The Nature of International Law

Public International Law Prof. Brown (UWO)

Keith J. Gomes

Fall 1999

Page 1 of 74

The Nature of International Law

What is it? Is it law? Is it a legal system? Does it create binding obligations? Why do countries comply? What is its significance?

Definition

It is a system of principles and rules designed to govern relations between sovereign states (and other international persons).

Public v. Private International Law

Private international law does not necessarily involve governments and states. E.g. situations involving elements within Ontario. Also contracts between two countries. Public international law involves relations between/among governments and states. There is often overlap between public and private e.g. international trade, public agreements such as NAFTA which impact private international law.

Is this body of rule really law? Components of a Legal System

Enforcement

Promulgated by legislature (which has been elected, is in control, has authority and popular recognition) this is the way in which rules are made

Body of rules that purport to govern behaviour (Primary rules)

Courts also general rules, apply and interpret legislation

Secondary rules rules about rules. How to identify/create primary rules, rules of enforcement of primary rules

Legitimacy

Law is determined by a claim to legitimacy. If it is imposed arbitrarily by a dictator, it is not law. But if there were a moral theory behind it, we are more apt to call it law. A rule is legitimate if it is naturally appropriate (Natural Law self-evident by exercise of reason). Alternatively, a rule is only legitimate if it is generally accepted by popular consent (positivism). Or rules are legitimate because they are necessary for common survival.

History

International law has always been Eurocentric and influenced by Western thought and history. Its originates after the breakup of the Holy Roman Empire in the 1500s. The Treaty of Westphalia in 1648 created a system of separate states. In order to survive individually, states had to devise ways to live with other entities. Rules should be naturally appropriate. The 18th century was one of laissez-faire policies we are only bound by the rules which we ourselves have agreed to and the idea of national sovereignty. In the 19th century, with improvements in technology, brutal wars, etc., change was needed hence the Geneva Convention and increased notions of self-determination. The 20th century, with increasing conflicts and incidences of genocide, there was a revisiting of natural law concepts and an expansion of human rights law. With technology came the fields of aerospace and telecommunications law.

The United Nations

The UN can create law by a process in which members agree that a declaration from the legislature becomes law. There is no central government in the UN it is merely a forum for discussion/agreement of resolutions. Adoption of resolutions is subject to the veto of the 5 permanent members.

The Security Council - previously obtained consent from signing of Charter. The signing of the Charter binds signors.

The International Court of Justice

Countries need not accept the jurisdiction of the Court. Only 40 countries currently accept the courts jurisdiction notwithstanding certain reservations. (e.g. Canada has reservations concerning fisheries). The International Court of Justice is an arbitration board it has no universal application. The War Crimes Tribunal is for individuals, not states.

Actions in response to a breach of International Law

If one party fails in its obligations to you, you can ignore your obligations to them to impose adverse consequences e.g. freeze assets, sever diplomatic relations, impose sanctions. This is the enforcement mechanism but there is not central authority. So can we still call it law?

Arguments in favour of calling it law

1. The objectives are the same as any legal system bringing about order and justice between states and individuals. It purports to create rights and obligations and to protect the common interest. However there is not institutional backup for primary rules;

2. It is also law because states generally act as if there is law conferring obligations and rights;

3. Domestic application (e.g. Qubec reference domestic courts look to international law);

4. States by and large comply with the law because it is convenient to their interdependence.

INTERNATIONAL PERSONS

E.g. In a domestic system such as the province of Ontario, subjects have rights and obligations under the law e.g. voting rights (indirectly contribute to the creation of law), ability to enter in binding enforceable contracts, ability to own (etc.) property. A subject may be an individual, a corporation, trust, etc.

There is a direct analogy between this the definition of a person under international law. A person is accepted as being able to act on the international scene. I.e. to make treaties, be subject to regulations, enjoy certain immunities. There is a distinction between original personality (enjoyed in international law by states) and derived personality (derived from actions of original personalities) e.g. the UN and other international organisations. The key player in international law is the state.

Definition of a State

The Montevideo Convention of 1933 contains this definition of a state for the purpose of the treaty: A state as a person has a:

permanent population

defined territory

government

capacity to enter into relations with other states (international relations).

Items in a treaty might generate law by becoming universally accepted custom.

Examples of Exceptions to the Montevideo Definition

Dispute of Western Sahara between Mauritania and Morocco p.55, Citizens are perpetual nomads, so there is no permanent population. The size of the population is unimportant

Nauru borders are constantly shrinking because island is made of fertiliser which it is constantly exporting! Israel the borders are always being disputed but the states still exist. Therefore a state can come into being and exist with territorial disputes as well as changing territorial size.

Government is the central criterion for the candidature for statehood it is related to independence and indicates that a state is in separate self-control. Lebanon in the 80s there was no real government because of civil war but the state continued to exist. Somalia in the early 90s was also ruled by warlords it was still a state. Governmental strife may not undermine requirements for statehood (e.g. republics of former USSR, former Yugoslavia. Civil strife however can obscure the transformation to statehood. Eg. Finland it did not become independent from the USSR till a stable political organisation had been formed and until the public authorities became strong enough to assert themselves.

Key element for statehood

The key element is the capacity of an entity to enter into legal relations. Capacity to enter into relations with other states is both a prerequisite and a consequence of statehood. This is also dependent on an effective government. Is the entity independent, legally created and recognised by other states as being able to enter into international relations. Ontario is not a state because it has no power to enter into international relations.

a) Independence/Sovereignty

A state could be legally independent but not factually independent (p.15)

e.g. the Cook Islands chose to live in free association with New Zealand (they have N.Z. passports, money, army, foreign office, etc.) They are still an independent state.

European Union members have surrendered many of their powers especially regarding economy. Members are still states.

The Congo (p.13, note 4) after independence from Belgium in the 50s, there was no government, but the UN recognised the Congo as a state.

If an entity is factually independent but not legally independent, it will be not recognised by and large. Eg. Rhodesia the white government unilaterally declared independence from Britain. It was not recognised as a state despite the fact that the government operated for a while. Abkhazia is operating independently and is asking for international recognition. It is operating de facto as a state. Taiwan is factually independent but the legality is unknown. The US de facto guarantees their independence, but it doesnt really have independence it is not a member of the UN, etc.

Bangladesh (East Pakistan) broke away and was quickly recognised even though it was created using force. The readiness of other states to admit a state into the club is therefore an important consideration.

RECOGNITION

There is no official body that recognises states. It is done in stages by the different countries. e.g. when the Baltic states broke away from the USSR in the 80s, Latvia was recognised immediately by Canada but not by the US because of political relations between the US and the USSR. Canada had domestic pressure from the expatriate community. Israel is still not recognised by a number of Arab states. There is a piece-meal/patchwork of recognition which illustrates the matrix theory of International Law.

How does recognition happen?

It can be a formal process with the creation of diplomatic relations, or a statement in domestic proceedings, press releases, etc. It can be express or implied.

Why is recognition given?

It is an acknowledgement that other criteria for statehood have been satisfied, but there are usually political reasons. Perhaps because of foreign policy considerations, pressure from expatriate population or military or strategic advantage. In 1982, Parizeau said that Qubec had a democracy, defined borders, minority rights, and a respect for human rights but it was not recogised internationally, and therefore is not a state.

Without recognition, rights and obligations under international law still apply (p.257, excerpt from OAS Charter Art.12). Israel is called upon by the very states that dont recognise it to live up to the obligations of international law.

Tinoko Case (p.257) Costa Rica and UK the UK didnt recognise the dictator rgime but still expected treatment in accordance with international law they claimed damages which had occurred before the dictator rgime had come to power to be paid by the dictator rgime.

Declaratory Theory giving of recognition acknowledges pre-existing state.

Constitutive Theory recognition is a component of the existence of statehood. In reality, many states have functioned as states without recognition. Eg. The USSR was functioning from 1918 but it was only accepted as a state in 1933. China was finally accepted as a state in the west in the 1970s.

Both theories help capture the full picture vis--vis recognition. Consider the practical matter of not recognising a state yet expecting compliance with international law.

