LAWS2000 International Law
LAWS2000 International Law
Topic 1: The History and Purpose of International Law
International law body of rules that facilitates/regulates the conduct of states and relations with one another.
Public International Law body of rules that govern relations between state/s and certain non-state actors (international organisations).
Private International Law principles that govern relations between individuals across borders or involving transboundary elements (business contracts).
regulating conflicts between rules of different domestic legal orders.
Stage 1) Gradual emergence: 1648 Treaties of Westphalia (ended 30yr war)
established cornerstone principles relevant today:
rejection of secular power of pope.
concept of sovereignty states seen as sovereign equals and organised territorial entities.
articulation of principle of non-interference in internal affairs.
Stage 2) League of Nations to World War II (1918-1945)
creation of League of Nations (1920-1945), (HQ in Geneva).
first inter-state organization that aspired universal membership (colonial rule) employing international civil servants.
Stage 3) UN creation to end Cold War (1939-1945)
1945 Charter of United Nations goal of preserving international peace & security (HQ in New York).
Has general assembly, security council and the International Court of Justice.
Cold War paralysed UN, mainly security council.
United Nations Charter
to save succeeding generations from scourge of war, reaffirm faith in fundamental human rights, in dignity and worth of human person, equal rights, establish justice and respect, promote social progress and better standards of life in larger freedom, no use of force.
practice tolerance and live together in peace, unite our strength to maintain international peace and security, employ international machinery for promotion of economic and social advancement of all peoples.
Article 1; maintain international peace and security, prevention, and removal of threats to the peace, suppression of acts of aggression or breaches of peace, promote and encourage respect for human rights and freedoms for all without distinction.
Core international law principles embodied in UN Charter:
peaceful resolution of international disputes, prohibition of use of force, maintenance of international peace and security, principle of sovereign equality, principle of non-interference in the domestic affairs of states.
Stage 4) End Cold War to present (revitalisation)
Globalization and expansion of international economic and trade agreements.
Establishment of International Criminal Court (ICC) (1998).
Sovereign equality of states each state can make its own decisions about how to order its affairs, with the result that one state may not force its will upon others.
Voluntary consent-based system states have authority or capacity to limit exercise of sovereign power by consenting to be bound by international legal rules (necessary condition for international legal norms).
International Law has horizontal system of authority states are both makers and enforcers of international law.
State-centred states are only actors with capacity to consent to the creation of international legal rules that bind them.
Against International Law: Lacks sovereign authority and a central law-making authority, lacks centralised and compulsory enforcement mechanisms.
Favour: recognises a body of international rules that are binding, invoked and used by states.
Reasons for compliance: Immediate and long-term self-interest, compliancy pull of legitimacy, reputation, institutions, normative force of embedding and entrenching political preferences.
Topic 2: Sources of International Law
Article (38) Statute, International Court of Justice
The Court, function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
international conventions, whether general or, establishing rules expressly recognized by the contesting states; (primary)
international custom, as evidence of a general practice accepted as law; (primary)
the general principles of law recognized by civilized nations; (secondary)
subject to the provisions of Article 59, judicial decisions, and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (secondary)
Treaty International agreement between States (written) governed by international law (Article 2(1)(a)) Vienna Convention on the Law of Treaties). [Consent/binding]
Pacta sunt servanda: states are bound to honour their treaty-based obligations.
States domestic laws must align with partied international treaties.
Customary international law arises when (a) followed as a general practice among states [similar and repeated] (objective element) (b) accepted by those states as legally binding [opinio juris sive necessitates] (subjective belief)
(a) is sufficient for Customary international law to be established (b) only when potential that practice didnt result from legal motivations.
State practice must be common, consistent, and concordant. (Fisheries Jurisdiction cases [UK v Iceland] 1974
Article 38(1) ICJ Statute: general principles of law recognized by civilized nationsgeneral principles of law are equity, good faith, res judicata, and the impartiality of judges. Used when cannot find authority in other sources of international law.
Article 59ICJ Statute: The decision of theCourthas no binding force except between the parties and in respect of that particular case.
judicialdecisions/ case law is not in and of themselvesbinding international law but international judges constantly refer to previous decisions.
Article 38(1) ICJ Statute: the teachings of most highly qualified publicists of various nations
Academic interpretations are useful to better understand/clarify law where there is ambiguity. (Scholarly Writings)
International Law Commission (ILC) role on the codification and progressive development of international law.
Soft Law - When a legally non-binding instrument begins to play a role in the creation of international law, assist in the interpretation. Creates expectations of certain behaviour. (States will accept so no need to debate in parliament, and treatymaking process to skipped)
Hard law describes legally binding sources.
Soft law instruments do not constitute independent sources of international law.
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Topic 3: Relations of International and National Law
Vienna Convention on the Law of Treaties (1969) [carry dutys out in good faith]
Article 27: Internal law and observance of treaties
A party may not invoke provisions of its internal law as justification for failure to perform a treaty.
Article 46: Provisions of internal law regarding competence to conclude treaties.
A State may not invoke the fact that its consent to be bound by a treaty has been expressed in 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.
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.
Articles on State Responsibility (2001)
Article 3: The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.
The perspective of international law is national law is irrelevant in context.
German Basic Law
Article 25: Primacy of international law
The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.
Monism sees national and international law as part of one single normative legal order with international law having direct effect. [inconsistencies]
Dualism sees international and national law as distinct legal orders (international law must be transformed into domestic law to have effect) [AUS]
International law in Australia
International Law as such does not form part of Australian law.
Effect is first and foremost given to Australian law.
Australian courts may refer to international law.
Australian law is to be interpreted consistently with international obligations. By this means Australian courts can ensure conformability with international law.
The international obligations applicable to Australia are generally to be identified as they exist at the time the interpretive question arises.
International law cannot be invoked to override clear valid Australian legal provision.
Parliament may legislate on matters in breach of international law, thereby taking the risk of international complications.
Australian courts should give especial attention to protecting human rights and fundamental freedoms as recognised under international law.
The Australian Constitution
Section 75(i): vests the High Court with original jurisdiction in relation to matters arising under a treaty.
Section 51 (xxix): grants federal Parliament power to enact legislation with respect to external affairs.
enable Australia to carry out functions as an international person, fulfilling its international obligations and acting effectively as member of community of nations. (Murphy J in New South Wales v Commonwealth [1975])
relevant when determining when federal government has power to enact legislation that may fall to powers of state.
Section 61: Executive has the capacity to determine whether international obligations are implemented domestically.
Commonwealth v Tasmania [1983] 158 CLR 1
In 1974 Australia ratified the World Heritage Convention. Commonwealth passed legislation to protect Tasmanias wilderness from building of a dam.
Government challenged validity of Commonwealth legislation on the grounds had no power to legislate on State matters, such as the dam.
HC majority held: Australia party to WHC, such agreement directly relates to external affairs allowing Commonwealth to pass laws that give effect to Australias international legal obligations. (External power exists)
Australia, by depositing its instrument of ratification, bound itself to observe terms of Convention and assumed real & substantive obligations (Deane J)
Treaties do not have direct effect in Australia but every treaty party to is binding upon it, and must be adhered to in good faith [Tasmanian Dam Case, Deane J] [Dualism]
a treaty cannot qualify or modify the meaning of legislative words or expressions which are otherwise clear (Yager v The Queen [1977] 139 CLR 28 (Mason J))
Legislation directly incorporates or terms may assist statutory interpretation.
Dietrich v The Queen (1992) 177 CLR 292
Appellant was tried without legal representation and claimed was denied a fair trial. The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to fair trial. Australia is party to the ICCPR.
High Court held that any rights guaranteed by ICCPR still need to be transformed into domestic law before they can be effective in a domestic court.
Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273
UN Convention on the Rights of the Child (CRC) ratified by Commonwealth in 1990. Foreign national applicant failed character test, subject to deportation order, while children remained in Australia.
Article 3(1) of UN CRC: best interest of the child.
Held: A treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. Also held: Australia ratifying international treaty must act in manner consistent with its obligations, even if not incorporated into Australian law.
The doctrine of transformation customary international law only becomes part of Australian law when formally adopted by Parliament as part of common law.
The doctrine of incorporation that customary international law is automatically a source of Australian law unless contrary.
Nulyarimma v Thompson [1999] 96 FCR 153
Australia is party to 1948 Genocide Convention. Aboriginal community claimed sponsorship of Native Title Act amendments and failure to seek World Heritage Listing of Lake Eyre region were acts of genocide.
Argument: is genocide part of customary international law?
FCA ruled does not form part of Australian law in the absence of domestic legislation declaring genocide a crime. FCA accepted that prohibition of genocide constituted a jus cogens norm, but without implementing legislation, no effect in Australian law.
Merkel J: criteria customary international law to become source of common law:
customary rule must have attained ... general acceptance by ... the community of nations.
courts must consider whether rule has been received into and so become a source of English law.
Must be 'not inconsistent with rules enacted by statutes.
Except in cases of conflict, rules must be received. Inconsistent rules may only be enacted by legislation.
Once received, a rule of custom is to be treated as a true declaration of the common law.
However, the reception into domestic law will only be taken to have occurred as from the date the particular rule ... has been established.
Statutory Interpretation (2 principles)
A principle of statutory construction: in case of ambiguity in a statute, courts should favour a construction that accords with international law.
A treaty can assist in the interpretation if (a) there was actual or contemplated participation by Australia prior to enactment and (b) either legislation in question is ambiguous or obscure, would otherwise lead to a result absurd or unreasonable (Acts Interpretation Act 1901 (Cth) s 15AB(1))
Australian courts will not assume that Parliament intends to limit or remove certain human rights or fundamental freedoms unless this intention is explicitly stated in clear and unambiguous language.
Topic 4: Law of Treaties
United Nations, Vienna Convention on the Law of Treaties (VCLT) (adopted 23 May 1969; entered into force 27 January 1980) United Nations, Treaty Series Vol 1155 p 331.
Establishes rules, procedures, and guidelines for how treaties are created, drafted, amended, interpreted, and operated.
Only applies to treaties concluded between states.
Article 2(1): what is a treaty international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its designation.
