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International Law
1 NATURE OF INTERNATIONAL LAW
First, you will be introduced to the main participants in, and structures of, the international legal system,
particularly nation-States (such as Australia) and the United Nations and its constitutive document, the
United Nations Charter. In doing so, we will briefly examine the criteria for an entity to be considered a
State a d the p o ess of a o di g e og itio to a State o go e e t. Se o dl , e ill ide tif the
various sources and types of international law.
…go e s elatio s et ee i depe de t states. The ules of la i ding upon states therefore emanate
from their own free will as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between these co-existing independent
communities or with the ie to the a hie e e t of o o ai s ;
In other words:
The nation state actors of the international law system are at prima facie, given no constraints on their
sovereign power. They have unrestrained free will as compared to the domestic legal system where laws
are largely prescriptive, stating what citizens can and cannot do. The international legal system does not
operate in this way – its actors are at first principles able to exercise free will UNLESS prohibited by
some higher power.
The Lotus’ Case involved a collision between a Turkish and French vessel in the high seas and thus not
within the jurisdiction of any nation state. From the Turkish point of view the accident was clearly caused
by the French and thus ought to be criminally charged. However as it was extra-jurisdictional, the French
postulated that Turkey had no authority to do so.
1
(France v Turkey) [1927] PCIJ Ser A, No 10.
How can Turkey then justify bringing French nationals before their court?
Resolving this dispute – international court dealing with the disputes between state authorities
(PCIJ) [Permanent] International Court of Justice – v. important judicial organ to be familiar with Commented [D1]: Historically Permanent International
Court of Justice, however over time has been reduced to just
Key points from Lotus Case judge e t the International Court of Justice.
The majority view is that the Lotus principle remains intact. The fundamental principle is that states can
do what they want UNLESS prohibited. This is the reasoning to be applied.
However there was a significant minority opinion that agreed with the judgement of the court (that Lotus
principle is still good law) however disagreeing (not dissenting) with the reasoning:
Judge Higgins in DRC v Belgium2 stated that the dictum: Commented [D2]: Foreign minister of Congo
Charged against crimes of humanity
… ep ese ts the high water mark of Laissez-faire in international relations, and an era that has been Who issued arrest warrant? Not ICJ, Belgium.
sig ifi a tl o e take othe te de ies…this e ti al otio of the autho it of a tio is sig ifi a tl
different from the horizontal system of international law envisaged in the Lotus case. Because it was an alleged crime against humanity (serious,
recognised by states universally), any state, not just Belgium
He mentions a developing vertical structure within the international legal system, stating that there may authorities could issue an arrest warrant (against a foreign
state) & other forms of criminal prosecution – this is the
be things superior to the sovereign power of nations, for e.g. human rights. This developing structure theo eti al asis fo Belgiu s a tio s.
deviates from the traditionally horizontal structure where everything is equal, and international law co-
ordinates the states on equal footing.
In DRC v Belgium, Belgium issued an arrest warrant against the foreign minister of a foreign state. Was this
within the scope of their power? Crimes against humanity are recognised universally and thus any state
can initiate criminal prosecution. The legal question here is whether the state had the freedom to issue an
arrest warrant against a foreign minister of a foreign state.
However, to what extent is vertical structure accepted by the community of sovereign states?
Justice Leggatt, Serdar Mohammed v Ministry of Defence [2014] EWHC: Commented [D3]: Mohammed v Ministry of Defence:
regarding the prolonged detention of an Afghani
If CA a d/o AP had ee i te ded to p o ide a po e to detai the ould have done so international under UK troops. The legal question was
expressly…It is not readily to be supposed that the parties to an international convention have whether the UK troops had the authority to detain Afghani
agreed to establish a power to deprive people of their liberty indirectly by implication and atio als. It is a gued that the judge s easo ing in this case
was incorrect.
ithout sa i g so i te s .
International law cannot prohibit states from detaining people unless stated so; there is free will. Starting
point: ask whether there are prohibitions regarding the law – Lotus dictum.
- Mostly states
2
Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) [2002] ICJ Rep 3, Joint Separate Opinion of Judge
Higgins, Kooijmans and Buergenthal, para 51.
International Law (1st ed, 1904) 18 (HISTORICALLY, SINCE IT WAS 1904 IT WAS BELIEVED THAT STATES
WERE THE ONLY SUBJECTS OF INTERNATIONAL LAW HOWEVER TIMES HAVE CHANGED, IS THIS STILL
VALID? No.)
A subject of international law is an entity possessing international rights and obligations and having the
capacity (a) to maintain its rights by bringing international claims; and (b) to be responsible for its
ea hes of o ligatio ei g su je ted to su h lai s - Bro lie s Pri iples of Pu li I ter atio al
Law (8th ed, 2012) 115
So, still states, but not so exclusively - capacity based, rather than the form of the subject
Individuals – object of protection under this body of law, probably not a subject.
However objects may have an increasingly greater role - Influence on international law-making
processes (e.g. NGOs) - C&M 31-33.
1933 Montevideo Convention on Rights and Duties of States (articulated criteria for statehood for the
first time). Before this time there were still states, how were they recognised? Similarities commonly
recognised
Climate change eroding territory – predicted the nation could be submerged under water in 20-50 years
time. If so, then a defined territory cannot be satisfied, does this mean they lose nationhood
In reality they would not lose statehood even if they fail to satisfy one of the criteria. Suggest it s not
really a LEGAL criteria but is a common criteria/guide.
Consider how states would recognise other states without this criteria, e.g. as in historically? E.g. through
similarities, commonly shared features.
Legal consequence would be failure to achieve recognition status for the state (if it was a legal criteria).
However this is most probably not the case.
Constitutive Theory (legal effect of creating international entity or statehood) – minority view Commented [D8]: Minority view, but a significant one.
That there is actually a legal effect in recognition of another
The full i te atio al pe so alit of isi g o u ities… a ot e auto ati …as its as e tai e t state (i.e. creating another state/statehood).
requires the prior determination of difficult circumstances of fact and law, there must be someone to
pe fo that task – H Lauterpacht, Recognition in International Law (1948) 56. Commented [D9]: Significant because it was expressed by
an imminent judge.
Cf recognition of belligerents
What about Taiwan, Palestine, ISIS (actually fulfils the 4 said requirements)?
Not recognised by other states even though as a matter of international law (strictly speaking) it can exist
without the recognition. What is thus the legal significance of this recognition?
Practical significance
Recognition of Governments: Australian Policy If the newly emerged state is not implementing the notion of
democracy as a system then the non-recognition policy as
- Cf e og itio of Li a Natio al T a sitio al Cou il NTC : ithout legal sig ifi a e (Talmon sanction – e.g. Ukraine
2011) Commented [D11]: Recommended reading – contrast of
- The recognition of government is a practical question recognition of government and state
Do t issue e og itio of go e e ts - gvt changes all the time – if there has to be an issue of
government each time it changes it is not v. feasible. Abolished by many states in the 1980s.
Legal v political usage; Political sovereignty is different to international sovereignty (e.g. IR)
External v internal sovereignty
Principles:
- Equality of sovereign states (but not actual equality of rights and competences)
- Territorial integrity and political independence of each state
Controversial – legal basis for legal entities to be separate from their original statehood. E.g. Western
states achieving independence
Does it entitle people to secede from the state to which they originally belonged?
1.9 STATEHOOD: ATTRIBUTE (3) Commented [D13]: Once the state is recognised, all 3
attributes are applicable.
Non-intervention: No state has the right to i te e e i the i te al o e te al affai s of a othe . – 1933
Convention on Rights and Duties of States, 165 LNTS 19, Article 8.
- Domestic jurisdiction of a state: a esse tiall elati e uestio ; it depe ds upo the
de elop e t of i te atio al elatio s (Nationality Decrees Issued in Tunis and Morocco
(Advisory Opinion) [1932] PCIJ, Ser B, No.4, 24
- I te e tio = di tato ial i te fe e e i the se se of action amounting to a denial of the
i depe de e of the State . – H Lauterpacht, International Law and Human Rights (1950) 167.
C&M Chapter 3
Anthony Aust, Modern Treaty Law and Practice (3rd ed., Cambridge University Press, 2013).
Richard Gardiner, Treaty Interpretation (Oxford University Press, 2008).
Olivier Corten and Pierre Klein (eds.), The Vienna Conventions on the Law of Treaties: A
Commentary (Oxford University Press, 2011) vol I & II.
