LAWS1023 Public International Law

Transcription

1 LAWS1023 Public International Law 1

2 CONTENTS 1! NATURE OF PUBLIC INTERNATIONAL LAW... 6! 1.1! A Working Definition of International Law... 6! 1.2! Is International Law Law?... 6! 1.3! International Legal Persons... 7! 1.3.1! States... 8! 1.3.2! International organisations... 21! 1.3.3! International corporations... 22! 1.3.4! Individuals and other non-state entities... 23! 2! SOURCES OF PUBLIC INTERNATIONAL LAW... 25! 2.1! Overview... 25! 2.2! Treaties... 25! 2.3! Customary International Law... 26! 2.3.1! Constant and uniform usage, accepted as law... 26! 2.3.2! Regional custom... 28! 2.3.3! Evidence of state practice... 28! 2.3.4! UN General Assembly resolutions as evidence of customary international law... 29! 2.3.5! Persistent objector rule... 29! 2.4! Other Sources of International Law... 30! 2.4.1! General principles of municipal law that are applicable to international law... 30! 2.4.2! Judicial decisions (municipal and international)... 31! 2.4.3! Academic writings... 31! 2.4.4! Soft law... 32! 2.4.5! Unilateral declarations/undertakings... 32! 3! LAW OF TREATIES... 34! 3.1! Overview of VCLT... 34! 3.2! The making of treaties... 34! 3.2.1! Overview... 34! 3.2.2! Different forms of treaties... 35! 3.2.3! Analysis of relevant VLCT articles... 35! 3.2.4! Effect of unratified treaties... 36! 3.2.5! VCLT Articles ! 3.3! Reservations to treaties... 39! 3.3.1! What is a reservation?... 39! 3.3.2! Distinction between reservation and interpretive declaration... 40! 3.3.3! Are reservations allowed?... 41! 3.3.4! Acceptance or objection by other parties (art 20)... 41! 3.3.5! Effect of reservation where permitted... 42! 3.3.6! Effect of reservation where impermissible... 42! 3.3.7! Reservations to Human Rights treaties special rules... 42! 3.3.8! VCLT Articles 2, ! 3.4! Observance and application to treaties... 46! 3.4.1! Pacta Sunt Servanda (art 26)... 46! 3.4.2! Third states (art 34-38)... 46! 3.4.3! Amendment of treaties... 46! 3.4.4! United Nations Charter, Article ! 3.4.5! VLCT Articles ! 3.4.6! VCLT Articles ! 3.5! Treaty interpretation... 49! 3.5.1! General rule... 49! 3.5.2! Further confirmation of meaning... 49! 2

3 3.5.3! Restrictive interpretation... 50! 3.5.4! VLCT Articles ! 3.5.5! Interpretation of Peace Treaties Case (Second Phase) Advisory Opinion, ICJ... 51! 3.6! Validity of treaties... 51! 3.6.1! Non-compliance with municipal law requirements (arts )... 51! 3.6.2! Error (art. 48)... 51! 3.6.3! Fraud and corruption (arts )... 52! 3.6.4! Coercion... 52! 3.6.5! Violates rule of jus cogens (arts. 53, 64)... 52! 3.6.6! VCLT Articles ! 3.7! Termination of treaties... 55! 3.7.1! In accordance with the treaty or otherwise by consent (arts 54-59)... 55! 3.7.2! Material breach (art 60)... 55! 3.7.3! Supervening impossibility of performance (art 61)... 56! 3.7.4! Fundamental change of circumstances (art 62)... 56! 3.7.5! Severance of diplomatic or consular relations (art 63)... 57! 3.7.6! Jus cogens (see art. 64)... 57! 3.7.7! VCLT Articles ! 3.8! General provisions on invalidity, termination and suspension... 60! 3.8.1! Procedure... 60! 3.8.2! VCLT Articles ! 4! PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW... 63! 4.1! Municipal Law in International Law... 63! 4.1.1! Municipal Law as a source of customary international law (as state practice)... 63! 4.1.2! Deficiencies in municipal law/illegality under municipal law and international obligations... 63! 4.2! Customary International in Municipal Law... 64! 4.2.1! Transformation or incorporation?... 64! 4.2.2! Crimes under customary international law in municipal courts... 67! 4.3! Treaties and Resolutions of International Organisations in Municipal Law... 69! 4.3.1! The treaty-making process (domestic level)... 70! 4.3.2! Constitutional and legislative considerations... 70! 4.3.3! Statutory interpretation and the presumption of consistency with international law; rebuttal by clear and unambiguous statutory language... 71! 5! STATE JURISDICTION... 74! 5.1! Civil Jurisdiction... 74! 5.1.1! State practice... 74! 5.1.2! Immunities from civil jurisdiction (derived from public international law)... 76! 5.2! Criminal Jurisdiction... 76! 5.2.1! Territorial principle... 76! 5.2.2! Nationality principle (of the perpetrator)... 78! 5.2.3! Protective/security principle... 80! 5.2.4! Passive personality principle (nationality of the victim)... 82! 5.2.5! Universality principle... 82! 5.2.6! Duty to prosecute or extradite?... 86! 5.2.7! International Criminal Court and the primacy of national jurisdiction... 87! 5.2.8! Illegally obtained custody of fugitive offenders... 87! 6! IMMUNITY FROM JURISDICTION... 88! 6.1! Diplomatic immunity and inviolability... 88! 6.1.1! Rationale of diplomatic immunity... 88! 6.1.2! Diplomatic inviolability... 91! 6.1.3! A graduated regime of jurisdictional immunity... 93! 6.1.4! The abuse of diplomatic immunity and inviolability... 93! 6.1.5! Review questions to ask... 94! 3

