Public International Law Reviewer. A very good reviewer for this subject.Full description
Basic principles in PILFull description
The following notes are a summary of the contents of the book "Public International Law by Isagani Cruz, 1998 Edition" The author of this outline is currently a second year law student at Arella...
Public International Law
Public International Law Reviewer. A very good reviewer for this subject.Full description
This Project deals with the concept of Extradition, and the various International law, it also deals with some of the Indian cases of Extradition.
This paper deal with the concept of Extradition, and the Public International law dealing with, It also Deals withFull description
Public International Law Reviewer. A very good reviewer for this subject.Full description
International law status of the right to receive asylum: An Analysis
Full description
Author of the Book used: Assoc. Justice Isagani A. Cruz Professor: Atty. Hidelito S. Pascual University of San Carlos Note: The contents are sourced from the class discussions (also personal notes...
llb part 2 notes
History and background of law of the sea
Fall 2008
Professor Akhavan
PUBLIC INTERNATIONAL LAW 1. Nature of International Law It is self-regulatory by nature. There are different categories of “subjects of international la!" but the #ain subject i s the sovereign state.
. International Legal !u"#e$ts% !tates Subjects of International International Law The subjects of international la! have legal $ersonality. Int%l la! itself deter#ines !ho shall have legal $ersonality" and not all entities $ossess the sa#e $ersonality. As a result of changes in the t he last century" notably in the areas of hu#an rights" i nternational hu#anitarian la!" and international econo#ic la!" non&state actors such as int&l organi'ations and even in(i)i(uals have attained so#e #easure of international legal $ersonality. 'ut" they do not possess the same rights and duties as states. States and Statehood Statehood There is a shift no! a!ay fro# a $urely $o!er&oriented notion of statehood. As long as there is fait&acco#$li on the ground" !e !ill recogni(e. There is a strong nor#ative co#$onent) there #ust be hu#an rights" $rotection of #inorities" etc" before recognition takes $lace. *our Attri"utes of !tate+oo( territory *even if borders are unsettled+ $o$ulation govern#ent *effective , it governs the territory+ ca$acity to enter into relations !ith other states -see ,. 1 of onte)i(eo
Note) ca$acity is a nebulous conce$t. It is in so#e !ays a function of being recogni(ed as a sovereign state by other states" and in other !ays it is a de facto function of having the other three attributes. onte)i(eo Con)ention On t+e Rig+ts an( /uties of !tates 0123 T+e "est-4nown for5ula for setting out t+e "asi$ $+ara$teristi$s of state+oo(. Note) There is no centrali(ed legal $rocess to assess tehse factual circu#stances. /o!ever" consideration #ust be given to the $rocess under the 1 harter for ad#ission of ne! #e#bers and the $ractice of recognition of ne! states on a bilateral basis. Per5anent ,o,ulation . • There is no #ini#u# re3uire#ent. anada recogni(ed 1aura" !hich had a $o$ulation of 8425. It is not necessary that the $o$ulation $ossess the nationality of the ne! state. Nationality is (e,en(ent on state+oo( an( not ni $e )ersa . Territory. • 1o #ini#u# re3uire#ent. There is also no re3uire#ent of territorial unity" and a state #ay co#e into being and continue to e6ist des$ite border dis$utes *e6 , Israel+. • 6o)ern5ent. This is central" and is conco#itant !ith inde$endence. There #ust be govern#ental ca$acity to e6ercise $o!er over an area of territory and $o$ulation. • Ca,a$ity to Enter into Relations wit+ Ot+er !tates . This is both a $rere3uisite and a conse3uence of statehood because" until other states acce$t the e6istence of the ne! state" it is $revented fro# entering into di$lo#atic relations even if it is ca$able and !illing to do so. 1ecessarily" ca$acity is de$endent on an effective and inde$endent govern#ent.
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Professor Akhavan
Austro-6er5an Custo5s Union Case 71218 A()isory O,inion9 PCI:
This !as a re3uest fro# the ouncil of the eague of 1ations for an advisory o$ini on fro# the PI9 concerning the #eaning of the !ord in(e,en(en$e. Austria and :er#any established a free&trade custo#s union" and the court !as asked if !as in accordance !ith the 5;5; Treaty of Issue% =oes the union violate Austria%s inde$endence> ;el(% NO. 'ut" it is inco#$atible !ith both the $rotocol of 5;22 and the Treaty of
T!o basic theories) T+e state a,,ears only w+en it i s $onstitute( *a state is not a state unless it is recogni(ed by other states. @ecognition constitutes statehood+ /e$laratory *recognition is #erely recogni(ing after the fact a reality that e6ists on the ground+ In the current decentrali(ed syste# of int%l la!" there is no single organ having collective authority to deter#ine clai#s for ad#ission by ne! states and govern#ents. It has been described as the “free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.” @ecognition is not li5ite( to states . It is also a$$li ed to ne! govern#ents" to states in a condition of bell igerency" to organi(ed and effective insurgents" and #ore loosely to the territorial clai#s of states. T+e re$ognition of a state an( of a go)ern5ent is not t+e sa5e t+ing. A recogni(ed govern#ent cannot e6ist in the absence of a recogni(ed state. Ty$ically" Ty$ically" a ne! state !ill be recogni(ed and at the sa#e ti#e t i#e the regi#e that established it !ill be recogni(ed as the govern#ents. ost often" the #atter of u$$er#ost concern is that to do about a ne! regi#e in a recogni(ed state that co#es to $o!er by revolutionary #eans. Note) nconstitutional changes in gov%t" alterations to the na#e" and even the li#ited #ove#ent of territorial boundaries do not effect the continuation of recognition. Willia5s an( (e estral9 T!o T!o conflicting theories. constit utive effect only through this act is an international $ersonality • Constitutive Theory , recognition has a constitutive conferred and not the $rocess by !hich they *state and gov%t+ !ere factually factually for#ed. Bhat if a state is only recog%d by so#e • and not others. Declaratory Theory Theory or the videntiary Theory Theory , recognition is onl y for#al acce$tance of an already e6isting •
P 7elly
Fall 2008
Professor Akhavan
Austro-6er5an Custo5s Union Case 71218 A()isory O,inion9 PCI:
This !as a re3uest fro# the ouncil of the eague of 1ations for an advisory o$ini on fro# the PI9 concerning the #eaning of the !ord in(e,en(en$e. Austria and :er#any established a free&trade custo#s union" and the court !as asked if !as in accordance !ith the 5;5; Treaty of Issue% =oes the union violate Austria%s inde$endence> ;el(% NO. 'ut" it is inco#$atible !ith both the $rotocol of 5;22 and the Treaty of
T!o basic theories) T+e state a,,ears only w+en it i s $onstitute( *a state is not a state unless it is recogni(ed by other states. @ecognition constitutes statehood+ /e$laratory *recognition is #erely recogni(ing after the fact a reality that e6ists on the ground+ In the current decentrali(ed syste# of int%l la!" there is no single organ having collective authority to deter#ine clai#s for ad#ission by ne! states and govern#ents. It has been described as the “free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.” @ecognition is not li5ite( to states . It is also a$$li ed to ne! govern#ents" to states in a condition of bell igerency" to organi(ed and effective insurgents" and #ore loosely to the territorial clai#s of states. T+e re$ognition of a state an( of a go)ern5ent is not t+e sa5e t+ing. A recogni(ed govern#ent cannot e6ist in the absence of a recogni(ed state. Ty$ically" Ty$ically" a ne! state !ill be recogni(ed and at the sa#e ti#e t i#e the regi#e that established it !ill be recogni(ed as the govern#ents. ost often" the #atter of u$$er#ost concern is that to do about a ne! regi#e in a recogni(ed state that co#es to $o!er by revolutionary #eans. Note) nconstitutional changes in gov%t" alterations to the na#e" and even the li#ited #ove#ent of territorial boundaries do not effect the continuation of recognition. Willia5s an( (e estral9 T!o T!o conflicting theories. constit utive effect only through this act is an international $ersonality • Constitutive Theory , recognition has a constitutive conferred and not the $rocess by !hich they *state and gov%t+ !ere factually factually for#ed. Bhat if a state is only recog%d by so#e • and not others. Declaratory Theory Theory or the videntiary Theory Theory , recognition is onl y for#al acce$tance of an already e6isting •
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Professor Akhavan
situation , factual situation that $roduces legal constitution of the entities and recognition does not have to be a!aited for this $ur$ose. ajority o$inion su$$orts this theory. theory. ajority of la!s are still binding on unrecog%d states or gov%ts. In reality both are $artially true , it is declaratory based on factual 3ualifications and it is constitutive as it brings the state into the vacuu# of international relations as an e3ual. Cana(ian Pra$ti$e of Re$ognition Fro# a 5;C5 letter !ritten !ritt en by the
There are t+ree ,rin$i,le 5et+o(s of according recognition to go)ern5ents) • E>,ress Re$ognition 0T+e first Cana(ian a,,roa$+ -?23 Dvery ti#e an unconstitutional change i n govern#ent occurs in a foreign state" a revie! of generally acce$ted recognition criteria is done" and an e6$ress state#ent according or !ithholding recognition is #ade. Ta$it Ta$it Re$ognition 0T+e se$on( Cana(ian a,,roa$+ ?2-@@3 • Bhen an unconstitutional change in govern#ent occurs" relations are #aintained on a business as usual basis. 1o state#ent on recognition is issued and anada%s $osition $osition vis&&vis the ne! regi#e is inferred fro# the nature of our relations !ith it. • Re$ognition of !tates A,,roa$+ 0T+e $urrent Cana(ian a,,roa$+ @@ onwar(3 i t !ould no longer issues state#ents of recognition of The strada Doctrine) In 5;G0 e6ico declared that it govern#ents" because this $ractice !as insulting and offended the sovereignty of nations. It !ould confine itself to recogni(ing states only. The disadvantage of the Dstrada doctrine is that there !ill inevitably be situations !here a govern#ent #ay !ith to #ake an e6$ress state#ent either according or !ithholding recognition. a5 Alert% W+y is it a()antageous to states to a)oi( a$$or(ing re$ognition to foreign go)ern5ents *$. 24+ /isintegration of Dugosla)ia Dugosla)ia 'efore 5;;5" the
The Duro$ean o##unity issued certain guidelines on the @ecognition of 1e!
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Professor Akhavan
State succession and regional disputes.
In 5;54 Tinoco overthre! the govern#ent of osta @ica. /e assu#ed $o!er" called an election" and established a ne! constitution. In 5;5; he retired and !ent to Duro$e on account of $oor health. /is govern#ent fell a #onth later and subse3uently $assed a la! nullifying #any of the obligations assu#ed by the Tinoco regi#e to!ard foreigners *on the grounds that the govern#ent !as unconstitutional+" including @' and other 'ritish nationals. 'ritain brought this clai# on account of the alleged #istreat#ent of its nationals. The sole arbitrator considered the status of the Tinoco govern#ent. The arbiter found the state is al!ays bound by the obligations of the $revious govern#entKregardless of its o constitutionality *i.e. de facto govern#ents% res$onsibilities are $assed on" regardless of their de *ure status+ but" the obligations !ere not u$held because the obligations contracted !ere contrary to the onstitution of osta @ica o at the ti#e they !ere #ade o egiti#acy of the gov%t is !ithout i#$ortance in international la! , $robably !ould not be #ade today. Note) The 'ritish clai# !as ulti#ately rejected because the obligations undertaken by the Tinoco govern#ent to!ard @' and the other foreigners !ere held to be unvalid under the la! in e6istence at the ti#e , that is" the constitution and la!s of osta @ica under the Tinoco regi#e. Sovereignty and !uality Islan( of Pal5a Case% Net+erlan(s ). Unite( !tates 71@8 page "" te#t
This case is the #ajor authority on title to territory. In the 58;8 Treaty of Paris" <$ain ceded the Phili$$ines to the <. In 5;0L a < official of the < found a =utch flag flying there. The 1etherlands and the < referred the 3uestion of territorial sovereignty over Pal#as to arbitrartion. ;ol(ing) The 1etherlands had good title as they had continually and $eacefully occu$ied t he island since before 5C00. <$ain could not transfer to the < #ore right to the island that it itself $ossessed. Charter of the $nited %ations & articles ' and ( see (o$u5entary su,,le5ent Arti$le . is very i#$ortant. In the conte6t of BBII it !as a revolutionary conce$t *before" !ar !as an e6tension of !hat
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Professor Akhavan
$olitics couldnt achieve+. Be dont believe that might makes right any#ore. This is a function of the notion that all states have eual so)ereignty . Arti$le .? , nothing shall authori(e the 1 to intervene in ... do#estic jurisdiction. 'ut !hat is in the do#estic jurisdiction> *1ote...is financing an election by a foreign state considered an intervention>+ Declaration on )rinciples of International Law Concerning *riendly Relations and Co+,peration among States in -ccordance with the Charter of the $nited %ations !ee (o$u5entary su,,le5ent The declaration originated in 5;L5 as an initiative by the then No. They are subordinate to the sovereign state" e6ce$t for !hen they are given certain $o!ers by their do#estic legal syste#. Its the constitution of the state !hich gives the# their $o!ers. In Cana(a) !e have a #easure of delegation *division of $o!ers+. Provinces !ill so#eti# es negotiate agree#ents !ith neighboring states in the < regarding things that fall in $rovincial jurisdiction and it is convenient. In the case of Muebec there has been certain delegation of $o!ers) the $rovince of Muebec has s$ecific agree#ents !ith France for educational e6changes" for e6a#$le. Its an e6tension of $o!ers that !ere given by the (o5esti$ $onstitution . International la! doesnt recogni(e the# as having s$ecial $o!ers. Note% Federal treatyaking $o!er has co#e into collision !ith the division of $o!ers. In the days !hen intl treaties !ere unco##on" it !asn%t #uch of a $roble#" but no! #ost to$ics are regulated through a host of international treaties. There are a nu#ber of $roble#s. They Feds #ight accidentally usur$ the $rovincial $o!er. 'ut" in the other case" !e see the $roble# if the Feds have to first gain the consent of all $rovinces before it can negotiate a treaty. *Perha$s nothing !ould get done+. State Continuity- a state continues to e6ist regardless of changes of govern#ent until it is e6tinguished by absor$tion into another state or dissolution. State Succession- concerns the legal conse3uences that follo! !hen one state re$laces another. D6a#$les of succession) total absor$tion of one state b y anotherN $artial absor$tionN inde$endence of one state fro# anotherN #erger of t!o e6isting statesN dis#e#ber#ent of one state into distinct $arts.
o what extent are the existing rights and obligations of the predecessor state extinguished and to what extent does the successor state take up those rights and obligations/ istF t+e restore( go)ern5ent is generally lia"le for t+e a$ts of t+e usur,er. ;ol(ing) The 'ritish clai# !as ulti#ately rejected because the obligations undertaken b y the Tinoco govern#ent to!ard the @oyal 'ank and the others...!ere held to be invalid under the la! in e6istence at the ti#e) the constitution and la!s of osta @ica under the Tinoco regi#e. Succession to Rights and ,bligations *ro5 !.A. Willia5s9
In su##ary" Muebec !ould not be bound under custo#ary int%l la! by the treaty obligations entered i nto by anada. This stands to reason" as it is a basic $rinci$le of treaty&la! that treaties bind
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Fall 2008
Professor Akhavan
$rinci$le of $rivity in do#estic contract la!. Dven if the ne!
