Traditional Def'n of Int'l Law
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TRADITIONAL DEF'N OF INT'L LAW
IL is a binding and fully enforceable set of norms governing relations b/w sovereign states.
Set of norms:
Certainly not static. Product of the system included in the def'n of IL. Can't ignore the process. An aspiration towards controlling behaviour.
Set of norms is an impoverished def'n. Norms are often quite abstract, difficult to pin down. Need code provisions, doctrine, cases, institutions, customs, rational & historical context to understand legal context.
Binding:
IL works voluntarily: subjects only bound by what they consent to. Social contract b/c can chose whether to participate in a partic. legal system but, once entered into K, bound. Theory: the strongest & weakest states will be bound alike. Not true (eg. US funding Contras, USSR in Afghanistan) Generally, IL obeyed.
International politics: describes rel'ns b/w states as a sociological fact.
International law: normative approach that determines how states should act. Tries to achieve equality, all states should be bound equally. This is theoretical however b/c not as evident in practice. (nuclear force, econ. sanctions)
IL is not always perfect, not always a balance of power. A form of social order. Tries to impose constraints. Measured in terms of external criteria. Rule of law: convincing that a norm exists.
Enforceable:
Difficult to say b/c no int'l police, no clear authoritarian affirmation, no World Supreme Court capable of enforcing norms. Most int'l law is enforced but the mechanism is rather weak. This is partic. true when breaching party is the stronger one. Enforcement should not only happen in deciding on then existence of int'l law. We can't enforce IL to the extent we might like. However, this does not render IL non-existent or futile. IL is enforced daily (phones, import/exports, broadcasting, enviro agr'ts, air travel...) Enforceability is not the only way of defining IL, can also see law as a whole, a kind of social ordering that seeks to impose normative restraints upon the free actions of persons.
IL WORKS VOLUNTARILY. Subjects only bound by what they consent to. But it is generally obeyed. RHETORIC & persuasion are the connection b/w bindingness & enforceability.
B/W sovereign states:
Today this def'n has been expanded to include intergov'tal organizations, NGOs, corporations and even individuals. National interest is a fundamental notion that justifies international incidents. (legitimizes self-defence, preventative self-defence, war, national pride). The gov't decides what is national interest. States use ~ strategies to outline IL:
UN is useless. The state needed to take the action thus no violation of IL. IL not always being clear, states take advantage of this politically the rules contain exceptions and justifications, eg. legitimate defence (art.51) creates many problems. Are there really norms or just justifications?
We have a relatively effective int'l legal system but it has flaws. Power supersedes law. Power used to avoid legal oblig'ns is not an unusual event. This doesn't mean there's no system. All legal systems are imperfect models.
Process of decision-making States consent to a set of norms consensualism: every state must be together. multilateralism: permits every state to speak (Canada favours it), coordination, compromise, negotiation
2 TRADITIONS IN IL: (i) LEGITIMAcy
Must evaluate, not just whether power exists, but whether it's legitimate. There is a preoccupation w/ sources to seek legitimacy. justification vs. legitimacy
Art of rhetoric imp's to convince others of validity of your position. (Plato) Use treaty and customary law to show that norm you're asking to be enforced is the real norm. Treaties are often uncertain in their terms. Customary law becomes even more imp't. (ii) AUTHORITY Who can validly & authoritatively commit in IL. IL is not always enforceable. 3 CATEGORIES OF IL: (i) regulation of conflicts of interest: int'l conflicts (borders, ideologies, resources, arms control, trade agr'ts, human rights...) Doesn't prevent but rather shapes conflict. Power becomes all imp't. It is weaker b/c of national interest. Too much focus on this area.
(ii) cooperative law: states cooperation, bilateral & multilateral treaties (geostationary orbits, TV, telephone, diseases...) "humanitarian armed conflict" (Red Cross) MARSAT US-USSR satellite agr't to help coast guards. Functions well.
(iii) organizational law: const'l law at int'l level. States as parties to agr'ts (UN, UNICEF, WHO, EEC). Allows thing to take place that otherwise couldn't. For the most part, functions well.
Maastricht Treatv set both substantive norms and institutions.
(i) more integration; (ii) social charter; (iii) democratization; (iv) economic liberalism; (v) human rights
See move away from defence (as in Conference on Security and Coop in Europe which arose out of early 1970's, Warsaw Pact, NATO, focus on disarmament) towards democratization, human rights, economic integration. 1975 Helsinki Final Act rep'd the 1 st concrete product of CSCE which included a human rights dimension. Now seeing overlap b/w mandate of CSCE & EEC, but move away from defence in MT to HR. Maastricht Treaty is important b/c if unified, Europe could be the most powerful block politically and economically.
BIG Q: WHAT IS PURPOSE OF IL?
If it is more than state security, then who is served by IL? If affect daily lives, is its purpose really to protect states? Def'n: Capacity to exercise rights and duty to perform obligations within the structure of the international legal system. Includes the capacity to participate in the process of law formation.
This def'n is problematic. What is capacity? Trad'lly only states, but this is outdated. Capacity seems to be rather static concept. Alternative would be to look at it as who has standing, right to participation.
A. THE STATE
"Constitutive theory of recognition" The state is created by a formal recognition of the European states.
"Declaratory theory of recognition" The state exists before this recognition that is but a formal acceptance of an existing sit'n.
Montevideo Convention; see typed summary, p.3 Gives the necessary conditions for statehood.
Conception of the state is changing. Resistance to the MT based on state defined in terms of common history, culture, language to ensure their survival.
2 types of problematic states: (i) federal (ii) trust
(i) Federalism can create problems b/c of separation of powers. Labour Conventions case
Canada signed & ratified a convention re labour standards. Inadequate negotiations w/ prove. Some prove don't implement the provisions. The feds can't implement a treaty unless have internal powers to do so. Canada cannot therefore guarantee treaties. It can find itself in breach of treaties b/c doesn't have powers under POGG to ratify & implement treaties.
Quebec language legislation valid under domestic const'l law but could be challenged under IL (ICCPR + Geneva Human Rights Committee: can't discriminate based on language).
Provs have Itd. ability to enter into int'l agr'ts (usually culture, technology) Accorded by feds to the prove. Possible solutions: -conditional ratification -negotiations w/ the prove -formation of influential political groups -"federal state clause" valid if of fed. competence
-try to prove its an area of fed jurisdiction (POGG) but SCC wouldn't accept this and dangerous for ss.91&92 powers. trust territories = further problem of statehood:
Colonial mandate system dies w/ end of League of Nations, governing "uncivilized colonies", exploitation & condescension.
UN installs a new system: the trust, explicit goal to help territories achieve independence but paternalistic. Nonetheless, UN more successful than the Lot N.
One problem: Namibia, see case p.4. (S.Africa breached original mandate of treaty (apartheid = int'l crime) thus could be revoked. Sec Council completely w/in its powers to order SA to leave. Binding on whole int'l community.
B. MULTINATIONAL CORPORATIONS
Have very Itd. international personality. Difficult interplay b/w public & private int'l law.
Bhopal disaster. Does US (Union Carbide) or Indian court have jurisdiction? India wants US to have jurisd'n b/c damages would be higher.
2 aspects:
(i) corps owned by states- what is their status? b/c enter into private K law agr'ts then when breach they argue that not subject to same laws. Kg. Canada Wheat Board. Canada has policy not to deal w/ Myanmar b/c of gross human rights violations. But Crown Corp Petro Canada enters into K w/ Myanmar. Have not yet resolved the issue of inter-rel'nship b/w Crown corp & state policy.
Nationalization - Which laws should Govern Ks b/w state & foreign corn?
Many expropriations, partic in Middle East where justification = historical exploitation of the people therefore could exprop w/ or w/o compensation.
