Personal International Law

PUBLIC INTERNATIONAL LAW PROF.
BROWN
(UWO)
FALL 1999
KEITH J. GOMES
Page 1 of 78
The Nature of International Law

What is it? Is it law? Is it a legal system? Does it create binding obligations? Why
do countries comply? What is its significance?
Definition
It is a system of principles and rules designed to govern relations between sovereign
states (and other international persons).
Public v. Private International Law
Private international law does not necessarily involve governments and states. E.g.
situations involving elements within Ontario. Also contracts between two countries.
Public international law involves relations between/among governments and states.
There is often overlap between public and private e.g. international trade, public
agreements such as NAFTA which impact private international law.
Is this body of rule really law? Components of a Legal System
Enforcement
Promulgated by legislature (which has been elected, is in control, has authority
and popular recognition) this is the way in which rules are made
Body of rules that purport to govern behaviour (Primary rules)
Courts also general rules, apply and interpret legislation
Secondary rules rules about rules. How to identify/create primary rules, rules of
enforcement of primary rules
Legitimacy
Law is determined by a claim to legitimacy. If it is imposed arbitrarily by a dictator, it
is not law. But if there were a moral theory behind it, we are more apt to call it law.
A rule is legitimate if it is naturally appropriate (Natural Law self-evident by
exercise of reason). Alternatively, a rule is only legitimate if it is generally accepted
by popular consent (positivism). Or rules are legitimate because they are necessary
for common survival.
History
International law has always been Eurocentric and influenced by Western thought
and history. Its originates after the breakup of the Holy Roman Empire in the 1500s.
The Treaty of Westphalia in 1648 created a system of separate states. In order to
survive individually, states had to devise ways to live with other entities. Rules
should be naturally appropriate. The 18th century was one of laissez-faire policies
we are only bound by the rules which we ourselves have agreed to and the idea
of national sovereignty. In the 19 th century, with improvements in technology, brutal
wars, etc., change was needed hence the Geneva Convention and increased
notions of self-determination.
The 20 th century, with increasing conflicts and
incidences of genocide, there was a revisiting of natural law concepts and an
expansion of human rights law. With technology came the fields of aerospace and
telecommunications law.
The United Nations
The UN can create law by a process in which members agree that a declaration from
the legislature becomes law. There is no central government in the UN it is merely
a forum for discussion/agreement of resolutions. Adoption of resolutions is subject to
the veto of the 5 permanent members.
The Security Council - previously obtained consent from signing of Charter. The
signing of the Charter binds signors.
PUBLIC INTERNATIONAL LAW PROF. BROWN

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KEITH J. GOMES
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The International Court of Justice

Countries need not accept the jurisdiction of the Court. Only 40 countries currently
accept the courts jurisdiction notwithstanding certain reservations. (e.g. Canada
has reservations concerning fisheries). The International Court of Justice is an
arbitration board it has no universal application. The War Crimes Tribunal is for
individuals, not states.
Actions in response to a breach of International Law
If one party fails in its obligations to you, you can ignore your obligations to them to
impose adverse consequences e.g. freeze assets, sever diplomatic relations, impose
sanctions. This is the enforcement mechanism but there is not central authority. So
can we still call it law?
Arguments in favour of calling it law
1. The objectives are the same as any legal system bringing about order and
justice between states and individuals. It purports to create rights and obligations
and to protect the common interest. However there is not institutional backup for
primary rules;
2. It is also law because states generally act as if there is law conferring obligations
and rights;
3. Domestic application (e.g. Qubec reference domestic courts look to
international law);
4. States by and large comply with the law because it is convenient to their
interdependence.

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INTERNATIONAL PERSONS
E.g. In a domestic system such as the province of Ontario, subjects have rights
and obligations under the law e.g. voting rights (indirectly contribute to the creation
of law), ability to enter in binding enforceable contracts, ability to own (etc.) property.
A subject may be an individual, a corporation, trust, etc.
There is a direct analogy between this the definition of a person under international
law. A person is accepted as being able to act on the international scene. I.e. to
make treaties, be subject to regulations, enjoy certain immunities. There is a
distinction between original personality (enjoyed in international law by states) and
derived personality (derived from actions of original personalities) e.g. the UN and
other international organisations. The key player in international law is the state.
Definition of a State
The Montevideo Convention of 1933 contains this definition of a state for the purpose
of the treaty: A state as a person has a:
permanent population
defined territory
government
capacity to enter into relations with other states (international relations).
Items in a treaty might generate law by becoming universally accepted custom.
Examples of Exceptions to the Montevideo Definition
Dispute of Western Sahara between Mauritania and Morocco p.55, Citizens are
perpetual nomads, so there is no permanent population. The size of the
population is unimportant
Nauru borders are constantly shrinking because island is made of fertiliser
which it is constantly exporting! Israel the borders are always being disputed
but the states still exist. Therefore a state can come into being and exist with
territorial disputes as well as changing territorial size.
Government is the central criterion for the candidature for statehood it is related
to independence and indicates that a state is in separate self-control. Lebanon in
the 80s there was no real government because of civil war but the state
continued to exist. Somalia in the early 90s was also ruled by warlords it was
still a state. Governmental strife may not undermine requirements for statehood
(e.g. republics of former USSR, former Yugoslavia. Civil strife however can
obscure the transformation to statehood. Eg. Finland it did not become
independent from the USSR till a stable political organisation had been formed
and until the public authorities became strong enough to assert themselves.
Key element for statehood
The key element is the capacity of an entity to enter into legal relations. Capacity to
enter into relations with other states is both a prerequisite and a consequence of

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statehood. This is also dependent on an effective government. Is the entity

independent, legally created and recognised by other states as being able to enter
into international relations. Ontario is not a state because it has no power to enter
into international relations.
a) Independence/Sovereignty
A state could be legally independent but not factually independent (p.15)
e.g. the Cook Islands chose to live in free association with New Zealand (they
have N.Z. passports, money, army, foreign office, etc.) They are still an
independent state.
European Union members have surrendered many of their powers especially
regarding economy. Members are still states.
The Congo (p.13, note 4) after independence from Belgium in the 50s, there
was no government, but the UN recognised the Congo as a state.
If an entity is factually independent but not legally independent, it will be not
recognised by and large. Eg. Rhodesia the white government unilaterally
declared independence from Britain. It was not recognised as a state despite
the fact that the government operated for a while. Abkhazia is operating
independently and is asking for international recognition. It is operating de
facto as a state. Taiwan is factually independent but the legality is unknown.
The US de facto guarantees their independence, but it doesnt really have
independence it is not a member of the UN, etc.
Bangladesh (East Pakistan) broke away and was quickly recognised even
though it was created using force. The readiness of other states to admit a
state into the club is therefore an important consideration.
Austro-German Customs Union Case the meaning of the word
independent
Judge Anzilotti: Independence is the normal condition of states according to international law; also
describes a sovereignty, or external sovereignty whereby a state has over it no other authority that that
of international law. Independence has nothing to do with a states subordination to international law
or de facto dependence which characterise the relation of one country to another. No matter how
burdensome the restrictions imposed by international law or contracts, a state continues to be
independent as long as it is not under the legal authority of another.
Island of Palmas Case, Netherlands v. US title to territory
Facts: US got the Philippines from Spain. When US official visited island of Las
Palmas, he found the Dutch flag flying there.
Ratio: The functions of a State can be performed by that any state in a given
zone this is especially pertinent to isolated parts of the globe or lands without a
master which cannot or do not yet form the territory of a State. Territorial
sovereignty is the exclusive right to display the activities of the State. There is a
corollary obligation to protect within the territory the rights of other states.
Without manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil its duty.

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RECOGNITION
There is no official body that recognises states. It is done in stages by the different
countries. e.g. when the Baltic states broke away from the USSR in the 80s, Latvia
was recognised immediately by Canada but not by the US because of political
relations between the US and the USSR. Canada had domestic pressure from the
expatriate community. Israel is still not recognised by a number of Arab states.
There is a piece-meal/patchwork of recognition which illustrates the matrix theory of
International Law.
How does recognition happen?
It can be a formal process with the creation of diplomatic relations, or a statement in
domestic proceedings, press releases, etc. It can be express or implied.
Why is recognition given?
It is an acknowledgement that other criteria for statehood have been satisfied, but
there are usually political reasons. Perhaps because of foreign policy considerations,
pressure from expatriate population or military or strategic advantage. In 1982,
Parizeau said that Qubec had a democracy, defined borders, minority rights, and a
respect for human rights but it was not recogised internationally, and therefore is
not a state.
Without recognition, rights and obligations under international law still apply
(p.257, excerpt from OAS Charter Art.12). Israel is called upon by the very states
that dont recognise it to live up to the obligations of international law.
Tinoko Case (p.257) Costa Rica and UK the UK didnt recognise the dictator
rgime but still expected treatment in accordance with international law they
claimed damages which had occurred before the dictator rgime had come to
power to be paid by the dictator rgime.
Declaratory Theory giving of recognition acknowledges pre-existing state.
Constitutive Theory recognition is a component of the existence of statehood. In
reality, many states have functioned as states without recognition. Eg. The USSR
was functioning from 1918 but it was only accepted as a state in 1933. China was
finally accepted as a state in the west in the 1970s.
Both theories help capture the full picture vis--vis recognition. Consider the
practical matter of not recognising a state yet expecting compliance with
international law.
Internal effects of recognition
According to Ontario law, foreign states have standing. A state can claim immunity
from being sued from someone else. Chateau Gai (p.261) you ask the government
if they recognise a particular entity as a state.
What if the State has an abhorrent government? De facto v. de jure
recognition
De facto - you recognise the people in control but not their government (de jure).
(p.267, note 2&3 e.g. When Italy invaded Abbysinia and took power from Haile
Selassi, the UK recognised the Italian rgime de facto but recognised Selassi (who
had formed a government in exile in Britain) de jure. The Abbysianian government
had property in England and it was the de jure government who would control it.

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The Estrada Doctrine says that there is no recognition of governments you just
deal with it as it happens. (Estrada Mexican foreign minister). There might be
problems with this in terms of domestic issues.
Gur Corporation v. Trust Bank of Africa p.270 footnote 42
Courts write to foreign affairs department to see if they can interpret it.
Republic of Somalia v. Woodhouse et al. 1973 1 All ER 321 (QB)
The government of Somalia purchased and paid for a cargo of rice. The
president was overthrown in a coup and anarchy reigned. The shipment of rice
turned back. The international contract for the sale of rice had a clause which
said should a dispute arise, it should be decided in England by English law. The
Court said that the rice should be sold and the proceeds put on hold awaiting
recognition of the Somali government. One party claimed to represent the
government. Were they the government? The Court sent a letter to the foreign
office for advice. The foreign office said that they were not in the habit of
recognising governments. They said, however, that there was no effective
government. They didnt follow Gur. They looked at the Estrada Report. The
Court listed 4 factors:
1) is this claimant the constitutionally established government
2) degree, nature and stability of the government in control
3) the nature of the governments dealings with government
4) International government interactions with this government
All except (3) are determined by expert witnesses
So the Court made its own assessment, without relying solely on the foreign
office recommendations.
How do states cease to exist?
The neatest way is if constituent parts agree to break up and form separate
entities. This usually occurs if there is some initial marriage e.g. UAR in 50s
(Syria and Egypt). The USSR was a state till its constituents decided to establish
themselves as separate states. Also the former Yugoslavia.
If a states existence is extinguished involuntarily by outside force, under
international law, that state continues to exist. Eg. When Kuwait was invaded,
Iraq was the de facto government but the state of Kuwait continued to exist.
If a state voluntarily gives up its identity to join with another state, it will no
longer be recognised as an independent state e.g. Newfoundland joining Canada.
If a state loses one of the criteria set up in the Montevideo Convention, it does not
automatically lose statehood, especially when the government is in a state of
anarchy.
States do not cease to exist by giving up some sovereignty voluntarily eg. The
formation of the European Union, Monaco, Cook Islands
Mandated and Trust Territories
This was the former system adopted by the League of Nations to deal with former
enemy territories which were unable to govern themselves. They were mandated to
allied states under the guidance of the League. With the birth of the UN, there were
trust territories (old mandated territories and surrendered territories).
The
supervision of these territories was carried out by the Trusteeship Council of the UN.
(only remaining e.g. Pacific Islands).

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Colonial States see text

Types of States
Unitary States The state is not subdivided. The government governs domestically
as well as internationally.
Federal States Constitutions in federal states usually deny the federal
government the authority to govern all aspects of internal life. This slightly
complicates international law since in international law, each state should be
represented by only one authority. With federal states, for internal matters,
there is usually not just one authority. When an international treaty is signed, all
internal members are bound, but constitutionally, the government may be
impeded from entering into a treaty without consulting the domestic
governments. E.g. Labour Conventions Case (Privy Council). The federal
government ratified certain conventions with respect to labour and some of
these actions were covered by provincial jurisdiction. The Privy Council said that
the federal government could not undermine the provincial governments through
the international law route.
The chief attributes of Statehood
Sovereign Equality. This is found in the UN Charter to which nearly every state on
the planet is a signatory (not Switzerland for example).
P.2 of Supplement, Art II par. 1 sovereign equality of all members
P.25 Declaration on Principles of International Law (1970) states agreed on the
rules that bound them. It is not a binding document but international custom
makes it binding
P.26 Sovereign king, queen, person in charge, answerable to no-one, ability to
be sole ruler. Each state is a sovereign unto itself basically, independence is the
key factor.
Legal Equality each state has an equal right in the creation of international law,
and the same obligations and claims under international law. Equality helps
further explain the notion of sovereignty. Each state, regardless of size, strength,
etc. is equal under international law to be free from outside interference.
Art. 7 of the Charter even the UN will not interfere in the domestic matters
p.30 supplement A to F the attributes of sovereign equality.
International law therefore only exists on the basis of the consent of sovereigns.
Intervention v. interference
Today, however, military strength often dictates actions by states e.g. US bombing
Kosovo. Sometimes, you need to look at the big picture, like humanitarian rights, or
a refusal by the attacked state to respect the sovereignty of another e.g. the Gulf
War. What is the difference between interference and intervention? Are these
contrary to sovereign equality? Examples include imposing economic pressure on
another country.
When New Zealand declared its harbour a nuclear free zone, the US declared
economic sanctions and changes to New Zealands membership in international
organisations because the US has a policy of not disclosing which of their ships is
nuclear-free.
P.29 of the Supplement equal right and self-determination of people. Every
state has the duty to promote self-determination of peoples. So, when Chirac
supports the separation of Qubec, is he interfering with the internal matters of
Canada or fulfilling a duty to help the self-determination of people?

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Is Armed Intervention contrary to the principle of sovereign equality?

When is it justified
In some circumstances, armed intervention can also be justified. The Security
Council is given the authority by members to make independent decisions when
force is necessary and where it should be applied. If force is sanctioned by the
Security Council, it is legal. E.g. East Timor force justified because of the
Security Council resolution. See Ch.7. Also during the Gulf War, the Security
Council authorised the use of force to liberate Kuwait.
It is not contrary to the principle of sovereign equality to exert force on a
neighbour if it is in self-defence. Article 51 of the Charter does not allow for preemptive strikes, but Art. 51 is not the last word on self-defence. Look at custom.
In the War of 1812 (Britain and the US), a pre-emptive strike was okay in some
circumstances (when necessary for self-defence). Also in the late 70s, Israel
bombed Iraqi factories suspected of producing nuclear weapons. In 1999, the US
bombed factories in Kenya and Afghanistan after their embassies in Africa were
bombed.
Self-defense was the reason given.
So pre-emptive strikes are
sometimes accepted.
Protection of nationals is a legitimate excuse. E.g. when Reagan attached the
country of Grenada during the civil war there in order to protect American
students.
Humanitarian justification - when there is a threat to international peace and
security e.g. East Timor. If there is not active response from the Security Council,
can a state or group of states intervene for humanitarian reasons? E.g. when
Vietnam invaded Cambodia. Or in Kosovo the Security Council did not authorise
the use of force because of the veto of the Chinese and the Russians. So NATO
launched a military campaign. In recent years, there is a general acceptance of
this kind of intervention when atrocities like genocide are occurring.
Invitation e.g. the Indonesians invited the UN to help in East Timor
Our Backyard e.g. Monroe and Johnson Doctrines (keep out of American affairs),
similarly the Brezhnev Doctrine under the Warsaw Pact
To stop the flow of refugees the country e.g. the US sent troops to Hati. (This
was ultimately authorised by the UN).
Economic Necessity (a Canadian justification). E.g. when a Spanish fishing
trawler was fishing stocks which would otherwise have swum into Canadian
waters, the coast guards were sent out to arrest the fishermen. The justification
was economic necessity they were preventing irreparable harm to the fish stock
which formed an important part of the economy of certain regions of Canada.
The above list is not an exhaustive, water-tight list but can illustrate how custom is
made e.g. to prevent genocide, etc. The Security Council action, however, is watertight because of the Charter which member countries have signed.
State Succession
Customary international law applies to all states, existing or newly emerging. The
following example will illustrate state succession with reference to Qubec. Some of
the issues raised are:
Who owns what property?
Who owes what proportion of the national debt?
What citizenship will the people of Qubec have?
What happens to treaty rights and obligations which were made when Qubec
was part of Canada?

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Three hypothetical problems

1783 Treaty of Paris: This was between the US and the UK after the war of
independence which delineated boundaries between American territory and British
territory (predecessor government of Canada) in North America. The new entity of
Qubec did not enter into this treaty. Canada was successor to Great Britain in this
treaty and therefore is obligated and entitled to the rights and obligations pursued for
it by Britain.
The rule relies on customary law which has since become a treaty in the Vienna
Convention on Succession of States. Although, despite the existence of the treaty,
custom is still the reason this rule is binding on all states and not on just the
signatories of the Vienna Convention. Article 11 states that treaties fixing boundaries
are not effected by succession of states.
UN Membership: Canada is a member of the UN by virtue of it having ratified the
Charter. If Qubec becomes independent, is it automatically a member of the UN?
No because of the Charter. Article 4 of the Charter (see Supplement) states that
Qubec would have to be elected to membership by members of the security council.
The rest of Canada would however not have to reapply for membership.
Multilateral treaties: Canada is party to many multilateral treaties e.g. the Land
Mines Convention. Would Qubec be bound by the obligations of these treaties?
Article 17 of the Vienna Convention says that Qubec would not be automatically part
of the treaties but could launch an application of notification to say that they will
continue to be party to the treaty. There is the idea of a clean slate whereby a new
state can choose to which treaties to wishes to be party. The clean state idea was
mainly discussed when colonial powers left their colonies since, usually, with respect
to the colonies in Africa and Asia, it was an elite colonial powere governing a large
indigenous population.
With respect to bilateral treaties or other treaties like NAFTA (3 countries) would
Qubec be able to automatically claim the benefits of these treaties? No this is
consistent with the clean state idea. Also the US would not be bound to have Qubec
saddled to NAFTA. The US could chose to exclude Qubec. Agreement between the
parties would be necessary.
Problems with the Clean slate theory. Perhaps it is problematic to have because of
complications in the Vienna Convention Article 34 (p.65). Perhaps this was included
because it did not reflect the actual practice. This is only binding to parties to the
treaty. Most states on succession would not bother with Article 34 problems.
Summary : So, other than treaties regarding land use/boundaries, the new state
would be entitles by custom and treaties to start with a clean state.
Other Legal Persons (Subjects of International Law besides States)
There has been considerable growth in this field with the birth of the UN.
Do people have an international personality?
This was important in the SCC re Qubec reference. The Qubcois were peoples.
First nations are peoples. But what are the legal consequences? What is the legal
basis for the proposition that peoples have a basis for international personality?
1. Article 1, p.2 Charter self-determination of peoples, Art 55, 73 and 75

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2. Declaration of the Principle of International Law p.30 (Supplement) 2 nd para.