Intention to create rights or duties binding under international law:
Aegean Sea Continental Shelf (Greece v Turkey) 1978: Press Communique without signatures or initials could be considered a legally binding treaty (para 96)
Maritime Delimitation and Territorial Questions (Qatar v Bahrain) 1994: written minutes from a meeting stipulated commitments to which Parties have consented. It therefore created rights & obligations in international slaw (paras 25, 30)
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) 2017: A Memorandum of Understanding (MoU) between Kenya and Somalia was a treaty under international law (para 42)
Unilateral Statements A state may evidence a clear intention to accept obligations vis-a-vis certain other states by a public declaration which is not an offer or otherwise dependent on reciprocal undertakings from its addressees.
Declarations make by unilateral statements can create legal obligations if intends to be bound by terms of declaration. Must be obeyed and have legal consequences (legally binding) (Nuclear Test Cases (Australia v France, New Zealand v France) 1974 ICJ Rep 253 para 43)
Authority to conclude a treaty is a matter of national law of each state to decide which government official is competent to enter international treaties on behalf.
UK: Concluded by the Crown Government acting under Royal Prerogative, however, Section 20 of the Constitutional Reform and Governance Act 2010, a treaty must be laid for ratification before Parliament.
USA: requires the consent of at least 2/3 of Senate, but President may make executive agreements without the need to consult any other body.
Australia: Article 61 Constitution Commonwealth Government on behalf of country
Article 7: Full Powers
A person is considered as representing a State (authenticating & consent of being bound):
he produces appropriate full powers; or
it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
Heads of State.
heads of diplomatic missions.
representatives accredited by States and its organs.
Consent to be bound by a treaty found in article 11-17 VCLT.
Expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, or accession.
Maritime Delimitation in the Indian Ocean (Somalia v Kenya)
Kenya & Somalia signed MoU stated that memorandum entered into force only upon signature. No other conditions attached.
Signature signifies state's intention to become party to treaty & ratification signifies states formal acceptance of the treaty obligations.
Ratification signifies state's formal acceptance of treaty's obligations, and legally binding on state Article 14 of VCLT ratification required if: [specified if required]
specified in treaty.
negotiating parties agree its needed.
representative who signed treaty did so subject to ratification.
Or appeared from full powers of representative or it was expressed during negotiation that that was intention of state.
Entry into force (Article 24, VCLT) A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.
1982 UN Law of Sea Convention was finalised and opened for ratification in 1982 but entered into force in 1994 upon deposition of 60th instrument of ratification.
Art 18, VCLT State obliged to refrain from acts which would defeat object and purpose of a treaty when:
Treaty signed or has exchanged instruments.
It has expressed its consent to be bound by treaty, pending entry into force of treaty and provided that such entry into force is not unduly delayed.
Art 25, VCLT treaty or part, is applied provisionally pending its entry into force if:
Treaty itself provides; or
Negotiating States have in some other manner so agreed.
Invalid Treaties Several grounds may affect validity of states consent to be bound by a treaty (Arts 4653, VCLT)
Violation of internal law re. competence to conclude treaties (Art 46, VCLT)
requires violation of internal law is manifest and concerned a rule of its internal law of fundamental importance.
Error in formation of treaties (Art 48, VCLT)
relates to fact or situation which existed at time when treaty was concluded and if it formed an essential basis of consent expressed.
Fraud (induced on false grounds) (Art 49, VCLT), Corruption of a representative of a state (Art 50, VCLT), Coercion (consent given under duress, non-forceable means) (Art 51, VCLT), Threat or use of force (physical force) (Art 52, VCLT)
Conflict with a peremptory norm of general international law (jus cogens)
Art 53, VCLT treaty is void if, at time of conclusion, it conflicts with peremptory norm (norm accepted & recognized by international community of States as norm from which no derogation is permitted) of general international law.
prohibition against torture and genocide; prohibition of aggression; ban on crimes against humanity, prohibition of piracy, right to self- determination.
Reservations (Article 2(d), 19-23, VCLT) (also in ILC Guide to Practice on Reservation to Treaties 2011) means a unilateral statement where it purports to exclude or to modify the legal effect of certain provisions of treaty in their application to that State.
(Dont confuse) interpretative declaration: an expression of view by a declarant state as to the meaning of a treaty which is not put forward as a condition of being bound; only explanatory in character.
Article 19 Formulation of reservations Reservations are in principle permissible unless:
Prohibited by treaty; treaty provides only specific reservations may be made; or reservation is incompatible with object and purpose of treaty.
Cant logically conflict the treaty itself.
Article 20 Acceptance and objection to reservations.
(1) Reservation expressly authorised by treaty doesnt require subsequent acceptance.
(2) When it appears from limited number of negotiating states and the object & purpose of treaty must provide consent of each one to be bound, a reservation requires acceptance by all parties.
(3) When treaty is constituent instrument of international organisation and unless it provides, a reservation requires accept of competent organ.
Permissible Reservations
Other states may accept reservation (if state accepts reservation by another state, they will be parties to same treaty)
Other states may object to reservation (If state objects to another states reservation the treaty will not enter into force between two states).
A states reservation only becomes effective when at least one other contracting state has accepted it.
Legal effect/consequences of invalid reservation to treaty
Void and devoid of any legal effect. Other states are not obliged to object or accept.
Invalidity of impermissible reservation does not depend on objection or acceptance by another contracting state.
Solution:
Unless withdrawn, reserving State does not become party to treaty.
Ignore, reserving State becomes party to treaty without reservation.
Reserving becomes party to treaty without reservation, unless expressed.
Unless state that makes reservation make is expressly states that it will only be party to treaty if it can benefit from the invalid reservation then it will be presumed to be a full party benefiting from reservation.
Treaty Interpretation Article 31 & 32 VCLT (reflect customary law) [teleological interpretation]
Article 31(1) General rule of interpretation treaty interpreted in good faith in accordance with ordinary meaning [priority] to be given to terms of treaty in their context (whole), object, and purpose. (Includes everything relevant to making decision)
South China Sea Arbitration (The Philippines v. China) meaning of an island and rock debated.
Article 32 Supplementary means of interpretation recourse may be had to supplementary means of interpretation, including preparatory work of treaty and circumstances of conclusion when the interpretation according to article 31:
leaves meaning ambiguous or obscure; or leads to result that is absurd or unreasonable.
Topic 5: Statehood and Legal Personality
International legal personality capacity to be a bearer of rights and duties under international law. (States have full legal personality)
Capabilities ascribed to subjecthood:
Ability to make claims to rights granted under international law, power to enter international diplomatic relations, bearing obligations directly imposed by international law, capacity to create international law (binding treaties), ability to enjoy immunities from other states jurisdiction.
States only subjects that have full legal capacity, others have partial.
Beyond the state: emerging actors:
International Law Commission (ILC) defined international organisations as a organisation established by a treaty or other instrument governed by international law and possessing own legal personality. International organisations may include as members, in addition to states.
International organisations have become indispensable in addressing global problems and managing responses.
e.g., United Nations (UN), North Atlantic Treaty Organisation (NATO), World Trade Organisation (WTO).
Do not confuse with non-governmental organisations (NGOs), which are established by private, not public actors (and thus not by means of a treaty)
Individuals are an internal matter of sovereign state. (No direct rights under law.)
Groups of individuals attained rights under international law in relation to self-determination. Rights of minorities relating to protection of their culture, language, religion, and other characteristics (non-state armed actors) (treaties protecting minorities)
Multinational corporations have rights under international economic law (e.g., foreign investment protections) (currently no legally binding obligations for multinational companies)
Montevideo Convention on Rights & Duties of States (1933), Art. 1 States should possess: (definition has obtained customary international law status)
(a) permanent population (no minimum/fixed)
Required some core population that inhabits territory.
Globalisation non-residential citizens and populations in permanent flux.
(b) defined territory.
States are territorial entities: cannot exist without certain territory. No minimum size prescribed. Defined physical boundaries (not completely fixed)
(c) a government.
Some form of coherent effective exercise of public power over land & people.
No specific form of government (dictatorship or democracy meet criteria)
(d) capacity to enter relations with other states.
external component to the internal one of government
Origin of criterion in context of colonialism: certain autonomy of non-independent states.
Capacity also arises from independence & recognition by other states (can
Recognition of States
Practically, the recognition by other states is important as they need to recognise you as a state to enter a treaty.
To become member of UN 2/3 votes of general assembly is needed.
Constitutive Theory statehood requires formal recognition of sovereignty & statehood by existing states.
Declaratory Theory: status of state is determined by it meeting criteria of statehood, does not require external recognition.
Examples of aspiring statehood:
Somaliland declared independence from Somalia in 1991, not officially recognised by any UN member state.
Palestine PLO declaration of independence in 1988, nominal control over some areas in context of Israeli occupation, nominally recognised by 138 UN member states [2021], but only UN non-member observer status, accession to several treaties.
Turkish Republic of Northern Cyprus declaration of independence in 1983, only recognised by Turkey. Declared invalid by UN Security Council
Abkhazia & South Ossetia, as well as Transnistria formally recognised only by Russia and a handful of other states.
Kosovo declared independence in 2008, recognised by more than 100 UN member states, EU split, member of IMF & World Bank.
State dissolution and state succession new states emerge from dissolution of existing state. (e.g., Czechoslovakia 1992/93; Yugoslavia 1990s)
Secession the separation of part of territory of an existing state to create a new state.
Consensual secession (Montenegro 2005 & South Sudan 2010 after referendum)
Contested secession (e.g., Bangladesh from Pakistan 1971)
Merger of existing states states join to form single state (e.g., Germany 1990)
Peoples right to self-determination is a principle of United Nations.
Right to self-determination has external and internal dimension (external dimension important in context of decolonisation)
Charter of United Nations Article 1(2): develop friendly relations among nations based on respect for principle of equal rights & self-determination of peoples to strengthen universal peace.
enshrined as a human right (ICCPR, Art. 1): All peoples have the right of self-determination. Freely determine their political status and freely pursue their economic, social, and cultural development.
Right to self-determination is more contested in case of secession (i.e., Kasovo from Serbia 2008) and in context of referendum for independence (i.e., South Sudan 2010)
ICJ, Chagos Island case (Advisory Opinion) [2019]
Considered Mauritius claim over Chagos archipelago. UK had no doubt that it had sovereignty (home to important military base)
2019 ICJ Advisory Opinion affirming right of self-determination of people concerned.
UN Declaration of Rights of Indigenous Peoples (2007), Art. 3
Indigenous have right of self-determination, they freely determine their political status and freely pursue their economic, social, and cultural development.
Art 4 Indigenous peoples exercising self-determination, have right to autonomy or self-government in matters relating to internal and local affairs, and means for financing their autonomous functions.