Internal effects of recognition

According to Ontario law, foreign states have standing. A state can claim immunity from being sued from someone else. Chateau Gai (p.261) you ask the government if they recognise a particular entity as a state.

What if the State has an abhorrent government? De facto v. de jure recognition

De facto - you recognise the people in control but not their government (de jure).

(p.267, note 2&3 e.g. When Italy invaded Abbysinia and took power from Haile Selassi, the UK recognised the Italian rgime de facto but recognised Selassi (who had formed a government in exile in Britain) de jure. The Abbysianian government had property in England and it was the de jure government who would control it.

The Estrada Doctrine says that there is no recognition of governments you just deal with it as it happens. (Estrada Mexican foreign minister). There might be problems with this in terms of domestic issues.

Gur Corporation v. Trust Bank of Africa p.270 footnote 42

Courts write to foreign affairs department to see if they can interpret it.

How do states cease to exist?

The neatest way is if constituent parts agree to break up and form separate entities. This usually occurs if there is some initial marriage e.g. UAR in 50s (Syria and Egypt). The USSR was a state till its constituents decided to establish themselves as separate states. Also the former Yugoslavia.

If a states existence is extinguished involuntarily by outside force, under international law, that state continues to exist. Eg. When Kuwait was invaded, Iraq was the de facto government but the state of Kuwait continued to exist.

If a state voluntarily gives up its identity to join with another state, it will no longer be recognised as an independent state e.g. Newfoundland joining Canada.

If a state loses one of the criteria set up in the Montevideo Convention, it does not automatically lose statehood, especially when the government is in a state of anarchy.

States do not cease to exist by giving up some sovereignty voluntarily eg. The formation of the European Union, Monaco, Cook Islands

Mandated and Trust Territories

This was the former system adopted by the League of Nations to deal with former enemy territories which were unable to govern themselves. They were mandated to allied states under the guidance of the League. With the birth of the UN, there were trust territories (old mandated territories and surrendered territories). The supervision of these territories was carried out by the Trusteeship Council of the UN. (only remaining e.g. Pacific Islands).

Colonial States see text

Types of States

Unitary States The state is not subdivided. The government governs domestically as well as internationally.

Federal States Constitutions in federal states usually deny the federal government the authority to govern all aspects of internal life. This slightly complicates international law since in international law, each state should be represented by only one authority. With federal states, for internal matters, there is usually not just one authority. When an international treaty is signed, all internal members are bound, but constitutionally, the government may be impeded from entering into a treaty without consulting the domestic governments. E.g. Labour Conventions Case (Privy Council). The federal government ratified certain conventions with respect to labour and some of these actions were covered by provincial jurisdiction. The Privy Council said that the federal government could not undermine the provincial governments through the international law route.

The chief attributes of Statehood

Sovereign Equality. This is found in the UN Charter to which nearly every state on the planet is a signatory (not Switzerland for example).

P.2 of Supplement, Art II par. 1 sovereign equality of all members

P.25 Declaration on Principles of International Law (1970) states agreed on the rules that bound them. It is not a binding document but international custom makes it binding

P.26 Sovereign king, queen, person in charge, answerable to no-one, ability to be sole ruler. Each state is a sovereign unto itself basically, independence is the key factor.

Legal Equality each state has an equal right in the creation of international law, and the same obligations and claims under international law. Equality helps further explain the notion of sovereignty. Each state, regardless of size, strength, etc. is equal under international law to be free from outside interference.

Art. 7 of the Charter even the UN will not interfere in the domestic matters p.30 supplement A to F the attributes of sovereign equality.

International law therefore only exists on the basis of the consent of sovereigns.

Intervention v. interference

Today, however, military strength often dictates actions by states e.g. US bombing Kosovo. Sometimes, you need to look at the big picture, like humanitarian rights, or a refusal by the attacked state to respect the sovereignty of another e.g. the Gulf War. What is the difference between interference and intervention? Are these contrary to sovereign equality? Examples include imposing economic pressure on another country.

When New Zealand declared its harbour a nuclear free zone, the US declared economic sanctions and changes to New Zealands membership in international organisations because the US has a policy of not disclosing which of their ships is nuclear-free.

P.29 of the Supplement equal right and self-determination of people. Every state has the duty to promote self-determination of peoples. So, when Chirac supports the separation of Qubec, is he interfering with the internal matters of Canada or fulfilling a duty to help the self-determination of people?

Is Armed Intervention contrary to the principle of sovereign equality? When is it justified

In some circumstances, armed intervention can also be justified. The Security Council is given the authority by members to make independent decisions when force is necessary and where it should be applied. If force is sanctioned by the Security Council, it is legal. E.g. East Timor force justified because of the Security Council resolution. See Ch.7. Also during the Gulf War, the Security Council authorised the use of force to liberate Kuwait.

It is not contrary to the principle of sovereign equality to exert force on a neighbour if it is in self-defence. Article 51 of the Charter does not allow for pre-emptive strikes, but Art. 51 is not the last word on self-defence. Look at custom. In the War of 1812 (Britain and the US), a pre-emptive strike was okay in some circumstances (when necessary for self-defence). Also in the late 70s, Israel bombed Iraqi factories suspected of producing nuclear weapons. In 1999, the US bombed factories in Kenya and Afghanistan after their embassies in Africa were bombed. Self-defense was the reason given. So pre-emptive strikes are sometimes accepted.

Protection of nationals is a legitimate excuse. E.g. when Reagan attached the country of Grenada during the civil war there in order to protect American students.

Humanitarian justification - when there is a threat to international peace and security e.g. East Timor. If there is not active response from the Security Council, can a state or group of states intervene for humanitarian reasons? E.g. when Vietnam invaded Cambodia. Or in Kosovo the Security Council did not authorise the use of force because of the veto of the Chinese and the Russians. So NATO launched a military campaign. In recent years, there is a general acceptance of this kind of intervention when atrocities like genocide are occurring.

Invitation e.g. the Indonesians invited the UN to help in East Timor

Our Backyard e.g. Monroe and Johnson Doctrines (keep out of American affairs), similarly the Brezhnev Doctrine under the Warsaw Pact

To stop the flow of refugees the country e.g. the US sent troops to Hati. (This was ultimately authorised by the UN).

Economic Necessity (a Canadian justification). E.g. when a Spanish fishing trawler was fishing stocks which would otherwise have swum into Canadian waters, the coast guards were sent out to arrest the fishermen. The justification was economic necessity they were preventing irreparable harm to the fish stock which formed an important part of the economy of certain regions of Canada.

The above list is not an exhaustive, water-tight list but can illustrate how custom is made e.g. to prevent genocide, etc. The Security Council action, however, is water-tight because of the Charter which member countries have signed.

State Succession

Customary international law applies to all states, existing or newly emerging. The following example will illustrate state succession with reference to Qubec. Some of the issues raised are:

Who owns what property?

Who owes what proportion of the national debt?

What citizenship will the people of Qubec have?

What happens to treaty rights and obligations which were made when Qubec was part of Canada?

Three hypothetical problems

1783 Treaty of Paris: This was between the US and the UK after the war of independence which delineated boundaries between American territory and British territory (predecessor government of Canada) in North America. The new entity of Qubec did not enter into this treaty. Canada was successor to Great Britain in this treaty and therefore is obligated and entitled to the rights and obligations pursued for it by Britain.

The rule relies on customary law which has since become a treaty in the Vienna Convention on Succession of States. Although, despite the existence of the treaty, custom is still the reason this rule is binding on all states and not on just the signatories of the Vienna Convention. Article 11 states that treaties fixing boundaries are not effected by succession of states.

UN Membership: Canada is a member of the UN by virtue of it having ratified the Charter. If Qubec becomes independent, is it automatically a member of the UN? No because of the Charter. Article 4 of the Charter (see Supplement) states that Qubec would have to be elected to membership by members of the security council. The rest of Canada would however not have to reapply for membership.

Multilateral treaties: Canada is party to many multilateral treaties e.g. the Land Mines Convention. Would Qubec be bound by the obligations of these treaties? Article 17 of the Vienna Convention says that Qubec would not be automatically part of the treaties but could launch an application of notification to say that they will continue to be party to the treaty. There is the idea of a clean slate whereby a new state can choose to which treaties to wishes to be party. The clean state idea was mainly discussed when colonial powers left their colonies since, usually, with respect to the colonies in Africa and Asia, it was an elite colonial powere governing a large indigenous population.

