International law 9780409338942, 040933894X

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International Law STEPHEN TULLY BComm, LLB (UNSW), LLM (KCL), PhD (LSE) Barrister

BRIDGET LEWIS BA LLB (UQ), MHR (Nott) Lecturer, Faculty of Law, Queensland University of Technology

OTTAVIO QUIRICO LLB (Pavia), LLM, PhD (Toulouse) Senior Lecturer, School of Law, University of New England

LexisNexis Butterworths Australia 2015

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Creator: Title: ISBN:

Tully, Stephen. International Law. 9780409338935 (pbk). 9780409338942 (ebk). Series: LexisNexis study guide. Notes: Includes index. Subjects: International law — study and teaching. Other Authors/Contributors: Lewis, Bridget. Quirico, Ottavio. Dewey Number: 341.0711. © 2015 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Calluna and Fira Sans Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface International law is an engaging but demanding area of study, often requiring its practitioners to interpret and apply complex concepts to potentially challenging situations. It is, nonetheless, a fascinating subject for those who study it. The purpose of this book is to assist students to establish an elementary foundational understanding of international law. The book provides an accessible introductory text using simple, clear and concise language that states the essential definitions and concepts, identifies the contentious topics and addresses the key materials. The book can be used as both a quick revision tool and a reference to facilitate effective examination preparation. The LexisNexis Study Guide: International Law has a broad, contemporary and international appeal. It reflects the succinct style and straightforward approach of other LexisNexis Study Guides. For example, this book analyses the leading or recent cases in summary form. The Guide also contains occasional extracts from important material. But one distinctive feature of this volume is the inclusion of cases and issues of particular relevance to Australia. Our objective has been to briefly outline and explain the fundamentals concerning the theory and practice of this subject. All of the core branches of

international law are covered, although our treatment of some issues is necessarily

selective.

The

intersection

between

public

and

private

international law is also referenced. Stephen generally edited the text, wrote chapters 1, 3, 9 and 12, wishes to thank Bridget and Jocelyn for their very constructive feedback and dedicates his work to his sister, Dale. Bridget wrote chapters 2, 4, 6 and 10 and reviewed four more. She wishes to thank Stephen for his detailed feedback on early drafts and dedicates her work to her family. Ottavio wrote chapters 5, 7, 8 and 11. We thank our colleagues for their support. We especially wish to give our warmest thanks to all at LexisNexis for their constant encouragement, patience and hard work in preparing this Guide, in particular to Jocelyn Holmes for her tremendous efforts in reviewing and improving the text. We also thank Rochelle Ransom, Eleanor O’Connor, Marietta Gunn and Sam Skinner for their assistance. The law is stated as at May 2015. Stephen, Bridget and Ottavio May 2015

Table of Cases References are to paragraph numbers. Case extracts are in bold.

A Aaland Islands Question (On Jurisdiction) (1920) League of Nations Official Journal, Spec Supp 3 …. 4.7 Air Services Agreement case (France v US) (1978) 18 RIAA 416 …. 10.23 Air Transport Association of America v Secretary of State for Energy and Climate Change (Court Justice of the European Union, Case C-366/10, 21 December 2011) …. 5.62 Akayesu (ICTR-96–4, 2 September 1998) …. 7.5, 7.25 Alabama Claims Arbitration (United States of America v Great Britain) (1872) 1 Int Arb 495 …. 3.14 American Banana Co v United Fruit Co 213 US 347 (1909) …. 8.46 Amoco Cadiz (7th Cir, 1992) 954 F2d 1279 …. 5.19 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 …. 3.24 Anglo-Czechoslovak & Prague Credit Bank v Janssen [1943] VLR 185 …. 4.15 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4 …. 3.31 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium)

[2002] ICJ Rep 3 (Arrest Warrant case) …. 4.28, 4.30, 7.61 Australia and New Zealand v France [1974] ICJ Rep 253 …. 2.56, 12.22 Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Rep 12 …. 3.13

B Barcelona Traction, Light and Power Company, Ltd (Belgium v Spain) (New Application: 1962) [1970] ICJ Rep 3 …. 2.51, 3.16, 10.38, 11.9 Beagle Channel Arbitration (Chile and Argentina), Award and Decision of 18 February 1977 (1977) 52 ILR 93 …. 12.14 Bonython v Commonwealth [1951] AC 201 …. 8.5 Bradley v Commonwealth (1973) 128 CLR 557; [1973] HCA 34 (the Rhodesian Information Centre case) …. 3.45 Brazilian Loans (Brazil v France) [1929] PCIJ Ser A No 21 …. 3.17 Breard v Greene 523 US 371 (US SC, 1998) …. 3.21 Brown v Classification Review Board (1998) 83 FCR 225 …. 3.33 Buvot v Barbuit (1737) 25 ER 777 …. 3.37

C Caire Claim (France v United Mexican States) (1929) 5 RIAA 516 …. 10.10 Camouco Case, The (Panama v France) (2000) ITLOS Case No 5 …. 9.53 Canada–US Settlement of Gut Dams Claims [1968] 8 ILM 118 …. 5.19 Caroline case (Great Britain v United States) (1840–41/1842–43) 29–30

British and Foreign State Papers 1126 …. 11.11 Certain German Interests in Polish Upper Silesia (Germany v Poland) (Merits) [1926] PCIJ Ser A No 7 …. 3.15 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 …. 12.25 Chorzow Factory (Indemnity) [1928] PCIJ Ser A No 17 …. 2.56, 10.30 Chow Hung Ching v R (1949) 77 CLR 449; [1948] HCA 37 …. 3.42 Chung Chi Cheung v R [1939] AC 160 …. 3.38 Colombia v Peru [1950] ICJ Rep 266 (Asylum case) …. 2.53 Commission of the European Communities v Ireland (ECJ, C-459–06, 30 May 2006) …. 5.63 Committee of US Citizens Living in Nicaragua v Reagan 859 F 2d 929 (DC Cir, 1988) …. 3.39 Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (Tasmanian Dam case) …. 3.23, 5.52 Continental Shelf Case (Tunisia v Libya) [1982] ICJ Rep 18 …. 9.20, 9.38 Continental Shelf Case (Libya v Malta) [1985] ICJ Rep 13 …. 9.20, 9.38, 9.40 Corfu Channel, The (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4 …. 4.17, 5.19, 9.14, 9.15, 9.45, 9.47

D

Denmark v Norway [1993] ICJ Rep 34 …. 9.34 Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11 …. 4.6 Dietrich v R (1992) 177 CLR 292; [1992] HCA 57 …. 3.29 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v USA) [1984] ICJ Rep 246 …. 9.36 Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v UK), OSPAR Arbitral Tribunal, Final Award, 2 June 2003 …. 5.63 Diversion of Water from the River Meuse (Netherlands v Belgium) [1937] PCIJ Ser A/B No 70 …. 2.56

E East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 …. 4.14, 12.24 European Community – Bananas III, WT/DS27/R/ECU (22 May 1997) …. 8.40 Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47 …. 2.56 Eichmann 36 ILR 5 (Supreme Court of Israel, 29 May 1962) …. 7.63 Eritrea v Yemen (Phase 2: Maritime Delimitation) (1999) 119 ILR 417 …. 9.37, 9.43 Ethiopia/Liberia v South Africa (Preliminary Objections) [1962] ICJ Rep

329 …. 12.7 Exchange of Greek and Turkish Populations Case (Advisory Opinion) [1925] PCIJ Ser B No 10 …. 3.10

F Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands [1969] ICJ Rep 3 (North Sea Continental Shelf Cases) …. 2.41, 2.44, 2.45, 2.69, 9.34, 9.37, 9.38, 9.39, 9.40 Fisheries case (United Kingdom v Norway) [1951] ICJ Rep 116 …. 2.54, 9.5, 9.6 Fisheries Jurisdiction case (United Kingdom v Iceland) [1974] ICJ Rep 3 …. 2.44, 9.23 Foster v Neilson 2 Pet 253 (US SC, 1829) …. 3.21 France v Norway [1957] ICJ Rep 9 …. 12.25 France v Spain (1957) 12 RIAA 281 (Lac Lanoux) …. 5.10 France v United States (1978) 18 RIAA 416 …. 10.2 Furundzija (ICTY, IT-95–17/1, 10 December 1998) 1 …. 7.62

G Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 …. 5.13, 10.28

H Habib v Commonwealth (2010) 183 FCR 62; [2010] FCAFC 12 …. 3.46

Hartford Fire Insurance Co v California 509 US 764 (1993) …. 8.46 Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 …. 3.46 Horta v Commonwealth (1994) 181 CLR 183; [1994] HCA 32 …. 3.12, 3.23 Horvath v Australia, Human Rights Committee Communication No 1885/2009 …. 6.49

I Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Rep 65 …. 12.4 Ireland v United Kingdom (ITLOS, Request for Provisional Measures, Order of 3 December 2001) (MOX Plant case) …. 5.16, 5.63 Ireland v United Kingdom (UNCLOS Arbitral Tribunal, Orders of 24 June 2003 and 6 June 2008) (MOX Plant case) …. 5.63 Island of Palmas Arbitration (1928) 2 RIAA 829 …. 4.22

J Japan–Alcoholic Beverages II WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 November 1996) …. 8.30 Jelisic (ICTY, IT-95–10, 5 July 2011) …. 7.25 J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 …. 3.25 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)

[2012] ICJ Rep 99 …. 4.29

K Kayishema and Ruzindana (ICTR, 95–1, 21 May 1999) …. 7.25 Kunarac (ICTY-96–23, 12 June 2002) …. 7.18, 7.22

L LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep 466 …. 3.13 Laguna del Desierto Case (Argentina v Chile) (1994) 113 ILR 1 …. 2.56 Land and Maritime Boundary (Cameroon v Nigeria) [2002] ICJ Rep 303 …. 9.37, 9.41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 …. 7.7, 11.13, 11.30, 12.32 Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ Ser A/B No 53 …. 2.39 Legality of the use of Force (Serbia and Montenegro v Belgium) (Public sitting Monday 10 May 1999, verbatim record, CR 99/15) …. 11.35 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 (Nuclear Weapons) …. 5.2, 5.12, 5.14, 5.20, 7.4, 11.16, 11.17, 12.30 Lopez Ostra v Spain (ECHR, Case No 16798/90, 9 December 1994) …. 5.67

M Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 …. 3.43 Maclaine Watson and Co Ltd v International Tin Council (International Tin Council cases) (1988) 80 ILR 110 …. 10.36 Maritime Boundary in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 34 …. 9.34 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [2001] ICJ Rep 40 …. 2.16, 9.6, 9.7, 9.32, 9.41, 9.42 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112 …. 2.16 Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ Rep 120 …. 9.37 Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Application, 28 August 2014) …. 4.6 Martić (ICTY-95–11–A, 8 October 2008) …. 7.18 Mavrommatis Palestine Concessions (Judgment No 2) (Greece v United Kingdom) [1924] PCIJ Ser A No 2 …. 12.4 Medellin v Texas 128 S Ct 1346 (US SC, 2008) …. 3.21 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 (Nicaragua Merits decision) …. 2.46, 4.16, 7.4, 8.3, 9.11, 10.13, 11.3, 11.6, 11.8, 11.9, 11.13, 11.16, 11.19, 12.25, 12.29

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 …. 3.28, 3.35 Minister for Immigration and Multicultural Affairs; Ex p Lam (2003) 214 CLR 1; [2003] HCA 6 …. 3.36 Ministry of the Merchant Marine and of the Interior v Patmos Shipping Corp and Others (Appeal Court, Messina, 30 March 1989 [1990] 5 Rivista Giuridica Dell’Ambiente 527 …. 5.61 Minogue v Williams [2000] FCA 125 …. 3.29 MV Saiga (No 2) Case (St Vincent and the Grenadines v Guinea) (1999) 38 ILM 1323 …. 9.21, 9.27, 9.28

N New South Wales v Commonwealth [1975] HCA 58 (Seas and Submerged Lands Act case) …. 9.31 New Zealand v Japan; Australia v Japan (Provisional Measures) [1999] 38 ILM 1624 (Southern Bluefin Tuna) …. 5.16, 12.44 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 …. 3.24 Norwegian Loans (France v Norway) [1957] ICJ Rep 9 …. 12.25 Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 …. 10.38 Nuclear Tests (Australia and New Zealand v France) [1974] ICJ Rep 253) …. 2.56, 12.22 Nuclear Tests (Australia v France; New Zealand v France) (Interim

Measures) [1973] ICJ Rep 99 …. 5.10, 5.16 Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA 1192 …. 3.9, 3.41

O Oil Platforms case (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161 …. 11.16

P Paquete Habana, The 175 US 677 (US SC, 1900) …. 3.39 Phillips v Eyre (1870) LR 6 QB 1 …. 8.7 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 …. 3.30 Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3 …. 3.12 Polyukhovich v Commonwealth (1991) 172 CLR 501; [1991] HCA 32 …. 3.44 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 …. 3.30 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 …. 5.10

Q Questions of Interpretation and Application of the 1971 Montreal

Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) [1992] ICJ Rep 3 (Lockerbie) …. 7.68

R R v Anderson (1868) 11 Cox’s Criminal Cases 198 …. 9.10 R v Asfaw [2008] UKHL 31 …. 3.25 R v Bow Street Metropolitan Stipendiary Magistrate; Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147 …. 3.37, 3.38, 4.32, 7.63 R v Jones (Margaret) [2007] 1 AC 136 …. 3.38, 7.64 R v Keyn (1876) 2 Ex D 63 …. 3.38 R v Secretary of State for Transport (No 2); Ex p Factortame Ltd [1991] 1 AC 603 …. 3.26 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 …. 4.34 Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261; [1998] HCA 10 …. 3.23 Rights of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6 …. 2.52 Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 …. 3.24 Russian Federation v Australia (2002) ITLOS Case No 11 …. 9.53

S

Salini Costruttori SpA and Italstrade SpA v Morocco, ARB/00/4 (23 July 2001) (ICSID case) …. 8.16, 8.56 Sanchez-Llamas v Oregon 126 S Ct 2669 (US SC, 2006) …. 3.21 Sei Fuji v California 38 Cal 2d 718 (Cal SC, 1952) …. 3.21 Sosa v Alvarez-Machain 124 S Ct 2739 (US SC, 2004) …. 3.40 South West Africa (Preliminary Objections) [1962] ICJ Rep 319 …. 12.4, 12.7 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan (Provisional Measures) [1999] 38 ILM 1624 …. 5.16, 12.44 SS Lotus (France v Turkey) [1927] PCIJ Ser A No 10 (Lotus case) …. 2.48, 4.23, 7.58, 9.27 St Vincent and the Grenadines v Guinea (1999) 38 ILM 1323 …. 9.21, 9.27, 9.28 Status of Eastern Carelia (Advisory Opinion) [1923] PCIJ Ser B No 5 …. 12.3

T Tadić (ICTY IT-94–1–AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995) …. 7.5 Texaco Overseas Petroleum Company and California Asiatic Oil Company v The Government of the Libyan Arab Republic (1977) 53 ILR 389 …. 4.36 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 …. 3.45

T H Youmans Claim (US v Mexico) (1926) 4 RIAA 110 …. 10.10 Timberlane Lumber Co v Bank of America 549 F2d 597 (1976) …. 8.46 Trail Smelter (USA v Canada) Award of 16 April 1938 & 11 March 1941 (1950) III RIAA 1905 …. 5.9 Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 …. 3.37 Tuitupou v Minister for Immigration and Multicultural Affairs (2000) FCA 197; 60 ALD 361 …. 3.12

U United Railways of the Havana and Regla Warehouses Ltd, Re [1960] 2 All ER 332 …. 8.5 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3 …. 10.16 United States of America v Great Britain (1872) 1 Int Arb 495 …. 3.14 United States of America v Mexico (1926) 4 RIAA 110 …. 10.10 United States of America – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (7 April 2005) …. 8.40

V Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 (Industrial Relations Act case) …. 3.23, 3.25

Viva Vino Import Corporation v Farnese Vini Srl (2000) WL 1224903 (ED Pa 2000) …. 8.53 ‘Volga’ Case, The (Russian Federation v Australia) (2002) ITLOS Case No 11 …. 9.53

W Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 …. 4.7, 12.30 Whaling in the Antarctic (Australia v Japan; New Zealand Intervening) (Judgment) [2014] ICJ Rep (1 March 2014) …. 12.27 Wildenhus’ Case (1887) 120 US 1 …. 9.10

Y Yeager v Islamic Republic of Iran (1987–IV) 17 Iran-USCTR 92 …. 10.9

Table of Selected Instruments References are to paragraphs

Commonwealth Acts Interpretation Act 1901 s 15AB …. 3.32 Australian Constitution s 51(xxix) …. 3.23, 5.52 s 75(i) …. 3.22 Competition and Consumer Act 2010 …. 8.46 Environment Protection and Biodiversity Conservation Act 1999 s 225 …. 9.49 Fisheries Act 1979 …. 9.23 Fisheries Management Act 1991 s 7 …. 9.23 s 8 …. 9.23 International Arbitration Act 1974 …. 12.16 National Parks and Wildlife Conservation Act 1975 …. 5.52 Seas and Submerged Lands Act 1973 …. 9.31 World Heritage Properties Conservation Act 1983 …. 5.52

Tasmania Gordon River Hydro-Electric Power Development Act 1982 …. 5.52

International Additional Protocol I to the Geneva Conventions 1977 …. 7.3 Art 3 …. 7.5, 7.39 Art 35(3) …. 5.58 Art 85 …. 7.39 Additional Protocol II to the Geneva Conventions 1977 Art 3 …. 7.3, 7.21 Additional Protocol III to the Geneva Conventions 2005 …. 7.3 Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations 1947 …. 2.7 Agreement Establishing the World Trade Organization 1994 …. 8.23, 8.33, 8.34 Arts II …. 8.21, 8.24 Art III …. 8.21 Art IV …. 8.27, 8.28 Art IX …. 8.26 Art XVI …. 8.24 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1984

Art 11 …. 5.46 Agreement on Textiles and Clothing 1994 …. 8.23 American Convention on Human Rights 1978 …. 6.50 Antarctic Treaty 1961 …. 5.44 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal 1992 …. 5.56 Berne Convention for the Protection of Literary and Artistic Work 1887 …. 8.43 Business Charter for Sustainable Development 1991 …. 5.25 Cartagena Protocol on Biosafety 2003 …. 5.51 Charter of Economic Rights and Duties of States 1974 …. 8.3 Charter of the International Military Tribunal for the Far East 1946 (IMTFE) …. 7.14 Art 5 …. 7.45 Art 5(a) …. 7.28 Art 5(b) …. 7.21 Art 5(3) …. 7.18 Art 6 …. 7.49 Art 16 …. 7.32 Art 17 …. 7.52 Charter of the International Military Tribunal at Nuremberg (IMT

Charter), London Agreement for the Establishment of an International Military Tribunal 1945 …. 7.14 Art 6 …. 7.45 Art 6(a) …. 7.28 Art 6(b) …. 7.21 Art 6(c) …. 7.18 Art 7 …. 7.49 Art 9 …. 7.32, 7.45 Arts 27–28 …. 7.32 Art 29 …. 7.52 Charter of the United Nations 1945 (UN Charter) …. 1.23, 3.21, 8.3 Preamble …. 11.2, 11.28 Ch V …. 11.48 Ch VI …. 11.41, 11.48 Ch VII …. 2.64, 11.41, 11.48 Art 1 …. 11.5, 11.41 Art 2 …. 11.5 Art 2(1) …. 1.3, 4.16 Art 2(3) …. 12.2 Art 2(4) …. 11.4, 11.23, 11.41, 12.2 Art 3 …. 11.5

Art 5(2) …. 11.7 Art 5(3) …. 11.7 Art 12 …. 12.13 Art 18 …. 2.65 Art 21 …. 10.20, 11.14 Art 22 …. 10.21 Art 23 …. 10.24 Art 23(1) …. 10.24 Art 23(2)(a) …. 10.24 Art 23(2)(b) …. 10.24 Art 24 …. 10.26 Art 24(2)(a) …. 10.27 Art 24(2)(b) …. 10.27 Art 25 …. 2.64, 3.45, 10.28 Art 25(1)(a) …. 10.28 Art 25(1)(b) …. 10.28 Art 25(2)(a) …. 10.28 Art 25(2)(b) …. 10.28 Art 26 …. 10.23 Art 27(3) …. 11.43 Art 29 …. 10.29, 11.48

Art 30 …. 10.29 Art 31 …. 10.30 Art 32 …. 10.30 Arts 33–38 …. 11.42 Art 33 …. 12.2 Art 34 …. 10.30, 12.13 Art 35 …. 10.30 Art 35(1) …. 12.13 Art 36 …. 12.13 Art 36(2) …. 10.32 Art 36(3) …. 12.13 Art 37 …. 10.33, 12.13 Art 37(2) …. 10.33 Art 38 …. 12.13 Art 39 …. 11.43 Art 40 …. 11.43 Art 41 …. 1.17, 11.43, 11.44, 11.46 Art 42 …. 1.17, 11.46 Art 43 …. 11.45 Art 45 …. 11.45 Arts 48–49 …. 11.45

Art 49(1) …. 10.21 Art 49(2) …. 10.21 Art 49(3) …. 10.23 Art 50(1)(a) …. 10.23 Art 50(1)(b) …. 10.23 Art 50(1)(d) …. 10.23 Art 51 …. 10.23, 11.12, 11.13, 11.18, 11.23 Art 52 …. 10.21 Art 52(3)(b) …. 10.23 Arts 53–54 …. 11.45 Art 53 …. 10.23 Art 92 …. 2.2, 12.17 Art 93 …. 12.17 Art 94(1) …. 12.28 Art 96 …. 12.28 Art 102 …. 2.15 Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (Aarhus Convention) 2005 …. 5.25 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) …. 2.50, 4.28, 6.25, 6.49, 7.37, 7.66

Art 1 …. 6.39, 7.37 Art 2 …. 6.39 Art 2(2) …. 6.39 Art 3 …. 6.39 Art 4 …. 6.39, 7.37 Art 5 …. 4.28 Art 17 …. 6.45 Art 21 …. 6.47 Art 22 …. 6.45 Convention to Combat Desertification in those Countries Experiencing Drought and/or Desertification, Particularly in Africa 1996 …. 5.29 Convention on Conditions for Registration of Ships 1987 …. 9.27 Convention for the Conservation of Antarctic Marine and Living resources 1982 …. 5.44 Convention for the Conservation of Antarctic Seals 1978 …. 5.44 Convention for the Conservation of Migratory Species of Wild Animals 1983 …. 5.48 Convention for the Conservation of Southern Bluefin Tuna 1994 Art 16 …. 12.44 Convention on Biological Diversity 1993 …. 5.5, 5.50, 5.51, 5.53 Convention on the Continental Shelf 1964 Art 6 …. 9.33

Convention on Contracts for the International Sale of Goods 1988 Art 1 …. 8.38 Convention on the Elimination of All Forms of Racial Discrimination Against Women 1981 (CEDAW) …. 6.25, 6.49 Art 7 …. 6.36 Art 8 …. 6.36 Art 10 …. 6.36 Art 11 …. 6.36 Art 12 …. 6.36 Art 13 …. 6.36 Art 15 …. 6.36 Art 16 …. 6.36 Art 17 …. 6.45 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) 1997 Art 2(3) …. 5.22 Convention Establishing the Multilateral Investment Guarantee Agency 1988 …. 8.18 Convention on International Access to Justice 1988 …. 12.5 Convention on International Trade in Endangered Species of Wild Flora and Fauna 1975 …. 5.48 Convention on Jurisdictional Immunities of States and Their Property 2004

…. 4.29 Convention on the Law of the Non-Navigational Uses of International Watercourses 2014 Art 2(a) …. 5.31 Art 5 …. 5.31 Art 7 …. 5.31 Arts 20–23 …. 5.31 Art 22 …. 5.48 Art 23 …. 5.48 Convention on the Law of the Sea 1994 (UNCLOS) …. 5.33, 5.34, 5.63, 7.66, 9.1, 9.3, 12.42 Annex VII …. 5.63 Annex VIII …. 9.53, 12.44 Pt VI …. 9.21 Pt XI …. 9.30 Pt XII …. 5.33 Art 1 …. 9.4 Art 2(1) …. 9.4 Art 2(2) …. 9.12 Art 5 …. 9.5 Art 6 …. 9.5 Art 7 …. 9.6

Art 7(4) …. 9.7 Art 8 …. 9.4, 9.9 Art 10 …. 5.63, 9.4, 9.6 Art 13 …. 9.4 Art 15 …. 9.35 Art 17 …. 9.14 Art 18 …. 9.4, 9.14 Art 19 …. 9.4, 9.14 Art 19(2) …. 9.14 Art 20 …. 9.16 Art 21 …. 9.13 Art 22 …. 9.16 Art 23 …. 9.16 Art 24(1) …. 9.15 Art 24(2) …. 9.15 Art 25(3) …. 9.15 Art 27 …. 9.13 Art 27(2) …. 9.13 Art 27(5) …. 9.13 Art 28 …. 9.13 Art 28(1) …. 9.13

Art 33 …. 9.4, 9.19 Art 36 …. 9.45 Art 37 …. 9.45 Art 38 …. 9.46 Art 39 …. 9.46 Art 42 …. 9.47 Art 46 …. 9.4 Art 47 …. 9.4 Art 49(1) …. 9.17 Art 51(1) …. 9.17 Art 52(1) …. 9.18 Art 52(2) …. 9.18 Art 53 …. 9.18 Art 55 …. 9.4, 9.20 Art 56(1) …. 9.21 Art 56(3) …. 9.21 Art 57 …. 9.4 Art 58(1) …. 9.22 Art 58(3) …. 9.22 Art 59 …. 9.22 Arts 61–68 …. 5.49

Art 61 …. 9.23 Art 62 …. 9.23 Art 65 …. 9.49 Art 73 …. 9.21 Art 73(1) …. 9.53 Art 74 …. 9.35 Art 76 …. 9.25 Art 76(1) …. 9.4 Art 77 …. 9.24 Art 83 …. 9.35, 9.44 Art 86 …. 9.4 Art 87 …. 9.26 Art 88 …. 9.26 Art 89 …. 9.26 Art 91(1) …. 9.27 Art 92 …. 9.27 Art 92(2) …. 9.28 Art 93 …. 9.28 Art 94 …. 9.27 Art 97 …. 9.28 Art 100 …. 7.65, 9.28

Art 101 …. 7.40, 9.4 Art 106 …. 7.40 Art 109 …. 9.28 Art 110 …. 9.28 Art 111 …. 9.28 Arts 116–120 …. 5.49 Art 117 …. 9.48 Art 118 …. 9.48 Art 121 …. 9.4 Art 121(1) …. 9.4 Art 125(1) …. 9.26 Art 136 …. 5.34, 9.29 Art 140 …. 9.29 Arts 192–196 …. 5.34 Art 192 …. 9.50 Art 193 …. 9.50 Art 194 …. 9.50 Art 197 …. 9.50 Arts 207–208 …. 5.34 Art 207 …. 9.51 Art 209 …. 5.34

Art 210 …. 5.34 Art 211 …. 5.34 Art 212 …. 5.34 Art 221 …. 9.51 Art 279 …. 9.53 Art 280 …. 9.53 Art 281(1) …. 12.44 Art 282 …. 9.53 Art 284 …. 9.53 Art 286 …. 9.53 Art 287 …. 5.63, 9.53 Art 287(1) …. 12.43 Art 290 …. 9.53 Art 292 …. 5.63, 9.53 Art 297 …. 9.53 Art 298 …. 9.53 Art 309 …. 9.3 Convention on Long-Range Transboundary Air Pollution 1983 …. 5.36 Convention on Persistent Organic Pollutants 2004 …. 5.56 Convention for the Prevention of Pollution of the Sea by Oil 1958 …. 5.35 Convention for the Prevention of Pollution from Ships 1983 …. 5.35

Convention on the Prevention and Punishment of the Crime of Genocide 1951 …. 3.9, 7.14 Art 2 …. 7.24, 7.36 Art 4 …. 7.49 Art 5 …. 7.36 Art 6 …. 7.44 Art 9 …. 7.26 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemical and Pesticides in International Trade 2004 …. 5.56 Convention on Privileges and Immunities of the United Nations 1946 …. 4.34 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1978 …. 5.58 Convention for the Protection of the Marine Environment in the NorthEast Atlantic 1998 (OSPAR) …. 5.63 Art 9(2) …. 5.63 Convention for the Protection of Underwater Cultural Heritage 2009 Art 303 …. 9.52 Convention on the Regulation of Antarctic Mineral Resource Activities 1988 …. 5.44 Convention on the Regulation of Whaling 1948 …. 5.49 Art VIII(1) …. 12.27

Convention on the Rights of the Child 1990 (CRC) …. 6.25 Art 3(1) …. 6.37 Art 3(2) …. 6.37 Art 5 …. 6.37 Art 12 …. 6.37, 6.47 Art 19 …. 6.37 Arts 28–29 …. 6.37 Art 31 …. 6.37 Art 37 …. 2.21, 2.63 Art 37(c) …. 2.21 Art 42 …. 6.45 Convention on the Rights of Persons with Disabilities 2008 (CRPD) …. 6.25, 6.49 Art 1 …. 6.41 Art 3 …. 6.41 Art 4(1)(a) …. 6.41 Art 5 …. 6.41 Art 8 …. 6.41 Art 12 …. 6.41 Art 13 …. 6.41 Art 15 …. 6.41

Art 16 …. 6.41 Art 19 …. 6.41 Art 20 …. 6.41 Art 21 …. 6.41 Art 34 …. 6.45 Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1966 …. 8.56 Convention on the Use of Electronic Communications in International Contracts 2013 Art 6 …. 8.6 Art 10 …. 8.6 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1975 …. 5.48 Declaration of Human Rights 2012 (ASEAN Nations) …. 6.51 Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities 2001 …. 5.6 Art 3 …. 5.10, 5.16 Art 7 …. 5.21 Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 Art 4 …. 11.9 Art 8 …. 11.29

Art 21 …. 11.14 Art 40 …. 11.18 Art 41 …. 11.18, 11.37 Art 48 …. 11.18 Art 49-52 …. 11.15 Art 54 …. 11.18 Draft Code of Crimes against the Peace and Serenity of Mankind 1996 …. 7.19 Art 3 …. 7.32 Art 16 …. 7.28 Art 17 …. 7.24 Art 18 …. 7.18 Art 20 …. 7.21 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities 2006 …. 5.6 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) Arts 5–6 …. 8.53 Energy Charter Treaty 1998 …. 5.55 Art 19 …. 5.55 Arts 10, 13, 14 …. 8.18 European Convention on Human Rights 1953 …. 6.50

Fish Stock Agreement 2001 …. 5.49 General Act for the Pacific Settlement of International Disputes 1945 …. 12.5 General Agreement on Tariffs and Trade 1948 …. 8.18 Arts I, II, III, VI, XIII, XVI …. 8.29 Art XVIII …. 8.31 Art XX …. 5.54, 8.32, 8.35 Art XXIV …. 8.37 General Agreement on Trade in Services 1994 …. 8.23 Arts II, VIII, IX, XII, XIII, XIV, XVI …. 8.40 Art XX …. 8.39 Geneva Conventions on the Protection of War Victims 1865 …. 7.3, 7.21, 7.66 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1950 …. 7.3 Arts 49–51 …. 7.39 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1950 …. 7.3 Arts 50–52 …. 7.39 Geneva Convention (III) relative to the Treatment of Prisoners of War 1950 …. 7.3 Arts 129–131 …. 7.39

Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1950 …. 7.3 Art 53 …. 8.60 Arts 146–148 …. 7.39 Hague Convention IV Art 43 …. 8.58 Hague Convention XIII 1910 Art 6 …. 8.62 Hague Convention on Choice of Court Agreements 2005 …. 8.53, 12.5 Hague Convention for the Pacific Settlement of International Disputes 1899 …. 8.52 Hague Convention for the Pacific Settlement of International Disputes 1907 …. 8.52, 12.5 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1969 …. 8.48 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1969 …. 8.48 Hague Regulations of the International Criminal Court Reg 48 …. 7.51 Hague Regulations on Land Warfare 1910 …. 8.58 Art 23(g) …. 8.60 Arts 48–49 …. 8.59 Arts 52 …. 8.60

Arts 53 …. 8.60 Arts 55 …. 8.60 Hague Conference on Private International Law (HCCH) Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971 Art 8 …. 8.55 Art 9 …. 8.55 Art 10 …. 8.53 International Covenant on Civil and Political Rights 1966 (ICCPR) …. 2.68, 2.72, 3.29, 6.25, 6.45, 6.49 Art 1 …. 6.12, 11.40 Art 2 …. 6.27, 6.49 Art 2(1) …. 6.27 Art 2(2) …. 6.27 Art 3 …. 6.27 Art 4 …. 6.28, 6.29 Art 6 …. 6.9, 6.26, 6.28 Art 7 …. 6.9, 6.26, 6.28, 6.49 Art 8 …. 6.26 Art 8(1) …. 6.28 Art 8(2) …. 6.28 Art 9 …. 6.26, 6.49

Art 10 …. 6.9 Art 11 …. 6.28 Art 12 …. 6.26 Art 14 …. 6.9 Art 15 …. 6.28 Art 16 …. 6.28 Art 17 …. 6.49 Art 18 …. 6.26, 6.28 Art 19 …. 6.26 Art 21 …. 6.26 Art 22(1) …. 6.29 Art 22(2) …. 6.29 Arts 28–30 …. 6.30 Art 28 …. 6.45 Art 40 …. 6.30 Arts 41–43 …. 6.47 International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR) …. 2.72, 6.25, 6.33, 6.45, 6.49 Art 1 …. 6.12, 11.40 Art 2 …. 6.32, 6.33 Art 2(2) …. 6.33

Art 6 …. 6.31 Art 7 …. 6.31 Art 9 …. 6.31 Art 10 …. 6.47 Art 11 …. 6.31, 6.33 Art 12 …. 2.68, 6.31 Art 13 …. 6.31 International Convention on the Elimination of All Forms of Racial Discrimination 1969 (ICERD) …. 6.25, 6.49 Art 2 …. 6.35 Art 3 …. 6.35 Art 5 …. 6.35 Art 6 …. 6.35 Art 7 …. 6.35 Art 8 …. 6.45 Arts 11–13 …. 6.47 Art 14 …. 6.45 International Convention on the Protection of the Rights of All Migrant Workers and Their Families 2003 (CMW) …. 6.25, 6.49 Art 7 …. 6.42 Art 25 …. 6.42 Art 72 …. 6.45

Art 77 …. 6.45 International Convention for the Protection of All Persons from Enforced Disappearances 2010 (CED) …. 6.25, 6.49 Art 1 …. 6.43 Art 3 …. 6.43 Art 4 …. 6.43 Art 26 …. 6.44, 6.45 Art 30 …. 6.44 Art 31 …. 6.45 Art 32 …. 6.47 Art 74 …. 6.47 International Convention for the Suppression of Terrorist Bombings 2001 …. 7.66 Art 2 …. 7.38 Art 4 …. 7.38 International Monetary Fund Agreement (IMF) 1945 Art IV(1) …. 8.12 Art IV(3) …. 8.12 Art IV(4) …. 8.12 Art IV(5) …. 8.12 Art V …. 8.12 Art 4(1) …. 8.13

Art 4(4) …. 8.13 Art 5 …. 8.13 Art 12(f)(ii) …. 8.13 International Tropical Timber Agreement 1985 …. 5.30 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management 2001 …. 5.56 Kyoto Protocol to the UN Framework Convention on Climate Change 2007 …. 5.39, 5.40 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) Art 29 …. 7.79 Model Tax Convention Between Developed and Developing Countries (1999) …. 8.50 Montevideo Convention on the Rights and Duties of States 1934 Art 1 …. 4.3, 4.12 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (Montreal Convention) Art 5(1)(a) …. 7.68 Art 5(2) …. 7.68 Art 7 …. 7.68 Montreal Protocol to the Convention for the Protection of the Ozone Layer 1987 …. 5.37, 5.65

Nagoya Protocol to the Convention on Biological Diversity (CBD) 2010 Art 6 …. 5.23 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 …. 12.16 Art 5 …. 8.55 North American Free-Trade Agreement (NAFTA) 1994 …. 8.4, 8.17 Art 1114 …. 5.53 Arts 1102, 1103, 1105, 1106, 1109, 1110, 1114 …. 8.18 Nuremberg Principles 1946 …. 7.14 Paris Convention for the Protection of Industrial Property 1884 …. 8.43 Protocol to the Antarctic Treaty on Environmental Protection 1998 …. 5.44 Protocol on Energy Efficiency and Related Environmental Aspects 1998 …. 5.55 Regulation on the Law Applicable to Non-Contractual Obligations (Rome II) 2007 …. 8.7, 8.46 Revised General Act for the Pacific Settlement of International Disputes 1950 …. 12.5 Rio Declaration on Environment and Development …. 5.5, 5.13, 5.14, 5.15, 5.18, 5.21, 5.23, 5.24, 5.54, 5.60 Rome Convention on the Law Applicable to Contractual Obligations (Rome I) 1991 …. 8.5 Art 2 …. 8.7

Art 3 …. 8.5 Art 4 …. 8.5 Art 6 …. 8.7, 8.46 Art 8 …. 8.7 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1964 …. 8.43 Statute of the International Court of Justice 1945 (ICJ) …. 12.5 Art 1 …. 12.17 Art 2 …. 12.20 Art 3 …. 12.19 Arts 4–8 …. 12.19 Art 9 …. 12.19 Arts 10–12 …. 12.19 Art 13 …. 12.19 Arts 16–18 …. 12.20 Art 21 …. 7.10 Art 24 …. 12.20 Arts 26–29 …. 12.21 Art 31 …. 12.21 Art 34(1) …. 12.23 Art 34(2) …. 12.23

Art 36 …. 1.13 Art 36(1) …. 12.25 Art 36(2) …. 12.25 Art 36(5) …. 12.25 Art 36(6) …. 12.22 Art 37 …. 12.25 Art 38 …. 7.10 Art 38(1) …. 2.2, 12.18 Art 38(1)(b) …. 2.40 Art 38(1)(d) …. 2.57, 2.62, 12.27 Art 59 …. 2.58, 12.27 Art 65 …. 12.29 Art 66 …. 12.32 Statute of the International Criminal Court 1998 (ICC) …. 7.14, 7.19, 7.53, 12.34 Art 6 …. 7.24 Art 7 …. 7.18 Art 8 …. 7.21 Art 8bis(1) …. 7.30 Art 8bis(2) …. 7.31 Art 12 …. 7.48

Art 17 …. 7.48, 12.34 Art 25 …. 7.15 Art 26 …. 7.17 Art 27 …. 7.49 Art 30 …. 7.16 Arts 31–33 …. 7.17 Art 78 …. 7.34 Art 80 …. 7.54 Arts 86ff …. 7.55 Art 103 …. 7.53 Art 109 …. 7.53 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) 2009 …. 7.18, 7.53 Arts 1–8 …. 7.46 Art 3 …. 7.21 Art 5 …. 7.18 Art 7(2) …. 7.49 Art 24 …. 7.33 Art 27 …. 7.53 Art 28 …. 7.53 Art 29 …. 7.55

Statute of the International Criminal Tribunal for Rwanda 1994 (ICTR) …. 7.19, 7.53 Arts 1–8 …. 7.47 Art 2 …. 7.24 Art 3 …. 7.18 Art 4 …. 7.21 Art 6(2) …. 7.49 Art 23 …. 7.33 Art 26 …. 7.53 Art 27 …. 7.53 Art 28 …. 7.55 Statute of the Special Court for Sierra Leone Art 6(2) …. 7.79 Stockholm Declaration on the Human Environment 1972 …. 5.2, 5.3, 5.5, 5.11, 5.60, 5.67 Treaty on European Union 1993 (TEU) …. 8.4 Treaty for the Peace of Westphalia 1648 …. 1.31 Treaty on the Functioning of the European Union 2009 (TFEU) …. 8.4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1966 Art IX …. 5.45

TRIPS Agreement Art 2 …. 8.43 Art 3 …. 8.42 Art 4 …. 8.42 Art 9 …. 8.43 Art 11 …. 8.42 Art 13 …. 8.42 Art 35 …. 8.43 Art 73 …. 8.42 Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO 1994 …. 8.23, 8.24 Arts 4, 5, 6, 8, 17, 19, 22, 25 …. 8.57 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (2013) …. 8.56 United Nations Framework Convention on Climate Change 1994 (UNFCCC) …. 5.5, 5.38, 5.39, 5.53 Art 14 …. 5.66 Art 14(1) …. 12.39 Universal Copyright Convention 1955 …. 8.44 Universal Declaration of Human Rights 1948 …. 2.72, 6.19–6.25 UN Transitional Administration in East Timor Regulation 2000/15 on the Establishment of the East Timor Panels

s 15 …. 7.79 Vienna Convention on Consular Relations 1976 …. 3.21 Vienna Convention on the Law of Treaties 1974 (VCLT) …. 2.5, 2.7, 2.9, 2.31 Art 1 …. 2.7, 2.8 Art 2 …. 2.4 Art 3 …. 2.7 Art 9 …. 2.12 Arts 11–17 …. 1.13 Art 11 …. 2.13, 2.17 Art 14 …. 2.18 Art 14(2) …. 2.20 Art 15 …. 2.19 Art 18 …. 2.13 Art 19 …. 2.22 Art 20 …. 2.23 Art 20(5) …. 2.25 Art 21 …. 2.21, 2.24 Art 24 …. 2.14 Art 31(1) …. 2.27 Art 31(2) …. 2.27

Art 31(3)(a) …. 2.27 Art 31(3)(b) …. 2.27 Art 31(3)(c) …. 8.10 Art 31(4) …. 2.27 Art 32 …. 2.28 Art 34 …. 1.13, 2.29 Art 35 …. 2.29 Art 36 …. 2.29 Art 38 …. 2.30 Art 46(1) …. 3.14 Art 47 …. 2.32 Art 48 …. 2.32 Arts 49–52 …. 2.32 Art 53 …. 2.33 Art 54 …. 2.34 Art 54(a) …. 2.34 Art 54(b) …. 2.34 Art 59 …. 2.34 Art 60 …. 2.35 Art 61 …. 2.36 Art 62 …. 2.37

Art 64 …. 2.33 Art 80 …. 2.15 Vienna Convention on the Protection of the Ozone Layer 1988 …. 5.37 Preamble …. 5.16 Vienna Convention on Succession of States in respect of Treaties 1978 Art 16 …. 1.13 Webster-Ashburton Treaty 1842 …. 11.11 World Heritage Convention 1975 …. 5.52

Africa African Charter on Human and Peoples’ Rights 1986 …. 5.67, 6.51

United Arab Emirates Arab Charter on Human Rights 2008 …. 6.51

United Kingdom European Communities Act 1952 …. 3.26 Extradition Act 1989 …. 3.38

United States Alien Tort Statute 1789 …. 3.40 National Environmental Policy Act 1969 …. 5.21 United States Constitution Art VI …. 3.20

Table of Abbreviations Aarhus Convention – Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted and opened for signature 25 June 1998, 2161 UNTS 447, entered into force 30 October 2001) ATC – Agreement on Textiles and Clothing ATS – The Antarctic Treaty System ATS – Australian Treaty Series Australia-China BIT – Agreement between the Government of Australia and the Government of the People’s Republic of China on the Reciprocal Encouragement and Protection of Investments (adopted and opened for signature 11 July 1988, 1514 UNTS 65, entered into force 11 July 1988) Basel Convention – The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, opened for signature 23 March 1989, 1673 UNTS 126, entered into force 5 May 1992) BIS – Bank for International Settlements BIT – Bilateral Investment Treaty Brussels I – EC Regulation 44/2001 of 22 December 2000 on Jurisdiction

and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Official Journal L 12 (16 January 2001) CAT (or Convention Against Torture) – Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987) CBD – Convention on Biological Diversity (opened for signature 5 June 1992, 1760 UNTS 79, entered into force 29 December 1993) CCAMLR – Convention for the Conservation of Antarctic Marine and Living Resources (adopted 20 May 1980, opened for signature 1 August 1980, 1329 UNTS 48, entered into force 7 April 1982) CCAS – Convention for the Conservation of Antarctic Seals (adopted and opened for signature 1 June 1972, 1080 UNTS 176, entered into force 11 March 1978) CED – International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, opened for signature 6 February 2007, 2715 UNTS 3, entered into force 23 December 2010) CEDAW – Convention on the Elimination of All Forms of Discrimination Against Women (opened for signature 18 December 1979, 1249 UNTS 13, entered into force 3 September 1981) CFCs – Chlorofluorocarbon gases CITES – Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted and opened for signature 3 March 1973, 993 UNTS 243, entered into force 1 July 1975)

CMW – International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (opened for signature 18 December 1990, 2220 UNTS 3, entered into force 1 July 2003) COPs – Conference of the (States) Parties CRAMRA – Convention on the Regulation of Antarctic Mineral Resource Activities (adopted 2 June 1988, opened for signature 25 November 1988, 27 ILM 859, not yet in force) CRC – Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) CRPD – Convention on the Rights of Persons with Disabilities (opened for signature 13 December 2006, 2515 UNTS 3, entered into force 3 May 2008) DAPTHHA – Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc A/56/10 (2001) DPALTHAHA – Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, UN Doc A/61/10 (2006) DSU – Understanding on Rules and Procedures Governing the Settlement of Disputes (of the World Trade Organization) (opened for signature 15 April 1994, 1869 UNTS 401, entered into force 1 January 1995) ECOSOC – (United Nations) Economic and Social Council ECT – Energy Charter Treaty (adopted and opened for signature 17 December 1994, 2080 UNTS 95, entered into force 16 April 1998) EEZ – Exclusive Economic Zone

EIA – Environmental Impact Assessment EMU – (European) Economic and Monetary Union ENMOD – United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (or Environmental Modification Convention) (adopted 10 December 1976, opened for signature 18 May 1977, 1108 UNTS 151, entered into force 5 October 1978) Espoo Convention – Convention on Environmental Impact Assessment in a Transboundary Context (adopted and opened for signature 25 February 1991, 1989 UNTS 309, entered into force 10 September 1997) FAO – Food and Agriculture Organization (of the United Nations) GATS – General Agreement on Trade in Services (concluded 15 April 1994, 1869 UNTS 183, entered into force 1 January 1995) GATT – General Agreement on Tariffs and Trade (adopted and opened for signature 30 October 1947, 55 UNTS 194, entered into force 1 January 1948) Genocide Convention – Convention on the Prevention and Punishment of the Crime of Genocide (adopted and opened for signature 9 December 1948, 78 UNTS 277, entered into force 12 January 1951). GHG – Greenhouse Gas ICA – International Commodity Agreement ICC – International Criminal Court ICC (or Rome) Statute – Statute of the International Criminal Court

(opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1 July 2002) ICCPR – International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976) ICERD – International Convention on the Elimination of All Forms of Racial Discrimination (adopted and opened for signature 21 December 1965, 660 UNTS 195, entered into force 4 January 1969) ICESCR – International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 993 UNTS 3, entered into force 3 January 1976) ICJ – International Court of Justice ICJ Statute – Statute of the International Court of Justice, annexed to the Charter of the United Nations [1945] ATS 1 ICN – International Competition Network ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTR (or Rwanda Tribunal) – International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 (established by Security

Council Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994)) ICTY (or Yugoslav Tribunal) – International Tribunal for the Prosecution of

Persons

Responsible

for

Serious

Violations

of

International

Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (established by Security Council Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993)) IDA – International Development Association (of the International Bank for Reconstruction and Development (IBRD or World Bank)) IEcL – International Economic Law IEL – International Environmental Law IFC – International Finance Corporation (of the World Bank Group) ILC – International Law Commission IMF – International Monetary Fund IMT Charter – Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (the Nuremberg or London Charter) (adopted and entered into force 8 August 1945, 82 UNTS 279) IMTFE Charter – Charter of the International Military Tribunal for the Far East (adopted and entered into force 19 January 1946, TIAS No 1587) ISA – International Seabed Authority ITLOS – International Tribunal for the Law of the Sea ITTO – International Tropical Timber Organization

JARPA II – Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic LRTAP Convention – Convention on Long-Range Transboundary Air Pollution (adopted and opened for signature 13 November 1979, 1302 UNTS 217, entered into force 16 March 1983) Marrakesh Agreement – Agreement Establishing the World Trade Organization (adopted and opened for signature 15 April 1994, 1867 UNTS 3, entered into force 1 January 1995) MEA – Multilateral Environmental Agreement MFN – Most Favoured Nation (status) MIGA – Multilateral Investment Guarantee Agency (of the World Bank Group) Montreal Convention – Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted and opened for signature 23 September 1971, 974 UNTS 177, entered into force 26 January 1973) NAFTA – North American Free Trade Agreement (adopted and opened for signature 17 December 1992, (1993) 32 ILM 289 and 605, entered into force 1 January 1994) NGO – Non-Governmental Organisation NIEO – New International Economic Order Nuremberg Principles – United Nations (UN) General Assembly Resolution 95(I) (1st Sess, 55th plen mtg, 11 December 1946), Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal

ODR – Online Dispute Resolution OECD – Organization for Economic Co-operation and Development OHCHR – (United Nations) Office of the High Commissioner for Human Rights OSPAR Convention – Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, 2354 UNTS 67, entered into force 25 March 1998) Outer Space Treaty – Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 19 December 1966, opened for signature 27 January 1967, 610 UNTS 205, entered into force 10 October 1967) PCIJ – Permanent Court of International Justice Rome (or ICC) Statute – Statute of the International Criminal Court (opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1 July 2002) Rome I – Convention on the Law Applicable to Contractual Obligations (adopted and opened for signature 19 June 1980, Official Journal L 266 (9 October 1980), entered into force 1 April 1991 and subsequently developed into European Community Regulation 593/2008, Official Journal L 177 (4 July 2008)) Rome II – European Community Regulation 864/2007 on the Law Applicable to Non-Contractual Obligations, Official Journal L 199 (31 July 2007), entered into force 20 August 2007 and applicable from 11 January 2009

SCM – Subsidies and Countervailing Measures SPS – Sanitary and Phytosanitary Measures TBT – Technical Barriers to Trade TEU – Treaty on European Union or Maastricht Treaty (adopted and opened for signature 7 February 1992, Official Journal C 191 (29 July 1992), entered into force 1 November 1993) TFEU – Treaty on the Functioning of the European Union (or Treaty of Rome) (adopted and opened for signature 13 December 2007, Official Journal C 326 (26 October 2012), entered into force 1 December 2009) (by means of the Lisbon Treaty, Official Journal C 306 (17 December 2007), entered into force 1 December 2009) TIAS – Treaties and Other International Acts Series (US) TNC – Transnational Corporation TPRM – Trade Policy Review Mechanism (of the World Trade Organization) TRIM – Trade-Related Investment Measure TRIPs – Trade-Related Aspects of Intellectual Property Rights UDHR – Universal Declaration of Human Rights (United Nations General Assembly Res 217A (III), UN GAOR 3rd sess, 183rd plen mtg, UN Doc A/810 at 71 (10 December 1948)) UK – United Kingdom UN – United Nations UN Charter – Charter of the United Nations (opened for signature 26 June

1945, 1 UNTS XVI, entered into force 24 October 1945) UNCED – United Nations Conference on Environment and Development (or Rio or Earth Summit or Rio Conference) Rio de Janeiro, Brazil, 1992 UNCHE – United Nations Conference on the Human Environment UNCHR – United Nations Commission on Human Rights UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, 1833 UNTS 3, entered into force 16 November 1994) UNCTAD – United Nations Conference on Trade and Development UNDRIP – United Nations Declaration on the Rights of Indigenous Peoples, UN General Assembly Res 61/295, UN GAOR 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) UNECE – United Nations Economic Commission for Europe UNEP – United Nations Environment Programme UNFCCC – United Nations Framework Convention on Climate Change (opened for signature 9 May 1992, 1771 UNTS 107, entered into force 21 March 1994) UNIDROIT – International Institute for the Unification of Private Law UNPROFOR – United Nations Protection Force (for Croatia and Bosnia and Herzegovina, 1992-1995) UNTS – United Nations Treaty Series US – United States of America

VCLT – Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980) Vienna Convention – Convention for the Protection of the Ozone Layer (adopted and opened for signature 22 March 1985, 1513 UNTS 323, entered into force 22 September 1988) Washington Convention – Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965, 575 UNTS 159, entered into force 14 October 1966) Watercourses Convention – United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, (1997) 36 ILM 700, entered into force 17 August 2014) WB – World Bank (or International Bank for Reconstruction and Development (IBRD)) WTO – World Trade Organization

Contents Preface Table of Cases Table of Selected Instruments Table of Abbreviations CHAPTER 1 The Nature and Theory of International Law CHAPTER 2 Sources of International Law CHAPTER 3 The Relationship between International and National Law CHAPTER 4 International Legal Personality CHAPTER 5 International Environmental Law CHAPTER 6 International Human Rights Law CHAPTER 7 International Humanitarian Law and International Criminal Law

CHAPTER 8 International Economic Law CHAPTER 9 The Law of the Sea CHAPTER 10 State Responsibility CHAPTER 11 Use of Force CHAPTER 12 International Dispute Settlement Index

[page 1]

CHAPTER 1

The Nature and Theory of International Law

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INTRODUCTION 1.1

This chapter defines international law, considers its binding quality as ‘law’, briefly traces its historical development and identifies the nature of the international legal system. It reviews various international legal theories by identifying the leading exponents and classic or key references. The methodology of international law — that is, the techniques employed by the discipline — is also considered. The formation of international law is explored by reference to law-making processes and principal actors. Issues of compliance (why States obey international law), enforcement, the rule of law within the international community, and the interaction between international and national law are reviewed. The chapter also assesses international law’s effectiveness.