Topic 6: Jurisdiction and Sovereignty
Jurisdiction lawful power of a State to define and enforce the rights and duties, and control the conduct, of natural and juridical persons.
Jurisdiction to prescribe power of a state to assert applicability of its national law to any person or property.
Jurisdiction to enforce right of a state to put its laws into operation e.g., arrest.
No state can exercise enforcement jurisdiction within foreign soil.
If does without permission, it violates other states territorial integrity & territorial sovereignty.
Jurisdiction to adjudicate right of a state to exercise judicial powers over persons and objects.
E.g., Theft Domestic criminalization of theft is act of prescriptive jurisdiction. Physical apprehension of suspected thief is enforcing jurisdiction. Jurisdiction to adjudicate relates to subsequent criminal prosecution of individual.
Sovereignty supreme authority within a territory.
Sovereign states can enjoy immunity from other States jurisdiction, freedom from other States intervention on territory, equal rank to other sovereign States.
Sovereign equality states regarded as equal in international law regardless of size, population, or wealth.
Territorial control the freedom to use and dispose of territory under states jurisdiction and to perform activities deemed necessary to the population.
Duty of non-intervention no other state should intrude into states territory.
ius excludendi alios (right to exclude others).
Sovereign immunity right of immunity from jurisdiction of foreign courts for acts performed by state in its sovereign capacity.
Diplomatic immunity right of state representatives acting in their official capacity to immunity from legal system of state in which they are operating.
Principles/Grounds of Jurisdiction cases involving foreign element, state must justify grounds for jurisdiction.
Principle of territoriality (territorial jurisdiction)
state has jurisdiction over all acts, whether criminal or not, committed on its territory and over everyone located on territory of that state.
Derived from state sovereignty and subject to limitations imposed by international law (i.e., human rights law) a state can legislate as it pleases on matters it desires on own territory.
Objective territoriality focuses on the effects of an offence: A state has jurisdiction over a criminal offence that is completed on its territory even if some constituent elements of offence took abroad.
Subjective territoriality: a state has jurisdiction over all criminal offences if they are initiated or planned on its territory.
Principle of (active) nationality (jurisdiction based on nationality) offences committed by a national aboard.
States may extend their laws to their nationals regardless of where they are located.
If individual has dual nationality, both states of nationality may assert jurisdiction based on nationality.
Nottebohm Case courts will assess which state has a more genuine connection to individual.
Principle of passive personality offences committed against a national.
A state can assert its jurisdiction an offence committed abroad on the sole ground that the victim of the offence was a national of the state.
A state may claim jurisdiction and seek to prosecute and trial individuals, even for an act committed abroad, which have affected the nationals.
Principle of protection (protective jurisdiction)
Principle provides that states may exercise jurisdiction over foreign nationals who have committed an act abroad, which is deemed anything threatening national security, regardless of where act occurs or who has committed it. (Genuine threat to state security interests)
Principle of universality (universal jurisdiction)
Certain offences are so serious and disruptive to international community that any state can claim jurisdiction over them no matter where they have been committed, who they have been committed against or nationality.
Legal basis founded in international customary law.
A state can acquire title of sovereignty to new territory in several ways (modes of acquisition of territory).
Cession
State can purchase territory from another state through cession. e.g., US purchase of Alaska from Russia in 1867.
may result from an agreement to resolve a border dispute between states (mutual transfer of territory-'land swap)
The state that acquires the territory cannot obtain more rights to the territory than those possessed by ceding state. Additionally, acquiring state must respect potential rights of third states & indigenous population.
Accretion new land created by nature.
Occupation of Terra Nullius A state can obtain title to newly discovered territory.
Title is acquired through occupation when a state demonstrates that it exercises effective control over a territory of no-man's land and intends to obtain title. (New discovery)
Occupation through Prescription
state acquires title to territory previously under sovereignty of another state.
Controversial mode: derives from some form of implied consent from dispossessed state.
element of consent means the acts of acquiring state must be peaceful & that sustained protests and objections by 'old' state will prevent prescription.
Conquest (Belligerent Occupation) Using force to conquer foreign territory.
Since UN Charter 1945: a state cannot acquire territory through conquest (prohibition of acquisition of territory through use of force).
Instead, one state's military occupation of the territory of another state activates the international legal regime on belligerent occupation.
State territory shall not be the object of acquisition by force and that attempts to disrupt the territorial integrity of a state are incompatible with the purposes and principles of the Charter.
e.g., Iraq's attempt to annex Kuwait following 1990 invasion, Turkeys occupation of North Cyprus following its invasion in 1974.
Topic 7: Immunities
Sovereign or State Immunity:
States are juridically equal, no state may exercise jurisdiction over another without consent.
The law on state immunity forms part of customary international law and applies to all states codify this understanding:
Initial work undertaken by International Law Commission (ILC)
Draft Articles on Jurisdictional Immunities of States & Property (1991)
Resulted in UN Convention on Jurisdictional Immunities of States and their Property (2004).
Whos Protected: States & its representatives.
(b) State means:
(i) the State and its organs of government
(ii) constituent units of a federal State
(iii) political subdivisions of the State which are entitled to perform acts in the exercise of the sovereign authority of the State
(iv) agencies or instrumentalities of State and other entities, to the extent that they are entitled to perform acts in exercise of sovereign authority of State
(v) representatives of the State acting in that capacity.
Articulated in UN Convention on Jurisdictional Immunities of States and their Property (2004), Art. 2(1)(b)
Whats Excluded: Part III (proceedings where state immunity cannot be invoked)
Art 10: Commercial transactions
When states act in commercial capacities, they are excluded from immunity.
It Is only sovereign acts that benefit from immunity.
Art 11: contracts of employment.
Art 12: personal injuries and damage to property.
Art 13: ownership, possession, and use of property.
Art 14: intellectual and industrial property.
Art 15: participation in companies or other collective bodies.
Art 16: ships owned or operated by a state.
Art 17: effect of an arbitration agreement.
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99
Italian judges were going after German state property in Italy, making orders of confiscation against state cultural exchange constitutions.
German brough to ICJ stating they are violating right to state immunity.
ICJ ruled that customary international law did not deprive a state of immunity because of alleged serious violations of international human rights law and IHL.
Confirming that is state immunity even in cases of international human rights or humanitarian law violations.
jus cogens norms? rules of State immunity are procedural and confined to determining whether courts of one State may exercise jurisdiction in respect of another, it regulates exercise of jurisdiction in respect of conduct and entirely distinct from substantive law which determines whether that conduct is lawful/unlawful.
State officials are representative of the state and benefit from immunity from the jurisdiction of foreign states. They have 2 types:
Functional immunity (ratione materiae)
Immunity only in relation to conduct performed in an official capacity as a state official. (doesnt extent to acts of private nature)
Continues after officials leave office (cannot be prosecuted later for acts performed in an official capacity)
Based on customary international law and Vienna Convention on Consular Relations (1963)
Can be waived with states consent (e.g., Chad with Habre)
Personal immunity (ratione personae) (only high-ranking officials)
Complete immunity even acts of private nature.
Only for duration of the officials time in office (after, they enjoy functional immunity)
Based on customary international law.
Both immunities apply even in cases of serious international crimes but exceptions subject to intense scholarly, policy debates & international litigation.
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3
Concerned criminal case against sitting minister of foreign affairs of DRC for serious violations of IHL. Arguing that Belgium violated its immunity and that of its state officials.
ICJ ruled state practices does not support existence of exception to immunity from foreign criminal jurisdiction in situations concerning commission of international crimes,
ICJ also noted scenarios under which foreign ministers could be lawfully subject to criminal prosecutions (incl. by international criminal court)
Pinochet Case prosecuting state official after left office (question of functional immunity) R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (Pinochet No 3) UK House of Lords (1999)
Spanish courts brought criminal case under Spains universal jurisdiction laws and requested extradition, incl. in relation to charges of torture. (Arrested in UK giving rise to extradition proceedings in UK)
House of Lords held there is immunity for serving heads but no immunity for former, in relation to acts which constituted international crime for which a form of universal jurisdiction has been established.
International criminal courts have excluded immunity for state officials (e.g., Rome Statute of the International Criminal Court (ICC), Art. 27), but exercise with regards to ICC non-state parties remains controversial.
Arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (2023)
After referral by state parties and Ukraine accepting ICC jurisdiction.
ICC arrest warrant against Putin, sitting head of state.
Russia not a state party and does not recognise ICC jurisdiction and stated for them, head of state enjoys absolute immunity under international law.
General Principles state immunity
Art 5: A State enjoys immunity, in respect of itself and its property, from jurisdiction of courts of another State subject to provisions of present articles.
Art 6: modalities for giving effect to state immunity (refraining from exercising jurisdiction before its courts)
Art 7: no immunity if state expressly consents to the exercise of foreign jurisdiction (e.g., agreement)
Art 8: no immunity if state participates in court proceedings.
Art 9: no immunity in counterclaims (arising from proceedings)
Diplomatic Immunities:
Functions of diplomatic missions include the representation, promotion and protection of interests and nationals of the sending state.
Diplomats and consular officials sub-set of state officials (represent interests) benefit from special legal protection regime codified in two conventions that regulate immunities and privileges for diplomatic agents:
Vienna Convention on Diplomatic Relations (VCDR, 1961)
Art. 31: A diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving State. They shall enjoy immunity from its civil and administrative jurisdiction, except in case of:
(a) action relating to private immovable property situated in territory of receiving State unless he holds it on behalf of sending State for purposes of mission.
(b) action relating to succession in which diplomatic agent is involved as executor, administrator, heir, or legatee as a private person and not on behalf of sending State
(c) action relating to any professional or commercial activity exercised by diplomatic agent in the receiving State outside his official functions.
Vienna Convention on Consular Relations (VCCR, 1963)
Scope of diplomatic immunity (immunity can be waived by the sending state or by the diplomatic agent themselves):
Cannot be obliged to give evidence or otherwise act as a witness.
diplomatic agents person is inviolable, i.e., cannot be arrested, detained, or searched, extends to diplomatic bags (Art. 27, VCDR)
Immunities and inviolability extend to diplomatic missions (Art. 22, VCDR)
Who does it apply to?
Diplomatic agents (ambassadors & lower-level diplomatic agents)
Consular agents (who represent state in administrative/technical matters)
Members of family of a diplomatic agent.
Members of administrative and technical staff of mission, along with family members, if not nationals or permanent residents of receiving State (subject to greater exceptions)
Members of service staff who are not national or permanent residents enjoy immunity in respect to acts performed in course of their official duties.
