be interpreted so far as possible as to conform with CIL: Polites But legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law National courts MAY have a duty to interpret their constitutional texts in a way that is generally harmonious w/ IL: Al-Kateb v Godwin per Kirby J But McHugh J argues that this would undermine s 128 Constitution Crimes under CIL CIL crimes (genocide, torture etc.) do not automatically form part of Aus law and must be implemented by legislation: Nulyarimma v Thompson A norm of CL does not become a law in Aus in the absence of legislation Genocide Convention had not been implemented by legislation, thus genocide not a crime in Aus: Nulyarimma Resolutions of IOs UNGA resolutions not binding UN Charter/UNSC resolutions can only be carried into effect in Aus by legislation: Bradley v Cth If unincorporated, cannot be relied upon as a justification for executive acts that would otherwise be unjust, nor as grounds for resisting an injunction to restrain an excess of exec power: Bradley Thus cannot confer power on exec which it otherwise would not have 7
INTERNATIONAL LEGAL PERSONALITY Issue: is an entity an international legal person? RULE: an international legal person is a body or entity capable of possessing and exercising rights and duties under IL: Reparations case International legal personhood = - Capacity to enter into legal relations - Capacity to bring/be subject to claims for breaches of IL before intl tribunals - Capacity/entitlement to claim privileges/immunities from national jurisdictions - Capacity to contribute to formation of CIL by practice + opinio juris States Have all of the above capacities Must satisfy Montevideo criteria for statehood And be recognised as a state by intl community International organisations IO = an organisation established by treaty or over instrument, governed by IL and possessing its own legal personality: art 2(a) ILC Draft Articles on the Responsibilities of IOs An IO will have ILP if that is what is members intended, and if legal personality is necessary for it to perform its functions: Reparations case - Textual elements that implied that the UN was intended to possess intl legal personality (Reparation for Injuries): The defined position of Members in relation to the UN and the requirement that they assist it (Art 2(5) UN Charter) The obligation to comply w/ and enforce decisions of the UNSC (Art 25) The capacity of the UNGA to make recommendations to Members (Art 10) The grant of legal capacity, privileges and immunities to the UN in the territory of its Members (Art 104 and 105) The conclusion of treaties b/w the UN and its Members (Art 43) IOs have the capacity to claim rights and immunities under IL: Reparations case 8
Corporations Traditionally do not have ILP; thus contracts b/w states and foreign corporations not governed by VCLT However, states may, by treaty, create legal persons whose status is regulated by the M of one of the parties, and may, by their own agreement, accord certain immunities/powers to the institution - ICSID allows corporations to bring claims against states (rights conferred by treaty) Individuals Generally not intl legal persons But in particular contexts individuals have rights inuitu personae which they can vindicate by intl action; notably in the field of human rights (HR) and foreign investment law - But in practical terms, HR obligations (and other obligations assumed for the benefit of individuals and corporations) arise against the state, which so far has a virtual monopoly STATEHOOD Issue: is an entity a state? Must satisfy Montevideo Convention criteria Permanent population No minimum number of inhabitants Population can fluctuate; but must be permanent Does recognise nomadic tribes if they don t move in an out of particular territory (Western Sahara (advisory opinion)) Defined territory 9