DEFINITION 1.2

Classical international law is a State-centric system. International law is typically defined as those rules, principles and norms governing the relations between sovereign, territorial States and State-constructs (ie, international organisations). International law is created by States (see Chapter 2) and is underpinned by their consent.

International law is founded upon the concept of sovereign equality. 1.3

The United Nations (UN) system, for example, is based on the principle of the sovereign equality of all its Members: Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter) Art 2(1).

1.4

The subject of international law is classically the State. Individuals, corporations, non-governmental organisations and others (non-State actors) are the objects of international law.

1.5

‘Public’ international law — the focus of this book — is typically differentiated from ‘private’ international law (or the conflicts of law). The latter addresses private matters (eg, contracts, marriage, international commercial transactions, foreign investment, the movement of goods or workers) between individuals and corporations that have a transnational dimension. Claims involving a foreign element may require considering choice of law principles in order to determine jurisdictional issues where two or more different legal systems potentially apply. In other words, private international law addresses matters of private interest and not public power considerations (such as the interactions between public institutions and private persons, or the law making or law enforcing functions of the State).

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1.6

Contemporary international law is influenced by decision-makers within States, international organisations and non-State actors such as special interest groups, banks and other leading social institutions: M Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1 at 29–30. Non-State actors are attaining prominence within international organisations

and

in

treaty-making

conferences.

Because

‘international law’ is classically limited to the interaction between States, the participation of non-State actors can be accommodated within a proposed ‘transnational law’: P Jessup, Transnational Law, Yale University Press, New Haven, 1956, pp 15–16. 1.7

International law develops and evolves in response to external impacts. For example, globalisation involves autonomous transnational actors with negotiation power, national regulation unable to address global problems, and changing social and political integration: S Hobe, ‘Globalisation: Challenge to the Nation State and to International Law’ in M Likosky (ed), Transnational Legal Processes: Globalisation and Power Disparities, Butterworths, London, 2002, at 378 and 379. This means that States must acknowledge the roles and responsibilities of transnational corporations and act cooperatively rather than unilaterally. Science also influences international legal developments with respect to, for example, outer space, the deep seabed and biodiversity. The end of the Cold War finished confrontational bipolarism, encouraged fluid political change and

provided cooperative opportunities through a reinvigorated Security Council: L Henkin, International Law: Politics and Values, Kluwer Law International, The Hague, 1995, pp 280–3. This suggests that more community-orientated international law can emerge, such as international environmental and human rights law.

NATURE OF THE INTERNATIONAL LEGAL SYSTEM 1.8

The international legal system is a decentralised, horizontal order composed of a plurality of independent States. The national legal order, by contrast, is hierarchical and vertical. In the international system, there is no higher authority than the State. Unlike those features common to national legal systems, there is no legislature and no police force or military to undertake enforcement. There is also no compulsory dispute settlement process: see Chapter 12. For these reasons, the international system is considered ‘underdeveloped’.

1.9

Modern international law originated in Europe during the sixteenth and seventeenth centuries. It largely addressed only diplomatic practice between States. The Congress of Vienna (1814–1815) gave rise to a Eurocentric notion of international law. International law can be criticised for reflecting European,

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Christian values. As international law evolves to reflect the

contemporary interests of States, however, this criticism will become less valid. 1.10

International law has matured to become specialised, complex and far-reaching. The proliferation of dispute settlement mechanisms, growth of international institutions and diversity of multilateral treaties means that contemporary international law now addresses a broad range of issues.

COMPLIANCE 1.11

The issue of compliance considers why States follow international law. It is in the vested self-interest of States to honour their international obligations because of: Self-preservation: An orderly, fair and stable international system, as opposed to anarchy, is in the interest of all States. Reciprocity: Benefits, such as trade and diplomatic immunity, are conferred to mutual advantage. States with reputations for reneging on their commercial obligations will find it difficult over the long term to conclude commercial treaties. Interconnectedness: Inter-State relationships are intertwined. Effectiveness: Certain international issues, such as eliminating poverty, responding to natural disasters, and ensuring peace, security or human welfare, are best addressed through collective action.

Necessity: An effective international system (eg, for aviation, postage) requires cross-border co-operation. International law performs a useful function by enabling States to carry out daily intercourse along predictable lines.

Consent 1.12

States voluntarily adopt principles, norms and rules that limit their freedom of action. This arises from the international law-making process and is evidenced by the sources of international law. The theory of consensualism is that the will or consent of States is the basis for international law: O Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, Dordrecht, 1991, pp 9–11. States therefore obey international law because they have first consented to it.

1.13

Consent is a fundamental principle of international law. For example: States are only bound by treaties to which they have given their consent: Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980) (VCLT) Arts 11–17. See 2.17–2.20.

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Treaties do not create rights or obligations for third States without their consent: VCLT Art 34. See 2.29.

A State can ‘opt out’ of the application of a customary international legal rule provided it has persistently objected to that rule during its development: J Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56(1) British Yearbook of International Law 1. See 2.53. States are not subject to the jurisdiction of the International Court of Justice (ICJ) unless they have given their consent: Statute of the International Court of Justice [1945] ATS 1 (ICJ Statute) Art 36. See Chapter 12. Newly-independent States are eager to enter the international community and obtain its benefits. They might argue that they are not bound by laws for which they did not have the opportunity to participate in their formation, and that they therefore enter the international legal system with a ‘clean slate’. The ‘clean slate’ doctrine posits that a successor State generally does not inherit the prior rights or obligations of its predecessor: see, for example, Vienna Convention on the Succession of States in respect of Treaties (opened for signature 23 August 1978, 1946 UNTS 3, entered into force 6 November 1996) Art 16. However, to avoid disrupting the international system, existing territorial boundary treaties are one exception to the ‘clean slate’ doctrine.

Theories of compliance

1.14

Various theories are suggested on why States obey international law, such as: International legal rules have an inherent capacity to pressure States into conforming to it (a ‘compliance pull’): A Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90(6) California Law Review 2. International legal rules are formulated to reflect identical or complementary interests. States continuously, honestly and regularly observe international law, even under adverse conditions or where inconvenient (the ‘law habit’): P Jessup, A Modern Law of Nations, The Macmillan Company, New York, 1948, pp 6–8. International law has normative influence such that adherence is the morally correct or legitimate thing to do. International rules are the products of legitimate (that is, transparent, fair and inclusive) processes: T Franck, Fairness in International Law and Institutions, Clarendon Press, Oxford, 1995. International law reflects and becomes part of a State’s ‘internal value set’: H Koh, ‘Why do Nations Obey International Law?’ (1996–97) 106 Yale Law Journal 2599.

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ENFORCEMENT MECHANISMS 1.15

The threat of imposing coercive measures can compel desired behaviour and deter legally wrong conduct: H Kelsen, Principles of International Law, Rinehart and Company Inc, New York, 1952, p 5. By this standard, international law might be considered deficient given the absence of any centralised authority. However, there are several different enforcement mechanisms within the international system (see 1.16–1.20 below).

1.16

International law is self-enforcing. Voluntary compliance generally prevents the need for enforcement arising. Only in a minority of important and spectacular cases (for example, the use of military force in 1990 to ensure Iraq respected the territorial integrity of Kuwait) do considerations of power rather than law determine compliance: H Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 6th ed, McGraw-Hill, New York, 1985, pp 312–13.

1.17

Sanctions for non-compliance are organised through the UN: UN Charter Arts 41 and 42. An ‘international law of cooperation’ posits that States participate in activities through international organisations that further their common interests. The threat of expulsion or denial of benefits induces voluntary compliance: W Friedmann, The Changing Structure of International Law, Columbia University Press, New York, 1964, pp 88, 91.

1.18

Enforcement is effected by adopting measures of self-help. The

international legal order leaves it to the injured State to assume the enforcement function. Countermeasures are acts which are contrary to international law but, provided they do not involve the use of force, are rendered lawful by way of response to a prior illegal act by another State, and are intended to induce compliance by the wrongdoing State. Acts of retorsion are unfriendly but lawful acts, and are adopted in response to unlawful acts or other prior acts of retorsion. Reprisals are actions that do not conform to international law. On the use of force, see Chapter 11. 1.19

International law is enforced through international and national courts and tribunals where judgments and decisions are backed by State power. The ICJ is an example on the international plane. The effectiveness of mechanisms at the national level depends on the extent to which international law is a part of national law: see Chapters 2 and 12.

1.20

Non-State actors pressure States to comply with international law by, for example, providing information to international supervisory bodies. In the human rights field, see Chapter 6. In the international trade and investment space, see Chapter 8.

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Rule of law in the international community

A well-functioning legal system operates unnoticed and avoids 1.21

disputes. International law is honoured more in the observance than the breach. However, extraordinary and more important national interests

may

persuade

States

to

violate

international

law.

Controversial breaches attract publicity: P Jessup, A Modern Law of Nations, The Macmillan Company, New York, 1948, pp 6–8. Violations can also occasion undesirable consequences. 1.22

International law can be differently interpreted or contestably applied to the facts of a case. However, observed deviations from a rule (such as the prohibition on the use of force or non-intervention in the domestic affairs of States) confirm rather than weaken the existence of that rule: ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 at 98.

1.23

The international community values the rule of law over power imbalances as governing international affairs. It is essential for peaceful co-existence and cooperation among States. Recognising the need for universal adherence to and implementation of the rule of law at both the national and international levels, States have reaffirmed their commitment to the purposes and principles of the UN Charter and international law and to an international order based on the rule of law and international law: World Summit Outcome, GA Res 60/1, UN GAOR, 60th sess, UN Doc A/RES/60/1 (16 September 2005) at [134].

1.24

Good international citizenship requires respect for the rule of law.

Example

GOOD CITIZENSHIP AND THE RULE OF LAW I agree with former US President, Theodore Roosevelt, when he stated that the first requisite for good citizenship is to be able and willing to pull one’s own weight. But let me take this suggestion one step further and say that good citizenship also means anticipating the needs of our rapidly changing world. It means asserting responsibility for our own times and not simply waiting to be invited to engage. That’s what Australia is committed to. We will continue to engage proactively with the international community. And demonstrate our respect for and commitment to upholding the international rule of law. R McClelland (then Attorney-General), Speech to the Australian and New Zealand Society of International Law, 26 June 2008.

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INTERACTION BETWEEN THE INTERNATIONAL AND NATIONAL LEGAL SYSTEMS 1.25

International law can encroach upon national legal systems and challenge established concepts including parliamentary supremacy. However, international law is a legitimate source for consideration by national courts: M Kirby, ‘The Growing Impact of International Law on Australian Constitutional Values’ (2008) 27 University of Tasmania Law Review 1 at 3.

1.26

It might be perceived that national sovereignty is being undermined

by the expansion of international law. International law may have little connection with distinctive Australian values or interests: H Charlesworth, M Chiam, D Hovell and G Williams, No Country is an Island: Australia and International Law, UNSW Press, Sydney, 2006. 1.27

National governments change, engagement with international organisations varies, and the events of the day can be beyond the control of any one national government: D Rothwell and K Rubenstein, ‘Introduction: Australia and International Law during the Howard Years’ (2008) 27 Australian Yearbook of International Law 1, p 10. However, political activity by a government within a State does not necessarily affect the relationship between the international and national legal systems.

1.28

The nature of the interaction between international law and Australia’s legal system is inescapable, complex and evolving: R French, ‘Oil and Water: International Law and Domestic Law in Australia’, The Brennan Lecture, Bond University, 26 June 2009, p 3.

THEORIES AND METHODS OF INTERNATIONAL LAW 1.29

International legal theory seeks to explain and analyse the content, formation and effectiveness of international law. Theorists also assess the methodology or techniques of international law.

Natural law

1.30

Natural law posits that rules reflect axiomatic truths, can be determined by human reasoning, and are inherently obligatory because they reflect a divine will. Francisco de Vitoria, for example, considered the ‘just war’ concept of St Thomas Acquinas, which proposed that war can be conducted by a legitimate authority for the purposes of addressing evil. See J Finnis, Natural Law and Natural Rights, 2nd ed, Oxford University Press, Oxford, 2011.

Classical theory 1.31

Hugo Grotius, in De Jure Belli ac Pacis Libri Tres (Three Books on the Law of War and Peace, 1625) proposed that States and individuals are governed by universal

[page 9]

principles of morality and divine justice. The arena of international relations is governed by the jus gentium (the law of nations), which reflects the will or consent of States. This includes the concept of pacta sunt servanda (commitments are binding). Emmerich de Vattel, in Le droit des gens (The Law of Nations, 1758) propounded the practical application of legal principles such as sovereign equality. He emphasised that international law included custom. The idea of a territorial and independent State from the Grotian (or eclectic) school is often considered to be a fundamental concept underpinning modern

international law and was reflected in the Treaty for the Peace of Westphalia (1648).

Positivism 1.32

Positivist international legal theory proposes that law is an objective, ascertainable and rational scientific fact that is not based on religious dogma, ethics or morality. International law is a unified system of rules emanating from the will of States. Alberico Gentili, for example, suggested in De Jure Belli Commentationes Tres (1589) that jus voluntarium (positive law) was underpinned by consent. Legal sources, particularly treaties and State practice, are important for this theory. Positivists focus on the legal validity of rules and the distinction between the law as it is (lex lata) and the law as it ought to be (lex ferenda). Legal analysis has to have a textual, systemic or historical basis. International law as ‘law’ consists of rules, principles and norms. It is a command from a sovereign to persons in a state of subjection: H Morgenthau, ‘Positivism, Functionalism and International Law’ (1940) 34 American Journal of International Law 260.

Critical legal theory 1.33

Critical legal theory questions the assumptions made by international law. International law is not universal or objective. International law wavers between justifying any behaviour (apologism) and being incapable of legitimating all practices (utopianism): M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument,

Cambridge University Press, Cambridge, 2012. International law reflects biased language, which emphasises particular political structures and power imbalances, as reflected by the following streams.

Feminist theory 1.34

In this discourse, legal language and international practice is patriarchal. International law reflects predominantly male concerns and reinforces systems of male power to the exclusion of women: C Chinkin, S Wright and H Charlesworth, ‘Feminist Approaches to International Law: Reflections from Another Century’ in D Buss and A Manji (eds), International Law: Modern Feminist Approaches,

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Hart Publishing, Oxford, 2005. Women are moreover presumed to be vulnerable victims requiring special treatment or protection. Publicprivate distinctions found within international law are challenged, as is the gender divide within international institutions, workplace practices and approaches which are not accommodating to women. Feminist legal theorists promote the inclusion of women into positions of influence in policy and decision-making, as well as broader equality and justice.

Lesbian, gay, bisexual, and transgender/transsexual (LGBT)

theory 1.35

This approach seeks to move away from equality concepts towards recognition for sexual minorities within a cultural setting. LGBT theory focuses on sexual orientation, gender identity and the recognition of LGBT rights with respect to, for example, workplace discrimination, family and health: N Levit, ‘A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Principles in Gay Legal Theory and Constitutional Doctrine’ (2000) 61 Ohio State Law Journal 867.

Third World approaches to international law 1.36

The ‘Third World’ refers to peoples with the shared experience of underdevelopment, marginalisation, exploitation and economic subjugation: A Anghie, B Chimni, K Mickelson and O Okafor (eds), The Third World and International Order: Law, Politics and Globalization, Martinus Nijhoff, Leiden, 2003. Concerns include: economic solidarity (eg, Declaration for the Establishment of a New International Economic Order, GA Res 3201, UNGAOR 29th sess, UN Doc A/RES/3201 (1 May 1974); anti-colonialism and decolonisation (eg, Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), UNGAOR 15th sess, UN Doc A/RES/1514 (14 December 1960); anti-racism;

the use of force by national liberation movements in the exercise of the inherent right of peoples to self-determination. On the use of force and self-determination, see Chapter 11.

Interdisciplinary approaches 1.37

Interdisciplinary approaches draw upon other academic disciplines in an effort to reconceptualise international law. Relevant disciplines include the following fields:

International relations 1.38

Materials and insights can be derived from international relations theory: A Slaughter, A Tulumello and S Wood, ‘International Law and International

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Relations

Theory:

A

New

Generation

of

Interdisciplinary

Scholarship’ (1998) 92 American Journal of International Law 367. The principal schools of thought are outlined in 1.39–1.42 below. 1.39

Realism: The international system is anarchic and there is no authority above the autonomous State. States seek to maximise power to preserve their territory and existence and subordinate weaker States. They cooperate because of self-interest rather than normative commitment. International law is breached when advantageous to do

so. International law is also self-enforced, either through reciprocity to deter violations or measures of self-help (such as countermeasures or retaliatory sanctions): J Morrow, ‘Laws of War, Common Conjectures, and Legal Systems in International Politics’ (2002) 31 Journal of Legal Studies 41. 1.40

Liberalism: Liberalism considers the effects of liberal norms in constraining or moderating State behaviour to achieve lasting peace. Democratic States having representative governments will accept and observe international law. In this paradigm, national attitudes to international law are influenced by the preferences of key domestic constituencies such as individuals, civil society, organised business and other pressure groups. International law accordingly emanates from ‘below’ the State rather than from ‘above’ it. Foreign policy is also linked by transnational networks of cooperation. International law works because of mutual trust and commitment to the rule of law: A Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 532.

1.41

Institutionalism: This school emphasises the position and influence of international organisations on international law.

1.42

Constructivism: This approach suggests that international relations are influenced by persuasive ideas, collective values, culture and social identities.

Economics 1.43

Economic theorists consider, for example, rational choice theory, which analyses how individuals make decisions about their conduct by comparing the costs and benefits of different courses of action. States are presumed to behave so as to maximise their preferences (including wealth) within both well-functioning (competitive) and imperfect markets. The efficiency of international law is evaluated through various techniques including price theory (identifying transaction costs), game theory and public choice theory. Economic theory offers empiricism to international law and an economic rationale for rules.

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Additional theories and methods International legal process 1.44

Instead of analysing the content of international law, this approach emphasises how international law practically applies and functions. International law is formally and informally used as a tool by foreign policy decision-makers: A Chayes, T Ehrlich and A Lowenfeld, International Legal Process, Little Brown & Co, New York, 1968. International law lacks a normative, compulsive force but is a justification, static constraint and organising device.

Policy-oriented perspectives 1.45

Proponents of this school seek to prescribe and apply policy so as to

maintain international stability but pursue normative social objectives. International law is a system in which authorities assert control to create minimum world public order. It is the product of a decisionmaking process undertaken by authorised actors who wield power: R Higgins, Problems and Process: International Law and How We Use It, Oxford University Press, Oxford, 1994. Rather than locating the source of an international legal obligation or rule, adherents identify claims, counterclaims, choices and decisions: M Reisman, ‘The View from the New Haven School of International Law’ (1992) 86 American Society of International Law Proceedings 118.

Central case approach 1.46

This technique first constructs a hypothetical situation as a standard to compare how an actual circumstance deviates from the ideal (or central) case. This approach is flexible, dynamic and can accommodate degrees of complexity. For example, patterns of human rights abuses of varying severity can be explained by shifting social and political situations: T Cheng, ‘The Central Case Approach to Human Rights’ (2004) 13 Pacific Rim Law and Policy 257.

Socialism 1.47

A socialist or Soviet conception of international law emphasises State sovereignty: G Tunkin, Theory of International Law, George Allen & Unwin Ltd, London, 1974.

EFFECTIVENESS OF INTERNATIONAL LAW 1.48

International law is arguably ineffective because it: lacks means for ensuring compliance with rules or enforcing norms against States; favours powerful over weak States; and

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can be violated with impunity. Some States can chose to flout international law and avoid consequences. 1.49

The effectiveness of international law depends on the political will of States. International law offers States a convenient moral and legal rhetoric to justify action. States only comply with international law when in the national interest to do so: J Goldsmith and E Posner, The Limits of International Law, Oxford University Press, Oxford, 2005, p 184. Alternatively, law is simply a tool. For example, ‘lawfare’ involves using law as a method of warfare: C Dunlap, ‘Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts’, Carr Centre, Harvard University, 2001.

1.50

States may espouse a realistic, utilitarian and transactional attitude to international law. In that case, international law is only as effective as States intend it to be.

Example

INTERNATIONAL LAW AND PRAGMATISM The Government’s approach to international law mirrors our pragmatic approach to foreign and trade policy. International law is a means to an end; not an end in itself. We look to international law to achieve outcomes and serve both national and global interests. A Downer (then Minister for Foreign Affairs), ‘International Law: Australian Perspectives’ (2006) 25 Australian Yearbook of International Law 473–4.

1.51

International law can espouse lofty ideals. Too much might be expected from it, particularly in extreme circumstances where law cannot apply. For example, should international law prohibit using nuclear weapons when the very existence of a State is threatened? Can law effectively control the methods and means of warfare?

1.52

International law is arguably effective because: States typically justify their actions by reference to international law. In the event of breach they do not deny a rule’s validity but instead pose arguments concerning the interpretation of that rule and/or its application to the facts; States treat international law as obligatory. The majority of international law is generally observed by all States without compulsion. ‘It is probably the case that almost all nations observe almost all principles of international law and

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almost all of their obligations almost all of the time’: L Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed, Columbia University Press, New York, 1979, p 47. 1.53

International law is dynamic and responds to changing State practice. It also adapts to the contemporary needs of the international community.

Example

THE RELEVANCE OF INTERNATIONAL LAW International law must meet the global challenges of the day — if it fails to do so, it risks sliding into irrelevance. International law provides an essential framework for the pursuit of our foreign policy interests … And the value of international law — to the publics of the world — will always be judged not by its intrinsic righteousness, however great that may be, but by its effectiveness in promoting international stability and dealing with international crises. A Downer (then Minister for Foreign Affairs), ‘International Law: Australian Perspectives’ (2007) 26 Australian Yearbook of International Law 333.

INTERNATIONAL LAW AS ‘LAW’ 1.54

It has been queried whether international law is ‘law’. Legal positivist John Austin, in The Province of Jurisprudence Determined (1832) concluded that international law was law ‘improperly so called’. Positive law is a command backed by threats or sanctions from a

sovereign, who Austin defined as an entity who received habitual obedience from the members of an independent political society but who in turn did not owe obedience to any other: J Austin, The Province of Jurisprudence Determined, John Murray, London, 1832. Positivism is discussed at 1.32. Law moreover loses its obligatory character if a State has to first agree to submit to it. 1.55

The only essential conditions for a system of ‘law’ are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity (ubi societas ibi ius): J Brierly, The Law of Nations, 6th ed, Clarendon Press, Oxford, 1963, pp 41–2, 68–76. International law’s authority derives from the fact that the States making up international society recognise it is binding upon them as members of that society, irrespective of their individual will: G Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’ (1956) 19 Modern Law Review 1.

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1.56

The authority of international law as ‘law’ is derived from States, underpinned by State consent and reflected in the sources of international law. Figure 1.1 identifies the actors, processes and other elements relevant to creating and ascertaining international law: based on Diagram 3 by B Cheng in G Schwarzenberger and E Brown, A

Manual of International Law, 6th ed, Professional Books Ltd, Milton, 1976, p 22. Figure 1.1

CREATING AND ASCERTAINING RULES OF INTERNATIONAL LAW

Agents Sources Scope

States

Treaty Between the parties Components Consent Material Bodies

Treaty text Conference of the parties

Custom Universal, general or particular State practice and opinio juris State practice Courts and Diplomatic Legislative other dispute practice settlement mechanisms

Legal principles Near universal Recognition

Executive

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CHAPTER 2

Sources of International Law

[page 18]

INTRODUCTION 2.1

As explained in Chapter 1, international law is the law which governs the behaviour of States. States are not only the subjects of international law, they are also its creators, as laws are established either through agreements between States or by their behaviour towards each other. As such, the foundation of all international law is States’ consent, and this is a highly influential factor in the way international law is created and develops. The sources of international law are therefore different from the sources of domestic law, although there are some similarities.

2.2

A starting point for the discussion of the sources of international law is Art 38(1) of the Statute of the International Court of Justice [1945] ATS 1 (ICJ Statute). The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN): Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter) Art 92. It has the power to hear disputes between States, which it decides by applying international law. Article 38(1) of the ICJ Statute reads as follows: 1.

The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply: a.

international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

b.

international custom, as evidence of a general practice accepted as law;

c.

the general principles of law recognized by civilized nations;

d.

subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Article 38(1) therefore provides a useful list of the sources of international law, these being: international conventions or treaties; customary international law; general principles of law; and judicial decisions and the writings of publicists. This chapter explores each of these sources, along with the resolutions of international organs such as the UN General Assembly and Security Council, as well as a body of international law known as ‘soft law’. This chapter concludes by outlining the development of international law.

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INTERNATIONAL CONVENTIONS OR TREATIES 2.3

Treaties are a primary source of international law and have been used

by States for centuries as a means of reaching agreements and establishing rules which govern their conduct towards each other. Treaties are known by various names, including conventions, covenants, pacts, agreements, protocols, accords and charters. Although the use of treaties goes back many centuries, the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980) (VCLT) sets out the contemporary rules for the formation, interpretation, application and termination of treaties.

What is a treaty? 2.4

Article 2 of the VCLT defines a ‘treaty’ as: … an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

2.5

It should be noted that the above definition is used to determine whether the rules contained in the VCLT apply to a particular instrument. It is possible to have a treaty which falls outside of this definition. For example, a treaty which is oral rather than written, or which is between entities other than States, would not fall under the VCLT definition. In the event a treaty does not meet the VCLT definition, the customary rules of treaty interpretation would apply. However, as the VCLT was drafted to codify customary international law (which will be discussed below at 2.40), there is in substance little difference between the two sets of rules.

Elements of the VCLT definition ‘an international agreement’ 2.6

Because treaties are agreements, they are formed through a process of negotiation and adopted by consensus. These agreements can be between two States (bilateral) or several States (multilateral). Some treaties are intended to be universal, involving the participation of all States.

‘between States’ 2.7

The VCLT only applies to treaties between States: Art 1. It does not therefore apply to agreements between a State and an international organisation,

corporation

or

individual.

However,

customary

international law will still recognise agreements between States and other subjects of international law (such as the UN or European Union), or between two or more subjects of international law, and nothing in the VCLT affects the legality of such agreements: Art 3. For example, the UN has entered into a

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treaty with the United States of America (US) which allows for the UN’s headquarters to be located in New York City: Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, (signed 26 June 1947, 11 UNTS 147, entered into force 21 November 1947). For a greater discussion

of who these other subjects of international law might be, see Chapter 4.

‘in written form’ 2.8

Under the VCLT, treaties must be in writing, although they can be comprised of more than one instrument. As noted above, it would be possible to have an unwritten treaty governed under customary international law rather than the VCLT: Art 1. In practice, however, it is very rare for States to conclude oral treaties. The lengthy process of treaty negotiation usually involves written exchanges or at least written records of discussions between States, and States have become accustomed to concluding treaties in written form.

‘whatever its particular designation’ 2.9

The VCLT applies to any treaty which satisfies the definition, regardless of how it is described. A written agreement between States will therefore be considered a treaty even if it is not described as such by the States involved.

Formation of treaties 2.10

The process of creating a treaty involves a number of steps and can take many years to complete.

Figure 2.1

STEPS IN FORMATION OF A TREATY

Negotiation and drafting 2.11

As the creators of international law, States negotiate the terms of treaties. This process can be lengthy, as each State works to secure terms most favourable to its own interests. Sometimes a draft treaty will be prepared by an international organisation, such as the International Law Commission (ILC), and presented to States for adoption. Typically States will still want to negotiate changes to a draft treaty before being willing to adopt it. Where the treaty involves numerous States it can take decades to negotiate all the terms of the treaty and arrive at a final text ready for adoption.

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Adoption of text 2.12

Once States have agreed on a final text, it is officially adopted. The adoption of the text of a treaty must be by unanimous consent of all States, unless the adoption takes place as an international conference, where a two thirds majority is required, unless States agree otherwise: VCLT Art 9.

Opening for signature 2.13

Once the text of a treaty is adopted, the treaty will be opened for signature. States may then sign the treaty, indicating their willingness to become legally bound by its terms: VCLT Art 11. However, the treaty will not be binding on States until it has entered into force.

Once a State has signed a treaty it is obliged not to act in a way which is contrary to the object and purpose of the treaty prior to its entry into force: VCLT Art 18.

Entry into force 2.14

A treaty will enter into force in the manner determined by the negotiating States as set out in the treaty itself. Usually this will happen when the treaty has acquired a specified number of signatures: VCLT Art 24.

Registration of treaties 2.15

Once a treaty has entered into force, it must be given to the Secretariat of the United Nations for registration: UN Charter Art 102; VCLT Art 80. The UN keeps a register of all treaties entered into between its members, and all treaties are published in order to maintain transparency and to ensure that all treaties are available to the public.

2.16

In Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112 (Qatar and Bahrain), the ICJ confirmed that a treaty that has not been registered with the Secretariat cannot be invoked by the parties before any organ of the UN. Non-registration does not have any effect on the validity of the agreement, however, and the parties could continue to rely on the treaty before non-UN bodies or between

themselves.

Ratification, accession, acceptance and approval 2.17

After a treaty has entered into force it is still possible for States to become parties. There are various processes by which a State can indicate its consent to be legally bound by a treaty, and the treaty itself will usually specify the process which is to be used: VCLT Art 11.

2.18

Ratification is a process by which a State which has already signed a treaty confirms its consent to be legally bound by its terms. It is the second step of a two-step process

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of consent, whereby signature alone will not make a treaty binding on a State. A treaty may require ratification in order to confirm States’ consent: VCLT Art 14. Alternatively, States may sign a treaty subject to ratification, where ratification of treaties is a requirement of their domestic law. The process for ratifying a treaty is determined by States’ domestic laws, but typically involves a formal instrument of ratification being deposited with the UN or relevant international organisation. 2.19

Accession is the process whereby States which did not sign a treaty prior to its entry into force can become legally bound by the treaty:

VCLT Art 15. The requirements for accession will be determined by a State’s domestic laws, but usually involve a declaration from the relevant organ of the State, which is formally recorded in an instrument of accession. The instrument of accession is then deposited with the UN or relevant international organisation. 2.20

Acceptance and Approval are alternative mechanisms by which States consent to be legally bound by a treaty. They are terms which States may use in their own domestic processes for confirming their consent to be legally bound by a treaty and they have the same effect as ratification: VCLT Art 14(2).

Reservations to treaties 2.21

A reservation is a declaration by a State by which it purports to exclude or alter the legal effect of certain provisions in the treaty as they apply to that State. Reservations can be made at the time that a State signs, ratifies, accepts, approves or accedes to the treaty. Through the use of reservations States can alter the way that a treaty will apply to them: VCLT Art 21.

Example

AUSTRALIA’S RESERVATION TO THE CONVENTION ON THE RIGHTS OF THE CHILD Article 37(c) of the Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) provides that: States Parties shall ensure that … (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best [page 23] interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. When Australia ratified the Convention in 1990 it entered the following reservation: Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c). Australia argues that given the size of the country it may not be possible to accommodate children in separate detention facilities while still enabling them to maintain contact with their families through visits. The effect of the reservation is to change the nature of Australia’s obligation under Art 37(c). Australia is only obliged to keep children separate where it is feasible to do so, and where it would be consistent with children’s rights to maintain contact with their family.

Limitations on reservations 2.22

A State may not make a reservation which would be incompatible

with the object and purpose of the treaty. Further, a State may not make a reservation if the treaty prohibits reservations, either of the specific kind which the State is purporting to make or generally: VCLT Art 19.

Objecting and accepting reservations 2.23

Once a State has made a reservation to a treaty, the other States parties to that treaty may decide whether they accept or object to the reservation. Some treaties will require the acceptance of all other States parties before a reservation will be lawful: VCLT Art 20. If a State party accepts another State’s reservation then the treaty will be in force as between those States on terms consistent with the reservation.

2.24

A State may object to another State’s reservation: VCLT Arts 21 and 21. An objecting State may also object to the treaty entering into force as between itself and the reserving State, in which case the treaty will have no legal effect between those two States. If a State objects to another State’s reservation but not to the treaty’s

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entry into force, the treaty will enter into force but the provisions to which the reservation relates will not apply as between those States to the extent of the reservation: VCLT Art 21.

2.25

A State which has not objected to a reservation within 12 months is taken to have accepted the reservation: VCLT Art 20(5).

Interpretative declarations vs reservations 2.26

A state may also make a unilateral statement known as an interpretative declaration. An interpretative declaration is a statement by which a State indicates its view on how a treaty obligation should be understood and implemented. A reservation alters the legal effect of a treaty on the State, whereas an interpretative declaration merely clarifies the State’s understanding of the meaning of the relevant provisions. It does not have any legal effect on the State’s obligations.

Interpretation of treaties 2.27

When applying a treaty as a source of international law, there are a number of principles which guide the interpretation of the treaty’s text. As a general rule, the text of a treaty should be applied in good faith: VCLT Art 31(1). To interpret the meaning of particular words in a treaty the following can be taken into account: any definitions which are included in the treaty or agreed by the parties (VCLT Art 31(4)); the ordinary meaning of the words in light of the treaty’s object and purpose (VCLT Art 31(1)); the context of the words, which includes the preamble and

annexes to the treaty and any other related instruments or agreements (VCLT Art 31(2)); any subsequent agreement between the parties as to the interpretation of the words (VCLT Art 31(3)(a)); the practice of States in applying the treaty, which indicates how they interpret its terms (VCLT Art 31(3)(b)). 2.28

If these steps leave the meaning ambiguous, or result in an interpretation which is manifestly absurd or unreasonable, reference can be made to any statements made by States during the drafting process (the travaux preparatoires) which indicate their intended meaning: VCLT Art 32.

Application of treaties to third States 2.29

As a general rule, treaties only apply to States which are parties to them, and create no obligations or rights for third States: VCLT Art 34. There are some limited

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exceptions to this general rule, however. If the parties to a treaty intend for it to create an obligation for a third State such an obligation may arise, provided the third State expressly accepts the obligation in writing: VCLT Art 35. Similarly, a treaty may create rights for a third State provided the parties to the treaty intended to

create such rights, and provided the third State consents. If a third State does not expressly reject the rights they will be taken to have consented to them: VCLT Art 36. 2.30

As will be discussed below (at 2.40) a State which is not a party to a treaty may become bound by the terms of that treaty if it comes to form customary international law: VCLT Art 38.

Invalidity and termination of treaties 2.31

The VCLT provides several ways in which a treaty may be rendered invalid or terminated, either as a whole or with respect to a particular State.

Invalidation of a State’s consent 2.32

Where a State’s consent to be bound by a treaty has been given by a person not authorised to do so, or where such consent has been based on an error relating to a fact which was essential to its consent, the treaty may be invalidated for that State: VCLT Arts 47 and 48. Similarly, where the consent of a State has been obtained by fraud, corruption or coercion, the treaty will be invalidated with respect to that State: VCLT Arts 49–52.

Conflict with jus cogens norms 2.33

As will be discussed below (at 2.50), there are certain rules of customary international law which are considered so important that no derogation from them is permitted. These are known as

peremptory norms, or norms of jus cogens. They include the prohibitions on slavery, torture, piracy and genocide. A treaty incompatible with one of these peremptory norms will be considered void: VCLT Art 53. This will apply even where a new peremptory norm emerges, rendering void any pre-existing incompatible treaties: VCLT Art 64.

Termination or withdrawal by agreement 2.34

A treaty may specify the requirements for its own termination: VCLT Art 54(a). For example, a treaty may provide that it will terminate upon the completion of a particular project or after a specified period of time. A treaty may also be terminated by the consent of all the parties (VCLT Art 54(b)) or if all the parties agree to adopt a new treaty which covers the same subject matter and is incompatible with the

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earlier treaty (VCLT Art 59). An individual State party may withdraw from a treaty in accordance with the terms of that treaty or by the consent of the other parties: VCLT Art 54.

Termination following breach 2.35

Where one State party to a treaty has committed a material breach of the terms of the treaty, the other parties may agree to terminate the

treaty either as a whole or as between themselves and the defaulting State: VCLT Art 60.

Termination due to supervening impossibility of performance 2.36

If circumstances arise which make it impossible to perform the obligations contained in a treaty, a State party may seek to terminate the treaty. Such impossibility must be due to the permanent disappearance or destruction of an object indispensable for the execution of the treaty: VCLT Art 61.

Termination due to fundamental change of circumstances 2.37

A State party may seek to terminate a treaty if a fundamental change of circumstances has occurred since the time when they consented to be bound by the treaty. Termination on this ground will only be available where: (a) certain circumstances existed at the time the State gave consent which constituted an essential basis of that consent; and (b) there has been a change in those circumstances which radically alters the nature of the obligations to be performed under the treaty; and (c) the change in circumstances is not due to a breach by the State seeking to terminate: VCLT Art 62.

Unilateral declarations 2.38

As discussed above, States will be bound by any treaties they enter into with other States. However, they may also be bound by unilateral

statements which they make independently. For a unilateral declaration to be legally binding, it must be specific in nature and it must have been made publically with the intention of creating legal obligations. 2.39

An example of a binding unilateral declaration can be seen in the Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ Ser A/B No 53, at 71 (Legal Status of Greenland case). In that case, Denmark and Norway had been in a dispute regarding sovereignty over the area of land known as Eastern Greenland. Denmark had offered to make certain concessions with regard to another disputed territory and in response Norway’s Foreign Minister declared that ‘the Norwegian

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government would not make any difficulty in the settlement of this question’. The Permanent Court of International Justice (PCIJ) found that this statement was binding on Norway, and that it was legally obliged not to interfere with Denmark’s plans for Eastern Greenland.

CUSTOMARY INTERNATIONAL LAW 2.40

The second major source of international law is customary international law. Customary international law is law which develops through the practice of States, and will be legally binding on States

even where they have not entered into a treaty to that effect. Article 38(1)(b) of the ICJ Statute describes this source of law as ‘international custom, as evidence of a general practice accepted as law’. This hints at the two elements which are required to create a rule of customary international law: consistent state practice, accompanied by a belief on the part of States that they are legally obliged to follow the rule. The first element, state practice, is objective and is identified by looking at the way States behave in relation to a particular issue. The second element is known as opinio juris, and is a subjective belief by States that the practice is legally binding. Figure 2.2

2.41

ELEMENTS OF CUSTOMARY INTERNATIONAL LAW

The two elements of customary international law were described by the ICJ in Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands [1969] ICJ Rep 3 (North Sea Continental Shelf cases). There, the ICJ was considering whether a provision in a treaty to which both the Netherlands and Denmark were parties had attained the status of customary international law, such that it would also be binding on Germany, which was not a party to the treaty. The majority of the court said that, in order to establish a rule of customary international law, ‘two conditions must be fulfilled. Not

only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’: at 77.

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What is state practice? 2.42

For a rule of customary international law to become legally binding there must be state practice which is consistent with that rule. State practice is the way that States behave in relation to a particular issue, and it is comprised of States’ actions and statements. Evidence of state practice can therefore be found in the acts of States (for example through the orders given to military personnel), as well as official documents, legislation and policy instruments, statements made in Parliament or at international conferences and States’ voting patterns at UN meetings.

How much state practice is required? 2.43

The ICJ and its predecessor, the PCIJ, have given considerable attention to the nature of state practice which is sufficient to give rise to a customary norm. This involves looking at how many States are behaving consistently with the norm and how long they have been engaging in such practice.

Consistency: There is no fixed rule as to how much consistency of 2.44

practice is required, but it is necessary to demonstrate objectively that the behaviour of States amounts to ‘settled practice’. In Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3 (Fisheries Jurisdiction case), the ICJ stated that in order to establish a rule of customary international law, state practice must be ‘common, consistent and concordant’: at 50 (Joint Separate Opinion of Forster, Bengzon, Jimenez de Arechaga, Nagendra Singh and Ruda JJ). As was noted by the ICJ in the North Sea Continental Shelf cases, the focus is on the practice of those States which have an interest in the issue. In that case, it was pointed out that land-locked States would have little interest in the application of rules relating to the continental shelf and the rights of coastal States, and so their practice was not considered relevant to the assessment of the customary rule.

2.45

Time: The ICJ has not specified a length of time that States are required to have practiced a particular custom before it will become binding. Generally, customary rules will emerge gradually over some time, but in the North Sea Continental Shelf cases the ICJ confirmed that a rule of customary international law could emerge even though state practice had only been relatively recent. However, the court emphasised that in such cases the practice of States would need to be extensive and virtually uniform, especially among States whose interests were specially affected: North Sea Continental Shelf cases, at 73 and 74. So, practice over a long time is not required; it is more

important that many States adhere to the practice consistently.

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2.46

It is not essential that state practice be absolutely universal, and some deviation from the practice does not preclude the recognition of customary international law. This was expressed by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 (Nicaragua Merits decision), where the court stated that what is required is ‘consistent, but not absolutely rigorous conformity’: at 186.

Opinio juris 2.47

Opinio juris is the subjective element of customary international law. It relates not to what States do, but to why they do it. What is required is a belief by States that they are legally bound to act in a particular way, or, to put it another way, that in acting consistently with a particular norm they are following a rule of international law.

The Lotus case 2.48

The PCIJ explained the importance of opinio juris in SS Lotus (France v Turkey) [1927] PCIJ Ser A No 10 (Lotus case). ‘The frequency, or even habitual character of the acts is not in itself enough. There are many international acts … which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience

or tradition, and not by any sense of legal duty’: at 28. In order to show that a rule has become binding on States it must be proved that the States concerned feel they are legally obliged to comply with that rule. 2.49

Given that States are collective entities comprising many actors, it can be difficult to identify precisely what their intentions are in acting in a particular way. Opinio juris is therefore difficult to prove, but it can often be inferred from the way that States act, and in particular from the opinions they express in official declarations or other statements. As such, evidence of opinio juris is often found in the same sources that are used to prove state practice.

Jus cogens 2.50

A special subset of customary international law is known as peremptory norms, or norms of ‘jus cogens’. These are rules which are considered so important that they are binding on all States and may never be derogated from. They include the prohibitions against genocide, torture, slavery and piracy. Although many jus cogens norms are articulated in treaties, such as the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987) they are binding even when States are not parties to those treaties. As noted above (at 2.29), any treaty provision which is contrary to a jus cogens norm will be void.

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Obligations erga omnes 2.51

Another special category of international obligations is erga omnes obligations. These are obligations which are owed to the international community as a whole: Case concerning Barcelona Traction Light and Power Co Ltd (Belgium v Spain) [1970] ICJ Rep 3 at [32].

Regional and local custom 2.52

It is possible for a norm of customary international law to be established for a localised area or region. It has been accepted that a customary rule can apply between as few as two States where there has been continued practice between them and where such practice is accepted as giving rise to legal rights and obligations: Rights of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6.

2.53

In the case of regional or local custom, the standard required for state practice and opino juris is generally higher than in relation to a general rule of customary international law. In Asylum (Colombia v Peru) [1950] ICJ Rep 266 (Asylum case), the ICJ decided that a regional custom could exist within Latin America, but that it would be necessary to show ‘constant and uniform usage’ by all States against which it was claimed.

Persistent objector principle

2.54

It may be possible for a State to avoid the application of a rule of customary international law if it can show that it has persistently objected to that rule. For example, in Fisheries (United Kingdom v Norway) [1951] ICJ Rep 116 (Fisheries case) Norway successfully argued that a rule of customary international law did not apply to it because it had always applied an alternative rule and other States had acquiesced to such an approach.

Case Summary

FISHERIES (UNITED KINGDOM v NORWAY) [1951] ICJ REP 116 (FISHERIES case) INTERNATIONAL COURT OF JUSTICE FACTS: The case involved a dispute between Norway and the United Kingdom about the extent of Norway’s exclusive fishing zones. Customary international law provided certain rules for how such zones should be defined, using the low water mark as the baseline from which fishing zones were measured. Because of Norway’s unique coastline, which was characterised by numerous fjords, islands, bays and inlets, [page 31] it had adopted an alternative approach of defining its fishing zones by reference to straight baselines, so as to avoid the complications presented by its unusually shaped coastline. Norway argued that it had always applied this alternative rule, and had objected to the application of the traditional rule. Further, it demonstrated that other States had accepted its alternative approach for many years. ISSUE: Could Norway rely on its past objections to exempt itself from the application of the customary rule? DECISION: The court held that because of Norway’s persistent objection to the customary rule, and the fact that other States had acquiesced to Norway’s alternative approach, the customary rule was not binding on Norway.

GENERAL PRINCIPLES OF LAW 2.55

A third source of international law is ‘general principles of law’. Under Art 38(1)(c) of the ICJ Statute, the ICJ may apply general principles of law in resolving disputes between States. This source of law was included in the ICJ Statute to enable the ICJ to resolve disputes when there was no applicable treaty or customary law. The general principles of law which the ICJ can apply include rules which are commonly found within domestic legal systems, including principles of equity.

2.56

Examples of general principles of law which can be used as a source of international law are: the obligation to make reparations following a breach of international law (Chorzow Factory (Indemnity) [1928] PCIJ Ser A No 17, at 29); the rule against unjust enrichment; the equitable principle that ‘he who seeks equity must do equity’ (Diversion of Water from the River Meuse (Netherlands v Belgium) [1937] PCIJ Ser A/B No 70, at 76, Separate Opinion of Hudson J); the principle of pacta sunt servanda (that legal obligations must be performed in good faith) (Nuclear Tests (Australia and New Zealand v France) [1974] ICJ Rep 253); the principle of res judicata (that judicial decisions are binding on

the parties) (Effect of Awards of Compensation Made by the UN Administrative Tribunal Advisory Opinion, [1954] ICJ Rep 47; Argentina v Chile (1994) 113 ILR 1 (The Laguna del Desierto case); Process Verbaux of the Proceedings of the Committee, June 16– July 24, LN Publication 1920).

[page 32] Case Summary

NUCLEAR TESTS (AUSTRALIA AND NEW ZEALAND v FRANCE) [1974] ICJ Rep 253 INTERNATIONAL COURT OF JUSTICE FACTS: Australia and New Zealand had brought a complaint against France in relation to a series of atmospheric nuclear tests France was conducting in the South Pacific. Australia and New Zealand sought a declaration from the ICJ that the tests were unlawful and an order, which would require France to cease the tests. However, subsequent to the commencement of proceedings, France made a number of public statements indicating that it planned to cease the atmospheric nuclear tests. ISSUE: Was France’s statement that it would cease nuclear testing legally binding, and if so, what impact did it have on the matter before the ICJ? DECISION: The court held that States, including Australia and New Zealand, were entitled to rely on France’s undertaking in good faith. By its own statement, France had promised to cease the atmospheric nuclear testing. The court held that the principle of pacta sunt servanda would apply to this statement, and that France would be bound to comply with its own undertaking. Consequently, the dispute between the parties disappeared, and the matter was dismissed.

JUDICIAL DECISIONS AND THE WRITINGS OF

EMINENT PUBLICISTS 2.57

Article 38(1)(d) of the ICJ Statute provides that the court may refer to judicial decisions and the ‘teachings of the most highly qualified publicists’ as subsidiary sources of law. This means that the ICJ will use these sources where no primary source of law (treaty, custom or general principles) is available, or to help interpret any ambiguity in relation to those sources.

2.58

Under Art 59 of the ICJ Statute, decisions of the court are only binding on the parties to the case in the particular circumstances. They do not therefore create any binding principle, and no rule of stare decisis applies in international law. However, the decisions of the ICJ are highly persuasive, and the court regularly refers to its previous decisions and acts consistently with its own jurisprudence.

2.59

The ICJ also has regard to the decisions of other international courts and tribunals, such as the decisions of international criminal tribunals and human rights bodies and international arbitral awards.

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2.60

As well as international decisions, the ICJ can also have regard to the decisions of domestic courts where they are useful in identifying or interpreting the relevant international rules, or where they are evidence of customary international law.

Evidence of law 2.61

It should be noted here that some instruments will not be considered sources of international law themselves, but can be evidence of law. For example, domestic legislation is not a source of international law, but can be considered evidence of state practice or opinio juris as part of establishing customary international law. Similarly, decisions of national courts will not be binding themselves at international law, but they can be evidence of customary international law, as well as providing a subsidiary source of law which can be used as an aid to interpretation.

2.62

The writings of academics and jurists in the field of international law can also be used by the ICJ as a subsidiary source of law and such writings have proved useful in areas where the law is evolving or where an issue has not previously been considered by a judicial body. However, it is important to distinguish between writings which debate the possible direction of international law in the future and those which provide evidence of the law as it currently stands. It is only the latter which is encompassed in Art 38(1)(d) of the ICJ Statute and the court will generally avoid relying on writings which are speculative or unsupported by evidence.

RESOLUTIONS, GENERAL COMMENTS AND OTHER ‘SOFT LAW’ 2.63

In addition to the sources of law listed in Art 38(1) of the ICJ Statute there exists a variety of instruments of differing legal status which can

assist in interpreting and implementing international law. These include the resolutions of international organs such as the UN General Assembly and Security Council, as well as a body of international law known as ‘soft law.’

Security Council resolutions 2.64

Under the UN Charter, resolutions of the Security Council are binding on all UN members: UN Charter Art 25. The principal responsibility of the Security Council is to maintain international peace and security. The Security Council passes resolutions which enable it to carry out this function, including resolutions which

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impose economic or other sanctions, or which implement peacekeeping measures: UN Charter Ch VII. Member States of the UN are legally bound to comply with these resolutions in order to give effect to the Security Council’s decisions.

UN General Assembly resolutions 2.65

Some resolutions of the UN General Assembly are legally binding on members, such as decisions on budgetary matters and membership: UN Charter Art 18. While most other resolutions are not legally binding, they can nevertheless be evidence of customary law by demonstrating state practice and opinio juris, and have been referred to

by the ICJ to help interpret other principles of law.

Soft law 2.66

Soft law is non-binding, and consists of resolutions, declarations or other instruments to which States have given their consent. These instruments generate ‘soft’ obligations for States, rather than ‘hard’, legally binding duties. While not legally bound, States may feel political pressure to comply with the terms of a particular instrument, particularly if they have voted in favour of it in an international forum.

Example

THE RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT The 1992 Rio Declaration on Environment and Development was a non-binding declaration adopted by States at the 1992 Conference on Environment and Development, held in Rio de Janeiro. The Declaration articulated the concept of sustainable development and the steps which States should take to ensure that economic development proceeds in an environmentally sustainable fashion. It is not binding, but has become well regarded as a set of principles which States should follow: Rio Declaration on Environment and Development, 13 June 1992, UN Doc A/CONF 151/26, (1992) 31 ILM 874.

