Reservation

Public International Law Summary 2001
Creation and Ascertainment of International Law
Sources of International Law
-int’l law governs actions between states and represents the laws that they have voluntarily
assented to through conventions, treaties or by usages generally accepted as expressing
principles of law established in order to regulate the relations between coexisting legal
communities with a view to the achievement of common aims
Statute of the International Court of Justice
Article !"
Court shall apply"
a# international conventions expressing rules accepted by states
b# international custom as evidence of a general practice accepted as law
c# general principles of law recogni$ed by civili$ed nations
d# %udicial decisions and the teachings of the most highly &ualified publicists of the various
nations as subsidiary means for the determination of the rules of law
'( )he provision shall not pre%udice the power of the Court todecide a case ex aequo et bono if the
parties agree thereto
-Article *+,decisions have no binding force except for the parties to the dispute
-Article !-.#,in order for the court to accept any rule of int’l law it must fall under either a/ b
or c
-!-.#-d# 0%udicial interpretations and opinions of scholars are evidence by which the rules of
int’l law are determined
-the rules that emanate from the law creating processes in Art( !-.# are hard law there is a
second category of law 1nown as soft law that is not binding eg" 2elsin1i Accords,this soft law
is a general code of conduct for states and though not binding is persuasive and can often lead to
the formation of binding international customs
Conventions" involve multiple states
)reaties" generally only involve a few -./'/#
3ules of Custom
are created by"
1 actual state !ractice-must be consistent, general and virtually uniformly ado!ted
2 4pinio %uris,legal obligations where a state has acceded in a practice for a substantial
period of time without protest
" 5eneral principles of law recogni$ed by civili$ed nations
-ICJ does not follow stare decisis but they use %udicial decisions for comparitive analysis to
interpret treaties/ identify state customs and %udicial opinions
-if the parties have agreed to a set of rules to go to an arbitrator/ such an arbitrator can decide the
rules based upon principles of %ustice and fairness
-where there is a treaty/ it governs
-where there is none/ custom governs
-where there is one treaty state and one non treaty state/ custom governs
English Channel Arbitration ,-67 v( 8rance# -.+99#
:3I;CI:L<" =here there is a treaty that has been changed over time by customs/ that treaty can
be superceded by custom if both disputing parties have adhered to the custom
-however/ this case did not allow that to happen
-the treaty in &uestion was the Continental Shelf Convention of .+*! and the Court found that
there was nothing to show that it had been superceded
-treaties often include cofifications of custom,does the treaty or the custom supercede>
Military Activities In and Against Nicaragua ?.+!@A ICJ
:3I;CI:L<" operation of treaty process does not deprive international custom of its separate
applicability
-reason for this is that if one party breaches a part of the treaty that is fundamental and the other
party see1s to treat the treaty as repudiated/ the laws of custom will still bind
Article B of Vienna Convention on the Law of reaties" Invalidity/ termination or denunciation/
withdrawel or suspension of operation does not affect the parties obligations in international law
independent of the treaty
#reaties
-there is a distinction between law ma1ing treaties and treaty contracts
-law ma1ing treaties are generally those accepted by a number of states eg" .+@. Cienna
Convention on Diplomatic 3elations
-treaty contracts create special rights by operation of the principle of !acta sunt servanda which
are a1in to private law contractual rights
-treaties codify/ define/ interpret or abolish existing customary international law or create new
rules for future conduct
-through the negotiating process treaties push states towards custom and opinio %uris
-treaties may become obsolete or partially obselete if customs or opinio %uris change
-treaties only bind states that are signatories but states can bind themselves by declaring
themselves so bound
-once a rule of custom is identified it can be used against all states that do not protest to the
practice
Vienna Convention "n the Law of reaties,adopted in .+@+ and Canada is a party
-codification of customary international law on interpretation and application of treaties
-6(S( not a party but the state dept( has said that it is a codification of custom
Articles ' E " I# parties must be sub%ects of international law ii#they must intend to create
binding relations under int’l law iii# their agreement must be governed by int’l law
Anglo#Iranian "il Co$!any Case-contracts between private entities and states do not create
binding arrangements between the private entity’s national gov’t and the state
-the presumption that two parties who sign written agreements have a treaty can be rebutted by
evidence of intention to the contrary eg" 2elsin1i Accords/ memoranda of understanding -low
level agreements of an administrative character#
-treaties are generally written but there is nothing to stop states from ma1ing an oral agreement if
the intent to bind is clear,Legal Status of Eastern %reenland Case -.+#
;uclear )est Fan )reaty-Australia and ;G too1 8rance to court over testing in the South :acific
,8rance was not a party to the Nuclear est &an reaty and had not consented to be bound by it
-where there is no treaty obligation and parties consent to arbitration they may go
-where states ma1e a unilateral declaration as to their intention to be bound by a treaty they may
be so bound
-8rance ended up ma1ing a unilateral declaration of acceptance and the claim became moot
-the public communications of a head of state are sufficient to enagage a state if they were
intended to do so
-no special form for ma1ing the declaration is re&uired neither is any quid !ro quo
<ntry into 8orce
Filateral )reaties-most provide that once signed and documents exchanged/ this is enough to
bring the treaty into effect
Hultilateral-provide that the treaty will be adopted by a vote 43 rules of procedure may say that
they must be adopted by way of consensus-depends on the rules of negotiation decided by
-usually provide that signature alone is insufficient/ treaty will only come into force when eg" I J
of states have ratified or acceded to the convention
=hat status does the signature have> 0symbolic,state intends at some time down the road to
implement the treaty/ it is in favour of the treaty and some time later will bind itself
-some have argued that once the treaty is signed/ a state cannot do anything to thwart the process
Canadian )reaty :ractice
,-pg .KK-B#,Canadian :ractice adopts"
a# international agreements between heads of states
b# intergovernmental agreementsL and
c# exchanges of notes -9*M of intergovernmental agreements#
-the term treaty is seldom used by Canada except in relation to peace/ neutrality/ arms control and
6(S(0Canada water problems,Canada prefers the word NconventionO
-Canadian agrements that are called NtreatiesO or NconventionsO re&uire ratification
Conclusion of a )reaty
.# representative of the state must have full powers to give consent of its state
'# the mode of adoption of the treaty must be agreed upon -ie" consensus or ma%ority#
# the means to authenticate the treaty in different languages must be agreed upon
B# steps to assent to the treaty must be set out
-generally/ heads of state then ta1e whatever steps are re&uired in order to ratify
-at the end of negoiation there is usually a signing ceremony but this is a signature to adopt the
text and not to be bound
-the official signing ta1es place at a later date
-if a state has not acceded to the adoption of the text they may still accede to the treaty before it is
officially signed
3atification
Canada’s federal nature ma1es Canadian practice cautious,Canada goes to a multilateral
conference wP a delegation from all interested federal ministries but provincial representatives
have also been included
-Q 3ome Conference/ Canada brought ;54’s on board as official members of the delegation to
voice their views on the proposals
-if Canada is part of the consensus/ Canada will enact implementing legislation -provincial/
federal/ hybrid# before ratification
Canadian Labour Conventions,:rivy Council said that Canada may negotiate as an entity/ but
implementation re&uires cooperation wP sub-national gov’ts,S:LI) :<3S4;ALI)R,treaty
ma1ing is wPI the federal sphere but implementation cannot be done wPo provincial cooperation
-certain unitary states do not feel the same need to pass the domestic legislation .
st
/ they do not
have to concern themselves wP provincial cooperation
-the executive binds Canada but on serious matters the legislature will vote to approve or
disapprove of the treaty
<ntry into 8orce
)reaties can come into force on"
.( 3atification or upon a given period after ratification
'( immediately or after signature
( exchange of notes,the date of the second note
B( ratification by a given number of states set out in the treaty -usually for multilateral
treaties#
-it is the intention to be bound that is crucial to determining the time of entry into force
-treaties can be retroactive or else they can be provisional
-Canada’s extradition treaties,wP one exception/ all are retroactive bPc murder was a crime and
still is,one exception is .+@+ treaty wP Israel that provides that it will only have effect wrt
crimes committed after the treaty too1 effect
-'e Cannon,treaty of extradition was construed to be retroactive because the treaty was silent
on the matter
3eservations to )reaty 4bligations
-in what way do the reservations modify the treaty obligations>
-a unilateral statement made by a state when approving a treaty and assenting to it in substance
whereby it modifies the effect of the treaty on its state
-often has the effect of causing confusion because other states may not accept the reservations,
in League of ;ations vote/ reservations had to be approved by the other acceding states
0only feasible in multilateral treaty obligations
Do reservations have to be approved by all states party>
-not necessarily but/ if the reservations have the effect of nullifying the purpose of the treaty/ they
will not be allowable
-certain treaties provide for no reservations whatsoever
-Law of the Sea Convention in .+!' allowed for reservations but pin-pointed the specific
provisions on which reservations were allowable
Article .+" Vienna Convention" $eservations,state may formulate a reservation unless"
a# reservation is prohibited by the treaty
b# treaty provides that reservations may be made only to particular sections
c# reservation is incompatible with the ob%ect and purpose of the treaty
Article 'K" =here a treaty provides for reservations on certain sections/ states do not have to
accede to the reservation(
-where the treaty constitutes an international organi$ation/ approval of the organi$ation is
necessary for reservations
B(a# acceptance by another state of the reservation means the treaty binds those states
b# ob%ection to reservation does not preclude entry into force between the parties
c# as long as another contracting state accedes to the reservation/ the reservation is effective
Article '." Legal %ffects of $eservations"
.( a# 3eservation modifies the relationship to the extent of the reservation
b# Hodifies the provisions to the same extent for another party in relations with the
reserving party
'( 3eservation does not modify the relationship of other parties to the treaty
( A state ob%ecting to a reservation does not have to respect the provision to which
the reservation applies with regard to the reserving state(
'eservations to the Convention on %enocide Case
ISS6<" .( Can a state be regarded as being party to a treaty to which it has attached a
reservation and to which reservation other party states have ob%ected>
'( If yes/ what is the nature of the relationship between the state see1ing to ma1e the
reservation and the states that have either a# accepted the reservation or b# have ob%ected
to the reservation
( =hat is the legal effect of an affirmative answer to &uestion .( if an ob%ection is made by
a a# signatory state that has yet to ratify b# state entitled to sign or accede but has yet to
do so
2<LD" .( A state can be regarded as a party to a treaty even if there is an ob%ection raised to a
reservation by that state provided the reservation is compatible with the ob%ect and purpose of the
treaty
'( if the ob%ecting states wish to/ they may regard the reserving state as a non-party( If a party
accepts the reservation/ they may treat the reserving state as a party(
( If an ob%ection is made by a signatory state prior to ratification/ there is no legal effect until
ratification and then it has the effect stated in &uestion .( If there is an ob%ection by a state
entitled to accede it has no legal effect(
:g ...-(acta Sunt Servanda-general principle deduced from the law of states,parties that
underta1e to ratify may not impede the treaty’s progress
Article B@" (rovisions of Internal Law" a party may not invo1e provisions of internal law as an
excuse for a failure to perform
(olish Nationals in )an*ig-Na state cannot adduce as against another state its own Constitution
with a view to eroding obligations incumbent upon it under international law or treaties now in
force(O
-where there are successive treaties between two states the latter will prevail to the extent of the
inconsistency
)hird States
-
rd
states,conse&uence of a treaty only binding states that have ratified or acceded is that a
treaty state cannot impose treaty obligations on states that are not bound
-if states party to a treaty desire to confer a benefit on a
rd
state/ this will be binding if consented
to by the
rd
state
Article B,%eneral 'ule 'egarding hird States" A treaty does not create 3ights or 4bligations
for )hird states(
Article *,
rd
state not bound unless they declare themselves to be in writing(
Article @,If parties to a treaty intend to create a right for a
rd
state/ and the
rd
state assents/ a
right will be created( Consent is presumed from lac1 of ob%ection(
+ree ,ones Case +rance v- Swit*erland -.+'# :CIJ
8AC)S" Fy the )reaty of Cersailles -Art( B*#/ 8rance was obligated to negotiate with
Swit$erland -who was not a party# the status of the peoples along their common border(
Swit$erland re%ected the proposed agreement and 8rance abolished the former status of the
territory(
ISS6<" Did Article B* abrogate the status of these territories or did it create an obligation for
Swit$erland to abrogate these territories>
2<LD" Article B* does not abrogate the status of these territories and Swit$erland is not bound
by the treaty(
-this case is more important for its treatment of conferred benefits on
rd
parties
&'" If states confer a benefit on a
rd
party by virtue of a treaty/ and the
rd
party relies on it/ there
is no necessity of having a treaty binding the third party for the
rd
party to have an enforceable
right against the treaty states(
-most common form of third party benefit is usually found in the %A in Nmost favoured nationO
status
Vienna Convention on the Law of reaties
pg * of doc supp( S( interpretation of treaties articles ./ '-codify customary international
law so even states that have not signed are bound
Article .-general rule" ordinary meaningPintent in the context of the treaty
-context shall comprise the preamble and any appendices and indexes
-can loo1 to other instruments that might shed light on the intent,any agreement relating to the
treaty made by the parties
-any subse&uent agreements between the two parties
-any subse&uent practice of the parties
-also any other rules of international law
-special meaning will be given to a term if it is patently clear that parties intended the special
meaning
Art( '-su!!lementary means of inter!retation,can be used if the meaning seems ambiguous
or obscure or would result in a manifestly absurd or unreasonable outcome
-ie" preparatory wor1 such as drafting committee notes/ etc(
International Court of Justice hears two types of cases
.# contentious issues between disputing parties
'# advisory opinions
Inter!retation of (eace reaties Case -.+*K#
8AC)S" 6; general assembly as1ed the ICJ to interpret ==II treaties involving 3omania/
Fulgaria and 2ungary because there were allegations of human rights violations contrary to the
treaties( )he three states refused to participate in the formation of a commission to resolve the
disputes as per the treaty(
-under the treaty/ each state has the right to appoint its own commissioner and a third one must be
mutually agreed upon/ if one cannot be agreed upon/ the 6; Secretary 5eneral can appoint one
ISS6<" Can the 6(;( appoint the
rd
representative to ad%udicate the dispute upon the re&uest of
the other disputing party/ absent the appointment of commissioners from both disputing parties>
2<LD" If one party fails to appoint a commissioner/ the 6(;( will not appoint a third
commissioner(
-it is the duty of the court to interpret the treaties and not to revise them
-even though the Cienna Convention did not come into effect until later/ international law was
parallel to the Convention previously
:3I;CI:L<" Apply the ordinary meaning absent other evidence of intent
)avid .- Ada$s -6S v( Fritain#-arbitral tribunal set up between the 6(S( and Canada dealt with
unsettled issues of maritime law,the treaty in &uestion provided that American fisherman would
not enter Canadian bays and harbours unless they needed water/ food/ wood or shelter
-6(S( ship was arrested/ vessel was forfeited
-Canada had passed legislation enacting the treaty
-the tribunal came out wP a basic :3I;CI:L<" An international tribunal will not be bound by
decisions of domestic courts wrt treaty obligations
-collecting bait was not allowed for in the treaty obligation and fell under the wording Nfor no
other purpose whatsoeverO
4peration of )reaties" Amendment and Hodification
-a treaty can be amended by the mutual agreement of both parties and this can be done by
formally abrogating an old treaty or by inserting a clause in the new treaty abrogating the old
treaty
-an amending agreement can only bind parties to the original agreement that accept the amended
agreement
Cienna Convention Articles B'/ B/ B@/ *'/ */ @B/ @+/ 9.