When does it apply?
moment they enter to territory of receiving State once they have taken up post, or if already in territory from moment appointment is notified to relevant Ministry in receiving state.
Enjoys immunity while passing through territory of third-party States to take up post or to return to home country.
Immunity extinguishes upon a reasonable time elapsing from the end of the diplomatic mission.
Abuse of diplomatic immunity:
Persona non grata: receiving state declares presence of a person as non-acceptable, revoking diplomatic credentials (VCDR, Art. 9)
Waiver of the immunity by sending state.
International organisations:
immunity granted by states.
Sometimes through treaties: Convention on Privileges & Immunities of United Nations (1946)
Because they are based on territory of other states, these immunities are considered necessary to carry out their functions without interference.
UN Charter, Art. 105: UN shall enjoy in the territory of each of its members such privileges and immunities necessary for fulfillment of its purposes.
accountability for international organisations?
International Organisations can waive their immunity or must provide alternative dispute settlement mechanisms.
Tehran hostage case United States of America v. Iran) (Judgment) [1980] ICJ Rep 3
Facts: During Iranian revolution, militants stormed the US Embassy. US diplomats held hostage. Iranian security forces did not intervene. US brought case before ICJ and claimed violation of the VCDR and VCCR.
ICJ confirmed the inviolability of diplomatic envoys and embassies under international law and determined Irans inaction violated its international obligations.
2010 cholera outbreak in Haiti
Facts: Nearly 10,000 people died. UN panel concluded that contamination by a UN peacekeepers camp was a likely cause of epidemic but said it was not faulting of/deliberate action of a group or individual. UN did not accept legal responsibility.
State immunity (including state officials) is grounded in the equality of sovereign states, while the personal immunity of diplomats or international organisations are more grounded in functional necessity.
Topic 8: State Responsibility
Rules of state responsibility indicate circumstances in which a states responsibility for the violation of an international obligation is triggered and the consequences this entails, including how other states may respond to this. [indispensable]
Rules are of secondary nature.
First Stage: Primary rules (found in treaty law or customary intl law) determine the substantive legal obligations (e.g., non-use of force).
Second Stage: Rules of State responsibility determine legal consequences arising from breach of those obligations.
Studied and devolved by ILC codified in ILCs Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted 10 August 2001 (2001 ILC Articles).
Proved by court & tribunals & by states in their practice, and articles codify existing customary international law. Provide practical and conceptual structure within which issues of State responsibility can be examined.
Principles:
every internationally wrongful act of a State entails its international responsibility (Art. 1 2001 ILC Articles)
an internationally wrongful act exists when conduct consisting of an act or omission is attributable to a State and constitutes a breach of an international obligation owed by that State (Art. 2 2001 ILC Articles)
Elements
Conduct which is in breach of an international obligation.
Conduct which is attributable to a State.
Internationally Wrongful Conduct:
States are only responsible for their own actions, however, under certain circumstances, a state can be found to be in breach of its international obligations in relation to actions of private individuals.
Corfu Chanel Case (UK v Albania) [1949] ICJ para 22: State may not allow knowingly its territory to be used for acts contrary to rights of other States.
Attribution (for acts committed by state organ)
Art 4, 2001 ILC Articles
The conduct of any State organ shall be considered an act of that State, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of State.
An organ includes any person or entity which has that status in accordance with the internal law of the State. (Army/police)
Art 5, 2001 ILC Articles:
The conduct of a person or entity which is not an organ article 4 but is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State (where doing as told).
applies to situations where State functions have been delegated to private entities: Privatisation of military/police functions.
Delegation of State powers to private parties means that their actions would still qualify as exercise of governmental authority.
Attribution (Private individuals)
Article 8, 2001 ILC Articles: The conduct of a person/group shall be considered an act of a State under international law if acting on the instructions of, or under direction or control of, that State in carrying out the conduct.
Taliban Regime Should the State be internationally responsible for the acts of private terrorist organisations operating on/from its territory.
Nicaragua case 1986: ICJ did not find acts of contras could be attributed to US.
For conduct to give rise to legal responsibility of US, it would in principle have to be proved that that State had effective control of military/paramilitary operations during which alleged violations were committed para 115.
Circumstances precluding wrongfulness (justifications for not complying with international legal obligations) (Arts 20-26)
Consent Art 20, ILC
Valid consent by a State to the commission of given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.
Must be voluntary, free from coercion, clearly expressed.
Self-defence Art 21, ILC (2 articles are applied together)
wrongfulness of an act of State is precluded if act constitutes lawful measure of self-defence taken in conformity with Charter of United Nations
Art 51, UN Charter
Nothing in present Charter shall impair inherent right of individual or collective self-defence if an armed attack occurs against a Member of United Nations.
Lawful countermeasures Art 22 & 49-59, ILC
Art 22 wrongfulness of an act of a State not in conformity with an international obligation towards another State, is precluded if and to the extent that the act constitutes a countermeasure taken against the State in accordance with chapter II part 3.
Art 49(1) An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act to ONLY induce that State to comply with its obligations. Conditions:
Must be directed against a State that has breached its international obligations.
purpose must be to induce other State to comply with international law.
Must not breach obligations jus cogens (e.g., use of force)
Proportional (not too severe)
Procedural requirements (e.g., first ask to negotiate, notify, give chance to cease wrongful behaviour, terminate countermeasures once the wrongful act has ceased)
Force Majeure
Art 23(1), ILC The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.
Relates to instances that are involuntary, unintentional conduct, beyond control of State.
Necessity
Art 25, ILC Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (Relates to rare and truly exceptional situations Gavcikovo-Nagymaros Project 1997, paras 49-55)
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
Conditions:
An essential State interest must be at stake.
wrongful conduct must be the only way to avert harm.
Situation where not necessary, see construction of wall case.
Consequences of international wrongful conduct
Obligation to cease unlawful conduct and not repeat it (Art. 30, ILC)
Obligation to make full reparations for injury caused by unlawful act (Art. 31, ILC)
purpose of reparation is to wipe all consequences of illegal act and re-establish situation which would have existed if act not been committed. (Factory at Chorzow case, 1928 PCIJ)
Construction of the Wall Advisory Opinion
concerned Israel's construction of a wall in Occupied Palestinian Territory.
ICJ found construction of wall to be internationally unlawful act so obliged to stop construction of wall, dismantle portions already built, and provide reparations for any damage caused.
Wall created a de facto annexation and a fait accompli on the territorial dispute.
Chagos Advisory Opinion
concerned UK's detachment of Chagos islands from Mauritius and continued administration.
ICJ found UK's actions to be an international unlawful act & obliged to end its administration of Chagos Archipelago and return to Mauritius as rapidly as possible.
Who can invoke states international responsibility:
injured State(s) only State(s) whose individual rights have been violated is entitled to invoke international responsibility (demand cessation/reparation)
Non-injured States IF an erga omnes norm (obligations that are owed to international community) (e.g., obligations to maintain peace, security & justice)
Topic 9: The Use of Force
Just War Doctrine by Thomas Aquinas (13th century) setting out 3 conditions for just war:
Auctoritas: right authority (by rightful sovereign)
Causa justa: just purpose (not pursuit of wealth or power)
Recta intentio: right intent (attainment of just peace)
Efforts to limit to right to war in contemporary history:
Hague Conventions in 1899 and 1907 (but then WWI)
League of Nations (1920-1945) (After WWI)
Kellog-Briand Pact (1928): outlawing war means of national policy, except for self-defence (but then WWII)
Jus in Bello: laws regulating behaviour during hostilities.
addressed in Law of Armed Conflict or international humanitarian law.
Jus ad Bellum: law relating to the resort to force and war.
UN Charter Framework
Reflective of experiences of World War II the UN Charter (1945) created.
Preamble: determined to save succeeding generations from scourge of war.
Two-pillar approach:
(1) compel states to use peaceful settlement of disputes Art. 2(3) and
(2) prohibition of use of force
Prohibition regarded as principle of customary international law, with very limited exceptions:
use of force in common interest, when authorised by UN Security Council (acting under UN Charter Chapter VII) and
right of states to act in self-defence when becoming victim of an armed attack (UN Charter, Art. 51)
UN General Assembly resolutions: (to clarify)
Declaration of Friendly Relations (1970)
Definition of Aggression (1974)
Declaration on Non-Use of Force (1987)
Art 2(4) All Members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any manner inconsistent with Purposes of United Nations.
In their international relations doesnt cover threat or use of force by states internally.
Threat or Use of Force not limited to actual use of force, but also threat.
Traditionally, use of military or armed force. Now may include economic force or coercion.
Extends to cyber-attacks if they have scale of effects of use of force.
ILA 2018 report: Art. 2(4) refers to armed or physical force.
Against the Territorial Integrity and Political Independence is use of force temporarily & in a limited way.
Examples include use of force to rescue nationals.
used by Russia as justification for intervention in Georgia (2008) and Ukraine (2014, 2022)
More contentious use of force to promote democracy or to further self-determination. (e.g., in context of decolonisation)
Art 51 Self-defence (justify use of force)
Right to self-defence interpreted in a manner that allows states to protect themselves from armed attacks, without becoming a pretext for unwarranted uses of force.
Nothing in Charter shall impair inherent right of self-defence if an armed attack occurs against a Member of United Nations, until Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in exercise of self-defence shall be immediately reported to Security Council and shall not affect the authority and responsibility of the Security Council under Charter to act as it deems necessary to maintain/restore international peace and security.
General conditions to exercise self-defence:
Only permitted in response to an armed attack
Must be necessary and proportionate.
Must be reported to the UN Security Council.
Armed Attack
scope of right to self-defence, including but not limited to
threshold of armed attack and
self-defence in anticipation of an armed attack
attacks on military vessels can constitute armed attack, but not attacks on private ships (ICJ Oil Platforms Case, 2003)
Gravity threshold scale effects: ICJ Nicaragua Case
No clear water mark, each specific circumstance and the threshold depends on scale of effect test:
Relation to casualties, damage to property.
Necessity & Proportionality
ICJ in Nicaragua Case confirms it is part of customary international law. (Not appear in Art 51)
Necessity: state must have no other means of halting armed attack other than recourse to use of force (if state able to achieve same result without resorting to force, no justification for self- defence)
Purpose/aim: acts taken in self-defence must be for purpose of fending off current persistent attacks (or preventing further attacks) and must be for purpose of restoration of the status quo ante bellum.