2.67

While soft law instruments are not binding themselves, they can have an influence on the formation of ‘hard’ international law: see 2.72. Further, many soft law instruments build on existing international law and can thereby have some binding force. For instance, a resolution or declaration might seek to elaborate on general legal principles and demonstrate how they ought to apply to a particular issue.

[page 35] Example

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) enunciates the rights of Indigenous peoples and prescribes the steps which States must take to ensure the enjoyment of these rights. Many States have officially adopted the UNDRIP, indicating their support for the principles which it contains. While not legally binding in itself, the UNDRIP builds on existing human rights law, expanding on currently recognised human rights to demonstrate how they apply in the particular context of Indigenous peoples: GA Res 61/295, UN GAOR 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).

General Comments 2.68

General Comments, a particular form of soft law, are developed to aid in the interpretation and implementation of treaties. They are quite common for human rights treaties, which are often worded in general terms. The body responsible for monitoring compliance with a human rights treaty can issue a General Comment in relation to a particular provision in order to clarify the nature and scope of States’ obligations under that provision. While they are not binding in themselves, the General Comments can provide useful and persuasive guidance as to how the various legal principles are to be applied.

Example

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, GENERAL COMMENT 14 (THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH) The Committee on Economic, Social and Cultural Rights is the body responsible for supervising the implementation of the International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 993 UNTS 3, entered into force 3 January 1976) (ICESCR). Article 12 of the ICESCR guarantees to all individuals the right to the highest attainable standard of health. To clarify what this right entails, the Committee on Economic, Social and Cultural Rights issued General Comment 14 (11 August 2000, UN Doc E/C 12/2000/4). [page 36] The General Comment explains that the right to the highest attainable standard of health includes obligations relating both to the provision of health care as well as to the determinants of health, such as environmental and socioeconomic factors. It also addresses the needs of particular groups such as women, children, persons with disability and older persons. In this way the General Comment provides States with more detail about what they are obliged to do to comply with Article 12.

Example

HUMAN RIGHTS COMMITTEE, GENERAL COMMENT 24 (RESERVATIONS TO THE COVENANT OR OPTIONAL PROTOCOLS) The Human Rights Committee is the body which monitors compliance with the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976) (ICCPR). The Human Rights Committee recognised that many States had entered reservations to the ICCPR and sought to outline a set of principles which would assist in determining when such reservations should be allowed. It acknowledged that the ‘number of reservations, their content and their scope may undermine the effective implementation of the ICCPR and tend to weaken respect for the obligations of States Parties’: at 1. General Comment 24 notes that, while reservations can be a useful tool in allowing flexibility and encouraging States to take on the majority of obligations, for a human rights treaty in particular ‘it is desirable in principle that States accept the full range of obligations, because of the essential rights that every person is entitled to as a human being’: at 4. The General Comment therefore explains how the general rule regarding reservations — that they are not permissible where they conflict with the object and purpose of the treaty — is to be applied with respect to the ICCPR. It states that for a reservation to be acceptable it must relate to a specific provision and it must be transparent, so that the Human Rights Committee is able to judge its compatibility with the overall object and purpose of the ICCPR. While General Comment 24 is not a source of law itself, it provides detailed guidance on how the rules contained in the VCLT regarding reservations should [page 37] be applied with respect to human rights treaties like the ICCPR. It therefore plays an important role in identifying the specific obligations which are binding on States Parties.

DEVELOPMENT OF INTERNATIONAL LAW The influence of treaties on custom 2.69

A rule of customary international law can form out of a treaty

obligation if States come to adhere to the treaty rule even though they are not parties to it. This was the argument which Denmark and the Netherlands attempted to make in the North Sea Continental Shelf cases, when they sought to apply the Geneva Convention on the Continental Shelf to Germany, even though it was not a party to the treaty. (They failed because they could not prove sufficient state practice and opinio juris to establish that the treaty provision had become binding as customary international law.)

The influence of custom on treaties 2.70

A rule of customary international law can become codified in a treaty as States decide to write down the customary rule. In this way customary laws can be refined or developed, as treaties take an existing customary rule and clarify its scope and content, or add more detail to a customary rule to ensure its application is clear.

The work of the International Law Commission 2.71

The ILC is the organ of the UN responsible for codifying and developing

international

law.

It

codifies

existing

customary

international law by drafting treaties which set out the customary principles in written form. It also contributes to the development of international law by drafting treaties which include rules and principles which may not yet be binding as customary international law but which are emerging. These treaties might in turn become custom if they attract sufficient state practice and opinio juris so as to

bind non-parties.

The influence of soft law 2.72

As noted above, soft law is not legally binding, but it can influence the development of treaties and custom. Soft law can evolve to become ‘hard law’ where it influences state practice so as to create a new customary norm. Alternatively, an instrument

[page 38]

of soft law can act as a sort of prototype for a future treaty, allowing States to test-run the application of particular principles and refine them ahead of formal adoption as a treaty. Example

UNIVERSAL DECLARATION OF HUMAN RIGHTS The Universal Declaration of Human Rights (UDHR) was an instrument adopted by the UN General Assembly in 1948. It sets out the rights to which all human beings are entitled. It is not a binding instrument itself, but was extremely influential in the drafting of subsequent binding human rights treaties, such as the ICCPR and the ICESCR. Several of the principles set out in the UDHR have also come to be recognised as customary international law. (GA Res 217A, UN GAOR 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

[page 39]

CHAPTER 3

The Relationship between International and National Law

[page 40]

INTRODUCTION 3.1

This chapter identifies the theoretical approaches which explain the relationship between international and national law and considers how that relationship is applied by courts. Unclear and inconsistent views can occasionally be expressed on this topic. The chapter also considers the direct and indirect operation that treaties, customary international law and other international legal sources have in the municipal sphere. Particular reference is made to the practice of Australia, although the practices of the United Kingdom (UK) and the United States of America (US) are also discussed. In this chapter, ‘national’, ‘domestic’ and ‘municipal’ are used synonymously.

THEORETICAL APPROACHES 3.2

There are three approaches which describe the relationship between international and national law.

The dualist approach 3.3

International and national legal systems are separate and exist independently of one other. International and national law differ as to their sources, the subjects they regulate and content. Consistent with legal positivist theory (see Chapter 1), international law only becomes

part of national law after a State has consented. 3.4

According to a dualist approach, national courts are not bound to apply international law until it has been ‘transformed’ into national law through an authoritative legal act, being either legislation or judge-made (common) law. ‘Transformation’ by a State act is required before international law becomes part of national law.

3.5

The strong version of the dualist approach is that international law is not suitable for direct application by national courts and first requires legislative enactment. The weak version is that courts can undertake the transformative act themselves without legislative authorisation.

3.6

In Australia, adherence to dualism has gradually eroded in light of the ongoing interaction between international and national affairs: A Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Rev 20 at 23.

The monist approach 3.7

Under a monist approach, international and national law are interconnected and part of the one and the same universal normative order. Consistent with natural law theory (see Chapter 1), international law ultimately regulates individuals and

[page 41]

can therefore be seen as part of a single legal system along with domestic law. ‘Incorporation’ means that international law is automatically part of a State’s national law without any domestic act such as legislative adoption and may be applied by domestic courts. 3.8

The strong version of the monist approach is that old common law precedents are superseded by new international legal rules. The weak version is that international law is automatically incorporated into national law to the extent that it does not conflict with legislation or settled common law rules.

The contemporary or harmonisation approach 3.9

This approach views international and national law as supreme within their respective spheres such that neither dominates the other. International law forms part of national law. Once an international legal rule is identified, the question for the national court is to determine the extent to which it has been domestically implemented. The question for an international court is whether a State has violated its international legal obligations, even where national law including constitutional provisions prohibits compliance with international law.

Case Summary

NULYARIMMA v THOMPSON (1999) 96 FCR 153; [1999] FCA 1192 FEDERAL COURT OF AUSTRALIA FACTS: The applicants claimed that federal ministers had committed genocide. Australia had ratified the Convention on the Prevention and Punishment of the Crime of Genocide, (signed 9 December 1948, 78 UNTS 277, entered into force 12 January 1951). Genocide was a crime under customary international law. However, no legislation had been passed to make genocide a crime under Australian law. ISSUE: Was the customary international legal norm prohibiting genocide automatically incorporated into Australian common law so as to make genocide a crime? DECISION: No (by majority). Genocide was a peremptory norm of customary international law but was not a crime under Australian law without legislation to that effect. Justice Wilcox considered that there was no one simple rule of transformation or incorporation applicable to all customary international legal [page 42] rules and that different rules required differential treatment. Justice Whitlam considered that, even if customary international law was part of Australian common law, criminal jurisdiction could not be exercised without a legislative foundation. Justice Merkel (dissenting) held that customary international law formed part of Australian common law, concluding that a customary international legal rule is adopted and received under Australian law if not inconsistent with legislation or finally declared by the courts. According to Merkel J, genocide was therefore a crime under Australian common law. However, there was no arguable case that genocide had been committed.

NATIONAL COMPLIANCE WITH INTERNATIONAL LAW 3.10

A State which has contracted valid international obligations is bound to make in its legislation such modifications as necessary to ensure fulfilment of the obligations it has undertaken: Exchange of Greek and

Turkish Populations Case (Advisory Opinion) [1925] PCIJ Ser B No 10 at 20. 3.11

Every State has a duty to carry out in good faith its obligations arising from treaties and other international legal sources, and it may not invoke constitutional or national legal provisions as an excuse for failing to perform this duty: Draft Declaration on the Rights and Duties of States (1949) Yearbook of the International Law Commission, 286 at 288, Art 13. This obligation is reflected in the pacta sunt servanda principle (see 2.56) and is relevant to whether a State has committed an internationally wrongful act (see 10.4).

3.12

A State may breach international law while complying with national law. In Polites v Commonwealth (1945) 70 CLR 60 at 69; [1945] HCA 3, Latham CJ observed that Australia may legislate in breach of international law and take the risk of international complications. Legislation that is within Commonwealth power does not become invalid because it conflicts with a rule of international law, although effort should be made to construe Commonwealth statutes so as to avoid breaching international law or international comity (that is, non-binding practices adopted by States for reasons of courtesy). Even if a treaty were void or unlawful under international law, or if Australia’s entry into or performance of it involved breaching Australia’s international legal obligations, legislation will not be deprived of its character as a law with respect to external affairs for the purposes of its constitutional validity: Horta v Commonwealth (1994)

181 CLR 183 at 195; [1994] HCA 32 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. There is no basis under Australian law for declaring

[page 43]

legislation or regulations invalid because they were inconsistent with Australia’s obligations under an treaty for which there is no implementing legislation: Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197; 60 ALD 361 at 364. 3.13

States having a federal constitutional structure may face particular difficulties to ensure that state officials act in accordance with that State’s international obligations: LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep 466; Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Rep 12. However, States are internationally responsible for any breach of international law committed by the government of a territorial unit: see 10.7.

INTERACTIONS BETWEEN INTERNATIONAL AND NATIONAL LAW The influence of national law on the development of international law 3.14

International law is determinative for an international court or

tribunal. A State will be held responsible for an internationally wrongful act even if bound by a conflicting national law: see 10.4. A State may not invoke national law to avoid its international obligations: Alabama Claims Arbitration (United States of America v Great Britain) (1872) 1 Int Arb 495 at 656; Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980) Art 46(1). 3.15

Municipal laws are merely facts which express the will and constitute the activities of States: Certain German Interests in Polish Upper Silesia (Merits) [1926] PCIJ Ser A No 7 at 19. However, national law can influence international law by forming part of state practice that may contribute to articulating a rule of customary international law as a source of international law: see 2.40–2.42.

3.16

International courts and tribunals can draw upon national law to establish a general principle of international law (see 2.55), particularly if international law is underdeveloped or lacking, such that national law becomes a ‘source’ of international law. For example, the International Court of Justice (ICJ) derived from national corporations law the principle of separate corporate legal personality: Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3 at 34–5.

3.17

International courts and tribunals may be specifically requested to consider national law to resolve a dispute between States. For

example, the Permanent Court of International Justice (PCIJ) was required by special agreement to interpret

[page 44]

government loans governed by Brazilian law: Brazilian Loans (Brazil v France) [1929] PCIJ Ser A No 21 at 124–5.

The impact of international law on the development of national law 3.18

The character of an international obligation is a question of international law. However, States have considerable discretion under international law on how to give effect to their international obligations under national law. The impact of international law depends on the particular approach adopted by a State. On the alternative theories for the domestic reception of international law, see 3.2–3.9.

3.19

The means of implementation adopted by States to give domestic effect to their international obligations is a question of national law and includes relevant constitutional provisions. International practice varies between States.

Constitutional provisions United States of America

3.20

The United States Constitution Art VI para 2 provides that all treaties made under the authority of the US are the supreme law of the land, and judges in every state are bound, notwithstanding anything in the Constitution or state law to the contrary.

3.21

Not all international obligations automatically constitute binding federal law enforceable in US courts. Only a treaty which operates of itself without the aid of a legislative provision (known as a ‘selfexecuting’ treaty) becomes a domestic rule binding on US courts: Foster v Neilson 2 Pet 253 at 324 (US SC, 1829). A treaty is ‘selfexecuting’ if that is intended by the State parties as manifested by the language used. The Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter), for example, is not self-executing: Sei Fuji v California 38 Cal 2d 718 at 722 (Cal SC, 1952). The Vienna Convention on Consular Relations (adopted 24 April 1963, 596 UNTS 261; [1973] ATS 7, entered into force 19 March 1967) is also not self-executing and therefore not binding upon state courts until Congress enacts legislation: Medellin v Texas 128 S Ct 1346 (US SC, 2008). For the US Supreme Court to provide a remedy not envisaged under that convention would be inconsistent with the judicial function and enlarge US obligations under that treaty: SanchezLlamas v Oregon 126 S Ct 2669 at 2679 (US SC, 2006). Furthermore, the procedural laws of the forum State govern treaty implementation such that US law, being later in time than a convention, can ‘trump’

any rights that individuals might enjoy under that treaty: Breard v Greene 523 US 371 at 376 (US SC, 1998).

[page 45]

Australia 3.22

The Australian Constitution s 75(i) provides that the High Court of Australia shall have original jurisdiction in all matters arising under any treaty.

3.23

The external affairs power: Australia does not have express constitutional provisions about the domestic legal effect of treaties to which it is a party. The Australian Constitution s 51(xxix) provides that

the

Commonwealth

Parliament

shall,

subject

to

the

Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs. This section has been interpreted as follows: The executive power of the Commonwealth extends to signing and ratifying treaties. The legislative power extends to enacting laws which implement the provisions of treaties entered into by the executive so as to bind the Commonwealth: Victoria v Commonwealth (1996) 187 CLR 416 at 476; [1996] HCA 56 (Industrial Relations Act case) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. When a treaty is relied on under s 51(xxix) to support a Commonwealth law, the law must

prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by signatory States: at CLR 486. To be a law with respect to external affairs, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty: at CLR 487. In determining whether legislation is a valid exercise of the external affairs power, Australian courts may be required to consider the conformity between Commonwealth legislation and a treaty. The legislation need not adopt all of the terms of a treaty: Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (Tasmanian Dam case) per Brennan J at [58]. However, there must be a ‘reasonable proportionality’ between the treaty’s object or purpose and the means by which the legislation adopts to pursue that treaty: Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261; [1998] HCA 10, Deane J at [7]. A ‘colourable’ treaty, which raises the question of a ‘sham’ or ‘circuitous device to attract legislative power’, would not be supported by the external affairs power: Horta v Commonwealth (1994) 181 CLR 183; [1994] HCA 32 at [12] per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. 3.24

Using international law to interpret the Constitution: It has been suggested that the Australian Constitution can be interpreted by

reference to international law (most notably by Kirby J in, for example, Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38). However, this is currently a minority view.

[page 46]

For example, in AMS v AIF (1999) 199 CLR 160; [1999] HCA 26, Gleeson CJ, McHugh and Gummow JJ at CLR 180 observed that Constitutional provisions are not to be construed as being subject to an implication derived from international law. Nevertheless, a majority of the High Court of Australia in Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 considered comparative state practice and treaties as an aid to interpreting the Australian Constitution.

Treaties in national law United Kingdom 3.25

The practice of the UK demonstrates a dualist approach to the role of treaties in domestic law. A treaty is not part of English law unless and until it has been transformed into the law by legislation. Individuals cannot derive rights, be deprived of rights or be subjected to obligations under a treaty without legislative implementation: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 at 500. English courts will moreover give effect to

legislation even if unambiguously inconsistent with a treaty obligation: R v Asfaw [2008] UKHL 31. 3.26

European Community law takes precedence over English law: European Communities Act 1952 (UK). Parliament voluntarily accepted that English sovereignty would be limited: R v Secretary of State for Transport (No 2); Ex parte Factortame Ltd [1991] 1 AC 603 at 659 per Lord Bridge.

Australia 3.27

Following reforms made during the 1990s, the treaty-making process in Australia includes tabling treaties before Parliament, conducting a national interest analysis, consideration by a Joint Standing Committee on Treaties, participation by a Treaties Council and a treaty information database.

3.28

Entry by the executive into a treaty is insufficient without legislation to implement the treaty or to modify domestic law by changing or creating public and private legal rights and obligations: Industrial Relations Act case per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. A treaty which had not been legislatively implemented into Australian law cannot operate as a direct source of individual rights and obligations: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20 (Teoh’s case) per Mason CJ and Deane J.

Thus, for example, in Dietrich v R (1992) 177 CLR 292; [1992] 3.29

HCA 57, Mason CJ and McHugh at CLR 305 and Toohey J at CLR 359–60 concluded that the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 993 UNTS 3, entered into force 23 March 1976) (ICCPR) could

[page 47]

not change Australian law because it had not been domestically implemented. This was notwithstanding that it had been scheduled to legislation: Minogue v Williams [2000] FCA 125 at [21]. 3.30

National law implementing a treaty: Australia may give effect to its international obligations through legislative provisions: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [27] per Gleeson CJ. Decision makers may be expressly directed to take into account the provisions of named international instruments or treaties to which Australia is a party, in which case the instrument or treaty is given operative effect under Australian law: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [82]–[85] per McHugh, Gummow, Kirby and Hayne JJ.

3.31

By transposing a treaty provision into Australian law, the legislature discloses a prima facie intention that it has the same meaning in the statute as it does in the treaty. In the absence of any contrary

intention, the statutory provision is construed according to the method applicable to the construction of the corresponding words in the treaty: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 239–40; [1997] HCA 4 per Dawson J. On treaty interpretation, see Chapter 2. 3.32

Unincorporated treaties as an aid to legislative interpretation: Unincorporated (that is, unimplemented) treaties may be an aid to interpreting national law. As a canon of construction, Australian courts may seek to ensure that national law is construed in conformity with international law insofar as the language permits, particularly where the legislation is ambiguous and was enacted to give effect to a treaty. However, if the ordinary meaning of legislation is clear, then there is no need to consider extrinsic material such a treaty in order to ascertain the legislative intention: Acts Interpretation Act 1901 (Cth) s 15AB.

3.33

Australian courts will presume that Parliament intended to legislate in accordance with Australia’s international obligations: Brown v Classification Review Board (1998) 83 FCR 225 at 236 per French J. However, where it is clear that the legislation or legislative intent is to legislate in disconformity with international law, then the legislation must be applied and given effect.

3.34

Using unincorporated treaties to develop the common law: The provisions of a treaty to which Australia is a party, particularly one which

declares fundamental human rights, may be legitimately used to develop the common law. Australian courts act with due circumspection: much depends on the nature of the treaty provision, the extent to which it has been accepted by the international community, its intended

[page 48]

purpose and its relationship to existing principles of Australian law: Teoh’s case at CLR 288 per Mason CJ and Deane J. 3.35

Unincorporated treaties and administrative decision-making: There is a legitimate expectation that administrative officials will inform themselves about treaty obligations accepted by Australia.

Case Summary

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH (1995) 183 CLR 273; [1995] HCA 20 (TEOH’S case) HIGH COURT OF AUSTRALIA FACTS: Mr Teoh, a father of three children to an Australian citizen, received a criminal conviction and a decision was made to deport him. Article 3(1) of the Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) (CRC), to which Australia is a party, provides that, in any administrative decision concerning a child, the child’s best interests must be a primary consideration. The Immigration Department did not invite Mr Teoh to make submissions on whether a deportation order should be made. ISSUE: Was there a breach of procedural fairness? DECISION: Chief Justice Mason and Deane J at [291] considered that ratification of a treaty is a positive statement that Australia’s executive and its agencies will act in accordance with it. This is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decisionmakers will act in conformity with the convention. A person need not be aware of the convention or entertain the expectation; it is sufficient if there are adequate materials to support it. However, a legitimate expectation does not compel a decision-maker to act in a particular way. If a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the affected persons be given notice and an adequate opportunity of presenting a case against taking such a course.

3.36

Subsequent judicial authority has criticised the doctrine of legitimate expectations: see, for example, Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6. The executive branch has also sought to restrict this doctrine: Joint Statement by the Minister for Foreign Affairs and Trade and the

[page 49]

Attorney-General, ‘International Treaties and the High Court Decision in Teoh’, 10 May 1995.

Customary international law in national law United Kingdom 3.37

English courts have traditionally applied the dualist doctrine to customary international law. Thus the law of nations in its full extent was part of English law: Buvot v Barbuit (1737) 25 ER 777. Customary international law can accordingly be part of English law: R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 at 276 per Lord Millet. Changes to customary international law can effect changes to English common law: Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 544 per Lord Denning and at 579 per Shaw LJ. However, customary international law must not be inconsistent with an Act of Parliament or previous final judicial authority.

3.38

There is also judicial comment which suggests the application of the doctrine of transformation. Thus customary international law will not be part of English law without legislation, judicial decision or established usage: R v Keyn (1876) 2 Ex D 63. Customary international law therefore has no validity save insofar as its principles are accepted and adopted by English law: Chung Chi Cheung v The King [1939] AC 160 at 167–8 per Lord Atkin. For example, although the crime of aggression under customary international law can be

‘assimilated’ into English law, implementing legislation was first required before aggression became an offence: R v Jones (Margaret) [2007] 1 AC 136 at [26] per Lord Bingham. Similarly, statutory authority was necessary before English courts could exercise extraterritorial jurisdiction over crimes attracting universal jurisdiction — for example, torture — because the double criminality rule required the offence of torture to be an extraterritorial one under the Extradition Act 1989 (UK): R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. This was notwithstanding that torture was a crime under customary international law of a jus cogens character.

United States of America 3.39

Customary international law is part of US law and must be ascertained and administered by US courts when particular questions are presented for determination. Resort must be had to the customs and usages of civilised nations where there is no treaty or compelling legislative or executive act or judicial decision: The Paquete Habana 175 US 677 at 700 (US SC, 1900). However, customary international law cannot change a pre-existing Congressional enactment to the

[page 50]

contrary: Committee of US Citizens Living in Nicaragua v Reagan 859

F 2d 929 at 939 (DC Cir, 1988). Nor can customary international law supersede a previous final judicial decision. 3.40

The Alien Tort Statute of 1789 (US) provides for federal jurisdiction over all civil actions where an alien sues for a tort in violation of the law of nations or a US treaty. However, the modern law of nations requires a norm of international character accepted by the civilised world and defined with a specificity comparable to the features of the 18th century paradigms (such as slavery) which the US has recognised: Sosa v Alvarez-Machain 124 S Ct 2739 at 2761–2 (US SC, 2004).

Australia 3.41

Consistent with the incorporation approach, customary international law is considered to be part of Australian law so long as it is not contrary to a statute or final judicial authority. Justice Dixon’s ‘source’ view, or an approach which permits adoption through the common law, holds sway over the legislative adoption approach: Nulyarimma v Thompson (1999) 96 FCR 153 at [131] per Merkel J; see further at [132]. In other words, whereas Australia uses the dualist (that is, transformation) approach for treaties by requiring specific legislation, it takes on a more monist (incorporation) approach for customary international law.

3.42

In Chow Hung Ching v R (1949) 77 CLR 449 at 477–8; [1948] HCA 37, Dixon J observed that the idea that international law is

automatically incorporated into national law is ‘without foundation’. The question for a court is whether the particular rule of international law has been received into and so become a source of Australian law. Chief Justice Latham at 462 observed that international law is not as such part of Australian law but that a universally recognised principle of international law would be applied by Australian courts. 3.43

In Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (the Mabo case), Brennan J observed at CLR 141–2 that the common law does not necessarily conform with international law, but international law is a legitimate and important influence on developing the common law, especially when international law declares the existence of universal human rights.

3.44

The problems of proof should be acknowledged. It may be difficult to establish the existence or precise content of a posited customary international legal rule, and courts and tribunals may only be willing to accept those rules which are well-established in state practice: see, for example, Brennan J in Polyukhovich v

[page 51]

Commonwealth (1991) 172 CLR 501 at 559; [1991] HCA 32. On establishing a rule of custom, see Chapter 2.

The resolutions of international organisations and national

law 3.45

Security Council resolutions are binding upon member States of the United Nations (UN) and must be carried out by them: UN Charter Art 25; see 2.63. However, where the UN Charter and Security Council resolutions have not been carried into effect within Australia by legislation, they cannot be relied upon to justify executive acts which would otherwise be unjustified, even if the acts were done to comply with those resolutions: Bradley v Commonwealth (1973) 128 CLR 557; [1973] HCA 34 at [26] (the Rhodesian Information Centre case) per Barwick CJ and Gibbs J. Security Council resolutions may nevertheless be invoked to support the constitutional validity of Commonwealth legislation: see further Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [270]–[294] per Kirby J.

Judicial review of executive action 3.46

The relationship between international and national law can arise in the context of judicial review of executive action in the area of foreign relations. The principle of non-justiciability or the act of state doctrine may be considered. The principle of non-justiciability posits that there are some foreign policy issues (eg, which treaty to become a party to) which are incapable of judicial determination. The act of state doctrine is a common law rule that the national courts of one State will, out of deference to sovereignty, abstain from questioning the validity of a foreign State’s acts occurring within that territory. For example, an Australian may claim that Australian officials were

complicit in conduct carried out overseas by the agents of other States which amounted to torture prohibited under Australian legislation giving effect to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987): see Habib v Commonwealth (2010) 183 FCR 62; [2010] FCAFC 12. The modern law on these matters is ‘far from settled, black-letter law’: Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 at [93].

[page 53]

CHAPTER 4

International Legal Personality

[page 54]

INTRODUCTION 4.1

Legal personality describes the capacity to possess rights, obligations, powers or liabilities within a legal system. In a domestic system, legal personality is enjoyed by various entities including individuals, incorporated and unincorporated associations and the State. The particular form of personality accorded to an entity will vary depending on the sort of legal capacity it possesses.

4.2

In the international legal system, States are the principal holders of legal personality. States are the main subjects of international law, possessing an extensive range of rights and obligations. States are also the creators of international law and they are able to confer legal personality on other entities such as international organisations and individuals.

STATEHOOD 4.3

Given that States enjoy full international legal personality, it is important to be able to define what a State is. The most common definition of statehood is found in the Montevideo Convention on the Rights and Duties of States ((1933) 165 LNTS 1, entered into force 26 December 1934) (Montevideo Convention). While this

treaty was only signed by 15 States, it is considered to represent customary international law. Under Art 1 of the Montevideo Convention, a State possesses the following characteristics: 1.

a permanent population;

2.

a defined territory;

3.

government;

4.

capacity to enter into relations with the other States.

Montevideo Convention definition of statehood 4.4

The elements of the Montevideo Convention are considered to be more important in determining whether a new State has emerged than establishing a State’s continued existence. This is particularly relevant for the requirements of ‘government’ and ‘capacity to enter into relations with other States’, and temporary lapses in these elements will not divest a State of its statehood. The position where a State becomes permanently unable to satisfy one or more of these elements is more problematic. For example, there is debate within international legal scholarship about the consequences for States which are likely to lose territory due to climate change: see Jane McAdam, ‘“Disappearing States”, Statelessness and the Boundaries of International Law’, UNSW Law Research Paper No 2010–2 (2010)

(accessed 24 April 2015).

[page 55]

Permanent population 4.5

One way of describing a State is as the legal construct which represents a group of people and provides a framework for them to govern themselves. A State must therefore have a permanent population which it represents. The population does not need to be large, but it must not be temporary.

Defined territory 4.6

A State must also have a territory. As will be discussed below at 4.17, one of the key features of statehood is the power to exercise sovereignty over a particular territory. The territory does not have to be undisputed. There have been many disputes between neighbouring States as to the delimitation of their territory but this does not deny them of their statehood (for example, see Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Application, 28 August 2014)). However, the territory does need to be sufficiently consistent: Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11, at 15.

Government 4.7

A State must have a government, although there are no stipulations as to what form the government must take: Western Sahara Advisory Opinion [1975] ICJ Rep 12, at 43–4. However, the government must exercise effective control over the State’s territory. Further, the government must be independent, that is, it must not be subject to

the direction or control of any other State: Aaland Islands Question (on Jurisdiction), Report of the International Committee of Jurists, League of Nations Official Journal, Spec Supp No 3, 1920. Case Summary

AALAND ISLANDS QUESTION (ON JURISDICTION) (1920) LEAGUE OF NATIONS OFFICIAL JOURNAL, SPEC SUPP 3, AT 3. INTERNATIONAL COMMITTEE OF JURISTS FACTS: Finland declared independence from Russia in December 1917, but the declaration led to civil war. The government was chased from the capital city and was unable to maintain order. Both sides of the conflict received support from foreign forces, specifically Soviet and German troops. ISSUE: At what point could the Finnish Republic be said to have formed as an independent State? [page 56] DECISION: The independent sovereign State of Finland did not come into existence ‘until a stable political organisation had been created, and until the public authorities had been strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops’. The International Commission of Jurists concluded that this occurred when the civil war ended in May 1918 and foreign troops began to leave the territory.

Capacity to enter into foreign relations 4.8

In order to be a State, an entity must have capacity to enter into relations with other States. This can refer to the entity’s financial, political, technical or other capacity to engage in international relations. It may also refer to whether the entity is recognised as a

State by other States.

Recognition of States 4.9

Recognition occurs when States affirm or accept that another entity is a State either de jure (in law) or de facto (in fact). It can take various forms including formal declarations of recognition or implied recognition through entering into treaties or other relations that are reserved for States.

4.10

Recognition by other States is sometimes stated to be an additional element of the definition of statehood. This approach is known as the ‘constitutive theory’ of recognition. An alternative approach is the ‘declarative theory’, under which recognition merely confirms that an entity meets the legal requirements of statehood.

Declarative theory 4.11

The declarative theory is the more widely accepted view of recognition. According to this approach, recognition is a political act but is not an essential requirement for legal statehood. The fact that an entity meets the legal definition of a State is not changed by recognition; recognition merely declares this fact to be true.

Constitutive theory 4.12

Under the constitutive theory, an entity requires recognition by other States in order to become a State. This theory recognises the political reality that States create the law and decide which entities enjoy legal

personality. The theory also has an evidentiary element: if no other States recognise an entity, it is extremely unlikely that the entity is able to satisfy the elements in the Montevideo Convention definition.

[page 57]

Preconditions to recognition 4.13

There may be certain preconditions attached to recognition. For example, States may not recognise another entity as a State when that entity has engaged in violations of human rights law or other international

law.

For

example,

see

European

Community

Declaration on the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union (1991) (1993) 4 EJHR 72. In cases of serious violations there may be an obligation on States not to grant recognition. 4.14

Issues relating to self-determination may also influence whether States will grant recognition. All peoples have a right to selfdetermination: see 6.12. This is an erga omnes right which all States are obliged to uphold: Case Concerning East Timor (Portugal v Australia) [1994] ICJ Rep 90: see 2.51 and 12.24. Where a people forms an independent nation as a valid exercise of self-determination then States may be under an obligation to grant the new nation recognition.

Recognition of governments 4.15

States can choose to formally recognise new governments coming to power in other States. In practice, however, many States adopt an approach of only recognising States and not governments. This removes the need to recognise frequent changes of government or to adopt a position where the right to form legitimate government may be in dispute. Further, as with recognition of States, there may be a duty (including by virtue of a Security Council resolution) not to recognise a government which assumes power in circumstances which comprise a serious breach of international law. At the national level, domestic courts may be guided by the views of the executive branch: see, for example, Anglo-Czechoslovak & Prague Credit Bank v Janssen [1943] VLR 185.

SOVEREIGNTY 4.16

The legal capacity and authority which States enjoy is referred to as sovereignty. All States enjoy sovereign equality: Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter) Art 2(1); UN General Assembly Resolution 2625 (1970) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN GAOR 25th sess, Agenda Item 85, UN Doc A/RES/25/2625 (1970). Respect for sovereignty is a fundamental principle of customary international law and States are prohibited from interfering

in the internal affairs of other States: Military and Paramilitary

[page 58]

Activities in and against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 (Nicaragua Merits decision).

Territorial sovereignty 4.17

A key aspect of sovereignty is that it is exercised over a State’s territory. A State has jurisdiction over its own territory (see 4.22–4.23) and is obliged to respect the territorial sovereignty of other States: The Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4.

Scope of territory 4.18

A State’s territory includes the land and internal waters within its territorial boundaries. It also includes the State’s territorial sea and the land beneath it (see Chapter 9 on the definition of territorial waters). Territory also includes the air space above these areas, but does not extend to outer space.

JURISDICTION 4.19

State sovereignty entails jurisdiction to make and enforce domestic laws over certain people, places and events. International law provides

a number of rules which govern the exercise of a State’s jurisdiction. These rules apply to ensure a balance between States’ rights to exercise jurisdiction and their obligations to respect the sovereignty of other States.

Categories of jurisdiction 4.20

There are two broad categories of jurisdiction: prescriptive and enforcement. Prescriptive jurisdiction is the power to make laws relating to a particular issue. Enforcement jurisdiction is the power to enforce the law.

4.21

There are four principles which allow a State to establish jurisdiction: 1.

territoriality;

2.

nationality;

3.

protective;

4.

universality.

Territoriality 4.22

Under the territoriality principle, a State has prescriptive and enforcement jurisdiction over any persons, things or events within its territory. This jurisdiction flows directly from territorial sovereignty: Island of Palmas Arbitration (1928) 2 RIAA 829.

4.23

Territorial jurisdiction is sometimes divided into subjective and objective territoriality. Subjective territoriality exists where events take place within the State’s

[page 59]

territory, even though they might have effects elsewhere. Objective territoriality is less well-settled, and applies to events which take place in the territory of another State but which have an impact on the territory of the State claiming jurisdiction: SS Lotus (France v Turkey) [1927] PCIJ Ser A No 10 (Lotus case).

Nationality 4.24

States also have jurisdiction to apply their criminal laws to their citizens. This applies even when the actions which comprise the criminal offence take place within the territory of another State. This form of jurisdiction is sometimes called the ‘active nationality principle’.

4.25

States might also assert jurisdiction based on the ‘passive nationality principle’ (sometimes called ‘passive personality’). Under this principle, a State will have jurisdiction to apply its criminal laws where the victim of an offence is a national of that State, even though the events took place in the territory of another State and the offender was a national of another State. This basis of jurisdiction is more controversial, as can be seen from the dissenting judgment of Judge Moore in the Lotus case, who said (at 92–3): What, we may ask, is this system? In substance it means that the citizen of one country, when he visits another country, takes with him for his ‘protection’ the law

of his own country and subjects those with whom he comes into contact to the operation of that law…It is evident that this claim is at variance not only with the principle of the exclusive jurisdiction of a State over its own territory, but also with the equally well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his own country, falls under the dominion of the local law …

Protective 4.26

The protective principle allows a State to exercise jurisdiction in order to protect its own security interests against injury or threat of injury. This form of jurisdiction is generally considered to be restricted to a narrow class of threats, including physical attacks on organs of the State, forgery of official documents, counterfeiting of currency or espionage.

Universality 4.27

The universality principle allows States to exercise jurisdiction over crimes wherever they occur, on the basis that the conduct is so serious that it represents a threat to the entire international community. Crimes which are considered to

[page 60]

attract universal jurisdiction include piracy (see 9.28), war crimes, crimes against humanity, torture and genocide. 4.28

Usually universal jurisdiction is established through treaties. For

example, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987) (Convention Against Torture or CAT) requires States to establish jurisdiction over offenders within their territory who have committed prohibited acts, even if the acts were committed elsewhere: Art 5. The existence of universal jurisdiction at customary international law is not yet settled: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep 3 (Arrest Warrant case) (Joint Separate Opinion of Higgins, Kooijmans and Buergenthal JJ).

IMMUNITY 4.29

A corollary of the sovereign equality that States enjoy is that no State is permitted to exercise its domestic jurisdiction against another State. This is known as sovereign immunity. Immunity also extends to State property: Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99; Convention on Jurisdictional Immunities of States and Their Property, (signed 2 December 2004 (not yet entered into force)).

Immunity for heads of States, heads of government and foreign ministers 4.30

Sovereign immunity extends to protect certain individuals based on their official role within the State or the fact that they are carrying out official State business: Arrest Warrant case. There are two types of

immunity: ratione personae and ratione materiae. For both types of immunity a State may waive the individual’s protection and allow them to be prosecuted.

Immunity ratione personae 4.31

Immunity ratione personae is based on the position which a particular individual holds within a government and is designed to enable them to perform State duties without threat of foreign legal action. It extends to both official and private conduct but only lasts as long as the individual is in office.

Immunity ratione materiae 4.32

Immunity ratione materiae is based on the official nature of the conduct which a person carries out. It applies only for acts conducted in an official capacity, not private acts, and extends even beyond the person’s term in office.

[page 61]

Table 4.1

Application of immunity

Official conduct Private conduct

Case Summary

In office Not in office Ratione personae & ratione Ratione materiae materiae Ratione personae No immunity

R V BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE; EX PARTE PINOCHET UGARTE (NO 3) [2000] 1 AC 147 HOUSE OF LORDS FACTS: General Augusto Pinochet was the leader of Chile from 1973–1990, where he ruled as head of a military junta. He was accused of widespread violations of human rights, including torture and murder. A Spanish magistrate had issued a warrant for Pinochet’s arrest on charges relating to the torture and murder of Spanish citizens. He was arrested in London when he travelled there for medical treatment in 1998. General Pinochet argued that, as the former Head of State of Chile, he was immune from prosecution. The matter went to the House of Lords. ISSUE: Were General Pinochet’s acts official in nature, so as to grant him immunity ratione materiae? DECISION: As General Pinochet was no longer in office, he would only be entitled to immunity for acts which were official in nature. The Court found that once the Convention Against Torture had entered into force for the UK in 1988 acts of torture and other inhuman and degrading treatment and punishment attracted universal jurisdiction and could no longer be considered ‘official’ conduct. They could not therefore be protected by immunity ratione materiae. General Pinochet could be prosecuted for any unlawful acts committed after 1988.

LEGAL PERSONALITY OF NON-STATE ACTORS 4.33

While States are the primary entities possessing international legal personality, it is possible for non-State actors to enjoy some form of personality. This is particularly

[page 62]

the case for international organisations which have been created by States. Individuals also enjoy limited personality in international law.

International organisations 4.34

Where an international organisation has been created by States it may enjoy international legal personality. The extent of its capacity will depend on the instruments by which it is established and the way that it is engaged with by States, but may include such personality as is explicitly granted to it in its constituent instruments or is necessary for it to perform its duties: Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. See also the Convention on the Privileges and Immunities of the United Nations, (opened for signature 13 February 1946, 1 UNTS 15, entered into force 17 September 1946).

Individuals 4.35

Individuals enjoy limited personality within international law. Individuals are granted human rights under numerous treaties, and in some cases are empowered to bring claims to international tribunals in the event that those rights have been violated: see the discussion in Chapter 6, especially 6.47–6.49. Individuals can also be held personally responsible for violations of international law, especially international criminal law and international humanitarian law: see Chapter 7. Where an individual is unable to bring a claim directly, the State of nationality may be able to bring a claim on their behalf through the exercise of diplomatic protection: see 10.38.

Transnational corporations

4.36

Corporations only have limited international legal personality: Texaco Overseas Petroleum Company and California Asiatic Oil Company v The Government of the Libyan Arab Republic (1977) 53 ILR 389 at 457–8.

Non-governmental organisations 4.37

The limited international legal personality of non-governmental organisations

includes

some

participatory

opportunities

international conferences and before some international tribunals.

at

[page 63]

CHAPTER 5

International Environmental Law

[page 64]

INTRODUCTION 5.1

International environmental law (IEL) regulates the protection of nature. Like any other legal system, IEL can be conceived as a formal system based on primary and secondary substantive rules (primary obligation (1) – breach – secondary obligation (sanction (2)), complemented by procedural rules (secondary obligations on: sources (1) – adjudication (2) – enforcement (3)): Ottavio Quirico, A Purely Formal Theory of Law – The Deontic Network, EUI MWP 2009/11, .

5.2

According to the Stockholm Declaration of the United Nations (UN) Conference on the Human Environment (UNCHE, A/CONF 48/14/Rev 1 (1972)) the environment encompasses ‘the natural resources of the earth, including the air, water, land, flora and fauna’: Principle 2; see also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 (Nuclear Weapons) at 241, [29].

5.3

Protecting the environment basically entails limiting its degradation, and thus pollution. For instance, Principle 7 of the Stockholm Declaration defines marine ‘pollution’ as the introduction of ‘substances that are liable to create hazards to human health, to harm

living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea’. Since pollution may be transboundary, international regulation is crucial to prevent and limit it.

IEL SOURCES 5.4

International environmental law developed in a fragmented way in the twentieth century. In 1941, adjudicating upon the Trail Smelter dispute between the United States of America (US) and Canada, an Arbitral Tribunal established the basic ‘no-harm’ rule that a State is obliged to prevent trans-boundary pollution. Building upon this premise and the concept of sustainable development, more principles, which rank in between soft and hard law, were established in the second half of the twentieth century.

5.5

A timeline of the essential milestones in the development of IEL is as follows: 1947 Trail Smelter Arbitration –

‘No-harm’ rule → obligation to prevent trans-boundary pollution.

1972 UNCHE –

Report recommending a UN permanent institutional arrangement for environmental protection

–

Action Plan (109 Recommendations)

–

Stockholm Declaration (26 Principles)

→

Environmental

protection

and

socio-economic

development.

[page 65]

1972 UN General Assembly Resolution 2997 (XXVII) →

UN Environment Programme (UNEP).

1987 Report ‘Our Common Future’ (UN World Commission on Environment and Development, Brundtland Report) →

Sustainable development = poverty reduction + environmental protection.

1992

Conference

on

Environment

and

Development

(UNCED), Rio de Janeiro, Brazil –

Rio Declaration (27 Principles)

–

Action Plan (Agenda 21)

–

Statement on the protection of forests →

Environmental development

protection, +

new

principles

socio-economic (common

but

differentiated responsibility). UNFCCC and Convention on Biological Diversity (CBD) opened for signature →

Model for subsequent multilateral environmental agreements (MEAs) on environmental goods of

‘common concern of mankind’. 2000 Millennium Declaration (UN GA Resolution 55/22). 2002 Johannesburg Declaration on Sustainable Development. 2012 UN Rio+20 Conference on Sustainable Development – 5.6

Report (‘The Future We Want’).

A general framework for primary and secondary international rules on environmental protection is currently outlined in the International Law Commission (ILC) Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (DAPTHHA, UN Doc A/56/10, (2001)) and Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities (DPALTHAHA, UN Doc A/61/10, (2006)).

5.7

Around 200 international conventions regulate particular IEL areas.

GENERAL IEL PRINCIPLES 5.8

Under international law, States are basically obliged to respect and protect the natural environment: eg, Nuclear Tests Examination Request (New Zealand) [1995] ICJ Rep 288 at [64]. This proposition gives rise to several substantive and procedural principles.

Substantive principles 5.9

No-harm rule: The ‘no-harm’ rule was first outlined in the Trail Smelter case.

[page 66] Case Summary

TRAIL SMELTER (USA v CANADA) Award of 16 April 1938 and 11 March 1941 (1950) III RIAA 1905 FACTS: Since 1896, smoke from a smelter of lead and zinc operated by the Consolidated Mining and Smelting Company (COMINCO) in Trail, British Columbia, Canada, had caused damage to crops, livestock, timber, and structures, across the border in Washington State, US. Civil proceedings in the US and Canada were unlikely to be successful, particularly in light of the absence of long-harm precedents. Pressured by a grassroots movement of farmers (Citizens’ Protective Association), the US State Department worked with Canada to have the matter referred to the International Joint Commission, established in 1909 under the Boundary Waters Treaty. The Commission awarded compensation, but did not prohibit harm resulting from continuing emissions. In 1935, the governments of the US and Canada agreed to submit the case to an Arbitral Tribunal. ISSUE: Do States have an obligation not to cause trans-boundary environmental harm? DECISION: The Arbitral Tribunal delivered two decisions. In the first decision of 16 April 1938, the Tribunal concluded that harm had occurred between 1932 and 1937 and awarded the US an indemnity of $78,000 as the ‘complete and final indemnity and compensation for all damage’. In the second decision of 11 March 1941, the Tribunal held that ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein’. Consequently, a mitigation regime was imposed on Canada to reduce the effects of the smelter’s operation to an acceptable level. The Tribunal thus determined for the first time that States bear international responsibility for trans-national pollution.

5.10

Subsequent case law has confirmed the no-harm principle: eg, Nuclear Tests (Australia v France; New Zealand v France) (Interim Measures) [1973] ICJ Rep 99 at [30], 135 [31].

In Lac Lanoux (France v Spain) (1957) 12 RIAA 281 (Lac Lanoux), adjudicating upon a controversy on the diversion of a lake an Arbitral Tribunal held that States

[page 67]

must cooperate with one another in mitigating trans-boundary environmental pollution: see also Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 (Pulp Mills) and DAPTHHA Arts 3 ff. 5.11

The ‘no-harm’ rule was eventually embedded in Principle 21 of the Stockholm Declaration: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

5.12

The no-harm principle has acquired customary status in international law: Nuclear Weapons at 241–2 [30]. However, if environmental harm is diffuse, as in the case of greenhouse gas (GHG) emissions, it is difficult to apportion responsibility: OASIACHR, Letter to SheilaWatt Cloutier and Others, Petition (Inuit) No P-1413-05 (2006).

5.13

Sustainable development: According to the concept of ‘sustainable development’,

economic

progress

must

be

compatible

with

environmental protection. Therefore, State sovereignty over natural resources is limited by the necessity of using them rationally: Gabčíkovo-Nagymaros Project [1997] ICJ Rep 7 at 78 [140]. This tenet is embedded in Principles 3–5 and 8 of the Rio Declaration on Environment and Development (Rio Declaration): UN Doc A/CONF 151/26 (1992). Principle 3 provides: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

5.14

Sustainable development entails: Intra- and inter-generational equity (Nuclear Weapons at 241 [29]). Common but differentiated responsibility (Rio Declaration Principle 7). Cooperative interstate transfer of technology and scientific knowledge (Rio Declaration Principle 9). Consensual integration of environmental protection into economic decisions (Rio Declaration Principle 12). The 2011 OECD Guidelines for Multinational Enterprises (Chapter VI) extend these principles to private corporations.

[page 68]

5.15

Precautionary principle: According to the precautionary principle, lack of full scientific certainty about severe environmental harm cannot prevent protective action. Rio Declaration Principle 15 provides: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

5.16

The precautionary principle helps to define the boundaries of responsibility for environmental harm: see DAPTHHA Art 3. Yet, the extent of the notion is controversial. In Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan (Provisional Measures) [1999] 38 ILM 1624 (Southern Bluefin Tuna), ITLOS required cessation of a Japan’s experimental fishing programme for southern bluefin tuna based on ‘prudence and caution’: at [77]; see also Nuclear Tests (Australia v France) at 105 [29], (New Zealand v France) at 141 [30] and MOX Plant (Ireland v United Kingdom) (ITLOS, Request for Provisional Measures, Order of 3 December 2001) (MOX Plant case) 1 at [84]. The concept has been embedded in several MEAs and other environmental instruments, for instance, in the Preamble to the Vienna Convention for the Protection of the Ozone Layer (adopted and opened for signature 22 March 1985, 1513 UNTS 323, entered into force 22 September 1988) and in Principle 6.5 of the Food and

Agriculture Organization of the United Nations (FAO) Code of Conduct for Responsible Fisheries (1995). 5.17

Although it is possible to assume that the precautionary principle has customary status in international law, courts have not expressed their views on this issue: see EC-Hormones (Report of the Appellate Body, 16 January 1998) 1 at 47 [123].

5.18

Polluter pays: The ‘polluter pays’ principle complements the ‘no-harm’ rule. It provides that an entity causing pollution is responsible for environmental damage and must give compensation. This

rule

was

first

mentioned

in

the

OECD

Council

Recommendation on the Guiding Principles concerning International Economic Aspects of Environmental Policies (1972), and is now embedded in the Rio Declaration, whose Principle 16 provides: National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into

[page 69]

account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

5.19

Responsibility under the polluter pays principle must be attributed not only to States, but also to private legal persons. In fact, pollution is

often produced by private entities and States are indirectly responsible for not taking pre-emptive measures. This discloses the possibility of applying strict liability as a threshold for responsibility, based upon the due diligence standard: Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) [1949] ICJ Rep 4 at 18; Canada–US Settlement of Gut Dam Claims [1968] 8 ILM 118; Amoco Cadiz (7th Cir, 1992) 954 F2d 1279; IIL Resolution on Responsibility

and

Liability

under

International

Law

for

Environmental Damage (1997) Arts 3 and 5. 5.20

Protecting the environment in time of war: Within the context of international humanitarian law (IHL), it is controversial whether the wanton destruction of the environment, unjustified by military necessity, is an established general principle of international law: UN General Assembly Resolution 47/37, 25 November 1992; Nuclear Weapons at 242 [31]–[32].

Procedural principles 5.21

Environmental impact assessment: Procedurally, States are obliged to carry out environmental impact assessments (EIAs), before adopting effective environmental legislation: Rio Declaration Principles 11 and 17; DAPTHHA Art 7. This obligation was initially recognised domestically by the US National Environmental Policy Act 1969 and is developing as a customary international law rule.

Principle 17 of the Rio Declaration provides: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

5.22

Environmental impact assessments have a pre-emptive function. They aim to ensure the weighing of negative and positive impacts of proposed regulation on the environment at early stages of the rulemaking process, minimising pollution. Article 2(3) of the Convention on Environmental Impact Assessment in a Transboundary Context ((Espoo Convention) adopted and opened for signature 25 February 1991, 1989 UNTS 309, entered into force 10 September 1997) compels States to abide by this principle transnationally, establishing a connection with the ‘no-harm’ rule.

[page 70]

5.23

Access to information, judicial remedies and participation in decisionmaking: States must provide people and non-State actors with access to information, judicial remedies and participation in decision-making processes in environmental matters: Rio Declaration, Preamble and Principle 10. Particular attention must be paid to indigenous peoples: eg, Rio Declaration Principle 22; Nagoya Protocol to the CBD (adopted 29 October 2010, opened for signature 2 February 2011,

entered into force 12 October 2014) Art 6. 5.24

The right of access to information is fundamental at both the international and domestic levels. Principle 10 of the Rio Declaration provides: Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

5.25

The principle of public participation has been spelled out by the UN Economic Commission for Europe (UNECE) in the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ((Aarhus Convention) adopted and opened for signature 25 June 1998, 2161 UNTS 447, entered into force 30 October 2001). In 2005, the second Meeting of the Parties to the Aahrus Convention adopted the Almaty Guidelines, which aim to enhance public participation at the international level. This principle facilitates private environmental standard-setting, in addition to public regulation, through instruments such as the

Business Charter for Sustainable Development, adopted by the International Chamber of Commerce in 1991.

PARTICULAR IEL REGIMES 5.26

Multilateral environmental agreements (MEAs) are mostly based on a conventionannex or convention-protocol framework, facilitating adaptation to rapid technological progress.

5.27

Institutionally, environmental treaty regimes usually include an administrative secretariat, specialised bodies, and periodic conferences of the States Parties (COPs), which simplify adoption of subsidiary rules.

[page 71]

5.28

Obligations arising out of MEAs bind not only States, but also private persons, as a result of the implementation of international obligations into national legal systems.