4 6.2! Foreign state immunity... 94! 6.2.1! Sovereign equality of states and the principle of absolute immunity... 95! 6.2.2! Principle of restrictive immunity... 95! 6.2.3! Overview of the scheme of Australian legislation (in essence adopts the principle of restrictive immunity) ! 6.2.4! Case study: State torture in UK and Australian courts ! 6.3! Immunity of heads and former heads of foreign states ! 6.3.1! Heads and former heads of foreign states ! 6.3.2! Ministers of foreign affairs; other ministers of states? ! 7! STATE RESPONSIBILITY ! 7.1! General Principles ! 7.1.1! Liability of a State for breach of international obligation ! 7.1.2! Legal Consequences of breach ! 7.2! Attribution ! 7.3! Circumstances precluding wrongfulness ! 7.3.1! General ! 7.3.2! Valid consent (art. 20) ! 7.3.3! Self-defence (art. 21) ! 7.3.4! Countermeasures (art. 22) ! 7.3.5! Force majeure (art. 23) ! 7.3.6! Distress (art. 24) ! 7.3.7! Necessity (art. 25) ! 7.4! Mistreatment of foreign nationals (or treatment of aliens) ! 7.4.1! Theory of responsibility ! 7.4.2! Standard of treatment ! 7.5! Invocation of the responsibility of a state ! 7.6! Diplomatic protection ! 7.6.1! Concept of diplomatic protection ! 7.6.2! Nationality of claims ! 7.6.3! Exhaustion of local remedies ! 8! USE OF FORCE ! 8.1! General ! 8.2! General prohibition ! 8.3! Overview of lawful use of force ! 8.4! Self-defence ! 8.4.1! Conditions for exercise: armed attack, necessity, proportionality ! 8.4.2! Pre-emptive self-defence ! 8.4.3! Collective self-defence ! 8.5! Humanitarian intervention and the responsibility to protect ! 8.6! Collective security measures through the UN ! 8.6.1! Security Council authorisation for member states to use force ! 8.7! Case study: Invasion of Iraq ! 8.8! Review ! 9! INTERNATIONAL DISPUTE SETTLEMENT ! 9.1! General Principles ! 9.1.1! What is a dispute? ! 9.1.2! The obligation to settle disputes peacefully ! 9.2! Methods of Dispute Settlement ! 9.3! The Role of the International Court of Justice ! 9.3.1! General ! 9.3.2! Composition ! 9.3.3! Access to the court ! 9.3.4! Contentious jurisdiction ! 4

5 9.3.5! Provisional measures ! 9.3.6! Advisory jurisdiction ! 9.3.7! Third party intervention ! 9.3.8! Review of Security Council decisions? ! 5

6 6 1 NATURE OF PUBLIC INTERNATIONAL LAW 1.1 A Working Definition of International Law International law is a binding regime of principles and rules that regulates the relations among states, and individuals and other non-state entities o Examples: whether the invasion of Iraq was lawful, conduct of diplomatic relations between states It does not regulate private relations between individuals or between individuals and the state (however, it may inform the regulation of those relations) Principle of sovereign equality of states under intn l law o Charter of the United Nations, Art 2(1): the United Nations is based upon the principle of the sovereign equality of all its members! I.e. no state is better than another from the perspective of intn l law o UNGA Declaration on Principles of International Law Concerning Friendly Relations (1970): All states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political, or other nature o Corollaries of this principle are that no state:! May compel another to submit to judicial settlement of a dispute between them, or! Is bound by a new intn l rule unless that state has consented to it Features: o There is no parliament/legislature overlooking intn l law o While there is an intn l organisation, the United Nations, it is nothing like a legislature that has super powers o Regulates human rights as well How does intn l law affect our lives? o International telephone calls! Able to do this because an intergovernmental organisation was created to allow individuals to place international calls o International mail o International air travel! Countries enter into air service agreements (treaty) planes can only fly to a particular country if there is one in place between their country of origin and country of destination o Passports and visas 1.2 Is International Law Law? There are two contrasting perspectives on the effectiveness and overall adherence to intn l law: 1. Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time Louis Henkin, How Nations Behave (1979) The absence of an international legislature, courts with compulsory jurisdiction, and centrally organised sanctions have inspired misgivings [as to whether international law is law] HLA Hart, The Concept of Law (1994) Arguments against intn l law being law: o International law depends on the consent of subjects for its existence o There is no supreme legislature for the creation or amendment of international law o There is no effective machinery for enforcement there is no international police force, and there is no supreme court of international law which has compulsory jurisdiction