3. Declaration on granting of independence of colonies p.53 (text) para. 1,2,5
4. Definition of Agression p.831, Art 7 (Exception to use of force) to help people
to achieve self-determination, you can use force.
Therefore, people are
recognised. See Canadian Commentary that follows.
5. International ) p.87 (Supplement) Art. 1
What are people? P.55 (Supplement), Art.1
identifiable group
reasonable homogenous
common language/ethnic background/ religion
Does Qubec have a right to secede unilaterally under public international
law?
The SCC asked the question Are they a people?. The francophone majority are a
people but not under international law. You need more than just a physical, linguistic
or ethnic characteristic. People have the right to secede only if they are part of a
colonial power, subject to domination or have been subject to oppression and their
rights have been denied in the the participation of the government of Canada. They
have the right to self-determination, but not independence. Self-determination must
be attained within the state of Canada.
Read p.56 Art. 7, Art 6 par. 7
p.30 (Supplement) 3rd Para.
Importance of territory to self-determination
Status need to have a clearly defined territory. What if people are dispersed ? e.g.
native peoples? Self-determination had one primary concern to bring an end to
colonialism, to create equal opportunity, equal rights. Therefore, with First Nations,
self-determination means giving them more rights within an existing state not
independence.
Recourse of the Individual
There are two things to consider rights and obligations. Previously, rights were
conferred by your state. If you have a problem with a country other than your state,
you had no rights under international law just rights in your state. If your state of
citizenship chose to espouse your case as its own grievance, you would be claiming
diplomatic immunity. But in this case, the grievance is no longer the individuals,
but the states. Recently, however, they have been changes since World War II after
the atrocities and human rights breaches. Mechanisms were created to eliminate
mistreatment of individuals. Individuals were recognised as having substantial rights
against their own state or against a foreign state. This became recognised by custom
or treaty. A Canadian, John Humphrey (?) drafted the International Declaration of
Human Rights and it was adopted by the General Assembly in 1948. This is not a
binding document, just a declaration and there is much controversy about the status
of this declaration. Other problems included the cultural differences in trying to
agree on what fundamental human rights were. The West focuses on individual
human rights whereas the East usually focuses on collective right (to economic
progress, to live in a rgime of law and order, etc.) (E.g. of an ideological conflict was
the American kid who sprayed graffiti in Singapore: The US felt that human rights =
right to be free from cruel and unusual punishment; the Singaporeans saw is as the
right of the collectivity to live in a clean city.)
Two treaties do exist The International Covenant on Civil and Political Rights (p.87)
and The International Convention on Economic, Social and Cultural Rights (p.79). The

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latter treaty guarantees the right to free education at the primary level, with eventual
free education at the secondary and tertiary level Canada is a part of this!
International Covenant of Civil and Political Rights
Under international law, each individual has certain rights (above and beyond mere
rights of citizenship) and this means that there is a procedural framework for people
who may make claims when their rights have been denied. You need an international
institution/person/ombudsman to whom complaints can be made (a sounding board,
a mediator). This was set up in the treaty and could be looked on as one step
forward.
How does human rights (evolved to a treaty) enfranchise the individual?
The International Covenant of Civil and Political Rights lays out the substantive rights
for humans to enjoy. What happens if a state does not afford these rights? There are
procedures if these rights have been breached an international rgime for the
benefit of individuals. (See Supplement p.86-7)
Enforcement
1. It requires each state upon ratification to provide a report on how it ensures that
the rights enshrined in the Covenant have been upheld. When a current report is
required, the Covenant sets up a Human Rights Committee comprised of 18
individuals elected by parties to the Treaty. States may be required to orally
defend reports and the response by the committee is publicised. If members do
not report, cant really do anything; also reports are easy to doctor. But at least
the rgime tries to shine a light.
2. It is optional to be part of the treaty. But it is also an option to be part of the state
complaint mechanism. If you accept, your human rights record can be challenged
in the public forum of the Human Rights Committee (by other states). Only 25
states (including Canada) have agreed to the process. After this, there is a
conciliation process and reports are published.
3. There is an optional protocol by which the individual can complain to the Human
Rights Committee that their rights have been infringed. But states have to ratify
to this protocol 50 states (including Canada) have signed. There is a procedure
for individuals:
Criteria: Have you exhausted all available local remedies in your home states?
Canada has had complaints from aboriginal groups and regarding the fact that it
extradites people to the US (which has the death penalty). The Human Rights
Committee outlaws the death penalty.
Anglophone Qubcois have also
contested Bill 101 unsuccessfully. The status of religion in schools was another
complaint.
Chapter 10 refers to other human rights organisations and rgimes. Europe has
regional human rights rgimes where individual countries can go locally the
European Court of Human Rights. The decisions of this court are binding.
War Crimes and the International Criminal Court
The Security Council of the UN set up by resolution a war crimes tribunal for
Yugoslavia and Rwanda each containing an appeal structure, judges, authority to set
up prisons, etc. See Ch.7 of the Text. The Security Council is charged with dealing
with threats to or breaches of international law and security (by sanctions,
authorisation of military action, etc). They can take any decision to address breaches
to international peace and security (Article 25) and this decision is binding. If
member states find a war criminal, they are to arrest them and send them to the
Hague for trial. These tribunals are restricted by their constitutions to certain
geographical areas and certain times.

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A year and a half ago, the UN established the International Criminal Court
to prosecute war criminals wherever they are (the Rome Statute). It still has not got
the requisite number of ratifications yet. The US has not sighed because its military
might be called to the court situated in the Hague.
It is set up permanently at the Hague
It is comprised of 18 judges at 3 levels the pre-trial, trial and appeal
levels
Judges will be elected by the parties to the treaty who will have the ability
to vote
The Court has mainly been designed to deal with the most egregious
crimes to humanity
Cases may be referred to it by a state party to the statute or by the
Security Council. The prosecutor has an independent role provided he can
get the equivalent of an arrest warrant
Provision if you find an accused person, you have to arrest them and
hand them over to the court
There has to be no domestic court willing to try the accused.
The Courts jurisdiction is limited by the fact that if a person were tried in a
state, this court has no jurisdiction e.g. Pinochet has been dealt with under the legal
system of different states currently, Spain want to try him because he committed
crimes against Spanish citizens.
International Organisations:
Public International Organisations (Intergovernmental organisations) set up by
agreement between states e.g. UN, European Union
Do they have an existence different from that of the member states that created
them?
Reparations Case p.41

Did Israel own international obligations to the UN because a Swedish UN ambassador
was killed by an Israeli, or did they owe obligations to Sweden? The question that was
being asked here is whether the UN had an international personality? Could the UN
bring forth a claim? (NB: Israel was not a member of the UN). The International Court
of Justice said that the UN did have a claim. (See text). Members are intended to have
a separate existence than that of their host states and therefore have a separate
international personality.
Non-Governmental Organisations e.g. International Red Cross, the Roman

Catholic Church, Amnesty International, International Olympic Committee,
International Chamber of Commerce. The status of NGO has been formally
recognised by article 71 of the UN Charter. NGOs have consultative status to
send representatives to meetings as observers, to submit written materials for
circulation to the UN and to use services provided by the Secretariat. They also
make and apply rules and standards for their fields of concern. Albeit very
influential, they are not subjects of international law unless afforded these rights
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Corporations:
1. government corporations (e.g. airlines). They are private in legal form and
objective, but they engage in international transactions at the behest of
government policy. They enjoy diplomatic assistance and they invoke certain
rights in terms of developing public commercial law.
2. Intergovernmental corporations they bring together a number of
governments and private enterprises (e.g. construction of Chunnel, INTELSAT,
natural resource development). Controlled nationally.
3. Non-governmental corporations
In general, corporations do not have personality under international law. Multinational corporations assert an enormous influence on international affairs so
people have argued for an international rgime to control the conduct of multinational corporations. Codes of conduct have been written. A corporation is
subject to the laws of the state of incorporation, hence, private international law.
So the states themselves should have laws to control corporations but there is not
firm international law.
The UN as an Organisation:
[see Arts. 1, 2 of U.N Charter on pp. 1-2 of supp.]
After World War II, the drafters of the Charter tried to capture two things
1. To provide machinery for dealing with threats/breaches to peace i.e. to avoid the
recurrence of another world war; and
2. To provide a framework for promoting conditions that would likely prevent a
conflict (Human rights, economic developments, an end to colonialism, heath
care, etc.)
Structure of the UN [Chart on p.37]
Principle Organs:
The General Assembly [Chapter IV of Charter, Articles 9-22]
This is the plenary body of the UN every member automatically belongs to the
General Assembly unless expelled (e.g. Yugoslavia and South Africa were
temporarily expelled).
It has the widest range of functions and the broadest possible authority. It can
consider virtually any matter at all that its members decide to raise [see Arts.
10-17, 12 (exception) etc.] Exception: it cannot deal with matters of peace
and security it is is already being dealt with by the Security Council. But if the
Security Council is not dealing with a matter (e.g. because of a veto), the General
Assembly can take action (e.g. in Korea, China and the USSR vetoed Security
Council measures in the war creating a stalemate. So the US orchestrated the
Uniting for Peace resolution. When the Security Council stalemates, the General
Assembly can authorise the use of force.
Meets regularly every September. Every member is entitled to a seat and each
representative stands up and makes a speech.
The General Assembly can create as many subsidiary bodies as it likes to carry
out special functions. There are around 8 committees that negotiate treaties, etc.
Every member can have members on committees. (e.g. the 6 th committee is a
legal committee). The "International Law Commission" is significant in the
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Countries who cannot have embassies because they cannot afford to run one can
have a mission and the UN. The General Assembly is also useful for countries
that have problems getting together this is useful because all countries are
members and many things can occur behind closed doors. The UN provides a
forum for parties to get together who might otherwise not. There is a lot of
progress with face to face meetings. In the General Assembly, countries usually
send their heads of states and it is amazing what can be solved by meeting face
to face.
Membership is divided into 5 geographic groups by convention. Where there are
committees, there is relatively even geographic representation since members
are appointed from each of the 5 groups.
Decisions of the General Assembly are not binding, they are recommendations.
They may reflect custom.
(b) The Security Council [Chapter V, Articles 23-51]
Gets the most attention in response to its failures and most recommendations for
reform. Most complaints arise in regard to membership composition.
It is made up of 15 member states - 5 of whom are permanent (victorious powers
at the end of WWII: US, UK, France, Russia (successor of the USSR) and China
(Beijing government although it used to be Taiwan) , 10 each serve 2 year terms
(with 5 elected every year) [see Chapter V at p.23 supp.] Canada is a
member this year (1999). The 10 members are divided by geographical groups:
5 members for Africa and Asia
2 from Latin America
1 from Eastern Europe
2 from Western Europe and Other
Each state representative is president of the Security Council for 1 month.
Functions & Powers
Its primary responsibility is to maintain international peace and security. Specific
powers are spelled out in the Charter (Ch.7) and range from urging states to see
the light to providing mediation to imposing economic sanctions and even
military intervention. The more common action is not to send in troops, but to
send in peace-keeping forces once a truce has been arrived at through
negotiation.
Article 25 All members, by signing the Charter, signify that they will accept and
carry out resolutions of the Security Council.
They are virtually limitless in power they can do anything to maintain peace
e.g. there is no specific authority for the creation of the War Crimes Tribunal, but
they created it.
Procedures of the Security Council
It is in continuous operation and can be convened at a moments notice. Nonmembers (other than the 15) can participate if they want to. The Secretary General
or a member of the Council can call a meeting.
Voting Process
There is a limitation. The 5 permanent members have the right to veto an action. If
there is no veto, you need 9 votes in favour. The veto does not apply to purely
procedural matters. However, there is usually a question Is this procedural to
determine the status of a matter and the veto can be used here. So, in effect, the

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permanent members can use their veto (sometimes referred to as the double veto
power).
Development of the veto: Article 27 says that any decision of the Security
Council requires 9 members in favour including the consent of the five permanent
members. The practice has developed where abstentions do not count as a veto.
(E.g. in Kuwait, China abstained and the action was authorised.) Also, absence does
not equal a veto. (e.g. during the Korean War, the USSR was boycotting and the
Security Council adopted a resolution without the USSR). The structure of the vote is
often why the UN is sometimes criticised for being ineffective. This was truer during
the Cold War (proxy conflict between the US and the USSR when either country or
their allied would exercise their veto.) This stalemate changed after the Cold War
with more co-operation between the powers. It is still thought, however, that the 5
permanent member elected in 1945 perhaps no longer reflect current power
distributions and perhaps countries like Germany and Japan should also be members.
Note that amendments to the Charter can also be vetoed by the 5 permanent
members, therefore the Security Council is probably not going to change. The US
things that there should be more permanent or semi-permanent member, but without
the veto power. Others think that membership should be expanded, but this will give
rise to making decisions more complicated.
(c) The Secretariate
The Secretary General is the chief executive of the UN. S/he is elected every 5 years.
The Secretariate is the beaurocracy of the UN and is often criticised for being
overinflated with too many people. The Secretary General has been implenting
reform plans. The Secretary General plas political and admnistrative roles Article
91 describes some of these. He is elected an an individual. There is a huge political
process regarding nomination including Security Council approval (subject to veto)
and approval by the General Assembly.
CREATION AND ASCERTAINMENT OF INTERNATIONAL LAW [77]

A. Sources of Law [77]
[see p.40 supp. - art. 38 of Statute of the International Court of Justice]
In Ontario, the sources of law are legal statutes, case law and perhaps custom.
Secondary sources of law include writings by scholars, etc which help understand the
primary sources. There are two concepts present in the law: (1) the legislative

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process by which laws are generated and (2) the judicial process e.g. the Common
Law which evolves by the resolution of individual disputes in courts. These two
concepts can usually be researched in material sources such as case books, reports,
etc.
For international law, Article 38 (p.40 of Supplement) of the International Court of
Justice lists some of the sources of law. Narrowly, Article 38 only relates to the ICJ but
it is universally accepted as applicable to other forums.
1. International Conventions and treaties
2. International Custom the way in which states behave towards one another
believing it to be pursuant to legal obligations. This conduct creates legal
obligations.
3. General principles of law recognized by civilised nations. Most legal systems have
principles of a legal process, compensation from a wrongdoer, etc.
So
international tribunals will refer to these principles as a source of law for resolving
international disputes.
4. Judicial decisions, and teachings of eminent scholars. These are subsidiary or
secondary sources which may help to elucidate the primary sources. These are
not binding, but, as in a civil law system, they may help understand codified law.
Hierarchy of the Sources
1,2 and 3 are primary sources, but 3, practically has a lower hierarchy because it is
probably dealt with under custom. Also, it raises the touchy question What is a
civilised nation? There is no formal hierarchy but domestically (subject to the
Constitution), legislature trumps the Common Law.
Between 2 states, there can be a treaty to put a stop to custom, therefore
custom can be trumped by treaty. Also, international treaties and conventions can
put an end to international custom. E.g. Diplomatic immunity of diplomats. If a
treaty has gaps in it, the gaps in the treaty are still subject to custom e.g. the rules
in the UN Charter Article 51 where it says that you are only allowed to retaliate in
self-defence when under attack. But custom says that pre-emptive strikes may also
be used.
Treaties are usually the result of custom, but it can be the reverse. The very
process of forming a treaty by states coming together creates a momentum and
custom which influences non-parties to the treaty as well. E.g. the UN Convention
on the Law of the Sea delineating the economic zone, high seas, continental shelves
etc. After the treaty was written, there was a change of heart regarding resources of
the deep-sea bed beyond territorial waters as being part of the common heritage of
mankind and that riches discovered would be shared by all. The Reagan government
and other governments hesitated because they thought that investors and investing
countries would not be properly compensated for their efforts. So the treaty was not
ratified by all. States that did ratify were bound by the treaty, and this process
caused other countries who were non-signatories also to behave consistently with
most of the terms of the treaty viz. the 200 mile economic zone and the 12 mile
territorial sea. Therefore, a custom was created. The treaty then became a handy
articulation of the rule as reflected by custom. Another example is the Test Ban
Treaty. France was bound not to test nuclear weapons in the atmosphere although
France did not ratify the treaty. The practical daily impact of new treaties are
important.
TREATIES [p.82]

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Generally
Treaties are the most important source of IL as between states. Law-making treaties
may codify, define, interpret, or abolish existing customary or conventional rules of
international law or create new rules for future international conduct. They may also
create international institutions. Treaty contracts, whether bilateral or multilateral, do
not create general rules of international law. They create rights and obligations like
private law contracts.
The basic principles of the law of treaties are set down in the 1969 Vienna
Convention (below) which came into force internationally (including Canada) in 1980.
Because of the paramount importance of treaties as a source of international legal
obligations binding upon states and the diversity and comprehensiveness of the
interlocking network of treaties which regulate transactions and relationships
between states, the Convention must be viewed as the constitutional basis, 2nd in
importance only to the UN Charter, of the international community of states. [82]
[see Vienna Convention on the Law of Treaties, definition in Art.2]
Articles 2 and 3 require that the parties be subjects of international law, intend to
create binding obligations under international law, and agree to be governed by IL
[83 N1]
4 defining elements of a treaty: absence of one of these does not a treaty
maketh!
1. Need an agreement - meeting of the minds (not unilateral)
2. The agreement must be between 2 or more states (international persons)
3. The agreement must be intended to create binding obligations
4. The binding obligations must be governed by public international law.
Treaties are usually written, (p.45 of Supplement Vienna Convention on the Law
of Treaties) but there is nothing preventing an international engagement being made
orally, provided that the representatives of the parties are duly qualified. May be
evidentiary problems though. [84 N4] Prior to the Convention, the law of treaties was
just a part of international custom, but after 1980, for states who ratified it, it became
treaty-based. Article 2 says that treaties have to be made in writing. One example
of an oral treaty was the East Greenland dispute between Norway and Denmark. The
international courts said that the treaty was entered into when Norway conceded to
Denmark during a chat over drinks in the Norwegian foreign ministers office!) A
Canadian example of an oral treaty was the case of Marshall: He was prosecuted for
fishing out of season. He claimed there was a treaty right 100 years ago to fish out
of season. The terms of the treaty were conducted orally and notes were recorded by
the British government. The Courts said that there was a treaty and this superceded
other laws.
Pursuant to article 1, the Convention applies to treaties between states instead of
international persons. This is less extensive than international custom so custom will
still stand. Treaties with or between international organizations are governed by the
Convention on the Law of Treaties between States and International Organizations...
which has not yet been adopted in Canada. The Vienna Convention is not applicable
to treaties entered into between "non-states" [84 N5]
1. Distinguish between unilateral assumptions of obligations
E.g. Nuclear testing cases. Australia and New Zealand tried to sue France to stop
testing nuclear weapons in an atoll in the South Pacific. Before the Court decided if it
had jurisdiction, France decided to stop because they developed the technology to
test underground. The Court accepted this as a binding obligation even though no
treaty was signed.

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2. Treaties between the British Crown and First Nations groups
R v. Secretary of State for Commercial Affairs 1982 2 All E.R. 118

Facts: A group of Canadian natives took claim to the British Crown to discern if the
Crown had surviving obligations under treaties.
The Crown said no because the obligations had been transferred to the Canadian
government by 1982. However, the treaties were described not as treaties in the
international law sense but as Articles of Submission. But, the SCC in Marshall said that it
was not just a surrender but an agreement whereby both sides got a mutual advantage.
1990 (p.196-199) R. v. Siou

The SCC said that they could conclude that from historical documents that what went on
in terms of negotiation between First Nations and the British Crown was equivalent to
negotiations between states. Therefore, these treaties were entered into by international
persons. Even the form of the treaties was similar to treaties between European powers.
(Similar conclusions in New Zealand).
This gives extra stature to what is being looked at in an international forum.
There are also certain domestic law consequences and problems. If it were an
international treaty, the courts will view it more broadly than just domestic
legislation. There is a political advantage to characterise it as a treaty rather than a
domestic agreement. In international treaties between two sovereigns, if one party
breaches their obligations, the other party in not obliged to honour its obligations.
Occasionally, agreements can be entered into by non-international persons,
but these have a different effect than an international treaty. E.g. Libya before
Gadaffi entered into an agreement with Texaco granting Texaco excess to oil. When
Gadaffi came to power, he reneged.
In the treaty, Libya said that it was to be
governed by both the laws of Libya and international law. So this treaty became
elevated to something under international law and therefore became a treaty under
international law although there were not two legal persons.
3. Agreement does not equal binding obligation all the time
e.g. Agreements that are not publicised, or agreements that you do not want to be
binding. For example, if you have a trade agreement but you add some special
concession to one party, you do not want to publicise this concessionary
augmentation to the treaty to all other parties. This is a non-registered agreement
which is not intended to be governed by law and cannot be claimed against on the
basis of obligations. They are entered into by states for political or other reasons
without publicity.
4. No obligation under International Law
It is possible that two states enter into an agreement and intend to create binding
obligations but not obligations under international law. You need to have binding
obligations under international law to have a treaty.
Form of Treaty
There is no particular form for treaty
Bilateral treaties may be very informal like the simple exchange of letters where 2
people are appropriately accredited, like ambassadors, etc. agree to bind
themselves to an agreement. It might be oral very rare. Sometimes, they are

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very formal, the product of a long negotiation process e.g. the Free Trade
Agreement (predecessor of NAFTA) negotiations lasted for a couple of years, the
documentation was extensive and there was much pomp and circumstance in its
signing. In comparison, the Land Mines treaty took only about a year from the
initial informal recommendations to ratification. The Law of the Sea treaty took
10 years.
Not necessarily a contract.
The chief distinction in form is multilateral or bilateral (and variations thereof e.g.
NAFTA).
Name - could be a treaty, statute, Act, accord, protocol, declaration, etc.
(Conventions are usually multilateral treaties; Protocols are usually optional
agreements collateral to another treaty) [refer to p. 87 and 83 N3]
Treaty Making [88]

The Treaty-Making Process
Mere signature does not bind the state to the treaty. It only imposes an obligation
to act in good faith and prepare for ratification.
The first draft is made by negotiators who do not have the authority to bind their
countries. The draft is then put on the table and the states are invited to sign.
Representatives from the states will then sign. This signing of the draft does not
create the law in a treaty. Signatories then go home because usually, some form
of internal modifications are required, like changes in legislature, or other
domestic structures.
The next step is ratification. Article 7 of the Vienna Convention (see Supplement)
lists the people who can sign: a head of state, head of government, minister of
foreign affairs/secretary of the state has automatic authority. Other people can
sign but have to be given authority by one of the aforementioned people.
For states who enter late in the negotiation process, they can accede to the
treaty.
Multi-lateral treaty making requires some kind of co-ordination. One state or
organisation like the UN is elected to be a depository state to let the world know
who has become party to the treaty.
Federal Government Authority in Canada
For a federal country like Canada, it might be complicated to decide who can
speak for the state. The federal government has the authority under international
law. There is some dissent from Qubec regarding this (p. 167) . The Labour
Convention Case of 1937 enforces the federal view. Provinces cannot enter into
treaties even regarding matters that are exclusively under provincial jurisdiction.
However, the federal government cannot form a treaty if it deals with something
which is exclusively under provincial control without getting provincial input.
Canada can put forth a reservation saying that they will comply subject to
decisions from the provinces. Often, it is the provinces that wan the treaty but
not the federal government. So the federal government can enter into an
agreement with the provinces where the province agrees to indemnify the federal
government in case of non-compliance with the treaty. E.g. There is an
agreement between New Brunswick and Maine regarding maintenance of bridges
between them. This is not a treaty since the parties are not international persons,
but covering treaties by the US and Canada will assume that these will be
honoured federally and this agreement is then elevated to a treaty under
international law.
Legal Effects of Treaties [97]

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Do treaties create international law or merely obligations? There is a distinction

between law making treaties and contract treaties (like legislation which creates a
law for everybody or a contract which creates a mini-rgime only between the
parties to it). This is not a very fruitful distinction though. International treaty law
is a network of obligations between states. This is not the same as obligations
between states not party to the treaty.
A state can ratify a multilateral treaty and agree not to be bound by a certain
article.
Other states can accept that therefore changing the rights and
obligations to/of that state. So rights and obligations will depend on who you are
talking about.
Once you have assumed an obligation, you are expected to carry it out in good
faith. This is the fundamental rule (Article 26 of the Vienna Convention p.97 of
text).
Article 27 provides that once signified that you are bound, then at international
law, an internal impediment to carrying out obligations is not an excuse.
e.g.
The US and New Zealand had a treaty to extradite people carrying narcotics
including marijuana. But New Zealands obligations to extradite could not be
fulfilled because the Extradition Act and the Criminal Code did not give the
magistrate the authority to extradite. So the treaty couldnt be implemented
because of an internal impediment and therefore New Zealand was in breach on
international law. (Eventually sorted out by the Immigration Department).
When does a treaty come into force?