How to contest nationalization of a corp'n?
Illegal. Don't want to rely on domestic law of nationalizing state so try to internationalize the K. Apply IL, custom, or general principles of law (pact sunt servanda) or Lex mercatoria (international commercial law ). If argue IL, must prove that corp has int'l legal personality. Interntl'n of the corp'n done by: (i) nature of the K (only a few cases)
(ii) operation of law (no law actually, flawed argument) (iii) K b/w state & corp'n (declaratory theory)
(iv) Only moderately plausible argument is that, by entering K w/ state, corp acquires very Itd. int'l legal personality only opposable to that state.
If Problems: (i) negotiate (ii) look for arbitration or other dispute settlement clause b/c any good Ks have arb'n clause, (unlikely that have recourse if no arb'n clause). If have arb'n clause, can refer dispute to arb'n tribunal/institution (eg Int'l Chamber of Commerce) w/ its own arb. rules or clause might have its own rules. Not binding but has weight. (iii) lobbying to own gov't for compensation
(iv) could resort to trad'l "doctrine of espousal of claim": get one's own gov't to represent corp'n ~ the state through diplomatic rel'ns but unlikely that will be gov't priority.
(v) could argue that corp's own gov't has expropriated b/c refuses to apply existing remedy.
Even if win, enforcement, obtaining compensation is a problem. Could suspend payments under another K. Try to enforce dec'n in state's or corp's courts. May also have leg'n saying can't enforce dec'n ~ Crown. Has state signed the NY Convention of 1958 on the Recognition of Arbitral Awards.
Reflects the Itd. int'l personality of corp'ns. - Problems w/claiming corp has int'l legal personality
(i) Only Western states investing in developing states arguing for application of IL. Protects developed states.
(ii)Not much to do in cases of exprop by developing state.
(iii) Selective participation. Corps want the benefits of int'l legal personality w/o the obligations. Only claim int'l legal personality & invoke IL when benefit not when have a duty to perform. Much pressure now w/ int'l environmental law to make corps int'lly responsible (eg. Union Carbide-Bhopal disaster).
C. INTERNATIONAL INTERGOV'TAL ORGANIZATIONS
Very imp's today. Proliferation of int'l orgs. Many focussing on same issue. Is this efficient? Every int'l organization seems to be taking on a heightened political agenda.
Legal personality:
(i) domestic legal personality. UN Charter art.104: legal capacity to give effect to their functions. (exception: diplomatic immunity).
(ii) int'l legal personality: UN Charter silent. Reparations Case, see summary, p. 5 2 important points:
(i) Test: function of organization. Every int'l org'n has int'l legal personality & capacity but extent depends on function of org'n. State has full legal capacity. Int'l org has Itd. int'l legal capacity. UN has broad legal ILP b/c has broad functions. Has more expansive role.
(ii) UN has objective legal personality. Consent no longer a basis of oblig'n in IL. Under old concept of IL, UN could not have claimed compensation for its reps. Now, opposable even to non-UN members, not issue of consent.
D. NGOs
No formal role as shapers of IL but UN Charter Art.71: can participate in IL as consultants. UN ESC to oversee economic & social matters, permits consultative status to NGOs = explicit recognition that have role to play as consultants. Geneva Human Rights Commission: no voting rights but can intervene, great influence (eg. Red Cross, > 120 NGOs at annual meeting).
NGOs becoming more effective at marshalling public pressure 8 role becoming more important. Should not be ignored in the future.
International Aboriginal Organization.
E. INDIVIDUALS
The biggest challenge to trad'l conception of IL comes from indivs seeking to participate in IL. Recent development, past 20 years, began w/ concept of individual int'l responsibility. Can be held responsible if violate IL. Used for crimes ~ humanity (most innovative), ~ peace, ~ customs of war. Individuals increasingly have rights and not just obligations.
Nurnberg War Crimes Tribunals Implicit that indiv owes duty to int'l community. 2 major breakthroughs:
— (i) indiv responsibility; (ii) int'l community, humankind; obs owed not just to states but also to humankind, indivs. Prob w/ NT: can't have retroactive laws. To what extent do we want law to be static. Some people will be sacrificed as it evolves. JUSTICE has become central factor in IL, outweighs negative aspects. Not a primary consid/n before 1 940's. ICCPR, ICESR, Optional Protocol central HR treaties for indivs. Problems: very few ratifications, states using them are not the abusers, HR Committee has no enforcement mechanism, no jurisd'n to act, only political power.
STATES ARE STILL THE KEY ACTORS IN IL & STILL INVOKE SOVEREIGNTY TO IMMUNIZE OR PROTECTTHEMSELVES.
A. SELF -DETERMINATION
Groups fighting for liberation 8 usually statehood. Toope says quite conservative b/c groups just wanting to become states, not challenging the concept of statehood. Almost always linked w. 19thC European ethnic state even though associated w/ 1 960-70s liberation. UN Charter Art. 1(2) rights & S-D.
1960 Resolution 1 51 4 Independence to colonial people & territories. Art.2 all people have a right to SD. Clear that S-D related to decolonization. But if that was It imposed on S-D, could say process of S-D finished. Has taken on a much broader conception since 1989 (Soviet break-up). Should re-examine the concept of statehood.
Believes in indiv rights & democracy. Interested in notion of S-D b/c relates to rel'nship b/w individual & state & groups.
Indivs not the only imp's entity, also community has intrinsic value. If accept that both indivs & group are imp's than recognize that indiv helps define the group. Defining indiv: who indiv is in rel'n to others.
Moral claim to S-D based on arg't that one's group has been significantly challenged or repressed such that it can no longer serve the constitutive function, serve as something strong & valuable. Kg> Can abor'l peoples don't know their history, culture anymore.
Language imp's in Quebec b/c has become a dominant feature in defining oneself. Notion of a people is basis of S-D. Q how to define a people.
Michael Walzer
Can't define oneself in terms of being in 1 group or another. Other imp's aspects- spheres of justice- quasi-legal groups (hockey w/ rules, francophone...). All attachments help define the indiv.
- Mohawks
Revendicated right to S-D. Trad'lly did not have right. Canada not a colonial power so can't apply principle of decolonization. S-D no longer linked to decolonization. Problem of representation: Band Council? Western Sahara Case S-D must be voluntary, expressed freely to people. How to manifest this desire: (i) declaration of independence (ii) free-association w/an independent state (iii) integration w/an independent state
Palestine Is there a people? If so, who represents it? How far can the right to S-D go? Use of force?
S-D = code word for sovereignty. Usually assoc'd w/ rights & responsibilities. To be free from any form of interference b/c their sovereign 8 equal. Principle of non-interference.
B. USE OF FORCE
Does a people striving for S-D have the right to use force contrary to UN Charter art.2(4)? 2 ~ perspectives: (i) Use of force is legitimate when a people is fighting to become a state. (ii) In striving for S-D, a people has a responsibility towards states that it attacks. Art.2(4) would be retroactive.
C. RIGHTS & DUTIES OF STATES
-right of sovereignty -right of equality -right not to be interfered with -duty not to interfere, no aggression; Declaration on Friendly Relations -duty to negotiate treaties in good faith -duty to abide by customary law.
Populations won states. Challenges doctrine of Non-lntervention. No consensus anymore that non-intervention is absolute rule.
Declaration on Friendly Relations Not a treaty, only a declar'n thus not binding. Old premises of IL: equality, sovereignty & non-intervention. If abide by these 3 will have friendly rel'ns. No state has rights to intervene directly or indirectly in internal or external affairs of other states. Declar'n used all the time by UN b/c easier for states to express will when nonbinding. But may be evidence of customary law, opinio jurist Kg. Universal Declaration on HR, must abide by at least some of its provisions b/c its custom.