&
erritorial reaties *also called @eal Treaties+ *concerning rights of transit over territory+ These re#ain binding for !hichever state controls the territory concerned o D6. ase oncerning the :abckovo&1agy#arus Project) /ungary v.
Succession to %ublic %roperty & :enerally" seceding states succeeds $ublic $ro$erty *including debts" rights" and interests+ situated in its territory. Succession to %ublic 0ebts & usto#) inherit only locali(ed debt. *i.e. building a local air$ort+ & 1ational debt could be divided according to a $lethora of for#ulas & in MOanada" succession !ould re3uire successful negotiation in this area because the status in international la! is indeter#inate. In Hugoslavia there !as a co#bination of territorial debts and debts $rorated based on :=P enforced by international creditors !ho !ouldn%t do business !ith ne! states other!ise Hienna Con)ention on !u$$ession of !tates in Res,e$t of Treaties See text page 12
2. International Legal !u"#e$ts% International Organi'ations International )ersonality of an Int2l ,rgani3ation) =oes the $ractice of states de#onstrate their readiness to $er#it this candidate to e6ercise any s$ecific legal ca$acity on the international $lane> It 5ust be recogni(ed by other subjects of the international legal syste#. Bere saying in effect that it has such • $ersonality because it is recogni(ed as having that status by other states. Intergovernmental ,rgani3ations) I:E , inter&govern#ental organi(ation *1+ 1:E , non&govern#ental organi(ation *:reen$eace+ N34s are started by people, 34s are started by states. Intergo)ern5ental Organi'ations are created by states. They !ill create a treaty that sets out the $o!ers of the organi(ation. For e6a#$le" although the IC: has international $ersonality" it has #uch #ore li#i ted rights and obligations than states.
34s have a broad range of characteristics) O!CE *Ergani(ation for
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Fall 2008
Professor Akhavan
EU is an international organi(ation that is the closest thing !e have to a superstate. UN is the $ree#inent I:E and the closest thing to “!orld govern#ent. T+e Unite( Nations Al#ost 5;0 states are $art of it and #any have e#erged in the decoloni(ation $eriod. Dvery state has one vote. ,rganisation of the $% 7ey $arts of the 1 *<" :A" Dcon. and
o#$le6 relation bOn the :A and < :A is #ore re$resentative but the < has #ore $o!er. Purse strings technically held by the :A Art 5C , so in effect the :A can control the < bOc it controls the budget • & Peacekee$ing is often funded in a different #anner. & Poorer countries still see sending $eacekee$ers as a #oneyaking #easure T+e !C is t+e 5ost $ontro)ersial ,art. By,assing t+e $oun$il is t+e lit5us test for w+et+er t+ere is res,e$t for t+e UN9 an( w+et+er t+ere is suffi$ient unani5ity a5ong t+e 5a#or ,owers. If t+eyre not in agree5ent9 unilateralis5 is li4ely to ,re)ail. Charter of the $nited %ations -rticles '4 (4 5+"(4 66+'16 see (o$u5entary su,,le5ent
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Fall 2008
1 harter art 504
Professor Akhavan
Jthe organi(ation shall enjoy in the t erritory of each of its #e#bers such legal ca$acity as #ay be necessary for the e6ercise of its functions and the fulfill# ent of its $ur$oses.
T+e Na5i"ia Case 71?J8 page 7/ te#t
Bith resolution 254Q" the 1 :A ter#inated
In 5;48 a Hes" because it has objective international $ersonality" inde$endent of its Q0 #e#ber states *see#s a little strange • though , agree#ent bet!een states effects non&contracting $arties+ There can be concurrent clai#s !ith #e#ber states conflict bet!een
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Professor Akhavan
It reco##ends structural changes to the 1. In the te6t" !e see that the secretary general had organi(ed a high&level $anel $rior to the !orld su##it !hich #ade reco##endations to restructure the 1 to reflect the realities of the $resent&day !orld. The #ajority of the reco##endations !ere re#e$te(. En the essential issues *$articular the restructuring of the
. International Legal !u"#e$ts% Peo,les ntil the 20th century the $revailing vie! !as that only states $ossessed true international legal $ersonality. /o!ever" es$ecially in the area of $rotection of hu#an rights" the individual has attained standing before so#e international bodies *not the I9+. Peo,les go to the foundation of the notion of statehood. *A state needs a ,o,ulation+
In the Best$halian tradition" the basic $re#ise !as of ethnic ho#ogeneity. T!o $ossible $ositions) assi5ilation or e>$lusion *e6) France *no indigenous #inorities+ or the holocaust+
)eoples see8ing self+determination A $eo$les% right to choose ho! they !ant to be governed The ability to assert such a right in la! de$ends on the standing that is accorded to its clai#ants at international la!. It #ust be considered as to !hether $rinci$le of self&deter#ination has achieved the status of a rule of custo#ary international la!. This is an assertion of collective rights , under the 1 charter *in !hich self&deter#ination is referred to but not • defined+ this right has been used as the basis for the decoloni(ation of de$endent territories during the 5;L0%s and C0%s Charter of the $% -rticles '9(:4 664 5" See documentary supplement /e$laration on t+e 6ranting of In(e,en(en$e to Colonial Coun tries an( Peo,les 71MJ8 UN 6A page 5( te#t
R#entions self-(eter5ination. It%s a funda#ental ele#ent of hu#an rights. *!hich is conceived as a collective right+ If $eo$le don%t have self&deter#ination they don%t have individual rights yet. “All $eo$les have the right to self&deter#inationN by virtue of that right they freely deter#ine their $olitical status and freely $ursue their econo#ic" social and cultural develo$#ent. Note% ,aragra,+ 2 goes "a$4 to t+e League of Nations 5an(ate This resolution goes beyond non self&governing territories to enco#$ass all $eo$les under colonial rule. Ele5ents of a Nation Ebjective Dle#ents) language" history" culture" religion" ethnicity o Hes) should $revent $eo$le fro# clai#ing rights on a su$erficial basis 1o) ay li#it legiti#ate efforts through ignorance" $olitics" etc. T+e ol( i(ea) A nation needs so#e sort of ethnic distinctiveness and to be geogra$hically se$arate...
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*This !as the old idea" not !ritten do!n...+ There has been a rush to self&deter#ination *!hich is understandable because of treat#ent under colonial rule+" but this rush has led to internal violence on #any occasions. Western !a+ara Case 71?K8 IC: A()isory O,inion page 5" te#t
B< has been colony of <$ain since 5884. Po$ #ostly no#ads. 'Oc of res. 5Q54 and s$ecific re3uest of res 222;" <$ain consulted neighbouring auritania and orocco to deter#ine $rocedures for holding a referendu#. 'oth countries clai#ed territory based on “historic title that $redated <$ain%s ac3uisition. Advisory o$inion sought as to the status of the territory <$ain and Portugal !ere the first Duro$ean I#$erial $o! ers to coloni(e the A#ericas and the last to leave. In the case of <$anish and Portuguese $ossessions of Africa" in CQ !hen the govern#ents !ere to$$led and a less #ilitaristic govern#ent took sha$e" the territories !ere eventually relin3uished. /ere is a reflection of ho! international la! evolved and !as transfor#ed because of $eo$les and self&deter#ination. ;ol(ing% It is u, to t+e , eo,le of t+e W! to (e$i(e. An$ient ties to t+e territory are se$on(ary. =eclaration *listed above+ and res 5Q54 confir# and e#$hasi(e that the a$$lication of this right re3uires a free an( genuine e>,ression of will of t+e ,eo,les $on$erne( There is no! a nor#ative co#$onent to the notion of statehood that involves self&deter#ination. It can take different for#s) D#ergence as a sovereign inde$endent
The ourt !as re3uested by the :A to render an advisory o$inion on “the legal conse3uences arising fro# the construction of the !all being built by Israel" the occu$ying $o!er" in the Eccu$ied Palestini an Territory. The ourt found that the construction of the !all !as contrary t o international la!" and Israel !as obligated to cease construction and # ake re$arations for da#ages" and that other states !ere obli gated not to recogni(e or assist in “#aintaining the situation of illegality. The ourt !ould observe that the obligations violated by Israel include certain obligations erga omnes , !hich by their very nature concern all states. In the vie! of the i#$ortance of the rights involved" all
In the $receding cases the ourt !as clearly of the vie! that the right of $eo$les to self&deter#ination is a fir#ly established $rinci$le of international la!" and in the 'ast imor case -5;;Q the ourt referred to the $rinci$le of self&deter#ination as “one of the essential $rinci$les of int ernational la!. In 'ast imor and the %alestinian erritory *above+ cases" the ourt stated that the right to self&deter#ination !as an obligation erga omnes" thus binding on all states" and one in !hich all states have a legal interest. Referen$e Re% !e$ession of Gue"e$ 71@8 !CC page 50 te#t
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Issue) Muestion 2. =oes I give the 1ational Asse#bly the ri ght to affect the secession of M fro# anada unilat erally> Is there a right of self&deter#ination granting such a $o!er> *5+
The ourt decided they could not unilaterally secede.
There is so#e a$$rehension about recogni(ing the rights of $eo$les outside of 3uestions of territory e6ce$t in e6tre#e situations. Pro"le5s wit+ Rig+t to !elf-/eter5ination & The $ossibility for infinite subdivision of the individual “overla$$ing co##unities harles Taylor & Pushed to the e6tre#e" $eo$le&hood leads to e6clusion" even ethnic cleansingJ & haracteristics change over ti#e , identity #ust be constantly reassessed & The @ight to
K. International Legal !u"#e$ts% Cor,orations an( N6Os These do not $ossess even the li#ited legal $ersonality of their inter&govern#ental cousins. /o!ever" they do have an influence on the creation and a$$lication of International a!. %on+overnmental ,rgani3ations 1:Es e6ist in every field of hu#an activity. any of the larger 1:Es also #ake and a$$ly rules and standards for their fields of concern that are acce$ted generally as t he international nor5s of $on(u$t in those areas of endeavor. 1:Es $lace in I has been based on Art ?1 of t+e UN Charter , consultative status can be given to 1:Es !hich • allo!s the# access and $artici$ation in the creation and a$$lication of I. see page 55 text Bhat sorts of 1:Es have so#e uasi-law 5a4ing $a,a$ity > IE , Ely#$ic co##ittee , la!s and rules for international co#$etitions. D6ercise regulatory functions • I , International ha#ber of o##erce , Paris , reg of trade" $ay#ents • 1 onference on Dnviron#ent and =evelo$#ent *1D=+ -5;;2 hundreds of 1:Es staged a co#$lete • alternative conference to the for#al #eetings of govern#ent re$resentatives" and contributed to the develo$#ent of the legal te6ts. •
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s this a good thing ( If there is no de#ocratic s$ace" do not 1:Es beco#e the only for# of $o$ular e6$ression> Proliferation of 1:Es sho!s the increasing i#$ortance of international la!. • Dven conservative grou$s have entered the fray , influence is seen. • Transnational Corporations The #ulti&national involve#ent of $rivate cor$orations has been the focus of international att ention for #any years. Their activities carry the# across c they have immunity The Prosecution e#$hasises that the !itness took the initiative to contact the Prosecution and is !illing to give evidence before the International Tribunal. The Prosecution states that it understands the I@%s concern to be that national authorities #ight deny I@ $ersonnel access to $laces !here $ersons $rotected by the :eneva onventions are located if they think that these I@ $ersonnel #ight subse3uently testify in cri#inal $roceedings about !hat they have seen and heard in those $laces. Although sy#$athetic to the I@ concerns" the Prosecution reiterates its vie! that the I@ does not enjoy" as a #atter of l a!" any i##unity or $rivilege that !ould enable it" unilaterally" to $revent any of its for#er e#$loyees fro# testifying. It is the I@%s general $osition that the testi# ony of a for#er I@ e#$loyee !ould involve a violation of $rinci$les of international hu#anitarian la! concerning the role of the I@ and its #andate under the :eneva onventions. Issue) =oes the I@ have international legal $ersonality> =o it and its e#$loyees have i##unity> “In the Trial ha#ber%s vie!" the issue to be considered is !hether the I@ has a relevant and genuine confidentiality interest such that the testi#ony of a for#er e#$loyee" !ho obtained the Infor#ation ! hile $erfor#ing official duties" should not be ad#itted. ;el() D#$loyee of the I@ has i##unity and cannot be forced to testify Reasoning) It is conceded by both sides and the court agrees that the I@ has an international legal $ersonality. • The International Tribunal%s @ules #ay be affected by custo#ary international la!" and that there #a y be instances
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!here the discretionary $o!er to ad#it any relevant evidence !ith $robative value #ay not be e6ercised !here the ad#ission of such evidence is $rohibited b y a rule of custo#ary international l a!. • the I@" an inde$endent hu#anitarian organi(ation " enjoys a s$ecial status in international la!" based on the #andate conferred u$on it by the international co##unity;. The Trial ha#ber notes that the functions and tasks of the I@ are directly derived fro# international la!" that is" the :eneva onventions and Additional Protocols . Another task of the I@" under its
of i#$artiality and confidentiality sufficient to shield I@ delegates for# testi#ony 1o 3uestion of balancing !ith !ish for justice arises , custo#ary la! binds so no balancing is at issue. -8havan This case !as brought on by a #e#ber of the $rosecution that !as convinced she could take on the I@ under • art. C. The outco#e !as that des$ite the cautious !ords of the dissent !ho advocated a $rag#atic" balancing of interests a$$roach" the #ajority affir#ed the I@%s s$ecial status and gave the# absolute i##unity. The result , the I@ !as able to legislate that i##unity through statute. • Transnational Corporations The #ulti&national involve#ent of $rivate cor$orations has been the focus of international att ention for #any years. Their activities carry the# across
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Issue of i55unity , state i##unity. A state cannot be sued" !ith certain e6ce$tions *taking of $ro$erty and torture+. An e6a#$le !ould be F
Issues of nationality of Corp 'ased in 'er#uda" #anufacture in Tai!an" sell in sJJetc" • I
M. !our$es Treaties “International la! governs relations bet!een inde$endent states. The rules of la! binding u$on states" therefore" e#anate fro# their o!n free !ill as e6$ressed in conventions or by usages generally acce$ted as e6$ressing $rinci$les of la! and established in order to regulate the relations bet!een these coe6isting inde$endent co##unities or !ith a vie! to the achieve#ent of co##on ai#s. , PI9" he Steamship 6otus Arti$le 2@ !tatute of t+e International Court of :usti$e 5. The ourt" !hose function is to decide in accordance !ith international la! such dis$utes as are sub#itted to it" shall a$$ly) a. international $on)entions " !hether general or $articular" establishing rules e6$ressly recogni(ed by the contesting statesN b. international $usto5 " as evidence of a general $ractice acce$ted as la!N c. the general ,rin$i,les of law recogni(ed by civili(ed nationsN d. 3eneral principles- Borks fro# the to$ do!n) not looking at the $ractice of states" but is rooted in $rinci$les of natural la!" logic" social necessity.
