high-distinction-public-international-law-exam-scaffolds.pdf - Public International Law Exam Notes Sources of International Law SS Lotus(France v

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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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