NOTE: These notes do not cover the International Law of Air, Space and Sea or International Economic Law.
INTRODUCTION
1. What is International Law?
(a) International Law as Inter-State Law:
The Western European Perspective is that international law is the law regulating the activities of sovereign States. For example, the first edition of Oppenheim (1905) stated that “States solely and exclusively are the subject of international law.”
(i) What is a “State” for the Purposes of International Law?
Article 1 of the Montevideo Convention on Rights and Duties of States (1933) provides that:
“[t]he State as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter relations with other States.”
A State must be distinguished from a government for the purposes of international law. Governments represent States, but the States remain the relevant legal entities.
The constituent parts of Federations are not States under International Law.
(b) International Law as the Law of the International Community:
The existence of law can reasonably be asserted to require the existence of some form of political community: Waldock (1963).
Though the bonds between members of the community of States are not strong compared to bonds between members of municipal communities, such bonds do exists and are increasing, particularly with globalization.
(c) Inadequacies of Traditional Definitions of International Law:
The traditional definition of international law does not mention international organizations. Such a definition is inadequate as international organizations are now subjects of international law and not just objects: see Reparations Case. For example, the United Nations and European Union.
Notably, the 9th edition of Oppenheim reads: “States are the principal subjects of international law.”
(d) A Broader Definition:
The Third Restatement states that international law is concerned with “the conduct of States and of international organizations, and with their relations inter se, as wells as some of their relations with persons, whether natural or juridical.”
2. Is International Law Really “Law” at all?
The most famous of international law’s critics is 19th century English lawyer John Austin. In his view, every positive law is set by a given sovereign. Consequently, international law is law improperly so-called:
“The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils…”
There are two broad problems with Austin’s criticism.
(a) An Unusual Definition:
Firstly, Austin has provided a particularly narrow definition of the word “law”, and has provided no compelling reason why we should adopt it. To the contrary, Austin’s definition has been criticized by positivists and natural lawyers alike, notably HLA Hart (The Concept of Law) and FA Hayek.
(b) An Unhelpful Definition:
Secondly, Professor Hart further notes that by adopting a very narrow definition of what is law, Austin is also effectively expanding the class of actions which he treats as morality. This serves to obscure fundamental differences between international law and other issues of morality such as etiquette and rules of clubs. This point is also made by Waldock (1963).
Further, Austin’s conceptualization overlooks the following:
1. Adherence
The so-called moral rules of international law can be seen to influence the way States behave. Although it is possible to identify breaches of international law, violations are rare: Waldock (1963); Jessup (1948); Morgenthau (1985)
2. Treatment of international “legal” problems
“Legal” advisers in foreign ministries look at international “legal” questions in a way that is very similar to the way that legal advisers look at legal questions in other government ministries, recognizing international law as binding upon them: Fitzmaurice (1956).
(c) A “Primitive” legal system?
Although Hart accepts that international law is law properly so-called, he describes it as a primitive legal system lacking secondary rules (rules of recognition, change and adjudication).
Professor Brownlie of Oxford University has taken Hart to task in his General Course on International Law at the Hague Academy (1995). He explains that Hart’s concept of law still presents law as a concept which has some special quality and its own integrity, which is itself restrictive as presenting “some neat definition”. He states that Hart relies on a certain type of political framework as evidence for his conclusions on law in general. This framework cannot be accepted as applicable to all legal systems.
(d) International Law and the Problem of Efficacy:
(i) The Problem of Enforcement:
Criticism:
In a 2000 article in the Journal Transnational Law and Contemporary Problems, John Bolton argues that international law is not law due to the lack of enforcement mechanisms. In particular, he contrasts treaties and contracts on the basis that that a contract, unlike a treaty, is not an abstract promise but a promise, breach of which entitles the other party to a remedy. He insists that States abide by treaties only out of a sense of political and moral obligation, not legal.
Harris states that a State can usually flout international law if it wants and get away with it.
High profile breaches of international law include the Soviet invasions of Hungary in 1956 and Czechoslovakia in 1968 and the use of force against Iraq by the US in 2003.
Response:
Firstly, in truth, almost all nations observe almost all principles of international law and all of the international obligations almost all of the time: Henkin (1979); Waldock (1963); Morgenthau (1985); Jessup (1948). Breaches of international law seem more common due to the high degree of media attention they attract.
Secondly, enforcement can be achieved through the use of self-help. For example, Kelsen considers international law to be law properly so called despite defining law as a “coercive legal order”. He points to enforcement mechanisms such as sanctions, the adoption of reprisals and the use of force, all of which can be used as lawful countermeasures under Arts.51-53 of the Articles on State Responsibility.
Thirdly, it again is based on a narrow definition of ‘law’ and “outdated dogma”: Case Concerning the Oil Platforms (2003) per Judge Ad Hoc Rigaux Sep.Op.
(ii) The Efficacy of International Law and the Use of Force:
The international community has moved to outlaw the threat or use of force in international relations: Arts.2(4) UN Charter. (Although there is some provision for the use of force under Arts.41-42 and 51 UN Charter.)
Arts. 41-42:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Art.51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The tightening of the rules on the use of force means States have lost one way in which to enforce the performance of obligations. However, the ASR’s still permit the use of force if the requisite conditions are met.
(e) An Uninteresting Debate:
Ultimately, the debate concerning whether international law can properly be so-called is uninteresting as it becomes a semantic debate about the best definition or concept of law: Professor Glanville Williams (1942, BYBIL); Waldock (1963). Williams explains that “the word ‘law’ is simply a symbol for an idea” and debate defining law reduces to analyzing each other’s “peculiarities of expression”. Austin defined what the word meant for him, which he was entitled to. However, he was not entitled to declare what it should mean for other people.
3. Weaknesses of International Law:
There are two areas of concern often raised about international law:
1. The absence or weakness of institutional structures; and
2. The absence or weakness of mechanisms to enforce the law. (dealt with above)
(a) Institutional Structures of International Law:
(i) Does International Law have Legislative Structures?
In assessing whether international law has a legislature, the following two usual characteristics of legislatures should be born in mind:
1. Function – legislatures create general rules binding on all persons; and
2. Procedure – the use of majority voting.
The General Assembly?
The GA can bind the international community only to a very limited extent. Under Art.17 of the UN Charter the GA is to:
a. consider and approve a budget for the organization; and
b. apportion the expenses to UN Members; and
c. consider and approve any financial and budgetary arrangements with specialized agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned.
Resolutions under Art.17 are by majority vote.
Under Arts.10-16 the GA has power only to discuss important issues and make recommendations to the SC. These Resolutions are not of themselves binding.
If the GA adopts a resolution ‘without a vote’, this reflects unanimous support for the resolution.
The Security Council?
Since the 1990’s, the SC has taken some actions which could be construed as legislative:
1. Creation of the ad hoc criminal tribunals, the ICTY and ICTR. However, this action could equally be classed as executive; and
2. Resolutions 1373 (purporting to impose general obligations of States in relation to the prohibition of terrorist financing) and 1540 (general obligations regarding the non-proliferation of weapons of mass destruction).
Two issues arise out of this:
1. Legality - whether the SC has the legal capacity to pass such resolutions;
2. Legitimacy – whether a body composed of 15 States can properly exercise legislative powers. Stephen Talmon, in a 2005 article in the AJIL describes the SC as a “patently unrepresentative and undemocratic body”.
It is also important to emphasize that despite these acts, the SC has not behaved as a general legislative body.
Others:
There are other international bodies such as the IMF, WB, ILO and WHO which have extensive membership. Each of these has specific powers, but do not have a 50% + 1 system, all considering to some extent the views of dissenting States.
A Regional International Legislature?
The European Union has a European Parliament.
This reveals that the types of international institution building that international law needs to be fully effective, at the moment, only appear possible at the regional level. This is due to the relative homogeneity – greater similarities, greater awareness of common interests.
Global Law Reform:
In 1946, the GA, under Art.13(1) of the UN Charter, passed a resolution establishing the ILC. The 34 legal experts of the ILC are charged with codifying and progressively developing international law.
For example, it drafted the VCLT 1969 and the ICC Statute 1998.
International Legislation?
The closest thing to legislation is a treaty with near universal adherence.
An International Legislature?
There at present exists no institutional framework within which such collective legislative action regularly takes place.
(ii) Does International Law have Executive Structures?
That is, does the international community have a body that applies and enforces the law?
The Security Council:
The SC does operate as an international executive body. It is composed of 15 members:
1. 5 permanent – the US, UK, France, Russia, China; and
2. 10 elected by GA, serving for 2 yrs. Art.23(1) of the Charter provides that in exercising their vote, GA members should have due regard to an equitable geographical distribution.
SC votes on non-procedural matters require both a majority of nine and no negative votes from the permanent members: Art.27.
Under Ch. VII, the SC can authorize the imposition of economic sanctions and the use of force against States. Members of the UN agree to accept and carry out decisions of the SC: Art.25. Examples of use of Ch VII powers:
- Korea 1950’s
- Kuwait/Iraq 1990s
- East Timor, 1999
- Resolution 1264 agreed that a multinational force should be deployed to East Timor
- Resolution 1274 established the UN Transitional Administration in East Timor (UNTAET)
- The multinational force handed command to UNTAET in Feb 2000
- UNTAET handed back to the East Timorese Government in May 2002
- There remains a UN presence in East Timor
- Liberia
- Haiti
There are currently 16 peace-keeping operations being undertaken by UN peacekeepers, amounting to 80,094 peace-keepers.
The Security Council – a General Executive Body?
The SC can operate as an executive which enforces the law.
However, Art.39 of the Charter (appearing in Ch. VII) limits the competence of the SC by linking its powers under Ch VII to the existence of a threat to peace, breach of the peace or an act of aggression.
Thus, it does not act as a general executive body.
Legality Review of Security Council Action?
The SC powers are also limited by Art.24 (2) of the Charter. It provides that the SC “shall act in accordance with the purposes and principles of the United Nations.”
Q = can it have its decisions reviewed to determine whether a dispute actually poses a threat to peace and security? No…
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Aerial Incident at Lockerbie (Prov.Meas.), (ICJ, 1992) Facts:
Judge Weeramantry Diss.Op.:
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Therefore, the Court does not have a general power of judicial review: Aerial Incident at Lockerbie per Judge Weeramantry Sep.Op.; Legal Consequences Case (1975, ICJ).
However, it is also clear that the SC’s powers are subject to the Charter and to international law: Legal Consequences Case per Judge Fitzmaurice Sep Op.
Thus, although the Court does not have the power of judicial review, it will, when a dispute is brought before it between two parties, determine the legality of the Resolutions so as to pronounce on the legal consequences of the Resolutions. If the Resolutions are illegal, they have no consequences: Legal Consequences Case per Court, Judge Petren Sep.Op.
However, the scope of the Court’s quasi-review power does not extend to Ch VII, such as a determination of whether there was in fact a threat to peace or security: Aerial Incident of Lockerbie per Judge Weeramantry Diss.Op.
Thus:
- The ICJ can not review a SC decision under Ch VII
- It is unclear, though possible, that the ICJ can consider the legality of SC decisions
Practically, the issue is without significant. Even if the ICJ declared the decision illegal, States still have to abide by it: Art.25 Charter.
However, the point of principle is that no entity should be above the law. The counter-argument is that it’s a political decision which the ICJ is ill-equipped to deal with. However, the main point is that there are certain circumstances which should not be classified as threats to security, and the executive powers of the SC are not given to enforce international law generally.
Specific enforcement regimes for specific areas, such as the WTO, do not have anything like a police force to enforce the law.
The United Nations Economic and Social Council:
The Economic and Social Council consists of fifty-four Members of the UN elected by the GA: Art.61 (1) Charter.
Its competence includes international economic, social, cultural, educational, health and related matters, making recommendations with respect to any such matters to the GA: Art.61(1) Charter. Its competence also includes human rights, making recommendations for the purpose of promoting respect for and observance of human rights: Art.62 (2) Charter.
It may prepare draft conventions for submission to the GA or call conferences on issues within its competence: Art.62 (3)-(4) Charter.
ECOSOC established 9 functional commissions and 5 regional commissions. It also coordinates the activities of the UN Specialized Agencies, such as the WHO, FAO, UNESCO and the ILO. Under Art.71 of the Charter, it has developed consultative arrangements with 1,600 NGO’s.
Thus, ECOSOC acts as an executive body, operating as a policy creation and coordination body. However, it lacks the capacity to enforce its initiatives against member States.
The Specialised Agencies of the United Nations:
The Specialized Agencies also lack the enforcement powers that are ordinarily expected in municipal systems.
The Secretary General and the UN Secretariat:
The current SG is a South Korean, Ban Ki-moon.
The SG is the chief administrative officer of the UN: Art.97 Charter. However, he/she also has an important political role, being able to bring to the attention of the SC any matter which in the SG’s opinion may threaten the maintenance of international peace and security: Art.99 Charter.
The SG is appointed by the GA for a five-year renewable term on the recommendation of the SC: Art.97 Charter. P5 members can therefore veto e.g. US opposition to Boutros Boutros Ghali in 1996.
Regional International Executive Bodies:
There exists relatively powerful executive bodies in the EU structure, namely the EU Council and the European Communities, again highlighting the greater effectiveness of regional institution building.
(iii) Does International Law have an International Judicial Body?
Firstly, it is worth noting some characteristics we expect from a municipal judiciary:
1. If someone is in the State, they are subject to its jurisdiction regardless of citizenship; and
2. We don’t doubt we have a judicial system just because some guilty ppl are not prosecuted or are found innocent; and
3. Judicial power usually involves binding determinations of law and fact.
The International Court of Justice:
Basic Features of the ICJ:
The ICJ is the successor to the PCIJ, and is the principal judicial organ of the UN: Art.92 Charter. It functions in accordance with a Statute which is annexed to the Charter: Art.92 Charter.
Members of the UN undertake to comply with the decision of the ICJ in any case in which they are a party: Art.94 (1) Charter. States not party to the dispute are not bound: Art.59 ICJ Statute.
ICJ Decisions can be enforced by the SC: Art.94 (2) Charter.
The GA and SC may request advisory opinions on any legal question: Art.96 (1) Charter. Other organs of the UN and specialized agencies may ask for opinions on legal questions arising within the scope of their functions: Art.96 (2) Charter.
Other Features of the ICJ:
There are 15 judges of the ICJ, none of whom may be nationals of the same State: Art.3 ICJ Statute. These do not sit as representatives of their States and are to be of the highest competence: Art.2 ICJ Statute.
Process for appointment of judges set out in Art.4 ICJ Statute:
1. Nomination of candidates by members of the Permanent Court of Arbitration;
2. Vote by the GA and SC.
In exercising their vote, electors should bear in mind that, “…the representation of the main forms of civilization and of the principal legal systems of the world should be assured”: Art.9 ICJ Statute. Further to this, there exists an understanding that the Court will be made up of:
1. 5 nationals from Western States; and
2. 3 nationals from African States; and
3. 3 nationals from Asian States; and
4. 2 nationals from East European States; and
5. 2 nationals from Latin American States.
There is also an understanding that within these groups all P5 States will be represented.
Judges have a 9yr term, though are eligible for re-election: Art.13 ICJ Statute.
The number of judges may rise to 17 in contentious cases if the States party to the dispute do not have a national on the bench they may select an ad hoc judge. This may also be true in advisory opinions: Art.68 ICJ Statute.
Contentious Cases – State v State:
Only States may be parties in cases before the Court: Art.34 (1) ICJ Statute.
Advisory Jurisdiction:
The ICJ may give advisory opinions in accordance with the UN Charter: Art.65 (1) ICJ Statute.
This is a discretionary power. However, compelling reasons need to be presented if the Court is not to exercise this power: Legality of the Threat or Use of Nuclear Weapons Case (1996, ICJ).
The GA and SC may request advisory opinions on any legal question: Art.96 (1) Charter.
Other organs of the UN and specialized agencies may ask for opinions on legal questions arising within the scope of their functions: Art.96 (2) Charter. In the Legality of the Threat or Use of Nuclear Weapons Case (1996, ICJ), the ICJ held that the WHO may not obtain an advisory opinion relating to the legality of the use of nuclear weapons. Although the WHO’s activities covered the effects on health of the use of nuclear weapons, the advisory opinion requested was not as to health but as to the legality of such weapons.
The Court may hear non-State entities prior to delivering advisory opinions: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004, ICJ); Arts.34 (2), 66(2) ICJ Statute.
Obstacles to Effective ICJ Jurisdiction:
The Problem of Consent:
The ICJ’s contentious jurisdiction depends on State consent. This can be contrasted with municipal systems.
There are two ways in which consent can be given…
Article 36(1) Jurisdiction:
Art.36 (1) provides:
“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”
A dispute may be referred to the ICJ in two ways:
1. A special agreement or compromise e.g. in the Minquiers and Ecrehos Case (1953, ICJ)
2. A treaty provision which allows for parties to refer disputes in relation to the treaty to the ICJ e.g. the Protocol to the VCDR
Article 36(2) Jurisdiction – The “Optional Clause”:
Art.36(2) provides:
“The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning…”
About 60 States have accepted this.
CONDITIONAL DECLARATIONS:
However, it is possible to accept the Court’s jurisdiction under 36(2) conditionally.
For example, in 1954 Australia conditionally accepted jurisdiction under 36(2). In 1975 it then accepted it unconditionally. However, in 2002 it again made its acceptance conditional on:
a. The parties not agreeing to another method of peaceful settlement; and
b. The dispute not concerning the delimitation of maritime zones; and
c. The other party being a party to the State less than 12mths prior to the filing of the application bringing the dispute before the Court.
The ICJ and Affected Third States – More Problems with Consent:
The Court will not allow a claim against a State where the determination of that claim will necessarily involve the Court passing judgment of the lawfulness of the conduct of a third State which has not consented to the Court’s jurisdiction (i.e. under Article 36(2) and not having made a reservation in respect of this dispute): Monetary Gold Removed from Rome (1954, ICJ); East Timor Case (Portugal v Australia) (1995, ICJ).
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East Timor Case (Portugal v Australia) (ICJ, 1995) Facts:
Held:
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However, in order for the Monetary Gold principle to apply, the rights and interests of the States seeking protection must be the very subject matter of the dispute: Phosphate Lands in Nauru (Nauru v Australia) (1992, ICJ).
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Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia) (ICJ, 1992) Facts:
Held:
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The ICJ and Enforcement – Permanent Members of the Security Council:
Art.94 (2) of the UN Charter provides:
“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
Given the veto power of the P5, it is possible that SC will refuse to take action where P5 members are the liable party. For example, the SC did not take action following US non-compliance subsequent to the ICJ’s decision in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) (Merits) (1986, ICJ).
However, P5 members ordinarily comply with decisions of the ICJ.
Other International Judicial Bodies:
The SC established ad hoc criminal tribunals, the ICTY and ICTR to prosecute individuals responsible for crimes in these conflicts. The jurisdiction of these tribunals is limited temporally and geographically. State consent is not an issue in relation to these due to SC Resolutions.
The ICC, established by Statute in 1998, was potentially much wider jurisdiction and a more secure treaty foundation. State consent is an issue with these.
There is also an International Tribunal for the Law of the Sea (ITLOS) established by the parties to the Law of the Sea Convention (1982).
The Agreement Establishing the World Trade Organization established a system of compulsory jurisdiction, heard by a WTO Panel.
States may also establish ad hoc tribunals to resolve disputes. For example, the Iran-USCT between Iran and the US was set up in 1979 following the Iranian Revolution.
Regional International Courts:
There is a European Court of Justice which is the judicial organ of the EU, sitting in Luxermbourg.
There is also the European Court of Human Rights, set up under the auspices of the Council of Europe, and based in Strasbourg. To derive the financial benefits of Council of Europe membership, members must accept the jurisdiction of the ECHR. ECHR judgments are binding.
The Council of Europe is a larger body than the EU – the EU is composed of 27 Western and Central European States. The Council of Europe is made up of 40, including Eastern European States such as Russia and Turkey.
There are also the following regional human rights courts:
- Inter-American Court of Human Rights (Americas); and
- African Human Rights Court (Africa).
HISTORICAL AND THEORETICAL ISSUES
1. A Brief Historical Tour:
(a) Western Europe in the Middle Ages:
The particular rules now identified as international law began their life essentially as rules governing relations between Western European political entities.
(i) Decline in Political and Moral Unity:
In Western Europe during the Middle Ages there was a process of decentralization. As the Middle Ages unfold, there is a reduction in the control of both the Roman Catholic Church and the Holy Roman Empire. The Reformation and the rise of Nation-States are a reflection of this breakdown of central authority.
(ii) Natural Law Theory:
A similar pattern can be identified in the philosophical realm. The universality of the empire and the Church led to a universality theory of law – natural law.
Although initially being theological (e.g. Aquinas), by the time of Hugo Grotius (1583 – 1656), natural lawyers were casting off their theological orientation and adopting a rationalist foundation. Natural law was seen to derive from universal reason rather than the laws of God e.g. Finnis, Fuller.
(b) The Early Modern Period:
The Reformation is often taken as the point at which the Middle Ages ended and the Early Modern period begun.
(i) War:
The above-mentioned decentralization was reflected in conflict. The Thirty Years war, beginning in 1618 illustrated the dangers for political entities of not having mechanisms in place to allow co-existence.
The War ended in 1648 with the Treaty of Westphalia. This was a particularly significant development in international law as the Treaty was based on the recognition of a community of independent and equal “sovereign” entities. The Treaty regulated, in a limited way, the conduct of relations between States and their co-existence.
Subsequently, at the Congress of Vienna in 1815, Western European powers used international law to establish a rudimentary system of collective security designed to protect these powers from revolutionary conflict such as that which had followed the French Revolution.
(ii) “Sovereign” States and Consent:
The emphasis on independence and equality of sovereign States translated into an emphasis on the need for their consent. The Western European “international” legal system was built on the concept of consent of independent and equal sovereigns. Thus, there was clear scope for tension between this emphasis on consent and the universality pretensions of natural law theory.
(c) International Law in the 18th Century:
(i) Positivism:
Natural law theory began to be challenged by positivism in the 18th and 19th centuries. Positivism for international lawyers generally means preoccupation with the practice and the consent of States in law creation (see more below).
Positivists argued that States were bound only by those rules which they had in fact consented to. A related assumption is that States have complete freedom in the absence of limitations consented to. This was the view of the PCIJ in the Lotus Case.
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Lotus Case (France v Turkey) (1927, PCIJ) Facts:
Arguments:
Held:
· “international law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.” |
(d) International Law in the 19th Century – Expanded Membership:
International law developed initially as the law of the community of Western European States. The Lotus Case also illustrates how things had begun to change – Turkey was admitted to the international law “club” in the 19th century. This was also true of the US and the newly independent South American States, amongst others.
However, the expansion of the subjects of international law to encompass non-European States did not mean the notion of sovereign equality was applied equally. Some States were more equal than others.
(e) International Law in the 20th Century:
(i) The First World War – War as an Instrument of National Policy:
Although the Treaty of Westphalia committed the relevant States to co-existence, it did not outlaw the use of force. One consequence was the outbreak of the First World War.
(ii) The League of Nations:
After WWI, States again tried to fashion a system of co-existence. The League of Nations was committed in 1920. The members of the League renounced the use of war as an instrument of national policy in 1928.