Perhaps the facts in a conflict arose before a treaty came into force, so one needs
to know when a treaty came into force. It depends upon the terms of the treaty
where a start period can be set up.
Usually, pre-requisites are ratification or accession.
Even with ratification or accession, there are usually no obligations unless there
are a sufficient number of parties who will ratify. E.g. Land Mines, International
Criminal Court not in effect because not enough states have ratified them.
If a treaty is in force, a party will not be bound until ratification. Article 18 of the
Vienna Convention says that when a state signs the draft (which does not
technically make the treaty binding), it has an obligation not to act inconsistently
with the obligations which that state will assume later.
Effect on non-parties to the treaty. Once a treaty is in force, it is binding. By
and large, the fact that 2 or more states have entered into a binding obligations
does not have an impact on another country, but occasionally, it does. E.g. if the
third party knows of the treaty and consents to it (not by signing), or if the treaty
confers a benefit on the third party, it is implied that the third party consents to it.
E.g. the Treaty of Versailles (p.97) gave benefits of more land to Switzerland. But
Switzerland was neutral and not part of the treaty. Also, in the Reparations Case,
before Israel became part of the UN, it had to recognise the international
personality of the UN (Article 34-38 Vienna Convention).
Reservations
Even if a treaty is in force, has been ratified, perhaps a key obligations will not
apply to a state because of a reservation by the state. The former practice was that
unless there was unanimity by all the parties regarding the reservation, the party
reserving would not be part of the treaty. This was changed after WWII in order to
have more states who were party to the treaty even though they had small
objections. It was better to have a large number of parties rather than parties with
marginal reservations to no longer be party to the treaty the flexible approach.
(See Genocide Case). As long as the reservation is marginal to the key obligations in
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What if another state objects to the states reservation?

The second state cannot impose on the state an obligation to step out of the
treaty. The state can say that it will treat the state as not being part of the treaty at
all. Or, it can accept the state in all other aspects of the treaty except the
reservation. Of course, if a state says that it does not wish to be bound by a certain
obligation, it cannot force this on another state who might have accepted it. E.g.
France accepted the compulsory jurisdiction of the International Court of Justice
subject to the reservation that if France decided that the matter was under exclusive
domestic jurisdiction, the ICJ wouldnt have jurisdiction. Norway also signified its
assent to the compulsory jurisdiction of the ICJ but without any reservations. France
sued Norway over a financial matter. Norway took advantage of Frances reservation
so as not to be bound by the ICJ claiming it was under exclusive domestic jurisdiction.
Similarities with Contract Law
Article 30 provides the if two treaties conflict, the later one prevails.
Articles 34-38 deal with how 3rd parties are affected by a treaty. 3rd Parties must
consent to being affected by treaties. If the treaty gives 3rd party a right, 3rd
party will be assumed to have consented to having the right conferred.
Restrictions
Article 38 provides that where a treaty is a territorial treaty, eg. U.S.-Panama
treaty concerning jurisdiction over Panama Canal, ...[?]
[see Arts. 19-22 p.49 of Supplement]
Interpretation of Treaties
Practically, it is not very often that there is doubt regarding the treaty being in
force, or problems with ratification and reservations. Usually it is clear that a treaty
applies. There are usually problems as to what a treaty means. NB Sometimes an
internal statute has a treaty attached to it as a schedule to the act. The courts have
said that with statutes that have attached treaties, a wider interpretation should be
allowed than it only talking about the statute. E.g. a Colombian who worked in the
embassy was caught smuggling narcotics. He claimed diplomatic immunity. But his
term had come to an end. On looking at the treaty, it was given a broad
interpretation whereby he was still under the terms of the treaty and entitled to
diplomatic immunity.
Interpretation of Treaties: Interpretation of Peace Treaties Case (1950 I.C.J.)
[100]
Court looked at intention based on "natural and ordinary meaning of the terms". It
also looked to the "normal order followed" [custom] to support its conclusion, "in
the absence of any express provision to the contrary" that the parties wished to
depart from it. [101]
Also held that the principle of ut res magis valeat quam pereat (rule of
effectiveness) cannot justify the Court in attributing to the provisions "a meaning
contrary to their letter and spirit." [102]
Approaches of a Tribunal (p.102 N1)
First use textual (literal) approach - Prime object is to establish meaning of
text according to the ordinary and apparent signification of the terms - if words
are clear, no need to go further. Eg. The David J. Adams (American & British
Claims Arbitration, 1921) [p.104]. A statute listed the grounds for which a US
fishing vessel could enter Canada for shelter, repair and no other purposes. A
boat cam in and bought bait. The Tribunal said that this did not fall under the
treaty right, period! The Court found the words to be perfectly clear and held that

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no sufficient evidence of contrary intention of the parties was produced to

contradict this clear wording.
Look at the intention of the parties (or founding fathers). For example in the
Adams case, the defence tried to argue that the intention in the treaty was
broader. The only legitimate object is to ascertain and give effect to the intentions
or presumed intentions of the parties.
Teleological (purposive) test - interpretation should be in furtherance of the
legislative purpose. An adjudicator can apply a purpose of this treaty
approach. The general purpose of the treaty counts. It is considered to have
an existence of its own, independent of the original intentions of the framers.
Effectiveness approach the Tribunal will strive to avoid an interpretation
which gives the treaty no practical effect. They will employ an interpretation
which allows the treaty to be fulfilled. E.g. Reparations Case: The UN Charter
didnt say that the UN had international personality and could claim damages
for the murder of its representatives. But if you look at the Charter as a whole
and the purposes of the UN, it is clear that the UN has to be an international
personality to fulfill its purpose.
Another example would be the Expenses case in which a number of
countries refused to contribute to UN expenses because they objected that
these were not justified by the UN Charter. The USSR refused to pay during
the Korean War and France refused to pay for military operations in the Congo
because the Charter gave no specific authorisation for action. But if you look
at the objectives of the UN as a whole, the carrying out of those actions was
appropriate in fulfilling its objectives.
Articles 31 and 32 (p.53) employ all of these methods. These articles lay down the
general rule of interpretation that "a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to its terms in their context and in
the light of its object and purpose, and provides that recourse may be had to
supplementary means of interpretation including the preparatory work of the treaty.
[103 N2] Therefore a broad based approach can be taken in treaty interpretation.
Operation of Treaties [107]
Amendment and Modification [107]
When presented with a problem, the practical questions to ask are: Is the treaty
in operation with respect to a particular problem? Has the treaty been amended,
suspended, terminated or is it invalid?
International law is not yet fixed with respect to how and under what conditions
amendment may take place... If there is consensus that an agreement is to be
amended, negotiations can take place to determine the nature of the
amendments required. Once the form of the amendments has been agreed upon,
they may be embodied in an Protocol of Amendment. If decided that it would be
preferable to terminate and replace the agreement, that could be acheived either
by terminating the old agreement in accordance with its provisions, or, on
agreement by all parties, placing a provision in the new agreement stating that it
was intended to terminate the previous one.
Art. 39-41 (p.55 of Supplement) of the Vienna Convention confirms that a treaty
may be amended by specific agreement between the parties. The treaty itself
might contain provisions for amendment.
Multilateral treaties often have procedures for amendment. The problem arises
when some states obligations are changed and others have not. Amendment
can also occur by termination and replacement.

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In case of a multilateral treaty, the amending agreement only binds the parties to
the original agreement who accept it (art. 40(4)).
The amendments may not prejudice their existing treaty rights and obligations
(art. 41).
A state that becomes a party to the treaty after its amendment will be considered
a party to the amended treaty, except in relation to a party that has not accepted
the amendment (art. 40(5))
Invalidity [108] [see Arts. 46-53, and arts. 69-72 - termination / suspension
of treaties]
1. A treaty can be seen as being invalid if it is contrary to jus cogens. Article 53
(p.108 N4). This is an international law concept that is universally recognised but
the subject for endless debate. Main characteristic of jus cogens is fundamental
importance to social order. eg. prohibition against use of force reiterated in U.N.
Charter (art.2), the necessary elements for the existence and operation of the
international legal system, and other norms that have become so deeply
imbedded in IL that they are inviolable, eg. elementary considerations of human
dignity (laws for protection of human rights are arguably part of jus cogens). [1089 N4]. These rules of customary international law cannot be altered by a treaty.
For example, genocide, apartheid, slavery, war crimes are contrary to jus cogens.
Jus Cogens refers to an open set of peremptory norms of international law that
cannot be set aside by treaty or acquiescence, but only by the formation of a
subsequent peremptory norm of contrary effect. The principles can be found in
treaties or in customs. They are obligations owed by a state to the international
community as a whole. . [108 N3]
2. If there has been a manifest violation of the internal ratification process. Article
27 excludes items covered under Article 46.
3. Article 47 if the person giving consent exceeds the authority that the other
party knew he had, the treaty is invalid
4. Article 48 -- Mistake of fact may invalidate the treaty but is hasto do with
something fundamental to giving consent in that treaty.
5. Article 49 Fraud
6. Article 50 A treaty is void if consent was obtained by corruption or coercion of a
states representative.
Article 46 is an important limitation on a state's ability to escape liability for breach of
a treaty by claiming it was never bound because of some technical requirement of its
internal law. In this respect, the article complements article 27 which prevents a state
from justifying its breach of a treaty by invoking its internal law. [108 N1]
Vienna convention, art 66, makes particular provision for disputes about
peremptory norms.
[see Art. 66]
Termination or Suspension [see Arts. 46-53, and arts. 69-72]
A treaty can end by its provision (Article 54 or 57).
It might contain terms that parties can unilaterally withdraw provided reasonable
notice is given.
Treaties cannot be terminated where the number of states still bound by the
treaty falls below the number required for the treaty to enter into force.
Article 59 a treaty may provide expressly or implicitly for withdrawal states
must give 12 months notice.

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Article 60 if one party breaches a material term of a treaty, that excludes other
parties from carrying out their obligations. Exception is the Human Rights Treaty
because the beneficiary of the obligations are also your own citizens not just
citizens of another country. So if one country is killing its citizens you are not
excused from killing your own!!
Supervening impossibility (Art. 61 of the Vienna Convention) if there is the
permanent destruction of an object/element essential for the execution of a
treaty.
Fundamental change of circumstances (Art. 62) is grounds for termination
provided that the change in circumstances is unforeseeable i.e. the essential
basis for which the treaty was reached was changed, or there was a radical
change in the circumstances. E.g. the emergence of a new state or the
transformation of a state.
E.g. Ex Parte Dell
Extradition from Canada to the US under an old British extradition treaty. It
was argued that this treaty shouldnt apply because Canada was a new entity.
The courts said that in this case it didnt apply because Canada took over all
the obligations from England (a Commonwealth notion).
Another E.g. ICJ Case involving the UK and Iceland re fishing. The UK
commenced an action against Iceland based on obligations assumed by
statute regarding the ICJs compulsory jurisdiction including in fishing. Iceland
said that there was a fundamental change of circumstances in fish stocks
around the coast. The courts said that a fundamental change in fish stocks
was not a fundamental change in the context of dispute resolution.
Severance of Diplomatic Relations this is not sufficient to release the other
party from treaty obligations.
Art. 64 in the event of an emergence of new norms of jus cogens, and treaty
obligations are inconsistent with the new norms, the treaty will cease to be valid.
E.g. damaging the environment during the Gulf War might be a new norm. New
norms will be escalated to jus cogens by states agreeing on new standards
creating new custom.
Need to know : definition and different forms of a treaty, process by which a
treaty goes from being an idea to being binding, concept of entry into force by
individual states and generally, termination, suspension and invalidation.

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CUSTOM [p.115]
This is another source of primary legal obligations
2 Components before it can be considered custom:
1. Evidenced in State Practice - must be able to show that states
have conducted themselves by certain rules or conduct. It must be
consistent, constant and uniform (see Lotus case p.426 a
decision of the ICJ).
2. Opinio Juris - - conduct must have been pursued by states out of
perceived legal obligation, not just mere convenience, etc.
Custom is binding without the formal consent in the treaty sense. It is binding
by virtue of the fact that it is done by the states. It is the creature of the voluntary
action of states. It is not a simple process (refer to p.115 in text). It is a living thing
that is always changing and often hard to pin down, so international law can often be
problematic.
State Practice
There are various ways in which a state can act as evidence to show that an
action is in accordance with the rules. E.g. by Canada granting fishing licenses, it
says that Canada has jurisdiction for fishing within a 200 miles radius. Canada
also complies with other states licenses.

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Legislature can also pass an act which declares Canadas jurisdiction. A court can
also rule on procedure e.g. when a diplomat asks for immunity, states usually
comply.
Specific actions or omissions can also amount to state practice. For example,
when the US sent an ice-breaker in the North Western passage, Canada sends an
escort ship just to make sure that it is still asserting control.
Statements can also be an indication of state practice when a state says that
something is consistent/inconsistent with international law. E.g. of Australia, New
Zealand and France re nuclear testing. Australia and NZ pointed out various
documents which had been signed earlier condemning nuclear testing.
You can also have statements in the abstract e.g. in UN debates on disarmament
or voting countries have made general statements regarding legal rights and
obligations.
Press statements and commentaries by foreign ministers are also evidences of
state practice. There are therefore many ways to convey that there are certain
rules.
Press statements and commentaries by foreign ministers are also evidences of
state practice. There are therefore many ways to convey that there are certain
rules.
North Sea Continental Shelf Cases: Federal Republic of Germany v.

Denmark and v. Netherlands (1969, I.C.J.) [118] Discussion of custom vs. treaty.
Issue rules for determining continental shelf boundaries for adjacent states. Was it
the rule of equidistance? No consistency with this rule (p.122 para. 74)
A treaty tried to sort out the rule but Germany, which had not ratified a
Convention, was not bound by its provision. Rose question of whether provision
was binding as customary IL.
To show that, through positive law processes, a principle in a treaty has come to
be regarded as a customary rule of IL, it is necessary to examine the status of the
principle as it stood when the convention was drafted, as it resulted from the
effect of the convention, and in the light of State practice subsequent.
The status of the rule in the Convention depends mainly on the processes that led
to its proposal.
Even if a rule is not customary IL when codified, it may become such because of
its subsequent impact on State practice. It is necessary that the provision
concerned should be "of a fundamentally norm-creating character such as could
be regarded as forming the basis of a general rule of law. [121] Even without the
passage of any considerable period of time, a very widespread and representative
participation in the Convention might suffice, provided it included that of affected
States.
An indispensable requirement would be that within the period in question, short
though it might be, State practice, including that of States whose interest are
specifically affected, would have been both extensive and virtually uniform in the
sense of the provision invoked; moreover it should have occurred in such a way as
to show a general recognition that a rule of law or legal obligation is involved.
[122]
To constitute opinio juris, not only must the acts concerned amount to settled
practice, but they must also be such, or be carried out in such a way, as to be a
belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The states concerned must therefore feel that they are conforming to
what amounts to a legal obligation. The frequency, or even habitual character of
the acts is not in itself enough. [123]

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[dissent] It is extremely difficult to prove opinio juris. it relates to international

motivation and, being of a psychological nature, cannot be ascertained very
easily. [126]
[dissent] To become binding, a rule or principle of IL need not pass the test of
universal acceptance. It must only be "generally adopted in the practice of
States." The evidence should be sought in the behaviour of a great number of
States, possibly the majority, and certainly the majority of interested States.
[127]
[dissent] According to classic doctrine, the practice must have been pursued over
a certain length of time. The ICJ has not laid down strict requirements as to the
duration of the usage or practice which may be accepted as law. [127] A
convention adopted as part of the combined process of codification and
progressive development of IL may well constitute decisive evidence of generally
accepted new rules of IL. The fact that it does not purport simply to be
declaratory of existing customary law is immaterial. [128]
Military Activieties In and Against Nicaragua; Nicaragua v. U.S., (1986, I.C.J.)
[130 N3]
"It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or from intervention in each other's
internal affairs. The Court does not consider that, for a rule to be established as
customary, the corresponding practice must be in absolutely rigorous conformity with
the rule. In order to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of States should, in general, be consistent with such rules,
treated as breaches of that rule, not as indications of the recognition of a new rule. If
a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself,
then whether or not the State's conduct is in fact justifiable on that basis, the
Usually a large number of states must be involved in the customary practice, but
unclear how many. The more the better. There must be a significant number of
states who are engaged in the practice. In the North Sea case, there were 15 parties
following the equidistant rule. The majority said that this was enough. The dissent
(p.127) said that it was not enough.The longer the practice, the stronger evidence for
customary international law. E.g. before any treaties were signed, virtually every
coastal state in the world had a 200 mile fishing zone and respected other state
boundaries by customary law of the sea.
Flexibility and length of time
Courts pay more attention to states which are actually engaged in the practice
e.g. when looking at the law of the sea, more attention is paid to coastal states than
landlocked states. Or in aerospace law, you look more at countries which actually
have a space program.
Generally, the longer the practice, the better. E.g. the custom of diplomatic
immunity is longstanding but space law has only been around for a few decades. The
law of the sea was custom for a long time and only became a treaty in 1974. Even
before the treaty was enforced, the rules set out in the treaty were already being
adhered to. The practice has to be supported by opinio juris states do it out of a
belief that it is a legal obligation, not simple out of convenience or courtesy. In the
North Sea Case (p.123), the majority said that opinio juris cannot be inferred from
consistency and frequency of practice you need other evidence, a subjective motive
on the part of the actor that they are doing it in a way that is legally binding. The

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dissenting judges Tanaka (p.126) and Sorensson (p.128) said that it is rarely the case
in the real world that states give a commentary to accompany their actions.
In the Nicaragua case (p.839-40), it was said that in some cases, it might be
possible to deduce opinio juris from the act itself. Sorensson and Tanaka said that it
should be a subjective test all the time. Note: The passing of domestic legislation is
also an indicator that the rules are binding.
Regional or Special Customary Law [131]
"Persistent Objector" rule: Customary international law envisages the possibility
that a state can opt out of international custom if, ever since the rule was first
mooted, there was a consistent, persistent objection to the rule. E.g. the AngloNorwegian Fisheries case there was evidence that the limits for fishing zones was
12 miles. Norway was on record for never having accepted the 12 mile zone. The
courts accepted that the rule did not apply to Norway because of a long history of
consistent objection. Norway argued that their economy was more maritime/fishing
based, while Britain wanted a 3 mile territorial sea because, being a strong maritime
power, it wanted to be able to travel with fewer restrictions.
NB if a few states have established a rgime between them, for example, the right
of way over a territory, and if this agreement is longstanding and has been regarded
as legal, it would be a custom between those states. E.g.:
Right of Passage over Indian Territory Case: Portugal v. India (I.C.J. 1960)
[131]
The Court sees no reason why long continued practice between 2 states
accepted by them as regulating their relations should not form the basis of
mutual rights and obligations between the 2 states.
Factors: "constant and uniform practice... continued over a period extending
beyond [125 years]."
Asylum Case: Columbia v. Peru (I.C.J. 1950) [132]
Party relying on custom must prove that it is established in such a manner that it
has become binding on the other party. It must be shown that the rule invoked is
in accordance with a constant and uniform practice of the states in question.
Article 38 of the Statute of the Court refers to international custom "as evidence
of a general practice accepted as law."
Regional or local customs may vary from general customary IL by adding or
detracting from it. However, they must not violate existing rules of jus cogens.
The longer a customary practise has been going on, the better (more evidence will
have been accumulated).
Explanation for differences in opinions between the Nigaragua Case and the
North Sea Case
facts in case were different
change of opinion over time in both cases; now, the rules are closer to the
Tanaka/Sorensson dissent
Not watertight just a basis for argument in individual cases.
From custom to treaty
Over time, custom tends to become treaty e.g. the International Law Commission
codified customary International Law. Custom is not good at regulating highly

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technical things because it is not easy to find out what consistent state practices are.
So these are usually negotiated and converted into treaty form.
GENERAL PRINCIPLES OF INTERNATIONAL LAW

International Law has recruited many of its rules from systems of law which
apply in individual states, the rationale being that because individuals regulate
interrelations between themselves, states should as well. Some common items found
in domestic law and international law include: the notion of a trust with fiduciary

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obligations on the trustee e.g. when Namibia was a mandated territory of South
Africa, international law said that regardless of treaty or custom, since South Africa is
managing Namibia for the benefit of its citizens, the obligations of a trustee should
apply. Another example would be the fact that a state cannot be found liable if it has
not been allowed the chance to be heard.
Must these general principles have evidence in custom (USSR point of view) or
are they standalone? The prevailing view is that they are standalone there are
rules of international law that are made without custom e.g. environmental law if a
state allows activities to go on within its borders to pollute the environment of a
neighbouring state, custom doesnt help, but the general practices of law have been
breached an the state will be liable.
Ex aequo et bono
This concept is found in Article 38(2) of the ICJ. This is not the same as the
Common Law notion of Equity. By this concept, states with a dispute may elect by
mutual consent for the court to resolve the conflict without reference to treaties,
custom or legal issues just come up with a fair deal. No state has ever used this
access to an equitable resolution to a dispute.
Article 38(2) talks about subsidiary sources of the law i.e. what else courts can
look at as being supplemental sources of law. Domestically, we look at
commentaries, texts, etc. Case law is a primary source of the law. In international
law, one looks at text books, case law and writings of scholars. Case law secondary
source used to illuminate a treaty, custom or general practice. However this system
is more apparent than real; judges often refer to cases as a good source of finding
custom or treaty interpretation. Cases are used as if they were authoritative sources.
CHAPTER 4 - APPLICATION OF INTERNATIONAL LAW [147]
National Application [147]
e.g. the captain of a Spanish fishing trawler is arrested for fishing outside the
200 mile limit of the east coast. The arrest was pursuant to a statute of Parliament
which made it a crime to fish in that area allowing the Spanish captain to be
prosecuted in Canadian courts. So the captain was brought to Newfoundland and
prosecuted. The domestic law is the statute. The rule of customary international
provided that outside of the 200 miles, there was to be no piracy, no pollution and
freedom of the seas and fishing. Therefore, there was a conflict between the
domestic statute and international law.
Questions on the conflict of law
What is the relevance of international custom? Assume that the statue had
something ambiguous how does the existence of a proven customary international
law impact this? If there is no statute, but when the captain of the trawler is the Nfld,
he is served with a civil statement of claim my local fishermen who are upset that
this activity has created an economic loss? What happens if Canadian tort law
provides a remedy but customary international law authorises the Spanish fishing what is the role of custom? What if there is no custom but a multilateral treaty with
an obligation from prosecuting people from other countries even thought the federal
statute gives this authority? What is there is no statue but the treaty says that the
captain is entitled to compensation outside the 200 mile limit?
Two important variable in answering these questions
1. Are we dealing with the rule of customary international law or a treaty?
2. Is there a statute or not in domestic law?