There is 1E hierarchy" but in $ractice" !hich !ould !e say is the #ost i#$ortant and !hy> Treaties are the #ost certain source of la!. Be need only inter$ret the $rovisions of the treaty. 'ut" does that #ake a treaty #ore i#$ortant as a source of la!> Custo5ary law tends to be #ore substantive. It re3uires !ides$read consistent $ractice *Treaty la! and custo#ary la! overla$ a great deal+ A treaty could $ossibly override a $re&e6isting custo#" and a subse3uent custo# #ight su$$lant a treaty.
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RRsee ,age 1J@ te6t for interesting notes about custo#ary vs. treaty la! *ir5 law )ersus !oft Law% The rules the co#e fro# the la!aking $rocess fro# art. G8.5 *a+ , *c+ I9 are fir5 law *lex lata+. • !oft law *lex ferenda+ co#es fro# instru#ents that are not directly enforceable in do#estic or int%l tribunals but are still enforceable. *i.e. /elsinki Accords or ED= :uidelines for ultiateral Dnt er$rises+.
Treaties are generally i#$le#ented by reciprocity. If you dont honor your side" the other $arty has the right to !ithdra!. Hou can !ithdra!) that is one reason !hy intl treaty #aking is 3uite different fro# contract la!. Note) so#e treaties are si#$ly codification of already e6isting custo#ary la!. And" so#eti#es you have a treaty that beco#es !ides$read custo#ary la! *because of !ides$read acce$tance+ Customary Law It reflects a fait accompli. It sho!s us !hat the actual e6isting consensus is.
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Fall 2008 custo#ary la! y conclusion
Professor%s conclusion
Professor Akhavan hand. 'asically then the court did suggest so#e!hat of a hierarchy in that a treaty !ould take $recedence over custo#ary la! if the court !as not convinced that the states in 3uestion no longer !ished to be bound" ho!ever the evolution of custo#ary la! !ould not be disregarded by the court during the $roceedings and therefore #ay have so#e ulti#ate influence over ho! the courts inter$ret the a$$lication of the treaty to the facts. The court has neatly sideste$$ed the 3uestion of $riority faced !ith the conflict bet!een the t!o.
2. Bhen the rule in a Treaty can also be found in usto#ary a!) Bilitary -ctivities In and -gainst %icaragua4 IC: 1@M
Facts
/olding & identical content to a treaty&rule does not negate the inde$endent e6istence of custo#ary rules.
The .<. argued that the e6istence of certain $rinci$les in the .1. harter or other treaties $recluded the $ossibility that si#ilar rules could e6ist inde$endently in custo#ary la!. In this case it !as decided" des$ite relevant treaties" that the .<. had violated its custo#ary I obl%s *a+ not to intervene in the affairs of 1icaragua and *b+ not to use force against it. Treaty and custo#ary nor#s retain a se$arate e6istence even if they have e6actly the sa#e content. The o$eration of a treaty $rocess does not de$rive the custo#ary nor# of its se$arate a$$licability. If A breaches a treaty&rule !ith '" ' is e6e#$t fro# his treaty&rule. 'ut if the sa#e rules e6ist in custo#ary la! the breach of treaty by A does not justify '%s refusal to a$$ly the other rule as he is also bound by custo#ary la!.
@ienna Convention on the Law of Treaties -rticles '4 ( 4 "4 64 and ; see documentary supplement
If the treaty relates to a defense $act" *do#ain of feds+ you dont have to !orry about the (istri"ution of ,owers" but if it relates to the environ#ent" e#$loy#ent" etc" you have to be a!are that eventually you need to have 50 $rovinces signed on. E>e$uti)eLegislati)e) treaty #aking $o!er is e6ecutive" but in res$ect to the re3uired i#$le#entation *through legislation+" then you also have to take into account !hether $arlia#ent is likely to acce$t it or not.
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Note% in so#e other countries" its the $arlia#ent that actually ratifies the treaty directly. *=o#estic i#$le#entation and ratification are one in the sa#e. The 1etherlands is like this+ Note% if the treaty doesnt effect the legislature at all" then $arlia#entary a$$roval #ay not be a $roble# at all *this is in the #inority of cases+
Treaty Ba8ing 9see page '(1 te#t: 5+ The re$resentative of a this can sometimes be upon signature:
This is a 2 ste$ $rocess)
The $eo$le negotiating the treaty usually do not have the $o!er to give it binding effect !ithin their state @e$resentative #ust have “full treaty #aking $o!ers to give consent of his or her state *see art C of ienna onvention+
@atification) o
o o
Federal states , often re3uire sub&unit to a$$roveN anada tries to $ut in Federal reservation but this isn%t !ell acce$ted D6ecutive a$$roval) sually the Mueen" or the :overnor&in&ouncil In < , President needs a$$roval of the
)rivity of Treaties
9ust like 7s" treaties cannot bind Grd $arties *non&signatories+ 1ot an absolute rule this is different !hen a treaty creates a "enefit Art 2M ienna onvention allo! for “assu#ed acce$tance for treaties that confer benefits Art 2K allo!s for third $arty obligations" but the Grd $arty #ust ackno!ledge the obligation in !riting ntry into force , certain nu#ber of states have to ratify it in order for it to enter into force , ienna onvention art 24&2Q , $rovisional a$$lication $rior to ratification. =ate varies according to intention of $arties *art 24 ienna+ • First signatories #ay not be bound by the convention )ua treaty for so#e ti#e *ie $rior to ratification+ though they • are bound to refrain from acts which would defeat the object and purpose of the treaty *Art 58 of ienna+ Publication and @egistration) Ence it has co#e into force" it is registered !ith 1
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I IE o annot #ake reservations to treaty $rovisions that reflect custo#ary nor#s. o
Reser)ations to t+e Con)ention on 6eno$i(e Case 71K18 IC: page '(7 te#t
Advisory o$inion re3uested by the :A regarding the reservation that had been att ached to the treaty an states #ake unilateral reservations to the onvention on :enocide> ;ol(ing% :eneral Princi$le)
The Hienna Con)ention has codified #uch of !hat the I9 said in articles 2" 5;" 20" 25" and 22. Cana(a fre3uently strives to have a fe(eral-state $lause $ut into a treaty *or !ill enter a reservation+ !hich has the effect of reserving anada%s obligations at international la! concerning #atters !ithin t he legislative jurisdiction of t he $rovinces. Note% An inter,reti)e (e$laration differs fro# a reservation. The I defines it as “a unilateral state#ent" ho!ever $hrased or na#ed" #ade by a
An advisory o$inion. Treaty of ersailles" to !hich
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they did acce$t a $ro$osal about the $lace#ent of French usto#s" !hich therefore beca#e a territorial agree#ent in their favour *by earlier agree#ent+ If they hadn%t acce$ted it" it !ould still be $ossible for other states to grant < *any third state+ certain rights so long • as it can be established that that is their intentionKas !ould have been the case here “The 3uestion of the e6istence of a right ac3uired under an instru#ent dra!n bOt other states isJone to be decided in each $articular case) it #ust be ascertained !hether the states !hich have sti$ulated in favour of a Grd state #eant to create for that state an actual right !hich the latter has acce$ted as such. •
O,eration of Treaties -mendment and Bodification Article G; of the ienna onvention confir#s that a t reaty #ay be a#ended by agree#ent bet!een the $arties. :enerally there !ill be a $rovision about this in a treaty. The 1 harter contains such a $rovision * article 789+ On$e a treaty +as "een $on$lu(e(9 w+en (oes i t cease to be operative 'ecause there is no global $olice" there is tre#endous conservativeness. Hou !ant to do everything to #ake sure that a state cannot unilaterally !alk a!ay fro# it. Slova8ia: E'005F IC? see page '"0 te#t
The case regards the construction of a da#. It !as no longer in the interest to /ungary !hereas
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$roceed. They had concluded a treaty to build the series of da#s and /ungary abandoned the $roject. The court $retty #uch rejected all of the G *above+ grounds. The notification of ter#ination *given on ay 5; 5;;2+ did not have legal effect. Akhavan #entions #moco nternational "inance orp v. ran on ,age 1M te>t . < and Iran agreed on arbitral tribunals. .....tribunals are e6tre#ely reluctant t o allo! a treaty to no longer a$$ly" because of the self(policing nature of int=l law
?. !our$es Custo5 eneral Customary Law usto#ary International a! is co#$osed of t!o ele#ents) 5+ There #ust be a consistent and general i nternational $ractice a#ong states 2+ The $ractice #ust be acce$ted as la! by the international co##unity.
The conce$ts have been advanced to e6$lain !h y “international custo#" as evidence of a general $ractice acce$ted as la! is binding on states) $onsent9 esto,,el9 an( reasona"leness . atters of $rotocol *eg. shi$s saluting other %s flags on the high seas+ are ,ra$ti$es "ut are not o"ligations . /o! does a ne! rule e#erge> 4pinio :uris. Bhat is their basis for doing so> ;ol(ing% No. Territorial effe$t @ules of I flo! fro# the consent of states" therefore restrictions on states can never be $resu#ed. • & France has to sho! that such a violation of I e6ists" rather than co#$elling Turkey to establish a ground for its national jurisdiction & France raised three argu#ents to this effect" all of !hich failKi.e. Turkey did not act in conflict !ith $rinci$les of I because France failed to establish that any such $rinci$les e6ist & territoriality is the first" and #ost solid basis of jurisdiction & There is a valid $rovision in the Turkish ri# code asserts e6tra&territorial a$$lication of Turkish la! & 'ut" the basis of jurisdiction is actually the i#$act of the cri#inal behaviour on Turkish territory *i.e. the i#$act of the ca$ts behaviour on the shi$ !hich is Turkish territory+ I.e. if the death takes $lace on Turkish territory" the country has TD@@ITE@IA jurisdiction *the shi$ is Turkish" so the i#$act of the !rongful act !as felt on Turkish territory & jurisdiction is territorial" but it doesn%t follo! that a state cannot e6ercise that jurisdiction !ith res$ect to events that occurred e6tra&territorially D6. If you shoot a gun across the border" and kill so#eone on the other side" both states have jurisdiction over the cri#e" on
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a territorial basis =id the court look for a s$ecific nor5 of $usto5ary law that $er#itted jurisdiction orJlook for a ,ro+i"itory nor#> They looked for $rohibitory nor# , none" therefore it is not $rohibited. Nort+ !ea Continental !+elf Cases *e(eral Re,u"li $ of 6er5any ). /en5ar4 ). Net+erlan(s 71M8 IC: page '6' *a$ts) =is$ute over location of deli#iting of boundaries bet!een these nations , Article L of the :eneva onvention on ontinental shelf is not o$$osable to :er#any , this is the e3uidistance $rinci$le. Muestion is #ariti#e li#itation “Bhat $rinci$les and rules of int%l la! are a$$licable to the deli#itation as bet!een the $arties of the areas of the continental shelf in the 1orth =is$ute as to +ow to (i)i(e t+e $ontinental s+elf bet!een 1etherlands" :er#any =en#ark. :er#any has signed" but not ratified the treaty and clai#s it is not bound. =7 and 1eth argue :eneva onvention on ontinental ;ol(ing% 1o. D3uitable $rinci$les a$$ly and $arties #ust ha##er out agree#ent & Art. 2@% IC: !tatute- Int&l $usto5 is e)i(en$e of general ,ra$ti$e a$$e,te( at law. & T!o distinct co#$onents) 5. :eneral $racticeN 2. Acce$ted at la! 4pinio :uris & Possibility of reservations to this $rovision sho!s that states do not think this is custo#ary & onsider object and $ur$ose of the convention & in this case the issue is not against the object and $ur$ose" therefore a reservation is $ossible & If derogations e6ist , can this really be I. & =id it beco#e I because of subse3uent state $ractice> & no evidence that states acted the !ay they did because they believed they !ere obliged to do so" i.e. no evidence of opinio *uris & Bhat has attained opinio *uris is *a+ that such deli#itations are the result of agree#ents and *b+ that they are e3uitable & neither of these i#$ly the e3uidistance #ethod" in fact" *b+ #itigates against it in so#e circu#stances & Fro# the 6otus case , “only if such abstention !ere based on their being conscious of having a duty to abstain !ould it be $ossible to s$eak of an international custo#.% &
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Rule t+at e5erge( in 2r( LO! $onferen$e was% agree5ent on t+e "asis of IL in or(er to a$+ie)e an euita"le solution 0i.e. t+e $ourt&s ruling3 Note% :eneral 3uestions regarding state $ractice are found on $age 5LG t e6t. Regional of !,e$ial Custo5ary Law Rig+t of Passage o)er In(ian Territory Case Portugal ). In(ia 71MJ8 IC: page ';6 te#t *a$ts% Portugal held several s#all enclaves of territory !ithin India. Ene" =a#an" !as on the coast" but the others !ere inland. Portugal clai#ed a right of $assage to its inland enclaves and alleged that India had interfered !ith the e6ercise of this right. 'asis of clai# is lo$al $usto5. Issue% an this right be asserted on the basis of local custo#> ;el(% Hes. usto# established. ocal custo# #ust not involved #ore than t!o nations. =uring 'ritish and $ost&'ritish $eriods" $assage has been allo!ed and" therefore custo# has been established and has given rise to a right and obligation.
ase goes back to a ti#e !hen relations bOn neighboring states !ere reg%d b y $ractice. Practice here !as clearly established by the t!o $arties , this #ust $revail over any general rules. Asylu5 Case Colu5"ia ). Peru 71KJ8 IC: page ';; te#t *a$ts% The olu#bian govern#ent clai#ed that it had the right to give asylu# to the Peruvian /aya de la Torre" !ho had sought refuge in the olu#bian D#bassy in Peru. It relied not only on the rules arising fro# agree#ents" but on an alleged regional or local custo# $eculiar to atin A#erican isten$e of su$+ $usto5.