Proportionality: defensive action must be commensurate with the armed attack.
Depends very much on facts and circumstances of each case, including broader effects (e.g., not always equivalent to armed attack but balanced considering the purpose, i.e., halting or preventing further attack)
ICJ Nicaragua Case Nicaragua v United States of America (Judgment) [1986] ICJ Rep 14
Case concerning Military and Paramilitary Activities in/against Nicaragua.
Nicaragua argued before the ICJ armed attacks taken place, and training and arming paramilitary actions against state violated international law.
ICJ upheld the right to self-defence as customary international law and US participated in unlawful use of force. However, distinguished that not every use of force amounts to an armed attack.
Importance to look at scale and effects. ICJ clarified that some effective control over operations would be necessary to meet gravity threshold under Art 51.
Al Qaida in US in September 2001
UN security Council affirms the right to self-defence in relation to extraterritorial non-state actors.
Can states invoke right to self-defence if violating territorial integrity of another state?
Western states against Islamic State.
ICJ: attribution to host state important (Armed Activities Case 2005)
Some argue action can be taken if host state is unwilling or unable to deal with terrorist threat within its borders.
If consented no problems
Anticipatory/Pre-emptory self-defence
Serious controversy between proponents arguing that anticipatory, unilateral self-defence constitutes customary international law, and those rejecting it as incompatible with strict wording of Art. 51.
Post 9/11 War on Terror US respond globally as self-defence.
Must report to UN Security Council States must report measures taken in exercise of right of self-defence immediately to UN Security Council
This shall not affect the authority and responsibility of the Security Council to take action it deems necessary to maintain/restore international peace & security.
UN Security Council UN Charter, Art 24:
(1) to ensure prompt and effective action by UN, its members confer on the Security Council primary responsibility for maintenance of international peace & security and agree that in carrying out its duties under this responsibility Security Council acts on their behalf.
(2) In discharging these duties, Security Council shall act in accordance with Purposes & Principles of UN. Specific powers granted to Security Council for discharge of these duties are laid down in Chapters VI, VII (threats to peace, breaches of the peace, and acts of aggression), VIII, and XII.
Humanitarian Intervention
Use of force to protect people in another state from gross and systematic human rights violations.
Not addressed in UN Charter but in conflict with general prohibition in Art. 2(4)
Failures to protect: Rwandan genocide in 1994, UN inability to halt massacre in Srebrenica in Bosnia in 1995
NATOs intervention in Kosovo (1999)
Humanitarian catastrophe in Kosovo regarding repression, displacement and atrocities committed by Serbian forces against Kosovo population.
UN Security Council could not agree on action & NATO intervened militarily without Security Council approval in Kosovo in 1999.
Some NATO states (e.g., UK) argued that humanitarian intervention was an acceptable legal justification in this instance (ICJ Legality of Use of Force)
Security Council could neither condemn nor endorse intervention. (deadlock)
Independent International Commission concluded Kosovo situation was illegal but legitimate.
The Responsibility to Project (R2P) (Doctrine used when threat to peace & security)
Dilemma: protection of human rights vs. respect for system of collective security.
International Commission on Intervention and State Sovereignty (ICISS) initiated by Canada in 2000. Chaired by Gareth Evans (former Australian Minister of Foreign Affairs) and Mohamed Sahnoun.
Focus on shift in language from right to intervene to responsibility to protect victims.
Elements of R2P Doctrine:
State sovereignty implies responsibility for protecting own people.
R2P tied to four international crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity.
International responsibility only extends when state is unwilling or unable to halt or avert serious harm to its population. Responsibility consists of:
responsibility to prevent address root causes.
responsibility to react respond with appropriate measures.
responsibility to rebuild full assistance with recovery, reconstruction, and reconciliation.
R2P doctrine endorsed at UN World Summit in 2005 (Use of military force must be authorised by Security Council)
3 pillars of R2P doctrine:
First Pillar: Governments have primary duty to their populations (including non-citizens) to protect them from genocide, war crimes, ethnic cleansing and crimes against humanity and their incitement.
Second Pillar: Commitment of international community to assist states in meeting these obligations (e.g., building capacities)
Third Pillar: Responsibility to respond through UN mechanisms.
Controversial implementation by NATO in Libya (2011), which led to the fall of Gaddafi. Criticised forcible regime change.
Critiques:
R2P does not solve problem of Security Council paralysis (World Summit outcome asks P5 to refrain from exercising veto in cases of the four international crimes)
Only ever selectively & inconsistently applied (double standards)
i.e., why not in Syria or Myanmar?
Rhetoric creates unrealistic expectations.
i.e., Aus will not send troops to another country where crimes happening? Not really.
Susceptible to abuse by powerful states.
humanitarianism use as a mask for powerful states self-interest and economic/political gains.
Return to a just war doctrine.
i.e., return to moral assessments on legitimacy of war.
ILA (2018): humanitarian intervention remains a legal grey area.
Topic 10: Dispute Settlement
Dispute disagreement on point of law or fact, a conflict of legal views or interests between persons Mavrommatis Palestine Concessions (Greece v Great Britain) (Judgment No 2) [1924] PCIJ Series A 11
Existence of international dispute plays a decisive role in establishing an international courts or tribunals jurisdiction.
If a dispute does not exist at date of institution of legal proceedings, adjudicating body has no jurisdiction to deal with case.
One of the disputing parties could deny existence of an international dispute to contest the jurisdiction of an international court or tribunal Aegean Sea Case, Greece v Turkey [1976] ICJ 1976
Whether there exists an international dispute is a matter for objective determination and that the mere denial of existence of a dispute does not prove its non-existence Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (Advisory Opinion) [1950] ICJ Rep 65, 74
Existence of a Dispute (Criteria):
A dispute exists when two sides hold clearly opposite views with respect to issue in question. Specifically, dispute exists when the claim of one party is positively opposed by other and that the respondent was aware, or could not have been unaware, that its views were positively opposed by applicant Southwest Africa (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) (Judgment) [1962] ICJ Rep 328.
Element of communication is an objective criterion.
The determination of existence of dispute between parties requires an examination of facts Application of International Convention on Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) (Judgment) [2011] ICJ Rep 70 para 30.
public statements/diplomatic exchanges between parties (e.g., bilateral diplomatic exchanges between parties show their conflicting sovereignty claims are strongest evidence of existence of territorial dispute).
Requires a clear manifestation of the partys different views.
Obligation for peaceful settlement: (obligation of conduct rather than obligation requiring achievement of any specific solution) (States not legally obliged to settle disputes)
Article 2(3), UN Charter: All Members shall settle international disputes by peaceful means that abides international peace & security, and justice, are not endangered.
Article 2(4), UN Charter: All Members shall refrain in international relations from threat/use of force against territorial integrity/political independence of any state.
A substantive positive obligation binding under customary international law.
UN General Assembly resolution 2625/1970
parties to a dispute have duty, in event of failure to reach a solution by above peaceful means, to continue to seek a settlement of dispute by other peaceful means agreed upon by them.
Modes of Dispute Settlement Art 33(1) UN Charter:
The parties to any dispute, the continuance of which is likely to endanger maintenance of international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Diplomatic Means of peaceful Dispute settlement
Negotiation genuine attempt by one of disputing parties to engage in discussions with other, with view to resolving dispute. North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and Netherlands) (Judgment) [1969] ICJ Rep 3 para 85
Negotiation allows the parties to retain control of a dispute without involving third parties (governments find it so attractive).
United Nations General Assembly Resolution 53/101 (1998) provides principles and guidelines for international negotiations (e.g., good faith, constructive atmosphere, refrain from any conduct that might undermine negotiations and their progress).
Good Offices when a third party (neutral person deemed impartial and trustworthy by both parties) offers to facilitate and support potential efforts to enter direct negotiations (e.g., UN good offices mission in Lebanon)
Creates an atmosphere that promotes the conduct of negotiations.
Mediation when a third party (neutral impartial and trustworthy party accepted by both parties) assumes a more direct role in negotiations and suggests a framework of settlement or possible solutions. (Solutions not binding)
Inquiry or Fact-Finding Mission When parties disagree over the factual circumstances of their dispute. (Purely just fact finding) (impartial)
E.g., UN International Commission of Inquiry in Syria tasked with investigating alleged violations of international human rights in Syria since 2011.
E.g., Inquiry Commission on the circumstances surrounding the shooting down of a Malaysian Airlines plane in Ukraine in 2014. it held Russia responsible. Russian rejected its findings.
Conciliation Third party (group of experts) entrusted by parties, produces a report with non-binding recommendations.
Report of conciliatory body will present all relevant facts of case and positions of parties and suggest a possible solution/way forward.
Parties may use report of conciliatory body to negotiate settlement but are not bound by it. Use it to negotiate.
E.g., Conciliation Commission, established under UN Law of Sea Convention, between Timor-Leste and Australia in relation to delimitation of maritime boundary in Timor Sea.
Adjudicative Modes of Dispute Settlement are founded upon principle of consent.
Arbitration is a form of dispute settlement where parties to dispute create their own arbitral tribunal. (Based on consent)
Consent can be given:
By becoming party to a treaty (bilateral or multilateral) that provides for arbitration in the case of future disputes
Through special agreement (compromise) whereby parties agree to submit a particular dispute to arbitration (after dispute has arisen)
International Arbitration states maintain close control over the whole process (decisions termed arbitral awards are final & binding upon parties):
Composition (number and identity of judges)
Rules to be applied (e.g., specific treaty or customary intl law)
Procedural rules (i.e., it can be faster and more flexible)
International Court of Justice principal judicial organ of UN, based in Hague, Netherlands and can hear & resolve all disputes between UN Member States. (binding & not subject to appeal)
Significant contribution to development of international law.
Whilst doctrine of precedent does not exist in international law, judges and scholars refer to case law of ICJ as if it were common law in classic sense.
Composition: 15 regular judges, elected by UN Security Council and General Assembly for a term of 9 years. Disputing parties may in principle appoint an ad hoc judge.
ICJ may entertain two types of cases:
Legal disputes between States submitted to it by them (contentious cases)
Requests for advisory opinions on legal questions referred to it by UN organs & specialized agencies (advisory proceedings).
Rules of procedure:
Art. 43 (1) ICJ Statute: written and oral proceedings.
Rules of Court (1978 as amended)
Institution of proceedings (Arts 3843), Written proceedings (Arts 4453), Oral proceedings (Arts 5472)
Incidental proceedings
Interim protection (Arts 7378 ICJ Rules), Preliminary objections (Art. 79 ICJ Statute), Counterclaims (Art. 80), Intervention (Arts 8186), Discontinuance (Arts 8889).