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Two traditional vies between International Law and a states domestic law
1. Dualism (Transformation Approach) the two systems are not necessarily
dependent on each other they are unconnected unless the domestic legal
system chooses to consciously incorporate international law. This notion reflects
the notion of absolute sovereignty. Before a part of international law can become
part of domestic law, the domestic law should consciously transform the law (by
statute, etc.) into domestic law.
2. Monism (Adoptionist/incorporationist view) there is a single legal system
that we live under. International law is automatically part of a states domestic
law it is automatically incorporated or adapted as part of domestic law.
In Canada, a combination of the two approaches is used. If it is a treaty, it has to be
transformed into domestic law before it can be applied in a domestic court. If it is
custom, we are incorporationist i.e. it is automatically adapted by the Common Law.
There are reservations to this of course.
Custom
Thakra (sp?) 1970s Lord Denning Illustrates the former English position on custom
Facts: Idi Amin was the dictator of Uganda who practised ethnic cleansing of Asians.
Thakra tried to become a resident of Great Britain because he had a British passport.
But Britain had a system of graded passports and his passport was not the same as a
British citizens. Thakra asserted that under customary international law, if a state
issued passports, the passport holders were citizens and were entitled to live in that
country. He came before Denning in 1974.
Held: if it were a rule of customary international law, it did not help Mr. Thakra
because a rule of customary international law was not part of the law of Britain and it
had to be transformed by statute or former precedent of the Common Law. Denning
relied on a Privy Council Case (p.150 Chung Chi Cheung) which gave voice to the
transformationist theory that international custom is not part of domestic law unless
Trendtex p.149, 1977. Denning has a change of heart.
Facts: State immunity problem. Civil dispute involving a claim by a British company
agains the Bank of Nigeria. The Bank said that they were entitled to state immunity. At
one time, state institutions from other states would be granted immunity under British
Law this was already decided in precedent caselaw. But there was a change in
customary international law whereby only government institutions, not commercial
institutions like banks (though governmental), would be given state immunity. Denning
liked this, so he said he was wrong in Thakra.
Held: You dont need to use precedent, just clearly proven rules of customary
international law. He followed custom not the previous British precedent.
Qualifications for a rule of custom to be recognised as an automatic
Common Law Rule:
1. It has to be clearly recognised
2. While a state may accept that it is bound by the rules of customary international
law, that international rule does not require domestic enforcement (see Tin
Council Case 1988)
In Canada, even before Thakra, customary international law was part of domestic
law.

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Foreign Legations Case (1943) p.150

Facts: Involved clearly established rules of customary international law (now part of
treaty law) which said that foreign embassies were exempt from property taxes. There
was an attempt to levy property taxes in Ottawa under a domestic policy that all
property is subject to property tax. Foreign embassies said that they didnt have to
pay by virtue of customary international law. The Supreme Court agreed.
Held: Taschereau and Duff International law applies unless clearly overwritten by
statute. If possible, the statute should be interpreted consistently with international
law. Assume that the statue does not override the Common Law unless it is very clear.
The two judges said that it was not clear in this case.
The other 3 judges said that domestic law does contradict international law but
it does not overwrite the customary international law rule of enforcing the tax. So even
though the embassies are subject to pay the tax under the domestic law, international
law in fact makes it that there will be no collection of the tax in effect, the embassies
did not have to pay.
Conflicts between International law and Statutes

See also St. John v. Fraser-Brace Overseas Corp. (p.154)
Where a statute clearly unambiguously imposes a rule contrary to international law,
the statute prevails. If the statue is ambiguous, the court will interpret the statute as
being consistent with the rule in customary international law. E.g. Gordon
Gordon v. R. in the Right of Canada (p.157) 1988, B.C.
Facts: In 1980, the federal government passed the Territorial Sea and Fishing Act
whereby the territorial sea was set to 200 miles. Customary international law did
not sanction this at the time. Gordon was arrested for fishing within the 200 mile
zone and it was argued that the government Act was not valid because it conflicted
with custom.
Held: Statute is binding regardless of customary international law because the
statute was unambiguous. See also Mortensen v. Peters - an English case with the
Summary
If it can be established that there is a rule of customary international law, the court
will accept it as part of Canadian common law. You can argue customary
international law in a court as you would argue the common law. If the case involves
foreign law or private international law, then in order to inform the court of the
foreign law, counsel will have to provide expert witnesses of foreign law to provide
the court with the law. But with respect to customary international law, it is just like
arguing the common law no need for experts, etc.
Treaty Conflicts with Domestic Regulations
Treaty law is not automatically a part of the rule in Canada. It must be transformed
by legislature. There are 2 constitutional problems with adopting treaties
separation of powers and division of powers which sometime impede the
transformation of treaty into domestic rules.

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R. v. Canada Labour Relations Board

Facts: there was a treaty between the US and Canada regarding the maintenance
of a base you couldnt have unionised personnel, but legislation allowed itself to
engage in certification proceedins.
The US employer wanted to end these
proceedings under the treaty obligations. But the federal government did not
translate the treaty to labour regulations statute.
Held:
Although Canada and the United States may have signed what is in effect a
treaty governing rates of pay and working conditions on the Distant Early Warning
System, this treaty will be ineffective unless it has been made part of the law of
Canada by an Act of Parliament. Therefore such a treaty, that had not been given
Parliamentary sanction, could not be a ground for quashing an order inconsistent
with it made by the Board under the Act
Arrow River Case p.176 SCC 1971

Facts: 1927 Ontario statue which authorised activities which restricted an controlled
the transport of logs along rivers, including the Pigeon River (on the US border). The
Arrow river company constructed facilities for the movement of logs along the river
and then set tolls under the Act. The Pigeon Timber Company objected to paying tolls
claiming an exemption under the 1842, treaty between Britain (Webster-Ashburton
Treaty) and the US which provided for free water transportation between Canada and
the US. Therefore, there was a conflict between the treaty and the statute.
Held: In British countries treaties to which Great Britain is a party are not as such
binding upon the individual subject but are only contracts binding in honour upon the
contracting states. Where a treaty provides that certain rights or privileges are to be
enjoyed by the subjects of both contracting parties these rights and privileges are
enforceable by the Courts of Canada only where the treaty has been implemented or
sanctioned by legislation rendering it binding upon the subject. Therefore in the
absence of implementing or sanctioning legislation, the provision of the
Ashburton Treaty that water communications should be free and open to the subjects
of both countries cannot be enforced by our Courts, and s. 52 of the Lakes and Rivers
Improvement Act (Ont.), authorizing the imposition of tolls for the use of
improvements erected in the Pigeon River is a valid enactment. Dissent: it was
Incorporation of International Law into Domestic Law
Before a rule in a treaty can be said to be a rule of domestic Canadian law, the treaty
has to be transformed by implementation it has to be legislated by the appropriate
branch of government Parliament. If it is not implemented, it does not come into
effect. How can this be done?
1. Have a short statute and append the treaty as a schedule to the domestic act
2. Paraphrase the obligations of the treaty and put them into the legislature this
are usually only done if some of the obligations are missing from domestic law.
This is non-direct incorporation. You can look at the actual treaty to resolve
ambiguity because the intention of Parliament was to incorporate the treaty.
Re Regina and Palacios p.183
Facts : Criminal prosecution of person smuggling drugs into the country. He was a
diplomat and his term had come to and end and he was just returning to Canada to
pick up his stuff. Courts looked at the statue which incorporated the treaty and had
to interpret the terms left the country had he left or was he yet to leave?
Held: The courts said that they were employing the broad base of interpretation
under international law. The diplomat had not left the country and was entitled to
immunity.

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Schavernoch v. Foreign Claims Commission (1982) p.185

Facts:
Case between Canada and Czechoslovakia for compensation for
Czechoslovakian citizens whose property was confiscated by the Commission.
According to the treaty, a lump sum was paid by the Czechoslovakian government
to the Canadian government for distribution. The treaty was implemented in
Canada by a regulation. The original treaty said that the Canadian government
was to distribute money to people who were Canadian citizens and not citizens of
Czechoslovakia. The regulation however said that anyone who was a Canadian
citizen could claim. In Canada you can have dual citizenship and therefore people
with dual citizenship were disqualified under the treaty.
Held: The SCC said that the federal government regulations were clear a dual
citizen is still a Canadian citizen. The court said that there was no ambiguity in the
regulation so there was no need to look at the treaty.
National Corn Growers Assn v. Canada p.184
Issue: Meaning of regulations which implemented regulations under GATT
Held: As was acknowledged Schavernoch, they could resort to the treaty to
resolve ambiguity. This applies not only to ambiguity on the face of the statute but
also latent ambiguity. You have to read the treaty right at the start to see if
there is a latent ambiguity since it may not be obvious on reading the statute itself.
If a treaty is not implemented, does it have no effect?

The Corn Growers case says that you can look at a treaty to resolve any
ambiguity in the statute. The court presumes that the government and Parliament
intend to give effect to the countrys international obligations. So if there is any
ambiguity, the courts will resolve it in favour of the treaty. E.g. when the court looks
at treaties to resolve statutory interpretation problems. Another example is that
Charter interpretations usually cite the Declaration of Human Rights and other
documents. So it is common for courts to behave in this way be using international
statutes. (Refer to p.192 Lord Denning in Saloman v. Comrs of Customs and
Excise)
Even if there is no statute at play, one may be able to use a treaty in various
ways. E.g. Torts rescue cases re people falling of ships. Regardless of the provisions
in the Canada Shipping Act which was used to formulate the public policy, you can
cite international treaties to help articulate a public policy in the country (in civil
litigation).
Summary of Domestic Application of International Law
Is it customary international law or a treaty?
If a clearly established rule of customary international law without a statute, the
rule is part of the Common Law if customary international law has changed since
having been considered as Common Law; the new customary international law
will apply. Later cases recognise movement in customary international law which
can be likened to the Common Law when considering its capacity to evolve.
If customary international law and a statute, the statue prevails if the two are
clearly in conflict. This is the same as with conflicts between case law and
statutes. If the statue is ambiguous, you can resolve the ambiguity by looking at
customary international law. It is presumed that the statute will not override
customary international law or the Common Law unless it is clear on its face that
it is meant to override it.

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If you have a treaty and no statute, there is no direct application of the treaty but
it can be used as an interpretive and administrative aid.
If a treaty and a statute are in conflict, the statute prevails. But look to the treaty
because even if there is only a latent ambiguity, the treaty prevails.
If a statute has directly implemented a treaty (e.g. as a schedule to an act), more
generous methods of interpretation are permissible.
PEACEFUL RESOLUTION OF DISPUTES BETWEEN STATES

If a client is in a civil dispute, the action will not necessarily be litigation.
Negotiation is one way to resolve a dispute. You can discuss your clients arguments
with opposing counsel. This position may lead to a conclusion that one sides legal
argument is stronger or it may continue to trial. A settlement might be reached
because of economic grounds it might be too expensive to litigate, or for personal
reasons the party might just wish not to be in the process. This is essentially
similar when conflicts between states occur. Ones state asserts rights and the other
will put forward a counter-argument. Political disputes may be resolved not just
based on international law reason, but also by political, economic or military action.
So international disputes may be resolved by negotiation with or without the
application of international law.
The advantages of dispute resolution include: the matter can be resolved
secretly, through diplomatic channels and the parties can retain control. The
disadvantage is that sometimes, the positions of the parties are so entrenched that
the parties want budge (an impasse) and you cannot get to a solution.
Mechanisms by which Third parties can resolve an impasse
[see UN Charter, Art. 33 which obliges members to seek resolution by "peaceful
means" eg. arbitration etc.]
(a) Negotiation [231]
By far the most important method of peaceful dispute settlement is direct
negotiation between the parties. Negotiation offers each party complete control
over its vital interests in the dispute at all stages along the way to resolution. But
for a negotiated settlement to be achieved, each party must believe that the
benefits to be gained from an agreement will be outweighed by the compromises
it will have to make. [231]
Negotiation can be low-key or done in secret.
The Canada-US International Joint Commission has responsibilities with respect to
the waters marking the international boundaries between the 2 countries.
Composed of 3 commissioners from each side, the Commission has a broad
mandate that includes investigative and monitoring powers in some situations
and quasi-judicial authority in others. [233 N2]
A compromis is a treaty agreeing to arbitrate / mediate a conflict.
(b) Good Offices, Mediation, Inquiry, and Conciliation [233]
Passive Involvement by Third Party
When the parties to an international dispute fail to settle their differences by
negotiation, the introduction of the 3rd party can occur by good offices,
mediation, inquiry or conciliation.
This is the least intrusive method, and can be useful if an impasse is so
entrenched that the parties wont even communicate, the negotiation process is
facilitated by having a go-between between the parties. Having a third party is

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useful if states are almost at war or if for domestic reasons, states cannot be seen
to be recapitulating.
Doesnt necessarily involve international law because the intermediary is not
making a case but just helping negotiations to proceed.
E.g. During the Falkland war in the 80s between Argentina and the UK, the US
Secretary of State was an intermediate between the parties. The US offered to
use their officer. The Pope has also been used, as has the Secretary General of
the UN.
Active Involvement by Third Party

While good offices connotes little more than a go-between who tries to induce the
parties to negotiate, conciliation likely involves investigation of the dispute and
presentation of a proposal for its solution. Mediation and inquiry lie in between.
An inquiry may be made into the facts of the dispute if the gist of the dispute is
purely factual. A fact-finding commission can be set up or a person from another
state can be hired to make an inquiry.
A mediator may assist the parties' negotiations. [233]
Mediation is a mandatory first step in civil disputes in Ontario e.g. disputes
between a client and an insurance company.
Mediation may involve international law (the mediator provides an objective and
helps the party to see the outcome) but non-legal matters are often more
important.
Third party has no authority to make a resolution. It just assists the parties to the
conflict.
Third party suggests solutions and gives advice to parties.
Third party tries to find common ground and guide parties to agreement.
Parties may agree to be bound by 3rd party's decision.
Third party may have a binding obligation to resolve the conflict as between the
parties pursuant to a treaty or compromis.
Process may be formal (court-like with experts etc.) with a treaty by the parties
(if we have a problem, we will see a mediator), or there could be an ad hoc
treaty to formulate the role and powers of a mediator.
It could be informal where a good officer employed starts to merely make
suggestions to the parties for resolution.
(c) Arbitration [239]
Arbitration is a form of adjudication that permits the parties to constitute and
operate their own court. It has the attraction that states can select individuals as
arbitrators in whom they have confidence and they can control the procedure
employed to resolve the conflict.
Arbitration is only possible between states in dispute if they genuinely desire a
decision about it and are mutually trusting enough to negotiate an agreement
about the procedure to obtain it [240]
Arbitration is the solution to most international law conflicts. This is used when
parties dont only want mere advice but want an actual binding decision. In
choosing arbitration, the parties invite others to resolve their dispute for them.
The parties give the arbitrator the facts and he comes up with a solution.
Each side agrees on the terms of arbitration like procedure, etc. There is usually
a formal step in agreeing to arbitration and an ad hoc treaty is usually entered
into a compromis. Existing treaties may also provide for an arbitration process.
E.g. in Canada the Trail Smelters case (1950) was resolved by the parties agreeing to an
arbitration. Also, in the dispute between Canada and France on dividing the ocean off the

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coast of Newfoundland (France has islands there), a formal arbitration court was set up in
New York City and a solution was reached.
In most cases, states will follow through with the arbitrator's decision. An arbitral
award is a binding decision [239]
The Hague Conventions (p.270) established the Permanent Court of Arbitration

in 1899 merely a roster of internationally qualified arbitrators whom states can
choose for an arbitration panel. The treaty has a set of Model Rules on Arbitral
Procedure (p.241). Each state party to these conventions appoints 4 persons to the
panel of arbitrators. When 2 state parties are in conflict and seek arbitration, they
each select 2 arbitrators from the panel, only one of whom may be a national. The 4
arbitrators choose an umpire. The PCA itself, though not the process of arbitration,
has fallen into relative disuse. Major use at present is to assist in the selection of ICJ
judges. A Registrar keeps a list of possible arbitrators.
International Law is applied during the process. The enforcement of an
arbitral solution is problematic because states arent forced to comply by
international law, but if states agree to go to arbitration, they are usually looking for
a solution and they do usually abide to remedies.
Rainbow Warrior Ship Case New Zealand v. France Secret Service

Facts: in 1985, the French Secret service blew up a Green Peace vessel in Auckland
Harbour.
The New Zealand police found and prosecuted the people for
manslaughter and sentenced them to 10 years in prison. France claimed that they
were agents of the government and therefore entitled to diplomatic immunity. NZ
said that the transgression was a breach of international discourse and that the
people should remain incarcerated. Negotiations did not help. France threatened
trade sanctions. NZ said that it might release the agents if they would be
imprisoned in France and NZ wanted $9 million in compensation. France said that
the people would be released but they would only pay $4 million.
The Dutch foreign minister was the third part and go them to agree to formal
mediation by a compromis whereby the Secretary General of the UN would arbitrate
the matter. In 1986, the Secretary General came up with a ruling which was
included in a treaty. The officers were to be imprisoned for 3 years on a remote
French island and $7 million in reparations. However, the agents were allowed to
return to France before the 3 years on medical and compassionate grounds (agents
were male and female and female was now pregnant). They returned to France and
were given medals! Therefore, there was a new dispute because of the violation of
the award of the Secretary General. This original award called for arbitration and a
formal treaty was set up in NY with reps from both countries.
Conclusion: France was in breach by not notifying and getting consent before
releasing the prisoners. The only remedy was the fact that France was recognised
Example of a dispute resolution in formal setting with a binding agreement

NAFTA (Ch. 20) Free Trade Commission. If one of the parties has a complaint
against another, there is a provision for consultations, good offices, conciliation and
an arbitral panel. There is the substantive application of international law. There is a
standing panel of experts and each side gets to pick from the other sides roster. The
WTO also has procedures which are binding on the parties regarding treaty
interpretation, etc.

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INTERNATIONAL APPLICATION [160]

The Judicial Process in International Law
In domestic disputes, if all else fails, you can take the party to court. In
international law, this is different. If the parties have not agreed to arbitrate, nothing
much can be done in most circumstances. There are European courts for some
disputes, for example, the World Court. NB the war crimes tribunals in the Hague
are only for prosecuting individuals, not states.
The World Court [217] (UNC Article 7, 92-96) an all encompassing term for 2
courts
1. The Permanent Court of International Justice (1921-45) under the League of
Nations and
2. The International Court of Justice its successor under the United Nations.
The ICJ is the principle judicial organ of the UN

Notionally, the Court is permanently in session, but practically, only recently has
it had enough work to keep it so [219 N6].
Located in the Peace Palace, The Hague, Holland [219 N6].
15 Judges, all of different nationalities. The election process doesnt assume that
the candidates will be from different countries. So if there are two votes for the
same country, the older judge is selected.
The candidates are nominated by the Permanent Court of Arbitration. Elected by
absolute majority of the General Assembly, and Security Council (the Security
Council veto doesnt apply). 5 permanent Security Council members are always
represented by one judge. The requirements of a judge are only that he must be
qualified to hold the highest judicial position in his country. Judges are elected for
terms of 9 years (renewable) with 5 elected every 3 years.
If you are the applicant/respondent, if you dont have someone from your country,
you may add a judge from your country, so there might by 16 or 17 judges with
the addition of ad hoc judges. It seems that only 1 judge ad hoc may be
appointed per side, even if there are more than 2 parties. NOTE: (This ability says

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something about the impartiality of the court the judges are supposed to act
independently not with the instructions from their countries or according to their national
interests. However, a judge always seems to support their countrys case, so national
interest does come through in the process.)
People from different legal backgrounds tend to look at things differently,

therefore there is a further possibility of the parties in a dispute to employ a
chamber of 5 judges instead of the 15 judges. E.g. when Canada and the US had
a dispute regarding the Gulf of Main fishing zone, they employed a chamber of
judges from Western legal traditions. You need consent from both parties to
choose the judges. You can also have an ad hoc judge from your country.
Only States may be parties in contentious cases before the Court [219 N1].
Court is not automatically open to anyone. States must be party to the statute:
(a) UN members are ipso facto parties to the Statute
(b) Non-UN-members may become party to the Statute by accepting the GA's
conditions.
(c) Any other State may appear before the Court if it accepts the conditions laid
down by the S.C. in 1946 which include: acceptance of the Court's jurisdiction,
undertaking to comply in good faith with the Court's decision(s) and acceptance
of all obligations of a UN member under art 94 of UNC.
Non-parties may still bring actions before the court.
To bring an action:
(1) The dispute must be admissible - the dispute must be of a legal character,
not a political dispute. Have to make sure that you allege something that this a
breach of international law. The objection must be framed in a legal concept this
can be an easy hurdle to overcome.
e.g. treaty interpretation (Art.36, para 2 of Statue)
if facts exist which would be a breach of International Law
if the issue has cause for reparations
(2) The court must have jurisdiction over the parties in this particular dispute
[see Art 36, para 2 of court statute]
The UN or its bodies may refer to the ICJ for an advisory opinion, but it is usually a
court of disputes between states. A state can only go before the court if it has
consented to be there. 5 ways to give consent: (p.219)
1. Under Article 36 (2)(a) provides that a state party to the statute
may file a general declaration accepting compulsory jurisdiction of
the court (ie. it agrees to be bound). 1/3 of the world's states have
signed Article 36 declarations (51-52 states). Only 2 (U.K. and
Russia) of the 5 permanent S.C. members, which are guaranteed
representation on the Court, have signed Art. 36 declarations.
China has never accepted;
2. The court has jurisdiction if you are the party of a treaty, the
subject of which is dispute resolution and a central obligation is to
go to the ICJ for dispute resolution
3. Where parties agree specifically to refer dispute resolution to the
court, usually by compromis
4. Other provisions in other statutes not specifically about dispute
resolution may also have provisions to go to the ICJ e.g. US and
Iran during the hostage crisis looked at the Vienna Convention on
diplomatic relations.