With respect to bilateral treaties or other treaties like NAFTA (3 countries) would Qubec be able to automatically claim the benefits of these treaties? No this is consistent with the clean state idea. Also the US would not be bound to have Qubec saddled to NAFTA. The US could chose to exclude Qubec. Agreement between the parties would be necessary.

Problems with the Clean slate theory. Perhaps it is problematic to have because of complications in the Vienna Convention Article 34 (p.65). Perhaps this was included because it did not reflect the actual practice. This is only binding to parties to the treaty. Most states on succession would not bother with Article 34 problems.

Summary : So, other than treaties regarding land use/boundaries, the new state would be entitles by custom and treaties to start with a clean state.

Other Legal Persons (Subjects of International Law besides States)

There has been considerable growth in this field with the birth of the UN.

Do people have an international personality?

This was important in the SCC re Qubec reference. The Qubcois were peoples. First nations are peoples. But what are the legal consequences? What is the legal basis for the proposition that peoples have a basis for international personality?

1. Article 1, p.2 Charter self-determination of peoples, Art 55, 73 and 75

2. Declaration of the Principle of International Law p.30 (Supplement) 2nd para.

3. Declaration on granting of independence of colonies p.53 (text) para. 1,2,5

4. Definition of Agression p.831, Art 7 (Exception to use of force) to help people to achieve self-determination, you can use force. Therefore, people are recognised. See Canadian Commentary that follows.

5. International ) p.87 (Supplement) Art. 1

What are people? P.55 (Supplement), Art.1

identifiable group

reasonable homogenous

common language/ethnic background/ religion

Does Qubec have a right to secede unilaterally under public international law?

The SCC asked the question Are they a people?. The francophone majority are a people but not under international law. You need more than just a physical, linguistic or ethnic characteristic. People have the right to secede only if they are part of a colonial power, subject to domination or have been subject to oppression and their rights have been denied in the the participation of the government of Canada. They have the right to self-determination, but not independence. Self-determination must be attained within the state of Canada.

Read p.56 Art. 7, Art 6 par. 7

p.30 (Supplement) 3rd Para.

Importance of territory to self-determination

Status need to have a clearly defined territory. What if people are dispersed ? e.g. native peoples? Self-determination had one primary concern to bring an end to colonialism, to create equal opportunity, equal rights. Therefore, with First Nations, self-determination means giving them more rights within an existing state not independence.

Recourse of the Individual

There are two things to consider rights and obligations. Previously, rights were conferred by your state. If you have a problem with a country other than your state, you had no rights under international law just rights in your state. If your state of citizenship chose to espouse your case as its own grievance, you would be claiming diplomatic immunity. But in this case, the grievance is no longer the individuals, but the states. Recently, however, they have been changes since World War II after the atrocities and human rights breaches. Mechanisms were created to eliminate mistreatment of individuals. Individuals were recognised as having substantial rights against their own state or against a foreign state. This became recognised by custom or treaty. A Canadian, John Humphrey (?) drafted the International Declaration of Human Rights and it was adopted by the General Assembly in 1948. This is not a binding document, just a declaration and there is much controversy about the status of this declaration. Other problems included the cultural differences in trying to agree on what fundamental human rights were. The West focuses on individual human rights whereas the East usually focuses on collective right (to economic progress, to live in a rgime of law and order, etc.) (E.g. of an ideological conflict was the American kid who sprayed graffiti in Singapore: The US felt that human rights = right to be free from cruel and unusual punishment; the Singaporeans saw is as the right of the collectivity to live in a clean city.)

Two treaties do exist The International Covenant on Civil and Political Rights (p.87) and The International Convention on Economic, Social and Cultural Rights (p.79). The latter treaty guarantees the right to free education at the primary level, with eventual free education at the secondary and tertiary level Canada is a part of this!

International Covenant of Civil and Political Rights

Under international law, each individual has certain rights (above and beyond mere rights of citizenship) and this means that there is a procedural framework for people who may make claims when their rights have been denied. You need an international institution/person/ombudsman to whom complaints can be made (a sounding board, a mediator). This was set up in the treaty and could be looked on as one step forward.

How does human rights (evolved to a treaty) enfranchise the individual?

The International Covenant of Civil and Political Rights lays out the substantive rights for humans to enjoy. What happens if a state does not afford these rights? There are procedures if these rights have been breached an international rgime for the benefit of individuals. (See Supplement p.86-7)

Enforcement

1. It requires each state upon ratification to provide a report on how it ensures that the rights enshrined in the Covenant have been upheld. When a current report is required, the Covenant sets up a Human Rights Committee comprised of 18 individuals elected by parties to the Treaty. States may be required to orally defend reports and the response by the committee is publicised. If members do not report, cant really do anything; also reports are easy to doctor. But at least the rgime tries to shine a light.

2. It is optional to be part of the treaty. But it is also an option to be part of the state complaint mechanism. If you accept, your human rights record can be challenged in the public forum of the Human Rights Committee (by other states). Only 25 states (including Canada) have agreed to the process. After this, there is a conciliation process and reports are published.

3. There is an optional protocol by which the individual can complain to the Human Rights Committee that their rights have been infringed. But states have to ratify to this protocol 50 states (including Canada) have signed. There is a procedure for individuals:

Criteria: Have you exhausted all available local remedies in your home states?

Canada has had complaints from aboriginal groups and regarding the fact that it extradites people to the US (which has the death penalty). The Human Rights Committee outlaws the death penalty. Anglophone Qubcois have also contested Bill 101 unsuccessfully. The status of religion in schools was another complaint.

Chapter 10 refers to other human rights organisations and rgimes. Europe has regional human rights rgimes where individual countries can go locally the European Court of Human Rights. The decisions of this court are binding.

War Crimes and the International Criminal Court

The Security Council of the UN set up by resolution a war crimes tribunal for Yugoslavia and Rwanda each containing an appeal structure, judges, authority to set up prisons, etc. See Ch.7 of the Text. The Security Council is charged with dealing with threats to or breaches of international law and security (by sanctions, authorisation of military action, etc). They can take any decision to address breaches to international peace and security (Article 25) and this decision is binding. If member states find a war criminal, they are to arrest them and send them to the Hague for trial. These tribunals are restricted by their constitutions to certain geographical areas and certain times.

A year and a half ago, the UN established the International Criminal Court to prosecute war criminals wherever they are (the Rome Statute). It still has not got the requisite number of ratifications yet. The US has not sighed because its military might be called to the court situated in the Hague.

It is set up permanently at the Hague

It is comprised of 18 judges at 3 levels the pre-trial, trial and appeal levels

Judges will be elected by the parties to the treaty who will have the ability to vote

The Court has mainly been designed to deal with the most egregious crimes to humanity

Cases may be referred to it by a state party to the statute or by the Security Council. The prosecutor has an independent role provided he can get the equivalent of an arrest warrant

Provision if you find an accused person, you have to arrest them and hand them over to the court

There has to be no domestic court willing to try the accused.

The Courts jurisdiction is limited by the fact that if a person were tried in a state, this court has no jurisdiction e.g. Pinochet has been dealt with under the legal system of different states currently, Spain want to try him because he committed crimes against Spanish citizens.

International Organisations:

Public International Organisations (Intergovernmental organisations) set up by agreement between states e.g. UN, European Union

Do they have an existence different from that of the member states that created them?

Non-Governmental Organisations e.g. International Red Cross, the Roman Catholic Church, Amnesty International, International Olympic Committee, International Chamber of Commerce. The status of NGO has been formally recognised by article 71 of the UN Charter. NGOs have consultative status to send representatives to meetings as observers, to submit written materials for circulation to the UN and to use services provided by the Secretariat. They also make and apply rules and standards for their fields of concern. Albeit very influential, they are not subjects of international law unless afforded these rights specifically.

Corporations:

1. government corporations (e.g. airlines). They are private in legal form and objective, but they engage in international transactions at the behest of government policy. They enjoy diplomatic assistance and they invoke certain rights in terms of developing public commercial law.