Article B'-(alidity and Continuance of )orce of #reaties" .( validity of the treaty can only be
impeached/ terminated/ denounced or withdrawn form/ by resort to this convention
Article B-*bligations Im!osed by International Law" Invalidation/ denunciation/ suspension
of provisions does not impair an obligation under other rules of international law
Article B@,Provisions of Internal Law $egarding Com!etance to Conclude #reaties" a state
cannot breach a treaty by reason of technical re&uirements of internal law
Article *'-Coercion of a state by threat or use of force" A treaty procured by force or threats is
null(
Article *-Jus Cogens" A treaty is void if at the time of its conclusion it conflicts with a
peremptory norm of international law
-pg .''#,/us cogens-Nan open set of peremptory norms of international law that cannot be set
aside by treaty or ac&uiescenceO,if there is a norm or rule labelled /us cogens and the treaty
conflicts with this/ the treaty is null to the extent of the conflict
-these are general obligations owed to the international community as a whole
=hat are rules that fall into this category> <g( -.'# freedom of the high seas" cannot divide
control of the oceans in violation of this maxim/ Article ' of 6; Charter" :rohibitions on the 6se
of 8orce/ !acta sunt servanda/ many human rights laws
-torture is also a violation of international law /us cogens
-right to self-determination,may be a /us cogen but there is a difficulty in determining who gets
to exercise this right
Article @B-%mergence of a new !erem!tory norm" If a new /us cogens emerges/ existing
treaties in conflict are void(
Article @+-:rovisions of a treaty voided are of no force/ if acts have been performed in reliance
on it/ a# a party may re&uire another party to establish the position it would have been in
otherwise
b# acts performed in good faith prior to invocation of invalidity are not unlawful
erga o$nes -when there are applicable rules that are /us cogens/ all states are interested parties so
any state can protest or ma1e a claim against another state that violates the norm
#ermination of #reaties
Ex (arte "0dell and %riffin ?.+*A -2(C(#
-6(S(PCanada extradiction treaty,two criminals argued that the treaty was not valid bPc it was
entered into before the Statute of 1est$inister234536
-the Ashburton )reaty was entered into in the .+
th
century by 5reat Fritain on behalf of Canada
-previously/ this treaty had been operativeSstate practice dictated that the treaty had not been
terminated
-the two chargees were exradicted at the end of the day
-the intent of the Statute of 1est$inister is not to abrogate treaties that have been entered into by
5reat Fritain on behalf of a dominion state
S$ith v- "ntario and Minnesota (ower Co$!any--.+.!# the gov’t of the 6(S( and gov’t of
Canada can agree to abrogate a treaty negotiated by 5reat Fritain on behalf of Canada
State Seccession and )reaties
-what happens to treaties entered into pre-secession> 36L< 48 )26HF" when an entity enters
the international scene as an independent state/ it enters the international community with a clean
state except wrt treaties that run with the land such as boundary treaties
-F6) some states might deem themselves bound by all treaties entered into on their own behalf/
others start from scratch and some may pic1 and choose
Clausula 'ebus Sic Stantibus
=here there is a fundamental change of circumstances/ international tribunals have upheld the
possibility that a treaty will no longer be binding
Article @' of Cienna Convention,states that/ the change must be fundamental the parties must
not have foreseen the change of circumstances
-in addition it must be a change that would radically transform the obligations to be performed in
the particular agreement
-existence of set of circumstances must have been an essential basis on which the treaty was
entered into
+isheries .urisdiction Case 6(7( v( Iceland ?.+9A
8AC)S" :ursuant to a .+@. treaty between the two states/ they agreed to refer their disputes to
the ICJ( Iceland argues that the ICJ does not have %urisdiction because the depletion of the fish
reserves constituted a fundamental change of circumstances that abrogated the treaty and %ustified
the expansion of their protected fishing $one(
-ICJ denies that there has been a fundamental change
-in order for this rule to operate to nullify %urisdiction there must have been some change of
circumstances wrt the operability of the ad%udication mechanism and not a change to the
circumstances of the treaty itself
Custom
5eneral Customary Law
.( )here must be a consistent and general international practice among states
'( )he practice must be accepted as law by the international community
-sub%ective element of acceptance is called o!inio /uris
=hat evidence can be admissible to identify general practices>,anything that demonstrates
intentions
-.K#,extract of a stmnt( Fy a Canadian diplomat -ambassador Feasley#,the unilateral acts of
states are influential in generating customary rules of internatinal law especially when duplicated
by other states
-.+9K/ Canada enacted the Arctic 1aters (ollution (revention Act-Canada was asserting the
capability to prevent ships sailing in the Arctic waters from polluting
-6(S( argued that this was a violation of the Law of the Sea and Canada would therefore be
responsible for stopping ships
-Canada sought to %ustify its law,in .+9'-,6; set up a committee to codify the law of the sea
,Canada pushed for special rights for Coastal states in ecologically fragile areas and this
principle was adopted by the 6;SFeasley’s assertion came to fruition
Canada v( Spain 8isheries Case,passed legislation that allowed Canadian authorities to ta1e-
over vessels that violated Canada’s fisheries legislation
-next day/ Canada puts a reservation on International Ct of Justice on the %urisdiction over 5rand
Fan1s
-expanded the area of Canadian %urisdiction on the seas
-Spain argued that this was a violation of customary int’l law and the Law of the Seas Convention
of 3478
-ICJ did not get to the merits bPc of the reservation that Canada made the day after the legislation
was enacted
-had it got to the merits/ Canada would have asserted the depletion of the )urbot population and
argued that the law of the sea is outmoded to the present maritime situation
-turbot cross from the high seas into Canadian waters and bac1
-Canada would probably have had trouble arguing the law on the merits
-however/ this unilateral action rapidly pushed forward inter-state agreement on fishing migratory
stoc1s that legitimi$ed Canadian action in the future
he Stea$shi! Lotus -8rance v( )ur1ey# -.+'9#
8AC)S" 8rench steamer collided with )ur1ish ship( 8rench steamer was arrested upon entry into
)ur1ey( 8rench argued that )ur1ey’s arrest was contrary to international law(
3A)I4" =hat is not prohibited at int’l law is permitted(
North Sea Continental Shelf 5ermany v( Denmar1 ?.+@+A ICJ
-landmass slopes gently down into the water until it reaches the deep seas bed
-international law recogni$ed the exclusive rights of a coastal state to the minerals and resources
on the shelf
-Denmar1/ 835 and ;eth had claims to the ;orth Sea shelf and economic interests in the shelf
-.+*!((Article @ of the 5eneva Convention of the Continental Shelf was the relevant provision
-5ermany was not a party bPc it would have a very small continental shelf and Denmar1 and the
;etheralands would have had more
pghs @K-@. -p.B-*#-touches on the three 1ey issues wrt whether there were principles of int’l
law bound 5ermany
.# =hat was the status of the principle in Art( @ of the convention concerning delimitation of
the shelf space of ad%acent states> Ie" when the convention was drawn up was there a rule
of custom that made the same practice international law
'# Did the treaty produce a rule of custom>
# Did there arise a rule of custom after Article @ was put in effect>
-Court stresses the fact that article @ was not the law as it was but the law as it should be or at best
an emerging rule of int’l law that is not binding as yet
-Denmar1 and ;eth( Argument was more directed to issues ' E
-court says/ state practice must be extensive and virtually uniform and there must be a general
recognition that a rule of law is involved -ie" an opinio %uris#
-the states that too1 up the e+uidistance principle from the 5eneva Convention were all parties
to the treaty or see1ing to be
NAlthough passage of only a short period of time is not necessarily/ or of itself/ a bar to formation
of a new rule of customary rule/ an indispensable re&uirement would be that within period in
&uestion/ short though it might be/ State practice/ including that of State whose interests are
specially affected/ would have been both extensive and virtually uniform in sense of provisions
invo1edL moreover it should have occurred in such as a way as to show gen’l recognition that
rule
of law or legal obligation is involved(O
)wo Conditions"
.( not only must acts concerned amt to settled practice
'( they must also be such or be carried out in such a way as to be evidence of a belief that this
practice is rendered obligatory by existence of a rule of law re&uiring it ie opinio %uris
- states concerned must feel that they are conforming to what amts to a legal obligation
- fre&uency or habitual character of acts itself is not in itself enough
- treaty is good evidence of state practice and opinio %uris even though it is not binding on a state
who is not a party to treaty
- . party even though it may agree that have customary rule on pt/ may say that it’s not binding on
them if persistently ob%ect
- but if only ob%ect subse&uent to a dispute arising/ then rule still binding
3egional or Special Customary International Law
Can there be local as opposed to universal customary law>
'ight of (assage over Indian erritory 2(ortugal v- India6 ?.+@KA -ICJ#
8AC)S" :ortugal held several enclaves of land within India and claimed a right of passage
through Indian territory to them and alleged interference with this right by India
ISS6<" Can there be a rule of custom between two states>
3A)I4"there can be a rule of customary international law between two states that have consensus
conduct between themselves and that rule will be binding
-usually the rule is a long-standing practice that has not been ob%ected to in the past
Asylu$ Case -Columbia v( :eru# ?.+*KA ICJ
8AC)S" Columbia sought to give refuge to a :eruvian diplomat and :eru ob%ected(
ISS6<" Is there a rule of custom which allows Latin American states to give such asylum>
-dealt wP the same issue wPI the 4AS" =as there a rule of custom wrt diplomatic immunity
-court ruled that S( American countries did not have the re&uisite consistency of practice
-even if there was a rule/ this rule would not have been binding on :eru bPc it had !ersistently
ob,ected to the rule
Nparty which relies on a custom of this 1ind must prove that this custom is established in such a
manner that it has become binding on the other partyO
-Labour Conventions Case,Canada must have legislation implementing the treaty
-wP customary int’l law/ there is no need for legislation/ if a Canadian court is satisfied that a rule
in &uestion exists and Canada has not protested/ our %udges ta1e notice of the rule
-the difference between the two is that it is part of the fed’l gov’t’s prerogative to attend
Conventions but the power to bind must be chec1ed by the legislature
-wP custom/ the view of the court has been there is not the same need as with treaties for
implementation legislation
-3e Newfoundland Continental Shelf-Did the Continental Shelf off of ;8LD( Felong to Canada
as a federal whole or to the province of ;8LD>(,Is there a rule of int’l law that provides that a
coastal state owns its own shelf>--Q time reference was heard there was a rule of custom of
sovereign rights to the continental shelf
-terms of ;fld(’s confederation dictated that ;fld( =ould maintain control over territorial rights to
their lands and sea,=ould customary int’l law have given ;fld( 3ights at the time of its
entrance into the union>
-;o/ at the that time/ no rule of int’l law(
'e Seccession 'eference-loo1ed to the ICJ rules to determine the applicable rules for the S(C(
-=hat will a Canadian Court do if there is a domestic rule that conflicts with international law>,
S(C( will try to harmoni$e conflicts through interpretation but if there is an insurmountable
conflict/ %udges will follow domestic law over int’l law
5eneral :rinciples of Law
-fill any gaps left absent treaties between disputing states andPor customs based on state practice
and o!inio /uris/ Article .-d# of ICJ" Courts can loo1 to subsidiary means to interpret treaties
and int’l custom
-state A expropriating wPo paying proper compensation,loo1 to principles of Contract Law
#Char*ow +actory Case" NIt is a general conception of law that any breach of an engagement
involves an obligation to ma1e reparationO
International Status of Southwest Africa Case adv( 4p( ?.+*KA ic%
Court was as1ed to advise on the status of ;amibia while it was under the control of South Africa
,
ISS6<" 8ollowing ==I/ the League of ;ations set up a system 1nown as the mandate system to
ta1e from the defeated countries their colonial possessions and to put them into a special system/
the idea was for these colonies to be given in trust to other states within the League to bring
forward the mandated territory towards independence
-;amibia was a colony of 5ermany and was placed under the trust of South Africa
-aparthide policies were extended into ;amibia and the 6;5A was trying to see whether
Southwest Africa was still under the mandatory control of South Africa 43 could the 6; treat
the mandate system as terminated and tell South Africa they no standing to govern ;amibia
-=hat was the status of South Africa’s power over ;amibia>
-Court concluded that South Africa was obligated to act in a fiduciary capacity to ;amibia and
could not act to its detriment
-Court came to this conclusion by stating that the mandate system was a1in to a trust in Anglo-
American law and the conce!t of a trust was a general !rinci!le of law
2<LD" South African attempt to absorb ;amibia was a breach of fiduciary duty(
)iversion of 1ater fro$ the Meuse Case -;etherlands v( Felgium# -.+9# :CIJ
ISS6<" where two states share a water system it is a rule of general int’l law that in such a
situation/ absent a treaty/ the general principles of e&uitable apportionment and reasonable use
should apply and these have been deduced from domestic principles of law>
3A)I4" 6nder Article ! of the Statute the court has the freedom to consider principles of e&uity
as part of international law( As such one party that has not performed its obligations cannot ta1e
advantage of a similar non-performance of an obligation by another party(
4ther Sources of Law
Lawma1ing through International 4rgani$ations,role of the int’l law commission
-.+B9-I(L(C( set up as a branch of the 6(;(/ commissioners are elcted by 6(;( and sit as
individuals and not as government representatives F6) a large number of these commissioners
come from their government’s foreign ministry/ several are continuing on their gov’tal %ob while
attending Commission meetings
-their goal is to both expound existing principles and to drive the evolution of int’l law --pg .*9#
Cienna Convention was result of several years wor1 by the ILC -this is not a permanent %ob/ meet
during the summer for ! wee1s of sessions
3esolutions-when the 5en’l Ass/ Sec Coun( 4r other agencies of the 6(;( such as 6;<SC4
produce resolutions/ what is their value>
-they are not treaties/ they are of a non-binding nature but they can indicate state practice and
o!inio /uris
-but their weight depends on how they were adopted -ie" consensus/ ma%ority/ dissentions/ etc(# as
to whether they are a customary rule of int’l law
-Nthe state in &uestion/ while not bound to accept the recommendation -in 6; resolutions#/ is
bound to give it due consideration in good faithO
1estern Sahara Case-in the colonial context the int’l court said that these types of resolutions
adopted wP support from academics and the states themselves/ can lead to a determination that a
