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Public International Law

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International Law and Municipal Law

Issues: • Does domestic law override international law? • Does international law apply domestically?

1 Theoretical Issues

• Monism: Essentially exponents of natural-law theories; consequently, they regard all law as part of the same universal normative order, with municipal law deriving its binding force by way of delegation from international law. Thus, monists consider international law a part of domestic law. • Dualism: Essentially exponents of legal positivists – therefore, they have an essentially consensual view of international law, believing that international and municipal law were two separate legal orders. International law must be incorporated into domestic law, for it to apply domestically. • Harmonisation: Assumes that international law forms part of municipal law but acknowledges that on occasions when there was a conflict between the two systems, a municipal judge would be bound by the jurisdictional rules of the domestic domain.

2 Primacy of International Law

1 Municipal Tribunals

Whether international law has primacy over municipal law depends on each particular country’s constitution.

In Australia, there is no express incorporation of international obligations in Australia. Implementing legislation is required for both treaty and customary international law to apply. See below for further information.

2 International Tribunals

A State cannot invoke domestic laws as an excuse for failure to perform its international duties and obligations. [Draft Declaration on Rights and Duties of States 1949, Article 13; Alabama Claims Arbitration]

• Draft Declaration was noted and commended to members by General Assembly Resolution 375 • Under Article 27 of the Vienna Convention on the Law of Treaties, a State cannot rely on domestic law to sanction the breach of a treaty

1 Conflicting Obligations

Where a State has international obligations which conflicts with its domestic laws, it is expected to modify its domestic legislation to comply with such obligations. [Exchange of Greek and Turkish Populations]

2 Application of Municipal Law

In certain circumstances, an International Tribunal may be required to apply municipal law. Where this occurs, the Court must seek to apply municipal law as it would be applied in that country. [Brazilian Loans Case]

3 Application of Customary International Law in Municipal Law

1 Approach in England – Incorporation

In England, customary international law applies if it is not contradicted by legislation. [Trendtex]

In Trendtex, Denning LJ stated that the theory of incorporation was the correct approach, and therefore, when the rules of international law changes, so does English law. This decision was subsequently affirmed in Maclaine Watson.

2 Approach in Australia – Transformation

The Australian Courts have rejected the English approach, holding that for CIL to apply in Australia requires implementing legislation to take effect. [Nulyarimma]

Nulyarimma v Thompson

Facts: • N claimed that certain Ministers and Federal MPs had committed acts of genocide. Since genocide is not a crime under domestic legislation, they claimed that customary norm of international law prohibiting genocide was automatically incorporated into the common law of Australia.
Held:
• Wilcox J: There is a strong presumption that there is no crime unless one is expressly created by law. (In absence of legislation, there was no offence of genocide that could be tried. • Whitlam J: Parliament had expressly abolished common law crime – therefore, there could be no reception of international law into criminal law. • In dissent, Merkel J held: ▪ A rule will be adopted or received into, and so a source of, domestic law if it is “not inconsistent with rules enacted by statutes or finally declared by the courts”. ▪ Where a rule is inconsistent with domestic law, no effect can be given to it without legislation. ▪ Once custom is adopted into domestic law, they have the “force of law”.

Note that the issue in Nulyarimma related to the reception of CIL into Australian criminal law. On the basis of the majority reasoning, criminal law has to be expressly created by Parliament. Therefore – for non-crime related issues – would the Court follow Merkel J’s approach???

3 What happens when CIL conflicts with express statutory provisions in Australia?

The Australian Parliament may legislate in breach of CIL, though Australia may then be liable under international law. [Polites]

In general, there is a rebuttable presumption that States will not legislate inconsistently with CIL. Where there is inconsistency, Courts should read down provisions to the extent necessary to avoid inconsistency where possible. [AMS v AIF]

Polites v Commonwealth

Facts: • P were Greek citizens residing in Australia who had been conscripted during WW2 under the National Security Act 1939. They argued there was a rule in CIL that prohibited a state from imposing conscription upon aliens within its territory.
Held:
• The Court held that Commonwealth Parliament can legislate on matters in breach of international law • Legislation within the power of Commonwealth does not become invalid because it conflicts with a rule of international law. However, every effort should be made to construe Commonwealth statutes to avoid breaches of international law and comity.

4 Does the external affairs power give Parliament power to legislate to give effect to CIL obligations?

In Polyukhovich, the High Court held that the Crown can legislate to give effect to obligations under Customary International Law under s 51(xxix) of the Australian Constitution the “external affairs power”. However, the Australian legislation must then conform with CIL.

Polyukhovich v Commonwealth

Issue: • Could the Commonwelath legislate to identify as war crimes, acts committed outside Australia in Europe during WW2 and provide for the trial in Australia of Australian citizens or residents accused of such crimes? • CIL conferred a right in every nation to try those charged with the commission of international war crimes universal jurisdiction ( was this sufficient for the Commonwealth to exercise the “external affairs” power because it facilitated the universal jurisdiction to prosecute?
Held:
• CIL was sufficient basis to exercise “external affairs power” as long as the legislation conformed with CIL. The law which vested in an Australian Court a jurisdiction recognised by international law as a universal jurisdiction is a law with respect to Australia’s external affairs. • According to Brennan, the external affairs power can extend to legislation which is enacted to incorporate obligations under CIL.

5 Exclusion of International Law

An issue is justiciable before the courts if it can be tried according to law in the courts.

1 Act of State Doctrine

Under the Act of State doctrine, the acts of states are not justiciable before domestic courts. This is because no state may exercise jurisdiction over another state because they would be contrary to the notion of equality of states and state sovereignty. In practice, this means that domestic courts will not adjudicate upon transactions of foreign states Buttes Gas and Oil Company v Hammer (No. 3) 1982.

2 Doctrine of Non-Justiciability

A domestic court will not adjudicate upon the validity of the act of another sovereign state performed in its capacity as sovereign within its own territory. For example, this doctrine will apply where an issue arises in an Australian Court as to the constitutionality of foreign law under that foreign constitution.

3 Executive Certification

In relation to certain highly political subject matters, the Court will make an application to the executive for a conclusive statement of facts on a particular international law issue. In Australia, this is provided by DFAT under s 61 of the Constitution.

Where such a certificate is provided, this will be conclusive evidence; therefore, parties will not be able to present evidence to the contrary – unless it can be shown that it was not given in good faith.

4 Application of Treaties in Municipal Law

1 How does Australia enter into treaties?

The power to enter into treaties is an executive power entered under s 61 of the Constitution. Only the Commonwealth can enter into treaties; States may not. It is DFAT policy that Australia will not sign a treaty it does not intend to ratify.

The period between signature and ratification is often used to implement necessary legislation, so that we will not be in breach of the treaty. Reforms made to the treaty-making process in 1996, such as tabling of treaties in Parliament, seeks to involve Parliament into the process, so that it is not just an executive act.

2 Prerogative to Conclude Treaties

As noted, the executive has the power to sign and ratify treaties under s 61 but under s 51 (xxix), Parliament has the legislative power to enact laws implementing provisions of treaties entered by the executive, so as to bind the Commonwealth. Therefore, once a treaty has been ratified, the “external affairs power” can be utilised to be the basis for any domestic legislation, regardless of the subject matter of the treaty. [Tasmanian Dams]

However, this does not mean that the Commonwealth is able to implement ALL treaties. Before a treaty can be implemented, it must have precise obligations and not mere vague aspirations. [Victoria v Commonwealth]

• A broad objective with little precise content and wide divergent policies by parties will fail as there must be an objective in which common action can be taken. • Domestic law may implement only some parts of a treaty; the whole entire treaty does not have to be implemented to be valid under s 51 (xxix).

1 What happens where the provisions of the treaty is inconsistent with international law?

Even if a treaty is inconsistent with international law does not preclude Parliament from enacting it into Australian legislation. S 51 (xxix) does not confine the legislative power to the enactment of laws implementing treaties which are valid under international law. [Horta v Commonwealth]

Horta v Commonwealth

• P argued that the Treaty between Australia and Indonesia in respect of East Timor, and domestic legislation that implemented treaty into domestic law exceeded “external affairs” power. Furthermore, it was contended that the treaty was void under international law or would be a breach of obligations under international law. • Court held that even if the treaty was void under international law, or would constitute a breach, it would not deprive their character as laws of Australia.

3 Application of Treaties in Municipal Law – Treaties Are Not Part of Municipal Law

For a treaty to become part of Australian law, it must be specifically incorporated into law by Australian statute. Ratification is insufficient; that is, treaties are not self-executing. [Victoria v Commonwealth] However, where a treaty has been ratified but unimplemented, it may create a “legitimate expectation” – see below [Teoh])

1 How is a treaty implemented into law?

For a treaty to be justiciable, it must be directly implemented into statute and not merely attached in a schedule or approve of it. The extent to which treaties operate in domestic law depends upon the express provisions of the implementing legislation. [Minogue]

For a treaty to be directly implemented, it must give the treaty the force of law, such as: • Use language of domestic law to translate the treaty provisions into Australian law. Where the treaty is attached to an act as a schedule, there must be something more in the body of the act that shows that the treaty is incorporated. [See Dietrich and Minogue] • Government may enact a whole new statutory regime to enact the treaty. • Use of regulations to give effect to Security Council resolutions, when there is an urgent need for Australia to act quickly to implement is obligation. This cannot merely approve the treaty but requires something more. [Bradley v Commonwealth]

Minogue v Williams

Facts: • The International Covenant on Civil and Political Rights was attached as a schedule to the HEREOC Act, but there was nothing in the Act which purported to incorporate it as part of Australian law or enact it as such. • Issue: Had the ICCPR been incorporated into Australian domestic law?
Held:
• The ratification by Australia of the ICCPR did not render it part of Australian municipal law. • Though the ICCPR is contained in the Schedule to the Human Rights and Equal Opportunity Commission Act – this confers power on HREOC to investigate and conciliate alleged breaches contained in the ICCPR – BUT it does not create justiciable rights for individuals. • In this instance, the legislation merely gave guidance to what the international law is.

2 Exceptions to the General Rule

An exception to the general rule is treaties relating to war and peace, cession of territory or concluding alliances with foreign powers. See Mabo No. 2 and Dietrich.

← A treaty must be implemented if it wishes to create individual rights and obligations, or change existing rights and obligations under that legal order. [Victoria v Commonwealth]

4 Statutory Interpretation – Presumption of Consistency

1 Statutes Implementing Treaties

There is a presumption that domestic legislation will be read consistently with treaties or that legislation will be read down, to the extent necessary to avoid consistency. [Chu Kheng Lim]

Where a Statute expressly incorporates treaty text into legislation, the text is held to have same meaning in the Statute as in the treaty. In this respect, the Court will follow the Vienna Convention. [Applicant A v Minister for Immigration] Similarly, Australian Courts should follow the decision of other Courts of States who are parties to the treaty in construing the treaty. [Dietrich]

2 Unimplemented Treaties

Legislation or regulations will not be declared invalid merely because it is said to be inconsistent with Australia’s obligations under an international agreement ratified but not incorporated by legislation into domestic law. [Molisi v Minister for Immigration]

5 Influence of International Law on Australian Law

1 Interpretation of Statutes

Where domestic legislation conflicts with treaties, courts are obliged to enforce the legislation; that is, primacy of domestic law. [Dietrich] There must be ambiguity before the Courts can look to international law.

• Courts should follow the conventional principles of statutory interpretation under Acts Interpretation Act s 15AB • Where resolving ambiguity or obscurity in legislation – Courts will look at the intention of the legislature. In doing so, it is presumed that legislature will act in conformity with its international obligations – favouring a construction that accords with international obligations [Chu Kheng Lim] • If it is clear that Parliament intended to legislate in breach the Australian statute will prevail. [Polites]

This rule applies to both State and Commonwealth legislation, and to both CIL and treaty law. [AMS v AIF]

1 Constitution

In Kartinyeri, Kirby J utilised international law to aid in the interpretation of the Australian Constitution, holding that there was a strong presumption that the Constitution was not intended to violate fundamental human rights and dignity.

This approach has not been adopted by any other High Court Justice – in AMS v AIF, Gleeson CJ, Hayne and Gummow JJ said “[the constitution] provisions are not to be construed as subject to an implication said to be derived from international law”.

2 Development of the Common Law

International law is a legitimate and important influence on the development of the common law and may be used as a guide, especially in respect of human rights. [Mabo; Chu Kheng Lim]

However, this does not mean that the common law necessarily has to develop and change, in order to satisfy an international obligation; that is, it cannot be used “to declare a right which previously had never been recognised” [Dietrich] especially where Parliament has not seen fit incorporate these provisions into domestic law. [Teoh]

3 Treaties and the Doctrine of Legitimate Expectations

In Teoh, the High Court held that ratification of a convention is a positive statement by the executive to the world and Australian people that the government will act in accordance with the convention. This is an adequate foundation for a “legitimate expectation”, absent statutory or executive indications to the contrary that administrative decision-makers will act in accordance with the convention.

Minister for Immigration v Teoh

Facts: • T had spent time in prison. T had a deportation order made against him which meant his wife would be left in Australia with 7 children and consequently, she would be unable to care for them. He applied for a review of decision to refuse him permanent residence. • Under the UN Convention on Rights of Child, ratified but not implemented by Australia, Art 3 provides that in all actions concerning children, including those by administrative bodies, the best interest of the child shall be of primary consideration.
Held:
• The principles about a treaty has no effect on Australian law until incorporated • However, the HC stated that ratification of a convention is a positive statement by the executive to the world and the Australian people that the executive government and its agencies will act in accordance with the convention. • Absent statutory or executory indications to the contrary, that statement (ie the ratification) was a basis for a legitimate expectation that administrative decision makers will act in conformity with the convention. This does not mean that the decision maker must comply with the convention, however, if they intend to make a decision inconsistent with the convention they must give notice to the affected person and give that a person an opportunity to argue against what is proposed.

← NB: Though this has been criticised by the government, it has not been legislated to the contrary ( therefore is still the law.

Personality

1 International Legal Personality

Legal personality is primarily an acknowledgement that an entity is capable of exercising certain rights and being subject to certain duties on its own account under a particular system of law; that is, possessing legal capacity. In international law, the State is the typical legal person, but other legal “persons” includes both international organizations (e.g. WHO and UN) and other non-legal entities, together with individuals. It is the law that determine who is a legal person.

← The scope and character of the law determine who or what is competent to act in the international legal system/ arena.

Other than States, whether an organisation or person has personality is determined by what it has been granted under treaties etc.

2 States

Under international law, States are typically the legal person. Under the orthodox positivist view of international law, States are the only subject of international law.

See below for the principles in determining what a State is.

3 International Organisations

Unlike States, international organisations do not possess full international personality. [Reparations for Injuries Suffered in Service of UN]. Whether an international organisation possesses personality in international law hinges upon its: • Constitutional status – the terms of the treaty which establishes the organisation • Actual powers and practice – can the organisation fulfil its functions without legal personality?

Significant factors will include the capacity to enter into relations (eg. treaties) with States and other organisations; and the status it has been given under municipal law.

← If it is determined that an organisation has legal personality, the nature of the personality will HAVE to be determined eg. is it capable of entering into treaties, commence proceedings, exercise immunity etc.

Reparations for Injuries Suffered in Service of UN

Facts: • In 1948, the chief UN truce negotiator, a Swedish national, was killed whilst on duty in Jerusalem allegedly by terrorists. • Jerusalem was then in Israeli possession – at the time was Israel was not yet an UN member.
Issue:
• Did the UN have legal capacity to bring claim to obtain reparation for damage caused to: ▪ UN itself as employer ▪ On behalf of the victim himself and those claiming through him
Held:
1) The UN had capacity to bring action again those who caused injury to UN by breach of obligation. • Though the UN does not possess full legal international personality as enjoyed by States, the UN is an international person, the subject of international law and has capacity to maintain rights by bringing international claims. • Most importantly, the Court implied certain powers into the UN Charter by necessary implication as it was difficult to see how the UN could exist and fulfil its functions without having legal personality. • UN had an objective legal personality (representing the vast majority of States), and not just personality recognised by its member states, which meant that it could enforce claims against both members and non-members.
2) The UN could bring action on behalf of the victim. The action of the Organisation is based upon the victim’s status as an agent of the Organisation and the victim’s nationality is irrelevant.
3) Sweden could also claim on behalf of the victim because he was a Swedish national. A double claim would be precluded as the State and Organisation could reach agreement.

4 Individuals

As a general rule, individuals lack standing to assert violations of international treaties – the individual is dependent on the State of their nationality to claim on their behalf.

However, individuals may be conferred particular rights under particular treaties (particularly in the field of human rights). Where this has occurred, individuals will be able to enforce these rights under international law, independently of municipal law.

← The individual remains an object, not a subject of international law whose most important characteristic is his nationality. See below at 10.1. ← Since 1945, after the Nuremberg trials, it has been established that individuals do possess some degree of international criminal responsibility.

5 Others

Nanni v Pace and the Sovereign Order of Malta

• Only States can contribute to the formation of international law as an objective body of rules • It is impossible to deny to other international collective units a limited capacity of acting internationally within the ambit and the actual exercise of their own functions with the resulting international juridical personality and capacity which is its necessary and natural corollary.

NGO’s don’t have international legal personality.
Have been granted observer status. ‘Stuck out in the hallways’. They do have some influence, but they can sue or be sued. e.g. Amnesty International, Green Peace.

The ICRC is in a unique position because it is given power from Geneva Conventions which are treaties. There is a significant role given, meditating role between waring states, looking after war prisoners, natural disasters and emergency relief.

It is states that give money to States, but it is not tied aid. It is a kind of state as it is formed under states.

Multinational Corporations: Like individuals, whether MNCs have legal personality will be determined by reference to what rights they have been accorded under the terms of various treaties. Under ISIS, MNCs may pursue claims against States to settle investment disputes.

NGOs: Though some NGOs may be given rights and duties under treaties, in general they do not possess legal personality, but rather act as a “mouthpiece”. To fulfil its policy/lobbying roles, NGOs may be granted observer status at conferences.

Federations: Whether States eg. NSW, Quebec has personality will depend on each particular countries’ constitution. In Australia, States do not have international legal personality, and cannot enter into treaties of their own accord.

Association of States (EU, Commonwealth): Some possess legal personality.

Non-Territorial Entities: National liberation movements do have some degree of legal personality. UN assembly has given observer status to some of them, and they can participate in debates eg. PLO. In some circumstances, insurgence guerrillas may enter into agreements, and will be bound by the rules of law.

Statehood

Subject to any effect of recognition, a new State is automatically bound by international law upon attaining Statehood.

1 Criteria for Statehood

Under Article 1 of the Montevideo Convention on the Rights and Duties of States 1933, the criteria for Statehood are that a State should have:
1) A defined territory;
2) A permanent population;
3) A government;
4) Capacity to enter into relations with other States.

Other factors that may be relevant include: self-determination; recognition; and independence should not have been achieved in pursuit of racist policies – of a political or moral character.

1 Defined Territory

A State must have a defined territory over which it exercises governmental power – there is no minimum requirement as to the amount of territory that a State must have. Further the boundary dispute do not have to be resolved for a state to be a state.

Defined territory means that a State has a clear, coherent area over which it exercises sovereignty. This does not mean that all of the State’s boundaries be settled, such as Israel.

• Territory does not have to be continuous eg. USA – Alaska and Hawaii

However, the Knights of Maultor present an exception.

2 Permanent Population

Though a permanent population is required, there is no specification of a minimum of a number of inhabitants or amount of territory– see Nauru and Tuvalu.

← The permanency requirement may be satisfied by a population, sections of which are nomadic. [Western Sahara] ← The mere presence of human beings will not satisfy the population requirement; a population is a group of people who share a common destiny from cradle to grave, that is, a social-life requirement. [Duchy of Sealand]

3 Government

To be a State, the entity must demonstrate that it has an effective government; that is, to show substantial independence, formal and real, from the parent State.

← An effective government exists where a stable political organisation had been created, where the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. [Aaland Island]
NB: It is suggested that this requirement is being eroded by state practice, particularly as whether a government will be recognised is heavily laced by politics eg. Former Republic of Yugoslavia.

Aaland Islands Case

Facts: • Issue: Which date did Finland become a state? • Finland had been part of the Russian Empire until the Russian Resolution. The new Government issued a manifesto proclaiming the right to self-determination, and the Finnish Diet declared its independence in 1917. • This was recognized by Soviet Government, but there was opposition within Finland who continued to support the Russian regime. • Violence broke out and the government of the new state was only able to maintain order with help of Soviet troops.
Held:
• Finland did not become a sovereign State its public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. This was not until May 1918 when the civil war had ended and foreign troops began to leave the country. It was from this point forward that it was able to re-establish order and normal political and social life.

