Unformatted text preview: Public International Law Exam Notes
Sources of International Law
SS Lotus (France v Turkey) (1927) collision of vessels on high seas Turkish court asserted criminal jurisdiction over French master of the watch negligence of French master of vessel = cause of collision French master & others arrested in Turkey & purported to exercise criminal jurisdiction
over Frenchman b/c it was a serious incident involving death of numerous Turkish
nationals France argued for customary rule of exclusive jurisdiction of the flag state over collisions
on High Seas range of sources France relied upon to establish position = writings of publicists;
decisions of courts (domestic & international law); conventions PCIJ held that no such rule & Turkey entitled to exercise criminal jurisdiction Asylum Case (Colombia v Peru) (1950) Colombia granted de la Torre (head of unsuccessful revolutionary group in Peru) asylum
in its Embassy in Lima Peru refused Colombia’s request to allow de la Torre to leave Peru Colombia invoked ‘American international law in general’ to allow Colombia to qualify
offence as political Colombia made argument on basis of customary international law & said there was a rule
of regional, South American customary law that said that any state in SA could
determine/qualify a criminal offence as a political offence, allowing person to be given
asylum from another state PCIJ held that there was no such regional customary norm North Sea Cont. Shelf Cases (Germany v Denmark; Germany v Netherlands) (1969) core issue = is there a rule of customary international law which requires that the
boundary in the continental shelf of neighbouring states be drawn by reference to the
equidistance line? ICJ considered general requirements for establishing customary norms, & also how a
treaty provision may become part of custom Treaty provision may become customary norm, however ‘this result is not lightly to be
regarded as having been attained’
1 Art 6 of the Convention on the Continental Shelf did not reflect custom., not create it not of a ‘fundamentally norm-creating character’ (equidistance plus special
circumstances had uncertain meaning) widespread & representative participation in a convention might show custom, but here
there were few ratifications short time not a bar to establishing custom, but practice needs to be extensive & virtually
uniform; this not the case here trying to work out who owned continental shelf in part of the North Sea that is fronted
by Denmark, Germany & the Netherlands Denmark & Netherlands: no equidistance rule, rule is that states should have a just &
equitable share of the continental shelf in proportion to the length of the sea frontage of
the state Denmark & Netherlands said part of shelf should be carved up by equidistance line from
coastline where → leaves Germany with tiny part delimitation of overlapping continental shelf what rule to apply? equidistance? Netherlands/Denmark argued Art 6 of the Geneva Convention on the Cont. Shelf set out
custom (Germany not a party to the Convention, signed but not ratified) Art. 6 talks about delimiting continental shelf by use of equidistance line plus special
circumstances Denmark/Netherlands said rule in Art 6 had become part of customary international law
that bound Germany independently to the Treaty ICJ held that treaty norms could become customary in certain circumstances, but NOT in
this instance Court said that Article 6 didn’t codify what custom was instead, court came up with friendlier conclusion to Germany that took reasonable
account that Germany had concave coastline if you have a treaty provision that is crystal clear → more likely to be of a norm-creating
character & could form the basis of a customary rule
Asylum Case (Colombia v Peru) (1950) ICJ government of Peru sought to arrest Peruvian national granted political asylum by
Colombia & was holed up in Colombian embassy in Peru Peru rejected Colombia’s request that he be given safe passage from embassy →
Colombia Colombia said there was a rule of regional custom ‘American International Law’ that
allowed state granting asylum to qualify/determine the offence for the purposes of
asylum & therefore Colombia could classify offence as being political & therefore he
could be granted asylum (legal rights of protection) Colombia referred to lots of state practice & treaties 2 ICJ rejected argument that there was a rule of regional custom along lines that
Colombia had asserted Court unconvinced → too much uncertainty & contradiction in state practice → asylum
influenced by considerations of political expediency rather than belief that asylum was
required as matter of law overall, not possible to discern from practice any “constant & uniform usage accepted
as law”
R (app. Al-Saadoon) v Sec. of Defence (2010) Iraqi nationals arrested by British forces in Iraq for murder of 2 British servicemen in
Iraq claimants were going to be transferred from British custody to custody of Iraqi
government to face trial in Iraqi courts for war crimes claimants objected to proposed transfer & sought judicial review of decision on grounds
that there was a real risk that if they were transferred to Iraqi custody, they would face