customary rule exists
exaco v( Libya-)exaco made an agreement wP Libya to extract oil but the parties had agreed to
an arbitration clause in the event of a dispute an arbitrator would apply rules of int’l law
-a state is obliged to compensate according to the rules of international law and the compensation
must be determined in accordance with the rules of customary international law
Legality of the hreat or 9se of Nuclear 1ea!ons Case ?.++@A ICJ
ISS6<" is the threat or use of nu1es a violation of international law>
-resolutions can have the effect of demonstrating the existence of an o!inio /uris
-to determine whether this is so must loo1 at context and conditions of adoption of the resolution
-court concludes that the resolutions relied upon to show illegality were not adopted by unanimity
and thus there is no customary o!inio /uris or customary state practice
Nicaragua Case-court deals wP .+9K Int’l Convention on the Declaration on the 6se of 8orce and
of 8riendly 3elations between states-there is an obligation not to interfere in other states affairs
and to refrain from using illegal force
-this is an elaboration of the commitments ta1en in the 6(;( Charter
-but the word NdeclarationO does not mean it will be considered a rule of customary international
law
States and Statehood-Cha!ter II
-6(;( system deals wP sovereignty and e&uality/ the right not to be intervened in// the right not to
be the sub%ect of aggression/ the right not to be fuc1ed with without giving voluntary consent
Montevideo Convention --.+B#
-parties were the South American countries and the 6(S(
-delineates the formulation of the basic attributes of states
a# permanent population" there is no minimum re&uirement for a population/ it is not necessary
that the population has the nationality of the new state
b# defined territory" no minimum reu&irement/ a state can come into being and exist despite
border disputes eg" Israel
c# government
-civil strife within a state is not always determinative of the non-existence of government but
some form of government is a central characteristic of an existing state
-existing states can lose their statehood by means of agreement to %oin another state
d# capacity to enter relations between states-both a prere&uisite and a conse&uence of statehood
-these characteristics are relatively uncontroversial but one may &uestion to what extent these are
fulfilled by existing states
-entrance into the 6; system does not necessarily imply recognition by the other 6; states
-states will generally recogni$e other states and governments through independent actions of
states
-Fut what are the legal effects of recognition or non-recognition>
;ote JB,after the brea1-up of former Rugoslavia several of the republics were admitted to the
6;/ 8ederal 3epublic of Rugoslavia did not apply for membership to the 6;,in order to
recogni$e a state there must be +P.* members of the Security council in favour and the *
permanent members cannot vote against
-5eneral Assembly of the 6(;( must then accept the state as a new member by a 'P ma%ority
-83R did not want to be accepted as a new member it wanted to go into the existing seat of the
former Rugoslavia,this was not accepted by the 6(;( and the practical conse&uence was that
Serbia-Hontenegro did not participate in the 6; and its wor1
-there have been dramatic changes in the last few months and 83R applied for membership in
December/ 'KKK and were accepted
Austro#%er$an Custo$s 9nion Case Adv( 4p( -.+.# :CIJ
8AC)S" According to the treaty of Saint 5ermain/ Austria could not cede sovereignty without
approval of the League of ;ations( Austria entered into a free trade agreement with 5ermany(
ISS6<"when one state enters into an economic agreement or partnership with another state does
this mean that a state is giving up sovereignty
-as long as a state is not placed under total control by another state it will retain its independence
Sovereignty and <&uality
Article ' of 9N Charter,N4rgani$ation is based on principle of sovereign e&uality of all its
membersO
--pg(.9# Island of :almas Case -6(S( v( ;etherlands# -.+'!# Arbitral Decision between 6(S( and
;etherlands over an island( In .!+!/ Spain ceded the :hillipines to the 6(S( Ret/ the Dutch flag
was flown there(
2<LD" the Dutch were in real occupation of the territory/ the Dutch flag was flying there/ they
spo1e Dutch( =ithout manifesting its territorial sovereignty over a territory in a manner
corresponding with the circumstances/ a state cannot fulfil the obligation of protection of a
territory(
-if the 1ingdom of Spain did not have title/ they cannot cede title in wars
)aiwan-defined territory/ wP gov’t/ permanent population and a capacity to enter relations with
other states F6) they are not a member of the 6(;( and have only been recogni$ed by a handful
of other states
-post ==II/ the commies pushed Chiang 7ai she1 out of mainland and into 8ormosa -)aiwan#
-in .+9K/ the 6; recogni$ed the Fei%ing gov’t instead of the ;ationalist gov’t in )aiwan
-result is that the )aiwan gov’t still thin1s of itself as the gov’t of China and the mainland gov’t
thin1s of itself as gov’t of China and )aiwan
-independence once gained entails a legal right to independence that cannot be revo1ed by other
states thus in :ersian 5ulf =ar/ 7uwait though having lost its independence in fact maintained its
right to independence and this %ustified 6; action

Jurisdiction 4ver the :erson
-in order for a state to enforce its laws it re&uires more than %urisdiction over territory/ it re&uires
%urisdiction over the person
-normally a state re&uires custody ove rhte person involved in order to execute its will
-if the state has custody of the individual/ it can exercise its right to punish sub%ect to human
rights restrictions
-where the state does not have custody/ international law has developed a piece-meal approach to
enforcing state law
Abduction from a 8oreign State
-there is controversy in int’l law over whether a state that has ta1en a fugitive by 1idnapping or
other illegal means -not legal extradition# can 1eep the fugitive within their %urisdiction to stand
trial
-Canada/ 6(S( and 67 maintain that once the fugitive is captured/ they should not escape trial
because they were captured by illegal means
N$ala ca!tus bene detentusO
9nited States v- oscanino 6SCA
8AC)S" )oscanino was forcibly ta1en from 6ruguay by 6(S( agents and interrogated/ tortured
and flown to the 6S(
ISS6<" Do the means used to capture a fugitive affect the ability of the power exercising
%urisdiction to bring that fugitive to trial>
3A)I4" )he principle that the means used to capture a fugitive are irrelevant is no longer in
force( If a person is abducted illegaly they have the protection of the due process clause of the
.B
th
amendment(
9nited States v- Alvare*#Machain 6SSC
ISS6<" Does a forcible abduction eliminate a stae’s %urisdiction to prosecute a national of a state
which it has a treaty with>
3A)I4" Despite the operation of a treaty/ the treaty does not preclude a state from ta1ing steps
outside of the treaty to secure the presence of a foreigner in its state
International 4rgani$ations" )he 6;
Aerial Incident at Loc:erbie Case
After the Loc1erbie bombing the 6S sought to extradite two suspected terrorists( Libya would
not extradite despite a SC resolution that demanded extradition or else sanctions( Foth Libya and
the 6S were parties to the Hontreal Convention which provided for extradition or prosecution at
the national’s states choice( Libya argued that they were complying wP the Hontreal Convention(
-ICJ decides that the SC resolution ta1es precedence over the Hontreal Convention/ Libya agrees
to extradite and have defendants tried under Scottish criminal law at the 2ague
Article .K of 9N Charter"-If there is a conflict between an International Agreement and
obligations under the Charter/ the Charter will prevail(
'e!arations CaseAdv( 4p( ICJ ?.+B+A
8AC)S" 6; mediator was 1illed in Jerusalem while it was under Israeli control( Israel was not
yet a member of the 6;( 5eneral Assembly as1ed whether it had the legal capacity to launch a
claim against Israel for compensation(
-the 6; is an international person and thus has the capacity to launch an international claim
-in assessing this reparation the 6; has the authori$ation to include damage suffered by the
victim or by persons entitled through him whether the offending party is a member state or not
-the general consensus that brought the 6; into existence ma1es its agents and organs legitimate
and as such/ even though the offending state is not a member it can be liable for damages to the
6;
-powers possessed by an Int’l 4rg( do not have to be set out in its Charter but can be implied so
far as is necessary for the organi$ation to achieve its functions
;on-5overnmental 4rgani$ations
-6; Charter Article 9.,provides that the economic and social council may give consultative
status to ;54’s
-this permits ;gos to send representitives to meetings/ submit written materials for ciculation/ use
services provided by the Secretariat
International Court of .ustice
-.* %udges elected for + years,=(<( and othersT*/ ' <</ Africa E H</ Asia/ ' Latin America
,elected by the 5eneral Assembly and the SC
-%udges serve for + years and may be reelected,five seats come up for reelection every three
years
-Canada has only had one %udge on the court
-Canada has had ad hoc %udges ie" when a state is party to a dispute/ they must have a %udge from
their country on the panel for the purposes of their claim
-this happened in the +isheries .urisdiction case
-where several states are being sued together/ only one %udge ad hoc will be appointed
-each state has a national group whose members are members of the :ermanent Court of
Arbitration and nominate %udges to be elected for their group
:arties Fefore the Court
.# members of the 6n are i!so facto parties to the Statute of the ICJ
'# non-members may become party to the statute by accepting conditions laid down by the
5eneral Assembly -Swit$erland did this as well as Japan ?prior to be admittedA#
# a state may voluntarily accept the %urisdiction of the court by submitting a declaration to
that effect with the Court registrar
International Court of Justice-6(;( organs and agencies are the ones that usually see1
clarifications in 3eference cases
-preliminary matters wrt state-state litigation
.# Does the Court have %urisdiction>
-Art( @-@# Court has the power to determine whether or not it has %urisdiction
-Art( * allows for the court to give default %udgement provided it has %urisdiction and the
claim is well-founded in fact and law
Fut-none appearance of the respondent is a clear indication that the %udgement will not be
honoured
-Arts @' E@,a state may be granted intervenor status,Land; Island and Mariti$e
+rontier )is!ute -<l Salvador v( 2onduras# ;icaragua was given intervenor status bPc its
interest might have been affected by the Court’s decision
-Court may be preclouded from exercising %urisdiction despite the fact that both parties have
assented if the %udgement could affect a
rd
non-assenting party
eg" Case Concerning East i$or,:ortugal attempted to bring a claim against Australia bPc
Australia had concluded a treaty wP Indonesia that allowed for the abridgment of the right of
self-dtermination of the peoples of <ast )imor,Court refused to exercise %urisdiction bPc of
the impact a decision would have on the treaty rights of Indonesia a non party to the dispute
-p B!,detailing of the three ways in which the ICJ is going to be able to ta1e %urisdiction
a# by special agreement to go before the court and submit their dispute and provide
the court with the &uestions they wish the court to answer in giving their
%udgement
-eg" %ulf of Maine-deals wP the delimitation of the 5 o H
-Canada and the 6(S( went before a special chamber of the court
-both parties re&uested a panel of * %udges from western countries to arbitrate
their dispute
b# by a comprimisory clause in a treaty
-mostly with multilateral treaties that provide in the event of a dispute over treaty
obligations which cannot be solved by negotiations or other means
eg" Iranian <ostage a:ing case in which the ICJ was faced with the 6(S( as
applicant arguing that Iran had violated its obligations under the %eneva
Convention in condoning or not protecting the diplomats from the actions ta1en
by the Iranian terrorists
-both states were parties to the 5eneva Convention and that Convention provided
for the referral of disputes to the Court
-bigger problem was that Iran would not appear in Court unless the Court would
examine the CIA’s encroachment on Iran during the Shah’s reign
-the court is restricted in that it cannot deal without the consent of the parties in
one of the three forms
-pursuant to Art( */ Court can give default %udgement if it is satisfied that it has
%urisdiction/ but this will still re&uire the applicant to ma1e submissions
-ALS4 Loc:erbie case,6S/ 67 and Libya were parties to Montreal Conference
and this gave the court %urisdiction and was prepared to entertain the merits of the
case which concerned the elimination of economic sanctions against Libya/
Libya argued this Convention gave two options/ extradite or prosecute
-6S claimed %urisdiction on the basis that the plane was American and most of
the passengers were American/ 67 on basis of the fact that the plane crashed in
67
-Hontreal Conference stated that where there are no extradition treaties/ states
may prosecute according to the convention/ Libya argued that NmayO meant that
they also Nmay notO,Libya offered to prosecute on their own bPc they doubted
the ability of the Libyan nationals to get a fair trial in either country due to the
state of international relations between the nations
c# declaration under Art( @-'# N4ptional ClauseO,most controversial/ states may
in advance of a problem arising/ as1 the court to ta1e the reigns on the basis of
reciprocity in all legal disputes dealing with treaty interpretation/ breaches of
international obligations and reparations
-these declarations have been made by a number of states but fre&uently/ most
states attach reservations
-when a country accepts %urisdiction of the court it must be a unilateral
-disputes with members of any other country that is a member of the
Commonwealth
-bPc it is based on reciprocity/ each party can benefit from the other states
reservations
-ie" India has a reservation that any state that is a member of the Commonwealth
can bring claim against it/ as such/ :a1istan can bring suit
-p ** reference to the fact that when the 6( S( had its declaration before the
Court it had a reservation called Nself %udgingO over anything that was within 6(
S( %urisdiction as ad%udged by the 6( S( itself
+isheries .urisdiction Case -Spain v( Canada#
8AC)S" Canada arressted a Spanish vessel pursuant to the Coastal +isheries (rotection Act for
violating a $one of fisheries conservation( Spain alledged that this was a violation of the law of
the 2igh Seas and attempted to bring suit( Canada disputed %urisdiction of the Court pursuant to
a reservation made upon the court’s %urisdiction(
3A)I4" In examining the text of a reservation on %urisdiction the court will attempt to ascertain
the intentions of the drafting state both from the face of the text and from extraneous contextual
evidence as to intention(
-the court does not have %urisdiction to hear the dspute as it is covered by Canada’s reservation
'# ;ationality of Claims
-a state will only espouse the claims of its nationals
-Notteboh$ Case,Lichtenstein v( 5uatemala
-;ottebohm was a national of 5ermany/ ==II was declared and he was afraid that his
propert would be confiscated in 5uatemala as an enemy of the state/ he went to Lichtenstein
and got citi$enship
-his property was ta1en away in 5uatemala
-post ==II/ Lichtenstein brings this claim on behalf of ;ottebohm and 5uatemala argues
that he is not a genuine national and thus/ Lichtenstein does not have standing
-lin1 between state giving nationality must be genuine/ voluntary
-5uatemala was successful in the case because the court viewed the attainment of citi$enship
was a scam