2 Civil War

State practice suggests that the requirement of a “stable political organization” does not apply during a civil war in a state that already exists, such as Iraq, Afghanistan and Somalia.

3 Declination of Statehood

An entity will not be a State if it declines to be one. For example, Taiwan declines to be recognised as its own State, as both PRC and Taiwan assert to be China.

4 Mandated and Trust Territories

The UN implemented a trusteeship system ( trustees were given powers of administration and responsibilities that varied according to the category of trust, and to promote their development and ultimate independence. Sovereignty was not transferred to the trust.

Can an entity with no government be considered a state?
Yes, Somalia has been run by gorillas (no govt for 13 years, but it is still a state).

This qu is only relevent when there is a break up of a state, if you were previously a state, then over run by rebels, you continue to be a state.

4 Capacity to Enter Into Relations With Other States

A feature of Statehood is the capacity of a state to deal with other states on a basis of independence and equality. There must be factual and legal independence, and it is insufficient if a State appears to be independent but is in reality controlled by a foreign entity, eg. as a puppet state.

• Recognition will be important – a State that is not recognised will not be able to enter into relations with other States. • An independent State is one which has sole right of decision in all matters economic, political and financial. [Austro-German Customs Union Case] • In the same case, Anzilotti J held that an independent State was one which had no other legal authority over it – however, this does not include restrictions voluntarily entered into by a State limiting its sovereignty, such as those arising out of customary law or treaty obligations. [see also Wimbledon Case]

1 Delegation of Foreign policy

An independent State may choose to delegate its foreign affairs to other states and this will not mean that it loses its identity as an independent State ( this constitutes a legitimate exercise of a State’s sovereign powers.

• A State will remain independent if the delegation is done by consent • Where a State is forced to abdicate its powers – then it may not be recognised as State.

See for example Monaco, Liechtenstein, San Marino.

French Indemnity of 1831

Facts: • France paid US compensation in respect of damage caused during the Napoleonic Wars. • Claims were made that related to injuries caused by Holland and Denmark. At issue was whether France was responsible for them.
Held:
• Though Holland remained nominally independent, she was tributary to projects of France. When instructed to destroy commerce with foreign nations remonstrated by Dutch King, he was reminded that the highest duty was to the imperial crown of France. • According to the Franco-Dutch treaty of 1810, all merchandise that arrived in Holland belonged to France – this was what compensation was sought for. Accordingly, Holland was a dependent Kingdom • Though it may be that the conduct of the Danish King was dictated by anxiety to conciliate in favour of French emperor, the Act was his own – thus Denmark was an independent State. • The difference was that Holland was a nominal, whilst Denmark was an actual sovereignty. Their actions differed in that with respect to Holland, it was merely formal, whilst the Danish action was voluntary pander.

2 Factual and Legal Independence

Though States may influence the policies and conduct of another state, factual dependence may be so great that it is in reality no more than a “puppet” state so that it does not meet the requirement of independence.

According to Lauterpacht, for independence to exist, there must be a government actually independent of that to any other State.

Manchuria

Facts: • After Japan invaded Manchuria (a province of China) and renamed Manchukuo, it was recognised by Japan as an independent State. • Issue: Was Manchukuo a State?
Held: Manchukuo was not an independent State. • Japanese officials were prominent in the government, and officials followed the orders of Japanese authorities. Even though Ministers and Premiers were all Chinese, the government depended on the presence of Japanese troops to maintain its authorities. • Therefore, as Japan had the means of exerting pressure over Manchukuo, it was not a State – some States recognised Manchukuo and others didn’t.

Liechtenstein
Is it independent - member of UN, very little. But Switzerland runs Liechtenstein, uses Swiss Franks. Contracted out of many areas of governance of to Switzerland. • Now considered that you are exercising your sovereignty to give up a part of your sovereignty.

Holand v Denmark and French - check

5 Possible additional criteria

1 Independence should not have been achieved in pursuit of racist policies

South Africa v Homeland States including Transkei

Facts: • South Africa purported to ground independence in a number of homeland states, including Transkei. • Legal sovereignty over Transkei was transferred to its African Government which was in control of the external and internal affairs of Transkei, but SA contributed 70% of the budget. • The aim of granting homeland independence was to further the policy of apartheid. • Each of the homelands fulfilled the Montevideo criteria.
Held:
• South Africa was the only State which recognised these homelands as independent states. • The GA condemned their statehood largely due to their furtherance of racist policies. • Harris concludes that it is insufficient to meet the four Montevideo criteria – there are these additional criteria that must be met as well – that is, self-determination and not in fulfillment of racist policies.

2 Independence has been achieved in accordance with the principle of self determination

Southern Rhodesia

• Southern Rhodesia declared its independence from the UK in 1965 with the sole aim of continuing the rule of the white minority and contrary to the wishes of the black majority. • Arguably from 1965 it satisfied the 4 criteria of statehood, however, nobody recognized it as a state. The UN SC imposed a comprehensive regime of economic sanctions upon the rebel government and called upon all States not to recognize this illegal racist minority regime. • Consequently, some writers have deduced from this that there is an additional requirements for a State that it will not be a State if it denies the right to self-determination for a majority of people. • In 1980 it became independent as Zimbabwe.

2 Principle of Self-Determination

The principle of self-determination is a recognised principle of customary international law (ICJ East Timor Case). It is principle used to re-draw boundaries to reflect national, ethnic and cultural groups. The notion is that the political future of a colonial or similar non-independent territory should be determined in accordance with the wishes of its inhabitants, within the limits of uti posseditis.

The policy of self-determination has been the cornerstone of the General Assembly’s decolonization policy during the 1960-70s, and was formalised in Article 1(2) of the UN Charter.

Category 1 - External self determination • This is in the sphere of decolonisation. (more readily accepted doctrine) • ‘Peoples’ is more closely associated with territorial boundaries. • Uti possidetis is the notion desiring to secure the existing the territorial boundaries (colonial). Everyone in the territorial boundaries have a right to self determination. Burkino Fase case says that Uti possidetis is the rule. • Resolution 1514 sets out 3 (non exclusive test) ways in which a colony can be decoloniased. 1) State becomes independent 2) Free association (e.g. NZ in free islands, Lichenstein) It is up to the new state to determination their extent of free determination. 3)

Category 2 – Internal self determination • This is in the sphere of an already independent state. E.g. Australia. • There are four possibilities 1) The majority of the population is not represented by the govt (former black south African) 2) A RCE minority feels that it is not adequately represented by the government (e.g. Quebec in Canada) (this can only happen if they have the right to vote) 3) RCE across boarders – e.g. curds across iran, iraq and 4) Majority of population of two states who want to be in one state (e.g. pre unification of Germany) • Key factor is that no where can it say there is a right to independence???

• The law can be used to justify a right of surcession to justify independence in the situation in of gross violation of human rights could provide for surcession – Domestic decision of Canada Quebec case. • Resolution 2625 (Friendly Relations Declaration) – there is a scope for surcession, nothing is to be seen as breaking up the right of a state. Only states complying with human rights have a right for their boundaries to be respected. But state practice does not indicate a right to surcession.

There is no right of surcession of groups within already independent states.

← Slovenia and Croatia justified their declarations of independence in 1991 by reference to the principle of self-determination.

1 What is the right of self-determination?

GA Resolution 1514 – Declaration on the Granting of Independence to Colonial Countries and Peoples
‘Peoples have the right of self-determination’
The essence of it is the right of people to freely determine their political status and pursue their economic, social and cultural development. Inadequacy of political, economic or social or education preparedness should not serve as a pretext for delaying independence.

In exercising the right to self-determination, it is not necessary for a State to choose independence. Self-determination is not a right to independence, but rather a right of choice of: • Emergence as a sovereign independent State; • Free association with an independent State; or (UK Virgin Islands) • Integration with an independent State. (eg. Coco Keeling Islands)

See GA Resolution 1514; Western Sahara.

Western Sahara Case

Facts: • Western Sahara was colonized by Spain and remained a Spanish colony known as Spanish Sahara between 1884 till 1974. It is rich in phosphates, competing with Morocco with abundant fishing resources, inhabited with nomadic Saharan tribesman • GA invited Spain in consultation with Mauritania and Morocco to determine self-determination. Both Mauritania and Morocco then claimed the territory for itself on basis of “historic title” predating Spain’s colonisation
Held:
• The application of the right of self-determination requires a free and genuine expression of the will of the people concerned • Resolution 1514 applies to all people and territories which has not achieved independence yet. • Validity of principle is not affected by fact that the GA has on occasion, abandoned the requirement of consulting the inhabitants of a given territory ( on basis that a certain population did not constitute a “people” entitled to self-determination. • Although Mauritania and Morocco had some legal ties, these did not affect the right of West Saharans to self-determination.

2 Examples where self-determination has not been respected

• Western Sahara: Morocco misconstrued decision as recognizing its claim to the territory and sent civilians to march into Western Sahara. It was agreed that the territory was to be split between Morocco and Mauritania, with Spain withdrawing, leaving the people with no say. Mauritania withdrew in 1978 leaving Morocco in control. The people of WS were represented by the organisation Polisario, that waged guerrilla warfare and proclaimed the Saharwi Arab Republic. SAR was admitted as a member of the OAU and recognised by 70 States. Morocco has now stated that a referendum will be held.

• East Timor: East Timor was a Portuguese colony that shared an island with Indonesia. In 1974, Indonesia and Australia agreed that Indonesia should take control of the territory when this was relinquished by Portugal. This was opposed by a resistance movement called Fretilin, which seized control from Portugal and declared its independence in 1975. However, 4 months later, Indonesia invaded and defeated the Fretilin forces.

This action was declared illegal by UN resolution, which called upon Indonesia to withdraw and allow the people of East Timor to exercise self-determination.

3 Imported Colonial Population

In Gibraltar, the UN Decolonisation Committee and General Assembly did not apply Resolution 1514 in the usual manner, requesting UK and Spain to reach a negotiated solution rather than self-determination to Gibraltar.

• UN rejected the 1967 referendum held by UK of residents of Gibraltar on their political future • The wishes of the population were not paramount because it is an imported, colonial population that replaced the earlier largely Spanish population which left the territory at the time of its capture.

2 Who has the right to self-determination?

The right to self-determination is held by all of the people of a particular territory or a particular area of land. Minorities as such, do not have a right of self-determination. This right is still evolving.

However, the right is limited to a colonial context. It does NOT yet apply to succession from existing states, such as the Kurds in Iraq.

1 Rights of Minorities

In Yugoslavia Opinion No. 2, the Commission held that a minority group has the right to recognition of their identity. Under various human rights covenants, every individual may choose to belong to whatever ethnic, religious or language community as they wish.

Therefore, though the Serbian population was entitled to the rights accorded to minorities and ethnic groups under international law, they were not entitled to self-determination. Rather, the commission emphasised the international law obligations of Croatia and Bosnia-Hercegovina towards minorities eg. under agreements or alter the Constitution in the Republics.

3 Self-determination within the limits of uti posseditis

To conform to the principle of uti posseditis, self-determination must not involve changes to existing frontiers at the time of independence. Borders can only be changed by the mutual consent of states. [Yugoslavia Opinion No. 2]

See GA Resolution 2625.

4 Relevance to Statehood

Self-determination is relevant to Statehood in two ways:
1) It affects the traditional criterion of effective government. ▪ In the context of self-determination, the traditional requirement of effective government may be less stringent. ▪ In 1960, Belgium Congo became independent through the exercise of the right to self-determination. ▪ At the time, there had been a breakdown of government and there was continual tribal fighting. Therefore, under traditional criteria, there was no effective government. ▪ Nevertheless, it was admitted to UN and recognised as a State despite the upheaval.
2) It may be an additional criterion of statehood, so that statehood will be denied unless independence is achieved consistently with the right to self-determination.

3 Extinction and Succession of States

A State will cease to be an international person when it ceases to exist. This may occur by:
1) Merger – one state merges with another state in its entirety
2) Absorption – State breaks up into parts which become part of a surrounding state
3) Dismemberment – State breaks up and whole of territory is divided into new states (eg. USSR)
4) Consent – in 1990, two German states re-unified to become Federal Republic of Germany

The existence or disappearance of a State is a question of fact.

Yugoslavia Opinion No 1 (“SFRY”)

Facts: • In November 1991, several republics of SFRY had declared their independence. Though Serbia recognised the independence the republics, they considered the Republics to have seceded and that the SFRY continued to exist. • The Republics considered the independence to be a disintegration of SFRY ( therefore none of the republics could be considered to be the continuation of the SFRY.
Held:
• Yugoslavia was in the process of dissolution. This was because: ▪ 4 out of the 6 republics had declared independence ▪ There was armed conflict between the republics ▪ The essential organs of the State, the army, courts and government were not functioning and could no longer enforce respect.

Yugoslavia Opinion No. 8

Held: • The existence of a federal State is serious compromised when a majority of the entities, embracing a greater part of the territory and population constitute themselves as sovereign States ( federal authority can no longer be effectively exercised • Though recognition has only declarative value, this and membership of international organizations may bear witness to these States’ convictions that the political entity so recognised is a reality, and confers on it certain rights and obligations under international law. • Dissolution was complete so that SFRY no longer existed.

2 Succession

• Secession: the withdrawal of a State from another. • Succession: the replacement of one State by another in the responsibility for the international relations of territory. This may be universal or partial.

No general succession takes place according to international law. Certain rights and obligations do devolve upon an international person from its predecessor, but each case and its particular circumstances will have to be examined separately:

USSR: The dissolution of USSR has been treated by the international community as one of partial succession, with Russia having been recognised by other former Republics and by international practice as successor to the rights and obligations of the USSR ( this could be because Russian territory constituted 76% of USSR, and the population 51%.

SFRY: This was treated as one of universal succession – Serbia’s claim to constitute the continuation of SFRY was opposed by other former republics and the international community, with the UN referring to the former SFRY. Therefore, Serbia had to reapply for membership into the UN.

In Yugoslavia No. 1, the Court held that the outcome of state succession should be equitable, with the States concerned being free to settle terms and conditions by agreement.

4 Principle of Non-Use of Force in International Relations

What happens if independence is seized by force by rebels with the assistance of another State contrary to Article 2(4) UN Charter, or to the principle of non-intervention?

• Illegality of intervention in aid of independence of a self-determination unit will not impair the status of the local unit – eg. Indian assistance to Bangladesh, though illegal, did not impair Bangladesh’s statehood • Where a State illegally intervenes in and fosters the secession of part of a State, other States are under a duty of non-recognition as in the case of illegal annexation of territory – eg. Cyprus and Manchukuo

An entity created in violation of the rules relating to the use of force in such circumstances will not be regarded as a State.

5 Role of Recognition

States accord recognition to other entities seeking international personality. The recognition may be of another state, a government, or a group seeking self-determination. This may be accorded formally through a treaty, or accorded implicitly, for example, by entering into bilateral talks

Recognition by a State will amount to a binding declaration by that State of how it understands the situation ( and recognition will play a crucial role where the facts are unclear and open to different interpretations. • Yugoslavia No. 8: Recognition bears witness to these states’ conviction that the political entity so recognised is a reality and confers on it certain rights and obligations under international law. • Non-recognition will constitute tangible evidence for the view that such an entity has not established its conformity with the required criteria for statehood.

See below.

Recognition

Recognition is another way for States (apart from the four objective criteria) to be considered independent. This is a political process and s often seen as the determining factor. It is collective recognition that is important and which is needed to bring along legal ramifications.

States have the power or discretion to recognise other entities which seek to assert their international personality. According to Shaw, recognition is a statement by an international legal person as to the status in international law of another real or alleged international person.

← Recognition of states arises in the context of the dissolution of former States ← Recognition of governments arises only when there is an issue of an unconstitutional change of government. If the due democratic process has been followed, no issue of recognition will arise.

Recognition is relevant in both the international and domestic spheres, as an unrecognized State or government may not sue in domestic courts; claim sovereign or diplomatic immunity; enforce contracts and its public acts will not be recognised.

1 Theories of Recognition

1 Constitutive Theory

Under this approach, it is the act of recognition by other states that creates a new state and endows it with legal personality, and not by the process by which it actually obtains independence.

• New states are established in the community as fully-fledged subjects of international law by virtue of will and consent of already existing states. • An unrecognised state will not be subject to the obligations imposed by international law

2 Declaratory Theory ( accepted theory

Under this approach, recognition is merely an acceptance by states of an already existing state/ situation – more in accord with practical realities.

• New states will acquire capacity in international law by virtue of a particular factual scenario, rather than with the consent of others • The act of recognition will not confer any rights • Accepted in Deutsche Continental Gas-Gesellschaft v Polish State

2 Modes of Recognition

1 Implied Recognition

Recognition is founded upon the will and intent of the state that is extending the recognition. Therefore, the recognition may occur expressly or by implication.

← Recognition is clearly implied by entry into diplomatic relations, as does bilateral negotiations ← Participation at an international conference will not indicate recognition if this is made clear

The criteria for recognition of a government as a government of a state will, according to Somalia v Woodhouse, rely on a number of considerations including whether; • The relevant regime is able to ‘exercise effective control of the territory of the state concerned • Is likely to continue to do so • The nature of dealings with that territory and whether they are on a ‘normal government to government basis.’

2 Conditional Recognition

Due to the political nature of recognition, it may be given conditionally subject to the fulfilment of certain conditions – for example, the EC grant of recognition to Balkan States.

However, breach of the particular condition will not invalidate the recognition, though it may be a breach of international law.

3 Collective Recognition

Membership of the UN is evidence of statehood, but it does NOT mean that the State is recognised by all members of the UN.

The clearest way of states recognising other states is through diplomatic relations.

4 Recognition can be de facto or de jure

See below.

Only states are recognised, not governments. Hence a change in government does not change the identity of the state.

5 Withdrawal of Recognition

Recognition may in certain circumstances be withdrawn – particular when there has only been de facto recognition. This is not a very general occurrence, but remains a possibility in exceptional circumstances. Typically, disapproval is expressed via the breaking of diplomatic relations.

6 Non-Recognition

The doctrine of non-recognition can be used as a powerful political tool, and often arises where under certain conditions, a factual situation will not be recognised because of strong reservations as to the morality or legality of actions that have been adopted to bring about the situation.

The security council can pass a resolution that imposes a legal obligations on states not to recognise.

For example, in Nambia, the ICJ held that since the continued South African occupation was illegal, member states of the UN were under a duty to refrain from any actions implying recognition of the legality of the South African presence.

See also Stimson Doctrine of Non-Recognition and its application to Manchukuo.

3 Recognition of States

In the Deutsche Continental Gas-Gesellschaft v Polish State, it was stated that the State exists by itself, (par lui-même) and recognition is nothing else than a declaration of this existence, recognised by the State from which it emanates.

However, an entity that is not recognised will not have the rights and obligations in the law of immunity, and will face difficulties functioning in the international community.

← In the Yugoslavia cases, it appears that the political consequences of recognition rather that non-recognition, rather than legal requirements of statehood played a crucial role in Balkan recognition.

1 Is there a duty to recognise?

There is no duty to recognise new states. Recognition is a discretionary act that other states may perform when they choose and in a manner of their own choosing, though subject to compliance with general international law. [Yugoslavia No. 10]

Yugoslavia Opinion No. 10

Held: • FRY was a new state and could not be the sole successor to the SFRY • Therefore, Serbia and Montenegro (FRY) does not ipso facto enjoy the recognition enjoyed by SFRY under completely different circumstances. It was appropriate for other states to recognise the new State. • Though recognition is not a prerequisite for the foundation of a State, it is a discretionary act that other States may perform when and as they choose.

Therefore, as States can adopt their own criteria and conditions for granting recognition, the EU imposed an extensive set of requirements upon the Balkan States – including respect for the rights of ethnic minorities, respect for the UN Charter, uti posseditis.

4 Recognition of Governments

Recognition of a government will only be relevant where the change in government is unconstitutional. It only affects the status of the administrative authority and diplomatic relations between nations, and not the legal character of the country.

← Recognition of government implies recognition of State, but not vice versa. ← Political considerations have usually played a large role in the decision whether or not to grant recognition ← There is no duty to recognise a particular government.