Lecture Supplementary Note – Treaty Invalidity, Suspension/Termination
States are the main actors (subjects) of international law. They have international legal capacity and
capability to bring other states before the court. The general criteria however may arguably apply to
other entities. E.g. what about international organisations created by states? (Not NGO s . They may also
have subject status.
Source: ILC Draft Articles on the Responsibility of International Organisations (2011), Article 2.
If they have international legal personality what does this allow them to do? Legal capacity to act in
international context, capacity to bring before tribunals, representation in domestic courts (but this is
available in corporate organisations as well – ICRC). Membership not a state or based on a treaty,
therefore no international legal capacity.
Read Reparation Case on pages 320-322 – understand the legal ground upon which the UN is
recognised with the international legal personality. For any analysis of international
organisation the Reparation Case is the STARTING POINT.
Th ough a i flue tial se ies of writers – Vitoria, Gentili Grotius, Pufendorf, Wolff, Vattel and others – it
came to be seen as a specialised body of LEGAL THINKING about the relations between rulers, reflective
of custom and practice in such matters as treaty making, the status of ambassadors, the use of the
o ea s a d the odalities of a fa e . – B o lie s Pu li I te atio al La th
ed., 2012), 4.
- 1970 Friendly Relations Declaration: co-operation in a peaceful manner, set determination to not
go to war, legal rules rather than policy.
Principles identified under international law that the document suggests to exist:
Considering that the progressive development and codification of the following principles:
a. The principle that States shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any State, or in
an any other manner inconsistent with the purposes of the United Nations,
b. The principle that States shall settle their international disputes by peaceful means in
such a manner that international peace and security and justice are not endangered.
c. The duty not to intervene in matters within the domestic jurisdiction of any State, in
accordance with the Charter
d. The duty of States to co-operate with one another in accordance with the Charter
e. The principle of equal rights and self-determination of peoples
f. The principle of sovereign equality of States
g. The principle that States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter;
How can we say that they are legal rules and not just policy?
- The instrument/constitutive treaty that established the United Nations currently with 193
member states.
- Is this an international constitution? Comparable to municipal law (on the international scale)
- Law making power? E.g. General Assembly – law making function/power
- Executive power? E.g. could it possibly be the Security Council – executive organ of the UN
- Judicial power? International Court of Justice
At the initial stage, it is not an international constitution but people have considered the
constitutionalism of international law. However certainly not an international constitution. Also no
legislative power in that there is no legally binding force!!!! To non-members or non-ratifying states.
However to an extent there is a law-making power. In terms of executive power, GA can take Commented [D15]: Executive power – in one respect the
enforcement actions for international peace and security (but no law enforcement action, the ground for UN Security Council has the power to take peace
their actions is not derived from the legal sense). In terms of judicial power, there is a judicial organ (ICJ) enforcement but it is not legally based. The ground upon
which they enforce obligations is not legal. Once recognised
to which the court also has a statute/legal framework for it to operate under – Statute of International threat, can take enforcement action. Enforcement of
Court of Justice, which is annexed to the Charter of the United Nations. something else.
The Cou t, hose fu tio is to de ide i a o da e ith su h disputes as a e su itted to it, shall
appl : Commented [D17]: The starting points – 4 sources
In terms of the actors that can actually create international law – around 200 states exist around the
world but 193 are UN Member states. How do you regulate the relations between you and others? How
do you determine what the law is?
- Established norms
- Ground establishment in regulation relations
- Bilateral treaty not to do things (established norms)
- General consensus. Implicit questions. Ideal; own interests
- Some behaviours -> legal conviction/obligation
Common issues observed in international law with those sources of international law: legitimacy and
effectiveness.
[T]he la o tai i g et ee atio s is ot positi e law: for every positive law is set by a given sovereign
to a person or persons in a state of subjugation to its author… [T]he law obtaining between nations is law
(improperly so called) set by general opinion. – John Austin.
Because the states think it is legitimate, it is legitimate. However this depends on your measure. E.g.
democracy >> Undemocratic nature of international law – C&M 29-31.
Domestic law – democratic process. Sources of domestic law are found through concept of democracy
ho e e i te atio al la is NOT de o ati at all. People s hoi e is i ele a t, it is the states (i.e.
representatives)
E.g. in the case of statistical breaches International Law is frequently complied with. (99%) as compared
to domestic law. There is greater respect for the law. Well respected thus effective. Depends on
perspective. Perhaps due to the scale in which consequence would have to manifest on the international
level compared to how easy it is individually? Bearing greater consequence?
Al ost all atio s o se e al ost all p i iples of i te atio al la a d al ost all of thei o ligatio s
al ost all of the ti e. – Louis Henkin, How Nations Behave (2nd ed., 1979) 47.
3 TREATIES
Sources of international Law – comes from Article 38 of the ICJ Statute (the 4 provisions).
Treaties are preferred over customary law as they tend to be more specific in relation to the other things
involved – agreements between the states, specific. Rules have been agreed by the states the parties are
to – can say so with greater confirmation – hence preferred
The essential characteristic is that it represents the intention of the states who have agreed to be
bound!
- Types of treaties, e.g. law-making treaties: international legislation (every state has interest in
regulation of complex international activities.
- Law-making treaties (first type of treaty)
- Treaty contracts (second type of treaty) before the world war, historically they were between
two or a few states often about a very narrow issue - follows like a kind of contract
- However post war, with the development of communications, independence, etc.
Rather than intending to create international legal rights and obligations, participants wish to record
their mutual understandings as to how they will conduct themselves; do not intend it to be governed by
international law (or any othe la
Joint understanding on a code of conduct between the Republic of Indonesia and Australia
Agreement says it will come into effect after the pa ties ha e sig ed it, ill do this, ill do that . Commented [D22]: Signifiers of less than treaty status
10
Joint of understanding – does t e essa il ea that it is t a t eat ut is t pi all used as less tha a
t eat , he eas ag ee – more likely to be a treaty.
[D]e la atio s ade a of u ilate al a ts… a ha e the effe t of eati g legal o ligatio s. …Whe
it is the intention of the State making the declaration that it should become bound according to its terms,
that intention confers on the declaration the character of a LEGAL UNDERTAKING, the State being
the efo th legall e ui ed to follo a ou se of o du t o siste t ith the de la atio . …Whethe a
state e t is ade o all o i iti g akes o esse tial diffe e e. …Just as the e ule of pacta sunt
servanda in the law of treaties is based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested states are entitled to require that the
obligation thus created be respected.
The ou t a epted F a e s de la atio that it ould ot o du t u lea tests a d the ou t held that it
was sufficient. Whether you determine it is binding again depends on the terms of the contract. Where
they clearly intend to be bound, then it was intended to be binding
- Treaty s date of e try i to for e: entered into force before 1980? (VCIT entered into force here),
not intended to be applied retrospectively. So check to see if it has been entered into force
before 1980 as it was not applicable then
- Also states not part of VCLT are not bound by it. If a state is not part of the VCLT, they are not
bound by the agreements/conventions by the VCLT
- Are all states parties to the treaty? Are all state parties to VCLT (Gabcikovo-Nagymaos case (this
is the case authority) C&M 192)
- Australia is party to the VCLT, so is US.
Situation: entered into force before 1980/not all the states are party to the VCLT = VCLT provision must
reflect CUSTOMARY INTERNATIONAL LAW to apply.
Most Of VCLT reflects customary international law but should state case or authority which
shows this for each provision.
Not entirely correct to waive VCLT as reflecting customary international law, partly
1. The adoption of the text of a treaty takes place by the consent of all the States participating in its
drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place by the vote of two
thirds of the States present and voting, unless by the same majority they shall decide to apply a
different rule.
11
References to the adoption of the treaty: states which have negotiated the treaty have decided to adopt
the text.
In the case of a bilateral treaty – adoption has to be done by all the states to the treaty
In multilateral treaty – the adoption is done by 2/3 of the states negotiating the states (as a
matter of practicality)
Adoption:
- May be by signature (sometimes this by itself is enough but usually requires another step) – this
is consent to text
- Usually requires ratification or accession (article 14 and 15)
Ratification by original signatories (multilateral treaty open for signature until specified date)
Accession/acceptance/approval by states not original signatories – consent to the treaty
General rule is that where someone represents themselves as representative of that state usually
accepted – by virtue of position or documents to show authority
A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
a) It has signed the treaty…, until it shall have made its intention clear not to become a party to the
treaty; or
b) It has expressed its consent to be bound by the treaty, pending the entry into force of the
t eat …
- Or where they have ratified the treaty but has not yet entered into force
A state is not required to comply with the treaty in the general sense (not necessarily the terms of the
treaty) before it has been eif: re state must not do anything which would affect its ability fully to comply Commented [D23]: Entered into force
with the treaty once it has eif - CIL: ILC Commentary.
