Advanced Public International Law

Topic 1: Law of Treaties

A. Introduction to the Law of Treaties

1. What is a ‘treaty?’

Vienna Convention on the Law of Treaties, Article 2 (1)(a): For the purposes of the present Convention: “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; …

Four Elements:

(i) Concluded between States- Intergovernmental Organisations can also enter (customary international law

principle). VCLT will not govern these. Article 3 expressly preserves legal force.

(ii) In written form- Not necess

Legal Status of Eastern Greenland case (Norway v Denmark) PCIJ Rep (1933) Series A/B No 53

Denmark had established colonies in other parts of Greenland. Eastern part of Greenland remained uncolonised – harsh environmental conditions. Norway sent expedition to eastern Greenland and claimed sovereignty with possession in

1931. Proof of conversations between Norwegian Foreign Minister and Danish Minister accredited

to Norway at the peace conferences after WW1 to the effect that: Denmark proposed that it would allow Norway to claim Spitzbergen if Norway agreed not to challenge any Danish claim to the whole of Greenland. At a later meeting, Norwegian Minister told the Danish Minister that Norway would not create any difficulty concerning the Danish claim.

Denmark claimed that this constituted a binding treaty under international law and thus Norway’s 1931 claim was in breach of their obligation

Held:

Norwegian Minister’s words affirmed a commitment by Norway not to object to Danish claims to sovereignty of the whole of Greenland. Minister for Foreign Affairs can by verbal commitment bind the state he represents when answering a question in the context of diplomatic relations which falls within his province of authority.

Norway was thus under an obligation to refrain from challenging Danish claims of sovereignty and thus was obliged not to occupy any part of Greenland. Took into account that Norway received a quid pro quo – the promise of Denmark not to object to Norway claiming Spitzbergen

- Not necessary for legally binding agreement, just necessary for VCLT to apply.- Art 3 VCLT – expressly preserves legal force of oral ‘treaties’.- VCLT & CIL – no prescribed requirements for ‘written form’- ICJ – emphasis on intention of parties where no prescribed law; parties free to

choose appropriate form to express their intentions. - Ct will look at intention to see if oral agreement is binding in same way as treaty- Context surrounding will be important

(iii) Governed by International Law- VCLT – no express requirement in Art 2 (1) (a) to look at intention of parties as to

whether they are governed by international law, however the requirement is said to be embraced by this element.

- International law governs all treaties whether or not they are within the scope of VCLT.

(iv) Embodied in single or 2 instruments- Treaties may be several forms:

a) Conventionsb) Agreements

Nuclear Tests Cases (Australia v France, New Zealand v France) ICJ Rep (1974) 253

Australia and NZ brought cases against France seeking an order from the court preventing France’s atmospheric nuclear testing in the Pacific

France (through authoritative sources) had since made representations that it would cease its atmospheric testing:

1. President of Republic issued communiqué stating that France was in a position to change to underground testing after that summer

2. President of Republic stated at a press conference that France was committed to ending their atmospheric nuclear tests

3. Foreign Minister made statement to General Assembly of UN that France was moving to underground testing of its nuclear weapons

France claimed these unilateral declarations constituted a binding obligation on it not to carry out any more atmospheric tests (and further than the court had no issue to decide if they were right)

Australia and NZ objected because they wanted the court to declare the atmospheric tests to be against international law

Held:

When states makes declaration with the intention that it should be bound, that intention makes the statement legally binding and the state will be required by international law to act consistently with its undertaking

In the case of unilateral undertakings, nothing in needed such as quid pro quo or affirmation or acceptance by any other state, and the undertaking will be directed to all states

Not all unilateral acts will draw an inference of a binding obligation, it is a matter of intention Where statement restricts a state’s freedom of action, the approach of the court should be

restrictive Trust and confidence is part of international law and states should be able to rely on

declarations made by other states The undertaking cannot be said to subject to an arbitrary power of reconsideration

c) Protocolsd) Chartere) Exchange of notes-

- There are less formal agreements such as exchange of notes (letters). States may send letters to each other and agree on certain things. If the letters intended to be a treaty, it is customary to expressly state that it shall constitute an agreement between Governments.

2. Treaty Negotiation

Political Alliances and Groupings: G-77 - The Group of 77 at the United Nations is a loose coalition of developing nations, designed

to promote its members' collective economic interests and create an enhanced joint negotiating capacity in the United Nations. There were 77 founding members of the organization, but the organization has since expanded to 131 member countries.

Non-Aligned Movement - The Non-Aligned Movement (NAM) is a group of states considering themselves not aligned formally with or against any major power bloc. As of 2011, the movement had 118 members and 20 observer countries.

OECD - The Organisation for Economic Co-operation and Development is an international economic organisation of 34 countries founded in 1961 to stimulate economic progress and world trade. It defines itself as a forum of countries committed to democracy and the market economy, providing a platform to compare policy experiences, seeking answers to common problems, identifying good practices, and co-ordinating domestic and international policies of its members.

P-5 - the five permanent members of the United Nations Security Council – China, France, Russia, UK, US. Have the power to veto any substantive resolution.

European Union, Nordic, ASEAN - The European Union (EU) is an economic and political union of 27 member states which are located primarily in Europe. The Association of Southeast Asian Nations is a geo-political and economic organization of ten countries located in Southeast Asia.

CANZ – Canada, Australia and New Zealand AOSIS - Alliance of Small Island States (AOSIS) is an intergovernmental organization of low-

lying coastal and small Island countries.

3. Treaty-Making

Power to enter into treaties: In Australia, a prerogative power of the Crown - Constitution, ss 61, 51(xxix). Historically an ad hoc process

VLCT Article 9 – ‘Adoption of the Text’ – (1) The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in Paragraph 2. (2) The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.

VCLT Article 7 – ‘Full Powers’ – State rep produces full powers, or it appears from practice of States concerned that intention was to consider that person as representing the State: (1) A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.(2) In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

VCLT Article 8 – ‘Subsequent confirmation’ - Otherwise treaty of no legal effect without subsequent confirmation.

4. Expressing Consent to be Bound:

Most critical step in treaty formation Activates treaty and produces legal effects for consenting State NO State is bound by treaty unless manifests its consent to be bound VCLT Article 11 - The consent of a State to be bound by a treaty may be expressed by signature,

exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.’

5. Entry Into Force:

VCLT Article 24(1) - A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.”

More straightforward in the case of bilateral treaties. Effect of entry into force: VCLT Article 26 (pacta sunt servanda): – ‘Every treaty in force is

binding upon the parties to it and must be performed by them in good faith.’

6. Article 18 of the Vienna Convention of the Law of Treaties:

Pending entry into force … VCLT Article 18 - ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; orb) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.’Article 18 continues to apply until a State makes it clear that it does not intend to become a State party to the treaty.

7. Treaties and Third States:

VCLT Article 34 - treaties do not create rights or obligations for third States

VCLT Article 35 - an obligation may arise for a third State from a provision of a treaty if the parties so intend, and the third State expressly accepts that obligation in writing

VCLT Article 36 - a right may arise for a third State from a provision of a treaty if the parties to the treaty intend to confer that right, and if the third State assents

8. Amendment of a Treaty

VCLT Articles 39 – 41 – Art 39: The General Rule– “A treaty may be amended by agreement between the parties. …” Art 40 – Amendments to multilateral treaties – unless treaty otherwise provides, (2) Any

proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty.Party States will also be entitled to become party to amended treaty. Amendment not binding without agreement.

Art 41 – Amendments to multilateral treaties between certain of the parties only.(1) Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or(b) the modification in question is not prohibited by the treaty and: i. does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; ii. does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

B. Treaties as a Principal Source of International Law

ICJ Statute, art 38(1): ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b) international custom, as evidence of a general practice accepted as law;c) the general principles of law recognized by civilized nations;d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’

Formal sources v material sourcesNo hierarchy, but lex specialis rule - a law governing a specific subject matter (lex specialis) overrides a law which only governs general matters. Also jus cogens norms

“Law making treaties” vs “treaty contracts”‐ ‐E.g., Fitzmaurice’s theoretical objection to treaties as a source of law

Law making treaties can generate rules of customary international law – E.g., ‐ North Sea Continental Shelf cases (ICJ, 1969)

C. Treaty Interpretation

General Principles Under Treaty Law: Pre VCLT, three main schools of thought (per Fitzmaurice, ILC Special Rapporteur): the ‐

“intentions of the parties” school; the – “textual” or “ordinary meaning of the words” school; and the “teleological” or “aims and objects” school.

Unilateral InterpretationUnilateral interpretation of one state is not binding on the other party, even if a domestic court (or the legislative or executive branches) interprets the treaty. Unilateral interpretation can lead to principles of estoppel, acquiescence, protest. When state offers its interpretation and other party acquiesces, it's binding.

Modes & Principles of Interpretationi. Textual: ordinary meaning of terms. ii. Intention of parties: travaux preparatoires.

North Sea Continental Shelf cases (ICJ, 1969) Facts: Denmark and Netherlands argue that shared continental shelf should be divided by

principle of equidistance in Art. 6 of Geneva Conv. Germany argues that this is inappropriate because Germany isn’t a party to Convention.

Netherlands and Denmark maintain Convention is part of CIL, even though not based on slow accretion of practice, actually created new process for coastal division.

Issue : Can the negotiation of a treaty give rise to Customary International Law?

Held:

Court rejects arguments of Denmark and Netherlands. Court uses this process to determine :

o 1st, look to rule itself. This is possible but not in all cases. Such provision should be of a fundamentally norm-creating character such as could be regarded as forming the basis of general rule of law. This Article is not of that type; the primary obligation is to effect delimitation by agreement and secondarily the use of equidistance method. Also, parts of the Article are still in controversy.

o 2nd, look at extent of active agreement. Sometimes a rule can become a general rule of IL through a widespread participation in the convention, if it includes states whose interests are specially affected. This convention is not of that type because so many states have not ratified it. This doesn’t mean they necessarily disapprove but it doesn’t show that they approve of it either.

o 3rd, look at length of time convention has been in effect. Only 5 years since convention has been in force. Short period of time not necessarily a bar, but practice should have been extensive and uniform within that time, including by states whose interests are specially affected.

o 4th look at extent of participation. Few cases, and because of certain reasons they can’t be precedent. Even if there were more, 2 conditions would need to be filled: (1) acts must amount to settled practice; (2) must be such as to be evidence of belief that this action is obligatory as IL.

iii. Teleological/purposive o Originalist o Dynamic emergent (e.g., European Convention on Human Rights)

Use different methodologies for different types of treaties. Attraction of intentionalism or purposivism:

Consistent with idea of sovereignty and consent. More consistency over long-term. Treaties difficult to amend.

Attraction of textualism: Temporal dimension of new states joining. Complexity of determining "collective" intent. Tribunals uncomfortable declaring what state intended.

Organs of Interpretation and Interpretation by Parties What mechanism to decide on conflicts within the organization about the scope of

powers granted to the various organs? UN Charter

No provision on its interpretation. Left to each organ of UN to interpret provisions relevant to its activities. Dispute on what the scope of SC and GA powers is. What happens in cases of

conflict? Reasons for no provision:

o Preserve flexibility. o Minimize politics and power in the judiciary, and thus avoid

skepticism of states. Treaty of Rome

Created European Economic Communities and European Court of Justice. Granted authority to ECJ to interpret treaties and determine these type of questions authoritatively.

Contrast to UN Charter. Differences: o Interests are more common, so less conflict of interests, and

less concern about judicial impartiality.o Creation of political community is of a different nature than int’l

community as a whole.

Vienna Convention on the Law of Treaties Article 31(1):

1. Primarily textualist, but in the context of object and purpose. Take into account subsequent agreements or practices between parties and relevant rules of IL.

2. Supplementary means of interpretation (Art 32): a. Intentionalism comes in through the back door.b. Where language would lead to absurd result, can look to travaux preparatoires. c. Tribunals have been hesitant to use travaux b/c poorer nations didn't use to have access

to them.

VCLT Article 31(1) : “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

(3) There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;(c) any relevant rules of international law applicable in the relations between the parties.

(4) A special meaning shall be given to a term if it is established that the parties so intended. VCLT Article 32 - Recourse may be had to supplementary means of interpretation, including the

preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

D. Reservations

1. What is a ‘reservation?’ How is it different from an ‘interpretive declaration?’

Device employed by States in course of expressing consent to be bound Modern law of reservations is based on the ICJ’s advisory opinion in Reservations to the Genocide

Convention [1951] ICJ Rep 15 Art 2 (1) (d) VCLT - "reservation" means a unilateral statement, however phrased or named, made

by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State

Where a unilateral declaration made by a State at time of signing is not intended to exclude or modify the legal effect of any provisions of the treaty it is not a reservation. ‘interpretative declarations’ do not mean contingent upon other States accepting interpretation

Where ‘interpretative declaration’ is made contingent upon other States accepting, then it is a reservation, despite the name formally attached to it by the State issuing the statement.

Reservations enable State to tailor treaty to its own will Almost exclusively to multilateral, but sometimes to bilateral More common practice with bilateral is that proposal to modify/amend terms is taken as a proposal

to amend final text – part of treaty negotiation prior to signature

2. When are reservations permitted?

Custom (before VCLT)

State could not make reservation unless treaty permitted reservation and all other States who had already consented accepted.

Gave other state parties a veto on reservations and on participation of States who wished to make reservation

Multilateral treaties – purpose to effect widespread/universal change. Tension between maintaining integrity of text and securing most widespread adherence

Earlier, priority given to integrity of text From 1930’s onward, shift toward securing widespread acceptance

No

treaty relationship would form between two state where one did not accept the reservation of the other

3. Effect of a Reservation

A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.

When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential

Reservations to the Genocide Convention Case 1951

some States made reservations to 1948 Conv no provision for reservations in text UN GA req ICJ advisory opinion Q1 – reserving State still party if reservation objected to by 1+ parties? Q2 – if yes, what is effect of reservation as between reserving State and those States that

object and those that acceptHeld:

Re: Q1, noted increasing State practice Therefore cannot be inferred that absence of reservation provision in treaty means States

prohibited from making reservations Must consider character of multilateral ament, object and purpose HERE – object and purpose imply intention of GA and States that as many as possible

participate Complete exclusion of all terms restrict scope and application; detract from authority of

moral and humanitarian principles which are Convs basis. Compatibility of reservation with object and purpose is criterion to judge as to whether

reservation will be allowed Q1 – State is party if reservation compatible with object and purpose, otherwise not a

party Q2- objecting party can consider reserving party not a party and accepting party can

consider reserving party a party

NB – only ICJ can determine if reservation compatible with object and purpose (until decided 2(a) &(b) apply)

condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.

VCLT Article 21 - Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

CIL + gen principles will operate as between objecting and reserving parties where treaty provisions excised.

4. Effect of an Impermissible Reservation

Three possibilities:o The treaty is not in force for that State - suggested by Bowett, following Judge

Lauterpacht on a related issue in Norwegian Loans and Interhandel – the incompatibility of the reservation vitiates the State’s consent to be bound by the treaty

o The treaty is in force but for the relevant provision(s) - Redgwell notes that this would accord with much State practice – E.g., recall Netherlands objection to Bahrain’s reservation to the ICCPR: “This objection shall not preclude the entry into force of the Covenant between … the Netherlands and … Bahrain.”

o Such reservations are void and severable - See, e.g., human rights bodies (ECHR/HRC); and also Pellet: a reservation incompatible with the object and purpose of the treaty (within Art 19(c) of the Vienna Convention) is null and void, just as is the case under Article 19(a) and (b) (see ILC Draft Guidelines 3.3, and 4.5.1)

Question : Is it a permissible reservation? Validity of the reservation. Whether the reservation is compatible with the "object and purpose" of

the treaty. VCLT Article 19 - A State may, when signing, ratifying, accepting, approving or acceding to a

treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Treaty can specify whether reservations to certain provisions are or aren't permissible. a. Expressio unius: if treaty says which provisions it is permissible to make a reservation to,

then it is impermissible to make reservations to other provisions.

When the treaty creates in int'l organization, the organ representing that organization decides on permissibility.

Issue of severability Human rights treaties

b. While some rights can be derogated during emergency situations, others are non-derogable rights (e.g., torture). (Overlap between non-derogable rights in treaties and jus cogens in CIL.)

c. Erga omnes are rights which states owe to all other states, and they qualify under CIL even without the treaty.

5. Reservations to Human Rights Treaties

Argument that impermissible reservations to HR treaties severable from reserving State’s consent to be bound ie – reservation disregarded, State still bound

Art 19 (c) + Art 20 = no specific consequences CIL – Reservations to Genocide Convention case – prohibited reservation nullifies consent even

where universal and humanitarian object and purpose

E. Jus Cogens

1. Vienna Convention of the Law of Treaties, Articles 53 and 64 VCLT Article 53 - Treaties conflicting with a peremptory norm of general international law (jus

cogens): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

VCLT Article 64 - Emergence of a new peremptory norm of general international law (jus cogens). If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

F. Breach and Termination of Treaties

1. Breach of Treaty

VCLT Article 60 - Termination or suspension of the operation of a treaty as a consequence of its breach.(1) A material breach of bilateral treaty by one of the parties entitles the other to invoke the breach

as a ground for terminating the treaty or suspending its operation in whole or in part. (2) A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in

part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties;

(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;

(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

(3) A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the

treaty. (4) The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the

event of a breach. (5) Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person

contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

A material breach : Either a repudiation of the treaty not sanctioned by VCLT or a violation of a provision of the treaty essential to the accomplishment of the object purpose – Art 60 (3) ILC ‘material’ cf ‘fundamental’ Must be where breach of serious character Not only breach where State violates provisions central to object/purpose but also breach of

ancillary provision essential to effective execution. Although it does not specify seriousness, better view seems to be that the breach must be

serious

Bilateral – ground for termination/suspension in whole or part – Art 60 (1) Multilateral – range of responses available for non-breaching parties

o Unanimous agreement to terminate or suspend in whole/part either between themselves and breacher OR between all parties – Art 60 (2) (a)

o If 1+ more affected – may not be possible to obtain unanimous agreement. VCLT – permits States specially affected to invoke breach as termination/suspension treaty relations between them and breacher – Art 60 (2) (b)

o If breach radically changes position of every other State re: further performance of obligations non-breacher can suspend (only) treaty in whole/part re: itself – Art 60 (2) (c)

o Not automatic termination. Non-breachers have option to terminate/suspend. State loses option if knows facts and expressly agrees to/acquiesces in treaty’s continuance – Art 45

o Once invoked, procedures in Art 65-67 must be observed before termination/suspension – Art 42 (2)

o State may forfeit right if has prevented breacher from performing obligations by unlawful act. If not a material breach:

o The injured State can take “countermeasures”o Also known as “reprisals” an act which in itself is illegal and has been adopted by one ‐

State in retaliation for the commission of an earlier illegal act by another Stateo E.g., the Naulilaa case (1928), and Gabcikovo Nagymaros ‐ case (1997)o In order to take countermeasures, you need:

sufficient justification in the form of a previous act contrary to international law;

any countermeasures must be preceded by an unsatisfied demand for reparation; and

any countermeasures must also be accompanied by a sense of proportion between the offence and the reprisal.

o No need for the countermeasures to relate to the same treaty obligation which has been breached.

o Since 1945, countermeasures must also be taken consistently with Article 2(4) of the UN Charter.

Unlawful act may be breach of another treaty/CILo Conduct of non-breacher which contributes to creation of situation ‘not conducive’ to

breacher’s performance of obligations may deprive non-breacher of right even if per se NOT unlawful – Gabcikovo

o Treaty is not terminated because State breached international law outside treaty – Gabcikovo

o Only material breach of treaty itself that gives riseo Treaty itself can have provisions within itself defining what a material breach is, or

under what circumstances may a breach be used as a reason to terminate – Art 60 (4)

2. Invalidity of Treaties

Article 46 (internal law): a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was ‘manifest’ and concerned a rule of its internal law of ‘fundamental importance’.

Article 47 (excess of authority): if the State representative exceeded his or her authority in expressing the State’s consent to be bound.

Article 48 (error): if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded, and formed an essential basis of its consent to be bound.

Article 49 (Fraud): if State induced to enter into treaty by fraudulent conduct of another State. Article 50 (Corruption): if State’s consent to be bound procured through the corruption of its

representative directly or indirectly by another negotiating State. Article 51 (Coercion): if the conclusion of the treaty was procured by the coercion of its

representative through acts or threats directed at him or her. Article52 (Coercion): if the treaty was procured by the threat or use of force in violation of the

UN Charter. Article 53 (jus cogens): If the treaty conflicts with a peremptory norm.

Consequences of invalidity: Article 69: (1) “A treaty the invalidity of which has been established under the present Convention is void. The provisions of a void treaty have no legal force.(2) If acts have nevertheless been performed in reliance on such a treaty:a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed.b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. …”

3. Termination and Suspension of the Operation of a Treaty

VCLT, Article 54 : “The termination of a treaty or the withdrawal of a party may take place:a) in conformity with the provisions of the treaty; orb) at any time by consent of all the parties after consultation with the other contracting States.”

VCLT, Article 55 : A treaty will not terminate if the number of States parties falls below what was required for it to enter into force

VCLT, Article 56 : If no provision on withdrawal or termination, a State cannot withdraw/terminate unless (a) parties intended to admit of this possibility, or (b) such a right can be implied from the nature of the treaty

VCLT, Article 57 : treaty can be suspended in conformity with its provisions, or with the agreement of the parties

VCLT, Article 59 : treaty can be considered terminated by later treaty of same subject matter‐ VCLT, Article 60 : bilateral treaty can be terminated in the case of “material breach”, multilateral

treaty can be suspended or terminated in the case of “material breach”

4. Supervening Impossibility of Performance

Subject matter disappears/destroyed rendering performance is impossible State practice to termination (ILC) Art 61 does not automatically terminate, must be invoked as ground. VCLT procedures must be followed Art 42 (2) VCLT, Article 61 – (1) A party may invoke the impossibility of performing a treaty as a ground for

terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.(2) Impossibility of performance may not be invoked by a party as a ground for terminating,

withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

See, e.g., Gabcikovo Nagymaros Project ‐ (1997)

Gabcikovo (Hungary v Slovakia)

Rejected H submission that 1977 treaty with S re: development scheme spanning mutual border was affected by rebus sic stantibus

H argued change – no longer socialist, uneconomic, serious environmental concernsHELD :

socialist orientation material factor in concluding BUT not necessary to carry out objects/purpose

Economic concerns- even though the economic viability of the projects diminished, they were not radically transformed

Treaty took account of environment, but changes in scientific knowledge are not unforeseen

That the principle will only apply in exceptional circumstances, and only where the fundamental change in circumstances is unforeseen

existences of circumstances at time of treaty must constitute an essential basis of consent

5. Fundamental Change of Circumstances

Rebus sic stantibus – CIL Permanently terminated if fundamental change Much narrow doctrine than frustration in K VCLT Article 62 - Fundamental change of circumstances - (1) A fundamental change of

circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. (2) A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. (3) If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

6. Dispute Settlement

VCLT, Art 65 (Dispute settlement) – (1) A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore.”(2) If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed.(3) If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.

If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed:a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary General ‐of the United Nation

G. Use of Treaties by Australian Courts

1. The Relationship Between Public International Law and Domestic Law← Conceptual categories of the relationship between int’l law and municipal law.

o Dualism - IL and ML are not part of the same legal system, so no hierarchical relationship. Way to adopt IL as ML is that when a statute is passed that incorporates the treaty, the statute controls. IL is subject to constitutional limitations.

o Monism - There exists only one legal system, and the different regimes relate to each other in a hierarchy; IL is on top, and ML derives its validity from IL. There can be no constitutional limitations on IL. Constitutions should be organized to facilitate incorporation of IL automatically in domestic law. If there is a conflict b/w ML and IL, IL wins.

o “Harmonisation” approach

2. Implementation of International Law in Domestic Law

Doctrine of transformation - international law only forms a part of municipal law if accepted as such by statute or judicial decisions.