2. Intergovernmental corporations they bring together a number of governments and private enterprises (e.g. construction of Chunnel, INTELSAT, natural resource development). Controlled nationally.

3. Non-governmental corporations

In general, corporations do not have personality under international law. Multi-national corporations assert an enormous influence on international affairs so people have argued for an international rgime to control the conduct of multi-national corporations. Codes of conduct have been written. A corporation is subject to the laws of the state of incorporation, hence, private international law. So the states themselves should have laws to control corporations but there is not firm international law.

The UN as an Organisation:[see Arts. 1, 2 of U.N Charter on pp. 1-2 of supp.]

After World War II, the drafters of the Charter tried to capture two things

1. To provide machinery for dealing with threats/breaches to peace i.e. to avoid the recurrence of another world war; and

2. To provide a framework for promoting conditions that would likely prevent a conflict (Human rights, economic developments, an end to colonialism, heath care, etc.)

Structure of the UN [Chart on p.37]

Principle Organs:

The General Assembly [Chapter IV of Charter, Articles 9-22]

This is the plenary body of the UN every member automatically belongs to the General Assembly unless expelled (e.g. Yugoslavia and South Africa were temporarily expelled).

It has the widest range of functions and the broadest possible authority. It can consider virtually any matter at all that its members decide to raise [see Arts. 10-17, 12 (exception) etc.] Exception: it cannot deal with matters of peace and security it is is already being dealt with by the Security Council. But if the Security Council is not dealing with a matter (e.g. because of a veto), the General Assembly can take action (e.g. in Korea, China and the USSR vetoed Security Council measures in the war creating a stalemate. So the US orchestrated the Uniting for Peace resolution. When the Security Council stalemates, the General Assembly can authorise the use of force.

Meets regularly every September. Every member is entitled to a seat and each representative stands up and makes a speech.

The General Assembly can create as many subsidiary bodies as it likes to carry out special functions. There are around 8 committees that negotiate treaties, etc. Every member can have members on committees. (e.g. the 6th committee is a legal committee). The "International Law Commission" is significant in the development and codification of international law.

Countries who cannot have embassies because they cannot afford to run one can have a mission and the UN. The General Assembly is also useful for countries that have problems getting together this is useful because all countries are members and many things can occur behind closed doors. The UN provides a forum for parties to get together who might otherwise not. There is a lot of progress with face to face meetings. In the General Assembly, countries usually send their heads of states and it is amazing what can be solved by meeting face to face.

Membership is divided into 5 geographic groups by convention. Where there are committees, there is relatively even geographic representation since members are appointed from each of the 5 groups.

Decisions of the General Assembly are not binding, they are recommendations. They may reflect custom.

(b) The Security Council [Chapter V, Articles 23-51]

Gets the most attention in response to its failures and most recommendations for reform. Most complaints arise in regard to membership composition.

It is made up of 15 member states - 5 of whom are permanent (victorious powers at the end of WWII: US, UK, France, Russia (successor of the USSR) and China (Beijing government although it used to be Taiwan) , 10 each serve 2 year terms (with 5 elected every year) [see Chapter V at p.23 supp.] Canada is a member this year (1999). The 10 members are divided by geographical groups:

5 members for Africa and Asia

2 from Latin America

1 from Eastern Europe

2 from Western Europe and Other

Each state representative is president of the Security Council for 1 month.

Functions & Powers

Its primary responsibility is to maintain international peace and security. Specific powers are spelled out in the Charter (Ch.7) and range from urging states to see the light to providing mediation to imposing economic sanctions and even military intervention. The more common action is not to send in troops, but to send in peace-keeping forces once a truce has been arrived at through negotiation.

Article 25 All members, by signing the Charter, signify that they will accept and carry out resolutions of the Security Council.

They are virtually limitless in power they can do anything to maintain peace e.g. there is no specific authority for the creation of the War Crimes Tribunal, but they created it.

Procedures of the Security Council

It is in continuous operation and can be convened at a moments notice. Non-members (other than the 15) can participate if they want to. The Secretary General or a member of the Council can call a meeting.

Voting Process

There is a limitation. The 5 permanent members have the right to veto an action. If there is no veto, you need 9 votes in favour. The veto does not apply to purely procedural matters. However, there is usually a question Is this procedural to determine the status of a matter and the veto can be used here. So, in effect, the permanent members can use their veto (sometimes referred to as the double veto power).

Development of the veto: Article 27 says that any decision of the Security Council requires 9 members in favour including the consent of the five permanent members. The practice has developed where abstentions do not count as a veto. (E.g. in Kuwait, China abstained and the action was authorised.) Also, absence does not equal a veto. (e.g. during the Korean War, the USSR was boycotting and the Security Council adopted a resolution without the USSR). The structure of the vote is often why the UN is sometimes criticised for being ineffective. This was truer during the Cold War (proxy conflict between the US and the USSR when either country or their allied would exercise their veto.) This stalemate changed after the Cold War with more co-operation between the powers. It is still thought, however, that the 5 permanent member elected in 1945 perhaps no longer reflect current power distributions and perhaps countries like Germany and Japan should also be members. Note that amendments to the Charter can also be vetoed by the 5 permanent members, therefore the Security Council is probably not going to change. The US things that there should be more permanent or semi-permanent member, but without the veto power. Others think that membership should be expanded, but this will give rise to making decisions more complicated.

(c) The Secretariate

The Secretary General is the chief executive of the UN. S/he is elected every 5 years. The Secretariate is the beaurocracy of the UN and is often criticised for being overinflated with too many people. The Secretary General has been implenting reform plans. The Secretary General plas political and admnistrative roles Article 91 describes some of these. He is elected an an individual. There is a huge political process regarding nomination including Security Council approval (subject to veto) and approval by the General Assembly.

CREATION AND ASCERTAINMENT OF INTERNATIONAL LAW [77]

A. Sources of Law [77]

[see p.40 supp. - art. 38 of Statute of the International Court of Justice]

In Ontario, the sources of law are legal statutes, case law and perhaps custom. Secondary sources of law include writings by scholars, etc which help understand the primary sources. There are two concepts present in the law: (1) the legislative process by which laws are generated and (2) the judicial process e.g. the Common Law which evolves by the resolution of individual disputes in courts. These two concepts can usually be researched in material sources such as case books, reports, etc.

For international law, Article 38 (p.40 of Supplement) of the International Court of Justice lists some of the sources of law. Narrowly, Article 38 only relates to the ICJ but it is universally accepted as applicable to other forums.

1. International Conventions and treaties

2. International Custom the way in which states behave towards one another believing it to be pursuant to legal obligations. This conduct creates legal obligations.

3. General principles of law recognized by civilised nations. Most legal systems have principles of a legal process, compensation from a wrongdoer, etc. So international tribunals will refer to these principles as a source of law for resolving international disputes.

4. Judicial decisions, and teachings of eminent scholars. These are subsidiary or secondary sources which may help to elucidate the primary sources. These are not binding, but, as in a civil law system, they may help understand codified law.

Hierarchy of the Sources

1,2 and 3 are primary sources, but 3, practically has a lower hierarchy because it is probably dealt with under custom. Also, it raises the touchy question What is a civilised nation? There is no formal hierarchy but domestically (subject to the Constitution), legislature trumps the Common Law.

Between 2 states, there can be a treaty to put a stop to custom, therefore custom can be trumped by treaty. Also, international treaties and conventions can put an end to international custom. E.g. Diplomatic immunity of diplomats. If a treaty has gaps in it, the gaps in the treaty are still subject to custom e.g. the rules in the UN Charter Article 51 where it says that you are only allowed to retaliate in self-defence when under attack. But custom says that pre-emptive strikes may also be used.