Other courts and tribunals
A. number of specialised international courts & tribunals competent to adjudicate legal disputes within specific areas of international law.
International Tribunal for Law of the Sea (ITLOS) deals with issues pertaining to interpretation and application of Law of the Sea Convention.
International Centre for Settlement of Investment Disputes (ICSID)
International Criminal Court (ICC)
ICJ jurisdiction is based on Art 38 of the Statute. (courts jurisdiction based on consent)
Only sovereign states are allowed to be parties in cases before the Court (Art 38)
Non-state entities cannot bring case to the Court (Art 34)
Intergovernmental international organizations, including UN, cannot be a party to a case before the Court, but they can ask for advisory opinions (Arts 65-68).
Court can only handle disputes if parties involved consented to Court's jurisdiction.
Court has competence to rule on its own jurisdiction (competence de la competence) Art 36(6) ICJ Statute.
How to express consent Art 36 ICJ Statute:
Through explicit agreement (compromis), where parties agree to submit a particular dispute to the Court. (full & final)
Becoming a party to an international treaty that specifies disputes can be brought before Court, contingent on inability of parties to resolve dispute by other means.
Making a declaration under Art 36(2) ICJ Statute and accepting Court's jurisdiction in relation to future international legal disputes with another state accepting the same obligation (optional clause that enables states to accept the compulsory jurisdiction of the court in relation to future disputes).
Doctrine of forum prorogatum, where a state that has not consented to the Court's jurisdiction at the time an application is filed against it but subsequently does so.
Provisional Measures: (Prevent disputing states from taking actions that could render the decision of the court or tribunal meaningless) (expedited basis)
Art 41, ICJ Statute: Court shall have power to indicate, if it considers circumstances require, any provisional measures taken to preserve respective rights of either party.
The Court only needs to satisfy itself that the absence of jurisdiction is not manifest and the rights for which protection is sought are at least plausible.
Only justified if real and imminent risk that irreparable harm will occur before final decision is given.
Court must ensure that the provisional measures requested are appropriate and necessary to protect the alleged rights.
Conditions: existence of prima facie in relation to merits of the case & the absence of jurisdiction is not manifest.
Effects of ICJ decisions:
Art 60, ICJ Statute: judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.
only binding on parties to the dispute and cannot oblige third parties.
Art 94, UN Charter obliges members of UN to comply with decisions of the Court, and if does not comply, other party may bring matter before the UN Security Council.
UN Security Council can make recommendations or decide on measures to be taken to give effect to the judgment if it deems necessary 94(2) UN Charter.
Topic 11: Collective Security & Enforcement
Role of the United Nations:
Central institutional regime of international relations & by extension international law. Created after WW2 to prevent instability and unchecked aggression in inter-state affairs. Aim to promote friendly international relations and maintain international peace and security.
Collective Security
Creation of a system where war and aggression are the concern of all states, not a private dispute between states: war against one is war against all. E.g., NATO
League of Nations & United Nations founded on principle of collective security.
UN system centralises permissible use of force to one body: Security Council.
Art 24 confers on Security Council the primary responsibility for the maintenance of international peace and security.
Chapter VII of UN Charter lays down UN Security Councils powers with respect to threats to peace, breaches of peace, and acts of aggression.
UN Security Council:
Membership consists of 15 UN member states (Art. 23):
5 permanent members with veto powers (P-5): US, China, Russia, UK, and France
10 non-permanent members elected for two-year term (5 elected each year by UN General Assembly)
10 non-permanent seats divided along regional lines: 3 reserved for Africa, 2 for Asia, 2 for Latin America and Caribbean, 2 for Western Europe and Other States, 1 for Eastern Europe.
Member states have agreed to accept and carry out decisions of Security Council, making its decisions legally binding upon all members Art. 25.
Can exercise a role in peaceful settlement of disputes (Chapter VI), and act in response to threats to peace, breaches of peace and acts of aggression (Chapter VII).
Includes measures falling short of force under Art 41 (e.g., sanctions, severing of diplomatic ties)
Can also include measures encompassing use of force (Art. 42)
UN Charter, Art 39: Security Council shall determine existence of any threat to peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Art 41 & 42, to maintain or restore international peace and security. (Solutions can be non/binding or both)
evolving interpretation practice, e.g., proliferation of nuclear, chemical, or biological weapons; internal armed conflicts; terrorism.
Art. 39 determination, Security Council may adopt coercive measures, both those involving force and those not involving force.
UN Charter, Article 41 Measures not involving force:
Provides Security Council with scope of non-military coercive measures, including economic and diplomatic measures (provision is not exhaustive) and may call upon members to apply such measures.
Measures includes economic sanctions and arms embargoes, but also establishment of ad hoc international criminal tribunals (such as ICTY & ICTR)
Security Council ordered sanctions: (Prominent) (UN members implement)
Arms embargoes applies in situations of conflict & civil wars.
Can apply financial, trade & other economic measures against states.
Ordered that specific commodities be stopped trading to cut off financing of warring parties.
Security Council creates subsidiary organs to support/implement measures to enforce decisions, including international tribunals to try people responsible for serious crimes under international humanitarian law.
International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda (ICTR)
International Criminal Court is not part of UN, but UN SC can refer situations to ICC Prosecutor in accordance with Ch VII.
Use of Force SC UN Charter, Art 42
Provision makes it clear use of force should remain exceptional, only where Art. 41 measures proved to be inadequate.
Security Council relies on UN member states to volunteer their forces to enforce its decisions, particularly; UN peacekeeping missions, or authorisation of individual states, coalitions of states/regional organisations to use force to enforce SCs decisions.
UN Peacekeeping
not explicitly mentioned in UN Charter, can involve range of activities, including supervising ceasefires, implementation of peace agreements, assisting with disarmament & demobilisation, election monitoring and other peace-building tasks.
Primarily created to keep peace, not to enforce it.
Traditional basic principles: consent of parties, impartiality, non-use of force except in self-defence, as well as concerns over legitimacy and credibility.
UN is a transitional administrator taking on all functions of state where a government isnt in existence. E.g., East Timor (government step down & UN filled until new)
Security Council authorised Use of Force:
may authorise member states & regional organisations to use force (i.e., operations not conducted by UN, and thus different from UN peacekeeping, which are UN operations)
UN SC may authorise regional organisations to enforce its decisions Chapter VIII, Art. 53 UN Charter.
Operation Desert Storm in response to Iraqs illegal occupation of Kuwait
SC authorised in 1990 an ad hoc coalition of states (led by US) to use all necessary measures to restore Kuwaits sovereignty.
Debate over scope and limits of such authorisation.
Revived or Implied Authorisation:
Member states invoking claims to revive an earlier authorisation, or implying such authorisation from UN SC resolutions (without it explicitly authorised).
Operation Iraqi Freedom March 2003
coalition of states led by US and UK (incl. Australia) invaded Iraq with aim of eliminating weapons of mass destruction and stopping Sadam Hussein from supporting terrorism.
Participating states claimed that broad language from SC resolution authorised use of force an understanding rejected by most other SC and UN member states, as well as majority of legal scholars.
Maybe more parliamentary involvement & scrutiny.
UN General Assembly:
General Assembly is the parliamentary body of the United Nations and consists of representatives of all UN member states (currently 193 states)
The most democratic international organ but minimal role in enforcement (enforcement powers entrusted to UN security council)
Subsidiary responsibility for maintenance of international peace and security.
Art. 14 may make recommendations to UN or Security Council, but only if SC is not dealing with a particular matter and without affecting SCs primary responsibility.
UN GA Resolution 377 (V) (1950) United for Peace: if Security Council, because of lack of unanimity of permanent members, fails to exercise its primary responsibility for maintenance of peace and security in any case where there appears to be a threat to peace, breach of peace, or act of aggression, General Assembly shall consider matter immediately with a view to making appropriate recommendations to Members for collective measures.
UN Secretariat & Secretary General:
Constitutes an international civil service, led by UN Secretary General.
UN Secretary General appointed by General Assembly for five-year term and can bring to attention of Security Council any matter in their opinion may threaten international peace and security Art. 99.
Good office functions in mediating in and resolving international crises or conflicts (including through appointment of Special Representatives of UN Secretary General)
Topic 12: Cross-cutting Issues: Territorial Disputes in the 21st Century
Territorial disputes in international relations: (territory is core of all international disputes)
Pose obstacles to the maintenance of the rule of law and justice.
Examples of territorial disputes:
Delimitation or demarcation of international land borders. E.g., Doklam area dispute between China and India.
Ownership of island territories. E.g., Falklands/Islas Malvinas dispute between UK and Argentina.
Disputes over resources tied to territorial control. E.g., Tanzania and Congo over oil and gas resources in Lake Tanganyika.
Ethnic or religious divisions linked to specific territories. E.g., Jerusalem.
Impact on nationalist ideologies and notions of belonging: (creates tensions)
Underpin and empower nationalist ideologies.
Influence concepts of belonging and exclusion.
Humanitarian aspect:
Resolution requires willingness and consent from involved states, as there is no compulsory settlement mechanism.
Territorial Dispute legal dispute between two or more States over acquisition or attribution of territory (continental or island), or to the creation, location, and effect of territorial boundaries. (BIICL Report 2018).
all territorial disputes, necessarily involve, a dispute about sovereignty/sovereign rights over a territory (on land or at sea).
Limitation refers to the drawing of a line on a map and demarcation refers to the actual construction of the boundary on the ground.
Land Boundary disputes: Disputes concerning location, construction, or demarcation of land boundaries between states.
Maritime Boundary disputes: Disputes concerning precise maritime boundaries between states.
Island disputes: Not all territorial disputes are boundary problems; some involve broader territorial issues. i.e., sovereignty disputes over islands & sovereign rights in surrounding ocean space.
Territory & Sovereignty
Sovereignty is the ultimate authority over a territory. Territory represents areas where sovereign authority is exercised to the exclusion of other states.
Sovereignty allows states to act freely within their territory & prevent incursions by other states.
Offers legal protection from unilateral territorial violations.
Disputed Territories and Disputed Sovereignty
When a territory is disputed, the question of sovereignty remains unresolved.
The absence of a clear title to territory creates uncertainty regarding the protection of sovereignty. Legal questions arise regarding legitimacy of a claimant state taking over a disputed territory even when using non-forcible military means.