3.6 VCLT FORMATION OF TREATIES – ENTRY INTO FORCE Commented [D24]: Entry into force: binding on all states
privy to the treaty
Article 24
1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be
bound by the treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty has
come into force, the treaty enters into force for that State on that date, unless the treaty
otherwise provides.
Treaty will usually have a provision stating when it will enter into force and states are only bound by it to
the extent of article 18.
12
I.e. Australia cannot become party to a treaty where Australia laws are at variance with provisions of the
treaty
Conflicting domestic laws do not provide a valid justification for failure to perform a treaty!
Quite often, treaty codifies customary international law. Where treaty provision = cil, binding on all
states.
- C eate o ligatio s fo all States: esta lished fo the e efit of all atio s i the o ld – PCIJ
Wimbledon case
- Need to show intention of parties to create such a regime
- Generally refer to specific area/region: neutralisation/demilitarisation of area; freedom of
navigation in international waterways
- Possibly Antarctic Treaty (peaceful use of the Antarctic region), binding on all states
13
Cover a wide variety of material and means but be careful in justifying the use of them by reference to
article 32) conditions in order to confirm, clear up ambiguity, or because the result is absurd or
unreasonable. Commented [D29]: Must justify why it was absurd or
unreasonable before using supplementary means of
CIL (Libya/Chad case para 55) + ILC Commentary. interpretation.
14
Great China Metal Industries v Malaysian International Shipping Court (McHugh J, C&M 176).
Case o e ed the Hague Rules which regulate international contracts for the carriage of goods by sea
and determine the responsibilities, liabilities, rights and immunities of the carrier.
Those e t i si sou es i lude the travaux preparatoires and the circumstances of the conclusion and Commented [D30]: Preparatory work
histo of the egotiatio of the t eat . …[T]he i ediate i petus fo the Hague Rules a e f o the
British Empire. Furthermore, British lawyers and representatives of British carrier and cargo interests
dominated the Committees responsible for the d afti g of the Rules. …That ei g so, it see s likel that
the E glish o o la ules p o ided the o eptual f a e o k fo the Hague Rules.
1. Absolute invalidity
- Coercion: CIL: ILC Commentary and the Fisheries Jurisdiction case (where the state has been
coerced into agreeing to the treaty or where a state was given no choice about whether to
agree). It does not refer to cases where the parties are of unequal strength and power in the
world. The mere fact that there is an inequality of power or legal/political power does not
constitute coercion. It has to be a situation where there is virtually no choice at all.
- Conflict with norm of jus cogens (VLCT Articles 51, 52, 53, 64)
Norm of jus cogens or peremptory norms which are norms that prevail over any other
international obligation – e.g. Torture, slavery, piracy, racial discrimination etc. which cannot
ever be a subject of legal agreement between states and renders void prohibition of such
activity. E.g. Portugal took Australia to ICJ regarding self-determination (violating the right of self-
determination of East Timor)
The legal consequence of absolute invalidity is that the treaty is null and void from the moment it is
concluded (void/without legal effect) (Article 51-53). Void ab initio!
And a treaty cannot be divided into valid/invalid provisions – it is invalid as a whole – Article 44.5 (Rarely
found, would need to be extreme)
Article 53 Treaties conflicting with a peremptory norm of general international law (jus cogens) Commented [D31]: Prevail over any other international
obligation and cover subjects such as racial discrimination,
A treaty is oid if…it o fli ts ith a pere ptory or of ge eral i ter atio al la . For the piracy, torture, slavery – norms of CIL
purposes of the present Convention, a peremptory norm of general international law is a norm
accepted and recognised by the international community of States as a whole as a norm from Portugal self-determination (treaty example)
which no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.
2. Relative invalidity
15
- Wai e of ground for invalidation by acquiescence/subsequent express consent (Article 45) Commented [D32]: Waiver can be implicit. If you acted
- Provisions of internal law regarding competence to conclude treaties (Article 46), specific you were bound by the treaty for a considerable amount of
restrictions on authority to express the consent of a State (Article 37). time (e.g. 40 years) cannot rely on this.
- Error (Article 48): Temple case (C&M 180-1). Note circumstances precluding error as grounds for Commented [D33]: Misrepresentation
invalidity Commented [D34]: Claim by Thailand had sovereignty;
- Fraud (Article 49), map operating from was a mistake. Implied waiver of the
- Corruption of a representative of a State (Article 50). condition of error – cannot be realised too late e.g. 50 years
Relative invalidity means that only some parts of the treaty which may have been affected will be invalid
but it will not mean it is invalid from the time it is concluded (void ab initio).
Article 46 – Provisions of Internal Law regarding competence to conclude treaties Commented [D35]: Protects other States from allegations
that another State is trying to back out of obligations from a
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in technical error
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal law
of fundamental importance
2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith Commented [D36]: Unless obvious to other States it was
not done correctly
Probably reflects CIL – e.g. Eastern Greenland case, Spanish Zones of Morocco case.
1. A material breach of bilateral treaty (between 2 states) by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its operation in whole
o i pa t. …
b) The violation of a provision essential to the accomplishment of the object or purpose of the
treaty.
Party loses right to invoke material breach if consent/acquiescence (Article 45). Commented [D38]: Party loses right to invoke material
breach if consent/acquiescence (implicit) after a number of
years have passed.
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty. … A ti le . Commented [D39]: Supervening impossibility of
performance – not just inconvenience or no longer wants to
CIL Hungary v Slovakia – C&M 189-91 do it – must be a change of circumstances – lack of control
Fundamental change of circumstances
Agreement between Hungary and Slovakia about construction of dams after communist rule. Hungary
stated that we have a completely different economic system, were only bound by the treaty because
under Soviet pressure and thus took Slovakia to ICJ.
Court agreed with Slovakia that it was invalid on the grounds that the supervening impossibility of
performance was a narrower concept than financial difficulties, and since Hungary responsible for acts
which made joint exploitation of investment possible, it could not claim supervening impossibility of
performance.
16
Termination or suspension – fundamental change of circumstances (Article 62) (Rebus Sic Stantibus)
(C&M 189)
1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of the treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:
a) The existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and
b) The effect of the change is radically to transform the extent of obligations still to be performed
under the treaty
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
a) If the treaty establishes a boundary; or
b) If the fundamental change is the result of a breach by the party invoking it either of an obligation
under the treaty or of any other international obligation owed to any other party to the treaty.
- esse tial asis – consider whole treaty Commented [D40]: Must show that the breach was an
- Radical transformation of obligations still to be performed essential element – which made it impossible to carry out
- Stability of treaty relations requires that the plea of fundamental change of circumstances can the obligations of the treaty
only be applied in exceptional cases - pacta sunt servanda – H v S case Commented [D41]: Even if political systems/internal
systems
However rarely successful (C&M 191).
4 RESERVATIONS TO TREATIES
Reservations to Treaties
- 2 key elements: unilateral statement, however phrased or named (sometimes referred under an
statement of understanding/interpretation rather than a reservation), does it purport to exclude
or to modify the legal effect of certain provisions of the treaty nonetheless (effectively making a
reservation though abstaining from referring to it explicitly)
Beware of declarations: …to esta lish the legal ha a te of … a de la atio , o e ust look behind the
title given it a d…deter i e the su sta ti e o te t
UNCLOS (C&M 156-7): Philippines Understanding ade upo sig atu e a d o fi ed upo atifi atio
The sig i g of the Co e tio the Go e e t of the Republic of the Philippines shall not in any
manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from
the Constitution of the Philippines; …
17
The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the
sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of
authority to enact legislation to protect its sovereignty, independence and security;
Australia considers that [the] declaration made by the Republic of the Philippines is not consistent with
a ti le of the La of the Sea Co e tio , hi h p ohi its the aki g of ese atio s. … The
declaration of the Republic of the Philippines asserts that the Convention shall not affect the sovereign
rights of the Philippines arising from its Constitution, its domestic legislation and any treaties to which the
Philippines is a party. This indicates, in effect, that the Philippines does not consider that it is obliged to
harmonies its law with the provisions of the Convention. By making such an assertion, the Philippines is
seeki g to odif the legal effe t of the Co e tio s p o isio s.
- By making such an assertion (that the Convention shall not affect the sovereign rights of the
Philippines arising out of the Constitution), the Philippines is seeking to modify the legal effect of
the conventions provisions
Papua New Guinea – Reservations on Accession to 1951 Refugees Convention; straight forward
reservation though not accepting certain obligations stipulated in the articles
The Contracting State shall accord to refugees lawfully staying in their territory the most favourable
treatment accorded to nationals of a foreign country in the same circumstances, are regards the right to
engage in wage earning employment.