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5. Jurisdiction of the court is derived from the prior consent of the

parties. Since the end of the Cold War, there has been increasing
use of the World Court as an arbitration mechanism.
Note on Declarations recognising jurisdiction of the ICJ
Note 4, p. 223 India v. Portugal - Portugal deposited declaration recognising the
jurisdiction of the ICJ 3 days before bringing an action towards India. Also, in 1984,
with Nicaragua v. the US, the US tried to modify its declaration to exclude matter
relating to activities in Central America. But the original US declaration said that 6
months was required for termination of the declaration nothing was said about
modification. The Court said that this modification was termination and since
Nicaragua launched the case before 6 months, the case was decided by the ICJ. The
US did not attend and totally ignored the judgment nothing was done to enforce it.
So, the ICJ is just a fancy form of arbitration. It is only useful of the parties want to be
present. The courts can do nothing to enforce rulings if other states dont play.
Reservations in Article 32
(p.220 Canadas declaration)
Canada said that the court has no jurisdiction where we have agreed to settle the
matters by other means.
Commonwealth countries agree not to take each other to the ICJ.
No domestic matter as determined by International Law
Declaration can be amended immediately without notice
Some countries like the US and France (when they were members) said that they
would exclude all matters of domestic concern as determined by them. Is this a valid
reservation? This undermines the notion of consent in advance. It has been
suggested to strike out the reservation and others think that it invalidates the entire
declaration. Note the grounds for reciprocity e.g. Canada cannot be sued
regarding fishing and therefore, Canada cannot sue other countries regarding fishing.
Procedure:
Applicant v. Respondant
Applicant files documents with registrar in the Hague
Documents are called "Memorials" instead of facta
Hearings take place in 3 or 4 stages.
The Courts may take "provisional measures of protection" (like an injunction) in
cases where such are necessary "to preserve the respective rights of either
party." (Statute art. 41). Interim (provisional) measures have been pronounced in
14 cases, in at least 5 of which they were not honoured at all. Among the criteria
the Court has required to establish circumstances warranting provisional
measures is proof of "irreparable prejudice to the rights in issue." [226 N6]. E.g.
N.Z. asked for an interim measure against France during nuclear testing. It was
given the award although France ignored it.
Can argue on jurisdiction an admissibility
Argue the merits of the case
Decision is decided by a majority. The president has a casting vote.
The decision is final and binding. In the event of non-compliance, the matter may
be referred to the Security Council
Process for Third Party Interveners
Art. 65 of the Statute and 96 of the UN Charter provide that advisory opinions can
be rendered if referred to by the organs of the UN usually problems of Charter

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interpretation. Often with advisory opinions, this impacts the rights and
obligations of non-parties to the decision, however, these are not binding
decisions, just advisory. However, the decisions so carry significant political
weight.
Remedies include: reparations ($), specific orders and declarations.
Enforcement
[see Art. 94 of UN Charter]
Enforcement is discretionary, based on political decisions
"...Naturally, courts and court-law are of great importance in international law; yet so
also is that law which provides the frameworks, procedures and standards for
international political decision; and it is certainly the further development of this
latter kind of international law which presents the most urgent problem today." [Judge
Jennings, p.230].
The court is therefore a valuable resource, although its usefulness lies in the
limited context of consent.
IMMUNITY [280]
Two kinds of immunity state/sovereign immunity and diplomatic immunity
Immunity Generally [280]
Where is immunity required? Examples:
(1) A piece of a Russian space craft falls and damages your house.
(2) You sell a shipment of boots to U.S. Army who refuses to pay.
You want to sue...
Foreign states are entitled to immunity from suits in foreign courts. The effect
of this is to force plaintiffs into the defendant's jurisdiction. But many states have
immunity from local actions too. Transactions between states are so delicate that
they could easily be upset by a judgment against one of them by the other.
Judgments may have political ramifications for sensitive negotiations. As
governments become more and more engaged in commerce, absolute immunity
becomes less appropriate.
Only certain kinds of people can claim immunity. E.g. UN employers can
engage in hiring practices that are contrary to local labour laws which cannot be
applied because of immunity. Another example is General Pinochet he is to be
extradited to Spain because of crimes committed against Spanish citizens while he

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was the president of Chile. Pinochet said that he was immune from legal process of
the British court, including extradition.
Scope of Immunity [283]
Reciprocity is a key concept when justifying the situations where states can
claim immunity. E.g. the historic basis for state immunity goes to a tradition of
monarchs not to touch leaders of other states. Now, the key concept is sovereignty
one does not want ones sovereignty to be subject to the jurisdiction of another state,
so there is a reciprocal waiving of rights to confer immunity on states. (see. P. 280
The Schooner Exchange case)
Domestic courts might also not be equipped to deal with foreign relations
between states. So since domestic courts have no way of knowing the intricacies
between states regarding matters such as trade, economy or military affairs, it is
better to stay out of it to avoid embarrassment and to avoid upsetting foreign
relations.
Customary international law recognises that foreign states have some
immunity from the domestic judicial or quasi-judicial jurisdiction from other states.
Diplomatic Immunity - Immunity from criminal (broadly defined, eg. Extradition)
and civil proceedings
Central is the historic connection of the personal immunity of a monarch.
Therefore, currently, there is still personal immunity for a head of state. There is
however some confusion as to whether this extends to the head of government (e.g.
in Canada, the Queen or the Governor General). It probably will also extend to heads
of government but it is not absolutely clear. Other officials have immunity for
conduct pursued in the course of their job this is recognised by customary
international law.
Jaffe v. Miller (see case p.308, footnote 93)
Facts: officials authorised by the state of Florida abducted Jaffe from Toronto to
stand trial in Florida for criminal prosecution. Jaffe sued officials but his case was
dismissed on the account of their immunity while acting within the scope of their
duties.
A head of state has absolute immunity regardless of whether he is acting in the
course of their job. What about when heads of state leave, like Gen. Pinochet? The
House of Lords said that they no longer have immunity for the things you do after
you left office. But if the proceedings relate to conduct when the person was a head
of state, i.e. retroactive proceedings, he will enjoy immunity provided that the
conduct was part of his official duties. It has been argued that Pinochets actions
were a matter of policy (to suppress a rebellion, etc) so he should have immunity.
The House of Lords said in the case of torture, this does not apply. (It is not sufficient
that the action just be a crime because a crime could fall within an official duty!!)
In the Pinochet case though, in 1988, Chile ratified an international convention for the
prevention of torture and so torture was outlawed in Chile by this treaty. Torture was
made a crime internationally. So from 1988 onwards, torture could no longer fall
under a job description so there is no immunity for extradition proceedings for
charges of torture after the treaty was ratified.
Sovereign immunity comes up rarely in the course of criminal proceedings it
usually occurs in civil proceedings. The absolute immunity enjoyed by the head of
state, government minister, departments etc. also extend to civil proceedings.
Historically a more restricted concept has developed. Immunity is restricted based on
the capacity in which the state is acting particularly in the fields of commerce. For

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example, some countries, particularly socialist and communist ones, would enter into
commercial competition with private enterprises and sometimes there were disputes
regarding contracts, libel, etc. But the defendants claimed immunity by virtue of the
fact that they were a state enterprise. State practice later changed because of the
change of rights between private and state enterprises. States were going to lose
business by engaging enterprises from states because there were problems with
enforceability. So there was a move from absolute to restricted/limited immunity i.e.
it applied to actions of a state like a state (sovereign acts, governmental things) but
when a state is acting like an ordinary litigant (e.g. commercial transaction), it will be
treated as one. So immunity is based on fact of entity as a state organ and the
restrictions are based on the capacity in which the entity is engaged.
How do you distinguish between state and commercial activites?
Two step test by Denning in Trendtex
Apply "purpose test" is the purpose of the transaction something everyone
would recognise as governmental?
Apply "nature of transaction" test, ie. buying + selling = commercial. The test is
"Is the act, regardless of purpose, essentially a commercial transaction?"
(Trendtex)
No immunity for non-state. private law, acts. ie. if act could have been committed
by a private person. (I Congresso)
Trendtex Trading Corp. Ltd. v. Central Bank of Nigeria (1977 Eng. C.A.) [292]
It is a rule of IL that a sovereign state should not be impleaded in the courts of
another sovereign state against its will. There is no consensus on this rule. Each
country delimits for itself the bounds of sovereign immunity [292].
Doctrine of absolute immunity has given way to restrictive immunity. So many
countries have departed from absolute immunity that it can not longer be
considered a rule of IL. It has been replaced by the doctrine of restrictive
immunity, which gives immunity to acts of a governmental nature, (jure
imperii), not to acts of a commercial nature (jure gestionis) [293].
If a government departments goes into the market places of the world and
engages in a commercial transaction, that government department should be
subject to all the rules of the market place. The seller is not concerned with the
purpose to which the purchase intends to put the goods [294].
There is no immunity in respect of commercial transactions, even for a
government department [296].
In Canada, the purpose test is preferred.

Congo v. Venne (1971, S.C.C.) (pre-State Immunity Act), the Congo successfully
claimed immunity from a suit for unpaid architectural services [305 N8] during the
Expo in Montral.
Held: The Expo was a governmental activity, so there was immunity and the
unpaid fees didnt have to be paid.
Dissent (Laskin): he decided to make a list of activities that could be considered
governmental he referred to the English case Victory Transport. Laskin said that
the exploitation of aliens was going on which a state is entitled to do.
The problem is that almost all activities of the government can be argued as being
government activities. E.g. the Cuban government controls the sale of sugar this
could be characterised as a government activity! The CBC is also a government

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organ whose purpose could be framed as ensuring access to communication to all

citizens, platform for Canadian artistic talent, etc. Therefore, if the CBC buys a US
documentary and doesnt pay, they could claim immunity!
So the purpose test is unsatisfactory. So you look at the nature of the
transaction. Is it essentially a commercial transaction? If so, immunity would not
apply (see Trendtex p.294). Perhaps the nature of the transaction test is too severe?
In I Congresso del Partido (British - p. 305), a Cuban state trading enterprise
was delivering cargo of sugar to a Chilean company. While discharging in Chile, a
revolution occurred. The Cuban government so strongly disapproved that it
ordered the delivery stopped and the sugar to be sold to North Vietnam. Chile
sued for breach of contract. Cuba claimed state immunity.
Held: While the sale and delivery of sugar is clearly a commercial transaction,
that was not critical. Claim to immunity was eventually denied by the House of
Lords on basis that everything done by Cuba in performing and breaking the
contract was done as a shipowner, not as an exercise of sovereign powers [305
N9].
Two part test:
1. Look at the transaction, contract, etc
2. Look at the act giving rise to the dispute
Are each of these acts a private law act? Could a private sugar shipper
intervene and divert sugar or could only a government do this? Yes a private
organisation could breach the contract too, therefore it was a private law act and
therefore, no immunity. Cuba had a good argument for calling it a governmental act
because they wanted to show non-support of the new government.
In Canada, after Congo v. Venne (which was not the only case like that), there
was considerable political pressure for the government to do something about it. So
the government passed the State Immunity Act (p.284) to prevent a repeat. This Act
did not apply to criminal proceedings. In criminal proceedings, you look to customary
international law which is part of Canadian law. The chief preoccupation in that Act
was to differentiate between government acts and commercial action. However, the
Act has not solved this confusion.
State Immunity Act [285]
State Immunity Act (as am. 1991) [285-9]
Section 2 defines "commercial activity" to be "any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature is of a
commercial character."
Section 3: Foreign state is immune from jurisdiction of any court in Canada
subject to Act.
Section 4: Foreign state not immune where waives by submitting to jurisdiction
of the Court.
Section 5: Not immune in proceedings relating to any commercial activity of the
state.
Section 6: Not immune in proceedings involving death / personal injury or
property damage in Canada.
Section 7: Exceptions relating to ships and cargo.
Section 8: Not immune in proceedings involving succession, gifts or bona
vacantia.
Sections 9-13: Procedure and Relief
Section 11: Separate immunity for execution of judgments

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Section 14: Certificates issued by Secretary of State for External Affairs is

admissible in evidence as conclusive proof of any matter stated therein.
Section 15: Governor in Council may restrict a state's immunity where he feels
the immunity / privileges exceed those accorded by the law of that state.
Section 16: Conflicting provisions in Visiting Forces Act or Foreign Missions and
International Organisations Act.
Section 18: Not applicable to criminal or similar proceedings.
U.S.A. v. Public Service Alliance of Canada (S.C.C. 1992) [296]

Facts: Canadian civilians were employed by a United States naval base in Canada
to perform work as fire-fighters, plumbers and mechanics. The function of the base
was to support anti-submarine warfare command and tactical forces through the
operation of a communications centre. The civilian employees were not allowed
access to the communications centre to perform maintenance work without a
military escort. Each had signed a no-strike commitment at the time of hiring. A
union brought an application for certification to represent the employees under the
Canada Labour Code.
Held: majority Section 5 of the State Immunity Act provides that a foreign state
is not immune from any court proceedings relating to the commercial activity of the
foreign state. Labour relations at a foreign military base do not constitute
"commercial activity" within s. 2 of the Act. Therefore, the base is not deprived of
sovereign immunity pursuant to s. 5, and it is immune from the jurisdiction of any
domestic labour tribunal. "Commercial activity" is defined by s. 2 of the Act as
conduct that "by reason of its nature is of a commercial character". Consideration of
the purpose of the activity may help in the determination of the nature of the
activity, for the proper approach to characterizing state activity is to view it in its
entire context. The activity at the base has a double aspect: while bare employment
contracts are primarily commercial in nature, the management and operation of a
military base is a sovereign activity. The Canada Labour Relations Board seeks to
assert its jurisdiction and regulatory control over labour relations on the bases.
There is too tenuous a connection between the entry of the American navy into the
labour market to hire individual employees and non-consensual labour-management
relations imposed under the Canada Labour Code to create the requisite nexus for
commercial activity in this case. Moreover, the imposition of collective bargaining
by the Canadian state and under the control of a Canadian court would constitute
an unacceptable interference with American sovereignty.
Dissent: To identify the nature or quality of an activity under the Act, a court should
have regard to the context within which the activity took place. In order to do so, it
will often be necessary to consider the immediate purpose of the actions taken by
the foreign state. Here, the civilian employees serve merely as support staff. Apart
from their support role, they serve no purpose that is critical to the operation of the
communications centre. Therefore, the hiring of these workers does not fall within
the scope of public acts of a sovereign state, as a state may not rely on the ultimate
purpose of an activity to qualify its acts. The employment of maintenance workers
with very restricted access to a secure site is an activity in which private parties
could engage. Therefore, the hiring of these workers falls into the category of a
Who is entitled to state immunity in the context of non-commercial activities?

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Mellenger v. N.B. Development Corporation (1971 Eng. C.A.) [306]

Province of N.B. Is a sovereign state which can claim sovereignty. The N.B.D.C.
Can only claim this immunity if it is found to be part-and-parcel of the
government. Look to the incorporating statute. The words "constituted on
behalf of Her Majesty in right of N.B." are an express indication that the
corporation is to act on behalf of the government. On this ground, the
corporation is entitled to immunity.
Apart from the statute, the functions of the corporation, as carried out in
practice, show that it is carrying out the policy of the government. It is its alter
In Ferranti-Packard Ltd. v. Cushman Rentals Ltd. (1980 Ont. C.A.), the New
York State Thruway was denied immunity in the Ontario Courts on account of its
independence in etablishing its policies and executing its responsibilities. On this
basis, even the courts might not be regarded as governmental organs. [307 N1]
Diplomatic and Consular Immunities [312]
Functional Theory that diplomats ought to be at liberty to devote themselves to the
service of their state. This theory is affirmed by the Vienna Convention (below) in its
preamble as the purpose of the privileges and immunities.
Second Theory that diplomats owe no allegiance to the receiving state and
consequently are not subject to its laws. [312]
Vienna Convention on Diplomatic Relations [see p.65 supp.]
Foreign Missions and International Organizations Act (S.C. 1991) gives effect
to Arts. 1, 22-24 and 27-40 of this Convention [313] It implements the treaty.
Criminal and civil immunity.
Immunity may be waived (usually as a PR gesture)
Immunity extended to families and members of household
- Limited extension to service staff not from host state
- Service staff from host state only get immunity in official capacity.
What is a Diplomat?
These are people officially accredited to serve in another country to represent their
country for a temporary period. Diplomats are sent by their home country to
represent them in political discourse with the host country. Consuls are sent by a
country to represent individuals of the sending country in the host country. Consul
officials have fewer privileges of immunity.
There are clearer rules regarding diplomatic immunity than with state
immunity.
Requirements of the host state
To maintain the premises of the embassy and residences as inviolable.
Diplomats are protected from execution, arrest, criminal prosecution, no taxes, no
property taxes on embassy, no customs duty and freedom of movement within the
host state. There is some flexibility to this if one country restricts the activity of
your diplomats, you can reciprocate on their diplomats.
The UN is also immune, as well as its representatives.

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Iran re US Embassy
Facts: When the revolution occurred in 1978-9, students overran the US embassy
and took the staff hostage. The government was not involved they said it was
the spontaneous reaction of the students.
Held: The ICJ said that Iran was responsible because they failed to protect the
staff and appeared to support some of the individuals who took them hostage.

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NATIONALITY
Each state has the right to determine its own rules for conferring nationality. In some
circumstances, nationality is not the same as citizenship, but for the most part, these
are interchangeable terms. Sometimes, nationals are not awarded the full range of
rights e.g. Jews in Europe in the 40s, Blacks in South Africa during apartheid.
In Canada, the requirements for obtaining citizenship are contained in the Citizenship
Act (p.390). Citizenship is granted to people
1. being born in Canada (NB exception to children of diplomats who are born in
Canada)
2. being born to a parent who is a Canadian citizen
3. who go through the process of naturalisation.
Note that marrying a Canadian citizen is not in itself grounds for becoming a citizen
(since 1947). A passport is usually evidence of citizenship or nationality but it does
not create citizenship/nationality.
Losing ones nationality
One can lose nationality. The criteria are determined by the rules of individual states.
In Canada, there are 3 ways to lose nationality:
1. Renounce it under s.8 (p.294). If you become a citizen of another state, and you
live outside of Canada and are over 18, you can renounce your citizenship. Also,
some states do not allow dual citizenship and might require you to renounce your
Canadian citizenship.
2. If your citizenship lapses e.g. a 3rd generation Canadian born outside Canada has
to maintain substantial ties to Canada
3. If you obtained your citizenship by fraud (see s.9), your citizenship could be
revoked e.g. Nazi war criminals who lied about their pasts and obtained Canadian
citizenship.
Statelessness
If you dont have citizenship of any country, you are stateless e.g. the Thakrah case,
when the person was evicted from Uganda and he didnt really have British
citizenship as well because of the graded passport system. As a practical matter,
states take people in as refugees (see p.357). There are treaty rgimes to tackle
statelessness.
Implication of Citizenship
If state B mistreats a national of state A, state A might then become a plaintiff in an
international claim against state B. Therefore the question of nationality becomes
important. State A does not have to take the claim but may choose to espouse the
claim of its citizen.
Problems of Dual Citizenship
What is a dual citizenship holder has a problem with one of his countries of
citizenship?