&arcelona raction,Felgium v( Spain
Company was incorporated in )oronto/ board of directors meetings/ head&uarters office in
)oronto/ traded on )S<
-company was essentially li&uidated by Spanish authorities under Spanish ban1ruptcy rules
-Canada did not ta1e the claim which would have made sense bPc the company was
essentially a Canadian entity
-Canada does not have to and they don’t have to give reasons why they don’t
-ma%ority of the shareholders were Felgian and so Felgium tried to espouse the claim on
behalf of the Felgian shareholders
-Court found in favour of Spain and thus/ Felgium did not have standing
-the only way Felgium could have had standing was if Farcelona traction had been in%ured by
Canada
# <xhaustion of Local 3emedies
-when an individual person or corporation or their property is in%ured by another state in
violation of an international legal obligation/ before that entity can have their nation espouse
the claim they must go through the legal process in the defendant state
-if a state is in%ured directly/ there is no need for the state to exhaust local remedies
-people and corporations must show good faith in attempting to exhaust local remedies
-sometimes it would be futile to loo1 for a remedy bPc of legislation/ in these circumstances
there may be an exception to the general rule of exhausting remedies
Loc:erbie Case-before the ICJ/ Court decided to ta1e %urisdiction on this case under the Hontreal
Convention and therefore if the merits are ever heard/ the issue will be" =as Libya meeting its
treaty obligations by failing to extradite and submitting their own nationals to a trial in Libya
-following the impasse wP Libya failing to extradite/ eventually through the auspices of third
party states their was an agreement between Libya and the 6S to have the trial in a neutral place/
at the end of the day/ the ;etherlands was chosen
-agreement was that the ;etherlands would create through law/ a designated area that became a
designated part of Scotland with %udges chambers/ detention centre/ etc(
-law that was to be applied was the criminal law of Scotland -no %ury system in Scotland#
-court found one person guilty and sentenced to 'K years/ one was discharged
-as part of the comprimise to get Libya to send them to the ;etherlands there had to be agreement
that the claim would stop there and that the 6(S(P67 would not move to prosecute the state of
Libya
Advisory 4pinions-states cannot get an opinion/ only 6; bodies and international agencies
-in the context of Nuclear 1ea!ons Advisory "!inion-=24 did not have competency to see1 an
advisory opinion bPc the legality of nu1es had nothing to do wP the scope of activities of the =24
-in order to get an advisory opinion"
.# the agency re&uesting the opinion must be duly authori$ed/ under the Charter to ma1e
such a re&uest
'# the opinion re&uested must be on a &uestion of law
# the &uestion must arise wPI the scope of the activities of the re&uesting agency
-later that year/ the Court entertained the same &uestion coming from the 5eneral Assembly
Legality of the hreat "r 9se of Nuclear 1ea!ons Case Adv( 4p( ?.++@A
ISS6<" Is the threat or use of nuclear weapons in any circumstance permitted under international
law> Can or should the court give an advisory opinion on this matter>
-the court can gie an opinion on this matter
-the court will only decline to give an opinion in very rare circumstances
-there does not have to be a dispute for the Court to give an Advisory 4pinion
-the organ as1ing for the opinion need not prove that it re&uires the opinion in order to function
-there is neither customary or conventional int’l that authori$es the use of nu1es
-there is no customary or conventional law that prohibits the use of nu1es
-a use or threat of nuclear weapons that is not in compliance wP art ' para B of the 6; Charter is
unlawful
-the threat or use of nu1es would generally be contrary to the rules of int’l law applicable in
armed conflict and in particular applicable principles of humanitarian law however/ the court
cannot conclude whether the use or threat of nu1es would be lawful or unlawful in extreme
situations of self defence where the existence of the state is at ris1
-there is an obligation of states to wor1 in good faith towards bringing about nuclear disarmament

.udicial $eview and the Lockerbie Case
ISS6<" Does the ICJ have the %urisdiction to review the actions ta1en by the Security Council>
3A)I4" )he Court is not generally so empowered and to read-in such a power would be
tosubvert the integrity of the Charter of the 6;(
Chapter C" Interstate 3elations
3ecognition of States and 5overnments
-recognition implies both rights and responsibilities of a new state
-not only does it entitle states to the privileges accorded to other members of the international
community but it also allows them the benefit of the mechanisms and framewor1s of dispute
settlement/ diplomatic relations
-there is no duty to recogni$e on the part of other states or governments
-recognition has been described as N)he free act by which one or more States ac1nowledge the
existence on a definite territory of a human society politically organi$ed/ independent of any
other existing state/ and capable of observing the obligations of international law/ and by which
they manifest therefore their intwention to consider it a member of the international Community(O
Canadian :ractice
-Canada will generally not recogni$e unless the new entity meets the &ualifications of statehood
-discussed su!ra# and if it does the timing of recognition is tied to Canadian national interests
)hree 5eneral Approaches to 3ecogntion
a# <xpress 3ecognition
-under this approach every time an unconstitutional change of government ta1es place/
recognition is either formally declared or formally withdrawn
-advanatges,clarity and specificity/ once a decision is made to recogni$e the state is entered
into the registry
-disadvantages,cumbersome and time consuming
-while one state is deciding whether to recogni$e/ others are ma1ing inroads at the expense of
the contemplating state
b# )acit 3ecognition
-)his is the general approach ta1en by Canada absent extrordinary events whereby business
carries on as usual and no declaration of recognition is made either way
-advanatges,flexibility in meeting the re&uirements of most situations
-disadvanatges,unclear whether the state is being recogni$ed and laymen can incorrectly
infer recognition from certain acts of state
-according to the authors only conclusion of treaties or else appointement or acceptance of
diplomats are real indications of tacit recognition
c# 3ecognition of States Approach
-under this approach a change of government will not provo1e a recognitionPnon-recognition
-advantages,clear and simple,inferences on tacit recognition are avoided
-disadvantages,this approach does not allow a gov’t the flexibility of accroding or
withholding recognition where it disapproves of the actions of a new gov’t

-Canada uses the 3ecognition of States Approach along wP the 6S/ 67/ 8rance etc(
-83I -Serbia E Hontenegro# wanted to sit in the 6; seat for the former Rugoslavia but there was
a legal opinion delivered which states that they could not,so the seat was empty
-recently/ they have applied for new membership and were accepted in December/ 'KKK
-as a new member state under Article '* of 6; Charter it will be obliged to fulfill resolutions of
the security council
-if states are admitted to the 6;/ unless something is put on the record following the vote for
admission it may be ta1en to be tacit recognition
-during ==II De5aulle set up an exiled government in the 67,Degaulle sent a gorilla to the
6(S( as a gift to a $oo prior to the 6(S( entry into the war and there was concern over what to do
with the gorilla bPc acceptance of an official state ift could be recogni$ed as recognition of a
government
inoco Arbitration -5reat Friatin v( Costa 3ica
-ISS6<" Continuity of statehood
-here we have a state in existence but there is a revolutionary change in government whereby the
state survived the coup
-a successor government is bound by the treaty and contractual obligations of the government that
it is following
-in this case/ Costa 3ica argues that )inoco could not have entered into relations on behalf of C3
-evidence led that the )inoco government had been in effective control
2<LD" )he new Costa 3ican gov’t was obliged to fulfill obligations of the previous government
;ational <ffects of 3ecognition
-state immunity is a fundamental effect or recognition
-newly recogni$ed state has the right to
a# sue in the courts of the recogni$ing state
b# ta1e control of state property located in the recogni$ing state
c# have effect accorded to its legislative and executive acts of state
d# to claim immunity from suit in the courts of the recogni$ing state for itself/ its property
and its representatives
<xecutive Certificates
-when diplomatic representitives are accredited they have their names added to the 3oyal 5a$ette
-but the courts must as1 the Secretary of State for 8oreign Affairs foran executive certificate to
verify the diplomatic status of the person and the recognition of their nation
'e Chateau %ai 1ines Ltd- and A#% for Canada ?.+9KA
8AC)S" )here was a trade mar1 dispute over champagne and the court had to consider whether
the trade agreement between 8rance and Canada of .+ was entered into force(
3A)I4" A &uestion of whether an agreement has been entered into force should be determined in
the same way as
a# a &uestion to whether a person is a foreign sovereign power
b# &uestion as to what persons must be regarded as constituting the effective gov’t of a
foreign territory
c# whether a place is in Canada
d# a &uestion as to whether Canada is at peace or war with a country
e# is a person entitled to diplomatic privileges
-these &uestions are within the realm of executive responsibility and must be determined by resort
to an executive certificate
Luther v- Sagor ?.+'.A
8AC)S" :laintiffs saw mill was confiscated by Soviet government during the 3ussian revolution(
Agents of the government sold stoc1s of wood to the defendant( =hen the defendant imported
the wood/ the plaintiff brought suit claiming to be the true owner(
ISS6<" =as the decree that confiscated the mill a valid legislative act which can be recogni$ed
by the <nglish courts>
3A)I4" As the Fritish government has yet to recogni$e the Soviet government its decrees are not
a valid legislative act of a foreign power( It cannot deprive the plaintiff of its property(
-on appeal/ evidence was disclosed that there had been recognition/ as such the %udges found for
the defendant
<es!erides <otels Ltd- v- Aegean ur:ish <olidays Ltd ?.+9!A
8AC)S" )ur1ish forces overtoo1 Cyprus including two hotels that are the sub%ect of this dispute(
)he )ur1ish-Cypriot regime advertised the hotels and the dispossessed 5ree1 Cypriot owners
sued their representitive in <ngland and the travel agency promoting the hotels for conspiracy to
commit trespass( )he Fritish government had not recogni$ed the )ur1ish Cypriot regime and so
it was argued that the laws of this regime should be treated as a nullity(
ISS6<" =ere the acts of the )ur1ish-Cypriot regime a nullity thereby allowing a claim for
conspiracy to commit trespass>
3A)I4" -;F D<;;I;5# )here are two conflicting doctrines( )he first is that if the <nglish
government has not recogni$ed a state/ its acts are to be considered nul for the purposes of
<nglish domestic law,this is to ensure that both courts and legislatures spea1 with one voice(
)he other doctrine states that the is no need for unity because courts are concerned with the
internal impact of an action on private citi$ens whereas legislatures are concerned with external
conse&uences of recognition vis a vis other states( Courts should thus loo1 to the practical
realities of the situation(
-Carl ,eiss Stiftung v- 'ayner = >eeler ?.+@9A Nwhere private rightsSare concernedSthe courts
may/ in the interests of %ustice and common sense/ where no consideration of public policy to the
contrary has to prevail/ give recognition to the actual facts or realtiies found to exist in the
territory in &uestionO
)he laws of the de facto regime in Cyprus should be given effect and as a result/ the claim for
conspiracy to commit trespass must fail(
8oreign Acts of State
Laane and &altser v- he Estonian State Cargo = (assenger Stea$shi! Line ?.+B+A 8AC)S" An
<stonian steamship was arrested in Saint John harbour( )he ship had gone continuously between
the 6(7( and Canada prior to its arrest since .++( During this time/ <stonia became part of the
6SS3 and the steamship industry of that country was nationali$ed( <xpropriated e&uipment was
compensated at '*M of its value( )he appellant sued the respondent state enterprise for the
proceeds of the ship’s sale(
ISS6<S" =ere the decrees nationali$ing the steamship industry and transfering ownership
effective>
Is the plaintiff -<stonia State Cargo# entitled to receive the proceeds>
3A)I4" )he ship was never tendered to the state enterprise and in the alinna case the decrees of
the 6SS3 were held to be unconstitutional and illegal( )he decrees are confiscatory in nature and
Fritish courts are not bound under int’l law to recogni$e them( )he proceeds of the sale should
therefore go to Laane and Faltser(
NIt is now established that a common law %urisdiction will not enforce directly or indirectly the
penal or revenue law of another stateL and there is the general principle that no state will apply a
law of another which offends against some fundamental morality or public policy(O
-since expropriation without proper compensation offends morality and public policy/ the decrees
will not be given effect
-this can be distinguished from Luthor v- Sagor because in this case/ the ship was never in the
possession of the state authorities
&anco Nacional de Cuba v- Sabbatino -.+@B#
-upheld the principle that an act of a recogni$ed state must be recogni$ed as such by domestic
courts and their %urisdiction should not be challenged
-this case resulted in the <ic:enloo!er A$end$ent to the +oreign Assistance Act of 34?3 which
now provides that 6(S( courts may apply international law to foreign acts of expropriation
State Immunity
-state immunity means that a state or its officials can not be sued in domestic courts
-this has the obvious effect of staying the charge and leaving the plaintiff without a remedy
against the state actor
Schooner Exchange v- Mc+adden -6(S# -.!.'#-deals with the ideas of sovereign immunity
8AC)S" )wo Americans claimed that the NSchooner <xchangeO was their ship and that it had
been wrongly ta1en by 8rench forces( )he 6(S( Attorney argued on behalf of 8rance that the ship
was 8rench property that had been driven into :hiladelphia by bad weather(
ISS6<" Can a plaintiff sue the 8rench gov’t in 6(S( courts>
3A)I4" =hen an armed ship which is part of the military of a foreign state with which the 6(S(
is at peace enters a 6(S( port/ the foreign state does not consent to being sub%ected to 6(S( law( It
is exempt from %urisdiction(
Scope of Immunity
-state immunity is extended beyond the state itself to"
.( government and governmental organs
'( leader of the government/ foreign minister and other ministers/ officials and agents of the
state with respect to their official acts
( public corporations independently created but operating in effect as governmental organs/
and
B( state owned property
-diplomats and other representitives abroad are not on the list because their behaviour is governed
by multilateral treaty
-immunity is granted through all phases of the %udicial process so that even if a state submits to
%urisdiction on the merits it may not submit to execution of %udgement
Development of the Immunity Doctrine
-6(S(S(C( immunity is granted by way of express licence -allowing troops into your territory#/
implied licence -allowing ships to cross through your sovereign seas#
-6(S( moved from absolute immunity to restrictive view of immunity in .+*' through its court’s
decisions and certificates of the state dept( and is now codified in the +oreign Soverein
I$$unities Act of 34@?