1 Significance of Recognition

Recognition constitutes acceptance of a particular situation by the recognising state both in terms of the relevant factual criteria and in terms of the consequential legal repercussions:

• Implies cognition of the necessary facts and intention that it is willing that the legal consequences attendant upon recognition should operate. • Government is deemed to have satisfied the required conditions • Recognising state will deal with the government as governing of authority of state • Accepts legal consequences of such status in terms of privilege and immunity

Recognition has greater evidential weight where it is refused because a government lacks effectiveness of control rather than due to the illegitimacy or irregularity of origin of the government in question. • Recognition of other states will be a vital factor where the degree of authority asserted by the new administration is uncertain • Where the new government is firmly established, non-recognition will not affect the legal character of the new government

2 Test of Effective Control

Where an administration is in effective control of the country, it is the valid government regardless of whether it had been recognised

Tinoco Arbitration

Facts: • In 1917, Tinoco ousted the Government of Costa Rica by force. Elections were held, and for 2 years, Tinoco and government peaceably administered the affairs of Costa Rica. • In 1919, Tinoco was ousted and the new Government repudiated certain obligations undertaken by Tinoco towards British nationals. • A number of States including the US and other States had not recognised the Government.
Held:
• Non-recognition by other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained independence. • However, when recognition vel non of a government is by such nations determined by inquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned. • Non-recognition cannot outweigh the evidence disclosed as to the de facto character of Tinoco’s government.

3 De facto and De Jure Recognition

• De facto recognition is generally granted at an earlier stage where the recognising state has some doubt as to the long term viability of a government ( effective control and likely to continue ▪ This generally does not include the exchange of diplomatic relations. • If it becomes clear the government is permanent, then it will evolve into de jure recognition; that is, recognising that effective control is permanent ( effective control that is firmly established • Legal consequences will follow from either form of recognition

The question of the recognition of a government as the de facto government only arises where there are two competing governments in being ( will recognise the revolutionary government if the revolution succeeds.

4 Responsibility for a Previous Government’s Debts and Obligations

The debts and obligations that may be incurred by a government belong to the State and not the government. Therefore, a new government will be responsible for all debts and obligations incurred by the previous government, even if it is ultra vires. [Sandline Affair]

5 Australia’s Policy

Australia no longer accords recognition to governments, as distinct from States. Australia’s attitude to a new government will be ascertained by the nature of our policies towards and relations to the new regime.
Therefore, Australia no longer needs to recognise every change of government.

5 Premature Recognition

Before recognising a new State, each State will have to consider carefully the factual situation and the degree to which the criteria of statehood have been fulfilled.

← There is a very fine line between the acceptable recognition of a new state, particularly one that has emerged or is emerging as a result of secession, and unlawful intervention in the domestic affairs of another State by way of premature recognition.

• It can be argued that the recognition of Bosnia-Herzegovina and Croatia constituted premature recognition by the European Community.

6 Effect of Recognition in Municipal Law

Due to the change in recognition policy – these principles no longer have the same significance as they once did.

An unrecognised government/state: • The legislative, judicial and public acts of an unrecognised government/state will not be enforced in a national court • Does not have standing to sue in national courts • Cannot claim sovereign or diplomatic immunity on behalf of its nationals • Cannot enforce contracts in a national court.

1 Does Recognition Operate Retroactively

Once recognition is given, it is generally regarded by Courts as retroactive so that it applies from the date of statehood (a question of fact) and NOT from the date of recognition.

For a government, this extends to the date on which the authority of the government is established. [Luther v Sago]

Title to Territory

International law is based upon the concept of the state. The state lies upon the foundation of sovereignty, which is founded upon the fact of territory. In turn, territory is founded upon title. Without territory, a legal person cannot be a State, and as such, it is undoubtedly the basic characteristic of a state and the one most widely accepted and understood.

Therefore, territory is an essential element – fundamental legal concepts as sovereignty and jurisdiction can only be comprehended in relation to territory.

Territory tells us whether something is a state (except in the case of the Knights of Maultor) and the area in which a state can exercise its sovereignty.

There are two main ways to resolve boundary disputes.
1) Uti Possidentis; which is the principle that a boundary should follow the line of existing colonial boundaries.
2) Equity; which is a principle used as a moderating factor. (Burkina Faso v Rahn of Hutz); where the boarder was moved to ensure both states had access to water.
3) Thalweg; which is the principle that the boundary is drawn in the middle of the navigatible channel (Botsawna v Nabibia)

1 Territorial Sovereignty

The principle of respect for the territorial integrity of state is well founded as one of the linch-pins of the international system.

1 What is Territorial Sovereignty?

In the Island of Palmas, Judge Huber noted that sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state.

According to Brierly, sovereignty signifies independence. This is the right to exercise to the exclusion of any other state – the functions of a state. Territorial sovereignty has a positive and a negative aspect: • Exclusivity of the competence of the state regarding its own territory • Obligation to protect within the territory the rights of other States and of their nationals residing there

2 Categories of Territorial Regime

There are three main categories of territorial regime: • Territorial Sovereignty • Terra Nullius – land which has no sovereign • Res Communis – territory not capable of being reduce to sovereign control eg. High seas.

2 Types of Territorial Disputes

There are two types of territorial disputes:
1) Dispute between States over land geographical separate from either ( contention over the status of the country itself
2) Border disputes between States

Different principles will apply to settle each type of dispute.

3 Resolving Territorial Disputes: Boundary

The following principles will apply to settle boundary disputes.

In general, the location of a boundary line will usually be a matter of the correct interpretation of the instrument which establishes the boundary. See Red Sea; Temple of Preah Vihar.

1 Uti Possidetis Juris

The principle of uti possidetis will apply only to boundary disputes.

Recall that the essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved, whether these boundaries are administrative or derive from international frontiers, previously dividing colonies ( particularly in decolonisation context. [Frontier Dispute]

Therefore, the application of uti possidetis means that border disputes will be resolved in accordance with existing administrative boundaries or international frontiers ( will form international frontiers.

For examples of the application of the uti possidetis principle, see Yugoslavia No. 2; Frontier Dispute Case.

Nicoragua and Hondura – with respect to land boundaries it applies and if there is a treaty then it applies and then musst consider whether the boundary has gone where the treaty has specified.

The line goes where the agreement says it goes. Uti is the rule we have got. However it is questionable whether the colonial boundaries are what is best and if it forms less or more issues.

1 Where there is no clear boundary ( effective control

Where uti possidetis will not be able to resolve all territorial or boundary problems – look to relevant boundary treaties and effective control. [Frontier Disputes]

• Where there is a clear uti possidetis line – title will prevail over inconsistent practice • Where no clear uti possidetis line can be established – effective control will play an essential role in showing how title is interpreted in practice, and Court will evaluate each piece of practice adduced

2 Equity

Where uti possidetis line cannot be determined by authoritative decisions or by subsequent practice, the court may seek recourse to equity.

• Burkhina Faso/Mali: Particular frontier pool will be divided equally between the parties • Frontier Disputes: Resort to ungratified delimitation of 1869 • Suitability of topographical features in providing an identifiable and convenient boundary may be a material aspect – for example, a border may be adjusted to ensure equity to ensure access to water

See below in regards to estoppel and acquiescence at 5.5.3.

3 Geographical Principles – Boundary Rivers

Where there is a navigable channel, the boundary will follow the middle line of that channel. (Thalweg) Where there is no such navigable channel, the boundary line will be the middle line of the river itself or of its principal arm.

← These respective boundaries will shift with changes in the median lines.

4 Title to Territory

Title refers to both the factual and legal conditions under which territory is deemed to belong to one particular authority or another. It refers to the existence of those facts required under international law to entail the legal consequences of a change in the juridical status of a particular territory.

Title to territory in international law is more often relative than absolute. Therefore in determining who has title to territory – the Court will consider relevant arguments, and award the land to who has the better claim.

There are five modes of acquisition of territory: 1) Accretion and avulsion 2) Cession 3) Conquest and the use of force 4) Occupation 5) Prescription

DEFICIENCIES WITH TITLE TO TERRITORY
The problem is that the categories evolved from the concepts of roman ownership of land. That was for private ownership. It is out of touch with reality. It also indicates that there is only one dominant principle for each type of title to territory. There are a multitude of factors.

Western Sahara Case – Nomadic tribe, held there was something there. Now it is very difficult to say that you could get land through occupation. What was most of ‘terra nullius’ was not really terra nullius. However this has been debunked.

Pact of Paris and UN Charter – Conquest is prohibited. Territorial integrity. Use of force is self defence (under actual attack) and this has to be proportionate to the attack and necessary and in response to attach. It has to be instant.

Forklands – Argentina argue that they were there first, But were pushed out by the British in 1880’s.

Israel – Can you take someone else territory in the right of self defence? The international community does not accept that you can obtain territory as a right to self defence.

Notion of getting territory by conquest is out dated.

Surcession has never been generally accepted by international lawyers. However, coercion has been accepted (treaties entered into with the use of force).

1 Accretion and Avulsion

This describes the geomorphical process by which new land is formed and becomes attached to existing land. Accretion occurs where there is a imperceptible and slight change such as the slow and gradual change of a river; and avulsion arises where there is a violent shift such as volcanic creation of an island.

• Where new land comes into being within the territory of a State, it will form part of the territory of that State • Avulsion: There will be no change in boundary; the boundary will stay at the same point along the original river bed • Accretion: The boundary may be shifted – remaining the middle of the navigable channel (thalweg) [Chamizal Arbitration]

2 Cession

Cession is the peaceful transfer of territory from one sovereign to another, for example through a peace treaty following a war. The basis of cession lies in the intention of the relevant parties to transfer sovereignty over the territory in question.

The acquiring state cannot possess more rights over the land than its predecessor had – therefore, where a third state has certain rights, the new sovereign must respect them. [Island of Palmas]

• Cession may also arise within the context of a gift or purchase of territory • Where cession arises by treaty, it is often within the context of unequal bargaining power. This has been relied upon to argue that the treaty was invalid, and that the territory should have the right to self-determination; eg. Hong Kong. • Still relevant within the context of the transfer of sovereignty from a former colonial power to the local population.

3 Conquest and the Use of Force

Conquest is the act of defeating an opponent and occupying all or part of its territory. It does NOT constitute a basis of title to the land, though it may give the victor the rights and duties of belligerent operation.

Where territory is ceded under a peace treaty that arises as a result of the illegal use of force, this would be void under Article 52 of the Vienna Convention on the Law of Treaties.[1]

Recall that under the UN Charter Art 2(4), member states must refrain from the threat or use of force against the territorial integrity or political independence of ay state.

• 1970 Declaration on Principles of International Law: Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation on the threat or use of force. • It is suggested that even where the use of force is legal, for example, where exercised in self-defence, this will not form the basis for title to territory.

4 Occupation

Occupation as a means of title to territory arises only to land which is terra nullius. It is an original means of acquiring sovereignty over territory other than by cession or succession.[2]

← The occupation must be by a State, it must be effective and it must be intended as a claim of sovereignty over the area. [Western Sahara]

Western Sahara

Issue: Was the territory in question terra nullius at the time of colonization?
Held:
• Concept of terra nullius was a legal term of art used in connection with the mode of acquisition of territory known as occupation • State practice during the period of colonization, indicated that territories inhabited by tribes or peoples having a social and political structure should not be regarded as terra nullius. In these situations, acquisition of sovereignty was effected through agreements with local rulers. • These agreements are not actual cession, but constitute “derivative root of title”.

2 Discovery and Occupation

Occupation was often preceded by discovery – the realization of the existence of a particular piece of land. Mere realisation or sighting was never considered, except for brief periods during C16th as sufficient to constitute title to territory. Therefore, in Island of Palmas, it was held:

← Effect of discovery gives only an inchoate (incomplete) title ← For complete title, this will have to be completed within a reasonable time by the effective occupation of the relevant area ( otherwise, title can be taken away by prescription.

Island of Palmas

Facts: • Spain ceded Philippines to the US by the Treaty of Paris in 1898. • In 1906, US visited the island of Palmas and found the Dutch flag flying there. In 1928, it had a population of less than 1000 and was of negligible economic, military or other importance.
Held:
• Spain only had an inchoate title of discovery, which had not been completed within a reasonable period by effective occupation of the region ( this cannot prevail over the continuous and peaceful display of authority demonstrated by Netherlands. • Therefore, Netherlands rather than Spain had title of Palmas, and Spain could not cede territory to US.

3 Derelictio – An Intention to Abandon

To establish title by possession requires derelicto – for the original State to intend to abandon the territory. [Clipperton Island]

5 Prescription

Prescription is a mode of establishing title to territory that was previously under the authority of another state; that is, territory which is NOT terra nullius. In this instance, it legitimises title that has been obtained either unlawfully or in circumstances wherein the legality of the acquisition cannot be demonstrated.

It is the legitimisation of a doubtful title by the passage of time and the presumed acquiescence of the former sovereign, where territory has been in the possession of a state for a long period of time and uncontested. [Frontier Land]
To obtain title by prescription, there must be: [Legal Status of Greenland]
1) Intention to act as sovereign by a State; and
2) The actual exercise of authority; for
3) A significant amount of time over most of the territory.

5 Resolving Territorial Disputes – Allocating Title to Territory

Both occupation and prescription as a means of acquiring title to territory is based upon the exercise of control over territory. [Island of Palmas]

1 Effective Occupation

Where there is dispute to title of territory – the State which has title will be the State who can demonstrate that they possess the superior title in comparison to other States that may assert sovereignty. [Island of Palmas] This issue will only be relevant where title to territory is challenged.

• Acts of sovereignty relied upon must be public so that other states are aware and have the opportunity to protest [Clipperton Island; Island of Palmas] • There must be the continuous and peaceful display of State authority – that is, without protest from any other State. [Island of Palmas; Falkland Islands; Chamizal Arbitration] • The nature of the exercise of sovereignty may be taken into account to determine who has the relative better title ( were both acts of sovereignty etc. [Rann of Kutch; Minquiers and Ecrehos]

1 What Constitutes Effective Control?

Although control must be effective, it does not necessarily have to amount to possession and settlement of all the territory claimed. What acts of sovereignty are necessary to found title will depend upon all the relevant circumstances of the case, including: [Island of Palmas] • Nature of the territory involved eg. is it geographically isolated and inhabited? • Amount of opposition and international reaction

Taking of possession will consists of the acts by which the occupying State reduces the territory to its possession, and the steps taken to exercise exclusive authority there. These acts must be performed by the State or by individuals whose actions are subsequently ratified by the State. [Anglo Norwegian Fisheries]

Clipperton Island

Facts: • French Navy, drew up, proclaimed and declared the sovereignty of Clipperton Island as belonging to France. After two unsuccessful attempts to reach shore, the vessel put off without leaving any sign of sovereignty. • However, the French Consulate, published the declaration of French sovereignty over the island in a journal in Honolulu. Until 1887, no positive and apparent act of sovereignty was made by France or other power, with the island remaining without a stable population or administration. • In 1897, Americans were found on the island ( explanations were sought from USA by France • Mexico ignored occupation and considered the island as territory belonging to her as it had previously belonged to Spain.
Held:
• France had regularly made known in a clear and precise manner, her intention to consider the island as her territory. • Animus occupandi, in addition to the actual taking of possession is a necessary condition of occupation. Taking of possession is the series of acts by which the occupying state reduces to its possession the territory in question, and takes steps to exercise exclusive authority. • To establish an organization on the territory is a procedure to take possession, and may not necessarily be required to establish sovereignty ( therefore, France had sovereignty.

Legal Status of Eastern Greenland

Facts: • Denmark had not colonised Eastern Greenland. • Title to Eastern Greenland was contested by Norway.
Held:
• The Court found sufficient evidence of its claim and exercise of state authority over the area to show that it had established title to it, at the “critical date”, the date which Norway made its claim to sovereignty. • This evidence consisted of treaties applying to Greenland, demonstrating Denmark’s will and intention to exercise sovereignty, and steps to have its title to Greenland recognized by other states as well as various acts of administration and legislation.

2 Acquiescence: What is peaceful occupation?

Title will not be recognised unless a State has exercised its authority in a continuous, peaceful and uninterrupted manner provided that all interested states have acquiesced in the exercise of authority. [Island of Palmas]

However, this does not mean that a State necessarily has to declare war to demonstrate that it has not acquiesced in the occupation. [Chamizal Arbitration] It is unclear whether mere protest will suffice or whether the issue must be taken to an international court or tribunal. [Falkland Islands]

Chamizal Arbitration (US v Mexico)

Facts: • The Rio Grande was made the boundary between the US and Mexico. By 1911, it had changed its course leaving a tract of land of 600 acres between the old and new beds of river on the US side of the border. Both States claimed sovereignty • US also contended that because of its undisturbed, uninterrupted and unchallenged possession of the territory, it had sovereignty over the disputed area ( ie. by prescription • NB: Title by prescription was precluded as a Convention existed to fix rights between parties in respect of accretion.
Held:
• The possession was not undisturbed, uninterrupted and unchallenged – it had consistently been challenged even after the treaty had been concluded due to the changing course of the river. • For prescription, requires peaceful possession – though Mexico did not fight, any attempt would have resorted in violence, so could not be blamed for protesting diplomatically and had asserted its claim within a reasonable time.

Falkland Islands

• Though UK has exercised control over the Falkland Islands for a long period, Argentina had never acquiesced. Argentina had protested and suggested arbitration to settle the issue. • Of particular difficulty, is that Argentina had remained silent for substantial period of time, but prior to this, had sent a note stating she did not intend to protest anymore, because she felt humiliated at the lack of attention given, but that silence should not be interpreted as acquiescence.

3 Reasonable Period of Possession

The length of time required is unclear ( it is more important that a State has demonstrated greater effective control in comparison to the competing state.

Minquiers and Ecrehos Case

Facts: • UK alleged it derived title from the conquest of England in 1066 by the Duke of Normandy; thereby unifying England with the Duchy of Normandy including the Channel Islands. This lasted till Anglo-Norman forces were driven out of Normandy, but did not include the above islands. • France alleged that its title derived from the fact that the Duke of Normandy were vassals of the King of France, and that land held by the Duke was in fee of the France King
Held:
• Though the Court did examine the history of the region since 1066, its decision was based primarily on relative recent acts relating to the exercise of jurisdiction and local administration. • Upon these grounds, British sovereignty was upheld as there acts of sovereignty far outweighed any activities by the French.

2 ` Rule

Under the doctrine of intertemporal rule – the title must be valid in accordance with the law in force at the time when the title is claimed to have been established, that is, “the critical date”, and NOT in accordance with the law at the time when the dispute arises. [Island of Palmas]
Intertemporal rule • Acts judged in light of time contemporary to it • Rights acquired in a valid manner, might be lost if you don’t continue to assert those rights with the continuing development of international law. If you claim title to territory you have to keep title to it. The amount of action required will depend on the actions of other states.

1 What is the Critical Date?

The critical date (the date when the dispute arose) is vital, as the party claiming title must prove that territorial sovereignty existed at the moment which for the decision of the dispute was critical. [Island of Palmas] ← The critical date determines which law is relevant, based on the intertemporal rule ← It also limits the evidence which can be brought to the Court – no self-serving evidence that arise after the critical date may be introduced. [Minquiers and Ecrehos] ← This rule is aimed to prevent a state from unilaterally bettering their position.

Minquiers and Ecrehos Case

Facts: • See above at p 35. • At issue was also “critical date” – UK alleged 1950, the date the issue was submitted for determination, whilst France alleged 1839, the date of Fisheries Convention.
Held:
• No dispute had arisen as to sovereignty in 1839 so it cannot be regarded as the critical date. No dispute arose till 1886-1889, but there was no reason to disregard subsequent acts, unless the measure in question was taken with a view to improving the legal position of the party concerned. • The critical date was 1950, when the dispute between the parties “crystallised” with the conclusion of the Special agreement. • The British had a colonial inquest on the island and passed legislation over the island. The French only placed bouys in the water. The British act was clearly aligned with sovereignty.

3 Recognition, Acquiescence and Estoppel

These principles are important as they may affect the notion of consent of a State.

1 Recognition and Acquiescence

• Recognition is a positive act by a State accepting a particular situation • Acquiescence occurs in circumstances where a protest is called for and does not happen ( therefore, it is assumed that the party which does not put forth an objection is taken to have accepted the new situation. As noted earlier, if the former sovereign protests – no title by prescription can arise.

Though the consent of a ceding state (acquiescence) is essential to prescription; the attitude of third party states is purely peripheral, though it has a useful evidential effect and will strengthen the claims of a State – for example in Eastern Greenland.

2 Estoppel

Estoppel will arise where a State is deemed to have consented to a state of affairs and cannot subsequently alter their position. It cannot found title, but may determine whether the prior sovereign has consented or acquiesced to title ( for example, where two states put forward conflicting claims to territory, any acceptance by once of the other’s position will serve as a bar to a renewal of contradictory assertions.