Obligation to Pursue Peaceful Settlement
UN Charter emphasizes maintenance of international peace and security and settlement of disputes (Arts 1 & 2 UN Charter). International law requires peaceful resolution of territorial disputes, but no compulsory means exist. States must consent to dispute resolution mechanisms. Peaceful Settlement is not always straightforward. Diplomatic negotiations and consultations are common for peaceful resolution. Good relations facilitate peaceful management and resolution of territorial disputes. However, poor relations and longstanding disputes can lead to escalations and broader rivalries.
pursuit of peaceful settlement a genuine attempt by one of the disputing parties to engage in discussions with other disputing party, with a view to resolving dispute through peaceful solutions Georgia v. Russian Federation, para 157. (Not an obligation to reach any solution, they dont have to. If one state says no problem then they dont have to do anything and it can wait until its brought up)
Limited Role of Courts and Tribunals:
Practical Issue in Peaceful Settlement:
Disputes persist when possessor of disputed territory rejects settlement methods.
Lack of jurisdictional basis for third-party adjudication hinders resolution.
Possessor state retains control while other claimants struggle to settle.
Risks to peace and security remain despite the lack of resolution.
Can states use force to reclaim a disputed territory that they genuinely believe belongs to them?
Prohibition on Use of Force
Art 2(4) UN Charter prohibits threat or use of force in international relations. Customary international law and arguably jus cogens.
States are required to pursue settlement of disputes only through peaceful means (Art 2(3) UN Charter).
Applicability to All Disputes
prohibition on use of force applies to both disputed and undisputed territories. (Relevant to all types of disputes, without exception)
Eritrea/Ethiopia Claims Commission (2009)
Eritrea militarily took over disputed border town of Badme, claiming a valid sovereignty claim. Eritrea/Ethiopia Claims Commission found Eritrea's action to be use of force in violation of international law. Commission rejected Eritrea's argument that it was merely recovering its own territory but the action to attain, was a violation of Art 2(4).
Military takeover without violent use of force (Bloodless incursion)
South China Disputes
Tensions increased due to China's island-building activities, creating military bases.
Joint statement by Australia, Japan, and US opposed coercion and use of disputed features for military purposes.
Coercion through military means violates the prohibition on use of force. Criteria for violating Art 2(4) include forcing acceptance of a new territorial status quo through military means.
Coercive intent Reflects the aim or effect of forcing the will of another state to accept a new status quo.
Swift takeovers of Crimea by Russia in 2014.
Deployment of military forces creates a fait accompli that coerces other states into accepting it or responding by force (non-peaceful solution).
Legal implications of non-lethal yet coercive use of force
Categorizing coercive military actions as a use of force in violation of Art 2(4) allows for possibility of self-defence in response. Self-defence is justified only in the face of an armed attack (serious), distinguished from less grave forms of force. (Can be used in all ways of argument little use of force gains strategic advantage so requires self-defence)
A de minimis use of force may fall within scope of an armed attack Art 51 UN Charter.
Aggression recognizes as most serious and dangerous form of illegal use of force.
Art 3(e) lists an act of aggression as situation where armed forces extend their presence after consent is withdrawn. Thus, unlawful territorial incursions without consent can be considered acts of aggression.
[SAME AS FIRST] Third-party countermeasures:
Breaches of obligations erga omnes entitle other states to non-forcible countermeasures to bring the breach to an end, just as if they were directly injured by that use of force.
E.g., sanctions against Russia for annexing Crimea and later invading Ukraine.
Alternative Solutions & Practical Arrangements:
Provisional (Interim) Arrangements in Disputed Areas.
E.g., Disputing parties may designate disputed areas as demilitarized zones (E.g., Korean DMZ or Cyprus buffer zone) or joint management zones (E.g., Timor-Leste Australia Joint Development Zone).
Joint resource sharing without prejudice to sovereignty claims.
Joint development zones
Ecological Parks & Transboundary Protected Areas
Provisional Neutral Zones:
By virtue of Uqair (Aqeer) Treaty or 1922, Saudi Arabia and Kuwait established a neutral zone over which they agreed to share equal rights.'
Demilitarised Zones & Buffer Zones
Demilitarised Zone (DMZ) of Korean Peninsula was established after armistice of Korean War in 1953, 250km (around 150miles) long and only 4m wide.
Joint Development Zones
An agreement between two States to develop to share jointly in agreed proportions by inter-State cooperation and national measures the offshore oil and gas in a designated zone of the seabed and subsoil of continental shelf to which both or participant States are entitled in international law.
Ecological Parks & Transboundary Protected Areas.
Demilitarize the disputed areas, establish confidence building mechanisms, and promote inter-State environmental cooperation.
Put under ecological protected states and thus have benefits for protection of environment and peaceful management.
E.g., Nahuel Huapi National Park in the mountainous Mapuche territory (Argentina/Chile)
Linking Sentences - LAWS2000 International Law
Topic 1: The History and Purpose of International Law
shape contemporary international relations.
interdisciplinary approach to understanding.
political frameworks governing international relations.
resolve shared global problems facing the international community.
new global challenges requiring global collective action, such in development, damage to the global environment and global health.
increasing power competition, global inequalities and mistrust in international institutions have challenged the effectiveness of international law.
international law is constantly evolving, new transnational problems require international legal responses. (Eurocentric legacy)
Theoretically, international law should work like __ however, in practice states are __.
Idealism vs Realism
State consciousness was shaken by experiences of war, and the scale of atrocities that came with it directly influenced the national legal order.
Topic 2: Sources of International Law
ICJ rarely departs from its jurisprudence.
The judgments of international courts and tribunals contribute to the development of customary international law by establishing new norms or clarifying existing ones.
subsidiary means for determining rules of law.
Tutorial 2
There is a clear hierarchy between the sources of international law as laid out in Article 38(1) of the ICJ Statute. Analyse this statement and discuss it critically. Identify and consider the various sources enumerated in Art. 38(1) What is the importance of subsidiary sources of international law? And specifically, what is the importance of judicial decisions in international law?
Article 38(1) of the Statute of the International Court of Justice (ICJ) lists four primary sources of international law. The first two sources listed, international conventions and customs, are considered primary sources of international law. Treaties and conventions are agreements between states, which, once ratified, create legal obligations for the parties involved. Customary international law, on the other hand, arises from the consistent and general practice of states, which is accepted as legally binding.
The third source, general principles of law, refers to fundamental legal principles recognized by the world's major legal systems. This source provides guidance when there is no specific treaty or custom on a particular issue. The fourth source, judicial decisions and the writings of legal scholars is considered a subsidiary means for the determination of rules of law. Judicial decisions are not binding, but they can be persuasive and influential. The same is true of the writings of legal scholars. The importance of the subsidiary sources of international law fills in gaps in primary sources and interpreting their meaning. When there is no clear rule in a treaty or custom, the court may turn to general principles of law or judicial decisions to determine the applicable law. Thus, the sources of international law laid out in Article 38(1) of the ICJ Statute reflect a clear hierarchy.
In addition to being consistent and widespread, practice must unfold over a long period of time for a new customary rule to be established. Analyse this statement and discuss it critically.
The development of customary international law is based on two essential elements: state practice and opinio juris. State practice refers to the conduct of states in the international community, while opinio juris refers to the belief that such conduct is legally required or accepted as law. In determining the existence of a new customary rule, both elements must be present.
The statement that "practice must unfold over a long period of time for a new customary rule to be established" reflects the requirement of consistent and widespread practice over an extended period. This requirement stems from the notion that customary international law is based on the general and consistent practice of states, which must be accompanied by the belief that such practice is legally required or accepted as law.
A new customary rule cannot be established by a single instance of state practice, nor can it be established through sporadic or inconsistent practice. For a new customary rule to emerge, the practice must be both consistent and widespread, demonstrating a general acceptance by the international community. Additionally, this practice must be maintained over a significant period to demonstrate the existence of a legal obligation. However, the length of time required is not fixed and is dependent on importance or urgency. Some scholars argue that the focus on longevity can lead to the entrenchment of outdated and harmful rules, preventing the development of new norms. Others argue that the emphasis on practice and opinio juris fails to account for the role of moral and ethical considerations in the development of international law.
In conclusion, while the statement that practice must unfold over a long period of time for a new customary rule to be established accurately reflects the current understanding of the development of customary international law, it is important to recognize that the length of time required may vary depending on the circumstances. Moreover, the emphasis on longevity in customary international law has been subject to criticism, and the development of international law may also be influenced by other factors beyond state practice and opinio juris.
And by another treaty, if youre not in any countrys territory, maritime law applies. So Mars is international waters. (5 points)
the difference between maritime law (private acts) and the law of the sea (public international law regulating oceans). There is no indication in the United Nations Convention on the Law of the Sea (UNCLOS) that it applies beyond the seas and oceans. It is true that there is some similarity between the high seas and outer space, in that they are all considered as res communis (common areas of humanity where no country can assert sovereignty). However, one cannot just say maritime law applies or that Mars is international water.
Topic 3: Relations of International and National Law
national law is irrelevant in the consideration of international law obligations, and state responsibility for internationally wrongful acts.
national law is the fulfilment of international law obligations, act as a source of factual evidence about a states compliance or non-compliance with international law and can serve as evidence for the existence of both state practice and opinio juris when determining customary international law.
In the absence of any contrary indications, Australian law is to be interpreted consistently with Australias international obligations.
Treaty terms may be used to assist in statutory interpretation of particular words or expressions.
Germany/ France/ Netherlands have very clear stipulations in constitution on how international law applies within the domestic legal order.
Treaties constitute extrinsic materials to legislation.
Government issues statements to clarify position of international law in Australia. [Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273]
International law serves as a legitimate influence for the development of common law [Brennan J in Mabo v Queensland (No. 2) [1992] 175 CLR 1)
The interaction of Australias domestic legal system with international law reflects separation of powers.
Members of judiciary hold contrasting views on international law which creates considerable uncertainty on position of international law within Aus legal system.sTutorial 3
What powers does the Australian Constitution vest in the following in relation to international law? a. The executive b. The legislature c. The judiciary
a. The executive branch of the Australian government is primarily responsible for the conduct of international relations, including negotiating and entering treaties with other countries. The Constitution grants the executive the power to make and ratify treaties, subject to the advice and consent of the Senate.
b. The legislature, which consists of the House of Representatives and the Senate, has a role in the treaty-making process by considering and ratifying treaties. The Constitution gives the Senate the power to approve or reject treaties, and the House of Representatives may also be involved in the treaty-making process by considering and approving any necessary domestic legislation to implement a treaty.
c. The judiciary has a role in interpreting and applying international law in Australian courts. The Constitution vests the judicial power of the Commonwealth in the High Court and any other federal courts that may be created by Parliament. Australian courts may apply international law where it has been incorporated into domestic law or where it is relevant to the interpretation of domestic law. However, the principle of parliamentary sovereignty means that Australian courts cannot strike down domestic laws simply because they conflict with international law.