Doctrine of incorporation - The doctrine that rules of international law automatically form part of municipal law. – Sir William Blackstone: “The law of nations, wherever any question arises which is properlythe object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land” (Commentaries, IV, ch 5).

Customary international law – the position in England:o The incorporation approach

Customary international law – the position in Australia:o The transformation approacho Chow Hung Ching v The King (1948) HCA (Dixon J, but cf Latham CJ: ‘[i]nternational [law

is not as such part of the law of Australia … but a universally recognised principle of international law would be applied by our courts’)

o Mabo (No 2): ‘customary international law is an influence on the development of the common law’ (Brennan J)

o A variation on the transformation approach? Nulyarimma v Thompson [1999] FCA – see judgment of Merkel J –

The rule of customary international law has to be clearly established as such. The court then has to consider whether the rule is to be treated as having been

adopted or received into domestic law. (Is it ‘inconsistent with the general policies of [the common] law, or would there be a lack of congruence with its principles’?)

If the rule of customary international law ‘is inconsistent with’ domestic law, no effect can be given to the rule of customary international law without legislation.

Classic statement – Attorney General for Canada v Attorney General for Ontario ‐ ‐ (1937)PC: – “… the making of a treaty is an Executive act, while the performance of its obligations, if they entail alteration of the existence domestic law, requires legislative action. Unlike some

other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law.”

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1– ‘The entry into a treaty by Australia does not change domestic law. The validity of legislation enacted by the Parliament (other than legislation enacted pursuant to s 51(xxix)) does not depend on its being consistent with a convention to which Australia is a party.’

3. Do unincorporated treaties have any relevance in domestic law?

An aid to statutory construction; – Acts Interpretation Act 1901 (Cth), s 15AB - (1) … in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material …(2) the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes … (d) any treaty or other international agreement that is referred to in the Act.”

Dietrich v The Queen (1992) 177 CLR 292 - The High Court observed that UK courts presume that Parliament intended to legislate in accordance with its international obligations

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 – ‘[C]ourts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligation of Australia under an international treaty’ (Brennan, Deane and Dawson JJ)

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - Confirmed the approach in Chu Kheng Lim

Development of the common law Mabo v Queensland (No 2) (1992) 175 CLR 1, para 42 (Brennan J) – “Whatever the justification

advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights … brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.”

Exercise of administrative discretion

NB: the Australian Government (Foreign Minister and Attorney General) issued a joint ‐statement in May 1995 to the effect that ‘it is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision makers.’‐

Interpretation of the Constitution Kartinyeri v Commonwealth (1998): – ‘where there is ambiguity, there is a strong presumption

that the Constitution, adopted and accepted by the people of Australia for their Government, is not intended to violate fundamental human rights and human dignity. … Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law. Likewise, the Australian Constitution, which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community.’ (Kirby J)

Al Kateb v Godwin ‐ [2004] HCA 37: – Kirby J: ‘[N]ational courts, and especially national constitutional courts such as this, have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms’

Cf McHugh J: ‘It is clear that the claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical’

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 – Teoh, a Malaysian citizen, in Australia on temporary entry permit, then married an

Australian citizen Refused permanent residency status in 1990 due to drug related convictions‐ Applied to have decision reconsidered on compassionate grounds Teoh argued that Australia had ratified (but not implemented) the Convention on the

Rights of the Child – ‘in all decisions concerning children, the interests of the child shall be a primary consideration’

Held: Mason CJ and Deane J: – ‘[R]atification by Australia of an international convention is not

to be dismissed merely as a platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in ‐conformity with the convention.’

Topic 2: International Dispute Resolution

A. Introduction, Definition and Types of International Disputes

1. ‘Conflict’ and ‘Disputes’ Distinguished Dispute – a disagreement on a point of law or fact, a conflict of legal views or interests between

two parties. A disagreement is not a dispute if its resolution would not have any practical effect on the relations of the parties.

2. Types of Disputes Boundary/Territorial Conflict Globalization International Business International Politics International Crisis Management International Law International Criminal Law International Security International War Crimes Tribunals Terrorism Development and Conflict

3. Legal and Political Disputes International disputes are major disagreements between two or more nations, or unilateral

declarations by one nation that are not accepted by others. There are many sources of international disputes, including territorial disputes, maritime rights disagreement, conflicts on human rights, and long-held grievances for past actions that have never been fully resolved. International disputes have been the source of military conflict, civilian deaths, and long-standing animosity between nations that may stretch for generations.

Border disputes are quite common in the international community. Borders are often far from the center of power in a country, and may shift from time to time as a result of farming community spread or even topographical changes. The lines on a map made decades before may not always be relevant to the current situation, and in some cases may have been disputed even when the map was originally drawn.

Resource issues are another major source of international disputes. The rights to drill for oil, mine ore, cut timber, and access fresh water sources are important to a country's financial and sometimes literal survival, making these fights quite serious. Many resource conflicts relate back to territorial disputes; determining who owns the land with the resource can help define who has the right to use it. Resource debates also become more complex when discussing natural formations, such as large rivers, that span multiple domains.

The Age of Imperialism left the world with a great deal of conquered nations and areas not happy with their colonial governors. Many international disputes of the 21st century still date back to the expansive era of nation building, with native people or prior owners crying out for

the return of conquered and annexed areas. Gibraltar, for instance, has been an area of contention between the United Kingdom and Spain since the early 18th century, while many of the native people of the area insist on their own rights to govern.

The treatment of refugees, and humans in general, is often the source of grave international disputes. These conflicts lie around issues such as permitting human trafficking, the oppression of women, religious oppression, and ethnic cleansing or genocide attempts. International disputes over human rights issues often bear heavy costs and few simple results; many well-meaning nations that decry human rights violations are left with few choices to change the situation other than plunging in with military aid, which carries its own costs and does not always promise a solution. Many international law scholars hope that attentive management of other types of international disputes can help lead to improved international cooperation over time, which may in turn lead to a more open forum to manage human rights issues.

B. Evolution of the Obligation to Settle Disputes Peacefully

1. Coercive Means of Dispute Settlement Definition of Aggression - General Assembly Resolution: “Aggression is the use of armed force

by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in the definition.”

Jus in bello: laws of war. Jus ad bellow: when it is legal to go to war. Before UN, war widely accepted. Used as a method of collection of debts (“gunboat

diplomacy”). Kellogg League of Nations: Could recommend sanctions and the use of force, but was a failure, because

it didn’t act meaningfully in response to aggression. o Only time economic sanctions applied was against the Italian invasion of Ethiopia in

1935. Failed response to this invasion really doomed the League. o Problem: Left to each member to decide when and whether a breach had occurred or an

act of war had been committed. No one really enforced sanctions/made them strong. Kellogg -Briand Pact (1928). US and Europe party to this treaty. It didn’t stop the war from

happening. “condemn recourse to war for the solution of int’l controversies, and renounce it as an instrument of national policy”.

Nuremberg trials: o defined crimes as “planning, preparation, initiation or waging of a war of aggression, or

a war in violation of international treaties, agreements, assurances, or participation in a common plan or conspiracy for the accomplishment of the foregoing”.

o Judgment of the Int’l Military Tribunal: “to initiate a war of aggression… is the supreme international crime”.

o Defense argued that war was self-defense (Poland excuse): but was judged by the Caroline test (necessity, imminence).

Reprisals – Under law of reprisal, only permissible when they have been preceded by an unsatisfied demand. Imposes the “necessity” and “proportionate” requirement on the use of force as well.

Self- Defense – Article 51 – In Nicaragua case (1986), Court said assuming this is an armed attack and self-defense exception applies, in order for state to engage in collective self-defense on the basis of Article 51, the third party states can’t do it without a request from the country that’s been attacked (plus a declaration that they’ve been attacked).

Court said that sending armed bands could be an act of aggression, but just sending weapons does not constitute an armed attack under Article 51. Notwithstanding that it might violate IL as an invention in internal affairs, it doesn’t give rise to Article 51 right to self-defense. Gives risk to right in El Salvador to take proportional countermeasures, but no right to do it collectively. Collective countermeasures escalate.

Collective use of force only justified under Art 51 when armed attack occurs. Different readings of Article 51 in Cold War and beyond - During Cold War, all the different uses

of force were justified under Article 51. Parallel of the problem of the exception in law of treaties for fundamental change of circumstances. Worry that if you recognize broad exceptions, since there’s no compulsory jurisdiction and no executive with enforcement responsibilities, the exceptions get used as pretexts. The best way to understand the narrow definition of self-defense is that rules must be crystal clear; the vaguer the exceptions, the more likely states will use them as a pretext. Undermine authority of scheme, the basic prohibition on use of force.

The Caroline Incident (1906) – “Inviolable character of the territory of independent states is the most essential foundation of civilisation.” Created the requirements of necessity and imminence. “Necessity of that self defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Proportionality also claimed in some letters: burden of proof to show that even if there was necessity, that they did nothing unreasonable or excessive.

Regional Authorization of Use of Force - Cuban Missile Crisis, 1962: Naval blockade and interdiction by US forces of the delivery of weapons to Cuba. Two questions:

o Can the US claim preventative self-defense? (Not argued at the time, but argued by Wedgewood.)

o Can the OAS authorize such an action? Council of the OAS (Organization of American States) resolution recommending that “the member states . . . take all measures, individually and collectively, including the use of armed force, which they may deem necessary.”

Intervention by Consent - Governments have a right to invite intervention, as long as there is no civil war going on. But if the foreign military is used to restrict political independence, a problem arises. That would contravene 2(4). It’s a different situation when the invited foreign military is helping put down a coup or restore order.

o Grenada case (1984): Governor-General of Grenada invited the US to protect him from a coup and the “vacuum of authority” it left. (This may have been fabricated.) Did he have the constitutional authority to do so? Doubt as to its legal justification.

o Panama case (1989): US actually swore in the democratically elected Panamanian leadership to invite them to overthrow Noriega. Question: who has the power to recognize gov’t? Is there any int’l criteria for recognizing gov’t legitimacy? In the UN, at least, it seems that the SC is the only arbiter of gov’t legitimacy (ie China/Taiwan)

2. Peaceful Means of Dispute Settlement Covenant of the League of Nations, Art 12: Member States ‘agree in no case to resort to war

until three months after the award by the arbitrators or the report by the Council. Kellogg Briand Pact (1928), Art I: States parties ‘condemn recourse to war for the solution of ‐

international controversies, and renounce it, as an instrument of national policy.’ But the Kellogg Briand Pact failed to prevent World War II (1939–1945)‐

Article 2, paragraph 3 provides: all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

GA Resolutions on the obligation to settle disputes peacefully:- UNGA Resolution 2625 (XXV) – Declaration on Principles of International Law

concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations (24 October 1970) –

o Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.

o Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes

o States have a duty to refrain from acts of reprisal involving the use of forceo Every State has the duty to refrain from any forcible action which deprives

peoples referred to in the elaboration of the principle of equal rights and self –determination of their right to self determination ‐

o Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security, and justice, are not endangered

o States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute.

o The parties to a dispute have the duty, in the event of failure to reach a solution by any one of the above peaceful means, to continue to seek a settlement of the dispute by other peaceful means agreed upon by them. …

The General Act of 1928 (The Geneva Act)- Chapter 1: provides for conciliation of legal disputes if the parties so agree- Chapter 2: requires the submission of the dispute (if the conciliation fails) to

arbitration or to the Permanent Court of International Justice- Debate as to whether the act survived the demise of the League of Nations; ICJ

statute mirrors the PCIJ’s and the ICJ is substituted for PCIJ in treaties, etc. Other Dispute Settlement Treaties

- Arbitration tribunals, Hague Conferences, Prize courts

- After the UN Charter came into force, new treaties that dealt solely with peaceful settlement decreased sharply

Dispute Clauses in Treaties on Other Matters- Many treaties dealing with other matters contain broadly stated obligations to settle

disputes through negotiation, conciliation, arbitration or judicial settlement- Some take the form of compromissory clauses providing for judicial settlement at

the ICJ- Some treaties provide for settlement through bilateral negotiations, consultation or

other contacts of the parties. Other contemporary fora

- The ICJ is not the only forum for dispute resolution and been underutilized. Nevertheless, still viewed as the paradigmatic, ideal forum of international dispute resolution.

3. Obligation to Settle Disputes PeacefullyA. Historical development and early precedents

- Hague Peace Conference and Creation of Permanent Court of Arbitration (1899)- Convention on the Pacific Settlement of International Disputes (1899)

o Art I: “With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.”

o Art XV: “International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law.”

o Art XVI: “In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

- Manila Declaration on Peaceful Settlement of International Disputes (1982) (UNGA Resolution 37/10 (1982)) 1. All States shall act in good faith and in conformity with the purposes and principles enshrined in the Charter of the United Nations with a view to avoiding disputes among themselves likely to affect friendly relations among States, thus contributing to the maintenance of international peace and security. … 2. Every State shall settle its international disputes exclusively by peaceful means in such a manner that international peace and security, and justice, are not endangered. … 5. States shall seek in good faith and in a spirit of cooperation an early and equitable settlement of their international disputes by any of the following means: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their own choice, including good offices. …

-

B. UN Charter (Article 33(1), Role of the General Assembly, the Security Council, and the International Court of Justice (‘ICJ’))

- Article 33 of the Charter states:

o The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

o The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

- Article 36(3): In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

- Role of the UN Security Councilo Art 24: In order to ensure prompt and effective action by the United

Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. (2) … the Security Council shall act in accordance with the Purposes and Principles of the United Nations …”

o Art 34: “The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.”

o Art 35(1): – “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.”

o Art 36: – “(1) The Security (Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.…– (3) In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.”

o Art 10: – ‘The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.’

o Art 12: – ‘(1) While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.’

UNSCR 1970 (2011) – Peace and security in Africa “The Security Council, …Expressing grave concern at the situation in the Libyan Arab

Jamahiriya …,1. Demands an immediate end to the violence and calls for steps to fulfil the legitimate

demands of the population;…

28. Decides to remain actively seized of the matter.”

C. Forms of Dispute Settlement

1. Negotiation Forms of negotiation

o Diplomatic channelso Commissions (eg Treaty of Bayonne of 1866)o Summito Public forum, eg UN General Assembly

Limitations of negotiation2. Good Offices Not expressly referred to in UN Charter, Article 33(1) Often the UN Secretary General‐ UN Charter, Art 99: – “The Secretary General may bring to the attention of the Security Council ‐

any matter which in his opinion may threaten the maintenance of international peace and security.” E.g., Tehran Hostages, Afghanistan, Falkland Islands

3. Mediation Definition Limitations of mediation

o Need consent of parties. States may be reluctant as it is an admission that the issue is of international concern (but NB that in some cases, States will readily agree to mediation)

o Need to agree on choice of mediator (eg US in Falkland Islands; the Pope appointed a Cardinal in Beagle Channel dispute; and Algeria in Tehran Hostages crisis)

o But mediation may be attractive for both parties4. Conciliation Institute of International Law (1961): – “A method for the settlement of international disputes of

any nature according to which a Commission set up by the Parties, either on a permanent basis or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them or affording the Parties, with a view to its settlement, such aid as they may have requested.”

Origin in some bilateral treaties in the 1920s Locarno Treaties (1925) Chaco Commission (Bolivia Paraguay, 1929)‐ Franco Siamese Commission (France Siam, 1947)‐ ‐ E.g., VCLT, Arts 65 66‐ Framework Convention on Climate Change, Article 14: – “(1) In the event of a dispute between

any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. …– (5) Subject to the operation of paragraph 2 above [ICJ or arbitration], if after twelve months following notification by one Party to another that a dispute exists between them, the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be submitted, at the request of any of the parties to the dispute, to conciliation.”

5. Fact-Finding and Inquiry 1899 Convention, Art 9: – “In differences of an international nature involving neither honour nor

vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of

diplomacy, should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.”

USS Maine incident (1898) 1899 Convention, Art 9

o Dogger Bank incident (1904)o Red Crusader incident (1961)

Limitations of fact finding and inquiry:‐o Under utilised, e.g., International Humanitarian Fact Finding Commission‐ ‐o Need cooperation of the parties, e.g., ICAO inquiry into KE007o Some suspicion re fact finding (e.g., Israel’s termination of its cooperation with the UN ‐

fact finding mission in Jenin in 2002)‐6. Arbitration/Adjudication7. Other Forms of Diplomacy Involvement of NGOs. E.g., on environmental and human rights issues Secret or ‘Back channel’ diplomacy – E.g., Cuban Missile Crisis (1962); end of Vietnam war; ‐

‘Good Friday’ agreement re troubles in Northern Ireland Religious diplomacy – Quakers, RC Community of Sant’Egidio Business orientated diplomacy – Specialist risk consultancies‐

D. International Court of Justice

1. History Created by the UN Charter (1945), Art 7, Arts 92 96, and the ICJ Statute‐ Essentially the successor body to the PCIJ Covenant of the League of Nations (1919), Art 14: – “The Council shall formulate and submit to

the Members of the League of Nations plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of aninternational character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.”

Advisory Committee of Jurists (met during 1920) to draft PCIJ Statute PCIJ functioned between 1922 – 1945 Quite successful – dealt with 38 contentious cases and delivered 27 advisory opinions Statute of the ICJ modelled very closely on the PCIJ Statute Charter of the United Nations (Articles 92 – 96): THE ICJ

- Article 92: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

- Article 93: All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

- Article 94: Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any

party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

- Article 95: Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

- Article 96: The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

- Role of the ICJ: Art 92: – “The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.”

- ICJ Statute, art 38(1): – “The Court, whose function is to decide in accordancewith international law such disputes as are submitted to it …”

2. Composition This issue had blocked previous efforts to create a permanent international court ICJ Statute, Art 3: – “The Court shall consist of fifteen members, no two of whom may be

nationals of the same State.” ICJ Statute, Art 13(1): – “The members of the Court shall be elected for nine years and may be

re elected …”‐ ICJ Statute, Art 4(1): – “The members of the Court shall be elected by the General Assembly and

by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration, in accordance with the following provisions. …”

“National Groups” of the PCA Hague Convention of 1907, Art 44: “Each Contracting Power selects four persons at

the most, of known competency in questions of international law, of , the highest moral reputation, and disposed to accept the duties of Arbitrator. The persons thus elected are inscribed, as Members of the Court, in a list which shall be notified to all the Contracting Powers by the Bureau. …”

Australia’s “National Group”: Professor Ivan Shearer; Professor Hilary Charlesworth; Chief Justice Robert French; and Stephen Gageler QC.

United Kingdom’s “National Group”: Judge Sir Christopher Greenwood QC; Sir Franklin Berman QC; and Professor Sir Elihu Lauterpacht QC.

ICJ Statute, Art 6: – “… each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and its national academies …”

ICJ Statute, Art 7: – “No group may nominate more than four persons, not more than two of whom shall be of their own nationality. …”

Judges ad hoc ICJ Statute, Art 31(1): – “Judges of the nationality of each of the parties shall retain their right to

sit in the case before the Court.” ICJ Statute, Art 31(2): – “If the Court includes upon the Bench a judge of the nationality of one of

the parties, any other party may choose a person to sit as judge. …”

ICJ Statute, Art 31(3): – “If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.”

Application of the Genocide Convention [1993] ICJ Rep 325, 407, 409 (Sep Op Sir Elihu Lauterpacht): – “… That assumption is, in my opinion, contrary to principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected – though not necessarily accepted – in any separate or dissenting opinion that he may write. …”

3. Access to the ICJ ICJ Statute, Art 34(1): – “Only States may be parties in cases before the Court.” ICJ Statute, Art 34(2): – “The Court … may request of public international organizations

information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.”

ICJ Statute, Art 35(1): – “The Court shall be open to the States parties to the present Statute.” UN Charter, Art 93: – Art 93(1) provides that all members of the UN are parties to the ICJ

Statute. Art 93(2) allows a State which is not a member of the UN to become a party to the ICJ Statute,

as determined by the UNGA on the recommendation of the UNSC.

4. Jurisdiction of the ICJ Effect of the judgment – ICJ Statute, Arts 59 60:– “The decision of the Court has no binding force‐

except between the parties and in respect of that particular case.” – “The judgment is final and without appeal. …”

UN Charter, art 94: – “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.– 2. If any party to a case fails to perform theobligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”A. Contentious Jurisdiction

On what bases can the Court take jurisdiction over a contentious case?i. Optional Clause

ICJ Statute,Art 36(2) - The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:a) the interpretation of a treaty;b) any question of international law;c) the existence of any fact which, if established, would constitute a breach of an international obligation;d) the nature or extent of the reparation to be made for the breach of an international obligation.

[3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time.]”Australia’s declaration“The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary General of the United Nations ‐withdrawing this declaration. This declaration is effective immediately. This declaration does not apply to:a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement;b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation;c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court.”Norwegian Loans [1957] ICJ Rep 9 France’s declaration contained the following reservation: – “… This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic. …”Query the validity of this reservation? See [1957] ICJ Rep 34 (Sep Op Sir Hersch Lauterpacht)

ii. Special Agreement/CompromisICJ Statute Article 36(1) – “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided p y p for in the Charter of the United Nations or in treaties and conventions in force.”Compromis in Gabcikovo Nagymaros Project ‐ [1997] ICJ Rep 7Compromis, Art 2(1): “The Court is requested to decide on the basis of the Treaty and rules and principles of general international law, as well as such other treaties as the Court may find applicable: a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcikovo Project for which the Treaty attributed responsibility to the Republic of Hungary;b) whether the Czech and Slovak Federal Republic was entitled toproceed, in November 1991, to the “provisional solution” and to put into operation from October 1992 this system …;c) what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary.” Compromis, Art 2(2): “The Court is also requested to determine the legal consequences, including the

rights and obligations for the Parties, arising from its Judgment on the questions in paragraph 1 of this Article.”

iii. Compromissory ClauseArticle 36(1) E.g.: – Revised General Act for the Peaceful Settlement of Disputes (1949), Art 17: “All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under article 39, be submitted for decision to the International Court of Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the International Court of Justice.”E.g., – Optional Protocol to the Vienna Convention on Diplomatic Relations, Art I: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”– Iran – United States Treaty of Amity, Article XXI(2): “Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

iv. Transferred Jurisdiction of the PCIJICJ Statute, Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.” ICJ Statute, Art 37: – “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”

v. Forum ProrogatumCorfu Channel [1948] ICJ Rep 15UNSCR 22 (1947): “The Security Council,… Recommends that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court.” Albanian letter dated 2 July 1947: – “[Albania] would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the International Court by unilateral application … [Albania] is prepared notwithstanding this irregularity to appear before the Court.

Nicaragua v US [1984] ICJ Rep 392 Nicaragua alleged many violations by the US of its obligations under international law, including

under the UN Charter Nicaragua based its application (9 April 1984) on: – Nicaragua’s and the US’s optional clause

declarations; and the US Nicaragua bilateral FCN treaty of 1956.‐ Shultz notification of 6 April 1984 – purported to modify the US’s optional clause declaration with

immediate effect Nicaragua’s optional clause declaration was made in 1929 re the PCIJ Nicaragua had signed and ratified (internally) the PCIJ Statute But: Nicaragua had not deposited the instrument of ratification of the PCIJ Statute with the

League of Nations Issues for the ICJ:

1. Was Nicaragua’s optional clause declaration valid, in force, and binding?2. If Nicaragua’s optional clause declaration was valid, in force, and binding, what was the effect of the Shultz letter of 6 April 1984 on the US’s optional clause declaration?