the death penalty if convicted of war crimes claimants argued there was a European customary norm that required the UK & other
European countries not to transfer a person to a state where the death penalty might
be carried out English Court of Appeal said (1) in principle, yes you could have regional customary
international law, (2) here, the purported regional custom was not made out
Military & Paramilitary Activities in & against Nicaragua (1986) ICJ considered requirements for establishing customary norms & in particular the role of
the UN General Assembly resolutions military activities against Nicaragua by/facilitated by US aim of overthrowing government of Nicaragua Nicaragua claimed US had unlawfully engaged in military & paramilitary activities
against it, incl. laying mines & supporting the Contra Rebels US contended ICJ did not have jurisdiction (reservation excluding disputes arising out of
multilateral treaties, such as this one which concerned UN Charter) said US not fulfilling obligation of ‘prohibition of force’ ICJ held that norms relied upon by Nicaragua (prohibition on use of force & of
intervention in other states) part of customary international law, & that UN Charter &
custom had a separate applicability ICJ noted that state practice need not be ‘perfect, in the sense that States should have
refrained, with complete consistency, from the use of force from intervention in each
other’s internal affairs.’ ‘the Court deems it sufficient that the conduct…in general, be consistent w such rules, &
that instances of State conduct inconsistent w a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule’
3 ‘If a state acts in a way prima facie incompatible w a recognised rule, but defends its
conduct by appealing to exceptions/justifications contained within the rule itself, then
whether/not the State’s conduct is in fact justifiable on that basis, the significance of
that attitude is to confirm rather to weaken the rule’ can accept jurisdiction of ICJ with exceptions (e.g. - Australia accepts jurisdiction of ICJ
except for maritime disputes) US pointed to reservation that it didn’t accept disputes before ICJ in regards to
multilateral treaties which applied to this case b/c Nic’s arguments turned on UN
Charter, which is a multilateral treaty, therefore, Court has no jurisdiction Court rejected jurisdictional argument → IMPORTANT POINT - r/ship b/w custom &
treaty law which is that treaties & custom maintain a separate existence &
applicability even if their normative content is identical fact that principle relating to use of force is codified/embodied in multilateral
convention, doesn’t mean that norm ceases to exist as a rule of custom treaty & custom can continue to exist in tandem/parallel, therefore Nicaragua is able to
raise customary norms relating to use of force & non-intervention Nicaragua cant rely on charter to make breach of treaty point but can rely on identical
customary norms to make argument that US was in violation of customary international
law prohibitions of use of force & of intervention supported by UN Charter & extensive
opinio juris, including from US itself US withdrew acceptance of jurisdiction of ICJ Court set out general requirements of customary international law & reiterated what it
had said in North Sea cases & added some additional insights (1) engaged directly w relevance of UN General Assembly resolutions to emergence of
customary international law (GA resolutions are important for custom as evidence of
both state practice & opinion juris) UNGA Resolutions recommendatory and not legally binding, except as regards limited
matters (admission of new member, suspension of existing member, UN budget) Decisions of UN SC are binding Western states initially regarded GA as a type of parliament making int law. This shifted
sig in 70s & 80s as more 3rd world countries trying to assert themselves GA resolution adopting principles of Nuremburg Charter which set out principles of crim
law (customary int law) 1947 GA declared genocide to be int crime (2 years before Genocide Convention) UNGA more responsive to day to day law than general customary int law Can consider & decide upon matters pretty rapidly UNGA can help you interpret UN charter 4 Can codify recognised customary law GA resolutions can create new customary norms by contributing to state practice &
opinio juris (determining constancy & uniformity as often GA resolutions repeated over
time ie Antarctica) Particular sig for opinio juris as language can be worded in such a way as to articulate
practice as being obligatory Early practice and attitude of Western States when UN established (eg, Genocide
Resolution); change in composition of the UNGA and efforts by developing states to
influence international law UNGA may be more responsive than traditional case-by-case process of customary
international law UNGA Resolutions may influence international law, and development of customary
international law in particular → interpretation of UN Charter & affirmation of
recognized customary norms Creation of new customary norms (UNGA Resolutions may evidence state practice and
of opinio juris)