The League is also important for two other reasons:
1. International Cooperation
· Part XIII of the Treaty of Versailles provided for the establishment of the International Labour Organization, a forum in which States (and not just States) could come together regularly to seek solution of problems associated with labour worldwide.
2. Judicial Settlement of Disputes
· The League established the Permanent Court of International Justice
· This marks the beginning of a new stage in the process of attempting to moderate exercises of power by the application of international rules.
Of course, League attempts to prevent the use of force proved unsuccessful. In particular, the League failed to effectively censure Italy and Japan for their aggression against Ethiopia and China respectively.
(iii) The United Nations:
After another brutal worldwide conflict, WWII, the international community again tried to establish a structure in which to maintain peaceful relations between States. On 26 June 1945, the representatives of 50 States signed the UN Charter.
International Co-existence:
The Charter contains a clear commitment to co-existence:
· Art.2 (4) prohibits the threat or use of force against the territorial integrity or political independence of States.
· However, Art.51 provides for self-defence and Ch VII allows the SC to use force in certain circumstances.
International Cooperation:
The Charter also evidences an increased commitment by the international community to cooperation:
- The ILO was retained
- Other international institutions such as the Economic and Social Council of the UN, the WHO, the Food and Agriculture Organization and the United Nations Educational, Social and Cultural Organization were established regarding social functions.
- Trade and financial cooperation developed through the IMF, International Bank for Reconstruction and Development (World Bank) and the GATT (1947), which were born immediately after the Second World War to allow greater cooperation in economic spheres.
Substantive Values:
The Charter contains not only commitments to co-existence and cooperation, but also substantive values such as human rights and fundamental freedoms: Arts.1, 55, 56, 62, 68 and 76.
The international community’s commitment to human rights was set out in greater detail in 1948 in the UDHR.
(iv) The Cold War:
The role envisaged for the SC and other UN organs was not realized during the polarized period of the Cold War. The political and ideological rivalry between East and West had a significant effect on the content and application of international law.
Also, during this period there was a sustained process of decolonization which dramatically increased the size and diversity of the international community of States.
(v) The Post Cold War World:
The collapse of communism in Europe and the end of the Cold War has been followed by a period which has seen:
1. A relative rise in power of non-governmental entities such as multinational corporations;
2. A reduction in the freedom of States to set national policy via the process which is referred to as globalization; and
3. Growing concern about threats from non-State actors, such as terrorists and environmental harm.
(vi) International Law and Integration – the European Union:
International law was used to establish the European Economic Community (EEC) and similar organizations focused on economic integration in Europe.
This integration was been deepened with the treaties establishing the European Community and the European Union, such that there has also been political and social integration.
2. International Law – Two Critical Issues:
(a) “Sovereignty”:
(i) Provisions for Sovereignty:
Arts.2 (1) and 2(7) of the UN Charter make clear provision for sovereignty of States:
· Art.2 (1) provides that the UN, “…is based on the principle of sovereign equality of all its members.”
· Art.2(7) provides that nothing in the Charter authorizes the UN to intervene in the domestic jurisdiction of any State, subject to the powers of the SC under Ch VII
The notion of sovereign equality means that, for example, Nauru with a population of 12,000 has one vote in the GA alongside China which as a population of 1.2 billion.
However, even as early as 1923 it was recognized that the concept of domestic jurisdiction was relative and not absolute. In the Advisory Opinion Concerning Nationality Decrees in Tunis and Morocco (French Zone) (1923, PCIJ) the PCIJ said:
“…the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations.”
(ii) “Unpacking” Sovereignty:
Professor Henkin writes that ‘sovereignty’ is a bad word, being a catchword which substitutes for thinking and precision. Henkin identifies six different conceptions tied up with the term:
1. Independence – in the sense of being a discrete legal entity;
2. Equality – in the sense of legal conception, being equal in status, personhood, legal capacity, rights, duties and responsibilities;
3. Autonomy – meaning that a State is not subject to any external authority unless it has voluntarily consented to such authority;
4. States as persons – having legal personality;
5. Territorial integrity and authority – complete authority in its territory and over persons, activities and things within this territory;
6. Impermeability – other States are not to intervene in a State’s territory, to penetrate its society, governance or its relations with its citizens. This is not absolute e.g. international human rights law.
(b) Globalization:
In each of these areas there are now encroachments. States no longer have the same independence, autonomy and territorial authority they once had and globalization appears to be implicated in this.
Globalization covers economic and social interdependence and the capacity of goods, capital and ideas to move around the world at great speed.
International lawyers are tempted to be a little triumphalistic about globalization for two reasons:
1. International lawyers feel they have finally gained the recognition they deserved now that international law is relied on in an extensively globalizing world; and
2. There is an increased focus on human rights and States are often major violators of human rights.
However, if we focus not only on human rights but also on States as guarantors of schools, hospitals, shelter and food, the reduction of independence and autonomy of States and the mobility of capital start to take on more negative connotations. This is reflected in the failure of the OECD’s draft MAI and criticism of the IMF’s structural adjustment policies.
Concerns about globalization include whether multinational enterprises can be held directly responsible for violations of international law, and the nature of responsibilities of States within intergovernmental organizations.
(i) Fragmentation:
The Issue:
A further concern regarding globalization has been recognized by the International Law Commission and has been the subject of a 2006 report. This concern is the fragmentation of international law i.e. the emergence of specialized and relatively autonomous rules of rule-complexes, legal institutions and spheres of legal practice.
The ILC reports that it is a paradox of globalization that while it has led to increasing uniformization of social life around the world, it has also led to increasing fragmentation. For example, what once appeared to be governed by “general international law” has become the field of operation for specialist systems such as “trade law”, “human rights law”, “environmental law” etc. each of which possesses their own principles and institutions. The result is conflicts between rules or rule-systems, deviating institutional practices and possibly the loss of an overall perspective on the law.
The Causes:
The ILC, drawing on the work of Wilfred Jenks, points to two phenomena to explain fragmentation:
1. The development of a number of historical, functional and regional groups which are separate from each other; and
2. The development of the law governing the revision of multilateral instruments and defining the legal effects of revision.
Assessment:
International lawyers have been divided in their assessment of this.
- Some are highly critical of what they see as the erosion of general international law, emergence of conflicting jurisprudence, forum-shopping and loss of legal security. Fragmentation creates the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices;
- Other consider this a merely technical problem that has emerged naturally with the increase of international legal activity and which may be controlled by the use of technical streamlining and coordination. Fragmentation merely represents the rapid expansion of international legal activity into various new fields and the diversification of its objects and techniques.
3. Theoretical Issues:
(a) The Nature of International Law:
(i) Positivism:
Positivism is the traditional Western liberal perspective from which international law is conceived.
For positivists, international law is no more or no less than the rules to which States have agreed through treaties, custom and other forms of consent. The basis of positivist reasoning is that, by analogy, the rules of international law have the same character as those of municipal law because they emanate from the will of States. This perspective is taken by the PCIJ in the Lotus Case where it states that:
“the rules of law binding upon States… emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established order to regulate the relations between these co-existing independent communities or with a view to the achievement of a common aim.”
Although positivists, through this conception, generally accept that international law is positive law, it would likely not be on a strict Austinian conception of law (requiring commands by a sovereign). The enforceability of the law in the international legal system requires the consent of States on which it is binding, and is thus not in the nature of a command.
Thus, positivists consider international law as positive law on the basis on the consent theory.
(ii) Majoritarian Conceptions of International Law:
Developing States (who now have a clear majority in the General Assembly) have argued that a more majoritarian conception of international law is developing. This idea is that the international community, acting collectively can create international obligations binding on all States, even those that object to the creation of such obligations.
For example, during the 1960’s and 70’s the developing world demanded the establishment of a new international economic order that redressed the inequalities in the world economy which favoured the developed North at the expense of the developing South. Part of this is contained in GA Resolutions 1803 and 3281, providing for sovereignty over natural resources.
Professor Hilary Charlesworth has suggested that the ICJ’s “strained analysis” in the Nicaragua (Merits) Case reflects the tension between a traditional consent based understanding of international law and a more communal approach.
Cassese refers to the “unique coexistence” of the Westphalian and the idealistic, communal orders in the international community.
(iii) Natural Law Theory:
Natural lawyers regard that international consists in the fact that the human race serves a moral and political unity which applies to all foreigners of any nation: Francisco Suarez. Modern natural lawyers predominantly consider that the teleology can be identified through reason: see Finnis. Contrast the religious perspective of Aquinas and Augustine.
However, the natural law thesis does not reflect the reality of international law. There is nothing in international relations to suggest that States consider themselves bound by a rule of natural law, let alone in absolute terms. International organization is more a result of perceived self-interest and mutual benefit that a natural tendency of States as socially-oriented human organizations to be together.
However, there are traces of natural law tendencies in some areas. For example, rules of jus cogens.
(iv) New Haven School:
The New Haven School describes itself as a policy-oriented perspective, viewing international law as a process of decision-making by which various actors in the world community clarify and implement their common interests in accordance with their expectations of appropriate processes and effectiveness in controlling behaviour. Its jurisprudence is concerned with making policy choices and decisions, rather than with locating the source of obligation in international law.
International law is thus regarded as the product of an authoritative decision-making process, rather than a discrete body of rules.
(b) Critiques of International Law
(i) Feminist Critiques of International Law:
A common theme in feminist critiques of international law is the drawing of attention to the exclusion of some women’s interests from the design or application of the law. The neutrality and objectivity of international law is questioned. Only men have been involved in the creation of international law and they have essentialized their experience.
For example, the definition of ‘torture’ in Art.1 (1) of the Torture Convention requires “public” action for the definition to be satisfied. It is argued that torture occurs outside the context of State action, often within families.
(ii) Critical Legal Studies and International Law:
Critical scholars have challenged a view of the law as rational, objective and principled by styding the indeterminacy of, and contradictions inherent in, legal rules. A unifying theme in critical legal scholarship is the coincidence of law and politics and the futility of attempts to carve out a separate and distinct sphere for legal truth.
For example, Koskenniemi argues that there is a fundamental tension between the individualistic, sovereign-based nature of international society and the communitarian justification for a legal system.
Another example is that international lawyers want to say that States are bound by international law, even in cases where a State does not want to be bound by a particular rule. On the other hand, international lawyers want to link the existence of obligations to the consent of States.
Thus, he argues that international law is indeterminate. Any result in a dispute can be justified under international law.
(iii) Critiques of the South:
This critique holds that international law has a Western orientation and a cultural bias. Many international legal principles were devised to justify colonial confiscation and appropriation. A major focus has been the international economic system, which led to the campaign for a new international economic order, a campaign to achieve economic and political independence for States by articulating a right for peoples and nations to control their natural resources, prohibiting illegitimate interference in a nation’s economic affairs, and outlawing all forms of coercion in international economic matters.
SOURCES OF INTERNATIONAL LAW
1. Introduction:
Article 38 of the ICJ Statute provides:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
Ex aequo et bono means “on the basis of what is fair and right”. Art.38 (2) therefore permits parties to a dispute to agree that the Court will determine a dispute on this basis.
The reference to “civilized” was in the Statute of the PCIJ, and is now redundant.
The drafting committee to the PCIJ Statute rejected a proposal that the Article specifically direct the PCIJ to consider the sources “in the under mentioned order”. Thus, the Statute leaves it open to the Court to consider the sources as it sees fit.
Technically, Art.38 is a treaty provision which directs the operation of the ICJ. However, it is generally considered as an accurate statement of the sources of international law. Thus, it is effectively applied by all courts applying international law.
2. Treaties
(a) The Preferred Tool for International Legal Regulation:
Treaties are now the main way in which States and international organizations establish rights and obligations under international law. For example, a collection of the treaties negotiated in the 270 years between 1648 and 1919 runs to some 231 volumes. This is also reflected in the ILC’s 2006 Report on the Fragmentation of International Law, where the Commission refers to the development of specialized institutions etc.
(b) What is a Treaty?
Art.2 of the Vienna Convention on the Law of Treaties between States 1969 defines a treaty as:
“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in to or more related instruments whatever its particular designation.”
Treaties may be bilateral (between two States) or multilateral (between more than two States).
Although the VLCT refers to agreements in writing, oral agreements can also be binding under international law: ILC Commentary to the VCLT; Legal Status of Eastern Greenland (PCIJ, 1923)
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Legal Status of Eastern Greenland (PCIJ, 1933) Facts:
Held:
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An agreement is a treaty if it possesses certain qualities “whatever its particular designation”: Art.2 VCLT. This includes “treaty”, “convention”, “protocol”, “declaration”, “charter”, “coventant”, “pact”, “act”, “statute”, “agreement”, “concordat”. The names “declaration”, “agreement” and “modus vivendi” may be given to formal or less formal types of agreements. The nomenclature of less formal agreements is illimitable: ILC Commentary to VCLT, 1966.
Despite the definition in Art.2 of the VCLT 1969, certain international organizations can also enter into treaties: see VCLT 1986.
(c) How do States bind themselves to Treaties?
This is often provided for in the treaty. The general pattern is that in bilateral treaties the act of signing the treaty binds the State. For multilateral treaties, the process usually involves signature and ratification.
If a treaty is not yet in force, a State is obliged to refrain from acts which would defeat the object and purpose of that treaty if it has signed the treaty or otherwise expressed its consent to be bound by the treaty: Art.18 VLCT.
(d) Non-Parties:
(i) General rule:
A treaty does not create rights or obligations for States which are not party to the treaty (pacta tertiis nec nocent nec prosunt): Art.34 VCLT.
However, an obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing: Art.35 VCLT.
A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides: Art.36 VCLT.
(ii) “Objective” Regimes and Border Treaties:
There is a limited exception to this rule with respect to treaties that impose some special status on particular territories or bodies of water, or establish territorial boundaries.
Where there is a border agreement or other objective regime, that regime will be binding on all States: Aaland Islands Case (1920).
In the Aaland Islands Case, Finland was held to be bound by a treaty between Russia, Great Britain and France in which Russia, amongst other things, agreed to demilitarize the Aaland Islands. Finland subsequently acquired authority over the islands but was held to be bound by the treaty (that it was not a party to) by the International Commission of Jurists.
The Antarctic Treaty of 1959 is often cited, for example by Harris, as an example of a treaty establishing on objective regime.
The special status given to border treaties is designed to maximize the certainty of international borders.
This is reflected in Art.62 (2) of the VCLT which provides that a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the treaty establishes a border.
(iii) Treaties and Customary International Law:
A treaty can affect the development of customary international law: see Art.38 VCLT. This is a quasi-exception to the rule as the treaty is not the source of the obligation, but contributes to the existence of the separate customary obligation.
As between themselves, a group of States can agree by treaty to alter the effect of a customary rule upon them. Whilst a treaty can alter a customary rule as between the parties to the treaty, it cannot alter the customary law rights and duties of third States not party to the treaty.
The existence of identical rules in treaty law and customary law has been clearly recognized by the ICJ. Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty law and customary law, these norms retain a separate existence: Nicaragua (Merits) (1986, ICJ).
Jus Cogens:
A treaty, however, cannot vary a rule of jus cogens or peremptory norms: Arts. 53 and 64 VCLT. Art. 53 deals with peremptory norms at the time the treaty enters into force. Art.64 deals with peremptory norms which emerge after a treaty is operational.
The criteria for identifying peremptory norms of general international law are stringent: Commentary to Art. 26 ASR’s. A peremptory norm is a norm accepted and recognized by States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm having the same character: Art.53 VCLT.
However, unanimity is not required: VCLT Negotiation Conference Records.
The following have been recognized as rules of jus cogens:
1. The prohibition on the use of force contrary to the principles of the UN Charter: ILC 1966 Commentary to Art.64 of VCLT; Commentary to Art.26 ASR’s;
2. A treaty contemplating the performance of any other act criminal under international law: 1966 Commentary to Art.64 of VCLT;
3. A treaty contemplating or conniving at the commission of acts such as trade in slaves, piracy or genocide: 1966 Commentary to Art.64 of VCLT;
4. Genocide: Commentary to Art.26 ASR’s.
5. Slavery: Commentary to Art.26 ASR’s.
6. Racial discrimination: Commentary to Art.26 ASR’s.
7. Crimes against humanity and torture: Commentary to Art.26 ASR’s.
8. The right to self-determination: Commentary to Art.26 ASR’s.
Peremptory norms can only be replaced by norms of the same character: see Article 53 VCLT.
In the Arrest Warrant Case (2002), the ICJ held that the breach of jus cogens norms (grave breaches of the Geneva Conventions and Additional Protocols thereto) was covered by sovereign immunity. In Al-Adsani v UK (2001, ECHR) it was held (9:8) that whilst the prohibition on torture was a peremptory norm of international law, a State enjoys immunity from civil suit in the courts of another State (sovereign immunity) where acts of torture are alleged. These cases have been criticized for failing to accord greater significance to the relevant peremptory norms: Al-Adsani v UK per 8 dissenting judges; Shelton, 2006 AJIL.
3. Customary International Law:
For a rule of custom to develop, there must be general and consistent state practice accompany by a sense of legal obligation or opinio iuris.
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North Sea Continental Shelf Cases Facts:
· “Where the same Continental Shelf is adjacent to the territories of two adjacent States, the boundary of the Continental Shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances the boundary shall be determined by application of the principle of equidistance…”
Held:
· Codified the position under custom · Crystallized customary international law · Customary law had subsequently developed
· “[a]lthough the passage of only a short period of time is not necessarily or of itself a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”
· The principle was applied only in the absence of an agreement · The principle was not to be applied where there were special circumstances · It is possible for States to make reservations in relation to Art.6 when becoming parties to the Convention.
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(a) State Practice:
(i) The nature of the practice:
(A) What constitutes State practice?
A wide variety of statements and actions qualify as State practice.
The ILC in work in 1950 included the following in a non-exhaustive list of the forms state practice may take:
- Treaties;
- Decisions of international and national courts;
- National legislation;
- Diplomatic correspondence;
- Opinions of national legal advisers; and
- Practice of international organizations.
Professor Ian Brownlie also lists the following as constituting state practice:
- Police statements;
- Press releases;
- Official manuals on legal questions (e.g. manuals of military law);
- Executive decisions and practices;
- Orders to naval forces; and
- Comments by governments on drafts produced by the ILC
General Assembly resolutions may also be a valuable source of State practice: Legality of Nuclear Weapons Advisory Opinion (1996, ICJ).
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Legality of Nuclear Weapons Advisory Opinion Facts:
Held:
Reasoning:
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Actions v Words:
It has been argued that claims or statements cannot constitute state practice. State practice does not occur until a State takes enforcement action: Professor Anthony D’Amato; Anglo-Norwegian Fisheries Case per Judge Read.
However, it seems clear that words, though not conclusive evidence of custom, constitute state practice: Nicaragua (Merits); Nuclear Weapons Advisory Opinion.
Ultimately, the weight of the practice in determining custom will depend on the occasion and the circumstances: Brierly.
(B) Fundamental norm-creating character?
In order for practice to evidence custom, that practice must be of a fundamental norm creating character. That is, it must be regarded as forming the basis of a general rule of law: North Sea Continental Shelf Cases.
(C) Schizophrenic States?
Where officials of a single State act inconsistently on a particular issue, there are two approaches to be taken:
1. Ignore the actions of all officials of that State on the grounds of inconsistently. This is the view of Jean-Marie Henckaerts and Louise Doswald-Beck; or
2. Assess the weight of the inconsistent practice. This is a more nuanced approach: ILA 2000 Report on Formation of Customary Law. Under this approach:
a. Practice of more senior members more influential than practice of juniors;
b. Acts of executive given greater weight than acts of judiciary: ILA 2000 Report on Formation of Customary Law;
c. If an official’s acts are ultra vires under the law of the State or are disavowed by higher officials, that practice might be discounted: ILA 2000 Report on Formation of Customary Law.
Even applying this more nuanced approach, there is a need for consistency for acts of States to have significance in forming custom: ILA 2000 Report on Formation of Customary Law.
(ii) The requisite level of practice:
The ICJ has not provided detailed guidance on this issue. However, generality of practice, not rigorous conformity, is required: Nicaragua (Merits); Fisheries Jurisdiction Case (UK v Iceland) 1974.
In the Nicaragua (Merits) decision, the Court relied on opinio iuris in GA Resolutions to establish the customary rule on the use of force by States, without referring to any additional practice, seemingly considering opinio iuris enough: Harris. However, this case has been criticized, for example, by Professor Hilary Charlesworth.
If one State or a few States protest, that will not militate against the existence of a customary rule: South West Africa (Second Phase) per Judge Tanaka.
For custom to develop over a short time, practice must be “extensive and virtually uniform”: North Sea Continental Shelf Cases.
(iii) Practice by whom?
(A) Practice of specially affected States:
The practice of States specially affected by the rule will be particularly influential in establishing a customary rule: North Sea Continental Shelf Cases.
(B) Representative nature of practice:
The practice of States should generally be representative i.e. practice should exist by both developing and developed States: North Sea Continental Shelf Cases.
(C) Practice of Treaty Parties:
If States are parties or about to become parties to a treaty, their practice will be less influential as they may simply be applying the treaty rather than acting out of a sense of legal obligation: North Sea Continental Shelf Cases.
(b) Opinio Iuris:
Opinio juris is a sense of legal obligation. State practice must be done under a sense of legal obligation in order for a customary rule to form: North Sea Continental Shelf Cases. This distinguishes the practice from a rule of international comity.
Opinion iuris must be positively proved and cannot be inferred from widespread state practice: North Sea Continental Shelf Cases per majority. Opinio iuris is extremely difficult to prove: North Sea Continental Shelf Cases per Judges Tanaka and Sorenson. For this reason, Judge Sorenson, following Lauterpacht, considered that opinio iuris could be inferred.
General Assembly Resolutions can be important sources of opinio iuris: Legality of Nuclear Weapons Advisory Opinion (1996).
Statements that something “should” happen is not opinio iuris. It is the language of lex ferenda: Legality of Nuclear Weapons Advisory Opinion.
If a State acting in breach of a rule does not openly challenge the rule but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then the State’s behaviour actually confirms the rule rather than weakens it: Nicaragua (Merits).
If States not party to a treaty have conformed their practice to the requirements of the treaty, this will be evidence of opinio juris.
Statements of policy need to be distinguished from assertions of existing rules of international law: Nicaragua (Merits).
(c) Regional Custom:
Rules of customary law may develop amongst regions. For this to occur, practice must be “constant and uniform”: Asylum Case (Columbia v Peru) (ICJ, 1950).
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Asylum Case (Columbia v Peru) (ICJ, 1950) Facts:
Held:
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(d) Local Custom:
It is also possible for customary rules to exist locally, between as few as two States. In this case, the practice must be long and consistent: Rights of Passage Case (Portugal v India) (1960, ICJ).
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Rights of Passage Case (Portugal v India) (1960, ICJ) Facts:
Arguments:
Held:
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(e) The Persistent Objector Rule:
As above, a customary rule can develop despite the fact that some States oppose the rule. The persistent objector rule effect that a State who persistently objects to the creation of a new rule of customary international law, the State is not bound by that rule: Anglo-Norwegian Fisheries Case (UK v Norway) (ICJ, 1951); Asylum Case (Columbia v Peru) (ICJ, 1950); Third Restatement.