Resolution = not binding, Declaration or Charter = very important, even if not entirely binding. Nicaragua Case, see summary, p.13
Broadened the def'n of armed attack. US mining harbour (eco sanctions or armed attack?) & financing the Contras (supporting S-D movement or equated w/ armed attack?). Court looks to 1974 UNGA Resol'n on Definition of Aggression: use of armed force to threaten political independence, terr soy. integrity of another state. Narrow def'n. Crt takes broader def'n than Art.2(4) use of force, & includes financing of a revolutionary group. US breached IL.
Use of force generally condemned but there are justifications.
Justifications for the use of force:
(i) Art. 51 Legitimate self -defence
Much more common justification for use of force. Very Itd. provision. Legitimate preventative self-defence is a right of states but must be proportionate & necessary.
Caroline Case, see summary p.12
Pre - emotive right of self -~. Proportionality: b/w threat & response to threat. (Is proportionality in rel'n to force itself or response to threat?) Also Gen Powell's Doctrine of Overwhelming Force. Necessity: reasonably apprehended threat of force being used ~ state.
(ii) Collective use of force. UN Collective measures doctrine response to another states aggression, must have threat to Int'l peace as a justification, external breach of peace. If internal, no justification, eg. Yugoslavia. Only SC can act b/c has #1 resp. for maintenance of int'l peace (Art.24). Veto becomes very imp't.
(iii) Protection of citizens in a foreign state
This exception includes limits: proportionality, number of citizens in danger, acts in question of foreign state, not an excuse for invasion. (eg Israeli invasion of Uganda to get out hostages)
(iv) Humanitarian intervention
Protection of individuals. State A intervening in state B violating rights of B's individuals. Must demonstrate a threat to the peace (Art.24) Sec. Council has a right of veto.
Korean Crisis
Military force. Strategic error of USSR by boycotting the SC meeting & dectn to invade.
(v) Right of Veto - For: Represents reality: great powers. Conservatory. When all 5 members in agreement, dec'ns have more power. Encourages compromise. Sober second thought. Elite have a greater power. Against: Doesn't reflect realities in today's world. (Wrong states as permanent members) Prevents dec'n making. Against equality of states.
Reprisals illegal in IL. (eg US bombing of Libya)
Sources of Iaw, summary p. 18 Statute of the ICJ, Art.38 sources of law: (i) conventions & treaties (ii) custom (iii) general principles (iv) judicial dec'ns & doctrine
* No formal hierarchy. \\But always look first to treaty & customary law.
The clarity of this provision doesn't reflect the real method in which norms are created. The context is crucial.
Schwarzenberner (legal positivist) creation of IL= {treaties + custom} determination of IL= {decisions + doctrine} No stare decisis in IL. In practice, though, dec'ns are almost always followed.
A. TREATIES & CO NVENTIONS
States have a crucial role in formation of treaties b/c, apart from a few int'l org's (UN), it is the only entity capable of being party to a treaty. (ace. to Vienna Convention). Individuals, peoples, corp'ns, NGOs all have influence but must act through the state.
Treaties are important sphere of IL
(i) Custom must be recognized. States seem to like treaties b/c they're a matter of parties consent, not obliged to sign.
(ii) Treaties offer more certainty to the extent that positivistic, express rules in written form but also vague thus allowing states to interpret them in a unilateral fashion.
(iii) Offer more control to the states to define the law 4 categories of treaties: (i) K-ual treaty, resembles a private K, commercial
(ii) dispositive treaty, control, regulation of a regime, partic sector (eg. Mtl Protocol on the Ozone Layer)
(iii) constituting treaty, based on a document, eg. UN Charter
(iv) law-making treaty, codifying treaty, covers a sector of int'l law, eg. Law of the Sea Convention, Vienna Convention on the Law of Treaties
Treaties can be multilateral or bilateral (except L-M treaties) Don't have the same exigencies as private law Ks. US likes bilateral, Canada prefers multilateral.
Vienna Convention
Only ratified by ~ 50 states. Can be considered proof of existing custom. Nuclear Tests Case, summary p.20
France not party to NT Ban Treaty. Continuing NTs. France prez declares intention to cease. But they still continue in violation of treaty. Unilateral declaration of high official, including prez, can amount to a binding oral agr't. No need to show quid pro quo nor that other party agreed. Strange that this is valid in IL & not in common or civil law (except for K "de donation"). Crt. concerned ret lack of capacity for enforcement. Doesn't like to make declar'ns of customary law b/c, if breached, would embarrass ICJ. France would not respect it if it was only a custom.
According to Nuclear Tests case, there are no formalities for law of treaties. But this is not entirely true though b/c Vienna Convention sets out steps to follow in creating a treaty & is central to T-making. (i) negotiators must have authority to do it (ii) must follow process for binding accepted by states (a) must be in writing
(b) signature (c) ratification: int'l & domestic Signature
Doesn't bind the state unless explicit in the treaty. At the least, shows intention to ratify, to be bound, that states will try to commit themselves. Signature = 1st step towards the binding of a treaty. In federal state, creates obligation to present treaty for ratification, no ob to ratify. Understanding that won't do anything ~ treaty. But hard to enforce.
Implementation of treaties Bilateral: once signed & ratified
Multilateral: must look at terms; if nothing is established, it is once all parties have signaled their intention to be bound.
Can't apply a treaty not yet implemented but it can serve as proof of a custom.
Vienna Convention (art.18)
The state not bound but must do nothing to frustrate the object of the treaty. "moral duty", pacta sunt servanda, must act in good faith. Reservations, summary, p.20-21
State refuses to be bound by a certain clause in the treaty. (almost entirely for multilateral treaties). Must make a unilateral declaration. Must be in writing. No obligation to advise all parties to the treaty.
Reservations to the Convention of Genocide summary p.20.
Established the rule: how to make reservation, its effects. Canada accepts the reservation of France. The reservation applies b/w C & F. Reservation does not apply b/w C & 3dPs. C refuses the reservation. F is party to the treaty unless C expressly says F is not.
VCLoT, Art.20(4)(b) 2 steps to reject a reservation: (i) express rejection (ii) say won't treat reserving state as a party Imp't for custom. Affects bilateral rel'ns.
Goal of the notion of a reservation (i) efficiency: have sufficient # of states as signatories
(ii) flexibility: the majority of clauses are accepted by majority vote, the minority must have certain rights
(iii) multilateral treaty doesn't offer a balancing of interests like a bilateral treaty (Toope disagrees w/this)
Vienna Convention Must ask 2 Qs: (i) Is the reservation compatible w/the treaty's object? If yes, must be rejected. (ii) Is there a clause forbidding (Art. 19) or limits (Art.20) the reservation?
Reason for objecting to a reservation: proof of custom.
Effects of treaties
Pacta sunt servanda. Treaty must be performed in good faith. VC, Art 3 4 says has no effect on ad Ps but this is not entirely true. VC, Art.34-37, summary, p.22 Re binding of 3dPs.
Free Zones Case, summary, p.22
Geneva cut off from the rest of Switzerland by 2 small district held by France. S accepts "free zone" in 1815. France claims no more "free zone". Ratio: K is formed by acceptance of the benefits (by F). Can't have stipulation for 3dP. When binding 3dPVC, Art. 34-35 (i) look at 3dP's intentions;
(ii) Was there acceptance by 3dP to those benefits?
Can have verbal, implicit acceptance (if intention to benefit, safe to assume acceptance unless K stipulates need for explicit recognition). For obligations, acceptance of 3dP to be bound must be in writing.
Interpretation of treaties
VC, Art.31-32, summary, p.23: good faith, ordinary meaning to terms, objects purpose, supplementary means, circumstances.