Soils and forests 5.29

Soils: Only a few international rules protect soils. The most relevant instrument is the UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 17 June 1994, opened for signature 14 October 1994, 1954 UNTS 3, entered into force 26 December 1996),

which urges countries to prevent land degradation in arid, semi-arid, and dry sub-humid areas. The Convention operates along the lines of sustainable development, aiming at eradicating poverty in developing countries. 5.30

Forests: Although the annual rate of forest loss worldwide is worrying, there is no comprehensive international regulation protecting tropical, temperate, and boreal forests. Backbone regulation relating to the protection of forests includes: International Tropical Timber Agreement (first adopted 18 November 1983, opened for signature 26 January 1994, 1393 UNTS 671, entered into force 1 April 1985) →

Sustainable management of tropical timber producing forests

→

International Tropical Timber Organization (ITTO).

Forest Principles (1992) →

Model regulation for management, conservation, and rehabilitation of forests.

UN General Assembly Resolution 62/98, including a NonLegally Binding Instrument on All Types of Forests (2008) →

State responsibility and cooperation for the sustainable management of all types of forests.

Water

5.31

Watercourses: International watercourses have often been a reason for disputes between neighbouring States, as in Lake Lanoux and Pulp Mills. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses ((Watercourses Convention) adopted and opened for signature 21 May 1997, entered into force 17 August 2014) is the main regulatory instrument in the field. It embeds the principle of equitable and reasonable utilisation of international watercourses (Art 5), including both surface water and

[page 72]

groundwater (Art 2(a)), within the context of the obligation not to cause trans-boundary environmental harm (Art 7). Based upon the ecosystem approach, the Watercourses Convention prescribes measures for preventing, reducing and controlling pollution of international watercourses, and preserving the marine environment: Arts 20–23. 5.32

A more specific framework for groundwater protection is provided by the ILC’s Draft Articles on Transboundary Aquifers, embedded in UN General Assembly Resolution 63/124. The Draft Articles adapt the principles of the Watercourses Convention to groundwater and provide a model for conventional regulation.

5.33

Marine environment: A general framework for the protection of the marine environment is established under Part XII of the UN Convention on the Law of the Sea ((UNCLOS) adopted and opened for signature 10 December 1982, 1833 UNTS 3, entered into force 16 November 1994). UNCLOS covers the following matters: Global and regional cooperation. Technical assistance and monitoring. Environmental assessment. Prevention, reduction and control of marine environmental pollution from sources such as land, dumping and vessels. Responsibility and liability.

5.34

Under UNCLOS, although they have the sovereign right to exploit their natural resources, States must abide by a general obligation to protect and preserve the marine environment: Arts 192–196. More specifically, States must prevent and control pollution from landbased sources, the seabed, artificial islands, dumping and the atmosphere: Arts 207–208, 210 and 212. This concerns areas within and beyond State jurisdiction: Art 209. With respect to the latter, the concept of ‘common heritage of mankind’ prevents appropriation and facilitates environmental protection: Art 136. In particular, coastal States and the flag State regulate pollution control from vessels that are in their territorial waters, included in their registry, or flying their

flags, consistently with international rules and standards: Art 211. For more on the law of the sea, see Chapter 9. 5.35

Further conventions regulate specific sources of pollution, including: The Convention for the Prevention of Pollution of the Sea by Oil (adopted and opened for signature 12 May 1954, 327 UNTS 3, entered into force 26 July 1958).

[page 73]

The Convention for the Prevention of Pollution from Ships (adopted and opened for signature 2 November 1973, 1340 UNTS 184, entered into force 2 October 1983).

Air 5.36

In the 1960s, the phenomenon of ‘acid rain’ raised public awareness as to the long-distance effects of air pollution. The Convention on Long-Range Transboundary Air Pollution ((LRTAP Convention) adopted and opened for signature 13 November 1979, 1302 UNTS 217, entered into force 16 March 1983) responded to this problem, aiming to gradually reduce air pollution. The LRTAP Convention has progressively been integrated by eight protocols, governing pollutants, such as sulphur and heavy

metals, and effects of air pollution, such as acidification and tropospheric ozone formation. 5.37

In the early 1970s, the discovery that chlorofluorocarbon gases (‘CFCs’) combine with solar radiation and deplete ozone molecules prompted the adoption of the Vienna Convention for the Protection of the Ozone Layer, which currently enjoys almost universal membership. The Vienna Convention provides for: Interstate cooperation by means of systemic observations, research and information exchange on the effects of human activities on the ozone layer. Adoption of measures against activities likely to negatively affect ozone molecules. The Vienna Convention is complemented by the Montreal Protocol on Substances that Deplete the Ozone Layer (adopted and opened for signature 16 September 1987, 1522 UNTS 3, entered into force 1 January 1989), which focuses on the reduction and phasingout of production and consumption of specific ozone-depleting substances, according to the principle of common but differentiated responsibility

5.38

The release of anthropogenic GHGs in the atmosphere is a critical cause of rising temperatures and climate change. Acknowledged by

the international community in the 1980s, this phenomenon prompted the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) on 9 May 1992 (opened for signature 4 June 1992, 1771 UNTS 107). The UNFCCC subsequently entered into force on 21 March 1994 and key aspects are: Stabilisation of atmospheric temperature increase below 2 degrees centigrade. Common but differentiated responsibility.

[page 74]

5.39

The UNFCCC is complemented by the Kyoto Protocol, which was adopted by the Third Session of the Conference of the Parties (COP3) to the UNFCCC on 11 December 1997 (opened for signature 16 March 1998, 2303 UNTS 1) and entered into force on 16 February 2005. The Kyoto Protocol provides for: Binding state GHG reduction targets (2008–2020). Cost-effective implementation via ‘flexible mechanisms’ →

Joint implementation of reduction commitments

→

International emission trading

→

Clean development mechanisms.

5.40

Australia became a party to the Kyoto Protocol in December 2007 and signed up to the second commitment phase in 2012, with relatively generous reduction targets in light of its heavy reliance on coal.

5.41

A new universal climate change agreement is to be negotiated at COP21 in Paris in December 2015 and is expected to enter into force in 2020.

Polar Regions 5.42

Since they are covered by ice caps, the Polar Regions have specific environmental features, which are crucial for the natural balance of the planet.

5.43

The

Arctic

Region

is

not

protected

by

a

comprehensive

environmental regime, but only by specific environmental treaties, such as the multilateral Agreement on the Conservation of Polar Bears (adopted and opened for signature 15 November 1973, entered into force 26 May 1976) between Canada, Denmark, Norway, Russia and the US. 5.44

The Antarctic continent is covered by a specific treaty system – The Antarctic Treaty System (ATS) – in which Australia plays a leading role. The ATS encompasses a set of conventions regulating the peaceful utilisation of Antarctica, freedom of scientific investigation, territorial claims and protection of the Antarctic environment:

Antarctic Treaty (adopted and opened for signature 1 December 1959, 402 UNTS 71, entered into force 23 June 1961). Convention for the Conservation of Antarctic Seals ((CCAS) adopted and opened for signature 1 June 1972, 1080 UNTS 176, entered into force 11 March 1978). Convention for the Conservation of Antarctic Marine and Living Resources ((CCAMLR) adopted 20 May 1980, opened for signature 1 August 1980, 1329 UNTS 48, entered into force 7 April 1982).

[page 75]

Convention on the Regulation of Antarctic Mineral Resource Activities ((CRAMRA) adopted 2 June 1988, opened for signature 25 November 1988, 27 ILM 859, not in force). Protocol to the Antarctic Treaty on Environmental Protection (adopted and opened for signature 4 October 1991, opened for signature 30 ILM 1455, entered into force 14 January 1998).

Outer space 5.45

Article IX of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies ((Outer Space Treaty) adopted 19 December 1966, opened for signature 27 January 1967, 610 UNTS

205, entered into force 10 October 1967) aims to prevent the contamination of the outer space and further effects on the earth’s environment. Article IX specifies that, in pursuing studies and exploration of the outer space, States avoid not only its ‘harmful contamination’, but also ‘adverse changes in the environment of the earth’. 5.46

Under Art 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, opened for signature 18 December 1979, 1363 UNTS 3, entered into force 11 July 1984), the Moon’s environment is also protected as ‘common heritage of mankind’.

5.47

Along the same lines, UN General Assembly Resolution 47/68 of 14 December 1992 aims to ensure the environmentally non-harmful use of nuclear power in outer space.

Flora and fauna 5.48

Core treaties protecting flora and fauna have been adopted since the 1970s: Convention on Wetlands of International Importance especially as Waterfowl Habitat (adopted and opened for signature 2 February 1971, 996 UNTS 245, entered into force 21 December 1975). Convention on International Trade in Endangered Species of

Wild Fauna and Flora ((CITES) adopted and opened for signature 3 March 1973, 993 UNTS 243, entered into force 1 July 1975). Convention on the Conservation of Migratory Species of Wild Animals (adopted and opened for signature 23 June 1979, 1651 UNTS 333, entered into force 1 November 1983). Watercourses Convention (1997) –

Protection of living resources: Arts 22 and 23.

[page 76]

5.49

Marine living resources are protected according to the following scheme: UNCLOS →

Cooperative framework for proper conservation and management of living resources in the EEZs (Arts 61–68) and the high seas (Arts 116–120).

Protection of particular species: –

Convention for the Regulation of Whaling (adopted and open for signature 2 December 1946, 161 UNTS 72, entered into force 10 November 1948)

–

Fish Stock Agreement (adopted 4 August 1995, opened for signature 4 December 1955, 2167 UNTS 3, entered into

force 1 December 2001). 5.50

The most relevant instrument in the field is the CBD (adopted 22 May 1992, opened for signature 5 June 1992, 1760 UNTS 79, entered into force 29 December 1993), which aims at the preservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.

5.51

On 29 January 2000, CBD COP5 adopted the Cartagena Protocol on Biosafety (opened for signature 15 May 2000, 2226 UNTS 208, entered into force 11 September 2003), preventing biodiversity risks posed by the trans-boundary transfer, handling and use of living modified organisms, based on an advanced informed agreement procedure.

Natural heritage 5.52

The World Heritage Convention (adopted and opened for signature 16 November 1972, 1037 UNTS 151, entered into force 15 December 1975) provides for protection of cultural and natural heritage sites registered in the World Heritage List, including natural features, sites and geological and physiographical formations of outstanding universal value.

Case Summary

COMMONWEALTH v TASMANIA (1983) 158 CLR 1; 46 ALR 625; [1983] HCA 21 HIGH COURT OF AUSTRALIA FACTS: Since 1974, Australia has been a party to the World Heritage Convention. In 1975 and 1983, the Commonwealth respectively passed the National Parks and Wildlife Conservation Act and the World Heritage Properties Conservation Act, thus overriding the Tasmanian Gordon River Hydro-Electric Power Development Act 1982. [page 77] As a result, the construction of a dam in the protected Tasmanian Wilderness World Heritage Area was prohibited. Since the Tasmanian Government challenged the validity of the Commonwealth measures, the case was brought to the High Court of Australia. ISSUE: Despite the absence of a specific head of power, can the Commonwealth legislate in environmental matters? DECISION: By a four to three majority, the High Court of Australia held, inter alia, that s 51(xxix) of the Commonwealth Constitution (External Affairs) confers upon the Commonwealth Parliament the capacity to pass legislation implementing the World Heritage Convention, including legislation covering environmental matters, notwithstanding the absence of a specific constitutional head of power on the protection of nature. Indeed, the general character of s 51(xxix) allows the Commonwealth to override the autonomy of federated States and regulate a wide range of issues, including the environment, if this is necessary to fulfil international commitments. See further Chapter 3 at 3.23 ff.

Finance, trade and energy 5.53

According to the principle of sustainable development, which is progressively embedded in bilateral and multilateral investment agreements (eg, North American Free Trade Agreement (NAFTA) adopted and opened for signature 17 December 1992, 32 ILM 289, entered into force 1 January 1994) Art 1114: see Chapter 8), the

World Bank and the International Monetary Fund (IMF) seek to implement environmental concerns in competitive international investment. Within this framework, the Global Environmental Facility is the largest multilateral source of funds for environmental protection and serves as a financial mechanism for MEAs such as the UNFCCC and the CBD. 5.54

In the context of the World Trade Organization (WTO), Art XX(b) of the General Agreement on Tariffs and Trade ((GATT) adopted and opened for signature 30 October 1947, 55 UNTS 194, entered into force 1 January 1948) allows non-arbitrary and nondiscriminatory environmental derogations from trade freedom to protect ‘human, animal or plant life or health’ and ‘exhaustible natural resources’; which might be interpreted as a tool for environmental protection: Shrimp-Turtle (Appellate Body, 12 October 1998) 1, 67 [168]; Rio Declaration Principle 12 (see further Chapter 8).

[page 78]

5.55

The Energy Charter Treaty ((ECT) adopted and opened for signature 17 December 1994, 2080 UNTS 95, entered into force 16 April 1998) is the main international regulatory instrument in the field of energy, which is crucial to environmental preservation. Building upon the Energy Charter (1991), the ECT not only

regulates international energy trade and investment, but also commits States

parties

to

minimise

internal

and

external

negative

environmental impacts of energy production and consumption. This objective is fostered via the implementation of the main IEL principles, including EIAs, public participation and the polluter pays principle: Art 19. The ECT is complemented by the Protocol on Energy Efficiency and Related Environmental Aspects (adopted and opened for signature 17 December 1994, 2081 UNTS 3, entered into force 16 April 1998).

Hazardous waste and substances 5.56

Hazardous waste and substances are the result of modern production processes and pose a serious threat to the environment. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) addresses the problem of dumping of hazardous waste from developed countries in developing countries owing to the tightening of environmental regulation in the place of origin: Basel Convention (adopted 22 March 1989, opened for signature 23 March 1989, 1673 UNTS 126, entered into force 5 May 1992) →

Prior informed consent procedure

→

1994 COP amendments (not yet entered into force) →

prohibition of export of hazardous waste.

Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal (adopted 10 December 1999, opened for signature 6 March 2000, not yet entered into force). Other major regulation includes: Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (adopted 5 September 1997, opened for signature 29 September 1997, 2153 UNTS 303, entered into force 18 June 2001).

[page 79]

Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (adopted 10 September 1998, opened for signature 11 September 1998, 2244 UNTS 337, entered into force 24 February 2004). 2001 Convention on Persistent Organic Pollutants (adopted 22 May 2001, opened for signature 23 May 2001, 2256 UNTS 119, entered into force 17 May 2004).

Armed conflicts 5.57

The UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques ((ENMOD) adopted 10 December 1976, opened for signature 18 May 1977, 1108 UNTS 151, entered into force 5 October 1978) protects the environment within the context of IHL.

5.58

Rules protecting the environment are also embedded in different IHL conventions. For instance, Art 35(3) of Additional Protocol I to the Geneva Conventions (see Chapter 7) prohibits methods or means of warfare that are intended or may be expected to cause ‘widespread, long-term and severe damage to the natural environment’.

COMPLIANCE PROCEDURES General mechanisms 5.59

Private legal persons can be sued before domestic jurisdictions for breaches of environmental obligations, based on private international law rules, in particular: (a) the place where damage occurs; (b) the place where harmful activity takes place; and (c) the domicile of the defendant.

5.60

According to Principle 6 DPALTHAHA, States must provide administrative and judicial domestic bodies with necessary jurisdiction over trans-boundary damage caused by hazardous activities located within their territory or under their control. Prompt, adequate and

effective remedies must also be available. The Stockholm and Rio Declarations further dispose that States cooperate in defining liability and compensation schemes for the adverse effects of environmental damage: respectively Principles 7 and 13. 5.61

Determining compensation for environmental damage is a complex task, as shown by the Patmos case.

[page 80] Case Summary

MINISTRY OF THE MERCHANT MARINE AND OF THE INTERIOR v PATMOS SHIPPING CORP AND OTHERS (APPEAL COURT, MESSINA, 30 MARCH 1989) [1990] 5 RIVISTA GIURIDICA DELL’AMBIENTE 527 FACTS: In this case, Italy claimed compensation from the International Oil Pollution Compensation Fund for oil spills from the Greek Patmos tanker off the coast of Calabria. This claim was rejected because of a lack of evidence supporting the quantification of damage, which prompted the Italian Government to bring an action in its national courts. ISSUE: What is the scope of the notion of ‘pollution damage’? DECISION: Whereas the court of first instance of Messina found no proof of financial loss, the Appeal Court took a broad stand on the concept of ‘pollution damage’, including immaterial values and the reduced possibility of exploiting the environment. As a consequence, the owner of the tanker was held liable for damaging the Italian marine environment, assuming that a lack of data quantifying environmental damage does not prevent the award of compensation. The case was finally settled out of court.

5.62

States can react to breaches of environmental obligations via invocation of responsibility, and therefore cessation, reparation and countermeasures. This is, for instance, the case where unilateral trade measures are taken against imported products or services breaching environmental standards: Shrimp-Turtle; Air Transport Association of America v Secretary of State for Energy and Climate Change (CJEU, Case C-366/10, 21 December 2011); see further Chapter 8 and Ottavio

Quirico,

‘Primary

Sovereign

Rights

or

Secondary

Environmental Duties? Critical International Law Issues Raised by the Extraterritorial Application of the EU Emission Trading System in the Aviation Sector’, in Christine Bakker and Francesco Francioni (eds), The EU, the US and Global Climate Governance, Ashgate, 2014, at 143. 5.63

Alternatively, States can resort to either mediation and conciliation or judicial means for dispute settlement. This often spawns a plurality of actions, jeopardising adjudication, as in the MOX Plant case between Ireland and the United Kingdom (UK).

[page 81] Case Summary

MOX PLANT (IRELAND V UK); DISPUTE CONCERNING ACCESS TO INFORMATION UNDER ARTICLE 9 OF THE OSPAR CONVENTION (IRELAND V UK); COMMISSION OF THE EUROPEAN COMMUNITIES v IRELAND

THE EUROPEAN COMMUNITIES v IRELAND (ITLOS, Request for Provisional Measures, Order of 3 December 2001; OSPAR Arbitral Tribunal, Final Award of 2 June 2003; ECJ, C459-06, Judgment of 30 May 2006; UNCLOS Arbitral Tribunal, Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, Order No 3 of 24 June 2003, and Termination of Proceedings, Order No 6 of 6 June 2008) (MOX PLANT case) FACTS: This dispute concerned radioactive waste pollution in the Irish Sea caused by the building and operation of a UK nuclear fuel reprocessing facility (MOX Plant) at Sellafield. Ireland contested this project and requested access to information held by the UK about the plant, in order to protect the marine environment of the Irish Sea. Both Ireland and the UK are parties to UNCLOS and the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention, adopted 22 September 1992, 2354 UNTS 67, entered into force 25 March 1998). Therefore, in 2001 Ireland commenced dispute settlement proceedings before an Arbitral Tribunal established under Annex VII UNCLOS, claiming that the UK breached relevant obligations to protect the marine environment. Furthermore, Ireland brought an action before an Arbitral Tribunal constituted under Art 21 OSPAR Convention, on the ground that the UK had failed to provide access to relevant information regarding the commissioning of the plant. On 25 October 2001, pending the constitution of the Arbitral Tribunal under Annex VII UNCLOS, Ireland initiated proceedings against the UK before the International Tribunal for the Law of the Sea (ITLOS) under Art 287 UNCLOS, requesting the adoption of provisional measures. On 30 October 2003, the European Commission, which in 1997 had given the UK positive advice on various aspects of commissioning the MOX Plant (EC Official Journal C 68, 5 March 1997, 4), brought an action against Ireland in the European Court of Justice (ECJ). The Commission claimed that by submitting the MOX Plant dispute to a non-EC Tribunal under a mixed EU-States agreement (UNCLOS) Ireland violated the exclusive jurisdiction of the ECJ and the duty of cooperation under Arts 10 and 292 TEC, and 192 and 193 Euratom (Action Brought on 30 October 2003 by the Commission of the European Communities against Ireland (ECJ, Case C-459/03, OJ 10/1/2004)). [page 82] ISSUE: Actioning substantive and procedural environmental rights before multiple jurisdictions (fragmentation of jurisdictional action). DECISIONS: ITLOS prescribed provisional measures in December 2001, ordering the

parties to cooperate and devise regulation preventing pollution from the MOX Plant (MOX Plant (Ireland v UK), Request for Provisional Measures, Order of 3 December 2001). The OSPAR Arbitral Tribunal dismissed Ireland’s claims, based on a restrictive interpretation of the right of access to information, excluding economic analysis relevant to environmental decision-making. The Tribunal thus held that UK reports on the MOX Plant which Ireland had requested to disclose could not be considered information on the state of or likely to affect a maritime area under Art 9(2) OSPAR Convention (Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v UK), Final Award, 2 June 2003). In light of the European Commission’s proceedings against Ireland, the UNCLOS Arbitral Tribunal decided to suspend proceedings on jurisdiction and merits. The Tribunal also affirmed the original provisional measures decided by ITLOS, but rejected Ireland’s additional requests: MOX Plant Case (Ireland v UK), Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, Order No 3, 24 June 2003. On 30 May 2006, the ECJ held that Ireland had breached the obligation to cooperate under mixed EU-States agreements, such as UNCLOS, for not informing and consulting appropriate EC institutions before instituting proceeding against the UK: Commission v Ireland (ECJ, C-459-06, 30 May 2006). Subsequent to the judgment of the ECJ, in 2007 Ireland withdrew its claim against the UK before the UNCLOS Arbitral Tribunal, and in 2008 proceedings were officially terminated: MOX Plant (Ireland v UK), Termination of Proceedings, Order No 6, 6 June 2008.

5.64

When environmental accidents involve clear facts, such as the Chernobyl nuclear leak and Sandoz chemical spill, injured States prefer to seek negotiation rather than judicial settlement.

Treaty-based mechanisms 5.65

Non-compliance with international environmental obligations is often due to structural deficits, not to wilful inconsistent behaviour. Therefore, since the 1987

[page 83]

Montreal Protocol to the Convention for the Protection of the Ozone Layer, MEAs tend to address non-compliance via ‘active treaty management’, based on prevention and cooperative enforcement. 5.66

Treaty management entails assessment of non-compliance by means of fact-finding by specific treaty bodies and State reporting. This is followed by advice and assistance to the non-complying party, as well as possible sanctions: see the Kyoto Protocol Reference Manual on Accounting of Emissions and Assigned Amount, 2008. In addition, and arguably subsequent to compliance assistance, MEAs also provide for dispute settlement proceedings: eg, UNFCCC Art 14.

ENVIRONMENT AND HUMAN RIGHTS 5.67

Principle 1 of the Stockholm Declaration provides a possible basis for a human rights-oriented interpretation of environmental protection: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

This stand is possible based on two different approaches. First, existing first and second generation human rights can be interpreted

as a means to provide environmental protection: see López Ostra v Spain (ECHR, Case No 16798/90, 9 December 1994). Secondly, the right to a sustainable environment can be envisaged as a developing third generation human right: eg, Art 24 of the 1981 Banjul Charter (see further Chapter 6 and Ottavio Quirico and Mouloud Boumghar (eds), Climate Change and Human Rights: an International and Comparative Law Perspective, Routledge, 2015).

[page 85]

CHAPTER 6

International Human Rights Law

[page 86]

INTRODUCTION 6.1

A significant area of international law is human rights law. This body of law guarantees the fundamental rights of all people and imposes obligations on States to uphold those rights. Within the United Nations (UN) regime, human rights law is comprised of a number of treaties and supported by a system of committees and other agencies which supervise and enforce its implementation. In addition to the UN human rights framework there are also a number of regional human rights frameworks. Many of the rights contained in international human rights law are also recognised in customary law.

WHAT ARE HUMAN RIGHTS? 6.2

Human rights are the fundamental rights that all people are entitled to by virtue of their being human. They are those things which every person needs in order to live a life of dignity and liberty. They include the rights to: life, liberty and security of the person; freedom from slavery and torture; freedom of expression, conscience and religion; an adequate standard of living;

freedom of movement; participation in democratic government; employment and fair working conditions; an education; freedom of movement, assembly and association.

Some fundamental concepts 6.3

Modern human rights law has its foundation in the notion that respect for inherent human dignity necessitates that certain rights be protected. It draws on philosophical theories of rights going back as far as St Thomas Aquinas and was developed by people like Thomas Hobbes, John Locke and other scholars of the Enlightenment period, who believed that individuals possessed certain inherent rights which must be respected by the State.

6.4

Given that human rights flow from humans’ inherent dignity, a number of fundamental concepts can be identified which underpin human rights law.

Universality 6.5

Because human rights are derived from the fact of being human, it follows that human rights are universal. That is, all people possess human rights, regardless of

[page 87]

their nationality, race, age, religion, gender or sexual orientation or any other factor. Consequently, human rights law incorporates principles of non-discrimination and equality so that rights cannot be denied to certain individuals or groups on the basis of their nationality, race, religion or other attribute.

Inalienability 6.6

Another consequence of the fact that human rights are inherent to being human is that they are inalienable. That is, human rights cannot be given or taken away. As noted below at 6.9, it is possible for the exercise of human rights to be limited or restricted in certain circumstances, but the rights themselves continue to exist.

Interdependence 6.7

All human rights are considered to be mutually supportive and interdependent. This means that the fulfilment of one right helps to promote the enjoyment of all other rights. Similarly, the breach of one right often incorporates or leads to other breaches of human rights.

Example

INTERDEPENDENCE OF RIGHTS: STANDARD OF LIVING, EDUCATION AND THE RIGHT TO VOTE All people have the right to an education. However, children who live in poverty may be required to work to feed their family or to walk long distances to collect water. This is likely to interfere with their ability to attend school. Human rights law guarantees the right to an adequate standard of living, which includes the rights to adequate food and water. If this right is being fulfilled then children will be able to attend school regularly, as their basic needs for food and water will be satisfied. Governments are obliged to ensure that all their citizens are able to enjoy these rights, but corruption or discrimination within the government might mean that some people’s needs are not being met. Human rights law guarantees the right of all people to vote in democratic elections. If people are able to exercise this right fully then they can effect change within the government and achieve better outcomes. However, people who are struggling to meet their daily needs in terms of food and water may have little ability to participate meaningfully in democratic processes, and people who have been denied the right to an education are disadvantaged when it comes to participating in political activity. [page 88] The right to vote, the right to an adequate standard of living and the right to education are therefore interdependent. A breach of one right can lead to breaches of the other rights, while protection of each right helps to support the full enjoyment of the others.

Rights and corresponding duties 6.8

A fundamental concept of human rights is that rights are accompanied by corresponding duties. For example, the right to freedom of expression implies an obligation not to impose censorship, while the right to an education implies an obligation to provide schools and teachers. Under human rights law, States are usually the principal duty-bearers, and they are obliged to ensure that the human

rights of their citizens are protected and fulfilled. Individuals also bear duties to respect the human rights of others.

Limitations on rights 6.9

The duty to respect the rights of others is related to the idea that human rights are not absolute, but may be limited in certain circumstances. In general terms, people have a right to exercise their human rights up until the point where they begin to interfere with other people’s ability to enjoy their rights. States can also pass laws which would restrict human rights where such restrictions are necessary to achieve a legitimate purpose, such as public health or safety.

Example

LIMITATIONS OF HUMAN RIGHTS AND CRIMINAL LAW Human rights law protects the right of all people to life, liberty and freedom of movement: International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976) (ICCPR) Arts 6, 9 and 12. However, States commonly impose penalties for breaches of their criminal laws which appear to conflict with these rights, such as imprisonment or even the death penalty. The interference with human rights is justified on the grounds that it is necessary to protect the public from criminal acts. However, people who are imprisoned are still entitled to other rights including the right to a fair trial (ICCPR Art 14), freedom from torture and other cruel, inhuman or degrading treatment (ICCPR Art 7) and the right to be treated humanely while imprisoned (ICCPR Art 10). [page 89] With particular respect to the death penalty, Art 6 of the ICCPR (the right to life) acknowledges that some States may not yet have abolished the death penalty but specifies that it may only be imposed by a court and cannot be imposed upon anyone under the age of 18. States which have ratified the Second Optional Protocol to the ICCPR (opened for signature 15 December 1989, 1642 UNTS 414, entered into force 11 July 1991) undertake to abolish the death penalty entirely within their jurisdictions.

6.10

Some human rights may never be limited or restricted. These are rights which are classified as jus cogens rights (see 2.50) and they include the right to be free from slavery and torture. Also, international human rights treaties specify a number of conditions for limiting certain rights and provide that some rights are nonderogable: see 6.28–6.29.

Individual and collective rights 6.11

Most human rights are formulated as belonging to each person individually. However, there are some human rights which are collective rights, that is, the rights are held by a group of people, not

the individuals who comprise that group. 6.12

An example of a collective right is the right to self-determination. Self-determination is defined as the right of all peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’: ICCPR Art 1 and International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 993 UNTS 3, entered into force 3 January, 1976) (ICESCR) Art 1. While there is no definition of a ‘people’ in either treaty, it is generally understood that it is a group which shares a common identity and can be defined by reference to objective characteristics like shared language, cultural traditions or ethnicity.

6.13

Another example of a collective right is the right to development. While not found in any of the human rights treaties, it is found in the Declaration on the Right to Development (GA Res 41/128, UN GAOR 41st sess, 97th plen mtg, UN Doc A/RES/41/128 (4 December 1986)) which provides that all peoples are entitled economic, social, cultural and political development: Art 1.

6.14

The United Nations Declaration on the Rights of Indigenous Peoples (GA Res 61/295, UN GAOR 61st sess, 107th plen mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP)) outlines a number of collective rights which are enjoyed by indigenous peoples, including the rights to practice their cultural traditions and customs (Art 11),

spiritual and religious traditions (Art 12) and languages (Art 13).

[page 90]

While some of the other rights in the UNDRIP are described as individual rights, they are rights which are enjoyed collectively by indigenous communities in order to protect their cultural, social, religious, historical and linguistic traditions.

Positive and negative rights 6.15

Human rights are sometimes sorted into positive and negative rights. Positive rights are entitlements to something – for example, the right to education or the right to an adequate standard of living. These rights require some positive action, usually by the government, to ensure that every individual can enjoy them.

6.16

Negative rights are liberties or freedoms, for example, freedom of religion, expression or opinion, or freedom from torture. They require that duty-bearers (again, usually States) refrain from doing anything which would interfere with a person’s ability to enjoy these freedoms.

6.17

Human rights are also sometimes categorised into three generations of rights: first, second and third. First generation rights typically include civil and political rights, while second generation rights are economic, social and cultural rights. The third generation of rights is

usually said to include collective or group rights such as the right to self-determination (above 6.12) and the right to development (above 6.13). Given the interdependence of human rights (above 6.7) this categorisation is not particularly useful concept as it suggests a hierarchy of rights which is not reflected in practice.

Alternative theories of human rights 6.18

The idea that human rights are universal and interdependent has been challenged by some who argue that human rights are culturally relative. That is, rights should not all be applied uniformly in all countries, but should take into account cultural, economic and other differences. For some, these arguments are based on the fact that not all cultures have traditionally valued the same human rights which are emphasised in the Western liberal tradition. Others take a more pragmatic position, pointing out that poorer countries may be unable to comply with their human rights obligations. Some human rights treaties acknowledge the difficulties faced by developing States in fulfilling their obligations. Nonetheless, the issues of cultural relativism and the question of how developing States should prioritise action on human rights remain challenging.

THE UN HUMAN RIGHTS FRAMEWORK 6.19

The protection of human rights is a key objective of the UN and the development of legal protections for human rights was seen as an essential part of ensuring that the atrocities of World War II would

not occur again. In 1946 the UN

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Commission on Human Rights (UNCHR) was given the task of defining basic rights and freedoms which would be protected under international law. Under the chairmanship of Eleanor Roosevelt, the UNCHR set about drafting a document which would form the cornerstone of international human rights law. This was the Universal Declaration of Human Rights (GA Res 217A, UN GAOR 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR)).

The Universal Declaration of Human Rights 6.20

The UDHR is based on the fundamental principle that respect for the inherent dignity of every person is the foundation of peace and justice. It recognises that all human beings are born free and equal and that everyone is entitled to rights without discrimination: Arts 1 and 2. In this way the UDHR confirms the fundamental principles of universality, equality and non-discrimination.

6.21

The UDHR lists a range of rights to which all people are entitled. These include the rights to life, liberty and security of the person (Art 3); freedom from slavery (Art 4) and torture (Art 5); freedom of religion (Art 18), movement (Art 13), expression (Art 19) and assembly (Art 20); rights to education (Art 26), work (Art 23) and an

adequate standard of living (Art 25), to name a few. 6.22

As well as these rights, the UDHR also recognises that all persons have duties to the community so that all people can achieve the full enjoyment of their rights: Art 29. While States are able to limit the exercise of the rights contained in the UDHR, such limitations must be imposed by law and must be solely for the purpose of securing respect for other rights and freedoms or meeting the requirements of ‘morality, public order and the general welfare in a democratic society’: Art 29.

6.23

As it is a UN General Assembly resolution, the UDHR is soft law and is not directly binding on States: see 2.64, 2.65 and 2.71. However, many of its provisions have been recognised as customary international law: Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 1. Further, much of the content of the UDHR has been reiterated in other human rights treaties, so that its principles are now widely applicable in international law.

United Nations human rights agencies 6.24

The UNCHR which drafted the UDHR (above 6.19) was replaced in 2006 by the Human Rights Council (GA Res 60/251, UNGAOR 60th sess, 72nd plen mtg, Agenda Items 46 and 120, UN Doc A/Res/60/251 (15 March 2006)). The Human Rights Council is an intergovernmental body with 47 member States, elected by the

[page 92]

UN General Assembly. Its objective is to strengthen the protection and promotion of human rights around the world. There are also a number of committees established under specific human rights treaties: see below at 6.45–6.49. These various human rights agencies are organised under the Office of the High Commissioner of Human Rights (OHCHR).

United Nations human rights treaties 6.25

Following the adoption of the UDHR, the UNCHR continued working towards the creation of legally binding human rights instruments. The major treaties are set out in the table below.

Table 6.1: Treaty

Major UN human rights treaties

Abbreviation Opened for signature International Covenant ICCPR 16 December on Civil and Political 1966 Rights International Covenant ICESCR 16 December on Economic, Social 1966 and Cultural Rights International ICERD 21 December Convention on the 1965 Elimination of All Forms of Racial Discrimination Convention on the CEDAW 18 December Elimination of All Forms 1979 of Discrimination Against Women Convention on the CRC 20 November Rights of the Child 1989

Entered into force 23 March 1976

Reference 999 UNTS 171

3 January 1976

993 UNTS 3

4 January 1969

660 UNTS 195

3 September 1981

1249 UNTS 13

2 September 1990

1577 UNTS 3

Convention Against CAT Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the CRPD Rights of Persons with Disabilities International CMW Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International CED Convention for the Protection of All Persons from Enforced Disappearances

10 December 1984

26 June 1987

1465 UNTS 85

13 December 2006

3 May 2008

2515 UNTS 3

18 December 1990

1 July 2003

2220 UNTS 3

6 February 2007 23 December 2010

2715 UNTS 3

[page 93]

The International Covenant on Civil and Political Rights 6.26

The ICCPR guarantees a range of rights which are classified as civil and political rights. These include rights to life (Art 6), liberty and security of the person (Art 9), freedom from torture and slavery (Arts 7 and 8), freedom of expression, thought and religion (Arts 18 and 19), freedom of movement and assembly (Arts 12 and 21), and the right to a fair trial (Art 14). Most of the rights in the ICCPR would be classified as negative rights: see 6.16.

6.27

A State party to the ICCPR is obliged to: 1.

respect and ensure the rights of all individuals within its territory

or subject to its jurisdiction, without discrimination (Art 2(1) and Art 3); 2.

adopt such laws as may be necessary to give effect to the rights contained in the ICCPR (Art 2(2));

3.

ensure that any person whose rights or freedoms are violated has access to an effective remedy (Art 2).

6.28

Under Art 4, States may derogate from their obligations under the ICCPR in times of national emergency provided that: 1.

the emergency must ‘threaten the life of the nation’;

2.

the emergency must be officially proclaimed;

3.

the State may only derogate from its obligations to the extent required by the situation.

The State may not derogate from its obligations under Arts 6 (the right to life), 7 (freedom from torture and cruel, inhuman or degrading treatment), 8(1) and (2) (protection from slavery and servitude), 11 (no imprisonment for inability to fulfil a contractual obligation), 15 (no criminal penalty for an act which was not an offence at the time it was committed), 16 (right to legal personality), or 18 (freedom of thought, conscience and religion). These nonderogable rights include those which would be classified as jus cogens rights (above 6.10) and other rights the suspension of which cannot be justified even in times of emergency.

6.29

As well as this general clause in Art 4, the ICCPR allows for specific rights to be limited under certain conditions.

Example

LIMITATIONS ON FREEDOM OF ASSOCIATION The ICCPR guarantees that everyone has the right to freedom of association with others, including the right to join trade unions: Art 22(1). [page 94] Article 22(2) allows for this right to be limited provided that the restrictions are: 1.

prescribed by law;

2.

necessary in the interests of national security, public safety, public health or the protection of the rights and freedoms of others.

A restriction on freedom of association which does not comply with these conditions will be in breach of the ICCPR.

6.30

As well as guaranteeing a range of substantive rights, the ICCPR also established a dedicated committee to oversee State compliance, known as the Human Rights Committee (the Committee) (not to be confused with the UN Commission on Human Rights (UNCHR) above at 6.19 or the Human Rights Council above at 6.24). The Committee consists of 18 independent experts nominated and elected by States parties: Arts 28–30. States are required to submit a report to the Committee within one year of their becoming parties and then whenever the Committee requests (usually every four years): Art 40. The Committee also publishes commentary on specific rights, known

as General Comments, which provide more detail about the content of rights and what States are required to do to uphold their obligations. The role of the Human Rights Committee in enforcing the ICCPR will be discussed in more detail below at 6.45–6.49.

The International Covenant on Economic, Social and Cultural Rights 6.31

The ICESCR guarantees a range of rights, including rights relating to employment (Arts 6 and 7), social security (Art 9), education (Art 13), health (Art 12), food and water (Art 11). Most of the rights contained in the ICESCR would be classified as positive rights: see above at 6.15.

6.32

The ICESCR allows for a more progressive approach to States’ obligations than the ICCPR. This is in recognition of the fact that, as positive rights, the guarantees contained in the ICESCR tend to require a greater investment of resources and may not be immediately achievable. Article 2 sets out the of States’ obligations under the ICESCR and contains a number of key features: 1.

States undertake to take steps both ‘individually and through international assistance and cooperation’. This acknowledges the fact that States might require help in achieving their obligations.

2.

A State is obliged to take steps ‘to the maximum of its available resources’. This indicates that the expectations for each State will vary according to their capacity, but that all States should be

making their best efforts.

[page 95]

3.

States are to act ‘with a view to achieving progressively the full realisation of the rights recognised in the Covenant’. This recognises that it may take States some time to fulfil all their obligations, but States are nonetheless required to be making progress.

6.33

The ICESCR provides that States parties will submit reports to the Economic and Social Council (ECOSOC) on the measures they have adopted to fulfil their obligations under the Covenant. ECOSOC is one of the principal organs of the UN and has a broad responsibility for coordinating the UN’s responses on economic, social and environmental issues. In 1985 ECOSOC created the Committee on Economic, Social and Cultural Rights and gave it responsibility for supervising compliance with the ICESCR (Economic and Social Council Resolution 1985/17, 22nd plen mtg, (28 May 1985)). The structure of the Committee on Economic, Social and Cultural Rights is similar to the Human Rights Committee, and it also produces General Comments on specific rights. Its enforcement functions are discussed in more detail below at 6.45–6.49.

Example

THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE RIGHT TO AN ADEQUATE STANDARD OF LIVING Article 11 of the ICESCR guarantees the right to an adequate standard of living including adequate food, clothing and housing, and continuous improvement of living conditions. The Committee on Economic, Social and Cultural Rights has issued a number of General Comments which interpret the meaning of Art 11. In particular General Comment 15 (UN Doc E/C.12/2002/11 (2002)) explains that the wording of Art11 is not exhaustive, and that water should be considered an essential element of ensuring an adequate standard of living: at 3. General Comment 15 explains what the right to water entails, outlining that States must ensure that adequate supplies of water are available, that it be accessible (both physically and economically) and that it be of a quality which is suitable for personal and domestic use: at 12. Given the extent of poverty in the world, it may take some States many years to achieve full enjoyment of the right to an adequate standard of living for all their citizens. This is acknowledged in the general obligation in Art 2 of the ICESCR to [page 96] take steps towards the progressive realisation of economic, social and cultural rights. However, General Comment 15 makes clear that there are some elements of States’ obligations which apply immediately. With respect to the right to water, the Committee explains that States have an immediate obligation to ensure that access to water is not restricted in a discriminatory fashion: ICESCR Art 2(2); General Comment 15 at 17. Further, while States are entitled to work progressively towards the full enjoyment of the right to water, there is an immediate obligation to begin taking steps.

International Convention on the Elimination of All Forms of Racial Discrimination 6.34

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) reinforces the fundamental principle of human rights law that all people are entitled to the full complement

of rights, regardless of race, ethnicity, nationality or any other factor. 6.35

Under the ICERD, States undertake to: condemn racial discrimination and take steps to eliminate it in all forms (Art 2), particularly racial segregation and apartheid (Art 3); guarantee equality before the law and in the enjoyment of all human rights (Art 5); ensure that any person whose rights are violated by an act of racial discrimination is entitled to an effective remedy (Art 6); implement measures designed to combat prejudice, such as the provision of education and information (Art 7).

Convention on the Elimination of All Forms of Discrimination Against Women 6.36

States parties to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) agree to condemn discrimination against women and to take steps to ensure that all women can enjoy the full range of human rights on an equal basis with men. Under the CEDAW, States are obliged to: ensure that women have equal opportunities to participate in the political and public life of the country (Arts 7 and 8); take steps to eliminate discrimination in education (Art 10),

employment (Art 11), healthcare (Art 12) and other areas of economic and social life (Art 13); accord to women equality before the law (Art 15) and in matters relating to marriage and family relations (Art 16).

[page 97]

Convention on the Rights of the Child 6.37

The Convention on the Rights of the Child (CRC) is founded on the principle that, in all decisions which affect children, States must ensure that the best interests of the child are a primary consideration: Art 3(1). States are obliged to guarantee such protection and care as is necessary for the child’s well-being (Arts 3(2) and 19) while respecting the rights and responsibilities of parents, guardians and extended family (Art 5) and the ability of children to express opinions on matters which affect them, where they are old enough to do so (Art 12).

6.38

In addition to these general principles, the CRC also stresses the rights of children to education (Arts 28–29) and to engage in play and recreational activities (Art 31), as well as to the full range of other human rights.

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The Convention Against Torture and Other Cruel, Inhuman, or 6.39

Degrading Treatment or Punishment (CAT) prohibits any act which causes severe pain or suffering (physical or mental) in order to obtain information or otherwise punish, intimidate or coerce a person, where that act is carried out or instigated by a public official: Art 1.

6.40

States parties to the CAT are obliged to prevent torture within their jurisdiction (Art 2) and to criminalise torture (Art 4). Article 2(2) makes it clear that no exceptional circumstances will ever justify torture, confirming the jus cogens nature of the prohibition on torture as outlined in 2.50. States are also obliged not to return a person to a place where there are substantial grounds for believing he or she would be in danger of being subjected to torture: Art 3.

Convention on the Rights of Persons with Disabilities 6.41

The purpose of the Convention on the Rights of Persons with Disabilities (CRPD) is to ensure that persons with disabilities enjoy the full range of rights and freedoms and that their inherent dignity is respected: Art 1. It emphasises that the fundamental principles of human rights, including non-discrimination, autonomy and respect for inherent dignity, must be upheld by States in all dealings with persons with disabilities: Arts 3, 5. States’ obligations include: Abolishing discrimination against persons with disabilities (Art 4(1)(a)). Raising awareness in society and fostering respect for the rights

and dignity of persons with disabilities (Art 8). Ensuring persons with disabilities are able to live independently and participate fully in all aspects of life (Arts 9 and 19).

[page 98]

Ensuring persons with disabilities enjoy equal recognition before the law (Art 12) and equal access to justice (Art 13). Protecting the rights of persons with disabilities to be free from acts of exploitation, violence or abuse (Art 16) or cruel, inhuman or degrading treatment (Art 15) and to enjoy personal mobility (Art 20) and freedom of expression (Art 21), among other rights.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 6.42

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) guarantees to all migrant workers and their families the full range of human rights which are guaranteed to all people. In particular, it provides that States may not discriminate against them on the basis of their status or State of origin: Art 7. With respect to conditions of work and remuneration, the CMW specifies that migrant workers are entitled to treatment which is no less favourable than that which is enjoyed by nationals: Art 25.

International Convention for the Protection of All Persons from Enforced Disappearances 6.43

The purpose of the International Convention for the Protection of All Persons from Enforced Disappearances (CED) is expressed in Art 1, which states that: ‘No one shall be subjected to enforced disappearance’. States parties to the CED are obliged to investigate acts of forced disappearance (Art 3) and to ensure such acts constitute criminal offences under their law (Art 4).

6.44

A Committee on Enforced Disappearances was created (Art 26) which has functions in line with those below at 6.45–6.49. In addition to these powers, the Committee is also empowered to receive urgent requests from relatives or representatives of a disappeared person that the person be sought and found: Art 30.

UN human rights treaty bodies 6.45

The obligations contained in the human rights treaties are enforced by specific committees created in each treaty, sometimes referred to as ‘treaty bodies’. As noted above at 6.30 and 6.33, the ICCPR and ICESCR establish committees which are responsible for supervising States’ compliance with their obligations under each Covenant. Similar bodies are also created under the other major human rights treaties. The committees have two key functions: to receive periodic reports from States (6.46) and to hear complaints of breaches (6.47–6.49 below), although for some committees this power has not yet entered into force.

[page 99]

Table 6.2:

UN human rights treaty bodies

Committee

Created in

Human Rights Committee

ICCPR Art 28

Committee on Economic, ECOSOC Res Social and Cultural Rights 1985/17 Committee Against Torture CAT Art 17 Committee on the Elimination CEDAW Art 17 of Discrimination Against Women Committee on the Rights of CRPD Art 34 Persons with Disabilities Committee on the Elimination ICERD Art 8 of Racial Discrimination Committee on Enforced CED Art 26 Disappearances Committee on the Rights of CRC Art 42 the Child Committee on Migrant Workers

CMW Art 72

Source of power to hear individual complaints First Optional Protocol to the ICCPR Optional Protocol to the ICESCR CAT Art 22 Optional Protocol to CEDAW

In force? Yes

Optional Protocol to the CRPD ICERD Art 14

Yes

CED Art 31

Yes

Yes Yes Yes

Yes

Optional Protocol to the CRC No on a Communications Procedure CMW Art 77 No

Periodic reporting 6.46

States are required to submit periodic reports to the relevant treaty body to demonstrate the steps they are taking to fulfil their obligations under each treaty. Most committees adopt a similar approach to the Human Rights Committee (above at 6.30) and the Committee on Economic, Social and Cultural Rights (above at 6.33) whereby States are required to submit a report within the first year after becoming a party to the treaty and then usually every four years.

The committees consider the reports and make recommendations to each State as to how they can improve their compliance. In addition to reporting to specific treaty bodies, States also report to the Human Rights Council under the Universal Periodic Review process, under which the Council reviews the overall human rights record of all UN member States.

Complaints 6.47

The second key enforcement mechanism within the UN human rights framework is the ability for treaty bodies to hear complaints about alleged violations. Most treaties include a provision for one State to bring a complaint against another State if it is alleged that State is in breach of its obligations: ICCPR Arts 41–43; ICERD Arts 11–13; CAT Art 21; CMW Art 74; CED Art 32; Optional Protocol to

[page 100]

ICESCR Art 10; Optional Protocol to CRC Art 12 (not yet in force). However, these mechanisms have never been used. 6.48

Human rights treaty bodies are also able, in certain circumstances, to hear complaints from individuals who allege that their rights have been violated. Currently seven human rights bodies have the ability to hear individual complaints, while for the two other committees these powers have not yet entered into force (see Table 6.2 above).

6.49

In order for an individual complaint to be admissible: 1.

The complaint must be against a State which is a party to the treaty in question.

2.

The State must have accepted the Committee’s competence to hear such complaints, either through becoming a party to an Optional Protocol (for the ICCPR, CEDAW, CRPD, ICESCR and CRC) or making a declaration of acceptance (for ICERD, CAT, CED and CMW).

3.

The complainant must have exhausted their available local remedies.

Case Summary

HORVATH V AUSTRALIA COMMUNICATION NO. 1885/2009 HUMAN RIGHTS COMMITTEE FACTS: The complaint related to an allegation of police misconduct in the form of physical violence and the subsequent investigation by the police force in Victoria, Australia. A number of police officers had visited the complainant’s home at night following an earlier incident that day. One officer kicked in the door and assaulted the complainant, resulting in a broken nose, a chipped tooth and other facial injuries. The police officers handcuffed her and took her the police station, where she was held for several hours before being taken to hospital. The complainant brought an action for damages against the officers and the State of Victoria. The judge at first instance found both the individual officers and the State of Victoria liable. On appeal, the liability of the State of Victoria was overturned on the basis that the officers had acted independently and not in their capacity as police officers. [page 101] The complainant then filed a complaint with the Ethical Standards Department of

Victoria Police but it was dismissed for lack of evidence. The complainant was not permitted to give evidence in that inquiry. ISSUE: Did the conduct of the officers violate the complainant’s human rights under the ICCPR, including Art 7 (freedom from cruel, inhuman or degrading treatment), Art 9 (freedom from arbitrary arrest and detention) and Art 17 (the right to privacy)? Further, did the State party (Australia) violate Art 2 (obligation to provide an effective remedy in the event of a breach)? DECISION: The Human Rights Committee upheld the complaint, finding that the State had breached its obligations under Art 2 with respect to other breaches of Arts 7, 9 and 17. It found that the level of force used against the complainant had been unnecessary and excessive, that the police had breached her right to privacy by entering her home without a warrant and her detention was not justified. The Committee further found that the legal remedies available to the complainant had been ineffective and constituted a breach of Art 2. (Human Rights Committee, Views: Communication No 1885/2009, 110th sess, UN Doc CCPR/C/110/D/1885/2009 (27 March 2014) (Horvath v Australia)

REGIONAL HUMAN RIGHTS FRAMEWORKS 6.50

In addition to the UN human rights framework there are also a number of regional human rights frameworks. Within Europe, the European Convention on Human Rights (opened for signature 4 November 1950, 213 UNTS 221, entered into force 3 September 1953) guarantees similar rights to those contained in the ICCPR and is enforced by the European Court of Human Rights.

6.51

A similar framework exists within the Organization of American States, where the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights supervise and enforce the American Convention on Human Rights (opened for signature 22 November 1969, 1144 UNTS 123, entered into force 18 July 1978).

Human rights treaties also exist in Africa (African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58, entered into force 21 October 1986) and the Arab League (Arab Charter on Human Rights, opened for signature 22 May 2004, entered into force 15 March 2008). In Asia, the Association of South East Asian Nations (ASEAN) has adopted a Declaration of Human Rights (ASEAN Human Rights Declaration, adopted 18 November 2012) which, while not a binding treaty, sets out important human rights objectives for States in the region.

[page 102]

NATIONAL IMPLEMENTATION OF HUMAN RIGHTS 6.52

Like all international law, the extent to which human rights treaties apply at the domestic level depends on each State’s approach to implementation: see 1.47–1.50. For some States, human rights treaties are directly incorporated into their national legal system. For most, however, human rights treaties are implemented through national legislation, for example by establishing bodies which will investigate complaints of human rights breaches or by assessing the human rights implications of proposed legislation. Many countries also provide human rights guarantees in their constitutions, sometimes in the form of a Bill of Rights. In these countries, any law which violates fundamental rights and freedoms would be

unconstitutional and would usually be overturned.