The State must object at the point of creation of the rule. It cannot rely on the persistent objector principle in relation to a customary rule that was already in existence at the time of its first complaint: Anglo-Norwegian Fisheries Case.
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Anglo-Norwegian Fisheries Case Facts:
Arguments:
Held:
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In the Asylum Case, the Court considered that Peru was a persistent objector to the rule alleged by Columbia regarding asylum. |
(i) The Persistent Objector Rule and Rules of Jus Cogens:
Since absolute unanimity is not required for the formation of rules of jus cogens, it is possible that a State will persistently object to a jus cogens norm.
The majority of academics take a majoritarian view, considering that you cannot have a persistent objector avoiding a rule of jus cogens: e.g. Henkin. However, Professor Antonio Cassesse, taking a consent based perspective, considers that the persistent objector rule applies even to rules of jus cogens.
(ii) Custom and Newly Independent States:
A newly independent State cannot object to a rule of customary international law at the moment of gaining its independence and thus avoid the effect of the rule. Once a State joins the club, it must accept the rules of the club at that point. It may, however, object to new proposed rules.
Although in the early party of the 20th Century, some newly independent States argued they could choose which customary rules bind them (Damrosch), those types of claims are no longer made by States.
(f) The Unilateral Assumption of Obligations under International Law:
A State may be bound by its unilateral acts in the form of public declarations: Nuclear Test Cases (Australia v France; NZ v France) (ICJ, 1974): ILC 2006 Guiding Principle 1.
The basis of the binding nature of such unilateral acts is good faith: ILC Guiding Principle 1.
(i) The form of the declaration:
To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise: Nuclear Test Cases (Australia v France; NZ v France) (ICJ, 1974); ILC 2006 Guiding Principle 3.
In order for a State to be bound by its public declarations, those declarations must be accompanied by an intention to create legal obligations: Nuclear Test Cases (Australia v France; NZ v France) (ICJ, 1974): Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali) (1986, ICJ); ILC 2006 Guiding Principle 1.
A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner: Nuclear Test Cases (Australia v France; NZ v France) (ICJ, 1974); Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), (Jurisdiction and Admissability) (ICJ, 2006); ILC 2006 Guiding Principle 7.
Unilateral declarations may be formulated orally or in writing: Nuclear Test Cases (Australia v France; NZ v France); ILC 2006 Guiding Principle 5.
Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities: ILC 2006 Guiding Principle.
A unilateral declaration which is in conflict with a peremptory norm of general international law is void: ILC 2006 Guiding Principle 8.
(ii) Declaration by whom?
A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so: ILC 2006 Guiding Principle 4. The Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), (Jurisdiction and Admissability) (ICJ, 2006); Article 4 ASR’s.
(iii) Withdrawal?
A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. However, it may be withdrawn: ILC 2006 Guiding Principle 10.
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Nuclear Test Cases (Australia v France; NZ v France) (ICJ, 1974) Facts:
Held:
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4. General Principles of Law:
General principles recognized in national law constitute a reservoir of principles which an international judge is authorized to apply of their application appears relevant and appropriate: Waldock.
The reference to “civilized” is now redundant. However, it reflects a formulation which is positivist, rather than based on natural law precepts, and thus the ICJ is required to look at general principles of law recognized by municipal systems of law: Cassesse.
It is important to bear in mind that the reference is to “principles” not “rules”: Fitzmaurice.
(a) Determination of General Principles:
The principles need to be general in the sense that they are applied in many legal systems. For example, in South West Africa (Second Phase) (1966, ICJ) the ICJ found that actio popularis was known only to certain legal systems. Also, in Barcelona Traction the Court referred to “many legal systems” which recognized corporations as their nationals where those corporations are incorporated and have their centre of control in the State.
Two observations are relevant (Waldock):
1. Despite the multitude of legal systems, similarities are common as a result of the colonial legacy;
2. In practice, tribunals rarely look further than common law, Roman law and Germanic legal systems (i.e. rarely Islamic or Chinese).
(b) Procedural General Principles:
Underlying principles are often procedural or subsidiary rather than substantive.
(i) Principles of Reparation:
In the Chorzow Factory Case (1928, PCIJ), the PCIJ held that the breach of a treaty term implied an obligation to make reparation, even if the treaty made no specific provisions for reparation in cases of breach.
(ii) Evidentiary Principles:
In the Corfu Channel Case (1949, ICJ), the Court held that the admission of circumstantial evidence was allowed in all systems of law and was therefore examinable in proceedings before it.
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Corfu Channel Case (1949, ICJ) Facts:
Held:
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(c) Substantive General Principles:
Not all general principles are procedural.
(i) Estoppel and Acquiescence:
The ICJ applied the principles of estoppel, as a general principle of law, in the Temple Case (Thailand v Cambodia) (1962, ICJ).
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Temple Case (Thailand v Cambodia) (1962, ICJ) Facts:
Held:
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Estoppel has been applied in subsequent cases, for example Gulf of Maine (Canada v US) (ICJ, 1996).
(ii) Equitable Principles:
Judge Hudson of the PCIJ in the Diversion of the River Meuse Case (Netherlands v Belgium) (1937, PCIJ) considered that there was a general principle equivalent to the maxim that “one who seeks equity must do equity”. The Netherlands had been complaining about Belgian conduct. However, it had been previously involved in precisely the same conduct. It was therefore denied relief.
Also, the ICJ has held that general principles of equity demand that States exercise discretion good faith: First Admissions Opinion (1948, ICJ); Case Concerning Rights of Passage Over Indian Territory (Merits) (1960, ICJ).
The ICJ has also emphasized the need to have “an equitable result” in various maritime delimitation case. In the Continental Shelf (Tunisia v Libya) Case (1982, ICJ) the Court observed that “… the legal concept of equity is a general principle directly applicable as law…”
In Barcelona Traction (1970, ICJ), the Court referred to “considerations of equity” when seeking to apply the law of diplomatic protection “reasonably”.
Concerns have been expressed that the application of equitable principles by the Court will undermine the Court’s authority: Gulf of Maine (Canada v US) (ICJ, 1996) per Judge Gros.
There has also been confusion as to whether equity is a general principle of law or customary: see, for example, the North Sea Continental Shelf Cases.
Also, the principle of estoppel is largely equitable in its nature, being based on the maxim allegans contraria non est audiendus: see Cheng.
(iii) Others:
That principles of law could be substantive was also recognized in the Corfu Channel Case. The Court considered that, “elementary considerations of humanity…; the principle of the freedom of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” were general principles of law.
(d) General Principles and Non Liquet:
It has been suggested that general principles were included in Article 38 to prevent findings on account of a non liquet. However, in the Nuclear Weapons Advisory Opinion, the Court felt itself unable to rule on whether a State was lawfully able to use nuclear weapons if its very survival was threatened.
(e) General Principles of International Law?
Professors Alston and Simma argue that general principles, especially in respect of human rights law, can be found at the international level. It remains to be seen whether this approach will be adopted, though ICJ decision on human rights commonly refer to “principles”: Sir Nigel Rodley.
5. Subsidiary Sources:
Subsidiary sources provide a perspective on what the law is, rather than being a source of the law itself.
Article 38(1) (d) refers to two subsidiary sources:
1. Judicial decisions;
2. Teachings of the most highly qualified publicists of various nations.
(a) Judicial decisions:
Since ICJ decisions only bind the parties to the dispute (Art.59 ICJ Statute), ICJ decisions are subsidiary sources of law. As the pre-eminent court in the international legal system, ICJ decisions are highly persuasive: Asylum Case (1950, ICJ) per Judge Azevedo.
Decisions of other international tribunals may also be influential. For example, the decisions of the Iran-US Claims Tribunal and ICSID Tribunals have contributed significantly to the customary law of expropriation.
Municipal decisions considering questions of international law may also be influential depending on the quality of the analysis.
(b) Publicists:
The ICJ rarely refers to the work of publicists.
However, it has been common to refer to work of the ILC, in particular the ASR’s: see, for example, the Gabcikovo Nagymaros Project Case (1997, ICJ); Arrest Warrant Case (Congo v Belgium) (2002, ICJ) per Judges Higgins; Kooijmans and Buergenthal; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Adv.Op.) (2004, ICJ).
6. Soft Law:
This refers to instruments which are not strictly legally binding. For example, the Helsinki Final Act of 1975, an agreement between the West and the Soviet Bloc.
Several points can be made:
1. Soft law can have an important influence on hard law;
2. Diplomatic language is sometimes intentionally unclear;
3. Meanings of softness have been identified other than “non-binding”. For example, aspirational or hortatory, such as the language of a preamble of a treaty. In treaties, such soft provisions may be non-justiciable or non-self-executing.
4. A soft law instrument that is not in itself legally binding might nonetheless include provisions that accurately set out rules that are binding under general international law.
States may choose to soft law over hard law for several reasons:
1. Concerns regarding capacity to comply with hard legal obligations;
2. To build consensus where there are current doubts about hard law e.g. international human rights treaties have followed soft law instruments e.g. treaties following the UDHR or the 1959 Declaration on the Rights of the Child.
3. To address new or rapidly developing international problems.
An example of soft law influencing hard law can be seen in the UDHR. The influence has arguably occurred in three ways:
1. There are now a number of binding treaties incorporating the Declaration’s terms;
2. The Declaration is arguably an authoritative interpretation of Articles 55 and 56 of the UN Charter;
3. As argued by Professors Alston and Simma, human rights can be seen as general principles of law.
INTERNATIONAL LAW AND MUNICIPAL LAW
1. Introduction:
International law textbooks which deal with this topic invariably begin with a discussion of the monist/dualist debate. Monists believe that all law forms part of one unified system: Shearer. The chief exponents of dualism have been the positivist writers, since their consensual conception of international law made it natural to regard state law as a distinct system: Shearer. Dualists believe that there are multiple independent legal systems: Shearer.
The monist-dualist controversy is unreal and artificial because it assumes that there is a common field in which international law and municipal law both simultaneously have their sphere of activity: Fitzmaurice, Hague Academy Lectures 1957. What is more interesting is dealing with apparently conflicting obligations between international and municipal law.
2. Apparent Conflict of Obligations under International Law and Municipal Law:
The way such problems are approached will depend on your perspective.
(a) From the perspective of international law:
According to international law, conflicting municipal obligations provide no defense for failing to carry out obligations under international law.
There is ample judicial and arbitral authority for this rule.
- In the Alabama Claims Arbitration, British companies supplied a naval vessel to the confederacy in the US Civil War in breach of the customary rules of neutrality. An international arbitral body rejected the UK’s plea that it could not stop the supply of the vessel under municipal law.
- Article 27 of the VCLT provides that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Note that Article 46 contains an exception where the “violation was manifest and concerned a rule of its internal law of fundamental importance”.
- Article 13 of the ILC’s Draft Declaration on Rights and Duties of States (1949) states this position.
- In the Exchange of Greek and Turkish Populations Case (1925, PCIJ) the PCIJ described this principle “self-evident”.
- In the Sunday Times Case (1979, ECHR) a decision of the HoL was specifically held to be a breach of international law.
- In the Finnish Ships Arbitration, it was held that A municipal court which defers to municipal law, notwithstanding an inconsistent rule of international law, itself acts in breach of international law and will, as an organ of the state, engage the international responsibility of that state
(b) From the perspective of municipal law:
(i) Introduction:
Australia is a dualist system, though with the possible exception of customary international law forming part of the common law. Whilst formal automatic incorporation may not occur, international law still has a significant impact on Australian law.
(ii) Automatic formal incorporation?
It is necessary to consider separately:
1. Customary international law; and
2. Treaties.
(A) Customary international law:
Introduction:
The starting position under English law was that the law of nations was part of the law of England: Buvot v Barbuit (1737) per Lord Talbot; Triquet v Bath (1764); Blackstone’s Commentaries (1809); Wolff v Oxholm (1817) per Lord Ellenborough. This has been referred to as the “incorporation approach”.
However, in the late 19th century and early 20th century, the “transformation approach was adopted whereby only those customary rules which English Courts transformed became part of English law. The English Courts would not transform a customary rule that was contrary to established common law rules or legislation: Chung Chi Cheung (PC, 1939) per Lord Atkin; see also Trendtex Trading Corporation (1977) per Lord Denning & Pinochet Litigation (2000). This approach has its roots in the positivist perspective that international law and state law constitute two strictly separate and structurally different systems: Shearer.
The Position under Australian law:
The incorporation approach is that which has been adopted in Australia. In Chow Hung Ching v King, Latham CJ, Starke and Dixon J adopted this approach. Dixon J’s view reflects the position most often in subsequent cases. His Honour, quoting Brierly, held that “international law is not a part, but is one of the sources, on English law”.
Charlesworth et al in the Sydney Law Review note that this issue has been considered in detail in two subsequent cases, Dietrich v Queen and Nulyarimma v Thompson.
In Dietrich, the members of the HC who considered the issue were unanimous in their decision not to recognize an extension of the common law by reference to international law to incorporate an absolute right to counsel. However, their reasons differed as to circumstances in which international law would be incorporated into the common law:
- Toohey J thought that customary law could be used to address lacunae in the common law as well as ambiguities;
- Brennan J held that the common law could be expanded or even modified to correspond to contemporary values reflected in customary law, but recognized limits based on separations of powers and policy grounds;
- Mason CJ, McHugh and Dawson JJ expressed the narrowest approach, finding that international law could only be used to address ambiguities.
In Nulyarimma v Thompson, the FC took divergent views. The issue was whether the prohibition of genocide formed part of Australian law.
- Wilcox J was reluctant to make a general conclusion, but concluded that in the absence of legislation, as a matter of policy, the issue should be resolved by declining to enforce the international norm.
- Whitlam J considered that in the absence of legislation, the concept of universal jurisdiction was not incorporated into Australian law. Secondly, he pointed out that the Cth Criminal Code abolished common law offences.
- Merkel J recognized customary law as a source of common law, to be incorporated in the absence of conflicting domestic law.
Further, the common law cannot be used as a backdoor for incorporating untransformed conventions into Australian law: Teoh’s Case per Mason CJ and Deane J. A clear rule of a prescriptive nature will generally always be applied (e.g. immunity of diplomats) but a permissive or proscriptive or unclear rule will not unless the court decides to harmonize common law with international law: Chow Hung Ching v King per Dixon J.
In Teoh, Mason CJ and Deane J urged that a cautious approach should be adopted. They considered that whether a rule will be transformed will depend on:
1. The nature of the relevant provision;
2. The extent to which it has been accepted by the international community;
3. The purpose which it is intended to serve; and
4. Its relationship to the existing principles of our domestic law.
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Chow Hung Ching v King (1949, HC) Facts:
Held:
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Nulyarimma v Thompson (1999, FC) Facts:
Held:
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In Teoh’s Case, Mason CJ and Deane J also made some observations in relation to whether a treaty could influence the common law. Their Honours observed that “judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law”. Their Honours advocated “… [a] cautious approach to the development of the common law by reference to international conventions…”. However, Their Honours noted that, “…much will depend on the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve, and its relationship to the existing principles of our domestic law”. |
(B) Treaty Obligations:
In Australia, the executive has exclusive power to assume international obligations: s 61 Constitution; Burgess per Latham CJ.
Since only Parliament can impose obligations or confer rights on the public, provisions of an international treaty do not form part of Australian law unless they have been incorporated by statute: Teoh’s Case. Otherwise, Parliament could be bypassed by the executive: Simsek v MacPhee (1982, HC) per Stephen J.
Treaty provisions may be incorporated in three ways:
1. Legislation may adopt the language of a treaty.
a. Where this is done, the international rules of treaty interpretation in the VCLT apply in interpreting the Statute.
2. Legislation may refer to treaty obligations
a. e.g. s7 Diplomatic Privileges and Immunities Act 1967 (Cth) declares the VCDR provisions “have the force of law in Australia and in every external territory”.
3. A Statute may require a body to “perform its functions in a manner consistent with Australia’s treaty obligations” e.g. Project Blue Sky v ABA (1998, HC).
Legislation may refer to a treaty with no legal consequences e.g. the Genocide Convention Act 1949 (Cth) provides in s4 that, “approval is hereby given to the depositing with the Secretary-General of the United Nations of an Instrument of ratification of the Genocide Convention by Australia” and the Genocide Convention was set out in the Schedule of the Act. Since the decision to ratify a treaty is an executive prerogative in Australia, it was held this has no effect: Nulyarimma (1999, HC).
(iii) The influence of International Law on Australian law:
What happens if the customary law is not transformed, or the treaty provision is not incorporated by Statute?
(A) Influence on common law:
In Mabo (No.2), Brennan J, after quoting the Western Sahara Case, stated:
“The common law does not necessarily conform with international law. But international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common”
Recall, however, that judicial development of the common law must not be seen as a backdoor means of importing international law into Australian law: Teoh per Mason CJ and Deane J.
Also, note the views of Callinan J in WA v Ward. His Honour rejected a submission by HREOC that the common law should conform to international law in the following terms:
“While international law may occasionally, perhaps very occasionally, assist in determining the content of the common law, that is the limit of its use. The proposition that international law — itself often vague and conflicting — demands that the common law of Australia be moulded in a particular way, apparently without regard for precedent, the conditions in this country, or the fact that governments and individuals may have reasonably relied on the law as it stands is unacceptable. To embrace it would be to deny that Australian courts have long shaped the law for the peculiar circumstances of this country, without the need to resort to shifting prescriptions often designed for different times, places and circumstances.”
By contrast, in Dow Jones v Gutnick, Kirby J held that any development of the common law to address legal issues arising in the ‘digital millenium’ should be consistent with relevant principles in the ICCPR.
(B) International law and interpretation of Australian statutes:
Statutes:
The role of international law in the interpretation of Statutes has been the subject of some debate. Per Charlesworth et al, Sydney Law Review, debate remains on three issues:
1. The nature of the legislation to which the principle applies;
2. The principles of international law to which courts may refer; and
3. The level of uncertainty required before courts can have recourse to international law.
Nature of the legislation:
In Kruger v Cth, Dawson J considered that where legislation pre-dated a treaty that legislation need not be interpreted in accordance with treaty obligations. Similar concerns were expressed by Gleeson CJ in Coleman v Power.
However, in Polites v Cth, it was held that the presumption that Parliament intended to give effect to Australia’s international obligations would also apply where the statute predates a treaty. This view is supported by Kirby J in Coleman v Power and by Mason CJ and Deane J in Teoh, although Mason CJ and Deane J recognized that consideration of treaty obligations is particularly relevant when interpreting legislation that postdates entry into force of the treaty for Australia or where the legislation was enacted in contemplation of the treaty’s entry into force.
Principles of international law to which courts may refer:
At its broadest, the interpretive principle entitles courts to have reference to ‘established rules of international law’: see Teoh per Mason CJ and Deane J.
However, in some cases judicial statements refer only to ‘international obligations under a treaty’: Plaintiff S157/2002 per Gleeson CJ.
When one considers that the principle is based on a presumption that the Parliament does not intend to violate obligations by which it is bound under international law, it would follow that the broader view is preferable: Charlesworth et al, Sydney Law Review.
Level of uncertainty:
A narrow view is taken by Callinan J in WA v Ward who largely rejected the relevance of international law, stating:
“The task of this Court and other courts in Australia is to give effect to the will of Australian Parliaments as manifested in legislation. Courts may not flout the will of Australia's democratic representatives simply because they believe that, all things considered, the legislation would "be better" if it were read to cohere with the mass of (often ambiguous) international obligations and instruments.”
“It would undermine the long settled principle that provisions of an international treaty do not form part of Australian law unless validly incorporated by statute…. By giving priority to the principles assumed by the Executive, by permitting judges to construe legislation in a way that violated the intention of Parliament, it would elevate the Executive to a position that it has never enjoyed under our Constitution. That is another reason for rejecting the submission.”
His Honour therefore considered that that international law could play a role only in cases of “genuine ambiguity”. This is consistent with the finding of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration that in case of ambiguity, the Courts should favor a construction of a Statute which accords with Australia’s treaty obligations.
However, in Teoh, Mason CJ and Deane J were more sympathetic to international law, considering that it is presumed that Parliament intended to give effect to Australia’s international obligations: see also Coleman v Power per Kirby J. Thus, their Honours considered that the concept of ambiguity should not be narrowly understood – effect should be given to Australia’s treaty obligations if such an interpretation is open.
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Chu Kheng Lim v Minister for Immigration Facts:
Held:
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(C) International Law and the interpretation of the Constitution:
Treaties are likely to have less of a role in the interpretation of the Constitution.
In Al-Kateb v Godwin, McHugh J explained that the rationale for the rule that statutes should be interpreted in accordance with treaty obligations does not apply to the Constitution since it is a source of, not an exercise of, legislative power. Thus, if the rule applied to the Constitution, it would operate as a constraint on Parliament’s power, rather than a presumption the Parliament could legislate in disregard of. Contrast Kirby J who states:
“…the complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today.”
In WA v Ward, Callinan J also considered that, “It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere.”
In AMS v AIF, Gleeson CJ, McHugh and Gummow JJ also considered that international law was to have no role in constitutional interpretation.
However, even if this is the general rule, international law might nonetheless have a role in Constitutional interpretation. For example, in XYZ v Cth, Gleeson CJ appeared to accept that principles of international law might be relevant in interpreting the external affairs power. He considered that international law could give content to the concept of what constitutes ‘external affairs’.
(iv) International Law and Executive Action:
In Teoh, Mason CJ and Deane J, with whom Gaudron and Toohey JJ substantially agreed on this point, considered that:
“Ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”
McHugh J dissented specifically on this point. His Honor stated that:
“The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive government does not give undertakings to its citizens or residents.”
In Re Minister for Immigration; Ex Parte Lam, McHugh and Gummow JJ expressed doubt about the correctness of Teoh but Hayne and Callinan JJ appeared to support these views.
Charlesworth et al in the Sydney Law Review write, reflecting on the balance of opinion in ex parte Lam, that the current HC may overrule Teoh.
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Teoh (1994-1995, HC) Facts:
Held:
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Two Bills have been passed to undermine Teoh but both have lapsed.
Also, the then Labor Government issued an executive indication that Australia’s entry into a treaty did not give rise to any legitimate expectations. The current Liberal government issued an executive indication broadening this also to State government decision-making.
These indications would seem to be in breach of Australia’s international treaty obligations to perform those obligations in good faith.
Further, the Bills would also appear to be a breach of the obligation to take “all necessary steps” (see, e.g., Art 2 ICCPR) to fulfill the obligation: Submission to Senate Legal and Constitutional Legislation Committee by Professors Charlesworth and McCorquodale, and Mr. Peter Bailey. The government’s response has been to resort to a “margin of appreciation” in implementation of obligations, a concept recognized in the European Convention on Human Rights.
(c) Other Municipal Approaches to International Law:
Australia’s approach is similar to other common law systems such as the UK and NZ.
However, it is different elsewhere.