Muestion) 1.
T+e notion of $usto5ary law is 5erely an a,ology for ,ower realities 0e> ,ost fa$to legiti5i'ation3
For) usto#ary la! is usually enforced by actors the#selves rather than institutions. Po!er can be used to for# la! in a very clear and direct !ay. Bay the court decides , $o!erful states are going to i#$ose $ractice on !eaker states , entrench $o!er realities • , Treaty $rocess is $robably #ore fair • $rocess.
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In (eter5ining $usto5ary law9 (oes t+e in$reasing i5,ortan$e of a nor5 i5,ly t+e (e$reasing rele)an$e of state ,ra$ti$e an( a ,ro,ensity to su"stitute $on(u$t wit+ opinio juris
Fall 2008
Professor Akhavan
T!o ele#ents of custo#ary la! 5. >> • =oes this not create a total distortion of reality> There is no $ractice is involved. • =eclarations that are far beyond the reach of states could create the illusion of $rogress. =anger of having • $latitudes out there and realities of $ractice do!n here. usto#ary la! sounds like !e have achieved this nor#Jbut !e have not. • Are declarations or regulations $ractice the#selves. • Against) Bhat about su$re#e court decisions> Are they state $ractice or opinio *uris or both> Bhere does legislation fit in> Is this state $ractice> •
Bhy are !e so caught u$ !ith custo#ary la!> Bhy not call it a :eneral Princi$le and ski$ state $ractice> ook to @!anda" Hugoslavia tribunals call genocide I , even though both countries ratified :eneva onvention. • Bhy> aybe bOc of universality. Treaty does not have that. • I has so#ething #ore concrete • ook to the e6a#$le of Fe#ale :enital utilation. It is a general $rinci$le that it is cruel and unusual. ultural • relativists !ould not like this. orality leaves o$en the 3uestion of !hose #orality> Consensus is at the basis of custom & not the imposition of morality on another nations.
@. !our$es 6eneral Prin$i,les of !oft Law Bhere do general $rinci$les co#e fro#> U rationalit y" logic" natural law. /ere" one can think of social necessity" etc... There isnt one a$$roach about e6tracting the $rinci$les. The 3uestion of !here you actually e6tract the $rinci$les is a different 3uestion. They can be e6tracted fro# (o5esti$ law9 for e6a#$le. Hou could begin !ith a $re#ise" and use the fact that it is found in #any legal traditions as $roof for the validity of your $re#ise. usto#ary la! is based on state ,ra$ti$e and the opinio juris :eneral $rinci$les start !ith a ,rin$i,le irres$ective of the $ractice of states and social consensus "ound in art >9;7<;c< of the Statute of the : “the general $rinci$les of la! recogni(ed by the civili(ed nations ost co##only acce$ted as those !hich e6ist in all #unici$al syste#s of la! , $ri#arily related to issues of • $rivate la! or $rocedure ourt has referred to $rinci$les in cases dealing !ith breaches of obligations" error and viti ation of consent" res • *udicata" esto$$el *in relation to good faith and e3uity+" unjust enrich#ent" etc. dn harter includes s.55*g+ !hich refers to general $rinci$les of la! recogni(ed by the co##unity of nations. •
:eneral $rinci$les of la! are generally considered to be less i#$ortant than custo# and treaty *this is confir#s by Art 1013
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0$3 of t+e ICC statute . Enly resorted to !hen there are not clear ans!ers in I Soft Law and ?us Cogens !oft law% instru#ents that are not legally binding per se" though they affect the conduct of international relations by states and #ay lead to the develo$#ent of ne! international la!. It refers to an e#erging nor#) the la! as it ought to be and not the la! as it is. Eften !hen youre s$eaking about the e#ergence of ne! a nor#" you go back to general $rinci$les. ery often soft la! is based on the introduction of a ne! $rinci$le.
:eneral Princi$les have are inalienable U its the language of natural la!. Bere talking about self&evident truths. International !tatus of !out+ West Afri$a Case 71KJ8 IC: page ';0 te#t *a$ts% 1 :A asked court to advise on the status of
•
The goal of using $rinci$les is not to enact #unici$al la! Slock" stock barrel% but to look for general $olicy $rinci$les. ook to o##on a! and ivil a! and fiduciary duties.
9. c1air , Bhen ne! legal institutions rese#ble rules and institutions of $rivate la! the role of the I9 is to take the $rivate la! as an indication of $olicy and $rinci$les but not to i#$ort “lock" stock and barrel a set of rules.
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o
o
D3uity intra legem *ada$t the la! to the facts of an individual case , atte#$t o arrive at e3uitable outco#e+ Itl tribunals #ay a$$ly this ty$e D.g. , ontinental Shelf ase D3uitable $rinci$les !ere a$$lied. A$$lication of the rule !as ina$$ro$riate. 1o! !ould likel y be treated differently , no! e3uidistanceOs$ecial circu#stances D3uity prater 6egem *use e3uity to fill the ga$s in I+ ore doubtful Iternational tribunals can a$$ly this
/i)ersion of Water fro5 t+e euse Case Net+erlan(s ). Belgiu5 712?8 PCI: page '5' te#t
1o facts $rovided. “Bhat are !idely kno!n as $rinci$les of e3uity have long been considered to constitute a $art of international la!" and as such they have often been a$$lied by international tribunalsJ “It !ould see# to be an i#$ortant $rinci$le of e3uity that !here t!o $arties have assu#ed an identical or reci$rocal obligation" one $arty !hich is engaged in a continuing non&$erfor#ance of that obligation should not be $er#itted to take advantage of a si#ilar non&$erfor#ance of that obligation b y the other $arty. “/e !ho seeks e3uity #ust do e3uity.
Bith ti#e it #ight beco#e $art of $usto5. The resolution is evidence of opinio juris.
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Na5i"ia Case 71?18 IC: page 7/ te#t
Bith resolution 254Q" the 1 :A ter#inated a$o ). Li"ya 71?@8 IL page ;/0 te#t especially paras. /"+/5 and 01 *a$ts% ibya !as trying to nationali(e oil resources. Te6aco did not like this. and#ark cases in foreign invest#ent arbitration. Banted $ro#$t" ade3uate and effective co#$ensation based on resolution 580G of 5;L2. In 5;C4 develo$ing countries ado$ted the econo#ic charter of rights and duti es in resolution G285 to change econo#ic syste# for $oor countries to catch u$ in that" standard of co#$ensation !as left to the discretion of the state. G285 is a resolution !as abstained by $ractically all the !estern states and therefore not ado$ted by the# even though #ost of the :A did ado$t. 580G !as unani#ous Issue% Bhich resolution is binding> Bhat is t he relative !eight of the different resolutions> ;ol(ing% 1@J2 an( 2@1 are "in(ing . 'inding effect of a 1 resolution de$ends on the voting $attern. 580G !as voted by all countries and therefore had #ore !eight. G285 cannot be considered binding on countries that did not ratify it. @ecalls argu#ent of achs in ontinental Shelf in ter#s of the !eight in custo#ary la! T+e ,oint of t+e $ase% state sovereignty is the rule and not #ajority rule. Hou cant bind a state against its !ill. Note% G285 is dead and could not be used in front of arbitration tribunal. Protected invest#ent in countries bOc based on 580G and ade3uate co#$ensation !hat co#$any !ould invest !ith thought that invest#ent !ould be lost. Legality of t+e T+reat or Use of Nu$lear Wea,ons Case 71M8 IC: page '55 te#t *a$ts% The 1 :A asked the ourt for an advisory o$ini on on the 3uestion) “Is the threat or use of nuclear !ea$ons in an y circu#stances $er#itted under international la!> In the course of its o$inion" the ourt considered the significance of the 1 :A resolutions for the for#ation of custo#ary international la!.
:eneral asse#bly resolutions say that !e should ban nuclear !ea$ons. The vast #ajority of countries think they should be abolished. /o! does the court address this body of legal o$inion> U It says its an e#erging nor#. Its the !orld as it ought to be but not as it is. t Prose$utor ). Er(e5o)i$ 71?8 International Cri5inal Tri"unal for t+e *or5er Dugosla)ia online
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*a$ts) Drde#ovic" locks#ith of roatian origin #arried to
En a$$eal" they say never entered a $lea of guilty" only confessed. D6$lained that by his not $artici$ating he !ould have been killed *duress+. In a sense" there !as no $lea of guilty and !e don%t understand $lea of guilty. Proble#) sole $iece of evidence !as his testi#ony. If it !as taken back to trial" he !ould not be sentenced" !ould be sent back to */ere" #ass #urder but could include torture" enslave#ent" ra$e !h en co##itted on a !ides$read scale+ ;ol(ing% The soldier !ill not be able to rely on duress *co##on la! defense+ ourt looks to other syste#s *9a$an and hina+ ourt resolves diffs bOn civil and co##on by , joint o$inion says that there is no general $rinci$le and that ° co##on la! should be looked to bOc of $olicy considerations. Italian judge gives that a big boooo. Policy considerations are not liked by Italian judges. ° Princi$le of legality , $roble#atic as give judges the retroactive right t o judge !hich la! a$$lies based on $olicy. 1@ ICC !tatute% T+ey a(o,te( (uress as a (efense for all $ri5es. In Cana(a9 it&s a)aila"le for $ri5es against +u5anity for t+is reason.
. National A,,li$ation of International Law Custo5 In Canada
To !hat e6tent can international legal $rinci$les be relied u$on as i#$osing legally enforceable obligations" or conferring legally enforceable rights" on individuals in their do#estic syste#> This is referred to as (ire$t a,,li$a"ility or (ire$t effe$t . In anada it is the (o5esti$ $onstitutional fra5ewor4 that deter#ines the degree to !hich international la! is a$$lied in any given circu#stance. wo theoriesA(o,tionist *Incor$orationist in Dnglish la!+
Transfor5ationist
This sti$ulates that international la! is $art of do#estic la! and is incor$orated into do#estic la! !ithout the need of further $rocedures like legislative enact#ents. & $usto5ary international la! in anada *This a$$roach !as i#$licitly ado$ted by <@ in ?e Nfld.
Intl la! only a$$lies in the do#estic conte6t once it has been has been transfor#ed a$$ro$riately.
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&$on)entional la! in anada *treaty la!+
Fall 2008 ontinental Shelf 5;84+.
There is tension here !ith the rule of parliamentary supremacyV
Professor Akhavan :ood test of a
onist t+eory ) there is a single legal order. Dven treaty la! can be directly a$$lied in do#estic courts. any Duro$ean countries are sided !ith this theory. /ualist t+eory) @eflects #ore the co##on la! tradition. This suggests there are t!o distinct legal syste#s) intl and do#estic. Points of intersection are l i#ited and are subject to $arlia#entary su$re#acy.
In Cana(a" it is a mixture of the adoptionist and the transformationist theory. ustomary 6aw- @efers to social realities" and as such is less certain" but is directly a$$licable before anadian courts. onventional 6awTransfor#ation of treaty obligations) by !ay of statute. It is i#$ortant to deter#ine !hich level of govern#ent has legiti#ate co#$etence in res$ect of anadas international obligations. The *e(eral 6o)ern5ent is generally regarded as having e6clusive international $ersonality in the sense that only it #ay bind anada to an international agree#ent. Customary International Law in Canada A$$lies si#$ly through ac3uiescence. This is !hy it can cree$ u$ on a5 alert , kno! ho! e#erging nor#s beco#e custo#ary la! and therefore binding u$on Constitutional Issues *re) custo#ary la! and anada+ The anadian harter gives effect to anadas obligations under the IP@ *LL+. note) class on hu#an rights !ill relate to this $art of the course.
In 82 the harter gave effect to the IP@. In that sense" our funda#ental la! is based on intl la!. The anadian courts !ill regularly evoke intl in inter$reting the harter . *e6 , 7eegstra+ In this sense" intl la! is at the core of our constitutional values. Division of )owers The treatyaking $o!er is an e6ecutiveade la!. :iven the fact that the sco$e of intl treaties no! e6tents to a broad range of issues" one i##ediately sees that there are constitutional i#$lications !hereby the Feds could surre$titiously usur$ things that !ould other!ise fall !ithin $rovincial jurisdiction. Bhen youre in the $rocess of negotiating #ulti&lateral intl treaty" you cant get t he consent of the $rovinces for every clause" but you al!ays have to think of !hat the constitutional i#$lications !ill be because of the transfor#ationist a$$roach. *oreign Legations Case 7128 !CC page '// te#t *a$ts) The court !as asked to advise !hether the 4ntario #ssessment #ct " !hich declared in section 4 that “all real $ro$erty in Entario...shall be liable to ta6ation" rendered the $ro$erty of foreign states assessable and e6igible to #unici$al ta6ation. The basic 3uestion !as !heth er Etta!a city council had the $o!er to levy rates on a nu#ber of foreign legislations.