Issue 1 ICJ Statute, Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent

Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

“still in force” vs. “dont la duree n’est pas encore expiree” Relevance of treatment of Nicaragua’s declaration by ICJ and UN; also in previous Honduras v

Nicaragua dispute in 1960 ICJ held that: – Nicaragua’s declaration was valid, but not binding, at the time it was made

– It was made for a period that had not expired – it was “still in force” (“dont la durée n’est pas encore expirée”). When Nicaragua ratified the UN Charter and ICJ Statute, this perfected the declaration

Issue 2 What was the effect of the Shultz letter of 6 April 1984? US declaration said that it would “remain in force for five years and thereafter until the expiration

of six months after notice may be given to terminate the declaration.” US argued the letter was not a “termination”, but a “modification” US argued that, even the letter was a “termination”, the six month notice period did not apply on

the basis of the principle of reciprocity ICJ held that: – “… [optional clause] declarations, even though they are unilateral acts, establish a

series of bilateral engagements with other states accepting the same obligation of compulsory jurisdiction …” (para 59)“The notion of reciprocity is concerned with the scope and substance of the commitments entered into … and not with the formal conditions of their creation, duration or extinction” (para 62). So the US was not able to rely on the principle of reciprocity in terminating its optional clause declaration with immediate effectEven if the US could rely on the principle of reciprocity, there was no right to terminate its declaration with immediate effect – it had to give a reasonable period of notice (and three days was not reasonable!)

Merits judgment is at [1986] ICJ Rep 14 Further US reservation re “multilateral treaties” The United States’ acceptance of the Court’s jurisdiction did not extend to disputes arising under

a multilateral treaty, unless (i) all parties to that treaty affected by the decision are also parties to the case before the Court; or (ii) the United States specially agreed to jurisdiction

The ICJ found that the relevant obligations under the UN Charter also existed, separately, as obligations under customary international law (paras 177 178)‐

prepared notwithstanding this irregularity … to appear before the Court.”B. Advisory Jurisdiction

- Articles 65 and 96- Non-contentious and does not involve states. - General doctrine:

o Court must be asked by a body with authority to ask (GA, SC, or specialized agency).

o Must be a legal question. o If a specialized agency is asking, it must fall within the scope of their actions.

(See Nuclear Weapons case.)o Court asks if: (1) it has jurisdiction, and (2) it is admissible.

The court has never rejected an advisory opinion on the ground that it was improper (inadmissible).

Court rejects the argument that it can’t decide a question that is political in nature. As long as there is a legal question, it can issue an opinion.

o States may participate – may be directly interested parties, but are not technically parties to the proceedings.

- Not a binding opinion - what the court thinks the law requires. There are efforts, however, to make the advisory opinions binding. Even though an advisory opinion isn’t binding, it can help GA or SC resolve political disputes. (See Western Sahara case.)

- Basis of ICJ’s jurisdiction – ICJ Statute, Art 65: 1. “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.”

- Who can request an advisory opinion? UN Charter, Art 96: 1. “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.”

- NB outcome in WHO’s request for an advisory opinion in Legality of Threat or Use of Nuclear Weapons

- Need for consent of States to the dispute? See ICJ Statute, Art 68: “In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.”

- Status of Eastern Carelia, Ser B, (No 5) 27 8 (PCIJ, 1923): – “… It is well established in‐ international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. … Such consent, however, has never been given by Russia. On the contrary, Russia has, on several occasions, clearly declared that it accepts no

intervention by the League of Nations in the dispute with Finland. … The Court therefore finds it impossible to give its opinion on a dispute of this kind.”

- Cf Interpretation of Peace Treaties [1950] ICJ Rep 65, 71: “The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.”

- Cf Western Sahara [1975] ICJ Rep 12, 23 4: – “In [‐ Legal Status of Eastern Carelia], one of the States concerned was neither a party to the Statute of the Permanent Court nor, at the time, a Member of theLeague of Nations, and lack of competence of the League to deal with a dispute involving non member States which refused its ‐intervention was a decisive reason for the Court's declining to give an answer. In the present case, Spain is a Member of the United Nations and has accepted the provisions of the Charter and Statute; it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not objected, and could not validly object, to the General Assembly's exercise of its powers to deal with the decolonization of a non self governing territory and to seek an opinion on questions‐ ‐ relevant to the exercise of those powers.”

- Although: – “In certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. … If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.”

- Can States appoint judges ad hoc in advisory proceedings? – Yes: see, e.g., ICJ Statute, Art 68, and ICJ Rules, Art 102(3)

- Advisory opinions are not binding

C. Provisional Measures- ICJ Statute, Art 41: 1. “The Court shall have the power to indicate, if it considers that

circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.”

- Considerable flexibility in orders that can be made, although they must seek to preserve the rights of the parties which form the subject matter of the dispute

- The ICJ must have prima facie jurisdiction over the merits of the dispute (Interhandel [1957]

- ICJ Rep 105, 117 (Sep Op Lauterpacht));- There must be a risk that “irreparable prejudice” will be done to the rights of the

parties in dispute (Fisheries Jurisdiction [1972]- ICJ Rep 12, 16); and- There must be “urgency” (Passage through the Great Belt [1991] ICJ Rep 12, 17).- E.g., Convention on the Elimination of All Forms of Racial Discrimination (Georgia v

Russia), (Order of 15 October 2008): – “[O]n a request for the indication of

provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded” (para 85); – “[T]he power of the Court to indicate provisional measures under Article 41 of its Statute “presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings” …” (para 128); – “[T]he power of the Court to indicate provisional measures will be exercised only if there is urgency in the sense that there is a real risk that action prejudicial to the rights of either party might be taken before the Court has given its final decision …” (para 129).

- Provisional measures have binding force – LaGrand (Germany v United States) [2001] ICJ Rep 466, para 102: – “[T]he context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered inthe exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows … that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court.”

D. Third Parties- ICJ Statute, Art 62: – “1. Should a State consider that it has an interest of a legal

nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.2. It shall be for the Court to decide upon this request.”

- ICJ Statute, Art 63: – “1. Whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith.2. Every State so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.”

- There is no need for the intervening State to demonstrate a jurisdictional link: Land, Island and Maritime Frontier Dispute [1990] ICJ Rep 92: –

o The ICJ’s power to permit intervention does not come from consent to its jurisdiction, but it derives that consent which States give, by becoming parties to the ICJ Statute.

o Intervention exists for the very purpose of permitting a State which, because of the absence of a jurisdictional link, cannot become a party to the case.

o The intervener does not become a party to the case. It is not bound by the decision, and only acquires the right to be heard.

o It does not appoint a judge ad hoc.

- “Indispensable” third parties

- The same issue arose in East Timor (Portugal v Australia) [1995] ICJ Rep 90

E. Review of Security Council Action

E. International Arbitration

Monetary Gold removed from Rome [1954] ICJ Rep 19 Complex facts. Was the gold “Albanian monetary gold”? If so, three States had potential

claims to it:(i) Albania;(ii) Italy (because of the nationalisation of Italian assets by Albania); and(iii) the United Kingdom (because of the non payment by Albania of the ‐

compensation owed to the United Kingdom arising out of the Corfu Channel case). Italy commenced proceedings against the United Kingdom, United States and France, but

then made a jurisdictional objection to its own claim on the basis that Albania was not present

ICJ held: “In the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorising proceedings to be continued in the absence of Albania.”

East Timor (Portugal v Australia) [1995] ICJ Rep 90 East Timor is a former colony of Portugal, which abandoned it in 1975 East Timor was then annexed by Indonesia, and Australia (among very few States)

recognised Indonesian sovereignty Australia and Indonesia entered into the Timor Gap Treaty in 1989 re the joint exploration

and exploitation of the hydrocarbon resources in the Timor Gap Portugal commenced ICJ proceedings against Australia in 1991 Australia argued that the ICJ was being asked to rule on the rights and obligations of a

State that was not party to the proceedings (i.e., Indonesia) ICJ held (East Timor [1995] ICJ Rep 90, 102): “[I]n the view of the Court, Australia’s

behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject matter of the Court’s decision would necessarily be ‐a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia.”

Lockerbie [1992] ICJ Rep 3 Bombing of Pam Am Flight 103 UK and US suspected Libyan nationals were responsible and sought their extradition Libya refused and said it would prosecute in Libya, and asked for UK and US assistance in

providing evidence UK and US sought (and obtained) UNSCRs; Libya commenced proceedings under the

Montreal Convention ICJ held that obligations arising under UNSCRs trump any other international obligations

(UN Charter, Art 103) Also:

o The fact that the SC is actively considering a matter does not preclude the ICJ from having jurisdiction

o No clear answer on whether the ICJ can perform judicial review of SC action

Hague Convention (1899), Art XV: – “International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law.”

Hague Convention (1899), Art XVI: – “In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

Forms of international arbitrationo 1. Inter State disputes See, e.g., www.pca cpa.org‐ ‐o 2. Mixed arbitrations – See, e.g., Iran US Claims Tribunal, also claims against States ‐

under contracts and bilateral investment treaties: http://ita.law.uvic.cao 3. Private international arbitration (international commercial arbitration). Disputes

between private entities from different countries (usually contractual in nature) Advantages of international arbitration - Why would States choose to go to international

arbitration over the ICJ?o Confidentiality/secrecyo Choice of the arbitrators (NB the detailed appointment procedure which is set out in,

e.g., various rules of arbitration, e.g., that which exists under Annex VII of UNCLOS; NB also the deadlock-breaking procedure if one State is recalcitrant)

o No intervention by third partieso Special agreement / compromis / terms of referenceo Effect of the award (but see also ICJ Statute, Art 59)

F. Role of International Organisations

1. UN Secretary-General

- At the time the United Nations was established in 1945, the UN Charter described the secretary-general broadly as the "chief administrative officer." Beyond that, the type of leader needed, how to select the candidate, and the person's length of tenure were left open to interpretation. The UN website stipulates that the secretary-general be "equal parts diplomat and advocate, civil servant and CEO." These guidelines also require that the secretary-general uphold the values of the UN, even at the risk of challenging member states. Despite the broad and vague requirements of the job, some informal norms are observed in appointments for the post. Secretary-generals usually come from countries considered small- to medium-sized neutral powers, are career diplomats, and serve no more than two five-year terms. Regional rotation is observed, with nationals of the five permanent members of the Security Council--the United States, China, Russia, France, and the United Kingdom--ineligible.

- Does the secretary-general play a political role? Yes. Despite the open-ended nature of the job description, the position calls for less of a clerk than did the role of director of the League of Nations, the UN's predecessor. Article 99 of the UN Charter says the secretary-general "may bring to the attention of the Security

Council any matter which in his opinion may threaten the maintenance of international peace and security." This provision allows a secretary-general to choose between playing an activist role or more of a bureaucratic role

- What are the main responsibilities of the secretary-general?o Administrative. The secretary-general oversees the UN Secretariat, which

handles UN operations, including research, translation, and media relations.o Human Resources. The hiring of under-secretaries for approximately fifty

UN posts, including the heads of funds such as UNICEF and UNDP, falls under the purview of the secretary-general.

o Peacekeeping. The secretary-general's office shoulders responsibility for overseeing peacekeeping missions and appoints the under-secretary in charge of that department, involving more than 110,000 personnel serving in twenty operations as of September 2008. Although the General Assembly or Security Council may initiate a peacekeeping mission, operational control rests with the Secretariat.

o Mediation. This function involves the secretary-general's role as a mediator between parties in conflict. As part of his "good offices" role the secretary-general makes use of his independence and impartiality as the head of a global organization to prevent and stop the spread of conflict.

2. UN Security Council- The Security Council responds to crises around the world on a case-by-case basis

and it has a range of options at its disposal. It takes many different factors into account when considering the establishment of new peacekeeping operation, including:

o Whether there is a ceasefire in place and the parties have committed themselves to a peace process intended to reach a political settlement;

o Whether a clear political goal exists and whether it can be reflected in the mandate;

o Whether a precise mandate for a UN operation can be formulated;o Whether the safety and security of UN personnel can be reasonably

ensured, including in particular whether reasonable guarantees can be obtained from the main parties or factions regarding the safety and security of UN personnel.

- The Security Council establishes a peacekeeping operation by adopting a Security Council resolution. The resolution sets out that mission’s mandate and size.

- The Security Council monitors the work of UN Peacekeeping operations on an ongoing basis, including through periodic reports from the Secretary-General and by holding dedicated Security Council sessions to discuss the work of specific operations.

- The Security Council can vote to extend, amend or end mission mandates as it deems appropriate.

- Under Article 25 of the Charter, all UN members agree to accept and carry out the decisions of the Security Council. While other organs of the UN make recommendations to Member States, the Council alone has the power to take decisions which Member States are obligated to implement.

- Functions:

o to maintain international peace and security in accordance with the principles and purposes of the United Nations;

o to investigate any dispute or situation which mightlead to international friction;

o to recommend methods of adjusting such disputes or the terms of settlement;

o to formulate plans for the establishment of a system to regulate armaments;

o to determine the existence of a threat to the peace or act of aggression and to recommend what action should be taken;

o to call on Members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression;

o to take military action against an aggressor;o to recommend the admission of new Members;o to exercise the trusteeship functions of the United Nations in "strategic

areas";o to recommend to the General Assembly the appointment of the Secretary-

General and, together with the Assembly, to elect the Judges of the International Court of Justice.

3. Other Regional Bodies- UN Charter, Art 33(1): – “The parties to any dispute, the continuance of which is

likely to endanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

- According to the article 33 of the Chapter VI of the UN Charter, regional bodies are regarded as agencies of the first resort in dealing with disputed among their own members. The preliminary version of the UN Charter stipulated that "the existence of regional bodies for dealing with peace and security should not be precluded".

- Acts of regional organisations are capable of providing evidence of opinio juris in support of both general and local CIL.

o Eg. Nicaragua (Merits) Case @ [188-89] - In ascertaining existence of opinio juris re: CIL against threat/use of force in international relations ICJ took into account several UNGA resolutions, resolution of 1928 6th International Conference of American States, declaration of 1975 Conference on Security and Cooperation in Europe

- UN Charter, Art 52: 1. “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.3. […]

4. This Article in no way impairs the application of Articles 34 and 35.”- UN Charter, Art 53 – “1. The Security Council shall, where appropriate, utilize such

regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council … .”

- UN Charter, Art 54 – “The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.”

G. Contemporary Developments

1. Proliferation of International Courts and Tribunals- International disputes prior to 1899 were adjudicated almost exclusively between

States, with some exceptions. For instance, the mixed tribunals established pursuant to the Jay Treaty of 1794 between the U.S. and Great Britain allowed for individual claims to be brought before the tribunal. The move to the second phase came with the decision in 1899 to establish the Permanent Court of Arbitration (PCA), which was done "with the objective of facilitating an immediate recourse to arbitration for international differences" that could not be settled by diplomacy. The permanent nature of the PCA makes recourse possible at all times as opposed to setting up new institutions as incidents arise. Even if the PCA is not considered a permanent tribunal with permanent judges, it is regarded as an important point in the history of modern international dispute settlement. A truly ‘international' court would have had to wait until the end of World War I. The third phase in the history of international adjudication commenced in the 1940s and 1950s with the establishment of the International Court of Justice (ICJ), the European Court of Justice (ECJ), the European Commission and Courts of Human Rights. This phase lasted up to the early 1980s, and encompassed also the establishment of the International Centre for the Settlement of Investment Disputes (ICSID). The fourth phase was decisively initiated by the creation of the International Tribunal for the Law of the Sea (ITLOS). Although the ITLOS became operational in 1996 the adoption of the 1982 Convention for the Law of the Sea signaled an entry in to a new phase. This phase is characterized by compulsory jurisdiction and the granting of binding decision making power to judicial institutions, as is now also reflected in the provisions of the WTO's Dispute Settlement Understanding (DSU). In this last phase the creation of the International Tribunal for the Law of the Sea provoked a lot of debate among scholars, judges and practitioners.

- Put in context, this proliferation of international courts and tribunals has to be seen as a part of the greater picture of the proliferation of international organizations. This in turn needs to be seen in the context of a growing interdependence between countries and international cooperation that necessitates an institutional mechanism to regulate these new areas of cooperation. There is one fundamental overarching explanation that is usually summarized in catch words such as globalization and interdependence and which effectively means that an increasing number of state functions can no longer be performed in isolation. Hence

globalization has its own share in the creation of more international courts and tribunals.

- In most cases the proliferation of international organizations directly contributed to the proliferation of international courts and tribunals. For instance, the proliferation of administrative tribunals and those tribunals created under the auspices of regional integration agreements are some of such cases. While the need for new courts could be justified by the creators in each case, the fact that they are attached to international organizations instead of standing alone is explained more by economic justifications than other considerations. The most practical method of financing a tribunal is through the budget of an international organization, thus tapping the purses of member States who may not be interested in contributing to an international judiciary as such.

- In most cases, While the above general statements could apply to the whole phenomenon, it is also important to look for specific reasons that are often invoked for the creation of multiple international courts and tribunals. How do we go about it? One appropriate question that could be raised is why States create many more new international tribunals instead of strengthening the "principal judicial organ" of the United Nations?

- At the same time, in addition to the unsuitability of the ICJ for the needs of some countries, there are other reasons responsible for the creation of alternative judicial forums. These include, among others, the fact that there have been some fundamental changes in international law and relations, and the success of some courts as an inspiration for the creation of more courts.

2. Fragmentation of International Law- Fragmentation is understood to be a consequence of the expansion and

diversification of international law. It is not considered a new concept, but rather a characteristic of international law which is inherently a law of a fragmented world. The International Law Commission notes that the subject of fragmentation can be examined from two perspectives: procedural and substantive. Procedural issues relate to “institutional questions of practical coordination, institutional hierarchy and the need for international courts and tribunals to pay attention to each other’s jurisprudence. Substantive concerns refer to fragmentation of the law itself into “special regimes which might be lacking in coherence or are in conflict with each other.” The ILC defines three patterns of conflict relevant to the issue of substantive fragmentation. These are: (a) conflict between different understandings or interpretations of general law, (b) conflict arising when a special body deviates from the general law not as a result of disagreement as to the general law but on the basis that a special law applies, and (c) conflict arising when specialised fields of law seem to be in conflict with each other.

- Due to the proliferation of international dispute resolution bodies in the absence of an overarching framework or plan, numerous conflicts concerning multiple jurisdiction have arisen. Where more than one international court or tribunal is seized of the same dispute, even though presented with the same material facts, conflicting decisions can result, causing fragmentation of international law.

Topic 3: Law of the Sea

A. Development of the Modern Law of the Sea

There are two competing notions in relation to the law of the sea:o freedom of the seas

In international law, this notion is associated with Huig de Groot (1583-1645) Grotius was a Dutch lawyer, author of Mare Liberum (1609) Freedom of the seas was already an identifiable concept in international law,

but Grotius developed it to its greatest depth. The basic principle of Grotius’ thesis was: “Every nation is free to travel to every

other nation, and to trade with it”. This natural and universal law was not affected by custom. Customary use of an

area of the sea could not override natural law. Therefore, since neither laws of possession or conquest, nor custom prevailed over the natural freedom of the seas, the seas were free to all.

o dominion over the seas Grotius’ theory of freedom of the seas was particularly badly received in

England William Wellwood, a Scottish lawyer, published “An Abridgement of All Sea-

Lawes” in 1613. He argued for a 100-mile territorial sea, fisheries protection, and for freedom on the high seas only.

James 1 was very displeased with Grotius’ work, and requested a book in reply. Selden, who was facing prison for a previous book, was delighted to comply, but when the book came to James 1 for approval, he decided it was too controversial in the light of his necessary alliances with the other Protestant powers in Europe, notably Holland.As for legal principle, Selden formulated a theory of customary law as the basis for the appropriation of certain parts of the sea: “...that the sea by the law of nature and nations is not common to mankind but is capable of private dominion or property equally with the land ....by the customs of almost all and the more Noble nations that are known to us, such a dominion of the sea is everywhere admitted.”

What emerged by default as much as by reasoned argument, was a ‘ middle’ position in which nations maintained a territorial sea of varying width, and treated the ‘high seas’ outside their respective territorial seas as free.

This has remained the position until the present, and has now been codified in the United Nations Conference on the Law of the Sea treaty (UNCLOS), which provides for a territorial sea of 12 nautical miles (nm) and Exclusive Economic Zones of 200 nm. This means that very large parts of the world’s seas are now appropriated, or capable of appropriation, by individual nations.

Customary Law of the Seao The content of the customary law of the sea is somewhat nebulous - perhaps including:

to have a territorial sea- also ways a big issue for states- how much do they own?

to determine its breadth- now days 12 nautical miles to protect national fisheries-protection of their food and trade to have freedom on the high seas- the high seas are getting smaller and smaller

today, because of the other areas, EEZ etco Some states say that all water should be territorialised o Whatever the actual content, it is generally agreed that this customary law was codified

in the conventions which emerged from the 1958 and 1960 Law of the Sea (UNCLOS I and II) meetings.

o AND that UNCLOS III represents the customary law today UNCLOS I AND II 1958/60

o Convention on the Territorial Sea and the Contiguous Zone (came into force 10-9-64)o Convention on the High Seas ( 30-9-62)o Convention on the Continental Shelf ( 10-6-64)o Convention on Fishing and Conservation of the Living Resources of the High Seas ( 20-3-

66)o However, few ratifications (average 40) mean the 1958 Conventions have doubtful

international validityo they did not fix a maximum limit to which a country’s territorial sea could be extendedo they did not describe a definite boundary for the continental shelf

UNCLOS III began because of concern over the possible exploitation of the resources of the sea-bed and the ocean floor on a competitive basis

It was believed by some that this would lead to neo-colonialism, diplomatic conflict and war The resources of the sea-bed and the ocean floor were described by the UN as “the legacy of all

human beings” Moratorium on exploitation of resources of the sea-bed and the ocean floor (UN Resolution

2574D (XXIV)). The smaller states could not have the advantage of the common sea bed, the big states could mine and reap the benefits of the sea bed and this wasn’t just.

This hasn’t become a large issue because there has not been enough advancement of technology yet, however at the time it was considered important

Declaration of Principles governing sea-bed and ocean floor (UN Resolution 2749(XXV)): this made the deep sea bed “the common heritage of humankind” the resources of these areas will be shared by all (this is a very 60’s and 70’s approach)

Inaugurated in December 1973, following UN Resolution 3067 (XXVIII) with the first session being held in Caracas, Venezuela, from June 20, 1974.

Purpose: to establish an equitable international regime covering a wide range of LOS issues including: territorial sea, contiguous zone, continental shelf, exclusive economic zone, high seas, fisheries, conservation of resources, etc.

Covers almost everything dealing with the law of the sea in one convention, it is useful on that basis. Whether it is equitable is open for interpretation

Opened for signature on 10 December 1982 at Montego Bay, Jamaica 119 countries signed immediately (a record). Now, 157 countries have signed. Ratifications required for entry into force: 60 60th ratification: Guyana, on 16-11-93. Therefore, entered into force on 16-11-94. Currently, 149 ratifications

Problems with the new UNCLOSo The USA voted against UNCLOS at the final session of negotiationso Regan was a Republican and he wanted no part of part Xi of UNCLOS o The US was unhappy with Part XI, on the deep-sea mining question (States can go and

exploit the sea-bed but all profits must be shared)o US said that we were the ones with the technology and we are the ones who will go out

and reap the benefits, they will not share the profitso BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard Mineral

Resources Act 1980(USA)o Other countries (UK, former USSR) followed suit at the time the UK and USSR were the

super powers and they were not keen to share with the other countries and if America could, so could they (very childish)

o Art 309 – forbids reservations or exceptions, so states like the US don’t sign the whole lot because of an issue with one part

o Art 312 – no amendments for 10 years after UNCLOS enters into force (which would be 2004 but then there was the amendment to Part XI in breach of this rule)

o Art 155 – review of Part XI not to take place until 15 years after first commercial production from sea bed <> not even close to this, but Part XI has already been amended

o Australia’s position on UNCLOS Australia signed on 10-12-82 Australia ratified on 5 October 1994 Australia signed the Part XI agreement on 28 July 1994 Australia ratified the Part XI Agreement on 5 October 1994

B. Maritime Zones

1. Baselines UNCLOS, Art 5: – “Except where otherwise provided in this Convention, the normal baseline for

measuring the breadth of the territorial sea is the low water line along the coast‐ as marked on large scale charts officially recognized by the coastal State.”‐

Cf, Anglo Norwegian Fisheries Case ‐ [1951] ICJ Rep 116

Cf Qatar v Bahrain (ICJ, 2001) “212. The Court observes that the method of straightbaselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions are primarily that either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity. 213. The fact that a State considers itself a multiple islandState or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. …”

2. Internal Waters UNCLOS, Art 8: 1. “Except as provided in Part IV, waters on the landward side of the baseline of

the territorial sea form part of the internal waters of the State.2. Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.”