• Eastern Greenland: The Court regarded Norwegian acceptance of treaties with Denmark, which incorporated Danish claims to all of Greenland as preventing Norway from contesting Danish sovereignty over the area.

Temple of Preah Vihear

Facts: • The Preah Vihear temple area on the frontier between Cambodia and Thailand was disputed. • Thailand called for a map from the French authorities which placed this area within Cambodia – this map was accepted by the Thai government who requested further maps. • The Thai Prince had visited the temple area for an official reception, which had the French flag clearly flying
Held:
• Due to the above, Thailand was estopped from denying that Cambodia had sovereignty over the area.

4 Self-Determination

It appears that the principle of territorial integrity may conflict with the principle of self-determination.

• Self-determination refers only to the inhabitants of non-independent territories, and does not apply to identifiable groups within already independent states who wish to secede – maintaining territorial integrity • The principle cannot be used to alter the territorial integrity of States.

5 Geographical Claims

• Doctrine of Contiguity – under this doctrine, areas of land are claimed on the basis of the occupation of territories of which they formed a geographical continuation • Hinterland doctrine – permitted colonial powers to claim adjacent vacant territory ( used to justify large annexation of land)

6 Claims based on historical grounds

States may claim title to territory on the basis of historical grounds, but these are essentially political arguments and are of little relevance.

• Iraq sought to justify its invasion of Kuwait on the basis of historical grounds • In Western Sahara, Morocco made extensive claims on the basis of being territory which had historically belonged to the old Moroccan empire ( ICJ accepted these ties but declared they did not override the right of self-determination.

6 Extent of Territorial Sovereignty

1 Airspace

Under Article 1 of the Chicago Convention on International Civil Aviation 1944 and Chicago International Air Services Transit Agreement, every State has complete and exclusive sovereignty over the air space above its territory. The Convention applies only to civil and not State aircraft.

Thus, other in the case of entry in distress, intentional trespass by military aircraft may be met by the use of force without warning.

2 Outer Space

Under Article 2 of the Treaty on the Principles Governing the Activities of Space in the Exploration and Use of Outer Space, territory in outer space is not subject to sovereignty.

3 Territorial Sea

Under Article 3 of the Convention on the Law of the Sea States have sovereignty over their territorial seas which extend up to 12 nautical miles from the State’s coast. States must grant the right of innocent passage to commercial ships etc. [Article 17]

• Under the Coastal Waters (State Title) Act 1980 (Cth), States have jurisdiction and property rights over the territorial sea. This was previously held to be in the jurisdiction of the Commonwealth, as it was a international law concept in NSW v Commonwealth.

Territory in the high seas is not subject to territorial sovereignty.

4 Polar Regions

Sovereignty over Antarctica and the Artic have been made according to sector theory – that is, States have claimed sectors over the polar regions.

• Under Article 4 of the Antarctic Treaty 1959, territorial claims have been frozen, eliminating political conflict in favour of scientific cooperation. • Under the 1991 Protocol on Environmental Protection to Antarctic Treaty, Antarctica has been designated as a natural reserve devoted to peace and science. • Only Canada and Russia have made sector claims to land to their north, but have not officially claimed sovereignty over the ice.

5 Rights in Foreign Territory

In some instances, a State may exercise certain rights over the territory of another State.

Total sovereignty over internal waters. Soverignty over 12 mile territorial sea but must let innocent passage. Then have CB then have the exclusive economic zone (fish oil) but with in the EEZ other states have a right to freedom of navigation.

1 Leases

Leases were popular in C19th as a way of obtaining control of usually strategic points without the necessity of actually annexing the territory. Sovereignty is transferred for the duration of the lease, but upon termination, sovereignty reverts to the original sovereign.

For example, Britain’s rights over the New Territories and HK; US rights over the Panama Canal.

2 Servitudes

A servitude exists where the territory of one state is under a particular restriction in the interests of the territory of another state. These may exist for the benefit for some or all states.

Examples include the rights to use ports or rivers in, or a right of way across the territory so bound, or not to fortify particular towns or areas.

To determine servitude – see relevant documents and prior State practice

• Wimbledon: PCIJ declared that the effect of article 1380 of the Treaty of Versailles maintaining that the Kiel Canal was to be open to all ships of all countries at peace with German was to convert the canal into an international waterway, “intended to provide under treaty guaranteed easier access to the Baltic for the benefit of all nations. • Rights of Goa: Portugal had a parcel of territory which was surrounded by the territories of India. The court found that a right of passage exists on the basis of local custom – this extended to private persons, civil officials and goods; but did not apply to armed forces and ammunition. • North Atlantic Fisheries: A treaty was signed in 1818 between UK and US awarding Americans “forever the liberty to take fish of every kind” from the Southern coast of Newfoundland. The Court held that the provision did not create a servitude as the concept was unknown to statesman at the relevant time ( however, the terms of the award did.

State Jurisdiction

State jurisdiction is the power of a state under international law to govern persons and property by its municipal law. The rules of state jurisdiction identify the persons and property within the permissible range of a state’s law and its procedures for enforcing that law.

1 Function and Kinds of Jurisdiction

There are three kinds of jurisdiction:
1) Legislative (Prescriptive) – The capacity to make law binding laws within its territory.
2) Enforcement – The capacity to ensure compliance with such law – see below.
3) Judicial – The capacity to enforce the rules of law ( the focus of this topic.

2 Legislative/Prescriptive Jurisdiction

The basic principle is that legislative jurisdiction is territorial in scope. However, in recent years, States have enacted legislation governing the conduct of its nationals abroad

Examples include: • Crimes Act (Cth) amended to enable the prosecution of child sex crimes committed overseas • Levying taxes against persons not within the territory of that State – requires link between State and proposed tax payer

3 Enforcement Jurisdiction

Enforcement jurisdiction differs to the other forms of jurisdiction as it is purely territorial in scope. Since states are independent of each other and possess territorial sovereignty, state officials cannot carry out their functions on foreign soil, in the absence of express consent by the host state.

It is also contrary to international law for state agents to apprehend persons or property abroad. For a state to do so – it should seek consent or seek an extradition order.

• Eichmann: Israeli agents seized the Nazi criminal Eichmann in Argentina in 1960. This was a clear breach of Argentina’s territorial sovereignty and an illegal exercise of Israeli jurisdiction ( consequently, Argentina was entitled and received an apology from Israel.

4 Presumptions About Jurisdiction

In keeping with the notion of the sovereignty of states, a State is supreme within its own territorial frontiers. Accordingly, there is a principle of non-intervention within the domestic jurisdiction of states. Therefore, certain activities of states are beyond the reach of international legal control.

5 Civil Jurisdiction

There are differing views as to when a State can enforce civil jurisdiction: • Narrow view: There must be a substantial connection between the State and the particular facts of the matter. • Wider view: (adopted in Australia and UK) It is sufficient that the Defendant in civil proceedings be present in the State’s jurisdiction.

Because there has been a lack of protest in relation to the wide exercise of civil jurisdiction, there is a view that there are practically no limits to the exercise of civil jurisdiction – this is contrasted with criminal jurisdiction.

1 Enforcement of Civil Jurisdiction

Civil jurisdiction often will not be enforced by other States, unless there is a wider public interest involved. Therefore, whilst the non-payment of taxes in another jurisdiction will not be enforced, a State may choose to enforce anti-trust provisions of another State.

• Attorney General v Ortiz: Maori artefacts were illegally exported to UK. The Court held that the UK did not have to return the artefacts as it was not required to enforce NZ law.

2 Bases of Criminal Jurisdiction

There are five basis of criminal jurisdiction:
1) Territory – jurisdiction is asserted by reference to the territory where the unlawful act occurs
2) Nationality – jurisdiction is asserted by reference to the nationality of the offender
3) Protective – jurisdiction lies with the national interest of the State injured by the offence
4) Passive Personality – jurisdiction is asserted by reference to the victim’s nationality
5) Universal – where a “universal” offence is committed, any State may try the offender regardless of where the offence occurred, or the nationality of the offender or victim.

These principles are a statement of reflections of the general requirements for a state to have some connection to the event to exercise some

There may often be multiple bases for jurisdiction that can be asserted by multiple states. However, the State most likely to actually exercise jurisdiction will depend on who actually has custody of the offender.

1 Territorial Principle

This is the typical basis for which jurisdiction is grounded. Therefore, all crimes alleged to have been committed within the territorial jurisdiction of a state may be tried before the municipal courts and the accused if convicted, may be sentenced. This is so even where the offenders are foreign citizens.

This principle extends to a State’s territorial sea, and also aboard an aircraft or ship carrying the flag of the prescribing state. In such a situation, there will be concurrent jurisdiction, which will be exercised by the State which has the most vested interest and whose interests are the most affected. For example: • Murder on ship – flagship jurisdiction • Pollution which affects working of the country – territory

NB: The flag state will only be able to exercise jurisdiction if the doors are shut!!!

1 Extending Territoriality: “Subjective” and “Objective” Territoriality

The territorial concept encompasses not only crimes entirely committed on the territory of a state, but includes also crimes where one of the constituent elements of the offence, and especially if its effects are felt in the state. [Lotus]

There are two limbs to this:
1) Where the crime is commenced within one State and completed in another (“subjective territoriality”).
2) Where the crime is commenced abroad but completed in the State (“objective territoriality”).

• For example, where a person fires a weapon across a frontier, killing somebody in the other state. Both States – where the gun was fired and where the injury took place, will have jurisdiction to try the offender, with the former under the so-called territorial principle. Both the state where the offence was committed and concluded may validly try the offender.

See also the “effects doctrine” below at 6.4.1.

Lotus Case

Facts: • There was a collision on the high seas between a Turkish and French ship. The Turkish ship sank and 8 nationals died. • When the ship reached Turkey, the French officer on watch at the time of the collision was arrested and convicted of manslaughter under the Turkish Penal Code which provided that any foreigner who commits an abroad to the prejudice of Turkey shall be punished, provided he is arrested in Turkey • Issue: Was the prosecution contrary to the principles of international law?
Held:
• Court rejected the French claim that the flag state has exclusive jurisdiction over the ship on the high seas as no rule to this effect had emerged in international law ( overturned by Law of the Sea Convention • Because the damage to the Turkish vessel was equivalent to affecting Turkish territory, so as to enable that country to exercise jurisdiction on the objective territorial principle ( so that a part of the offence could be considered to have been committed on Turkish territory. • NB: This case is NOT concerned with the “effects” doctrine, which does not require any part of the constituent elements to have been committed in the territory.

2 Extending Territoriality: Acts intended to result in an offence within the territory

This head of jurisdiction is primarily relevant to conspiracy cases. Specifically, inchoate crimes[3] committed abroad which are intended to result in the commission of criminal offences in the jurisdiction have been regarded as justiciable by the English Courts, even where nothing is done within the jurisdiction to further the conspiracy. [Liangsiriprasert; Sansom]

DPP v Doot

Facts: • Respondents were aliens convicted of conspiracy to import cannabis resin into the UK. • The agreement amounting to conspiracy had been made abroad before the respondents were arrested in England while in the course of carrying it out ( that is, the constituent element of the crime had been completed abroad.
Held:
• English courts had jurisdiction because the offence continued to occur in England while steps were being taken in concert there to carry out the purpose of the conspiracy. • This was the case even though the agreement was made abroad and hence the elements of the conspiracy were completed overseas.

Liangsiriprasert Case

Facts: • Thais agreed to sell drugs to the DEA ( where the conspiracy took place and finished • As there was no extradition treaty with Thailand, they were lured to Hong Kong where payment was to take place – no act to further conspiracy took place in HK.
Held:
• It was sufficient if the acts that were the subject of the conspiracy were intended to result in offence in HK, even if the acts were not completed in HK.

.

3 Ships/Aircraft

• Article 91 of the Convention of the Law of the Sea: Ships have the nationality of the state whose flag they are entitled to fly. • Article 17 of the Chicago Convention on International Civil Aviation: Aircraft have the nationality of the state to which they are registered.

When ships move into the territorial waters then goverened by relations between states.

It is up to each State to determine the conditions for registration. However, there must be a genuine link between the ship/aircraft and the State.

2 Nationality Principle

Countries may claim jurisdiction over crimes committed by their nationals, notwithstanding that these offences may have occurred in the territory of another state. This is accepted by all States, especially in common law countries.

For example, Australia has enacted legislation governing the conduct of its citizens outside of its territory to enable prosecution of child sex crimes committed overseas. [Crimes (Child Sex Tourism) Amendment Act 1994 (Cth) s50AD]

← For jurisdiction to apply, will depend on who is considered a national of a particular territory.

1 Individuals

The condition of a grant of nationality is dependent on each State. [Article 1, 1930 Hague Convention on the Conflict of Nationality Laws]

International ‘s take no position of whom they grant nationality to.

Where a person has dual nationality so that there exists a concurrent a claim, the State will need to establish a “genuine connection” in order to be able to act. [Nottebohm]

Nottebohm
Guatamala wants to sieze property and funds of german national (Nottebohm) however he received Lichestein passport. He went back to Guatamala and said it has a L passport so give me back my belongings.

The ICJ said that he is not Lichenestein.

They said he has a much greater connection to Guatamala than Lichenstein. Hence can’t bring a claim of diplomatic immunity of an individual against a country if there is a ‘greater effective link’.
See below at 10.1.2.

2 Companies

A company is deemed to be a national of the State it is incorporated in, regardless of whether it carries out business there, or where the majority of its shareholders reside. [Barcelona Traction] See below at 10.1.3.

BT – assets was incorporated in Canada, but carried out its operations in Spain. Held, only Canada can take actions against Spain that confiscated assets in Spain by Franko

C. Extra-territorial legislation

Is when it governs law that protect the country’s vital interests. For example Australian Child Sex Act. Governing Australian sex offenders abroad.

3 Protective Principle

States may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned, such as counterfeiting and immigration.

← For jurisdiction to be exercised on the bases of the protective principle, there must be a linking point between the punished and the punisher. [Eichmann]

For the protective principle to arise, it must be an act directed against the vital interests of the State, and not just a few of its nationals. [Yunis – see below]

• Though well-established, it is uncertain how far it extends in practice. • Justified on the basis of protection of a state’s vital interests since the alien may not be committing an offence under the law of the country where is residing and consequently, extradition may be refused. • Principle often abused, particularly in relation to political offences – for example, Salman Rushdie

DPP v Joyce

Facts: • J was born in USA, but in 1933, fraudulently obtained a British passport by declaring that he had been born in Ireland • During WW2, J left Britain for Germany, and started broadcasting pro-Nazi propaganda into UK • It was claimed that J had acquired German nationality but this was never proven • Issue: Did British Courts have jurisdiction to try him after the war for treason?
Held:
• That he held himself out to be British. • In addition to being able to try J as a national, the UK was able to try him as he had committed acts against the vital interests of the State – that is, on the protective principle. • It was irrelevant that the acts had been committed outside the territory.

Attorney-General of the Government of Israel v Eichmann

Facts: • E had been the Head of the Jewish Office of the German Gestapo during WW2. He was the administrator in charge of the “final solution”, leading to the extermination of millions of Jews. • E was found in Argentina in 1960 by persons who were likely agents of the Israeli Government and abducted to Israel without the knowledge of the Argentinean Government where he was prosecuted under the Nazi Law for war crimes, and crimes against the Jewish people. • The offences had been committed outside Israeli territory, prior to the establishment of the State of Israel. • He argued that the State of Israel did not exist when he committed the crimes. • He argued that he was not a national of Israel, that the acts occurred in German, Can’t charge me with retro-activity.
Held:
• The protective principle was a specific national source of jurisdiction giving a victim nation the right to try anyone who assaults its existence ( ie. Protective principle • The protective principle requires a linking point between the punisher and the punished. In this case, there clearly was a link because the very nature of the crime, and the particular crimes, postulate an intention to exterminate the Jewish people. ▪ A mere political, economic, social or commercial interest is not a sufficient connection ▪ A State may only punish persons and acts which concern it more than they concern other States. ▪ The Court held that the connection between Israel and the Jewish people requires no explanation and, thus, the crime very deeply concerned the vital interests of Israel. ▪ They were not municipal crimes but crimes that all states recognised. ▪ That the crimes were against the Jews which is synonymous with Israel. • Court rejected the argument that the protective principle could not apply to protect States that did not exist at the time of the offence. • This case was really decided on the Universiality principle.

4 Passive Personality Principle ( this is a dubious principle

A State may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the State.

This is a dubious principle, and generally not accepted as customary international law with Moore J in Lotus launching a strong attack on this principle in dissent. However, recent state practice, especially by the US in Yunis suggests that this may constitute a valid ground to assert jurisdiction.

Cutting Case

Facts: • C published in Texas a defamatory statement of a Mexican. He was arrested in Mexico, where defamation was a criminal offence with Mexico asserting its right to jurisdiction upon the basis of the passive personality principle
Held:
• Inconclusive – the issue was resolved by the injured party who withdrew charges. • US strongly protested against this.

2 Hostage Taking

Article 9 of the International Convention Against the Taking of Hostages included as a jurisdictional bases that could be established in regards to the offence – the national state of the hostage.

• Achille Lauro: a US national was killed on a ship hijacked in the Mediterranean on an Italian ship. The US forced the alleged offender onto Italian soil, asserting jurisdiction and sought extradition. Italian authorities found insufficient evidence for jurisdiction.

Following the incident, the US enacted legislation which provided jurisdiction over homicide and physical violence outside the US where a national is the victim.

• Yunis: The only connection between the hijacking and the US was the fact that several US nationals were on board the hijacked flight. The Court accepted that in this instance, both the universality and passive principles applied to assert jurisdiction. It also noted that though the principle was controversial, it was recognised by the international community and the US, especially in recent years in the sphere of terrorism.

5 Universal Principle

Under this principle, each and every state has jurisdiction to try particular offences – no link is required between the offence and jurisdiction. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole.

Certain crimes that are considered so henous, that any of the crimes, committed anywhere, by anyone can be tried anywhere. Regardless of whether there is another linking factor. The major problem is you have to have them.

• True universal jurisdiction: The mere fact of custody will give a State jurisdiction under customary law. Only piracy can be regarded a crime of “true” universal jurisdiction. • Subsidiary universal jurisdiction: Such crimes (eg. war crimes, hijacking and terrorism) are given universal jurisdiction by virtue of treaty provisions. Therefore, for a State to exercise jurisdiction requires empowering domestic legislation and custody.

1 Piracy – true universal jurisdiction

Piracy is accepted as a crime of universal jurisdiction under customary international law. [Arrest Warrants] Therefore, all States may both arrest and punish pirates, provided that they have been arrested on the high seas or within the territory of the state concerned. [Article 105 of the Convention on the Law of the Sea]

Piracy jure gentium (under international law) is defined in Article 101 of the Convention on the Law of the Sea as: • Illegal acts of violence, detention or depredation; • Committed for private ends[4] by the crew or passengers of a private ship or aircraft; • Directed against another ship or aircraft (or persons and property therein); • On the high seas or terra nullius.
Any voluntary, inciting or intentionally facilitating and private acts.

← An attempt to commit piracy is sufficient and it is not essential for the attempt to have been successful.

2 War Crimes and Crimes Against Humanity

Until the Arrest Warrants, it was established that war crimes and crimes against humanity were crimes of true universal jurisdiction following the decisions in the Nuremberg Trials. However, following the decision, it must now be considered a crime of subsidiary universal jurisdiction.

To try a person on this basis – must have alleged offender in your custody. [Belgian Arrest Warrant] That is, there is no universal jurisdiction in absentia.

For such crimes, universal jurisdiction may be established by: • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity – war crimes form distinct category susceptible to universal jurisdiction • Geneva Convention 1949 contains provisions for universal jurisdiction over grave breaches such as wilful killing, torture or inhuman treatment, unlawful deportation of protected persons, the taking of hostages and attacking civilian populations

There treaties for war crimes are different to terrorism because of the high amount of consistency and parties to conventions.

However, crimes against humanity are a different kettle of fish. The problem with these is the problems with definition. (number of people killed).
However, in the Belgium Arrest Warrant Case (Belbium v Congo); the court said that there is no CIL relating to crimes against humanity. You must have the infringer in custody.

1 Australia

In Australia these crimes are recognised in the War Crimes Act 1945 (Cth) and was considered by the High Court in Polyukhovich.

NB: Australia has no crime of genocide [Nulyarimma] but the ICC has jurisdiction over it.