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Issue) The 3uestion" essentially" is !hether under International la!" a $ro$erty belonging to a foreign state #ay be assessed for #unici$al $ur$oses. *e6 , e#bassy head3uarters+ ;el() *Taschereau 9+) “I have co#e to the conclusion that $ractically in all the leading countries of the !orld" it is a settled and acce$table rule of International a!" that $ro$erty belonging to a foreign : overn#ent" occu$ied by its accredited re$resentative" cannot be assessed and ta6ed for state or #unici$al $ur$oses.
Parlia5entary su,re5a$y !ould take effect. Er" they !ould say the $rovincial legislature has to business i#$osing ta6ation on foreign $ro$erty because its involved in Federal $o!ers *international relations+. Note% There is an idea of state so)ereign euality !hich leads to the conse3uence that foreign courts should not e6ercise jurisdiction over sovereigns. !aint :o+n ). *raser-Bru$e O)erseas Cor,. 71K@8 !CC page '01 te#t *a$ts) ontractors in
The #atter is not entirely clear" but the idea is that custo#ary la! does not su$$lant $arlia#entary su$re#acy" but it does override e6isting case la!. Bou'ari ). Isla5i$ Re,u"li$ of Iran 7JJ8 page "(6 te#t *a$ts% Facts) Fro# 9une 5;;G to 9anuary 5;;4 /oushang 'ou(ari !as abducted" i#$risoned" and brutall y tortured by agents of the Isla#ic @e$ublic of Iran.
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T+e a,,ellants (efen$e% The a$$ellant argued it !as in the nature of a cri#inal $roceeding because he is seeking $unitive da#ages in the for# of a fine. /o!ever" the ourt disagreed" saying that $unitive da#ages are only a re#edy in a civil $roceeding. 1e6t" the a$$ellant argued based on the tort e6ce$tion found in s. L of the Act) 5. # foreign state in not immune from the *urisdiction of a court in any proceedings that relate toa< death or personal or bodily in*ury, or b< any damage to or loss of property in anada. The court didnt agree" finding that the a$$ellant continues to suffer fro# $hysical and $sychological inj uries inflicted on hi# in ran" and not in anada. Finally" the a$$ellant relies #ost heavily on s. Q of the Act) @. # foreign state is not immune from the *urisdiction of a court in any proceedings that relate to any commercial activity of the foreign state. The Act also defines “co##ercial activity as “any $articular transaction" act or conduct or any regular course of conduct that by reason of its nature is of a co##ercial character. The a$$ellant clai#s that this a$$lies because the torture is related t o his co##ercial activity. The court doesnt agree" saying that it is not enough that the $roceedings relate to acts !hich in turn relate to co##ercial activities. The #any connections are !ith st ate $olicing and security and i#$rison#ent $o!ers. Note) one #ore defense brought u$ by the intervener AI/@. A foreign state cannot clai# i##unity fro# so#ething like a hu#an rights violation. ?udicial %otice of International LawAAe>a5 alert 9udicial notice , the act by !hich a $ourt " in conducting a trial or fra#ing its decision" will of its own 5otionre$ogni'e t+e e>isten$e an( trut+ of $ertain fa$ts9 +a)ing a "earing on t+e $ontro)ersy at "ar9 w+i$+ " fro# their nature" are not $ro$erly the subject of testi#ony" or !hich are uni)ersally regar(e( as esta"lis+e( "y $o55on notoriety9 e.g. the la!s of the state" 6" historical events" the constitution and course of natureJetcJ The $ractice of anadian courts is to take #u(i$ial noti$e. In theory" its treated the e6act sa#e as anadian la!. 'ecause custo#ary la! is directly a$$licable" you !ill not be $leading the la! as facts.
1J. National A,,li$ation of International Law Treaties Treaties in Canada
The treaty #aking $o!er in anada is so#e!hat co#$le6 because of its gradual evolution fro# a 'ritish colon y. The '1A has no $rovision for the conclusion of treaties. The only section !as 5G2. 1@?1 U anadian re$resentatives !ere $resent for the $ur$ose of concluding the Bashington treaty. The first ti#e that anada signed a treaty !as 5;5; treaty of ersailles" but it did so as $art of the 'ritish D#$ire. The first treaty !hich anada signed in its o!n right !as 5;2G /alibut Fisheries... 1? , Ado$tion of the letter of $atent issued by the ::. This authori(es the :: to e6ercise all $o!ers in res$ect to anada. Bhat $o!ers> U s. ,owers of t+e BNA a$t . This is the basis for the treaty #aking $o!er in anada. /o! does the division of $o!ers i#$act this delegation> T+e #uris,ru(en$e woul( suggest t+at t+e ,ower was (elegate( only to t+e 66. *ederal )osition 9from a '0;/ Dept. of #ternal -ffairs Document page '06 te#t: The e6clusive res$onsibility of the Feds i n the field of treatyaking rests u$on three considerations)
he principles of international law relating to the power of component parts of federal states to make treatiesN The International a! co##ission has taken the $osition that the 3uestions of !hether a #e#ber of a federal union can have treatyaking ca$acity de$ends u$on the constitution of the country concerned. The co##ission itself cannot decide. •
he constitutions and constitutional practices of federal statesN Although so#e states allo! their constituent $arts to enter into certain ty$es of agree#ents !ith foreign states" none allo! •
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the# to do so !ithout Federal control or inter#ediary. 1o Federal constitution authori(es the constituent $arts to enter freely and inde$endently into international agree#ents. *
Guebec )osition) It is not based on a residual as$ect of the royal $rerogative. Muebec feels they should get to conclude treaties !ithout consulting the Feds. 'ut" this is an argu#ent based on the $re#ise of sovereignty. Practice) !ith res$ect to certain areas" Muebec can and does conclude intl agree#ents. D6 , educational e6changes" coo$eration. The Fed $osition) Muebec does this because !e let it do it. -n -ct Respecting the Binistere des Relations Internationales see page (1" te#t It clai#s though" but does not e6ercise" full treatyaking $o!er for the $rovince of Muebec. !ee se$tion 013 U “The inister shall see to the interests of Muebec during the negotiation of any international accord" !hatever its $articular designation" bet!een the :overn#ent of anada and a foreign govern#ent or an international organi(ation" !hich $ertains to any #atter !ithin the constitutional jurisdiction of Muebec. The inister shall ensure and coordinate the i#$le#entation of any such accord in Muebec. Treaty Implementation In #onist syste#s" once a treaty is ratified it beco#es $art of the do#estic legal order.
askin , the ans!er is that i#$le#entation #ust be #anifest and not inferred. Reasons) 5+
See p 28B- apital ities ommunications nc v. ? The ter#s in theory !ere already incor$orated in the “radio act so they !anted to inter$ret it in light of the ne! treaty. The < held that i#$le#entation #ust be #anifest and not inferred. The courts should be able to say) it is i#$le#ented legislation.
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La"our Con)entions Case Attorney 6eneral for Cana(a ). Attorney 6eneral for Ontario 712?8 :CPC page (1/ te#t
In 5;GQ" anada ratified three conventions $re$ared by the International abor onference. Parlia#ent then $roceeded to $ass legislation in accordance !ith the $rovisions of the conventions. En a$$eal fro# the PE:: *referred to by Ahkavan as a residual $o!er+ and the general trace and co##erce $o!er i n s.;5 are t!o sources of $ossible authority. *i.e. cases in !hich the econo#y of anada is treated as a single national unit+. U T+e *e(s treaty-5a4ing ,ower $ant "e use( as a "a$4 (oor into en$roa$+ing on t+e ,ro)in$es. There is no such thing as “treaty legislation ...its a class of subjects under s. ;5 and ;2 that deter#ines the res$ective $o!er of the level of govern#ent. Its not t+e fa$t t+at its a treaty t+at gi)es it ,ower. R ). Crown eller"a$+ Cana(a Lt( 71@@8 !CC page ('" te#t *a$ts% The defendant !as charged !ith du#$ing !aste i nto the !aters of ' contrary t o the $rovisions of the Eceans =u#$ing ontrol Act" !hich i#$le#ents anada%s obligations under the ondon onvention on t he Prevention of arine Pollution by =u#$ing of Bastes and Ether atter. The site of the du#$ing !as !ithin the internal !aters of '. At trial and on a$$eal in ' it !as held that" insofar as the internal !aters of ' !ere concerned" the Act !as ultra vires Parlia#ent. In the
This sho!s a #uch #ore e6$ansive inter$retation of federal $o!ers. 1ecessity is an issue here. Conflicts between International Law and Canadian StatutesA Re% Arrow Ri)er an( Tri"utaries !li(e an( Boo5 Co. Lt(. 7128 !CC
Pursuant to a $rovincial statute" the 6akes and ?ivers mprovement #ct " the Arro! @iver o. !as incor$orated to construct facilities for the #ove#ent of ti #ber do!n the Arro! @iver and its tributaries" including the Pigeon @iver" !hich serves as a $art of the border bet!een anada *E1+ and the <. After co#$letion of the !ork" the Arro! @iver o. a$$lied under the Act to the court to fi6 the tolls to !hich it !as entitled. The a$$ellant" the Pigeon Ti#ber o." objected to $aying any tolls !hen floating their logs do!n the Pigeon @iver" clai#ing an e6e#$tion under the Bebster&Ashburton Treaty of 5842" !hich $rovided “that all the !ater co##unications and all the usual $ortages along the lineJ -Including the Pigeon @iver" as no! actually used" shall be free and o$en to the use of the subjects and citi(ens of both countries. ;ol(ing% @iddell 9.A. *ofA+ , nless the statute is so e6$licit as to $rohibit an alternative inter$retation it is acce$table to inter$ret it in such a !ay as to re#ove any conflict and to therefore to $ro#ote the e6ecution of the 7ing%s “$lain duty. Therefore" “in Entario in the Act does not #ean “$artly in Entario !hich is the case of the river in 3uestion. It !as therefore not #eant to be covered by t he Act and the toll cannot be charged on the Pigeon @iver. *Dchos of 6egations ase"
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trying to i#$ort #eaning to render the statute consistent !ith the treaty.+ <#ith 9 *<+ , @iddell incorrectly inter$reted the Act. The treaty !as referring to !aters !hich !ere in use and navigable at the ti#e of the treaty. The $art of the Pigeon @iver in 3uestion !as non&navigable at the ti#e and therefore the treaty does not a$$ly. The tolls can be charged. a#ont 9 , /e also construes the treaty. The treaty states that the use !as to be “free and o$en to any navigable !aters even if they re3uire a $ortage" then or in the future. /e finds it an unnatural use of language to li#it that liberty. 'ased on this the tolls cannot be charged. /o!ever he finds another reason to $er#it the tollsJ a#ont 9 , Provincial legislative $o!er is $lenary as concerns s.;2 $o!ers. As this Act is clearly !ithin s.;2 it is enforceable. To be overruled there #ust be affir#ing legislation that a treaty $rovision shall be enforced. Treaties bet!een anada and foreign states are “only contracts binding in honour u$on the contracting statesJ The treaty%s $rovision of “free and o$en access to the !aters had only the force of a 7 bOt anada and the .<. and therefore cannot i#$ose any li#itiation on Entario%s legislative $o!ers. /ere you have very different a$$roaches by the judges in resolving !hat could be a conflict bet!een $rovincial statues and an intl treaty. There is a $resu#$tion of confor#ity. Bhere else did !e encounter this assu#$tion> U Foreign igations case. nless there is an e6$ress inconsistency" !e inter$ret do#estic legislation to confor# to intl la!. )ower to Legislate Contrary to International Law=
11. !tate :uris(i$tion o)er Territory an you have jurisdiction over territory !ithout sovereignty> Hou can e6ercise jurisdiction !ithout sovereignty" !ith res$ect to continental shelf or e6clusive econo#ic • (one. Hou can e6ercise jurisdiction !ith res$ect to s$ecific #atters !ithout having sovereignty.
In traditional International a!" area of eart+ #ay be) • so)ereignty of a state res communis , high seas and outer s$aceN shared by all nations and inca$able of la!ful a$$ro$riation by any • stateN • res nullius) ca$able of la!ful national a$$ro$riation. 1e! legal category) “Co55on ;eritage of an4in( governed by s$ecial rules) seabed" ocean floor and • subsoil thereof" #oon and other celestial bodies.
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2 (i5ensions of territorial so)ereignty ) The land 'elo! the land olu#n of air above *undefined+ Lan( Territory% A$uisition of Territory ,ccupation , T!o conditions #ust be satisfied) 5+ The territory thus ac3uired #ust have been res nullius and 2+ The occu$ying state e6ercises effective control over such territory. Cession , The transfer of territory fro# one state to another by a treaty of cession. *A grant of inde$endence !ould be si#ilar+. *5CLG Treaty of Paris is #ost i#$ortant to anadian history+. )rescription , The ac3uisition of title after $eaceful occu$ation !ith the kno!ledge of and !ithout $rotest fro# the original sovereign for a $eriod of ti#e *$robably # easured in decades+. Con!uest , The ac3uisition of a territory achieved through !ar and subse3uent anne6ation of all or a $art of the territory of the defeated ene#y state. *This #ode is no longer reconciled !ith $rinci$les of #odern int%l la!+ -ccretion , The enlarge#ent of a state%s territory through natural forces" like the change of a river or recession of the sea. Note) in territorial dis$utes" usually #ore than one #odality of ac3uisition is invoked. Islan( of Pal5a Case% Net+erlan(s ). Unite( !tates 71@8 RIAA page 7"6 te#t Pal#as is a s#all isolated island situated about Q0 #iles southeast fro# the Phili$$ines. The dis$ute had its origin in the visit to Pal#as by < :eneral eonard Bood in %0L. In the course of his visit the < official discovered that the island !as considered by the 1etherlands to be a$art of the =utch Dast Indies. In the ensuing di$lo#atic controversy" the < contended that the island of Pal#as !as included in the Phili$$ine Archi$elago ceded by <$ain to the < in %;8 by the Treaty of Paris. The 1etherlands clai#ed sovereignty by virtue of its continuous and undis$uted dis$lay of authority over the island during a long $eriod of ti#e. Dventually" the t!o countries agreed to sub#it their differences to arbitration.