4 elements of T interpretation: (i) pacta sunt servanda, VC Art.26
(ii) must be performed in good faith
(iii) rhetoric
(iv) reasonableness
Different approaches to interpretation
(i) literal/ordinary meaning of words: text. Difficult to use b/c don't all have same idea of def'n of a word, translation not an exact science, it is a matter of interpretation
(ii) intention. Go to travaux preparatoires, negotiations, legislative history. Doesn't factor in social, economic...changes.
(iii) purposive approach, goals. Focuses on policy. Judge becomes legislator. Interpretation that should be made.
Judges use all 3 approaches which can cause some problems.
*Use all methods of interp'n when arguing a case b/c don't know which method judges will choose, but stress the one that best supports your position.
MODERN PRINCIPLE: A REASONABLE READING OF THE TEXT W/ REFERENCE TO PURPOSE OF TREATY, FACTUAL CONTEXT OF ANY DISPUTE & OVERALL GOALS OF NEGOTIATORS.
Interpretation of Peace Treaties Case, summary, p.22
Tribunal formed of 3 members, of which 1 is neutral. UN SecGen can designate the neutral member. Crt. decides that SecGen cannot appoint one of the state's reps even though state unwilling to. Applied ordinary meaning of words approach. Annuls treaty b/c destroyed its object.
Problem: Tribunal only has moral authority. If state's rep. is designated, that state could feel that it is not bound by the decision.
Reparations Case
Applied "object & purpose" approach, functionalist argument. UN needed power to pursue case.
2 decisive problems w/ treaty (i) jus cogens (ii) treaty termination Jus Cogens, summary p.23
VC Art.53 If treaty ~ norms of general IL, ie. jus cogens, it is void. JC = preemptory norm of IL, fundamental principle (slavery, piracy, genocide, torture...) But are sovereign equality of states & non-use of force JC?
How to define JC? Must look to moral precepts. No treaty has been declared void b/c of JC. Could be classified as "de lege ferenda", "law in coming". Unlike custom, JC doesn't require state practice. Beyond piracy, difficult to ground JC in anything real.
3 ways to Get around JC: (i) JC doesn't exist (ii) treaty doesn't affect JC (iii) treaty not ~ JC
Termination of a treaty, summary p.23 (i) mutual consent
(ii) implication of principle of material breach
(iii)Rebus sic stantibus: unpredictable fundamental change in circumstances such that conditions have been radically & inequitably transformed. Exception to general rule that must accept risks in K or T making.
Fisheries Jurisdiction Case,summaryp.23 Fundamental change of circ can only be invoked in particular circumstances. 3 requirements: (i) fundamental change such that it would be bad to invoke the treaty (ii) change related to the treaty's purpose (iii) results in a radical transformation of remaining obligations
Even if fulfill these req'ts, cannot automatically terminate T. only right to call for adjudication. 2 further limitations: (i) Doesn't apply to border Qs. VCLoT, Art.62
(ii) Fundamental change can't be the result of one's own actions; must be external force.
No one likes this doctrine b/c dangerous. Allows states to escape oblig'ns unless severely restricted. Arises very rarely. B. GENERAL CUSTOMARY LAW, summary p. 24
2 important elements: (i) state practice (ii) opinio juris
2nd most imp's source of IL. Norms, customs are often unclear, changing & not watertight. USAGE OVER TIME RECOGNIZED TO BE BINDING.
(i) state practice (usage) - objective
Relatively constant, consistent w/general int'l practice, objectively established. How to measure state practice:
(a) bilateral actions: eg. treaty- if there are several similar treaties, may serve as proof of custom (whether implemented or not). Some would say irrelevant to IL b/c simply negotiation b/w 2 states.
(b) multilateral actions: how many states are in agreement? sign of custom (eg.170 states), crystallization of custom, parallels custom.
UN GenAss or SecCouncil resolutions, as long as have states from ~ geogr., cultural backgrounds.
(c) unilateral actions: series of claims and responses. eg. Canada's claim re Arctic. Response is crucial. (reservation, declarations, resistance to declarations)
(d) unilateral omissions of states
Destabilizing factors: amount of time necessary, by whom, how many states. Used to be criteria of time. But, not as clear any more b/c of "instant custom".
(ii) opinio juris (binding) - subjective
Practice must be accepted by the int'l community. Internal, subjective belief that should act a certain way. The state must consent for there to be OJ. If practice is very significant, infer OJ. Problem that this rarely happens. States would only likely assert custom it to their benefit. Toope says largely fictional. Practice is crucial. But helpful to put practice in context. North Sea Continental Shelf Case, summary p.24
First time ICJ pronounced on customary law. End up only evaluating practice b/c can't evaluate OJ.
Germany ~ Denmark & Holland re delimitation of continental shelf. G not party to 1958 Convention. G: not a custom, treaty not well accepted, many debates, reservations. G wants "equitable & just". D & H: "equidistance & special circumstances" as in 1958 Conv'n. Custom not crystallized by signing of treaty. Rule did not exist before & was not codified by treaty. Crt. "equidistance" not a custom b/c not enough ratifications, not defined enough. Crt. concludes: alternative rule: delimitation should be based on equitable principles, taking into consid'n all the circumstances.
ICJ position even more uncertain, no evidence supporting their position that = customary norm. Abstract statement.
PRESENT LAW ON BOUNDARY DELIMITATION: (i) equitable considerations leading to (ii) equitable result.
ST. Pierre et Miquelon case: Crt. tried to work it so no losers. Each side got at least something.
Regional Custom
Asylum Case, summary p.25 Regional custom is possible. Very difficult to prove. Not in this case.
*This could be important & could emerge for int'l trade (w/ trading blocks) 8 environment.
Instant custom Possible to argue that there's such a thing as instant custom. IL is dynamic.
C. GENERAL PRINCIPLES, summary p.25
Must look at sources of private law. Comparative ideology. Emerged largely from Hersch Lauterpacht who argued for comp ideology: "collection of doctrine of ~ legal systems which, analysed together, give rise to a general principles.
Not used very often. Usually used as a last resort.
Perception of socialists: exists only if b/w domestic legal system 8 custom. ICJ bases itself on Western principles. Quantity 8 quality of info, training judges, historical roots in Europe, most lawyers from developed world.
D. DECISIONS & DOCTRINE
Even of domestic courts, subsidiary but can be determinative. (Trail Smelters case, Trendtex) Growing interpretation. Domestic law influencing IL as much as IL influencing DL. IL increasingly having an impact on DL, partic w/ environment 8 human rights.
Alvarez Monchain case- territorial power to seize fugitives anywhere in the world. Doesn't fit well w/ notion that IL is supreme.
2 ways to apply IL in domestic context: (i) theory of adoption/incorporation (ii) theory of transformation
Depends on constitution of state 8 whether it's custom or treaty. Canada:
(i) Custom- nothing established but generally adoptionist, using American jurisprudence.
Trendtex Case, summary p.28-29: adoption.
(a) Customary law is dynamic, changing. Changes too quickly for Parl't. Nothing written in Const'n.
(b) Comity, want same in return.
(ii) Treaty-Labour Conventions Case, summary p. 26: transformation. Consensual, if exec makes law, Parl't is powerless. Proposed in obiter a "power-making treaty". If Parl't refuses to transform a treaty it's a domestic problem b/c the state has bound itself.
Transformation done in 2 ways: (i) change domestic laws to incorp the treaty (used more frequently) (ii) declare a law incorporating the treaty 2 step analysis for Canada in determining whether it has fully implemented T:
(i) must show treaty has been implemented; capital Cities Communications Case.
(ii) If have proved trans'n, crt. will give Canada the benefit of the doubt & assume its in conformity w/ domestic law.