Treaties are usually the result of custom, but it can be the reverse. The very process of forming a treaty by states coming together creates a momentum and custom which influences non-parties to the treaty as well. E.g. the UN Convention on the Law of the Sea delineating the economic zone, high seas, continental shelves etc. After the treaty was written, there was a change of heart regarding resources of the deep-sea bed beyond territorial waters as being part of the common heritage of mankind and that riches discovered would be shared by all. The Reagan government and other governments hesitated because they thought that investors and investing countries would not be properly compensated for their efforts. So the treaty was not ratified by all. States that did ratify were bound by the treaty, and this process caused other countries who were non-signatories also to behave consistently with most of the terms of the treaty viz. the 200 mile economic zone and the 12 mile territorial sea. Therefore, a custom was created. The treaty then became a handy articulation of the rule as reflected by custom. Another example is the Test Ban Treaty. France was bound not to test nuclear weapons in the atmosphere although France did not ratify the treaty. The practical daily impact of new treaties are important.

TREATIES [p.82]

Generally

Treaties are the most important source of IL as between states. Law-making treaties may codify, define, interpret, or abolish existing customary or conventional rules of international law or create new rules for future international conduct. They may also create international institutions. Treaty contracts, whether bilateral or multilateral, do not create general rules of international law. They create rights and obligations like private law contracts.

The basic principles of the law of treaties are set down in the 1969 Vienna Convention (below) which came into force internationally (including Canada) in 1980. Because of the paramount importance of treaties as a source of international legal obligations binding upon states and the diversity and comprehensiveness of the interlocking network of treaties which regulate transactions and relationships between states, the Convention must be viewed as the constitutional basis, 2nd in importance only to the UN Charter, of the international community of states. [82]

[see Vienna Convention on the Law of Treaties, definition in Art.2]

Articles 2 and 3 require that the parties be subjects of international law, intend to create binding obligations under international law, and agree to be governed by IL [83 N1]

4 defining elements of a treaty: absence of one of these does not a treaty maketh!

1. Need an agreement - meeting of the minds (not unilateral)

2. The agreement must be between 2 or more states (international persons)

3. The agreement must be intended to create binding obligations

4. The binding obligations must be governed by public international law.

Treaties are usually written, (p.45 of Supplement Vienna Convention on the Law of Treaties) but there is nothing preventing an international engagement being made orally, provided that the representatives of the parties are duly qualified. May be evidentiary problems though. [84 N4] Prior to the Convention, the law of treaties was just a part of international custom, but after 1980, for states who ratified it, it became treaty-based. Article 2 says that treaties have to be made in writing. One example of an oral treaty was the East Greenland dispute between Norway and Denmark. The international courts said that the treaty was entered into when Norway conceded to Denmark during a chat over drinks in the Norwegian foreign ministers office!) A Canadian example of an oral treaty was the case of Marshall: He was prosecuted for fishing out of season. He claimed there was a treaty right 100 years ago to fish out of season. The terms of the treaty were conducted orally and notes were recorded by the British government. The Courts said that there was a treaty and this superceded other laws.

Pursuant to article 1, the Convention applies to treaties between states instead of international persons. This is less extensive than international custom so custom will still stand. Treaties with or between international organizations are governed by the Convention on the Law of Treaties between States and International Organizations... which has not yet been adopted in Canada. The Vienna Convention is not applicable to treaties entered into between "non-states" [84 N5]

1. Distinguish between unilateral assumptions of obligations

E.g. Nuclear testing cases. Australia and New Zealand tried to sue France to stop testing nuclear weapons in an atoll in the South Pacific. Before the Court decided if it had jurisdiction, France decided to stop because they developed the technology to test underground. The Court accepted this as a binding obligation even though no treaty was signed.

2. Treaties between the British Crown and First Nations groups

This gives extra stature to what is being looked at in an international forum. There are also certain domestic law consequences and problems. If it were an international treaty, the courts will view it more broadly than just domestic legislation. There is a political advantage to characterise it as a treaty rather than a domestic agreement. In international treaties between two sovereigns, if one party breaches their obligations, the other party in not obliged to honour its obligations.

Occasionally, agreements can be entered into by non-international persons, but these have a different effect than an international treaty. E.g. Libya before Gadaffi entered into an agreement with Texaco granting Texaco excess to oil. When Gadaffi came to power, he reneged. In the treaty, Libya said that it was to be governed by both the laws of Libya and international law. So this treaty became elevated to something under international law and therefore became a treaty under international law although there were not two legal persons.

3. Agreement does not equal binding obligation all the time

e.g. Agreements that are not publicised, or agreements that you do not want to be binding. For example, if you have a trade agreement but you add some special concession to one party, you do not want to publicise this concessionary augmentation to the treaty to all other parties. This is a non-registered agreement which is not intended to be governed by law and cannot be claimed against on the basis of obligations. They are entered into by states for political or other reasons without publicity.

4. No obligation under International Law

It is possible that two states enter into an agreement and intend to create binding obligations but not obligations under international law. You need to have binding obligations under international law to have a treaty.

Form of Treaty

There is no particular form for treaty

Bilateral treaties may be very informal like the simple exchange of letters where 2 people are appropriately accredited, like ambassadors, etc. agree to bind themselves to an agreement. It might be oral very rare. Sometimes, they are very formal, the product of a long negotiation process e.g. the Free Trade Agreement (predecessor of NAFTA) negotiations lasted for a couple of years, the documentation was extensive and there was much pomp and circumstance in its signing. In comparison, the Land Mines treaty took only about a year from the initial informal recommendations to ratification. The Law of the Sea treaty took 10 years.

Not necessarily a contract.

The chief distinction in form is multilateral or bilateral (and variations thereof e.g. NAFTA).

Name - could be a treaty, statute, Act, accord, protocol, declaration, etc. (Conventions are usually multilateral treaties; Protocols are usually optional agreements collateral to another treaty) [refer to p. 87 and 83 N3]

Treaty Making [88]

The Treaty-Making ProcessMere signature does not bind the state to the treaty. It only imposes an obligation to act in good faith and prepare for ratification.

The first draft is made by negotiators who do not have the authority to bind their countries. The draft is then put on the table and the states are invited to sign. Representatives from the states will then sign. This signing of the draft does not create the law in a treaty. Signatories then go home because usually, some form of internal modifications are required, like changes in legislature, or other domestic structures.

The next step is ratification. Article 7 of the Vienna Convention (see Supplement) lists the people who can sign: a head of state, head of government, minister of foreign affairs/secretary of the state has automatic authority. Other people can sign but have to be given authority by one of the aforementioned people.

For states who enter late in the negotiation process, they can accede to the treaty.

Multi-lateral treaty making requires some kind of co-ordination. One state or organisation like the UN is elected to be a depository state to let the world know who has become party to the treaty.

Federal Government Authority in Canada

For a federal country like Canada, it might be complicated to decide who can speak for the state. The federal government has the authority under international law. There is some dissent from Qubec regarding this (p. 167) . The Labour Convention Case of 1937 enforces the federal view. Provinces cannot enter into treaties even regarding matters that are exclusively under provincial jurisdiction. However, the federal government cannot form a treaty if it deals with something which is exclusively under provincial control without getting provincial input. Canada can put forth a reservation saying that they will comply subject to decisions from the provinces. Often, it is the provinces that wan the treaty but not the federal government. So the federal government can enter into an agreement with the provinces where the province agrees to indemnify the federal government in case of non-compliance with the treaty. E.g. There is an agreement between New Brunswick and Maine regarding maintenance of bridges between them. This is not a treaty since the parties are not international persons, but covering treaties by the US and Canada will assume that these will be honoured federally and this agreement is then elevated to a treaty under international law.

Legal Effects of Treaties [97]

Do treaties create international law or merely obligations? There is a distinction between law making treaties and contract treaties (like legislation which creates a law for everybody or a contract which creates a mini-rgime only between the parties to it). This is not a very fruitful distinction though. International treaty law is a network of obligations between states. This is not the same as obligations between states not party to the treaty.

A state can ratify a multilateral treaty and agree not to be bound by a certain article. Other states can accept that therefore changing the rights and obligations to/of that state. So rights and obligations will depend on who you are talking about.

Once you have assumed an obligation, you are expected to carry it out in good faith. This is the fundamental rule (Article 26 of the Vienna Convention p.97 of text).

Article 27 provides that once signified that you are bound, then at international law, an internal impediment to carrying out obligations is not an excuse. e.g. The US and New Zealand had a treaty to extradite people carrying narcotics including marijuana. But New Zealands obligations to extradite could not be fulfilled because the Extradition Act and the Criminal Code did not give the magistrate the authority to extradite. So the treaty couldnt be implemented because of an internal impediment and therefore New Zealand was in breach on international law. (Eventually sorted out by the Immigration Department).