Topic 4: Law of Treaties
Courts at an international level, generate their authority/competence to a judge upon state consent.
Universally accepted codification of the sources of international law.
A reservation that does not meet conditions of validity and permissibility is null and void, and therefore devoid of any legal effect.
Various rules for interpreting treaties have been put forward over the years.
To interpret this provision, the tribunal must apply the provisions of the Vienna Convention on the Laws of Treaties. General rule of interpretation is set out in Article 31 of Vienna convention and provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their content and in light of its object and purpose. Further, any subsequent practice in the application of the treat which establishes the agreement of the parties regarding its interpretation shall be considered. Pursuant to article 32 of the Vienna convention, as supplementary means of interpretations, recourse may be had to the preparatory work of the treaty to confirm its meaning, or determine the meaning when it is otherwise ambiguous, obscure, or leads to a manifestly absurd or unreasonable result.
Treaties are the most direct way in which states assume legally binding obligations in international law in the most express and deliberate manner.
Because treaties are so important to the function of international law, it is in the interests of every subject of international law to have some common rules, a uniform set of rules to govern the operation of treaties.
For a valid treaty to come into existence and to be regulated under international law, the parties must have intended to create legal rights & obligations.
How international law is integrated into the domestic legal system.
Any minister wishing to negotiate a treaty on behalf of the government of Australia must seek a mandate to negotiate from the minister of foreign affairs, the treaty text is then negotiated and finalised and submitted for approval, if approved the treaty is signed and after signature, the treaty is tabled to parliament for scrutiny and any other steps such as the passage of any implementing legislation or amending existing legislation at federal or state level, to enable the treaty to enter into force. Once every step completed, treaty is ratified and effectively in force for Australia.
States can become party to a multi-lateral treaty without accepting every provision of treaty through reservation.
Topic 5: Statehood and Legal Personality
International law is a body of rules and principles which facilitates and regulates conduct of state and international organisations in their relations with one another and with individuals, groups, and transnational companies. (AGD definition)
over the course of the late 20th and early 21st century the range of subjects has gradually expanded, including public international organisations and individuals.
States are primary subjects of international law.
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon needs of community.
Without treaty and diplomatic relations, states struggle to exercise their rights, duties, and competencies under international law.
The subjection of people to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights (contrary to Charter of UN) and is an impediment to the promotion of world peace & cooperation.
Over the past decades, the subjects of international law have expanded to include actors other than states, including international organisations, individuals, and even multinational corporation.
The contemporary focus has more shifted to internal self-determination, but clear limits exist for external self-determination (no international right to unilateral secession).
Tutorial 5
What role does recognition by other states play in this context? Also discuss the different motivations for recognising or not recognising states or governments.
While the declaratory view generally prevails among legal scholars, recognition is important for a new state to practically operate within the international community. Without treaty and diplomatic relations, states struggle to exercise their rights, duties, and competencies under international law e.g., Palestine.
Topic 6: Jurisdiction and Sovereignty
There are no universally binding rules on how to resolve issues of concurring jurisdiction. International treaties provide clearer pathways e.g., 2001 Cybercrime Convention, provides that when more than one state claims jurisdiction over an offence under the Convention, states involved shall 'consult with a view to determining most appropriate jurisdiction for prosecution. (Art 22(5)).
Immunities are an extension of sovereign equality & non-interference, and sets limited on when a state can exercise jurisdiction within its own territory.
ICJ says you either prosecute under your own laws or you extradite.
Tutorial 6
What are the three basic forms of jurisdiction?
Jurisdiction to prescribe: power of a state to assert applicability of its national law to any person or property
Jurisdiction to enforce: right of a state to put its law into operation e.g. arrest, seizure, freezing of assets, capital punishment and imposing fines
Jurisdiction to adjudicate: the right of a state to exercise judicial powers over persons and objects
Topic 7: Immunities
Immunities from jurisdiction are founded upon the notions of sovereign equality and non-interference
Topic 9: The Use of Force
International Law derives analogies from private law. States are considered proprietors of their land. Courts, tribunals, and international institutions help promote peaceful coexistence between states. International treaties are comparable to contracts. Violation of legal obligations leads to consequences. State responsibility is a necessary corollary of a legal obligation, breaching international law triggers international responsibility.
Rules of state responsibility indicate circumstances in which a states responsibility for the violation of an international obligation is triggered and the consequences this entails, including how other states may respond to this.
Serious controversy between proponents arguing that anticipatory, unilateral self-defence constitutes customary international law, and those rejecting it as incompatible with strict wording of Art. 51.
Ongoing debate in light of modern technologies that allow launching attacks with high speed and great destructive potential.
Fundamental for the smooth and efficient conduct of international relations, allowing diplomats to carry out their functions.
many new cases demanding global attention in the context of renewed interventionism after the end of the Cold War
Tutorial 9
1) The International Court of Justice (ICJ) has no so-called compulsory jurisdiction.
a. Explain under what circumstances the ICJ has jurisdiction to settle an inter- state dispute, including the ways in which states can consent to the Courts jurisdiction.
Article 36 of the ICJ Statute outlines the various ways in which a state can express consent to the Court's jurisdiction.
Article 36(2) jurisdiction
1. Through an explicit agreement where parties agree to submit a particular dispute to the Court.
2. Becoming a party to an international treaty that specifies disputes can be brought before the Court, contingent on the inability of the parties to resolve the dispute by other means.
3. Making a declaration under article 36(2) of the ICJ Statute and accepting the Court's jurisdiction in relation to future international legal disputes with another state accepting the same obligation (optional clause).
4. Doctrine of forum prorogatum, where a state that has not consented to the Court's jurisdiction at the time an application is filed against it subsequently does so.
b. Explain whether or not in the view of the ICJ its provisional measures are binding.
Art 41, ICJ Statute: The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
orders on provisional measures under Article 41 [of the Statute] have binding effect (Germany v USA 2001)
Provisional measures are meant to protect disputing states from taking actions that could render the decision of the court or tribunal meaningless.
The Court only needs to satisfy itself that a) the absence of jurisdiction is not manifest and b) the rights for which protection is sought are at least plausible.
Provisional measures are only justified if there is a real and imminent risk that irreparable harm will occur before the final decision is given
Topic 10: Dispute Settlement
There are a wide range of means available for resolving international disputes peacefully, including adjudicatory means such as the ICJ and arbitration, as well as non-adjudicatory settlement mechanisms such as negotiation, mediation, and conciliation.
Several specialized international courts and tribunals competent to adjudicate legal disputes within specific areas of international law.
It is important that the dispute is adjusted and handled in a manner that averts the risk of the dispute getting out of control. (No need to resolve) Adjustment is the real focus for all mechanisms for handling disputes.
International law seeks to point states to appropriate director to available settlement options that will assist them in de-escalating/ resolving disputes.
The UN general assembly has consistently emphasised over the years that the peaceful settlement. Of disputes constitutes one of the cornerstones of the international legal order.
Topic 11: Collective Security & Enforcement
UN system disciplines the use of force among its member states through a system of collective security.
UN security council can employ a range of coercive measures under Chapter VII to enforce its decisions, both non-military and military.
However, UN SC has not been able to act in all instances of threats to and breach of international peace and security (e.g., capacities, but also veto power of P-5)
Topic 12: Cross-cutting Issues: Territorial Disputes in the 21st Century
Disputes cause unsettlement and pain for local populations.
The obligation to pursue dispute settlement for peaceful settlement of disputes is a substantive obligation under international law Art 1 UN Charter
Using military means is a form of coercion as they are making it materially impossible for other states to challenge the claim without risking a situation of armed conflict.
Peaceful legal measures are more efficient than armed force to settle territorial disputes.
International Law:
Take-Home Online Exam - Instructions
1. This is an online open-book examination.
2.You are required to answer all 3 questions. The value is indicated behind each question. This assessment will account for 45% of the final mark in this unit.
3. The exam questions are available in the iLearn Take-Home Exam Assessment Section from2pm (AEST), 7 June 2023.Answers must be submitted in a single word file through Turnitin
4.Your response to each question has astrict word limitindicated behind each question. This limit excludes footnotes. This is the maximum limit, and your answers can be shorter than this. Within this limit, the length of each answer should be guided by the quality and depth of your analysis.Make it clear which question or sub-question you are answering.Any words beyond this limit will not be considered in grading your paper.You are advised to mention the word count after each answer.The exam responses must be your own work.
5. Regardingreferencing, footnotes are not required, but if it works for you use that. In any case, you must refer to legal authority to support your propositions or arguments. In this exam, you will not get extra marks for being AGLC4 compliant.Shorthand referencing e.g.,Article 5 of UNCLOS,Art. 3 VCLT, orAegean Seacase is permissible.Or to cite the textbook something along the lines of (Rose et al. 2022,Public International Law, p32).It must be clear to your marker to which law, case, or other source you are referring. In case of any doubt, spell out when citing for the first time. A bibliography is NOT required.
6. Your responses must be typed inWord format,and they must bedouble-spacedto facilitate marking in Turnitin.
7.Please note that once the assessment is released, the unit convenor will not answer any questions on the substance of the paper. If you are sick or encounter any misadventure impacting on your ability to complete the assessment, do not attempt the exam. Seek a medical certificate or other evidence and apply for special consideration.
8.Late Submission Policy:Unless a Special Consideration request has been submitted and approved, exams submitted after the deadline will receive a grade of 0.It is strongly advisable to upload the file at least 10 minutes prior to the deadline to avoid any technical glitches. If you still encounter technical issues at the time of submission, then you should upload the paper to Turnitin as soon as the problem is solved. You must then also email the Convenor the word document immediately, together with a screenshot of documents properties, showing the file name, size and the time/date it was last saved.
9. Please see the example exam question that is posted here to get an idea about the structure and expectations of the exam. Note that these example questions are adapted from tutorial tasks.This is only to give you a sense of thestyleof the exam questions and how they will be marked.