-6(7( had a long standing position of absolute immunity adopted in he (arle$ent &elge; but
moved similarly/ a treaty and corresponding statute is in place since .+9! codifying the restrictive
approach
-Canada was still clinging to the absolute theory as late as !K’s founded on the leading Canadian
case of )essaulles v- 'e!ublic of (oland
-now/ restrictive immunity is the rule of thumb in customary international law
/octrine of $estrictive Immunity" =here a state decides to enter into the mar1et place and
engage in commercial acts it no longer has immunity(
-main issue is the delineation of commercial acts -/ure gestionis# from sovereign acts -/ure
i$!erii#
Congo v- Venne case,this case went to the SCC,a Uuebec architect built a pavillion for the
Congolese gov’t and was not compensated,he sued the Congo and they claimed state immunity
and there was a very strong dissent by Justice Las1in who came to the decision that states trade
either directly through their gov’t or through a closely connected entity and it is time to recogni$e
this change
-ma%ority decision by Justice 3ichie says even if the int’l law rule has moved to restrictive
immunity there is still immunity in this case bPc the contract entered into by Congo wP Cenne was
a public act of the Congo and not a transaction
-S( =ill says this is wrong as is evidenced by later legislation
-the Uuebec Court of Appeal says in other expo related cases that Canada has moved to restictive
immunity
-about ten years later there were a number of cases in 4ntario and our courts loo1ed at 3ichie’s
decision and said this is good authority to go with restrictive immunity
State I$$unity Act
.( =ho is entitled to claim immunity>
-sovereign head of state/ gov’ts/ gov’t organs/ gov’t ministers are immune wrt their official
acts/ political subdivisions -provinces#/ provincial leaders/ government agencies
-this staute is narrow in that it does not allow immunity for lower level civil servants of
foreign states
=hat would happen if :inochet came here>-Fritish perspective is that even where the person
is no longer in public capacity/ if the wrongdoing occurred while immune/ then they cannot
be prosecuted
-our legislation does not do the same thing,it would seem as though he would only be
immune if he was still doing the %ob
s( .!,the Act does not apply to criminal proceedings
Agency
-the way the statute is drafted it is difficult to determine who is an agent of a foreign state,
this is very important bPc when it comes to enforcing %udgements/ a foreign state may have
immunity regardless of %udgement rendered but wP agents it may be different
-if there is an agency in a foreign country is part of the regime in that country but has separate
powersPfeatures,Are they immune>
-if they have no separate statusPpowersPfeatures it would be considered to be part of the state
itself
-if it does have separate powers/ you may be able to get your %udgement enforced
'( 8or what can they claim it>
-person generally cannot use their immunity as a bar to being prosecuted
-new int’l criminal court statute states this as well,;uremberg trials lead us to the same
conclusion
-customary int’l law principles,when one is dealing wP crim( Acts proscribed by customary
or treaty law/ any state that manages to get custody over an alledged perpetrator has
%urisdiction to prosecute
-there was no Fritish connection wP the :inochet case F6) the orture Convention provides
for %urisdiction for any state that gets a hold of the person
-if Fritain had not sent him somewhere/ the would have had the capacity to prosecute him
themselves and in fact the orture Convention provides for the obligation of prosecution if
the person is not extradited
-universal %urisdiction applies to :iracy on the high seas/ terrorism/ etc(
-s( indicates that state is immune and does not have to ta1e any steps to claim immunity/ if it
doesn’t show in court/ it will still be afforded immunity
-pre-statute it was not enough that the state would agreed to waive immunity if a dispute
arose/ the only way the immunity would wor1 is if the foreign state waived immunity in the
face of the court
-statute changes that s( B if before or after the commencement of proceedings the foreign
gov’t has waived/ that waiver is reliable
-torts,s( @ foreign state is not immune for any in%ury or death or damage to property that
occurred in Canada,Compare to 6(S( Leitelier v- Chile where Chilean government could be
sued in 6S court for assassination by widow(
s( * 0foreign state is not immune from %urisdiction for any commercial activity of the foreign
state
Ncommercial activityO means any particular transaction/ act/ or conduct in the course of
commercial activity
s( ! a foreign state is not immune for proceedings that relate to the interest of the home state
in property such as succession/ gift or bona vacantia
( enforcement of %udgements
s( .. no relief will be granted without the consent of the foreign state in writing
-an agency of a foreign state is not protected by this section
s( .'-.# foreign property in Canada is immune from attachment on %udgement except where
a# the state has explicitly or implicitly waived its immunity unless the foreign state
withdraws its waiver
b# the property is used or is intended for a commercial activity
c# the execution relates to a %udgement establishing rights in property that has been ac&uired
by succession or gift or in immovable property located in Canada
.'-'# sub%ect to ss( -# property of an agency of a foreign state is not immune from execution
wrt any action which the agency is not immune from
.'-# military property is immune from execution
.'-B# property of a foreign central ban1 or monetary authority used on its own account and
not for commercial activity is immune from execution
.'-*# s( .'-B# immunity does not operate where the institution or state has waived immunity
unless waiver is withdrawn
Legal )ests of :ublic or Commercial Acts
-there are two different tests that have been applied and have yielded conflicting results
-the first test focuses on the purpose of the transaction -ie" did the act have a public ob%ect#
-the second test focuses on the nature of the transaction -ie" is the act a commercial deal#
67 State Immunity Act
--.# state is not immune from proceedings related to
a# a commercial transaction entered into by the state
b# an obliation to perform a contract where part of the contract is to be performed in the 67
-commercial transaction means
a# any contract for the supply of goods or servicesL
b# any loan or other transaction for the provision of finance and any guarantee or indemnity
in respect of any such transaction or of any other financial obligationL and
c# any other transaction or activity -commercial/ industrial/ financial/ professional/ etc(# into
which a state enters or in which it engages otherwise then in the exercise of sovereign
authority

Edwards v- 9SS'
-<dwards entered into a contract to print maga$ines called NSoviet 6nion )odayO for distribution
at a trade convention
-S(6( refused to pay
-<dwards went to court and the S(6( did not appear,he got the %udge to give a default %udgement
,problem was he could not enforce it
-he went to Sheriff’s office and tried to get Sheriff to go to the airport and arrest a plane of the
S(6(,sheriff consulted wP A5 office and they got on the phone wP external affairs who told them
that the sheriff could not do anything bPc of the doctrine of absolute immunity
-eventually bPc of the publicity/ the 6SS3 paid the bill
rendtex rading Cor! Ltd- v- Central &an: of Nigeria ?.+99A -C(A(#
8AC)S" )he government of ;igeria entered into a contract with )rendtex to buy cement( )hey
ordered too much cement and their central ban1 refused to honour the letter of credit issued to
)rendtex( )hey claimed state immunity(
ISS6<" =hat is the rule as regards state immunity and its application by Fritish courts>
$estrictive Immunity"
-the intended purpose of the goods -ie" cement for a military barrac1# is not relevant what is
relevant is the commercial nature of the transaction
-even if the contractual transaction was the issuance of the letter of credit/ the ban1 who issued it
operated in London in the ordinary course of commercial dealings and immunity does not attach
-<ven if the rule is absolute immunity/ in order for immunity to attach it must be determined" Is
the Central Fan1 of ;igeria an alter-ego or organ of the state>
-there is no bright line test here/ must loo1 to the functions of the entity and the control of the
organi$ation,Denning was unable to ma1e a decision so rested on the restrictive immunity
approach
-Denning viewed this case as one of where there was a transaction and not a public act
-there is a desire to loo1 to the consensus of the civili$ed world but if the nations are not at least
agreed/ does this not imply that there is no rule
-however/ the doctrine of restrictive immunity has been adopted by many countries and as such
the rule of absolute immunity is no longer a rule
)he absolute theory" once a defendant is recogni$ed in the forum country or the defendant was
recogni$ed as being an alter-ego of the state -state organ or agency so connected with the state
that it has very little decision ma1ing power#/ the alter-ego also has the right to immunity(
9nited States of A$erica v- (ublic Service Alliance of Canada -.++'# -SCC#
8AC)S" Sixty Canadian employees of a 6(S(A(8(F( in ;fld( applied for union certification
before the Canadian Labour 3elations Foard( 6(S( claimed immunity from the certification
proceeding under the State I$$unity Act s( ' E *
3A)I4" -LA843<S)# Foth nature and purpose must be examined to determine if the state is
entitled to immunity( )he nature of the contract is employment but the prupose of the
employment is to maintain a base of operations for 6(S( forces( It is impossible to ignore this
sovereign purpose in the analysis( 8urthermore/ in order to have immunity the proceedings must
relate to the activity at issue -s( * of the state I$$unity Act#( )he board is trying to assert
%urisdiction over employees of the base( In times of war/ it is important for the 6(S( to have
exclusive %urisdiction so that if a stri1e occurs/ the stri1ing employees can be forced bac1 to wor1
by 6(S( legislation and courts(
DISS<;) -C43R#"
-if Canada wanted to ma1e the test based on the nature rather than the purpose/ they would have
said it %ust as the Americans did,purpose should also serve a role in the analysis
nevertheless/ the nature of the activity should be predominant,the nature of the activity was
such that any private individual could have entered into a similar emplyment contract
-these wor1ers had restricted access to the base and were not integral to its function and in fact
often wor1ed alongside private contractors,the hiring of the wor1ers is a private act which by
nature is a commercial activity
<ven if an employment relationship is characteri$ed as a private act/ can a collective bargaining
relationship be characteri$ed in the same way>,N4nce it has been demonstrated that a foreign
state does not fall within the ambit of immunity protected by the Canadian staute it should not
receive any special dispensation from Canadian law( A Canadian wor1er/ wor1ing on Canadian
soil/ should not be deprived of the benefits of Canadian law unless the foreign state is acting in a
context which warrants immunity(O

Immunity of State 4rgans and :roperty
Mellenger v- New &runswic: )ev0!$ent Cor! ?.+9.A
8AC)S" )wo Canadian citi$ens sought redress in <ngland for an alledged breach of tortious
rights by the ;ew Frunswic1 Development Corporation( )he Corporation was constituted Non
behalf of her ma%estyO and all of its actions were overseen by the government of ;ew Frunswic1(
Its officers were appointed by the government(
ISS6<" Are sub-national territorial governments allowed to claim immunity> =as the
corporation an alter ego of the government such that it may claim immunity(
2<LD"the dev’pment corp was an organ of state and as such/ immunity flowed( Hust loo1 to
enabling legislation/ organi$ation of the enterprise/ its functions/ and the degree of political
control(
-Denning ruled that the province of ;F was a sovereign state in its own right and can claim
immunity
-sub-component parts of sovereign states can claim immunity
#1estern Surety v- El: Valley Logging-court followed the Mellanger decision to find that Alberta
is a sovereign state vis a vis F(C(,Albertan public corporations have restrictive immunity vis a
vis F(C( courts
-in '- v- Eldorado Nuclear Ltd-/ 4ntario courtheld that restricted sovereign immunity did not
apply to relations between Canada and the provinces
+erranti#(ac:ard v- Cush$an 'entals -.+!K#
3A)I4" ;R state thruway is not immune from Canadian court process because they have a
significant dgree of independent decision ma1ing power in establishing and executing policies
and responsibilities(
Immunity of State :roperty
State I$$unity Act protects foreign property from execution or attachment but immunity cannot
be claimed unless the property is property of a foreign state
-this raises &uestion about what is property and what degree of ownership interest is re&uired in
order to claim immunity
.uan Is$ael and Co Inc- v- %overn$ent of Indonesia ?.+**A
8AC)S" :laintiff had chartered a ship to the Indonesian government who 1ept it after the charter
was up( )he government asserted that it had bought the vessel through an agent of the plaintiff
and claimed immunity from the suit(
ISS6<" 2ow are the court’s to ad%udicate a government’s claim to property>
3A)I4" Herely accepting a govenrment’s assertion of a property interest may lead to in%ustice to
an in%ured party( A government that invo1es the privilege of immunity must adduce evidence to
demonstrate that its claim is not merely illusory/ nor founded on a defective title(
=aiver of Immunity and <xecution of Judgements
-a foreign state must submit to local %urisdiction to waive immunity however a submission before
a court in which the respondent claims immunity is not a waiver -s( B-# of SIA
-a foreign state may waive immunity before proceedings have begu -s( B-'#-a# SIA#,%urisdiction
clause in a contract may amount to a waiver of immunity
-a foreign state who submits to %urisdiction may still claim immunity from execution -s( .'-.#-a##

'e 'oyal &an: of Canada and Corriveau and Cuba##
-claimant leased a house to the Cuban gov’t and they let the pipes free$e and there was damage
and he brought action against Cuba
-he also got a default %udgement
-he tried to enforce this %udgement but the court told him he could not enforce the %udgement
-the record shows that the leased premises were for government use and the money in the ban1
were in possession of the foreign sovereign state
Diplomatic Immunity
-the need for diplomatic relations led to the development of principles of customary international
law that were then codified first in the <nglish )i!lo$atic (rivilege Act; 3@A7 and then in the
.+@. Vienna Convention on )i!lo$atic 'elations which was ratified by Canada in .+@@ and
implemented by the +oreign Mission and International "rgani*ation Act
-two policy %ustifications for diplomatic immunity .( functional theory,diplomats must be free
to serve their their nation fully
20 diplomats owe no allegiance to foreign states and are not sub%ect to their laws
+oreign Missions and International "rgani*ations Act
--.#Articles ./ '' to 'B and '9 to BK of Viena Convention have force of law in Canada
Article .-definitional section
Article +-2ost state may at any time/ without declaring its reasons declare that any
member of the diplomatic mission is a persona non grata and the sending state must
recall the diplomat or remove his privileges( If they don’t/ his immunity will not be
recogni$ed by host(
Article ''-.( premises of the mission are inviolable by the host state except with consent