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The Nottebohm Case p.384

Facts: Person born in Germany, obtained citizenship of Liechtenstein (only
stopped long enough to be naturalised). Then he moved to Guatemala and set up
a business, voted, had his family there, had a home but he didnt get citizenship of
Guatemala although his personal attachment was to Guatemala. He fell out with
Guatemala over something and he couldnt get a remedy from the local courts so
he invoked the diplomatic protection of Liechtenstein and Liechtenstein espoused
his case.
Held: The court said that it was not appropriate for Liechtenstein to take up his
case because he had not genuine links with Liechtenstein. He could not invoke
diplomatic protection of the country of which he was a citizen in name only.
Besides, he was trying to have a case against a country in which he was living as a
de facto citizen.
Summary: Need nationality and genuine link. Problems in defining genuine link
See p. 389 Flegenheimer. If a person has dual citizenship, refer to articles 4 and 5
under the Hague Convention of Conflict of Nationality Laws (p.393).
Nationality of a Corporation p.399
The criteria for determining nationality of a corporation are:
1. Place of incorporation (main criteria)
2. Place where shareholders live
3. Country where main offices are and where main business activities are carried out
Barcelona Traction Case p.400
Facts: A corporation was incorporated in Canada in 1911 by a Belgian corporation. In
1911, Canada was a tax haven. The corporation carried out its main activities in Spain
but the headoffice was in Canada and the shareholders were Belgian. The company
went bankrupt and claimed to have had pressure by the Spanish government contrary
to international law. So they invoked the diplomatic protection from Belgium against
Spain for harm against Belgian nationals.
ICJ ruling: Belgium had no standing because a corporations nationality is the state
where the corporation is located. To avoid confusions with international corporations, it
did not matter if there was a genuine link between the corporation and the place of
incorporation. Canada decided not to get involved on behalf of the corporation so
Spain was able to escape liability under international law.
Exceptions to the above rule:
The states where the shareholders are nationals may bring claims if:
the company no longer exists
the state of incorporation is unable to help because it does not maintain
diplomatic relations with the other state or does not recognise the other state
the state of incorporation has caused the problem
there is a treaty between the states which allows for certain claims from one
country towards another (see p.409 Elettronica Sicula)
the interests of the shareholders are clearly separate from the interests of the
corporation itself.
So there is a tradeoff if you are looking for tax havens when setting up subsidiaries
because subsidiaries of corporations have the nationality of the corporation itself. So
if there a problem a subsidiary corporation may give be giving up some amount of
diplomatic protection from the country in which it is situated. Therefore, it is
important to have the backing of the home government since if a corporation is set

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up in another place, only the country of nationality can bring claim. But if the
shareholders are actually somewhere else (i.e. have different nationality from the
state of incorporation) , the state of incorporation might not be able to show material
harm against itself.
Nationality of Ships and Aircraft
Ships and aircraft have the nationality of the state in which they are registered.
Registration is required by international aircraft and maritime law. If the ship is not
registered, it is stateless ad therefore has no diplomatic protection from anyone. A
ship or plane registered in Canada is considered Canadian territory for people born on
them for purposes of obtaining Canadian citizenship by birth.
Im Alone Case p. 691
Facts: Ship was registered in Canada but owners were American. The ship was
involved in rum running during US prohibition. US customs officials sunk the ship on
the high seas. Canada, as the state of nationality of the ship pressed a claim against
the US for damages.
Held: The tribunal said that the ship did have Canadian nationality but there were
not Canadian nationals that were hurt only Americans. So there would be no
financial compensation, just a symbolic declaration.

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STATE JURISDICTION OVER PERSONS [423]

One of the attributes of sovereignty employed by a state is that it is entitled to
impose laws and obligations on people. A state can engage in administrative action
invoking certain people. A state, through its courts can take judicial action against
people and through its police force, can arrest and incarcerate people. One question
under international law is what are the limits of state jurisdiction/action over people?
When does one state trespass over the sovereignty of another state when dealing
with their people?
Subject Matter Jurisdiction [424]
Scope of Jurisdiction [424]
Since a state has sovereign authority within its borders, its power to legislate cannot
be denied. However, a state may not legislate in violation of its international
obligations without being liable under the principles of state responsibility. Has a
state exceeded its jurisdiction in dealing with citizens of another state? E.g. the US
with the Helms-Burton Act property was taken from US citizens in Cuba. People who
took the property can be sued wherever they are. Is this exceeding jurisdiction?
Another example would be Spain trying to prosecute Pinochet for crimes committed
outside of Spain and some things which were not even against Spanish citizens. So
does Britain have the right to extradite him to Spain?
No universal objection if a state wants to exercise jurisdiction over its own
nationals activities within its own territory
No problem according to customary international law if a state wants to exercise
jurisdiction over foreigners within its own territory (subject to state or diplomatic
immunity
The problems arise when a state seeks to extend its jurisdiction over activities of
their nationals beyond the state territory or
when a state seeks to extend its jurisdiction over activities of foreigners outside
its own territory e.g. Canada against the Spanish fishing trawler
Civil Jurisdiction [424]
Customary and conventional law do not set down any general rules placing
restrictions on the jurisdiction of domestic courts in civil matters. The exceptions are
in the areas of state and diplomatic immunities. The only other standard imposed by
IL is that a state must maintain an adequate system of adjudication in civil cases and
must apply the rules of private IL where appropriate. Failure to do so may incur state
responsibility for the mistreatment of an alien, or for the breach of his human rights.
[424-425].
Extra-territorial exercises of jurisdiction: [see Helms-Burton Act]
Most cases have to do with criminal jurisdiction, but it is possible to arise in tort
cases.
Criminal Jurisdiction
The same procedures might apply in civil proceedings. There is an interface between
Public International Law and Private International Law. E.g. if someone is suing
someone in a contract that is exterritorial, the court needs to have a connection
between the states (if you want to serve a defendant outside your jurisdiction. You
can do this automatically if it is about something contained within the state e.g.
property. If no rules apply, you can get permission from the court doctrine of
forum conveniens. This private international law is reflective of public international

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law the court is limited in jurisdiction between certain civil disputes you need a
significant connection with the forum.
What does International law say regarding the jurisdiction of a person especially in
the criminal field? The basic rule is to be found in the Steamship Lotus Case:
The Steamship Lotus: France v. Turkey (1927, P.C.I.J.) [426]

Facts: Collision at sea between two ships. A French ship hit a Turkish ship, killing
someone onboard. Turkey attempted to assert criminal jurisdiction over the French
captain. France claimed that Turkey did not have jurisdiction.
The first and foremost restriction imposed by IL upon a State is that, failing the
existence of a permissive rule to the contrary, arising from international custom
or convention, it may not exercise its power in any form in the territory of
another State. Jurisdiction is territorial. [427]
Apart from certain special cases defined by IL, vessels on the high seas are
subject to no authority except that of the State whose flag they fly. In virtue of
the principle of the freedom of the seas (ie. no territorial sovereignty), no State
may exercise any kind of jurisdiction over foreign vessels upon the high seas.
By virtue of this principle, a ship is placed in the same position as national
territory... If follows that what occurs on board a vessel on the high seas must
be regarded as if it occurred on the territory of the State whose flag the ship
flies. There is no rule of IL prohibiting the State to which the ship on which the
effects of the offence have taken place belongs, from regarding the offence as
having been committed in its territory and prosecuting accordingly [429].
There is no rule of IL re: collision cases to the effect that Criminal proceedings
are exclusively the jurisdiction of the State whose flag is flown. The act in
question had its origins on one ship and its effects were felt on the other. These
elements are legally inseparable. Each state should be able to exercise
jurisdiction concurrently in respect of the incident as a whole. [430]
Basic rule:
(1) one state may not exercise jurisdiction in the territory of another (this is an
encroachment on sovereignty
(2) unless there is some prohibition to the contrary, a state is free to exercise
jurisdiction over any matter outside its territory (subject to (1))
You can reconcile the rules if the 1st state has consented to action. However, one
can draw a distinction between 2 types of jurisdiction: (1) law making way
(proscribing) where you make laws applicable in certain circumstances; and (2)
duty of the state t enforce the law. Under international law, (1) is okay but not (2)
Joyce v. DPP (p.433 note 26) (1946, H.L.) Treason
Facts: Deals with "allegiance". Mr. Joyce during WWII went to Germany and made
propaganda against Britain. After the war, he was arrested in Britain, tried and
executed for treason.
Issue: Was this excessive jurisdiction?
Held: Britain claimed jurisdiction to write laws where when someone did something
like this, it was a crime in Britain. Britain had a law prohibiting nationals from going
elsewhere to "help the enemy". There was no carte blanche to arrest though. It
cannot be enforced without the consent of the other country. (ie. you can't send in
agents to smuggle a perpetrator back to you.) Now, we have extradition

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How does International Law sanction jurisdiction?

As example of how the basic rules can be reconciled, a state may have consented to
another's jurisdiction within its territory. It may also apply to events on the high seas,
etc.
6 categories under which a state can claim jurisdiction:
(1) territorial principle
(2) nationality principle
(3) passive personality principle
(4) universal principle
(5) protective principle
(6) by agreement
Terrotorial Principle [431]
Universally accepted by international custom that a state has jurisdiction within
its own territory
Canada operates according to this principle e.g. Section 6(2) of the Criminal Code
provides that "Subject to this Act or any Act of Parliament, no person shall be
convicted ... Of an offence committed outside Canada." The state has complete
jurisdiction over matters occurring within its territory, including land, subsoil,
airspace, territorial sea, internal waters, registered ship and aircraft.
Sections 465(3) and (4) make it an offence to commit an act outside Canada that
is an offence in that place, and to conspire outside Canada to commit an offence
in Canada [439 N1].
(a) Objective Territoriality
Jurisdiction over offences completed within your territory [see Lotus, supra] or
having effects and consequences in your territory.
Rivard v. U.S. (U.S.C.A.) 1976
Facts: A Canadian organized smuggling of drugs into the U.S. Federal Court. He
carried out all the actions in Canada but the U.S. had jurisdiction because these acts
had deleterious effects within the U.S. Canada agreed to arrest the individual. He
was extradited and tried.
Held: The US had
(b) Subjective Territoriality

Jurisdiction over offences originating within the territory.
Libman v. The Queen (1985 S.C.C.) [435]
An American organized fraudulent telemarketing scheme in Canada. Canada had
jurisdiction.
Section 6(2) of the CCC (territorial doctrine) has never been rigidly applied in the
courts. This would provide an easy escape for international criminals.
In determining whether Canada has jurisdiction for an international crime, "we
must... Take into account all relevant facts that take place in Canada that may
legitimately give this country an interest in prosecuting the offence. One must
then consider whether there is anything in those facts that offends international
comity." [437]
All that is necessary to make an offence subject to the jurisdiction of our courts is
that a "significant portion of the activities constituting the offence took place in
Canada... It is sufficient that there be a 'real and substantial link' between the
offence and Canada, a test well known in [IL]." This does not require legislation. It
is in fact the test that best reconciles all the cases[438].
"Comity" means "kindly and considerate behaviour towards each other." Nothing
in the requirements of international comity dictates that Canada refrain from

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(c) The injured forum theory the state has felt detrimental effects takes
jurisdiction over the offence.
(d) Lord Diplock Approach in Treact v D.P.P a state may take jurisdiction when
any element of a crime takes place within territory
(e) Even if you cannot say where the crime took place, you have jurisdiction where
there is a reasonable and legitimate state interest in the activity. The state claims an
abstract sense of territory e.g. Spanish fishing trawler there was a genuine interest
in Canadian economy.
NB: The distinction between jurisdiction to proscribe and enforce a law is important.
To avoid international liability, it is necessary to show that you have a substantial
right.
There are often multiple arguments over territoriality e.g. in the Rivard case, if he
were exporting drugs to Colombia, to assert jurisdiction, the US could claim objective
territoriality, Colombia could claim subjective territoriality, and Canada might also be
argue that it had jurisdiction because an important component of the crime took
place in Canada.
Nationality Principle [432]
Assert jurisdiction over any crimes committed by nationals of state, regardless of
location of the activity that is the subject of the legislation. Canada does not use this
principle as evidenced by s. 6 of the Criminal Code. War crimes, crimes against
humanity and international terrorism are rare exceptions to this. (p.432) The
rationale for this is that you prefer to have your nationals tried by your own standards
of justice perhaps stemming from a traditional mistrust of the justice system of
other countries.
Passive Personality Principle [432]
Instead of focussing on the nationality of the perpetrator, focuses on nationality of
victim. Assertion of jurisdiction over cases where any national is harmed, eg. Salmon
Rushdi case ("crime against Islam"). This principle is thought to be too confusing, too
promoting of multiple jurisdictions. Its standing in customary international law is
unclear but it has been embraced in certain kinds of offences, usually when there are
multilateral treaties e.g. hijacking, the Lockerby bombing of the PanAm jet by Iranian
nationals. The plane landed in Scotland, and the offence took place above the UK.
US nationals were killed. So each state was contesting jurisdiction. There was a
treaty which agreed that there would be a court in Holland that would apply Scottish
law.
Canada has rules which may apply with respect to certain classes of people
e.g. if diplomats are hurt or killed, Canada has jurisdiction.
Protective Principle [433]
Assert jurisdiction over actions of any person which are prejudicial to the vital interest
of the state viz. state security or national interests. eg. Eichmann (infra) set up home
in Argentina. Israeli agents kidnapped him and brought him back for trial. Another
example would be the Joyce case (supra) this could have been one of the factors
that the UK could have used to justify jurisdiction.
This principle also tends to generate concurrent jurisdiction in more than one place
and leads to a kind of debate e.g. Pinochet. The other problematic point is What is a
vital interest? The US during the Reagan administration had a lot of heat on the

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Soviet Bloc which probably dissolved as a result of the Reagan administrations

policies. For example. The US promulgated an Executive Order in 1982 banning any
US corporation or subsidiary, regardless of their location from selling oil and gas to
the USSR (for one reason) to promote the democratisation of Poland. So sanctions
were imposed on the companies that did export oil. On what basis could you enforce
this on companies subsidiaries incorporated in other countries? The EC criticized
the order, alleging sweeping extensions of US jurisdiction unlawful under IL.
Unacceptable under IL because of extra-territorial aspects.
Territoriality principle - measures clearly infringe this principle since US purports

to regulate activities of companies in the E.C. Not under US territorial
competence.
Nationality principle - cannot assert jurisdiction over foreign companies because
they have a title "link" to the U.S.
Traditional criteria for determining nationality of companies confirmed by long
practice and by numerous international instruments:
(1) place of incorporation
(2) place of registered office [495]
Goods & technology have no nationality and there are no known rules under IL for
using goods or technology situated abroad as basis of establishing jurisdiction
over persons controlling them [496].
Compagnie Europenne des Ptroles S.A. v. Sensor Nederland B.V. (1983
Distr. Ct. The Hague) [497]
A French Co. made contract with a Dutch Co. re construction of Soviet pipeline. S
tried to back out because of the U.S. Trade embargo (above).
In general it is not permissible for a State to exercise jurisdiction over acts
performed outside its borders. Exceptions include "nationality" and "protection"
principles ("universality" principle N/A)
The US jurisdiction rule would not appear to be justified by the nationality
principle in so far as that rule brings within its scope companies of other than US
nationality [497].
Under protection principle, it is permissible for a state to exercise jurisdiction
over acts that jeopardize the security or credit worthiness of that State or other
State interests. Such other State interests do not include the foreign policy
interest that the US measure seeks to protect. Therefore protection principle N/A.
Sensors reliance on the US embargo fails.
Rejected
all 6 principles.
Universal
Principle
[434]
Widely accepted that any state has jurisdiction over crimes that are so
destructive of natural order that they threaten global existence i.e. crimes against
the international order. eg. Hostage taking, hijacking, piracy, war crimes,
genocide, terrorism. (marginal cases include drug trafficking)
Used for serious crimes where international nature of offence justifies universal
repression.
Useful in offences covered by multilateral treaties where states to whom the other
bases of jurisdiction are applicable, are unwilling or unable to prosecute or
extradite.
Application is based on presence of accused on the territory of the forum state.

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Enables extradition or submission to a state's own authorities for the purposes of

prosecution, to be filled.
Canada uses this basis in a limited fashion in the CCC [434]
Eichmann Case (1961 Dist. Ct. Jerusalem) [439 N3]
Facts: Eichmann's war crimes and crimes against humanity occurred at a time
when State of Israel did not exist. Crimes were committed in European states
against their citizens, and Eichmann too was a foreigner.
Held: Israel could not exercise jurisdiction on the territorial or nationality bases,
nor on a strict interpretation of the passive personality principle. The court based
its jurisdiction on the universal principle, in that war criminals were enemies of
humankind (hostis humanis), and secondly on the protective and passive
personality principles.
The protective principle is used to protect a states vital interests. There must be a
linking point between the crime and the state. The "linking point" in this case was
that the crimes were committed against Jews, although no state of Israel existed.
Court concluded that the connection between the State of Israel and the Jewish
Demjanjuk v. Petrovsky (1985 Fed. 6Th Cir.) [440 N4]

Demjanjuk was extradited by US to Israel to be prosecuted for crimes against
humanity under the same statute as Eichmann. Jurisdictional basis upon which
extradition was granted was universal principle.
By Agreement [434] the general category (either multilateral or bilateral)
A state may exercise jurisdiction e.g. NATO agreement which grants rights of entry
into Canada for US military personnel and permits American laws and courts to
operate inside Canada on US military bases. Agreement also makes special
arrangements for civil claims by Canadians against visiting US personnel. [434]
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation [441-2]
Article 4: Convention applies beyond outer limit of territorial sea, or where
offender found in territory of another party State.
Article 5: Each party shall make offences under Art.3 punishable by appropriate
penalties.
Article 6: State shall take necessary measures to establish its jurisdiction when
offence is committed against or on board a ship flying its flag at the time of
offence, in its territory, or by its national. State may also establish its own
jurisdiction where offence is committed by stateless person resident in that state,
where a national of the state is seized, or where offence is committed to attempt
to compel the State to do, or not to do, something. Each state shall take
measures to establish its jurisdiction where offender is in its territory and it does
not extradite him to another state with jurisdiction. Treaty does not exclude
criminal jurisdiction exercised in accordance with IL.
So, the point of jurisdiction for public international law is to determine the limits that
a state has in exercising its control. If a state exceeds the limits, it incurs
international liability on other states on whose sovereignty/jurisdiction it is said to be
trespassing. Note that the limits in the theories have fuzzy lines. We are not sure of
the concepts and leave it to the international courts to tidy them up. Often, these
concepts are just bases for an argument which is yet to be resolved.

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Jurisdiction Over the Person [445]

What about countries doing something positive to assert jurisdiction e.g. if a state
sends agents to another country to arrest a person. This is universally regarded as
breaching general principles of sovereignty and international law. But once the
person is brought back home, there is a question of whether a breach in international
law invalidate/undermine the proceedings. There are 2 views:
1. Who cares: if the guy was guilty, we will punish him regardless of a technical
breach
2. The prevailing view is that if the criminal was denied the rights of due process,
the person is set free regardless of actual guilt because of a violation of their
rights in the arrest process. The former view was preferred in the US and Canada
but this has now been changed (See article on P.461). Also, with the Charter, the
view has changed.
R v. Cook SCC
Facts: Cook was arrested in the US by American authorities for a crime committed
in Canada. He confessed to Canadian authorities in the US but only because of
undue pressure by them which was contrary to the Charter.
Held: He is entitled to Charter protection even if not in Canada. The Charter
applies to Canadian agents abroad. No due process.
It is a breach of international law for one state to trespass on the jurisdiction of
another. particularly where law enforcement is involved (ie. secret agent arrests etc. overreaching jurisdiction). Policy goals of law & order vs. individual rights & due
process must be weighed.
1. Crimes Against Peace and Security [446]
I.L.C. Draft Code of Crimes Against the Peace and Security of Mankind
(1991) [452]
Article 6 - Obligation to try or extradite
1. A State in whose territory an individual alleged to have committed a crime against
the peace and security of mankind shall either try or extradite him.
2. If extradition is requested by several States, special consideration will be given to
the request of the State in whose territory the crime was committed.
3. Paras 1. and 2. Do not prejudice the establishment and jurisdiction of an
international criminal court. [453]
United States v. Toscanino (1974 U.S.C.A.) [462]
Facts: US drug enforcement agents go to Uruguay and kidnap the defendant and
extract a confession from him by torture. He was brought back to the US, tried and
prosecuted.
Held: Due process obliges a criminal court to divest itself of jurisdiction over an
accused whose presence has been obtained as the result of the government's
deliberate, unnecessary and unreasonable invasion of his constitutional rights [464].
At no time during the government's seizure of T did it ever attempt to
accomplish its goal through any lawful channels. From start to finish the government
unlawfully, willingly and deliberately embarked upon a brazenly criminal scheme
violating the laws of three separate countries [463].
That international kidnappings violate the UNC was settled as a result of the S.C.
Debates following the illegal kidnapping of Eichmann by Israeli "volunteer" groups.
Long standing principle of IL that abductions by one state of persons located within
the territory of another violate the territorial sovereignty of the second state and are
redressable by the return of the person kidnapped [465].

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2. Excess of Jurisdiction [460]
United States v. Alvarez-Machain (1992 U.S.S.C.) [466]

Facts: American Agents in Mxico abducted, drugged and smuggled the defendant
to the US before the trial. There was an extradition treaty in this case (and the
Toscanino case) but the US chose not to exercise it.
Held:
A criminal was abducted to the US from a nation with which it has an
extradition treaty does not thereby acquire a defense to the jurisdiction of US
courts. I.e. for domestic law purposes, an extradition treaty does not preclude
abduction even thought the abduction was a shocking violation of international
law, the prosecution can continue.
There was an international outcry, especially in Canada. Their view was that in
the absence of an extradition treaty, nations are under no obligation to
surrender those in their country to foreign authorities for prosecution...
Extradition treaties exist so as to impose mutual obligations to surrender
individuals in certain defined sets of circumstances, following established
procedures.
History of negotiation and practice under the treaty fails to show that
abductions outside the treaty constitute a violation thereof.
Language of the treaty, in context of its history, does not support the
proposition that the treaty prohibits abductions outside its terms [467].
To infer from this treaty and its terms that it prohibits all means of gaining the
presence of an individual outside of its terms goes beyond established
precedent and practice.
Although the abduction was "shocking"... We conclude that it was not in
violation of the treaty, and did not prohibit trial in a US court for violations of US
criminal laws.
DISSENT: The manifest scope and object of the treaty itself... Plainly imply a
mutual undertaking to respect the territorial integrity of the other contracting
party. Confirmed by consideration of the legal context in which the treaty was
negotiated... The Executive may wish to reinterpret the treaty to allow for an
action that it in no way authorizes should not influence this court's
interpretation. Indeed the desire for revenge exerts a kind of hydraulic
pressure... Before which even well settled principles of law will bend... I suspect
most courts throughout the civilized world will be deeply disturbed by this
'monstrous' decision.
Prior to Charter, courts had no problem with these kinds of arrests and prosecutions
[472 N4&5]. No Charter cases have yet had to decide this on constitutional grounds.
The Jaffe Case
Facts: Jaffe was kidnapped in Toronto by two US bounty hunters and was taken
forcibly to Florida to answer outstanding charges of fraud. Canada vigourously
protested to the US that the abduction was a violation of international law and Jaffe
was eventually released. The bounty hunters were subsequently extradited from
the US to Canada and were convicted of the offence.