No right of innocent passage through internal waters

Anglo Norwegian Fisheries Case‐ (1951) Norwegian decree identifying its “fishery zone” (1935) Norway claimed a territorial sea of four miles, and used “straight baselines” to delimit

sections of its territorial sea, using “drying rocks” above water level at low tide, claiming “well established historical title” and “geographical conditions” relevant to the Norwegian coast (fjords, sunds, “skjaergaard”)

Where was the baseline?o The heavily indented coastline, or the “skjaergaard”?

How was the baseline to be drawn?o – “Trace parallele” methodo – “Courbe tangente” methodo – Straight baseline method

UNCLOS, Art 7 – Straight baselines1. “In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. […]3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. […]5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. […]”

Coastal State has the right to regulate access to its ports: UNCLOS, Arts 25(2), 211(3), 255. – (Cf. Saudi Arabia v Aramco ((1963) 27 ILR 117, 212); – In support, see O’Connell: “If a country chooses to close its ports altogether that would seem

to be an act of sovereignty, but if it opens them, it must open them … arguably … to all comers, ‐on a nondiscriminatory basis”: O’Connell, The International Law of the Sea (1984) vol II, p 848);

– See also Nicaragua [1986] ICJ Rep 14, 111. Coastal State has unlimited prescriptive and enforcement jurisdiction in the internal waters But they usually leave jurisdiction over criminal acts taking place on foreign ships in internal

waters to the flag State of the ship concerned, unless the act disturbs the “public peace” of the coastal State

– R v Anderson (1868) 11 Cox’s Criminal Cases 198 – Wildenhus’s Case, 120 US 1 (1887) – “… But if crimes are committed on board of a character to

disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of local laws for their punishment, if the local tribunals see fit to assert their authority. … The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction.”

Archipelagos and archipelagic States are covered by Part IV of UNCLOS (remember Art 8(1)?) – Art 8(1): “Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.”

Examples of archipelagic States include Indonesia and the Philippines UNCLOS, Art 47: 1. “An archipelagic State may draw straight archipelagic baselines joining the

outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. …”

UNCLOS, Art 48: – “The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.”

UNCLOS, Art 50: – “Within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters, in accordance with articles 9, 10 and 11.”

Rivers – UNCLOS, Art 9: – “If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low water line of its banks.”‐

Bays – UNCLOS, Art 10(2): – A bay is a “well marked indentation whose penetration is in such ‐proportion to the width of its mouth as to contain land locked waters and constitute more than ‐a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi circle whose diameter is a line drawn across ‐the mouth of that indentation.”

UNCLOS, Art 10(4): – “[i]f the distance between the low water marks of the natural entrance ‐points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low water marks, and the waters enclosed thereby shall be considered as internal waters.”‐

UNCLOS, Art 10(5): – “Where the distance … exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.”

Bays belonging to more than one State:o – Not covered by UNCLOSo – The territorial waters should simply follow the sinuosities of the coast, subject to any

special agreement. Historic bays:

o – Not covered by UNCLOSo – “[G]eneral international law does not provide for a single ‘regime’ for ‘historic waters’

or ‘historic bays’, but only for a particular regime for each of the concrete, recognised cases of ‘historic waters’ or ‘historic bays’. It is clearly the case that, basically, the notion of historic rights or waters and that of the continental shelf are governed by distinct legal regimes in customary international law.” Tunisia/Libya [1982] ICJ Rep 18, 73 4.‐

UNCLOS, Art 11: – “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral g part of the harbour system are regarded as forming part of the coast.”

3. Territorial Sea For many years, no agreement on the breadth of the territorial sea (3 – 200 nautical miles) UNCLOS, Art 3: – “Every State has the right to establish the breadth of its territorial sea up to a

limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”

Still quite diverse practice in 2002 If States are opposite or adjacent to each other:

o UNCLOS, Art 15: – “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. …”

o – This does not apply where “it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

Right of innocent passage – UNCLOS, Art 17: – “Subject to this Convention, ships of all States, whether coastal or land locked, enjoy the right of innocent passage through the territorial sea.”‐

What is “innocent passage”? – UNCLOS, Art 19(1): “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.”

“19(2). Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

o a) any threat or use of force […];o b) any exercise or practice with weapons of any kind;o c) any act aimed at collecting information to the prejudice of the […] security of the

coastal State; o d) any act of propaganda aimed at affecting the defence or security of the coastal State;o e) the launching, landing or taking on board of any aircraft;o f) the launching, landing or taking on board of any military device;o g) the loading or unloading of [anything] contrary to the customs, fiscal, immigration or

sanitary laws and regulations of the coastal State;o h) any act of wilful and serious pollution contrary to this Convention;o i) any fishing activities;o j) the carrying out of research or survey activities;o k) any act aimed at interfering with any systems of communication or any other facilities

or installations of the coastal State;o l) any other activity not having a direct bearing on passage.”

Does it cover warships, or merely merchantships?o – US USSR Joint Declaration‐

o – Wording of UNCLOSo – Contrary State practiceo Corfu Channel case [1949] ICJ Rep 4 – Innocent passage through international straits

(and territorial sea) UNCLOS, Art 21 – Coastal State may adopt laws and regulations re innocent passage, e.g.: – the

safety of navigation and the regulation of maritime traffic;– the protection of navigational aids and facilities and other facilities or installations;– the protection of cables and pipelines; and– the conservation of the living resources of the sea,etc

If the coastal State suspects non innocent passage, UNCLOS, Art 25(1): – “The coastal State may‐ take the necessary steps in its territorial sea to prevent passage which is not innocent.”

And UNCLOS, Art 25(3): – “The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.”

Territorial sea – coastal State jurisdiction UNCLOS, Art 27 (Criminal jurisdiction): “(1) The criminal jurisdiction of the coastal State should

not be exercised on board a foreign ship passing through the territorial sea to arrest any person

or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

o a) if the consequences of the crime extend to the coastal State;o b) if the crime is of a kind to disturb the peace of the country or the good order of the

territorial sea;o c) if the assistance of the local authorities has been requested by the master of the ship

or by a diplomatic agent or consular officer of the flag State; oro d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or

psychotropic substances.” UNCLOS, Art 28(1): – “The coastal State should not stop or divert a foreign ship passing through

the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.”

NB difference in approach between common law and civil law Straits - UNCLOS, Art 38: – “In straits … all ships and aircraft enjoy the right of transit passage,

which shall not be impeded …” – “if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.”

UNCLOS, Art 45: the right of transit passage cannot be suspended on the grounds of security E.g., Strait of Tiran in Red Sea

4. Contiguous Zone UNCLOS, Art 33 – Coastal State may exercise control necessary to prevent infringement of its

customs, fiscal, immigration or sanitary laws, and to punish infringements of the above laws committed within the territorial sea

May not extend more than 24 nautical miles from the baseline

5. Continental Shelf North Sea Continental Shelf [1969] ICJ Rep 3, 22: – “… the rights of the coastal State in respect of

the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right.– In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. … Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is ‘exclusive’ in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.”This reflected almost verbatim in UNCLOS, Art 77

Extent of the continental shelf: UNCLOS, Art 76(1): – “(1) … the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline …”– “(3) … the continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.” – (5) the maximum you can extend a continental shelf is 350 nautical miles, or 100 miles seawards of the 2500m isobath.

6. Exclusive Economic Zone UNCLOS, Art 55: – “… an area beyond and adjacent to the territorial sea, subject to the specific

legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.”

UNCLOS, Art 57: – States can claim an EEZ of up to 200 nautical miles UNCLOS, Art 56: – In the EEZ, Coastal States have “sovereign rights for the purpose of exploring

and exploiting, conserving and managing the natural resources, whether living or non living, of ‐the waters superjacent to the seabed and of the seabed and its subsoil ...”

7. High Seas UNCLOS, Art 86: – “The provisions of this Part [‘the High Seas’] apply to all parts of the sea that

are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.”

Freedom of the high seas UNCLOS, Art 87(1): “The high seas are open to all States, whether coastal or land locked. ‐

Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. …”

The freedom of the high seas comprises, inter alia:o a) freedom of navigation;o b) freedom of overflight;o c) freedom to lay submarine cables and pipelines, subject to Part VI [‘the Continental

Shelf’]; o d) freedom to construct artificial islands and other installations permitted under

international law, subject to Part VI [‘the Continental Shelf’];o e) freedom of fishing, subject to the conditions laid down in section 2;o f) freedom of scientific research, subject to Parts VI [‘the Continental Shelf’] and XIII

[‘Marine Scientific Research’]. UNCLOS, Art 87 is not an exhaustive list

o – E.g., weapons testing, exercises, naval manoeuvres, observing other States’ naval manoeuvres

UNCLOS, Art 88: – “The high seas shall be reserved for peaceful purposes.” What about nuclear weapons testing? UNCLOS, Art 89: – “No State may validly purport to subject any part of the high seas to its

sovereignty.” High seas – Nationality of ships - UNCLOS, Art 90: – “Every State, whether coastal or land‐

locked, has the right to sail ships flying its flag on the high seas.” UNCLOS, Art 91: 1 “1. Every State shall fix the conditions for the grant of its nationality to ships,

for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

3. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.”

NB the “genuine link” requirement There are several notorious “open registry States”, or “flags of convenience” (e.g., Liberia,

Panama) – Concerns about this practice, abuse of concept of nationality, etc UN Convention on Conditions for the Registration of Ships (1986) – States parties must have a

competent and adequate national maritime administration which has to ensure that ships flying its flag comply with international rules concerning the safety of ships and marine pollution (Art 1).

Under the UN Convention on Conditions for the Registration of Ships (1986), States parties must include in their registry of shipping: – information identifying those owning and managing its ships and hence accountable for them (Art 6); – ensure that its nationals participate to a required degree in either the ownership or the manning of its ships (Arts 8 and 9); and– ensure that those responsible for the management of its ships are able to meet operational financial obligations (Art 10).

Nationality of ships ‐ M/V Saiga Owned by a Cypriot company, managed by a Scottish company, chartered to a Swiss

company Master and crew of the Saiga were all Ukrainian Previously been registered as a Maltese vessel Six month certificate of provisional registration as a St Vincent and Grenadines registered

ship expired on 12 September 1997; a permanent certificate was not issued until 28 November 1997

The Saiga supplied gas oil to Senegalese and Greek fishing vessels in the Guinean EEZ It was arrested by the Guinean coast guard outside the Guinean EEZ What was the nationality of the Saiga? Saint Vincent and the Grenadines argued that it was SVG:

– inscription ‘Kingstown’ as the port of registry on the stern of the vessel;– documents on board;– ship’s seal which contained the words ‘Saiga Kingstown’; and– the then current charter party which recorded the flag of the vessel as SVG.‐– Also conduct of SVG.

Was there a “genuine link” for the purposes of Article 91(1)? – ITLOS: the purpose of the requirement was to secure more effective implementation of the duties of the flag State and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.

Jurisdiction on the high seas UNCLOS, Art 92(1): – “Ships shall sail under the flag of one State only and, save in exceptional

cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. …”

UNCLOS, Art 94(1): – “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

UNCLOS, Arts 95 6: – Warships and other government ships in non commercial service have ‐ ‐immunity

What if there is a collision on the high seas between two ships of different nationality, and which concerns the criminal or disciplinary responsibility of the master or any other member of the ship’s crew?

UNCLOS, Art 97: only the flag State, or State of which the master or crew are nationals, has jurisdiction over such criminal or disciplinary proceedings. This altered the traditional position as set out by the PCIJ in the SS Lotus Case (1927)

… but see UNCLOS, Art 110: “1. … [A] warship which encounters on the high seas a foreign ship [other than a ship entitled to immunity …] is not justified in boarding it unless there is reasonable ground for suspecting that:

o a) the ship is engaged in piracy;o b) the ship is engaged in the slave trade;o c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has

jurisdiction under article 109; o d) the ship is without nationality; oro e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the

same nationality as the warship.” Jurisdiction on the high seas Right of “hot pursuit”‐ UNCLOS, Art 111: – 111(1): Right to pursue foreign vessel where coastal State considers it has

violated laws of coastal State. Pursuit must be commenced when foreign vessel is in internal waters, archipelagic waters, territorial sea, or contiguous zone, and may only be continued on the high seas if the pursuit is not interrupted. If pursuit is commenced in the contiguous zone, it can only be for breach of rights for the protection of which the zone was established– 111(2): right applies mutatis mutandis to EEZ and continental shelf– 111(3): right ceases as soon as foreign ship enters territorial sea of another State– 111(4): must first give visual or auditory signal to the vessel to stop (which it can see or hear)– 111(5): right can only be exercised by naval vessel or military aircraft (or other vessels/planes in public service)

Jurisdiction over international crimes on the high seas Art 99 – “Every State shall take effective measures to prevent and punish the transport of

slaves…” Art 100 – “All States shall cooperate to the fullest possible extent in the repression of piracy on

the high seas …” (piracy defined in Article 101) Art 105 – “On the high seas, or in any other place outside the jurisdiction of any State, every

State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. …”

Art 108(1) – “All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.”

Art 109(1) – “All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. …”

Deep seabed - UNCLOS, Art 1(1): “the Area” is “the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.”

Art 136 – the Area and its resources are the “common heritage of mankind” Art 137 – “No State shall claim or exercise sovereignty or sovereign rights over any part of the

Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof.”

C. Delimitation of Maritime Boundaries

1. Equidistance and Special Circumstances Delimitation of the territorial sea – see UNCLOS, Art 15: – “Where the coasts of two States are

opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

Delimitation of the continental shelf and EEZ – mixture of UNCLOS and customary international law

Art 74 (re the EEZ): 1. “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.”

Art 83 (re the continental shelf): 1. “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.”

2. Equitable Principles and Relevant Circumstances Achieving an “equitable solution” UNCLOS, Art 74(1), and Art 83(1) adopt the idea of an “equitable solution” when delimiting the

EEZ / continental shelf: – “The delimitation of the [exclusive economic zone/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”

What is an “equitable solution”? – The formula “avoids mentioning equidistance, equitable principles, special or relevant circumstances – and is virtually devoid of content.” (Malcolm Evans, ‘The Law of the Sea’, in Malcolm Evans (ed), International Law (2nd ed, 2006) 623, 647

– “… there has to be room for differences of opinion about the interpretation of articles which, in a last minute endeavour at the Third United Nations Conference on the Law of the Sea to get agreement on a very controversial matter, were consciously designed to decide as little as possible. It is clear, however, that both Articles [74(1) and 83(1)] envisage an equitable result.” (Eritrea/Yemen, Second Phase: Maritime Boundary, Award of 17 December 1999, para 116)

North Sea Continental Shelf (1969) Dispute between Germany and Denmark, and Germany and the Netherlands Continental Shelf Convention (1958), Art 6(2) provided that: – “… In the absence of

agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baseline from which the breadth of the territorial sea of each State is measured.”

ICJ held that the delimitation was to be effected: – “in accordance with equitable principles, and taking account of all the relevant circumstances in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the seas, without encroachment on the natural prolongation of the land territory of each other.”

And negotiations on the delimitation should take into account the following considerations:1. the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;2. so far as known or readily ascertainable, the physical and geological structure, and natural resources, eg. of the continental shelf areas involved;3. the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its Coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region.

Others are equally skeptical: – “What is disturbing about the ‘equitable principles to produce equitable results’ formula is not that that there are choices being made to achieve a result – but that the result is nowhere articulated other than the self serving description of ‘equitable’.” ‐(Dame Rosalyn Higgins, Problems and Process – International Law and How we Use it (1993) 227.) – “[T]he doctrine of the equitable result … if allowed its head, leads straight into pure judicial discretion and a decision based upon nothing more than the court’s subjective appreciation of what appears to be a ‘fair’ compromise of the claims of either side.” (Sir Robert Jennings, ‘Equity and Equidistance Principles’ (1986) Annuare suisse de droit international 27, 31 – Relation to Art 38(2) of the ICJ Statute? (“This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”)

How do international tribunals apply this rule? Maritime Delimitation in the Area between Greenland and Jan Mayen [1993] ICJ Rep 38, 66, para

64: – “Prima facie, a median line delimitation between opposite coasts results in general in an equitable solution …. It is of course this prima facie equitable character which constitutes the reason why the equidistance method, endorsed by Article 6 of the 1958 Convention, has played an important part in the practice of States. The application of that method to delimitations between opposite coasts produces, in most geographical circumstances, an equitable result. There are however situations and the present case is one such – in which the relationship ‐between the length of the relevant coasts and the maritime areas generated by them by application of the equidistance method, is so disproportionate that it has been found necessary to take this circumstance into account in order to ensure an equitable solution.”

Eritrea/Yemen, Maritime Delimitation: Second Phase, Award of 17 December 1999, para 131: – “It is a generally accepted view, as is evidenced in both the writings of commentators and in the jurisprudence, that between coasts that are opposite to each other the median or equidistance line normally provides an equitable boundary in accordance with the requirements of the Convention, and in particular those of its Articles 74 and 83 which respectively provide for the equitable delimitation of the EEZ and of the continental shelf between States with opposite or adjacent coasts.”

Land and Maritime Boundary between Cameroon and Nigeria [2002] ICJ Rep 303, 441, para 288: – “The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdiction is to be determined. They are expressed in the so called equitable principles/relevant circumstances ‐method. This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an equitable result.”

What factors/relevant circumstances can be taken into account?o No limit to the factors/circumstances that can be taken into account:o North Sea Continental Shelf [1969] ICJ Rep 3, 50. They may include:

– Configuration of the coast (North Sea Continental Shelf cases);

– Presence of islands capable of generating claims to a continental shelf or EEZ (small islands may be given less effect, e.g., Scilly Isles in the Anglo French ‐Continental Shelf case);

– Ensuring that areas appertaining to each State are not disproportionate to the ratio between the lengths of their ‘relevant coasts’ adjoining the area;

– Prior conduct of the parties; – Security considerations; – Geological factors are not considered relevant where the distance between

the coasts is less than 400nm; – Economic factors are generally not considered to be relevant.

o Maritime Delimitation in the Black Sea (Romania v Ukraine) Treaty between USSR and Romania of 1949 delimited a 12 nm territorial sea ‐

around Serpents’ Island Treaty between Romania and Ukraine on the Romanian Ukrainian State Border ‐

Régime, Collaboration and Mutual Assistance on Border Matters (2003) delimited land boundary and the territorial sea

No agreement on the continental shelf or EEZ ICJ considered:

– The lengths of the respective coastlines of the two States: Romania’s was 248km, and the Ukraine’s was 705 km

– The size of the maritime area of each State (although it confirmed that the purpose of delimitation is not to apportion equal shares of the area, nor indeed proportional shares, and the the calculation of the relevant area does not purport to be precise and is approximate)

The ICJ’s methodology Maritime Delimitation in the Black Sea, paras 115 122:‐ 1. First, the ICJ would draw an equidistance line; 2. Second, the ICJ would consider whether there are factors calling for

the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result;

3. Third, the ICJ would verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) did not lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths, and the ratio between the relevant maritime area of each State by reference to the delimitation line.

Applying the ICJ’s methodology Phase 1: – The provisional equidistance line was constructed from the

most appropriate points on the coasts, with particular attention being paid to protuberant coastal points situated nearest area to be delimited

Phase 2: – Lengths of coasts, enclosed nature of Black Sea, presence of Serpents’ Island, conduct of the parties (concessions, fishing, naval patrols), cutting off effect, security considerations – none relevant in this case

Phase 3: – “the continental shelf and exclusive economic zone allocations are not to be assigned in proportion to length of respective coastlines. Rather the Court will check, ex post facto, on the equitableness of the delimitation line it has constructed.” – no need for alteration here (Length: Romania : Ukraine = 1:2.8; Area: Romania : Ukraine: 1.2.1)

D. Dispute Settlement1. Introduction to the Regime Established by Part XV Dispute settlement under UNCLOS Compulsory dispute settlement regime one of the major important achievements of UNCLOS UNCLOS, Art 309: – “No reservations or exceptions may be made to this Convention unless

expressly permitted by other articles of this Convention.” No reservations can be made to Part XV (which contains the dispute settlement regime)

UNCLOS, Art 279: – “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.”

UNCLOS, Art 280: – States may agree to settle a dispute by peaceful means of their own choice. UNCLOS, Art 281(1): – “If the States Parties which are parties to a dispute concerning the

interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.”

Southern Bluefin Tuna case Convention for the Conservation of Southern Bluefin Tuna, Art 16: – “1. If any dispute

arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.– 2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.”

Japan argued (first argument): – The dispute between it and Australia and New Zealand fell solely within the SBT Convention, and not within the scope of UNCLOS. The Southern Bluefin Tuna Convention was a lex specialis that subsumed, discharged and eclipsed any provisions of UNCLOS.

Australia/NZ argued: The SBT Convention did – not "cover" the relevant obligations of the Parties under UNCLOS.– The SBT Convention was intended to be a means of implementing UNCLOS obligations in respect of highly migratory species, not a means of escaping those obligations.

Tribunal held: – Agreed with Australia/NZ – there is frequently a “parallelism of treaty obligations, such that disputes can arise under more than one treaty. Here there was a dispute under the SBT Convention, as well as under UNCLOS.

Japan argued (second argument): – In any event, the conditions of Art 281 have not been met. Under Art 281, the procedures provided for in Part XV of UNCLOS apply only:

o a) where no settlement has been reached by recourse to such means, ando b) the agreement between the parties “does not exclude any further procedure”.

The Tribunal agreed with Japan: – The first condition in Art 281 was satisfied, but as for the second condition, the Tribunal found that Article 16 of the SBT Convention excluded any further procedure, including UNCLOS dispute settlement: “the absence of an express exclusion of any procedure in Article 16 is not decisive.”– Cf Sir Kenneth Keith’s separate opinion: – “13. [D]oes article 16 “exclude” the UNCLOS set of obligations? It does not say that it does. … But does it impliedly exclude the UNCLOS procedures? …– 17. The requirement is that the Parties have agreed to exclude any further procedure for the settlement of the dispute concerning UNCLOS. The French and Spanish texts have the same wording and structure. They require opting out. …– 18. The word any in the final phrase of article 281(1) is also significant since it requires the exclusion to be of any other procedure available between the Parties such as those under the compulsory jurisdiction of the International Court or other treaties for the peaceful settlement of disputes. …”– “18 (cont). … As the Virginia Commentary (para 281.5) puts it, the phrase “envisages the possibility that the Parties, in their agreement to resort to a particular procedure, may also specify that this procedure shall be an exclusive one and that no other procedure (including those under Part XV) may be resorted to”. Such strong and particular wording would appear to be required, given the presumption of the parallel and overlapping existence of procedures for the peaceful settlement of disputes appearing in international judicial practice and the general law of treaties …– 19. The need for clear wording to exclude the obligations to submit to the UNCLOS binding procedure, beyond the wording found in article 16, is further supported by other particular provisions of Part XV and by the pivotal role compulsory and binding peaceful settlement procedures played and play in the preparation and scheme of UNCLOS”

2. The International Tribunal for the Law of the Sea (‘ITLOS’) and Annex VII Tribunals Art 283: – parties to a dispute have an obligation to exchange views, or consult, with a view to

settling the dispute. Art 284: – parties can agree to refer the dispute to conciliation. Art 287: 1. “When signing, ratifying or acceding to this Convention or at any time thereafter, a

State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

o a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

o b) the International Court of Justice;o c) an arbitral tribunal constituted in accordance with Annex VII;o d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of

the categories of disputes specified therein.2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5.3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.”