"0 )here is a special duty to protect the mission to prevent damage and prevent
disturbaance of the peace
10 :rotection from searches/ re&uisition/ attachment/ execution of the premises and
property
Article '-the sending state is immune from tax on the property on which the mission is
located
Article 'B-archives and documents are inviolable whenever and wherever they are
Article '9-.( the host state has a duty to protect free communication of the sender’s
mission for official purposes by any means except a wire transmitter re&uires host state
consent
'( official correspondence is inviolable -all communications about the mission and its
functions#
( diplomatic bag should not be emptied or detained
B( pac1ages containing the diplomatic bag are to be mar1ed as such and must contain only
official documents
*( diplomatic courier is inviolable and cannot be sub%ect to any changes
Article '!-fees and charges levied by the mission are exempt from taxes
Article '+-diplomatic agents are inviolable and the host state has a dut to protect them
Article K-.( private residence of the diplomat has the same immunity and protection
'( diplomat’s papers and property are also afforded protection
Article .-.( diplomat is immune from prosecution and civil liability except
a# an action relating to real or immovable property that is not held on behalf of the
sender state
b# an action for succession where the diplomat is acting in a private capacity
c# an action relating to the involvement of the diplomat in commercial conduct not
related to his mission
'( diplomat not obliged to give evidence
( no measures of execution may be ta1en unless they are in relation to a# through
c#
B( diplomat does not have immunity in the sending state
Article '-.( immunity may be waived
'( waiver must be express
( instigation of proceedings by a diplomat precludes immunity from counterclaim
B( waiver from proceedings does not mean waiver from execution or %udgement
Article -.( diplomat exempt from social securit provisions of host
'( exemption in para . is extended to private servants of the diplomatic agent on
conditions a# that they are not nationals or permanent residents of the host
b# they are covered by SS provisions in the sending state or a
rd
state
Article B-diplomat exempt from taxes except a# indirect taxes incorporated in the price
of goods
b# taxes on the real property in the host unless being used on behalf of the sender
c# estate or inheritance taxes
d# income tax on income earned in the host or capital gains taxes on gains made in a
commercial capacity
e# charges for specific services
f# registration fees/ court dues/ stamp taxes on immovable property
Article *-diplomat not obliged to underta1e personalPpublic service or military re&uisition
Article @-no dues and must permit entry of diplomats stuff and papers
-no search of diplomats luggage unless there is reason to suspect that it contains goods nnot
covered by the exemptions and search must be in diplomat’s presence
Article 9-diplomats family has immunity as laid out in articles '+-@
-members of administrative and technical staff and their families have immunity as set out in
arts( '+-*
Article !-only have immunity for official acts in the exercise of functions
-staff of mission only have the Immunity to the extent granted by the host but host cannot
interfere with functions of the mission
Article +-only have immunity from time of entrance into host state or from the time when
the appointment is notified to Hinisry of foreign affairs
-immunity extends to the time when service has ended and a reasonable time afterward even
in the case of armed conflict
Article BK-diplomats travelling to their post or returning home and their families get
immunity when passing through
rd
states
-
rd
states cannot hinder passage of diplomats/ service staff or their families
-
rd
states must also protect communi&ues
B-.# Hinister of 8oreign Affairas can extend privileges other then duty or tax relief privileges
-can grant any benefits set out in regulation
-withdraw privileges
-restore privileges
Diplomatic Assylum
-diplomatic assylum is not part of customary international law but it is codified in certain treaties
between Latin American states
-in practice/ there is little host states can do about it if a foreign mission see1s to protect a
rd

party
-the immunity and inviolability of the foreign mission are protected under international law and
this precludes action against them
-a host state will rarely violate these protections thereby endangering its foreign policy interest
Legal Character and Duration of Immunity
)ic:enson v- )el Solar ?.+KA
8AC)S" Del Solar in%ured Dic1inson in a car accident and was sued for negligence( )he
insurance company asserted that Del Solar was not liable because he en%oyed Diplomatic
immunity as 8irst Sec’ty to the :eruvian Legation( Del Solar was denied the ability to plead
immunity because the car was being used for personal purposes at the time(
ISS6<" If immunity is denied by the superior minister of the diplomat can the diplomat or his
subrogate claim immmunity>
3A)I4" )he privilege of immunity is the sovereign’s to waive and in this case the waiver was
made by Del Solar’s appearance( If he had tried to plead immunity it would have been struc1
because it was contrary to the assertion of his superior(
%hosh v- )0'o*ario ?.+@A
8AC)S" 5hosh alleged that D’ro$ario had slandered him while a diplomat for India( =hen
D’ro$ario returned to <ngland as a private citi$en he was served with a writ( D’ro$ario went bac1
to India and came bac1 to <ngland with diplomatic status( 2e claimed immunity(
ISS6<" Can a claim for immunity be sustained when the diplomatic status was granted after the
proceedings had been initiated>
3A)I4" )o allow the action to proceed would be an affront to the sovereign and interfere with
the diplomat in the performance of his duties( 8urther/ there is no way to sanction his conduct in
court because he currently en%oys the privilege of immunity(
=aiver
=ho can waive immunity>,In '- v- Madan it was said that waiver must be underta1en by the
representitive of the head of state with full 1nowledge of his rights( It cannot be waived by the
person holding it unless he does so on behalf of the head of state(
-immunity is the privilege of the state and not the individual,waiver must be underta1en by the
head of the diplomatic mission,although Madan says that the head of the diplomatic mission
may waive liability/ that is not yet clear
9-S- )i!lo$atic and Consular Staff in ehran Case 29nited States v- Iran6 ?.+!KA ICJ
8AC)S" )he 6(S( embassy was overrun by militants in .+!K and the diplomatic staff was held
hostage( )he Iranian government did not help the members of the diplomatic mission by
responding to their distress calls nor did they attempt to persuade the militants to withdraw( After
the embassy was ta1en multiple govenrmental authorites publicly condoned the invasion and
hostage ta1ing( Iran failed to appear at the ICJ but the court was able to exercise %urisdiction
because both parties had signed the optional protocol of the Cienna Convention on Diplomatic
3elations providing for compulsary %urisdiction of the Court(
3A)I4" Foth the inaction of the Iranian government and its public condonation after the fact
were violations of the Cienna Convention on Diplomatic Immunity( )he Iranian government had
a continuing obligation to protect the embassy/ its papers and its communications and its people
even in times of war(
Consular and 4ther Immunities
Vienna Convention on Consular 'elations; 34?5,consent to diplomatic relations implies consent
to consular relations
-consular relations are more administrative,involve issuing visas/ assisting nationals and
furthering commercial/ economic/ cultural and scientific relations with host states
-immunity for consuls is more restricted,archives and documents are inviolable/ consuls must
be treated with respect and are not liable for arrest or detention except for grave crimes
-Ngrave crimesO according to Canadian law are crimes with a penalty of more than * years
-civil and criminal liability is restricted to official acts
Special Hissions
-ad hoc committees of representitives
-no customary rule of international law but there is a treaty - Convention of 34?4 dealing with
S!ecial Missions6 but it is not binding on non signatories
-similar model to the Convention on Diplomatic 3elations ma%or differences are"
Article !,sending state must inform the host state of the si$e and the composition of the mission
Article .9,provides that the mission must be located in a place agreed upon by the states
concerned or can be located at the foreign ministry of the host state
:rivileges and Immunities of the 6;
-5eneral Assembly adopted the Convention on the (rivileges and I$$unities of the 9nited
Nations
-convention allows for immunity of property and assets from the legal process unless waived/
inviolability of premises and archives and special privileges for representitives including criminal
immunity
-Canada assented to the treaty with a reservation included excluding the provisions on taxation,
Canada’s accession was not accepted by the 6; and Canada is not party to the Convention
International Court of Justice
-Article .+ of the Statute of the IC. the members of the court en%oy immunity and diplomatic
privilege when exercising their official duties
Cisiting 8orces
-there is no set law on the immunity of visiting forces,6S has adopted a doctrine of absolute
immunity but to avoid controversy usually concludes a treaty with the host state
-eg" Visiting +orces Act provides Canadian courts with %urisdiction over acts and omissions that
are an offence under Canadian law,however/ the Act also provides that the service courts of the
sending state have %urisdiction over wrons committed against the host state/ the person or
property of another member of the force of the sender state and over act or ommission done in
performance of official duties

State $es!onsibility
5eneral :rinciple" <very wrongful act of a state entails its responsibility(
-there are primary rules that set out the international obligations in terms of substantive codes of
conduct
-then there are secondary rules that specify the sanctions for breaches of obligations
-state responsibility is not really codified because the procedures for its invocation usually
informal diplomatic negotiations
-thus/ there is a dearth of case law on the sub%ect matter and very few authoritative statements of
the scope of the principle
-one statement that may carry some weight is the International Law Co$$ission; )raft Articles
on State 'es!onsibility-some of these principles are codifications of international law and some
are more controversial with little support in state practice
Article .-every worngful act of state entails responsibility
Article '-every state can be held responsible for an internationally wrongful act
Article -A wrongful act occurs when" a# acts or omissions are committed that are attributable to
the stateL and b# those acts violate international obligations
Article B-Acts are only unlawful if they violate international law and internal law on the conduct
is irrelevant
Article .+-.( An act of state that is a breach of international obligations is wrongful despite the
sub%ect matter of the obligation breached(
'( =here there is a wrongful act that is a breach of an international obligation so essential for the
protection of the fundamental interest of the international community that the breach is
recogni$ed as a crime/ it constitutes an international crime(
( International crimes may result from" a# a breach of an international obligation of fundamental
importance for mainatainance of int’l peace and security such as that prohibting agression(
b# breach of obligation wrt self determination of peoples such as maintainance by force of a
colonial domination
c# breaches of obligations wrt fundamental importance of human safety such as prohibiting
slavery/ genocide and apartheid
d# serious environmental breaches
B( An other international wrongs not an intentional crime is an international delict
Article *.-where there is the commision of an international crime it entails the conse&uences of
any other wrongful act plus those in arts *' and *
Article *'-=here there is an international crime a# an in%ured state is entitled to restitution that is
not limited by article B subs c and d(
Article *-where an international crime has ta1en place states are obligated a# not to recogni$e
the situation rendered by the crime as lawful
b# not to give aid to maintain the situation
c# to cooperate to carry out a# and b#
d# to cooperate to eliminate the conse&uences of the crime
Fasis of 3esponsibility" Corfu Channel Case 2Merits629nited >ingdo$ v- Albania ?.+B+A
8AC)S" Fritish war ship travelling in Albanian waters and was damaged by a mine( )he 6(7(
then cleared the waters of all mines( 6(7( could not prove if Albania had laid the mines or if it
had done so with Rugoslavia(
ISS6<" If a wrongful act is committed in the territorial waters of a state/ can responsibility be
automatically imputed>
3A)I4" )here is no automatic imputability but where indirect evidence shows that a state did or
ought to have 1nown of the potential for an international wrong/ beyond a reasonable doubt/
responsibility is imputed(
-6; Conference on 3acism and Intolerance,-in the ;:#-there have been a series of preparatory
meetings in diff’t areas of the world but the main controversy is that a number of African
countries are li1ely to want to discuss a claim for State 3esponsibility against the 6S for the slave
trade,compensation for violation of 23
-if that is put on the table/ the 6S is unli1ely to attend
-the African nations also prospered on slavery and slavery still exists in certain African nations
-no doctrine of inter-temporal law,if you are arguing a breach of int’l law cannot loo1 at it
through 'KK. glasses,must loo1 at the customary int’l law of the time/ /us cogens/ etc(
-treaties are not retroactive unless they declare themselves to be so
'ainbow 1arrior Case -;G v( 8rance#
-8rench gov’t was not pleased with 5reenpeace organi$ation bPc 5reenpeace had been protesting
8rench ;u1e testing in the S: in the .+!K’s,5: ship had been disrupting and was made to doc1
at Auc1land/ ;G
-persons in scuba gear planted devices on it/ it was blown up and a Dutch national was 1illed as a
result
-there were B-* divers/ only two were arrested,8rench gov’t too1 the perspective that these were
two citi$ens who might be members of ;aval units but they denied responsibility
-this claim was suspicious/ 8rance changed its position and ac1nowledged that the two persons
were state agents following orders of the 8rench D5 of <xternal Security
-8rance argued that these men were acting under orders and thus/ should not be prosecuted
-8rance participated in the ;uremberg trials where it was proclaimed that this was no defence
-at the same time 8rance was prosecuting Claus Farbie for Crimes against humanity while he was
in the occuping 5erman gov’t in Lyons during ==II
-if something is manifestly unlawful and the person had a reasonable moral choice -ie" the choice
is not between putting the bombs on the boat and getting shot in the head#/ the defence will not
wor1
-as a result of arbitration/ ;G was compensated/ the two agents were ta1en into 8rench custody
on the condition that they be 1ept in isolation in 8rench :olynesia
he .essie; ho$as +- &ayard; and (escawha -American and Fritish Claims Arbitration/ .+'@#
8AC)S" Fritish sealing vessels were boarded by American authorities and their weapons were
placed under seal and they were told not to remove them( )here was no treaty in place
authori$ing the Americans to board the ship on the high seas(
ISS6<" Liability>
3A)I4" )he acts of the American officers constituted a breach of international law( )he fact that