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It is probable that courts would change their attitude in light of the Charter.
Treaty for Mutual Legal Assistance p.519
Hijacking and Terrorism Treaties p.440
EXTRADITION [472]
Extradition results from agreement between states whereby a fugitive is returned to
place of trial. There must be an agreement between countries with respect t the
specific situation. Extradition can be defined as the giving up of a person by a state
in whose territory he or she is present at the request of another state in whose
jurisdiction that person is accused of having committed or has been convicted of a
crime. Extradition protects sovereignty of states and prevents persons escaping
justice.
Can theoretically be carried out based on treaty or reciprocity. Treaties typically
set out a he crimes / offences with which an accused must be charged (warrant
outstanding) or convicted, procedures whereby states would request other states
for handing over, system safeguards, etc. This usually requires going through
diplomatic channels e.g. start at the Canadian Embassy who would notify the
Department of External Affairs who would notify the Department of Justice, etc.
No duty to extradite where no treaty. Canada does not grant extradition in
absence of treaty.
Canada has treaties with approx. 40 countries, including Germany, France,
Greece, Hungary, Israel, Mexico, Nicaragua, Switzerland, Tonga and USA.
Treaties create mutual obligations to return accused or convicted persons.
I.
Domestic Legislation [473]

Purpose of Canadian Extradition Act is to ensure domestic law conformity with
external obligations. New Act June 17, 1999. For the purposes of this course,
you only need to know the general detail not the legislative process.
Must be read so as to provide for execution of treaties
Treaty prevails where inconsistent.
Covers all extradition treaties.
If crime is listed in treaty, but not Act, still extraditable.
Regulation of procedure is left to domestic law of state where accused is present.
EXPLANATION
OF THE EXTRADITION ACT

Extracts from the Act covered in class:
Scenario: If a foreign state requires a person who is in Canada this is the primary
subject of the Act.
Section 3: This contains a statement of the general principles regarding extradition

from Canada.
Extraditable Conduct
General principle
3. (1) A person may be extradited from Canada in accordance with this Act and a
relevant extradition agreement on the request of an extradition partner for the
purpose of prosecuting the person or imposing a sentence on - or enforcing a
sentence imposed on - the person if
(a) Subject to a relevant extradition agreement, the offence in respect of
which the extradition is requested is punishable by the extradition partner,
by imprisoning or otherwise depriving the person of their liberty for a
maximum term of two years or more, or by a more severe punishment;

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and
(b) The conduct of the person, had it occurred in Canada, would have
constituted an offence that is punishable in Canada,
(i) in the case of a request based on a specific agreement, by
imprisonment for a maximum term of five years or more, or by a
more severe punishment, and
(ii) in any other case, by imprisonment for a maximum term of two
years or more, or by a more severe punishment, subject to a
relevant extradition agreement.
Conduct determinative
(2) For greater certainty, it is not relevant whether the conduct referred to in
subsection (1) is named, defined or characterized by the extradition partner in the
same way as it is in Canada.
Extradition of a person who has been sentenced
(3) Subject to a relevant extradition agreement, the extradition of a person who
has been sentenced to imprisonment or another deprivation of liberty may only be
granted if the portion of the term remaining is at least six months long or a more
severe punishment remains to be carried out.
S.C. 1999, c. 18, s. 3, in force June 17, 1999 (R.A.).
Section 5 : Jurisdiction
5. A person may be extradited
(a) Whether or not the conduct on which the extradition partner bases its
request occurred in the territory over which it has jurisdiction; and
(b) Whether or not Canada could exercise jurisdiction in similar
circumstances.
Section 6: Retrospectivity
6. Subject to a relevant extradition agreement, extradition may be granted under
this Act whether the conduct or conviction in respect of which the extradition is
requested occurred before or after this Act or the relevant extradition agreement
or specific agreement came into force.
Minister's Power to Receive Requests
Request to go to Minister
11. (1) A request by an extradition partner for the provisional arrest or extradition
of a person shall be made to the Minister.
Provisional arrest request to go to
Minister
(2) A request by an extradition partner for the provisional arrest of a person may
also be made to the Minister through Interpol.
Warrant for Provisional Arrest
Minister's approval of request for
provisional arrest
12. The Minister may, after receiving a request by an extradition partner for the
provisional arrest of a person, authorize the Attorney General to apply for a
provisional arrest warrant, if the Minister is satisfied that
(a) the offence in respect of which the provisional arrest is requested is
punishable in accordance with paragraph 3(1)(a); and
(b) the extradition partner will make a request for the extradition of the
person.

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Provisional arrest warrant
13. (1) A judge may, on ex parte application of the Attorney General, issue a
warrant for the provisional arrest of a person, if satisfied that there are reasonable
grounds to believe that
(a) it is necessary in the public interest to arrest the person, including to
prevent the person from escaping or committing an offence;
(b) the person is ordinarily resident in Canada, is in Canada or is on the way
to Canada; and
(c) a warrant for the person's arrest or an order of a similar nature has been
issued or the person has been convicted.
Contents of the warrant
(2) A provisional arrest warrant must
(a) name or describe the person to be arrested;
(b) set out briefly the offence in respect of which the provisional arrest was
requested; and
(c) order that the person be arrested without delay and brought before the
judge who issued the warrant or before another judge in Canada.
Execution throughout Canada
(3) A provisional arrest warrant may be executed anywhere in Canada without
being endorsed.
Discharge if no proceedings
14. (1) A person who has been provisionally arrested, whether detained or
released on judicial interim release, must be discharged
(a) when the Minister notifies the court that an authority to proceed will not
be issued under section 15;
(b) if the provisional arrest was made pursuant to a request made under an
extradition agreement that contains a period within which a request for
extradition must be made and the supporting documents provided,
(i) When the period has expired and the extradition partner has not
made the request or provided the documents, or
(ii) When the request for extradition has been made and the documents
provided within the period but the Minister has not issued an
authority to proceed before the expiry of 30 days after the expiry of
that period; or
(c) if the provisional arrest was not made pursuant to a request made under
an extradition agreement or was made pursuant to an extradition
agreement that does not contain a period within which a request for
extradition must be made and the supporting documents provided,
(i) When 60 days have expired after the provisional arrest and the
extradition partner has not made the request or provided the
documents, or
(ii) When the request for extradition has been made and the documents
provided within 60 days but the Minister has not issued an authority
to proceed before the expiry of 30 additional days.
Extension
(2) A judge may, on application of the Attorney General, extend a period referred
to in subsection (1).
Release of person

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(3) In extending a period under subsection (2), the judge may also grant the
person judicial interim release or vary the conditions of their judicial interim release.
Authority to Proceed
Minister's power to issue
15. (1) The Minister may, after receiving a request for extradition and being
satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met
in respect of one or more offences mentioned in the request, issue an authority to
proceed that authorizes the Attorney General to seek, on behalf of the extradition
partner, an order of a court for the committal of the person under section 29.
Competing requests
(2) If requests from two or more extradition partners are received by the Minister
for the extradition of a person, the Minister shall determine the order in which the
requests will be authorized to proceed.
Contents of authority to proceed
(3) The authority to proceed must contain
(a) the name or description of the person whose extradition is sought;
(b) the name of the extradition partner; and
(c) the name of the offence or offences under Canadian law that correspond
to the alleged conduct of the person or the conduct in respect of which the
person was convicted, as long as one of the offences would be punishable
in accordance with paragraph 3(1)(b).
Arrest or Summons Following Authority to Proceed
Warrant of arrest or summons
16. (1) The Attorney General may, after the Minister issues an authority to
proceed, apply ex parte to a judge in the province in which the Attorney General
believes the person is or to which the person is on their way, or was last known to be,
for the issuance of a summons to the person or a warrant for the arrest of the person.
When provisionally arrested
(2) If the person has been arrested pursuant to a provisional arrest warrant issued
under section 13, the Attorney General need not apply for a summons or warrant
under subsection (1).
Issuance of summons or warrant of arrest
(3) The judge to whom an application is made shall issue a summons to the
person, or a warrant for the arrest of the person, in accordance with subsection
507(4) of the Criminal Code, with any modifications that the circumstances require.
Execution throughout Canada
(4) A warrant that is issued under this section may be executed, and a summons
issued under this section may be served, anywhere in Canada without being
endorsed.
Date of hearing - summons
(5) A summons that is issued under this section must
(a) set a date for the appearance of the person before a judge that is not later
than 15 days after its issuance; and
(b) require the person to appear at a time and place stated in it for the
purposes of the Identification of Criminals Act.
Effect of appearance
(6) A person appearing as required by subsection (5) is considered, for the
purposes only of the Identification of Criminals Act, to be in lawful custody charged
with an indictable offence.

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Appearance
Appearance
17. (1) A person who is arrested under section 13 or 16 is to be brought before a
judge or a justice within twenty-four hours after the person is arrested, but if no judge
or no justice is available during this time, the person shall be brought before a judge
or a justice as soon as possible.
Appearance before justice
(2) The justice before whom a person is brought under subsection (1) shall order
that the person be detained in custody and brought before a judge.
Evidence
32. (1) Subject to subsection (2), evidence that would otherwise be admissible
under Canadian law shall be admitted as evidence at an extradition hearing. The
following shall also be admitted as evidence, even if it would not otherwise be
admissible under Canadian law:
(a) the contents of the documents contained in the record of the case
certified under subsection 33(3);
(b) the contents of the documents that are submitted in conformity with the
terms of an extradition agreement; and
(c) evidence adduced by the person sought for extradition that is relevant to
the tests set out in subsection 29(1) if the judge considers it reliable.
Exception -- Canadian evidence
(2) Evidence gathered in Canada must satisfy the rules of evidence under
Canadian law in order to be admitted.
Appeal
Appeal
49. A person may appeal against an order of committal - or the Attorney General,
on behalf of the extradition partner, may appeal the discharge of the person or a stay
of proceedings - to the court of appeal of the province in which the order of
committal, the order discharging the person or the order staying the proceedings was
made,
(a) on a ground of appeal that involves a question of law alone;
(b) on a ground of appeal that involves a question of fact or a question of
mixed law and fact, with leave of the court of appeal or a judge of the
court of appeal; or
(c) on a ground of appeal not set out in paragraph (a) or (b) that appears to
the court of appeal to be a sufficient ground of appeal, with leave of the
court of appeal.
Notice of appeal
50. (1) An appellant who proposes to appeal to a court of appeal or to obtain the
leave of that court to appeal must give notice of appeal or notice of the application
for leave to appeal not later than 30 days after the decision of the judge with respect
to the committal or discharge of the person, or the stay of proceedings, as the case
may be, in any manner that may be directed by the rules of court.
Extension of time
(2) The court of appeal or a judge of the court of appeal may, either before or
after the expiry of the 30 days referred to in subsection (1), extend the time within
which notice of appeal or notice of an application for leave to appeal may be given.
Reasons for Refusal

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When order not to be made

44. (1) The Minister shall refuse to make a surrender order if the Minister is
satisfied that
(a) the surrender would be unjust or oppressive having regard to all the
relevant circumstances; or
(b) the request for extradition is made for the purpose of prosecuting or
punishing the person by reason of their race, religion, nationality, ethnic
origin, language, colour, political opinion, sex, sexual orientation, age,
mental or physical disability or status or that the person's position may be
prejudiced for any of those reasons.
When Minister may refuse to make order
(2) The Minister may refuse to make a surrender order if the Minister is satisfied
that the conduct in respect of which the request for extradition is made is punishable
by death under the laws that apply to the extradition partner.
Refusal in extradition agreement
45. (1) The reasons for the refusal of surrender contained in a relevant extradition
agreement, other than a multilateral extradition agreement, or the absence of
reasons for refusal in such an agreement, prevail over sections 46 and 47.
Exception - multilateral extradition
agreement
(2) The reasons for the refusal of surrender contained in a relevant multilateral
extradition agreement prevail over sections 46 and 47 only to the extent of any
inconsistency between either of those sections and those provisions.
When order not to be made
46. (1) The Minister shall refuse to make a surrender order if the Minister is
satisfied that
(a) the prosecution of a person is barred by prescription or limitation under
the law that applies to the extradition partner;
(b) the conduct in respect of which extradition is sought is a military offence
that is not also an offence under criminal law; or
(c) the conduct in respect of which extradition is sought is a political offence
or an offence of a political character.
Restriction
(2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence
mentioned in a multilateral extradition agreement for which Canada, as a party, is
obliged to extradite the person or submit the matter to its appropriate authority for
prosecution does not constitute a political offence or an offence of a political
character. The following conduct also does not constitute a political offence or an
offence of a political character:
(a) murder or manslaughter;
(b) inflicting serious bodily harm;
(c) sexual assault;
(d) kidnapping, abduction, hostage-taking or extortion;
(e) using explosives, incendiaries, devices or substances in circumstances in
which human life is likely to be endangered or serious bodily harm or
substantial property damage is likely to be caused; and
(f) an attempt or conspiracy to engage in, counselling, aiding or abetting
another person to engage in, or being an accessory after the fact in
relation to, the conduct referred to in any of paragraphs (a) to (e).
Examples of Extradition

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The extradition treaty between Mexico and the U.S. allows a means by which US
criminals can be arrested in Mexico and extradited. This kind of cooperation can be
reached by bilateral treaty, multilateral treaty (which often deal with international
terrorism / hijacking).
The Haig Convention, 1972, gave jurisdiction to assert jurisdiction on crimes
committed on an airplane in / landing in / leased in your state. State must either
prosecute or extradite for prosecution.
Other "extradite or prosecute treaties: see pp. 441-2, 452-3 above. Problem arises
from the reliance on states to adhere to their obligations under these treaties.
There must be a statutory basis for police action under an extradition agreement.
Canada-United States Treaty on Extradition [479]

Article 1
Each Contracting Party agrees to extradite to the other, in the circumstances and
subject to the conditions described in this Treaty, persons found in its territory who
have been charged with, or convicted of, any of the offenses covered by Art. 2 of this
Treaty committed within the territory of the other, or outside thereof under the
conditions specified in Art. 3(2) of this Treaty.
Article 6 - deals with extradition to states dealing with the death penalty
When the offence for which extradition is requested is punishable by death under the
laws of the requesting State and the laws of the requested State do not permit such
punishment for that offense, extradition may be refused unless the requesting State
provides such assurances as the requested State considers sufficient that the death
penalty shall not be imposed, or, if imposed, shall not be executed. [481]
In addition, extradition may be refused because some states refuse to extradite
their own nationals. Canada has taken the position that although to do so prima
facie violates the right to remain in Canada, extradition is a reasonable limit, even
where there is a jurisdictional basis for prosecution in Canada [N2 483]. Recent Case
of a US citizen who was also Israeli by virtue of this parents being born in Israel, who
committed murder and fled to Israel. He was prosecuted in Israel for crimes
committed outside Israel because Israel can prosecute their citizens for crimes
committed anywhere in the world. So he was tried, convicted and sentenced in
Israel. He has a less severe penalty in Israel compared to the US. Now, though, in
Israel, if a person is not a resident, he can be extradited.
In Kindler v. Canada (Minister of Justice) and Reference Re Ng Extradition (Canada),
S.C.C. Extradites to states imposing the death penalty [483 N3].

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STATE RESPONSIBILITY [521]

In domestic law, an individual has legal responsibilities not to infringe the law; if you
do, there are legal consequences criminal and civil law. There is a parallel to this in
international law states are responsible. When a state infringes international law,
they will incur liability as a result.
General Theory of Responsibility [522]
A breach of international law results in liability to the victim state. (Same stages of
inquiry as with domestic tort law.)
Three things must be established:
(1) Identify the elements of tort / substantive obligations giving rise to liability
(2) What is the procedure to be followed to impose consequences on the other state
(3) What remedies will apply
Identifying the substantive obligation
Start with a statement of the general principles. Refer to the Draft Articles
1. General Principles [522]
I.L.C. Draft Articles on State Responsibility, Part I, Articles 1-4, 19 [522] set
up by the UN General Assembly
Article 4 provides that international law, not domestic law, counts. Domestic
laws do not protect from international liability.
The act must also be attributable to the state and not a separate entity.
Just like it torts, "wrongful acts" includes wrongful omissions. E.g. Corfu Channel
Case Albania did not warn Britain that the Corfu Channel was mined. Failure to
do so was an international delict.
Article 19 concept of international criminal law which states can breach. It has
to do with obligations that must be kept for the protection of the international
community like genocide, slavery, pollution, etc. There is a problem because the
general consensus between crimes and delicts are speculative.

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It is suggested that the use of force is justified when a state commits an

international crime, but Article 14 says that it has to be done within the limits of
the UN Charter. So this does not add too much with respect to legal
consequences; it just adds to the political rhetoric. Most often, state
responsibility is international delict an act which is not an international crime is
an international delict. This can happen by breaching a treaty, refusing to give a
state state immunity or granting its diplomats diplomatic immunity, by sending
your agents into another states territory to arrest people, etc. any form of
trespass on state territory, mistreatment of nationals, etc.
There is not always a requirement in international law that there be
intention/negligence. A state can incur liability on the basis of strict liability. E.g.
if the state police gets out of control and beat up people, the fact that the state
didnt order this is irrelevant the state is liable for the actions of state
employees. Another example would be allowing activities which cause pollution
on your land and it affects an adjacent country - a state can be held liable without
proving negligence or intent.
Direct and indirect responsibility

Direct responsibility is when the state itself or one of its organs was guilty of the act
or omission e.g. when a state sends troops or coastguards to another states territory.
An act or omission of a private person causing damage to another state may lead to
the liability of the individual's home state for failing to properly regulate the actions
of its national. E.g. the Jessie Case .
Seizure or Destruction of Private Property
The Jessie, Thomas F. Bayard, and Pescawha [525]

U.S. ship intercepted British sealing vessel, seized the sealing weapons and
detained the vessel. US Captain was not authorised by the US government to
detain the ship but he was acting within his capacity as a US coastguard captain so
the US was held liable because it was their employee who was acting.
Cosmos 954 Claim (Canada v. USSR) p.527
Facts: The USSR government operated a space programme which included
satellites. One of them broke up on re-entry and littered Canada. Canada sought
damages because of nuisance.
Held: The USSR government was held responsible and Canada won.
Indirect Responsibility when a state should have done something to govern people
under its control who did something to harm another state. This is like tort
liability for parents who dont control their children. So even private
corporations managed by the state are included.
E.g. Protection of State Property: the Iran hostage taking case in 1979 where the
students took over the embassy. The Iranian government should have some
more to protect the diplomats. This is indirect responsibility. When it was
later found that the Iranians actually sanctioned the embassy break-in, it
became direct responsibility.
Indirect responsibility: Principle of attribution - can the act of an individual be
attributed to the state. State is responsible for acts of officials and organs while
they're acting within official capacity.