[page 103]

CHAPTER 7

International Humanitarian Law and International Criminal Law

[page 104]

INTRODUCTION 7.1

International humanitarian law (IHL) is a regulatory sub-system within the context of the international law of war. International criminal law (ICL) applies to the international law of both peace and war, and is largely rooted in IHL. Not only do IHL and ICL interact, but they also share a similar structure, essentially based on secondary substantive norms (breaches of primary obligations (1) → secondary obligations (sanctions (2)): Ottavio Quirico, A Purely Formal Theory of Law — The Deontic Network, EUI MWP 2009/11, particularly pp 5-6 and 13-17, .

INTERNATIONAL HUMANITARIAN LAW 7.2

IHL is a set of rules that governs the conduct of armed conflicts (jus in bello), in particular, by limiting the use of force. It is a sub-set of the international law of armed conflicts, which also regulates engagement in hostilities and neutrality (jus ad bellum: Chapter 11).

7.3

The modern origins of IHL are found in the second half of the nineteenth century, more specifically, in the Geneva Convention on

the Protection of War Victims (adopted and opened for signature 22 August 1864, eneterd into force 22 June 1865), which laid down, inter alia, the foundations of the Red Cross. This original core subsequently developed into a more extensive body of rules. In particular, on 29 July 1899 and 18 October 1907 two Peace Conferences held at the Hague led to adopting a set of Conventions

focusing

mostly

on

warfare

methods

((Hague

Conventions) opened for signature 29 July 1899 and 18 October 1907, entered into force 29 July 1899 and 26 January 1910). After World War II, the Geneva Conventions and their Additional Protocols were adopted, focusing mostly on the protection of victims of armed conflicts. The Geneva Conventions and Additional Protocols are as follows: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted and opened for signature 12 August 1949, 75 UNTS 31, entered into force 21 October 1950) – Bans unjustified violence towards members of the enemy armed forces hors de combat, that is, those no longer taking part in hostilities. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted and opened

[page 105]

for signature 12 August 1949, 75 UNTS 85, entered into force 21 October 1950) — Extends obligations under Geneva Convention I to sea warfare. Convention (III) relative to the Treatment of Prisoners of War (adopted and opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950) — Protects members of armed forces who have fallen into the hands of the enemy. Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted and opened for signature 12 August 1949, 75 UNTS 287, entered into force 21 October 1950) — Protects the basic rights of civilian persons in the hands of the adverse party. Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted and opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978) — Develops rules on warfare and extends them to asymmetric conflicts and colonial wars. Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (adopted and opened for 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978) —

Codifies rules applicable to non-international armed conflicts, building on Article 3 Common to the Geneva Conventions. Protocol (III) Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (adopted and opened for signature 8 December 2005, 45 ILM 558, entered into force 14 January 2007) — Establishes the red crystal, a distinctive emblem enhancing protection for medical personnel and members of the Red Cross and Red Crescent Movement. 7.4

Conventional IHL norms integrate and codify general law, that is, customary international law and general principles of law: see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14 at 114, [218]; Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226 at 256, [75]; International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, ICRC and Cambridge University Press, 2009.

7.5

IHL applies to both international and non-international armed conflicts, regardless of whether or not a foreign State is involved. However, in the latter case, IHL rules are less detailed, mainly including Common Art 3 to the Geneva Conventions and Additional Protocol I, in addition to customary

[page 106]

law: International Criminal Tribunal for the former Yugoslavia (ICTY), Tadić (ICTY IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995) at [96]–[127]. Furthermore, IHL does not apply to internal disturbances and tensions, such as riots or isolated and sporadic use of force, which do not amount to organised and protracted armed violence: International Criminal Tribunal for Rwanda (ICTR), Akayesu (ICTR-96-4, 2 September 1998) [620]; Tadić at [70]. 7.6

In summary, the basic rules of IHL, as promoted by the ICRC, are as follows: The parties to an armed conflict must distinguish civilians from combatants. Only military objectives can be attacked, not civilians and their property. Respect is due for people who no longer take part in hostilities, their life and physical and mental integrity. Weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering are forbidden. A party to a conflict must collect and care for wounded and sick people that are in its power. It is obligatory to spare medical personnel and medical establishments, transports and equipment.

Captured combatants and civilians who are under the authority of the adverse party are entitled to respect for their lives, dignity, personal rights, convictions and basic judicial guarantees. See ICRC, Essential Rules of International Humanitarian Law (2002) . 7.7

Because of its structure, which is based on the prohibition of serious breaches of fundamental obligations in conflict situations, IHL overlaps with human rights law (see Chapter 6) and has criminal implications: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 at 178, [106]. Responsibility for the enforcement of IHL rests primarily with national authorities (see 7.39).

INTERNATIONAL CRIMINAL LAW 7.8

Serious breaches of fundamental international and/or domestic obligations, mostly having a universal scope, give rise to criminal responsibility. International criminal law governs the substance of these crimes and/or the ensuing procedural mechanisms.

[page 107]

International criminal law operates at the supranational and 7.9

transnational levels, with respect to both substantive and procedural law. These regulatory layers interact: more specifically, supranational criminal law complements transnational criminal law.

Sources 7.10

The classical sources of international law listed under Art 38 of the Statute of the International Court of Justice (ICJ Statute) also apply to international criminal law. However, in accordance with the principle of legality (nullum crimen, nulla poena sine praevia lege poenali) treaties are the main sources of transnational and supranational criminal law, followed by custom and general principles of law. This hierarchy is codified in Art 21 of the Statute of the International Criminal Court ((Rome or ICC Statute) adopted and opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1 July 2002), which is lex specialis with respect to Art 38 of the ICJ Statute. Article 21 (Applicable Law) of the ICC Statute provides: 1.

The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c)

Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law

and

internationally

recognized

norms

and

standards. 2.

The Court may apply principles and rules of law as interpreted in its previous decisions.

3.

The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender […] age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Supranational crimes 7.11

Supranational criminal law directly regulates international crimes, including penalties.

[page 108]

Core supranational crimes are crimes against humanity, war crimes, 7.12

genocide and aggression. These violations are usually part of systemic action and involve several offenders and victims; they are therefore criminalised at the supranational level because of their extreme gravity.

7.13

In light of their systemic nature, core supranational crimes overlap with State responsibility, which nevertheless has no criminal characterisation in international law. This standpoint contrasts with the approach taken to the matter before World War II, when several projects were proposed coordinating individual and State criminal responsibility under international law: Lord Phillimore, ‘An International Criminal Court and the Resolution of the Committee of Jurists’ (1922-23) 3 British Yearbook of International Law 79.

7.14

The main steps and instruments outlining core supranational crimes are: Charter of the International Military Tribunal at Nuremberg, London Agreement for the Establishment of an International Military Tribunal ((IMT Charter) adopted and entered into force 8 August 1945, 82 UNTS 279). Charter of the International Military Tribunal for the Far East, ((IMTFE Charter) adopted and entered into force 19 January 1946, TIAS No 1587). Convention on the Prevention and Punishment of the Crime of

Genocide ((Genocide Convention) adopted and opened for signature 9 December 1948, 78 UNTS 277, entered into force 12 January 1951). United Nations (UN) General Assembly Resolution 95(I) (1st Sess, 55th plen mtg, 11 December 1946), Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal (Nuremberg Principles). UN General Assembly Resolution 3314 (XXIX) on the Definition of Aggression (29th sess, 2319th plen mtg, 14 December 1974). ICTY Statute, Security Council Resolution 827 (1993), UN SCOR 48th sess, 3217th mtg. ICTR Statute, Security Council Resolution 955 (1994), UN SCOR 49th sess, 3453rd mtg. Draft Code of Crimes against the Peace and Security of Mankind (first draft 1951) (1996) II Yearbook of the International Law Commission (pt ii) 15–56 (Draft Code of Crimes). Statute of the International Criminal Court (ICC Statute) (first draft 1951, 1998). 7.15

The ICC Statute is the achievement of a long history. It partly codifies customary international law and partly fosters its progressive development.

[page 109]

The Statute outlines a general theory for genocide, crimes against humanity, war crimes and aggression committed by natural persons, individually or jointly under complicity: Art 25.

Elements of supranational crimes 7.16

As to mens rea, attribution of criminal responsibility takes place based on intent, whereas negligence only applies residually: ICC Statute Art 30 (see Ottavio Quirico, ‘La théorie de la négligence dans le Statut de la Cour pénale internationale’ (2009) 113(2) RGDIP 333).

7.17

With regard to actus reus, justifications and excuses include mental disease, intoxication, minority, mistake of fact, mistake of law, selfdefence, duress, necessity, superior orders and prescriptions of law: ICC Statute Arts 26 and 31–33.

Crimes against humanity 7.18

Crimes against humanity are grave human rights violations (inhumane acts), such as murder, torture, extermination, enslavement, and persecution (actus reus). These acts must be committed as part of a generalised or systemic attack, not as isolated or sporadic acts (Kunarac (ICTY-96-23, 12 June 2002) at [100]), although such a requirement is not explicitly embedded in the ICTY Statute. The ICTR Statute further specifies

that the attack must be based on national, political, ethnic, racial, or religious grounds. According to the ICC and ICTY Statutes, the attack must be directed against civilian population: Martić (ICTY-9511-A, 8 October 2008) at [313]. With regard to mens rea, knowledge of the attack is required, although offenders do not need to share its purpose: ICC Statute Art 7; Draft Code of Crimes Art 18; ICTY Statute Art 5; ICTR Statute Art 3; Nuremberg Principle 6(c); IMTFE Charter Art 5(3); IMT Charter Art 6(c); Kunarac (ICTY-96-23, 12 June 2002) at [103]. 7.19

The ICC and ICTR Statutes, the Draft Code of Crimes and the Nuremberg Principles also provide for the perpetration of crimes against humanity outside war contexts.

War crimes 7.20

War crimes are serious violations of humanitarian law, and thus mainly relate to the prohibition of certain warfare methods and attacks on protected persons or property. Examples of war crimes include wilful killing, torture, employing poisoned weapons, attacking civilians and pillaging property.

7.21

The different instruments regulating war crimes internationally are basically consistent with each other, although the matter has progressively evolved.

[page 110]

Article 8 of the ICC Statute, ICTR Statute Art 4, ICTY Statute Art 3, Draft Code of Crimes Art 20, Nuremberg Principle 6(b), IMT Charter Art 6(b) and IMTFE Charter Art 5(b) rely upon the Hague Conventions and the Geneva Conventions. For instance, Art 3 of the ICTY Statute simply refers to ‘violations of laws and customs of war’. Article 4 of the ICTR Statute mentions ‘violations of Art 3 Common to the Geneva Conventions and of Additional Protocol II’. The Draft Code of Crimes requires the commission of war crimes as part of a systemic attack, but this element is not mentioned in other instruments and is only a non-compulsory component under the ICC Statute. 7.22

Although they are primarily concerned with international armed conflicts, war crimes are progressively considered part of noninternational armed conflicts: Kunarac (ICTY, IT-96-23, 22 February 2001) at [401] ff.

Genocide 7.23

Genocide includes acts such as killing members of a group or inflicting grievous bodily harm upon them, committed with the ‘intent to destroy, in whole or in part, a national, ethnic, racial, or religious group’. Hence, genocide overlaps with crimes against humanity and war crimes as to actus reus, but differs from them as to

mens rea, because of the persecutory intent (dolus specialis). 7.24

This definition is based on Art 2 of the 1948 Genocide Convention and has been consistently embedded in subsequent international criminal law instruments: ICC Statute Art 6, ICTR Statute Art 2; ICTY Statute Art 4; Draft Code of Crimes Art 17.

7.25

Specific genocidal intent may be inferred from the context of the perpetration of acts systemically directed against a group of people: Akayesu, (ICTR, 95-1-T, 2 September 1998) at [523]; Kayishema and Ruzindana (ICTR, 95-1, 21 May 1999) at [93]; Jelisić (ICTY, IT-9510, 5 July 2001) at [48].

7.26

Since individual responsibility usually entails a collective genocidal policy, the Genocide Convention also involves State responsibility: Art 9.

Aggression 7.27

Because of its relevance to both individual and State responsibility, aggression is a complex supranational crime.

7.28

Article 6(a) of the IMT Charter, IMTFE Charter Art 5(a), Nuremberg Principle 6(a) and Draft Code of Crimes Art 16 criminalise individuals for the ‘planning, preparation, initiation or waging of a war of aggression’.

[page 111]

7.29

A specific definition of aggression has been outlined in Art 1 of UN Resolution 3314 (XXIX) as the ‘use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’: see Chapter 11. The search for a definition of aggression compelled the suspension of work on international crimes between the 1950s and 1980s.

7.30

Relying on the Nuremberg Principles, Art 8bis(1) of the ICC Statute criminalises the ‘planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’.

7.31

Based on UN Resolution 3314 (XXIX), Art 8bis(2) of the ICC Statute further defines aggression as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.’ A list of specific acts, such as invasion and bombardment follows, possibly overlapping with war crimes, at the intersection between jus ad bellum and jus in bello.

Penalties

7.32

Articles 27–28 of the IMT Charter provided for the penalties of death or any other just punishment, as well as the expropriation of stolen property. Similar penalties were established under Art 16 of the IMTFE Charter. Article 9 of the IMT Charter also embedded the possible declaration of the criminal character of organisations. This broad approach is confirmed by Nuremberg Principle 1 and Art 3 of the Draft Code of Crimes.

7.33

Article 24 of the ICTY Statute and Art 23 of the ICTR Statute provide for the penalties of imprisonment, based on the regulation and practice respectively applying in the former Yugoslavia and Rwanda, and the expropriation of property and proceeds criminally acquired.

7.34

More comprehensively, Art 78 of the ICC Statute sets out the penalties of life imprisonment, imprisonment up to 30 years, fines, and forfeiture of proceeds, property and assets criminally acquired.

Transnational crimes 7.35

International law can play a ‘transnational’ role in defining domestic crimes. In particular, by means of treaties States can set out compulsory directives for criminalising specific conduct in national legal orders. Harmonisation can also be

[page 112]

achieved via prior supranational criminalisation of prohibited conduct. The domestic definition of crimes and penalties is thus harmonised, but ultimately left to States.

Genocide 7.36

Articles 2 and 5 of the Genocide Convention criminalise genocidal conduct supranationally and compel States to effectively criminalise and punish it domestically.

Torture 7.37

The crime of torture, which is both a supranational crime against humanity and a war crime, is also an offence under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ((Convention against Torture) adopted and opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987). Article 1 defines torture as the unlawful infliction of severe mental or physical pain or suffering for the purposes of obtaining information, punishment, intimidation, or coercion. These acts must be committed by a public official or a person acting in an official capacity, or, at least, under their instigation or with their consent or acquiescence. Article 4 of the Convention against Torture consequently compels adequate domestic criminalisation.

Terrorism 7.38

The main international conventions on terrorism define specific

offences and consequently compel States to criminalise them domestically. These conventions address conduct such as taking hostages, hijacking aircraft, terrorist financing, and acts against internationally protected persons or the safety of maritime navigation. For instance, Arts 2 and 4 of the International Convention for the Suppression of Terrorist Bombings (adopted 15 December 1997, opened for signature 12 January 1998, 2149 UNTS 256, entered into force 23 May 2001) provide: Article 2 Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. …

[page 113]

Article 4 Each State Party shall adopt such measures as may be necessary: (a) To establish as criminal offences under its domestic law the offences set forth

in article 2 of this Convention; (b) To make those offences punishable by appropriate penalties which take into account the grave nature of those offences.

Serious Breaches of IHL 7.39

Improving protection provided for in the Hague Conventions, the Geneva Conventions outline serious breaches of IHL, such as wilful killing and extensive destruction and appropriation of property, and consequently compel appropriate domestic criminalisation: Geneva Conventions, Common Art 3; Geneva Convention I Arts 49–51; Geneva Convention II Arts 50–52; Geneva Convention III Arts 129– 131; Geneva Convention IV Arts 146–148; Additional Protocol I Art 85.

Piracy 7.40

Piracy is violence or depredation committed against a ship or aircraft, or persons or property on board such ship or aircraft, on the high seas or outside State jurisdiction. The fact that piracy tends to elude national jurisdictions prompted its supranational customary criminalisation, which has finally been codified in Art 101 of the UN Convention on the Law of the Sea ((UNCLOS) adopted and opened for signature 10 December 1982, 1833 UNTS 3, entered into force 16 November 1994). The definition of penalties has nevertheless been left to domestic jurisdictions: UNCLOS Art 106.

Other offences 7.41

Transnational criminal law techniques have been adopted in several areas, including slavery, trafficking in persons, drug-related offences, money laundering, corruption and cybercrimes.

Supranational criminal procedures 7.42

International crimes can be prosecuted at the supranational level. Three procedural phases can be distinguished: (1) adjudication; (2) prosecution; and (3) enforcement.

Adjudication 7.43

Supranational criminal courts have been established or envisaged for a few international crimes committed by natural persons or criminal organisations.

[page 114]

7.44

Article 6 of the Genocide Convention provides for the possibility of establishing an international criminal court to prosecute the crime of genocide, which is supranationally and transnationally defined.

7.45

The IMT of Nuremberg and the IMTFE had exclusive jurisdiction over crimes against peace, war crimes, and crimes against humanity committed by the major officers of the Axis countries in connection with World War II, respectively in Europe and in the Far East: IMT

Charter Art 6; IMTFE Charter Art 5. The IMT also had jurisdiction over criminal organisations: IMT Charter Art 9. 7.46

The ICTY has primary concurrent jurisdiction over natural persons responsible for serious violations of international humanitarian law (war crimes, genocide and crimes against humanity) committed in the territory of the former Yugoslavia since 1991: ICTY Statute Arts 1–8.

7.47

The ICTR has primary concurrent jurisdiction over serious violations of international humanitarian law (genocide, crimes against humanity and war crimes) committed by natural persons in the territory of Rwanda and over Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994: ICTR Statute Arts 1–8.

7.48

The ICC has permanent jurisdiction over crimes (genocide, crimes against humanity, war crimes and aggression) committed by natural persons in the territory of the States parties or by their citizens: ICC Statute Art 12. The jurisdiction of the ICC complements that of the States parties, and is thus only exercised if the latter are unwilling or unable to prosecute genuinely (principle of complementarity): ICC Statute Art 17.

7.49

Accused persons are not entitled to immunity before supranational courts and tribunals: Genocide Convention Art 4; IMT Charter Art 7; IMTF Charter Art 6; ICTY Statute Art 7(2); ICRT Statute Art 6(2); ICC Statute Art 27. Indeed, supranational jurisdictions override

State sovereignty.

Prosecution and enforcement 7.50

Proceedings before international criminal courts basically include a preliminary situation analysis, investigation, confirmation hearing, trial, appeal and revision.

7.51

International criminal proceedings are mainly based on the adversarial system, featuring confrontation between the prosecutor and the defence, but they also include some elements of the inquisitorial system, in particular, a more pro-active role of the judges: see ICC, Regulation 48, Regulations of the Court, Adopted by the Judges of the Court, 26 May 2004, 5th plen sess, The Hague, ICC Doc ICCBD/01-01-04.

[page 115]

7.52

Convictions delivered by the IMT and IMTFE were enforced respectively according to the orders of the Control Council for Germany and those of the Supreme Commander for the Allied Powers: IMT Charter Art 29 and IMTFE Charter Art 17.

7.53

Sentences delivered by the ICTY, ICTR and ICC are served in a State according to domestic rules, upon designation based on a list of countries that have agreed to accept convicted persons: ICTY Statute

Art 27; ICTR Statute Art 26; ICC Statute Arts 103 and 109. The supervision of execution nevertheless remains with international tribunals: ICTY Statute Art 28; ICTR Statute Art 27; ICC Statute Art 106. 7.54

Under Art 80 of its Statute, the ICC may order the transfer of money and other property collected through fines or forfeiture to a trust fund, for the purpose of victims’ compensation.

7.55

The cooperation of States with international criminal jurisdictions has a vertical nature and is essential, in particular, for evidence-gathering, transfer of individuals for prosecution and enforcement of convictions: ICTY Statute Art 29; ICTR Statute Art 28; ICC Statute Arts 86 ff.

Transnational criminal procedures 7.56

Transnational criminal procedures are in place for supranational crimes and (transnational) domestic crimes. Prosecutions concern individuals and, possibly, other entities, depending on the competent jurisdiction.

Adjudication 7.57

Customary grounds to adjudicate upon domestic and international crimes are the principles of territoriality, active and passive personality, protection, and universal jurisdiction. These grounds may be derogated from by means of particular

agreements. 7.58

The principle of territoriality establishes the competence of the State where criminal conduct commences, is consummated or produces its effects (objective territorial jurisdiction), or causes significant economic or non-economic consequences. This principle not only applies to the ‘territory’, including land, territorial waters, the contiguous zone, and superjacent atmospheric space, but also to vessels flying a State’s flag and aircraft registered in a State: SS Lotus (1927) PCIJ Series A, No 10, 4 at 31.

[page 116]

7.59

The principles of active and passive personality (nationality) confer jurisdiction on States respectively based on the nationality of the accused or that of the victim of a crime.

7.60

In light of the protective principle, a State has jurisdiction over a person who threatens or harms its security interests.

7.61

Universal jurisdiction: Universal jurisdiction entails adjudication upon crimes by all States of the international community, although sometimes conditionally upon the presence of the accused in their territory: Arrest Warrant of 11 April 2000 (Congo v Belgium) [2002] ICJ Rep 3, Joint Separate Opinion of Higgins, Kooijmans and

Buergenthal JJ, at [19] ff. 7.62

Grave breaches of the Geneva Conventions, including torture, are customarily subject to universal jurisdiction: Furundžija (ICTY, IT95-17/1, 10 December 1998) 1 at 60, [42]–[44], [156].

7.63

Universal jurisdiction can be maintained for genocide and crimes against humanity, based upon the erga omnes nature of these violations: Eichmann 36 ILR 5 at 298–304 (Supreme Court of Israel, 29 May 1962); R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 at 288 (House of Lords, 13 January 1999).

7.64

The view has also been put forward that universal jurisdiction applies to aggression: R v Jones [2007] 1 AC 136.

7.65

The crime of piracy is customarily subject to universal jurisdiction. This has latterly been codified in UNCLOS Art 100 and facilitates adjudication upon acts that are usually committed outside the territory of a State.

7.66

Aut dedere aut judicare: A few supranational and transnational crimes are subject to the principle aut dedere aut judicare, that is, the obligation for a State to either initiate prosecutions or extradite the accused. Around 48 conventions provide for this obligation, including the Geneva Conventions, the Convention against Torture, the Convention for the Suppression of Terrorist Bombings and

UNCLOS. 7.67

According to some scholars, the principle aut dedere aut judicare generally applies to crimes against humanity, mainly because of their universal nature: Michael P Scharf, ‘Aut dedere aut judicare’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2012, at [21].

7.68

Jurisdictional conflicts: The most relevant jurisdictional conflict arose in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the

[page 117]

Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) [1992] ICJ Rep 3 (Lockerbie), a case entailing the application of several adjudication principles to acts of terrorist bombing. Case Summary

QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (LIBYAN ARAB JAMAHIRIYA v UNITED KINGDOM) [1992] ICJ REP 3 (LOCKERBIE case) INTERNATIONAL COURT OF JUSTICE FACTS: In this case, Libya claimed criminal jurisdiction over two Libyan nationals, Abdelbaset Ali Mohmed Al Megrahi and Ali Amin Khalifa Fhimah, accused by the Lord Advocate of Scotland and a United States (US) Grand Jury of having placed a bomb on a Pan Am Flight 103 from Frankfurt to New York. The aircraft exploded over Scotland, killing 259 passengers and crew and 11 persons in Lockerbie. Victims had several nationalities, including 32 US citizens and 66 United Kingdom (UK) citizens. The plane was registered in the US. Many countries could have claimed competence over the case, for instance, France and Argentina, based on the nationality principle, or Malta and Germany, where the bomb was transferred before the attack, in light of the principle of territoriality. However, a visible conflict of jurisdiction only arose between the UK and US, on the one hand, and Libya, on the other. The UK and US governments required the extradition of the accused Libyans for the purpose of prosecution. Both States had jurisdiction based on the passive nationality principle (customary international law), the principle of territoriality (Art 5(1)(a)(b) of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation ((Montreal Convention) adopted and opened for signature 23 September 1971, 974 UNTS 177, entered into force 26 January 1973) and customary international law), and the protective principle (customary international law). By means of Resolutions 731/1992, 748/1992 and 833/1993, the UN Security Council concluded that the terrorist acts were State-sponsored, condemned Libya for engaging in terrorist activities, and urged ‘a full and effective response’ by Libya to the requests for extradition. [page 118] Following the requests for extradition by the UK and the US, Libya started prosecutions against the suspected terrorists. Libya had competence based on active personality and claimed jurisdiction in light of Art 5(2) of the 1971 Montreal Convention, requiring a State to establish its own competence over alleged offenders present in its territory, in compliance with the aut dedere aut judicare principle embedded in Art 7 of the Convention. Hence, Libya brought an action in the ICJ to obtain the delay or prohibition of the implementation of the UN Security Council’s

sanctions until a final decision on Libya’s argument under the 1971 Montreal Convention had been made. ISSUE: Who has the right to prosecute in the case of a conflict of jurisdictions? DECISION: By means of an order of 14 April 1992, the ICJ decided that UN Security Council Resolutions 731/1992, 748/1992 and 833/1993 obliged Libya to comply with the requests for extradition submitted by the UK and US. Therefore, the court refused to grant provisional measures enforcing the right of Libya to prosecute under the 1971 Montreal Convention. After the ICJ rejected an exception addressing the court’s lack of competence to adjudicate in 1998, Libya finally agreed to extradite the accused persons for trial by a Scottish Tribunal sitting in the Netherlands. The tribunal delivered its judgment in 2001, only convicting Al Megrahi to life imprisonment, and the sentence was partly served in Scotland. The Lockerbie case was consensually removed from the ICJ in 2003.

7.69

Adjudicating crimes committed in time of war or by military personnel: State courts in Germany, Poland, and Israel, among other countries, prosecuted international crimes committed during World War II as defined under the Control Council Law No 10 (1945).

7.70

Besides criminal courts, criminal jurisdiction can be exercised by domestic military courts: see UK, Royal Warrant of 18 June 1945.

7.71

Courts martial have often been established by occupying powers. For instance, in the aftermath of World War II, the four Allied powers occupying Germany and Austria (that is, the US, Great Britain, France, and the Soviet Union) held military trials in their respective zones of occupation for wartime international criminal offences defined under Control Council Law No 10. One example is the ‘lower’

[page 119]

trials of 12 high-ranking German officials conducted by US military tribunals in Nuremberg between 1947 and 1948. 7.72

Immunity: The exercise of foreign domestic jurisdiction is excluded for State agents, who enjoy personal and functional immunities based on the principle of equal State sovereignty. However, functional immunity for international crimes is being progressively eroded: see Chapter 4.

Prosecution and enforcement 7.73

Prosecution and enforcement of international crimes adjudicated upon by domestic courts take place according to domestic rules. In this respect, transnational rules govern interstate cooperation (international cooperation in criminal matters).

7.74

Interstate cooperation has a horizontal nature and concerns, in particular, the regulation of evidence-gathering, transfer of criminal proceedings, extradition and transit of individuals for the purposes of prosecution or enforcement of criminal sentences.

7.75

The main rules on mutual assistance are embedded in customary law and bilateral and multilateral treaties, which complement domestic law. For instance, Art 88 of Additional Protocol I to the Geneva Conventions provides that States afford reciprocal assistance in

proceedings concerning war crimes, consistently with other bilateral and multilateral treaties, in particular, with regard to extradition. 7.76

So far, Australia has concluded extradition agreements with around 60 countries.

Hybrid tribunals 7.77

Hybrid tribunals have features of both international and domestic tribunals. They include domestic and international prosecutors and judges and apply a mix of domestic and international criminal law, with regard to both substance and procedure.

7.78

The Serious Crimes Panels in the District Court of Dili, East Timor (2000–2005), the Mixed Panels in the Courts of Kosovo (2001), and the War Crimes Chamber of the Court of Bosnia-Herzegovina (2005) can be considered ‘internationalised domestic courts’. The Special Court for Sierra Leone (SCSL, 2002), the Extraordinary Chambers in the Courts of Cambodia (2006), and the Special Tribunal for Lebanon (ECCC, 2009) can be regarded as ‘domesticated international courts’.

[page 120]

7.79

Statutes tend to exclude immunity before hybrid tribunals: UN Transitional Administration in East Timor (UNTAET) Regulation

2000/15 on the Establishment of the East Timor Panels, Section 15; Statute of the Special Court for Sierra Leone Art 6(2); Law on the Establishment of the ECCC Art 29.

[page 121]

CHAPTER 8

International Economic Law

[page 122]

INTRODUCTION 8.1

International economic law (IEcL) governs transnational economic relations

between

States,

international

organisations,

non-

governmental organisations (NGOs), transnational corporations (TNCs), and natural persons. IEcL aims to create a level playing field for economic transactions and can be divided into five main regulatory areas, that is, monetary law, investment law, trade law, competition law, and taxation law. Monetary and investment obligations together constitute financial law, whereas trade and investment duties concur to define commercial law: Jahn H Dalhuisen, Transnational and Comparative Commercial, Financial and Trade Law, Hart, 3rd ed, 2007. Systemically, this chapter is underpinned by a formal approach to IEcL, based on primary and secondary substantive and procedural rules: Ottavio Quirico, A Purely Formal Theory of Law – The Deontic Network,

EUI

MWP

2009/11,

particularly

.

SOURCES AND SCOPE OF INTERNATIONAL ECONOMIC LAW

pp

1–8

8.2

The sources of international economic law are custom, treaties, general principles of law, and private practices: see Chapter 2.

8.3

In light of the new international economic order (NIEO), States customarily have permanent sovereignty over their natural resources, a right to non-intervention in domestic affairs, and are free to engage, or not, in economic relations with other countries: Charter of the United Nations ((UN Charter) adopted and opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945); United Nations (UN) Charter of Economic Rights and Duties of States, General Assembly Resolution 3281 (XXIX) UN GAOR, 29th sess (12 December 1974); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, at 138, [276]. These basic rules are integrated by general principles of law, such as good faith, freedom of contract, and prohibition of unjust enrichment.

8.4

Within this context, bilateral and multilateral treaties emerge as the primary sources of international economic relations. They harmonise substantive law, regulate conflicts of laws, and govern dispute settlement. Some treaties cover both financial and trade relationships: eg, North American Free Trade Agreement ((NAFTA) adopted and opened for signature 17 December

[page 123]

1992, 32 ILM 289, entered into force 1 January 1994). Other treaties regulate obligations relevant to the whole spectrum of economic relations: eg, Treaty on European Union ((TEU) adopted and opened for signature 7 February 1992 by means of the Maastricht Treaty, OJ C 191 (29 July 1992), entered into force 1 November 1993); Treaty on the Functioning of the EU ((TFEU), adopted and opened for signature 13 December 2007 by means of the Lisbon Treaty, OJ C 306 (17 December 2007), entered into force 1 December 2009). 8.5

The Convention on the Law Applicable to Contractual Obligations ((Rome I) adopted and opened for signature 19 June 1980, OJ L 266 (9 October 1980), entered into force 1 April 1991 and subsequently developed into EC Regulation 593/2008, OJ L 177 (4 July 2008)) is of particular significance among treaties. It establishes that applicable law is determined by the free choice of the parties (Art 3), or by the most connected law, notably based on the place of conclusion or performance of the contract, or the location of goods and parties to it (lex loci (contractus, actus or solutionis), lex domicilii, and lex situs): Art 4; Bonython v Commonwealth [1951] AC 201; Re United Railways of the Havana and Regla Warehouses Ltd [1960] 2 All ER 332.

8.6

Further,

the

UN

Convention

on

the

Use

of

Electronic

Communications in International Contracts (adopted 23 November 2005, opened for signature 16 January 2006, UN Doc A/60/515, entered into force 1 March 2013) clarifies issues such as the determination of a party’s location (Art 6: basically, the place of

business), and the time of conclusion of a contract (Art 10: basically, the time when a communication can be electronically retrieved by the addressee) in an electronic environment. 8.7

In the matter of extra-contractual obligations, the place where conduct takes place (lex loci actus (commissi delicti)): Phillips v Eyre (1870) LR 6 QB1), preferably including the occurrence of damage (2007 EC Regulation 864/2007 on the Law Applicable to NonContractual Obligations, OJ L 199 (31 July 2007), entered into force 20 August 2007 and applicable from 11 January 2009 (Rome II), particularly Arts 4, 6, 8, and 10) is the prevailing criterion to determine applicable law, at least in the absence of an alternative agreement: Rome II Regulation Art 2.

8.8

In some cases, multilateral treaties create additional regulatory bodies, either active across the different areas of international economic law, such as the UN Conference on Trade and Development (UNCTAD), or specialised in specific areas, such as the International Monetary Fund (IMF) and the World Trade Organization (WTO).

[page 124]

8.9

State-based principles are complemented by transnational standards established by private actors engaging in trans-border transactions, together constituting lex mercatoria (merchant law). Significantly, the

Hague Draft Principles on Choice of Law in International Commercial Contracts (2012) confirm the basic criterion of the freedom of choice as to applicable law. The International Institute for the Unification of Private Law (UNIDROIT) Principles on International Commercial Contracts (2010) establish a uniform regulatory framework for the formation, validity, content and performance of transnational contracts. The 1996 UN Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce aims to outline harmonised rules for the formation and validity of contracts concluded by electronic means. 8.10

Additional regulation applies to economic transactions by means of integration with other regulatory systems, in particular, international environmental law and human rights, along the lines of Art 31(3)(c) of the Vienna Convention on the Law of Treaties ((VCLT) adopted 22 May 1969, opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980).

INTERNATIONAL FINANCIAL LAW International monetary law 8.11

Currency is money used in a particular country at a particular time. International monetary law governs the relationship between different currencies. Regulation is rooted in the agreements that followed the 1944 Bretton Wood Conference establishing the IMF and the World Bank (WB).

8.12

Originally, the IMF Agreement (adopted and opened for signature 22 July 1944, 2 UNTS 39, entered into force 27 December 1945) compelled Member States to express the par value of their currency based on gold or the US dollar: Art IV(1). Each Member State was required to maintain the value of its currency within one per cent above and below the par value (Art IV(3)), which was not supposed to change, save to correct a fundamental disequilibrium: Art IV(5). If the price of a member’s currency appeared likely to move outside the prescribed limits, a State was requested to purchase or sell its currency, by using fully convertible reserves: Art IV(4). When a Member State lacked the necessary reserves to stabilise its currency under Art IV(4), it could temporarily draw on the IMF, subject to interest and the obligation to repay: Art V.

8.13

Following the United States of America’s (US) announcement on 15 August 1971 as to the termination of the obligation to maintain currency within the prescribed

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par, the IMF Agreement has been reformed, so as to allow major currencies to float, leaving individual States or groups of States free to make their own arrangements. However, States must strive to promote exchange rate stability by fostering orderly underlying economic and financial conditions and a monetary system that does

not produce erratic disruptions, avoiding manipulation of exchange rates in order to ensure an effective balance of payments: IMF Agreement Art 4(1). Par values can be introduced, if necessary, based on an 85 per cent majority of the voting power: IMF Agreement Art 4(4). States can still draw on the IMF to ensure financial stability (IMF Agreement Art 5) and special conditions may be established for developing countries: IMF Agreement Art 12(f)(ii). 8.14

Long-term loans can be obtained by States from the WB (formally, the International Bank for Reconstruction and Development), which is part of the WB Group, a set of institutions making leveraged loans, also including the International Finance Corporation (IFC), the International Development Association (IDA), the International Centre for Settlement of Investment Disputes (ICSID), and the Multilateral Investment Guarantee Agency (MIGA). Financial services essential to the stability of the monetary system are also provided by the Bank for International Settlements (BIS), which acts as a clearing agent for transactions among central banks, holds foreign exchange reserves on deposit, and assists with bridge loans for coordinated rescue operations.

8.15

Launched by the Maastricht Treaty and inspired by the US, the European Economic and Monetary Union (EMU) is the most integrated regional monetary system. The EMU provides a single currency, a single interest rate, one monetary policy, and a central bank presiding over a system of national central banks. Examples of

less integrated monetary unions and zones are the Caribbean Single Market and Economy and the West African Economic and Monetary Union.

International investment law 8.16

The notion of ‘foreign investment’ encompasses capital and technology transfer, involving lasting commitment and assumption of risk in the host State: Salini Costruttori SpA and Italstrade SpA v Morocco, ARB/00/4 (23 July 2001) (ICSID case); John Mo, International Commercial Law, LexisNexis, 5th ed, 2013, pp 562–3. Foreign investment is thus the business-related flow of money and technology towards another country capable of producing future profits. International investment law governs the creation of a level playing field for foreign investment and its protection from interference by the host State.

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8.17

Customarily, a State is free to reject or accept foreign investment. Within this framework, the main sources of international investment law are bilateral investment treaties (BITs) and multilateral investment treaties, such as the Agreement between the Government of Australia and the Government of the People’s Republic of China on the Reciprocal Encouragement and Protection of Investments ((Australia-China BIT) adopted and opened for signature 11 July

1988, 1514 UNTS 65, entered into force 11 July 1988). Often, investment regimes are included in free trade agreements, such as Part III of the Energy Charter Treaty ((ECT) adopted and opened for signature 17 December 1994, 2080 UNTS 95, entered into force 16 April 1998) and Chapter 11 of the NAFTA. 8.18

Investment agreements define State–State and investor–State rights and duties governing foreign investment promotion and protection. These are ensured by guaranteeing the free transfer of investment funds (eg, ECT Art 14 and NAFTA Art 1109), under stable and transparent conditions (fair and equitable treatment, eg, ECT Art 10(1) and NAFTA Art 1105), which are no less favourable than the most advantageous conditions accorded to domestic investors (national treatment standard, eg, ECT Art 10(2) and NAFTA Art 1102), and to investors from any other third State (most favoured nation (MFN) standard, eg, ECT Art 10(3) and NAFTA Art 1103). Within such a context, expropriation is prohibited, and in any case subject to adequate compensation: eg, ECT Art 13 and NAFTA Art 1110. Umbrella clauses can further ensure respect for other internationally agreed investment rules: eg, ECT Art 10(1), last sentence: ‘[e]ach Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party’.

Investment protection is also progressively subject to nondiscriminatory limitations based on public purposes such as environmental protection, health, labour, and respect for the integrity of the law of the host State: eg, ECT Arts 13(1) and 19, NAFTA Arts 1110 and 1114. In this respect, the Convention Establishing the MIGA (adopted 11 October 1985, 1508 UNTS 99, entered into force 12 April 1988) outlines an international framework for political risk insurance. Some treaties prohibit host States from imposing performance requirements upon foreign investors as to export, local contents, trade balancing, transfer of technology, local processing, and capitalisation: eg, NAFTA Art 1106 and

[page 127]

Agreement on Trade-related Investment Measures ((TRIMs) adopted and opened for signature 15 April 1994, 1868 UNTS 186, entered into force 1 January 1995) annexed to the General Agreement on Tariffs and Trade ((GATT) adopted and opened for signature 30 October 1947, 55 UNTS 194, entered into force 1 January 1948). 8.19

Substantive

obligations

under

international

agreements

are

complemented by soft regulation embedded in instruments such as the WB’s Guidelines on the Treatment of Foreign Direct Investment

(1992) and the Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (2011).

INTERNATIONAL TRADE LAW 8.20

Trade involves the exchange of goods and services. International trade law regulates transnational buying and selling transactions in tangible and intangible goods, including money, and services, including financial services. Its foundations were laid down in 1947–1948 by the UN Conference on Trade and Employment, which led to adopting the Havana Charter, and are now embedded in the WTO and other agreements.

The WTO system 8.21

The WTO (www.wto.org) was established in 1994 at the end of the Uruguay round (1986–93) of GATT negotiations via the Agreement Establishing the World Trade Organization ((Marrakesh Agreement) adopted and opened for signature 15 April 1994, 1867 UNTS 3, entered into force 1 January 1995). It provides an institutional umbrella for a set of annexed treaties aiming to create a level playing field for cross-border trade, as well as for the negotiation of possible additional trade agreements, which usually takes place via regular negotiation rounds: Marrakesh Agreement Arts II(1) and III.

8.22

According to the preamble of its constitutive Agreement, the WTO

aims to achieve overarching economic policy goals, particularly adequate standards of living, employment, equality of income, increased production, optimal resources allocation, as well as sustainable economic development, by creating internationally competitive trade conditions.

[page 128]

8.23

The main agreements covered by the WTO institutional system (as established by the Marrakesh Agreement) are: Annex 1(a) Multilateral agreements on trade in goods: General Agreement on Tariffs and Trade ◊

Agreement on Agriculture

◊

Agreement

on

the

Application

of

Sanitary

and

Phytosanitary Measures (SPS) ◊

Agreement on Textiles and Clothing (ATC)

◊

Agreement on Technical Barriers to Trade (TBT)

◊

Agreement on Trade-Related Investment Measures

◊

Agreement on Implementation of Article VI of the GATT: Antidumping

◊

Agreement on Implementation of Article VII of the GATT: Customs Valuation

◊

Agreement on Pre-shipment Inspection

◊

Agreement on Rules of Origin

◊

Agreement on Import Licensing Procedures

◊

Agreement on Subsidies and Countervailing Measures (SCM)

◊

Agreement on Safeguards.

Annex 1(b) General Agreement on Trade in Services (GATS). Annex 1(c) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Annex 2 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). Annex 3 Trade Policy Review Mechanism ((TPRM) compelling States Parties to the agreements covered by the WTO umbrella periodically to report to the Trade Policy Review Body). Annex 4 Plurilateral trade agreements (governing free trade in particular areas): 4(a) Agreement on Trade in Civil Aircraft 4(b) Agreement on Government Procurement 4(c) International Dairy Agreement 4(d) International Bovine Meat Agreement. 8.24

All parties to the Marrakesh Agreement are necessarily parties to the annexed, and subordinated (Marrakesh Agreement Art XVI(3)), multilateral agreements, DSU and TPRM: Marrakesh Agreement Art II(2). This single undertaking approach does not apply to

plurilateral trade agreements. Furthermore, under the Marrakesh Agreement, Art XVI(4), States commit to implement treaty obligations domestically by means of national legislation.

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8.25

The WTO institutional system aims to facilitate implementation, including progressive application, interpretation, and amendment, of the agreements covered by the WTO umbrella.

8.26

The main regulatory bodies are the Ministerial Conference and the General Council, which make decisions by consensus or alternative voting thresholds: Marrakesh Agreement Art IX(1). These organs head several sub-councils, committees, and working parties, basically in accordance with the different agreements included in the WTO system.

8.27

The Ministerial Conference is the highest decision-making body, including ministers from all WTO Members, and meets at least once every two years. It makes strategic decisions under any of the multilateral trade agreements: Marrakesh Agreement Art IV(1).

8.28

The General Council is composed of senior representatives from all WTO Member States and includes the Council for Trade in Goods, the Council for Trade-Related Aspects of Intellectual Property Rights, the Council for Trade in Services, and the Trade Negotiations

Committee. It oversees the functioning of the agreements encompassed by the WTO system: Marrakesh Agreement Art IV(2)– (6).

Trade in goods WTO regulation 8.29

Among multilateral agreements, the GATT is crucial to trade in goods. It basically seeks to establish a level playing field for the international circulation of commodities, based on the principle of non-discrimination. Accordingly, the MFN clause provides that, with respect to customs duties and charges of any kind imposed on or in connection with the import or export of ‘like’ products, a State party may not be treated by another State party less advantageously than any other States parties: GATT Art I. Tariffs are not prohibited, but States are bound to respect specific rates (GATT Art II) and to apply them equally: GATT Art XIII. In order to achieve transparency, quantitative restrictions on import and export are proscribed, save particular situations, such as critical agricultural shortages: GATT Art XI. For purposes of fairness, an exporting State cannot introduce a product into the market of another country at less than the normal value of ‘like’ products (prohibition of ‘dumping’): GATT Art VI. Subsidies and offsetting countervailing duties are subject to limits: GATT Arts XVI and VI(3).

Once a foreign product enters a market, GATT Members must not subject it to internal taxes or other internal charges of any kind in excess of those applied,

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directly or indirectly, to like domestic products (national treatment principle): GATT Art III. 8.30

In relation to the basic principle of non-discrimination, the WTO Appellate Body clarified that the scope of application of the GATT is precisely defined by the notion of ‘directly competitive or substitutable’ products, which is broader than that of ‘like’ products.

Case Summary

JAPAN – ALCOHOLIC BEVERAGES II WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 NOVEMBER 1996) FACTS: In 1995, Canada, the EC and the US complained that the Japanese Liquor Tax Law (Shuzeiho) No 6 of 1953 charged shochu, a domestic liquor, less than imported products, particularly vodka and other spirits such as whiskey, brandy and rum, and was discriminatory under GATT Art III. ISSUE: How are the concepts of ‘likeness’ and ‘directly competitive or substitutable products’ to be defined, and what is the consequent scope of application of the GATT? DECISION: In light of the notion of similar ‘end-uses’, the WTO Appellate Body held that the notions of ‘likeness’ and ‘directly competitive or substitutable products’ are crucial to determine whether a level playing field is in place and must be determined on a case-by-case basis: … there can be no one precise and absolute definition of what is ‘like’. The concept of ‘likeness’ is a relative one that evokes the image of an accordion. The accordion of ‘likeness’ stretches and squeezes in different places as different provisions of the WTO Agreement are applied. The width of the accordion in any one of those places must be determined by the particular provision in which the term ‘like’ is encountered as well as by the context and the circumstances that prevail in any given case to which that provision may apply. We believe that, in Article III:2, first sentence of the GATT 1994, the accordion of ‘likeness’ is meant to be narrowly squeezed … As with ‘like products’ under the first sentence, the determination of the appropriate range of ‘directly competitive or substitutable products’ under the second sentence must be made on a case-by-case basis. [page 131] (WTO Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 November 1996) pp 21 and 25) Confirming the conclusion of the Panel, the Appellate Body held that shochu is a ‘like’ product compared to vodka and a ‘directly competitive and substitutable’ product compared to spirits such as whisky, brandy, and rum. The Appellate Body therefore held that Japan dissimilarly taxed these goods so as to afford protection to domestic production, in breach of GATT Art III (WTO Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 November 1996) p 32).

8.31

Equal trade conditions suffer exceptions. In particular, these are allowed to remedy economic emergencies, safeguard payment imbalances, and support developing countries (GATT Art XVIII), subject to non-discrimination: eg, EC – Conditions for the Granting of Tariff Preferences in Developing Countries, WT/DS246/AB/R (7 April 2004).

8.32

General and security exceptions to equal trade conditions are established under GATT Arts XX and XXI. General exceptions include public interests, particularly the protection of public morals; human, animal or plant life or health; conservation of exhaustible natural resources; and compliance with law and regulations, provided they are not ‘applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries’ or ‘a disguised restriction on international trade’: eg, Australia — Measures Affecting Importation of Salmon, WT/DS18/AB/R (6 November 1998). Further exceptions can be established within customs unions and free trade areas: GATT Art XXIV.

8.33

Whether the conservation of exhaustible natural resources extends to the environment as such should be positively answered in light of the references to ‘sustainable development’ and ‘environmental protection’ embedded in the preamble of the Marrakesh Agreement: US – Import Prohibition of Certain Shrimp and Shrimp Products, WT DS58/AB/R (12 October 1998) at [129]. This interpretation allows Member States to restrict trade in commodities imported from countries that

do not adopt comparable process and production methods (PPMs), possibly including greenhouse gas reduction-measures: Ottavio Quirico, ‘EU Border Tax Adjustments and Climate Change: Reaching Consensus within the International Legal Context’ (2010) 19 European Energy and Environmental Law Review 230. 8.34

The GATT is supplemented by sector-specific treaties appended to the Marrakesh Agreement under Annex 1A, which are lex specialis (special law) (General

[page 132]

Interpretative Note to Annex 1A) and deal with, inter alia, agriculture, textiles, subsidies and safeguards. 8.35

Of particular relevance are the TBT Agreement and the SPS Agreement, whereby the latter is lex specialis with respect to the former: TBT Agreement Art 1(5). These instruments aim to clarify exceptions to free trade under GATT Art XX, in order to exclude technical barriers to trade similar to quantitative restrictions created via standards such as testing and certification procedures, or conformity assessments.

Non-WTO regulation 8.36

In addition to the WTO, other bodies and instruments regulate

international trade in goods. 8.37

For instance, the Coffee Agreement (adopted and opened for signature 28 September 1962, 6791 UNTS 169, entered into force 1 July 1963) is an international commodity agreement (ICA) that creates a cooperative framework so as to establish an expanded and transparent international market for coffee. Another example is the 1988 Protocol on Acceleration of Free Trade in Goods (adopted, opened for signature and entered into force 18 August 1988, ATS 1988 No 18) to the Australia-New Zealand Closer Economic Relations Trade Agreement (adopted and opened for signature 28 March 1983, 1329 UNTS 175, entered into force 1 January 1983). Concerning WTO Members, these instruments must be consistent with the GATT, in accordance with its Art XXIV(5).

8.38

UNCITRAL, established by means of UN General Assembly Resolution 2205 (XXI) of 17 December 1966, aims to unify international trade law. Among other instruments, UNCITRAL drafted the UN Convention on Contracts for the International Sale of Goods (adopted and opened for signature 11 April 1980, 1489 UNTS 3, entered into force 1 January 1988), which provides a harmonised substantive framework for contracts of sale of goods between parties that apply the law of a Member State based on private international law, or whose place of business is in different States Parties: Art 1. The Convention governs the formation of contracts, rights and duties of sellers and buyers, breaches and remedies.

Trade in services WTO regulation 8.39

The GATS aims to establish a competitive playing field for specifically chosen trans-border services (GATS Art XX), including financial services, such as banking (GATS Annex IV), and cyberservices (GATS Annex on Telecommunications), regardless of whether or not the provider is physically present in the foreign territory. The GATS

[page 133]

addresses a number of basic issues in parallel to, but sometimes differently from, the GATT. 8.40

The cornerstone is GATS Art II (MFN Treatment), which compels each Member State to accord to services and service suppliers of any other Member a treatment no less favourable than that accorded to ‘like’ services and service suppliers of another State party. Article XVI establishes for services and service suppliers from foreign Member States a treatment no less favourable than that accorded to its own ‘like’ (preferably, directly competitive or substitutable (EC – Bananas III, WT/DS27/R/ECU (22 May 1997) at [7.332], [7.359], [7.379], WT/DS27/AB/R (9 September 1993) at [223]–[228]) services and service suppliers.

Along the lines of the GATT, GATS Art XII governs exceptions to competitive services based on payment imbalances; Arts XIV and XIVbis provide general and security exceptions, which should extend to cyber services (US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (7 April 2005)); and Arts V and Vbis regulate exceptions within free trade areas. Specific provisions govern subsidies and countervailing duties (GATS Art XV), government procurement (Art XIII), safeguards (Art X), the elimination of restrictive business practices (Art IX), and control of monopoly suppliers (Art VIII).

Non-WTO regulation 8.41

In addition to the WTO, since the 1980s several bilateral and regional agreements regulate trade in services. For instance, establishing a level playing field for trade in services is the aim of the Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement (adopted and opened for signature 18 August 1988, [1988] ATS 1988 20, entered into force 1 January 1989) and the Montevideo Protocol on Trade in Services (adopted and opened for signature 15 December 1997, entered into force 17 December 2005) to the Treaty Establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (Mercado Común del Sur: MERCOSUR, adopted and opened for signature 26 March 1991,

2140 UNTS 257, entered into force 29 November 1991). The OECD Code of Liberalisation of Current Invisible Operations of the Organization for Economic Co-operation and Development (OECD Code, 2013) has a similar aim. As to WTO Members, instruments establishing preferential treatment must be consistent with the GATS, in accordance with its Art 5.