The 1etherlands argued that <$ain could only transfer title of territories it had title to. The =utch clai#ed they had original title fro# !hen it !as res nullius. The 1etherlands !as given title of sovereignty because it !as “ac3uired by continuous and $eaceful dis$lay of state authority during a long $eriod of ti#e going $robably back beyond the year 5C00J The 3uestion !as of su,erior title because <$ain #ust have been able to sho! so#e authority there. Page 4G8) There !ere considerable ga$s in the =utch authorit y...but if they !erent there it !as only inhabited by natives *so it !as res nullius+. 6eneral re5ar4s on so)ereignty in its relation to territory% &
If a dis$ute arises as to the sovereignty over a $ortion of territory" it is custo#ary to e6a#ine !hich states clai# ing sovereignty $ossesses a title , cession" con3uest" occu$ation" etc. , su$erior to that !hich the other
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obligation to $rotect !ithin the territory the rights of other < have not established the fact that sovereignty !as dis$layed at any ti#e. o & =id 1etherlands dis$lay continuity> ontinuous dis$lay not in the literal sense. Dnough that a the ti#e another Po!er ascertaining the local o conditions had a reasonable $ossibility seeing the e6istence of other state rights. o 1etherlands never recorded any $rotests. 1o evidence of dis$lay of sovereignty over the island by <$ain or another Po!er. o Indirect $roof of the e6clusive dis$lay of 1etherlands sovereignty.
Legal !tatus of Eastern 6reenlan( Case% /en5ar4 ). Norway 71228 PCI: page 771 te#t The dis$ute !as triggered by 1or!ay%s $rocla#ation of sovereignty over Dastern :reenland" an uncoloni(ed $art of the island. =en#ark" !hich clai#ed sovereignty over the !hole island" instituted $roceedings against 1or!ay in the Per#anent ourt of International 9ustice asking the court to declare the 1or!egian Act invalid. ;ol(ing% :reenland had dis$layed through legislation enacted" treaties and conventions" during the $eriod of 5854 to 5;5Q her authority over the uncoloni(ed territory. T+e Court%
=en#ark%s argu#ents) & text . The 3uestion of title revolved around one incident) In 5;G0 a Thai $rince ca#e to visit the French re$resentative. The French flag !as flying. The $rince later sent $hotos *!hich !ere taken on the tri$+ to the French resident" etc.. . The court decided this !as a sign that Thailand !as okay !ith the French occu$ation. Western !a+ara Case U see $age 444. The court deals !ith the 3uestions of terra nullius. If theyre habited by $eo$le !ith a certain social and $olitical organi(ation" then the area is not terra nullius. 'ut !hat is the threshold> Hou could argue that organi(ation is
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a$$arent in any hu#an society. !o)ereignty o)er Pulau Ligitan an( Pulau !,a(an Case% In(onesiaalaysia 7JJ8 IC: page 776 te#t The dis$ute involved t!o s#all islands in the elebes
The ourt) “:iven the circu#stancesJthe ourt concludes that alaysia has title to igitan and
Boun(ary /is,utes Boun(ary /is,ute &An e6ercise of dividing territory
Territorial /is,ute &the goal is the e6clusive sovereignty over a $articular area.
Case Con$erning t+e *rontier /is,ute% Bur4ina *aso ). Re,u"li$ of ali 71@M8 IC: page 77/ te#t In 5;L0 'urkina Faso and ali achieved inde$endence fro# France. The territory of the t!o ne! states had been $art of French Best Africa. The 3uestion before the ha#ber of the I9 !as the location of the boundary. The ha#ber !as re3uired to deter#ine the ad#inistrative boundary dividing the French colonies $rior to inde$endence. The details of the decision are not relevant" although the $reli#inary co##ents of the ourt are i#$ortant
/o! the $resent dis$ute should be classified> , & frontier dis$utes or deli#itation dis$utes) refer to deli#itation o$erations affecting !hat has been described as “a $ortion of land !hich is not geogra$hically autono#ous & =is$utes as to attribution of territory) attribution of sovereignty over the !hole of a geogra$hical entity. The effect of any deli#itation no #att er ho! s#all the dis$uted areas crossed by the line" is an a$$ortion#ent of the areas of land lying on either side of the line. J Princi$le of “intangi"ility of frontiers inherited fro# coloni(ation gives rise to the $rinci$le of uti possidetis *uris" the a$$lication of !hich gives rise to this res$ect for intangibility of frontiers. Princi$le of uti possidetis *uris !as first invoked in <$anish A#erica. 'ut the $rinci$le is not a s$ecific rule !hich $ertains solely to one s$ecific syste# of intl. la!. It is a general ,rin$i,le !hich is logically connected !ith the $heno#enon of the obtaining of inde$endence" !herever it occurs. Its $ur$ose is to $revent the inde$endence and sta"ility of ne! states fro# being endangered by fratricidal struggles $rovoked by challenging frontiers. =ifferent as$ects of the $rinci$le of uti possidetis *uris) & Pre&e#inence accorded to legal title over effective $ossession as a basis of sovereignty. & Pri#ary ai# of securing res$ect for the territorial boundaries at the #o#ent !hen inde$endence is achieved. & $graded for#er ad#inistrative deli#itations" established during the colonial $eriod" to intl. frontiers.
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Territorial boundaries that have to be res$ected and also be derived fro# intl. frontiers.
Proble#s !ith this $rinci$le) & Conflicts outright with right of peoples to self+determination. 'ut e#$hasis is #ade on the re3uire#ent for stability in order to survive has induced African Er !here ne! states have a co##on colonial $ast> It !as the legal o$inion of the Arbitration o##ission of the onference on Hugoslavia that uti possidetis !as the governing $rinci$le of intl. la! res$ecting the boundaries bet!een roatia and
The 3uestion before the court !as !hether under '1 A Act 58LC so#e Q0"000 s3uare #iles of ti#berland in Entario belonged to the $rovince of Entario or the =o#inion of anada. The lands in 3uestion for#ed $art of lands surrendered by an Indian tribe by a treaty to anada. The e6cer$t that follo!s deals !i th the legal effects of the con3uest of anada by :reat 'ritain and the subse3uent cession b y France by the Treaty of Paris" 5CLG. ;ol(ing% “1o! !hen by the treaty of 5CLG" France ceded to :reat 'ritain all her rights of sovereignty" $ro$erty and $ossession over anada" and its islands" lands" $laces and coasts" including" as ad#itted at the argu#ent" the lands no! in controversy" it is un3uestionable that the full title to the territory ceded beca#e vested in the ne! sovereign" and that he thereafter o!ned it in allodiu# as $art of the cro!n do#ain" in as full and a#$le a #anner as the 7ing of France had $reviously o!ned it. The Indian Treaty doesn%t #atter. Newfoun(lan( 1 !as the last $rovince to join. It !as a result of a 48 referendu#. There !as a dis$ute about the continental shelf. !ee ,age K te>t . Ar$ti$ Islan(s 'iggest issue is !hether the ice should transfor# the arctic into a different ty$e of territory. The Arctic is basically defined by the “tree li ne. I5,ortan$e of t+e ar$ti$% resources *oil X gas+" environ#ent *eco&syste# is very fragile+" during cold !ar years strategic i#$ortance *early !arning syste#s+. Bhat is the status of “ice islands> anada is trying to clai# that they create an archi$elago. In the a! of the
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straight baselines is if you are an archi$elago state or if you fall under a.C. =oesn%t 'affin Island look like the 1or!egian coast line> 1or!ay case says that straight baselines need to be te#$ered by general international right. *rontiers of Cana(a
Bhile sovereignty over the land territory in the Arctic is no longer in dis$ute" $otentiall y controversial issues re#ain unresolved. They include the li#its of t he continental shelf of Arctic statesN the sco$e of anadas jurisdiction over the !aters of its archi$elagoN and the nature of control anada is entitled to e6ercise over the straits constituting the 1orth!est Passage. Legal Status of the -rctic ,cean Baters of the Arctic Ecean #ust be considered as high seas" as in any other ocean. < considers Arctic Ecean as high seas and o$en to all nations. <<@ has engaged in si#ilar activities to < and therefore #ust subscribe to freedo# of the seas. anada has e6$ressed doubt to high seas" $articularly the 'eaufort sea" !hen discussing the status of the 1orth!est $assage. 'ut anada did e6$lore o#osnov @idgeJ Legal Status of Ice Islands Ice islands used for #arine scientific research. They need a legal regi#e. 1o custo#ary la! has develo$ed. -ir Space over -rctic Lands and Islands
Antarctica shall be used for $eaceful $ur$oses onlyJ
1. Law of t+e !ea It is in effect an e>tension of t+e territory of t+e state. This area of International la! is of great i#$ortance to anada !hich has the !orld%s longest coastline and vast oceanic resources. E>$lusi)e #uris(i$tion ) to the e6clusion of other states. ariti#e territories are a bit # ore co#$le6) you cant really inhabit a #ariti#e s$ace. Also" clai#s to #ariti#e s$ace are a recent develo$#ent.
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Territorial !ea conce$t has been $art of intl la! for a long ti#e. Ether develo$#ents are #ore recent. /istorically" it !as i#$ortant for #ilitary $ur$oses. Invasion #ight co#e via this stri$ of !ater.
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!ee se$tion of t+e Con)ention on t+e Law of t+e !ea Baselines =ra!n along the lo!&!ater lines. Princi$le here is that the land dominates the sea. :enerally follo! contour of the coast. • • Arti$le ?
ouths of @ivers Bhere the fresh !ater ends and salt !ater begins the baseline is dra!n • Bhen there is a highly irregular coastline *like 1or!ay !hich has a lot of fjords+. Hou can dra! straight baselines • in this situation. Anything before the baseline is considered $art of the inland territory *so they !ould be internal !aters+. Article C $rovides that “dee$ly indented areas or an area !ith a fringe of islands can use straight baselines. C.2 talks about states that have deltas Note% Dlles#ere Island. There is a large section !here the i slands are se$arated by !aters...is that foll o!ing the general direction of the coastline> Unite( Nations Con)ention on t+e Law of t+e !ea 7(o$u5ent su,,le5ent8 anada $artici$ated actively. In addition to have a long coastline has $articular $roble#s in the Arctic. There is the 3uestion of the environ#ent" etc. Bith the effects of global !ar#ing and the o$ening of the 1B Passage there is the issue of dee$&sea drilling. =es$ite it all" anada only ratified the 82 convention in 200G. Gatar ). Ba+rain ariti5e /eli5itation an( Territorial Guestions 7JJ18 IC: page 0(6 te#t The I9 had to evaluate a$$arent straight baselines constructed by 'ahrain. “The ourt observes that the #ethod of straight baselines" !hich is an e6ce$tion to the nor#al rules for the deter#ination of baselines" #ay only be a$$lied if a nu#ber of conditions are #et. This #ethod #ust be a$$lied restrictively.
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Islan(s an( Ar$+i,elagos page 0"' te#t Articles 4L&4;" 525 Inno$ent Passage t+roug+ t+e Territorial !ea $lusi)e E$ono5i$ one page 076 te#t Articles QQ&L0 easured fro# the baselines of the territorial sea to no #ore than 200 nautical #iles. *In conflict !ith the dn • Ecean%s Act !hich describes the (one as having its inner li#it as the outer li#it of the territorial sea. =ifferent fro# the continental shelf) it has a set distance. DDW includes the !ater and fisheries !hile the continental shelf is E1H about the shelf and the subsoil *oil and gas+. Note the $reservation of all high seas freedo#s in this (one so long as they are not in conflict !ith the rights • enjoyed by the coastal states. O$eans A$t art. 5G*5+ JJ nautical #iles fro# the baselines of anada%s territorial sea Art. 54*a+ confir#s anada%s sovereign rights in the DDW. anada%s DDW also includes all the !aters over !hich anada has historical clai#s to full sovereignty.
Is this (one to be understood as “sovereign rights or “jurisdiction> ight have to !ait and see fro# state $ractice and authoritative inter$retation of the 1<. Continental !+elf articles 5;+/( and page 075 te#t U it is an e6tension of the land#ass. The earth is a series of continental $lates. The 3uestion of ho! far the continental shelf goes is defined by a o##ission on the ontinental
6ene)a Con)ention on t+e Continental !+elf 71K@8 “For the $ur$ose of these articles" the ter# “continental shelf is used as referring a+ to the seabed and subsoil of the sub#arine areas adjacent to the coast but outside the areas of the territorial sea" to a de$th of JJ 5eters or" beyond that li#it" to !here the de$th of the su$erjacent !aters ad#its of the e6$loit ation of the natural resources of the said areasN b+ to the seabed and subsoil of si#ilar sub#arine areas adjacent to the coasts of islands. O$eans A$t 5C.5 ;page 1C1 text< sets out anada%s $rocla#ation re) continental shelf Continental !+elf Co55ission lai#s are sub#itted by states to e6$erts !ho consider the#... 'y sub#itting your clai#" you i#$licitly acce$t !hat the co##ission has to say" but it still officially doesnt #ake “binding decisions anada has not #ade sub#issions to the o##ission.
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U R ). Perry A lobster fisher#an !as beyond anadas e6clusive econo#ic (one. /e unsuccessfully raised the defence that t here !as a lack of certainty as to the e6tent of the anadian continental shelf" as defined by section 5C of the 4ceans #ct . Bhen they talk about the sovereign rights of anada in the 4ceans #ct, theyre really talking about jurisdiction. anada has rights over the continental shelf for e6$loit ing the non&living resources and organis#s fro# se(entary s,e$ies *i##obile and harvestable+. Their argu#ent !as that they couldnt kno! !here the continental shelf is. Ence the anadian foreign #inistry issues a certificate saying an area is $art of t he continental shelf" thats the t he end of discussion. It a$$lies under anadian la!. The Feds chose not to use section 2.1 of t+e ,ceans -ct . *Akhavan doesnt kno! the outco#e of t he case+. Bhy not> U If they issued the certificate" they #ight have to say the full e6tent of the ontinental ontinental
Re %ewfoundland %ewfoundland Continental Shelf
9urisdiction Issu Issues es
/old /oldin ing g @ati @atio o
1ETD
< -5;84 =oes =oes ana anada da or 1F= 1F= have have the the rig right ht to to e6$ e6$lo lore re and and e6$l e6$loi oitt the the #in #iner eral alss and and other other natur natural al reso resour urce cess of of the the seabed and subsoil of the continental shelf and the right to #ake la!s in relation to the e6$loration and e6$loitation of the#> ana anada da has has leg legisl islat ative ive juris jurisdic dictio tion n as 1F= 1F= did did not not hav havee righ rights ts by by I I at at ti#e ti#e of of conf confed eder erat ation ion.. 1ote 1otess tha thatt thi thiss is is n not ot an issu issuee of of sov sover erei eign gnty ty but but rat rathe herr “so “sove vere reig ign n rig right htss to to e6$ e6$lo lore re and and e6$ e6$lo loit it These rights are not considered $ro$rietary. • For 1F= to be successful" #ust be sho!n that" $rior to it joining anada" 1F= had ac3uired • rights to the continental shelf ipso facto or by o$eration of la! *!ithout a clai# being #ade , ab initio+ Bas it I> anvassing of the different clai#s #ade $rior to 5;4; and !ork of the International la! • o##ission on the subject !hich said that" although #any clai#s had been #ade" still li#ited and recognition !as not high. onclude that international la! had not devel%d sufficiently by 5;4; to confer rights on 1F= • 1o retroactivity !ith res$ect to la!s of the sea , not conferred on 1F= retroactively • ourt !ent on to say that" even if the above !as !rong" u$on joining the union" 1F= !ould have transferred rights to the entity $ossessing e6ternal sovereignty , na#el y anada.