ARA Libertad (Argentina v Ghana) (2012) – estoppel concerned arrest by Ghana of Argentinian naval training vessel that was in port in
Ghana arrested on order of Ghanaian court seeking to enforce judgement of NY court against
the Argentinian government is this vessel a warship entitled to immunity in waters of Ghana from Ghanaian
authority? Tribunal found it was immune as technically a warship separate joint opinion agreeing with outcome that arrest was unlawful but rather than
applying rules of immunity, they played general principle of law of civilised nations,
namely principle of estoppel functions to estop Ghana from denying that vessel had right to be in it’s waters b/c Ghana had expressly agreed w Argentina to allow boat to enter port situation of reliance to detriment of Argentina = clear case of estoppel → prevents
Ghana from opposing continuance of this judicial procedure, therefore Ghana loses 5 Personality and Recognition
Statehood
Two requirements for statehood:
(a) Personality as a state subject of international law
(b) Recognition as a state by the actors of international law
NOTE: can also just recognise a government and not a state
Personality: This is the ability to possess rights and obligations under
international law by attaining international legal responsibility (ILP) Is (state X) a state? In order for (state X) to be considered a state, the four criteria prescribed by
Customary international law must be met. These criteria are codified in art 1 of
the Montevideo Conventions on Rights and Duties of States in that states
should have a permanent population, a defined territory, a government and
the capacity to enter into relations with other states. Permanent Population
(State X) has a permantent population of _____. This is a small number but
the number does not need to be large. There are already a few states with
smaller pipulations such as Vatican city of about 1000 people. Thus (state X)
satisfies this criterion. Western Sahara
Defined territory- Article 2(4) UN Charter; Corfu Channel; North Sea
Continental Shelf
(state X) claims that its area is coextensive with that of the old entity. It
appears to be exercising actual control over that territory. The (larger state)
denies the existence of any international boarder between itself and (state X).
However, the fact that an international boarder is contested does not justify
the assertion that the affected state lacks a defined territory. It is enough that
6 the territory in question possess ‘a sufficient consistency, even though the
boundaries have not yet been accurately delimited) (Deutsche continental v
Polish state). In any event, if (State X) has indeed emerged as a State, then its territory
would appear to be precisely defined. The principle of uni posseditis juris
requires that when an entity emerges as a state, any applicable preindependence administrative or colonial boundaries should remain intact until
an agreement to alter them is reached. This principle has also been applied to
transform the internal boundaries of a disintegrating federal state (Yugoslavia)
into international boarders for the new states which emerged. The principle of
uni posseditis juris is certainly applicable to situations, such as the present,
where internal administrative boundaries serve as the basis for a breakaway
states internationall frontier. Therefore, (state X) satisfies the criterion of a defined territory). Government
The requirement of government is not satisfied unless the governing authority
is both formally independent and actually effective. There is no reason to
believe that (state X) government is not independent. The government was
not however effective between the deceleration of independence (date) and
the withdrawal of the (other states) troops) (date). During this time the civil war
prevented (sate X) authorities from asserting themselves. It was only after
(other states) troops departed that a stable political organisation was created
and (state X) government became strong enough to assert itself through (state
X). (Aaland Islands Case) Accordingly, (state X) satisfies the criterion of government, but only from
(date). 7 Capacity to enter into relations with other states
(state X) statehood has been recognised by more that __ states, that
presumably stand ready to establish diplomatic relations with it. Furthermore,
the fact that these other states recognise (state X) is strong evidence that
(state X) satisfies all the criteria of statehood. (Tinoco Arbitration) Where one
embraces the declaratory or the constitutive theory of recognition it would
appear that (state X) possess the capacity to enter into relations with other
states. SS Wimbledon
At the time of the declaration of (state X)s independence, the proindependence forces in the (state X) were not a state and there is no
evidence that the conduct in declaring independence was attributable to a
state. Austro German Customs Union Consequently, the declaration of
independence did not violate (other states) territorial integrity (Kosovo
Advisory opinion). It would therefore appear that (state x) satisfies all the
criteria for statehood required by international law as of ___(date).