Polyukhovich

Issue: • Could Australian Parliament legislate to identify as war crimes, crimes which were committed during WW2 and could it provide for the trial today of Australian citizens or residents guilty of such crimes.
Held:
• Brennan J held that international law recognised that States did have universal jurisdiction in relation to war crimes. Therefore, Australian law was valid because it vested in an Australian court a jurisdiction recognised by international law as universal.

2 What do such crimes include?

Nuremberg practice suggests that crimes against peace consist of the commission by authorities of a state of an act of aggression ( therefore, not likely to include international terrorism, apartheid, mercenaries, and environmental offences, which are de lege ferenda.

In Pinochet, (Ex-president of Chile) the HL held that crimes which were prohibited by international law attracted universal jurisdiction if:

1) Contrary to the rule of jus cogens (eg. torture, genocide)
2) Must be so serious and on such a scale as to be an attack on the international legal order.

Here, the problem is that Chile only became party to the treaty after many of the crimes that he committed. There was permission to extradite, however, there is no obligation to extradite and the UK used their discretion not to extradite him.

See Geneva Conventions for list of related crimes (above).

3 Examples of Application

Eichmann

Facts: • Eichmann was prosecuted and convicted under an Israeli law of 1951 for war crimes, crimes against the Jewish people and crimes against humanity.
Held:
• Court declared that far from limiting State jurisdiction with regard to such crimes, international law required the legislative and judicial organs of every state to give effect to its criminal interdictions and to bring criminals to trial. • The fact that the crimes were committed prior to the establishment of Israel as a State did not prevent the correct application of its powers pursuant to universal jurisdiction under international law. Israel’s municipal law merely reflected the reiterated offences existing under international law.

3 Subsidiary Universal Jurisdiction – By Treaty

Some crimes such as hijacking and international terrorism are governed by treaties which provide for the exercise of state jurisdiction, but do not establish universal jurisdiction per se. Thus, a State will have jurisdiction if they have custody of the offender.

These treaties place the following obligations on parties:
1) Establish jurisdiction by domestic legislation over the particular crime on a variety of basis including purely the fact that offender is present on state’s territory
2) Arrest the offender
3) Prosecute or extradite ( do not have to extradite for political offences.

1 Hijacking and Terrorism

The following treaties provide universal jurisdiction for the crime of hijacking. In regards to terrorism – there is no accepted general definition ( each convention covers different aspect of the crime.

There is no customary international law relating to H and T. There is a basis of argument for CIL as 1) its analogy to piracy and 2) the number of international conventions and treaties relating to H and T.

But IL allows states to do so if they make treaties and allow for the basis of

However, there is no definition of what a terrorist is. There can be no argument of universal principle for an undefined subject. Further, the conventions relate to specific offences and the notion of a blanket offence as CIL is not substantiated.

There is too much inconsistency. There is only merely subsidiary jurisdiction, as per what the treaty gives you.

Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) • Art 1 – Creates offence of high-jacking • Art 2 – imposes an obligation on states to create a high-jacking offence under their national law • Art 4(1) – Creates an obligation on states to establish jurisdiction over the offence where ▪ The offence was created in an aircraft registered in that state ▪ The aircraft lands on that state’s territory where the offender was on board ▪ Offence is committed is committed on an aircraft which is leased to a lessee whose principle place of business is in that State. • Art 4(2) creates parallel obligation on States to establish jurisdiction where the offender is present on their territory. • Art 6 – A State must take an offender into custody and make inquiries if it would normally do so under its law • Art 7 – Imposes a duty to extradite person to State which has jurisdiction or prosecute them

Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) • Deals with the offence of destroying or attacking an aircraft and has similar provisions as the Hague Convention • Art 5 – creates obligation to create jurisdiction by mere presence of offender on territory. • Art 8 – creates obligation to either prosecute or extradite.

2 Drug Trafficking

Whether drug trafficking is a crime of universal jurisdiction is controversial.

In Noriega, the US “kidnapped” Noriega from Panama back to the US where he was prosecuted, with the Court relying on the concept of universal jurisdiction.

1988 Drug convention: this makes some support of a subsidiary universal jurisdiction.

3 Other Crimes

• Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons • International Convention Against the Taking of Hostages • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

4 The Extradite or Prosecute Rule

As provided for in treaties establishing universal jurisdiction, a State must either extradite or prosecute a perpetrator. This is NOT a rule of custom.

Lockerbie

Facts: • A Libyan national was alleged to have hijacked a flight killing all passengers who were mainly nationals from France, UK and US. • In 1991, France, Scotland and US issued arrest warrants against the alleged offenders. They also called upon Libya to hand over the suspects which it refused to do, but rather took steps prosecute the accused in its own courts, rejecting an offer of assistance from the UK • All were parties to the Montreal Convention Held: • The Security Council declared that Libya had to provide a full and effective response to the requests of the three States, and would impose sanctions. • Libya took the case to the ICJ claiming that it had fully complied with the Montreal Convention, and that the above States were acting in breach ( action pending.

In the Bonn Declaration on International Terrorism, it was agreed that where a State refuses to either extradite or prosecute of those who have committed a hijacking offence – action would be taken to cease all flights to and from that country and its airlines.

3 Illegal Apprehension of Suspects and the Exercise of Jurisdiction

The unlawful apprehension of a suspect by state agents acting in the territory of another state is NOT a bar to the exercise of jurisdiction. It would, however, constitute a breach of international law and the norm of non-intervention. [Elliott; Eichmann]

In Eichmann, the Court found that being kidnapped by Israeli agents from Argentina to Israel constituted no bar to an exercise of jurisdiction by the Israeli Courts. However, Israel did offer an apology to Argentina for the breach of international law.

Eichman
The Mossad had violated Argentina’s territorial sovereignty – Israel gave an apology and Arg accepted. There may be a right to seek damages and compensation.

Whether the Courts of a State will exercise jurisdiction in such a situation may depend on: • Does the apprehending state have an extradition treaty with the other State? • The type of offence alleged • Manner in which the suspect is obtained

Mexico – Dentist (Alverez Machain)
Mexico requested for the return of the AM. US upheld the Kerr Frisbie said that they don’t care how you get there and we will still charge them.

If the state has merely taken custody of someone and taken no other involvement in the obtaining of custody, then it is likely that the case will be heard.

1 Existence of an Extradition Treaty

In the UK, the HL declared that where an extradition treaty existed with the relevant country under which the accused could have been returned, the Courts will refuse to try the offender if he had been forcibly brought within the jurisdiction in disregard of the above procedure. [Horseferry Road]

This is contrasted with the position in the US where the Court will only refuse to exercise jurisdiction where the terms of the relevant extradition treaty specifically prohibits abduction of a suspect. [Alvarez-Machain]

2 Manner of Apprehension

In the Toscanino, the US Court of Appeals held that the rule that jurisdiction was unaffected by an illegal apprehension should not be applied where the presence of the defendant had been secured by force or fraud. However, this was narrowed to cases of torture, brutality and similarly outrageous conduct in Lujian.

• State v Ibrahim: South Africa was involved in the “kidnapping” of a national from Swaziland for involvement with the ANC. Though the case did not consider international law per se, the Courts exercised its discretion to refuse jurisdiction, as it did not want to sanction the illegal act.

4 Controversial Claims to Jurisdiction

1 Extension of Territorial Jurisdiction

1 Unlawful act is a foreseeable consequence of act within territory

In Soering, the European Court of Human Rights held that the UK could be imputed with liability, if the consequence of an act within its territory would result in an unlawful act in another State.

Soering

Facts: • S was a West German national accused of committing a multiple murder in Virginia. • S was found in the UK and the USA requested his extradition to stand trial on charges of murder, which if sentenced, he faced the very real prospect of the death penalty. • An application was made to the European Commission on Human Rights on the basis that by extraditing S to the US, and exposing him to “death row phenomenon”, the UK would be abetting in an act of torture of the time prohibited by Article 3 of the Convention.
Held:
• The Court held that extraditing S to “death row phenomenon” would constitute a breach of Article 3 of the Convention. • Therefore, the UK stayed the extradition of S to US, until US agreed to a maximum penalty of life imprisonment.

2 Extension of Nationality Jurisdiction

1 Nationality of Goods and Technology

Again, the US has attempted to ascribe legislative jurisdiction on the basis of the nationality of goods and technology – attempting to force other nations to comply with US trade policy.

For example, the US legislation prohibited the sending of US goods to USSR for Poland pipeline ( where goods controlled by US or derived from US data etc.

All goods of US origin including components of US goods, then the export from Europe was prohibited, or goods deemed to have come from US technical data, from company controlled by US (US shareholding more than 25%).

US withdrew legislation because of the EU pressure however US never said that they did not have the legal right to do this.

This area has developed in the context of money laundering and counter terrorism.

2 Nationality of Controlling Shareholders of Company

In Barcelona Traction, Belgium attempted to exercise jurisdiction on behalf of controlling shareholders in the company. This attempt to pierce the corporate veil was rejected by the Court, as in general, the State in which the company is incorporate has jurisdiction, though it did concede that this may occur where no other State is available to the Shareholder to exercise jurisdiction on their behalf.

Similarly, the US has attempted to control the actions of certain transaction between US owned or controlled firms and States that it does not like.

Held that they don’t care who the shareholders are with two exceptions
i) If it is the state of nationality that has caused the injury (they don’t give a stuff)

In PP Amcoasia. This dispute was between the parent company and the subsidiary, because the only way that the parent company could make the investment in Indonesia was to buy this wholly owned subsidiary.

5 Conflicts Arising From Concurrent Jurisdiction

1 Approaches to Resolving Conflicts

Conflicts may arise where multiple States have jurisdiction over an offence. Though in theory, the State which has the “stronger claim” should exercise jurisdiction, it is the State that has custody of the offender which is most likely to exercise jurisdiction.

To resolve conflicts: • Through political negotiations – for example, through bilateral negotiation or treaty. This typically applies to criminal offences, but may also apply to civil cases. See various extradition treaties. • Bilateral treaty with another states for example tax treaties, hence know in advance what the result will be. • Harmonisation of national laws – not going to happen (UN passing of model rules).

2 Extradition

Under customary international law, there is no obligation to extradite an offender. [Savarkar] It is an entirely treaty based obligation.

In Australia, extradition is governed by the Extradition Act 1988 (Cth).

NB: “Transfer” refers to the transfer of offenders between international tribunals and States.

Although the obligation will depend on particular treaties, general principles apply: • Extradition is only available for offences which carry a penalty of at least one year imprisonment • Double Criminality – the offence must be a crime in both countries • Principle of Speciality – the offender may only be tried for the offence for which the extradition has been sought and not for other offences • In general, political offences are excluded – this will also apply to those who are likely to suffer prejudice at their trial if extradited due to race religion, nationality or political opinion. [s 7]

Except in the case of Commonwealth nations, in general, there is a discretion for a requested state to refuse to surrender its own nationals.

1 Extradition Between Commonwealth Countries – “Rendition” of Offenders

In addition to the above principles, there is a requirement for the requesting State to make out a prima facie vase of guilt against the person before the authorities of the requested state.

2 Extradition, the Death Penalty and Human Rights Principles

The European Court of Human Rights held that the UK could breach human rights principles by extraditing Soering to the US where he would in likelihood be sentenced with the death penalty. [Soering]

In Australia, under s 22(3)(c)(ii) of the Extradiction Act, a person will not be extradited if they will face the death penalty.

Immunity From Jurisdiction

In The Schooner Exchange v McFaddon, Marshall CJ justified the doctrine of state immunity on the basis of the “equality, independence and dignity of all states”.

The rules governing immunity from jurisdiction therefore recognises the sovereignty of foreign states and the legal equality of all states – with the underpinning philosophy that it is not appropriate for courts of one state to sit in judgement on the courts of another state who is its equal.

1 State Immunity From Jurisdiction

Need to know the acts on page F 128-131 – it is conceptually important. We will be examined on diplomatic and head of state immunity. See page 349.

The difference between state and sovereign immunity is that sovereign immunity attaches to the body of the sovereign (i.e. the queen, head of state, PM) state immunity relates to the state i.e. Australia.

The law is incorporated into the foreign corporate sovereignty Act and is very similar all around the world.

2 Absolute and Restrictive Immunity

Previously the doctrine of absolute immunity applied in common law nations, regardless of whether the state was acting in a sovereign or non-sovereign capacity. As more and more States became involved in commercial activities, it appeared to be unfair to retain total immunity, so the doctrine of restrictive immunity was introduced,[5] in line with civil law nations.

Immunity is the rule non-immunity is the exception.

Doctrine of restrictive immunity – provides that a state and its entities are immune only in relation to sovereign or governmental acts and is not immune for non-sovereign (commercial or trading activities).

This is reflected by legislation in Foreign States Immunity Act 1985 (Cth). Under the Act:
1) S 9: There is a presumption of State immunity; a foreign state is immune from Australia in this proceedings.
2) Does an exception under the legislation apply ( see below.

S11 – 17 lays out the exceptions
S11: Commercial transactions exception. (includes contract g and s, agreement of loan for finance).

3 Distinction Between Sovereign and Non-Sovereign Acts (private acts).

Under the doctrine of restrictive immunity – of critical importance is the distinction between sovereign (acta jure imperii) and non-sovereign (acta jure gestionis) acts.

To determine whether an act is jure imperii or jure gestionis: [I Congreso del Partido]
1) Consider the whole context in which the claim is made in order to identify the relevant act that forms the basis of the claim.
2) Is the act per se a government act or is it an act that any private citizen can perform?
3) Look at the nature of the transaction rather than its purpose

NB: In Trendtex (cement case), Denning LJ held that all that was relevant was the fundamental nature or the essential element of the transaction, and not the purpose. Contractors/other parties to the transactions would not care about the purpose of the transaction, and should not have to bear the brunt or this risk.

Bankruptcy the tin counsel; creditors were suing the tin counsel. The question was whether the bank loans to secure tin contracts. Did the transactions of the council attracts sovereignty. Construe the transactions in the narrowest way.

Can a prima facie commercial transaction attract immunity because of later government intervention? It can but there is a very high threshold.

I Congreso del Partido

Facts: • A ship (Playa Laga) was owned by the Cuban government and operated by a state trading enterprise. It was unloading its cargo in Chile when Pinochet overthrew the socialist government. Cuba disapproved and ordered the ship to return partially unloaded. • A second ship (Marble Islands) was at sea when the coup took place – it was ordered by Cuba (which originally did not own the ship but subsequently bought) to go to North Vietnam where it sold/donated the sugar to the people. • A third ship (I Congreso) which belonged to Cuba was arrested in UK waters on application of Chile who had instituted proceedings in rem for breach of contract. • Cuba entered a defence of state immunity.
Held:
• The acts that lead to the plaintiffs case derived from a private right. Wilberforce says that the test is to ascertain the relevant act, • Private law, despite govt doing it, relating to the sailing convention. • It is not just that the purpose of the act is to serve the purpose of the state, but the nature of the act. • While the existence of a government purpose or motive cannot convert what would otherwise be an act jure gestionis into one done jure imperii, it may be relevant in determining the nature of the act ( the purpose for which the Government breach the contract is irrelevant. • In regards to the Playa Laga – everything that the government did, could have been done/was done as a private ship owner. It did not invoke governmental authority ( no immunity attached • There was conflicting opinions in regards to Marble Islands: ▪ The minority held that the action of the government in directing the disposal of the cargo to North Vietnam, did not form part of any commercial arrangement conducted by the charterer. Therefore, the act was outside this framework and purely governmental ▪ The majority held that the government had acted in the context of a private owner in discharging and disposing the cargo in North Vietnam, in purported reliance upon the bill of lading which permitted the sale in particular instances ( no immunity attached

2 Where an initial act is jure imperii

Where an initial act is jure imperii does not determine the characterisation of subsequent acts. [Kuwait Airways v Iraqi Airways].

Kuwait Airways v Iraqi Airways

Facts: • Was Iraqi Airways entitled to claim immunity with regard to the seizure, retention and use of aircraft belonging to Kuwait Airways consequent upon the invasion of Kuwait by Iraq? • After the invasion, Iraq adopted legislation purporting to dissolve Kuwait Airways that vested all its property in Iraqi Airways
Held:
• Goff LJ adopted Wilberforce LJ’s test in Congreso, that is, “was the act in question of its own character a governmental act as opposed to an act which any private citizen could perform?” • The initial seizure of the aircraft was characterised as sovereign activity and thus immune • After legislation had been adopted, the situation changed, so that the subsequent retention and use of aircraft were not acts jure imperii but fresh acts of conversion to which no immunity applied. • Minority dissented on the basis that the entire incident must be construed as a whole. In this case, there was clearly an exercise of sovereign authority, as Iraqi Airways did not play an independent role but acted because Iraq told it to do so.

3 Other Relevant Factors

Other factors relevant to determining the characterisation of an act included: [Littrell] • Where did the act take place? • Whom did the act involve? • What kind of act was involved?

Littrell v USA (UK CA)

Facts: • Plaintiff, L, was a US soldier stationed in the UK. • L brought an action against the US government for negligent medical treatment at an American military hospital at his base ( US successfully pleaded state immunity as a defence.
Held:
• The act was wholly within control of US air force at its base, involving only military personnel • Dismissed argument that an action for medical negligence did not involve interference with military matters ( under US legislation, state is immune from suit for injuries suffered during service, and the standard which US affords its own servicemen is a matter for its sovereign authority

4 Identifying a Commercial Transaction

Commercial transactions are the primary example of transactions where state immunity will not attach. See above tests to determine whether an act is commercial or governmental.

Foreign State Immunities Act 1985 (Cth) – Section 11(3) • A commercial transaction is defined as a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes: ▪ A contract for the supply of goods or services; ▪ An agreement for a loan or some other transaction for or in respect of the provision of finance; ▪ A guarantee or indemnity in respect of a financial obligation ▪ Does NOT include a contract of employment (see s 12) or a bill of exchange.

5 Contracts - Effect of Governmental Intervention

In a contractual context, to determine whether immunity applies:
1) Consider whether the nature of the contract or transaction a. If it is non-commercial or governmental in character (acta jure imperii) ( no further inquiry is required b. If it is commercial in character (acta jure gestionis) then:
2) Look at the nature of the breach ( if the breach is jure imperii, immunity might still attach.

Therefore, in I Congreso del Partido: • The nature of the contract, (the sale of sugar) was clearly commercial in character • However the Court disagreed whether the breach was a commercial or governmental act so that immunity applied. Recall: ▪ Majority: The breach was commercial in character so that immunity did not apply ▪ Minority: The breach was governmental in character so that immunity did apply.

6 Position of State Entities and Enterprises

Foreign State Immunities Act 1985 (Cth) – Section 3(3)(c)
A foreign State includes a reference to the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision.

Foreign State Immunities Act 1985 (Cth) – Section 3(1)
A separate entity of a foreign State means a natural person or a body corporate or corporation who or that: • Is an agency or instrumentality of the foreign State; and • Is not a department or organ of the executive government of the foreign State.

Under s 22 – Separate entities will have immunity from jurisdiction unless an exception applies.

To determine whether an entity is an agency or instrument of the foreign State: [Trendtex] ← Do the functions of the entity imply governmental status per se? Look at the powers, duties and control of the entity within the framework of its constitution and activities. ← In borderline cases – the absence of any positive indication that the body was intended to possess sovereign status will be relevant [per Shaw LJ]

Trendtex v Central Bank of Nigeria

Facts: • Plaintiff was a Swiss company which entered a contract to sell cement to an English company which had a contract with the Nigerian Government. • The Defendant bank issued a letter of credit to the plaintiff, which it later refused to honour • Issue: Was the defendant (the Central Bank of Nigeria) an entity that was entitled to claim sovereign immunity?
Held:
• After receiving expert evidence as to the way the bank operated, and looked at the statute creating it ( Court held that the bank could not claim immunity • Express provision in legislation was not required but the Bank had to prove that the State intended to make it an organ of the state. This could be implied through the powers and duties of the bank. • Here, the central bank has governmental functions in that it issues legal tender and was under control of the government. However, it also acted as banker for other banks, maintaining accounts with other banks ( did not think it was a department of Nigeria.

7 Waiver of Immunity

Foreign State Immunities Act (Cth) – Section 10 ( Submission to Jurisdiction
(2) A foreign State may submit to jurisdiction at any time whether by agreement or otherwise
(5) An agreement to waive may not be withdrawn except in accordance with terms of agreement
(6) A foreign State will submit to jurisdiction by initiating or intervening in proceedings

Subsections (7) and (8) provide situations where the foreign State will not be taken to have submitted to jurisdiction.

8 The Relationship Between “Act of State”, Non-Justiciability and State Immunity

An issue is justiciable basically if it can be tried according to law. Legislation can impinge upon the question as to whether an issue or not is justiciable, as will the issue of state immunity.

