Public International Law – Fall 2005 Kirk Shannon
Public International Law - Fall 2005; Prof. Payam Akhavan
INTRO 5
Part 1 – Nature of International Law 7
(a) J.L. Brierly – Basis of Obligation in International Law 7
Part 2 – International Legal Subjects – 8
A- States 8
A - How do we characterize Statehood? 8
Montevideo Convention on the Rights and Duties of States 8
Austro-German Customs Union Case [PCIJ 1931] 9
B - Sovereignty and Equality 9
Island of Palmas Case – Netherlands v. U.S. 10
Namibia Case 11
C - State Succession 11
Tinoco Arbitration: Great Britain v. Costa Rica 12
S.A. Williams – Succession to Public Debts 12
D – Recognition 13
S. Williams & A. De Mestral – Theories of Recognition 13
Tinoco Arbitration: Great Britain v. Costa Rica 15
B – International Legal Subjects – International Organizations (IGO’s) 15
Reparations Case 16
UN High Level Panel on Threats, Challenges and Change 17
C – International Legal Subjects - Peoples 18
Declaration of the Granting of Independence to Colonial Territories and Peoples 19
Western Sahara Case 20
East Timor Case – Portugal v. Australia 20
Reference Re Seccession of Québec 20
Mi’kmaq Case 21
D – International Legal Subjects – Corporations and NGO’s 21
The Prosecutor v. Simic 22
Part 3 – Sources of International Law 24
English Channel Arbitration 25
Military Activities In and Against Nicaragua, ICJ 1986 26
A – Treaties 26
Vienna Convention on the Law of Treaties 27
Anglo Iranian Oil Co. Case 28
Nuclear Test Cases – Aus v. France; NZ v. France 28
Reservations 29
Reservations to the Convention on Genocide 29
Free Zones Case, France v. Switzerland, 30
Invalidity and JUS COGENS 31
B – Custom 33
North Sear Continental Shelf Cases - Germany v. Denmark and v. Netherlands 34
The Steamship Lotus – France v. Turkey 35
Right of Passage over Indian Territory Case – Portugal v. India 36
Part 3C – Sources – General Principles and Soft Law 37
International Status of South West Africa Case 38
Erdemovic Case 39
Texaco v. Libya 39
Part 4a – National Application of International Law - Custom 40
Foreign Legations Case 41
Saint John v. Raser-Brace Overseas Corp. 41
Gordon v. R. 42
Treaty Implementation 42
Labour Conventions Case, 42
R. v. Crown Zellerbach 43
Conflicts between Treaties and Statutes 43
Re Arrow River and Tributaries Slide and Boom Co. Ltd., 43
Influence of IL on Cdn Law – Determing the Applicable Law to Apply: 44
Comparative Approaches to National Application 44
European Union: 44
Cosa v. Ente Nazionale Per l’Energia Ellettrica, [1964] ECJ Advisory Opinion under art. 177 45
H.P. Bulmer Ltd. v. J. Bollinger SA, 45
Factortame Case, 45
United States 45
Sei Fujii v. California, 46
Part 5 - State Jurisdiction Over Territory 46
Land Territory 47
(b) Acquisition of Territory 47
Island of Palmas Case; Netherlands v. United States (1928), 2 R.I.A.A. 829 48
Western Sahara Case Adv. Op. [1975] I.C.J. Rep. 12 49
Legal Status of Eastern Greenland Case; Denmark v. Norway 49
(c) Boundary Disputes 50
Case Concerning the Frontier Dispute; Burkina Faso v. Republic of Mali, 50
Arctic and Antarctic Areas 51
Part 6 – Law of the Sea 53
A – Marine Zones 54
1. Territorial Sea 54
Anglo-Norwegian Fisheries Case – UK v. Norway 54
Exclusive Economic Zone 55
Continental Shelf 55
The Truman Proclamation 55
Re Newfoundland Continental Shelf 56
Part 7 - Nationality 57
A. Individuals 57
Nottebohm Case – Liechtenstein v. Guatemala 57
Flegenheimer Claim – Italian – United States Conciliation Commission 58
Canevaro Case – Italy v. Peru 59
Iran – US case A/18 59
Stoeck v. Public Trustee 59
B. Corporations 59
Barcelona Traction, Light and Power Co. Case – Belgium v. Spain 60
Electronica Sicula SpA (ElSI Case) US v. Italy 60
Part 8 – State Jurisdiction over Persons 61
A – Subject-Matter Jurisdiction 61
The Steamship Lotus – France v. Turkey 61
Six Bases of Criminal Jurisdiction: 63
Libman v. R. 64
B – Jurisdiction over the Person 64
Eichmann Case 65
United State v. Toscanino [US CA 2nd Cir. 1974] 66
United States v. Alvarez Machain (US SC, 1992] 66
Part 9 – International Criminal Law 68
Nuremburg War Crimes Trials 69
R. v. Imre Finta 70
The Nuclear Weapons Advisory Opinion 71
B – The Ad Hoc Tribunals as Precedents 72
The Prosecutor v. Dusko Tadic 73
The Prosecutor v. Dusko Tadic 74
The Prosecutor v. Delalic, Mucic, Delic & Landzo – The Celebici Case 75
RWANDA - ICTR 75
The Prosecutor v. Jean-Paul Akayesu 75
C. The International Criminal Court 76
Part 10 – Protection of Human Rights 77
A) Individual Rights 77
Toonen v. Australia 79
Velasquez Rodriguez Case 80
B. Human Rights Standards 80
Committee on Economic, Social and Cultural Rights – General Comment – The nature of States Parties Obligations 81