Article 21 – Housing
As regards housing, the Contracting States,…, shall a ord to refugees lawfully staying in their territory
treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances.
1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals
with respect to elementary education
I po ta tl Papua Ne Gui ea ha e o ithd a thei ese atio s to the o e tio . That lette
has gone from the PM of PNG through to the United Natio s. The e ade the o it e t to e fo e
the Refugee Co e tio . …We a t to ake su e [that] PNG i ithd a i g thei ese atio s ith
respect to anyone sent from Australia is committed to making sure that people are processed
appropriately according to the o e tio a d that s hat ill happe .
- Adoption of the text of a treaty at an international conference takes place by the vote of 2/3 of
states present and voting (Article 9 of the VCLT)
- Or by consensus without vote (THUS need for process for states to EXEMEPT themselves from
particular provisions when ratifying/acceding).
18
The same principle applies generally to treaties with more than 2 parties but does not apply to bilateral
treaties (effectively the same as amending a contract).
A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation
unless:
- An intention that as many states as possible should participate and therefore could not excluded
on the basis of minor reservation
- However not accepting reservations which were contrary to the object of convention
2 questions arising from the Genocide Conventions case (pg. 154 of the C&M)
1. Can the reserving State be regarded as being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of parties to the Convention but not
by the others?
2. If the answer to question 1 is in the affirmative [which it was], what is the effect of the
reservation as between the reserving State and:
a) The parties which object to the reservation
b) Those which accept it
19
reservation as being compatible with the object and purpose of the Convention, it can in fact consider
that the reserving State is a party to the Convention.
a) Acceptance by another contracting State of a reservation constitutes the reserving State a party
to the t eat …;
b) An objection by another contracting State to a reservation does not preclude the entry into force
of the treaty as between the objecting and reserving States unless a contrary intention is
defi itel e p essed the o je ti g State; …
. …u less the t eat othe ise p o ides, a ese atio is o side ed to ha e ee a epted a State
if it shall have raised no objection to the reservation by the end of a period of 12 months after it was
notified of the reservation or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.
Check the dates of the reservation – states only have capacity to OBJECT within the time frame of 12
months; afterwards it lapses and is effectively waived.
Article 21 of the VLCT – Legal effects of reservations and of objections to reservations (stipulates the
legal effects)
- Where a state has accepted a reservation made by another state, it modifies those provisions to
the same extent for that other party in its relations with the reserving state (not in relation to
other parties)
- The same is with vice versa where a state has objected to a reservation
What does Art 21.3 mean? When reservation excludes applicability of particular provision, no difference
between acceptance and objection to particular reservation.
- Treaty applies between reserving and objecting state with exception of provision covered by
ese i g state s i te p etatio
- With non-objecting state provision covered by reser i g state s interpretation will have the
scope suggested by that reservation
Interpretation of provision – consider the differences between accepting a reservation and objecting to it
Reservations guide
20
Not enforceable against third parties (like a contract, only parties that are part of it are bound) –
weaknesses of treaties
Whe e the sa e o ti e tal shelf is adja e t to the te ito ies of adja e t states, the boundary of the
continental shelf shall be determined by agreement between them. In the absence of agreement, and
unless another boundary line is justified by special circumstances, the boundary shall be determined by
application of the principle of equidistance from the nearest points of the baselines from which the
eadth of the te ito ial sea of ea h state is easu ed.
Example of where there was a treaty provision which provided the law but only bound certain states or
the application of the treaty had been excluded for technical reasons and could not be relied upon
In these cases the ICJ would find it through customary international law irrespective of their consent or
ratification of a treaty instrument as a source of extrinsic material
21
a i dispe sa le e ui e e t ould e that ithi the pe iod i uestio , sho t though it ight e,
State practice, including that of States whose interests are specially affected, should have been both
extensive and virtually uniform…; a d should o eo e ha e o u ed i su h a a as to sho a Commented [D45]: Shared by many states
general recognition that a rule of law or legal obligation is involved .
Nicaragua v US: The e e fa t that States de la e thei e og itio of e tai ules is ot suffi ie t .
That non-ratification may sometimes be due to factors other than active disapproval of the convention
concerned can hardly constitute a basis on which positive acceptance of its principles can be implied
(acquiescence)
The ou t does ot o side that, fo a ule to e esta lished as usto a , the o espo di g p a ti e
must be in absolutely rigorous conformity with the rule...the court deems it sufficient that the conduct of
states should, in general, be consistent with such rules, and that instances of state conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not as indications of the
e og itio of a e ule – Nicaragua
How can one distinguish between the breach of an existing rule and the creation of a new law?
Becomes an arbitrary distinction
In principal, must prove it is widespread, extensive and virtually uniform
However in practice the ICJ has taken a v. liberal approach
The alleged ules ust e e e ised the states as a ight appe tai i g to te a d espe ted the
territo ial States a dut i u e t o the ot e el fo easo s of politi al e pedie As lu ase
22
5.5 EVIDENCE
State practice
- Sending diplomats
- Diplomatic statements
- Voting in general assembly
- Cabinet (legislature and the judiciary); makes policy; makes bills (legislature); courts give
judgement
- Legislation
- Military operations/activities
- Parliamentary debates
- Voting on resolutions
- Treaty signing/ratification
- Judicial decisions
- Ministerial statements
- Check out the YBIL for evidence (Yearbook of International Law)
- Every year eminent scholars list examples of state practice undertaken (good for identifying state
practice)
Opinio juris
-??? how can you prove opinio juris Commented [D46]: That there is legal conviction – that
-Alleged breaches states are acting because they believe there are legally
-Presumed that opinio juris is to exist unless proven otherwise required to do so
-Opinio juris identified in paragraphs 48 to 55 of the judgement in North Sea
-Opinio juris can be derived from resolution 2625 (XXV) (reading in first week of the General
Assembly resolutions) Commented [D47]: Expression of a custom can be found
- Check also the ILC 3rd report Michael Wood (gives actual examples of opinio juris) in the Charter
The same evidence used for state practice cannot be used for opinio juris Friendly relations – resolution 2625 (XXV) - not binding but if
you voted for it shows a general indication of what you think
You can infer some aspects of state practice to prove opinio juris but no double-counting! should be
The e is o othe a tha to as e tai the e iste e of opinio juris from the fact of the external Influential factor
e iste e of a e tai usto – North Sea Continental Shelf
Even if a state breaches the law it may make it stronger
Rega di g all u ifo o du t of Go e e ts o , i app op iate ases, a ste tio the ef o as because of applicable exceptions
evidencing the opinio neccessitis juris except when it is shown that the conduct in question was not
a o pa ied su h i te tio – H Lauterpacht, The Development of International Law by the State practice does not give us any reason to say that there is
a principal that countries can intervene each other
International Court
Just e ause the e is o ule p ohi iti g does t ea that
Ce tai asi legal otio s hi h, as has been observed in paragraphs 48 and 55, have from the you can say it is allowed
beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation
Commented [D48]: Accompanied by state practice unless
ust e the o je t of ag ee e t et ee the States o e ed – North Sea Continental Shelf
rebutted (this is an opinion)
This opi io ju is a , though ith all due autio , e deduced from, inter alia, the attitude of the Parties Commented [D49]: Read the judgement that they have
and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 identified for opinio juris
XXV …The effect of consent to the text of such resolutions cannot be understood as merely that of a Commented [D50]: Friendly Relations Document; certain
eite atio o elu idatio of the t eat o it e t u de take i the Cha te . O the o t a , it a General Assembly resolutions that can be identified as opinio
be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by juris
themselves. – Nicaragua [1986]
23
It is difficult to see why the number of States between which a local custom may be established on the
basis of long practice must necessarily be larger than two. The court sees no reason why long continued
practice between two States accepted by them as regulating their relations should not form the basis of
utual ights a d o ligatio s et ee t o States – Right of Passage (Portugal v India) [1960] ICJ Rep 6
Cf the right of embassies to grant political asylum in Latin America – e e if su h a usto e isted
between certain Latin American States only, it could not be invoked against Peru which, far from having
its attitude adhe ed to it, has o the o t a epudiated it – Asylum Case [1950] ICJ Rep 266
5.7 PERSISTENT OBJECTOR DOCTRINE Commented [D51]: Michael Wood states is a widely
accepted principle however there are still some sceptics
CIL – presumption of acceptance however rebuttable
Persistent objector: a state who has been opposi g f o the ea l da s of the ule s fo atio a d
maintained consistently should be exempted from following it.