Canada does not do enough to incorp treaties & respond to its int'l obs. Domestic courts used for compensation & for human rights. Don't need well established borders. Importance: (i) control: exclusive control is possible only if the territory is defined. (ii) independence / sovereignty is a key notion for the state (Montevideo Convention)
Island of Palmas Case, summary p.32 Test: exclusive control to exercise state functions in its territory. Can only be exclusive if can keep other out of territory. Implies that territory is crucial for formation & continued existence of the state. State jurisdiction: can exercise legal control.
For low population, far away, don't need to prove much for use & occupation. Relevant to Canada's claim in the Arctic. PRAGMATIC APPROACH: what matters is activity around the time of the claim. Too complicated if go too far back.
Jurisdiction distinguished from sovereignty Jurisd'n: more restrained, included in sovereignty, idea of authority, control. Sovereignty: can exist w/o jurisdiction. Only applies to territory & people of the state in Q. Not simply a matter of politics. Control of territory: includes physical elements of property. corpus: earth, subsoil, super-adjacent column of air. Problems: sea, air, geo-stationary orbits.
Types of territory, summary p.31 (i) land under sovereignty of state (ii) Res nullius: can be claimed by any state, only Antarctica (iii) Res communis: int'l waters etc., shared by all (iv) Commun Heritage of Humankind
Space: states have complete sovereignty over space. Outerspace: Moon Treaty: all resources are shared & cannot be appropriated.
Acquisition of Territory, summary p.31-2 (i) occupation: only if res nullius (ii) cession: treaty (iii) conquest: war & subsequent annexation (iv) prescription: peaceful occupation over time (v) accretion: natural forces Aboriginal Title Questions:
(i) rel'nship b/w Canadian & aboriginal law, int'l law & Can. law, int'l law & aboriginal law.
(ii) defy of the title
(iii) Can this group sign a treaty? (iv) Res nullius, is this pertinent? (v) Notion of conquest
(vi) Prescription, impossible to recuperate territory (vii) ~ conception of o'ship, use, occupation
Used "conquest" to justify colonization of N America. Can invalidation of conquest be applied retroactively?
Need to challenge concepts of IL to adequately argue for abor'l title. Argue that not res nullius as was claimed. Must show continuous use & occupation. Challenge has to be more fundamental than the notion of conquest. Can't rely on traditional practices of IL.
Legal Status of Eastern Greenland, summary p.33
Treaties signed by Denmark explicitly exclude Greenland. Ihlen Declaration: recog'n of Denmark's sovereignty over Greenland. Distinguished from Nuclear Tests case (b/c during negotiations, consideration offered for the statement, acceptance by both Ps). Context was crucial.
**INT'L LAW CASES ARE FACT HEAVY**
Arctic
Sector theory, now very expansive, excludes all visitors. Theory comes from the Antarctic Treaty. Not a unilateral claim. Few resources. Discovery. Strategic importance. Antarctic demilitarized zone by treaty. Frozen claims. Sector theory demonstrated by division of the map. Treaty expires in 1991. Worry of Canada. If the sector theory is abandoned, it will hinder Canada's claim to the Arctic. Could become Common Heritage. Link b/w persons & state. Important for notion of individual protection b/c still Largely states that must enforce such protection. No treaty. Few conventions. Custom has a large influence.
A. INDIVIDUALS
No clear statement in IL re nationality b/c concepts vary from state to state.
Nottebohn Case, summary p.42
ICJ re customary law on nationality. Q of proof. Germany, Guatemala or Lichtenstein? Nationality is a domestic Q but it raises the problem of opposability. Does the naturalization of N have int'l effects? His natur'n not to create genuine link w/ country but rather to obtain protection from a country. Toope says test should be "real & effective nationality". From the perspective of protecting the individual, Nottebohn is a terrible case.
Customary norms: (i) unilateral: state refuses to protect person not linked to state (ii) international: (iii) bilateral treaty & multilateral convention (eg. Pan American Convention)
Citizenship vs. Nationality C: accorded domestically, entirely w/in domestic law N: external manifestation of C at int'l level, legal bond based on social facts
Kahane Case
Jews are not Romanian at internal level b/c R trying to remove their citizenship. But at int'l level, they are of R. nationality. Nationality not severed by severing citizenship. Importance today. Could apply to Serbia.
Theories to establish citizenship: (i) jus sold (place of birth)
(ii) jus sanguinis (by blood, parents, usually father) (iii) naturalization (if person doesn't fit into 1 of 1st 2 categories)
B/c no coherence b/w states can lead to statelessness. UN has granted travel doc'ts to ease this problem. Will see more statelessness in East Europe.
There is said to be a HR to nationality in the Int'l Declar'n of HR. Possible problems: double nationality can be a refugee but retain nationality (eg Palestinians) trad'l rule: if double nationality, can't contest the other state. But rule has changed & it is now possible. See Iran -US Claims Tribunal: concluded dual nationality was valid & could assert 1 ~ the other. Never asserted before.
B. CORPORATIONS
Primary source of principles Barcelona Traction. Light & Power Co. Case, summary p.43
Only Canada can act on behalf of Belgian shareholders. Problem w/ this: state can refuse to espouse claim when has no interest in it & not wanting to affect diplomatic rel'ns w/ Spain. Can't apply Nottebohn principle of "real & effective control" which was in Belgian shareholders. Crt's reasons: procedure: no joinder of claim, claims could create destabilizing confusion. B would have needed bankruptcy claim under Can law (wrapping up carp) & Can renunciation of formal right to act.
Dames & Moore Inc. Case Had claim pursued ~ Iran in UC courts for expropriation of property. Sent it to tribunal. D&M, unhappy, made claim ~ US for expropriating their right to litigation ~ Iran. On the facts, they lost but good idea.
Must look at corporation law formalities: (i) place of incorporation (ii) place of registered office (iii) place where board meetings held Scope of jurisdiction, summary p.44: (i) criminal (ii) Civil
(i) territory, p.45 objective: effect; subjective: cause (terrorism, drug trafficking)
Treacy, summary,p.45: state can have jurisdiction over a crime as soon as a constituent element of the crime took place in its territory.
Libman, summary,p.45: must have "substantial connection" b/w crime & state asserting jurisd'n.
(ii) nationality, p. 45 straight connection b/w state & individual. Probs: defining crime, establishing sentence, nationality of criminal, double jeopardy, state may not want to pursue their citizen. Who has control?
(iii) passive personality, p.45-6 Victim's nationality. Who has control of accused. (US)
(iv) protective principle, p.46 right to protect one's nation ~ menace. Rarely invoked. (US)
(v) universality, p.46 every state can have jurisdiction, crimes ~ humanity, source = Nurnberg trials. Probs: Non-affected state can pursue, How far do human rights go? Moral revendication.
Steamship Lotus case, summary p. 46
Turkey has control. Territorial, passive personality, protection of citizens principles. Subjective aspect of territory is valid. Burden of proof lies on state challenging jurisd'n.
Kidnapping, summary p. 47
Eichmann: universality of jurisdiction, passive personality principle. Toscanino rejects Ker -Frisbee rule, Alvarez Machain
Law has flipflopped a bit but today principle is that of Alvarez (June 1992 USSC case): apply Ker-Frisbee rule.
Jaffe Case: can't illegally obtain person in order to gain jurisd'n over that person.
Assertion of extraterritorial jurisdiction
Ntl law applies to citizens outside their country. Attempt to export control. Most commonly in criminal law context, also for commercial law. Kg. US anti-trust law, went too far w/ Cuba paranoia, partic. w/ Mack amendment, Canada enacted the Foreign Extraterritorial Measures Act of 1984. Applied for 1st time in 1990. Principle not recognized in IL b/c rejected by most states, especially developing nations. Sovereignty of states, US trying to exports its values, disagreement on objectives or methods. This theory could apply to human rights.