3. Provisional Measures Art 290(1): – “If a dispute has been duly submitted to a court or tribunal which considers that

prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”

Art 290(5): – “Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section … the International Tribunal for the Law of the Sea … may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. …”

4. Prompt Release Art 73(2): – “Arrested vessels and their crews shall be promptly released upon the posting of

reasonable bond or other security.” Art 292(1): – “Where the authorities of a State Party have detained a vessel flying the flag of

another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be

submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.”

Art 292(3): – “The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. …”

See, e.g.: o – M/V Saiga, Judgment of the ITLOS of 4 December 1997o – Volga, Judgment of the ITLOS of 23 December 2002

Right of hot pursuit (Art 111) (revision)o 1. The coastal State must have good reason to believe that the ship has violated the

laws and regulations of that State (Art 111(1));o 2. The hot pursuit must be commenced when the foreign ship or one of its boats is

within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, or the EEZ/continental shelf if the violation of the coastal State’s applicable laws is suspected (Art 111(1) and (2));

o 3. The hot pursuit may only be continued outside the territorial sea or the contiguous zone (or EEZ/continental shelf) if the pursuit has not been interrupted (Art 111(1) and (2)).

o 4. The ship giving the order to stop does not need to be likewise within the territorial sea or the contiguous zone or EEZ/continental shelf (Art 111(1) and (2)).

o 5. If the foreign ship is in the contiguous zone/EEZ/continental shelf, hot pursuit may only be undertaken if there has been a violation of the rights for the protection of which the relevant zone was established (e.g., re the contiguous zone: to prevent infringements of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea: Art 33) (Art 111(1) and (2));

o 6. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State (Art 111(3));

o 7. Hot pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship (Art 111(4)); and

o 8. Hot pursuit may be exercised only by warships or military aircraft or clearly marked government vessels (Art 111(5)).

o • See, e.g., M/V Saiga (No 2), Judgment of the ITLOS of 1 July 1999

E. Contemporary Issues

1. Piracy in the Gulf of Aden Civil war in Somalia 1990 Due to lack of effective government, pirates have had free reign in attacking shipping off the

Somali coast Attacks have been made in the territorial sea and beyond, up to 750 nm from the coast

Targets include cruise liners, tankers, ships carrying international aid, fishing and recreational vessels

From 2005 2007, attacks/attempted attacks off Somali coast exceeded incidents for the Malacca‐ Straits and the South China Sea combined

From 1992 2000, Somalia had no representation at the UN‐ Transitional Federal Government (‘TFG’) in power since 2000, but lacks control over most of

Somalia’s territory Pirates operate from command centres on the Somali coast Pirates use “mother ships” from which they launch their smaller vessels to attack ships in the

EEZ and the high seas After the attack, the ships retreat into the Somali territorial sea In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181 hostages were taken g

(with 760 still in captivity) In 2005, there were 35 attacks; in 2010, there were 219 attacks By 5 February 2011, there had already been 35 attacks in 2011 Capture of M/V Rozen (World Food Programme vessel) in February 2007; vessel and crew of 12

held hostage for 40 days M/V Victoria (WFP) also attacked in May 2007, one crew member was killed Le Ponant (April 2008) attacked – French military responded (with Somalia’s consent) Worldwide ship hijackings (Jan – Sept 2009):

o – 34 hijackingso – 559 hostageso – 294 total attacks

Gulf of Aden (Jan – April 2009):o – 10 hijackingso – 38 attemptso – 26 interventions, 10 arrests

As at 5 February 2011 (off Somali coast):o – 7 hijackingso – 35 attemptso – 758 crew being held hostage

Average ransom: USD 5.8 million Average length of hijacking 60 70 days (but see “Win Far 161”, held for 10 months)‐ Legal Framework for Combating Piracy – UNCLOS Art 100 (duty to cooperate): – “All States shall cooperate to the fullest possible extent

in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”

UNCLOS, Art 101 (definition): – “Piracy consists of any of the following acts:o (a) any illegal acts of violence or detention, or any act of depredation, committed for

private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; …

o (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

o (c) any act of inciting or of intentionally facilitating … (a) or (b).” UNCLOS, Art 103 (pirate ship): – “A ship or aircraft is considered a pirate ship or aircraft if it is

intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. …”

UNCLOS, Art 105 (jurisdiction): – “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. – The courts of the State which carried out the seizure may decide upon the penalties to be imposed….”

UNCLOS, Art 110 (right of approach): – “[A] warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity … is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy …”

Definition of piracy under UNCLOS (Art 101):o – An act of violence;o – On the high seas;o – For private ends;o – By a private vessel against another vessel;o – And includes inciting and intentionally facilitating piracy (including ‘cruising with

intent’).o NB that there are limitations with this Definition

Where should pirates be prosecuted? – Under UNCLOS and customary international law, all States have universal jurisdiction to capture and prosecute pirates – but there is no obligation to do so

– So States might not have adequate national laws – States might be reluctant to prosecute if there are no “links” – States might have impediments under their constitution or national law from being involved in

efforts to combat piracy Legal Framework – SUA Convention - Convention on the Suppression of Unlawful Acts Against

the Safety of Maritime Navigation (1988)o – Art 3: it is an offence to ‘seize or exercise control over a ship by force or threat

thereof’o – Art 4: not an offence where the offence took place within one State’s territorial sea,

and the vessel was not scheduled to navigate beyond that territorial seao – Art 5: States parties have an obligation to legislate and criminalise acts committed

against Article 3 of SUA: a) against or on board their flag vessels; b) within their territory, including their territorial sea; and c) by one of their nationals.

SUA Convention, Arts 8 and 10: – If a vessel detains a vessel or suspect under the SUA Convention, any port State which is a State party must accept delivery of the suspect and extradite or prosecute if there are reasonable grounds for suspecting they have committed an offence

Summary of UNCLOS and SUA UNCLOS: – no obligation on States to create national offences

– need “two vessels”, and piracy must be “for private ends” – no provision for States capturing pirates to transfer them to other States – automatic right to board on the high seas SUA: – obligation on States to create national offences – obligation to accept delivery of pirates, and to extradite or prosecute – no automatic right to board on the high seas – haphazard implementation by different States

NB also … International Convention Against the Taking of Hostages (1979) International Convention for the Suppression of the Financing of Terrorism (1999) Djibouti Code of Conduct on Repressing Piracy off Somalia (2009), which promotes further

cooperation between States bordering the Indian Ocean IMO created an Internationally Recognised Transit Corridor (“IRTC”), and a Maritime Security

Patrol Area (“MPSA”) in the Gulf of Aden And several UNSC Resolutions … UNSCRs UNSCR 1816: – authorised interdiction operations in Somalia’s territorial sea (cf UNCLOS – EEZ

and high seas only), and use “all necessary means to repress acts of piracy and armed robbery at sea”

Limitations: o – Only for six monthso – It did not make the international law of piracy directly applicable in Somali territorial

waterso – No solution re jurisdiction to try pirates

UNSCR 1838:o – exhorted States whose naval vessels operate on the high seas off the coast of Somalia

to use on the high seas the necessary means, in accordance with international law, as reflected in UNCLOS, for the repression of acts of piracy

UNSCR 1846:o – Extended UNSCR 1816 for 12 monthso – Called on States and regional organisations with the capacity to do so ‘to take part

actively in the fight against piracy and armed robbery at sea off the coast of Somalia’o – Noted provisions of SUA Convention

UNSCR 1851: – “States and regional organisations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia … may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG”

UNSCR 1897: – renewed authorisations in UNSCR 1846 and UNSCR 1851 Current response

o 24 naval vessels patrolling the areao – Coalition Taskforce 150/151 ‘Enduring Freedom’, EU, NATOo For prosecution of pirates: – Prisoner transfer agreements have been agreed

(EU/UK/US/Denmark – Kenya; EU/UK – Seychelles; China – TFG; France – Puntlano Trials have taken place in Kenya, US, Netherlands, France (but Kenya no longer

accepting transfers of pirates) Challenges ahead

o Different naval forces have different mandateso States who capture pirates reluctant to detain themo Practical difficulties with prosecutions (cf UNSCR 1918 (2010))o Legal difficulties – e.g., application of ECHR? Refugee Convention?o Workload of States carrying out prosecutions (see Kenya’s decision on 1 April 2010)o So “catch and release” policy re implemented?‐o International Criminal Tribunal for pirates?o Best hope: restoration of effective government in Somalia?o See Letter from S G to President of UNSC dated 24 January 2011, and appointment of ‐

Jack Lang as Special Adviser on Piracy; see also Jack Lang’s Report (S/2011/30)

2. Whaling in the Southern Ocean See Australia’s Application Instituting Proceedings against Japan before the ICJ (31 May 2010) There is a long running contest between whaling states and anti whaling states whether there ‐ ‐

should be (i) limited whaling, or (ii) no whaling This has been a source of contention for the International Whaling Commission (‘IWC’) IWC’s moratorium on commercial whaling International Convention on the Regulation of Whaling (1946) did not originally contain such a

ban, but the moratorium was adopted in 1982 Japan initially objected to the amendment (so was not bound by it), but it withdrew its objection

by the end of 1987 Japan launched a “scientific whaling” programme for minke whales ICRW, Art VIII(1): – “Notwithstanding anything contained in this Convention any Contracting

Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”

Japan is not the only country with active whaling programmes Iceland and Norway continue to engage in commercial whaling Another exception is “aboriginal subsistence whaling”, which is permitted (Denmark, Russian

Federation, St Vincent and the Grenadines, United States) Australia has long criticised Japan for increasing annual takes that amount to over 1,000 minke

whales Election promise of Rudd Government (Federal Election in 2007) Rudd Government continued to pursue diplomacy, but when this failed, ICJ proceedings

launched in May 2010 Australia argues that “JARPA II” is breach of Japan’s obligations under ICRW, CITES, and CBD JARPA I commenced in 1987 88. From 1987 2005, over 6,800 minke whales were taken‐ ‐ JARPA II (2005 – ) more than doubles the take of minke whales, to around 850 per year (cf the

2010 2011 season, which was abandoned early, with less than 100 whales), and also includes ‐humpback whales and fin whales

See Australia’s Application Instituting Proceedings Obligations allegedly breached by Japan: International Convention on the Regulation of Whaling:

o – (i) failure to observe in good faith the moratorium on commercial whaling;o – (ii) failure to observe prohibition on whaling for humpback and fin whales in Southern

Ocean Whale Sanctuaryo – Japan’s catch cannot be justified as “scientific whaling” under Art VIII(1) due to: (i)

scale of programme; (ii) lack of relevance for conservation of stocks; (iii) risks presented to targeted species and stocks

o – This is essentially an “abuse of rights” argument Convention on International Trade in Endangered Species:

o – The taking of humpback whales under JARPA II violates Arts II and III(5) of CITESo – Under Art II(1), trade in Appendix I species “must be subject to particularly strict

regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.”

o – Under Art III(5), Appendix I species can only be introduced into a State subject to a number of strict conditions certified by relevant state authorities

Convention on Biological Diversity:o – Violation of Arts 3, 5, and 10(b)o – Art 3 requires States to ensure that activities under their jurisdiction and control do

not cause harm to other states or to areas beyond national jurisdiction.o – Art 5 requires States, “as far as possible and as appropriate,” to cooperate in the

conservation and sustainable use of biological diversity beyond national jurisdiction.o – Art 10(b) requires States, “as far as possible and as appropriate,” to adopt measures

that avoid or minimise adverse impacts on biological diversity.

PART 1: HISTORY OF LAW OF THE SEA AND UNCLOS

1. Historical Background to the Law of the Sea

There are two competing notions in relation to the law of the sea:

freedom of the seas

dominion over the seas

2. World Decides to create UNCLOS I then II then III!Customary Law of the Sea

The content of the customary law of the sea is somewhat nebulous - perhaps including: to have a territorial sea- also ways a big issue for states- how much do they own? to determine its breadth- now days 12 nautical miles to protect national fisheries-protection of their food and trade to have freedom on the high seas- the high seas are getting smaller and smaller today,

because of the other areas, EEZ etc Some states say that all water should be territorialised

Whatever the actual content, it is generally agreed that this customary law was codified in the conventions which emerged from the 1958 and 1960 Law of the Sea (UNCLOS I and II) meetings.

AND that UNCLOS III represents the customary law today

UNCLOS I AND II 1958/60

Convention on the Territorial Sea and the Contiguous Zone (came into force 10-9-64) Convention on the High Seas ( 30-9-62) Convention on the Continental Shelf ( 10-6-64) Convention on Fishing and Conservation of the Living Resources of the High Seas ( 20-3-66) However, few ratifications (average 40) mean the 1958 Conventions have doubtful international

validity they did not fix a maximum limit to which a country’s territorial sea could be extended they did not describe a definite boundary for the continental shelf

UNCLOS III – BEGINS!

UNCLOS III begin because of concern over the possible exploitation of the resources of the sea-bed and the ocean floor on a competitive basis

it was believed by some that this would lead to neo-colonialism, diplomatic conflict and war the resources of the sea-bed and the ocean floor were described by the UN as “the legacy of all

human beings”

Moratorium on exploitation of resources of the sea-bed and the ocean floor (UN Resolution 2574D (XXIV)). The smaller states could not have the advantage of the common sea bed, the big states could mine and reap the benefits of the sea bed and this wasn’t just.

This hasn’t become a large issue because there has not been enough advancement of technology yet, however at the time it was considered important

Declaration of Principles governing sea-bed and ocean floor (UN Resolution 2749(XXV)): this made the deep sea bed “the common heritage of humankind” the resources of these areas will be shared by all (this is a very 60’s and 70’s approach)

Inaugurated in December 1973, following UN Resolution 3067 (XXVIII) with the first session being held in Caracas, Venezuela, from June 20, 1974.

Purpose: to establish an equitable international regime covering a wide range of LOS issues including: territorial sea, contiguous zone, continental shelf, exclusive economic zone, high seas, fisheries, conservation of resources, etc.

Covers almost everything dealing with the law of the sea in one convention, it is useful on that basis. Whether it is equitable is open for interpretation

Opened for signature on 10 December 1982 at Montego Bay, Jamaica 119 countries signed immediately (a record). Now, 157 countries have signed. Ratifications required for entry into force: 60 60th ratification: Guyana, on 16-11-93. Therefore, entered into force on 16-11-94. Currently, 149 ratifications

Problems with the new UNCLOS- THE AMERICANS WHINGE!

The USA voted against UNCLOS at the final session of negotiations Regan was a Republican and he wanted no part of part Xi of UNCLOS The US was unhappy with Part XI, on the deep-sea mining question (States can go and

exploit the sea-bed but all profits must be shared) US said that we were the ones with the technology and we are the ones who will go out and

reap the benefits, they will not share the profits BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard Mineral Resources

Act 1980(USA) Other countries (UK, former USSR) followed suit at the time the UK and USSR were the

super powers and they were not keen to share with the other countries and if America could, so could they (very childish)

Then, an interim regime between France, Germany, UK, and the US was formed - the Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed, Washington, 2-9-82. –

A polymetallic nodule is a parts of the seabed are covered with big blobs, these are called polymetallic nodules filled with certain metals of all sorts of kinds. The question becomes how do we get it? As yet there is no way to mine the deep sea bed

However, with the amount of ratifications UNCLOS three became a workable treaty on the law of the sea

Art 309 – forbids reservations or exceptions, so states like the US don’t sign the whole lot because of an issue with one part

Art 312 – no amendments for 10 years after UNCLOS enters into force (which would be 2004 but then there was the amendment to Part XI in breach of this rule)

Art 155 – review of Part XI not to take place until 15 years after first commercial production from sea bed <> not even close to this, but Part XI has already been amended

Australia’s position on UNCLOS

Australia signed on 10-12-82 Australia ratified on 5 October 1994 Australia signed the Part XI agreement on 28 July 1994 Australia ratified the Part XI Agreement on 5 October 1994

Part 2: ZONES

Zones and the ‘Area’

Baseline

Continental shelf

3nm

12nm 24nm 200nm

High seas

The AreaThe Area

EEZ

Territorialsea

Zones

MARITIME ZONES- a list of all the zones recognised by UNCLOS III Territorial Sea Contiguous Zone- next door to the territorial sea- 12-24 NM away from land again it is

not territory Exclusive Economic Zone (EEZ) 24-200 is called the EEZ and this gives you certain rights

over the water, however, it is not territory Continental shelf Deep seabed (the Area) Archipelagic waters – difficulties in having a lot of different islands

High seas the water above the area

Territorial sea

Article 2(1):

“The sovereignty of a coastal State extends, beyond its land territory and internal waters ...to an adjacent belt of sea, described as the territorial sea”

Article 3:

“Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles...”

Australia’s territorial sea

The Seas and Submerged Lands Act 1973(Cth) was amended in 1990 to enlarge Australia’s territorial sea to 12 nautical miles from the baseline

This took effect on 20 November 1990 This is subject, under UNCLOS, to rights of innocent passage (see Articles 17-19). Australia's complication is that it has Qld, NSW etc, each constituent part sets to control the first

three NM beyond the baseline, the rest of it is Australian territory, this jurisdiction is shared, however, in an international sense this means nothing. Australia’s territorial sea is only 12 NM. Over the low water mark is Australia, in all of Australia no matter what state.

there is a right to innocent passage allowed through the territorial sea under Article 17 UNCLOS. Such passage is defined in Article 19 and must not be prejudicial to the peace, good order or

security of the coastal State as represented by any of the activities listed in Article 19(2) The Corfu Channel case (United Kingdom v Albania)

Contiguous zone

Article 33(2):

“The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.”

Notes: In this zone, a State may exercise control over customs, fiscal matters, immigration, and sanitary

laws. Important today because of terrorism, this is important over who enters etc The fiscal matters includes tax and is normally aimed at drug smugglers This contiguous zone is also important for controlling the spread of bird flu

Australia’s contiguous zone

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to refer to a new contiguous zone (ss3(1), 13A-C)

The definition inserted into the Act is that of Article 33 of UNCLOS

Exclusive Economic Zone or EEZ

Article 57

“The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines...”

Article 56 – Rights in EEZstates that in this zone a State has the right to:

o explore and exploit natural resources (living or non-living)o conserve and manage these resourceso establish structures (pipe lines national parks)o conduct marine scientific research o protect the marine environmento This area you have sovereign rights over, they are not in the terms of owning the

land but you can still exercise these rights

Australia’s EEZ

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to declare Australia’s EEZ (ss3(1), 10B)

The definition inserted into the Act is that in Article 57 of UNCLOS All rights over the EEZ are vested in the Crown in right of the Commonwealth (s10A) This claim does not affect the AFZ dealt with in the Fisheries Management Act 1991 (Cth). The

AFZ is now defined consistently with the EEZ (ie it is 200 nm in width).

Continental shelf

Article 76(1):

“...comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea...to the outer edge or the continental margin, or to a distance of 200 nautical miles from the baselines...”

Article 76(5):

“The...outer limits of the continental shelf...shall not exceed 350 nautical miles from the baselines... or shall not exceed 100 nautical miles from the 2500 metre isobath...”

A state may have claim for some rights to the area up to there continental shelf. The rights would be akin to those offered for the EEZ

Australia’s continental shelf

The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to reflect the UNCLOS definition of the continental shelf

This claim exceeds our continental shelf claim made under the previous (1958) Convention The full claim will be made to the Commission on the Limits of the Continental Shelf in 2004 This Commission considers a claim over the area and decides on its validity The claim is for at least 200 nm, and extending to 350nm where possible, but still has not

been finalised as yet. There is a time limit of 10 years for finalising continental shelf claims (Art 76 (8) and Annex II)

High seas

Traditionally, all areas beyond territorial waters were high seas UNCLOS has altered that principle by extending territorial claims and sovereign rights over the

sea However, the high seas remain free – under Art 87 all states have freedom of navigation,

overflight, fishing, scientific research (subject to the rest of UNCLOS) plus the freedom to lay submarine cables and pipelines and to construct artificial islands and other installations

No state can validly claim sovereignty over any part of the high seas – Art 89

Under the high seas Under the high seas is the AREA, which is the deep sea bed as referred to in Part XI of

UNCLOS. This is a common heritage area, in the same way as the moon and outer space are (by

Treaty), and in the same way that many would like Antarctica to be.

Zones around Australia

They give to Australia greatly increased jurisdiction - about 1.5 times our land area. The areas in pink have very important economic and strategic value. We have been able to lay claim to all the zones around our Antarctic ‘territory’,

Zones and neighbours We are too far from NZ, but our zones overlap to some extent with Indonesia and PNG. We have been able to settle any problems so far by separate treaty - The Torres Strait Treaty

and the Australia-Indonesia Delimitation Treaty (plus the Timor Sea Treaty of 2002 with East Timor).

Important element of UNCLOS is the ability to go out and co-operate and coordinate with your neighbours the extent of your territory

Separate treaty with PNG and New Zealand, and East Timor will get a better deal eventually Also a separate treaty with Indonesia and Australia (there is overlapping island zones with

Indonesia. UNCLOS supports arrangements with other countries

Maritime Delimitation Issues

UNCLOS deals with this topic in Articles 15, 74 and 83. These Articles are regarded as merely declaratory of customary international law.

The main concept to be considered here is that of equidistance. Limits should be drawn at points which are equidistant from each party’s baselines.

However, this may not always give the most equitable solution due to geographical peculiarities. Thus, there are sometimes special circumstances to be taken into account in relations to equidistance.

What is involved in ‘special circumstances’? Included are:

Geography, including proximity, natural prolongation and proportionality;

Geomorphology and geology, including the existence of trenches or troughs on the seabed which may suggest ‘natural’ boundaries;

Prior conduct of the parties, including the de facto acceptance of an ‘existing’ boundary, or activities in the area under dispute;

Interests of third parties, including third States’ claims over the area in question;

Economic interests of third parties, including the relative wealth of the parties, existence of mineral deposits under the seabed, and the fishing rights of the parties;

Other factors, including navigation rights, security, strategic and related interests.

Part 3- PART XI- The deep sea bed

Introduction:

Part XI deals with the regime for the exploration and exploitation of the deep sea bed outside any State’s 200 nm zone.

This is called ‘The Area’ - which lies under the high seas, and is regarded as the Common Heritage of Humankind.

Developed nations were unhappy with the original Part XI, which they felt unduly favoured developing nations.

As is discussed in the History section, this was the point of greatest contention when UNCLOS III was opened for ratification

The agreement has tried to accommodate the developing nations

Zones and the ‘Area’:

Express limitations to changing UNCLOS Article 309 of UNCLOS forbids reservations or exceptions (have to sign up to the whole

convention) Article 312 prevents amendments until 10 years after UNCLOS enters into force ie until after

16/11/2004 Article 155 states that review of Part XI cannot take place until 15 years after first commercial

production from the seabed

Changes to Part XI Despite the previously mentioned Articles, there was renegotiation of Part XI under the

auspices of the secretary-general of the UN from 1990. This resulted in the “Agreement relating to the Implementation of Part XI of the United

Nations Convention on the Law of the Sea”.