Jus cogens o that i alidate a t eat i st u e t do t a use this ord, genocide, torture have been
recognised as jus cogens norms but other than that not widely accepted as jus cogens)
Persistent objector doctrine was developed from the Fisheries Case (UK v Norway) [1951] Commented [D52]: Coastline – zig zag
Straight line
Norwegian Royal Decree 1935 – fisheries zone (territorial sea) -> disputes over the baseline. Argued that the UK did not provide sufficient state practice
UK: low-water mark on permanently dry land + proper closing line of internal waters (10-mile
rule)
No a : St aight aseli e s ste
Does the 0-mile rule apply as CIL?
has ot a ui ed the autho it of a ge e al ule of i te atio al la efe e e to do esti la
I a e e t the te -mile rule would appear to be inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast).
Contention has been argued about whether Courts will apply this in practice – validity still in doubt.
- Declaratory effect at the time of adoption Commented [D53]: Codifying an existing international
- Crystallising effect during the drafting process custom
- Authoritative guiding effect for state practice faced with new legal problems Commented [D54]: During negotiation stage, states may
develop a uniform practice
Commented [D55]: Even if not crystallised may act as an
authoritative guide/impetus for other states to revisit their
practice which may subsequently lead to a widespread
uniform practice (that will become CIL later)
24
An independent source stemming from municipal legal principles (rather than international relations): Commented [D57]: Sources of general principles of law
are different to those general principles of international law
- Cf Principles of International Law: e.g. pacta sunt servanda, sovereign equality, non-intervention Must be derived from domestic general principles not from
international law
Thus this provision can be broken down into 2 elements:
3. Equitable principles
I o e tha o e atio p i iples of e uit ha e a esta lished pla e i the legal s ste – Meuse
(Netherlands v Belgium) [1937]
4. Res judicata
E.g. Charzow Factory (Interpretation) [1927] PCIJ (Ser A) No 13, 27; Trail Smelter Arbitration (1941)
Cf Co fu Cha el [ ] ICJ Rep eje ti g Al a ia s o je tio to the Cou t s ju isdi tio to assess the
damages)
5. Estoppel
25
Judicial decisions v reasoning (Shearer C&M 91): Does this mean that the ICJ judgement have no legal
alue hatsoe e ? The de isio itself is t i di g o othe states e te al to the dispute ut the
reasoning/interpretation that led to that decision may be found to be authoritative and that is often the
case. Persuasive!!! (Not exclusive to ICJ).
6.5 GENERAL ASSEMBLY RESOLUTIONS Commented [D61]: In itself is not legally binding but can
help with clarifying international customary law
- UN Charter (article 10-14: recommendation only) *important to examine the UN Charter
- soft la – no legal force but more than moral value as compared to hard law (international
treaties etc. which impose legally binding obligations)
- Possible legal effects in relation to Customary International Law:
- Authentic interpretation of international law principles; e.g. GA Res 2625 – 1970 Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States.
- A material source of CIL (opinio juris or state practice)
- A reflection of CIL: e.g. Texaco v Libya with respect to nationalisation and compensation (GA Res Commented [D62]: Can guide states in what is customary
1803 with respect to nationalisation and compensation) international law as it is written and embed/reflected in the
- A step forward to progressive development of international law general assembly resolutions
6.6 SECURITY COUNCIL RESOLUTIONS Commented [D63]: If adapted as a decision of the Security
Council, it is legally binding.
UN Charter, Article 25 – binding on all UN member states i a o da e ith the principles and
pu poses of the Cha te
Quasi-legislative resolutions: (Security Council adopted resolutions which are not specifically addressed
to any state but addressed to all the states and imposing legal obligations)
- SC Res 1373 (2001); cf 1999 Convention for the Suppression of the Financing of Terrorism
- SC Res 1540 (2004); cf 2005 Protocol to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation
26
Must i ple e t easu es e e if states did t like it – circumvented the principles of state consent in
this matter as states already gave their consent to be bound by security council decisions regardless of
knowing what decisions they may have been.
Recognition
Reservation
Declaration – effect of creating legal obligations – e.g. nuclear test cases [1974]
- Intention to be bound (is clear)
- Publicity (made it in public)
- Principle of good faith (and there are principles of good faith)
Satisfying these 3 conditions, e.g. France was bound by their own commitment to stop testing
nuclear weapons in Pacific Ocean
Provides additional source of obligation in international law
May be bound by an obligation that the states themselves pledged
Miscellaneous:
Article 103 of the UN Charter – conflict of bilateral treaty and UN Security Council
No international court hierarchy, ICJ carries authoritative value, may be a bit more respected
European Union can also create subsidiary sources of law – creating a unique legal infrastructure
within that region
Use international law as a guide
Value of judicial consent also carries some authoritative value
Mostly the reasoning
C&M CH 4: pp 197-225
Hilary Charlesworth et al, No Country is an Island: Australian and International Law (UNSW Press,
2006).
Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian
Federalism (Melbourne University Press, 1997).
27
7.1 BACKGROUND
Wh is i ple e tatio a i po ta t topi ? Commented [D64]: Consolidation of proliferation of
international norms
th
- As IL moves from a 20 century phase of rapid development to a more considered Diminishing state sovereignty
assessment of implementation, compliance and enforcement, the role of municipal law in International environmental laws
Human rights law
that p o ess is e o i g i easi gl i po ta t.
- Plus growing encroachment on areas traditionally considered confined to municipal law
States have concerns about loss of sovereign rights, tension between nationalist and internationalist
pe spe ti es o i te atio al la a d elatio s. O e s pe spe ti e atio alist/i te atio alist
reflects theoretical positions on relationships between domestic and international law.
There are 2 main theories about the relationship between ML (municipal law) and IL (international
law): dualism & monism (the idea that there is one/natural law). Monism is associated with positive
law.
These in turn are linked to theories of law (natural and positive law), and conclusions as to how to
resolve conflict
Mo is , Natural La a d I orporatio
Monism: international law (IL) and municipal law (ML) are part of the SAME LEGAL ORDER – and one
is supreme within that order.
The consequence of this is the theory of incorporation – the idea that IL is part of ML automatically
– it eed ot e t a sfo ed . I.e. o side o ist s ste s. The la s efle t ea h othe .
28
May be linked to the decline of (and hostility towards) natural law (negative associations with
theology and religion), thus the rise of positivism. Some even deny that IL is law (Austin).
It as su itted fo Tajjou a d Ha tho e that the legislative powers of the Parliament of New
South Wales are limited by obligations which Australia, through the Executive Government of the
Commonwealth, has assumed at international law under treaties to which it is a party. In particular,
it was submitted that the Parliament of New South Wales could not enact a law infringing upon the
"right to freedom of association with others" set out in Art 22 of the ICCPR, to which Australia is a
party. There is no authority which would support such a proposition. It is incompatible with the long
accepted dualism of international law and Australian domestic law. {ICCPR has t ee
implemented/transformed, confirmed by High Court}
Fitzmaurice – the di ide is u eal, a tifi ial a d st i tl eside the poi t fo it assu es…a o o
field i hi h the legal o de s… oth si ulta eousl ha e thei sphe es of a ti it .
Si ila l , O Co ell: Mo is t eats o e s ste as a de i atio of the other, ignoring physical and
social realities. Dualism ignores the universum of human experience.
And as Gillian Triggs notes, tribunals need not to engage in such theoretical analysis
29
A state cannot rely on its municipal law to evade its international obligations or to justify a breach of
its international law obligations.
Latham CJ noted the same thing in Polites v Cth CLR at : Pa lia e t a legislate o
these matters in breach of international law)
How do we know which system is in place? Domestic courts tell us, and sometimes the Constitution
itself.
Incorporation
'This Co stitution, and the laws of the United States which shall be made in pursuance thereof; and
all treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.'
Bla ksto e s Co e ta ies: ... the la of atio s (whenever any question arises which is properly
the object of its jurisdiction) is here [in England] adopted in its full extent by the common law, and is
held to e pa t of the la of the la d ...
(International law is part of the common law) – However there are only a few old cases:
- Buvot v Barbuit (1737), relied upon by Lord Mansfield in Triquet v Bath [1746] 97 ER 936
30
However, this is NOT the widely accepted view of implementation here – only applies in the UK to
CIL, NOT to treaties. And even then, probably only to Civil CIL, not criminal CIL offences (Pinochet
case).