7 ! John Austin (1832): intn l law is a positive morality (i.e. it can t be enforced)! HLA Hart (1961): intn l law has primary rules but lacks secondary rules Secondary rules are change and adjudication e.g. a valid and effective court system o The rule of international law are difficult to ascertain o States often do not comply with international law Arguments for intn l law being law (a response): o Austin and Hart provide a flawed and unhelpful definition o Even if the definition were accepted, much of public international law is qualified! Mostly adhered to! Most states comply to sanctions by the ICJ it is in their interest to comply o States regard international law as binding o Increasing number of international courts/dispute settlement procedures with compulsory jurisdiction! In a sense Austin and Hart are right, there is no one court with unlimited jurisdiction but there are courts that have been set up under treaties! E.g. ICJ does not have compulsory jurisdiction, but many states regard it as compulsory with Optional Clause Declarations! E.g. International Tribunal for Law of the Sea! E.g. ICCPR " can hear complaints from individuals 1.3 International Legal Persons The entities with the capacity to act in intn l law are: states, international or intergovernmental organisations, trans-national corporations, individuals, non-governmental organisations (NGOs) International legal personality is best thought of as a set of capacities, including: o The capacity to bring claims for breaches of the law o The capacity to enter into international treaties o The capacity or entitlement to claim privileges and immunities from national jurisdictions and o The capacity to contribute to the formation and customary international law by practice and opinion Traditionally only states have had this set of capacities e.g. individuals can t bring claims " states often act on the international plane on behalf of their nationals by asserting diplomatic protection o Mavrommatis Palestine Concessions (PCIJ, 1924): By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of international law! Even though the individual has suffered a wrong by the UK government, it was not the rights of the individual that were disputed but the rights of Greece that were not upheld Recent developments: o Framework for the international protection of HR o International courts and tribunals before which individuals have standing to bring international claims o Emergence of a system of individual responsibility for the commission of international crimes o International organizations may possess objective international legal personality Range of participants in the intn l legal order " not saying that they all have full international personality like states, but may have certain capacities to act on the intn l plane 7

8 States Generally Montevideo Convention on Rights and Duties of States 1933 Article 1 The State as a person of international law should possess the following qualifications: a) A permanent population b) A defined territory c) Government d) Capacity to enter into relations with other States Considerations Convention is commonly accepted as reflecting, in general terms, the requirements of statehood at customary intn l law The term state may be given a different meaning for the purposes of a particular treaty Permanent population o Doesn t mean it can t change migration is a fact of life o E.g. microstates are accepted Defined territory o Control of territory is the essence of statehood o It is not necessary for an entity to have exactly defined or undisputed boundaries either at the time it comes into being or subsequently o See Island of Palmas Government o Need a certain form of organisation o Not strictly applied o State that currently has problems of effective government is Somalia Capacity to enter into legal relations with other States o Legal independence! When the Montevideo Convention refers to this capacity it is referring to independence as that term is understood in Judge Anzilotti s opinion, Austro- German Customs Union Independence in law from the authority of any other state (and hence the capacity under its national law to conduct relations with other states) This is obviously the standpoint of the Treaty of Saint-Germain when it proclaims the independence of Austria despite the many serious restrictions it imposes upon her freedom in the economic, military and other spheres. These restrictions do not put Austria under the authority of the other contracting States, which means that Austria is an independent State within the meaning of international law! North Atlantic Coast Fisheries case Permanent Court of Arbitration stated told hold that the US, the grantee of the fishing right, has a voice under the treaty granting the right in the preparation of fishing legislation, involves recognition of a right in that country to participate in the internal legislation of Great Britain and her Colonies and to that extent would reduce these countries to a state of dependence o There needs to be factual independence as well! Where factual dependence by one state upon another is so great that it is really no more than a puppet state " will not be treated as meeting the requirement of independence E.g. puppet state will not be recognised! Lauterpacht gives Manchukuo as an example