;ig+ !eas page !eas page 066 te#t see Articles 8L&555 8L&555 of the 1< freedo# of navigationN flag&state jurisdictionN $rohibition of $iracy /ee, !ea"e( The dee$ seabed is less accessible in ter#s of e6$loitation of natural resources. The technology isnt 3uite there yet. oratoriu5 Resolution 71M8 6.A Res page Res page 0;" te#t “Pending the establish#ent of the afore#entioned int ernational regi#eJ*a+
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oratoriu# sto$s all e6$loitation
!ea"e( /e$laration 71?J8 6.A. Res =eclaration of $rinci$les governing the sea&bed and the ocean floor" and subsoil thereof" beyond the li#its of national jurisdiction. &co##on heritage of #ankind
RRCana(ian ,osition. Is it better to have boundaries boundaries defined> *Ds$ecially in the Arctic+> Arctic+> Bhat about anadas clai# that all the !aters in the Arctic are internal> Bhat !ill other states think about it> The < has vigorously contested it.
12. Nationality 1ationality signifies the relationshi$ bet!een the state and an individual. In(i)i(uals here must be genuine link bEn the state granting the nationality and the individual. Fro# ?e 6ynch $hysical fact. e#bershi$ of an inde$endent inde$endent • 6ynch , continuing state of things is re3uired and not a $hysical $olitical co##unity. 1ot static but rather constantly dyna#ic. • It is the funda#ental basis for jurisdiction over $ersons beyond national territory. • @ights and obligations co#e fro# nationality For#al es$ousal of clai#s of its nationals through di$lo#atic • channels" i#$osition of #ilitary service" so#e #ay refuse to e6tradite nationals" The bond bet!een individual and the state includes allegiance *o$$osite) treason+. • The state o!es the individual $rotection. • The #ost funda#ental right that derives fro# citi(enshi$) to enter" re#ain in" and leave the state. • *see article L.5 harter + In so#e cases there is a distinction disti nction bet!een citi(enshi$ and nationalit y" but in others there isnt. •
o##on la! has a fun$tional notion of nationality. In the civil tradition" its a #ore )is$eral bond. In the co##on la! it is so#eti#es distinguished fro# citi(enshi$ in that citi(enshi$ has !hole rights and nationality i#$lies so#e sort of $er#anent residence. *Hou *Hou can enjoy certain rights as a $er#anent citi(en even if you do not have citi(enshi$+. W+at (eter5ines nationality =o#estic la! regulates the loss and ac3uisition of nationality *subject to certain restrictions under /@ la!N no • discri#ination" etcJ+ Funda#ental as$ect of states% sovereignty sovereignty • 5;;5> @evoke nationality> Involves $eace and security • Included in niversal =eclaration of /@ , In ovenant on ivil and Political rights confers nationality on • children.
Bhat about the et+no-national $on$e,t of $iti'ens+i, > In #any countries *like Ar#enia and roatia+" one can ac3uire citi(enshi$ based on ethnic descent even !ithout $rior residence. Is it discri#inatory to say that a :er#an&s$eaking $erson fro# abroad can ac3uire it and the children of #igrant Turkish !orkers *living in :er#any+ cant>
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The basic notions of nationality nationalit y are derived fro# #us soli *$lace of birth+ and #us sanguinis *blood ties+. In anada" naturali'ation is the #ost significant basis for citi(enshi$. anada also has an active $olicy of encouraging i##igration. A$uisition of Nationality fro5
@e3uire#ents in anada found in the anada itizenship #ct . 1ote that #arriage is not actually a ground ground for ac3uiring citi(enshi$ , it i s based on residence !hich can be #ade easier by #arriage. 1ote also" e6ce$tion is di$lo#ats cannot clai# nationality by *us soli. Citi'ens+i, A$t 71@K8 page 71@K8 page 706 te#t
$. 4;QOL U jus soli $rinci$le $rinci$le in anada is 3ualified by the fact the $erson is la!fully ad#itted into anada for permanent residence. Its not enough that youre la!fully ad#itted on vacation. I< this a good • idea> Akhavan thinks this is the future) it i#$lies the right to freely #igrate to any of the union states. Re$ognition of Nationality at International Law Intl recognition beco#es an issue !here so#eone has two or 5ore citi(enshi$s and is clai#ing the $rotections of one state against the other.
There are #any e6a#$les of acts $erfor#ed by states i n the e6ercise of do#estic jurisdiction !hich do not necessarily or auto#atically have international effect) Notten"o+5 Case% Lie$+tenstein ). 6uate5ala 71KK8 IC: page 70/ te#t Hery i5,ortant $ase re% re$ognition :er#an citi(en !ho lived in :uate#ala for #ost of his life. /e ac3uired the citi(enshi$ of iechtenstein iechtenstein because he !anted to take an action against :uate#ala. Ether!ise" he !ouldnt have re#edies. ;ol(ing% =o#inant nationality is not that of iechtenstein , nationality there !as granted !ithout regard to the conce$t of nationality ado$ted in international relati ons. :uate#ala !as under no obligation to recogni(e iechtenstein nationality. Test for =o#inant and effective nationality *not #erely the verbal $reference of the $erson seeking nationality+) 5. 'asis of social social fact fact of attach#ent attach#ent *fa#ily *fa#ily"" $lace $lace of residence+ residence+.. 2. :enuine :enuine connect connection ion of of e6istenc e6istencee , interests interests and senti#ents senti#ents G. @eci @eci$r $roc ocal al rig right htss and and dutie dutiess Actual connections to iechtenstein are e6tre#ely t enuous , no settled abode" no $rolonged residence" no intention of settling there" no interest in econo#ic activities there. !ee ,age KJJ 0"otto5 ,aragra,+3 Theres a re3uire#ent of genuine lin4 bet!een bet!een the individual and the state. The “$ractice of states that they refer to is custo#ary la!. la!. There #ust be a so$ial fa$t of atta$+5ent . This case !as decided in QQ U the notion of dual citi(enshi$ !as $robably rare.
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The test no! is the (o5inant nationality. *legen+ei5er Clai5% Italian-Unite( !tates Con$iliation Co55ission 71K@8 page 61" te#t
A #an lost < nationality in 58;4 to beco#e :er#an. /e lost :er#an nationality by la! in 5;40 , < es$oused his clai# for $ro$erty da#age before the co##ission. o##ission dis#issed his clai# but considered nationality argu#ents. Issue% Dven if retained < nationalit y" does it lack the genuine connection re3uired by 1otteboh#> ;ol(ing% 1o. Test is not as strict as it is argued to be. There does not e6ist any criterion of $roving the effectiveness of a bond !ith a $olit ical collectivity. Note that they rely on the fact that he only has one nationality , to leave hi# !ithout it !ould #ake hi# stateless and they see# to take this into consideration. They even #ake #ention of the fact that international la! on this subject is #eant to deal !ith issues !here there are t!o nationalities vested in one $erson , not a case like this one. T+e Rig+t of /i,lo5ati$ Prote$tion International Law Co55ission9 /raft Arti$les on /i,lo5ati$ Prote$tion 7JJ8 page 616 te#t
In 5;;L" the I identified this to$ic as one “a$$ro$riate for codification and $rogressive develo$#ent. A state is entitled to $rotect their citi(ens. Arti$le ?) #ulti$le nationality and clai#s against a state) RRcontroversial Arti$le M) clai#s against a Grd state of !hich you dont have nationality. The 3uestion beco#es under !hich of the states you are a citi(en of that you%ll #ake your clai#. If you contrast this !ith article 4 of the 5;G8 /ague onvention on the onflict of 1ationality a!s *$age Q0C+ you see) “A
In Cana(a9 the basic $rinci$le is that if you go back to a country of !hich youre a citi(en" you !ill not be eligible for di$lo#atic $rotection by the anadian govern#ent. Its because of the fear that it !ill beco#e entangled into thousands of cases of $eo$le !ho go back to their other country and get in trouble" and ask for hel$ fro# the anadian govern#ent. They dont !ant to be seen as interfering. Guestion 5. anada #ay not es$ouse a clai# on behalf of a dual national against the state of another nationalit y. *Think Wahra 7a(e#i and the right of anada to clai# re$arations on her behalf even though she is a dual national+
Fahra Gamzemi ase. ran to "rance living. +ature adult comes to anada and ac)uires citizenship. 3oes back as photo *ournalist and isHH an anada bring a claim against ran/ • $ague onvention of 71>8 I #rt > I considered nationality of both states. #rt C ( no diplomatic protection for national against a state whose nationality such person also possesses • #gainst • See case #E79 ;below< I interpret #rt C of the $ague onvention very cautiously as it is more than @8 years old.
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n that case, *urisdiction was held despite $ague onvention. Should )uestion of effective remedy make a difference/ hink Nottebolhm. $ow would reasoning differ if he had had nationality of 3uatemala/ Jould have been an issue of standing most likely and would not have been allowed standing. ?easoning would have been different as dominant nationality in that case was 3uatemalan not that of 6iechtenstein.
• • •
"or 0iplomatic protection is obsolete in the present time bEc there are so many other methods of addressing the issue. • #re there circumstances where anada should be allowed/ "or instance if ran treats you as a anadian citizen. • 0istinction bEn diplomatic espousal and individual claims ;eg. #E79 below< I should this make a difference/ 'xercise of agreement bEn two states for this tribunal I should there be a difference if the state goes to the international forum rather than the individual going to a tribunal based on this agreement/ 3iving international standing to individuals I would this diminish the importance of #rt C/ •
Cane)aro Case% Italy ). Peru 7118 page 61/ te#t *a$ts% lai# of Italy for #oney against Peru. *Fro# the anevaro brothers+ Ene brother !as Peruvian by birth but Italian under art 4 of Italian ivil ode , his dad !as Italian. Issue% Bhat is his nationality for the $ur$ose of this case> ;ol(ing% The court holds that hes Peruvian. /e could not succeed. The other Italian brothers could. /as acted as a Peruvian citi(en *ran for senate" etc+ and Peru has the right to deny his status as an Italian clai#ant Iran-Unite( !tates Case No. A1@ 71@8 U! Clai5s Tri"unal page 610 te#t A great #any clai#s !ere being brought against Iran by dual <&Iranian citi(ens. The tribunal !as re3uested to decide !hether it had jurisdiction to hear the #erits of such clai#s. The tribunal turned to custo#ary international l a!" finding the Iranian&< lai#s /is clai# is that he never had 'ritish citi(enshi$. The /of inter$reted allegiance in a broad sense. The $oint is that he #aintained ties !ith 'ritish. They !ere sufficient to i#$ose an obligation of allegiance. A (uty is owe( to t+e !tate w+ile at +o5e or a"roa(. Proof of Nationality A $ass$ort is only prima facie $roof" but is not conclusive. The conferring of $ass$orts is at the discretion of the #inister of foreign affairs. 1o one has a legal entitle#ent to one. 'ut" !hat about section L.5 of the anadian harter > Dvery citi(en of anada has the right to enter" re#ain in and leave anada. Loss of Nationality page 6'" te#t In anada" it can be lost if you renounce it. !toe$4 ). Pu"li$ Trustee 7118 page 6'6 te#t
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The $laintiff !ants to be declared not to have been nor be a :er#an national !ithin #eaning of treaty of $eace of 5;5;. If he is" certain $ro$erty effects on his stuff !ill take $lace *$oetic" eh>+. Bas Prussian by birth but left and never beca#e :er#an citi(en. ove to 7 and !as interned and sent to /olland. Bent to :er#any and has resided there. Issue% Is his $ro$erty here $ro$erty belonging to a :er#an national and" therefore" $ro$erty !hich i s charged by the Treaty of Peace Erder" and !hich he #ay not deal !ith e6ce$t !ith the consent of the custodian or at the risk of fine and i#$rison#ent> ;ol(ing% 1o. 1ot a :er#an national. 'ut" he has no other nationalit y. Is statelessness $ossible> Willa5s !.A. An( (e estral9
Part I) :eneral Provisions , includes $revention of statelessness" $resu#$tion of nationality. Part II) Provisions @elating to <$ecific ategories of
It !as an Italian colony" but after the defeat of Ital y in the BBII" it !as reintegrated into the Dthio$ian state. There !as a se$aratist #ove#ent. The co##ission dealt !ith the issue of (ual-nationals. Cor,orations A very i#$ortant issue Proble#s) ariety of contacts !ith different countries registered" head office" $lace of business • =ifferent co#$any la!s in different countries to recogni(e nationality. • Bar$elona Tra$tion9 Lig+t an( Power Co. Case% Belgiu 5 ). !,ain 71?J8 IC: page 6(6 te#t
lassic case about cor$orate nationality. o#$any incor$orated in anada" o$erated *e6$ro$riated+ in <$ain through subsidiaries" high $ercentage *#ajority+ of shareholders are in 'elgiu#. 'ankru$tcy in <$ain and 'elgiu# shareholders *through 'elgiu#+ suing <$ain for the co#$any. ;ol(ing% The court holds that before the head3uarters is in anada" only anada #ay es$ouse their clai#s to the
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In deter#ining the nationality of a cor$. for the $ur$ose of di$lo#atic es$ousal of clai#s a genuine link test should be a$$lied. *and not just the $ass$ort , ie center of gravity" !here do they vote" etc. inked 3uestion) !hy should there be a difference bOn a $erson and a cor$oration. 1ote that genuine link as o$$osed to for#alistic link in the Karcelona raction case+. Elettroni$a !i$ula !,a 0EL!I Case3% U! ). Italy 71@8 IC: page 6"; te#t
The court changed $osition. D,ro,riate "ut i5,ose( regulatory rules. Italian o the !holly o!ed subsidiary of 2 < co#$anies. Assets of co !ere re3uisitionedJM !hether that !as a viol ation of Italy%s int%l obligations to the .< . under a treaty giving their co#$anies the right to control and #anage cor$orations in the other country. /ere !e see the e#ergence of the #ore fle6ible conce$tion of cor$orate nationality. Treaty of friendshi$" navigation and co##erce under !hich the clai# is being es$oused. =ealing !ith subsidiary) rights of the subsidiary !ere not breached by !hat Italy did , ski$s issue of standing. • 'asically that there !as nothing sto$$ing the treaty fro# allo!ing the < to es$ouse its national%s interest as shareholders in the Italian co#$any. This M !as addressed in Karcelona ase. Bhy did it avoid it> Ek" so #aybe they did grant standing , then is this inconsistent !ith 'arcelona.