1 Non-Justiciability

In general, municipal courts will refuse to adjudicate upon the transactions of foreign sovereign states between themselves on the plane of international law, due to the concept of sovereign and formally equal States. [Buttes Gas and Oil Co v Hammer (No. 3)]

Non-justiciability differs from jurisdictional immunity as it acts as an evidential bar, preventing an issue from being raised or proved. By contrast, immunity prevents the court from exercising jurisdiction, though this can always be waived, removing the jurisdictional bar.

← Whether an act is non-justiciable will depend on the relevant act ( a Court will not inquire into the validity of acts done in a sovereign capacity or which are politically sensitive; but may inquire into a dispute involving private rights.

2 Act of State

Under the Act of State doctrine, a domestic court will refrain from examining the validity on acts of a governmental character done by a foreign state within its own territory and applicable there, except in the absence of treaty or other unambiguous agreements regarding controlling legal principles. [Banco Nacional de Cuba v Sabbatino]

In Banco, the Court held that the rule was not one of public international law, but related to internal constitutional balances.

3 Relationship Between the Doctrines and Jurisdictional Immunity

The concepts of non-justiciability and “act of state” posit an area of international activity of states that is simply beyond the competence of the domestic tribunal in its assertion of jurisdiction. By contrast, the principle of jurisdiction immunity asserts that a court is prevented from exercising the jurisdiction that it possesses. Thus, immunity from jurisdiction does not mean exemption from the legal system of the territorial state in question.

The Court in Maclaine Watson emphasised the differences between the doctrines, and that the concepts had to be kept separate. In particular, even if a State is not immune in regards to a particular issue, the doctrines of non-justiciability and “act of state” may still apply.

However, the Courts will not allow the application of the above doctrines to bring back absolute immunity under the guise of the doctrines. Where it is determined that immunity does not apply, the scope for a non-justiciability plea will be reduced. [ANZ Bank v Cth of Australia]

2 State Immunity From Execution

1 Difference in Scope Between Immunity From Jurisdiction and Immunity From Execution

Immunity from execution differs from immunity from jurisdiction as it involves the question of the actual seizure of assets appertaining to a foreign State. Therefore, though a State may not be immune to proceedings, it may be still immune from having judgement enforced against certain assets.

Though immunity from execution and immunity from jurisdiction differ – the same analysis applies.

Foreign State Immunities Act (Cth) – Section 30 ( Immunity From Execution
The property of a foreign State is not subject to any process or order for the satisfaction or enforcement of a judgement.

Under s 31, application of this section can be waived at any time.

2 Commercial Property

Like immunity to jurisdiction, an exception to s 30 arises within the context of commercial property. This is defined as property that is in use by the foreign State concerned substantially for commercial purposes; but does not include vacant property. [Foreign State Immunities Act s 32]

• Commercial Property will include central bank accounts. [see s 35; Trendtex] • It is for the plaintiff to demonstrate on the balance of probabilities that foreign state bank accounts have been used in a commercial manner. [Korea Case; Philippines Embassy] However; • A particular difficulty arises, as under s 41, an Ambassador may provide a conclusive certificate stating that property is diplomatic rather than commercial

3 Diplomatic Immunity

Diplomatic immunity arises as a consequence of sovereign immunity and the independence and equality of states, and partly as an essential requirement of an international system. States must negotiate and consult with each other and with international organisations, and in order to do so, require diplomatic staff ( therefore, benefit from principle of state sovereignty.

NEED TO KNOW ARTICLE THE AUST DIPLOMATIC ACT ON F 128.

Diplomats have pretty must total immunity; civil or criminal. However, the home state can waive the diplomats immunity.

Article 22, 24 the premise of the mission also have diplomatic immunity. Inviolable as well as the diplomatic bag, and family. Article 30, relatives. Article 27 and 29.

What are the host state responsibilities; Article 25

You don’t have to stop all protests outside the embassy but should stop inside interference of citizens. But if that occurs host state should apologise.

You can kick them out for gross misconduct.

Diplomatic immunity belongs to the state not the individuals.

If you are declared personam non grata and your sending state does not recall you, then it could be seen as an implied waiver of immunity.

Consols
Have a more limited role than a diplomat. Consul officials, have some immunities but they are not as broad as diplomatic immunity; in respect of matters arising from the fulfilment of their official duties.

The fundamental character of the laws dealing with diplomatic relations was emphasised by the ICJ in US Diplomatic and Consular Staff in Tehran.

← A State that does not wish to enter into diplomatic relations, is not legally compelled to do so ← The sending state must ensure consent of receiving state for the proposed head of mission, and reasons for refusal are not required ← Receiving state may at any time declare any member of the diplomatic mission persona non grata and obtain the removal of that person.

1 Jurisdictional Immunity

The rules to diplomatic immunity are governed by the Vienna Convention on Diplomatic Relations 1961, which have been enacted by s 7 of the Diplomatic Privileges and Immunities Act 1967 (Cth). Both of these treaties are CIL.

Vienna Convention on Diplomatic Relations 1961 • Art 25 - Host states have to afford diplomatic immunity. • Art 29 – The person of a diplomatic agent is inviolable, may not be detained or arrested. • Art 31 – A diplomatic agent shall enjoy immunity from the criminal jurisdiction from the receiving state, and general immunity from civil or administrative proceedings. ▪ Art 31(1)(c) – Major exception is action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. • Art 31(2) – A diplomatic agent is not obliged to give evidence as a witness • Art 31(4) – Not exempted from the jurisdiction of the sending state • Art 34 – Exempt from taxes and custom duties • Art 37 – Family members enjoy same privileges and immunities

1 Duration of Privileges

Diplomatic immunity is functional immunity – it attaches to the job, and the functions of the job. Therefore, if diplomatic status is revoked by sending state, the diplomat can be touched for private acts whilst diplomat and for acts committed prior and after being a diplomat.

Vienna Convention on Diplomatic Relations 1961 – Article 39 • Relevant persons enjoy immunity from the moment of entering the country • This will cease when they leave the country or on expiry of a reasonable period to do so. • Immunity will continue to exist in respect of acts performed by such a person in the exercise of function as a member of the mission

2 Immunity Whilst In Transit

Under Article 40(1), a diplomat will also have immunity from any third States the diplomat has to pass through whilst in transit or return whilst travelling to take up or return to his post, or when returning to his own country.

It does not apply only whilst in transit between the sending state and receiving state. [Jarrett-Thorpe]

2 Waiver of Immunity

Vienna Convention on Diplomatic Relations 1961 – Article 32
1) Diplomatic immunity may be waived by the sending State.
2) Waiver must always be express.

3 Inviolability of Mission Premises

Vienna Convention on Diplomatic Relations 1961 – Article 22(1) • Provides that the premises of the mission (including private residence of head of mission and staff) shall be inviolable ( immune from search, attachment or execution. • Therefore, agents of a receiving State may not enter without consent.

Examples: • Sun Yat Sen Incident: Court refused to issue a writ of habeas corpus with regard to a Chinese refugee held against his will in the Chinese legation in London

1 Self Defence/Issue of National Security

Issue: Would a receiving state be entitled to enter a mission in cases of self-defence?

States may risk acting in breach of Art 22 if it is sufficiently sure of evidence of abuse if it believes its essential security to be at risk.

Under Art 41(3), there is a duty not to use the premises of the mission in any manner inconsistent with the functions of the mission ( this could possibly be used to justify entry in situations of extreme abuse.

Alternatively, Harris suggests that because the right of self-defence in customary international law is not expressly excluded by Art 22 it may be available as a defence. Another possibility is to regard the shooting as a material breach by Libya of treaty and b/c UK was specially affected had the right to suspend the operation of the treaty under s60(2)(b) of the Vienna Conventions on the Law of Treaties.

Iraqi Ambassador v Pakistan Ministry of Foreign Affairs

Facts: • There was evidence that arms were being brought into Pakistan under immunity, being stored at the Embassy of Iraq. The Ambassador refused permission to search the premises in accordance with Art 22. • An armed search of the Iraqi Embassy in Pakistan took place without consent, revealing considerable quantities of arms.
Held:
• The ambassador and an attaché were subsequently declared personae non grata. • Though Pakistan took a risk of violating the mission, forcible entry was justified ex post facto because of the clear breach of their duty in Art 41(3).

Libyan’s People’s Bureau Incident

Facts: • A peaceful demonstration took place outside the Libyan Embassy in London • Shots from inside the embassy were fired that resulted in the death of a policewoman • After the siege, the Libyans left and the building was searched in the presence of a Saudi Arabian diplomat where weapons and other relevant forensic evidence was found • Issue: Did UK authorities have the right to enter premises as soon as shots were fired? This would depend on whether inviolability is absolute.
Held:
• A peaceful demonstration took place outside the Libyan Embassy in London • Legal Adviser to UK suggested that on these facts, no right to self-defence arose because only one round of shots had been fired. Self-defence would only be justified if firing had continued, and if every other method had been tried and failed to stop.

2 Emergency

It is unclear what the legal position would be in the event of entry without express consent, for example of fire fighting requirements or of danger to persons within the area. Justification may be pleaded by virtue of implied consent.

4 Protection of Mission Premises

Vienna Convention on Diplomatic Relations 1961 – Article 22(2) • Imposes a special duty of protection upon receiving State. • Duty to protect premises from intrusion or damage, and to prevent any disruption of the peace of the mission.

US Diplomatic and Consular Staff in Teheran

Facts: • In 1979 hundreds of Iranian students took possession by force of US embassy taking all those inside hostage ( in protest of US granting asylum to the deposed Shah. • Those responsible for the mission’s security had disappeared • US brought proceedings before ICJ seeking a declaration that this constituted a breach of the Vienna Convention on Diplomatic Relations and to order the hostages to be released, and return of documents and archives seized. • Issue: Was Iran as a State liable for the actions of the students ( Yes.
Held:
• Iran was liable for a breach customary international law and the VC on Diplomatic Relations • Initially, there had been a failure by relevant authorities to take appropriate steps to protect the mission in breach of Arts 22, 24-27 and 29. • Once occupation had taken place, there was an obligation on Iran to bring the occupation to an end (ie. restoration of the mission). • Iran was ordered to release the hostages and return the documents to the premises ( this order was not complied with and hostages were not released until 1981 as part of a negotiated settlement.

2 Is there a duty to protect a mission from political demonstrations?

Did the UK breach Art 22(2) by not preventing the demonstration from going ahead in Libyan’s People’s Bureau Incident? ( NO

The Foreign Affairs Committee put forth a strong argument that this did not constitute a breach as Art 22(2) did not require a receiving State to protect a mission from political demonstrations;

5 Freedom of Communication

Vienna Convention on Diplomatic Relations 1961 • Art 27(1) – Receiving state should protect and permit communication for official purposes. • Art 27(2) – Official correspondence is inviolable • Art 30(2) – extends to papers of agents

This would extend to the use of diplomatic couriers, messages in code and in cipher, although the consent of the receiving state is required for a wireless transmitter.

1 Diplomatic Bag

Vienna Convention on Diplomatic Relations 1961 – Article 27 • Art 27(3) – A diplomatic bag shall not be opened or detained. • Art 27(4) – Diplomatic bag may contain only diplomatic documents destined for official use and must have the visible marks on there indicating that that is what they are. • Art 30(2) – extends to papers of agents

Because of Art 27(3), the use of the diplomatic bag is clearly susceptible to abuse, mainly in relation to the importation of drugs. Many States entered the VC with reservations in relation to this section (ie. so it does not apply).

NB: There may be an implied exception to Art 27(3) in the interests of humanity – the “obligation to preserve and protect human life”. [Dikko Incident]

Nigerian Government (Dikko Incident)

Facts: • Mr Dikko, a former Nigerian minister was kidnapped in London, found drugged in a crate at Stansted Airport awaiting shipment to Nigeria where he was wanted on criminal charges. • The crate was labelled a diplomatic bag but lacked “visible external marks”. • Customs officials, alerted by medical odours opened the crate.
Held:
• There was no breach of Art 27, as the crate lacked the visible external marks required by Art 27(4). • UK Foreign Secretary stated that even if the crate was a diplomatic bag, “the duty to preserve and protect human life” justified its opening in appropriate circumstances • The “material breach” remedy of suspension of treaty obligations (Art 60 VC on Law of Treaties) would not have been available in this instance.

6 Immunity From Execution

Nothing in the Foreign State Immunities Act applies in regards to diplomatic immunity. Therefore, where diplomatic immunity does NOT apply ( there will be no immunity from execution.

However, under Art 22(3), the premises and property of a mission are immune from execution.
Art 22(3) – provides the premises and property of a mission are immune from search, attachment or execution.

4 Head of State Immunity

Under s 36 of the Foreign States Immunities Act, the immunity granted under Diplomatic Privileges and Immunities Act also applies to the Head of State and their spouse.

It is a rule of CIL that PM are afforded the same immunity as the sovereign, but they are not given from birth. It is a functional immunity.
Incumbent heads of states. 1 personal immunity and 2 functional immunity.
It attaches to a person for the time that they are in their position. But a former head of state could be charged with private acts. Pinochet tried to argue that he was immune for torture. You lose your immunity, from the time that Chile. Pinochet allows a national court in certain circumstances to sue a former head of state (e.g. torture convention was binding on functions).

Former head of state – there is no definitive answer, • If the state seeks to waive immunity. • Certain international tribunals.

The rationale behind HOS State immunity is functional – a HOS has immunity otherwise they may be inhibited in the execution of their duties for fear of later repercussions.

It was emphasised in Belgium Arrest Warrant that merely because a HOS enjoyed immunity, it did not mean that such people also have impunity. There is a difference between immunity from criminal jurisdiction of a national court and individual criminal responsibility.

1 When will a Head of State have immunity?

Under international law, to determine whether a HOS has immunity, a distinction is drawn:
1) An incumbent and a former head of state
2) “Official” and “non-official” acts.

As an incumbent head of state: • Cannot be touched at ALL by foreign states (immunity ratione personae) • States can still try their own HOS under their own municipal laws • There is no exception even for alleged war crimes and crimes against humanity [Belgium Arrest Warrants]

As a former head of state: • Cannot be touched by foreign states in respect of “official” acts done whilst HOS (ratione personae materiae) • Can be touched in respect of “non-official” acts done whilst HOS and, acts done before and after term as HOS expires.

Pinochet

Facts: • Pinochet was arrested whilst visiting UK for medical treatment, pursuant to an English warrant after a Spanish Court had issued an international arrest warrant on a number of charges including torture and murder allegedly inflicted on Spanish nationals during his tenure as Head of State. • Pinochet had been HOS from 1973 until 1990 • Torture is a crime against international law and the subject of universal jurisdiction under the Convention Against Torture which entered into force in 1988 and ratified by Chile. Murder is not an international crime • Issue: Was Pinochet entitled to immunity as a former HOS in respect of acts of torture committed?
Held:
• Pinochet’s total immunity ended when he ceased to be HOS. As a former HOS, he would only have immunity for acts performed in his official capacity only. • Therefore, to determine whether Pinochet had immunity – Was the alleged organisation of state torture performed in his official capacity or was it a private act? Pinochet argued that the acts were not performed for personal gratification but for political purposes (State protection) ▪ HL came to conclusion that acts of torture could not be regarded as part of the functions of a HOS, at least since the coming into force of the Torture Convention ▪ This was because the Convention expressly prohibits the use of torture as a state measure, and also requires all parties to ban torture. Therefore, from the date it came into force, it became a fully constituted international crime ▪ If international law criminalises torture, it cannot be considered an official function, as to give immunity to it would defeat the purpose of the convention. • Majority held that no was no immunity for acts of torture committed after the convention came into force (1988-90) ( confining the acts for which he could be held liable for in an international court.

2 Limits to HOS Immunity

In Belgium Arrest Warrants, the Court stated that a HOS may be prosecuted in the following cases: • Under the criminal law of their own country; • Where the immunity was waived by the State • May be subject of criminal proceedings before the ICC as Art 27 of the Rome Statute removes HOS immunity

NB: In Belgium Arrest Warrants, the case dealt with the immunity of a Minister for Foreign Affairs. However, the immunity of a Minister was equated with that of the HOS, and it was held that the Minister for FA enjoys the same immunity as a HOS.

Belgium Arrest Warrants Case

Facts: • A Belgium magistrate issued an arrest warrant in absentia against the incumbent Minister for Foreign Affairs of the Congo, charging him with war crimes and crimes against humanity under Belgium law. • Art 5 of the relevant Belgium law provided that in effect the immunity attaching to the official capacity of a person shall not prevent the application of the present law. • Congo argued that Art 5 failed to recognise the immunity enjoyed by an incumbent Minister and therefore, constituted a breach of international law. • By the time, the case came to trial, the person concerned had ceased to be a Minister at all. • Issue: What was the lawfulness under international law of an arrest warrant issued against a serving or incumbent Foreign Minister ( this was equated to the position of the HOS
Held:
• Issue of the warrant and its circulation were both a breach of international law because it failed to recognise the immunity of an incumbent Minister ( Belgium had to cancel the arrest warrant. • Immunity was required to ensure that holders of high ranking office could properly perform their functions, which require HOS/Minister to be able to travel freely around the world.

5 Immunity of International Organisations

Under Art 105 of the General Convention on the Privileges of the UN and its Personnel, the UN has institutional immunity in order to fulfil its purposes. This covers the immunity of the organisation, its personnel and emphasises the inviolability of its premises, archives and documents.

See also Diplomatic Privileges and Immunities Act 1967 (Cth) s 5A (Fonteyne 131)

State Responsibility: General

All references to the Draft Articles refer to the 2001 version.

1 General Principles of Responsibility

Under the principles of state responsibility, a State is responsible for any breach of international law it commits against another State. A breach of an international obligation gives rise to a requirement for reparation.

← It deals with secondary obligations – the procedural and other consequences following from a breach of primary obligations; the substantive rules of international law. ← Derives from State practice – there has also been attempt to codify the rules in the Draft Articles of State Responsibility by the International Law Commission.

1 Essential Requirements for Responsibility

In Spanish Zone of Morocco:
1) An international legal obligation must exist as between the two particular states;
2) There has occurred an act or omission which violates that obligation AND which is imputable to the state responsible
3) Loss or damage has resulted from the unlawful act or omission

Where there is a responsibility, it will result in a duty to make reparation if the obligation in question is not met. [Chorzow Factory]

International Law Commission On Responsibility of States for Internationally Wrongful Acts 2001 • Art 1 – Basic principle of international responsibility - Every internationally wrongful act of a State entails the international responsibility of that State. • Art 2 – An internationally wrongful act consists of an action or omission that is attributable to the State and constitutes a breach of an international obligation. • Art 3 – Whether an act is characterised as unlawful is determined by international law, and domestic law is irrelevant. • Art 31 – Responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act ( reflects customary law position in Chorzow.

2 State Responsibility and the Law of Treaties

In a situation of breach of treaty, the circumstances that may exclude wrongfulness and the appropriate remedies for breach belong to the customary law of state responsibility. [Rainbow Warrior]

In the Rainbow Warrior, the Court held that: • Law relating to treaties was relevant but that the legal consequences of a breach of treaty, including the determination of the circumstances that may exclude wrongfulness and the appropriate remedies for breach, are subject that belong to customary law of state responsibility • International law does not distinguish between contractual and tortious responsibility, so that ANY violation by a State of ANY obligation gives rise to State responsibility and the duty of reparation.

3 Classification of Wrongful Acts

• Direct International Wrong: This is a direct wrong to a State and can be caused by a State and others whose acts can be imputed to the State. • Indirect International Wrong: Where the wrong is suffered by a national of a State and not the State itself, and the State intervenes to diplomatically protect the national. • International Criminal Responsibility: Whether States can be criminally responsible is highly contentious. Though it was introduced in the draft articles, it has since been removed, and is likely de lege ferenda.

2 The Question of Fault

1 Subjective or Objective Responsibility

Issue: Will a State be responsible even in the absence of fault or intention (strict liability) or must it be shown that there was negligence or intention to cause harm?

• Subjective responsibility – theory of fault; there must be some intention (dolus) for a State to be held responsible or some negligence (culpa). • Objective responsibility – theory of strict liability; It is also referred to as risk theory, and a State is liable or responsible even in the absence of any intention or fault on its part.

There have been decisions and opinions supporting both an objective and a subjective standard of fault. On balance, the objective theory prevails.