Trendtex Trading v Central Bank of Nigeria (1977) 1 QB 529 (important case in English law) Commented [D66]: Important case, ripple effect in
Australia
Facts: Central Bank of Nigeria ordered by new Nigerian government refused to pay for concrete.
Court of Appeal had to consider if Nigerian government was protected by absolute sovereign
immunity, or if English law now adopted a doctrine of restrictive immunity. In brief, IL had evolved to
exclude commercial interests from the doctrine that states are immune from legal proceedings.
Lord Denning: if the court took a transformation approach, then the new rule could not be accepted
domestically unless and until adopted in legislation.
7.8 TRANSFORMATION
Rules of international law are not given legal force in domestic legal system unless they are
transformed into domestic law by LEGISLATION (and arguably, in some circumstances, by way of the
common law).
- Transformation by legislation
- Common law adoption
English approaches: R v Keyn (1876) 2 ExD 63 (Court for Crown Cases Reserved)
Facts: prosecution for murder of a German captain whose ship collided with a British ship within the
British territorial water, causing a death of a British citizen. From the CIL perspective, occurred
within British territorial sea (within 3 nautical miles) and thus was British territory; but in common
law, this was NOT part of British territory (ends at low water mark) and there was no evidence of
British assent to this CIL rule in treaty or statute.
Thus English court had no jurisdiction – ould t t hi fo a slaughte . Keyn never left dock of
his o ship, o did he se d a issile f o it to the othe ship .
For writers on international law, however valuable their labours may be in elucidating and
ascertaining the principles and rules of law, cannot make the law.
To be binding, the law must have received the assent of the nations who are to e ou d it… Nor,
in my opinion, would the clearest proof of unanimous assent on the part of other nations be
sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what
Commented [D67]: Note: is the issue really an application
would practically amount to a new law. In so doing, we should be unjustifiably usurping the province
of a rule of international law?
of the legislature. at Note also the argument by way of parliamentary sovereignty
(recall APL)
31
Facts: cabin boy shot and killed captain on board a Chinese customs cruiser (an armed public ship of
Chi a i te ito ial sea of HK. Both e e B itish su je ts. Questio of…i u it it o u ed a oad
a Chinese govt ship).
the ou ts a k o ledge the e istence of a body of rules which nations accept among themselves.
On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will
treat it as incorporated into domestic law, so far as its not inconsistent with rules enacted by
statutes o fi all de la ed thei t i u als.
Note the contrasting ideas in the 2 paragraphs. 1st is strict transformation; 2nd perhaps CL
can incorporate the rule, as long as its not inconsistent with a statute or the other CL rule
Did Australia have a treaty-making power under international law before the passage of the Statute
of Westminister Adoption Act 1942 (Cth)?
The e e ts
Treaty adoption now seen as part of the prerogative in s 61 Constitution (recall APL)
BUT transformation by common law has been developed, especially in relation to CIL, not least in
cases where relevant municipal law is uncertain or ambiguous
32
- Concerned the National Security Act 1939-43 regarding the prohibition of conscription of
non-statutes
- Dixon J: it is a ule of o st u tio that, u less a contrary attention appear, general words
o u i g i a statute a e to e ead su je t to the esta lished ules of i te atio al la
(important interpretive principle)
- Latha CJ ho e e oted that the Cth pa lia e t a legislate…i ea h of i te ational
la
- He e statute said it applied to alie s i.e. as lea
Aliens have to be conscripted, even if there is any rule in international law domestic law has
effectively swamped over it
The interpretative principle is now well established. For instance, French CJ in CPCF v MIBP [2015],
said it applies to a statuto p o isio a le to e o st ued o siste tl ith i te atio al la
a d i te atio al legal o ligatio s e isti g at the ti e of its e a t e t.
- Concerned potential application of CIL state immunity to 2 Chinese civilians who were
accompanying Chinese army and had been charged and convicted of assault in Papua New
Guinea (then Australian territory)
- Di o J, adopti g the ie that i te atio al la is ot a pa t, ut is o e of the sou es, of
English la at { o e tato s ha e alled this the sou e do t i e – i.e. International
law is one of the sources of English law thus International Law is one of the sources of
o o la
- Latha CJ: I te atio al la is ot as su h pa t of the la of Aust alia… ut a u i e sall
e og ised p i iple of i te atio al la ould e applied ou ou ts at
Mabo v Qld (No 2) (1992) 175 CLR 1 – the legitimate influence on CL doctrine
The common law does not necessarily conform with international law, but international law is a
legitimate and important influence on the development of the common law, especially where
international law declares the existence of u i ersal hu a rights
Rationales
33
Wilcox J: Ratification of a convention does not directly affect Australian domestic law unless and
until implementing legislation is enacted.
It would lead to curious results if one could be tried w/o legislation – would mean CIL has greater
domestic effect than ratifying a treaty, as that needs implementing legislation – even where
ratification received parliamentary approval
Courts face a policy issue when deciding whether to recognize and enforce a rule of IL. In a criminal
case, the court should decline (makes distinction between criminal and civil customary international
law).
Not t a sfo atio he the legislatio si pl sa s pa lia e t app o es the atifi atio of this
t eat – this is t t a sfo ation/implementation/incorporation
C&M ch 4, pp 226-267
CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015) [1]-[14]
(French CJ); [297]-[304] (Kiefel J); [459]-[470] (Keane J) [also, if keen, Gageler J at [383]-[391])
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 [70]-[83], [89]-[119]
(Gummow, Hayne, Crennan and Bell JJ)
Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22 (18 June
2014) [39]-[46] (French CJ, Hayne, Crennan, Kiefel Bell and Keane JJ)
Chief Justi e Ro e t F e h, I te atio al La a d Aust alia Do esti La a aila le
at: http://www.hcourt.gov.au/assets/publications/speeches/current-
justices/frenchcj/frenchcj21aug09.pdf
When customary international law changes, common law changes – UK (Lord Denning)
incorporation approach. In Australia it is simply a legitimate source – source theory CIL
34
The power to enter into treaties is part of the prerogative – which informs content of executive
power - s 61 of the Constitution
- Australia can only be represented by the Cth, as only it has international legal personality
so states like NSW cannot enter into treaties (Barwick CJ in Seas and Submerged Land case
(1976))
- However there has been a growth of number of treaties (concern at democratic deficit in
treaty-making process) - lack of transparency, accountability, citizens have no opportunity to
comment on impact (this is the democratic deficit)
- Democratic deficit was addressed in a report in – Senate Legal and Constitutional References
Committee, Trick or Treaty? Commonwealth Power to make and Implement Treaties (Nov
1995)
Accession/ratification binds a country to international law, not just the mere signing of the treaty.
Possible scrutinisation between the signing and ratification of the treaty?
1996 Reforms
1. Tabling at least 15 days before government takes binding action – unless urgent
2. National interest analysis – economic, environmental, social, cultural impact, how it will be
implemented, etc.
3. Scrutiny by Joint Standing Committee on Treaties (JSCOT)
4. Treaties Council (under COAG – Council of Australian Governments) – i.e. get states involved
(why? Federalism, breaches by the states will mean Australia breaches the treaty)
5. Treaties information database
6. Commonwealth legislature has another head of power under external affairs
But all of these reforms are just policy and there is still no parliamentary approval required before
ratification. Is JSCOT simply window dressing?
Effects of ratification on executive decision making: the Teoh doctrine (still good law)
35
Facts: Mr T, a Malaysian citizen married to Australian citizen; had many children and step children;
convicted of heroin importation and possession; visa application refused on character grounds.
DISCRETIONARY decision made under statute – an important point, often dismissed when discussing
Teoh .
- Did not consider the best interests of the child which should have at least been a
consideration under the Convention on the Rights of the Child (ratified but not implemented
in statute) provides under Article 3:
Mason CJ and Deane J say that ratification absent implementation is not a source of direct rights
and obligations. But can affect statutory interpretation and CL.
PLUS:
Procedural fairness requires that the persons affected should be given notice and an adequate
opportunity of presenting a case against the taking of such a course – not necessarily that the
treaty will be upheld.
NOTE: ratification does not create a direct, enforceable right or interest, merely a procedural
presumption – rebuttable by the executive or in particular instances by decision makers.
McHugh J dissents:
The efo e, e i di ate o ehalf of the Go e e t that the act of entering into a treaty does not
give rise to legitimate expectations in administrative law which could form the basis for
challenging any administrative decision made from today. This is a clear expression by the
36
Also attempt to legislate Administrative Decisions (Effect of International Instruments) Bill 1995,
, … Ne e passed although ide ti al o e passed i South Aust alia, discussed in Collins v
SA [1999] SASC 257; C&M 254-5).