US:
Two immediate differences, both due to US Constitution:
1. Article II Section 2 US Constitution gives the US Senate a specific role to decide whether or not a treaty should be entered into (2/3 majority required before President enters treaties – contrast sole prerogative of executive in Aus);
2. By Article VI, treaties are given the same status as domestic legislation provided they are self-executing.
a. Whether a treaty is self-executing is determined from a number of factors, e.g., specificity of the treaty.
b. A treaty entered into by the US will override earlier inconsistent domestic legislation, and domestic legislation will override an earlier inconsistent treaty (though not from perspective of international law).
Note that the President can enter “executive agreements” without the consent of the Senate. These usually involve defence and foreign affairs.
The President can also enter “congressional-executive agreements”, requiring a simple majority in both houses, on certain matters.
Germany:
Article 25 of the German Basic Law gives special status to customary international law, giving them precedence over other laws.
Treaties, however, must be transformed by specific legislative effect.
Netherlands:
Gives special status to treaty obligations – they have primacy over legislative acts: Article 94 Constitution.
THE SUBJECTS OF INTERNATIONAL LAW
1. Introduction
A subject of international law is an entity recognized by the international legal system as having both rights and obligations under international law. “Personality” is a short-hand for describing that an entity is endowed by international law with legal capacity. What those capacities are determined by the rules of law: O’Connell, International Law (2nd ed., 1970).
It was once considered that States were the only subjects of international law: see Oppenheim (1st ed.). Human beings, corporations and international organizations were considered objects of international law i.e. international law affected them, but they possessed no rights or obligations directly under international law. Consequently, for example, where unlawful injury was done to a national only the national’s state had a right of diplomatic protection, not the national himself. This posed particular problems for stateless persons.
Practice has abandoned the doctrine that States are the exclusive subjects of international rights and duties: Lauterpacht, Survey of International Law in Relation to the Work of Codification of the ILC. States are the principal, but not only, subjects of international law: Oppenheim (9th ed.); Shearer, Starke’s.
Although it is generally accepted that States are not the only subjects of international law, Shearer explains that the argument to the contrary is that the international conventions under which, for example, slaves enjoy protection really cast duties on the states parties and that without such duties on the states to recognize and protect their interests, slaves would not possess any rights at international law.
Shearer also explains that the extreme opposite view is that individuals are the only subjects of international law. This argument is made by Kelsen who argues that a State is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons within a defined territorial area. He argues that the concept of the state is used to express in technical legal language situations in which individuals alone are bound to do certain acts or receive certain benefits. International law binds individuals, and it is a matter of technique that it does so mediately through the concept of the state.
Shearer argues that this is of course true as a matter of logic and theory, but that it is not realistic as a matter of practice since international lawyers work on the basis that their primary concern is with the rights and duties of states.
2. States as Subjects of International Law
(a) What is a State under International Law?
(i) Usual criteria
Article 1 of the Montevideo Convention on Rights and Duties of States (1933), generally accepted as a codification of customary law (Harris), provides that a State should possess:
1. A permanent population
a. There is no fixed minimum (e.g. Nauru – 12 000)
2. A defined territory
a. Does not mean borders must be undisputed (e.g. Israel). It is enough that the territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited: Deutsche Continental Gas-Gesellschaft v Polish State (German-Polish Mixed Arbitral Tribunal).
3. Government
a. i.e. the existence of a relatively stable political organization wielding control over the territory of the entity: Aaland Islands Case.
b. Once an entity becomes a State, instability does not lead to loss of Statehood (e.g. Lebanon)
4. Capacity to enter relations with other States
a. This refers to independence in law from the authority of any other State: Austro-German Customs Union Case (1931, PCIJ) per Judge Anzilotti.
b. Independence means to some extent factual as well as legal independence from other states i.e. an entity will not be a State if it is a mere puppet State: Lauterpacht, Recognition in International Law.
c. e.g. Manchukuo – not a State as all key governmental posts held by Japanese officials & Japanese army was responsible for keeping control in the province
(ii) Debated Criteria
(A) Recognition
Different types of recognition and their legal consequences:
Recognition of governments:
States sometimes recognize Governments, and this will not be evidence of recognition of Statehood.
An entity recognized as a State can expect, as a matter of good faith, certain immunities, for example for their diplomatic representatives: Higgins, Problems and Processes.
De facto and de jure recognition:
States may recognize a government as the de facto government of a State, which may have particular legal consequences under the municipal law of the recognizing State.
The government may then be recognized as de jure, for example, where a coup d’etat has succeeded. This will have additional legal consequences within the legal system of the recognizing State (may be a unilateral act).
Recognition of territorial claims:
Sometimes States formally recognize situations other than Statehood or changes in government. For example, after Indonesia’s invasion of East Timor, Australia gave de facto and then de jure recognition to Indonesia’s annexation of the former Portugese colony. This had legal consequences as between Australia and Indonesia.
Recognition and Statehood:
Per Shearer, there are two theories as to the relevance of recognition:
1. Constitutive theory – recognition is a precondition to establishing Statehood; and
2. Declarative theory – recognition involves a mere acknowledgement that an entity meets the requisite criteria.
The constitutive theory in its extreme form is not supported in state practice or judicial decisions: Tinoco Arbitration; Arbitration Commission, EC Conference on Yugoslavia; Waldock (1963); Crawford, Creation of States.
Problems with it are:
- What do you do if some States recognize and some don’t?
- Recognition is often driven by political considerations.
- Recognition is usually a unilateral act by one State – not collective.
However, in certain cases recognition does seem to have significance in the achievement of Statehood. For example:
- Admission of a State to membership of the UN (Article 4 limits to “peace-loving States”) ends debate over whether the entity is a State (membership requires recommendation from SC and 2/3 vote of current MS of UN).
- Recognition of Statehood of Slovenia, Croatia, Bosnia and Macedonia following the break-up of Former Yugoslavia by EC MS was significant in their establishment as States.
The truth therefore seems to lie somewhere between these two theories, but the bulk of international practice seems to favor the evidentiary/declarative theory: Shearer.
Note that recognition may be implied, but should not be implied lightly. Recognition will generally only be implied where a treaty is entered or formal diplomatic relations are commenced: Shearer.
Admission to the UN will almost conclusively lead to statehood since it amounts to recognition by all UN members of statehood: First Admissions Case; Shearer. Crawford, Creation of States writes that, “where recognition is general, it may be practically conclusive”.
(B) Statehood and an Illegal Use of Force
In 1932, the US refused to recognize Manchukuo as a State due to the illegal use of force.
However, State practice during the LoN period does not consistently support the existence of a duty of non-recognition in such cases e.g. UK recognized Italian control of Ethiopia in 1930s notwithstanding it was achieved by an illegal use of force.
However, when Turkey invaded Cyprus in 1974, the SC resolved that the declaration of the Turkish Republic of Northern Cyprus was legally invalid and called upon all States to recognize any Cypriot State other than the Republic of Cyprus. The EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (1991) also consider non-aggression as a requirement.
Crawford, Creation of States writes:
“…the prohibition of the threat or use of force in international relations is one of the most fundamental of international law rules. The international community has with considerable consistency refused to accept the legal validity of acts done or situations achieved by the illegal use of force. If ever effective territorial entities were to have their status regulated by international law, it would be so regulated by the rules relating to the use of force.”
(C) Statehood and the Denial of Self-Determination
There are a number of examples that suggest that an entity perpetuating a denial of self-determination will not satisfy the requirements of Statehood:
- In 1965, the SC called upon States not to recognize Southern Rhodesia’s white minority government’s (now Zimbabwe) declaration of independence (“illegal, racist, minority regime”).
- The GA passed a Resolution rejecting the independence of “homelands” in South Africa, whereby it was planned under apartheid to classify the black majority as nationals of one of the homelands.
(D) Statehood in Pursuance of Racist Policies
In 1976 South Africa, in pursuance of its homelands policy, granted independence to the Transkei, the homeland of the Xhosa people. No State recognized the Transkei as a State apart from South Africa. Crawford writes that one interpretation of the State practice is that Transkei, as an entity created directly pursuant to an illegal policy of apartheid, was not a State.
(E) A link with jus cogens?
It appears possible to argue that the relevance of unlawful uses of force and denials of self-determination to the establishment of Statehood reflect a broader proposition that an entity coming into existence by breach of a jus cogens norm will not gain Statehood.
Article 41(2) of the ASR’s provides that no State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40 (“a gross and systematic failure by the responsible State to fulfill the obligation”: Article 40(2)). Such a duty of non-recognition may preclude the establishment of Statehood.
(b) Consequences of Statehood
Statehood confers the full complement of rights and obligations under international law: Reparations Case; Crawford, Creation of States; Brownlie, Principles. Diplomatic immunities under international law and sovereign immunities under municipal law all flow from Statehood e.g. Radovan Karadzic (Bosnian politician) could be indicted for war crimes as Bosnia was not a State: see Kadic v Karadzic (1995, US).
However, non-State entities still have rights and obligations under international law. The absence of Statehood does not mean the absence of rights and obligations under international law.
(c) International Rules Regulating State Jurisdiction
Sovereignty arises from Statehood and involves autonomy, territorial integrity and authority (recall Henkin). This includes the authority to make laws and enforce laws. This is often called legislative and enforcement jurisdiction. International law has permissive rules allowing States to exercise legislative and enforcement jurisdiction.
Enforcement jurisdiction is not generally permitted outside the territory of a State and certainly not in the territory of another State except where that other State consents.
However, there are permissive rules of international law allowing States to exercise legislative criminal jurisdiction outside of their territory. For example:
1. Nationality principle – a State may exercise legislative criminal jurisdiction regarding the conduct of its nationals abroad;
2. Protective principle – a State may exercise legislative criminal jurisdiction in respect of threats to the State emanating from abroad even in foreign nationals are involved e.g. counterfeiting of the State’s currency abroad by foreign nationals;
3. Passive personality principle – a State may exercise legislative criminal jurisdiction in respect of crimes committed abroad that are directed at their nationals
There is also a principle called ‘universal jurisdiction’. According to this principle, none of the normal jurisdictional connections considerations need to established. States are entitled to pass legislation criminalizing genocide committed abroad by foreign nationals and perpetrated against foreign nationals.
There is also the controversial basis of civil legislative jurisdiction known as the ‘effects doctrine’. E.g. US and EU justify the extraterritorial reach of their competition laws on the basis of the effects of foreign anti-competitive behaviour.
Also, it should be remembered that whilst exercises of extraterritorial legislative jurisdiction might be permissible, enforcement of that legislation in another State would generally violate international law.
(d) State Responsibility:
Every internationally wrongful act of a State entails the international responsibility of that State: Article 1. States are responsible for wrongful conduct that is attributable to them: Article 2.
(i) Attribution
Conduct attributable to the State can consist of actions or omissions: Article 2 [4] Commentary.
The conduct of any State organ (legislative, executive or judicial) is an act of the State. An organ is any person or entity which has that status in accordance with the internal law of the State: Article 4.
If the organ is an official, no distinction is drawn between superior and subordinate officials: Article 4 [7] Commentary. Also, it does not matter whether the territorial unit in question is a component unit of a federal State or a specific autonomous area: Article 4 [9] Commentary.
The conduct of non-organs will be attributed to the State where the entity exercises elements of government authority and the entity was acting in that capacity in the particular instance: Article 5. e.g. private security firms contracted to act as prison guards: Article 5 [2] Commentary.
The conduct of an organ of a State or of a non-organ is an act of the State even if the act exceeds its authority or contravenes instruction: Article 7.
The conduct of persons acting on the instructions of or under the direction or control of a State is attributable to the State: Article 8. In Nicaragua, the ICJ held that the US was responsible for the “planning, direction and support” given by the US to Nicaraguan operatives, but it rejected the broader claim of Nicaragua that all the conduct of the contras was attributable to the US by reason of its control over them. It stated the question as:
“whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government.”
In Prosecutor v Tadic, the Appeals Chamber of the ICTY required, “overall control” going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. It disapproved of Nicaragua. However, Tadic was concerned with individual criminal responsibility not state responsibility: Article 8 [5] Commentary. The Nicaragua test is to be preferred: Bosnia-Serbia Case.
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority: Article 9.
States are not responsible for the acts of an insurrectional movement, unless the movement is successful and becomes the government: Article 10 [3], [12] Commentary.
Conduct not attributable to a State will in fact be attributed where the State acknowledges the conduct as its own: Article 11; Tehran Hostages.
A State is not responsible for the acts of an insurrectionist movement unless the movement succeeds in becoming the new government of the State: Article 10.
(ii) Wrongful conduct
There is a breach of an international obligation by a state when act an of that state is not in conformity of what is required of it by that obligation: Article 12.
The State must at that time be bound by the obligation: Article 13.
It is not always necessary for damage to be done to a State. Whether damage is required depends on the content of the primary obligation: Article 2 [9] Commentary. This is not dealt with in the ASR’s since the ASR’s deal with secondary obligations: Article 1 [1] Commentary.
(iii) Defences
- Consent to the act by the State(s) to whom the otherwise wrongful act was done: Article 20.
- Self-defence in conformity with the Charter: Article 21.
- Countermeasure: Article 22. see Ch II Pt 3 for req’s for counter-measures.
- Act is due to force majeure (i.e. an irresistible force or an unforeseen event such that acting involuntarily): Article 23.
- Distress (acting voluntarily, but choice nullified by the situation of peril. Must be act done to save lives which have been entrusted to the actor to care for): Article 24.
- Necessity (involves danger to the essential interest of the state or international community as a whole, rather than lives: Article 25.
None of these defences apply to jus cogens: Article 26.
(iv) Reparation
See Articles 34-39.
3. International Organisations as Subjects of International Law
International organizations can and do have legal personality under international law.
Reparations Case (1949, ICJ)
Facts:
· Count Bernadotte was a Swedish national and agent of the UN
· He was allegedly murdered in Israel
· The GA put a number of legal questions to the ICJ that arose out of this incident and the UN’s desire to seek reparation
Held:
· The UN could claim against a non-UN member for direct injury to itself
· It could also make claims based on the notion of functional protection of its agents (this is analogous to a State’s right to diplomatically protect its nationals).
Test of personality:
ILP may be possessed objectively or subjectively.
Objective personality:
Test:
The organization must be an autonomous actor detached from its members: Reparations; Western Sahara.
Indicia:
There is debate as to whether the legal personality of an international organization is to be determined by reference to objective factors or subjective factors (i.e. the intention of the MS). In the Reparations Case, the ICJ seemingly combined both approaches, considering a number of objective factors and then concluding that it must have been intended that the UN have legal personality.
Objective factors the ICJ considered, and other considerations, are:
1. Functions and purposes requiring the capacity to operate on the international plane: Reparations; Cassesse.
2. Treaty-making capacity: Reparations.
3. MS’ obligations to give effect to the purposes and decisions of the organization: Reparations.
4. Intention of MS to clothe the organization with personality: Reparations; Zemanek, Response to Professor Higgins.
5. Its own organs: Brownlie, Principles; Amerisinghe, Principles of the Institutional Law of International Organisations.
6. Recognition of personality by other subjects of international law: Crawford, Creation of States.
In Reparations the ICJ referred to the fact that the UN was composed of the “vast majority” of States. This may also have been influential in South West Africa (Second Phase), where the ICJ, dealing with the LoN, ruled that individual member states had, with reference to mandates, no separate, self-contained right they could assert before a court over and above the League’s collective, institutional activity. This may present an obstacle to the possession of ILP by smaller organizations.
However, the progressive view seems clear that this is not necessary. For example, it is generally accepted that the EU has international legal personality: White; Seidl-Hohenveldern, Corporations in and under International Law. David Harris is in the minority with his opinion that the EU does not have ILP.
The EC has express provision (Article 281) for personality of the Treaty Establishing the Community, and is thus also generally accepted as possessing personality. It has observer status in the UN, and has entered a large number of agreements with non-MS. NATO is also expressly provided with ILP by Article 4 of the agreement of 20 September 1951. The acceptance that these two organizations have ILP as a result of these express provisions speaks for the importance of subjective factors in determining whether an organization has ILP.
Subjective personality:
Where a State accepts it such as by entering into a treaty: Seyersted; Seidl-Hohenveldern.
Consequences:
International organizations with international legal personality have such rights and obligations as are necessary for them to perform their competences: Brownlie; Sands and Klein, Bowett’s; Reparations.
Objective personality is enforceable against the whole world: Higgins, Legal Consequences, AIDI; Reparations. Subjective personality is enforceable only against the parties who’ve accepted it: Seyersted; Seidl-Hohenveldern.
4. Human Beings as Subjects of International Law:
As early as 1927, the PCIJ recognized that there is nothing in international law to prevent individuals acquiring directly rights under a treaty provided that this is the intention of the contracting parties: see Steiner and Gross v Polish State.
(a) The Law of Diplomatic Protection:
The law of diplomatic protection covers those international legal rules that allow a State to protect, by international claim, its nationals which are injured by the wrongful acts of another State.
Diplomatic protection claims may arise for directs acts done by governments, or for a failure to prevent injury at the hands of, for example, revolutionary groups.
Although it is a fiction that when a State exercises a right of diplomatic protection it exercises its own right only (ILC 2006 Report on Diplomatic Protection), the generally accepted position is that injury to a national of a State is injury to the State itself and that States thus assert their own rights in claims of diplomatic protection: de Vattel, The Law of Nations; Mavrommatis Palestine Concessions (PCIJ, 1924).
Two requirements for claims of diplomatic protection:
1. Nationality; and
2. Exhaustion of local remedies.
(i) Nationality:
Nationality is a continuing legal relationship between a sovereign state and a citizen based on membership of an independent political community: Re Lynch (British-Mexican Claims Commission). States can only diplomatically protect their own nationals: Draft Article 3 ILC 2006 Report on Diplomatic Protection.
(A) Natural Persons:
A State of nationality means a State whose nationality a person has acquired in accordance with the law of the State. May be by birth, descent, naturalization etc.: Draft Article 4 ILC 2006 Report on Diplomatic Protection; Nationality Decrees in Tunis and Morocco.
Although the Nottebohm Case required that there also be an “effective link” between the State and the person, this case can be confined to its particular facts: [5] Commentary Draft Article 4 ILC 2006 Report on Diplomatic Protection. This test is also given cursory treatment in Barcelona Traction.
(B ) Corporations:
Traditionally two requirements per Barcelona Traction:
1. Corporation incorporated in the State; and
2. Has its registered office in the State.
However, the more progressive view is that it will also suffice if the corporation has its siege social in the State: Draft Article 9 ILC 2006 Report on Diplomatic Protection.
The requirement of nationality can create problems for human rights abuses as often the State of nationality is the entity breaching human rights standards.
(ii) Exhaustion of local remedies:\
A State may not diplomatically protect its nationals where local remedies have not been exhausted: Interhandel (1959, ICJ); Ambatielos Arbitration; Draft Article 14 ILC 2006 Report on Diplomatic Protection.
It suffices that the essence of the claim has been brought before the national courts: ELSI.
Only those administrative and judicial remedies which provide a reasonable possibility of effective redress need be exhausted: Case of Certain Norwegian Loans per Judge Lauterpacht; ELSI per Judge Schwebel; Spec. Rap. Dugard Seventh Report on Diplomatic Protection.
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In the Ambatielos Arbitration, the failure to call an essential witness was considered to be the reason for the rejection of the claim, and thus the claimant could not be said to have exhausted those remedies. |
Thus, for example, local remedies would be ineffective where:
1. Appeals are allowed only on questions of law, but the appeal requires the raising of questions of fact: Finnish Shipowners Case; and
2. The question of law has already been decided by a superior court: Panevezys-Saldutiskis Arbitration; ELSI.
The local remedies rule only applies to diplomatic protection – if there is a breach of a treaty, that is direct injury to the State and no exhaustion is required. However, treaty mechanisms providing for the protection of human rights often require the exhaustion of local remedies: for example, Articles 2 and 5(2) (b) First Optional Protocol to ICCPR.
The requirement for exhaustion of local remedies effectively precludes individuals from bringing claims before international tribunals. Thus, it supports the view that states are the primary subjects of international law: Shearer. Shearer notes, however, that exceptions have developed involving rights of individual petition (see ‘Human Rights Under International Law’).
(b) Other rights/obligations of individuals under international law
See ‘The Protection of Human Rights under International Law’ and ‘Obligations Owed by Individuals under International Law’.
5. Other Legal Persons:
- Insurgents and national liberation movements have some degree of personality: Cassese.
- Transnational companies (predominantly they just owe obligations, no rights).
THE PROTECTION OF HUMAN RIGHTS UNDER INTERNATIONAL LAW
1. History of the Protection of Human Rights under International Law
(a) Pre-Second World War
Prior to the Second World War there was little by way of international legal protection of human rights.
- The ILO did operate to protect certain labour-related human rights e.g. it championed freedom of association. An example of a pre-WWII labour related treaty is the Forced Labour Convention 1930.
- The LoN mandate system for colonies of States contained certain human rights guarantees
- There were LoN minority treaties, designed to protect particular ethnic minorities in certain countries – they did not apply to protect the human rights of minorities around the world
(b) Post-Second World War
(i) Charter:
The UN Charter contains significant references to human rights:
- Preamble – “We, the people of the United Nations, determined…to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small…”
- Article 1 – “The purposes of the UN are:
- (2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
- (3) To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”
- Article 55 – “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the UN shall promote:
- (c) universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion”
- Article 56 – “All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.”
So, Articles 55 and 56 impose obligations on States in relation to human rights.
See also Articles 13, 62, 68 and 76.
(ii) UN bodies with Human Rights Responsibilities – 1946-7:
The ILO survived the Second World War and has a labor related human rights focus.
In 1946, ECOSOC established the UN Commission on Human Rights. This is a representative body in that its officials were the representatives of States which were the actual members of the Commission.
In 1947 the Commission established the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which was re-named in 1999 to be called the Sub-Commission on the Promotion and Protection of Human Rights. The Sub-Commission’s members were experts in that they did not represent particular States.
Both the Commission and the Sub-Commission were dissolved in 2006. Their functions were to be assumed by the Human Rights Council established by the GA in 2006.
(iii) 1948
The Commission devoted significant energies to drafting the Universal Declaration of Human Rights which was adopted by the GA in Dec 1948. In the GA, 48 States voted for the Declaration, there were 0 votes against, and 8 abstentions, 6 of which were Eastern European States (Cold War).
Mrs Eleanor Roosevelt, Chair of the Commission during the drafting, stated that the Declaration “is not, and does not purport to be, a statement of law or of legal obligation”. Instead, it was “a common standard of achievement for all peoples and all nations”.
1948 also saw the negotiation of the Genocide Convention which came into force in 1951. Within the ILO, the Convention of Freedom of Association and the Right to Organise was also negotiated in 1948.
(iv) International Humanitarian Law – 1949:
1949 saw the negotiation of the four Red Cross Geneva Conventions protecting the victims of armed conflict. These treaties were supplemented by two protocols in 1977.
(v) European Convention on Human Rights – 1950:
In 1950, the European Convention on Human Rights was negotiated. It focused on civil and political rights and was an initiative of the Council of Europe. It came into force in 1953.
Major innovations in its terms were the establishment of the European Court of Human Rights and the presence of a right of individual petition against States. It has become the most effective of all international human rights instruments.
(vi) Refugee Convention – 1951:
The Convention on the Status of Refugees was negotiated in 1951, and came into force in 1954. Its scope was expanded considerably by a protocol negotiated in 1967.