C) Customary Human Rights 82
D) Universality of Human Rights and Cultural Diversity 82
E) Compliance and Enforcement 82
Filartiga v. Pena-Irala 83
Part 10 B – Collective Rights and Self-Determination 83
Mi’kmaq Case 84
Part 11 – State Responsibility 85
The Schooner Exchange v. M’Faddon 86
Trendex Trading Corp. Ltd. v. Cental Bank of Nigeria [1977 UK CA] 88
B. State Responsibility 88
Draft Articles on State Responsibility 89
Corfu Channel Case: UK v. Albania [ICJ 1949] 89
The Jessie, Thomas F. Baynard, and Pescawha 90
Cosmos 954 Claim – Canada v. USSR 90
IMPUTABILITY 91
T.H. Youmans Claims: US v. Mexico [General Claims Commission, 1926] 91
State Responsibility for Private Individuals 92
Acts of Insurgents 93
Circumstances Precluding Wrongfulness 93
C. Enforcement of Claims 95
North American Dredging Company 95
Part 12 – International Dispute Resolution 97
Fisheries Jurisdiction 98
Construction of the Wall Advisory Opinion 100
Aerial Incident at Lockerbie Case 101
Part 13 – Use of Force 101
A. Prohibition of the use of Force 101
B. Justifications for the Use of Force 104
1. The Right to Self Defence 105
The Caroline, UK vs US 105
Nuremberg War Crimes Trials 105
Israeli Attack on Iraqi Nuclear Research Centre 106
2. Self-Defence of Nationals 107
The Entebbe Raid 107
3. Humanitarian Intervention 108
4. Collective Measures Pursuant to the UN Charter 109
19
Public International Law – Fall 2005 Kirk Shannon
INTRO
PIL born out of the collective violence of the 20th century. Born in the matrix two world wars, holocaust, genocide.
· Look at is as a mirror reflecting society
§ Look at the absence of actual sovereign
o Relfection of power realities.
o Law as essentially an apology for power.
o Reflects rather than imposes existing order.
o Redress the historical imbalance that has been created by a system
Brief Overview
· Can be traced to antiquity and ancient civilizations
· Mistake to say only emerged at reformation, but, in many ways went along with development of nation states in Europe and the colonialism that went along with it.
· End of 30 years war – 1648 Peace of Westphalia. à Embodied dissolution of holy roman empire – that church was no longer the authority. Emergence of national identity and rise of absolutist monarchies. SUM: Notion that nation is central or as supreme entity. è Sovereignty
§ Dominance, supremecy in relation to the right to wage war, right to impose one’s will on others to the extent that power realities allowed
Key figure: Hugo Grotius – Dutch
· Proverbial father of international law. Book De jure belli ac pacis – The law of war and peace – classical work of international law.
· Reflection of reality westphalian era – normal status was states were at war unless they concluded a peace treaty between them.
Development of war from knights in shining armour to total war with ideology attached had profound effect on PIL.
Civilized and uncivilized nations – Peace of Westph was only among Christian sovereigns (b/n protest and cath). These nations were part of the civilized world.
· Laws of war were different when fighting b/n civilized nations and fighting non-civilized nations (which continued into the times of Churchill and, to a certain extent today)
Transition from Tradition to Modernity
· Traditional world view at time of HRE had particular mindset – one aspect of which was notion of devine law that was God given. Grotius subsequently still recycled or repackaged this under the guise of natural law.
· With the enlightenment and Weber’s disenchantment we saw rise of Positivism. Notion that sovereignty did not belong to God or nature but to man. Only law that was rightfully law was that which could be imposed by sovereign with power.
o This was captured in Hitler’s “mite is right”.
o International order is reflection of survival of fittest.
WWI
· First stage in transformation to modern intntl system.
· Key devel à 1928 Pact of Paris – Kellog-Briand Pact
o Outlawed wars of aggression – sovereign rights do not extend to right to wage wars of aggression but only to right to self defence.
· Gave rise to League of Nations
o Short lived experiment of collective security that ended with Italian colonisation of a part of Ethiopian and Japan in Manchuria
WWII
· Bluring of distinction b/n civilians and military.
· Other thing that shocked intrntl community – Holocaust.
· Marked a change in our conception of law – return to Natural Law – idea that there are sacred values and an elementary level of humanity that cannot be transgressed. Showed that violence had to be regulated by an international system.