the American officers acted in good faith does not excuse their government from liability(
Cos$os 4BC Clai$ -Canada v 6SS3# -.+9+#
8AC)S" 6(S(S(3( launched a satellite that had radioactive components and it crashed on
Canadian soil( Canada had to clean up the mess and incurred expenses(
ISS6<S" Is the 6SS3 responsible under the .+9' Convention on International Liability for
)a$age Caused by S!ace "b/ects -both were parties# or under general principles of international
law>
3A)I4" a# 6nder the )reaty,Launching state is absolutely liable for damage caused to <arth by
reentry( 6nder the treaty 6SS3 is liable for the damage caused( 6nder international law/ Canada
had a duty to mitigate and did so( )he clean-up would not have occurred had it not been for the
damage caused by the satellite and Canada is entitled to damages that would put them in the
position they would have been in if not for the accident(
b# :rinciples of I(L(,I# the entrance of the satellite debris on Canadian territory was a violation
of sovereignty that is compensable under I(L(
ii# It is a general principle of international law that states are absolutely liable(
It is mentioned in numerous agreements including the applicable treaty(
iii# Canada has only claimed reasonable compensation as is allowed for under
general principles of international law(
I0$ Alone Case -Canada v( 6(S(# -.+*#
- Fritish entered into bilateral treaty with 6S which allowed 6S to visit/ board and arrest people
engaged in rum-running
- Cdn ship was only within . hr normal sailing distance of 6S coast when pursued onto high seas
- 6S shot and san1 Cdn ship and . crewman died so &uestion was where did pursuit begin>
- commissioners held that sin1ing by 6S 3evenue of a Cdn ship was unlawful act bPc it was not
%ustified by any provision of .+'B convention that governed case so awarded monetary dmges
- measures must be proportionate not excessive
Imputability [email protected]#
-issue is whetehr or not an act may be attributed to a state is a 1ey element in international
responsibility because it ma1es establishing liability easier
-problem areas are the specification of state actors and responsibility for the activities of non state
actors
Acts of the State
-Iran <ostage Case,actions of agents are imputable to the state if they act in violation of int’l
law
-even in the case where state agents exceed orders
)raft Articles on State 'es!onsibility,it is &uite obvious to see that when you have an agent or
organ of a state it is simple to trace the connection unless someone has a private vendetta
-where there is a principle agent relationship/ there is attribution
Article *-conduct of a state organ that has that status under internal law is imputable to the state
as long as the organ was acting in that capacity
Article @-as long as it is an oran of any branch of the state/ the state is responsible for its acts
Article 9-acts of sub national governmental entities and organs thereof -must have been delegated
govenrmental authority# are also attributable to the state
Article !" -Cicarious Liability#-if the person is in fact acting on the part of the state or exercising
governmental authority they are responsible
-eg" '
nd
phase of Iran 2ostage incident,people that overtoo1 the embassy became agents of the
state in fact when the revolutionary gov’t too1 over
-.affe Case,bail bondsmen too1 a prisoner from Canada,Canada argued that these men were
acting on behalf of 8lorida because of the incentive provided in the form of a bond
-acts of private individuals are not attributable to the country of citi$enship of the nationals unless
the home country has been negligent in failing to act and not performing due dilligence
Article +-where a state organ is placed at the disposal of one state by another state or international
organi$ation/ the host state is responsible
Article .K-Ultra Vires Acts" acts of state organs are attributable even if they exceed their
instructions or competance
Dou$ans Case -@'K# -.+'@# -6(S( v( Hexico#
-Hexico stipulated to lac1 of imputability
-dispute between a Hexican labourer and an American engineer involved in construction of a
tunnel in Hexico -Americans were wor1ing for Fritish company#
-produces a riot/ Hedina- Hexican# got the other labourers to throw stones at the American and
approach his house with a drawn machete
-Connolly-American# fired shots in the air,a mob then attac1ed the engineers and 1illed three of
them
-one engineer was 1illed by the Hexican troops who were assigned to protect them
ISS6<" Imputability> Lac1 of Due Dilligence wrt stopping the mob>
-6S had two arguments for why Hexico should be responsible for deaths and as a conse&uence
why compensation must be paid
.# Hexico had not used due dilligence to protect the father of the claimant from the fury of
the mob -li1e in 2ostages case where Iranian gov’t did not prevent acts of citi$ens#
'# 3esponsibility based on the actions of the soldiers who fired on the house of the
engineers
2<LD" Hexico was responsible( )hese acts were ultra vires bPc the soldiers did not have orders
to fire on Americans( )he Commission ta1es the position that military personnel who exceed
their instructions or act contrary to their instructions/ as long as they are acting in a military
capacity/ the state is responsible directly( ;ot all acts of soldiers would result in responsibility for
example if they act in a private capacity to loot/ commit wanton destruction/ etc(
Acts of :rivate :ersons
International Law Co$$ission )raft Articles on State 'es!onsibility
Article ..-conduct of persons not acting on behalf of state are not an act of State under I(L(
-this does not preclude attribution as it is laid down in articles *-.K
-the state is generally not responsible for the act of private citi$ens
-generally/ that person is prosecuted or sued domestically
-but if the state refuses to provide %ustice/ it may be responsible
-or else/ if the person is transformed from a person acting in a personal capacity to a state agent
)ypes of :rivate :ersons
.( Military and (ara$ilitary Activities in and Against Nicaragua,-;icaragua v( 6(S(#
?.+!@A
8AC)S" ;icaragua argues that CIA’s involvement wP the contras made them 6S state agents(
-allegations of 6(S( planting of mines in ;icaraguan harbours
ISS6<" =as the 6(S( responsible for the acts of the Contras>
3A)I4" A consideration of the degree of control over the private citi$ens is necessary( Just
because you finance a group does not mean you are controlling them as agents( In certain
circumstances they may have autonomy( )he 6(S( was responsible for certain specific acts of
the contras -ie" Hine planting# however in response to the general &uestion of 6(S(
responsibility the answer was negative(
N6(S( participation/ even if preponderant or decisive/ in the financing/ organi$ing/ training/
supplying and e&uipping of the contras/ the selection of its military or paramilitary targets/
and the planning of operations is still insufficient in itself((for the purpose of attributing to the
6(S( the acts committed by the contrasO
-need to show direction or enforcement of acts contrary to human rights and humanitarian
law,effective control over the general operations of the group or persons
'( Acts of Insurgents
International Law Co$$ission )raft Articles on State 'es!onsibility
Article .B-Acts 48 insurgent groups are not attributable to the state
Article .*-Insurgents brings their baggage with them when they come to power( <ven though
they are not in government when they did what they did/ they can be made responsible when
they enter gov’t(
Asian Agricultural (roducts Ltd- v( Sri Lan:a ICSID -.++K#
8AC)S" Damages to property of an industrial concern operating in Sri Lan1a by the Sri
Lan1an military on reports that the plant was being used to house local rebels(
ISS6<" Due dilligence and what it entails>
3A)I4" )here is extensive and consistent state practice with regard to the exercise of due
dilligence( )he State was bound to ta1e all reasonable steps to prevent the occurrence of
damage to property( )his included using the local municipal mechanisms to evict the rebels
from their suspected hiding place prior to lauching an assault(
Acts of International 4rgani$ations -@'!-@'+#
-if an int’l organi$ation situated on the terrritory of a state and the organi$ation or its agents
commit a wrong on the territory of the state/ the state is not responsible
-if a wrong is committed by 6; peace1eepers/ then the 6; may be liable
Circumstances :recluding =rongness )raft Articles
-Article '+-Consent,If a state consents to another state doing something in its territory/ you
cannot argue that there has been a breach of sovereignty
-but the consent must be genuine and voluntary/ no undue influence or duress on the state or its
officials/ no bribery or corruption and also the scope of consent must not be exceeded
-a state cannot consent wrt any matter that would violate a peremptory norm of international law
Article K-Counter-Heasures" If state A expropriated foreign property and refuses to give
compensation/ state F could not settle the dispute and state F decides to expropriate the property
of state A’s nationals/ the wrongfulness of the act could be precluded if it was a counter-measure
which in the circumstances of the case is appropriate(
-must be a a legitimate counter measure under international law
-Article .-8orce Ha%eure and 8ortuitous <vents" =here a state breaches an obligation due to an
irresistable force or unforeseen external event that ma1es it materially impossible to comply with
obligations/ or to 1now that they are not in compliance/ it is not responsible
-this does not apply if the state created the situation of material impossibility
-Article '-Distress-where the author of the conduct was threatened or had his family threatened
such that he has no other choice to save his own life/ responsibility is precluded
-this does not apply where the state creates the peril or the peril that will result from the
impugned conduct is comparable or greater then the distress
-;ecessity -Article #,most discussed Article,.( a# the act must be the only way of
safeguarding an essential interest against grave and imminent perilL and
b# the act does not seriously impair an essential interest of the state to which an obligation existed
'( ;ecessity cannot be invo1ed if a# the international obligation arises out of a peremptory norm
of general international lawL or
b# the obligation is laid down by a treaty which precludes the defence of necessity
c# if the state in &uestion has created the situation of necessity
Article B-Self Defence" :recludes wrongfulness if the act is a valid self defense measure
according to the Charter of the 6;
Case Concerning the %abci:ovo#Nagy$aros (ro/ect 2<ungaryESlova:ia6 ?.++9A ICJ
8AC)S" 2unagry and C$echoslova1ia concluded a treaty in .+99/ to build a series of dams in
Slova1ia and 2ungary on the Danube( 2ungary abandoned the pro%ect because of environmental
problems( Slova1ia insisted on compliance and planned and put into effect a pro%ect on Slova1
territory( )his pro%ect affected 2ungary’s access to the water(
ISS6<" =hat are the criteria for invo1ing a claim of necessity>
3A)I4" .# the invo1ing state must have an Nessential interestO affected
# the interest must have been threatened by a grave and imminent peril
-peril evo1es the idea of ris1 F6) peril is not the mere apprehension of harm,imminence
means immediate and not contingent,a peril that is unavoidable and certain even if in the
long term can be grave and imminent
B# )he act must be the only means of safeguarding that interest
*# )he act cannot seriously impair the essential interest of the state to which the obligation
was breached
@# )he state claiming necessity cannot have created the situation of necessity
3<S6L)" 2ungary’s defence of necessity failed(
Defining the In%ured State
-state may suffer in%ury directly/ indirectly and generally
ILC )raft Article on S'
Article BK" Heaning of In%ured State
.( Any state which has its rights infringed by another state if the perpetrator has committed
an internationally wrongful act(
'( NIn%ured StateO means-a# right infringed arises from a bilateral treaty
b# right arising from an international tribunal decision
c# if the right arises from a decision of an international organ
d# a
rd
party state who had rights arising from a treaty to which it was not party
e# if the right arises by way of customary law or multilateral treaty/ if the state is bound by
the rule or treaty is liable for breaches if"
i# the right was created or established in its favour
ii# the breach of obligation affects other states rights or obligations bound by
treaty or custom
iii# the right was established for the protection of human rights
f# if the right arises by multilateral treaty/ any state party to the treaty if it is established that
the right is stipulated in the treaty for the collective interest of all parties(
g# 8or criminal matters all states
,no necessity to go before domestic courts
-in%ury may be indirect li1e in%ury to nationals in which case there are rules for espousal of claims
-in%ury can be of a general nature,in%ury to the int’l community as a whole erga o$nes,
aggression/ human rights/ prohibition on genocide
3esponsibility for In%ury to Aliens
.( Standard of )reatment--
;ational )reatment
-if a Canadian goes to state A and is arrested and tortured or brutali$ed/ the person’s human rights
have been violated/ it is no defence that state A treats its citi$ens in a similarly brutal fashion
-a state is not forced to accept foreign citi$ens on its territory/ if it does it must meet international
standards of treatment,this might also help to improve standards of treatment for nationals
-latin american states argued that this was a breach of sovereignty
-eg" Neer Clai$ -6S v( Hexico# -.+'@#
8AC)S" 6S national was 1illed by un1nown assailants( )he 6S government claimed that the
Hexican authorities did not do enough investigation(
3A)I4" .( :ropriety of governmental acts should be tested against international standards of
treatment
'( In order to constitute a delin&uency the treatment of an alien must amount to an outrage/ bad
faith/ wilful neglect of duty or insufficiency of govenrmental actions which fall far short of
international standards that every reasonable state would recogni$e the insufficiency( It is
immaterial whether the insufficiency resulted from failure to enforce a good law or by a lac1 of
authority to enforce(
-states have often attempted to use non-discrimination as a defence but international tribunals
have held that if the standard of treatment of nationals is lower then international standards/ states
are not afforded a defence of non-discrimination
-if an individual is a permanent resident/ they are deemd to have accepted the %urisdiction of the
state and non-discrimination will suffice,eg" if property of both resident aliens and nationals is
expropriated and only partial compensation is paid to nationals/ foreigners cannot expect more
-if transpotation property is expropriated in times of war/ full compensation must be paid
-but for human rights abuses of aliens or nationals/ minimum standards of treatment are necessary
Admission and <xpulsion
-states are not obligated to accept foreigners but if it does it must meet standards
'an:in v( Iran -.+!9#
8AC)S" 3an1in was employed by a 6(S( company and re&uested a transfer from Iran after the
Islamic revolution( 2e sued Iran for loss of salary and abandoned property(
ISS6<" <xpulsion>
3A)I4" A claimant alleging expulsion has the burden of proving the wrongfulness of the
expelling state’s action/ -arbitrary/ discrimnatory or breach of treaty obligations#( )his applies not
only to the direct actions of a state but also to situations where an individual’s continued presence
in a state is made impossible by acts of state(