A. DIPLOMATIC IMMUNITIES Protection for people accredited to state for diplomatic purposes. Oldest area of int'l law. People coming to negotiate can't function if not protected. 3 aspects: (i) immunity from all criminal responsibility (ii) no obligation to go to court (iii) protection of diplomats provided by host state Both a shield (jurisd'n of courts, Grim liability) & sword (protection of authorities.
The state can waive immunity. Breaching of these rules is quite rare b/c would entail reprisals. Solution is expulsion. The rules are well founded and followed. Q is whether they will remain so.
B. STATE IMMUNITIES
The state as sovereign possesses immunity from: (i) suit, liability (ii) enforcement, even if go before the courts can't enforce remedies.
(i) Immunity from liability
Bases for this right: (i) internal constitutional law Not clear whether state immunity doctrine = const'l law or IL b/c considered IL but interp'd in light of const'l law. (ii) sovereign equality of states, Schooner Exchange
Traditional rule Absolute immunity. Doesn't apply anymore. Would signify impossibility to judge a state.
Justification of the rule: (i) Equality of states. (ii) Comity: permitting liability of a state risks incurring liability for one's own state.
Schooner Exchange v McFaddon, summary p.48 French public armed ship allegedly seized from 2 Americans. France has justified state immunity. Dignity, sovereign equality.
Parlement Belie, summary p.49 Laid down doctrine of absolute state immunity Congo v. Venne, summary p.50, 51-2 Architect not paid by Congo for Expo pavilion. Bad judgment. Applies doctrine of absolute immunity (majority). Underlined the problems b/w absolute & restrictive immunity. Laskin (dissent) said should apply restrictive immunity & look at nature of the K. Ritchie said to look at purpose of the K.
Present Rule: Restrictive immunity Trendtex Case, summary p.52
Denning case. Established the new rule: restrictive immunity. The nature of the K (commercial) prevents immunity for Nigeria. Should take into consideration the purpose of the K. Result correct but reasoning somewhat deficient. Evidence of custom: (i) crt dec'ns in other states; (ii) state practice; (iii) European Convention on State Immunity; (iv) Tate letter. (Both unilateral & multilateral acts).
To determine if immunity applies, must evaluate whether the act is commercial or sovereign.
State Immunity Act, 1982, summary p.50
Follows Trendtex. Point of departure in Canada. Established that must look at nature of K.
Art.5: A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to commercial activity of the foreign state.
U.S.A. v. Public Service Alliance of Canada et al. (May 21, 1992) (SCC) Facts: Union certification proceedings taken before the Canada Labour Relations Board in respect of Canadian civilian employees of the US naval base in Nfld. US claims immunity from the board's proceedings. Lease for 99 years. Base controlled by US. Current mission: to support anti-sub warfare command & tactical forces through operation of communication centre. Terms of lease include a broad range of military activity. In their employment K, each employee of base required to sign agr't saying won't strike. UNDE component of PSAC trying to unionize employees. Base proposed memorandum that UNDE would recognize US law, honour the "no strike" clause in employment Ks. PSAC refused to negotiate further.
Issue: Do labour relations at a foreign military base constitute "commercial activity" under the State Immunity Act thereby depriving the base of sovereign immunity?
Held: Labour rel'ns at the base are not commercial. The base should be immune from jurisd'n of domestic labour tribunal. Ratio: LaForest (majority): (i) What is nature of activity? (ii) Are proceedings related to the activity? Certification proceedings affect both commercial & sovereign aspects of employment and are related to the activity. (iii) Is the effect on the commercial realm sufficiently strong to form a "nexus" so that it can truly be said that the proceedings "relate" to commercial activity. the effect on commercial activity is merely incidental & cannot trigger application of s.5 of Sl Act.
Nature & purpose are interrelated. When activity is multifaceted in nature, consideration of its purpose will assist which facets are truly related to the proceedings in issue.
History behind state immunity
Historically, nation states enjoyed absolute immunity. As gov'ts increasingly entered into commercial arena, the doctrine of absolute immunity was viewed as an unfair shield for commercial traders operating under the umbrella of state o'ship or control. C/L response: restrictive immunity. Immunity for acts jure imperil, not acts jure gestionis.
Cited I Congresso del Partido, [1983] (H.L.)
Lord Wilberforce: 2 main foundations of "restrictive theory": (i) necessary in the interest of justice to individuals to have commercial transactions w/ states brought before the courts. (ii) Requiring a state to answer such a claim does not involve a challenge to state sovereignty, dignity or its sovereign functions.
State activity often possesses a hybrid nature. One public, the other private. Need both nature (character) & purpose to determine whether act immune. Difficult to separate the two. Must look at both in the context. Difficult to separate commerce and politics.
US Foreign Sovereign Immunities Act of 1976 provided commercial activity exception to sovereign immunity. Expressly stated reference only to nature is relevant. Can Parl't must have intended that purpose was to have some relevance in determining character b/c excluded that qualifying language of US leg'n. The utility of purpose should not be overlooked in characterizing activity in Q.
The proper approach to characterizing state activity Is to view It in its entire context. This approach requires an examination predominately of the nature at the activity but, Its purpose can also be relevant.
Characterization of act in this case: A bare K for employment services at the base is, in and of itself, generally a commercial activity. Generally speaking, Can employees of foreign sovereign states are entitled to turn to our courts for enforcement of their employment Ks. But employment K does not fall exclusively w/in commercial realm. Has sovereign attributes as well. Activity has a double aspect. As soon as have sovereign component, must be treated as sovereign, even if largely commercial. No activity of a foreign state is more inherently sovereign than operation of military base. Relevant considerations: competing nexus b/w proceedings and sovereign aspects of employment of the base; breadth of scope of board's proceedings; consider purpose. Factual distinction b/w cultural house & naval base- comparing sovereign purposes.
Cory, J. (dissent): Can. def'n of commercial activity should be construed as placing paramount importance on nature of activity. To do so, crt should look at context in which activity took place. Often necessary to consider the immediate purpose (a ultimate purpose). Act here was commercial. nature - commercial purpose - sovereign
3 pillars of the analysis that came into play in LaForest's PSAC dec'n: (i) state politics; (ii) commercial stability; (iii) comity. For Cory, was whether Can citizens working for foreign operation in Canada should have access to Can law.
*For analysis: Look first as State Immunities Act then at PSAC dec'n. MUST ENSURE AT EVERY STAGE OFTHE ACT 8 EXECUTION, DEALING W/ COMMERCIAL ASSETS. MUST BE PURELY COMMERCIAL. (ii) Immunity from execution General principle: all state property is immune. Exceptions: (i) state waives immunity (rare, comity) (ii) certain laws eg. State Immunity Act s. 1 1 (b): no immunity for property related to commercial activity. Very little litigation in Canada. Difficult to establish. Examples: (a) debts of a company to a state = commercial nature thus no immunity; (b) embassy limo = essential to the embassy thus not commercial; (c) foreign bank account = essential to diplomatic functions thus not commercial (Alcom Ltd.) State has a duty of care to other states and their citizens. Violation of this duty through acts or omissions can cause int'l responsibility. The concept is well established in domestic law but new in int'l law. Formerly, IL only preoccupied w/ state rights, not obligations.
2 types of responsibility, summary p. 56: (i) direct resp. (ii) indirect resp.
Trail Smelter Arbitration,summaryp.56
Applies American law as representative of IL. State owes duty to protect other states from injurious acts of their individuals from wan its jurisd'n. No state has right to knowingly permit its territory to be used for acts ~ rights & harmful to other states. Proof must be "clear & convincing".