Note:
•
•
• Must satisfy all criteria to satisfy Statehood but loss of one may not
necessarily result in loss of statehood
‘…requirement of ‘government’ is understood as the existence of an effective
government, independent from the influence or control of other states’ (Emily
Crawford)
government - requirement of “stable political organisation” in control of the
territory doesn’t apply during civil war or where there is a collapse of law &
order in a state that already exists 8 Is Australia obliged to recognise (state X) statehood and
government?
Statehood
It is occasionally suggested that a state is legally entitled to be recognised if it
fulfils all the criteria of statehood. Where this is true, Australia would currently
be obliged to recognise (state X) as a state. However, the preponderance of
state practice views that recognition is a discretionary act which is validly
subject to political considerations. Australia is therefore free to recongise ( state X) statehood at its own disretion
and (state X) is not entitled to demand recognition form Australia as a matter
of legal right. If this advice is correct in its conclusion that (state x) satisfies all the essential
elements of statehood then no unlawful violation of (other states) sovereignty
would result from Australia’s recognition of (state X).
OR
If (state x) lacked any of the four essential indicia of statehood, the (other
state) would be justified in arguing that an act of recognition by Australia
would be an unlawful intervention in the (other states) internal affairs.
Self-determination – acknowledgement of independence
(state X) also seeks an ‘acknowledgment’ that its statehood dates from the
declaration of independence in __(date). This request is linked to a claim to a
right of self-determination by the (state X) people. It is already evidenced that
the essential criterion of effective government was not satisfied by (state X)
until __(date). Granting the acknowledgment requested would prima facie
constitute an unlawful intervention in the (other states) internal affairs. 9 Nevertheless, there is a state practice to support the view that a new entities
statehood may be recognised where a movement enjoying popular support is
fighting for independence in pursuit of a right of self-determination, and the
movement controls ‘substantial territory’. After the declaration of
independence in this case, the pro-independence forces never controlled less
than approximately 1/3 of (state X) territory. This is likely to amount to
‘substantial territory’. However, it must also be shown that (state X) people enjoyed a right to selfdetermination. To the extent that the principle of the self determination of
peoples entails a right to choose independent statehood, it applies to people
only inhabiting a colonial or other dependent territory, or to a ‘people’ within a
sovereign state who are systematically denied their right of internal self
determination to pursue their own political, economic, social and cultural
development. Undoubtedly, (state X) are people for the purposes of selfdetermination. (final report on concept of the right of people UNESCO), but
this entitles them only to certain minority rights under customary international
law and not to separate statehood. (GA resolution 47/125). This is so, unless
they are systematically being denied their right of internal self determination to
pursue their own political, economic, social and cultural development.
(Quebec). (state X) was part of a sovereign state and not a colonial or
dependant territory. There is also no evidence that the (state x) peoples
internal rights of self-determination were being suppressed by the (other
state). Therefore, (state X) declaration of independence was not made in
accordance with a right of self determination. Accordingly, Australia would likely commit an unlawful intervention in the SRT
internal affairs were it to acknowledge (state X) statehood as dating from any
time earlier than ___(date). 10 Government
As with recognition of states, there is no general obligation in international law
to recognise a foreign government. Australia may extend or withhold
recognition of (state X) government at its discretion, and may act on political
considerations in making its choice.
Since 1988 Australias policy has been not to...
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