9 Manchukuo came into being after Japan invaded the Chinese province of Manchuria in 1931 Following year Japan recognised it as an independent state Manchukuo But Japanese officials are prominent and Japanese advisors are attached to all important Departments Few recognised it as a state o However, not an absolute concept Failed states e.g. Somalia Thurer gives three elements from a legal and political point of view: a) Geographical and territorial aspect! They have internal and endogenous problems! Disintegration and destruction of states b) Political aspect! Namely the internal collapse of law and order! Total or near total breakdown of structures guaranteeing law and order c) Functional aspect! Namely the absence of bodies capable of representing the state at the intn l level AND of being influenced by the outside world Could be said that the failed state is one which, though retaining its legal capacity, has for all practical purposes lost the ability to exercise it What is noticeable is that failed states (Afghanistan, Lebanon, Sierra Leone), have continued to be recognised as states during their time of failure State sovereignty over territory, maritime zones and airspace TERRITORY Title to territory is one of the most important issues in international law Having a defined territory is one of the criteria of statehood (Montevideo) Fundamental concepts such as sovereignty and jurisdiction can only be properly understood in relation to territory Five modes of acquisition of title to territory: a) Occupation Occupation is a method of acquiring territory which belongs to no-one (terra nullius) 1. The occupation must be by a state and not by private individuals 2. The occupation must be effective 3. The occupation must be intended as a claim of sovereignty over the area Western Sahara [1975] ICJ Rep o Claim: Morocco claimed that it had legal ties with Western Sahara amounting to sovereignty at the time of its colonisation by Spain in 1884 " essentially does Morocco or Spain have territorial sovereignty o Question 1: Spain s claim! Occupation put to the test in this case! A determination that Western Sahara was terra nullius at the time of colonisation by Spain would be possible only if it were established that at that time the territory belonged to no one in the sense that it was then open to acquisition through the legal process of occupation! At the time of colonisation, it was occupied by tribes and thus not terra nullius! Hence, Western Sahara was not occupied by Spain! Therefore, Spain has no claim to Western Sahara o Question 2: Morocco s claim

10 ! Morocco claims that historical material suffices to establish Morocco s claim to title based upon continued display of authority [Eastern Greenland Case]! Like in Eastern Greenland Case, Permanent Court stated that claim to sovereignty based upon continued display of authority involves two elements that need to be shown: 1. The intention and will to act as sovereign 2. Some actual exercise or display of such authority! Court examined the evidence and found that there was evidence of personal allegiance but there was no political authority of the sort associated with sovereignty! Thus, no legal ties and no title to territorial sovereignty b) Occupation often preceded by discovery Clipperton Island case (1931) a. Arbitration between France and Mexico b. Uninhabited place south-west of Mexico. France claimed it. They didn t leave a flag and then sailed to Hawaii and journal article in English language. Didn t do anything else. c. 40 years later, France discovered that 3 people were on the island and a US flag d. US said they didn t intend to claim sovereignty. e. Mexico sent a gun-boat and made them raise the Mexican flag. France reminded Mexico that they already had sovereignty over them. f. Clipperton had been terra nullius when France discovered it. Had France abandoned its claim by not doing anything? France may have needed to show possession and active occupation? g. Because the French had, after discovery, published and notified the world at large, their title was good to the island and didn t need to actually occupy it. h. Discovery is generally not enough but depends on the circumstances b) Acquisitive prescription This relates to territory which has previously been under the sovereignty of another state Criteria (Botswana/Namibia) [1999] ICJ Rep o The possession must be an exercise of sovereign authority, so the territory must be occupied by the state, and not by private persons o The possessions must be peaceful and uninterrupted so the former sovereign must acquiesce to the new state of affairs, and there must be no protests by the dispossessed sovereign o The possession must be public so that all interested states can be made aware of the possession and o The possession must endure for a certain length of time Island of Palmas case (1928) o Facts! Dispute between US and Netherlands re: title to island! US believed it to be part of the territory by cession under the Treaty of Paris, transferring Spain s sovereignty over the island to it.! Spain s original claim to the island was by discovery, so this title was transferred to the US. o Continuous and peaceful display of state authority! US argument based on Spain s discovery could not prevail over the continuous and peaceful display of State authority of Netherlands! Case indicates that the state that can show such a display of State authority in the period leading up to the critical date (i.e. the date on which the location of territorial sovereignty is decisive here it is the Treaty of Paris; gave entitlement to Dutch) can defeat any other claim whatever its basis! However, it has to be a peaceful display of authority i.e. one without protected by interested states of the sort that prevents prescription and of sufficient duration to establish a prescriptive title 10