Does this state e t ualif as the e e uti e i di atio s to the o t a efe ed to Maso CJ
and Deane J?
- The statement was not made at or about the time the relevant treaty was ratified;
- The statement was directed to the Teoh principle, not to the action the executive would
take in relation to the treaty in question
- i.e. that the statement was TOO GENERAL – the judge eeded the state e t to sa
something to effect that de isio ake s ill ot a t…i a o da e ith pa ti ula
p o isio s of pa ti ula Co e tio s o t eaties.
2. The LEGISLATURE and International Law: s 51 (xxix) Constitution: the external affairs power
Geographic Externality
NSW v Cth CLR Seas a d Su e ged La ds ase ites R v Keyn (1876) – i.e. once
past the low water mark, you are external
E.g. 1988 amendments to the War Crimes Act 1945 (Cth) designed to permit Australia to prosecute
alleged WWII criminals in Australia (Polyukhovich v Cth (1991) 172 CLR 501) (retrospective criminal
charges)
37
Ex East Timor president alleged that the Timor Gap Treaty was void and unlawful under International
law and thus legislation based on the treaty was also void (dealt with under external affairs)
Court unanimously found that mere externality sufficient for the exercise of external affairs power –
it does t atte that it may breach II
Deane J: external affairs would e ui e observance of the spirit as well as the letter of international
agreements, compliance with recommendations of international agencies and pursuit of
i te atio al o je ti es hi h a ot e easu ed i te s of i di g o ligatio s
Mason J: Carrying out or the giving effect to treaty is a matter of external affairs – includes
'fa ilitati g the a i g o of the a ti ities fo hi h it akes p o isio
Murphy J goes further (C&M 235): may implement 'any IL', 'any treaty', 'any recommendation or
e uest' of a UN o ga isatio …
Not just the obligations of a treaty, but everything that needs to be done to give that treaty effect
May extend to draft conventions (Deane J), and reasonably apprehended obligations (Richardson v
Forestry Commission (1988) 164 CLR 261) – the power was activated even while Cth Commission of
Inquiry investigated the Lemonthyme forest s suita ilit fo i lusio fo WH listi g
1. That the treaty was not ratified merely as a device to attract the exercise of the external
affairs power – Deane J in Tasmanian Dam Case – a t e a sha o i uitous de i e to
att a t legislati e po e Ho ta Cth
- The treaty must be genuine
2. The law must conform to the treaty and carry its provisions into effect
- But does t ha e to e igid adhe e e
- Need not be implementation of the whole treaty, or all obligations
38
Proportionality test
Federal limitations
- Saw this already in Nulyarimma (re Genocide Convention Act), Bradley v Cth (1973)
- The courts apply a rule of CIL when it has been enacted into legislation or it has been
received at common law (though this is contentious, best to consider it as a source of the CL)
Dixon J – rule of construction that unless a contrary intention appear, general words occurring in a
statute are to be read subject to the established rules of international law
Legislative intent
Rules of international law can be referred to as an aid of interpretation when a statute is, prima
facie, intended to give domestic effect to the relevant treaties
MIEA v Teoh
39
- Where a statute or subordinate legislation is ambiguous, the courts should favour that
o st u tio hi h a o ds ith Aust alia s o ligatio s u de a t eat o i te atio al
convention to which Australia is a party, at least in those cases in which legislation is enacted
after, or in contemplation of, entry into, ratification of, the relevant international
i st u e t. This is e ause Pa lia e t, p i a fa ie, i te ds to gi e effe t to Aust alia s
obligations under international law.
Ambiguity
Narrow view
Broader view
Constitutional Interpretation
M70/2011 v Minister for Immigration and Citizenship CLR Mala sia De la atio
Case
Had no obligations under international law with respect to refugees except maybe in customary
international law – no domestic legislation and MOU signed was not necessarily legally binding
Protection obligations – rights that refugees are entitled to under the refugee convention
(protection visas)
**** Read as whole, the Migration Act contains an elaborated and interconnected set of statutory
provisions directed to the purpose of responding to the international obligations which Australia has
u de take i the Refugees Co e tio a d Refugees P oto ol . – Plaintiff M61.
40
James Crawford, The I ter atio al Law Co issio ’s Arti les o State Respo si ility (Cambridge
University Press, 2002).
James Crawford, State Responsibility: The General Part (Cambridge University Press, 2014).
The full text of Responsibility of States for Internationally Wrongful Acts (2001).
State responsibility
Australia and Oceania concluded an agreement not to forfeit foreign private property without
appropriate compensation. Oceanian Oil Co, acting under Oceanian legislation, forcefully took the
property of an Australian citizen residing in Oceania from his childhood. Can Australia claim
compensation for a breach of the agreement?
State responsibility – legal consequences flowing from breaches of international legal obligations by
states, whether those obligations are based on CIL or treaties.
The la of state espo si ilit p o ides secondary ules of lia ilit , as opposed to p i a ules:
The law of state responsibility has been codified in the Articles on the Responsibility of States for
Internationally Wrongful Acts, (2001) – most authoritative source of state responsibility
- State organs (Article 4) or those empowered by the law of that State (Article 5) are
espo si le fo the a t of thei offi ial e e if the offi ial s a t e eeded its autho it o
contravened instructions (Article 7).
The question is whether someone is acting in their official capacity of their government
Also, conduct carried out by a group in fact exercising elements of governmental authority or by an
insurrectional group would also be considered as an act of the State (even if they are not acting in
official government capacity) – Article 9-10.
- If there is an entity or individual that is exercising the sort of public power that is in FACT (as
a atte of fa t , the those g oups/e tit s o du t a e see as att i uta le to a state.
E.g. if they are exercising some element of governmental authority, effectively acting as part
of the government and exercising those powers (even if not officially recognised).
- This is particularly so in INSURRECTIONAL GROUPS (if it becomes a new government later)
Even in cases where the person responsible for a wrongful act is a private individual or unknown,
the act will be attributable to the state if:
41
- The person was acting under the authority or control of the state (Article 8) *
- The state acknowledged and adopted the act as its own (Article 11)
- Cf the state failed to take appropriate action (omission).
In Nicaragua, the question was whether the conduct of the Contras was attributable to US.
In order for private individuals actions are to be attributable to the state, you must prove that there
has been EFFECTIVE CONTROL exercised by the state or the group, otherwise it is insufficient to
prove. What does effective control mean?
** Attribution by adoption
In Tehran Hostage Case, the first question was: did the approval of the act amount to the act of
adoption? (First question/part of the judgement)
E e though the I a ia autho ities did t gi e spe ifi i st u tions, they can be said to have
adopted thei a tio s ot doi g a thi g a out it a d stati g ell do e he k fo a tual uote .
Is this suffi ie t to e see as adaptio ? The judge e t as a o e as that it ould e goi g too fa
to interpret such GENERAL declarations.
In Tehran Hostage, Case, the second question was: did the subsequent endorsement of the
situation amount to the act of adoption? (2nd part of the judgement – States did t do a thi g
about it, no police action, nothing was done).
The poli thus a ou ed the A atollah Kho ei i, of ai tai the o upatio of the E ass
[refusal to order to put a e d to the situatio a d issui g a de ee et .]… as o plied ith
othe I a ia autho ities a d e do sed the …the esult of that poli as fu da e tall to
42
TRANSFORM THE LEGAL NATURE OF THE SITUATION CREATED BY THE OCCUPATION OF THE Embassy
and the detention of its diplomatic and consular staff as hostages. The approval given to these facts
by the Ayatollah Khomeini and other organs of the Iranian State, and the DECISION TO PERPETUATE
THEM. Sth sth sth (see lecture slide)
- Not that it was adapted by the State necessarily but just that the failure to do anything by
itself is enough (same situation, different perspective).
The I a ia Go e e t failed altogethe to take a app op iate steps to p ote t the p e ises,
staff a d a hi es of the U ited States issio agai st atta k the ilita ts…the failu e of the
Iranian Government to take such steps was due to more than mere negligence or lack of appropriate
ea s – United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, para.
63
Omission here in itself (deliberate failure) is the problematic issue/breach of their legal obligations
to ensure the protection of the embassy.
The la i g of the i efield hi h aused the e plosio s…could not have been accomplished
without the knowledge of the Albanian Government – Corfu Channel Case (UK v Albania) (Merits)
[1949] ICJ Rep 4, 22. (Due diligence obligation to protect interests of other states then even omission
is an attribution factor).