(vii) The European Social Charter – 1961:
In 1961 the Council of Europe sponsored another treaty directed at economic and social rights. This came into force in 1965.
(viii) The ICCPR and ICESCR – 1966:
The Cold War had a significant impact on the shape of human rights instruments. The Universal Declaration was being used as the basis for the negotiation of a treaty on human rights. Cold War divisions led to a division of the rights set out in the Universal Declaration, and it was decided that two treaties were to be negotiated.
The ICCPR and ICESCR enshrined in treaty form the rights set out in the Universal Declaration. In 1966 the two covenants were annexed to a GA Resolution. They both came into force in 1976.
The ICCPR provided for the establishment of a human rights committee to oversee the operation of the covenant. The “Optional Protocol” to the ICCPR, which was also annexed to the Resolution, provides for complaints by individuals against States which violate the rights in the ICCPR. Complaints under the Optional Protocol were to be received by the Human Rights Committee.
The ICESCR provided for ECOSOC to supervise its operation. In 1985, ECOSOC resolved to establish an expert committee to oversee the operation of the ICESCR. This committee came into existence in 1987 and replaced an ECOSOC working group which was singularly unsuccessful in supervising adherence to the ICSECR.
(ix) Other global human rights treaties and declarations:
These include:
- International Convention on the Elimination of all Forms of Racial Discrimination 1966;
- Convention on the Elimination of All Forms of Discrimination Against Women 1979;
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984;
- Convention on the Rights of the Child 1989;
- International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990; and
- International Convention of the Rights of Persons with Disabilities 2006.
A number of the global human rights treaties followed soft law instruments on the same topic, such as:
- 1959 Declaration on the Rights of the Child;
- 1963 Declaration on the Elimination of All Forms of Racial Discrimination;
- 1967 Declaration on Elimination of Discrimination Against Women;
- 1975 Declaration on the Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
(x) Regional treaties:
In 1969, the American Convention on Human Rights was negotiated, and it came into force in 1978.
The African Charter on Human and People’s Rights 1981 came into force in 1986.
(xi) High Commissioner for Human Rights – 1993:
In 1993, the GA established the post of the UN High Commissioner for Human Rights.
(c) The Human Rights Council:
ECOSOC dissolved the Commission on Human Rights in 2006 following grave concerns for its effectiveness.
The Commission and Sub-Commission are to be replaced by the Human Rights Council. The establishment of the Council by the GA was seen as formal recognition of the higher priority now accorded to human rights within the UN system. The UN itself is now seen as being based on three pillars – Peace and Security, Development, and Human Rights.
2. Which Human Rights are protected under International Law?
(a) The UNDHR:
Although non-binding, the UNDHR is the best starting point for understanding which human rights are in fact binding:
- Preamble
- inherent dignity and equality and inalienable rights of all
- freedom of speech and belief
- dignity and worth of the human person and equality of men and women
- Article 1 – humans free and equal in dignity and rights
- Article 2 – discrimination on basis of race, color, sex, religion, political opinion
- Article 3 – right to life, liberty and security of person
- Article 4 – slavery
- Article 5 – inhuman or degrading punishment or treatment
- Article 6 – all equal before law without discrimination
- Article 7 – right to recognition everywhere as a person before the law
- Article 8 – right to an effective remedy by competent national tribunals
- Article 9 – arbitrary arrest, detention or exile
- Article 10 – fair hearing by impartial tribunal
- Article 11 – presumption of innocence
- Article 12 – arbitrary interference with privacy, family, home or correspondence/attacks on honor/reputation
- Article 13 – freedom of movement and residence, including right to leave country
- Article 14 – seek and enjoy asylum in other countries
- Article 15 – right to a nationality
- Article 16 – right to marry and found a family. Marriage requires full and free consent
- Article 17 – no one arbitrarily deprived of property
- Article 18 – freedom of thought, conscience and religion
- Article 19 – freedom of opinion and expression
- Article 20 – freedom of peaceful assembly and association
- Article 21 – right to take part in government of country
- Article 22 – right to social security
- Article 23 – right to work, free choice of employment, just and fair conditions of employment
- Article 24 – right to rest and leisure
- Article 25 – standard of living adequate for health and well-being
- Article 26 – right to education
- Article 27 – free participation in cultural life of community, right to intellectual property
(b) First Generation v Second Generation Rights:
The UNDHR contains a divison between civil and political rights (Articles 1 to 21) and economic and social rights (Articles 22 to 27).
It has been argued that civil and political rights are essentially negative rights in the sense of placing limits on what the governments of States can do. On the other hand, economic and social rights have been described as positive rights in that they require positive action on the part of States. However, this is arguably not an entirely stable basis for distinction. To ensure the enjoyment of negative rights, a State must establish a legal system.
A related point is that whilst the Court have had little difficulty adjudicating upon civil and political rights, there is a distinct reluctance to rule on issues linked to economic and social rights. Court often invoke principles of non-justiciability in relation to economic and social rights, which is a concern linked to the separation of powers – decisions regarding economic, social and cultural rights, involving as they do issues affecting the allocation of resources, are seen as falling within the province of the legislature. It is of course possible for this to be circumscribed by legislative direction.
The distinction is illustrated by the two Covenants. The articles in the ICCPR which impose obligations on States are in far more precise terms that the comparable articles in the ICESCR.
Article 2(3) of the ICCPR provides:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 2(1) of the ICESCR provides:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
The words “to the maximum of its available resources” and “with a view to achieving progressively” qualify the obligations.
(c) Differences between the UDHR and the Covenants:
(i) Self-determination:
In 1966 (when the GA resolution to which the Covenants was annexed was passed), the process of decolonization was in full swing.
Therefore, the ICCPR and the ICESCR have a common Article 1(1):
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
(ii) Human right to property:
Article 17 UNDHR gives expression to the right to property. However, it does not appear in the Covenants as the 1960 marked the height of efforts to nationalize industries in developing States. A highly contentious question was the issue of compensation.
This controversy is reflected in Article 1(2) of the Covenants:
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
Both sides of the nationalization debate in the 1960s had different interpretations of what international law required. One casualty was a provision dealing with a right to property (although Article 15(1)(c) recognizes the right of everyone “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”).
Today, it seems clear there is a human right to property: Damrosch. However, doubts remain as to its content.
(iii) Minority rights:
Article 27 of the ICCPR includes a minority rights article not found in the UNDHR.
(d) Limitation on Human Rights:
Recall Article 29(2) UNDHR:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
The ICCPR and ICESCR also contain provisions with such limitations: see, for example, ICCPR Articles 12-14, 18-19, 21-22.
The regional Human Rights Conventions contain similar provision as well: see, for example, ECHR Articles 2, 6, 8-11.
(e) Emergency Derogations:
The ICCPR (and also the regional treaties) contains a “derogation clause” which applies in cases of public emergency. Article 4 provides:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
The non-derogable rights lists in Article 4(2) are:
- Article 6 – right to life;
- Article 7 – prohibition of torture and other cruel, inhuman or degrading treatment or punishment;
- Article 8 – prohibition of slavery;
- Article 11 – prohibition of imprisonment for failure to perform contractual obligations;
- Article 15 – prohibition of retrospective criminality;
- Article 16 – right to legal personhood; and
- Article 18 – freedom of thought, conscience and religion.
(e) Adherence to Global Human Rights Treaties:
- ICCPR – 160 State parties;
- First Optional Protocol to ICCPR – 109;
- ICESCR – 155 parties;
- Convention on Rights of Child – 193;
- Convention on the Elimination of Racial Discrimination Against Women – 185;
- Convention on the Elimination of the Discrimination Against Women – 185;
- Convention on the Elimination of Racial Discrimination – 173;
- Torture Convention – 144.
(e) Human Rights protected under Customary International Law:
Certain rights in the UNDHR or Covenants have attained customary status. Determining which rights have customary status is difficult. Some rights in the UNDHR are certainly not customary. For example, economic and social rights, such as the right to welfare, could not be said to be customary
§702 of the Third Restatement lists practicing, encouraging or condoning the following as prohibited at customary law:
- Genocide;
- Slavery or slave trade;
- Murder or causing disappearance of individuals;
- Torture or other cruel, inhuman, or degrading treatment or punishment;
- Prolonged arbitrary detention;
- Systematic racial discrimination;
- Consistent pattern of gross violations of internationally recognized human rights.
In 1998, the ILO declared that by virtue of membership of the ILO, more than 170 States members of the ILO were obliged to respect the following rights:
- Freedom of association and the effective recognition of the right to collective bargaining;
- The elimination of all forms of forced or compulsory labour;
- The effective abolition of child labour; and
- The elimination of discrimination in respect of employment occupation.
(i) Jus Cogens:
Clearly, certain human rights norms, such as the prohibition of genocide, have the status of jus cogens.
(ii) Erga Omnes:
Diplomatic protection ordinarily requires that the State protects its own national. However, where erga omnes obligations are violated, any State can make an international claim regardless of the nationality of the victim: Barcelona Traction.
- In the East Timor Case, the majority in the ICJ accepted that the right to self-determination was an erga omnes right.
- The Trial Chamber of the ICTY held in the Furundzija Case that the prohibition on torture gave rise to erga omnes obligations.
- In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ stated that the right to self-determination and “a great many rules of humanitarian law applicable in armed conflict” gave rise to obligations erga omnes.
There is a close relationship between rules of jus cogens, obligations owed erga omnes, and the principle of universal jurisdiction.
(f) Other ways the rights in the UNDHR can be binding:
(i) HR under the UN Charter:
Recall that one argument is that the UNDHR and the Covenants flesh out the content of human rights obligations of States under Article 55 and 56 of the UN Charter.
Article 55:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55: Article 56 UN Charter.
These obligations are binding on at least all 191 members of the UN. It may be significant that in the event of a conflict between the obligations under the Charter and obligations under any other international agreement, obligations under the present Charter shall prevail: Article 103 UN Charter.
(ii) HR obligations as general principles of law:
Recall that Professors Alston and Simma advocate that human rights are binding as general principles of law recognized by States and evidenced by their international practice.
These arguments do not apply with equal success to all rights contained in the UNDHR or the Covenants. The same type of problem that exists in relation to the right to welfare as a customary right is faced by these two arguments.
3. Human Rights Protection Mechanisms under International Law:
(a) Protection under Municipal Law:
International law requires States to protect human rights under their municipal law. For example, the Racial Discrimination Act 1975 (Cth) reflects the existence of international legal obligations to protect human rights under municipal law.
(b) UN Institutions:
If a municipal system if failing, there may be a means for enforcement through the UN.
(i) Security Council:
Some SC decisions have been directed at human rights violations. For example, in the 1960’s, the SC directed a number of resolutions at Rhodesia (Zimbabwe).
However, the competence of the SC is limited to those matters affecting international peace and security. In Jan 2007, China and Russia vetoed a resolution condemning Myanmar for human rights violations. The observation by the Chinese representative in the Council included statements that the Myanmar issue is mainly the internal affair of a sovereign State and is not a threat to international peace and security.
(ii) The General Assembly:
The GA can vote on human rights issues: Article 13(1)(b) Charter. It did so regularly in condemning the policy of apartheid that was practiced for many years by South Africa.
The division of the GA’s membership into different voting blocs during the Cold War meant that not all States were consistently censured for breaches of human rights. In the 1970’s and 1980’s Chile, Israel and South Africa were criticized, but other States guilty of more serious crimes such as Cambodia escaped criticism.
(iii) The Commission on HR and the HR Council:
The Commission on HR was established by ECOSOC in 1946 and was dissolved in 2006. The sub-commission was an expert body that was not subject to the same degree of political manipulation. It was also abolished in 2006.
The Commission had:
1. A private complaints procedure;
2. A public complaints procedure; and
3. A thematic procedure.
The public (ECOSOC Resolution 1235) and private (ECOSOC Resolution 1503) complaints procedures were established in 1967 and 1970 respectively. They established the procedures to investigate, and ultimately report on, consistent patterns of violations. The public procedure has generally been seen to be more effective that the private procedure.
Under the thematic approach, the Commission and Sub-commission looked at particular rights and State practice around the world relevant to these rights. Public reports were issued and these form the basis of subsequent investigation. The reports have looked at, for example, disappearances, the sale of children and contemporary forms of racism.
The Commission was criticized for a number of reasons relating to politicization and double-standards. It was made up of State representatives, and was therefore prone to the same bloc politics as the GA. For example, Uganda, whilst under the control of Idi Amin, escaped criticism in the Commission despite a consistent pattern of gross violations. China was able to frustrate efforts to have a resolution passed following the Tiananmen Square crackdown. Libya chaired the Commission in 2003, even though it was guilty of abuses.
The Human Rights Council replaced the Commission. It is slightly smaller, with 47 (as opposed to 53) State members. Since it is composed of State members, some of the politicization has carried over from the Commission e.g. all 9 of the Council’s resolutions (at April 2007) have been directed towards Israel: J Allen, The Australian.
Significantly also, the Council was established by the GA (as opposed to ECOSOC). Thus, votes of the Council are votes of the GA. This has raised human rights up the UN hierarchy.
The Council is to carry on certain functions of the old Commission and sub-commission. It is to take over the public and private complaints procedures and the thematic mandates established by the Commission. The precise way in which these procedures are to be carried over has not yet been finalized. There is a risk that States members of the Council that are hostile to aspects of the former Commission’s procedures may take the opportunity created by the establishment of the Council to undermine the already limited effectiveness of the existing procedures: Professor Alston.
(iv) The High Commissioner for HR:
The work of the Commission on HR and the Sub-Commission was enhanced by the position of the High Commissioner for HR. These are experts, and do not represent their State of nationality.
(v) Treaty-Monitoring Bodies:
There are also specialized bodies charged with implementing the various human rights treaties. The membership of these bodies is made up of experts, not appointed as State representatives.
(A) Regional Bodies:
The most effective HR protecting institution is the system set up under the Council of Europe of the European Court of Human Rights. All 40 members of the Council accept the jurisdiction of the Court under the European Convention on Human Rights. The ECHR system addresses property rights and the right to education (not in ICCPR), but minority rights are not specifically addressed (as in Article 27 ICCPR). The ECHR mechanism is formally legally binding: Article 46 ECHR.
The Inter-American Court of Human Rights has power to make binding decisions and hear individual complaints under the American Conventions on Human Rights.
(B) Global Bodies:
The global treaty-monitoring bodies generally have the power to:
1. Review and comment on reports that States, which are parties to the Conventions, are required to provide periodically; and
2. Issue general comments on the interpretations that they propose to adopt of the Conventions for which they are responsible.
Some treaties also provide for inquiry by the committee members into the HR situation in given countries.
Also, some of the Conventions supplement these power with provision for States to agree to rights of individual petition to these treaty bodies e.g. the Human Rights Committee which operates under the ICCPR and the First Optional Protocol; Committee overseeing the Convention on the Elimination of Racial Discrimination; Committee overseeing the Torture Convention; Committee overseeing Convention on the Elimination of Discrimination against Women.
In order to successfully complain under the First Optional Protocol, it is necessary that the person complaining of the human rights violation be a victim of such violation: Article 1 First Optional Protocol. In Toonen’s Case, the Committee held that it did not matter that Toonen had not been charged. It suffice that the threat of enforcement was ever present.
In this situation, two types of consent are needed:
1. Consent to the treaty; and
2. Consent to the individual complaints procedure.
Although State consent is needed, the right of individual petition clearly demonstrates the legal person-hood of human beings. Note also that examples of earlier treaties allowing for individual petition are:
- Articles 297 and 304 Treaty of Versailles 1919
- Polish Germano Convention of 15 May 1922 relating to Upper Silesia
- The Treaties establishing the 3 European Communities (Coal and Steel; Common Market; EURATOM) give individuals, private enterprises, and corporate entities certain rights of direct appeal to the Court of Justice of the Communities against decisions of organs of the Communities.
ICCPR Optional Protocol Cases Involving Australia:
Two cases involving Australia illustrate these problems. Australia acceded to the First Optional Protocol to the ICCPR in 1991, giving persons within Australia the right to complain to the Human Rights Committee in Geneva.
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A’s Case Facts:
Held:
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Note that one of A’s claims was rejected on the grounds that he had not exhausted local remedies. The Committee identified A’s failure, essentially, to bring institute a HC challenge as ruling out a claim on that point under the Optional Protocol.
Australia did not accept the Committee’s views, arguing that the Committee was wrong in its interpretation of the ICCPR. It paid nominal compensation of $1/day.
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Toonen’s Case Facts:
Held:
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Interestingly, although the Australian Government was notionally the respondent (it was the signatory to the treaty and Tasmania’s acts, being a subunit, were attributable) it supported the Committee’s position. It subsequently undermined the Tasmanian Code by passing inconsistent legislation.
Weakness of the Committee System:
There are two main weaknesses:
1. Views not decisions
a. The Human Rights Committee and similar Committees are not judicial bodies. They can only express their views on whether a State is in violation. All the Committee can really do is attempt to mobilize shame by reporting violations to the GA.
b. In A’s Case, the Government could simply say that the Committee was wrong in law. In its 1998 and 2000 Report, the Committee criticized Australia for its response, but the criticism was weak.
c. Violations of the ICCPR do give rise to state responsibility, but not complying with the Committee’s view does not
2. Lack of resources
a. The Committees lack resources, meeting for short periods yet having a massive workload. They have very little research support.
b. Consequently, their opinions are very short (in Toonen’s Case, barely longer than a page). This undermines the authority of their opinions since they are unable to contain detailed legal analysis.
In 2000, the Government completed a review of the Committee system, partly because it was upset with criticism it received for its Wik Ten Point Plan. The Government announced it would scale back its support, “to ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non government organizations”. It also announced it would not sign the Convention on the Elimination of All Forms of Discrimination Against Women. It has also refused to sign the recent Convention Against Torture.
The Government’s criticism of the Committees downplaying the role of democratically elected government’s raises an interesting point. There is certainly a tension between democracy and human rights, since human rights operate in an anti-majoritarian way. However, a convincing response to this is that of Professor Ronald Dworkin, who points out that it is an important quality of rights that they trump utilitarian assessments of general welfare – it cannot be a right if it disappears every time a majority is opposed to it.
European Court of Human Rights:
After having been found in breach of the European Convention of Human Rights on a number of occasions, the UK incorporated the European Convention into its domestic law by Statute. Australia remains the only traditional common law jurisdiction which does not have general legislation enshrining a broad range of civil and political human rights standards.
ESCR and Individual Petition:
Rights of individual petition relate almost exclusively to civil and political rights. Attempts to negotiate an option protocol to the ICESCR had been unsuccessful.
However:
- A protocol to the Convention on the Elimination of All Forms of Discrimination Against Women has been negotiated and came into force in 2000;
- The optional protocol to the ICCPR, by Article 26, allows for complaints of discrimination of economic and social rights; and
- In 1998 and 1999, complaints mechanisms came into force in relation to economic and social rights in Europe and America.
4. Controversial Questions related to Human Rights
(a) Group and Third Generation Rights:
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First Generation |
Second Generation |
Third Generation |
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Civil and Political Rights |
Economic, Social and Cultural Rights |
Solidarity Rights |
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Liberty |
Equality |
Fraternity |
It is argued that human rights are individual, and therefore “group rights” cannot properly be called human rights.
However, this is overly simplistic – genocide is a group right, as is the right to collectively bargain. Similarly, the right of self-determination is expressed to be a right of “peoples” (Article 1 ICCPR and ICESCR). This is also true of the right to permanent sovereignty over natural resources: Crawford.
(b) Self-Determination:
What constitutes a “people” for the purposes of self-determination?
Note that self-determination may not require statehood – it may be enjoyed through the granting of greater autonomy.
(c) A Human Right to Development:
Developing States have been asserting this right as a human right for a number of years. It is said to include a right that developing States obtain assistance necessary in order to develop economically.
The right to development is not as popular among developed States. It was the subject of a GA Resolution in 1986, against which only the US posted a negative vote, but there were a number of significant abstentions. It cannot be said to be a customary right at this stage: Crawford.
(d) Conflict between Different Rights:
The UN has generally sought to maintain the interdependence of all human rights e.g. during Cold War.
(e) East Asian Attitudes to HR:
Governments of the so-called “tiger economies”, particularly in the 1990s, argued that the right to development justified deferral of traditional civil and political rights. This was often coupled with a cultural relativist tendency.
Problems:
1. They have already assumed obligations regarding civil and political rights under treaties; and
2. Commitment to so-called Asian values sits uncomfortably with adoption of Western-style economic development.
5. Challenges to Human Rights Protection under International Law:
Obligations in respect of human rights are generally imposed on States. Therefore, the actual state of human rights depends on the will and capacity of the States.
(a) Capacity
In a globalized world, as governments are downsized, their capacity to secure economic and social rights may be compromised. This concern has been expressed in particular in relation to structural adjustment policies demanded by the IMF. Changes in regulation demanded by the IMF may have human rights consequences.
(b) Will
There is also a problem of the diminishing will of some States that are attempting to respond effectively to threats of terrorism. Persons accused of terrorist acts have been placed beyond the scrutiny of independent bodies applying international human rights standards.
6. Corporate Entities – Rights and Obligations:
The corporate equivalent of the right of individual petition is ICSID. Corporations clearly have rights under BITs.
However, legal obligations on corporations in relation to human rights are not well-developed.
7. Conclusions:
The human rights provisions canvassed above clearly demonstrate that individuals are owed obligations under international law. For the most part however, the individual remains an object of international law whose most important characteristic for international law purposes is his nationality: Harris. Nationality:
- Determines which State may protect him against the wrongs of another;
- Places an individual within a particular domestic jurisdiction and hence discretionary treatment of his national State;
- Decides whether an individual can benefit from treaty guarantees that a State secures for its own nationals.
OBLIGATIONS OWED BY INDIVIDUALS UNDER INTERNATIONAL LAW
1. International Criminal Law:
(a) Pre and immediately post WWII:
(i) Versailles
The notion of international criminal responsibility can be traced to before WWII: see, for example, Articles 227-230 Treaty of Versailles. Article 227 foreshadowed the establishment of a tribunal of 5 judges (one from the US, UK, France, Italy and Japan) o try the Kaiser for “supreme offences against international morality and sanctity of treaties”. Note that implicit in this provision is the absence of sovereign immunity. The Kaiser was never tried as the Netherlands, where he sought refuge, refused to surrender him.
(ii) Nuremberg
However, it was the prosecution of persons after WWII that heralded the development of a new determination to enforce the international criminal responsibility of individuals. On 8 August 1946, the governments of France, UK, US and USSR established by treaty the Nuremberg International Military Tribunal to try persons of the European Axis Powers who had committed crimes under international law. Each was to provide 2 judges.
The nature of the jurisdiction of the WWII Tribunals is debatable. Arguably, the jurisdiction was derived from the entitlements of the occupying powers. However, it is also arguable that given the Crimes in the Charter of the Nuremburg Tribunal give rise to universal jurisdiction, the four States that created it were doing what any State was entitled to do.
Article 6 of the Charter of the Tribunal set out the crimes for which prosecution could occur as:
- Crimes against peace – planning, preparation, initiation of waging of a war of aggression… or conspiracy for the accomplishment of the foregoing;
- War crimes – violations of the laws or customs of war e.g. murder, ill-treatment;
- Crimes against humanity – namely murder, extermination, enslavement, deportation, and other inhumane acts against any civilian population.