When does a treaty come into force?

Perhaps the facts in a conflict arose before a treaty came into force, so one needs to know when a treaty came into force. It depends upon the terms of the treaty where a start period can be set up.

Usually, pre-requisites are ratification or accession.

Even with ratification or accession, there are usually no obligations unless there are a sufficient number of parties who will ratify. E.g. Land Mines, International Criminal Court not in effect because not enough states have ratified them.

If a treaty is in force, a party will not be bound until ratification. Article 18 of the Vienna Convention says that when a state signs the draft (which does not technically make the treaty binding), it has an obligation not to act inconsistently with the obligations which that state will assume later.

Effect on non-parties to the treaty. Once a treaty is in force, it is binding. By and large, the fact that 2 or more states have entered into a binding obligations does not have an impact on another country, but occasionally, it does. E.g. if the third party knows of the treaty and consents to it (not by signing), or if the treaty confers a benefit on the third party, it is implied that the third party consents to it. E.g. the Treaty of Versailles (p.97) gave benefits of more land to Switzerland. But Switzerland was neutral and not part of the treaty. Also, in the Reparations Case, before Israel became part of the UN, it had to recognise the international personality of the UN (Article 34-38 Vienna Convention).

Reservations

Even if a treaty is in force, has been ratified, perhaps a key obligations will not apply to a state because of a reservation by the state. The former practice was that unless there was unanimity by all the parties regarding the reservation, the party reserving would not be part of the treaty. This was changed after WWII in order to have more states who were party to the treaty even though they had small objections. It was better to have a large number of parties rather than parties with marginal reservations to no longer be party to the treaty the flexible approach. (See Genocide Case). As long as the reservation is marginal to the key obligations in the treaty.

What if another state objects to the states reservation?

The second state cannot impose on the state an obligation to step out of the treaty. The state can say that it will treat the state as not being part of the treaty at all. Or, it can accept the state in all other aspects of the treaty except the reservation. Of course, if a state says that it does not wish to be bound by a certain obligation, it cannot force this on another state who might have accepted it. E.g. France accepted the compulsory jurisdiction of the International Court of Justice subject to the reservation that if France decided that the matter was under exclusive domestic jurisdiction, the ICJ wouldnt have jurisdiction. Norway also signified its assent to the compulsory jurisdiction of the ICJ but without any reservations. France sued Norway over a financial matter. Norway took advantage of Frances reservation so as not to be bound by the ICJ claiming it was under exclusive domestic jurisdiction.

Similarities with Contract Law

Article 30 provides the if two treaties conflict, the later one prevails.

Articles 34-38 deal with how 3rd parties are affected by a treaty. 3rd Parties must consent to being affected by treaties. If the treaty gives 3rd party a right, 3rd party will be assumed to have consented to having the right conferred.

Restrictions

Article 38 provides that where a treaty is a territorial treaty, eg. U.S.-Panama treaty concerning jurisdiction over Panama Canal, ...[?]

[see Arts. 19-22 p.49 of Supplement]

Interpretation of Treaties

Practically, it is not very often that there is doubt regarding the treaty being in force, or problems with ratification and reservations. Usually it is clear that a treaty applies. There are usually problems as to what a treaty means. NB Sometimes an internal statute has a treaty attached to it as a schedule to the act. The courts have said that with statutes that have attached treaties, a wider interpretation should be allowed than it only talking about the statute. E.g. a Colombian who worked in the embassy was caught smuggling narcotics. He claimed diplomatic immunity. But his term had come to an end. On looking at the treaty, it was given a broad interpretation whereby he was still under the terms of the treaty and entitled to diplomatic immunity.

Interpretation of Treaties: Interpretation of Peace Treaties Case (1950 I.C.J.) [100]

Court looked at intention based on "natural and ordinary meaning of the terms". It also looked to the "normal order followed" [custom] to support its conclusion, "in the absence of any express provision to the contrary" that the parties wished to depart from it. [101]

Also held that the principle of ut res magis valeat quam pereat (rule of effectiveness) cannot justify the Court in attributing to the provisions "a meaning contrary to their letter and spirit." [102]

Approaches of a Tribunal (p.102 N1)

First use textual (literal) approach - Prime object is to establish meaning of text according to the ordinary and apparent signification of the terms - if words are clear, no need to go further. Eg. The David J. Adams (American & British Claims Arbitration, 1921) [p.104]. A statute listed the grounds for which a US fishing vessel could enter Canada for shelter, repair and no other purposes. A boat cam in and bought bait. The Tribunal said that this did not fall under the treaty right, period! The Court found the words to be perfectly clear and held that no sufficient evidence of contrary intention of the parties was produced to contradict this clear wording.

Look at the intention of the parties (or founding fathers). For example in the Adams case, the defence tried to argue that the intention in the treaty was broader. The only legitimate object is to ascertain and give effect to the intentions or presumed intentions of the parties.

Teleological (purposive) test - interpretation should be in furtherance of the legislative purpose. An adjudicator can apply a purpose of this treaty approach. The general purpose of the treaty counts. It is considered to have an existence of its own, independent of the original intentions of the framers.

Effectiveness approach the Tribunal will strive to avoid an interpretation which gives the treaty no practical effect. They will employ an interpretation which allows the treaty to be fulfilled. E.g. Reparations Case: The UN Charter didnt say that the UN had international personality and could claim damages for the murder of its representatives. But if you look at the Charter as a whole and the purposes of the UN, it is clear that the UN has to be an international personality to fulfill its purpose.

Another example would be the Expenses case in which a number of countries refused to contribute to UN expenses because they objected that these were not justified by the UN Charter. The USSR refused to pay during the Korean War and France refused to pay for military operations in the Congo because the Charter gave no specific authorisation for action. But if you look at the objectives of the UN as a whole, the carrying out of those actions was appropriate in fulfilling its objectives.

Articles 31 and 32 (p.53) employ all of these methods. These articles lay down the general rule of interpretation that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose, and provides that recourse may be had to supplementary means of interpretation including the preparatory work of the treaty. [103 N2] Therefore a broad based approach can be taken in treaty interpretation.

Operation of Treaties [107]

Amendment and Modification [107]

When presented with a problem, the practical questions to ask are: Is the treaty in operation with respect to a particular problem? Has the treaty been amended, suspended, terminated or is it invalid?

International law is not yet fixed with respect to how and under what conditions amendment may take place... If there is consensus that an agreement is to be amended, negotiations can take place to determine the nature of the amendments required. Once the form of the amendments has been agreed upon, they may be embodied in an Protocol of Amendment. If decided that it would be preferable to terminate and replace the agreement, that could be acheived either by terminating the old agreement in accordance with its provisions, or, on agreement by all parties, placing a provision in the new agreement stating that it was intended to terminate the previous one.

Art. 39-41 (p.55 of Supplement) of the Vienna Convention confirms that a treaty may be amended by specific agreement between the parties. The treaty itself might contain provisions for amendment.

Multilateral treaties often have procedures for amendment. The problem arises when some states obligations are changed and others have not. Amendment can also occur by termination and replacement.

In case of a multilateral treaty, the amending agreement only binds the parties to the original agreement who accept it (art. 40(4)).

The amendments may not prejudice their existing treaty rights and obligations (art. 41).

A state that becomes a party to the treaty after its amendment will be considered a party to the amended treaty, except in relation to a party that has not accepted the amendment (art. 40(5))

Invalidity [108] [see Arts. 46-53, and arts. 69-72 - termination / suspension of treaties]

1. A treaty can be seen as being invalid if it is contrary to jus cogens. Article 53 (p.108 N4). This is an international law concept that is universally recognised but the subject for endless debate. Main characteristic of jus cogens is fundamental importance to social order. eg. prohibition against use of force reiterated in U.N. Charter (art.2), the necessary elements for the existence and operation of the international legal system, and other norms that have become so deeply imbedded in IL that they are inviolable, eg. elementary considerations of human dignity (laws for protection of human rights are arguably part of jus cogens). [108-9 N4]. These rules of customary international law cannot be altered by a treaty. For example, genocide, apartheid, slavery, war crimes are contrary to jus cogens. Jus Cogens refers to an open set of peremptory norms of international law that cannot be set aside by treaty or acquiescence, but only by the formation of a subsequent peremptory norm of contrary effect. The principles can be found in treaties or in customs. They are obligations owed by a state to the international community as a whole. . [108 N3]

2. If there has been a manifest violation of the internal ratification process. Article 27 excludes items covered under Article 46.