Corfu Channel Case ( Application of both objective and subjective standard

Facts: • In 1946, British warships were seriously damaged by mines in the part of the Corfu Channel that was part of Albanian territory. • British had swept the waters for mines and thought it was clear. They subsequently swept the water and found 22 mines ( obviously between the date the channel was first swept and date of explosion, mines were laid. • UK sought damages from Albania, arguing that i) mines were laid with connivance of Albanian government or alternatively, ii) regardless of who laid the mines, it could not have been done without Albania’s knowledge.
Held:
• Mere knowledge of the commission of a wrongful act was sufficient to entail responsibility. ( Albania was responsible. • Though the Court rejected an argument that Albania had any involvement in the laying of the mines, they found that the mines could not have been laid without their knowledge ( ie. possessed actual knowledge. • Once Albania had knowledge, it had an obligation to notify and to warn. Instead Albania did nothing, and consequently, it had a duty to make reparation ( ordered to pay damages.

Principles from Corfu Channel:
Issue: Did it have to be actual knowledge or does constructive knowledge suffice? • Where an act contrary to international law has occurred on a State’s territory, the State may be called upon to provide an explanation. The State cannot evade that request by limiting itself to a reply that it is ignorant of the circumstances of the act and of its authors. • Knowledge may be drawn from inferences of fact that leave no room for reasonable doubt. Facts are linked and may be drawn to a logical conclusion - this is permissible where a State exercises exclusive territorial control ( that is, can establish knowledge by indirect evidence.

2 Application of Objective Standard

• Neer Claim: An American superintendent of a Mexican mine was shot. The USA, on behalf of his family claimed damages because of the lackadaisical manner in which the authorities pursued their investigations. The Commission applied the objective test – and disallowed the claim. • Caire Claim: A French citizen was shot by Mexican soldiers for failing to supply them with money. The Commission held that Mexico was responsible for the injury in accordance with the objective responsibility doctrine ( liable for acts of the officials or organs of the state, which may devolve even in the absence of any “fault” of its own.

3 Application of Subjective Standard

• Home Missionary Society Claim: UK imposed a “hut tax” in the protectorate of Sierra Leone which set off a local uprising where Society property was damaged and missionaries killed. The tribunal dismissed the claim on the basis that under international law, no government was responsible for the acts of rebels where it itself was guilty of no breach of good faith or of no negligence in suppressing the revolt.

← NB: This decision is concerned with a specific area of the law ( the question of state responsibility in the acts of rebels.

2 When will wrongfulness be precluded? (Defences)

The availability of defences to State responsibility was accepted by the ICJ in Rainbow Warrior.

In the 2001 Draft Articles on State Responsibility: • Art 20: Consent to an internationally wrongful act • Art 21: Self-defence if in accordance with the principles espoused in UN Charter Art 2(4) and 51. ▪ For use of force, this requires an “armed attack” – see Nicaragua ▪ Does the UN Charter preclude customary international law which permits pre-emptive self-defence? In Nicaragua, the ICJ considered both custom and the Charter as side-by-side. o In The Caroline, the customary criteria in order to launch a pre-emptive strike requires: ▪ That the action be proportionate ▪ That the action is necessary ▪ No moment of consideration of any other possibilities • Art 23: Force majeure: that the act was beyond human control making it impossible for the State to act otherwise • Art 24: Distress: the author has no other way of saving lives; for example, in the situation of an armed conflict; hostages in a terrorist situation • Art 25: Necessity: Where the act is the only way for the State to safeguard an essential interest against a grave and imminent peril, AND does not seriously impair an essential interest of the States towards which the obligation exists [Torrey Canyon] • Art 49: Countermeasures: If the act constitutes a lawful countermeasure taken against the wronged State • If the obligation was not in force at that time for the State, such as if a treaty had not yet been ratified.

Under Art 26, the above defences will not apply to the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

State Responsibility - “Direct Injuries” to State Interests

2001 Draft Articles on State Responsibility – Article 42
A State is entitled as an injured to State to invoke the responsibility of another State if the obligation breach is owed to:
a) That State individually; or
b) A group of States, including that State, or the internationally community as a whole and the breach of the obligation: i) Specially affects that State; or ii) Is of such character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

← “Direct” injury to State interests are directly committed by the State and directly affect other States.

1 Types of Direct Injuries

1 Breach of Treaty

Note that once a treaty is accepted, there are NO exceptions for “new” States.

2 Failure to Respect Territorial Rights

• Nicaragua: Acts imputable to the US included the laying of mines in Nicaraguan territorial waters and certain attacks on Nicaraguan ports, oil installations and a naval base by its agents • Eichmann: Israel violated Argentina’s territorial integrity by kidnapping Eichmann from its soil – exercising enforcement jurisdiction.

1 Duty not to use territory to knowingly to injury other States

There is a duty on States NOT to use its territory knowingly to injure other States. At issue:
1) Did the State know its territory was used to injure
2) Is the State responsible for the actors?
3) Should the State know of the activity?

• Corfu Channel: Albania was held responsible for the consequences of mine-laying on its territorial waters on the basis of knowledge possessed by that state as to the presence of such mines, even though there was no finding as to who actually laid the mines

3 Damage to State Property

• US Diplomatic and Consular Staff in Teheran: Iran was held responsible for the damage caused to the US embassy by failing to exercise its duty to protect the embassy from attack. • Corfu Channel: Albania was held responsible for the damage to UK ship as a result of mine-laying on its territorial waters.

4 Insult to the State

• I’m Alone: A vessel (I’m Alone) was owned by the UK, chartered in the US and Canada had flag state jurisdiction. It ran rum as cargo during the prohibition years. The US Coast Guard chased the vessel into international waters where it was blown up. Canada was awarded damages for “insult to the Canadian flag”.

2 Liability For Activities Imputable to the State

The doctrine requires a link to exist between the State AND the person or persons actually committing the unlawful act or omission. A State will only be responsible for the acts of its servants that are imputable or attributable to it, and will NOT be responsible for all acts performed by its nationals.

1 Acts of Government Officials Within the Scope of Authority

2001 Draft Articles on State Responsibility – Article 4
1) The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, judicial or executive or any other function, whatever position it holds in the organisation of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.
2) An organ includes any person or entity which has that status in accordance with the internal law of that State.

← Look at the character of the act performed – this doctrine applies to even the lowest level officials ← For application to security forces – see Rainbow Warrior.

• Art 5: A person or entity which is not an organ of the State but which is empowered by law to exercise elements of the governmental authority shall be considered an act of the State, provided the person is acting in that capacity in the particular instance. • Art 6: The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

• Massey Case – Mexico was held to be responsible for a failure by Mexican authorities to take adequate measures to punish the killer of a US national.

2 Acts of Officials Outside the Scope of Authority

An unlawful act may be imputed to the State even where it was ultra vires; that is, beyond the legal capacity of the official involved, if the officials have acted at least to all appearances as competent officials or organs or they must have used powers or methods appropriate to their official capacity. [Caire Case; see also Art 7]

• Youman’s Claim: Militia ordered to protect Youman, a US citizens in a Mexican town, instead joined the riot during which the Americans were killed. The unlawful acts by the militia were imputed to Mexico as they had been acting quia military in their uniform whilst on duty, using military equipment, despite orders to the contrary. • Caire Claim: Caire was killed in Mexico by officials. As the officials were acting quia military, in their capacity as military officers and using State resources, Mexico was held responsible for their actions. • Union Bridge Company: A British official of the Cape Government Railway mistakenly appropriated neutral property during the Boer War. It was held there was still liability despite the honest mistake and the lack of intention on the part of the authorities to appropriate the material in question. Liability was attached as the action was within the general scope of duty of the official.

3 Acts of Persons For Whom State Not Normally Responsible

1 Individuals

Under the 2001 Draft Articles on State Responsibility, the conduct of a person or group of persons shall be considered an act of a State if the person is in fact: • Art 8 – Acting on the instructions of, or under the direction or control of that State[6] [see Eichmann; Nicaragua] • Art 9 – Exercising elements of governmental authority in the absence or default of the official authorities and the circumstances call for the exercise of those elements of authority [Zafiro] • Art 11 – The State acknowledges and adopts the conduct in question as its own. [US Diplomatic and Consular Staff in Teheran; Yeager]

• Eichmann: The act of the Israeli agents involved in the kidnapping of Eichmann were imputed to Israel – as they were acting under the direction of the State. • Nicaragua: The US had aided, abetted and funded the contra movement in Nicaragua. However, the acts of the contras were not attributed to the US as they did not have “effective control” of the activities in the course of which the violations had occurred in. • Zafiro: US was held responsible for the plunder and looting carried out by a privately owned ship with a civilian crew that was under the command of a US naval officer. The State was responsible as the naval officers had not adopted effective preventative measures. • US Diplomatic and Consular Staff in Teheran: ICJ held that the initial attack on the US embassy by militants could not be imputed to Iran as they were clearly not agents or organs of the state. However, the subsequent approval by Khomeini and other organs of the State to the attack, and the decision to maintain occupation translated that action into a state act. • Yeager: Yeager was expelled from Iran by the Revolutionary Guards after the successful revolution. Although the Guards were not an official organ of the state at the time of expulsion, they were exercising governmental authority with the knowledge and acquiescence of the revolutionary state, making Iran liable for their acts.

2 Mob Violence, Insurrections and Civil Wars

← Where governmental authorities have acted with due diligence (that is, in good faith and without negligence), the State will not be liable for the actions of rebels causing loss or damage. A State will not be responsible for movements that are trying to destroy it. [Sambaggio]

← If a revolutionary movement is successful, a State will be responsible for its activities prior to its assumption of authority. [Bolivian Railway Co; US Diplomatic and Consular Staff in Teheran; Art 10]

• Short: The international responsibility of a state can be engaged where the circumstances or events causing the departure of an alien are attributable to it, but not all departures of aliens from a country in a period of political turmoil could be attributable to the State. In this instance, at the relevant time, the revolutionary movement had not established control over any part of Iran, and the government had lost control. Furthermore, the acts of supporters of a revolution cannot be attributed to the government and as Short could not identify any agent of the revolutionary movement who forced him to leave Iran ( his claim failed.

3 Remedies For Wrongful Acts

1 General Principle

Under Art 31 – the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act, in respect of any damage, either material or moral.

← In James’ notes, it suggests that reparation should be available in the sequence below provided that each of the above is not available.

In Chorzow Factory, the Court emphasised that reparation must, as far as possible, wipe out all the consequences of the illegal act, and re-establish the situation which would, in all probability have existed if that act had not been committed.

2 Types of Reparation

1 Restitution (Art 35)

Restitution is the preferred form of reparation, as it is the easiest to fulfil the principle outlined in Chorzow Factory.

• It will not be awarded where it is materially impossible and involves a burden out of proportion to the benefit deriving from restitution rather than compensation. • Therefore, it is fairly rare – used for example, in the illegal seizure of territory as a monetary compensation would be inadequate in this situation.

2 Monetary Compensation/Damages (Art 36)

Monetary compensation is intended to replace the value of the lost asset, including the value of loss profit. Punitive damages are not usual as it go beyond the concept of restitution.

It also applies to non-material damage, and therefore, not limited to economic losses. In I’m Alone Case, damages were awarded for the indignity suffered by Canada in relation to the sinking of a Canadian ship. The damages were not related to the value of the ship or its cargo.

← Under Art 38, interest on any principal sum may be payable where necessary to ensure full reparation.

3 Satisfaction (Art 37)

This is a non-monetary form of reparation, and may be given in addition to monetary compensation. It includes an acknowledgement of wrongdoing by a state, formal apologies and an expression of regret, promising just punishment of the guilty. A declaration by the court or tribunal that a State has acted illegally may be sufficient satisfaction in some cases.

See Eichmann and Rainbow Warrior. In Rainbow Warrior the Court held that the public condemnation of France for its breaches of treaty obligation to NZ made by the tribunal constituted appropriate satisfaction.

4 Assurances of non-repetition (Art 30)

A State responsible for a wrongful act is under an obligation to cease that act, and offer appropriate assurance of non-repetition if appropriate.

It has a preventative rather than a remedial function. This is a sui generis remedy and whether it is granted is at the discretion of the judge, looking at whether there is a real risk of repetition and the seriousness of the injury suffered by the claimant State as a result of the wrongful act.

5 Declaratory judgment

A party may simply seek a declaration that the activity complained of is illegal. This may be of particular significance in territorial disputes.

This is not specifically referred to in the articles – the ICJ will on occasion give a declaratory judgement to the effect that “State A has injured State B”.

6 Order for cessation of unlawful conduct (injunction)

In Nicaragua, the Court made an order that the US was under a duty to cease and refrain from all acts that were a breach of the foregoing obligations. It is a form of injunction; an order that the illegal conduct cease.

Cessation is not part of reparation as it is targeted towards the unlawful conduct per se.

7 “Moral” Remedy

This is the fixing of “moral wrongs”, for example, by having bad legislation changed, for example in the context of human rights violation.

See Belgian Arrest Warrants.

3 Limits to Enforcement

A remedy will not be awarded where it will: • Bankrupt a State • Unduly harm the nationals of a State.

← Under Art 39 – an injured State may be held contributory negligent ← If multiple states are in breach, a State may be jointly and severally liable or alternatively, only one State may be held responsible. See Nauru.

State Responsibility: The Treatment of Aliens

At issue is the protection of a State’s nationals in a foreign State.

For a State to take up a claim on a national’s behalf: o Has the national requested diplomatic protection; and o Has the national first exhausted all local remedies?

Procedural Issues:
1) On what basis does the State found jurisdiction?
2) On whose behalf does the State exercise jurisdiction? (the nationality of the claim)
3) Methodology - State may first choose to diplomatic protest prior to escalating to a formal claim.
4) Remedies

1 Nationality of Claims

In a state-oriented world system, it is only through the medium of the state that the individual may obtain the full range of benefits available under international law.

← Nationality is the link between the individual and his State as regards the particular benefits and obligations ← Nationality is also the link between the individual and the benefits of international law. ← It is for each State to determine under its own domestic laws who are its nationals [Nationality Decrees in Tunis and Morocco]

Where there is an injury to a State national in a foreign State – this constitutes an indirect injury to the State. A state may then choose to exercise diplomatic protection on behalf of its nationals.

1 Protection of Individuals

A State is under a duty to protect its nationals and it MAY take up their claims against other States. However, under international law, there is NO obligation for States to provide diplomatic protection for its nationals abroad.

In Mavromattis, the PCIJ outlined the following principles: ← A State may only take over the claim of its own nationals AND where it is requested by the national. ← Once a State chooses to exercise diplomatic protection – the claim then becomes that of the State. ← By exercising diplomatic protection – a State is asserting its own right to ensure in the person of its subjects, respect for the rules of international law.

1 Stateless People

Unfortunately, stateless people are effectively fair game for all. As a stateless person, no State will exercise diplomatic protection on their behalf.

In addition to actual stateless people, there are also those who are effectively stateless – for example, the people who have illegally departed a country, and no longer have the papers to return.

2 Protection in Cases of Dual Nationality

Under the 1930 Hague Convention of Certain Questions Relating to the Conflict of Nationality Laws: • Art 3: A person with dual citizenship may be regarded as a national by either of those states • Art 5: A third country shall treat a person with dual nationality as if he possessed only one nationality.

1 Which State Can Exercise Diplomatic Protection?

To invoke protection against another State, the nationality of the citizen must correspond with the factual situation. This is because nationality is the legal manifestation of the link between the person and the state granting nationality, and the recognition that the person was more closely connected with that State than with any other.

Therefore, a State will only be able to exercise protection against a competing State if it can be shown that the national, factually has a genuine and effective link to the State seeking to exercise protection, in preference to the competing State. [Nottebohm]

← Note the relative nature of the test. It will only apply where both the competing states have a link to the national. ← Therefore, where protection is sought by a state of a national against another state of which he is also a national – the test of effectiveness will apply. [Iran-US Claims Tribunal] ← Where the predominance of a nationality cannot be proved – the test of effective will NOT apply [Mergé] ← Either State of which a person is a national may adopt a claim against a third state. [Flegenheimer] ← A third State cannot contest the claim of a State by referring to a person’s dual nationality [Salem]

To determine whether a genuine and effective link exists, the Court stated in Nottebohm to look to: • Habitual residence • Centre of interests • Family ties • Participation in public life • Attachment shown for a given country and what was inculcated in children etc.

Nottebohm Case

[Note: This is not a case about dual nationality per se but rather outlines the principles to be used in the case of competing states – Flegenheimer]
Facts:
• N was born in Germany in 1881 and held German nationality until he applied for naturalisation in Liechtenstein • In 1905, N went to Guatemala, and took up residency there, making that country the headquarters for his business activities. He continued to have business and family in Germany; visiting there and other countries for holidays. • Though L did not meet the criteria for obtaining citizenship from Liechtenstein – he was granted citizenship on an expedited basis. • Issue: Could Liechtenstein validly exercise diplomatic protection over N against Guatemala?
Held:
• Though Nottebohm did not possess Guatemalan citizenship, he had factual ties there. • As Nottebohm only had tenuous links with Lichtenstein, but had kept Guatemala as the centre of his family and social interests, and business activities, Lichtenstein could NOT assert Nottebohm’s nationality against Guatemala.

Canevaro Case

Facts: • Canevaro possessed dual nationality – by descent from an Italian father, and by birth in Peru • Italy sought to bring an action against Peru • Canevaro had acted as a Peruvian citizen, by running as a candidate in election, accepting the office of Consul-General in Netherlands, and defending his election
Held:
• Though Canevaro was an Italian citizen, Peru had a right to consider him as a Peruvian citizen and to deny his status as an Italian claimant – as his effective link was with Peru.

3 Protection of Companies and Shareholders

Where an unlawful act is committed against a company with foreign capital – only the national state of the company could sue. [Barcelona Traction] The test of “genuine connection” and effectiveness will not apply in this instance.

Even in international law, Courts are still reluctant to pierce the corporate veil.

← Although shareholders may suffer if a wrong is done to the company, only the rights of the company have been infringed, and thus entitle it to institute action. ← A State may exercise protection on behalf of its nationals who are shareholders where: o Where the direct rights of the shareholders have been affected and the shareholders would have an independent right of action eg. non-payment of dividends; o Where the State of incorporation is the one causing harm to the shareholders o Where the company has legally ceased to exist

Barcelona Traction

Facts: • Barcelona Traction was a company established in Canada, that traded in the production of electricity in Spain with the majority of shares being held by Belgium nationals • After WW2, Spanish authorities took a number of financial measures which resulted in harm to the company, ultimately leading to its bankruptcy • Belgium sought to bring a claim against Spain in respect of injury to its shareholders
Held:
• Belgium was not permitted to bring a claim on behalf of the shareholders. • This was because the injury had been suffered by the company, and not the shareholders directly – Canada could have brought an action, but it exercised its discretion not to intervene in the dispute.

2 International Minimum Standard or National Treatment

Issue: Does an international minimum standard or is “national treatment” apply to the treatment of a state to foreign nationals?

• Developed nations have historically argued that there is an “international minimum standard” for the protection of aliens, irrespective of how the State treats its own nationals • Developing nations have maintained that a State is only required to treat the alien as it does its own nationals.

Under Human Rights law – certain minimum standards of state behaviour with regard to civil and political rights have been established.

Bearing in mind that the majority of arbitrators come from developed states, most of the case law apply an international minimum standard of treatment. See Neer; Chevreau; Asian Agricultural Products (which applied a standard of due diligence).

3 What Obligations Does A State Owe to Aliens?

1 Duty Not to Harm

For the treatment of an alien to constitute an international delinquency it should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. [Neer Claim]

That is, it appears to specify a fairly high threshold before the minimum standard applies – in Neer, this was the international standard.

• Neer Claim: US alleged that Mexico had failed to exercise due diligence in finding and prosecuting the murderer of a US national. The Commission was unanimous in rejecting the claim.

2 Admission and Expulsion

1 What is a State’s Obligation?

← A State is under NO obligation to admit aliens [A-G for Canada v Cain] ← A state is precluded from refusing to its own nationals the right of entry or residence [Van Duyn] ← A State may expel aliens but there is a limit to manner and reasons

The admission and expulsion of aliens is regulated by a number of bilateral and multilateral treaties – these include human right treaties containing guarantees concerning the expulsion of aliens.

1 Refugees

Under the 1951 Convention Relating to the Status of Refugees: • There is no duty to admit a refugee • Art 32(1): Parties shall not expel a refugee lawfully in their territory except on grounds of national security or public order. • A refugee cannot be returned to territories where his life or freedom would be threatened on account of race, religion, nationality, membership of particular social group or political opinion.

2 Expulsion of Aliens

Though a State is permitted to expel aliens, it is limited to the manner of expulsion.