Corfu Channel Case, summary p. 57 State has an obligation not to knowingly allow its territory to be used for acts to rights & harmful to other states. Can also be an omission. Key factors: (i) causality (ii) knowingly (subjective test) (iii) measure of damages
Cosmos 954 C la i m, summary p.57
Soviet satellite. Radioactive debris on Can. territory. Violation of sovereignty, trespass, harmful consequences. Soviets offer voluntary compensation but doesn't admit wrong. Doctrine of state responsibility doesn't apply.
Texaco v. Libya, summary p.63-5
Nationalization of oil industry by Libya. Arbitration clause. Even if Libya doesn't participate in arbitration, judges that must pay compensation. Exceptional case. State resp. is often denied b/c IL doctrine doesn't apply to K b/w corp. & state.
Y.T. Youmans Claim, summary p.59
Mexico had duty to protect American citizens. If the action (inaction) can be imputed to the state, it is responsible. In this case, the soldiers inaction was imputable to the state.
This notion has been extended. Foreign Investment Laws of Mongolia & others. Promise that foreign investments won't be nationalized. Emergence of customary law ret not nationalizing?
No state liability:
(i) For acts of insurrection movements; Draft articles on State Responsibility. Art.14
(ii) person or group not acting on behalf of the state
.' . by: Types of infractions: (i) Violation of a custom Delict "int'l wrong" (ii) Violation of a treaty K-ual provisions in the treaty If nothing indicated, delict
(iii) Some feel ad category: crimes leading directly to reparation. State commits the crime (not indiv. as in Nurnberg).
F.A. Man's theory on int'l wrongs. Key: if no remedy or remedy fails for K-ual wrong (treaty) it gives rise to 2nd breach which is delictual. Int'l wrong, duty of care. But, if state refuses to participate, no remedy. S. Schwebel takes this 1 step further. If have K w/ arbitral clause & 1st state breaches & refuses to comply w/ arbitration, can still go ahead w/ arbitration b/c have delictual remedies. K-ual & delictual remedies can co-exist, 2 separate bases of obligation, remedies. Toope says Schwebel is wrong.
Int'l Law Commission says have ad branch of state responsibility: int'l criminal law, criminal responsibility for states if breach "fundamental interests of the community" of states, eg. enviro protection, humanity, self-determination.
Problems w/ int'l crime: it involves MR, but how to calculate MR of a state? What are consequences of finding state guilty? Who decides? Jurisdiction? What forms of punishment b/c in IL can't punish states through adjudicatory process. Creating another category of int'l liability yet the 1 st 2 aren't perfect. Arguments could become jurisdictional rather than actual wrong. The UN has much trouble w/ discussing procedure, technique & not the actual problem. Toope says should refine what we've got rather than trying something new.
Enforcement: Different types of reparations (i) execution of the obligation (ii) satisfaction (iii) damages
States generally want compensation more than punishment.
Acid Rain - liability?
Claim by Canada. Starting point: Corfu case. Reagan & Bush denied any causal link, didn't know enough. Clear & convincing proof must be established to prove the cause. Quebec: Reagan says maybe there is a problem. Let's study further the effects of acid rain. Maybe proof of good will concerning recognition of danger. See Articles, summary p.68-70.
See CSBK, p.76- 6 principle organs; most important are GenAss & Sec Council
One of central purposes of UN is to maintain peace & security. Shouldn't blame UN for not resolving all the world's problems. States have never really granted full power to UN. UN is not law maker but may apply certain decisions. Better to resolve disputes through dialogue than through war.0.
Chances Move from domination of the West to more diversified domination.
Remaining problems: Very politicized dec’ns. Does the state represent the people?
Role of Security Council
Can send troops to maintain or reestablish the peace, Art 42. Must protect in legitimate defence.
If the SC is unsuccessful, go to GenAss. SC is place to go if want to invoke force. (Namibia case, Iraq-Kuwait) In the past, SC not very effective b/c of Cold War, permanent members, veto. But Iraq-Kuwait demonstrated new found cooperation, more effective. Q now is whether int'l community wants the SC to be more effective, increased intervention.
2 key articles: 2(4) maintenance of int'l P&S which grants very broad power to SC; 51 self-/\.
First: Was there actually a threat to or actual breach of peace? This grants jurisdiction to UN. Then look at all the articles in Charter to see powers open to SC (eg. Art.34 investigation, search & seizure; Art.36 recommend means of resolving the dispute; 41-42 collective sanctions, focus on collective action art45...) Try to negotiate resolutions to disputes.
Role of the General Assembly
Uniting for peace resolution. Only has declaratory power. No power no apply dec'ns.
United Nations
Is the only int'l forum for discussion. Accomplishing more & more. Needs political will of states to achieve its goals.
Despite rhetoric re peace & security, UN has nothing at its disposal except force b/c not willing to wait long enough for economic sanctions to work.
A Look at Namibia: effect of dec'n negligible b/c many states had economic interests in S.Africa & didn't want to create bad rel'ns. Had major effect on developing nations though b/c showed hypocrisy of developed countries. Namibia very ~ Kuwait.
Look at SC resolutions dealing w/ Iraq invasion of Kuwait. -660 (Aug 2) emergency session, declare breach of int'l P & S. SC asserted its jurisdiction. 2 key demands: (i) I w/draw from K. (ii) condemnation of l's actions.
-661 (Aug 6) political & economic sanctions: boycott l's products & freeze its assets. Monitoring committee to determine if being complied w/.
-662 (Aug 9) demands again & political (diplomatic) sanctions.
-664 (Aug 18) further demands
-665 (Aug 25) maritime embargo, inspect & block cargo going in & out of I & K.
-666 (Sept. 13) humanitarian relief for peoples through UN
Iraq gets mad, expels diplomats. Attacking a diplomat is very serious action in IL.
-667 (Sept 16) SC "outraged" at "aggressive acts of violence" diplomatic missions, severe language.
-669 (Sept 24) response to requests of assistance under Art.50 of UN Charter
-670 (Sept 25) airplane embargo
-674 (Oct 29) key step I will be held liable for the damage caused. Reference to restitution & compensation.
-677 (Nov 28) further condemnation of I
-678 (Nov 29) authoriz'n to use "all necessary means" to uphold resol'n 670. Authoriz'n of use of force. Declar'n of war. Requests states to provide appropriate support.
-686 (March 2) demands that I accept 12 resol'ns, get out of K, accept liability, etc....
-687 (April 3) Key resolution Post UN military response welcoming restoration of K, weapons & treaties objectives, monitor I weapons development & capacity, l payment will be 30% of $ from oil exports.
For 1st time SC very involved in maintenance of int'l PBS. Now criticism starting that SC driving the UN, coming from developing nations. Legislative sources: UN Charter Arts.92-96 + Statute of ICJ for procedural rules. 15 members elected by majority vote of GenAss & SC. 1 per state max. No veto right. Unwritten rules on division by continent. USSR, USA, UK always 1 judge each. 5 seats to the white Commonwealth. 2 to Eastern Europe. 2 to Asia. 2 to Latin America. 4 to Western Europe.
Role = mediation of ideological differences.
Problems:
Judges are supposed to be independent, but...Most judges vote ace to their state's politics. Parties to a dispute may select an ad hoc judge if they don't have a rep from their state. Problem resides w/ state sovereignty rather than UN structure. Constrained re subjects (who has standing) not re subject matter. Almost entirely for boundary disputes.
Jurisdiction is a major problem, summary p.71 Never compulsory. Both states must consent. Optional Clause Art.36(2) of ICJ Statute: can accept in advance compulsory jurisdiction of ICJ. But explicit condition of reciprocity, clause must be signed by all parties involved. Conditions/ reservations placed by states upon compulsory jurisdiction of court, eg. Canada w/ Arctic. Conally amendment: no jurisdiction on matters won domestic jurisdiction subjectively domestically determined.