[page 134]

Trade in intellectual property WTO regulation 8.42

Intellectual property includes intangible products of creative human activity, for instance, writings, films, designs, wines, and Internet databases, which can be protected via instruments such as copyrights, patents, trademarks, and geographical indications. The TRIPs Agreement aims to establish a level playing field for trans-border transactions concerning intellectual property. The cornerstone is laid out in TRIPs Agreement Arts 3 and 4. Article 3 (National Treatment) obliges Member States to accord to the nationals of other Member States a treatment no less favourable than that accorded to its own nationals, subject to exceptions provided for in specific international treaties. Article 4 (MFN Treatment) provides that any advantage granted by a Member State to the nationals of another State Party as to intellectual property must be extended to the

nationals of all other Member States. Exceptions to competitive trade conditions are regulated in several provisions of the Agreement, such as Arts 11 and 13, and security exceptions are included in Art 73. The TRIPs Agreement also governs minimum standards concerning the availability, scope and use of intellectual property rights (Part II), and domestic enforcement procedures (Part III).

Non-WTO regulation 8.43

In addition to the WTO, trade in intellectual property is mainly regulated via the World Intellectual Property Organization (WIPO), a UN specialised agency that provides an umbrella for two types of agreements. A first set of agreements, for instance, the Treaty on Intellectual Property in respect of Integrated Circuits (adopted and opened for signature 26 May 1989, 28 ILM 1447, not yet entered into force), are inspired by the Paris Convention for the Protection of Industrial Property (adopted and opened for signature 20 March 1883, 10 Martens Nouveau Recueil 2d 133, entered into force 1884), by the Berne Convention for the Protection of Literary and Artistic Work (adopted and opened for signature 9 September 1886, 1161 UNTS 3, entered into force 5 December 1887), and by the Rome Convention for the Protection of Performers, Producers of Phonograms and

Broadcasting Organizations (adopted and opened for signature 26 October 1961, 6 UNTS 44, entered into force 18 May 1964). These instruments aim to harmonise State provisions on intellectual property rights and complement the TRIPs Agreement: TRIPs Agreement Arts 2, 9 and 35.

[page 135]

A second set of agreements, such as the Patent Cooperation Treaty (adopted and opened for signature 19 June 1970, 1160 UNTS 231, entered into force 24 January 1978) regulate international procedures to apply for the recognition of intellectual property rights. 8.44

The Universal Copyright Convention (adopted and opened for signature 6 September 1952, 943 UNTS 178, entered into force 16 September 1955) of the UN Educational, Scientific and Cultural Organization also aims to provide a harmonised regulatory framework for copyright among State parties.

INTERNATIONAL COMPETITION LAW 8.45

Transnational economic transactions are subject to State anticompetition rules. International competition (antitrust) law aims to resolve possible regulatory inconsistencies and create a level playing field by determining, limiting, and harmonising applicable laws in the matter of anticompetitive practices, such as vertical restraints and

abuses by dominant firms. 8.46

Anticompetitive behaviour is usually prohibited by the law (eg, Competition and Consumer Act 2010 (Cth)) of the place where a restrictive act, for instance, the establishment of a cartel, takes place (American Banana Co v United Fruit Co 213 US 347 (1909)), or by the law of the place where the effects of a restrictive act occur: Hartford Fire Insurance Co et al v California et al 509 US 764 (1993); Timberlane Lumber Co v Bank of America 549 F2d 597 (1976); EC Regulation 864/2007 (Rome II) Art 6.

8.47

Harmonising substantive rules restricting anticompetitive behaviour are mostly adopted as soft law (see Chapter 2). This is the case, for instance, of the UN Equitable Principles and Rules for the Control of Restrictive Business Practices (2000), the Antitrust Code for the Secretary General of the GATT (1993), and Chapter X of the OECD Guidelines for Multinational Enterprises.

8.48

Procedurally, enforcement of domestic legislation is facilitated by international agreements on exchange of information, investigation and consultation in the case of conflicting jurisdictional claims. This is achieved by means of bilateral and multilateral instruments: eg, Agreement between the Government of the US and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices (adopted, opened for signature and entered into force 23 June 1976); Hague Convention on

the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (adopted and opened for signature 15 November 1965, 658 UNTS 163, entered

[page 136]

into force 10 November 1969); Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (adopted and opened for signature 15 November 1965, 847 UNTS 241, entered into force 10 February 1969). Cooperation between national competition authorities is also facilitated by the International Competition Network (ICN): .

INTERNATIONAL TAXATION LAW 8.49

International taxation law regulates governmental levies on income and capital or on trans-border trade. Taxes on income and capital are either source-based (in rem) or (either natural or legal) person-based (in personam). Taxes on transnational trade can be grounded in an origin or destination basis. This generates the possibility of double taxation.

8.50

International taxation law aims at coordinating the tax rules of different countries, so as to protect governmental revenues and

minimise their negative effects on economic competition. Double taxation on income and capital is excluded by conferring rights on taxpayers against States, via a uniform definition of income and residence, and prioritisation of either income or residence as a basis for taxation: see, in particular, the OECD Model Convention with respect to Taxes on Income and on Capital (2014) and the UN Model Tax Convention between Developed and Developing Countries (1999). Double taxation on other transnational trade is excluded based on the place where the customer is located or where a commodity or service is supplied: eg, EU Council Directive 2006/112/EC of 28 November 2006 on the Common System of Value Added Tax. 8.51

Furthermore, international taxation law aims to ensure the avoidance of tax evasion and inter-State cooperation: eg, OECD Multilateral Convention on Mutual Administrative Assistance in Tax Matters (adopted and opened for signature 25 January 1988, entered into force 1 April 1995).

DISPUTE SETTLEMENT General mechanisms 8.52

Interstate economic disputes are resolved via classical consensual procedures,

particularly

consultation,

mediation,

conciliation,

arbitration, and litigation: eg, 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes (respectively adopted, opened for signature, and entered into force 29 July

[page 137]

1899–4 September 1990 and 18 October 1907–26 January 1910) (see Chapter 12). Alternatively, unilateral procedures are available, based on invocation of responsibility and countermeasures, including economic measures (‘trade wars’, not excluded under Principle 4(c) of UN General Assembly Resolution 2625 (XXV) of 24 October 1970: Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the UN Charter – see Chapter 10. 8.53

Specific bilateral or multilateral treaties may determine the competent jurisdiction for contractual disputes: Hague Conference (Conférence de La Haye: HCCH) on Private International Law Convention on the Choice of Court Agreements (adopted and opened for signature 30 June 2005, 1144 UNTS 249, not yet entered into force). Otherwise, the competent forum is determined by domestic law in light of private international law principles, particularly based on the choice of the parties, the place where a disputed act is committed or produces its effects (lex loci actus (commissi delicti)), or the most connected place, specifically in light of the location of goods and parties, and the place of adjudication (lex situs, lex domicilii, lex patriae, and lex fori): HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (adopted and opened for signature 1 February 1971, entered into

force 20 August 1979) Art 10; EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) Art 5–6; Viva Vino Import Corporation v Farnese Vini Srl (2000) WL 1224903 (ED Pa 2000). 8.54

If domestic remedies prove ineffective, diplomatic protection and alternative dispute resolution means, namely consultation, mediation, and arbitration (eg, UNCITRAL Model Law on International Commercial Arbitration (1985)) can be explored, including online dispute resolution (ODR, eg, Cybersettle and WIPO Electronic Case Facility). In particular, it is common for bilateral and multilateral treaties to provide that investment obligations are adjudicated via investor–State arbitration.

8.55

Foreign judgments can usually be enforced domestically on a reciprocal basis, when they are consistent with local law and public interest: eg, HCCH Convention on the Choice of Court Agreements Arts 8 and 9; New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted and opened for signature 10 June 1958, 330 UNTS 38, entered into force 7 June 1959) Art 5.

[page 138]

Specialised bodies

Specialised adjudicatory bodies have developed in the different areas 8.56

of international economic law, for instance, the International Court of Arbitration of the International Chamber of Commerce (1923) and the London Court of International Arbitration (1883). In the field of investment, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted and opened for signature 18 March 1965, 575 UNTS 159, entered into force 14 October 1966) established the general arbitral jurisdiction of the ICSID. Furthermore, arbitration tribunals may be created ad hoc, particularly under the UNCITRAL Arbitration Rules (2013).

WTO mechanisms 8.57

Breaches of obligations under the WTO umbrella are subject to the procedure provided for in the DSU. When a dispute cannot be otherwise settled (DSU Arts 4, 5 and 25), it can be submitted upon request to a WTO Panel and further to the WTO Appellate Body, established by the General Council sitting as the Dispute Settlement Body (DSB): DSU Arts 6–8 and 17. The WTO Panel and WTO Appellate Body assess the conformity of a State measure with treaty obligations and recommend possible remedies: DSU Art 19(1). In the case of non-compliance, a party invoking dispute settlement procedures may request the DSB to authorise suspending concessions or other obligations vis-à-vis the responsible State under agreements covered by the WTO: DSU Art 22(2) and (8).

INTERNATIONAL ECONOMIC LAW IN TIME OF WAR 8.58

In the case of an occupation in time of war (see Chapter 11), sovereignty is suspended and the occupying power should temporarily exercise it to ensure public order, by respecting the law of the occupied State: Art 43 of The Hague Convention IV (respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land) ((Hague Regulations on Land Warfare) adopted and opened for signature 18 October 1907, 205 Consol TS 277, entered into force 26 January 1910). The cost of occupation should not exceed the capacity of the economy of an occupied country: International Military Tribunal, Nuremberg, Trial of the Major War Criminals (14 November 1945–1 October 1946) vol XXII, p 482.

8.59

Restrictions to economic transactions can be imposed and waived by the occupying power and taxes can be collected for military purposes, as far as possible in accordance with existing law: Hague Regulations on Land Warfare Arts 48–49 and 51.

[page 139]

8.60

Enemy public and private property cannot be destroyed: Art 23(g) of the Hague Regulations on Land Warfare; Art 53 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, 75 UNTS 287, entered into

force 21 October 1950). Public property is basically administered by the occupying power: Hague Regulations on Land Warfare Arts 53 and 55. Requisition of private property must be proportionate to the resources of the occupied territory and the needs of the occupying power, subject to adequate compensation: Hague Regulations on Land Warfare Art 52. 8.61

By its very nature, war usually entails the prohibition of trade between hostile countries, including all persons located in enemy and enemyoccupied territories.

8.62

Neutral States are subject to some restrictions; for instance, they cannot grant loans or furnish war material to belligerents, which is a customary extension of Art 6 of The Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War (adopted and opened for signature 18 October 1907, 205 Consol TS 395, entered into force 26 January 1910). However, neutral States remain free to restrict, or not, private transactions in military supplies, provided this is done on a non-discriminatory basis.

[page 141]

CHAPTER 9

The Law of the Sea

[page 142]

INTRODUCTION 9.1

Several legal regimes govern the rights, freedoms and obligations of States over maritime areas. This chapter provides an overview of the key rules and essential cases. All treaty articles to which detailed reference should be made are to the United Nations Convention on the Law of the Sea (opened for signature 10 December 1982 1833 UNTS 3, entered into force 16 November 1994) (UNCLOS) unless otherwise stated.

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 9.2

UNCLOS addresses the rights and obligations of all States (including coastal and landlocked States), ocean zones and boundaries, safeguards for marine environmental protection, mineral resource exploitation in deep seabed areas and dispute settlement.

9.3

UNCLOS replaced four 1958 Conventions. It is a package with no reservations permitted: Art 309. Although subsequent state practice will confirm or accept many UNCLOS provisions becoming binding as customary international law (custom), some caution is necessary because opposition to a rule may be masked by consensus. Each rule

must be individually assessed for its customary status.

Key definitions under UNCLOS 9.4

UNCLOS contains key definitions and concepts (see Table 9.1).

Table 9.1:

Key definitions and concepts under UNCLOS

Term Archipelagic State

UNCLOS Article Definition 46 Closely-interrelated island group, interconnecting waters and natural features forming an intrinsic entity or historically regarded as such Archipelagic 47 All waters inside straight baselines drawn between waters the outermost points of the outermost islands, provided these points are sufficiently close to one another Area 1 The seabed, ocean floor and subsoil beyond the limits of national jurisdiction (ie, the deep seabed) Bay 10 Well-marked indentation containing landlocked waters and more than a coastal curvature Contiguous zone 33 Area up to a further 12 nautical miles* from the outer limits of the territorial sea (ie, no more than 24 nautical miles from a coastal State’s baseline) Continental 76(1) Seabed and subsoil of submarine areas throughout shelf the natural prolongation of land territory to the continental margin’s outer edge, or [page 143] Term

Exclusive economic zone (EEZ) High seas

UNCLOS Article Definition up to 200 nautical miles from a coastal State’s baseline, whichever is greater. A shelf cannot exceed 350 nautical miles from the baseline or 100 nautical miles beyond the 2500 metre isobath (a vertical line indicating 2500 metres depth). This definition reflects custom: Case concerning the Canada-France Maritime Boundary (the St Pierre and Miquelon case) (1992) 31 ILM 1149 55, 57 Area beyond and adjacent to the territorial sea up to 200 nautical miles from the baselines from which the territorial sea’s breadth is measured 86 All parts of the sea not included in the EEZ or

Innocent passage

18, 19

Internal waters

8

Island

121(1)

Low tide elevation piracy

13

Rocks

121

Territorial sea

2(1)

101

territorial, internal or archipelagic waters The right to pass through territorial waters in an expeditious and continuous manner, provided not prejudicial to the peace, good order or security of coastal States All water and waterways on the landward side of the baseline of the territorial sea Naturally-formed land area surrounded by and above water at high tide. An island is entitled to a territorial sea, contiguous zone, EEZ and continental shelf as per a land territory: Art 121 and customary international law (Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, reproduced in (1981) 20 ILM 797, 803–4) Naturally-formed land area surrounded by and above water at low tide but submerged at high tide Acts of violence, detention or depredation committed for private ends directed against another ship or aircraft on the high seas or place outside State jurisdiction In contrast to islands, unable to sustain human habitation or economic life of their own. Rocks have no EEZ or continental shelf but may have a territorial sea Belt of sea adjacent to a coastal State’s land territory up to a limit of 12 nautical miles from the baseline determined under UNCLOS: Art 3 For Australia, and as agreed under the Offshore Constitutional Settlement, coastal waters describes a belt of water between the limits of the Australian States and the Northern Territory and a line three nautical miles seaward of the territorial sea baseline

* A nautical mile is 1852 metres.

Baselines 9.5

Baselines to measure the territorial sea’s breadth are ordinarily the low-water line along a coast (Art 5) or reef (Art 6) drawn by reference to official charts. The low-water mark reflects State practice: Fisheries

(United Kingdom v Norway) (Merits) [1951] ICJ Rep 116 (UK/Norway).

[page 144]

9.6

Straight baselines joining appropriate points may be used for deeply indented coastlines or island fringes: Art 7; UK/Norway. They can be drawn across the mouths of historic bays: Art 10. Straight baselines have been adopted in state practice to reflect custom. However, the method is an exception to normal delimitation rules and is applied restrictively to prevent abuse: Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain [2001] ICJ Rep 40 (Qatar/Bahrain) at [212]. Straight baselines cannot depart to any appreciable extent from a coastline’s general direction, and the sea areas on the landward side must be appropriate for treatment as internal waters: UK/Norway at 132–3.

9.7

The low-water line of a low tide elevation may be used as a baseline if situated wholly or partly within the territorial sea. Straight baselines are generally not drawn between low tide elevations unless lighthouses or installations permanently above sea level have been built: Art 7(4). The UNCLOS provisions on low tide elevations represent custom: Qatar/Bahrain at [201]–[208].

MARITIME ZONES

9.8

The rights and obligations of States for several distinct maritime zones are represented as seen in Figure 9.1.

Internal waters 9.9

Internal waters are waters landward of the baseline (Art 8) including bays and rivers.

9.10

Coastal States exercise unlimited civil and criminal jurisdiction over internal waters. Jurisdiction over crimes committed on board foreign vessels is left to flag States (the State of nationality of the vessels: see 9.27) unless the act disturbs the coastal State’s public peace: R v Anderson (1868) 11 Cox’s Criminal Cases 198 (Court of Criminal Appeal). For reasons of comity coastal States should not exercise criminal jurisdiction unless the crime disturbs their peace or tranquillity: Wildenhus’ Case (1887) 120 US 1.

9.11

Foreign vessels have no right of innocent passage to the ports, waterways or rivers of coastal States. Coastal States regulate the terms of port access: Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 at 111.

The territorial sea 9.12

A coastal State’s sovereignty over territorial waters extends to the airspace, seabed and subsoil: Art 2(2). This rule reflects custom. Australia declared a territorial

[page 145] Figure 9.1

MARITIME ZONES

Key: CS continental shelf; EEZ exclusive economic zone; TS territorial sea; CZ contiguous zone; CW coastal waters; BL baseline.

[page 146]

sea: Commonwealth of Australia Gazette No S29 (9 February 1983) p 2. It was increased from three to 12 nautical miles: Commonwealth of Australia Gazette No S297 (13 November 1990). 9.13

Coastal States can apply publicised laws concerning navigation safety, protecting cables, conserving living sea resources, fisheries, marine scientific research and fiscal (taxation), customs, immigration and sanitary (pollution) matters: Art 21. Coastal States exercise civil and criminal jurisdiction over merchant ships and government ships operated for commercial purposes in certain circumstances (eg, the crime’s consequences extend to the coastal State, or the crime disturbs its peace or the good order of the territorial sea): Arts 27, 28. Coastal States have no jurisdiction for crimes committed prior to entry into territorial waters but do for crimes committed on board during transit passage: Art 27(2) and (5). There is no right to stop or divert foreign ships to exercise civil jurisdiction: Art 28(1). However, the customary position may differ: The David (1933) 6 RIAA 382. Jurisdiction cannot be exercised over warships or government ships operated for non-commercial purposes: Arts 29–32. The flag State exercises jurisdiction in these and other circumstances: see 9.27.

9.14

The ships of all States (coastal and landlocked) have a right of innocent passage through territorial seas: Art 17. Innocent passage is the continuous and expeditious traversing of the territorial sea without entering internal waters or calling at ports, and cannot be prejudicial to the peace, good order or security of coastal States: Arts 18, 19.

Prejudicial activities include exercising weapons, collecting defence information, fishing and serious pollution: Art 19(2). Conducting minesweeping is not exercising the right of innocent passage: The Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) [1949] ICJ Rep 4 (UK/Albania). 9.15

Coastal States cannot impose requirements which practically deny or impair the right of innocent passage: Art 24(1). Known navigation dangers must be publicised: Art 24(2); UK/Albania. Necessary steps can be taken to prevent passage that is not innocent: Art 25. Vessels may be required to leave: Art 30. Under custom reasonable force is a last resort: ‘Seizure of the USS Pueblo’ (1968) 62 American Journal of International Law 756. Innocent passage can be temporarily suspended where essential to protect security: Art 25(3).

9.16

Coastal States can designate sea lanes: Art 22. Submarines must navigate on the surface showing their flag: Art 20. Nuclear-powered ships or those carrying dangerous substances must observe special precautionary measures established by international agreement: Art 23.

[page 147]

Archipelagic waters 9.17

Archipelagic States have sovereignty over archipelagic waters: Art

49(1). However, submarine cables, traditional fishing rights and the legitimate activities of immediately adjacent neighbouring States must be respected: Art 51(1). 9.18

Foreign ships and aircraft have rights of innocent passage (Art 52(1)) and archipelagic sea lanes passage which is continuous, expeditious and unobstructed through designated routes (Art 53). The former may be suspended by archipelagic States where essential to protect security: Art 52(2).

Contiguous zone 9.19

Coastal States can take action in the contiguous zone (that is, up to 12 nautical miles from the limit of the territorial sea) which is necessary to enforce customs, fiscal, immigration and sanitary laws for infringements commenced or about to occur within their territory or territorial sea: Art 33. This position reflects custom.

Exclusive economic zone (EEZ) 9.20

The EEZ is a legal regime in an area beyond and adjacent to territorial seas: Art 55. The EEZ overlies the contiguous zone. The EEZ concept is recognised under custom: Continental Shelf Case (Tunisia v Libya) [1982] ICJ Rep 18 (Tunisia/Libya) at 74; Continental Shelf Case (Libya v Malta) [1985] ICJ Rep 13 (Libya/Malta) at 29, 33. However, not all of the UNCLOS provisions are yet customary norms. Australia proclaimed a 200 nautical mile

EEZ after UNCLOS’ entry into force: Proclamation of 26 July 1994, Commonwealth Gazette No S290 (entered into force 1 August 1994). 9.21

Within the EEZ coastal States have sovereign rights to manage and exploit the natural resources of waters superjacent to the seabed and subsoil, and conduct economic activities including producing energy: Art 56(1). To ensure national legal compliance, coastal States can board, inspect, arrest and commence judicial proceedings: Art 73. Customs laws must be applied consistently with UNCLOS: International Tribunal for the Law of the Sea (ITLOS), MV Saiga (No 2) Case (St Vincent and the Grenadines v Guinea) (1999) 38 ILM 1323 (MV Saiga) at [130]–[136]. The continental shelf regime (UNCLOS Pt VI) takes priority over a coastal State’s rights and obligations in the EEZ: Art 56(3).

9.22

Foreign States have the freedoms of navigation and overflight and can lay submarine cables and pipelines in the EEZ: Art 58(1). They must comply with a coastal State’s laws: Art 58(3). Conflicts between the rights and jurisdiction of coastal and other States are resolved according to equity given the circumstances,

[page 148]

taking into account the importance of the interests to the parties as

well as the international community: Art 59. 9.23

There is widespread acceptance in state practice for preferential fishery rights for coastal States, particularly those in situations of special dependence: Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3. However, coastal States must conserve and manage living resources to produce the maximum sustainable yield and prevent over-exploitation in light of the best available scientific evidence: Art 61. They must promote optimum utilisation which includes, where unable to harvest an entire allowable catch, giving access to the surplus to other States, and taking into account the rights of landlocked, geographically-disadvantaged and developing States: Art 62. For the purposes of domestic law and consistent with its proclaimed rights within the EEZ, Australia declared a 200 nautical mile Australian Fishing Zone: Fisheries Management Act 1991 (Cth) ss 7, 8; Proclamation constituting waters of 200 nautical miles around Australia and its External Territories — Proclaimed Waters for the purposes of the Fisheries Act (20 September 1979).

The continental shelf 9.24

Coastal States can explore and exploit natural resources, including non-living resources of the seabed and subsoil, and all sedentary species within their claimed area of the continental shelf: Art 77.

9.25

States must submit information about the limits of their claims beyond 200 nautical miles from the territorial sea baseline to the

United Nations (UN) Commission on the Limits of the Continental Shelf: Art 76. Australia lodged its submission in 2004. In 2008 the UN Commission on the Limits of the Continental Shelf adopted recommendations confirming the location of the outer limit of Australia’s continental shelf in nine marine regions.

The high seas 9.26

Freedom of the high seas is traceable to Grotius: see Chapter 1. The high seas are open to all States. Landlocked States have a right of access to and from the sea: Art 125(1). Freedom of the high seas includes freedom of navigation, overflight, to lay submarine cables and pipelines, construct artificial islands, and conduct fishing and scientific research. Each freedom is exercised having regard to other States’ interests: Art 87. The high seas are reserved for peaceful purposes: Art 88. Claims of sovereignty are invalid: Art 89.

9.27

Ships are subject to the jurisdiction of the States whose flag they fly: SS Lotus Case (France v Turkey) (1927) PCIJ Ser A No 10. Ships can sail only under one flag: Art 92.

[page 149]

Flag States have exclusive jurisdiction to fix the conditions for granting nationality to ships, and custom requires a genuine link between them: Art 91(1); MV Saiga at [65], [79]–[88]. Nationality is

a factual question determined on the evidence: MV Saiga at [66]–[74]. Flag States address administrative, technical and social matters, establish a ships’ register and take measures to ensure safety at sea: Art 94. ‘Flags of convenience’ States fail to enforce health and safety standards. This led to the UN Convention on Conditions for Registration of Ships (1987) 26 ILM 1236 (not yet in force). 9.28

The exceptions to exclusive flag State jurisdiction include: ships in official UN service: Art 93; ships without a flag or more than one flag are subject to any States’ jurisdiction: Art 92(2); the flag State and State of nationality of an offender have jurisdiction after collisions or other incidents involving penal responsibilities: Art 97; all

States

can

arrest

ships

undertaking

unauthorised

broadcasting: Art 109; warships and government ships have rights of ‘visit’ and ‘approach’ over ships engaged in piracy or slave trading: Art 110. Piracy attracts universal jurisdiction under custom. Pirate ships and aircraft may be arrested: Art 105. States must cooperate to repress piracy on the high seas: Art 100; coastal States have under custom a right of ‘hot pursuit’ over vessels which violated national law within internal waters or territorial seas prior to entering the high seas: Art 111. Australia

asserted this right, for example, during 2003 when pursuing a Uruguayan vessel for 20 days after it illegally fished for Patagonian

toothfish

in

Australian

waters.

Cumulative

conditions must be met to pursue vessels after they leave territorial waters in order to legitimately exercise this right, and excessive force is prohibited: MV Saiga at [146]–[159].

The deep seabed 9.29

The seabed, ocean floor and subsoil (the Area) and resources beyond the limits of national jurisdiction are the common heritage of mankind: Art 136. Activities in the Area are carried out to benefit mankind: Art 140.

9.30

Part XI of UNCLOS specifies a regime for minerals on the deep seabed. The International Seabed Authority (ISA) authorises seabed exploration and mining and distributes royalties. Developed States disliked this regime. Following negotiations, the Agreement relating to the Implementation of Part XI of UNCLOS (1994) 33 ILM 1309 (entered into force 28 July 1996) provides that some UNCLOS provisions (eg, limits on seabed production, mandatory technology transfer) are

[page 150]

inapplicable. States and the ISA must ensure that sponsored activities

do not harm the marine environment and comply with the precautionary principle: ITLOS Seabed Disputes Chamber, Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area, Case No 17 (1 February 2011).

Australia’s maritime zones under the Commonwealth Constitution 9.31

The Seas and Submerged Lands Act 1973 (Cth) vests proprietary rights and legislative power over the territorial sea, seabed, airspace and continental shelf in the Commonwealth. This legislation is constitutionally valid: New South Wales v Commonwealth [1975] HCA 58 at [53] (Seas and Submerged Lands Act case). Under the Offshore Constitutional Settlement, Australia’s states and territories have primary responsibility over coastal waters within three nautical miles whereas areas beyond are regulated by the Commonwealth. Australia’s maritime jurisdiction map series is available through Geoscience Australia: .

MARITIME ISSUES Delimitation of the continental shelf and EEZ between adjacent or opposite States 9.32

Terminology exists which applies to delimitation. An ‘equidistant line’ is one for which every point on the line is equidistant from the nearest points on the baselines being used: Qatar/Bahrain at [177]: see Figure

9.2. A ‘median line’ typically refers to equidistant lines between opposite (and occasionally adjacent) coasts, although it can refer to any boundary line between States, whether or not it also marks an equidistant line. 9.33

Article 6 of the UN Convention on the Continental Shelf (opened for signature 29 April 1958, (1962) 499 UNTS 311, [1963] ATS 12, entered into force 10 June 1964) specified that the continental shelf boundary was determined by applying the equidistance principle, unless another line was justified by special circumstances.

9.34

This rule did not reflect custom. Equity did not necessarily imply equality. Delimitation is instead effected in accordance with equitable principles taking into account all relevant circumstances, thereby furthering the natural prolongation of land territory into and under the sea without encroaching on that of another State: Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands [1969] ICJ Rep 3 (North Sea Continental Shelf cases) at [85], [91], [101]. This is a rule of custom: Maritime Boundary in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 34 at 38.

[page 151] Figure 9.2

MARITIME BOUNDARIES BETWEEN OPPOSITE AND ADJACENT STATES USING EQUIDISTANT LINES

[page 152]

9.35

Adjacent or opposite coastal States cannot extend their territorial seas beyond a median line every point of which is equidistant from their baselines, unless necessary to vary that line because of historic title or

special circumstance: Art 15. Delimitation of the EEZ (Art 74) and continental shelf (Art 83) is effected by agreement based on international law to achieve an equitable solution. For example, Australia has concluded maritime boundary delimitations with neighbouring States (eg, New Zealand), establishing certain EEZ and continental shelf boundaries: Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (opened for signature 25 July 2004, [2006] ATS 4, entered into force 25 January 2006). 9.36

Delimitation requires good faith negotiations with a genuine intention by States to achieve a positive result. Otherwise delimitation is effected by recourse to a third party having the necessary competence: Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v USA) [1984] ICJ Rep 246 (Canada/USA) at [126].

9.37

International law permits resort to various principles and methods to effect delimitation provided that, by applying equitable principles, a reasonable result is obtained: North Sea Continental Shelf cases at [90]. Delimitation of a single maritime boundary proceeds as follows (Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ Rep 120 at [116]–[122]; Eritrea v Yemen (Phase 2: Maritime Delimitation) (1999) 119 ILR 417 (Eritrea/Yemen) at [39]; Land and Maritime Boundary (Cameroon v Nigeria) [2002] ICJ Rep 303

(Cameroon/Nigeria) at [288]): 1.

A provisional line is first drawn using geometrically objective lines appropriate for the regional geography. An equidistant line is adopted between adjacent coasts, in the absence of compelling reasons to do otherwise, and a median line for opposite coasts.

2.

Factors calling for adjustment or a shifting of the provisional equidistant line so as to achieve an equitable result are then considered.

3.

Ensure that the provisional line as adjusted does not lead to an inequitable result because of disproportionality. For example, the proportionality of continental shelf areas relative to the general direction of coastlines is relevant when delimiting the continental shelf: North Sea Continental Shelf cases at [91], [101]. The purpose of delimitation is not to apportion equal

[page 153]

or proportional shares. Disproportionality checks whether the boundary arrived at by other means needs adjustment because of a significant disproportionality between the States’ respective maritime areas and their coast lengths. Manifest disproportionality is to be avoided.

Factors relevant to delimitation 9.38

Courts and international tribunals typically adopt a median line as the starting point for deliberations. They cannot refashion nature to effect distributive justice: North Sea Continental Shelf cases at [91]. The economic position (including relative poverty) between two States cannot influence delimitation: Libya/Malta at [107]; Tunisia/Libya at 77.

9.39

Various geographical (eg, concave coastlines), historical and other factors can be relevant for identifying an equitable solution. There is no legal limit on the considerations which States may take into account when applying equitable procedures: North Sea Continental Shelf cases at [93].

9.40

A continental shelf’s natural prolongation has been a relevant circumstance (North Sea Continental Shelf cases at 24) but has also been discounted: Libya/Malta at 35. Seabed features (eg, troughs, trenches) do not play a significant role unless they disrupt a shelf’s essential unity: Anglo-French Continental Shelf Arbitration (1978) 54 ILR 6 at [104]–[108]. Distance from the coast is an important element for demarcating both the continental shelf and EEZ: Libya/Malta.

9.41

Coastal States are presumed to have sovereignty over islands within their territorial sea or where proximate to them. However, islands will not be given a disproportionate effect: Qatar/Bahrain at [218];

Libya/Malta at 48. Remote or barren islands with little or no population may be disregarded: Eritrea/Yemen at [147]. Islands are also relevant to continental shelf delimitation: Qatar/Bahrain at [195]; Cameroon/Nigeria at [299]. 9.42

Delimitation impacts on fishing activities can be considered to avoid catastrophic repercussions for the livelihood and economic well-being of populations: Canada/USA at 342. Pearling banks did not justify shifting an equidistant line: Qatar/Bahrain at [236]. Petroleum concessions are only relevant if they evidence acquiescence or the tacit consent of States to agreed delimitation lines: Cameroon/Nigeria at [288], [304]. Additional factors include the permanent presence of ice blocking navigation, as well as fisheries, navigational routes, security issues and strategic considerations.

[page 154]

Maritime boundaries and developing mineral resources 9.43

States must cooperate over shared mineral deposits straddling a single maritime boundary: Eritrea/Yemen at [86]. There is no such duty for the purposes of equitable sharing or restrained resource exploitation if there is no agreed boundary delimitation, although another State’s rights should not be generally prejudiced.

9.44

Pending agreement on a continental shelf delimitation, States are

expected to conclude provisional arrangements of a practical nature which do not prejudice a final delimitation: Art 83. Example

THE TIMOR GAP DISPUTE BETWEEN AUSTRALIA AND TIMOR-LESTE For the seabed fronting then Indonesian East Timor, Indonesia sought to apply a median line whereas Australia emphasised the significance of the Timor trough. Shared exploitation of the disputed area was agreed: Treaty on the Zone of Cooperation (the Timor Gap Treaty) (opened for signature 11 December 1989, [1991] ATS 9, entered into force 9 February 1991). Following Indonesia’s withdrawal, a joint petroleum development area was established between Australia and Timor-Leste: Timor Sea Treaty (opened for signature 20 May 2002, [2003] ATS 13, entered into force 2 April 2003); see Figure 9.3. The Greater Sunrise mineral deposits straddle a line agreed for joint development purposes without prejudicing their juridical positions: Memorandum of Understanding concerning an international unitisation agreement for the Greater Sunrise field (6 March 2003); Agreement relating to the unitisation of the Sunrise and Troubadour fields (opened for signature 6 March 2003, [2007] ATS 11, entered into force 23 February 2007). Timor-Leste is seeking to declare the Timor Sea Treaty invalid: Permanent Court of Arbitration, Arbitration under the Timor Sea Treaty (Timor-Leste v Australia) (instituted 23 April 2013).

[page 155] Figure 9.3

MAP OF JOINT PETROLEUM DEVELOPMENT AREA BETWEEN AUSTRALIA AND TIMOR-LESTE

Key: A Australia; B East Timor; C Indonesian Timor; D Ashmore Island; E Timor Sea; F Timor trough; G Greater Sunrise deposit; H Timor Gap; I Joint Petroleum Development Area under the Timor Sea Treaty (zone of cooperation); J Agreed 1972 seabed boundary; K Agreed EEZ boundary.

International straits and the right of transit passage 9.45

Straits are used for international navigation between one part of the high seas or an EEZ and another: Art 37. The decisive criteria for an international strait are its geographical situation as connecting two parts of the high seas and its use for international navigation: UK/Albania at 28. The transit regime under UNCLOS will not apply if there is another strait used for international navigation through the high seas or EEZ which is of similar convenience: Art 36.

9.46

All ships and aircraft have a right of transit passage which is continuous and expeditious: Art 38. Specific duties are assumed: Art 39. Although custom recognises a right of transit passage, the status of the UNCLOS provisions is uncertain as to their detail.

9.47

States bordering straits can adopt laws about navigational safety and fishing, as well as customs, sanitary, fiscal and immigration matters: Art 42. The right of transit passage cannot be prohibited during peacetime: UK/Albania at 28.

[page 156]

Environmental conservation Conserving the living resources of the high seas 9.48

States must cooperate to conserve the living resources of the high seas: Arts 117, 118. Treaties can be concluded. For example, coastal and high seas fishing States cooperate to manage fish stocks, including adopting a precautionary approach: UN Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (opened for signature 4 December 1995, (1995) 2167 UNTS 88, entered into force 11 December 2001).

9.49

Coastal States and international organisations can regulate the taking of marine mammals including cetaceans more strictly: Art 65. Australia created the Australian Whale Sanctuary: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 225.

Protecting and preserving the marine environment 9.50

States must protect and preserve the marine environment: Art 192.

They have the right to exploit their natural resources under their own environmental policies: Art 193. States must prevent, reduce and control marine environmental pollution from all sources and ensure that activities under their control do not cause pollution to the environment of other States: Art 194. They must also formulate rules, standards, practices and procedures: Art 197. See Chapter 5. 9.51

Pollution from land-based sources includes rivers, pipelines and the atmosphere: Art 207. Pollution prevention measures are applied to ships flying the national flag and as a condition of entry into ports and internal waters: Art 207. States may enforce proportionate measures after a ‘maritime casualty’, which includes a collision, stranding, navigation incident or other occurrence which results in or threatens material damage to vessels or cargo: Art 221.

9.52

States must protect archaeological and historical objects: Art 303; UN Convention on the Protection of Underwater Cultural Heritage (opened for signature 2 November 2001, (2002) 41 ILM 37, entered in force 2 January 2009).

DISPUTE SETTLEMENT 9.53

Disputes are to be settled peacefully: Art 279. UNCLOS disputes may be settled by any peaceful means: Art 280. Obligations under general, regional or bilateral agreements can take precedence: Art 282. States party to UNCLOS may resort to conciliation (Art 284) or

compulsorily submit to a court or tribunal having

[page 157]

jurisdiction (Art 286). Some disputes are excluded: Arts 297, 298. Under Art 287, States may declare resort to: ITLOS (UNCLOS Annex VI; ). Provisional measures can be ordered: Art 290. ITLOS commonly deals with claims to promptly release arrested vessels and crew upon the posting of a reasonable bond or security for which it has compulsory jurisdiction: Arts 73(1), 292; The ‘Camouco’ Case (Panama v France) (2000) ITLOS Case No 5 at [67]; The ‘Volga’ Case (Russian Federation v Australia) (2002) ITLOS Case No 11; the International Court of Justice (ICJ); arbitral tribunals under UNCLOS Annexes VII or VIII (see Chapter 12). Australia has chosen ITLOS and the ICJ but does not accept any dispute settlement procedures for disputes about sea boundary delimitations and historic bays or titles.

[page 159]

CHAPTER 10

State Responsibility

[page 160]

INTRODUCTION 10.1

The rules of state responsibility are used to determine when a State will be held responsible for a breach of international law. These rules can be described as secondary rules, where the substantive duties and entitlements of States are described as primary rules. The rules of state responsibility address the circumstances in which a breach of international law will be attributable to a State, as well as the factors which might excuse a State from liability. They also set out the consequences of finding that a State is responsible for a breach of international law.

10.2

The law of state responsibility is found in customary international law rather than in a multilateral treaty. In 2001 the International Law Commission (ILC) published a set of articles on state responsibility, intended to represent a codification of existing customary rules: Draft Articles and Commentary on the Responsibility of States for Internationally Wrongful Acts [2001] 2(2) Yearbook of the International Law Commission (Articles on State Responsibility). Unless otherwise stated, references in this chapter to articles or commentary are to the Articles on State Responsibility and associated commentary by the ILC. While not binding in and of themselves, many of the articles are considered to be an authoritative statement of

customary principles. The United Nations (UN) General Assembly has commended the articles to States for their consideration (GA Res 56/83, UNGAOR 56th sess, 85th plen mtg, UN Doc A/RES/56/84 (28 January 2002)) and they have been applied by a number of courts and tribunals.

RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS 10.3

The fundamental principle of state responsibility is that ‘every internationally wrongful act of a State entails the international responsibility of that State’: Art 1. This general principle incorporates the two key issues for determining state responsibility: whether there is an internationally wrongful act and whether that act can be considered to be an act of the State in question: see Art 2.

Internationally wrongful act 10.4

An act will be internationally wrongful if it does not comply with the obligations in place under international law: Art 12. A State is only bound by the law which applied at the time the act in question occurred: Art 13. It is not relevant that the act may have been lawful under domestic law: Art 3.

Attribution 10.5

There are a number of ways in which an action can be attributed to a State. Some of these forms of attribution are related to the role which

an individual or entity

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holds within the State while others relate to the degree of control which the State had over the actor in question.

Organs of a State 10.6

The conduct of any organ of a State will be attributable to that State: Art 4. An organ includes any person or entity which is given that status by the State’s domestic law (Art 4(2)) but it is not limited to those persons or entities: Commentary on Art 4 at [11]. Rather, the term ‘organ’ refers to any individual or entity which makes up the organisation of the State: Art 4(1); Commentary on Art 4 at [1].

10.7

The term ‘organ’ includes those which perform a legislative, executive, judicial or any other function: Art 4(1). It includes organs at all levels of government, and no distinction is made between higher or lowerlevel officials: Commentary on Art 4 at [6]. In nations with a federal system of government, the organs of a territorial unit of government, such as a territory, state or province, will also be considered organs of the nation-State for the purposes of attribution: Art 4(2).

10.8

The conduct of an organ of a State will be attributed to that State where the organ is acting in its capacity as an organ of the State, even

if it acts outside the specific authority which has been given to it: Art 7. If the organ is acting in a private capacity then its actions will not be attributable to the State: Commentary on Art 8.

Persons or entities exercising governmental authority 10.9

Article 5 of the Articles on State Responsibility provides that the conduct of a person or entity which is not an organ of the State will still be attributable to a State where that person or entity is empowered by the law of the State to exercise elements of governmental authority. For example, private security companies which operate prisons or detention centres will be exercising governmental authority with respect to the implementation of criminal sentences or detention. See further Yeager v Islamic Republic of Iran (1987–IV) 17 Iran-USCTR 92 at 104.

10.10 The actions of persons or entities empowered with governmental authority will be attributable to the State provided they are acting in that capacity at the relevant time: Art 5. As with organs of a State under Art 4, the conduct of persons or entities exercising governmental authority will be considered to be conduct of the State even where they act beyond the authority that has been given to them: Art 7; see, for example, Caire Claim (France v United Mexican States) (1929) 5 RIAA 516 at 531; TH Youmans Claim (US v Mexico) (1926) 4 RIAA 110.

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Organs placed at the disposal of one State by another State 10.11 Under Art 6, the conduct of an organ which is placed at the disposal of a State by another State will be attributed to the former State where that organ is exercising the governmental authority of that State.

Conduct directed or controlled by a State 10.12 If a person or group of persons is acting on the instructions of or under the direction or control of a State then their conduct will be attributable to that State: Art 8. 10.13 While it is reasonably straightforward to establish that an agent is acting on the instructions or under the direction of a State, it has proved somewhat more contentious to determine the degree of control which a State is required to exercise over persons in order to be responsible for their conduct. The question of whether a State has exercised sufficient control over the actions of a person or persons is to be determined in each case looking at the particular conduct in question. Case Summary

MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA V UNITED STATES) (MERITS) [1986] ICJ REP 14 (NICARAGUA MERITS case) INTERNATIONAL COURT OF JUSTICE FACTS: The United States of America (US) had provided support to rebels in Nicaragua (known as contras) in carrying out a number of attacks against the territory of Nicaragua, including supplying them with financing and equipment. The attacks involved conduct which was contrary to international human rights and humanitarian law. ISSUE: Were the actions of the contras attributable to the US? DECISION: The International Court of Justice (ICJ) held that, while the US’ actions were a breach of international law in that they interfered with the territorial sovereignty of Nicaragua, it had not exercised ‘effective control’ over the actions of the contras and it could not therefore be held responsible for specific breaches of international human rights and humanitarian law which they had perpetrated. By seeking to establish whether the US had exercised ‘effective control’, the court was evaluating whether it had ‘directed or enforced the perpetration of the acts [page 163] contrary to human rights and humanitarian law alleged by the applicant State’: Nicaragua Merits at [115]. The court held that the provision of financial and other support did not reach the requisite standard of effective control. For a critical discussion of the test for direction and control, see Antonio Cassese, ‘The Nicaragua and Tadic tests revisited in light of the ICJ judgment on Genocide in Bosnia’ (2007) 18(4) European Journal of International Law 649. The ‘effective control’ test was affirmed by the Court in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43.

Conduct of persons acting in the absence of official authorities

10.14 A State can be responsible for the conduct of persons who exercise governmental authority in circumstances where official authorities are absent but where the exercise of governmental authority is required: Art 9.

Conduct of insurrectional movements 10.15 The conduct of insurrectional movements can be attributed to a State if the movement later becomes the new government of that State: Art 10(1). Where the insurrectional movement succeeds in establishing a new State, its conduct shall be attributed to the new State: Art 10(2).

Conduct acknowledged and adopted by a State as its own 10.16 Even where conduct is not otherwise attributable to a State, it will be considered to be the conduct of that State where it subsequently acknowledges the conduct and adopts it as its own: Art 11. Case Summary

CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (UNITED STATES OF AMERICA V IRAN) (JUDGMENT) [1980] ICJ REP 3 (TEHRAN HOSTAGES case) INTERNATIONAL COURT OF JUSTICE FACTS: The US Embassy in Iran had been seized by a militant group known as the Muslim Student Followers of the Imam’s Policy and the staff of the embassy was [page 164] detained. The group was not affiliated with the Iranian government and had not been instructed or supported to carry out the attack. In the days following the attack several members of the Iranian government expressed support for the group’s actions. Ayatollah Khomeini made public remarks indicating not only that he supported the attack, but that he regarded it as being an action on behalf of the State of Iran. ISSUE: Could the actions of the militant group be attributed to the State of Iran? DECISION: The ICJ held that Iran’s subsequent acknowledgement and acceptance of the actions were sufficient to attribute the conduct to Iran, which was therefore responsible for the internationally wrongful acts which had occurred.

Responsibility of a State in connection with the act of another State 10.17 There are a number of ways in which a State can be held responsible for an internationally wrongful act carried out by another State. These include circumstances where one State: aids or assists another State in carrying out an internationally wrongful act: Art 16;

directs or controls another State in carrying out an internationally wrongful act: Art 17; coerces another State to perform an internationally wrongful act: Art 18.

CIRCUMSTANCES PRECLUDING WRONGFULNESS 10.18 The Articles on State Responsibility set out a number of ways in which the wrongfulness of a State’s act may be excused. However, these mechanisms will never excuse a breach of a peremptory norm (see 2.33): Art 26.

Consent 10.19 Where one State validly consents to another State’s act, the latter State will be excused of any wrongfulness associated with that act with respect to the former State: Art 20.

Self-defence 10.20 A State will be excused of any wrongfulness associated with an act which is carried out as a valid act of self-defence under the Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter): Art 21.

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Countermeasures 10.21 The wrongfulness of a State’s act will be excused where the act constitutes a valid countermeasure: Art 22. Countermeasures consist of the non-performance by one State of its international obligations in order to induce another State to comply with its own obligations: Art 49(1) and (2). 10.22 A State proposing to take countermeasures must first call on the other State to comply with its obligations and then notify that State of the decision to take countermeasures and offer to negotiate: Art 52. 10.23 Countermeasures must: not constitute a threat or use of force: Art 50(1)(a); not derogate from fundamental human rights (Art 50(1)(b)) or peremptory norms (Arts 26, 50(1)(d)); be proportionate: Art 51; Air Services Agreement case (France v US) (1978) 18 RIAA 416; as far as possible, be taken in a way which allows for the resumption of the performance of obligations in the future: Art 49(3); be terminated once the responsible State has complied with its obligations: Art 53; cease if the dispute is taken to a court or tribunal: Art 52(3)(b).

Force majeure

10.24 An action by a State will be excused if it is due to force majeure: Art 23. Force majeure is an irresistible force or unforeseen event which is beyond the control of the State and which makes it impossible for the State to perform its obligations: Art 23(1). 10.25 The Articles on State Responsibility specifically exclude reliance on force majeure where: the State’s own conduct has caused the situation: Art 23(2)(a)); or the State has voluntarily assumed the risk of that situation occurring: Art 23(2)(b)).

Distress 10.26 Where an organ or agent of a State is acting in response to a situation of distress, the State concerned will be excused of any wrongfulness associated with those acts: Art 24. A situation of distress exists, for example, where the actor’s life or the lives of others are in danger.

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10.27 A State cannot rely on distress if: the State has created the situation of distress: Art 24(2)(a); or the act is likely to cause comparable or greater peril: Art 24(2) (b).

Necessity 10.28 Under Article 25, a State may rely on necessity to excuse an otherwise wrongful act provided: the act is the only way to safeguard an essential interest of the State: Art 25(1)(a); and the act does not seriously impair an essential interest of another State: Art 25(1)(b); and the State has not contributed to the situation of necessity: Art 25(2)(b); and the particular obligation concerned does not exclude the possibility of invoking necessity: Art 25(2)(a). See further Case concerning Gabcikovo-Nagymaros (Hungary v Slovakia) [1997] ICJ Rep 7 at 40, 46.

CONSEQUENCES OF A FINDING OF STATE RESPONSIBILITY 10.29 A number of consequences flow from a finding that a State is responsible for an internationally wrongful act. First, the Articles on State Responsibility make clear that a State remains under an obligation to perform its duties under international law: Art 29. Where a State is engaging in conduct which breaches international law it is required to cease that conduct and give assurances of nonrepetition of such conduct: Art 30.

Reparations 10.30 The other major consequence of a finding of responsibility is that the responsible state will be obliged to make reparations for any injury which flows from its international wrongful act: Art 31. ‘Injury’ is defined to include any physical or moral damage. See, for example, Chorzow Factory (Indemnity) [1928] PCIJ Ser A No 17 at 47. The domestic law of the responsible State is not relevant to the obligation to make reparation: Art 32. There are three principal forms of reparation: restitution, compensation and satisfaction: Art 34.

Restitution 10.31 A responsible State will be required to take action to re-establish the situation which existed before the wrongful act was committed: Art 35. However, restitution will only be required to the extent that it is not: materially impossible;

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disproportionately burdensome relative to the benefits to be gained from making restitution.

Compensation 10.32 To the extent that the injury caused by an internationally wrongful act

cannot be made right by way of restitution, a State will be required to pay compensation. Compensation will cover any financially assessable loss arising from the internationally wrongful act: Art 36(2)

Satisfaction 10.33 Where it is not possible to fully repair the injury caused by an internationally

wrongful

act

through

either

restitution

or

compensation, a State will be liable to give satisfaction: Art 37. This can come in the form of a formal apology, expression of regret, acknowledgment of wrongdoing or ‘another appropriate modality’: Art 37(2). 10.34 It is possible for monetary payments to be ordered as a form of satisfaction. These payments are not the same as compensation, as they are designed to approximate the non-material injury suffered by a State, rather than to compensate for assessable losses: Commentary on Art 46 at [4]. 10.35 Satisfaction must not: be out of proportion to the injury suffered; be humiliating to the responsible State.

RESPONSIBILITY OF INTERNATIONAL ORGANISATIONS 10.36 International organisations may also be held internationally

responsible: see ILC, Draft Articles on the Responsibility of International Organisations, UN Doc A/64/10 (2009); Maclaine Watson and Co Ltd v International Tin Council (International Tin Council cases) (1988) 80 ILR 110. For discussion of the legal personality of international organisations, see 4.34.

TREATMENT OF FOREIGN NATIONALS 10.37 There are principles which apply to determine when a State will be responsible for mistreatment of another State’s citizen. Usually treatment of a foreign national will be judged according to international minimum standards. For example, although States can nationalise alien property, the compulsory taking of that property must generally be non-discriminatory, for a public purpose, and be accompanied by appropriate compensation.

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Diplomatic protection 10.38 Where a State has treated a foreign citizen in a way which breaches international law, that individual’s State of nationality may be entitled to bring an action on his or her behalf through the doctrine of diplomatic protection. A State has a right to assert diplomatic protection over its nationals, whether they be individuals or corporations, where local remedies have been exhausted: Nottebohm

Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 at 23; Case concerning Barcelona Traction Light and Power Co Ltd (Belgium v Spain) [1970] ICJ Rep 3 at 42.

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CHAPTER 11

Use of Force

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INTRODUCTION 11.1

The use of force is basically prohibited in international law (1) and only exceptionally permitted under specific circumstances, notably, in self-defence (2): see Ottavio Quirico, A Purely Formal Theory of Law – The Deontic Network, EUI MWP 2009/11, particularly pp 17–22, . If allowed, resort to force is decentralised under general international law, but centralised within the framework of the United Nations (UN). Although primarily focused on physical force, this regulatory framework should also apply to the use of force in cyberspace: Marco Roscini, Cyber Operations and the Use of Force in International Law, Oxford University Press, 2014.

INTERNATIONAL PROHIBITION ON THE USE OF FORCE 11.2

In a broad sense, the concept of ‘force’ encompasses military force and other conduct, such as economic or political constraints. In a narrower sense, ‘force’ refers to ‘armed coercion’. This is the

meaning commonly adopted in international law. In fact, the Preamble to the Charter of the United Nations ((UN Charter) adopted 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) provides that the UN aims to ‘save succeeding generations from the scourge of war’, so that ‘armed force shall not be used, save in the common interest’. 11.3

The International Court of Justice (ICJ) clarified the concept of ‘force’ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14 (Nicaragua case).