Leaders/organizers were responsible for all acts by any persons in execution of such plan: Article 6 Charter of Tribunal. Subordinates were unable to avoid liability by blaming the leaders: Article 8 Charter of Tribunal.
At the time of the trials and subsequently, questions have been raised as to whether the prosecutions in respect of Article 6 contravened the rule against retrospective criminality (nullum crimen sine lege; nullum crimen poene lege), particularly crimes against peace. Article 6 is drafted in terms of lex lata, but state practice during the League period was not consistently in support of a customary prohibition of the use of force or individual responsibility for aggression. Doubts about this have diminished because in 1946 the GA resolved that it, “affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgement of the Tribunal.” This is a clear statement of lex lata.
(iii) Tokyo
An international tribunal was also established in Tokyo to try Japanese war leaders. The criminal prosecution of General Yamashita for his failure to exercise control over troops under his command formed the basis for the charge of command responsibility i.e. responsibility for acts of subordinates where commander knew or ought to have known of the acts of the subordinates and failed to take reasonable and necessary measures to prevent or punish the perpetrators.
(b) Genocide:
The crime of genocide is not specifically addressed in the Nuremberg Charter, though it would be encompassed as part of “crimes against humanity”. In 1948, the GA unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide which came into force in 1951. At 6 December 2006 it had 140 State parties.
By Article I, it is affirmed that genocide, whether committed in a time of peace or war, is a crime which the parties undertake to prevent and punish (the duty to prevent and punish was the basis of liability in the Bosnia-Serbia Case).
Article II establishes an objective and subjective element:
1. Objective – killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, preventing births, forcibly transferring children; and
2. Subjective – intent to destroy in whole or in part a national, ethnical, racial or religious group.
Article III criminalizes:
1. Genocide;
2. Conspiracy to commit genocide;
3. Direct and public incitement to commit genocide;
4. Attempt to commit genocide; and
5. Complicity in genocide.
There is no sovereign immunity for breaches acts under Article III: Article IV.
Article VI demands a trial of those committing genocide before either the courts of the territory where the crime was committed or such international criminal tribunal as may have jurisdiction. Two points:
1. A general international criminal tribunal only came into existence in 2002, the ICC;
2. After Nuremberg and Tokyo tribunals finished, and until ICTY and ICTR were set-up, there was no international tribunal. Thus, local courts had to be used to try the perpetrators of such offences. Article VI was not intended to limit prosecutions to the courts where the offence occurred: AG of Israel v Eichmann (1961, District Court of Jerusalem).
A related point is that there are a number of international crimes which include, for example, piracy that all States are considered to have jurisdiction to prosecute i.e. “universal jurisdiction.
Article VI of the Genocide Convention provides for universal jurisdiction re genocide. A 2001 report by Amnesty International also considers that the following are crimes for which there is universal jurisdiction under customary law:
- War crimes committed during international armed conflict;
- War crimes committed in internal armed conflict;
- Crimes against humanity;
- Genocide; and
- Torture.
The joint separate opinion of Judges Higgins, Kooijmans and Buerganthal in the Arrest Warrant Case, quoting Oppenheim, says that in respect of crimes against humanity there is no general rule of positive international law granting universal jurisdiction but that there is evolving a principle to that effect.
States may have universal jurisdiction over crimes occurring in another non-agreeing State as opposed, for example, to crimes on the ‘high seas’: Arrest Warrant Case per Judges Higgins, Kooijmans and Buerganthal.
Article IX is a treaty clause giving the ICJ jurisdiction under Article 36(1) of the ICJ Statute.
(c) Ad Hoc Tribunals created by the SC:
In the early 1990s, the SC, acting under Ch VII, established International Criminal Tribunals for both former Yugoslavia and Rwanda.
The Statutes of the Tribunals build on the legal structures of the WWII Tribunals. They also take account of subsequent standards such as those in the four Red Cross Conventions of 1949 and the two additional protocols to these. Note that the obligations under the four Geneva Conventions apply generally to international armed conflicts, with the exception of Article III. This is redressed to some extent by the Second Protocol of 1977.
(i) Crimes
The Statute of the ICTY empowers it to prosecute persons for:
1. Grave breaches of the Geneva Conventions of 1949 – Article 2 – willful killing, torture and inhumane treatment etc – see notes on ‘international law of armed conflict’;
2. Violations of the laws or customs of war – Article 3 – weapons that cause unnecessary suffering, wanton destruction of cities etc. This is a residual clause and may include anything not mentioned in the other articles but which is prohibited customarily;
3. Genocide – Article 4 – identical definition to Genocide Convention;
4. Crimes against humanity – Article 5 – murder, extermination, enslavement, rape (note that rape had not previously been treated as a crime under international law) etc. Note that Article 5 requires that the act occur in an armed conflict. The conflict may be international or internal.
(ii) Criminal responsibility
Article 7 provides for individual criminal responsibility:
- Article 7(1) – A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.;
- Article 7(2) – no sovereign immunity.;
- Article 7(3) – command responsibility if commander knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.;
- Article 7(4) – orders no defense, though may mitigate punishment.
Article 8 limits the jurisdiction of the Tribunal temporally and geographically to the territory of the Former Yugoslavia, and acts back to 1 Jan 1991.
Article 9(1) provides that the Tribunal and national courts have concurrent jurisdiction, but Article 9(2) provides that the Tribunal may at any stage ask the municipal courts to defer to the competence of the Tribunal i.e. ad hoc tribunals have primacy over domestic jurisdiction.
The ICTR has an almost identical statute. It has not received as much media or academic attention. Most attention has focused on the slow progress of the Tribunal.
(d) Victors’ justice?
The Nuremberg and Tokyo tribunals have been criticized as providing for victors’ justice.
- The absence of indictments for mass aerial bombardment as the Allied powers used the same tactics.
- The absence of indictments for the crime of aggression arising out of the Soviet invasion of Poland
- All judges were from the victorious powers
The Rwandan and Yugoslav tribunals appear to have demonstrated that it is possible to seek justice in respect of all sides in a military conflict without the process being controlled by the outcome. In Tadic (Jurisdiction), the Appeals Chamber stated:
“…one cannot but rejoice at the thought that, universal jurisdiction being nowadays acknowledged in the case of international crimes, a person suspected of such offences may finally be brought before an international judicial body for a dispassionate consideration of his indictment by impartial, independent and disinterested judges coming, as it happens here, from all continents of the world.”
Concerns, however, have been raised about the ad hoc tribunals regarding their ad hoc nature and the appearance of selective justice that their establishment and the non-establishment of similar tribunals for comparable conflicts creates.
(e) The ICC:
(i) Jurisdiction
The Court came into existence on 1 July 2002. Per Article 5, the ICC has jurisdiction over:
1. Genocide;
2. Crimes against humanity;
3. War crimes; and
4. The crime of aggression.
Per Article 12, the Court will have jurisdiction over these crimes if one or more of the following States are parties to the Statute or has accepted jurisdiction for the particular crime:
1. The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; or
2. The State of which the person accused of the crime is a national.
This makes State consent important. Note that the ICC Statute provides that cases are inadmissible before the ICC where national authorities are investigating or prosecuting an individual. Cases are only admissible to national authorities are unwilling or unable to prosecute: Article 17 ICC Statute.
There will no longer be any need to set up ad hoc tribunals. The SC can use the ICC via Article 13(b) of the ICC Statute. This is an alternative basis for jurisdiction.
A further alternative basis for jurisdiction arises where a State consent to the Court’s jurisdiction even where it is not a party to the treaty: Article 12.
The crime of aggression is not defined. Consequently, the Court will not exercise jurisdiction over this crime until a definition is adopted in accordance with Articles 121 and 123 of the Statute: Article 5(2).
Note that the Rome Statute of the ICC provides that the parties can agree to add crimes in the future by amendment: Article 121. However, Article 5(1) limits the jurisdiction of the Court to “the most serious crimes of concern to the international community as a whole”. This threshold is a safeguard which will limit the number of crimes over which the Court has jurisdiction.
Comparison:
The offences contained in the ICC Statute are similar to those of the ad hoc tribunals. However a few differences can be seen.
Firstly, the Articles regarding crimes against humanity (Article 7) and war crimes (Article 8) are far more detailed that the Tribunal statutes. For example, “extermination” and “enslavement” are all defined. The detail also serves to expand the definition of war crimes and crimes against humanity compared to the Tribunal statutes.
Secondly, genocide and crimes against humanity do not have as a requirement the existence of an armed conflict. In respect of genocide, this is consistent with the Tribunal statutes. However, in respect of crimes against humanity this is a change.
(ii) Safeguards against abuse of prosecutions
Safeguards include:
- Article 5(1) mentioned above
- Investigations by the prosecutor are subject to scrutiny by the Court: Article 15.
- The principle of complementarity of jurisdiction: Article 17.
- The SC may defer investigations/prosecutions for 12mths at a time: Article 16.
- A State may withdraw from the Statute: Article 127.
Recall that the treaty prohibits reservations: Article 120.
(e) Other Crimes under International Law:
International criminal law is also developing in relation to terrorism and the drug trade.
Terrorism, in particular, is the subject of multilateral treaties and there are currently efforts underway to negotiate a comprehensive terrorism treaty. A major problem is still the definition of terrorism. A review of the major treaties suggests two basic elements to any definition:
1. Subjective element – an intent to cause a state of public terror in order to coerce a government; and
2. Objective element – some form of destructive attack.
Recall also that piracy has arguably been an international crime for centuries.
(f) Juridical Entities and International Responsibility:
Juridical entities also have obligations under international law. In the late 1940’s the Nuremberg Tribunal decided that three German organizations, including the Gestapo and SS were criminal organizations and that therefore their members could also be held criminally responsible.
(g) Sovereign Immunity:
Foreign state representatives are granted immunity from prosecution by States, and are bound to do so under customary international law.
Note that there is an obligation on States not to give immunity for certain crimes a such as genocide: see, for example, Ex parte Pinochet (No. 3), where it was held that rules of sovereign immunity did not protect the former Chilean Head of State from extradition to Spain.
In the Arrest Warrant Case, the ICJ held that under customary international law a foreign minister enjoys immunity from the exercise of the jurisdiction under foreign municipal law even in respect of Grave Breaches of the Geneva Conventions and Protocols thereto. In Al-Adsani, the ECHR, by a 9:8 majority upheld immunity from civil prosecution for torture.
However, the ICJ also pointed out that this did not create impunity:
- The foreign minister could be prosecuted under the municipal law of his own State;
- The foreign minister could be prosecuted in international tribunals; and
- The immunity disappears once the minister leaves office.
2. Conclusion:
Individual criminal responsibility makes clear that individuals can be subjects of international law. Indeed, the Nuremberg Tribunal stated:
“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
This view shows that international law will reach behind the abstract concept of a State arguably supports Kelsen’s view discussed above: Shearer.
Note however the importance of nationality in terms of:
- Rights of diplomatic protection; and
- State responsibility for failure to prevent wrongs done by a person.
THE LAW OF TREATIES
Treaties are the most effective and prolific means of imposing precise rules of law on States. Remember that the collection of treaties negotiated in the 270yrs up to 1919 runs for 231 volumes. Compare this with the 2003 volumes of treaties negotiated between 1945 and 1998.
Treaties can work in many different ways:
1. Bilateral treaties – these look very much like contracts, but are more public than this and are often more analogous to statutes e.g. a treaty settling a border dispute, whilst looking like a land conveyance, affects millions of people;
2. Multilateral treaties – these have constitutional or statutory features e.g. UN Charter. They may set up international organizations with personality, similar to the incorporation of a company under Australian corporations law.
Because of the different ways in which treaties can operate, some writers, such as Brownlie, have favored a formal classification and have argued different rules apply. This was not the approach the ILC took in drafting the VCLT, but there is some reflection of this in Article 60.
2. Introduction to The Vienna Convention:
The VCLT is not retrospective: Article 4. However, many of the provisions reflect the position under customary law. Also, the Convention has undoubtedly progressed custom in some areas: Brownlie, Principles.
Australia acceded to the Convention on 13 June 1974. Thus, in the 6yrs before it came into force (came into force in 1980), Australia was obliged not to defeat the object or purpose of the treaty: Article 18.
As at 1 January 2007, 108 States were bound by the Convention. Note the possibility of reservations.
3. The Scope of the Convention:
The VCLT applies only to treaties between States: Article 1.
Treaties are defined in Article 2 as having 3 characteristics:
1. Agreement between States;
2. In writing;
3. Governed by international law.
(a) Agreement between States:
Treaties between States and IO’s are dealt with in the VCLTIOS, which is not yet in force. Australia acceded to this on 16 June 1993.
In relation to the requirement of an “agreement”, remember the importance of State consent.
(b) In writing:
Oral agreements can nonetheless be binding: Legal Status of Eastern Greenland; Article 3 VCLT. Article 3 provides that the fact that the Convention doesn’t apply to oral agreements does not affect the legal force of such agreements, nor the applicability of the rules in the Convention which apply to such agreements independently of the Convention.
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Legal Status of Eastern Greenland (PCIJ, 1933) Facts:
Held:
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Additionally, recall that oral statements may be binding either due to:
1. Unilateral assumption of obligations (Nuclear Test Cases); and
2. Estoppel (Temple Case).
(c) Governed by international law
This requirement appears to incorporate the intention to create legal relations (Waldock, Fourth Report), and also distinguishes a treaty from a contract. It also is what means soft law instruments are not treaties.
Note that agreements between States can expressly or impliedly provide that they are to be governed by municipal law rather than international law. Municipal conflict of laws rules would apply, and such agreements are not treaties: Waldock, Fourth Report.
An example of such an agreement would be an agreement for the acquisition of a diplomatic mission or some purely commercial transaction: Waldock, Fourth Report.
(d) Other points:
(i) Nomenclature:
Recall that treaties need not be called treaties.
(ii) Reference to parties or their representatives in agreement:
Treaties may not always be expressed to be between States. A treaty may simply be described as being an agreement between governments or foreign ministers. Such an agreement may still be a treaty between the States concerned: Shearer.
4. Entering into Treaties:
(a) Australian municipal rules:
Under Australian law, treaties are entered into by the executive arm of government: Burgess per Latham CJ. However, a policy of consultation has been adopted by the Federal executive. Key aspects of this policy include:
1. Tabling treaties proposed to be entered in both Houses of Parliament at least 15 sitting days before the treaty is entered;
2. Preparation of national interest analyses in relation to the consequence of entering particular treaties;
3. Establishment of a joint parliamentary standing committee on treaties;
4. Passing implementing legislation prior to entering a treaty;
5. Establishment of a State and Territories Treaties Council and a standing committee on treaties to act as consultative bodies on treaties involving State and Territory governments.
A Federal Government review of this process in 1999 concluded the consultation system was working effectively.
Recall that different states have different municipal rules governing this issue.
(b) International legal rules governing entry into treaties:
(i) Who has what power to bind a state to a treaty?
A State acts through the agency of human being.
Article 7 of the VCLT provides for both who can act on behalf of a State in relation to entry into a treaty, and what they are authorized to do.
Per Article 7(1), a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or expressing consent of the State to be bound if:
1. He produces appropriate full powers; or
2. It appears from the practice of the States concerned or other circumstances that their intention was to consider that person as representing the State.
3. “Full powers” is defined in Article 2(1)(c) as a document emanating from the competent authority of a State designating a person or persons to represent the State for accomplishing any particular act with respect to a treaty.
Article 7(2) contains some exceptions whereby people in certain positions do not have to produce full powers:
1. Heads of State, Heads of Government and Ministers for Foreign affairs for the purpose of performing all acts relating to the conclusion of a treaty;
2. Heads of diplomatic missions for the purpose of adopting the text of a treaty;
3. Representatives accredited by states to an international conference or to an international organization or one of its organs for the purpose of adopting the text of a treaty.
An act relating to the conclusion of a treaty performed by a person not within Article 7 has no legal effect unless afterwards confirmed by that State: Article 8.
If the person appears to be authorized by Article 7, it matters not that they are not actually authorized under the municipal law of their country. Municipal law is not a justification for non-observance of a treaty obligation: Article 27.
There are two exceptions to Article 27 contained in Article 46 and 47.
1. Where the violation of internal law was manifest and concerned a rule of its internal law of fundamental importance: Article 46(1). A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and good faith: Article 46(2); or
2. Where the authority of the representative to express the consent of his State has been made subject to a specific restriction, and the restriction was notified to the other negotiating States prior to his expressing such consent: Article 47.
(ii) What is the process for treaties to bind states?
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed: Article 11.
The pattern is that bilateral treaties only require signature. Some bilateral treaties are also entered by exchange. Many multilateral treaties, including the VCLT, require both signature and ratification. However, these are not rules.
Per Article 12, the consent of a state to be bound to a treaty (either multilateral or bilateral) by a signature is expressed when:
1. The treaty provides that signature shall have that effect;
2. It is otherwise established that the negotiating States were agreed that signature should have that effect; or
3. The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.
When signature does not express consent to be bound, it is used as a formal way of authenticating the text of the treaty: Article 10.
Per Article 13, the consent of States to be bound by a treaty (either multilateral or bilateral) constituted by instruments exchanged between them is expressed by that exchange when:
1. The instruments provide that their exchange shall have that effect; or
2. It is otherwise established that those States were agreed that the exchange of instruments should have that effect
Article 2(1)(b) identifies 4 different ways in which multilateral treaties become binding:
1. Ratification;
2. Acceptance and approval – these are alternatives to ratification as a second step;
3. Accession – a single step process used when a State does not sign a treaty within the signature period and therefore cannot avail itself of a two-step process.
Article 16 provides that unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
1. Their exchange between the contracting States;
2. Their deposit with the depositary; or
3. Their notification to the contracting States or to the depositary, if so agreed.
Ratification has historical significance is that it arises from submission of the text to the sovereign.
Note however that multilateral treaties can also become binding by signature or exchange if Articles 12 or 13 apply.
Where a treaty sets out a two-step process for states to become parties, the second step is critical in the assumption of legal obligations. But note Article 18.
(iii) When does a treaty come into force?
Per Article 24:
1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.
Multilateral treaties often provide that they come into force only after a certain number of States have bound themselves to the treaty e.g. VCLT, VCLTIO.
Recall that per Article 18, a State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
1. It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
2. It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
This article has customary status: German Settlers Case (PCIJ).
An example of defeating the object and purpose of a treaty is the plundering of a common resource which a treaty seeks to protect.
Note that a State will avoid the obligation under Article 18 when it has signed and not ratified a treaty, but where it has indicated it will not become a party to the treaty.
(iv) Reservations:
(A) What are reservations?
A “reservation” is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State: Article 2(d) VCLT.
It is the substance not the form that matters as to whether something is a reservation: Belilos v Switzerland (ECHR, 1988). The test of a reservation is whether it seeks to exclude or modify the legal effect of the provisions of the treaty to which the reservation is attached: Bowett. A reservation must be distinguished from an interpretative declaration, which merely sets out what the state considers to be the preferred interpretation (unless it states that the state only accepts obligations consistent with its preferred interpretation) i.e. distinguish mere interpretative declarations and qualified interpretative declarations: Belilos.
Reservations and withdrawals of reservations must be formulated in writing and communicated to the other contracting States: Article 23.
Reservations cannot be made to bilateral treaties. A reservation will in effect be a counter-offer which the other party can accept or reject.
(B) Permissibility of reservations:
Per Article 19, a State may formulate reservation unless:
1. It is prohibited by the treaty;
2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
3. The reservation is incompatible with the object and purpose of the treaty.
Examples of treaties which does not allow reservations - Rome Statute of the ICC, 1982 Law of the Sea Convention.
The effect of a reservation on the overall integrity of a treaty is usually minimal: ILC Commentary to Draft Articles (1966). Reservations that offend peremptory norms would not be compatible with the treaty: see General Comment 24 on Reservations to ICCPR.
Article 19(3) confirms with the ICJ’s opinion in the Reservations to the Convention on Genocide Case where it was held that where a treaty is silent on reservations, a state can make a reservation and still be a party to the treaty provided that the reservation was compatible with the “object and purpose” of the treaty, even if other States object to the reservation. This opinion differed from prior accepted regimes of reservations (e.g. Latin American System, LoN system).
(C) Acceptance of and objection to reservations:
See Article 20 VCLT:
1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides;
2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:
a. acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;
b. an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;
c. an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
This Article is also drawn from the ICJ’s opinion in the Reservations to the Genocide Convention Case.
(D) Effect of reservations:
Per Article 21(1) and Legality of Use of Force (Yugoslavia v US) (Prov.Meas.)., a reservation:
1. Modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and
2. Modifies those provisions to the same extent for that other party in its relations with the reserving State: Article 21.
The reservation does not modify the provisions of the treaty for other parties to the treaty inter se: Article 21(2).
Where a state objects to the reservation, the treaty is in force but minus the provision affected by the reservation to the extent of the reservation. The reservation is not opposable against the objecting state: Bowett; Article 21(3).
Interestingly, in Belios Switzerland made a reservation, which was not allowed by the E Convention on HR, but the Court’s view was that Switzerland remained a party to the E Convention without being able to rely on its reservation.
(E) Withdrawal of reservations:
Reservations may be withdrawn at any time unless the treaty States otherwise: Article 22.
(F) Special rules re human rights?
The HRC (body established under the ICCPR) has argued that the VCLT approach must be modified re human rights treaties. One view that provoked strong criticism from the US was the Committee’s view that reservations contrary to the object and purpose of the ICCPR could be severed (e.g. in Belilos). The US and UK argue that if their reservations “go” then so does their consent to the treaty. The HRC applied its severance approach in Kennedy v Trinidad and Tobago.
Reservations are allowed to the ICCPR, and these serve a useful function as they allow a State to accept the generality of obligations, but it is desirable that a state accept the full range of legal obligations because human rights norms are the legal expression of the essential rights that every person is entitled to as a human being: see General Comment 24 on Reservations to ICCPR.
5. Pacta Sunt Servanda:
Once a State has entered into a treaty it is binding on the State and must be performed by them in good faith: Article 26; United States Nationals in Morocco.
(a) Inconsistent treaties?
Article 103 of the UN Charter provides:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
Article 30 of the VCLT deals with the situation generally. It is made expressly subject to Article 103: Article 30(1).
The first question is who are the parties to the treaties? If the parties to the treaties are the same, Article 30(3) provides that if the earlier treaty is not terminated or suspended it only applies to the extent it is not inconsistent.
If the parties are different, Articles 30(4) and (5) apply:
(4) When the parties to the later treaty do not include all the parties to the earlier one:
(a) as between States Parties to both treaties the same rule applies as in paragraph 3;
(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.
(5) Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.
Note that Articles 30(4)-(5) raise:
1. Comply issues of both the law of treaties
a. question of material breach of a treaty when a party to the treaty concludes another treaty with other parties on the same subject matter but when this amounts to the violation of an essential provision in the first treaty
2. Issues of state responsibility
a. when the conclusion of the second treaty amounts to an internationally wrongful act
6. Treaty Interpretation:
(a) General rules
(i) Predominant rule of interpretation:
The VCLT aggregates the various methods that are suggested in the literature (textual school, intention of parties school, teleological school).
The rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in light of their context and in light of its object and purpose: Article 31(1): Oil Platforms (Prelim. Obj.).
Per Article 31(2), the context comprises, in addition to the text, including preamble and annexes:
a. any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; and
b. any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
Per Article 31(3), there shall be taken into account, together with the context:
a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
b. any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (also Land, Island and Maritime Frontier Dispute; Competence of ILO);
c. any relevant rules of international law applicable in the relations between the parties.
Interpretation of a treaty may also be informed by other instruments related to that treaty: Mavrommatis.
(ii) Subsidiary means of interpretation:
When Article 32 leaves the meaning ambiguous or leads to a meaning that is absurd, recourse may be had to supplementary means of interpretation such as preparatory work and the circumstances of conclusion of the treaty: Article 32. Although Article 32 makes preparatory work a supplementary means of interpretation, it is often used as part of context in Article 31.
Articles 31 and 32 were intended to operate without a rigid separation, but at the Vienna Conference a suggestion that the hierarchy be removed was rejected.
Articles 31 to 33 enunciate in essence customary law: Golder v UK (ECHR); Maritime Delimitation and Territorial Questions Case.
(iii) Other rules of interpretation:
(A) Class and express inclusions rule
Brownlie suggests that the class rule (general words following or perhaps preceding special words are limited to the genus indicated by the special words) and the express inclusions rule apply (express mention excludes other items) as an aspect of the “ordinary meaning in light of its context” rule.
(B) Restrictions on sovereignty interpreted strictly
A further principle is that treaty provisions that imply a limitation of State sovereignty should be interpreted restrictively: Wimbledon. The scope of the principle may be limited to territorial questions and is of questionable logic: McNair.
(C) Human rights
It has been suggested that a treaty should be interpreted consistently with human rights norms recognized under international law: see Valticos and Potobsky.
Treaties that protect human rights might also be subject to special rules of interpretation. The ECHR held, for example, that E Convention of HR is a “living instrument which must be interpreted in the light of present-day conditions”: Tyrer v UK.
(D) Contemporaneity
A corollary of the principle of ordinary meaning is the principle of contemporaneity: the language of the treaty must be interpreted in the light of the rules of general international law in force at the time of its conclusion and light of the contemporaneous meaning of terms: Brownlie.
(E) Effectiveness
The principle that a provision be interpreted so as to have some effective operation is not specifically referred to in the Vienna Convention, the ILC considering that it was reflected sufficiently in the doctrine that treaties are to be interpreted in good faith in accordance with the ordinary meaning of the text: Brownlie.
The teleological approach involves first working out the object and purpose of the treaty and then interpreting provisions to give effect to this. In the Interpretation of Peace Treaties Case (1950, ICJ) the ICJ refused to apply the principle of effectiveness (according to which a treaty should be interpreted to give effect to its object and purpose) in such a way as to override the clear meaning of the text. Thus, ordinary meaning is paramount.
Brownlie writes that this approach has utility in the interpretation of treaties that govern specialized agencies, but that delicate treaty regimes that balance competing rights and obligations warrant a more conservative approach: Brownlie. Indeed, the approach has been used in the field of the constitutional law of international organisations to infer powers which are not expressly given to the organisations concerned but which are consistent with its purposes: see South West Africa Cases.
(b) Specific rules
(i) Treaty interpretation and different languages:
Article 33 provides:
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
This probably reflects custom: Golder; Damrosch.
(ii) Treaties and Third States:
The maxim pacta tertiis nec nocent nec prosunt embodies the rule that a treaty cannot impose obligations or confer rights on states not party to the treaty: Article 34; Free Zones; German Interests in Polish Silesia.
However, rights arise for third States under a treaty provision where the parties intend the provision to accord that right and the third State assents: Article 36(1). Assent is presumed: Article 36(1).
Also, obligations arise for third states under a treaty provision where the parties intend the provision to create that obligation and the third state expressly consents in writing: Article 25.
6. Amendment and Modification of Treaties:
The difference between amendment and modification is generally that amendment alters the treaty for all parties whereas modification is a more limited form of inter se variation.
Article 40 provides:
1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:
a. the decision as to the action to be taken in regard to such proposal;
b. the negotiation and conclusion of any agreement for the amendment of the treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.
4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:
a. be considered as a party to the treaty as amended; and
b. be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.
Article 41 provides:
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:
a. the possibility of such a modification is provided for by the treaty; or
b. the modification in question is not prohibited by the treaty and:
i.does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
ii.does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.
7. Avoidance of Treaty Obligations:
The Vienna Convention covers the field so far as avoidance of treaty obligations is concerned. Article 42(1) provides that the validity of a treaty or the consent of a State to be bound by a treaty may be impeached only through the application of the Convention.
Treaty obligations may be avoided in a number of ways:
1. Error
Article 48:
1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error (also Temple Case).
3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies.
2. Fraud
Article 49:
If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.
3. Corruption of a state representative
Article 50:
If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.
This would involve, for example, getting a country’s foreign minister drunk and then getting him to sign a treaty without seeking instructions.
4. Coercion
Article 51:
The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.
Article 52:
A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
An example of coercion, quoted in Harris, is the hunting of President Hacha of Czechoslovakia by Georing and Ribbentrop around the table on which the documents were lying, thrusting them continually before him and pushing pens into his hands, repeating that if he did not agree then half of Prague would lie in ruins within 2 hours.
In relation to the threat or use of force, recall Article 2(4) UN Charter.
What about treaties signed after a war? Article 75 provides:
The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.
The normal rule about territorial treaties entered following a war is that provided that, when title to territory was established under a treaty, the mode of establishment was then valid, the title then established remains valid in the future.
Where a treaty is unequal in that it is concluded on the basis of the equality of the parties, Russian and Asian writers have argued that this permits avoidance of the obligation. However, the preferred view is that it is now subsumed into a consideration of whether there was coercion.
8. Rules of Jus Cogens:
A treaty is void if at the time of its conclusion if conflicts with a peremptory norm of general international law: Article 53.
9. Termination of or Withdrawal from a Treaty under Its Provisions by Consent:
The provisions regarding termination are customary: Namibia Case.
(a) Denunciation where no provision in treaty:
Article 56 provides:
1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
a. it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
b. a right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.
Treaties of alliance would be covered by Article 56(1)(b) e.g. Indonesia denounced a treaty with Australia in 1991. North Korea announced withdrawal from the NPT in 2003.
(b) Termination or suspension for breach:
Bilateral and multilateral treaties can be terminated where a State commits a material breach of a treaty: Article 60.
A material breach is defined in Article 60(3) in the following way:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
The consequences of material breach are in Article 60(2):
A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
Article 60(2)(c) was designed to cover a situation like the breach of a multilateral disarmament treaty.
These rules don’t apply to treaties of a humanitarian character: Article 60(5).
If the treaty itself provides for breaches, the specific provision in the treaty prevails: Article 60(4).
Article 60 is a codification of customary law: Legal Consequences for States of the Continued Presence of South Africa in Namibia (1971, ICJ); Gabcikovo-Nagymaros.
(c) Impossibility:
Article 61 provides:
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
This codifies customary law: Gabcikovo-Nagymaros.
Examples of this in ILC Commentary are submergence of an Island, drying up of a river etc.
(d) Fundamental change in circumstances:
Article 62 provides:
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
b. the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
a. if the treaty establishes a boundary; or
b. if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
This codifies customary law: Gabcikovo-Nagymaros; Fisheries Jurisdiction Case.
Changes regarded as fundamental are those which imperil the existence of vital development of one of the parties: Fisheries Jurisdiction Case. The changes must also have been completely unforeseen: Gabcikovo-Nagymaros.
(e) Consequences of Invalidity, Termination or Suspension:
(i) Invalidity:
Article 69 provides:
1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
a. each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;
b. acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.
4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty.
(ii) Termination:
Article 70 provides:
1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
a. releases the parties from any obligation further to perform the treaty;
b. does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.
A State may not invalidate, terminate or withdraw from a treaty if it has been agreed that this be so or the State has acquiesced to the breach: Article 45.
10. Mechanisms for the Settlement of Treaty Disputes:
The party seeking to terminate, suspend or withdraw from the treaty must notify the other parties of its claim: Article 65(1). If, after 3 months, no party has raise an objection, the party may take the measure it has proposed: Article 65(2).
If an objection is raised, the parties must seek a solution under Article 33 UN Charter. Article 33 provides they must seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or other peaceful means. This may be enforced by the SC.
Per Article 66, if no solution is reached within 12mths:
- If the dispute concerns articles 53 or 64 (i.e. jus cogens), any one of the parties to the dispute may go to the ICJ, unless the parties agree to go to arbitration;
- If the dispute concerns any other application or interpretation, the dispute resolution mechanism in the Annex to the Convention is effected by submitting a request to the SG of the UN.
The procedure annexed to the Convention is one of arbitration before a commission. Determinations are not binding: Annex.
Remember Article 60(4) and 65(4) preserve the operation of specific provisions of other treaties.
Also, note that Article 42(1) does not rule out using dispute resolution mechanisms in another treaty to resolve disputes which do not go to the validity of a treaty.
11. Registration and Publication of Treaties:
Every treaty shall as soon as possible be registered with the Secretariat: Article 102(1) UN Charter; Article 80 VCLT.
No unregistered treaty may be invoked before an organ of the UN: Article 102(2) UN Charter.
INTERNATIONAL LAW AND THE ENVIRONMENT
1. Introduction
International claims regarding environmental damage have often involved traditional principles of international law rather than any specific rule of international law protecting the environment. Additionally, international law does recognize certain environmental causes of action.
It should be noted at the outset that the traditional litigation approach is by itself an inadequate mechanism for the protection of the environment. Prevention is better than cure – once environmental damage is done, it can be irreversible.
2. Use of Traditional Principles of International Law to Protect the Environment
Two cases in particular illustrate the use of traditional principles of international law in environmental damage claims:
1. Nuclear Tests Cases; and
2. Nauru Case.
(a) The Nuclear Tests Cases
Recall that in this case Australia made a claim in relation to the nuclear tests conducted by France. Australia’s claim did not involve an assertion that damage to the environment itself was the basis for the international claim. Instead, Australia invoked the traditional concept of sovereignty, claiming that the deposit of radioactive fallout on the territory of Australia and its dispersion in Australia’s airspace without Australia’s consent violated Australia’s sovereignty over its territory.
(b) Nauru Case
Nauru’s claim against Australia was based at least in part on three traditional principles of international law:
1. Breach of a treaty argument - it was claimed that the exploitation of the phosphate deposits involved a breach of Australia’s obligations under the UN Trusteeship System;
2. Australia had breached the right to self-determination; and
3. Australia had breached Nauru’s right to permanent sovereignty over natural resources.
4. (c) Other general principles
The international concept of ‘abuse of rights’ was sometimes invoked to condemn state behavior harmful to the environment of other states, particularly in relation to pollution of a shared waterway: Damrosch. Abuse of rights refers to a state exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created, to the injury of another State: Cheng, General Principles of Law.
Additionally, there may be treaty-based claims involving the right to life and right to health (if, for example, the parties are party to the ICCPR and humans have been injured/killed).
3. Development of Environmental Causes of Action under International Law
(a) Trail Smelter Arbitration
This case involved a claim by the US against Canada for damage in the US State of Washington caused by sulphur dioxide fumes emitted by a smelter plant at Trail in British Columbia, Canada. The US and Canada agreed to an international arbitration. Canada was held liable for sulphur dioxide emissions.
The Tribunal concluded that, “…under principles of international law, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”
Two notable points:
1. Strict liability; and
2. Impact on territory of another.
(i) Strict liability
The passage appears to impose strict liability rather than fault based liability. Canada was liable because injury was caused, not because it failed to take reasonable steps to avoid the injury.
This seems questionable as a matter of customary law.
- The Third Restatement §601 speaks of an obligation to take measures “to the extent practicable under the circumstances”.
- Damrosch states: “A central principle of environmental law is an implicit obligation of state to exercise due care to prevent and minimize injury to other states”.
- Spec. Rapp. Barboza’s 6th report on International Liability spoke of a qualified duty – the measures must be “appropriate and practicable”.
On the other hand, Damrosch states that the tendency of the ILC in its work begun in 1978 of on the “international liability of states for injurious consequences arising out of acts not prohibited by international law” was to recognize a state’s obligation to compensate an injured state for appreciable harm even if those activities were legally permissible.
(ii) Impact on territory of another
The passage seems to suggest that the production of sulphur dioxide fumes in Canada, provided they remained in Canada, would not have involved any breach of international law. Indeed, there is no liability for damage caused to areas outside the territory of another State (e.g. high seas).
Damrosch states the general rule as: “the physical environmental impact must extend beyond national boundaries of the source state”, giving the example of deforestation entirely within a national territory not giving rise to liability unless its physical consequence was harmful to another State.
The Trail Smelter Arbitration has been applied in subsequent cases, for example the Repot of the Agent of the United States Before the Lake Ontario Claims Tribunal (8 ILM 118, 1969).
(b) Nuclear Weapons Advisory Opinion
Recall that in this case the ICJ was asked by the GA whether the threat or use of nuclear weapons was lawful under international law. The ICJ held that the use of nuclear weapons would generally be in breach of international humanitarian law, but was not prepared to rule of the legality of the use of nuclear weapons when the very survival of the State was threatened.
However, the Court also acknowledged the existence of rules of international law in relation to the environment. The Court stated:
“The existence of the general obligation of States to ensure activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”
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After this statement, the Court went on to consider the legality of nuclear weapons from the perspective of environmental obligations. The Court stated that environmental obligations were not intended to be obligations of total restraint during military conflict. They do not deprive a State of its right of self-defence. However, environmental considerations must be taken into account in assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Thus, whilst existing international law relating to the environment did not prohibit the use of nuclear weapons, it indicates indicates important environmental factors that are “properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict”. |
This passage was quoted more recently in Gabcikovo-Nagymaros (Hungary terminated a treaty with Slovakia for the construction of a system of dams, partly on the basis of “ecological necessity”). Other comments made by the ICJ in Gabcikovo were:
- Court:
- “The need to reconcile economic development with the protection of the environment is aptly expressed in the concept of sustainable development”.
- Thus, the ICJ has approved of the need to balance this tension (see more below).
- Judge Weeramantry:
- Noted that the principle of sustainable development is a part of modern international law which reaffirms that there must be both development and environmental protection.
This statement goes beyond the Trail Smelter Arbitration as it recognizes liability for damage to “areas beyond national control” (such as the high seas). It would seem however that damage to a State’s own environment would still not be prohibited.
Three problems with litigation to protect the environment are:
1. Prevention is better than cure – environmental damage may be wholly or partially irreversible.
2. Proof – damage may be incremental and the required serious consequences may only become apparent over a long period. In these circumstances, there are problems establishing causal links between the conduct attributable to a defendant state and the damage.
3. Reparation – States responsible for environmental damage may not have the financial capacity to make good the loss of other States.
These problems do not justify the rejection of international litigation, but point instead to the supplementation by international cooperation.
4. International Cooperative Efforts to Protect the Environment
There have been both global and regional efforts to cooperate in the protection of the environment. The focus will be on global efforts.
(a) UN Conferences of 1972 and 1992
Two key UN gatherings stand out:
1. UN Conference on the Human Environment in Stockholm in 1972; and
2. UN Conference on Environment and Development in Rio De Janeiro in 1992.
(i) Stockholm Conference 1972
This conference produced the ‘Declaration of the United Nations Conference on the Human Environment’, a classic soft law instrument.
Recall that soft law can have a significant influence on hard law. Indeed, principles 21 and 22 of the Declaration cover aspects of the Trail Smelter Rule and therefore appear to reflect customary law (at least at 1972). These principles state:
“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
“States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”
The other principles of the Stockholm Declaration did not reflect customary law.
Note that Principle 21 embraces competing principles of international responsibility and national sovereignty: Damrosch.
Note that the Stockholm declaration deals with the protection of the environment on one hand and economic and social development on the other. Developing States in the 1970’s were concerned that environmental regulation not be an impediment to development.
One of the institutional structures that was developed as a consequence of the Stockholm Conference was the UN Environment Program. It began in 1973 and has been the focus of global efforts to protect the environment.
(ii) Rio Conference 1992
At this conference, a number of soft law instruments were approved by over 170 States represented at the conference. Numerous NGO’s also participated. The three main soft law instruments were:
1. Rio Declaration on Environment and Development
a. A declaration along similar lines to the Stockholm Declaration. For example, the Trail Smelter Rule can be seen in Principle 2 of the Rio Declaration.
2. Agenda 21
a. An 800 page action plan charting the course of future efforts to protect the environment
3. “A Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests”.
There were also two treaties produced:
1. The Convention on Climate Change; and
2. The Biodiversity Convention.
(A) Environmental Protection and Economic Development
A critical issues at Rio (and also Stockholm) was the relationship between environmental protection and economic development.
Two main arguments were put forward by developing States:
1. Historically, the developed world’s economic development had been built, in part, upon environmental degradation. Developing States should not have their own development held back because they could not afford environmental standards which the developed world did not apply to itself when it was at a comparable state of development. If the developed world wanted the developing world to impose such standards, it should pay for them; and
2. When you look at consumption patterns, the developed world uses by far the greatest proportion of the world’s resources. Estimates suggest that the quarter of the world’s population in developed States accounts for ¾ of the world’s consumption of resources. “Polluter pays”.
In response to these concerns, international financial arrangements have been established to assist developing States to protect the environment without undermining their economic development. However, there have not been binding commitments made to provide funds for this purpose. No one appears to assert that sufficient funds are currently being made available to assist developing States adhere to environmental standards without undermining development.
These tensions are reflected in the Rio Declaration. The concept of ‘sustainable development’, a succinct reference to this tension, is specifically referred to in Principle 1: Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.
Principle 4 provides:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
The “needs” of future generations are also invoked in the Declaration in principles dealing with development and the environment. It is also worth remembering here the so-called “third generation” human right to development.
Consider Principle 3 which states:
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
(B) The Commission on Sustainable Development
An institutional structure coming from the Conference was the Commission of Sustainable Development which was established in 1993 as a functional Commission on the UN’s Economic and Social Council. The Commission is a representative body charged with supervision of the implementation of the Rio initiatives.
(C) Other Important Principles
There are many other important principles, but we will focus on only two issues:
1. The provision of information; and
2. Problems of proof and risk.
The provision of information:
One of the criticisms of the Soviet regime following the Chernobyl crisis was its failure to warn and to provide adequate information to those States affected by the release of radiation.
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Chernobyl: In 1986 there was an explosion at a nuclear reactor at Chernobyl in what is now the Ukraine. Radiation was released into the atmosphere. It had devastating effects on the employees at the reactor and the local population. Radiation spread over large areas of Europe. The Soviet authorities made no announcement about the accident until days after the explosion. Adequate warnings were not issued either to locals or to other affected States. Certain States exposed to the radiation reserved their rights to make legal claims against the Soviet Union. No international claims have actually been made. Even if claims were successfully made, reparation for the damage done would be difficult to collect, given the financial situation in the former Soviet Union. |
Provisions have been made for this. Principles 18 and 19 of the Rio Declaration state:
States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted.
States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.
When considered with the international treaties entered following the Chernobyl disaster, it is arguable that these principles reflect the position under customary law. The Treaties with similar provisions include:
- Convention on the Early Notification of a Nuclear Accident or Radiological Emergency (in force 27 October 1986); and
- Convention on the Assistance in the Event of a Nuclear Accident or Radiological Emergency (in force 26 February 1987).
- Article 198 Law of the Sea Convention:
- When a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations.
Damrosch states that there is strong support for a principle for a duty to inform others of impending harm or a risk of such harm, which reinforces the customary nature of the principle.
Problems of proof and risk – the precautionary approach/principle:
The precautionary principle/approach justifies taking action against potential risks even where there is a lack of full scientific certainty as to the extent or even the existence of the risk: Damrosch. Requiring full scientific certainty as to a particular risk may mean that irreversible damage is already done by the time that the risk is scientifically identified.
Principle 15 of the Rio Declaration states:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
In some contexts, the precautionary principle places the burden of proof on a state to show that its activity or product would not cause significant harm.
An example of this is Genetically Modified Organisms. A Protocol on Biosafety adopted in 2000 requires exporting states to apply for advance permission from the importing country before shipping off a particular GMO meant for release into the environment. Permission may be denied even if there is no scientific certainty that the import would be dangerous.
(D) Environmental Treaties
The two treaties that the Rio Conference endorsed are now in force. The Convention on Climate Change had 189 parties as at 24 May 2004, and the Biodiversity Convention had 188 parties at 17 February 2005.
Both of these treaties begin the process of global regulation of environmental problems. Both, however, suffer from lack of legally enforceable standards on critical issues, hence the importance of the Kyoto Protocol.
There are numerous other treaties protecting the environment. Malanczuk estimates the number of internationally binding instruments that directly or indirectly affect the environment at 870 agreements. See LM pp. 271-274 for a short list.
5. Environmental Protection under General International Law
These treaties and soft law instruments provide ample evidence to support the existence of customary rules dealing with the environment.\
The Trail Smelter Rule and the requirement to provide information are likely rules of customary law.
It is difficult, however, to identify many other contenders for customary status. This may be due to the lack of consensus over environmental protection on account of Developing States’ concerns that environmental protection may undermine their own economic development.
One possible contender for customary status is the precautionary principle. Alternatively, it may be a general principle of law. Damrosch states that the concept of a precautionary principle has received broad support among European countries but the US has expressed its opposition unless the principle is significantly qualified.
6. Conclusion
Though there are many treaties and some customary rules, international rules in respect of the environment still lack a coherent and overarching structure. There are very specific obligations un particular areas but no obvious links between these areas of regulation. Handl, extracted in Malanczuk states that international environmental law appears to be an “aggregate, rather than a system, of multiple environmental regimes”.
INTERNATIONAL LAW AND ARMED CONFLICT
1. Introduction:
The ‘law of armed conflict’ is paradoxical term – war is generally considered the antithesis of law, what occurs when law breaks down. However, it is precisely this experience of war that has allowed international legal rules regulating war to develop.
The law’s development has been slow. The peace of Westphalia in 1648 ended the 30yrs war and recognized the right to independent entities to exist, but did not outlaw resort to war. Prior to WWI and WWII, when wars were fought between kings and queens with professional armies, war remained romanticized. When war was found between States and peoples, and an opponent’s productive capacity, including civilians, was attacked, the international community moved to apply legal sanctions to those who wage war.
The law of armed conflict has been broken into:
1. Law to war (ius ad bellum); and
2. Law in war (ius in bello).
2. Law to War:
The law to war deals with the legal of starting armed conflict. The rule outlawing aggressive war is a fundamental rule in this area. It is usual to differentiate between the UN Charter and the pre-Charter approaches to armed conflict.
(a) Pre-Charter:
The pre-UN Charter approach was permissive. Two slightly different approaches have been identified:
1. “Just/unjust war” approach. This is inspired by natural law. According to one version of this approach, war that was just was lawful. This approach was not supplemented by any independent mechanism to scrutinize the truth or otherwise of claims leading to armed conflict;
2. “Free for all” approach. Resort to law was not illegal.