However, the issue has become is this truly binding? Article 30(4) of the Vienna Convention on the Law of Treaties provides that States can only be

bound by a later treaty, which supersedes a previous one if they have expressly agreed to the later treaty

Part XI Agreement - adopted on 28 July 1994 pursuant to UN Resolution 48/263 Ended up with an agreement that amends the provisions of Part XI of UNCLOS However this goes against the limitations discussed above This is all now governed by The Area is the International Seabed Authority (ISA) –

Substance of the Agreement-

These are the substantive alterations for Part XI deal with:

costs to State parties of the administrative machinery involved (section 1)

abolition of The Enterprise which was to have been the operational arm of the ISA (section 2)

reorganisation of the deliberative and executive parts of the ISA (section 3)

replacement of the original Article 155 relating to the Review Committee – changes to Part XI can now be considered at any time by the ISA (section 4)

abolition of the compulsory transfer of sea-bed mining technology to The Enterprise (section 5)

alignment of the ISA’s operations with the free trade principles under the WTO, including relaxed sub-contracting provisions (sections 6-8)

establishment of a Finance Committee to allow a greater say to developed nations over funding decisions (section 9).

Part 4: FISHING!!

Fisheries are a major issue, this part will deal with:

1. Fishing with the EEZ2. Fishing on the High Seas3. Whaling

The relevant parts of UNCLOS are Pts V and VII, s 2. Part V deals inter alia with fishing in the EEZ, while Pt VII, s 2 deals with fishing on the high seas.

Fishing with the EEZ

The Exclusive Economic Zone and Fisheries

The 200 nm limit to the EEZ is set in Article 57 of UNCLOS. Article 56(1)(a) confers on the coastal state sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources of the EEZ. This includes the fishes

Article 61 -the conservation of the living resources of the EEZ

‘The coastal state must determine the allowable catch of fish in its EEZ, taking into account the ‘best scientific evidence available to it’ (art. 61(2)). Coastal states should cooperate regionally and/or globally to avoid over-exploitation of fish.’

Article 61(3)‘Species should be maintained at a level which will yield the maximum sustainable catch, but this is to be qualified by ‘the economic needs of coastal fishing communities and the special requirements of developing states’

The coastal state is also required to promote the objective of optimum utilization of the living resources in the EEZ. This would seem to be incompatible with Article 61, but the proviso is that this is to be done ‘without prejudice to article 61' - art. 62(1).

Article 62(2) – access to other fisheries‘allows the coastal state to permit other states access to its fishery if it is unable to exploit its total resources itself.’

Article 62(4).‘The law applicable to the entry of foreign vessels to an EEZ is the national law of the coastal state’

Article 63- straddling stocks (those which, swim past the EEZ)‘States are to cooperate on the conservation of such species in the high seas.’

See further on for more on straddling fish stocks

Article 64- Highly migratory species ‘cooperation between or among states is called for in relation to the conservation of these species in both the EEZ and the high seas.’

Some of these species (eg Southern Bluefin Tuna, other types of tuna, Marlin, Sailfish and Swordfish)

Article 69- Anadromous species (those which spawn landward and proceed seaward) and catadromous species (those which spawn seaward and proceed landward),

‘Are only to be fished in the EEZ. If the species in question proceeds through more than one EEZ, its harvesting should be the subject of agreement.’

Article 70- Geographically disadvantaged states‘Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States’

Article 77(4)-species are regarded as part of the resources of the continental shelf.‘The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.’

Protection of your EEZ – Art 73 states a State can take measures such as ‘boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with state regulations within EEZ.

Any use of force would have to, of course, be in accordance with lawful uses of force under the UN Charter

The most important in all of these is that they are meant for people to cooperate over their fisheries the main goals are

1. Cooperation of all states over the natural resources of the sea2. Cooperation and enrichment from the sea to the effect that it is not depleted

2. Lets go fishing on the High Seas!

High Seas Fisheries

the freedom to fish is preserved in UNCLOS

Article 87(1)(e)

‘The high seas are open to all States, whether coastal or land-locked.

Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States…(e) freedom of fishing, subject to the conditions laid down in section 2.’

The requirements are again to cooperate in order to conserve the living resources of the area. Vessels on the high seas are subject to the jurisdiction of their flag state If the flag-state has a well-developed system of laws and can enforce these effectively, See the Agreement to promote compliance with international conservation and management

measures by fishing vessels on the high seas which forms part of the International Code of Conduct for Responsible Fishing an organ of the UN.

Australia has recently enacted this agreement in the Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth), but this does not solve the international issues relating to irresponsible flag states, many of which operate in the Australian Fishing Zone (AFZ).

The Southern Blue Fin Tuna CaseFacts:

The tribunal considered whether the dispute arose under the United Nations Convention on the Law of the Sea (UNCLOS) or the regional Convention for the Conservation of Southern Bluefin Tuna (CCSBT).

It found that the dispute arose under UNCLOS, while being based in the CCSBT.1

1 Jacqueline Peel, ‘A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration’ (2002) 3 Melbourne Journal of International Law 53, 57.

The Tribunal characterised it as one dispute under two Conventions, not two separate disputes. The central feature of the dispute concerned the parties inability to agree on the revised total

allowable catch of tuna & Japan’s involvement in unilateral experimental fishing programmes. These concerns were clearly within the CCSBT Convention2 although UNCLOS still had

jurisdiction in principle.3 However, the tribunal considered it artificial to separate out the UNCLOS elements from the

CCSBT elements.4 Found:

Under Article 16(2) parties are required to find a peaceful resolution after failing to reach agreement on having a dispute resolved externally.5

At the time of the judgment, the tribunal found that every possible avenue had not been exhausted under the CCSBT and UNCLOS

Straddling Fish Stocks and Highly Migratory Fish Stocks

UNCLOS requires that straddling stocks be the subject of conservation efforts in the high seas only,

while highly migratory species are to be dealt with in both the EEZ and the high seas Fish stocks which will go outside their own EEZ are open to over-exploitation, particularly by the

high- capital long-distance fishing fleets of the world. They may be well managed in the EEZ of the coastal state and then decimated once outside it. The UN decided that further measures were needed in order to overcome this problem. Hence

the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened.

Outcome was the:

Agreement for the Implementation of the Provisions of the United Nations Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

The Agreement is concerned with the effective implementation of Articles 63-64 and 116-119 of UNCLOS.

Article 5 of the agreement requires the best scientific evidence principle to be applied to the conservation of straddling stocks and highly migratory species.

Where scientific evidence is lacking or uncertain article 6 requires the application of the ‘precautionary principle’.

States must find ‘compatible rules’ for conservation. This is believed to be stronger than just requiring ‘cooperation’-see article 7.

Article 8 sets out the requirements for cooperation between and among states - if there is already a regional or subregional arrangement, current non-members fishing the relevant waters should join. This may appear to be a further erosion of the freedom of the high seas, although that freedom is specifically preserved in article 4 of the Agreement.

2 Caroline E Foster, ‘The “Real Dispute” in the Southern Bluefin Tuna Case: a Scientific Dispute?’ (2001) 16 The International Journal of Marine and Coastal Law 571, 591.3 Caroline E Foster, above n19, 581.4 Caroline E Foster, above n19, 591; Jacqueline Peel, above n17, 59.5 Jacqueline Peel, above n18, 59.

If there is a dispute, the compulsory settlement procedures of UNCLOS (in Part XV) are to be applied.

3. Whales are delicious

The main body is the Scientific Committee of the IWC – The Scientific Committee comprises up to 200 of the world's leading whale biologists. Many are

nominated by member governments. The Committee meets in the two weeks immediately before the main Commission meeting and

it may also hold special meetings during the year to consider particular subjects. The Scientific Committee's report provides an annual review of the major issues affecting

cetacean conservation.

The subject matter considered by the Committee:

encourage, recommend, or, if necessary, organise studies and investigations relating to whales and whaling;

collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon;

study, appraise and disseminate information concerning methods of maintaining and increasing the populations of whale stocks.

Roles: It monitors whale counts and advises states on the best way to conserve whales (there is a detailed discussion of their roles and inadequacies below)

Current Issues with WhalingJapan’s plan to increase whale cull

Japan’s plans to expand it’s scientific whaling programme Australia, with New Zealand backing, put forward a resolution that urged Japan to withdraw its

proposal for increasing its whale cull or This was passed by a majority of 30 to 27 votes with one abstention by the Solomon Islands.

Voting also upheld a continuation of the whaling moratorium and a voting down of the introduction of regional management schemes that would threaten the moratorium.

However, Japan stated that it would go ahead with the programme at the end of this year despite the resolution and general consensus against the hunting of whales.

Can the IWC still effectively deal with Whaling Issues? The IWC is not effective as a conservation organisation in terms of their treaty The International

Convention for the Regulation of Whaling (ICRW). The original function of the IWC was to manage the conservation of whales to overcome the

need to return to large-scale commercial whaling. The Articles of the Convention focus on the sustainable harvest of whales. However, many

States believe the treaty’s purpose is to achieve a total ban on commercial hunting and reject this focus.

In trying to regulate whaling the IWC has not been successful, The IWC is ignored by States when their political preferences are not soothed.

There is not even an obligation to take part in an international organization that deals with whaling.

The IWC focuses on a horizontal theory of international law, where States are supposed to comply in good faith to the ICW because of their own self-interests.

However, the ICRW is continually violated by members and this goes unchallenged. Japan has lodged objections to the moratorium, rendering the IWC powerless to enforce it

against Japan pursuant to the opt-out provision of the Convention.

Problems with enforcement The resolutions passed at the Commission each year are non-binding on States. There are no

dispute settlement procedures or enforcement programmes within the IWC.6 The Convention’s only form of enforcement is self-policing. As a result, there are no obligations placed on States and the Commission has no power to

challenge State’s actions.

Problems with monitoring numbers of whales There exists no mechanism to monitor activities in the vast expanses of oceans. The IWC has no way of monitoring the activities of whaling ships, so illegal whaling occurs

without its specific knowledge. Also, the reporting mechanism for the numbers of whales captured is up to each State to collect

individually.

The legal solutions available for opposing Japan include:1. legal action in domestic courts2. legal action in international courts3. Trade sanctions4. reform the ICW and ICRW

ITLOS – The International Tribunal for the Law of the Sea

Part XV UNCLOS

requires state parties to settle any dispute arising under the convention in a peaceful manner in accordance with Art 2(3) and Art 33(1) of the UN Charter

where no settlement reached, parties can submit the dispute to a court or tribunal with jurisdiction under Art 286

Art 287 defines the courts and tribunals ITLOS – Annex VI to UNCLOS is its statute ICJ Arbitral tribunal constituted in accordance with Annex VII of UNCLOS

Topic 4: International Environmental Law

6

A. Introduction and Definitions

What is international environmental law? Is there such a distinct body of law?o Brownlie: “Legal Aspects of the Protection of the Environment”o Birnie and Boyle: “International Law and the Environment”o Sands: “Principles of International Environmental Law”o – Cf Redgwell: “International Environmental Law”; Triggs: “International Environmental

Law” Traditional legal order of the environment has been laissez faire ‐ – limitations on the actions of

states are not to be presumed lightly Any limitations that do exist have emerged on an ad hoc basis So need a body of law more specifically aimed at protecting the environment “International environmental law” should be understood as including both the generally

applicable rules of international law, and also the new and developing specific rules See also “law of the sea”, “human rights law”, “international economic law” What is “the environment”?

o – “something that environs”?o – “the whole complex of climatic, edaphic and biotic factors that act upon an organism

or an ecological community and ultimately determine its form or survival; the aggregate of social or cultural conditions that influence the life of an individual or a community”: Webster’s New World Dictionary (1988);

o – “surroundings, surrounding objects, region or circumstances”: Concise Oxford Dictionary (1972)

o “Both aspects of man's environment, the natural and the man made, are essential to his‐ well being and to the enjoyment of basic human rights the right to life itself.” ‐(Stockholm Declaration, PP1)

o “the environment is where we all live” (Brundtland Report (1987))o “Human beings are at the centre of concerns for sustainable development. They are

entitled to a healthy and productive life in harmony with nature.” (Rio Declaration, Principle 1)

o “the combination of elements whose complex interrelationships make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they are felt.” (Council Regulation (EEC) No 172/84 of 28 June 1984 on Action by the Community Relating to the Environment)

o “changes in the physical environment or biota, resulting from climate change, which have significant deleterious effects on the composition, resilience and productivity of natural and managed ecosystems, or on the operation of natural and managed ecosystems or on the operation of social economic systems or human health and ‐welfare.’ (UNFCCC, Art 1(1) “adverse effects on the environment”).

Areas covered by international environmental regulation:o – Conservation and sustainable use of natural resources and biodiversity;o – Conservation of endangered and migratory species;o – Prevention of deforestation and desertification;o – Preservation of Antarctica and areas of outstanding natural heritage;o Protection of oceans, international watercourses, the atmosphere, climate, and ozone

layer from the effects of pollution; and

o Safeguarding human health and the quality of life. The environment as a problem of international concern The role of international law in environmental protection:

o – mechanisms and procedures for setting rules and standards, settling disputes, and supervising implementation and compliance;

o – flexible rule making procedure that allows for easy and regular amendment in the ‐light of technological advances in scientific and other knowledge;

o – compensation for environmental damage;o – individuals benefit from environmental rights; ando – harmonisation of national laws.

B. Development of International Environmental Law1. Reactive Responses to Resource Use and Exploitation The first period began in the 19th century and lasted until 1945, and is characterised by reactive

responses to resource use and exploitation The second period began with the creation of the UN until the convening of the Stockholm

Conference on the Human Environment in 1972, and this period is characterised by a sectoral and fragmented approach

The third period runs from 1972 to UNCED in 1992, which saw the adoption of a holistic approach to environmental protection and economic development

The fourth period runs from UNCED to the present day, and this can be characterised as a period of integration

Tendencies and trends Development of principles and rules has been reactive rather than anticipatory Scientific developments have played a significant role Complex interplay between governments, NGOs, international organizations Recently these issues are the subject of international adjudication First period – 19th century until 1945 Many bilateral treaties for the conservation of wildlife, including for the protection of fisheries,

birds, and seals Treaty practice was ad hoc, sporadic and limited in scope Convention for the Regulation of Whaling adopted in 1931 Convention for the Protection of Birds useful to Agriculture in 1902 US – Canada Treaty to Protect Migratory Species of Birds 1916 US – Canada Water Boundaries Treaty 1909 Pacific Fur Seals Arbitration (US – Great Britain, 1909) – Led to Convention between the United

States, the United Kingdom of Great Britain and Northern Ireland, and Russia for the Preservation and Protection of Fur Seals (1911)

Trail Smelter Arbitration (US – Canada, 1941) – ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.’ (3 RIAA 1938, 1965 (1941))

Second period – from the creation of the UN to Stockholm (1945 – 1972) International organisations at the regional and global level began to address environmental

issues, and the range of environmental concerns addressed by international regulatory activity broadened to include a focus on the causes of pollution resulting from certain ultrahazardous activities.

UN Specialised Agencies o Food and Agriculture Organization of the United Nations (FAO)o International Civil Aviation Organization (ICAO)o International Fund for Agricultural Development (IFAD)o International Labour Organization (ILO)o International Maritime Organization (IMO)o International Monetary Fund (IMF)o International Telecommunication Union (ITU)o United Nations Educational, Scientific and Cultural Organization (UNESCO)o United Nations Industrial Development Organization (UNIDO)o Universal Postal Union (UPU)o World Bank Groupo World Health Organization (WHO)o World Intellectual Property Organization (WIPO)o World Meteorological Organization (WMO)o World Tourism Organization (UNWTO)

UNCCUR 1947 International Convention for the Prevention of Pollution of the Sea by Oil 1954 Conservation of the Living Resources of the Sea 1958 Antarctic Treaty 1959 Partial Test Ban Treaty 1963 Ramsar Treaty 1971 Corfu Channel [1949] ICJ Rep 4, 22 23 – Albania was under an obligation “not to allow knowingly‐

its territory to be used for acts contrary to the rights of other States.” – “The Court draws the conclusion that the laying of the minefield which caused the explosions

… could not have been accomplished without the knowledge of the Albanian Government.” Lots of new international rules on environmental protection But no international organisation with policy lead for environmental issues, or coordinating

responsibility among existing organizations The “elephant in the room” during this period – the tension between (i) the imperative of

economic development; and (ii) the increased awareness of the need for environmental protection

2. Stockholm Conference on the Human Environment 1972 – Sectoral and Fragmented Approach Stockholm Conference (1972) Non binding instruments:‐

o – A resolution on institutional and financial arrangements;

o – A Declaration containing 26 Principles, ; ando – An Action Plan containing 109 recommendations.

Declaration the most important instrument:o – Principle 1: – Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of dignity and well‐being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

o Principle 21 – “States have, in accordance with the Charter of the United Nations and the principles of international law, the , sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

o Principle 22: – “States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”

o Principle 23: – “Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.”

o Principle 24 – “International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing. – Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.”

Third period (1972 – 1992) Marked by a proliferation of international environmental organisations, and greater efforts by

existing institutions to address environmental issues Creation of UNEP, and also other organisations adopted environmental protection treaties

(London Dumping Convention 1972, World Heritage Convention 1972, MARPOL 1973/78, CITES 1973)

Other regional treaties (Bonn Convention on Migratory Birds 1979, Bern Convention on Protection of Habitats 1979, Convention on Long Range Transboundary Air Pollution 1979, ‐Convention for Regulation of Mining of Antarctic Mineral Resources 1988)

World Bank, UNEP and UNDP created the Global Environmental Facility

Brundtland Report 1987 - “Until recently, the plant was a large world in which human activities and their effects were neatly compartmentalised within nations, within sectors (energy agriculture, trade) and within broad areas of concern (environmental, economic, social). These compartments have begun to dissolve. This applies in particular to the global ‘crises’ that have seized public concern, particularly over the last decade. These are not separate crises: an environmental crisis, a development crisis, an energy crisis. They are all one.”

Aimed to formulate realistic proposals for dealing with environment and development issues

3. Rio Summit 1992 – Holistic Approach to Environmental Protection and Economic Development Rio Summit 1992 (“UNCED”) Three non binding instruments adopted:‐

o – Rio Declaration on Environment and Development;o – UNCED Forest Principles (an authoritative statement of principles for a global

consensus on the management, conservation and sustainable development of all types of forest); and

o – Agenda 21. Two conventions:

o – UN Framework Convention on Climate Change; ando – UN Convention on Biological Diversity.

Rio Declarationo Principle 2: – “States have, in accordance with the Charter of the United Nations and

the principles of international law, the , sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

o Principle 3 – “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”

o Principle 4 – “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”

o Principle 7: – “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on theglobal environment and of the technologies and financial resources they command.”

o Principle 11 – “States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be

inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.”

o Principle 15 – “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”‐

o Principle 16 – “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

Fourth period Rio Summit in 1992 saw the adoption of three non binding instruments and two conventions ‐

(UNFCCC and CBD) No slow down in the legislative activity since then:

o – Kyoto Protocol to UNFCCC (1997);o – Aarhus Convention on Access to Information, Public Participation in Decision Making, ‐

and Access to Justice in Environmental Matters (1998); ando – Cartagena Biosafety Protocol to CBD (2000).

Activity of international organisations since Rio:o – Maintenance by IWC of moratorium on commercial whaling (Cf continued whaling by

Norway/Iceland (“under objection”), by indigenous communities (“aboriginal subsistence”), and by Japan (“scientific whaling”))

o – Maintenance of prohibition on trade in African elephant ivory under CITESo – Amendments to Montreal Protocol on the Ozone Layer to bring forward the phasing

out of harmful substanceso – ILC work on liability for injurious consequences arising out of acts not prohibited by

international law Rise in international litigation concerning environmental issues.

o ICJ: – Legality of the Threat or Use of Nuclear Weapons (ICJ, 1996); – Gabcikovo Nagymaros Project ‐ (ICJ, 1997); – Pulp Mills on the River Uruguay (ICJ, 2010); – Aerial Herbicides Spraying (ICJ, ongoing); – Whaling in the Southern Ocean (ongoing)

o GATT/WTO: – US – Tuna/Dolphin (GATT, 1991/1994) – US – Import Prohibitions on Certain Shrimp and Shrimp Products (WTO, 1998); – EC – Measures concerning Meat and Meat Products (Hormones) case (WTO,

1998); – EC – Biotech Products (WTO, 2005)

o UNCLOS:

– Southern Bluefin Tuna (ITLOS, UNCLOS Annex VII Tribunal, 1999 2000);‐ – MOX Plant (ITLOS, UNCLOS Annex VII Tribunal, 2001 2008).‐

10th anniversary of UNCED marked by the World Summit on Sustainable Development (Johannesburg, 2002)

This period has seen an increasing complexity in international law, and increasing regulation at the international level of environmental issues

International environmental rules are no longer simply about normative rules, but are also about finding techniques of implementation which are practical, effective, and equitable

C. Sources of International Environmental Law

1. Customary International Law2. Treaties3. ‘Soft Law As international environmental law is a merely a part of general international law, the sources in

Article 38(1) of the ICJ Statute apply But note the limitations of Article 38(1) – is this really an exhaustive list? What about:

o – GA Resolutions?o – Declarations of Principles adopted by the UN, or by ad hoc UN conferences?o – Treaty provisions which have been agreed by the majority of member States of the

UN, but which are not yet in force?o – Draft Articles proposed by the International Law Commission?

The shortcomings of Art 38(1) have been exposed by the need for faster, more flexible response in many international environmental issues, e.g.:

o – preventing marine pollution by oil and toxic discharges and dumping;o – controlling the emission of gases that damage the ozone layer or cause climate

change;o – regulating the transboundary movement of hazardous wastes and chemicals; ando – preserving endangered species and biological diversity.

Traditional sourceso – Treaties, customary international law, general principles of lawo – Possible creative role of “general principles” for the ICJ?

Other possible sources of international law:o – Work of the ILC, which is charged with the object of promoting the progressive

development and codification of international lawo – GA Resolutions (which are not binding per se)o – “Soft law”: increasing use has been made of half way stages in the law making process‐ ‐

in the form of codes of practice, recommendations, guidelines, resolutions, declarations of principles, and standards. “Soft law” norms are good vehicles for focusing consensus on rules and principles, and also for mobilising a consistent, general response on the part of States.

D. Key Concepts and Principles in International Environmental Law

1. Transboundary Pollution and Environmental Harm Obligation to prevent transboundary harm from hazardous activities

o Trail Smelter (US Canada, 1941);‐o Corfu Channel (ICJ, 1949);o Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, 241 2: – “The ‐

Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”

o Gabcikovo Nagymaros Project ‐ [1997] ICJ Rep 7, 41.

2. Global Environmental Responsibility Common heritage of mankind

o – Foundations laid by Stockholm Declaration, Principle 2: “The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate”

o – Also the World Charter for Nature (GA Res 37/7 (1982))“… man must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations.”

o “Common heritage of mankind” – Agreement Governing the Activities of States on the Moon (1979), Art 11; and

o – UNCLOS (1982), Art 136 7. “Common concern of humankind”‐o – UNFCCC (1992), PP: “… change in the Earth’s climate and its adverse effects are a

common concern of humankind”; ando – CBD (1992), PP: “… the conservation of biological diversity is a common concern of

humankind”.