Case Summary

MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v UNITED STATES OF AMERICA) [1986] ICJ Rep 14 (NICARAGUA case) INTERNATIONAL COURT OF JUSTICE FACTS: In Nicaragua, the ICJ adjudicated upon the claim that the United States of America (US) acted against Nicaragua by several means, including the use of force, after the right-wing Nicaraguan Somoza Government had been overthrown by the revolutionary left-wing Sandinista movement in 1979. [page 171] Nicaragua argued that the US used armed force by laying mines in Nicaraguan territorial waters and attacking ports, oil installations and a naval base in its territory. Nicaragua also claimed that the US, by means of equipment, financing and training, provided logistical support to the right-wing rebel group contras (contrarrevolucionarios) in its fight against the newly established Sandinista government. Allegedly, the use of force was contrary to customary international law. ISSUE: What is the meaning and scope of the concept of ‘force’? DECISION: The ICJ pointed out that the word ‘force’ must be interpreted as ‘armed force’ and held that conduct such as laying mines in territorial waters and attacking Nicaraguan installations is in breach of the prohibition on the use of force. Equipping, financing and training the contras was also considered to be in breach of the prohibition on the use of force, since, according to the court, ‘assistance to rebels in the form of the provision of weapons or logistical or other support … may be regarded as a threat or use of force’ (Nicaragua at 103–4, [195], 118, [228]).

11.4

Even a threat to resort to the use of force is absolutely prohibited in international law. This prohibition is explicitly embedded in Art 2(4) of the UN Charter: All Members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Similar wording is embedded in the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, adopted by the UN General Assembly on 24 October 1970: Resolution 2625 (XXV). The Declaration also condemns aggressive war as ‘a crime against the peace’. 11.5

The UN Charter and Resolution 2625 (XXV) are complemented by UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 on the Definition of Aggression. This Resolution outlines a general framework for the illegal use of force in international law. It defines aggression as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations’: Art 1. Only particularly grave acts qualify as ‘aggression’ under Art 2, and a non-exhaustive list is provided for in Art 3.

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11.6

Consistently with this approach, in Nicaragua the ICJ determined that, albeit in breach of the prohibition on the use of force and the principle of non-intervention in domestic affairs under Resolution 2625 (XXV), logistical support to the contras was not sufficiently

grave to infringe the prohibition of aggression under Resolution 3314 (XXIX): Nicaragua at 101, 103–4, [191] and [195], 118–19, [228]. 11.7

According to Resolution 3314 (XXIX), aggression is also a crime against international peace: Art 5(2). An advantage obtained as a result of agression has no legal effect and any territorial acquisition by the aggressor is not legally recognised: Art 5(3).

11.8

The prohibition on the use of force has customary status under general international law. In Nicaragua, the ICJ upheld the existence of ‘obligations under customary international law not to use force against another State’: Nicaragua at 100–1, [292]. The court also determined that UN rules on the prohibition of force codify customary international law, since ‘principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary international law’: Nicaragua at 99, [188].

11.9

On several occasions, the prohibition on the use of force has been attributed the rank of jus cogens, or erga omnes law (see Chapter 2 and Ottavio Quirico, ‘Ius Cogens: a Puzzle’, in Marcel Szabó (ed), State Responsibility and the Law of Treaties, Eleven International Publishing, 2010, at 101). In Nicaragua, the ICJ upheld the peremptory status of the prohibition on aggression: at 100–1, [190]. This interpretation was

maintained by the International Law Commission (ILC) in its commentary to Art 40 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles on State Responsibility, 2001): see ILC, Report to the General Assembly, UN Doc A/56/10 283 and Chapter 10. In Barcelona Traction, Light and Power Company, Ltd (Belgium v Spain) (New Application: 1962) [1970] ICJ Rep 3 (Barcelona Traction case), the ICJ qualified the prohibition of aggression as an erga omnes obligation, owed by a State to the international community as a whole: Barcelona Traction at 32, [34].

SELF-DEFENCE 11.10 Although absolutely prohibited under primary international law rules, the use of force is exceptionally permitted under secondary international law norms.

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The main justification is self-defence: under general international law, in the case of an armed attack by a State (A), the attacked State (B) can lawfully react. 11.11 The right to self-defence has been recognised under customary international law since the Caroline case (Great Britain v United States)

(1840–41/1842–43) 29-30 British and Foreign State Papers 1126 and 193. In 1837, forced to flee to the US after leading a failed rebellion in Upper Canada (now Ontario), which was ruled by Britain, a group of Canadian rebels seeking to establish a Canadian Republic under the leadership of William Lyon Mackenzie took refuge on Navy Island, on the American side of the Niagara River. The rebels declared themselves the ‘Republic of Canada’ and committed repeated attacks against British forces. Defying US governmental measures seeking to enforce neutrality, American sympathisers supplied Canadian rebels with money, provisions, and arms, also using the vessel SS Caroline, a small steamer connecting the mainland and Navy Island. On 29 December 1837, British forces seized the Caroline and cast it over the Niagara Falls. Out of the 33 members of the crew, 12 were reportedly missing, one was killed on the dock by a musket ball and several others were wounded. The United Kingdom (UK) claimed that the attack on the Caroline was an act of self-defence committed by persons in Her Majesty’s service. The case was finally settled by US and British representatives in the course of the negotiations that led to the Webster-Ashburton Treaty (1842). During the negotiations, it was pointed out that resort to self-defence may only be justified if the ‘necessity of self-defence is instant, overwhelming, and leaving no choice of means, and no

moment for deliberation’: Diplomatic Correspondence between Mr Webster, for the United States, and Lord Ashburton, for the United Kingdom (28 April 1841). 11.12 In 1945, the customary principle of self-defence was codified in Art 51 of the UN Charter, which refers to an ‘inherent right of individual or collective self-defence’: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at

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any time such action as it deems necessary in order to maintain or restore international peace and security.

11.13 In Nicaragua, the ICJ clearly stated that the expression ‘inherent right to self-defence’ embedded in Art 51 of the UN Charter can only be read as a ‘reference to customary international law’: Nicaragua at 94, [176]. Complementarity between general international law and the UN Charter was subsequently maintained by the ICJ in Legal Consequences

of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Wall case), where the court held that ‘Article 51 of the [UN] Charter recognises the existence of an inherent right of self-defence in the case of armed attack by one State against another State’: Wall at 194, [139]. 11.14 Article 21 (Self-Defence) of the ILC’s Draft Articles on State Responsibility (2001) codifies general international law and confirms that customary rules and particular UN rules on self-defence complement each other: The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

This rule is embedded in Ch V of the ILC’s Draft Articles on State Responsibility (‘Circumstances Precluding Wrongfulness’). Therefore, it can be argued that resort to armed force in self-defence is a countermeasure, whereby the secondary legality of the use of force is based upon the primary illegality of aggression.

Necessity and proportionality 11.15 Since all countermeasures are subject to the principles set out in Arts 49–52 of the ILC’s Draft Articles on State Responsibility, selfdefence must fulfil the requisites of necessity and proportionality. ‘Necessity’ implies that no conduct other than the use of force (last resort) is a viable response to an illegal armed attack.

‘Proportionality’ refers to the intensity of armed force in selfdefence, which must be commensurate with that of the attack. 11.16 The criteria of necessity and proportionality were clarified by the ICJ in Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161 (Oil Platforms case).

[page 175] Case Summary

OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN v UNITED STATES OF AMERICA) [2003] ICJ Rep 161 (OIL PLATFORMS case) INTERNATIONAL COURT OF JUSTICE FACTS: In this case, the ICJ dealt with a number of attacks on merchant shipping that took place in the Persian Gulf during the Iran-Iraq War. The US and other States provided a naval escort for ships flying their flags. Following a tanker being hit by a missile in October 1987 and a warship being hit by a mine in international waters in April 1988, the US claimed self-defence and attacked Iranian oil platforms. ISSUE: What are the limits of necessity and proportionality? DECISION: The ICJ held that the US might have justified resort to force based on the right to self-defence, especially under Art 20(1)(d) of the US–Iran Treaty on Amity, Economic Relations and Consular Rights (adopted and opened for signature 15 August 1955, entered into force 16 June 1957), permitting a party to take measures ‘necessary to protect its essential security interests’. However, the court upheld the principles of necessity and proportionality, based on Nicaragua and Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226 (Nuclear Weapons). In light of this, on the one hand, the court considered the attack on oil platforms necessary, but not proportionate to the events of October 1987, as part of a broader military operation, involving, inter alia, the destruction of two Iranian frigates and other vessels and aircraft. On the other hand, the attack was considered unnecessary with respect to the incident of April 1988, particularly because the US did not complain about military operations on oil platforms (Oil Platforms at 198–9, [76]–[78]).

11.17 In Nuclear Weapons, the ICJ held that the criteria of necessity and proportionality apply under both general customary law and particular UN law: Nuclear Weapons at 245, [41]. Based on this premise, the court did not exclude the legality of the threat or use of nuclear weapons in ‘an extreme circumstance of self-defence’: Nuclear Weapons at 245, [97].

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Collective self-defence 11.18 Collective self-defence entails resort to armed force in countermeasure not only by the attacked State, but also by third States. Assuming that the prohibition on the use of force is a peremptory norm, in light of Arts 40, 41, 48 and 54 of the ILC’s Draft Articles on State Responsibility (2001), the possibility of collective selfdefence cannot be excluded under general international law. In particular, according to Art 41 States must cooperate in order to bring breaches of peremptory rules to an end. Therefore, injured and noninjured States can, or should, invoke responsibility under Arts 41 and 48, and resort to force in countermeasure according to Arts 21 and 54. Within the UN Charter, this pattern is underpinned by Art 51. 11.19 The existence of the right to collective self-defence under general and particular international law was clearly upheld by the ICJ in Nicaragua. Case Summary

MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v UNITED STATES OF AMERICA) [1986] ICJ Rep 14 (NICARAGUA case) INTERNATIONAL COURT OF JUSTICE FACTS: In this case, the US justified resort to force against Nicaragua as a measure of collective self-defence in support of El Salvador, Honduras and Costa Rica. ISSUE: Is there a collective right to self-defence in international law? DECISION: The ICJ determined that collective self-defence was not supported by sufficient evidence. However, the court upheld the principle of collective self-defence, provided there is an armed attack on a ‘victim’ State, requesting assistance, even if the assisting State is not under threat: There can be no doubt that the issues of the use of force and collective selfdefence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the United Nations Charter … the Court must express a view on the content of the right of self-defence, and more particularly the right of collective self-defence … with regard to the existence of this right, it notes that in the language of Article 51 of the [page 177] United Nations Charter, the inherent right (or ‘droit naturel’) which any State possesses in the event of an armed attack, covers both collective and individual self-defence … Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack … there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack. (Nicaragua at 27, [34], 102, [193], 104, [195], 199, [105])

Jus ad bellum and jus in bello

The rules on the prohibition of aggression and the use of force in self11.20 defence outline the foundations of jus ad bellum, which regulates engagement in war. 11.21 Jus ad bellum is complemented by jus in bello, including international humanitarian law, which governs the use of force in armed conflicts: Hans-Peter Gassel and Daniel Thürer, ‘International Humanitarian Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law, North-Holland, 2012, at [1]–[6].

Anticipatory self-defence 11.22 Determining when a State is acting in self-defence, and thus when the use of force is justified, is a matter of timing and raises the issue of anticipatory self-defence. 11.23 Under general international law, the possibility of reacting in selfdefence against a ‘threat’, rather than an actual ‘armed attack’ is admitted according to the Caroline doctrine. Article 2(4) of the UN Charter, which prohibits the ‘threat or use of force’, is consistent with this approach. Instead, Art 51 of the UN Charter, referring to an ‘armed attack’ and its ‘occurrence’, departs from customary international law. In light of these premises, it is controversial whether the limits of self-defence include action taken in anticipation so as to forestall a

danger before it materialises, thus encompassing potential threats, in addition to effectively threatened force. 11.24 During the 1962 Cuban Missile Crisis, the US resolved to take any action necessary to prevent missile deployment in response to the positioning of Soviet offensive missiles in Cuba.

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11.25 In the 1967 Six-Day War, Israel invaded neighbouring Arab territories, claiming to anticipate a supposed imminent attack by Arab States. 11.26 The most controversial case of pre-emptive self-defence is ‘Operation Iraqi Freedom’. In 2003, a combined force including troops from the US, UK, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of combat operations. The incursion was justified by the assumption that Iraq was in possession of weapons of mass destruction. For more than a decade, Iraq obstructed the work of UN weapons inspectors, in breach of the obligations imposed by UN Security Council Resolution 687/1991, which had been adopted after the liberation of Kuwait from Iraqi

occupation. This prompted the use of force by the US and allied powers. Despite the absence of an ad hoc UN authorisation, the members of the coalition justified the use of force based on an implied permission by the UN Security Council under Resolution 678/1990, which had been adopted to end the invasion of Kuwait by Iraq. This Resolution demanded that ‘Iraq comply fully with Resolution 678/1990 and all subsequent relevant resolutions’ and allowed UN Member States to ‘use all necessary means … to restore international peace and security’: ‘Memorandum of Advice to the Commonwealth Government on the Use of Force against Iraq’ (2003) 4 Melbourne Journal of International Law 178–82. After the 2003 occupation, only degraded remnants of abandoned chemical weapons were found. The US-led Iraq Survey Group concluded that in 1991 Iraq had ended its nuclear, chemical and biological programmes and had no active plans at the time of the invasion: Iraq Survey Group Final Report, Weapons of Mass Destruction (2004).

COUNTER-TERRORISM 11.27 Current State practice seems to acknowledge the legality of the use of (pre-emptive) armed force against terrorism (see Chapter 7), especially after the 9/11 attacks on the US.

11.28 UN Security Council Resolutions 1368 and 1373/2001 define a general framework for international counter-terrorism and recognise the ‘inherent right of individual or collective self-defence in accordance with the [UN] Charter’, as well as ‘the need to combat by all means, in accordance with the Charter

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of the United Nations, threats to international peace and security caused by terrorist acts’: Preamble. The Resolutions consequently authorise States to ‘take the necessary steps to prevent the commission of terrorist acts’: Resolution 1368/2001 at [4]; Resolution 1373/2001 at [2(b)]. Hence, a terrorist attack is considered a ‘threat’ or ‘use’ of force, triggering resort to force in self-defence: John Howard and John Dauth, ‘Defence Cooperation — Terrorism’ (2002) 22 Australian YBIL 354–5. 11.29 With regard to attribution of responsibility, terrorism is not traditional interstate war and is not necessarily attributable to a State. Indeed, Al-Qaeda, a private organisation, was considered mainly responsible for the 9/11 attacks. Therefore, in order to trigger the right of a State to act in self-defence, a (potential) terrorist attack committed by a private legal person must be attributable to another State, according to the criteria specified in Art 8 of the ILC’s 2001 Draft Articles on State Responsibility (Conduct Directed or

Controlled by a State). A State is thus responsible if a non-State legal person acts on State ‘instructions, direction or control’, as interpreted, in particular, in light of the ‘effective control’ test set by the ICJ in Nicaragua, at 64–5, [115]. Along these lines, based on UN Security Council Resolutions 1368 and 1373/2001, in October 2001 a US-led coalition undertook military operations against the Taliban regime, suspected of protecting Al-Qaeda terrorists in Afghanistan. 11.30 The problem of attribution of responsibility also arose in the Wall case before the ICJ. Case Summary

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITOTY (ADVISORY OPINION) [2004] ICJ Rep 136 (WALL case) INTERNATIONAL COURT OF JUSTICE FACTS: In 2003, the ICJ was requested by the UN General Assembly to provide an advisory opinion on the legality of the construction of a wall by Israel in occupied Palestinian territories. The wall aimed to prevent future terrorist attacks against Israeli targets. ISSUE: Is the use of force justified in self-defence against non-State legal persons? [page 180] DECISION: The court determined that the construction of the wall could not be justified as an act of self-defence against terrorist attacks committed by non-State legal persons: Article 51 of the Charter thus recognises the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the [terrorist] attacks against it are imputable to a foreign State. (Wall at 194, [139])

PROTECTION OF NATIONALS ABROAD 11.31 State practice seems to support the right of States to use armed force in order to rescue its own nationals, when their life or security is endangered abroad. In the 1976 Entebbe incident, Israel dispatched military forces to Uganda and rescued 100 citizens taken hostage after the diversion of

an Air France plane by armed terrorists, who in all likelihood acted with the support of Ugandan authorities. Relying on the same right, in 1980 the US resorted to military force in an attempt to liberate its diplomatic personnel taken hostage in Tehran. It is unclear whether this practice is an exercise of the right to selfdefence, or a mere derogation from the prohibition on the use of force.

HUMAN RIGHTS PROTECTION 11.32 Human rights breaches justify the use of force in international law, in particular, within the context of humanitarian intervention and selfdetermination.

Humanitarian intervention 11.33 According to the doctrine of humanitarian intervention, a State is authorised to use necessary and proportionate force to end human rights crises. The notion is nonetheless controversial and State practice is evolving in the matter: UK Foreign Office, ‘Policy Document No 148’ (1986) 57 British YBIL 614; UN Security Council, Report on Its 3988th Meeting, UN Doc S/PV 3988 (24 March 1999); Robin Crook, Secretary of State for Foreign and Commonwealth Affairs, ‘Humanitarian Intervention’ (19 July 2002)

(2000) British YBIL 646. 11.34 Given that human rights may be regarded as erga omnes obligations, possibly peremptory, their breach affects all other States of the international community,

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which should consequently be allowed to bring the violation to an end. Basically, massive human rights breaches, such as genocide, affect the international community as a whole and justify secondary derogations from the prohibition on the use of force: Vaughan Lowe and Antonios Tzanakopoulos, ‘Humanitarian Intervention’, in Wolfrum, Max Planck Encyclopedia of Public International Law, at [3], [26]–[35]. In this case, the use of force is not necessarily directed against another State, and thus humanitarian intervention also permits resorting to force outside classical bilateral or multilateral interstate relationships. 11.35 The most relevant case of humanitarian intervention is the military action carried out in the Former Republic of Yugoslavia by NATO Member States, as a reaction to the inhuman treatment of Albanian people in the autonomous province of Kosovo.

In order to free Kosovo from the Serbian army, which was considered responsible for the commission of grave human rights breaches against the Kosovar population, from 26 March to 10 June 1999 NATO Member States conducted aerial bombing operations in Belgrade and other parts of the territory of Serbia. Bombing was also conducted over residential areas, raising doubts as to the proportionality of the intervention. The use of force in Kosovo was condemned as illegal by Russia, China, India and other non-aligned States. In Legality of Use of Force (1999-2004), Serbia and Montenegro, having succeeded the Former Republic of Yugoslavia, challenged the legality of the aerial bombing by bringing an action in the ICJ against 10 NATO Member States. The cases were dismissed by the ICJ on jurisdictional grounds. In the course of oral arguments in the case of Serbia and Montenegro v Belgium, responding to a request for provisional measures by Serbia and Montenegro, Belgium argued: NATO, and the Kingdom of Belgium in particular, felt obliged to intervene to forestall an ongoing humanitarian catastrophe, acknowledged in Security Council Resolutions, to safeguard … essential values which also rank as jus cogens … the right to life, physical integrity, the prohibition of torture … this is an armed humanitarian intervention …

(Oral hearings of public sitting Monday 10 May 1999, verbatim record, CR 99/15)

Responsibility to protect

11.36 In the aftermath of the Kosovo war, it was suggested that the doctrine of humanitarian intervention be extended so as to make humanitarian

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intervention compulsory, according to the concept of ‘responsibility to protect’: International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001). ‘Responsibility to protect’ means that third States not only have a right, but also a duty to intervene in order to bring grave humanitarian crises to an end: Ingo Winkelmann, ‘Responsibility to Protect’, in Wolfrum, Max Planck Encyclopedia of Public International Law, at [1]– [2]. 11.37 The current state of practice, however, does not seem to acknowledge a ‘duty to protect’, since States have not yet fully endorsed the notion of ‘responsibility to protect’ outside the UN context: UN General Assembly, World Summit Outcome, Doc A/60/L1 (2005) [139]; UN Secretary General, Implementing the Responsibility to Protect, Doc A/63/677 (2009); but see Art 41 of the ILC’s Draft Articles on State Responsibility (2001). 11.38 When acts of terrorism constitute massive breaches of human rights, the doctrine of humanitarian intervention, or responsibility to protect, may be invoked in order to justify the use of force by a State as an

alternative to self-defence.

Protecting the right to self-determination 11.39 Not only are States obliged to refrain from forcible action that deprives peoples of the right to self-determination (Resolution 2625 (XXV) Principle 1), but Art 7 of Resolution 3314 (XXIX) also exceptionally authorises the use of force to protect this claim. 11.40 Resort to armed force is thus justified as a reaction to the breach of the basic collective human right to self-determination, which is embedded in Art 1 of both the International Covenant on Civil and Political Rights ((ICCPR) adopted 16 December 1966, opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976) and the International Covenant on Economic, Social and Cultural Rights ((ICESCR) adopted 16 December 1966, opened for signature 19 December 1966, 993 UNTS 3, entered into force 3 January 1976).

USE OF FORCE WITHIN THE UN SYSTEM 11.41 Along the lines of the fundamental purpose of maintaining peace set out in Art 1 of the UN Charter, within the UN system specific procedures govern resort to armed force as a response to the violation of the prohibition on the threat or use of force codified in Art 2(4). These procedures are regulated in Chs VI and VII of the UN Charter.

[page 183]

11.42 A UN Member State can only temporarily act in self-defence under Art 51 of the UN Charter and has an obligation to report its conduct to the Security Council. Furthermore, disputes endangering the maintenance of peace should preferably be settled through nonviolent means: UN Charter Arts 33–38. 11.43 If peaceful means prove insufficient and a dispute is likely to threaten or breach peace or amount to an act of aggression (UN Charter Art 39), the Security Council can take provisional measures aiming to prevent aggravation of the situation (Art 40) and action not involving the use of armed force (Art 41). Eventually, the Security Council may take measures involving the use of armed force by air, sea or land: UN Charter Art 42. Measures outlined in Arts 39, 40 and 41 are sanctions adopted via an affirmative vote of nine members of the Security Council, including the concurring votes of the permanent members, which thus have a power of veto: UN Charter Art 27(3). 11.44 If the Security Council is paralysed by the veto mechanism, the use of force under Art 41 of the UN Charter may exceptionally be decided by the General Assembly. This power was acknowledged in 1950 by the Assembly via Resolution 377/A (Uniting for Peace – Acheson) in the context of the 1950–53 Korean War. 11.45 For the purpose of enforcement, States should make the necessary

facilities and military forces available to the Security Council: UN Charter Arts 43 and 45. However, the Council usually mandates States to take cooperative action: UN Charter Arts 48–49 and 53–54. 11.46 In practice, Security Council Resolution 221/1969 authorised the use of armed force under Art 42 of the UN Charter for the first time against the apartheid regime of Southern Rhodesia. The Council authorised the UK to resort to force and prevent the arrival at Bera of vessels carrying oil to Rhodesia, enforcing economic sanctions previously decided under Art 41 of the UN Charter. By permitting UN Member States to ‘use all necessary means’ for compelling Iraq to withdraw unconditionally from unlawfully occupied Kuwait, Security Council Resolution 687/1990 authorised the use of armed force under Art 42 of the UN Charter. In 2011, by means of Resolutions 1970 and 1973, the Security Council authorised UN Member States to resort to force against Libya for humanitarian purposes. 11.47 Peacekeeping:

Unlike

resort

to

force

by

mandated

States,

‘peacekeeping’ involves minimal use of armed force by special UN contingents, based on the consent

[page 184]

of all parties concerned by security threats: Michael Bothe, ‘Peacekeeping Forces’, in Wolfrum, Max Planck Encyclopedia of Public International Law, at [1]. Peacekeeping includes conflict prevention and management, as well as post-conflict reconstruction. 11.48 Peacekeeping forces are established by the Security Council under Ch V, Art 29, and Chs VI or VII of the UN Charter. The first peacekeeping operation took place during the 1956 Suez crisis, when a UN Emergency Force was deployed as a buffer between Israel and Egypt. The notion of ‘peacekeeping’ subsequently consolidated between the 1970s and 1990s. A landmark decision is Security Council Resolution 743/1992, which established the UN Protection Force (UNPROFOR), aiming to ensure peaceful conditions in protected areas throughout Croatia, Bosnia and Macedonia during inter-ethnic conflicts in the Former Yugoslavia. In this case, mandated coalition forces operated besides peacekeeping contingents.

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CHAPTER 12

International Dispute Settlement

[page 186]

INTRODUCTION 12.1

This chapter reviews the range of mechanisms by which disputes between States are peacefully resolved. Particular attention is devoted to the International Court of Justice (ICJ). Chapter 12 also briefly identifies mechanisms by which non-State actors such as individuals and corporations can resolve claims against States. For the operation of the Dispute Settlement Understanding of the World Trade Organization, see Chapter 8.

OVERVIEW OF INTERNATIONAL OBLIGATIONS 12.2

All United Nations (UN) members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered: Charter of the United Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (UN Charter) Art 2(3). Furthermore, all members shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with UN purposes: Art 2(4). UN members are bound to seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice: Art 33.

12.3

One consequence of the principle of the sovereign equality of States is that no State can, without its consent, be compelled to submit its disputes with other States either to mediation, arbitration or any other kind of pacific settlement: Status of Eastern Carelia (Advisory Opinion) [1923] PCIJ Ser B No 5 at 27.

12.4

A ‘dispute’ is a disagreement on a point of law or fact or a conflict of legal views or interests between parties: Mavrommatis Palestine Concessions (Judgment No 2) [1924] PCIJ Ser A No 2 at 11. To establish the existence of a dispute, it must be shown that the claim of one party is positively opposed by the other: South West Africa (Preliminary Objections) [1962] ICJ Rep 319 at 328. Whether there is an international dispute is a matter for objective determination; mere denial does not prove its non-existence: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Rep 65 at 74.

12.5

The following instruments describe in detail different forms of international dispute settlement: Hague Convention for the Pacific Settlement of International Disputes (opened for signature 29 July 1899, 1 Bevans 230; [1901] ATS 130, entered into force 4 September 1900);

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Hague Convention for the Pacific Settlement of International Disputes (opened for signature 18 October 1907, 1 Bevans 577; [1997] ATS 6, entered into force 26 January 1910); General Act for the Pacific Settlement of International Disputes (opened for signature 26 September 1928, 93 LNTS 343, entered into force 16 August 1929); Statute of the International Court of Justice (opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945) (ICJ Statute); Revised General Act for the Pacific Settlement of International Disputes (opened for signature 28 April 1949, 71 UNTS 101, entered into force 20 September 1950); Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, UN Doc A/RES/2625 (24 October 1970); Convention on International Access to Justice (opened for signature 25 October 1980, 1510 UNTS 359, entered into force 1 May 1988); Manila Declaration on the Peaceful Settlement of Disputes between States, GA Res 37/10, UN GAOR, 37th sess, 68th plen mtg, UN Doc A/RES/37/10 (15 November 1982); Hague Convention on Choice of Courts Agreements (opened

for signature 30 June 2005, 44 ILM 1294, not yet in force).

Non-judicial dispute settlement 12.6

International disputes are typically resolved through direct negotiation between the disputants or with the assistance of neutral third parties through processes including enquiry, mediation, conciliation or good offices.

Negotiation 12.7

Negotiation directly between the disputants is the most common method. It is flexible, direct and can produce a settlement in accordance with legal and/or political criteria. Negotiation can also occur collectively through international organisations. Negotiations are unsuccessful where, based on the attitude and views of the disputants, there is a deadlock on the disputed issues and no modification of their contentions can be achieved: South West Africa Cases (Ethiopia/Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319 at 346.

Mediation 12.8

Mediation is the process of negotiation but with the participation of a neutral third party who facilitates settlement terms.

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Consultation 12.9

A consultation is a meeting between interested parties where views are exchanged for the purposes of discussion or deliberation. The process may be either ad hoc and informal or incorporated within a treaty framework.

Conciliation 12.10 Conciliation occurs where an individual or third party body identifies the facts (typically after hearing the parties) and proposes settlement terms. A conciliator has more influence over the parties than a mediator, including issuing a binding opinion based on law where empowered to do so.

Enquiry 12.11 Enquiry involves using an impartial third party such as a Commission of Inquiry to investigate and report on factual issues. The UN has reaffirmed the importance of fact-finding and urged States to more effectively use existing methods: Question of Methods of FactFinding, GA Res 2329 (XXII), UN GAOR, 22nd sess, 1637th plen mtg, UN Doc A/RES/2329 (18 December 1967); Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res 46/59, UN GAOR, 46th sess, 67th plen mtg, UN Doc A/RES/46/59 (9 December 1991).

Good offices

The UN Secretary-General frequently offers his or her good offices to 12.12 secure a peaceful resolution of the dispute: see An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping: Report of the Secretary-General, UN SCOR, 47th sess, UN Doc A/47/277–S/24111 (17 June 1992). The UN Secretary-General may be requested to issue a binding arbitral ruling to resolve a dispute between States: see, for example, Differences between New Zealand and France arising from the Rainbow Warrior Affair (1986) 19 RIAA 199.

THE ROLE OF THE UN SECURITY COUNCIL 12.13 The UN Security Council may investigate any dispute or situation: UN Charter Art 34. Any UN member may bring any dispute or situation to the attention of the Security Council or the UN General Assembly: Art 35(1). If international peace and security is likely to be endangered, the Security Council can decide whether to take action under Art 36 (that is, recommend appropriate procedures or methods of adjustment) or Art 37 (recommend settlement terms). The Security Council can also make recommendations to the parties with a view to a pacific settlement: Art 38. As a general rule legal disputes should be referred to the ICJ: Art 36(3). The UN General Assembly cannot make recommendations about disputes which

[page 189]

are currently before the Security Council: Art 12. Where peaceful resolution of a dispute is unlikely the Security Council can authorise the use of force in certain circumstances: see Chapter 11.

ARBITRATION 12.14 Arbitration, like judicial dispute settlement, is a formal procedure where a third party produces a binding determination according to law. Examples include the Beagle Channel Arbitration (Chile and Argentina), Award and Decision of 18 February 1977 (1977) 52 ILR 93. Arbitration offers greater control and flexibility for the disputants, for example: a specific dispute or specific kinds of disputes can be addressed; the arbitral body may be established ad hoc or be permanent; and the parties choose the arbitrators, the legal issues to be determined and the law and procedures to be applied. The disputants can include States and non-State actors such as corporations. For example, foreign investors may bring claims against States in arbitration proceedings under bilateral or regional investment treaties. Prominent examples include the North American Free Trade Agreement (NAFTA, ). 12.15 Arbitration is undertaken by established institutions such as the London Court of International Arbitration () and the

Permanent Court of Arbitration (). 12.16 Arbitral awards can be enforced under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) (opened for signature 10 June 1958, 330 UNTS 38, entered into force 7 June 1959). The New York Convention is implemented in Australia through the International Arbitration Act 1974 (Cth).

JUDICIAL DISPUTE SETTLEMENT 12.17 The ICJ () is the principal judicial organ of the UN: UN Charter Art 92; ICJ Statute Art 1. All UN members are automatically party to the ICJ’s Statute and non-members can become parties: UN Charter Art 93. The ICJ is the successor to the Permanent Court of International Justice (PCIJ): Statute of the Permanent Court of International Justice (opened for signature 13 December 1920, (1923) 6 LNTS 379, entered into force 20 August 1921). 12.18 The ICJ applies the sources of international law stated in Art 38(1) of its Statute: see 2.2. The ICJ can be requested to decide a matter ex aequo et bono (in justice and fairness): ICJ Statute Art 38(2).

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12.19

The ICJ consists of 15 judges (ICJ Statue Art 3) elected for nine years (Art 13) by the UN General Assembly and the Security Council (Arts 4–8, 10–12). The judges represent the ‘main forms of civilization and of the principal legal systems of the world’: Art 9.

12.20 Judges are elected regardless of their nationality from among persons of high moral character and either possess the qualifications required in their home States for appointment to the highest judicial offices, or are ‘jurisconsults’ (legal experts) of recognised competence in international law: ICJ Statute Art 2. Judges must be and act independently: Arts 16–18, 24. 12.21 Any party to a contentious case who does not have a national sitting on the ICJ may select an additional person to sit as a judge ad hoc for that case only: ICJ Statute Art 31. A smaller chamber of three to five judges may hear ad hoc or environmental matters: Arts 26–29.

Jurisdiction 12.22 The ICJ exercises contentious and advisory jurisdiction. The ICJ determines for itself whether it has jurisdiction: ICJ Statute Art 36(6). Case Summary

NUCLEAR TESTS (AUSTRALIA v FRANCE) (JUDGMENT) [1974] ICJ Rep 253 INTERNATIONAL COURT OF JUSTICE FACTS: France conducted atmospheric nuclear testing in the South Pacific. Australia instituted proceedings with a view to terminating the nuclear tests. Through various public statements France announced its intention to cease conducting atmospheric tests following the completion of its 1974 program. ISSUE: Did the ICJ have jurisdiction? DECISION: No. Australia’s objective had been accomplished because France had undertaken an obligation to hold no further atmospheric nuclear tests within the South Pacific. Because the dispute had disappeared, Australia’s claim no longer had any object and there was nothing on which the ICJ could give judgment.

Contentious Cases 12.23 Contentious cases are adversarial proceedings seeking to settle a dispute. Only States may be parties: ICJ Statute Art 34(1). Public international organisations may

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provide information: Art 34(2). Non-governmental organisations, corporations, individuals and other non-State entities cannot formally participate. 12.24 The jurisdiction of the ICJ derives from State consent. Case Summary

EAST TIMOR (PORTUGAL v AUSTRALIA) (JUDGMENT) [1995] ICJ Rep 90 INTERNATIONAL COURT OF JUSTICE FACTS: Portugal initiated proceedings against Australia concerning a treaty concluded between Australia and Indonesia for exploiting the natural resources of the continental shelf of the ‘Timor Gap’. Portugal argued that, by concluding and applying this treaty — which created a Zone of Cooperation in an area between the Indonesian Province of East Timor and Northern Australia — Australia had violated the rights of the East Timorese people to self-determination and violated Portugal’s rights as the administering power of East Timor. ISSUE: Did the ICJ have jurisdiction? DECISION: No. The principle of the self-determination of peoples has an erga omnes character which the East Timorese people enjoy. However, the subject matter of the ICJ’s decision would necessarily determine whether Indonesia could acquire authority to conclude treaties on East Timor’s behalf relating to continental shelf resources. Indonesia had not consented to ICJ jurisdiction. Because the ICJ cannot decide disputes between States without their consent, it could not adjudge Australia’s conduct or determine Indonesia’s rights without Indonesia’s consent.

Case Summary

CERTAIN PHOSPHATE LANDS IN NAURU (NAURU v AUSTRALIA) (PRELIMINARY OBJECTIONS) [1992] ICJ Rep 240 INTERNATIONAL COURT OF JUSTICE FACTS: Nauru initiated proceedings against Australia concerning the rehabilitation of phosphate lands depleted by Australia before 1967. Nauru was then administered [page 192] under the UN’s trusteeship system by Australia, New Zealand and the United Kingdom (UK). Australia argued that a judgment concerning a breach by Australia of its obligations under the trusteeship agreement would necessarily involve a finding concerning the discharge by the other two States of their obligations. ISSUE: Did the ICJ lack jurisdiction because New Zealand and the UK were not parties and had not consented to proceedings? DECISION: No. The interests of New Zealand and the UK did not constitute the subject matter of the judgment to be rendered on the merits. Although a finding by the ICJ regarding the existence or content of Australia’s responsibility might have implications for their legal situation, no finding in respect of that situation was needed as a basis for the ICJ’s decision on Nauru’s claims against Australia.

12.25 The ICJ’s jurisdiction can be established by various means: 1.

Parties may refer cases to the ICJ by special agreement (‘compromis’) (ICJ Statute Art 36(1));

2.

The ICJ exercises jurisdiction over ‘all matters specifically provided for … in treaties and conventions in force’ (that is, a compromissory clause contained in a bilateral or multilateral treaty expressly provides for dispute resolution by the ICJ) (ICJ Statute Art 36(1));

States may unilaterally declare under the ‘Optional clause’ to 3.

accept the ICJ’s jurisdiction as compulsory for specified future disputes (ICJ Statute Art 36(2)). These disputes may concern treaty interpretation, any international legal question, the existence of any fact which, if established, would constitute a breach of an international obligation, and the nature or extent of reparation to be made for breaching an international obligation. The declarations, although unilateral, take effect as a series of bilateral agreements with other States: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction) [1984] ICJ Rep 392 at [59]– [60]. Declarations may be made subject to reservations which exclude certain types of disputes from the ICJ’s jurisdiction. A reservation excluding all disputes within domestic jurisdiction as determined by the declaring State (a ‘self-judging’ reservation) appears to be invalid because it can be exercised inconsistently with accepting the ICJ’s jurisdiction as compulsory. The application of reciprocity means that the scope of the ICJ’s jurisdiction is the lowest common denominator of the disputant’s declarations: Norwegian Loans (France v Norway) [1957] ICJ Rep 9 at [23]–[24].

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In 2002 Australia renewed its declaration recognising the ICJ’s jurisdiction as compulsory. However, the declaration excluded disputes: where other peaceful settlement methods had been agreed; concerning maritime zone delimitation or the exploitation of disputed areas; or where the other party accepted jurisdiction only for the purpose of the dispute; or 12 months prior to filing the application. 4.

Jurisdiction given to the PCIJ under a compromissory clause in a treaty is transferred to the ICJ (ICJ Statute Arts 36(5), 37);

5.

States may expressly or by implication consent to the ICJ exercising jurisdiction over a dispute where another State has made a unilateral application to the ICJ (the doctrine of forum prorogatum) by, for example, accepting jurisdiction or pleading the merits of the case.

12.26 Procedural Aspects: The ICJ’s procedure is set out in its Statute (particularly Arts 40 and 43), its Rules of Court, practice directions and other texts. See Figure 12.1. 12.27 The common law notion of precedent or stare decisis does not apply to ICJ decisions. The ICJ’s judgment binds only the parties to a particular case: ICJ Statute Art 59. However, Art 38(1)(d) enables the

ICJ to consider its own previous decisions and it generally strives for consistency. Judgments are highly persuasive for the content and application of international law. Case Summary

WHALING IN THE ANTARCTIC (AUSTRALIA v JAPAN; NEW ZEALAND INTERVENING) (JUDGMENT) [2014] ICJ Rep (31 March 2014) INTERNATIONAL COURT OF JUSTICE FACTS: Australia instituted proceedings against Japan concerning the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II). Australia argued that JARPA II was not a program for the purposes of scientific research within the meaning of Article VIII(1) of the International Convention for the Regulation of Whaling (opened for signature 2 December 1946, 161 UNTS 72, entered into force 10 November 1948) and therefore violated the ban on commercial whaling. [page 194] ISSUE: Did Japan breach its substantive and procedural obligations under this Convention? DECISION: Yes. JARPA II involved activities that could be characterised as scientific research. Using lethal sampling per se was not unreasonable. However, the program’s design and implementation were not reasonable in relation to achieving stated objectives. The permits granted by Japan for killing, taking and treating whales under JARPA II were not for the purposes of scientific research. Japan must revoke and refrain from granting further permits.

12.28 UN members undertake to comply with judgments of the ICJ to which they are a party: UN Charter Art 94(1). Should a party fail to perform

its

obligations,

the

Security

Council

may

make

recommendations or decide upon measures it deems necessary to give

effect to the judgment: Art 94(2).

Advisory Opinions 12.29 The UN General Assembly and Security Council may request an advisory opinion from the ICJ on any legal question: ICJ Statute Art 65; UN Charter Art 96. UN bodies and agencies may also do so within the scope of their activities. Advisory opinions provide guidance to UN bodies to effectively discharge their mandate provided they have the authority to make a request. 12.30 The question for the ICJ must be framed in terms of law, raise international legal problems and by its very nature be susceptible of a reply based on law: Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 at 18–19. Whatever the political aspects of a matter, the ICJ cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, to assess the legality of the possible conduct of States with regard to the obligations imposed upon them by international law: Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 234 at [13]. 12.31 The ICJ is not obliged to provide an opinion. It will first consider whether it has jurisdiction to answer the question put to it and then whether there are any grounds upon which it may decline to exercise its jurisdiction. An opinion cannot circumvent the principle that a State is not obliged to allow its disputes to be submitted to judicial dispute resolution without its consent.

12.32 States and international organisations are invited to provide oral and written statements: ICJ Statute Art 66. An Advisory Opinion can be issued notwithstanding Australia’s views.

[page 195] Figure 12.1

THE PROCESS FOR A CONTENTIOUS CASE

[page 196]

Example

ADVISORY OPINION ON LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY [2004] ICJ Rep 136 WRITTEN STATEMENT OF AUSTRALIA, 29 JANUARY 2004 AT [8]: Australia considers that compelling reasons exist for the Court, in the exercise of its discretion, to decline to give the opinion requested. First, the lack of consent by Israel renders the giving of an advisory opinion incompatible with the Court’s judicial character, particularly in light of the fact that the request is undoubtedly directed at the rights and responsibilities of Israel. Secondly, the request should be declined as any opinion rendered by the Court would be devoid of object or purpose, particularly in light of actions and decisions of the General Assembly and Security Council. Thirdly, the giving of an advisory opinion could have a harmful effect upon current initiatives aimed at achieving a settlement of the Israeli-Palestinian conflict.

12.33 Opinions being ‘advisory’ are not legally binding. However, they can be declared to be such by treaty, may authoritatively interpret the constituent instruments of UN bodies or declare the state of international law applicable to all States.

INTERNATIONAL CRIMINAL PROSECUTIONS 12.34 The International Criminal Court (ICC, ) exercises criminal jurisdiction over individuals for genocide, crimes against humanity and war crimes as set out in the Statute of the International Criminal Court (opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1 July 2002) (the Rome Statute). When activated, the ICC will also exercise jurisdiction over the crime of aggression,

the definition having been agreed by States parties at the Review Conference of the Rome Statute held at Kampala during 2010. The ICC has jurisdiction (Arts 12, 13): where the accused is a national of a State party; if the crime took place on the territory of a State party; where a situation is referred to the ICC by the Security Council; or where a State not party to the Statute ‘accepts’ the ICC’s jurisdiction. Jurisdiction is only exercised when national courts are unwilling or unable to investigate or prosecute crimes falling within the Rome Statute (the principle of complementarity): Art 17.

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12.35 Noteworthy criminal courts and tribunals include: The International Tribunal for the Prosecution of Persons Responsible

for

Serious

Violations

of

International

Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the Yugoslav Tribunal or ICTY) (established by SC Res 827, UN SCOR, 48th sess, 3217th plen mtg, UN Doc S/RES/827 (25 May 1993)). The International Criminal Tribunal for the Prosecution of

Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994 (the Rwanda Tribunal or ICTR) (established by SC Res 955, UN SCOR, 49th sess, 3453rd plen mtg, UN Doc S/RES/955 (8 November 1994)). The International Residual Mechanism for Criminal Tribunals (established by SC Res 1966, UN SCOR, 66th sess, 6463rd plen mtg, UN Doc S/RES/1966 (22 December 2010)). The Special Court for Sierra Leone . The Supreme Iraqi Criminal Tribunal. The Extraordinary Chambers in the Court of Cambodia .

HUMAN RIGHTS CLAIMS 12.36 Individuals may bring claims against States alleging that their human rights have been violated provided the claim falls within the jurisdiction of the relevant institution. The available judicial mechanisms include the European Court of Human Rights (see 6.50), the African Court of Human and People’s Rights (see 6.51) and the Inter-American Court on Human Rights (see 6.51).

Communications can be submitted to the UN Human Rights 12.37 Council by individuals, groups or non-governmental organisations claiming to be victims of gross and reliably-attested human rights violations by a State or have direct, reliable knowledge of such violations: Institution-Building of the United Nations Human Rights Council, Human Rights Council Res 5/1, 5th sess, UN Doc A/HRC/RES/5/1 (18 June 2007). 12.38 Communications by individuals alleging violations of a specific human rights treaty may be submitted to the Human Rights Committee of the UN system responsible for its oversight: see 6.30, 6.33, 6.45–6.49. Information about human rights bodies including special procedures is also available at .

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INTERNATIONAL ENVIRONMENTAL DISPUTES 12.39 International environmental agreements typically specify the means by which inter-State disputes are to be resolved: see, for example, UN Framework Convention on Climate Change (opened for signature 9 May 1992, 1771 UNTS 107, entered into force 21 March 1994) Art 14(1). On international environmental law, see Chapter 5.

ADDITIONAL PEACEFUL DISPUTE RESOLUTION MECHANISMS

12.40 Significant regional courts include: The European Court of Justice, established under the Treaty Establishing the European Economic Community (opened for signature 25 March 1957, 298 UNTS 11, entered into force 1 January 1958). The Central American Court of Justice, operating under the Central American Integration System. The Court of Justice for the Andean Community, created by the Protocol of Modification of the Treaty Establishing the Court of Justice of the Andean Community. 12.41 Other influential institutions include: The Iran-US Mixed Claims Tribunal . The International Centre for the Settlement of Investment Disputes, established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention) (opened for signature 18 March 1965, 575 UNTS 159, entered into force 14 October 1966). Private investors may resolve disputes with States under World Bank auspices .

MARITIME DISPUTES 12.42 The International Tribunal for the Law of the Sea (ITLOS, ) is a judicial body established under the United

Nations Convention on the Law of the Sea (opened for signature 10 December 1982, 1833 UNTS 3, entered into force 16 November 1994) (UNCLOS) to adjudicate disputes arising from the interpretation and application of UNCLOS (see Chapter 9), as well as matters specifically provided for in any other agreement which confers jurisdiction on ITLOS. 12.43 Article 287(1) of UNCLOS provides that States can declare one or more of the following means to settle their disputes: 1.

ITLOS;

2.

the ICJ;

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3.

an arbitral tribunal constituted under Annex VII of UNCLOS;

4.

a special arbitral tribunal constituted under Annex VIII of UNCLOS.

12.44 The ITLOS also has a Seabed Disputes Chamber which is accessible to non-State entities. Case Summary

SOUTHERN BLUEFIN TUNA (AUSTRALIA & NEW ZEALAND v JAPAN) (2000) 119 ILR 508 UNCLOS ARBITRATION TRIBUNAL FACTS: Australia and New Zealand claimed that Japan’s fishing activities failed to conserve the Southern Bluefin tuna stock. Article 16 of the Convention for the Conservation of Southern Bluefin Tuna (opened for signature 10 May 1993, 1819 UNTS 360, entered into force 20 May 1994) (the 1993 Convention) provides for dispute settlement by arbitration, subject to the agreement of each State. Given Japan’s refusal to consent to arbitration, Australia and New Zealand invoked the compulsory arbitration provisions of Annex VII of UNCLOS. Article 281(1) of UNCLOS provides that if States parties to a dispute concerning the interpretation and application of UNCLOS have agreed to pursue peaceful means of their own choosing, then UNCLOS only applies where no settlement is reached. ISSUE: Did the UNCLOS arbitral tribunal have jurisdiction? DECISION: No. The 1993 Convention came into force after UNCLOS and was a specific rather than general agreement. Although the dispute arose under these two conventions, Art 16 of the 1993 Convention excluded any procedure within the contemplation of UNCLOS.