3. Article 47 if the person giving consent exceeds the authority that the other party knew he had, the treaty is invalid

4. Article 48 -- Mistake of fact may invalidate the treaty but is hasto do with something fundamental to giving consent in that treaty.

5. Article 49 Fraud

6. Article 50 A treaty is void if consent was obtained by corruption or coercion of a states representative.

Article 46 is an important limitation on a state's ability to escape liability for breach of a treaty by claiming it was never bound because of some technical requirement of its internal law. In this respect, the article complements article 27 which prevents a state from justifying its breach of a treaty by invoking its internal law. [108 N1]

Vienna convention, art 66, makes particular provision for disputes about peremptory norms.[see Art. 66]

Termination or Suspension [see Arts. 46-53, and arts. 69-72]

A treaty can end by its provision (Article 54 or 57).

It might contain terms that parties can unilaterally withdraw provided reasonable notice is given.

Treaties cannot be terminated where the number of states still bound by the treaty falls below the number required for the treaty to enter into force.

Article 59 a treaty may provide expressly or implicitly for withdrawal states must give 12 months notice.

Article 60 if one party breaches a material term of a treaty, that excludes other parties from carrying out their obligations. Exception is the Human Rights Treaty because the beneficiary of the obligations are also your own citizens not just citizens of another country. So if one country is killing its citizens you are not excused from killing your own!!

Supervening impossibility (Art. 61 of the Vienna Convention) if there is the permanent destruction of an object/element essential for the execution of a treaty.

Fundamental change of circumstances (Art. 62) is grounds for termination provided that the change in circumstances is unforeseeable i.e. the essential basis for which the treaty was reached was changed, or there was a radical change in the circumstances. E.g. the emergence of a new state or the transformation of a state.

E.g. Ex Parte Dell

Extradition from Canada to the US under an old British extradition treaty. It was argued that this treaty shouldnt apply because Canada was a new entity. The courts said that in this case it didnt apply because Canada took over all the obligations from England (a Commonwealth notion).

Another E.g. ICJ Case involving the UK and Iceland re fishing. The UK commenced an action against Iceland based on obligations assumed by statute regarding the ICJs compulsory jurisdiction including in fishing. Iceland said that there was a fundamental change of circumstances in fish stocks around the coast. The courts said that a fundamental change in fish stocks was not a fundamental change in the context of dispute resolution.

Severance of Diplomatic Relations this is not sufficient to release the other party from treaty obligations.

Art. 64 in the event of an emergence of new norms of jus cogens, and treaty obligations are inconsistent with the new norms, the treaty will cease to be valid. E.g. damaging the environment during the Gulf War might be a new norm. New norms will be escalated to jus cogens by states agreeing on new standards creating new custom.

CUSTOM [p.115]

This is another source of primary legal obligations

2 Components before it can be considered custom:

1. Evidenced in State Practice - must be able to show that states have conducted themselves by certain rules or conduct. It must be consistent, constant and uniform (see Lotus case p.426 a decision of the ICJ).

2. Opinio Juris - - conduct must have been pursued by states out of perceived legal obligation, not just mere convenience, etc.

Custom is binding without the formal consent in the treaty sense. It is binding by virtue of the fact that it is done by the states. It is the creature of the voluntary action of states. It is not a simple process (refer to p.115 in text). It is a living thing that is always changing and often hard to pin down, so international law can often be problematic.

State Practice

There are various ways in which a state can act as evidence to show that an action is in accordance with the rules. E.g. by Canada granting fishing licenses, it says that Canada has jurisdiction for fishing within a 200 miles radius. Canada also complies with other states licenses.

Legislature can also pass an act which declares Canadas jurisdiction. A court can also rule on procedure e.g. when a diplomat asks for immunity, states usually comply.

Specific actions or omissions can also amount to state practice. For example, when the US sent an ice-breaker in the North Western passage, Canada sends an escort ship just to make sure that it is still asserting control.

Statements can also be an indication of state practice when a state says that something is consistent/inconsistent with international law. E.g. of Australia, New Zealand and France re nuclear testing. Australia and NZ pointed out various documents which had been signed earlier condemning nuclear testing.

You can also have statements in the abstract e.g. in UN debates on disarmament or voting countries have made general statements regarding legal rights and obligations.

Press statements and commentaries by foreign ministers are also evidences of state practice. There are therefore many ways to convey that there are certain rules.

Press statements and commentaries by foreign ministers are also evidences of state practice. There are therefore many ways to convey that there are certain rules.

North Sea Continental Shelf Cases: Federal Republic of Germany v. Denmark and v. Netherlands (1969, I.C.J.) [118] Discussion of custom vs. treaty.

Issue rules for determining continental shelf boundaries for adjacent states. Was it the rule of equidistance? No consistency with this rule (p.122 para. 74)

A treaty tried to sort out the rule but Germany, which had not ratified a Convention, was not bound by its provision. Rose question of whether provision was binding as customary IL.

To show that, through positive law processes, a principle in a treaty has come to be regarded as a customary rule of IL, it is necessary to examine the status of the principle as it stood when the convention was drafted, as it resulted from the effect of the convention, and in the light of State practice subsequent.

The status of the rule in the Convention depends mainly on the processes that led to its proposal.

Even if a rule is not customary IL when codified, it may become such because of its subsequent impact on State practice. It is necessary that the provision concerned should be "of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. [121] Even without the passage of any considerable period of time, a very widespread and representative participation in the Convention might suffice, provided it included that of affected States.

An indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interest are specifically affected, would have been both extensive and virtually uniform in the sense of the provision invoked; moreover it should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. [122]

To constitute opinio juris, not only must the acts concerned amount to settled practice, but they must also be such, or be carried out in such a way, as to be a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. [123]

[dissent] It is extremely difficult to prove opinio juris. it relates to international motivation and, being of a psychological nature, cannot be ascertained very easily. [126]

[dissent] To become binding, a rule or principle of IL need not pass the test of universal acceptance. It must only be "generally adopted in the practice of States." The evidence should be sought in the behaviour of a great number of States, possibly the majority, and certainly the majority of interested States. [127]

[dissent] According to classic doctrine, the practice must have been pursued over a certain length of time. The ICJ has not laid down strict requirements as to the duration of the usage or practice which may be accepted as law. [127] A convention adopted as part of the combined process of codification and progressive development of IL may well constitute decisive evidence of generally accepted new rules of IL. The fact that it does not purport simply to be declaratory of existing customary law is immaterial. [128]

Usually a large number of states must be involved in the customary practice, but unclear how many. The more the better. There must be a significant number of states who are engaged in the practice. In the North Sea case, there were 15 parties following the equidistant rule. The majority said that this was enough. The dissent (p.127) said that it was not enough.The longer the practice, the stronger evidence for customary international law. E.g. before any treaties were signed, virtually every coastal state in the world had a 200 mile fishing zone and respected other state boundaries by customary law of the sea.

Flexibility and length of time

Courts pay more attention to states which are actually engaged in the practice e.g. when looking at the law of the sea, more attention is paid to coastal states than landlocked states. Or in aerospace law, you look more at countries which actually have a space program.

Generally, the longer the practice, the better. E.g. the custom of diplomatic immunity is longstanding but space law has only been around for a few decades. The law of the sea was custom for a long time and only became a treaty in 1974. Even before the treaty was enforced, the rules set out in the treaty were already being adhered to. The practice has to be supported by opinio juris states do it out of a belief that it is a legal obligation, not simple out of convenience or courtesy. In the North Sea Case (p.123), the majority said that opinio juris cannot be inferred from consistency and frequency of practice you need other evidence, a subjective motive on the part of the actor that they are doing it in a way that is legally binding. The dissenting judges Tanaka (p.126) and Sorensson (p.128) said that it is rarely the case in the real world that states give a commentary to accompany their actions.