For liability to be found, it must be shown that the expulsion was done by the State. A national cannot decide to leave on their own accord due to unsettled conditions. [Rankin]

1 When is a State Justified in Expelling an Alien?

A claimant alleging expulsion has to prove the wrongfulness of the expelling State’s action – that is, that the act was arbitrary, discriminatory, or in breach of the expelling State’s obligations.[7] [Rankin]

← This applies regardless of whether specific measures directed against an individual led to the expulsion, or if conditions within the country forced a person to leave. (constructive expulsion)

Rankin v Iran

Facts: • R, an American national was employed by an American company in Iran at the time of the fall of the Shah’s Government and its replacement Islamic Revolutionary Government. • The day after the revolution, the claimant, under contract to the company, requested and was granted permission by the government to be evacuated with other employees. • R sought compensation for loss of salary and abandoned personal property resulting from alleged expulsion.
Held:
• Tribunal found that the Claimant had not satisfied the burden – the turmoil and generally chaotic conditions associated with the Resolution was the motivating factor in decision to leave, rather than specific acts or omissions attributable to Iran.

2 Manner of Expulsion

A State can expel an alien whenever it wishes, provided it does not carry out the expulsion in an arbitrary manner, for example: [De Breger] • Using unnecessary force to effect the expulsion [see Burgess] or otherwise mistreating the alien • Refusing to allow the alien a reasonable opportunity to safeguard property and wind up affairs

• In De Breger, De Breger was ordered to leave the Island of Rhodes within six months. Consequently, it was doubtful that liability could be established on the basis that he was not given enough time to sort out his affairs. • In Yeager, the Tribunal awarded compensation to an American expelled from Iran who was only given 30 minutes to pack a few personal belongings without advance notice.

3 Constructive Expulsion

For a constructive expulsion to be made out, it requires:
1) Circumstances in the country of residence are such that the alien cannot reasonably be regarded as having any real choice;
2) Behind the events or acts leading to departure there is an intention of having the alien ejected; and
3) Acts are attributable to the State in accordance with the principles of state responsibility.

See Yeager v Iran; Short v Iran; International Technical Products v Iran.

3 Administration of Justice

A State must give an alien access to the justice system. Breach of this duty will include where the alien is unreasonably detained for a long period, and harsh and unlawful treatment in prison.

1 Access to Courts

The rights given to an alien should be at least the protection granted to your own nationals. [Roberts]

← This obligation will not be violated by an erroneous decision of a domestic court unless the decision was based on corruption, or so erroneous that no competent court could have reached such a decision. [Mr Lindsay’s Case] ← An arrested person should be given an opportunity to communicate with consular representatives of his country if requested [Chevreau Claim] ← In determining whether a breach has occurred, though there is no standard prescribed by international law, reference should be made to domestic laws in determining whether detention has been unreasonable. [Roberts]

Roberts Claim

Facts: • US presented a claim on behalf of R, an American citizen who it was alleged was arbitrarily and illegally arrested by Mexican authorities, in contravention of Mexican law and subjected to cruel and inhumane treatment
Held:
• The Court held that R should be granted an indemnity on the grounds of unreasonably long detention. • There was a failure of compliance with Mexican constitutional provisions which held that an accused must be judged within a year. • Mexico argued that the delay resulted from the fact that the accused refused to name counsel – but Roberts had consistently requested counsel, and the Judge could have appointed counsel on his behalf under the constitution.

2 Harshful and Unlawful Treatment in Prison

In determining whether there has been harsh and unlawful treatment in prison, the relevant standard is whether aliens are treated in accordance with ordinary standards of civilisation and, not whether there has been equality of treatments in comparison with the State’s own nationals. [Roberts]

• Roberts: Court held that the treatment by Mexico constituted cruel and inhumane imprisonment.

3 Failure to Apprehend

A State may be found responsible where its authorities fail to take proper steps to apprehend and prosecute those who commit injuries against aliens. [Janes Claim]

• Janes Claim: Janes was an American citizen who was murdered in Mexico. Carbajal, the person who killed Janes was well-known in the community, where numerous persons witnessed the event. The magistrate was informed of the shooting within 5 mins of its occurrence. After 8 years since the murder, Carbajal still had not been apprehended. The Commission held that Mexico had not taken proper steps to apprehend and punish Carbajal ( awarded damages.

4 Protection From Violence

← To be liable, it must be shown that special circumstances exist from which the responsibility of the authority arises – for example, their behaviour in connection with the particular occurrence, or a general failure to comply with their duty to maintain order, to prevent crimes or to prosecute and punish criminals [Noyes] ← Liability will be constituted by the “mere want or lack of due diligence” without any need to establish negligence or malice. [Asian Agricultural Products]

• The duty arises due to the recognised public character of the foreigner and the circumstances in which he is present in the State’s territory entail a corresponding duty of special diligence. [Mallen] • See 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons.

Noyes Claim

Facts: • N was an US citizen who claimed indemnity for personal injuries and losses sustained through attacks made upon him in Panama. • He claimed an alleged failure to provide to the claimant adequate police protection, to exercise due diligence in the maintenance of order and to take adequate measures to apprehend and punish the aggressors. • A police officer had attempted to protect the claimant and urged him to get away as quickly as possible.
Held:
• That an alien has suffered hands of private persons which could have been averted by the presence of police officer does not make a government liable for damage. • There was no circumstances for which the responsibility of the authorities to arise – therefore lack of protection was not established.

Asian Agricultural Products Ltd v Sri Lanka

Facts: • Company claimed compensation for the destruction of its Sri Lankan farm. The Court found that the farm was located in an area within the control of Tamil Tiger rebels and that the farm management offered to dismiss the staff thought by the Government to be in league with them. • Tribunal was unable to establish whether the destruction of the farm was the result of rebel action or the work of Government security forces seeking to destroy the rebel base.
Held:
• In considering whether a state is responsible for rebel or terrorist activity, it may be held responsible for the activity for what its authorities do or do not do to ward off the consequences, within the limits of possibility. • Consequently, the Tribunal found the Government through the inaction and omission violated its due diligence obligation ( should have ordered undesirable persons out of security sensitive areas • Should have ensured that suspect elements were removed from the farm.

5 Detention and Physical Injury to the Person or to Property

If an alien is taken into custody by State processes – a State will be responsible for the alien’s safety and well-being. This will apply regardless if the alien is under legal or illegal custody. [Turner]

Quintanilla Claim (Mexico v US)

Facts: • Mexico brought claim against US on behalf of the parents of Q, who was killed in Texas. • Q had lassoed a girl, who screamed and Q fled. She told her father who knew Q, lodging his complaint with the authorities. • Q was taken into custody by the deputy sheriff, and taken by car to the county jail. However, Q’s corpse was found near the side of the road, with tracks showing he had been taken there by car. Q had never reached the county jail
Held:
• Q had been taken into custody by State officials and was never delivered to any jail ( was the State liable for this. • Yes – though the Government was not liable for everything which could befall him, it has to account for him. The Government will be liable if it is proven that it had treated him cruelly, harshly or unlawfully; and will also be liable if it took him into custody and then ignored what happened.

See Article 9 of the Harvard Draft Convention (previous draft) which prohibits the deliberate destruction of or damage to the property of an alien.

4 Remedies

Where a State is awarded a remedy for an action it has brought on behalf of a national – it is under no obligation to pass this on to the national. Whether the remedy is passed on is entirely discretionary. [Rustomjee]

← Typical remedies are an apology, restitution, compensation, satisfaction, guarantee of non-repetition. The exact remedy will depend on what obligation has been violated.

Quite often, the individual will not receive an effective remedy. For example, even though Argentina received an apology in Eichmann, he was still subjected to the death penalty.

1 Lump Sum Settlements

Numerous mixed claims commissions were established to resolve problems of injury to aliens, while a variety of national claims commissions were created to distribute lump sums received from foreign states in settlement of claims.

5 Prior Exhaustion of Local Remedies

Before international proceedings can be instituted on behalf of a national – the various remedies provided by the local state should first be exhausted. [Ambatielos]

NB: This rule only applies in respect of indirect injuries – it will not apply in respect of direct injuries caused by one state to another. [Aerial Incident of 27 July 1955]

• The rule exists to enables the particular state to have an opportunity to redress the wrong that has occurred there within its own legal order.

Ambatielos Arbitration

Facts: • Greece brought proceedings against Britain on behalf of Ambatielos in regards to a contract. • During proceedings in the UK, Ambatielos had failed to call a vital witness
Held:
• The tribunal rejected the claim as Ambatielos had not exhausted all remedies available under English law. • In particular, he had not appealed to the House of Lords from the decision of the Court of Appeal.

2 What Kinds of Remedies Has to be Exhausted?

Under the 1961 Draft Articles, a claimant has to first employ all available administrative, arbitral or judicial remedies.

• An appeal for clemency is not a remedy for the purposes of the rule [Application 458/59] • It is unclear whether recourse a process to reopen a process that has already been closed by a judgement of last resort applies. ▪ In Salem, the tribunal rejected the argument because the recours en requête civile is not a regular legal remedy but intends to reopen a process that has already been closed by the highest court. ▪ By contrast, in Nielsen, the European Commission of Human Rights ruled that the extraordinary remedy, recourse to the Danish Special Court of Revision, had to first be exhausted to satisfy the rule.

3 Only Effective Remedies Have to First Be Exhausted

Only effective remedies will have to first be exhausted.

1 Where an appeal would be fruitless

A person will not be required to take a matter to appeal, where the appeal would not have affected the outcome of the case. [Finnish Ships]

• In Finnish Ships, shipowners brought a claim before the Admiralty Transport Arbitration Board, but had not appealed against the unfavourable decision. The Court held that as the appeal could only be on points of law, it could not overturn the vital finding of fact that there had been a British requisition of ships involved, so that any appeal would have been ineffective. Therefore, claims of shipowners could not be dismissed for non-exhaustion of local remedies.

2 Litigation Over An Extended Period of Time

Where the local courts have not heard a matter for an extended period of time, it is possible that the delay in deciding a case may render a remedy ineffective for the purposes of the rule.

• In El Oro Mining and Railway Co, the Commission took jurisdiction of the case despite the presence of a “Calvo Clause”. The claimant had taken the case to the local courts, but this was still undecided after nine years. It was held that this “exceeded the limit” and there was a denial of justice that excused the company from its obligation not to resort to the commission.

3 Where No Justice Would Be Available

A claimant in a foreign State is not required to exhaust justice in such State when there is no justice to exhaust.

• In Robert E. Brown, the Tribunal found that all three branches of the South African Government had conspired against the claimant’s enterprise, to the effect that the judiciary was brought into line with the policy of the Executive. Consequently, a claim of non-exhaustion was rejected.

4 Can the Rule Be Waived By Treaty?

Parties to a treaty may dispense with the rule in express terms. However, as it is an important principle of customary international law, the presumption that the rule applies will have to be rebutted by express provision to the contrary, for example, by a “Calvo Clause”

1 What is a “Calvo Clause”?

A “Calvo” Clause is a clause in a contract between a State and an alien whereby the latter agrees to resort to local remedies only and not invoke the protection of the state of which he was a national.
Public International Law Notes Session 2, 2004

1 International Law and Municipal Law 1

1.1 Theoretical Issues 1 1.2 Primacy of International Law 1 1.2.1 Municipal Tribunals 1 1.2.2 International Tribunals 1 1.3 Application of Customary International Law in Municipal Law 2 1.3.1 Approach in England – Incorporation 2 1.3.2 Approach in Australia – Transformation 2 1.3.3 What happens when CIL conflicts with express statutory provisions in Australia? 2 1.3.4 Does the external affairs power give Parliament power to legislate to give effect to CIL obligations? 3 1.3.5 Exclusion of International Law 3 1.4 Application of Treaties in Municipal Law 4 1.4.1 How does Australia enter into treaties? 4 1.4.2 Prerogative to Conclude Treaties 4 1.4.3 Application of Treaties in Municipal Law – Treaties Are Not Part of Municipal Law 5 1.4.4 Statutory Interpretation – Presumption of Consistency 6 1.5 Influence of International Law on Australian Law 6 1.5.1 Interpretation of Statutes 6 1.5.2 Development of the Common Law 7 1.5.3 Treaties and the Doctrine of Legitimate Expectations 7

2 Personality 9

2.1 International Legal Personality 9 2.2 States 9 2.3 International Organisations 9 2.4 Individuals 10 2.5 Others 10

3 Statehood 12

3.1 Criteria for Statehood 12 3.1.1 Defined Territory 12 3.1.2 Permanent Population 12 3.1.3 Government 12 3.1.4 Capacity to Enter Into Relations With Other States 13 3.1.5 Possible additional criteria 15 3.2 Principle of Self-Determination 16 3.2.1 What is the right of self-determination? 16 3.2.2 Who has the right to self-determination? 17 3.2.3 Self-determination within the limits of uti posseditis 18 3.2.4 Relevance to Statehood 18 3.3 Extinction and Succession of States 18 3.3.1 Succession 19 3.4 Principle of Non-Use of Force in International Relations 20 3.5 Role of Recognition 20

4 Recognition 21

4.1 Theories of Recognition 21 4.1.1 Constitutive Theory 21 4.1.2 Declaratory Theory ( accepted theory 21 4.2 Modes of Recognition 21 4.2.1 Implied Recognition 21 4.2.2 Conditional Recognition 22 4.2.3 Collective Recognition 22 4.2.4 Recognition can be de facto or de jure 22 4.2.5 Withdrawal of Recognition 22 4.2.6 Non-Recognition 22 4.3 Recognition of States 22 4.3.1 Is there a duty to recognise? 23 4.4 Recognition of Governments 23 4.4.1 Significance of Recognition 23 4.4.2 Test of Effective Control 24 4.4.3 De facto and De Jure Recognition 24 4.4.4 Responsibility for a Previous Government’s Debts and Obligations 25 4.4.5 Australia’s Policy 25 4.5 Premature Recognition 25 4.6 Effect of Recognition in Municipal Law 25 4.6.1 Does Recognition Operate Retroactively 25

5 Title to Territory 26

5.1 Territorial Sovereignty 26 5.1.1 What is Territorial Sovereignty? 26 5.1.2 Categories of Territorial Regime 26 5.2 Types of Territorial Disputes 26 5.3 Resolving Territorial Disputes: Boundary 26 5.3.1 Uti Possidetis Juris 27 5.3.2 Equity 27 5.3.3 Geographical Principles – Boundary Rivers 28 5.4 Title to Territory 28 5.4.1 Accretion and Avulsion 28 5.4.2 Cession 28 5.4.3 Conquest and the Use of Force 29 5.4.4 Occupation 29 5.4.5 Prescription 30 5.5 Resolving Territorial Disputes – Allocating Title to Territory 31 5.5.1 Effective Occupation 31 5.5.2 Intertemporal Rule 33 5.5.3 Recognition, Acquiescence and Estoppel 34 5.5.4 Self-Determination 35 5.5.5 Geographical Claims 35 5.5.6 Claims based on historical grounds 35 5.6 Extent of Territorial Sovereignty 35 5.6.1 Airspace 35 5.6.2 Outer Space 36 5.6.3 Territorial Sea 36 5.6.4 Polar Regions 36 5.6.5 Rights in Foreign Territory 36

6 State Jurisdiction 38

6.1.1 Function and Kinds of Jurisdiction 38 6.1.2 Legislative/Prescriptive Jurisdiction 38 6.1.3 Enforcement Jurisdiction 38 6.1.4 Presumptions About Jurisdiction 38 6.1.5 Civil Jurisdiction 38 6.2 Bases of Criminal Jurisdiction 39 6.2.1 Territorial Principle 39 6.2.2 Nationality Principle 41 6.2.3 Protective Principle 42 6.2.4 Passive Personality Principle ( this is a dubious principle 43 6.2.5 Universal Principle 44 6.3 Illegal Apprehension of Suspects and the Exercise of Jurisdiction 48 6.3.1 Existence of an Extradition Treaty 48 6.3.2 Manner of Apprehension 49 6.4 Controversial Claims to Jurisdiction 49 6.4.1 Extension of Territorial Jurisdiction 49 6.4.2 Extension of Nationality Jurisdiction 50 6.5 Conflicts Arising From Concurrent Jurisdiction 50 6.5.1 Approaches to Resolving Conflicts 50 6.5.2 Extradition 50

7 Immunity From Jurisdiction 52

7.1 State Immunity From Jurisdiction 52 7.1.1 Absolute and Restrictive Immunity 52 7.1.2 Distinction Between Sovereign and Non-Sovereign Acts 52 7.1.3 Identifying a Commercial Transaction 54 7.1.4 Contracts - Effect of Governmental Intervention 54 7.1.5 Position of State Entities and Enterprises 55 7.1.6 Waiver of Immunity 56 7.1.7 The Relationship Between “Act of State”, Non-Justiciability and State Immunity 56 7.2 State Immunity From Execution 57 7.2.1 Difference in Scope Between Immunity From Jurisdiction and Immunity From Execution 57 7.2.2 Commercial Property 57 7.3 Diplomatic Immunity 58 7.3.1 Jurisdictional Immunity 58 7.3.2 Waiver of Immunity 59 7.3.3 Inviolability of Mission Premises 59 7.3.4 Protection of Mission Premises 60 7.3.5 Freedom of Communication 61 7.3.6 Immunity From Execution 62 7.4 Head of State Immunity 62 7.4.1 When will a Head of State have immunity? 63 7.4.2 Limits to HOS Immunity 64 7.5 Immunity of International Organisations 64

8 State Responsibility: General 65

8.1 General Principles of Responsibility 65 8.1.1 Essential Requirements for Responsibility 65 8.1.2 State Responsibility and the Law of Treaties 65 8.1.3 Classification of Wrongful Acts 66 8.2 The Question of Fault 66 8.2.1 Subjective or Objective Responsibility 66 8.2.2 When will wrongfulness be precluded? (Defences) 67

9 State Responsibility - “Direct Injuries” to State Interests 69

9.1 Types of Direct Injuries 69 9.1.1 Breach of Treaty 69 9.1.2 Failure to Respect Territorial Rights 69 9.1.3 Damage to State Property 69 9.1.4 Insult to the State 70 9.2 Liability For Activities Imputable to the State 70 9.2.1 Acts of Government Officials Within the Scope of Authority 70 9.2.2 Acts of Officials Outside the Scope of Authority 70 9.2.3 Acts of Persons For Whom State Not Normally Responsible 71 9.3 Remedies For Wrongful Acts 72 9.3.1 General Principle 72 9.3.2 Types of Reparation 72 9.3.3 Limits to Enforcement 74

10 State Responsibility: The Treatment of Aliens 75

10.1 Nationality of Claims 75 10.1.1 Protection of Individuals 75 10.1.2 Protection in Cases of Dual Nationality 76 10.1.3 Protection of Companies and Shareholders 77 10.2 International Minimum Standard or National Treatment 78 10.3 What Obligations Does A State Owe to Aliens? 78 10.3.1 Duty Not to Harm 78 10.3.2 Admission and Expulsion 79 10.3.3 Administration of Justice 80 10.3.4 Protection From Violence 81 10.3.5 Detention and Physical Injury to the Person or to Property 83 10.4 Remedies 83 10.4.1 Lump Sum Settlements 83 10.5 Prior Exhaustion of Local Remedies 84 10.5.1 What Kinds of Remedies Has to be Exhausted? 84 10.5.2 Only Effective Remedies Have to First Be Exhausted 84 10.5.3 Can the Rule Be Waived By Treaty? 85

-----------------------
[1] Prior treaties of cession are subject to the rule of intertemporal law. See below.
[2] In Mabo No. 2, the High Court held that the acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. However, courts have jurisdiction to determine the consequences of an acquisition under municipal law.
[3] An inchoate offence is one where a substantive offence may not have come to completion but nevertheless an offence has been committed because of the actions or agreements in preparation for the substantive offence.
[4] In Achille Lauro, passengers took control for the purpose of pressing demands for the release of political prisoners in Israel – consequently, it could not be regarded as an act for “private ends” and did not constitute piracy.
[5] The move away from absolute immunity towards one of restrictive immunity began in Philippine Admiral Case (1977), subsequently followed by Denning LJ in Trendtex (1977). It was held to be the correct approach in I Congreso del Partido (1983).
[6] Conduct will be attributable to a State under head of “direction or control” if the State directed or controlled the particular operation, and the conduct complained of was an integral part of that operation.
[7] It is suggested that expulsion may be justified for entry in breach of law, breach of conditions of admissions, involvement in criminal activities, and in light of political and security considerations. In regards to the latter, due consideration will have to be given to the interests of the individual with the competing claims of ordre public.

-----------------------

These two principles are linked

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