Index References are to paragraphs fig and tab denotes figures and tables

A Aarhus Convention …. 5.25 Acid rain …. 5.36 Active nationality principle …. 4.24 Active personality …. 7.59 Actus reus …. 7.17–7.18, 7.23 Adjudication …. 7.43 domestic adjudication …. 7.57 specialised bodies …. 8.56–8.57 WTO mechanisms …. 8.57 supranational adjudication …. 7.43 transnational adjudication …. 7.57–7.72 customary grounds …. 7.57 Adversarial system …. 7.51 Agencies UN human rights agencies …. 6.24 Aggression …. 11.4–11.7

prohibition on, peremptory status of …. 11.9 a supranational crime …. 7.27–7.29 universal jurisdiction application …. 7.64 Agreement termination/withdrawal of treaty …. 2.34 Agreement on Trade-related Investment Measures (TRIMs) …. 8.18 Air (IEL regime) …. 5.36–5.41 air pollution …. 5.36 Al-Qaeda …. 12.29 Antarctic continent …. 5.44 Antarctic Treaty System (ATS) …. 5.44 Anthropogenic GHGs …. 5.38 Anticipatory self-defence …. 11.22–11.26 Apartheid …. 6.35 Arbitration …. 12.14–12.16 arbitral awards …. 12.16 Archipelagic waters …. 9.17–9.18 Arctic Region …. 5.43 Armed conflict (IEL regime) …. 5.57–5.58, 11.21, 11.26 counter-terrorism measures …. 11.27–11.30 IHL rules governing …. 7.2

Armed force …. 11.2, 11.5, 11.14–11.15, 11.18, 11.27, 11.31, 11.39–11.41 against the apartheid regime …. 11.46 for peacekeeping …. 11.43 by States …. 7.29 see also peace/peacekeeping Australian Constitution international law interpretation …. 3.24 international law treaty provisions …. 3.22–3.24 external affairs power …. 3.23 Australia-New Zealand Closer Economic Relations Trade Agreement …. 8.37 Aut dedere aut judicare …. 7.66–7.67

B Bank for International Settlements (BIS) …. 8.14 Basel Convention/Protocol …. 5.56 Bilateral treaties …. 8.4, 8.53 bilateral investment treaties (BITs) …. 8.17

C Capital (transfer of) …. 8.16 Central case approach to international law …. 1.46

Change of circumstances termination/withdrawal of treaty …. 2.37 Children CRC protection …. 6.37 Chlorofluorocarbon gases (‘CFCs’) …. 5.37 Citizenship rule of law and (example) …. 1.24 Classical theory …. 1.31 Climate change …. 5.38 agreement for …. 5.41 Coastal States …. 9.10–9.13, 9.15–9.16 preferential fishing rights …. 9.23 sovereign rights …. 9.21 Coffee Agreement …. 8.37 Collective rights …. 6.11–6.14 Collective self-defence …. 11.18–11.19 Committee on Economic, Social and Cultural Rights example …. 2.68, 6.33 ‘common heritage of mankind’ …. 5.34, 5.46, 9.29 Common law international law, conforming with …. 3.43

unincorporated treaties and …. 3.34 Commonwealth Constitution Australia’s maritime zones under …. 9.31 Commonwealth Parliament executive power …. 3.23 Community international community rule of law in …. 1.21–1.24 Competition and Consumer Act 2010 (Cth) …. 8.46 Complaints UN treaty bodies and …. 6.47–6.49 Compliance …. 1.11–1.14 consent …. 1.12–1.13 IEL compliance procedures case summaries …. 5.61, 5.63 general mechanisms …. 5.59–5.64 treaty-based mechanisms …. 5.65–5.66 international law, national law compliance with …. 3.10–3.13 State compliance (international law) prompted by State self-interest …. 1.11, 1.39 State international law breach–national law compliance …. 3.12

theories regarding …. 1.14 voluntary compliance inducement …. 1.17 Conciliation …. 12.10 Conferences of the (States) Parties (COPs) …. 5.27 Conflict armed conflict …. 5.57–5.58 jurisdictional conflict case summary …. 7.68 jus cogens norms, treaty conflict with …. 2.33 Consensualism …. 1.12–1.13 Consensus …. 8.52–8.53 Consent wrongfulness, circumstance precluding …. 10.19 Conservation, environmental high seas, conserving living resources …. 9.48–9.49 marine environment, protecting and preserving …. 9.50–9.52 Constitutive theory …. 4.12 Constructivism …. 1.42 Consultation …. 12.9 Contemporary approach …. 3.9 Contiguous zone

coastal States action in …. 9.19 Continental shelf, the …. 9.24–9.25 delimitation of …. 9.34 fig 9.2 EEZ between adjacent/opposite States …. 9.32–9.42 relevant factors …. 9.38–9.42 shelf boundaries …. 9.33 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) …. 6.39–6.40 jus cogens …. 2.50 Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) …. 5.36 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) …. 6.36 Convention on the Rights of Persons with Disabilities (CRPD) …. 6.41 Convention on the Rights of the Child (CRC) …. 6.37–6.38 example—Australia’s reservation to …. 2.21 Counter-terrorism …. 11.27 case summary …. 11.19 use of force and …. 11.27–11.30 Countermeasures wrongfulness, circumstance precluding …. 10.21–10.23 Courts martial …. 7.71

Criminal law international criminal law …. 7.8–7.79 limitations …. 6.9 Critical legal theory …. 1.33–1.36 feminist theory …. 1.34 international law, Third World approaches to …. 1.36 lesbian, gay, bisexual, and transgender/transsexual (LGBT) theory …. 1.35 Cuban Missile Crisis (1962) …. 11.24 Culture cultural relativism …. 6.18 Currency …. 8.11–8.13 maintenance within the prescribed par …. 8.13 Customary international law elements …. 2.40 fig 2.2 objective element—state practice …. 2.41–2.46 subjective element—opinio juris …. 2.47–2.49 erga omnes obligations …. 2.51 IEcL source …. 8.2 international law source …. 2.40–2.54 rule articulation as …. 2.40–2.42 Montevideo Convention representation …. 4.3–4.15

mutual assistance …. 7.75 norms custom, regional and local …. 2.52–2.53 peremptory (jus cogens) norms subset …. 2.50 principles persistent objector principle …. 2.54 sovereignty, respect for …. 4.16 rule articulation as international law source …. 3.15 rules emergence North Sea Continental Shelf cases …. 2.45 self-defence, right to Caroline doctrine …. 11.11 source of transnational and supranational criminal law …. 7.10 state responsibility law …. 10.2 treaty influence of custom on …. 2.70 influence of treaties on custom …. 2.69 Cyberspace …. 11.1

D Death penalty …. 6.9 Declarations

treaty reservations versus interpretive declarations …. 2.26 unilateral declarations …. 2.38–2.39 Declarative theory …. 4.11 Deep seabed, the …. 9.29–9.30 Delimitation …. 4.6, 9.6, 9.32–9.42, 9.43–9.44, 9.53 of continental shelf and EEZ …. 9.32–9.42 factors relevant to …. 9.38–9.42 Development, right to …. 6.13, 6.17 Dignity …. 6.3–6.4, 6.41 Diplomatic protection …. 8.54, 10.38 Discrimination …. 6.34–6.35 against women …. 6.36 Dispute/dispute settlement ‘dispute’ …. 12.4 general mechanisms …. 8.52–8.55 international dispute settlement …. 12.1–12.44 international forms …. 12.5 inter-State disputes, international courts/tribunal resolution …. 3.17 judicial dispute settlement …. 12.17–12.33 maritime disputes …. 9.53, 12.42–12.44 case summary …. 12.44

non-judicial dispute settlement …. 12.6–12.12 peaceful dispute resolution mechanisms …. 12.40–12.41 specialised bodies …. 8.56–8.57 WTO mechanisms …. 8.57 States, available options case summary …. 5.63 Timor Gap dispute …. 9.44 Trail Smelter dispute …. 5.4, 5.5 case summary …. 5.9 Distress wrongfulness, circumstance precluding …. 10.26–10.27 Divine justice …. 1.31 Domestic military courts …. 7.70 Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (DAPTHHA) …. 5.6, 5.16 environmental impact assessments (EIAs) …. 5.21–5.22 Dualism …. 3.3–3.6, 3.25, 3.37, 3.41 see also transformation doctrine Duty corresponding duties, rights of …. 6.8 duty to protect …. 11.37

right-duty relations …. 8.10 States’ duties (of good faith) …. 3.11

E Economic and Social Council (ECOSOC) …. 6.33 Economics exclusive economic zone (EEZ) …. 9.20–9.23 as interdisciplinary approach to international law …. 1.43 Emergency situations …. 6.28 Energy (IEL regime) …. 5.53–5.55 Energy Charter Treaty (ECT) …. 5.55, 8.18 Enforcement mechanisms for international law …. 1.15–1.24 international community, rule of law in the …. 1.21–1.24 English law European Community law …. 3.26 European Community law precedence …. 3.26 treaty—post-transformation inclusion …. 3.25 Enlightenment period …. 6.3 Enquiry …. 12.11 Entebbe incident …. 12.31 Entitlements …. 6.15

Environment environmental conservation (maritime issue) …. 9.48–9.52 human rights and …. 5.67 international environmental disputes …. 12.39 international environmental law …. 5.1–5.67 marine environment protecting and preserving …. 9.50–9.52 Stockholm Declaration protection definition …. 5.2–5.3, 5.11, 5.67 time of war, protecting environment in …. 5.20 Environmental harm …. 5.15–5.16 damage compensation case study …. 5.61 Environmental impact assessments (EIAs) …. 5.21–5.22 Environmental protection …. 8.33 Equality …. 6.5 sovereign equality …. 1.3, 4.16–4.18, 9.34, 12.3 Equity …. 2.56, 9.34 Erga omnes human rights breaches international community involvement …. 11.34 obligations for customary international law …. 2.51 right of all peoples …. 4.14

use of force, ranking of prohibition on …. 11.9 European Economic and Monetary Union (EMU) …. 8.15 Evidence of law …. 2.61–2.62 Exclusive economic zone (EEZ) …. 9.20–9.23 EEZ between adjacent/opposite States and continental shelf delimitation …. 9.32–9.42 straits navigation of …. 9.45 see also international straits External affairs power …. 3.23 Extra-contractual obligations …. 8.7 Extradition agreements …. 7.76

F Fairness …. 8.29 Fauna and flora (IEL regime) …. 5.2, 5.48–5.51 Feminist theory …. 1.34 Finance (IEL regime) …. 5.53–5.55 First generation rights …. 6.17 Flora and fauna (IEL regime) …. 5.2, 5.48–5.51 Force, use of …. 11.1–11.48 armed conflicts counter-terrorism measures …. 11.27–11.30

jus in bello governance …. 11.21 ‘Operation Iraqi Freedom’ …. 11.26 counter-terrorism …. 11.27–11.30 decentralisation/centralisation …. 11.1 ‘force’ …. 11.2 general international law, customary status under …. 11.8 human rights protection …. 11.32–11.40 international prohibition on …. 11.2–11.9 case summary …. 11.3 jus cogens/erga omnes ranking …. 11.9 justification for …. 11.10 human rights breaches …. 11.32–11.40 nationals abroad, protection of …. 11.31 self-defence …. 11.10–11.26 self-determination and …. 1.36 threat of use necessity and proportionality criteria application …. 11.17 prohibition …. 11.4 UN Charter, refrain from threat/use of force …. 12.2 within the UN system …. 11.41–11.48 Force majeure

wrongfulness, circumstance precluding …. 10.24–10.25 Foreign investment …. 8.16–8.17, 8.18 regulation …. 8.18 Foreign ministers immunity …. 4.30–4.32 Foreign nationals diplomatic protection …. 10.38 treatment of …. 10.37–10.38 Foreign relations State capacity to enter into …. 4.8 Forests and soils …. 5.29–5.30 Freedoms …. 6.16, 6.41 freedom of association example …. 6.29

G General Agreement on Tariffs and Trade (GATT) …. 5.54 equal trade conditions …. 8.31–8.32 exceptions …. 8.32 sector-specific treaty supplementation …. 8.34 trade in goods and …. 8.29–8.32 General Assembly (UN) …. 6.24

binding resolutions …. 2.65 UDHR instrument adoption …. 2.72 General Comments international law source …. 2.68 examples …. 2.68 General Council (WTO) …. 8.26, 8.28 General principles of law …. 2.55–2.56 Australia and New Zealand v France case summary …. 2.56 IEcL source …. 8.2 source of transnational and supranational criminal law …. 7.10 Geneva Conventions/Additional Protocols …. 7.3, 7.39, 7.62, 7.66 Geneva Convention on the Protection of War Victims …. 7.3 Genocide …. 7.23, 7.36 Genocide Convention …. 7.14, 7.23, 7.26, 7.36, 7.44, 7.49 Global Environmental Facility …. 5.53 Good faith …. 2.56 Good offices …. 12.12 Government heads of government immunity …. 4.30–4.32 jurisdiction

case summary …. 4.7 persons/entities exercising authority …. 10.9–10.10 State recognition of …. 4.15 State territory, control of …. 4.7

H ‘hard law’ …. 2.67, 2.72, 5.4 Harmonisation …. 8.4, 8.44, 8.47 case summary …. 3.9 Hartian rules …. 5.1, 5.19 IHL rules set …. 7.2 international criminal law rules system …. 7.9 Hazardous waste and substances (IEL regime) …. 5.56 High seas, the …. 9.26–9.28 Human rights alternative theories of …. 6.18 breach as justification for use of force …. 11.32–11.40 humanitarian intervention invocation …. 11.38 crises and humanitarian intervention …. 11.33 definition …. 6.2–6.18 environment and …. 5.67 erga omnes obligations …. 11.34

frameworks regional human rights frameworks …. 6.50–6.51 United Nations human rights framework …. 6.19–6.49 fundamental concepts corresponding duties, rights of …. 6.8 inalienability …. 6.6 individual and collective rights …. 6.11–6.14 interdependence …. 6.7, 6.17 positive and negative rights …. 6.15–6.17 rights, limitations on …. 6.9–6.10 universality …. 6.5 human rights claims …. 12.36–12.38 national implementation …. 6.52 UN agencies …. 6.24 UN treaties and treaty bodies …. 6.25–6.49 complaints …. 6.47–6.49 Human Rights Committee …. 6.30, 6.46 case summary …. 6.49 example …. 2.68 Human Rights Council …. 6.24 Human rights protection …. 11.32–11.40

humanitarian intervention …. 11.33–11.38 self-determination rights, protecting …. 11.39–11.40 Humanitarian intervention …. 11.33–11.38 breach by terrorism, invocation in response …. 11.38 responsibility to protect …. 11.36–11.38 compulsory intervention …. 11.36 State use of force in crises …. 11.33 freeing Kosovo …. 11.35 Humanity, crimes against …. 7.18–7.19 Hybrid tribunals …. 7.77–7.79

I Immunity …. 4.29–4.32, 7.72, 7.79 application …. 4.32 tab 4.1 ratione materiae …. 4.32 case summary …. 4.32 ratione personae …. 4.31 Inalienability …. 6.6 Indigenous peoples …. 6.14 Individual rights …. 6.11–6.14 Individuals limited legal personality …. 4.35

Inquisitorial system …. 7.51 Institutionalism …. 1.41 Interdependence example …. 6.7, 6.17 Interdisciplinary approaches (to international law) …. 1.37–1.43 economics …. 1.43 international relations …. 1.38–1.42 Internal waters …. 9.9–9.11 International agreements domestic legislation enforcement …. 8.48 substantive obligations …. 8.19 International Centre for Settlement of Investment Disputes (ICSID) …. 8.14 International community human rights breaches, effect of …. 11.34 international law mechanisms rule of law …. 1.21–1.24 International competition law anticompetitive behaviour …. 8.46 antitrust law …. 8.45 International Convention for the Protection of All Persons from Enforced Disappearances (CED) …. 6.43–6.44 International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD) …. 6.34–6.35 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) …. 6.42 International conventions international law source …. 2.3–2.39 International Court of Justice (ICJ) advisory opinions …. 12.29–12.33 example …. 12.32 contentious cases …. 12.23–12.28 process …. 12.32 fig 12.1 decisions, stare decisis non-application case summary …. 12.27 UN compliance with …. 12.28 dispute settlement …. 9.53 judicial …. 12.17–12.33 Kosovo and legality of use of force …. 11.35 ‘force’ concept case summary …. 11.3 general international law, customary status under …. 11.8 ICJ Statute …. 2.2 on customary international law …. 2.40–2.41 general principles of law application …. 2.55

judicial decisions …. 2.57–2.62 international law enforcement …. 1.19 UN Charter, complementarity …. 11.13 judges …. 12.19–12.20 ad hoc …. 12.21 jurisdiction …. 12.22–12.33 case summaries …. 12.24 establishment …. 12.25 exercising discretion …. 12.31 self-determination of …. 12.22 procedural aspects …. 12.26 regarding state practice …. 2.43–2.46 Fisheries Jurisdiction case …. 2.44 right to collective self-defence under law case summary …. 11.19 necessity and proportionality criteria clarification …. 11.16 International courts and tribunals national law source and resolution …. 3.16–3.17 International Covenant on Civil and Political Rights (ICCPR) …. 6.9, 6.12, 6.26–6.30

example …. 6.29 Human Rights Committee …. 6.30 States’ compliance under …. 6.45 International Covenant on Economic, Social and Cultural Rights (ICESCR) …. 6.12, 6.31–6.33 example …. 6.33 progressive approach to States’ obligations …. 6.32 States’ compliance under …. 6.45 International Criminal Court (ICC) …. 12.34 crime jurisdiction …. 7.48 ICC Statute …. 7.15 money transfer—compensation …. 7.54 sentences delivered …. 7.53 International criminal law …. 7.8–7.79 sources …. 7.10 supranational crimes …. 7.11–7.34 as system of primary and secondary rules …. 7.9 transnational crimes …. 7.35–7.41 International criminal prosecutions …. 12.34–12.35 criminal courts and tribunals …. 12.35 International Criminal Tribunal for Rwanda (ICTR)

crime jurisdiction …. 7.47 sentences delivered …. 7.53 International Criminal Tribunal for the former Yugoslavia (ICTY) crime jurisdiction …. 7.46 sentences delivered …. 7.53 International Development Association (IDA) …. 8.14 International dispute settlement arbitration …. 12.14–12.16 human rights claims …. 12.36–12.38 international criminal prosecutions …. 12.34–12.35 international environmental disputes …. 12.39 international obligations …. 12.2–12.12 non-judicial dispute settlement …. 12.6–12.12 State honouring of …. 1.11 judicial dispute settlement …. 12.17–12.33 UN Security Council role …. 12.13 International economic law (IEcL) …. 8.1–8.62 scope and sources …. 8.2–8.10 in time of war …. 8.58–8.62 International environmental disputes …. 12.39 peaceful dispute resolution mechanisms …. 12.40–12.41

International environmental law (IEL) …. 5.1–5.67 compliance procedures …. 5.59–5.66 developmental milestones …. 5.5 environment and human rights …. 5.67 general principles …. 5.8–5.25 procedural principles …. 5.21–5.25 substantive principles …. 5.9–5.20 regimes air …. 5.36–5.41 armed conflict …. 5.57–5.58 finance, trade and energy …. 5.53–5.55 flora and fauna …. 5.48–5.51 hazardous waste and substances …. 5.56 natural heritage …. 5.52 outer space …. 5.45–5.47 polar regions …. 5.42–5.44 soils and forests …. 5.29–5.30 water …. 5.31–5.35 regulatory conventions …. 5.7 sources …. 5.4–5.7 as system of primary and secondary rules …. 5.1

International Finance Corporation (IFC) …. 8.14 International financial law international investment law …. 8.16–8.19 international monetary law …. 8.11–8.15 International human rights law frameworks regional human rights frameworks …. 6.50–6.51 United Nations human rights framework …. 6.19–6.49 human rights, definition …. 6.2–6.18 human rights, national implementation …. 6.52 IHL, structural overlap with …. 7.6 International humanitarian law (IHL) …. 7.2–7.7 application …. 7.5 armed conflict, rules governing …. 7.2 basic rules …. 7.6 conventional norms …. 7.4 human rights law, structural overlap with …. 7.7 modern origins …. 7.3 piracy …. 7.40 serious IHL breaches …. 7.39 as system of primary and secondary rules …. 7.2

time of war, protecting environment in …. 5.20 International Institute for the Unification of Private Law (UNIDROIT) Principles on International Commercial Contracts (2010) …. 8.9 International investment law …. 8.16–8.19 ‘foreign investment’ …. 8.16 International law breach reparations following breach …. 2.56 by States see state responsibility common law conformance …. 3.43 ‘force,’ meaning of …. 11.2 International Law Commission (ILC) Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (DAPTHHA) …. 5.6 draft treaties …. 2.11 international law codification/development …. 2.71 collective self-defence non-exclusion …. 11.18 international organisations’ responsibility …. 10.36 peremptory status of prohibition on aggression …. 11.9 self-defence necessity and proportionality criteria clarification …. 11.15

rules complementarity …. 11.14 state responsibility articles …. 10.2 State’s wrongfulness excused …. 10.18–10.28 International Military Tribunal for the Far East (IMTFE) convictions delivered …. 7.52 crime jurisdiction …. 7.45 International Monetary Fund (IMF) …. 5.53, 8.8, 8.11 IMF agreement …. 8.12 International monetary law …. 8.11–8.15 International organisations international law, influence on …. 1.6 institutionalism …. 1.41 legal personality …. 4.34 non-State actors participation …. 1.6 responsibility of …. 10.36 International relations constructivist view …. 1.42 as interdisciplinary approach to international law …. 1.38–1.42 schools of thought …. 1.39, 1.40, 1.41, 1.42 International Seabed Authority (ISA) …. 9.30 International straits

right of transit passage and …. 9.45–9.47 International taxation law aims …. 8.50–8.51 source-based or person-based taxes …. 8.49 International trade law UNITRAL unification …. 8.38 WTO system …. 8.21–8.28 International treaties as international law source …. 2.3–2.39 International Tribunal for the Law of the Sea (ITLOS) dispute settlement …. 9.21, 9.30, 9.53 maritime disputes …. 12.42 Seabed Disputes Chamber case summary …. 12.44 Internationally wrongful acts state responsibility for …. 3.11, 10.3–10.17 act attribution …. 10.5–10.17 even if conflicting national law-bound …. 3.14, 10.4 Interpretive declarations reservations versus …. 2.26 Inter-State cooperation …. 8.51

Investment agreements …. 8.18 Investment protection non-discriminatory limitations …. 8.18

J Joint Standing Committee on Treaties …. 3.27 Judicial decisions subsidiary international law source …. 2.57–2.62 evidence of law …. 2.61–2.62 Judicial dispute settlement …. 12.17–12.33 jurisdiction …. 12.22–12.33 Jurisdiction …. 4.19–4.28 advisory opinions …. 12.29–12.33, 12.32 fig 12.1 example …. 12.32 case summary …. 12.22 categories …. 4.20–4.28 nationality …. 4.24–4.25 prescriptive and enforcement jurisdiction …. 4.20 protective jurisdiction …. 4.26 territorality …. 4.22–4.23 universality …. 4.27–4.28 contentious cases …. 12.23–12.28, 12.32 fig 12.32

case summaries …. 12.24, 12.27 establishment principles …. 4.21–4.28 by treaty …. 4.28 government of State case summary …. 4.7 High Court of Australia all matters arising under any treaty …. 3.22 judicial dispute settlement …. 12.22–12.33 jurisdictional conflict …. 7.68 universal jurisdiction …. 7.61 Jus ad bellum …. 11.20–11.21 Jus cogens norms/rights …. 6.10, 6.28, 6.40 for customary international law …. 2.50 treaty conflict with …. 2.33 use of force, ranking of prohibition on …. 11.9 Jus in bello …. 11.21 ‘just war,’ the …. 1.30 Justice …. 6.20

K Kelsenian rules …. 5.1, 5.4–5.5, 5.9–5.12, 11.4

IHL rules set …. 7.2 international criminal law rules system …. 7.9 Kosovo …. 11.35 Kyoto Protocol …. 5.39–5.40, 5.66

L Law English law …. 3.25–3.26 evidence of law …. 2.61–2.62 general principles of law international law source …. 2.55–2.56 ‘hard law’ …. 2.67, 2.72, 5.4 international competition law …. 8.45–8.48 international environmental law (IEL) …. 5.1–5.67 international human rights law …. 6.1–6.52 international investment law …. 8.16–8.19 international law customary international law …. 2.40–2.54 as ‘law’ …. 1.54–1.56 nature and theory …. 1.2–1.56 international monetary law …. 8.11–8.15 international taxation law …. 8.49–8.51

international trade law …. 8.20–8.44 law violations non-recognition precondition …. 4.13 lex lata–lex ferenda distinction …. 1.32 merchant law …. 8.9 municipal laws …. 3.15 national law …. 3.2–3.46 natural law …. 1.30, 3.7 ‘soft law’ …. 2.63–2.68, 2.72, 5.4, 6.23, 8.47 Law of the sea …. 9.1–9.53 Legal personality, international …. 4.1–4.37 ‘constitutive theory’ State recognition …. 4.12 immunity …. 4.29–4.32 of international organisations …. 4.34 jurisdiction …. 4.19–4.28 non-State actors …. 4.33–4.37 sovereignty …. 4.16–4.18 statehood …. 4.3–4.15 States as main holder of …. 4.2–4.32 Legal systems international legal system

horizontal order …. 1.8 national–international interaction …. 1.25–1.28 national legal system national–international interaction …. 1.25–1.28 vertical order …. 1.8 State-centric system—international law …. 1.2, 1.4 Legality principle …. 7.10 Legislation Commonwealth statutes, constitutional validity …. 3.12 legislation–treaty conformity …. 3.23 in disconformity …. 3.33 domestic legislation …. 8.48 given effect notwithstanding treaty obligation inconsistency (UK) …. 3.25 legislative treaty implementation …. 3.28, 3.30, 6.52 prima facie intention …. 3.31 Lesbian, gay, bisexual, and transgender/transsexual (LGBT) theory …. 1.35 Lex mercatoria (merchant law) …. 8.9 Lex specialis (special law) …. 8.34–8.35 Liberalism …. 1.40 Liberties …. 6.16

M

Maastricht Treaty …. 8.4, 8.15 Marine environment …. 5.33, 9.50–9.52 protecting and conserving …. 9.50–9.52 Maritime boundaries …. 9.34 example …. 9.44 mineral resource development and …. 9.43–9.44 Maritime issues …. 9.32–9.52 Maritime zones …. 9.8–9.31 archipelagic waters …. 9.17–9.18 Australia’s maritime zones under Commonwealth Constitution …. 9.31 contiguous zone …. 9.19 the continental shelf …. 9.24–9.25 the deep seabed …. 9.29–9.30 exclusive economic zone (EEZ) …. 9.20–9.23 the high seas …. 9.26–9.28 internal waters …. 9.9–9.11 the territorial sea …. 9.12–9.16 Marrakesh Agreement …. 8.21–8.23, 8.26–8.27 Mediation …. 12.8 Mens rea …. 7.16, 7.23 MERCOSUR …. 8.41

Migrant workers …. 6.42 Ministerial Conference …. 8.26–8.27 Minority groups …. 1.35 Mixed tribunals …. 7.78 Monist approach …. 3.7–3.8 Montevideo Convention (definition) new State emergence, determination of …. 4.4 statehood definition …. 4.4–4.8 case summary—Aaland Islands Question (jurisdiction) …. 4.7 defined territory …. 4.6 foreign relations, capacity to enter into …. 4.8 government …. 4.7 permanent population …. 4.5 Montreal Protocol on Substances that Deplete the Ozone Layer …. 5.37, 5.65 Morality …. 1.31 Multilateral agreements GATT see General Agreement on Tariffs and Trade Multilateral environmental agreements (MEAs) …. 5.26, 5.28, 5.66 Multilateral Investment Guarantee Agency (MIGA) …. 8.14 Multilateral treaties …. 8.4, 8.8, 8.53

N National law development international law impact on …. 3.18–3.19 international courts/tribunals source and resolution …. 3.16–3.17 national law–international law relationship developmental influences on international law …. 3.14–3.17 executive action …. 3.46 individual supremacy …. 3.9 interactions between …. 3.14–3.46 national compliance …. 3.10–3.13 theoretical approaches …. 3.2–3.9 treaties in Australia …. 3.27–3.36 legislative treaty implementation …. 3.30 United Kingdom …. 3.25–3.26 unincorporated treaties and interpretation …. 3.32 Nationality …. 10.38 ‘active nationality principle’ …. 4.24 flag States and ships …. 9.27–9.28 ‘passive nationality principle’ …. 4.25

Nationals protection of …. 11.31 treatment of …. 10.37–10.38 Natural heritage (IEL regime) case summary …. 5.52 Natural law …. 1.30, 3.7 Necessity …. 11.15–11.17 Necessity criteria …. 11.15–11.17 case summary …. 11.16 wrongfulness, circumstance precluding …. 10.28 Negative rights …. 6.15–6.17, 6.26 Negligence …. 7.16 Negotiation …. 12.6–12.7 Neutral States …. 8.62 New international economic order (NIEO) …. 8.3 No-harm rules/principle …. 5.4–5.5, 5.9, 5.9–5.12 case law confirmation …. 5.10 customary status …. 5.12 Non-derogable rights …. 6.28 Non-discrimination …. 6.5 case summary …. 8.30

Non-governmental organisations limited legal personality …. 4.37 Non-judicial dispute settlement …. 12.6–12.12 conciliation …. 12.10 consultation …. 12.9 enquiry …. 12.11 good offices …. 12.12 mediation …. 12.8 negotiation …. 12.7 Non-State actors access to information, judicial remedies and participation in decisionmaking processes …. 5.23 disputes and arbitration …. 12.14–12.16 information access provision …. 5.23–5.24 international law compliance pressure (States) …. 1.20 influence on …. 1.6 ITLOS Seabed Disputes Chamber availability …. 12.44 legal personality …. 4.33–4.37 individuals …. 4.35 international organisations …. 4.34

non-governmental organisations …. 4.37 transnational corporations …. 4.36 ‘transnational law’ accommodation of …. 1.6 North American Free Trade Agreement (NAFTA) …. 5.53, 8.4, 8.18 Nuremberg Principles …. 7.28, 7.30, 7.45

O Objective territorality …. 4.23 Operation Iraqi Freedom …. 11.26 Opinio juris customary international law subjective element …. 2.47–2.49 in Lotus case …. 2.48–2.49 Organisations international organisations …. 1.6, 1.41, 4.34, 10.36 non-governmental organisations limited legal personality …. 4.37 Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (2011) …. 8.19 Outer space (IEL regime) …. 5.45–5.47 Outer Space Treaty …. 5.45 Ozone depletion …. 5.37

P

Pacta sunt servanda …. 2.55, 2.56, 3.11 Paris Convention for the Protection of Industrial Property …. 8.43 Passive nationality principle …. 4.25 Passive personality …. 7.59 Patent Cooperation Treaty …. 8.43 Peace/peacekeeping …. 6.20, 11.43, 11.47–11.48 first operation—Suez …. 11.48 Peace Conferences …. 7.3 Periodic reporting of UN treaty bodies …. 6.46 Permanent Court of International Justice (PCIJ) regarding opinio juris …. 2.48 regarding state practice …. 2.43 Permanent population …. 4.5 Persistent objector principle customary international law non-application Fisheries case summary …. 2.54 Person-based taxes …. 8.49 Piracy …. 7.40, 9.28 universal jurisdiction, subject to …. 7.65 Polar regions (IEL regime) …. 5.42–5.44

Policy policy-oriented perspectives of international law …. 1.45 Politics recognition as a political act …. 4.11 Pollution …. 5.2–5.5 air pollution …. 5.36 from land-based sources …. 9.51 polluter pays principle …. 5.18 responsibility and strict liability under …. 5.19 sources …. 5.35 conventions regulating …. 5.35 UNCLOS obligations …. 5.34 Positive rights …. 6.15–6.17, 6.31–6.32 Positivism …. 1.32, 1.54, 3.3 Pragmatism …. 1.50–1.53 Precautionary principle …. 5.15–5.17, 9.30 customary status …. 5.17 Prejudice …. 6.35 Primary (Kelsenian) rules …. 5.4–5.5, 5.9–5.12, 11.4 IHL rules set …. 7.2 ILE as …. 5.1

international criminal law rules system …. 7.9 use of force prohibition …. 11.4 Private practice, IEcL source …. 8.2 Procedural IEL principles …. 5.21–5.25 Prohibition on use of force …. 11.2–11.9 Proportionality …. 11.15–11.17 case summary …. 11.16 Protection of archaeological and historical objects …. 9.52 diplomatic protection …. 8.54, 10.38 of forests and soils …. 5.29–5.30 groundwater protection …. 5.32 investment protection …. 8.18 marine environment, protecting and preserving …. 5.33, 9.50–9.52 of nationals abroad …. 11.31 protection of nature regulation see international environmental law protective jurisdiction/principle …. 4.26 responsibility to protect …. 11.36–11.38 right and duty …. 11.36 of rights

by force …. 11.39–11.40 human rights …. 11.32–11.40 International Convention for the Protection of All Persons from Enforced Disappearance …. 6.43–6.44 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families …. 6.42 self-determination …. 11.39–11.40 Protective principle …. 4.26, 7.60 Protocol on Acceleration of Free Trade in Goods …. 8.37 Public participation principle …. 5.25

R Racial discrimination …. 6.34–6.35 Racial segregation …. 6.35 Ratione materiae case summary …. 4.32 Ratione personae …. 4.31 Realism …. 1.39 Recognition as a political act …. 4.11 preconditions to non-recognition, law violations …. 4.13

self-determination issues …. 4.14 State recognition of new State governments …. 4.15 for statehood …. 4.12 Regional and local custom …. 2.52–2.53 Reports/reporting ICCPR and ICESCR reporting …. 6.33, 6.46 States to ECOSOC …. 6.33 UN treaty bodies, periodic reporting …. 6.46 Res judicata …. 2.56 Reservations interpretive declarations versus …. 2.26 to treaty …. 2.21–2.25 Convention on the Rights of the Child, Australia’s reservation to example …. 2.21 Resolutions as international law source …. 2.63–2.65 Security Council resolutions …. 2.64 UN General Assembly resolutions …. 2.65 Resources coastal States’ exploration/exploitation of …. 9.24

exhaustible natural resources …. 8.33 high seas, living resources of …. 9.48–9.49 maritime issues regarding marine environment, protecting and preserving …. 9.50–9.52 mineral resource development and maritime boundaries …. 9.43–9.44 Responsibility of international organisations …. 10.36 state responsibility …. 10.1–10.38 Rights all ships right of innocent passage …. 9.14–9.15 of corresponding duties …. 6.8 generations of …. 6.17 human rights …. 5.67 international human rights law …. 6.1–6.52 inalienable rights …. 6.6 individual and collective rights …. 6.11–6.14 LGBT rights …. 1.35 limitations on …. 6.9–6.10 example …. 6.9 by ICCPR …. 6.29 negative rights …. 6.15–6.17, 6.26

non-derogable rights …. 6.28 positive rights …. 6.15–6.17, 6.31–6.32 preferential fishing rights …. 9.23 requiring legislative implementation (UK) …. 3.25 right of ‘hot pursuit’ …. 9.28 right of transit passage …. 9.45–9.47 self-determination rights …. 6.12, 6.17, 11.39–11.40 erga omnes right of all peoples …. 4.14, 6.12 Rio Declaration on Environment and Development (Rio Declaration) …. 5.13, 5.15 access to information …. 5.23–5.24 environmental impact assessments (EIAs) …. 5.21–5.22 pre-emptive function …. 5.22 polluter pays principle …. 5.18 Risk …. 8.16 Rome Convention on the Law Applicable to Contractual Obligations …. 8.5 Rule of law good citizenship and respect for rule of law …. 1.24 in international community …. 1.21–1.24 example …. 1.24 universal adherence …. 1.23

Rules international law rules …. 1.14, 1.56 fig 1.1 superseding common law precedents …. 3.8 no-harm rules …. 5.4–5.5, 5.9–5.12 primary (Kelsenian) rules …. 5.1, 11.4 secondary (Hartian) rules …. 5.1 state responsibility rules secondary rules …. 10.1 substantive rules …. 8.47

S Sea, law of the …. 9.1–9.53 dispute settlement …. 9.53 maritime issues …. 9.32–9.52 maritime zones …. 9.8–9.31 United Nations Convention on the Law of the Sea (UNCLOS) …. 5.33–5.34, 9.2–9.7 Seas coastal States sea lanes designation …. 9.16 the deep seabed …. 9.29–9.30 the high seas …. 9.26–9.28 international straits

right of transit passage …. 9.45–9.47 measuring sea’s breadth low-water line …. 9.5, 9.7 the territorial sea …. 9.12–9.16 all ships right of innocent passage …. 9.14–9.15, 9.18 Seas and Submerged Lands Act 1973 (Cth) …. 9.31 Second generation rights …. 6.17 Secondary (Hartian) rules …. 5.19 IHL rules set …. 7.2 IEL as …. 5.1 international criminal law rules system …. 7.9 Security Council sanctional resolutions …. 2.64 Self-defence …. 11.10, 11.22 anticipatory self-defence …. 11.22–11.26 case summaries …. 11.16, 11.19 collective self-defence …. 11.18–11.19 right under law case summary …. 11.19 State and third State countermeasures …. 11.18 jus ad bellum and jus in bello …. 11.20–11.21 necessity and proportionality …. 11.15–11.17

pre-emptive self-defence ‘Operation Iraqi Freedom’ …. 11.26 resort to force in …. 11.1 use of force justification …. 11.10, 11.32–11.40 use of force and …. 11.10–11.26 wrongfulness, circumstance precluding …. 10.20 Self-determination …. 6.12, 6.17 ICJ self-determination of jurisdiction case summary …. 12.22 protecting rights …. 11.39–11.40 recognition, issues pertaining to …. 4.14 use of force and …. 1.36 Six-Day War (1967) …. 11.25 Slave trading …. 3.40, 6.10, 7.41, 9.28 Socialism international law, approach to …. 1.47 ‘soft law’ …. 5.4, 8.47 examples of non-binding nature Rio Declaration on Environment and Development …. 2.66 United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) …. 2.67 General Comments form examples …. 2.68 international law source …. 2.63–2.68 treaties/custom development, influence on UDHR example …. 2.72 Soils and forests …. 5.29–5.30 Solar radiation …. 5.37 Source-based taxes …. 8.49 Sovereignty English sovereignty …. 3.26 exploit resources, sovereign right to …. 5.34 international law, sovereign equality of …. 1.3, 4.16–4.18 national sovereignty …. 1.26 sovereign immunity …. 4.29–4.32 State sovereignty …. 4.16–4.18, 8.3, 12.3 socialism …. 1.47 suspension during war …. 8.58 territorial sovereignty …. 4.17 SPS Agreement …. 8.35 State practice

customary international law objective element …. 2.41–2.46 definition …. 2.42 required amount …. 2.43–2.46 consistency …. 2.44 time …. 2.45 universality— Nicaragua Merits decision …. 2.46 State responsibility …. 10.1–10.38 conduct acknowledged/adopted by State as own …. 10.16 case summary …. 10.16 of insurrectional movements …. 10.15 persons acting in absence of official authorities …. 10.14 of State organs …. 10.6–10.8 State-controlled/directed …. 10.12–10.13 in connection with act of another State …. 10.17 consequences of a finding of …. 10.29–10.35 compensation …. 10.32 reparations …. 10.30 restitution …. 10.31 satisfaction …. 10.33–10.35 core supranational crimes overlap …. 7.13

steps/instruments …. 7.14 foreign nationals, treatment of …. 10.37–10.38 international law breaches governmental …. 3.13, 10.7 for internationally wrongful acts …. 3.11, 10.3–10.17 even if conflicting national law-bound …. 3.14, 10.4 wrongfulness, circumstances precluding …. 10.18–10.28 invocation of responsibility collective self-defence …. 11.18 environmental obligations breach …. 5.62 law of see customary international law rules …. 10.1 terrorism, responsibility not necessarily attributed to States …. 12.29–12.30 case summary …. 12.30 Statehood definitions Montevideo Convention definition …. 4.4–4.8 States, recognition of …. 4.9–4.15 States adjacent/opposite States, EEZ between …. 9.32–9.42

archipelagic States …. 9.17 behaviour behavioural constraints/modification—liberalisms …. 1.40 preference maximisation …. 1.43 coastal States …. 9.10–9.13, 9.15–9.16, 9.19, 9.21 consensualism …. 1.12–1.13 disputes between/settlement …. 3.17 arbitration …. 12.14–12.16 case summary …. 5.63 means choices …. 12.43 domestic application, treaty …. 6.52 duties of good faith …. 3.11 environmental impact assessments (EIAs) …. 5.21–5.22 with federal constitutional structure …. 3.13 flag States and ships …. 9.27–9.28 foreign investment accepting/rejecting …. 8.17 host State risk assumption …. 8.16 foreign relations, capacity to enter into …. 4.8 foreign States …. 9.22 human rights

CAT and …. 6.39 CEDAW and …. 6.36 claims …. 12.36–12.38 ICCPR and …. 6.27–6.28 ICERD and …. 6.35 restrictions/limitations …. 6.9, 6.22 States as duty-bearers of …. 6.8 immunity …. 4.29–4.32 for heads of States …. 4.30–4.32 information access provision …. 5.23–5.24 interaction between see international law international criminal jurisdictions, cooperation with …. 7.55 international law ‘transformation’ …. 3.4–3.5, 3.9 international obligations acting in accordance with …. 3.13 fulfilment, legislative modifications ensuring …. 3.10 honouring due to self-interests …. 1.11, 1.39 ‘law habit’ …. 1.14 obligatory versus agreed upon …. 1.54 retorsion acts …. 1.18 source location versus claim identification …. 1.45

violation in light of constitutional prohibition …. 3.9 interstate cooperation …. 7.73–7.74 jurisdiction …. 4.19–4.28 criminal law application—nationality …. 4.24–4.25 protective jurisdiction (security interests) …. 4.26 universal jurisdiction …. 4.27–4.28 landlocked States …. 9.26 legal personality, as main holder of …. 4.2–4.32 long-term loans from WB …. 8.14 maritime zones rights and obligations …. 9.9–9.31 neutral States …. 8.62 non-organs, conduct of …. 10.9–10.10 non-State actors …. 1.6, 4.33–4.37 organs conduct of …. 10.6–10.8 placed at disposal of one State by another …. 10.11 permanent population of …. 4.5 recognition …. 4.9–4.15 constitutive theory …. 4.12 ‘constitutive theory’/‘declarative theory’ of …. 4.10–4.12

de jure (in law) or de facto (in fact) …. 4.9 declarative theory …. 4.11 governments …. 4.15 preconditions to …. 4.13–4.14 representation of permanent population …. 4.5 self-defence counter-terrorism measures …. 11.27–11.30 State and third State self-defence countermeasures …. 11.18 against ‘threat’ …. 11.23 sovereignty …. 1.47, 4.16–4.18, 8.3 over defined territory …. 4.6 State will municipal law expression of …. 3.15 positivism …. 1.32, 1.54, 3.3 State-centric system—international law …. 1.2, 1.4 statehood …. 4.3–4.15 territory delimitation …. 4.6, 9.6, 9.32–9.42, 9.43–9.44, 9.53 effective and independent governance …. 4.7 international law breaches …. 3.13

territorial sovereignty and scope …. 4.17–4.18 treaty consent invalidation …. 2.32 declarations …. 2.21 ratification, accession, acceptance and approval …. 2.17–2.20 reservations to …. 2.22–2.26 States as parties to …. 2.17 third State application …. 1.13, 2.29–2.30 Stockholm Declaration of the United Nations (UN) Conference on the Human Environment …. 5.2–5.3 ‘no-harm’ rule, embedding of …. 5.11, 5.67 Subjective territorality …. 4.23 Substantive IEL principles …. 5.9–5.20 no-harm rules …. 5.4–5.5, 5.9, 5.9–5.12, 5.12 case summary …. 5.9 Suez crisis (1956) …. 11.48 Supervening impossibility of performance termination/withdrawal of treaty …. 2.36 Supranational crimes …. 7.11–7.34 core supranational crimes …. 7.12 state responsibility overlap …. 7.13

elements …. 7.16–7.17 penalties …. 7.32–7.34 procedures …. 7.42–7.55 adjudication …. 7.43 domestic prosecution …. 7.73–7.76 prosecution and enforcement …. 7.50–7.55 Sustainable development concept …. 5.13–5.14, 5.53, 8.33

T Tariffs …. 5.54 Tax evasion …. 8.51 TBT Agreement …. 8.35 Technology (transfer of) …. 8.16 Territorality principle …. 4.22–4.23, 7.58 subjective and objective territorality subdivisions …. 4.23 Territory maritime boundaries and mineral resource development …. 9.43–9.44 States defined territory of …. 4.6 independent governance …. 4.7 international law breaches …. 3.13 territorial sovereignty and scope …. 4.17–4.18

the territorial sea …. 9.12–9.16 all ships right of innocent passage …. 9.14–9.15, 9.18 Terrorism …. 7.38, 12.27–12.30 Third generation rights …. 6.17 Third parties …. 12.6, 12.8, 12.11 Third States State and third State self-defence countermeasures …. 11.18 treaty application …. 2.29–2.30 consensual rights/obligations …. 1.13 Third World international law, approaches to …. 1.36 Torture …. 2.50, 6.40, 7.37 Trade (IEcL regime) …. 5.53–5.55, 8.20–8.44 equal trade conditions …. 8.31 non-WTO regulation …. 8.36–8.38, 8.41, 8.43–8.44 prohibition between hostile countries …. 8.61 trade in goods …. 8.29–8.38 trade in intellectual property …. 8.42–8.44 trade in services …. 8.39–8.41 WTO regulation …. 8.29–8.35, 8.39–8.40, 8.42–8.43 Trade wars …. 8.52

Transfer (capital and technology) …. 8.16 Transformation doctrine …. 3.4–3.5, 3.9, 3.25, 3.38 see also dualism Transnational corporations limited legal personality …. 4.36 Transnational crimes …. 7.35–7.41 genocide …. 7.36 procedures …. 7.56–7.76 adjudication …. 7.57–7.72 domestic prosecution …. 7.73–7.76 prosecution and enforcement …. 7.73–7.76 serious IHL breaches …. 7.39 terrorism …. 7.38 torture …. 7.37 Transnational economic (right duty) relations …. 8.14 sources …. 8.10 Treaties Council (Australia) …. 3.27 Treaty Antarctic Treaty System (ATS) …. 5.44 bilateral and multilateral treaties …. 8.4 bilateral investment treaties (BITs) …. 8.17

breach of …. 2.35 change of circumstances and …. 2.37 custom influence of custom on treaties …. 2.70 influence of treaties on …. 2.69 formation steps …. 2.10 fig 2.1 entry into force …. 2.14 negotiation and drafting …. 2.11 ratification, accession, acceptance and approval …. 2.17–2.20 signature, opening for …. 2.13 text, adoption of …. 2.12 treaty registration …. 2.15–2.16 IEcL source …. 8.2 international law treaty provisions Australian Constitution …. 3.22–3.24 ‘self-executing’ treaties …. 3.21 United States Constitution …. 3.20–3.21 international treaties as law source …. 2.3–2.39 interpretation …. 2.27–2.28 invalidity of

jus cogens norms, conflict with …. 2.33 State’s consent invalidation …. 2.32 legislative implementation …. 3.28, 3.30, 6.52 Montevideo Convention see Montevideo Convention mutual assistance …. 7.75 in national law Australia …. 3.27–3.36 United Kingdom …. 3.25–3.26 obligations case summary …. 3.35 Outer Space Treaty …. 5.45 performance of …. 2.36 post-reform Australian treaty-making process …. 3.27 protecting flora and fauna …. 5.48 reservations to example …. 2.21 limitations imposed …. 2.22 objecting to, and accepting …. 2.23–2.25 source of transnational and supranational criminal law …. 7.10 States ‘clean slate’ doctrine …. 1.13

State consensus and …. 1.12–1.13 third State application …. 2.29–2.30 termination/withdrawal of by agreement …. 2.34 due to fundamental change of circumstances …. 2.37 due to supervening impossibility of performance …. 2.36 following breach …. 2.35 treaty information database …. 3.27 treaty-based IEL mechanisms …. 5.65–5.66 UN human rights treaties …. 6.25 tab 6.1 examples …. 6.29, 6.33 treaty bodies …. 6.45–6.49 UN human rights treaties and treaty bodies …. 6.25–6.49 unincorporated treaties administrative decision-making …. 3.35 common law development …. 3.34 interpretation aid …. 3.32 universal jurisdiction, treaty establishment of …. 4.28 VCLT definition …. 2.4–2.5 elements …. 2.6–2.9 Treaty bodies (UN) …. 6.45 tab 6.2, 6.45–6.49

case summary …. 6.49 complaints …. 6.47–6.49 periodic reporting …. 6.46 Treaty on European Union (TEU) …. 8.4 Treaty on Intellectual Property in respect of Integrated Circuits …. 8.43 TRIPs Agreement …. 8.42

U Umbrella clauses …. 8.18, 8.21 UN Charter peaceful dispute settlement …. 12.2 self-defence codification …. 11.12 use of force prohibition …. 11.4–11.5 Caroline doctrine …. 11.23 UN Commission on Human Rights (UNCHR) …. 6.19 UN Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce …. 8.9, 8.54 unifying international trade law …. 8.38 UN Conference on Trade and Development (UNCTAD) …. 8.8 UN Economic Commission for Europe (UNECE) public participation …. 5.25 UN Protection Force (UNPROFOR) …. 11.48

Unilateral declarations …. 2.38–2.39 United Nations Convention on the Law of the Sea (UNCLOS) …. 5.29, 7.40, 8.6, 9.2–9.7 addressing State rights and obligations …. 9.2 baselines …. 9.5–9.7 ‘equidistant lines’ …. 9.32 measuring sea’s breadth …. 9.5 straight baselines …. 9.6 Conventions replacement …. 9.3 coverage …. 5.33 exploit resources, sovereign right to …. 5.34 key definitions under …. 9.4, 9.4 tab 9.1 marine living resources protection …. 5.49 pollution obligations …. 5.34 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) …. 2.67 United Nations Framework Convention on Climate Change (UNFCCC) …. 5.38 United Nations (UN) apologism versus utopianism …. 1.33 approaches central case approach …. 1.46

comparative standard(s) use …. 1.46 interdisciplinary approaches …. 1.37–1.43 socialism approach …. 1.47 Third World approaches …. 1.36 assumptions, critical theory questioning of …. 1.33–1.36 breach State breach–national law compliance …. 3.12 centralisation of force use under …. 11.1 centralised authority, lack of …. 1.15 compliance …. 1.11–1.14 theories of …. 1.14 consensualism basis …. 1.12–1.13 Constitution, interpretation of …. 3.24 constitutional provisions Australia …. 3.22–3.24 United States of America …. 3.20–3.21 decentralisation of force use under …. 11.1 definition …. 1.2–1.7 development ILC codification/development …. 2.71 influences of national law …. 3.14–3.17

as law source …. 2.69–2.72 different/contestable interpretation …. 1.22 domestic reception of …. 3.2–3.9, 3.18 effectiveness of examples …. 1.51–1.56 ineffectiveness …. 1.48 State-dependant …. 1.49–1.50 empiricism offering (economic theory) …. 1.43 enforcement mechanisms …. 1.15–1.24 retorsion acts …. 1.18 self-enforcement …. 1.16 Eurocentric origins …. 1.9 external influences on …. 1.6–1.7 fact-finding, importance of …. 12.11 General Assembly …. 6.24 binding resolutions …. 2.65 UDHR instrument adoption …. 2.72 human rights framework …. 6.19–6.49 enforcement mechanisms …. 6.33, 6.46, 6.46–6.47 UN human rights agencies …. 6.24 UN human rights treaties …. 6.25 tab 6.1, 6.25–6.44

UN human rights treaty bodies …. 6.45 tab 6.2, 6.45–6.49 Universal Declaration of Human Rights (UDHR) …. 2.72, 6.19, 6.20–6.23 international criminal law see international criminal law international economic law (IEcL) see international economic law international environmental law (IEL) see international environmental law international human rights law see international human rights law international humanitarian law see international humanitarian law international legal system composition …. 1.8 legal process …. 1.44 national system, interaction …. 1.25–1.28 nature …. 1.8–1.10 ‘law’ authority of …. 1.56 binding quality …. 1.55 sovereign-to-subjective person command …. 1.32 the law of the sea see sea, law of the legal personality, international …. 4.1–4.37 legislative enactment …. 3.5 national law–international law relationship

executive action …. 3.46 ‘incorporation’ …. 3.7–3.8 individual supremacy …. 3.9 interactions between …. 3.14–3.46 national compliance …. 3.10–3.13 theoretical approaches …. 3.2–3.9 ‘transformation’ to national …. 3.4–3.5, 3.9 non-compliance sanctions …. 1.17 a patriarchal discourse …. 1.34 policy-oriented perspectives …. 1.45 practical application/function …. 1.44 pragmatism and …. 1.50–1.53 ‘public’–‘private’ distinction …. 1.5, 1.34 relevance …. 1.53 rules creating and ascertaining …. 1.56 fig 1.1 economic rationale (economic theory) …. 1.43 State obeyance …. 1.14 State will—positivism …. 1.32, 1.54, 3.3 Security Council international dispute settlement, role in …. 12.13

resolutions …. 2.64, 3.45 use of force, permission for …. 11.41–11.48, 12.26, 12.28 sources customary international law …. 2.40–2.54 general principles of law …. 2.55–2.56 international conventions/treaties …. 2.3–2.39 international law development …. 2.69–2.72 judicial decisions/eminent publicists’ writings …. 2.57–2.62 national law as ‘source’ …. 2.54, 3.16 resolutions, general comments and ‘soft law’ …. 2.63–2.68 subsidiary sources …. 2.57–2.62 state responsibility …. 10.1–10.38 theories and methods …. 1.29–1.47 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) …. 6.14 non-binding declarations …. 2.67 use of force …. 11.1–11.48 use of force within system …. 11.41–11.48 see also International Court of Justice United States Constitution international law treaty provisions …. 3.20–3.21

Universal Copyright Convention …. 8.44 Universal Declaration of Human Rights (UDHR) …. 2.72, 6.19, 6.20–6.23 rights full enjoyment …. 6.22 range of …. 6.21 soft law example …. 2.72 Universal jurisdiction …. 7.61, 7.63–7.65 Universality principle …. 4.27–4.28, 6.5 treaty establishment …. 4.28 Unjust enrichment …. 2.56

V Veto mechanism …. 11.43–11.44 Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) …. 5.37 Vienna Convention on the Law of Treaties (VCLT) …. 5.37, 8.10 treaty interpretation and application …. 2.27–2.30 invalidity and termination …. 2.31–2.37 ‘treaty’ definition …. 2.4–2.5 ‘an international agreement’ …. 2.6 ‘between States’ …. 2.7

‘whatever its particular designation’ …. 2.9 ‘in written form’ …. 2.8

W War adjudicating crimes …. 7.69 engagement in …. 11.20 Geneva Convention on the Protection of War Victims …. 7.3 IEcL in time of war …. 8.58–8.62 property destruction …. 8.60 protecting environment in time of …. 5.20 Six-Day War (1967) …. 11.25 terrorism …. 12.27–12.30 responsibility attribution …. 12.29–12.30 trade wars …. 8.52 use of force justification …. 11.26 war crimes …. 7.20–7.22 Water (IEL regime) …. 5.31–5.35 groundwater protection …. 5.32 watercourses …. 5.31 Watercourses Convention …. 5.31 Waters

archipelagic waters …. 9.17–9.18 deeply indented coastlines or island fringes …. 9.6 internal waters …. 9.9–9.11 low-water line …. 9.5 as baseline …. 9.7 Women discrimination against …. 6.36 World Bank (WB) …. 5.53, 8.11 guidelines …. 8.19 State long-term loans from …. 8.14 World Heritage Convention case summary …. 5.52 World Intellectual Property Organization (WIPO) …. 8.43 World Trade Organization (WTO) …. 5.54, 8.8 overarching economic policy goals …. 8.22 system …. 8.21–8.28 WTO regulation of trade in goods …. 8.29–8.35 WTO regulation of trade in intellectual property …. 8.42–8.43 WTO regulation of trade in service …. 8.39–8.40 WTO system aims …. 8.25

competitive trade (right duty) relations within WTO …. 8.28 regulatory bodies …. 8.26 Writings international law field, academic/jurist writings …. 2.57–2.62 Wrongful acts internationally wrongful acts state responsibility for …. 3.11, 3.14, 10.3–10.17, 10.4 Wrongfulness …. 11.14 circumstances precluding …. 10.18–10.28 consent …. 10.19 countermeasures …. 10.21–10.23 distress …. 10.26–10.27 force majeure …. 10.24–10.25 necessity …. 10.28 self-defence …. 10.20