In the Nicaragua case (p.839-40), it was said that in some cases, it might be possible to deduce opinio juris from the act itself. Sorensson and Tanaka said that it should be a subjective test all the time. Note: The passing of domestic legislation is also an indicator that the rules are binding.

Regional or Special Customary Law [131]

"Persistent Objector" rule: Customary international law envisages the possibility that a state can opt out of international custom if, ever since the rule was first mooted, there was a consistent, persistent objection to the rule. E.g. the Anglo-Norwegian Fisheries case there was evidence that the limits for fishing zones was 12 miles. Norway was on record for never having accepted the 12 mile zone. The courts accepted that the rule did not apply to Norway because of a long history of consistent objection. Norway argued that their economy was more maritime/fishing based, while Britain wanted a 3 mile territorial sea because, being a strong maritime power, it wanted to be able to travel with fewer restrictions.

NB if a few states have established a rgime between them, for example, the right of way over a territory, and if this agreement is longstanding and has been regarded as legal, it would be a custom between those states. E.g.:

Explanation for differences in opinions between the Nigaragua Case and the North Sea Case

facts in case were different

change of opinion over time in both cases; now, the rules are closer to the Tanaka/Sorensson dissent

Not watertight just a basis for argument in individual cases.

From custom to treaty

Over time, custom tends to become treaty e.g. the International Law Commission codified customary International Law. Custom is not good at regulating highly technical things because it is not easy to find out what consistent state practices are. So these are usually negotiated and converted into treaty form.

General Principles of International Law

International Law has recruited many of its rules from systems of law which apply in individual states, the rationale being that because individuals regulate interrelations between themselves, states should as well. Some common items found in domestic law and international law include: the notion of a trust with fiduciary obligations on the trustee e.g. when Namibia was a mandated territory of South Africa, international law said that regardless of treaty or custom, since South Africa is managing Namibia for the benefit of its citizens, the obligations of a trustee should apply. Another example would be the fact that a state cannot be found liable if it has not been allowed the chance to be heard.

Must these general principles have evidence in custom (USSR point of view) or are they standalone? The prevailing view is that they are standalone there are rules of international law that are made without custom e.g. environmental law if a state allows activities to go on within its borders to pollute the environment of a neighbouring state, custom doesnt help, but the general practices of law have been breached an the state will be liable.

Ex aequo et bono

This concept is found in Article 38(2) of the ICJ. This is not the same as the Common Law notion of Equity. By this concept, states with a dispute may elect by mutual consent for the court to resolve the conflict without reference to treaties, custom or legal issues just come up with a fair deal. No state has ever used this access to an equitable resolution to a dispute.

Article 38(2) talks about subsidiary sources of the law i.e. what else courts can look at as being supplemental sources of law. Domestically, we look at commentaries, texts, etc. Case law is a primary source of the law. In international law, one looks at text books, case law and writings of scholars. Case law secondary source used to illuminate a treaty, custom or general practice. However this system is more apparent than real; judges often refer to cases as a good source of finding custom or treaty interpretation. Cases are used as if they were authoritative sources.

CHAPTER 4 - APPLICATION OF INTERNATIONAL LAW [147]

National Application [147]

e.g. the captain of a Spanish fishing trawler is arrested for fishing outside the 200 mile limit of the east coast. The arrest was pursuant to a statute of Parliament which made it a crime to fish in that area allowing the Spanish captain to be prosecuted in Canadian courts. So the captain was brought to Newfoundland and prosecuted. The domestic law is the statute. The rule of customary international provided that outside of the 200 miles, there was to be no piracy, no pollution and freedom of the seas and fishing. Therefore, there was a conflict between the domestic statute and international law.

Questions on the conflict of law

What is the relevance of international custom? Assume that the statue had something ambiguous how does the existence of a proven customary international law impact this? If there is no statute, but when the captain of the trawler is the Nfld, he is served with a civil statement of claim my local fishermen who are upset that this activity has created an economic loss? What happens if Canadian tort law provides a remedy but customary international law authorises the Spanish fishing - what is the role of custom? What if there is no custom but a multilateral treaty with an obligation from prosecuting people from other countries even thought the federal statute gives this authority? What is there is no statue but the treaty says that the captain is entitled to compensation outside the 200 mile limit?

Two important variable in answering these questions

1. Are we dealing with the rule of customary international law or a treaty?

2. Is there a statute or not in domestic law?

Two traditional vies between International Law and a states domestic law

1. Dualism (Transformation Approach) the two systems are not necessarily dependent on each other they are unconnected unless the domestic legal system chooses to consciously incorporate international law. This notion reflects the notion of absolute sovereignty. Before a part of international law can become part of domestic law, the domestic law should consciously transform the law (by statute, etc.) into domestic law.

2. Monism (Adoptionist/incorporationist view) there is a single legal system that we live under. International law is automatically part of a states domestic law it is automatically incorporated or adapted as part of domestic law.

In Canada, a combination of the two approaches is used. If it is a treaty, it has to be transformed into domestic law before it can be applied in a domestic court. If it is custom, we are incorporationist i.e. it is automatically adapted by the Common Law. There are reservations to this of course.

Custom

Qualifications for a rule of custom to be recognised as an automatic Common Law Rule:

1. It has to be clearly recognised

2. While a state may accept that it is bound by the rules of customary international law, that international rule does not require domestic enforcement (see Tin Council Case 1988)

In Canada, even before Thakra, customary international law was part of domestic law.

Conflicts between International law and Statutes

See also St. John v. Fraser-Brace Overseas Corp. (p.154)

Where a statute clearly unambiguously imposes a rule contrary to international law, the statute prevails. If the statue is ambiguous, the court will interpret the statute as being consistent with the rule in customary international law. E.g. Gordon

Summary

If it can be established that there is a rule of customary international law, the court will accept it as part of Canadian common law. You can argue customary international law in a court as you would argue the common law. If the case involves foreign law or private international law, then in order to inform the court of the foreign law, counsel will have to provide expert witnesses of foreign law to provide the court with the law. But with respect to customary international law, it is just like arguing the common law no need for experts, etc.

Treaty Conflicts with Domestic Regulations

Treaty law is not automatically a part of the rule in Canada. It must be transformed by legislature. There are 2 constitutional problems with adopting treaties separation of powers and division of powers which sometime impede the transformation of treaty into domestic rules.

Incorporation of International Law into Domestic Law

Before a rule in a treaty can be said to be a rule of domestic Canadian law, the treaty has to be transformed by implementation it has to be legislated by the appropriate branch of government Parliament. If it is not implemented, it does not come into effect. How can this be done?

1. Have a short statute and append the treaty as a schedule to the domestic act

2. Paraphrase the obligations of the treaty and put them into the legislature this are usually only done if some of the obligations are missing from domestic law. This is non-direct incorporation. You can look at the actual treaty to resolve ambiguity because the intention of Parliament was to incorporate the treaty.

If a treaty is not implemented, does it have no effect?

The Corn Growers case says that you can look at a treaty to resolve any ambiguity in the statute. The court presumes that the government and Parliament intend to give effect to the countrys international obligations. So if there is any ambiguity, the courts will resolve it in favour of the treaty. E.g. when the court looks at treaties to resolve statutory interpretation problems. Another example is that Charter interpretations usually cite the Declaration of Human Rights and other documents. So it is common for courts to behave in this way be using international statutes. (Refer to p.192 Lord Denning in Saloman v. Comrs of Customs and Excise)

Even if there is no statute at play, one may be able to use a treaty in various ways. E.g. Torts rescue cases re people falling of ships. Regardless of the provisions in the Canada Shipping Act which was used to formulate the public policy, you can cite international treaties to help articulate a public policy in the country (in civil litigation).

Summary of Domestic Application of International Law

Is it customary international law or a treaty?

If a clearly established rule of customary international law without a statute, the rule is part of the Common Law if customary international law has changed since having been considered as Common Law; the new customary international law will apply. Later cases recognise movement in customary international law which can be likened to the Common Law when considering its capacity to evolve.

If customary international law and a statu