Whether the contras activities could be attributable to the United States – legal question
SR Articles, Art 12
Thus there is no distinction between different types of obligations (this is the role of primary rules)
Objective responsibility (in the finding of breach of responsibility) excluding the mental factors such
as intention (element of fault, negligence, due diligence, etc. none of these are relevant. If such
factors are relevant they are part of the primary rules).
Cf different standards of care (fault, eglige e, due dilige e, et . i p i a ules: esta lishi g
these is a matter for the interpretation and application of the primary rules engaged in the given
case
Time factor = the breach must be established of an obligation which was binding upon the state at
the time the act or omission occurred. I.e. you cannot say a state that has committed a breach 10
years ago is bound by a treaty formed today (Article 13)
43
a) The claim is not brought in accordance with any applicable rule relating to the nationality of
claims (is there a nationality link between the individual and the state)
b) The claim is one to which the rule of exhaustion of local remedies applies and any available
and effective local remedy has not been exhausted – SR Articles, Art 44 (i.e. individuals must
go through the domestic court system first)
Nationality of claim
Principle: individuals are not empowered to bring a claim or commence judicial proceedings against
a FOREIGN STATE on the international law plane. Only STATES can commence judicial proceedings
against other STATES.
However, sovereign states can take up the case on BEHALF of the individual if there is SUFFICIENT
bond of NATIONALAITY between the state and the individual (diplomatic protection).
- Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 & Barcelona traction Case
(Belgium v Spain) ICJ Rep 3, paras 70-71.
Not conclusive evidence of nationality link on who a lai ou t s itize . Co pa e the diffi ult
of attaching citizenship in Australia as compared to Afghanistan (gives away nationality to anyone
who wants it).
Principle: before a state asserts the right of diplomatic protection on behalf of its victim national,
local remedies must be exhausted by the victim - ILC Draft Articles on Diplomatic Protection, Articles
14 & 15 (i.e. to do everything reasonably possible).
A state is e titled to p ote t its su je ts, he i jured by acts contrary to international law
committed by another State, from whom they have been unable to obtain satisfaction through the
o di a ha els . – Marvomattis Palestine Concessions Case (Jurisdiction) (Greece v UK) [1924]
PCIJ Rep 2 at 12.
Local remedies – the hole s ste of legal p ote tio ESSENTIAL to esta lish the lai a t s ase
before the municipal courts – Ambatielos Arbitration (Greece v UK) (1956)
44
- Consent (Article 20), and has the consent been given validly, and what is the scope of the
consent given, and BEFORE the act has taken place
- Self-defence (Article 21): prohibitions of jus cogens etc. and is a CPW
- Countermeasures (Article 22; 49-54)
- Force majeure (Article 23), cf impossibility of performance (Article 61 of VCLT); a completely
involuntary action which is brought about by external circumstance; no element of control.
- Distress (Article 24): if the author/agent of the state has no other reasonable way of saving
the lives of people. Distinguished from force majeure as there is still an element of choice
albeit not a preferable choice. However the act of distress must not lead to more lives being
endangered.
- Necessity – Article 25; at the essential interests of the state. Taken to safeguard an essential
interest of the state (strict form of the existence of the state in question), public
emergencies, serious environmental concerns, etc. controversial, narrow defined, hard to
meet all the criteria and establish it. Formed in the negative – designed to limit application.
Ca t jeopa dise othe states.
Gabcikovo Nagymaros Project [1997] ICJ Rep 7: agreement entered into with Slovakia and Hungary
(important case esp. for environmental issues)
- Necessity (looked at the essential interests of the state – does t ha e to e so high ut has
to be serious, e.g. ecological preservation of a water resource is sufficient to meet that
esse tial i te est th eshold , pe il esta lished that it ill happe %, ot just a e e
isk/likel ha e of e i o e tal isk, e.g. e pi i al s ie tifi e ide e , g a e ,
i i e t . The ea h ust e the ONLY a to itigate the effe t.
- Countermeasures (action that is taken in response to a wrong)
- Force majeure (not accepted by the court, there was no involuntary act, France had decided
to repatriate these 2 citizens)
- Distress (the risk to the lives of the 2 French citizens thus breach)
Must be able to resume obligations as soon possible to do so. Thus France was unable to
There are some remedies (rights to terminate treaties) etc. in primary rules
the epa atio ust, as far as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if that act had not been
o itted – Chorzow Factory (Merits) [1927] PCIJ Rep 9, 47.
45
What s the ost of putti g the state back into original condition? Status quo.
Forms of reparation:
1. Restitution: re-establishment as far as possible of the situation which existed prior to the
commission of the internationally wrongful act (status quo ante) – article 35 (overarching
ai . Ho e e if it is ate iall i possi le to do so, the it ould t o k just to etu fo
e.g. a stolen artwork that has been depleted. Thus would move down to compensation.
2. Compensation: monetary payments for any financially assessable damage to the extent that
such damage is not made good by restitution – article 36
3. Satisfaction – non-material method of reparation including an acknowledgement of the
breach, an expression of regret and an a formal apology insofar as it cannot be made good
by restitution or compensation (Article 37) e.g. psychological suffering, damage of prestige
to the state. Not exhaustive, depends on what the states agree on/courts instruct.
Cessation?
Reparations – principles
Article 31 – reparation
1. The responsible state is under an obligation to make full reparation for the injury caused by
the internationally wrongful act
2. Injury includes any damage, whether material or oral, caused by the internationally wrongful
act of a state
ps hologi al suffe i g a d loss of eputatio – Diallo (Guinea v DRC) [2012] ICJ Rep 324, para 21.
** Causation and remoteness are required elements in determining remedy (Article 31)
46
UN Charter, Art 33
- Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Rep 65.
the dispute ought efo e it must therefore continue to exist at the time when the court makes its
de isio
Judicial Settlement
Arbitration
Non-binding Legally Binding
Conciliation
Mediation
Inquiry
Good offi es
47
Negotiation No 3rd party involved
An example
- Composition
- Three heads of jurisdiction (contentious, incidental, and advisory jurisdictions)
- Phases of court proceedings
The ju isdi tio of the Cou t o p ises all ases hi h the pa ties efe to it a d all atte s
specifically provided for in the Charter of the United Nations or in treaties and conventio s i fo e
- By a special agreement
- Based on a compromissory clause in an agreement
- A epta e of the Cou t s o pulso Ju isid tio
- E.g. Special Agreement for North Sea Continental Shelf (C&M 835)
- Special Agreement for Pedra Branca (C&M 836)
- Cf Qatar/Bahrain (1994/95) ICJ Rep 112/6
- Cf Forum Prorogatum: Corfu Channel Case (Preliminary Objection) [1948] ICJ Rep 15
48
- Oil Platforms (Preliminary Objections) (Iran v USA) [1996] ICJ Rep 803: based on the 1955
Treaty of Amity, Economic Relations and Consular Rights, Art 21 (2), (C&M 454)
- A ge ui e atte pt o e of the pa ties to e gage i dis ussio s ith the othe pa t , ith
a ie to esol i g the dispute – Georgia v Russia (Prelim Objec) [2011] ICJ Rep 70 at para
171
- Negotiatio s ust elate to the su je t atte of the t eat o tai i g the o p o isso
lause – Ibid at 161
South-West Africa Cases (Ethiopia v South Africa; Liberia v. South Africa) (Second Phase) [1966] ICJ
Rep 6 (rejection of action popularis)
Cf The o o i te est i o plia e ith the relevant obligations under the Convention against
the Torture implies the entitlement of each State party to the Convention to make a claim
o e i g the essatio of a alleged ea h of a othe State pa t – Obligation to Prosecutor or
Extradite (Belgium v Senegal) [2012] ICJ Rep, para. 69
Cf Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240 at 261, para 55.
10.8 ADMISSIBILITY
Political dispute v legal dispute?
Inherent limitations
49
- The General Assembly or the Security Council may request the ICJ to give an advisory
opi io o a legal uestio .
- Other UN bodies may also request advisory opinions of the Court o legal uestio s a isi g
within the s ope of thei a ti ities – cf Legality of the Use by a State of Nuclear Weapons in
Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 (rejected the request by WHO)
- A mixed question of law and fact is none the less a legal question – Western Sahara
(Advisory Opinion) [1975] ICJ Rep 12, para 17.
- The politi al aspe t does ot suffi e to dep i e it of its ha a te as a legal uestio –
Kosovo (Advisory Opinion) [2010] ICJ Rep 403, para 27.
- Status of Eastern Cornelia (Advisory Opinion) [1923] PCIJ Rep (Ser. B) No. 5
- However, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136 at 156 – eje tio o l fo o pelli g
easo s
50
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