· Showed the dialectic b/n the increasing level of violence and the evolution of the international legal system.
Elements of Change
· UN charter. Made treatment of states of their own subjects an issue of international law. Violence is still subject of international law. Creation of ICC result of Yugoslavia genocide and ICTR was result of Rwanda.
UN CHARTER
Some speak of this as a tranasition from state centered Grotian model to Kantian model.
· Contained express prohibition for use of armed force.
· Nazi war in forefront of minds of drafters.
· Only legit use of force was self defence. Only other legit use is with SC of UN allows for it.
o Eg Korea, Kuwait.
· UN charter succeeded where LofN failed.
· Intro of HR as universal concept. 1948 – Gen Ass.
o Universal Decl of HR (UDHR)
o Genocide Convention (adopted one day before UDHR)
· Revolutionary documents. Early glimmerings of constitutional order (charters, etc.)
Note that under classical international law, the victims and the offenders had to be of two different nations. How then could the Nuremburg trials deal with cases where both were from same country. Enter notion of crimes against humanity – some crimes so shock the conscience of international community. This was done retroactively – which is against the principles of legality b/c of an overwhelmingly compelling situation.
· Introduced notion of individual criminality into an area where states were central - movement away from the idea that the state was an abstraction. Now composed of individs who should be held responsible for their conduct.
Decolonization
· Vast majority of UN member states gained independence after UDHR. Post colonialism and right to self-determination.
Move away from obsession with violence
· External sovereignty becomes curtailed and internal sovereignty becomes curtailed through HR.
· Most signif aspect is proliferation with all sorts of international regimes dealing with trade, develop, law of sea, civil aviation, postal services…..
· New ethos created much of which is imposed by realities. Convergence between power realities and ideals.
Cold War
Shaped the international system. Context within which international law was interpreted.
· End of Cold War we have entered into period of uncertainty.
Questions to consider
· Who makes it?
· It is a reflection of culture and should not be seen as a set of abstract norms.
Structure of International Legal Sys
Sovereign equality is central – all states are equally sovereign. Legal fiction.
· Point is that there is no central sovereign. The state is at center of international law. Can there be any form of law without a central sovereign – no one to legislate, no exec to institute, no compulsory jurisdiction. So how can one say that there is such a thing as international law.
· L. Pospisil in 1971 argued that primitive society law worked based on consent – law is internalized. This only works, according to some, in a society closely knit by kinship….living in stability….etc.
Part 1 – Nature of International Law
Reading – Sept 6th(a) J.L. Brierly – Basis of Obligation in International Law
Two alternate theories of international law1) Fundamental rights doctrine à notion that there are primordial rights rather than rights that are endowed by society. Hobbsean state of nature type argument. Five rights:
o Preservation
o Independence
o Equality
o Respect
o Intercourse
· Rejected by Brierly à State has not been around since the beginning of time but is historically contingent.
· à Most fundamental criticism is that these are legal rights that cannot exist outside a legal system. Rights cannot exist outside legal system.
2) Doctrine of Positivism: Some of the rules to which states are consented to be bound. International law is law b/c of consent. Consent can be implied.
· Problem with this theory: Does not explain why the law is binding. States consent to be bound but does not explain why they consent to be bound. Could equally not consent to be bound.
o Central critique of Positivism à Facts of international life don’t fit into international law. Obligated by force of circumstance to consent to be bound.
o Consent also does not provide an explanation à Auto-limitation to sovereignty: There are limits but they are self-imposed.
Brierly’s response:
¨ Debunks fundamental rights theory
¨ Critiques positivism.
There needs to be new mystery about the source of obligation. Why? – the answer for this question is for philosophy not for law according to Brierly.
¨ What composes international law à how far does it extend and is consent the basis for application.
In 1951 – when ICJ was pronouncing (Reservations to Genocide Case) on why genocide was unlawful, it could not use customary or general principles. Could only rely on Treaty Law.
¨ Note that the convention of 1948 was open for signature and put into force in 1951. How can we assert custom in 1951 after only three years. Therefore, court referred to general principles (based only on genocide being a monsterous crime). Every subsequent case that is referring to this case alludes to customary law and not general principles.
¨ This all to say that Brierly’s point has validity –
Brierly recognises that the difference b/n national and international law does not lie in mystical but rather in the………look this up!!!
Brierly emphasises custom as basis for international law. Order and not chaos the governing principle of the world. Basic idea is not dis-similar to that Hobbes. Emphasis on custom.
· International system is pragmatic social arrangement
· Distinguishes from national system where there are compulsory powers. In international is a loose system with custom as a basis. (Remember that custom at its base is a primitive legal system as opposed to complex).
· International legal system reflects a primitive legal order in which “spiritual cohesion is weak”. Remarkable according to Akhavan – Remember Pospisil – spiritual community allows for sustaining of law in national system.
Purpose of the international legal system (thoughts?) and does Brierly’s response saying that international law is regulating inter-state relations satisfy you?