3. Sustainable Developmento Brundtland Report: WCED, Our Common Future (1987): – sustainable development is

“development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

o Gabcikovo Nagymaros Project ‐ [1997] ICJ Rep 7, 78: – “Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind for present ‐and future generations of pursuit of such interventions at an unconsidered and ‐unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken

into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. ”

o Sep Op VP Weeramantry: – “The Court has referred to it as a concept in paragraph 140 of its Judgment. However, I consider it to be more than a mere concept, but as a principle with normative value which is crucial to the determination of this case. Without the benefits of its insights, the issues involved in this case would have been difficult to resolve.” [1997] ICJ Rep 7, 88, 88.

o – “The law necessarily contains within itself the principle of reconciliation [between the right to development and environmental protection]. That principle is the principle of sustainable development.” [1997] ICJ Rep 7, 88, 90.

o Sep Op VP Weeramantry: – “The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community.”

o – “The concept has a significant role to play in the resolution of environmentally related disputes. The components of the principle come from well established areas of ‐international law human rights, State responsibility, environmental law, economic and ‐industrial law, equity, territorial sovereignty, abuse of rights, good neighbourliness to ‐mention a few. …”

o – “It offers an important principle for the resolution of tensions between two established rights. It reaffirms in the arena of international law that there must be both development and environmental protection, and that neither of these rights can be neglected.” [1997] ICJ Rep 7,

Substantive elements:o – Sustainable use of natural resources (Rio Decl, Principle 8);o – Integration of environmental protection and economic development (Rio Decl,

Principle 4; see also UNFCCC, Art 3(4); CBD, Art 6(b));o – Right to development (Rio Decl, Principle 3; see also UNFCCC, Art 3(4));o – Inter generational equity (Brundtland Report; Rio Decl, Principle 3; UNFCCC, Art 3(1); ‐

CBD, PP);o – Intra generational equity (Brundtland Report; Agenda 21)‐o – “Common but differentiated responsibility” (Rio Decl, Principle 7; UNFCCC, Art 3(1);

CBD, PP);o – Recognition of the special needs and circumstances of developing countries (UNFCCC,

Art 3(2); see also CBD, PP);o – Obligations on developed States to provide technical assistance to developing

countries (UNFCCC, Art 4(5); CBD, Art 16(1)), including on preferential terms;o – Obligations on developed States to provide financial assistance to developing

countries (UNFCCC, Art 4(3); CBD, Art 20(2);o – Obligations on developed States to provide assistance to developing countries to meet

the costs of mitigation (UNFCCC, Art 4(4));o – Recognition that “the extent to which developing countries will effectively implement

their obligations under this convention will depend on the effective implementation by developed countries of their commitments re financial resources and transfer of technology” (UNFCCC, Art 4(7); CBD, Art 20(4)).

o “Polluter pays” principle – Rio Decl, Principle 16: “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

4. Precautionary Principle Precautionary approach

o – Rio Decl, Principle 15o – Not relied on by ICJ in Gabcikovo Nagymaros Project ‐ (cf Sep Op VP Weeramantry);o – Also argued in EC – Hormones (WTO, 1998):

EC: it is a general customary rule of international law or at least a general principle of law;

US: it is not a principle of customary international law; rather, it may be characterized as an "approach" the content of which may vary from context ‐‐to context;

Canada: it is an emerging principle of international law, which may in the future crystallize into one of the ‘general principles of law recognized by civilized nations’.

WTO: “Whether it has been widely accepted … as a principle of general or customary international law appears less than clear.”

o – In Southern Bluefin Tuna (Provisional Measures) (1999), Australia and New Zealand requested provisional measures that:

Japan restrict its catch to the quota that had been agreed under the Convention for the Conservation of Southern Bluefin Tuna;

Japan cease its experimental fishing programme; and “the parties act consistently with the precautionary principle in fishing for

Southern Bluefin Tuna”.o No dispute between the parties that stocks of Southern Bluefin Tuna were at historically

low levels, but disagreed about scientific evidence re recovery of stockso ITLOS Order in Southern Bluefin Tuna (cont): – “77. … in the view of the Tribunal, the

parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna …– 79. … there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there is no agreement among the parties as to whether the conservation measures taken so far have led to the improvement in the stock of southern bluefin tuna; – 80. … although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock”.

o Pulp Mills on the River Uruguay (ICJ Judgment of 20 April 2010)- the ICJ held that the precautionary approach might be relevant in the interpretation and application of provisions of the bilateral treaty in question, although this did not entail a reversal of the burden of proof (para 164)

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

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

Sustainable development: what is its value?o Lowe – sustainable development is not a rule of international law:o – First, is it “necessary” to have a rule to reconcile the tension between competing

rights?o – Second, and in any event, , y , is there a conflict between the right to development and

environmental protection?o – Third, can “sustainable development” really be said to be a rule of customary

international law? If so, what is the “rule” being claimed? Is it of a “fundamentally norm creating character”‐

o – Fourth, is there State practice and opinio juris?o But – sustainable development is not devoid of any normative significanceo Sustainable development is a “meta principle” which acts upon other legal rules and ‐

principles

E. State Responsibility and the Protection of the Environment

State responsibility and international environmental law The traditional model – interstate claims based on State responsibility, resolved by one of the

means of dispute settlement referred to in UN Charter, Art 33 Disadvantages of traditional bilateral model of dispute settlement

o – adverse effect on relations between the parties;o – complexity, length, and expense of many international proceedings;o – problems and difficulties of proof which legal proceedings may entail; ando – unsettled law.o – the traditional model is concerned largely with affording reparation as a response to

violations of international law;o – it is inherently bilateral, adversarial and confrontational in nature; ando – it assumes the existence of “injured States”.

Rules that have been developed in international environmental law are focussed on prevention, reduction and control of environmental harm, and the conservation and sustainable use of resources – rather than reparation for international wrongs

o E.g., UNCLOS, Art 192: – “States have the obligation to protect and preserve the marine environment.”

o E.g., UNCLOS, Art 194(1): – “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source …”

o E.g., UNFCCC, Art 4(1)(c): – “All Parties … shall … cooperate in the development … of technologies ,practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases …”

o E.g., CBD, Art 6(a): – “Each Contracting Party shall … develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity …”

Preventive or regulatory regimes require a more sophisticated approach to the enforcement and implementation of international law

A regime which only accords rights to “injured States” after the event will be inadequateo E.g., in the context of climate change – who is an “injured State”?o – Traditionally, only “injured States” have the right to bring claims – South West Africa

(ICJ, 1966)o – Cf Barcelona Traction (ICJ, 1970)o Also, in the same context, who is a “responsible State”?

– How to prove causation? Multilateral nature of international environmental obligations leads to States agreeing to

complex institutional machinery, COPs, MOPs, and regular meetings of the parties A word on standing …

o Barcelona Traction [1970] ICJ Rep 3, 32, paras 33 4: – “… [A]n essential distinction ‐should be drawn between the obligations of a State towards the international community as a whole, and those arising vis à vis another State in the field of ‐ ‐diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.– Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law …; others are conferred by international instruments of a universal or quasi universal character.”‐

ILC Articles on State Responsibility ILC Articles on State Responsibility, Art 42: “A State is entitled as an injured State to invoke the

responsibility of another State if the obligation breached is owed to:o a) that State individually; oro b) a group of States including that State, or the international community as a whole, and

the breach of the obligation: i. specially affects that State; or ii. is of such a 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.”

ILC Articles on State Responsibility, Art 48: “1. Any State other than an injured State is entitled to invoke the responsibility of another State … if:

o a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or

o b) The obligation breached is owed to the international community as a whole. …” ILC Commentary to Article 48(1)(b)

o James Crawford, The International Law Commission’s Articles on State Responsibility (2002) 278: – “All States are by definition members of the international community as a whole, and the obligations in question are by definition collective obligations protecting interests of the international community as such. Of course such obligations may at the same time protect the individual interests of States … individual States may be specially affected by the breach of such an obligation, for example a coastal State specially affected by marine pollution in breach of an obligation aimed at protection of the marine environment.”

F. Mechanisms for Compliance and Enforcement

Difficulties with traditional model of dispute settlement:o a) Difficulty in identifying an “injured State” with standing (All States? No States?

Specially affected States?).o b) Is it possible that obligations under environmental treaties are obligations “erga

omnes”, giving all States standing?o c) Difficulty in identifying a “responsible State”, which has caused the damage

(industrialised States? All States?).o d) Even if it possible to identify a State with standing, what would be the purpose of that

State’s claim? What would be the purpose of the claim?

o – Remedies under international law: Restitution? Compensation? Satisfaction?

Do you want to “punish” the offending State? How to ensure that the State complies with its obligations? Methods of ensuring compliance with environmental agreements

o Creation of institutional machinery – COP / MOP (UNFCCC, Art 7) – Secretariat (UNFCCC, Art 8) – Subsidiary bodies (UNFCCC, Arts 9 10)‐

o Regular reporting by States parties to the regime – UNFCCC, Art 4(1)(a), (b) – UNFCCC, Art 4(2)(b) – UNFCCC, Art 12

o Fact finding and research function of the institutional machinery;‐ – E.g., subsidiary bodies under UNFCCC; – Obligations to support research efforts (Art 5)

o Possibility of inspections to verify compliance Non compliance procedures‐ Designed to provide a “softer” system to address non compliance than traditional dispute ‐

settlement procedures

Designed to assist the defaulting State in returning to compliance, not necessarily to incriminate States for non compliance‐

They are multilateral, rather than bilateral; consultative, rather than adversarial; facilitative of compliance, rather than punitive for any noncompliance.

G. Contemporary Issues

Kyoto Protocol NCP See Procedures and Mechanisms relating to Compliance under the Kyoto Protocol: Decision

27/CMP.1 – see especially p y consequences of action by the Enforcement Branch Practice of the Kyoto Protocol NCP:

o – Complaints about non compliance by Greece, Croatia, and Canada‐o – Sanctions have been implemented The Climate Change Regime

UN Framework Convention on Climate Change opened for signature at Rio Summit in June 1992 Objective – “to achieve … stabilisation of GHG concentrations in the atmosphere at a level that

would prevent dangerous anthropogenic interference with the climate system” (Art 2) Principles: – The Convention recognised the principles of intergenerational equity, and the

principle of common but differentiated responsibilities (Art 3(1)) – developed States should take the leading role in combating climate change (Art 3(1)) – Specific needs and special circumstances of developing countries to be given full

consideration, especially those that are particularly vulnerable (Art 3(2)) – States parties to take precautionary measures (Art 3(3)) – States parties should promote sustainable development (Art 3(4)) – States parties should cooperate to promote an open international economic system (Art 3(5)) All parties, taking into account their common but differentiated responsibilities, have certain

qualitative duties, such as:o – To develop, periodically update and publish national inventories of anthropogenic

GHG emissions and removals by ‘sinks’ (Art 4(1)(a));o – To have national and regional programmes on measures to mitigate climate change

(Art 4(1)(b));o – To develop and transfer technologies to p g reduce GHG emissions in all relevant

sectors (Art 4(1)(c));o – To promote sustainable management Art 4(1)(d);o – To cooperate and prepare for adapting to the impacts of climate change (Art 4(1)(e));o – To take climate change considerations into account in the formulation of social,

economic and environmental policies (Art 4(1)(f)) … GHGs were defined as being: carbon dioxide (CO2); methane (CH4); nitrous oxide (N2O);

hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); sulphur hexafluoride (SF6). Developed countries (listed in Annex I) have other obligations:

o – To adopt national policies and implement measures to limit GHG emissions and to protect and enhance sinks and reservoirs to modify trends in anthropogenic emissions, “recognising that the return by the end of the decade [the 1990s] to earlier levels of anthropogenic emissions of carbon dioxide and other GHGs … would contribute to such modification.” (Art 4(2)(a)).

o – To engage in information sharing, as well as on their projected anthropogenic GHG emissions by sources, and removals by sinks of GHGs, “with the aim of returning

individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other GHGs” (Art 4(2)(b)).

o But: no specific emission reduction or limitation targets agreed Parties listed in Annex II (being developed OECD member States) had specific obligations:

o to provide financial resources to assist developing States with their reporting requirements (Art 4(3));

o to assist developing countries which are particularly vulnerable to meet the costs of adapting to climate change (Art 4(4));

o to assist in the transfer of environmentally sound technologies to other parties to enable them to implement the Convention (Art 4(5)).

Further provisions:o – Flexibility given to Annex I parties which are economies in transition (Art 4(6));o – Extent to which developing countries implement their obligations will depend on the

effective implementation by developed countries of their obligations (Art 4(7));o – Full consideration for position of vulnerable countries (Art 4(8));o – Full consideration for position of least developed countries re funding and technology

transfer (Art 4(9)). “Individually or jointly”

o The aim is for the Annex I parties to return, “individually or jointly”, their GHG emissions to 1990 levels by the year 2000 (Art 4(2)(b))

What is “joint implementation”?o “The Conference of the Parties, at its first session, shall … take decisions for criteria

regarding joint implementation” (Art 4(2)(d))o COP 1 (1995) – set out to strengthen the obligations on Annex I parties in Art 4(2)‐

Kyoto Protocol agreed at COP 3 (1997); this contained quantified emission limitation and ‐reduction obligations (Art 3): – “The Parties listed in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of [GHGs] … do not exceed their assigned amounts [in Annex B] … with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.”

Difficulties re entry into force (double requirement) – did not happen until February 2005 Annex B targets – principle of “differentiation” was applied Some States permitted to increase GHG emissions: Australia (108%), Iceland (110%) and Norway

(101%) Some States had to keep GHG emissions at 100% of 1990 levels: New Zealand, the Russian

Federation, and the Ukraine Others had to reduce GHG emissions: e.g., all EU States (92%) Flexibility Mechanisms

o “Joint Implementation” emissions reduction projects between Annex I States (Art 6): – “For the purpose of meeting its commitments under Article 3, any Party included in Annex I may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy, provided that:

a) Any such project has the approval of the Parties involved; b) Any such project provides a reduction in emissions by sources, or an

enhancement of removals by sinks, that is additional to any that would otherwise occur.”

o “Clean Development Mechanism” projects between Annex I States and developing countries (Art 12): – “The purpose of the [CDM] shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.”

o CDM projects generate certified emission reduction units (“CERs”) o Emissions trading (Art 17): – “The Parties included in Annex B may participate in

emissions trading for the purposes of fulfilling their commitments under Article 3. Any such trading shall be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments under that Article.”

o Further details of the three flexibility mechanisms agreed at COP 7 in 2001 (the ‐“Marrakesh Accords”)

o Many such projects are ongoing: – Well over 2000 CDM projects, e.g., World Bank and NovaGerar EcoEnergia Ltd

landfill gas capture project in Brazil – Over 150 JI projects – there are “Track 1”, and “Track 2” JI projects – There is a very active market in carbon emissions, worth billions

Compliance with the Kyoto Protocol “Non compliance procedure” (discussed earlier) – whose aim is “to facilitate, promote and ‐

enforce compliance with the commitments under the Protocol”.o – Facilitative Branch – offers advice and assistance to parties in order to promote

complianceo – Enforcement Branch – decides on sanctions in the case of non compliance with Kyoto ‐

obligations (such sanctions may include a declaration of non compliance; suspension of ‐that State party’s eligibility to participate in the flexibility mechanisms; and applying penalties to future ‘assigned amounts’ for future commitment periods)

Unfinished business … The Kyoto Protocol:

o – only places obligations on Annex I States;o – only places obligations on those States for the first Kyoto “commitment period” of

2008 – 2012;o – does not include some key industry sectors – such as international aviation

(responsible for 3.5% of emissions contributing to global warming), and maritime transport

o – Some States are not going to meet their targets: Australia, New Zealand and Canada have each increased GHG emissions by 25%; but overall compliance might be possible

Copenhagen Accord (Dec 2009)o Para 1: – “We underline that climate change is one of the greatest challenges of our

time. We emphasise our strong political will to urgently combat climate change in accordance with the principle of common but differentiated responsibilities and respective capabilities”

o – To achieve the ultimate objective … we shall, recognizing the scientific view that the increase in global temperature should be below 2 degrees Celsius, on the basis of equity and in the context of sustainable development, enhance our long term cooperative ‐action to combat climate change. …”

o Para 2: – “We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius.”

o Para 3: – “Adaptation to the adverse effects of climate change and the potential impacts of response measures is a challenge g faced by all countries … We agree that developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity building to support the implementation of adaptation action in ‐developing countries.”

o Para 6: – “We recognize the crucial role of reducing emission from deforestation and forest degradation and the need to enhance removals of greenhouse gas emission by forests and agree on the need to provide positive incentives to such actions through the immediate establishment of a mechanism including REDD plus, to enable the ‐mobilization of financial resources from developed countries.”

Future Action …o Copenhagen Accord, para 12: – “We call for an assessment of the implementation of

this Accord to be completed by 2015.”o Cancun Agreements (December 2010): – “Urges Annex I Parties to raise the level of

ambition of the emission reductions to be achieved by them individually or jointly …”o – What next?

Topic 5: The Law of International Organisations

A. Introduction and Historical Development

1. International conferences and unions

Early international conferences – ad hoc (e.g., Congress of Vienna (1815)) First international organisations – technical, rather than political (International Telegraphic

Union (1865), Universal Postal Union (1874)). League of Nations (1919) Allied Powers in WW2 – as early as 1941, called themselves the “United Nations” Moscow Declaration (1943) – identified “the necessity of establishing, at the earliest practicable

date, a general international organisation, based upon the principle of sovereign equality of all peace loving States, large and small, for the maintenance of international peace and security.”‐

United Nations (1945) Types of international organizations There is no “typical” international organization

o – Universal and general (e.g., the UN)o – Regional organisations – political cooperation (ASEAN, EU, OAS, African Union)o – Regional organisations – economic integration (ASEAN, EC, MERCOSUR, Common

Market for Eastern and Southern Africa, ECOWAS)o – Universal and specialised (WTO, WIPO, WMO, World Bank)o – Universal – limited membership (OECD, G 8)‐o – Regional organisations– security cooperation (NATO, WEU, ANZUS, Warsaw Pact,

OSCE)o – Regional organisations – human rights and democracy (Council of Europe, OSCE)

Functions of international organizations Providing a forum for identifying and deliberating on matters of common interest; Acting as vehicles for taking action on international or transnational problems; Providing a forum for developing rules on matters of common interest; Providing mechanisms for promoting, monitoring, and supervising State compliance with agreed

rules and policies as well as for gathering information regarding the practices of States; and Providing a forum for the settlement of disputes. What is an international organisation? International organisations are all different ILC currently working on “Responsibility of International Organisations” Article 2 of draft Articles:

o – “For the purposes of the present draft articles, the term ‘international organisation’ refers to an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality.

International organisations may include as members,in addition to States, other entities.” “… any instrument governed by international law …”

o – E.g, Nordic Council (but later a treaty was concluded), OSCE, OPECo – But not the “Cairns Group” Argentina, Australia, Bolivia, Brazil, Canada, Chile, ‐

Colombia, Costa Rica, Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, the Philippines, South Africa, Thailand and Uruguay.

o – Not intended to exclude entities other than Statesfrom membership of int’l orgs The three criteria distinguish truly “international organisations” from other types of

international associations, such as:o – NGOs (such as Greenpeace); ando – international public corporations (such as, e.g., “Air Afrique”).

Is there an “international law of international organisations”? Body of general principles covering:

o i. the legal personality of international organisations;o ii. the powers of international organisations;o iii. the interpretation of constituent instruments;o iv. the privileges and immunities of international organisations; ando v. the international responsibility of the organisation and its member States.

2. League of Nations The League of Nations (LON) was an intergovernmental organization founded as a result of

the Paris Peace Conference that ended World War I, and it was the precursor to the United Nations. The League was the first permanent international security organization whose principal mission was to maintain world peace. The League's primary goals, as stated in its Covenant, included preventing war through collective security, disarmament, and settling international disputes through negotiation and arbitration. Other issues in this and related treaties included labour conditions, just treatment of native inhabitants, trafficking in persons and drugs, arms trade, global health, prisoners of war, and protection of minorities in Europe.

The diplomatic philosophy behind the League represented a fundamental shift in thought from the preceding hundred years. The League lacked its own armed force and so depended on the Great Powers to enforce its resolutions, keep to economic sanctions which the League ordered, or provide an army, when needed, for the League to use. However, they were often reluctant to do so.

After a number of notable successes and some early failures in the 1920s, the League ultimately proved incapable of preventing aggression by the Axis powers in the 1930s. The onset of World War II showed that the League had failed its primary purpose, which was to avoid any future world war. The United Nations replaced it after the end of the war and inherited a number of agencies and organizations founded by the League.

3. United Nations The United Nations (UN) is an international organization whose stated aims are facilitating

cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace. The UN was founded in 1945 after World War II to replace the League of Nations, to stop wars between countries, and to provide a platform for dialogue. It contains multiple subsidiary organizations to carry out its missions.

B. Legal Personality

International legal personality Does an international organisation have international legal personality? See the Reparations

case [1949] ICJ Rep 174 “States solely and exclusively are the subjects of international law.” – L Oppenheim,

International Law (1st ed, 1912) vol 1. Look at the constitutive instrument of the international organisation: e.g., the Treaty on

European Union, Art 47: – “The Union shall have legal personality.” Cf Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240, 258: – although

Australia, New Zealand and the United Kingdom had entered into a “Trusteeship Agreement for the Territory of Nauru” in 1947, under which the three governments were designated as the Administering Authority for the territory of Nauru, the three governments had not created an entity with separate legal personality from the three governments themselves

Acquisition of international personality Two schools of thought (Akande, pp 281 2): – Inductive approach: the personality of the ‐

international organisation can be implied from the capacities, powers rights, and duties conferred on that organisation by the Member States in the constitutive instrument;

– Objective approach: an international organization can only have international personality if certain objective criteria are fulfilled.

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 89 90: – “International organisations are subjects of international law and, as such, are ‐

Reparations for Injuries Suffered in the Service of the United Nations [1949] Count Folke Bernadotte, a Swedish diplomat, assassinated in the course of his service as a

UN mediator in the Arab Israeli conflict in 1948‐ GA requested advisory opinion on whether the UN had the capacity to bring an

international claim against Israel for the purpose of seeking reparation for injuries done to the Organisation and its agents.

UN Charter, Art 104: – “The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.”

ICJ considered: – the “capacity to present an international claim” is the capacity to resort to the customary methods recognised by international law for the establishment, the presentation, and the settlement of claims

o – This capacity certainly belonged to States – but did the UN have this capacity? ICJ considered: – “the progressive increase in the collective activities of States has already

given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organisation whose purposes and principles are specified in the Charter of the United Nations. … [T]o achieve these ends the attribution of international personality is indispensable.” [1949] ICJ Rep 174, 178

ICJ observed: – “[The UN Charter] has equipped [the UN] with organs, and has given it special tasks. It has defined the position of the Members in relation to the Organisation by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the Security Council; by authorising the General Assembly to make recommendations to the Members; by giving the Organisation legal capacity and privileges and immunities in the territory of each of its Members, and by providing for the conclusion of agreements between the Organisation and its members.” ([1949] ICJ Rep 174, 179.)

“In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, in entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.” [1949] ICJ Rep 174, 179.

The UN has “objective” international personality – “… the Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims.” [1949] ICJ Rep 174, 185

bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”

Legality of the Use by a State of Nuclear Weapons in Armed Conflict (WHO Request) [1996] ICJ Rep 66, 78 – “The Court need hardly point out that international organisations are subjects of international law which do not, unlike States, possess a general competence.”

Consequences of international personalityo 1. Personality separates out the rights and obligations of the international organisation

from that of the members.o 2. Personality entitles the organisation to bring a claim in international law for the

purpose of maintaining its own rights.o 3. Personality entails the consequence (or presumption) that an international

organisation is responsible for the non fulfilment of its obligations.‐o 4. Customary international law confers certain privileges and immunities on an

international organisation – at least within the host State, where that international organisation is headquartered (but usually in a Headquarters Agreement).

o 5. Personality grants international organisations the capacity to enter into treaties.

C. Powers of International Organisations

1. Express powers arising under the constitutive instrument Express powers: – E.g., UNFCCC, Art 7(2)(i): the Conference of the Parties “shall [e]stablish such

subsidiary bodies as are deemed necessary for the implementation of the Convention”. – E.g., UN Charter, Art 39: the Security Council “shall determine the existence of any threat to

the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

2. Implied powers Reparations [1949] ICJ Rep 174, 182 – “Under international law, an Organisation must be

deemed to have those powers which, though not expressly provided for in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”

Cf Diss Op Judge Hackworth: “Powers not expressed cannot – freely be implied. Implied powers flow from a grant of expressed powers, and are limited to those that are ‘necessary’ to the exercise of powers expressly granted. No necessity for the exercise of the power here in question has been shown to exist. There is no impelling reason, if any at all, why the Organisation should become the sponsor of claims on behalf of its employees, even though limited to those arising while the employee is in line of duty. These employees are still nationals of their respective countries, and the customary methods of handling such claims are still available in full vigour.”