Intl Con)ention on !ettling of In)est5ent /is,utes% IC!I/ page 6"5 te#t Bith the e6$losion of bilateral invest#ent treaties and increasing ratification of this convention" There has been significant nu#ber of cases brought under I
1. !tate :uris(i$tion o)er Persons Issue here is co&e6istence !ith other states. D6tra&territorial effect on nationals #ight infringe on sovereignty rights of other states. Therefore" there #ust be li#its to a state%s jurisdiction over $ersons fro# a legislative and enforce#ent $ers$ective. 1ote the difference bOn $rescri$tive and enforce#ent jurisdiction , can $rescribe la! but that does not #ean it can • be enforced. Hou cannot legislate or enforce your la!s i n a !ay that !ould violate the la!s of other states. Dnforce#ent of your la!s in another t erritory !ould cause $roble#s of sovereignty. !u"#e$t atter :uris(i$tion 1. !$o,e of :uris(i$tion In $rinci$le" a state #ay legislate over the subject #atter of anything !ithin its territory *as long as it is not in violation of international la!+ 9urisdiction of national courts cannot be conferred by the sovereign !hen he has no jurisdiction according to • $rinci$les of international la!. In ivil #atters" no conventional or I rules governing other than #ust a$$ly rules of $rivate international la! • !here a$$licable
A state can e6ercise jurisdiction over a $erson" object" or ty$e of activity. Bhen it co#es to objects" and !ere dealing !ith real $ro$erty" then it cant be #oved to another state. 'ut" other for#s *IP" etc+ the issues beco#e #ore co#$le6. Persons can #ove fro# one territory to another. Issues arise. The e6ercise of jurisdiction based on nationalityOciti(enshi$ is a $rinci$le that e#erged in the civil la! tradition.
P 7elly
Fall 2008
Professor Akhavan
ri#inal la! !ill only e6tend to anada on a territorial basis e6ce$t for !hen there are s$ecific e6ce$tions. !$o,e of #uris(i$tion% t+e "asi$ (istin$tion is% Ci)il , a broad basis for jurisdiction e6ce$t for so#e #inor e6ce$tions *the case about e#bassies+ Cri5inal the #eans by !hich a sovereign state i#$oses its !ill on its citi(ens and those !ho are $resent on its territory anadian courts !ill never a$$ly the cri#inal la! of foreign states.
The ease of #ove#ent across boundaries is !hy citi(enshi$ and nationality is so i#$ortant to the continental tradition. T+e !tea5s+i, Lotus% *ran$e ). Tur4ey 71?8 PCI: page 661 te#t T+e +eig+t of a laisse'-faire a,,roa$+ to so)ereignty. !tates $oul( (o w+ate)er t+ey wante(. Post a collision on the high seas" Turkish authorities arrested . =e#ons" officer of the !atch" tried and convicted =e#ons for deaths of eight Turkish sailors and $assengers. The 3uestion !as !hether the French ca$tain could be $rosecuted for negligence in Turkey. The court ans!ered the 3uestion by ado$ting the vie! that intl la! is funda#entally $er#issive. Absent a s$ecific restriction" Turkey had the right to e6tend its legislation such that the ca$tain of the French ca$tain could be arrested. T+is is no longer ,er5issi"le. The current state of the la!) article ;C of the 1 onvention on the a! of the
5. Territorial Princi$le & The state in !hose territory a cri#e is co##itted has jurisdiction over the offence & Includes land #ass" internal !aters and their beds" territorial sea and its subsoil" airs$ace above all of the for#er. & an be e6tended to 200 nautical #ile DDW & Territoriality can be $artially an e6tra&territorial basis for jurisdiction & I.e. !rongful act has effect on the territory" even if it did not occur there & Five $ossible different a$$lications of this) o Subjective or initiatory )rincipleA act dee#ed to have been co##itted in the $lace !here it co##enced. ,bjective or Terminatory )rincipleA state !ere act is consu##ated or the last constituent ele#ent of the o offence occurs has jurisdiction Injured *orum TheoryA state that felt detri#ental effects takes jurisdiction o Diploc82s Theory in Treacy & -ny lement theoryA any ele5ent of the offence occurs !Oin state%s o borders Reasonable and Legit InterestA Bhere state has reasonable or legiti#ate interest in doing so co#$ared o !ith other states involved. In 6ibman < took a$$roach !here significant $otion of the activities took $lace in anada. Real and Substantial Lin8 Test 2. 1ationality $rinci$le , 'ased on nationality of the author of the cri#e , used e6tensively in civil la! countries. & This is the #odel of French" Turkish" continental la!J & The $roble# arises !hen the act is not $rohibited in the country !here it is carried out These cri#es are still $rosecutable" unless there is so#e rule of international $ublic order that !ould o $rohibit this & There has been a ree#ergence of this $rinci$le" even in states that don%t nor#ally acce$t this a$$roach e6. hild Prostitution *se6&touris#+ & the nationality $rinci$le is not contrary to international la!" so anada is free to change the cri#inal code to #ake #ore cri#es illegal by an citi(ens
P 7elly
Fall 2008 & & &
Professor Akhavan
'ut" as of no!" if you co##it a #urder on a ro!&boat on the high seas" you cannot be charged under anadian cri#inal la! orollary to the reluctance to e6tradite citi(ens or nationals. The $rinci$le is not restrictive and not $er#issive.
G. Passive $ersonality $rinci$le , A state #ay clai# jurisdiction over cri#es co##itted abroad even by aliens" against its nationals. & This $rinci$le is not as !ell acce$ted in international la! & This is essentially the state controlling the behaviors of the nationals of other states , this is a $roble#V &
1ationality Princi$le Passive Personality
P 7elly
Bhere the cri#e occurred is the >> 1ot easy to al!ays say !here the cri#e occurredV In anada !e assu#e 9 if the offence !ere co##itted in !hole or i n $art in anada" or if the offender co##itted it else!here kno!ing it !ould cause direct and substantial har#ful effects in anada.+ There is also ord =i$lock%s Any Dle#ent Princi$le and lastly the @easonable and egi#itate Interests Test !hich !as used in the 6ibman ase. 'asis of 9 the nationality of the offender. sed e6tensively in countries. *used by anada for cases of treason" !ar cri#es" cri#es against hu#anit y and terrorist offences+. A7A the
Fall 2008 Princi$le
Professor Akhavan regardless of the offender%s nationality or the $lace of the cri#e. *is this !hat <$ain has done against < soldiers for death of <$anish re$orter in Irak>+ It is largely conde#ned. *used by anada !hen victi# is an int%l $rotected $ersons re$resenting anada and victi# to !ar cri#e" hu#anity cri#es or hostage&taking+. 9 is based on the $rejudice a
Li"5an ). T+e Gueen 71@K8 !CC page 6;' te#t
ib#an o$erated a boiler roo# in TorontoN !ould call A#ericans to invest in a #ining o$eration in osta @ica. The \ !ould be shi$$ed to osta @ica" it !ould be de$osited in off&shore accounts. ib#an is charged !ith fraud and cons$iracy to co##it fraud. There !as no jurisdiction to $rosecute hi# because the cri#e ha$$ened outside of anada. Issue% Is there jurisdiction to $rosecute in anada> ;ol(ing% Des. & As a basic $rinci$le" anadian cri# la! does not try to a$$ly e6tra territorially nlike Turkish la! !hich binds the actions of all its citi(ens" !hether at ho#e or abroad" Anglo&A#erican states in general atte#$t to refrain fro# e6tra& territorial jurisdiction & ib#an argued that bOc the e6ecution involved victi#s in the < sending \ to osta @ica" the essential cri#e *fraud+ actually ha$$ened in the < & a Forest 9 , 2 ele#ents , territorial connectionN or effect of cri#e is connected to anadian territory & ourt found $lanning the fraud !as enough of a territorial connection to $rosecute hi# in anada There #ust be a real su"stantial link bet!een the offense and the country If in the age of call centers one !as to dra! a rigid test of territoriality" then as the court says" every cri#e !ould be “here and there and no!here at the sa#e ti#e. Note% /e !as charged under s.4LQ *G+*4+ of the cri#inal code. Assertion of E>traterritorial :uris(i$tion page 6;5 te#t In anada !e have the Arctic Baters Pollution Act. It regulates conduct beyond the continental shelf. & This is the sa#e jurisdiction that the < uses for anti&trust la! *usually to $rotect their o!n co#$anies+ & Trusts #ay occur abroad" but the effect is felt in the < so this is enough & Perha$s jurisdiction not given to the < bOc he !ould continue to foru# sho$$ing by $utting for!ard the sa#e argu#ents , therefore $ractical considerations. !$o,e of Uni)ersal :uris(i$tion :enerally a$$lies to international cri#es. ,arte Pino$+et 0no. 23 7JJ18 C+ile
An interesting discussion of niversal 9urisdiction. <$anish $resident !ants his e6tradition !hen he goes to the 7 for #edical treat#ent. The 7 allo!ed hi# to co#eN he ca#e in a $rivate ca$acity. Torture is an international cri#e. 'ritish can choose to $rosecute or e6tradite. 1ote) kno! the onvention Against Torture. “E>tra(ite or ,rose$ute is very i#$ortant. The /o o$inion) illet 9) These cri#es attract universal jurisdiction if 2 criterion are satisfied) 5+ They #ust be contrary to a $ere#$tory nor# of int%l la! so as to infringe a jus cogens. 2+ It #ust be so serious ... that it can be seen as an attack on the intl legal order. The 'elgian legislation on the other hand" did not re3uire the $resence of the accused) if you take $resence out" you have a global court. This is loosely called “universal jurisdiction in absentia Case Con$erning t+e Arrest Warrant of A,ril 119 JJJ% Dero(ia Case9 Congo ). Belgiu5 7JJ8 IC: page 6/7 te#t
P 7elly
Fall 2008
Professor Akhavan
....!hat good is a foreign #inister if he has to stay at ho#e> ongo brings a case about 'elgiu# because they issued a universal arrest !arrant. *Dffectively #aking their foreign #inister stay ho#e+. 1e6t argu#ent *the one that $revails+) i55unity. Intl la! res$ects the i##unity of the foreign #inister to the $oint !here it is not $ossible to conduct intl affairs if one court can indict the foreign #inister of another state. Note% i55unity not i5,unity. T+e i55unity only lasts w+ile you o$$u,y t+e offi$e.
If you allo! states to start indicting each others foreign #inisters" then" all of a sudden arrest !arrants !ill $roliferate. !u,,ression of Trans-National Cri5es of International Con$ern page 6/0 te#t D6 , 'ribery" Terroris#. These are not intl cri#es as such. There is no e6ercise of universal jurisdiction. If so#eone co##its a terrorist act and it%s not a !ar cri#e or cri#e against hu#anity" its different... Terroris5 -
Pur$ose) Art. 4
Art. M
Art. @ Art. 55
Art.52
This convention !as ado$ted to re#edy a ga$ in the $iece#eal conventions. There !as nothing to deal !ith terrorist bo#bings that !ere not associated !it h any other terrorist convention cri#es. Dach Any !hy hasn%t anada i#$le#ented the treaty yet des$ite this article re3uiring it> The basis of jurisdiction" both #andatory *co##itted in the territory on a flag&shi$" or by a national+ and o$tional *co##itted against a national" against a tra(ite or ,rose$ute wit+out un(ue (elay.
:uris(i$tion o)er t+e Person E>er$ising E>tra-Territorial :uris(i$tion% Wit+ !tate Consent & Acco#$lished by e6tradition treaties These are bilateral #atters , states can $ut !hatever they !ant in the# *li#ited by /@ la! jus cogens o nor#s+ D6tradition $roceedings under the la! !ho has the $erson. o 1ote that e6tradition is different in conce$t to transfer to international criminal tribunals 9est under o Chapter 5 of the $%C: !hich is different than an e6tradition to another state & 2 essential ele#ents) =ouble cri#inality , it has to be an offense in the state re3uesting e6tradition the state !here they are o <$eciality , a $erson is e6tradited on the basis of an allegation regarding a certain cri#e *can%t re3uest o e6tradition on the basis of assault and then $rosecute the# for $olitical offenses+ & Outsi(e of t+e fra5ewor4 of an e>tra(ition treaty9 t+ere is no legiti5ate way to e>tra(ite D6ce$tion) #ut dedere, aut *udicaire o “either you give" or you judge “D6tradite or $rosecute rule states have to e6tradite" or $rosecute the $erson the#selves for #ajor international cri#es *eg. torture" hijacking" etc.+ e6. :eneva onventions" 5;4; and ontreal onvention *aircraft security+ but if no one is !illing to $rosecute the $erson" they !ill re#ain free.
P 7elly
Fall 2008
Professor Akhavan
In these cases" onvention Against Torture *or other conventions dealing !ith si#ilar subjects+ acts as re$lace#ent for e6tradition treaty.