The “free for all” approach gained dominance. States may go to war if they felt wronged, but also if they deemed that their interests would be served by doing so. It was considered that international law had “no alternative but to accept war, independently of the justice of its origins”: WE Hall.
However, the first steps against war were taken in the Covenant of the LoN. Article 12(1) provided that in the event of a dispute arbitration, judicial settlement or inquiry by the Council would be used, and that no party would resort to war until three months after the determination.
The major changed was contained in the Kellogg-Briand Pact 1928, which over fifty States became parties to. Articles 1 and II condemned recourse to war for the settlement of disputes and renounced war as an instrument of national policy. Further, by these articles the High Contracting Parties agreed to settle all disputes by pacific means.
League efforts to control the use of force ended in failure. In particular, the League was unable to respond effectively to aggression by Japan against China, Italy against Ethiopia and Germany against Czecheslovakia. It took another cataclysmic conflict for States to reaffirm their opposition to the use of force.
(b) The UN Charter Approach:
By giving the SC a virtual monopoly on the use of force, the Charter sought to take the use of force out of the hands of the individual into the hands of the collective. Unlike the League Covenant, Article 2(4) unequivocally rejects the use of force:
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN.”
Article 1(1) Charter also provides that the purposes of the UN are “to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace”.
The collective measures are those in Ch VII. Under Ch VII the SC can authorize the use of force where there has been a “threat to peace, a breach of peace or an act of aggression” (Article 39).
However, Article 2(4) is without prejudice to the “inherent” right of self-defense enjoyed by States and their allies when confronted with an armed attack from another State.
(i) Scope of Article 2(4):
(A) ‘War’ versus ‘force’:
Article 2(4) nowhere mentions “war”. This is a distinct improvement on the language used in the League Covenant. “War” is a legal concept which describes a situation where belligerents formally declare a state of affairs. Thus, States could avoid the legal consequences of war by not declaring “war”. For example, neither Japan or China declared war in their conflict in Manchuria in the 1930’s.
The use of “force” avoids this legal uncertainty.
(B) Threats of force:
Threats of force are also covered by Article 2(4). There is some uncertainty as to what level of threat qualifies under the Article.
Keeping a State’s armed forces at a high level of readiness to act in self-defence has not been regarded as a breach. However in the Nuclear Weapons Advisory Opinion, the ICJ considered that whether a signaled intention to use force if certain events occur was a breach depends on whether the use of force would itself be illegal – if it would, then the threat of such force would also be illegal. It in turn considered that the possession of nuclear weapons could constitute a breach if the use of force envisaged would be directed against the territorial integrity or political independence of a State.
An ultimatum issued by France and the UK to Egypt and Israel in 1956 demanding a ceasefire within 12hrs would be a threat of force: Harris.
(C) Force:
Any form of armed force would clearly be covered by the prohibition.
Additionally, in Nicaragua (Merits), the ICJ considered that the giving of assistance to rebels may be an indirect use of force contrary to customary law. Liability turned upon the kind of assistance. The US had infringed the rule prohibiting the threat or use of force by “arming and training the contras” but that it had not done so by “the mere supply of funds”. Establishment, organization or control of a rebel force would be a breach: Harris.
Most forms of economic force are probably not covered e.g. refusing to trade with a State. There is, however, a separate rule of international law which prohibits intervention in the internal affairs of another State: Nicaragua (Merits); Corfu Channel Case. Although this principle is not contained per se in the Charter, it is an established rule of customary law with universal application: Nicaragua (Merits). The principle forbids all States or groups of State to intervene directly or indirectly in the internal or external affairs of other States, in particular any act interfering with a State’s right to choose freely in political, economic, social and cultural matters: Nicaragua (Merits). Economic measures may qualify as lawful intervention but would not be caught by Article 2(4).
Supply of funds to the contras by the US would also infringe the principle of non-intervention: Harris.
(D) Force and Territorial Integrity:
The words in Article 2(4) seem qualified. Is it possible for the use of force not to be against the territorial integrity or political independence of a State, or otherwise inconsistent with the purposes of the UN?
It has been argued that certain forms of limited military action, for example a military rescue of a State’s nationals in danger, would not necessarily contravene Article 2(4). For example, Bowett argues that the words having been included must be given their plain meaning.
However, neither the drafting history of Article 2(4), nor the interpretation placed upon it by States and the ICJ supports such a restrictive interpretation. In the Corfu Channel Case, the UK made an argument to this effect and whilst the Court did not specifically consider the issue its condemnation of the UK’s acts are not in sympathy with this argument. Professor Brownlie mounts three arguments against this interpretation:
1. Rather than being words of limitation, they are intended to epitomize the total of legal rights which a state has;
2. It is difficult to accept a plain meaning which permits evasion of obligations by means of a verbal profession that there is no intention to infringe territorial integrity;
3. If there is an ambiguity, the principle of effectiveness should be applied.
Indeed, a further problem with this example is that all States agree under Article 2(3) of the Charter to settle disputes by peaceful means.
The territorial integrity or independence of a State will not be interfered with where it gives its consent to an intervention: Nicaragua (Merits). Thus, consent is one way in which a State may take military action against another State.
(ii) Use of Force Under Ch VII:
(A) Means by which force used:
Under Ch VII, the SC can authorize the use of force where there is a threat to peace, a breach of peace or an act of aggression.
Ch VII envisages military forces actually being placed at the disposal of the SC. For example, by Article 43 UN members undertake to make available to the SC forces or other assistance necessary for the maintenance of international peace and security.
The Cold War meant that this feature was never put into effect. Rather, the SC appears to have generally relied upon an implied power to authorize States to act on the UN’s behalf (e.g. Somalia, Former Yugoslavia, East Timor). This appears to come from Article 42 which provides that if the SC considers sanctions under Article 41 inadequate, it may take such action, including force, as is necessary to maintain or restore international peace and security.
(B) “Threats to peace”:
This phrase has been interpreted broadly. Indeed, threats to peace have been found in what might have been considered to be internal conflicts, such as Somalia and Former Yugoslavia.
(C) Implied authorizations:
If the SC’s Ch VII measures are usually taken by authorizing States to take action, the question arises as to whether authorizations can be implied.
The US, UK and Australia seek to justify the 2003 Invasion of Iraq by reference to the authorization of the use of force against Iraq in SC Resolution 678 which was adopted in 1991 following the Iraqi invasion of Kuwait.
Most international lawyers have rejected this justification. Jules Lobel and Michael Ratner (AJIL) argue against implied authorizations on the following grounds:
- Two fundamental values underpinning the UN Charter – that peaceful means be used to resolve disputes and that force be used in the interest and under the control of the international community and not individual countries – require explicit authorizations.
- Implied authorizations are not supported by state practice, and in fact such claims have been strongly contested. The failure to adopt a resolution opposing the Iraq invasion cannot be deemed dispositive when nay such resolution would have been fruitless in the face of the US and UK veto power.
- Difficulty in divining and attributing motivations to state actors in passing resolutions would make implied authorizations a “dubious way” to implement a basic international norm.
However, some international lawyers have accepted it. William H Taft and Todd f Buchwald (AJIL) write:
“Preemptive use of force is certainly lawful where, as here, it represents an episode in an ongoing broader conflict initiated – without question – by the opponent and where, as here, it is consistent with the resolutions of the Security Council.”
The central question in this debate goes to the interpretation of the relevant resolutions. Analogies with the interpretation of treaties can be drawn, although there are important differences, such as the unilateral nature of SC Resolutions compared to the consensual nature of treaties. There has been little judicial consideration of the interpretation of SC Resolutions. In its Namibia Advisory Opinion, the ICJ considered that the interpretation was a question of fact determined in each case, having regard to:
1. The terms of the resolution;
2. The discussions leading to it;
3. The Charter provisions invoked; and
4. All other relevant circumstances.
(iii) Use of Sanctions Short of Force under Ch VII:
Article 41 allows the use of sanctions short of force by the SC. Such measures may include, “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
Also, nothing in the Charter precludes the existence of regional arrangements or enforcement mechanisms: Article 52. The SC may utilize such arrangements for enforcement under its own authority: Article 53(1).
(iv) UN Charter and Self-Defence:
Article 51 provides:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
Article 21 ASR’s also provides that: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations.”
(A) Is the party an appropriate one to act is self-defence?
The Charter recognizes that States other than the one attacked may respond. The NATO Alliance is based on this principle of collective self-defence.
However, self-defence may not be used entirely by a third party. In Nicaragua (Merits), the ICJ considered that the US could not take measures against Nicaragua for acts of Nicaragua towards El Salvador, Honduras or Costa Rica.
(B) Which obligations may a State avoid by self-defence?
Self-defense may justify non-performance of certain obligations other than that under Article 2(4), provided that such non-performance is related to breach of that provision. However, wrongfulness is not precluded from all obligations – wrongfulness of breaches of obligations under international humanitarian law and in relation to non-derogable human rights provisions are not precluded: [2]-[3] Commentary to Article 21 ASR’s.
A State may not act in self-defence if they are “totally restrained” by an international obligation in that the obligation is expressed or intended to apply as a definitive constraint: [4] Commentary to Article 21 ASR’s.
(C) What may a State exercise self-defence against?
In Nicaragua (Merits), the ICJ held that the right to self-defence can only be relied upon against the use of force of such an intensity to constitute an armed attack. A use of force by armed bands acting on behalf of another State would only qualify if the use of force was on a “significant scale”. Giving assistance to rebels such as by providing them with weapons or logistical support did not qualify as an armed attack justifying the use of force on self-defence. Sir Robert Jennings specifically criticized this in his dissent. He considered that the provision of arms coupled with logistical support was an attack justifying a plea of self-defence. This view is in line with that of Western states, but the definition which the Court relied upon from a 1974 Resolution was a compromise between Western and developing states: Harris.
In Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory, the majority appeared to limit the right of self-defence to the case of an armed attack by one State against another State (so, for example, terrorist acts wouldn’t qualify). This was criticized by Judge Higgins in her separate opinion. It also seems inconsistent with the Diplomatic correspondence between Britain and US over the Caroline incident in 1837. Here, there was no suggestion that the right of self-defence of British Canada was conditional on showing that the US was responsible for the conduct of the rebels operating in US territory.
(D) Limits on self-defence:
Proportionality:
Measures taken in self-defence must be proportional to the armed attack: Nicaragua (Merits); Nuclear Weapons Advisory Opinion.
Proportionality refers to what is proportionate to repelling the attack, not a requirement of symmetry between the mode of attack and the mode of response: Nuclear Weapons Advisory Opinion per Judge Higgins.
Necessity:
Measures taken in self-defence must be and necessary to respond to the armed attack: Nicaragua (Merits): Nuclear Weapons Advisory Opinion.
Immediacy:
Article 51 refers to an “armed attack”, suggesting that any right of self-defense must be against an attack that is occurring, not just a threat which is imminent.
Anticipatory Self-Defence:
Diplomatic Correspondence between Britain and the US over the Caroline Incident in 1837 is arguably opens up a right to anticipatory self-defense. It states that a State relying on self-defense must show the “necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation”. (Diplomatic Exchange between Britain and US over the Caroline Incident in 1837).
Academic opinion is divided. In Nicaragua, the ICJ expressly left the question open and it did not refer to it in the Oil Platforms Case. Arguments in favor:
- Such a right existed pre-Charter
- Bowett: “The history of Article 51 suggests… that the article should safeguard the right of self-defence, not restrict it”;
- Article 51 refers to “inherent right”;
- It seems absurd to have to wait for an attack in an era of missiles which can cross borders in seconds.
- Bowett: “…it is a restriction… which bears no relation to the realities of a situation which may arise prior to an actual attack and call for self-defence immediately…”
Arguments against:
- The plain meaning of Article 51 does not allow it – the ordinary meaning of “an armed attack occurs” precludes action of a preventative character: Brownlie. Henkin argues that “Nothing in… its drafting… suggests that the framers of the Charter intended something broader than the language implied…”
- Intention of Article 2(4) – allowing anticipatory self-defence would create an exception which could swallow the rule prohibiting force.
Israel invoked anticipatory self-defence to justify bombing of an Iraqi nuclear reactor in 1981. It was unanimously condemned by the SC as a breach of Article 2(4) – state practice against anticipatory self-defence?
Harris argues that the differences in divergent opinion would be diminished if the “cumulation of events” theory of self-defence were adopted. According to this theory, action taken to prevent future attacks in the series can be seen not as anticipatory self-defense but as self-defence against one attack that continues to occur. Israel, the US, the UK and South Africa take this view. However, Bowett notes that the SC has consistently rejected it.
Doctrine of pre-emption:
The US’s 2002 NSS appears to outline a use of force beyond anticipatory self-defence, stating the concept of imminence must be adapted to the capabilities of today’s adversaries and that the US will act pre-emptively to forestall or prevent hostile acts.
Most international lawyers reject the legality of this.
- Professor Greenwood argues that imminence needs to be assessed having regard to the gravity of the threat and the speed with which it might materialize, but still holds that the imminence requirement cannot be disregarded;
- Former UK AG Lord Goldsmith wrote: “The concept of what is imminent may depend on the circumstances. Different considerations may apply where the risk if of attack from terrorists… or a threat of an attack by nuclear weapons. However… there must be some degree of imminence.”
It is also notable that the NSS is in de lege ferenda terms (“we must adapt…”). It is also notable pre-emption was not used to defend the Iraq invasion – instead relied on earlier SC Resolution.
Importantly, the doctrine of pre-emption may undermine the prohibition on the use of force generally. Abandoning a requirement of imminence makes the occasion for forceful response “a question for unilateral national decision”: Chayes, The Cuban Missile Crisis. Further, a 2002 House of Commons Foreign Affairs Committee report states that preemption may be taken as legitimizing the aggressive use of force.
(v) Other Exceptions to Article 2(4):
Two other purported exceptions are:
1. Brezhnev doctrine – following the Soviet invasion of Czechoslovakia in 1968, the USSR asserted the right to use force to protect socialism. President Gorbachev effectively renounced this doctrine in 1989; and
2. Reagan doctrine – the Reagan doctrine was said to justify the use of force in another State to preserve or impose democracy. The international condemnation of the US invasion of Panama in 1989 has been seen as a rejection of this exception.
There are two other exceptions to Article 2(4) which have more support in state practice:
1. Use of force to rescue a State’s nationals abroad; and
2. Humanitarian intervention.
(A) Use of force to rescue a State’s nationals abroad:
At least two arguments have been put forward to reconcile such action with the terms of the Charter:
1. Limited action to rescue nationals does not involve a use of force against the territorial integrity or political independence of the target State. As already noted, there are significant problems with this argument.
2. Such actions are a form of self-defence. The threat to a State’s nationals abroad is argued to be equivalent to an armed attack justifying the rescuing State acting forcefully in self-defence: Professor Bowett; Brierly, The Law of Nations.
Examples:
- Israel invoked this principle to justify its rescue of Israeli nationals from Uganda in 1976. An aircraft was hijacked, non-Israeli passengers were released and the hijackers demanded the release of Palestinian terrorists held in a number of countries. Israeli troops flew to Uganda, killed the hijackers and rescued most of the hostages. Ugandan and Israeli soldiers were also killed. The SC was unable to agree on a resolution responding to Israeli action;
- The US relied on this exception to justify its unsuccessful attempt to free its consular staff being held hostage in Iran in 1980, and also invasions of Grenada (1982) and Panama (1989).
Although Bowett and Brierly are in favor of the exception, Professor Brownlie rejects it, particularly on the grounds that it is open to abuse. This concern seems founded. In the 1980 and 1989 invasions of Grenada and Panama, the US went on to remove the governments then in control of those two countries.
Note also that if a State’s nationals are taken by one State to a third State, and the state of nationality wants to use force against a third State, this may take the case outside the pattern normally found in cases of force used to protect nationals abroad.
(B) Humanitarian Intervention:
This involves the use of force to protect the lives of foreign nationals without the consent of the target State.
Judicial opinion:
In Nicaragua (Merits), the ICJ considered that the US could not use force against Nicaragua to ensure respect for human rights in Nicaragua. It considered that whilst collective self-defense was permissible, the US was a non-party and that it could not take measures on behalf of El Salvador, Honduras or Costa Rica, the true victims.
State practice:
Despite this, there is State practice in support of humanitarian intervention.
India & Tanzania:
The Indian invasion of Bangladesh in 1971 and the Tanzanian invasion of Uganda in 1979 were at least partially purportedly justified by this principle.
“Safe havens” and “No fly zones” in Iraq:
The brutal crushing of rebellions in Northern and Southern Iraq by Iraqi Security Forces following Iraq’s defeat in the first Gulf War led to over 1 million Kurdish refugees fleeing to the Turkish and Iranian borders.
On 3 April 1991, the SC Resolution 688 insisting that Iraq allow humanitarian assistance to be given to these refugees. Following this resolution, the US, UK and French troops established “safe havens” in Northern Iraq over the objections of Iraq, even though this deployment was not authorized by the resolution.
UN guards replaced these foreign troops in July 1991. The deployment of UN personnel did have Iraqi consent and was authorized by the resolution. No fly zones were also established in the north and south of Iraq to protect the inhabitants from Iraqi forces, though these were not authorized by the resolution or Iraq.
The UK justified its actions in part by relying on a customary law right of humanitarian intervention.
Kosovo Conflict:
In 1999, NATO intervened against the Federal Republic of Yugoslavia. The 19 member alliance justified its use of force (which had not been authorized by the SC) as an appropriate response to the repression of the ethnic Albanian population in Kosovo. This seems to gather support from the resounding defeat of a proposed SC action condemning the invasion (only 3 States supported). However:
1. Objections could be raised against counting the votes of NATO members in the SC; and
2. The reasons offered by other States for not supporting the Resolution do not support the legality of the NATO action.
There are two ways of viewing this action:
1. An illegal act that was morally justified; or
2. A lawful action pursuant to a new rule of customary international law.
Subsequent:
A GA Resolution on the Outcome of the World Summit in 2005 states at [139] that the international community has the responsibility to take appropriate diplomatic, humanitarian and other peaceful means to help protect populations from genocide, crimes against humanity and ethnic cleansing. However, the international community must do so through the UN and in accordance with Ch VII and VIII.
Further, in 2000 the representatives of 133 States expressly rejected the legality of humanitarian intervention in response to the action in Kosovo. Unless states and commentators are willing to ignore the position of these and other states, the events in Iraq and Kosovo cannot be said to have changed the law: Dr Christine Gray, 2002 EJIL.
Academic Opinion:
Prior to Kosovo, academic opinion was generally that there was no right of humanitarian intervention: Franck and Rodley, AJIL.
Professor Cassesse in a 1999 article in the EJIL characterizes the NATO action as a breach of Article 2(4) but suggests a new rule authorizing force in these circumstances is developing. He suggests that in this case at least 6 criteria must be satisfied:
1. Gross and egregious breaches of human rights, involving loss of life of hundreds of thousands, and amounting to crimes against humanity, either:
a. By/with the support of the Government authority; or
b. Due to the total collapse of such authorities.
2. If crimes result from anarchy, must be proof that the central authorities are utterly unable to put an end to those crimes, whilst at the same time refusing support from other States or IOs;
3. The SC is unable to take an coercive action due to disagreement;
4. All peaceful avenues which may be explored consistent with the urgency of the situation have been exhausted;
5. A group of States (not a single hegemonic power) decides to try to halt the atrocities with the support or at least the non-opposition of the majority of UN MS; and
6. Armed force is exclusively used for the limited purposes of stopping the atrocities and restoring respect for human rights, and not for any goal beyond this purpose.
a. Force should be discontinued following achievement of this;
b. Force should be proportional to the human rights exigencies.
Cassese considered that these stringent conditions were met in the context of the 1999 Kosovo crisis, but that the principles were only emerging and not yet customary. This appears an appropriate view in light of the post-Kosovo practice.
Opponents of non-consensual and non-SC authorized humanitarian intervention are again generally concerned about the prospects of abuse. For example, Jonathan Charney (AJIL states:
“…humanitarian intervention presents grave risks of abuse, as illustrated by virtually all of the past actions put forward in its support.”
In particular, it would be difficult to impartially verify each of the Cassesse criteria.
(vi) Internal armed conflicts:
Article 2(4) does not address internal armed conflict. However, international law does have rules which deal with internal conflicts.
Insurgencies:
It is generally unlawful for a government to use force to suppress a local insurgency. A government experiencing internal difficulties can lawfully seek and obtain military assistance from other States to defeat internal military opposition.
A State which provides military or financial assistance to support an insurgency in another State breaches the international legal rules against intervention and may violate the prohibition on the use of force.
Civil War:
There is confusion over both the status of international law once an insurgency develops into a civil war and also over when such a change can be said to have occurred.
One view is that once a civil war erupts it is for all other States to refrain from assisting the government as it is for the nationals of the State experiencing the civil war to work out their own political destiny.
An exception to this is that if, in breach of the rule, one side is receiving outside assistance, international law allows assistance to be given to the other side.
3. Laws in War:
There are three areas of law regulate the use of force once an armed conflict has commenced:
1. Traditional rules regulating warfare – rules on belligerency, neutrality and wartime reprisals;
2. The Hague rules – the rules of international law that regulate weapons used and how they can be used;
3. Geneva rules – include the rules of international humanitarian law previously considered i.e. protection afforded to particular classes of persons and property in armed conflict by the four Geneva Conventions of 1949 and two Protocols of 1977 which apply to both international and internal armed conflicts.
(a) Rules of belligerency & neutrality:
When States declared war on each other, this immediately created certain legal rights and obligations for belligerents and neutral States. If a State wished to remain neutral, they were required to avoid assisting either side in the conflict. Belligerent States had certain obligations to respect the rights of neutral States, provided that the neutral States complied with the laws of neutrality.
These rules are in a complete state of confusion.
(b) Hague rules:
These rules of international law prohibit or regulate the use of certain weapons in all or particular circumstances.
Relevant treaties include:
- 1899 and 1907 Hague Conventions;
- 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare;
- 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction
- 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
- 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction
Customary rules can also regulate the use of particular weapons. The preamble to the 1899 Hague Convention II sets out a “martens clause” allows for the operation of customary law in this area.
(c) Geneva rules:
It is lawful to kill or injure combatants taking part in armed conflict.
The 1949 Geneva Conventions protect certain persons and property from injury or damage in armed conflict. The four Conventions are:
1. Convention (I) for the Amelioration of the Wounded and Sick in Armed Forces in the Field;
2. Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
3. Convention III relative to the Treatment of Prisoners of War; and
4. Convention (IV) relative to the Protection of Civilian Persons in Time of War.
These four conventions apply only to international armed conflict. However, common article 3 applies to both international and internal armed conflicts. It says:
In the
case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red
Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the present
Convention.
The application of the preceding provisions shall not affect the legal status
of the Parties to the conflict.
The First Additional Protocol deals with the protection of individuals in international armed conflicts, and the Second Additional Protocol deals with internal armed conflicts. The level of protection afforded in international conflicts is much greater than in internal conflicts. The Second Protocol seeks to redress this imbalance.
The Conventions and Protocols all include verification and enforcement mechanisms and give a special role to the ICRC to ensure compliance with the obligations contained in these treaties.
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