Effect of Awards of Compensation made by the UNAT [1954] ICJ Rep 47, 56 7: – the UN General ‐Assembly’s capacity to create the Tribunal arose “by necessary intendment” out of the Charter

Certain Expenses of the United Nations [1962] ICJ Rep 151 – Concerned expenses relating to peacekeeping operations in the Middle East (“UNEF”) and the Congo (“ONUC”)

o – Do expenses for peacekeeping operations constitute “expenses of the Organisation within the meaning of Article 17, paragraph 2, of the Charter”?

o UN Charter, Art 17: – “1. The General Assembly shall consider and approve the budget of the Organisation.– 2. The expenses of the Organisation shall be borne by the Members as apportioned by the General Assembly.”

o ICJ considered: – “expenses” included items additional to its regular budget– Article 17 must be a “catch all” provision‐

o Argument – Art 17 does not include expenses relating to the maintenance of international peace and security – these are the exclusive province of the UNSC– Article 11(1): GA can “consider” the general principles of cooperation in the maintenance of international peace and security, and may make “recommendations”– Article 11(2): GA can “discuss” any question relating to the maintenance of international peace and security … and except as provided in Article 12, has the power to make “recommendations”– Article 11(2) : “… Any such question on which action is necessary shall be referred to the Security Council …”– Article 12: Where the Security Council is exercising its functions with regard to a dispute or situation, the GA shall not make any recommendations

o ICJ considered Art 24, under which the UNSC has “primary responsibility for the maintenance of international peace and security”

o But this did not completely exclude the UNGAo In order for a peacekeeping operation to be an “expense of the Organisation within the

meaning of Article 17(2)”, it had to conform with the purposes of the UNo Purposes of the UN (Art 1):

– the maintenance of international peace and security; – the development of friendly relations between nations; – achieving international cooperation in solving international problems of an

economic, social, cultural, or humanitarian character; and – harmonising the actions of nations in achieving these ends.

o Certain Expenses [1962] ICJ Rep 151, 168 – “The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition. These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organisation with the attainment of these common ends, the Member States retain their freedom of action. But when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation.” [1962] ICJ Rep 151, 168.

Tests for implied powers Functional test: – Reparations – whether the power was “conferred upon it by necessary

implication as being essential to the performance of its duties” [1949] ICJ Rep 174, 182 (cf Judge Hackworth);

– Effect of Awards – whether the power arose “by necessary intendment” of the Charter [1954] ICJ Rep 47, 56 7; and‐

– Certain Expenses – the action must warrant the assertion “that it was appropriate for the fulfilment of one of the stated purposes of the United Nations”. [1962] ICJ Rep 151, 168.

Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79: – “The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organisations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as "implied" powers.”

Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79: – “to ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in view of their health and environmental effects – would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organisation in the light of the purposes assigned to it by its member State.”

E. Responsibility of Member States for the Internationally Wrongful Acts of International Organisations

• Recent case: Behrami and Behrami v France; Saramati v France, Germany and Norway (European Court of Human Rights, 2 May 2007) Behrami v France and Saramati v France, Germany and Norway

Behrami Case Applicants: – Mr Behrami and his son Bekim Behrami – two Kosovar Albanians living in

Mitrovica, Kosovo; and Mr Saramati – the Commander of a Kosovo Protection Corps Brigade.

Background: NATO bombing campaign against the Federal Republic of Yugoslavia (now Serbia) in 1999. The NATO campaign ended with the FRY agreeing to withdraw its forces from Kosovo. NATO led forces in Kosovo (“KFOR”), the Federal Republic of Yugoslavia and‐ the Republic of Serbia (then still a constituent part of Yugoslavia) enter into a “Military Technical Agreement” (“MTA”) by which they agreed on the withdrawal of the FRY forces, and the presence of an international security force following the adoption of an appropriate UN Security Council Resolution (“UNSC Resolution”). UNSCR 1244 provided for the establishment of a security presence (“KFOR”) by “Member States and relevant international institutions”, “under UN auspices”, with “substantial NATO participation” but under “unified command and control”. In a later agreement, the relationship between the UNSC and the North Atlantic Council, the decisionmaking body of NATO, is described as one of “Consultation/Interaction”, and the relationship between the NAC and COMKFOR – the Commanding Officer of KFOR – as one of “operational control”. KFOR contingents were grouped into a number of multinational brigades (“MNBs”) each of which was responsible for a specific sector of operations with a lead country. Each MNB was led by a certain country y (including France, Germany, Finland, Italy, and the United States). In addition to the NATO forces, Russian forces were deployed as part of KFOR at a later stage after the arrival of the main KFOR contingent. A very complex chain of command from the UNSC – NATO – KFOR – MNBs. UNSCR 1244 also decided on the deployment, under UN auspices, of an interim civil administration for Kosovo (“UNMIK”) and requested the UN Secretary General to establish it and to appoint a Special Representative to the SG to control its implementation.

UNMIK: – Pillar I (as it was at the relevant time) concerned humanitarian assistance and was led by the UN High Commissioner for Refugees before it was phased out in June 2000. – A new Pillar I (police and justice administration) was established in May 2001 and was led directly by the UN, as was Pillar II (civil administration).– Pillar III, concerning democratisation and institution building, was led by the Organisation for Security and Co operation in Europe (“OSCE”).‐– Pillar IV (reconstruction and economic development) was led by the European Union.

…Continued

….Facts of Behrami A group of boys, including Gadaf and Bekim Behrami, were playing in the hills in the area

surrounding Mitrovica (where the KFOR MNB is led by France) The group came upon a number of undetonated cluster bomb units (“CBUs”) which had

been dropped during the bombardment by NATO in 1999. The boys began playing with the CBUs

It detonates and kills Gadaf Behrami. Bekim Behrami is also seriously injured, and he is taken to hospital in Pristina, the capital of Kosovo.

He has eye surgery and he is released one month later, although he is disfigured from the explosion, and does not recover his eyesight

UNMIK police investigate the incident, and need KFOR’s permission to access the sit KFOR had been aware of the CBUs, but they were not considered a “high priority” The boys’ father complains to the Kosovo Claims Office (“KCO”) that France had not

respected UNSC Resolution 1244, in that it had not protected his sons from the unexploded munitions

The Kosovo Claims Office forwards the complaint to the French Troop Contributing Nation Claims Office (“TCNCO”)

The French TCNCO rejects the complaint, stating that UNSC Resolution 1244 had required KFOR to supervise mine clearing operations until UNMIK could take over and that such operations had been the responsibility of UNMIK since July 1999

Mr Behrami and Bekim Behrami then bring a claim against France before the European Court of Human Rights, claiming that France had violated their rights under Article 2 of the European Convention on Human Rights (right to life)

Mr Saramati was the Commander of a Kosovo Protection Corps Brigade; he was accused of having undertaken activities threatening the international presence in Kosovo

In April 2001: he was arrested by UNMIK police Judge ordered pre trial detention; he was indicted in May 2001, and he was not released ‐

until June 2001 In July 2001: he was told that he had to report to a police station (in the sector assigned

to MNB Southeast, where the lead nation was Germany) to collect his belongings He is arrested by UNMIK police officers by order of the Commander of KFOR

(“COMKFOR”) KFOR was satisifed that Mr Saramati posed a threat to the security of KFOR and to those

residing in Kosovo He is detained until January 2002, when he was convicted of attempted murder In October 2002, his conviction is quashed and a re trial is ordered‐ He brought a claim for violation of ECHR Article 5 (right to liberty and freedom from

arbitrary detention), and Article 6 (right of access to a court)…Continued

….Applicant’s arguments in Behrami← Behrami argued:

o 1. France had voted in the North Atlantic Council in favour of deploying an international force to Kosovo;

o 2. The French contingent’s effective control of the Mitrovica region of Kosovo gave it the relevant jurisdictional link for the purposes of the European Convention.

o 3. The acts and omissions of KFOR soldiers could not be attributable to the UN or to NATO. KFOR was not established as a UN force or organ, in contrast to other peacekeeping forces.

o 4. In the case of Saramati, decisions lay with the COMKFOR, without need to refer to NATO

o 5. KFOR did not have a separate legal personality and could not be a subject of international law or bear international responsibility for the acts or omissions of its personnel – thus leading to France’s responsibility for the violation of the Behrami’s rights under the Convention.

Saramati argued (after withdrawing his claim against Germany, but maintained his claims against both France and Norway):

o 1. France and Norway had voted in the North Atlantic Council in favour of deploying an international force to Kosovo

o 2. It was a Norwegian officer who was COMKFOR at the time of his arrest – and this post was subsequently filled by a French officer

o 3. KFOR was the relevant responsible international organisation in control of the situation – rather than the UN or UNMIK.

o 4. Decisions on detention lay entirely within the discretion of COMKFOR, who made those decisions without reference to NATO High Command, or other troop contributing nations (“TCNs”)

o 5. KFOR did not have a separate legal personality and was not a subject of international law and could not bear international responsibility for the acts or omissions of its personnel.

France and Norway argued:o 1. The ECHR lacked competence, as the applicants were not within the jurisdiction

of France and Norwayo 2. Monetary Gold principle precluded the ECHR from determining the caseo 3. Applicants had not exhausted local remedies that they had in Serbia and

Kosovoo 4. France and Norway exercised no authority over KFOR, which was an

international force under unified command and control: Operational control of the forces was with COMKFOR. Strategic control was with the Supreme Allied Commander Europe of

NATO (”SACEUR”). Political control was exercised by the NAC of NATO, and ultimately by the

UNSC.o KFOR was therefore an application of the peacekeeping operations authorised by

the UNSC whose resolutions formed the legal basis for NATO to form and command KFOR

Continued…

….How to resolve the issue? Does the international organisation in question have international legal personality? – If it does not have legal personality, then the international organisation cannot be the

bearer of rights and obligations separate and distinct from those of the member States. – If the international organisation does possess legal personality, this would imply that

the organisation is liable for any activities in which it has engaged. – But if the international organisation is unable to make reparation for the commission of

an internationally wrongful act, or if it is unable to meet its debts, are the members of the international organisation responsible for meeting those liabilities?

Outcome: The ECHR held as follows: – The SC retained ultimate command and control of KFOR and UNMIK, so that the

impugned actions and inactions were attributable to the UN, rather than NATO, and the UN has a legal personality separate from that of its member States

– The ECHR considered whether it was competent ratione personae to review the acts of the respondent States carried out on behalf of the UN

The ECHR concluded that it did not have jurisdiction to review the conduct of France and Norway

Query what the outcome might have been if France and Norway, and the other States contributing forces to KFOR, were acting to comply with obligations that did not arise as a result of the UN Charter?

Westland Helicopters v AOI (international arbitration) In 1978, the Arab Organisation for Industrialisation entered into a contract for the

purchase of helicopters from Westland Helicopters, an English company The four member States of the AOI (Egypt, Qatar, Saudi Arabia, and the UAE) had a

disagreement, which ultimately led to the demise of the AOI Westland Helicopters then brought a claim against the AOI for breach of contract Were the four member States bound by the obligations of the AOI? Doctrinal authorities Henry Schermers, International Institutional Law (1980), section 1395: – “it is impossible

to create international legal persons in such a way as to limit the responsibility of the individual members. Even though international organisations, as international persons, may be held liable under international law for the acts they perform, they cannot exclude the secondary liability of the members themselves.”

Ignaz Seidl Hohenveldern, ‐ Corporations in and under International Law (1987) 121: – “Just as a State cannot escape its responsibility under international law by entrusting to another legal person the fulfilment of its international obligations, the partner states of a common inter State enterprise are jointly and severally responsible in international law ‐for the acts of the enterprise.”

Tribunal held that: ((1984) 23 ILM 1071, 1083) – “In the absence of any provision expressly or impliedly excluding the liability of the four States, this liability subsists since, as a general rule, those who engage in transactions of an economic nature are deemed liable for the obligations which flow therefrom. In default by the four States of formal exclusion of their liability, third parties which have contracted with the AOI could legitimately count on their liability.”

But this award was later annulled by a Swiss court, thereby placing doubt on its authority

Tin Council litigation This litigation arose out of the collapse of the International Tin Council in 1985 The ITC conducted its activities in accordance with successive International Tin Agreements,

which were treaties between the member States The Sixth International Tin Agreement of 1982 (“ITA6”) brought together 23 producer and

consumer States and also the EC These treaties aimed to regulate the tin market by virtue of export controls and the

establishment of buffer stocks of tin financed by member States Much litigation worldwide, although main litigation was in the English courts (the Court of

Appeal and the House of Lords: Maclaine Watson v DTI [1988] 3 WLR 1033 (CA), (1989) 3 All ER 523 (HL).)

The main submission for present purposes was that the members of the ITC at the member States were concurrently liable for the debts under both English and international law

It was argued that under international law, members of an international organisation bear joint and several liability for its debts unless the constituent instrument expressly excludes such liability

In the Court of Appeal, Kerr LJ gave the leading judgment, and he summed up the issue as follows:

o – The ITC was a legal entity in international law and that it has farreaching capacities, including the capacity to enter into contracts in its own name. The fact that the ITC had its own separate international personality meant that the member States of the ITC could not be directly y liable for the debts of the ITC

o – However, the combination of the fact that the ITC is a legal entity, and that it can contract in its own name, did not necessarily imply that its members may not be concurrently or secondarily liable for nonperformance of the ITC’s contractual obligations

o – This might be on the basis that the ITC should be regarded as a ‘mixed’ entity, which is a corporate body known to civil law systems, which has a degree of legal personality but for which the constituent members continue to have liability for its debts – like a partnership

o – There was nothing in ITA6 to support the suggestion that the States parties to it intended that they should be liable for the contractual obligations of the ITC if these remained unperformed

o – There seemed to be quite the opposite intention: there was an obligation on member States to provide the ITC with sufficient funds to pay its staff, an obligation to pay an agreed guarantee amount to the ITC, but there was nothing about ensuring the ITC’s ability to meet its debts

o – In sum, no basis for concluding that there is any rule of international law, binding upon the member States of the ITC, whereby they can be held liable – let alone jointly and severally – in any national court to the creditors of the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name

Ralph Gibson LJ concurred. Nourse LJ dissented, and agreed with the Westland Helicopters tribunal.

The House of Lords agreed with Kerr and Ralph Gibson LJJ: – “No plausible evidence was produced of the existence of such a rule of international law before or at the time of ITA6 [the Sixth International Tin Agreement] in 1982 or afterwards.” (Lord Templeman)

Institut de Droit International resolution (1995): – “[T]here is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.”

ILC Articles on Responsibility of International Organisations Article 61 (general rule): “1. Without prejudice to Articles 57 to 60, a State member of an

international organisation is responsible for an internationally wrongful act of that organisation if:

o (a) It has accepted responsibility for that act; oro (b) It has led the injured party to rely on its responsibility.

2. The international responsibility of a State which is entailed in accordance with paragraph 1 is presumed to be subsidiary.

Article 57: “A State which aids or assists an international organisation in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

o (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

o (b) The act would be internationally wrongful if committed by that State.” Article 58: “A State which directs and controls an international organisation in the commission

of an internationally wrongful act by the latter is internationally responsible for that act if:o (a) That State does so with knowledge of the mcircumstances of the internationally

wrongful act; ando (b) The act would be internationally wrongful if committed by that State.”

Article 59: “A State which coerces an international organisation to commit an act is internationally responsible for that act if:

o (a) The act would, but for the coercion, be an internationally wrongful act of that international organisation; and

o (b) That State does so with knowledge of the circumstances of the act.” Article 60: “1. A State member of an international organization incurs international responsibility

if it circumvents one of its international obligations by providing the organisation with competence in relation to that obligation, and the organisation commits an act that, if committed by that State, would have constituted a breach of that obligation.2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organisation.”

Example 1: – Can the UN also be complicit in the breach of international law by a State? Example 2: – Who is responsible to pay the debts of the international organisation? Example 3: – Can the individual member States be held responsible for the acts and omissions of

NATO?

D. Privileges and Immunities of International Organisations

States, diplomats, consular officials, and international organisations all benefit from certain “privileges and immunities”

The justification for State immunity does not apply in the context of international organizationso – Int’l orgs are not sovereign equals;o – They are unable to reciprocate with privileges and immunitieso – The restrictive doctrine of State immunity is also inappropriate in the context of int’l

orgs The basis for the immunities accorded to int’l orgs is that they are necessary for the effective

exercise of their functions Sources of Privileges and Immunities Treaties (as well as customary international law)

o Three types of treaty:o – First, the constitutive instrument of the int’l org in question, e.g., UN Charter, Art 105:

– “(1) The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.– (2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.”

o – Second, general multilateral agreements dealing with immunities of particular international organisations, e.g., Convention on the Privileges and Immunities of the United Nations (1946), and the Convention on the Privileges and Immunities of the Specialised Agencies (1947)

o – Third, bilateral agreements between the international organisation and particular States (such as headquarters agreements and SOFAs)

Headquarters agreements typically provide for the application of local laws within the headquarters area, but subject to:1. the application of relevant staff administrative regulations;2. the immunity of the premises and property of the organisation from search, requisition, and confiscation and other forms of interference by the host State;3. exemption from local taxes except for utility charges; and4. freedom of communication.

Functional basis of privileges and immunities Domestic court decisions:

o – Mendaro v World Bank, 717 F2d 610 (US Ct Apps, 1983)o – Iran – US Claims Tribunal v AS, 94 ILR 321 (Dutch Sup Ct)o – FAO v INPDAI, 87 ILR 1 (Italian Court of Cassation )o – Mukuro v European Bank for Reconstruction and Development [1994] ICR 897 (UK

Employment Apps Trib)o – ZM v Permanent Delegation of the League of Arab States to the UN, 116 ILR 643 (Swiss

Labour Court) What types of immunity are granted?

Usually to four different categories of person:o – the international organisation itself;o – “high officials” of the organisation;o – “officials” (including experts on mission for the organisation);o – representatives of member States of the organisation.

Immunity from jurisdiction: E.g., Convention on the P&I of the UN, Art I, Section 2: – “The United Nations, its property and

assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”

– Pressure to move to a “restrictive” doctrine of immunity (which is problematic) – Alternative argument that immunity should be conditional on their being alternative methods

for the settlement of disputes, e.g., as found in the Convention on the P&I of the UN, Art VIII, Sec 29:

o “The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character

to which the United Nations is a party”. Immunity from execution: See again Convention on the P&I of the UN, Art I, Section 2: – “The United Nations … shall enjoy

immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”

Inviolability of premises, property and archives: o – Convention on P&I of the UN, Art II, Section 3: “The premises of the United Nations

shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.”

o – Article II, Section 4: “The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.”

Currency and fiscal privileges:o – Convention on the P&I of the UN, Art II, Sec 5: “Without being restricted by financial

controls, regulations or moratoria of any kind, (a) the UN may hold funds, gold or currency of any kind and operate accounts in

any currency; (b) the UN shall be free to transfer its funds, gold or currency from one country

to another or within any country and to convert any currency held by it into any other currency.”

Convention on the P&I of the UN, Art II, Sec 7: – “The United Nations, its assets, income and other property shall be:

– (a) exempt from all direct taxes; it is understood, however, that the United Nations will not claim exemption from taxes which are, in fact, no more than charges for public utility services ;

– (b) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the United Nations for its official use …; and

– (c) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of its publications.”

13 Freedom of communication: Article II, Section 9: – “The United Nations shall enjoy in the territory of each Member for its

official communications treatment not less favourable than that accorded by the Government of that Member to any other Government including its diplomatic mission in the matter of priorities, rates and taxes on mails, cables, telegrams, radiograms, telephotos, telephone and other communications …”

NB that not all international organisations are the same! Need to check each individual treaty. Issues in domestic and regional courts Waite & Kennedy v Germany: – Applicants complained that by granting immunity to an

international organisation (here, the European Space Agency) in an employment dispute, Germany had violated the Convention right of access to a court, in Article 6 of the European Convention on Human Rights– ECHR held that there was an “available alternative remedy”

Entico v UNESCO [2008] EWHC 531 (Comm) o – Entico claimed to have entered into a contract with UNESCO in October 2005, to

produce calendarso – UNESCO would give Entico permission to use the UNESCO name and logo on the

calendarso – UNESCO decided that it did not want to go through with the “agreement”o – Entico claimed that it had suffered a loss of around £86,000o – Entico asked them to agree to go to arbitration, but UNESCO refusedo – Entico commenced proceedings before the High Court to recover the £86,000o – Entico argued that the P&I of UNESCO violated its rights under Article 6 of the ECHRo – It sought, inter alia, a quashing of the Order in Council conferring P&I on UNESCO in

the UKo The High Court rejected Entico’s submissions:

– the immunity conferred on UNESCO was ‘clear, unequivocal, and unconditional’;

– So not necessary to decide if Art 6 was engaged: but even if it was, the Court approved the approach of Lord Millett in Holland v Lampen Wolfe ‐ [2000] and Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia [2007]

– (Lord Hoffmann had said in obiter that “there is not even a prima facie breach of Art 6 if a State fails to make available a jurisdiction which it does not possess”: Jones [2007] 1 AC 270, 298).

– And even if Art 6 was engaged, the immunity was a legitimate and proportionate restriction on the rights conferred by Art 6.

– And further: there was an available alternative remedy (international arbitration).

Other persons who have P&I Aside from int’l orgs, P&I are also usually conferred on (i) high officials of the int’l org in

question; (ii) officials (and experts); and (iii) representatives of member States Art IV, Sec 14 of the Convention on the P&I of the UN (which deals with reps of Member States)

provides that these privileges and immunities are conferred: – “not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions

in connection with the United Nations. Consequently a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.”

Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations [1989] ICJ Rep 177:

o – Concerned Special Rapporteurs appointed by the UN Sub Commission on the ‐Prevention of Discrimination and the Protection of Minorities

o – ICJ held that the privileges and immunities that would apply would be those that were necessary for the exercise of their functions, and in particular those that are necessary for the establishment of any contacts which may be useful for the preparation, the drafting, and the presentation of their reports to the Sub Commission‐

Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62

o Concerned Mr Cumuraswamy, a Special Rapporteur of the UN Commission on Human Rights on the Independence of Judges and Lawyers

o His mandate consisted of tasks including to inquire into substantial allegations concerning, and to identify and record attacks on, the independence of the judiciary, lawyers and court officials in Malaysia

o He gave an interview to a magazine published in the UK but circulated also in Malaysia, and commented on certain litigation in Malaysia

o Two companies in Malaysia sued him for defamation, and claimed damages amounting to USD 12 million each

o The UN Legal Counsel, and the Sec Gen, “requested the competent Malaysian ‐authorities to promptly advise the Malaysian courts of the Special Rapporteur's immunity from legal process”

o Additional lawsuits were being filed against Mr Cumuraswamy, claiming a further USD 64 million

o Federal Court of Malaysia dismissed his appeal on the issue of his immunity, stating that he is “neither a sovereign nor a full fledged diplomat but merely an unpaid, part time ‐ ‐provider of information”.

o The ICJ held that he was entitled to immunity with regard to the words spoken by him during the course of the interview

o In deciding whether an expert on mission was entitled to immunity in particular circumstances, the UN Secretary General had a “pivotal role”‐

o Malaysia had an obligation under Article 105 of the UN Charter and under the Convention to inform its courts of the position taken by the Secretary General, and ‐failure to do so rendered the State liable under international law

The domestic legal position Usually general framework legislation (International Organisations Act 1968 (UK), International

Organisations (Privileges and Immunities) Act 1963 (Cth)), and secondary legislation then used to implement the P&I for each int’l org

E.g., International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991 (Cth)