Nicaragua Case, summary p.72
US claimed that reciprocity meant accepting jurisd'n on same terms as other party. Court rejected this arg't. Reciprocity applies to substance of the commitments rather than formal cond'ns of creation, duration, extinction. Reciprocity cannot be invoked to excuse departure from terms of a state's own declaration. US refused to accept the judgment.
In 1987 changes in procedure: Special Chambers, Art26, summary p.73 (emergency, specialized & ad hoc chambers). 5 judges chosen by ICJ on advice of parties. Hope that, if states can shape the deco more may be more inclined to come to court. Useful for commercial matters.
Gulf of Maine Case, summary p.73
Parties decide who will be the judges. All from North America & Western Europe. Insulting. Could create fragmentation of IL. Reduces potential for authority of the ICJ.
It seems to improve for the following Special Chambers. Future of ICJ
IL is not what is defined by ICJ. It remains primarily for boundary disputes. Conserves its importance. Trad'lly regulated by custom. Custom still central.
2 major efforts at codification. (i)1958 Geneva Convention on the Continental Shelf,summaryp.74 (ii) 1982 Law of the Sea Convention (signed by 150, only ratified by 50 so not In force), summary p.75
How to determine a rule: (i) Is there an applicable treaty?
(a) LoS 1982: signatory? B/c not in force states are not bound. But, if signatory, have obligation not to frustrate the object of the treaty.
(b) GCCS 1958: signatory?
(c) other bilateral treaties?
(d) Custom - instant? or emerging? & practice of the state (treaties can be proof or indication of a custom)
(e) parallel custom & treaty
See diagram CSBK p.746, summary p. 75-6 (i) Internal Waters: water on landward side of baseline. (ii) Territorial Sea: 12 miles; exclusive sovereignty, right of innocent passage (iii) Contiguous Zone: 12 miles, historical, form of jurisd'n, more or less important (iv) Continental Shelf: 200 miles, before natural prolongation, too arbitrary (v) Exclusive Economic Zone: 200 miles, right of contin'l state to exploit
All measurements are made from the low tide point or form the straight baseline
How to measure the straight baseline, summary p. (i) If bay is bigger than a half-circle (opening) it is internal waters (right of innocent passage) (ii) Historical Bay, summary p.76: can demonstrate exclusive use & occupation (iii) If the half-circle is bigger than 24 miles, it is no longer internal waters (iv) If many bays, can trace straight baseline (v) lslands have their own territorial sea, continental shelf Territorial Sea vs. Internal Waters Territorial Sea must allow an innocent right of passage. All vessels have a right to traverse TS for innocent purposes: -unarmed, no military activity -no propaganda -no enviro threat (although custom not well defined on this) -no spying
Big problem: pollution b/c enviro rules in LoS Convention are very weak. Rules in 1982 Conv'n are stricter but it's not custom thus they don't apply. Canada wants more than minimal protection. Panama doesn't want higher standards b/c makes $ from registry process of ships, rules may hinder registration.
Anglo -Norwegian Fisheries Case, summary p.60
Norway's straight lie accepted. Outside the islands. Broad interpretation. Protects economic interests of Norway. Historical analysis of economic dependence.
How far can the rule be specific?
Straight baseline poses a problem: states use it to expand their territorial zone.
Continental Shelf, summary p. 81
No need to claim it, occupy or use it. If the land is used, presumption that the shelf is used also.
Somewhat bizarre. EEZ must be claimed. Occupation always important in state practice (Island of Palmas case). Here saying no longer need to apply rule of occupation. A state cannot occupy another's shelf.
Crystallization of custom indicates 200 miles. EEZ
200 miles. Ltd. sovereignty: exploration, exploitation of the soil, sub-soil. Gives same quality of right as cont shelf.
Claiming EEZ (i) must consider rights of other states, protection of navigation & overflight
(ii) must explicitly claim existence, indicates wasn't really custom. Relatively new (1982)
Possible arguments:
Grotius: freedom of the seas idea seems to be reversed. Open seas are becoming more & more rare.
Parallel development High seas should be considered as common heritage of humankind.
Gulf of Maine Case, summary p.84 maritime delimitation Can-US. Single maritime boundary. No real rule. Must have equitable delimitation. Draw equidistant line. Look geographic features & economic considerations. Consider possible catastrophic results. Eco consid'ns material only if catastrophic. Offers more flexibility. More ability to satisfy both parties. Good for ICJ jurisd'n b/c encourages 3dps to adjudicate. No use of violence or unilateral action.
Principle of delimitation: Draw equidistance line. Then look at all the geographical circumstances. Does line look unfair? If yes, modify line so that get fair result. Significant economic & social results from this line? If sufficient, might modify it further. catastrophic: will certainly modify it. ICJ Chamber Gulf of Maine case. Entirely fact dependent. What is fair? Legal rule is equity.
Criminal jurisdiction: R. v. Anderson (1868) State A sailor kills state B sailor on board state C's tanker in state D's harbour. Who has jurisdiction & on what basis? A: nationality B: passive personality C: territorial, flag of vessel = nationality D: territory, internal waters Problem: none of these is exclusive to the others. Case law, Anderson: state most likely is C. Wildenhaus case (1887) D can argue crime so heinous that it disrupts the public peace.
REAL TEST: WHO IS MOST INTERESTED & WHO HAS CONTROL
Possible A or B. C has no stake, D- murder relatively common.
XIV PROTECTION OF INT'L HUMAN RIGHTS
IL's interest in individuals has given birth to a good # of norms and rules. The problem is no longer in the definition of what should be done but rather in the measures to be taken in making these norms respected.
See summary p.85-87 Universal Declaration of Human Rights
Human rights Natural law Inherent dignity of the human person. God created human's in his/her image. Humans are special b/c they have reason Positive law State grants rights. This has importance for 20th C for the notion of community. IL focuses on rel'n b/w individual & community.
Problems: What is the group? Community? Does the government really represent the community?
Why all these conventions? They can't simply be applied. They don't directly protect but fill certain functions. Serve as a basis for crystalization. Create a certain standard of measurement. Moral & legal persuasion. Articulates the problem. Educational function. People will be made aware of their rights. Rights must be protected. Useful way to communicate (eg Amnesty Int'l - Sting).
3 categories of int'l human rights (i) individual rights (1st generation): life, liberty, mobility, physical integrity, legal rights. (ii) collective rights (2nd generation): work, economic & social security (iii) 3rd generation: economic & social development, peace, clean environment 1st generation = negative rights, ie. no gov't intervention 2nd & 3rd generations require gov't intervention
How to define equality - 2 visions: (i) USA treat all people the same way (ii) Andrews Case, equality in the result, corrective justice, favour certain people to redress power, distribution of resources
Canada adopts both theories. The Charter focuses on individual rights. No right to work. Canada is criticized on int'l level. Limits on the promotion & protection of human rights (i) sovereignty (ii) cultural specificity of values - occidental values are not the only ones (iii) uncertainty re status of individual in IL (iv) importance of human rights in foreign policy of states; can't be the only question
UN Human Rights Commission Gathering of 45 states to discuss HR in the world. Certain states will endorse a resolution condemning another state's conduct. Can request a special surveyor who examines the sit'n, states tend to avoid this sit'n.
ICESCR (Int'l Cov't of Economic, Social & Cultural Rights, summary p. 87 ICCPR (Int'l Cov't on Civil & Political Rights), summary p.87
Optional Protocol (attached to ICCPR), summary p.87 An individual can only make a claim to the HR Committee if their state has signed the OP.
Possible actions if HR violations (i) cut off aid (ii) redirect foreign aid (iii) use diplomatic channels (iv) cut off exchanges and investment (v) HR Commission, resolution, special reporter