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Transboundary Intrusions
Trial Smelter Case p.530
Facts: Smelter in BC which spewed noxious pollution into Washington state. The US said
that Canada was responsible to control the activities of a private corporation in its
territory. "A state owes at all times a duty to protect other States against injurious acts by
individuals from within its jurisdiction." (Eagleton, Responsibilities of States in
International Law, 1928) [754]
The question raised was Was it reasonable for Canada to impose regulatory control? The
tribunal said yes.
NB this precedent is not often followed because of international diplomacy and political
Attribution
In cases of direct responsibility, it is necessary to show that the state was directly
involved in the wrongful act. So if an individual committed the act, how do we
determine state responsibility? See p.533 the Draft Articles. A state is responsible
for the acts of its organs including individuals acting within their official capacity.
Distinguish between capacity and authority. Even if acting outside his authority, if
the person is acting within his capacity, the state will incur responsibility. (Like
vicarious liability of employer to employee) e.g. Americans in Mxico incited the
anger of the local citizens who attacked them. The troops which the Mexican
government sent to protect them joined in, albeit contrary to their orders. So Mxico
incurred responsibility because they were agents of the state even though they were
acting outside their authority. (Article X).
NB state organs include legislative organs (which pass legislature), judicial organs
(if the court makes an order contrary to international law) or executive action (troops,
police, mercenaries, etc. this is the most common organ involved). It does not
matter if it is a provincial or sub-federal body. E.g. The Jaffe Case The US was
responsible even though it was Florida that acted. Or the Polish Art Treasures Case
(p.531) where Canada was responsible for the actions of the Qubec government
which failed to return art treasure after the end of WWII.
I.L.C., Draft Articles on State Responsibility, Part I, Article 10 [536]
[see text - "even where competence exceeded..."]
It is also possible for one state to perpetrate an offence against another through the
acts of a 3rd state. E.g. It was alleged that the Americans were secretly training
contra rebels when they were against the government in Nicaragua. The ICJ found
that there was not enough evidence to support the allegations but if they were true,
the US would be held liable.
(c) Acts of Private Citizens and Rebels [539]
I.L.C., Draft Articles on State Responsibility, Part I, Article 11, 14, 15
A state cannot incur liability for elements not acting on behalf of the state e.g. the
Boer War. Some British subjects decided to take action against the Boers (the
Jamison Raid). It was argued that Britain should have been held responsible, but
since the elements were part of a rogue group, there was no direct responsibility.
There might have been indirect responsibility because of the state failure to
control its subjects.
No state responsibility for individuals not acting on behalf of the state. Not
responsible for acts of revolutionaries not acting for the government in power.
However, if the revolution is successful and the revolutionaries come to power,
there would be liability.
Responsibility for Injuries to Aliens [540]

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When a person from one state enters another, the visitor owes a temporary
allegiance to the host state, and the host state has a responsibility to your home
state to give you some degree of personal and property protection. E.g the
Nottebohm Case when does a state incur responsibility for treatment of other
nationals?
International Minimum Standard or National Treatment? [541, note 2]
Scope of protection to be afforded:
(a) refrain from discrimination? - some states (esp. Asian) use this as sole rule dont
treat foreigners worse than their own people. This is the standard regarding
confiscation of property
(b) something more is required? - case law suggests so. E.g. in a criminal cases. If
there is lack of due process for example, there should be more than just the standard
of non-discrimination. International law requires a minimum standard for locals and
foreigners , contained in provisions like the Universal Declaration of Human Rights,
Arts. 9-11 [75 supp.]
Some amount of discrimination is permitted e.g. you cant be a lawyer if you are a
foreigner in Ontario, or you cant own newsmedia in Canada if you are not a citizen.
Also, the state has the right to deport foreigners. But arbitrary deportation is
forbidden by international law - see Article 13 of the International Convention on Civil
and Political Rights.
[see Neer Claim, p.541]
See also Chattin case, infra [546]
In states where U.D.H.R. rights are not given to citizens, Neer and Chattin suggest
that
visitors are nevertheless entitled to them.
2. Mistreatment of Aliens [543]
(a) Admission and Expulsion [543]
(b) Detention and Physical Injury [544]
Noyes case Claim

Quintanilla
(referred
[544]
to in Quintanilla) [545]
Facts: It
A was
Mexican
alleged
national
that Panama
was killed
incurred
in custody
stateinresponsibility
Texas and a tribunal
becausesaid
it didnt
that
evidenceenough
provide
surrounding
police the
to protect
death wasnt
foreignconclusive
citizens. but the U.S. was liable to Mxico
because
Held:
State
either
would
the friends
be heldof
tothe
standard
sheriff oforreasonableness.
two custodians acting
It is discretionary
in self-defence
how
might police
many
have inflicted
officers the
you beating
chose toorsend
theyto
were
protect
negligent
foreign
incitizens,
allowingbut
theifperson
the state
to be
exposed
does
nothing
to harm.
at all knowing that foreigners would be harmed, they would incur
liability. The case also raised the issue of whether state was liable for failing to
punish individuals who attack foreigners. If the activity is being condoned, the
state would be responsible (like the Iran Hostage case). Insufficient evidence in this
case.
See also Yeomens case [587] - direct injury by the state. State still held
responsible for actions of its officials acting in official capacity, whether they are
(c) Misadministration of Justice [546]
This is where an alien is subjected to a low-standard justice system

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B.E. Chattin Claim [546]

Facts: Chattin was a US citizen in Mxico who was arrested for embezzlement of
his US employer. The tribunal said that the trial on the embezzlement charge was
sloppy and below international standards and amounted to a bad faith, willfully
neglectful breach of international law. Mere technical oversight not sufficient to
give rise to responsibility. Standard is that akin to the Universal Declaration on
Human Rights. You have to tolerate some differences but not an outrageous denial
of justice.
What is tolerable - examples
An American was arrested for smuggling narcotics into Turkey. He was subject to bad
conditions in jail. The fact that the jail was not up to the standards of an American
jail did not equal an outrageous denial of rights. Another example would be the two
Canadians who were arrested in Brazil for kidnapping and were found guilty and
jailed for 10 years. The appeal court gave them 28 year sentences. The Canadian
government was urged by increasing domestic pressure (as well as the fact that the
sentence was increased) to get involved but Canada did not because the government
was not persuaded that there was a serious misadministration of justice.
3. Misappropriation of Alien Property [548]
This may occur by expropriation, imposition of taxes, imposition of local
management. Any case where host state deprives owner of property.
Starett Housing Corp. v. Iran (p.553, note 8)
Definition of appropriation: it is recognised in international law that measures
taken by a state can interfere with property rights to such an extent that these rights
are rendered so useless that they must be deemed to have been expropriated, even
though the State does not purport to have expropriated them and the legal title to
the property formally remains with the original owner.
(a) Expropriation [548]
Resolution on Permanent Sovereignty over Natural Resources [550]
UNGA resolution 1803 (1962) said that expropriation by state was permitted
provided
it was done for a public utility, national security, or other public purpose (not the
dictator's enrichment). In 1981, in the Libyan-American Oil Case (p.562) the
tribunal said that the public purpose requirement is no longer necessary.
Expropriation must have been consistent with state law.
Expropriation and compensation decisions must not be discriminatory - see B.P. v.
Libya [562, N69]
Must be accompanied by "appropriate compensation"
Later UNGA Resolution 3281 (Charter of Economic Rights and the Resolution re New
Economic Order (1974) provided that:
Every state has sovereignty over its own natural resources
The question of compensation is a matter of the domestic law of the expropriating
state. Maybe expropriation is just obtaining compensation from prior ripping off
of other state.
The US restated the law in 1987 (p.550) saying that it acknowledges the right of a
government to expropriate adding:
The expropriating state must respect existing contracts

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There must be prompt and adequate compensation.

Since those times, there is an argument that the law has changed and the consensus
creating the custom has evaporated. The law now is more unsettled.
(b) Breach of Contract [556]
Texaco v. Libya (p.556)
Is there some International Law standard, or just based on domestic law?
No consensus in resolutions according to that arbitrator
Key difference re compensation: a state can pass a law about expropriation of
property because of sovereignty. Is it compensable? US position on
compensation is that it must be prompt, adequate, effective and nondiscriminating.
In current practise, compensation is usually deferred, if received at all, and is
often discriminatory, but in favour of foreigners (ie. locals receive no
compensation at all for expropriated property.)
Regarding adequacy, some states say that expropriation is compensation for
losses they have suffered in the past. The Americans say that compensation
should be the fair market value. Usually, there is some kind of compromise as to
whether there should be compensation or not. It is usually less than the fair
market value.
Lybian-American Oil Co. case [562]
Is there ever an entitlement to compensation?
Western view is "of course"
Competing view is that "we are only starting to get even by taking this stuff".
(Usually some compensation is forthcoming so as not to deter foreign relations,
etc.)
(c) Investment Protection Arrangements [564]
Because of political developments, there are chances that you can lose your
investment because of confiscation this is a business risk. How can you minimise
the risk?
Try an get a contract between you (a corporation or an individual) and the
host government where they agree not to confiscate your property. This is not
watertight because the government can ignore you and say sue me or change the
law thus abrogating the contract (e.g. of Gadaffi in Libya). So in the contract, you
include what law will govern the contract a choice of law clause. You could have the
clause say that the dispute will be resolved subject to the standards of international
law e.g. Texaco and Libya where the dispute would be resolved under Libyan and
international law. A tribunal was set up the same as a tribunal between states and
the agreement was elevated to a contract under international law. The arbitrator
said that it was not legal for Libya to reneg on the contract. However, perhaps
nowadays, these clauses are not as often used.
You can also speak with your own government (Ministry of Foreign Affairs and
International Trade) to see if the Canadian government will offer you diplomatic
protection and of what sort should there be a dispute. It will depend on the state of
affairs between the countries. Sometimes, it is useful to persuade your country to
enter into a treaty with the other country, or there may be a cover treaty already
existing.

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Canadian Export Development Corporation [564]

Provides a type of insurance against foreign expropriation for new ventures and
transporting Canadian skills to other countries.
3 levels of inquiry re procedure:
You need to identify the rights and obligations, know the procedure and remedies.
You may be able to go to court or a tribunal e.g. the World Trade Court, NAFTA
tribunal, an ad hoc tribunal or other forms of dispute resolution. If the states have
agreed to arbitrate or litigate, here are some rules that apply:
C. Procedural Enforcement Claims [567]
1. Espousal and Nationality of Claims [567]
State asserting the right must espouse the claim. It is open to the state not to afford
this diplomatic protection (see Barcelona Traction). State can only proceed if there
has been injury to its national. These are relatively formal rules which might be
ignored in informal proceedings. Remember it becomes a claim of the state not of
the individual: at the international law level, the state is not claiming that its national
was badly treated but that there was an insult to it.
2. Exhaustion of Local Remedies and Waiver of Claims [568]
All local remedies must have been exhausted. The international tribunal will ask
Why has this not been pursued domestically? International protection is a last
resort and only applies with respect to cases involving mistreatment of individuals or
corporations. If it is a state to state conflict, it is not applicable. Note that local
remedies must be pursued in good faith.
Ambatielos Arbitration [568]
Facts: Contract about ship. Plaintiff complained that the British government did
not honour the contract.
Held: The plaintiff did not pursue the remedy in the British court not a good faith
pursuit.
Obiter Dicta: Finnish case cited: if it is futile to try in local courts, you will not be
disqualified by the international courts. Sometimes, treaties will extinguish the
need to pursue local remedies e.g. NAFTA agreement.
Calvo Clause [570]
Also, sometimes, when a state enters into a contract with a foreign investor, they will
say that local remedies are the only remedies i.e. they agree not to invoke
international diplomatic protection.
North American Dredging Company Claim [571]
It is the home state's right, not the individual's. So Calvo clause is of no effect if the
state presses the claim. The harm is done to the state bringing the action that is the
subject of an international claim so an individual or a corporation cannot override the
states rights to press the grievance using international law. So the existence of a
Calvo clause does not disqualify a state from acting under international law.
3. Canadian Practice [572]

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D. Remedies [575]
If the procedures are satisfied and the tribunal makes a ruling that one of the states
obligations have not been met, what are the remedies?
In tort, you would get damages, injunctions, declarations; in international law,
reparations (restitution, injunctions, specific performance), satisfaction (public
declarations)
1. Reparations
Compared with tort law. There are two forms of reparations money damages or
specific restitution of property
The Lusitania Case (US v. Germany) (p.579)
Facts: The Lusitania was a British passenger liner that was sunk by the Germans. US
nationals were killed. The tribunal asked What was the economic loss suffered by
the dependants? to assess the loss suffered by the claimants. There were also
allowances for non-pecuniary losses e.g. grief, anguish, mental distress. There was
no jurisdiction under international law to provide for punitive damages. Penalties
were awarded by the political process or by specific agreement only compensatory
damages. See also the Chorzow Factory (Indemnity) Case [581].
2. Specific restitution
If property is confiscated, the state wants that property returned. This remedy
restored the claimant to the situation it was in before the claim.
3. Alternative Remedies
Sometimes used you get the satisfaction in knowing you were right there is an
apology from one side. Usually, no monetary consequences. E.g. Rainbow Warrior
case, Rum-running ship case. This is significant in the world of international law
although it doesnt seem like it.
4. Self-Help Remedies
These is the most significant sanctions of international law. It does not require a
tribunal. If you have a dispute and there is no forum available, you can stop living up
to the obligations to the other state if they are breaching obligations to you.
Retortion - you withdraw assistance to a state as a consequence of its breach.
You stop being nice to someone e.g. stop giving them aid, stop supporting their
candidate for international organisations, suspend visits by diplomats
Reprisal - "a breach for a breach" (lex tallionis) you do something which would
otherwise be illegal in retaliation for something which has been done to you. E.g.
in the American Embassy in Iran conflict, the Americans froze Iranian owned
assets in the US without notice this is breach of international law but was
allowed in this case.
Conditions for when self-help is available see I.L.C., Draft Articles on State
Responsibility, Part II, Articles 1-13, 16: (p.577)
Article 10 provides that you can only engage in self-help where all other means
have failed
Cannot breach obligations to other states by your actions
May not involve force not sanctioned by the UN Charter
Cannot involve cutting off diplomatic immunity obligations
Article 9 says that what you do must be proportionate to the breach you are
responding to

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Articles 8 and 9 (p.572) say that counter-measures may or may not relate to what
the other government has done to you i.e. you dont need a like response for a
like sin, as long as it is proportionate.
Sometimes, there are special remedial arrangements imposed by a treaty or by

Security Council Resolutions e.g. p.585 After the Gulf War, a Security Council
resolution set up a fund to determine who could claim for losses incurred during the
invasion of Kuwait. The fund developed by imposing a levy on oil exported from Iraq.

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SUPPLEMENTARY NOTES ON CHAPTER FIVE - INTER-STATE RELATIONS [247]

1. The Practice of Recognition [248]
Claimant to recognition must satisfy the legal criteria for statehood. The recognizing
state is publicly expressing its decision to respect the claimant as an independent
sovereign equal.
Recognition is not limited to states. A recognized government cannot exist in the
absence of a recognized state. Typically, a new state will be recognized and at the
same time the regime that established it will be recognized as the government.
Unconstitutional changes in government, alterations in name, and even the limited
movement of territorial boundaries do not upset the continuation of recognition of
the state itself. [248]
Recognition occurs:
by formal pronouncement, declaration or order in council
less formally, in the course of a speech, by implication, UN vote, etc.
in a piece-meal fashion, no central registry.
Co-attendance at international meetings does not necessarily imply recognition.
Recognition opens up international / diplomatic relations.
Theories of Recognition [249]
Once recognition has been extended the recognizing state has essentially agreed to
the formalization of relations between itself and the recognized state or government.
Constitutive Theory - It is only through the act of recognition that international
personality is conferred. It is recognition that creates the state and gives a new
government legal personality and not the process by which they are factually
formed. States and governments are only established as subjects of IL by the will
of the international community through recognition.
Declaratory / Evidentiary Theory - More in line with reality. Statehood or
governmental authority does exist prior to recognition. Recognition is only a
formal acceptance of an already existing situation.
The correct position probably lies somewhere in between the two. The majority of
opinion supports the declaratory theory. Rules of international law are binding
upon unrecognized states or governments.
Recognition is declaratory in that, for the most part, it is extended to entities that
ful fil the factual qualifications; moreover, it is constitutive, in that it enables
states or governments to be brought out of a vacuum into the world of diplomacy
and international relations as an equal. [250]
2. International Effects of Recognition [257]
Charter of the Organization of American States (1948 am. 1967) [257]
Article 12
The political existence of the State is independent of recognition by other States...
Article 13
Recognition implies that the State granting it accepts the personality of the new
state, with all the rights and duties that IL prescribes for the 2 states.

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Tinoco Arbitration: Great Britain v. Costa Rica (1923) [257]

Facts: In 1914 Tinoco overthrew the government of Costa Rica, called an election
and established a new constitution.
Issue: Was Tinoco the government de facto?
The record revealed no substantial evidence that Tinoco was not in actual
peaceable administration without resistance or conflict or contest by anyone
until shortly before his resignation. Held that the Tinoco government was an
actual sovereign government.
Non-recognition by other nations of a government claiming to be a national
personality is usually appropriate evidence that it has not attained the
independence and control entitling it by IL to be classed as such... Such nonrecognition for any reason, however, cannot outweigh the evidence disclosed
by this record as to the de facto character of Tinoco's government, according to
Though non-recognition of a government does not affect the rights and
responsibilities of the state, their execution is hindered, even incapacitated. Thus,
treaties already in force will continue to bind the state but may be, in effect,
inoperative during the period of an unrecognized government. Conversely, foreigners
travelling etc. in a country whose government is unrecognized do so with added risk
since their national government has no direct diplomatic channels by which to
protect them. [260 N3]
"Act of State" doctrine - Canada recognizes the acts of recognized states.
3. National Effects of Recognition [260]
The newly recognized state or government may expect to have its sovereign
authority respected in the recognizing state by all organs of government. This usually
includes a right:
(a) to sue in courts of recognizing state;
(b) to take control of state property located in recognizing state;
(c) to have effect accorded to its legislative and executive acts of state; and
(d) to claim immunity from suit in courts of recognizing state for itself, its
property, and its representatives.
Since these rights exist at international law, a failure of the recognizing government
to accord them to the new authorities creates international responsibility. How effect
is given to them is a matter of internal organization by the recognizing state. [261]
Executive Certificates [261]
Recognition of foreign regimes are not formally published. The courts have to ask the
government whether it has granted recognition or not. This is typically done by
addressing the Secretary of State for Foreign Affairs with a request for an Executive
Re Chateau-Gai Wines Ltd. and A.-G. for Canada (1970 Exch.) [261]
The "One Voice" approach
A question, of fact or law, as to whether an international agreement between

Canada and another country has come into force between Canada and another
sovereign power so as to create international rights and obligations, is a
question for the executive arm of government to answer. Being questions on
which "the state should speak with one voice", it is a question with regard to
which the courts should accept from the Crown a certificate as to Canada's
position. This view of the law is well settled. [262]

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Certificate. [261]
Recognition of Governments
de jure v. de facto
Canada has joined growing number of states following the Estrada doctrine. Problems
arose then Canada said they would no longer say when they recognized a state or
government.
Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (1967 H.L) [269 N7] [Example only
- not important]
Issue: Absence of recognition of East Germany at stake:
"We must not only disregard all new laws and decrees made by the Democratic
Republic or its Government, but we must also disregard all executive acts done by
persons appointed by that Government becuase we must regard their
appointments as invalid... And that would affect not only status of persons
formerly domiciled in E. Germany but property in this country the devolution of
which depended on E. German law."
Adams v. Adams (1970, England) [269 N7] [Example only - not important]
Divorce decree granted in Rhodesia during unrecognized regime of Smith after his
unilateral declaration of independence declared ineffective.
Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. (1978 Q.B.C.A.) [270]
"Where private rights, or acts of everyday occurrence, or perfunctory acts of
administration are concerned, courts may, in the interests of justice and
common sense, where no consideration of public policy to the contrary has to
prevail, give recognition to the actual facts or realities found to exist in the
territory in question... The courts of [England] can recognize the laws or acts of
a body which is in effective control of a territory even though it has not been
recognized ... de jure or de facto: at any rate, in regard to the laws which
regulate the day to day affaires of the people... And furthermore that the courts
can receive evidence of the state of affairs so as to see whether the body is in
effective control or not." Carl-Zeiss, supra, Lord Wilberforce.
Denning agreed that regardless of recognition, you should still give effect to
perfunctory, administrative acts of governments.
"Delegated Sovereignty" exception: we recognize the authority given from another
state whose government we recognize.
4. Foreign Acts of State [272]
"Acts of State" are official public acts, whether legislative, executive or judicial, of a
recognized foreign government. Since all states are sovereign equals, each state
must respect the public acts of every other state it recognizes [272]. If it could be
determined by our courts that an act of state had been purpotrated contrary to a new
foreign government's law, our courts would not give effect to the act of state.

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Laane and Balster v. The Estonian State Cargo & Passenger Steamship
Line (1949 S.C.C.) [273]
RINFRET C.J. Decrees of a confiscatory nature, even if purporting to have extraterritorial effect, cannot be recognized by a foreign country at IL. Quite
independent of their illegality and unconstitutionality, they are not of such
character that they could be recognized in a British Court of Law.
RAND J. It is now establishes that a CL jurisdiction will not enforce directly or
indirectly the penal, revenue or political laws of another state; and there is the
general principle that no state will apply a law of another which offends against
some fundamental morality or public policy.
Confiscatory laws are not migratory and are deemed to be operative only within
their own territories. [274] i.e. Courts will no be party to state acts of
confiscation.
If a foreign government act was contrary to international law, courts should
hesitate to give effect to it.
In Oppenheimer v. Cattermole (1976 H.L.), the majority held that "a judge
should ... be very slow to refuse to give effect to the legislation of a foreign state in
any sphere in which, according to accepted principles of IL, the foreign state has
jurisdiction. He may well have an inadequate understanding of the circumstances in
which the legislation was passed and his refusal to recognize it may be embarrassing
to the branch of the executive which is concerned to maintain friendly relations
between [England] and the foreign country in question. But I think... That it is part of
public policy of this country that our courts should give effect to clearly established
rules of international law. [278 N5]
But see Hesperides Hotel, supra 270.
Now, after 1988, courts have already set up the flexibility to deal with government
recognition issues.
Somalia v. Woodhouse (Q.B. 1993)
Facts: In January, 1991, the then government of Somalia entered into a contract for the
purchase of rice. While the ship was en route, there was a coup d'etat in Somalia. Things
were so chaotic, the ship could not land. English government ordered cargo sold and
proceeds paid into court. Someone claimed they represented the prior government of
Somalia, and it had to be determined whether this was the recognized government. The
court asked for a certificate from the foreign office. Foreign office said it was not
concerned with the recognition of governments. Also, based on the situation, there was
no effective government at all.
Held: Court will look at the following factors:
(1) Has the government proceeded constitutionally?
(2) The degree, nature and stability of the control that the administration has.
(3) The nature of our government's dealings with the other state
(4) The extend of international recognition (in marginal cases)
All except #3 are determined by expert witnesses.

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PUBLIC INTERNATIONAL LAW PROF.

The Nature of International Law

PUBLIC INTERNATIONAL LAW PROF. BROWN

The International Court of Justice

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Colonial States see text

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Three hypothetical problems

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2. Declaration of the Principle of International Law p.30 (Supplement) 2 nd para.

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Reparations Case p.41

Non-Governmental Organisations e.g. International Red Cross, the Roman

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(b) The Security Council [Chapter V, Articles 23-51]

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CREATION AND ASCERTAINMENT OF INTERNATIONAL LAW [77]

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2. Treaties between the British Crown and First Nations groups

R v. Secretary of State for Commercial Affairs 1982 2 All E.R. 118

1990 (p.196-199) R. v. Siou

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Treaty Making [88]

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Do treaties create international law or merely obligations? There is a distinction

When does a treaty come into force?

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What if another state objects to the states reservation?

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no sufficient evidence of contrary intention of the parties was produced to

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North Sea Continental Shelf Cases: Federal Republic of Germany v.

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[dissent] It is extremely difficult to prove opinio juris. it relates to international

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GENERAL PRINCIPLES OF INTERNATIONAL LAW

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Foreign Legations Case (1943) p.150

Conflicts between International law and Statutes

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R. v. Canada Labour Relations Board

Arrow River Case p.176 SCC 1971

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Schavernoch v. Foreign Claims Commission (1982) p.185

If a treaty is not implemented, does it have no effect?

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PEACEFUL RESOLUTION OF DISPUTES BETWEEN STATES