-state can deport or expel foreigners as long as it does not do so in an arbitrary way that violate
conceptions of human rights/ must give a reasonable opportunity to leave the country and collect
their property
-this tribunal was set up following the release of the hostages in Iran/ this tribunal was stri1ingly
active wrt expropriation and compensation issue
Fuintanilla Clai$ -6S v( Hexico# -.+'@#
-Hexican person accused of lassoin a .B yr( 4ld girl and then he flees/ trac1ed down and he was
never brought to the police station( =ere the police responsible for his death>
-tribunal found for Hexico/ if police ta1e a prisoner into custody they are responsible to account
for in%uries to the prisoner

&-E- Chattin Clai$ -6S v( Hexico# -.+'9#
-6S citi$en accused of embe$$lement while wor1ing as a railway conductor in Hexico/ was
arrested and brought to trial
ISS6<" Does state responsibility arise through the treatment accorded to him by the court and
prison system in Hexico> =as there a maladministration of %ustice>
3A)I4" )he whole procedure fell below civili$ed standards/ proceedings were insufficient/ there
was in%ustice committed by the %udiciary/ bad faith/ undue delay of proceedings/ hearings in open
court were a mere formality/ absence of seriousness(
-denial of %ustice is sometimes used in other ways,whether the in%ustice is %ust with the courts or
government inaction against a perpetrator of an international wrong both can be the basis of a
claim of denial of %ustice
-@B@#-)eclaration on the'ights of !ersons who are not citi*ens of the Country in 1hich hey
Live,
-right to liberty and S4:/ right to not be arbitrarily arrested or detained/ due process/ right of
privacy and non-invasion/ e&ualit before the courts/ free assistance of an interpreter/ legal
assistance in Crim proceedingsL right to marryL free thought/ opinion/ conscience/ religion sub%ect
to limits presecribed by law to protect safety/ order/ public health or morals or rights and fredoms
of othersL right to retain own language/ culture/ traditionsL right to transfer earnings or other assets
sub%ect to domestic currenc regsL right to leave the country/ free expresson/ peaceable assembly/
right to own property sub%ect to domestic lawL freedom of movement/ choice of residenceL family
must be admitted to %oin an alien
-no cruel and inhumane treatment or punishment/ no experimentation without free and voluntary
consent
-no expulsion without due process/ no individual or collective expulsion on the basis of race/
color/ religion/ culture/ descent or national or ethnic origin
-safe wor1ing conditions/ fair wages/ e&ual pay for e&ual wor1
-right to %oin unions/ and other organi$ations
-right to health protection/ edical care/ social security/ social services/ education
-no arbitrary deprivation of lawfully ac&uired assets
-right to communicate with consulate or diplomatic mission of his state
:roperty
CanadaE9S free trade agree$ent/ Nafta Cha!ter 333A; s- @38 of 5
rd
'estate$ent of +oreign
'elations Law of the 9S
-central issue is expropriation of property
-expropriation is a violation of int’l law,if a country lets a foreigner operate in their territory/
expropriation is illegal
-@B+#,6; 3esolutions,'esolution on (er$anent Sovereignty over Natural 'esources -.+@'#
.( 3ight of peoples of sovereignty over natural resources must be exercised in the interest of
national development and well being of the citi$ens of the state concerned
( Capital imports and earnings on capial is governed by terms thereof/ domestic law and
international law
B( <xpropriation must be based on grounds of public utility/ security or national interest that
override the individual interests/ standard of appropriate compensation in accordance
with the domestic rules and international law
-this resolution was adopted by the 5A by !9 to ' with .' abstentions
Charter ofEcono$ic 'ights and )uties of States -.+9B#
Article '-.( State has permanent sovereignty over wealth/ natural resources and economic
activities
'( a# States have the right to regulate foreign investment in their domestic law and no state
shall be forced to give preferential treatment to foreigners
b# States have the right to regulate multinationals according to their domestic law and
corporations shall not interfere in the internal affairs of governance of the host
c#Compensation standard is the domestic standard unless the parties choose to be
govened by another body of law
Article .@-.( 3ight and duty of states to abolish apartheid/ colonialism/ discrimination/ neo
colonialism and other forms of aggression/ occupation/ domination and the conse&uences thereof(
'( ;o state has the right to allow investment which would be an obstacle to the liberation
of a territory occupied by force
-the charter was adopted by .'K with @ against and .K abstentions
-the abstentions and dissents were all from industriali$ed/ =estern countries
-this is because the ma%or difference is the standard of compensation
exaco v- Libya -.+99#
ISS6<" =hat is the standard of compensation> Is it governed by international law which means
that it is full/ prompt or is it governed by the domestic laws of the expropriating state>
-.+@' resolution had favour from a mix of countries from all over the world in different economic
stages,resoltutions can be used as evidence of state practice/ opinio %uris to lead us to determine
if there is a rule of customary international law
-Charter of <conomic 3ights and Duties of States -.+9B# p@*',.'K in favour to @ against/ .K
abstentions,Article dealing wP compensation 'c# comes to the conculsion that this article was
not as accepted as the rest of the Charter,all industriali$ed countries voted against or abstained
-whats the difference between the two resolution wrt compensation issue
-Should the standard of compensation be drawn from the rules of int’l law -3es .!K of .+@'# or
else from the domestic law of the expropriating state
-.!K is still the pertinent resolution on the standard of compensation
-Libya agreed to pay for the expropriation of )exaco’s assets a monetary sum agreed between the
two parties
ISS6< F" Contractual 3ights
3A)I4" A state has a right to control its own industries as a facet of sovereignty but that does not
allow it to breach international commitments( =here the contract stipulates that the current rules
will govern the relationship/ a state cannot change the rules without the consent of the other party(
=hat is the customary rule of international law on the standard of compensation>
-res( .!K uses the word NappropriateO instead of Nprompt/ ade&uate and fullO,this creates an
ambiguity
-there are two camps,the first says that NappropriateO means ade&uate and ade&uate means full
-the other camp says that NappropriateO depends on the facts of the case,ie" certain third world
countries may not be able to pay right away
-expropriation must be for a public purpose in order to be legal,but proof of the absence of a
public purpose is near impossible

Shahin v- Iran,ma%ority too1 the position that NappropriateO is a flexible concept
-the prompt/ ade&uate and effective standard is not the customary international law
-probably not much difference between the flexible approach and the host state dominated
approach
=hat is reparation by e&uivalent,if specific performance cannot be given/ the compensation is
monetary
-this case also dealt with another issue of the nationality of the claim,the claimant was a dual
citi$en,the espousing state must be the state of citi$enship of the claimant
-a state is in reality asserting its own right,so an in%ury to a national is an in%ury done to that
national’s state/ it is only in certain circumstances that we see the individual being able to assert
their own claim at the international level
-<uropean Convention on 2uman 3ights/ Iran 6S claims tribunal/ ;A8)A Chapter .. these are
exceptions to the general rule
-where the state espouses a claim there is no obligation to indemnify the in%ured party although
this is the norm
<nforcement of Claims" <spousal and ;ationality of Claims
Mavro$$atis (alestine Concessions Case -5reece v( 67# -.+'B#
8AC)S" 5ree1 governemnt brought an action on behalf of one its nationals who had a contract
with the 4ttoman empire which was the governing authority in :alestine prior to the Fritish
mandate( )he Fritish government breached the contract( )he Fritish argue that 5reece does not
have standing(
ISS6<" StandingPespousal
3A)I4" A state has the right to bring suit in international law for a wrong committed against one
of its nationals( 4nce a state has ta1en up the claim/ in the eyes of international law the state is
the sole claimant(
,Nottebohn case he did not have the proper lin1 wP Lichtenstein,a state espousing a claim must
have a genuine lin1
Dual Citi$ens,general rule applied on this &uestion -pB9# .+K <ague Convention,Article B-a
state may not afford protection to one of its nationals against another state to which the person
has nationality
Article *-respondent state only has to recogni$e the ability to espouse of the state that has the
closest genuine lin1 to the person
-in the Iran-6S tribunal/ -B9B-*# it stated that under this tribunal’s terms of %urisdiction -ie"
hearing individual claimants#/ the rules of state espousal ad the dual nationality issue is not
applicable to the cases decided here
-refer to the Nottebohn decision and the real and effective nationality of the individual based on
the facts,if this had been a case of the 6(S( v( Iran has the customary norm moved away from
the <ague Convention,answer accepted in obiter is yes/ if it can be established that there is a
substantial connection between the citi$en and state/ a state may afford protection against another
state to which the person holds citi$enship
-Corporations,must be a genuine lin1 as well-where is it incorporated/ where are its stoc1s
listed/ etc( -&arcelona raction#
=aiver and <xhaustion of Local 3emedies
A$batielos Arbitration -5reece v( 67# -.+*@#
8AC)S" 5reece sought to espouse the claim of one of its nationals in a contract dispute with 67(
ISS6<" Is there a duty to exhaust local remedies before bring a claim>
3A)I4" =here there is a direct in%ury to the state or organs/ there is no need to exhaust local
remedies -eg" Iran hostage case# F6) in all other circumstances/ especially where there is a
corporation concerned/ there is an onus on the party to exhaust local remedies unless exhausting
local remedies is going to be futile because the Supreme Court of I has already ruled on the issue
-municpal law#/ or the remedies available are in some way not enforceable or insufficient(
-this doctrine applies not only to state civil responsibility but also to human rights issues,under
the Euro!ean Convention on <u$an 'ights,the local remedies must still be exhausted before
going to an international tribunal
=aiver-if someone waives -without undue influence# state espoussal/ and to utili$e the domestic
system then such a waiver will be upheld
eg" North A$erican )redging Co$!any Clai$ -.+'@#
NCalvo ClauseO" a clause by which a person decides to waive its right to pursue the claim
internationally and accepts the %urisdiction of the host state(
ISS6<" =hat can be waived by such a clause>
3A)I4" Such a clause precludes the claimaint from see1ing an international remedy related to
the performance of the contract( It does not preclude the invocation of international
remediesP%urisdiction where there has been a denial or maladministration of %ustice that is
considered an internationally wrongful act(
,if you go before a local court system and are treated with a lac1 of seriousness by the court -eg"
Chattin#

Canadian <spousal of claims
-must have been a Canadian citi$en at all relevant times
-local remedies must be exhausted unless there is a denial of %ustice
-for corporations/ must be incorporated in Canada
-shareholders of non Canadian companies who are oppressed may see1 Canadian espousal of
claims
3emedies
)raft Articles on State 'es!onsibility
Article B." Cessation of 2rongful Conduct,a state commiting an internationally wrongful act
has the obligation to stop this conduct if it is ongoing
Article B'" $e!arations,.( state has a right to reparations for in%uries in the form of restitution/
compensation/ guarantee of non repetition
'( In determination of reparation/ account shall be ta1en of negligence or wilful conduct of" a#
the in%ured stateL or
b# a national of the in%ured state who brings the claim
which contributed to the damage
( 3aparation cannot deprive a population of a state of its means of subsistence
B( Cannot invo1e internal law as %ustification(
Article B" $estitution in 3ind,In%ured State is entitled to be made whole provided"
a# it is not materially impossible
b# would not involve a breach of a peremptory norm
c# the burden to the defendant state does not outweigh the benefit obtained by the
in%ured state
d# it would not seriously %eopardi$e political and economic stability to pay and that
if not paid the in%ured state would not be similarly affected
Article BB" Com!ensation,.( Feyond restitution an in%ured state is allowed to claim
compensation(
'( Hay include interest and loss of profits(
Article B*" Satisfaction,In%ured State is entitled to receive satisfaction for moral damages
which can ta1e the form of" a# an apology
b# nominal damages
c# where the infringement of the rights is gross/ damages reflecting the
gravity of the breach
d# disciplinary action or punishment of officials responsible for misconduct
or criminal misconduct
( )his right does not %ustify demands which would impair the dinity of the state which
committed the internationally wrongful act(
Article B@" Assurances and 4uarantees of &on-$e!etition,in%ured stae is entitled to receive
these(
Char*ow +actory Case -.+'!# -:CIJ#
3A)I4" 3eparations are due upon commitment of an internationally wrongful act( )he measure
of reparations is paid by the state to another state espousing the claims of its nationals(
Countermeasures
-because of the fre&uent failure of States to except the %urisdiction of international tribunals/ states
often resort to what would be internationally unlawful acts if not for their character as counter
measures which precludes wrongfulness
ILC )raft Articles on State 'es!onsibility
Article B9" Countermeasures by an In,ured State" .( If a state does not comply with its
international obligations/ an in%ured state may ta1e counter measures
'( )hose countermeasures must be consistent with Arts( B.-B@
( A countermeasure that affects a third state is not %ustifiable(
Article B!" Conditions $elating to resort to Countermeasures
.( :rior to ta1ing CHs a state has a duty to negotiate but this does not preclude ta1ing steps
to protect themselves from in%ury(
'( An in%ured state ta1ing CHs must fulfil obligations in relation to dispute settlement
mechanisms
( CHs must be suspended upon cessation of an internationally wrongful act provided that
the States are settling their disputes in good faith pursuant to the proper dispute
settlement mechanism
B( CHs may proceed where a State does not comply with orders of an international tribunal(
Article B+" Pro!ortionality,CHs cannot be disproportional to the wrong originally committed
Article *K" Prohibited Countermeasures,An in%ured state may not by way of CH resort to a#
threat or use of force as prohibited by the 6; Charter
b# economic or political coercion designed to endanger the integrity or independence of another
state
c# violations of diplomatic or consular agents/ premises/ archives/ documents
d# violations of basic human rights
e# violations of peremptory norms of international law
5ar0 21601" Stepan =ood Lecture on NState 3esponsibility for <nvironmental 2armO
-state responsibility plays a relatively insignificant role in int’l environmental law
-int’l env( Law has its origins in theories of state responsibility,rail S$elter Arbitration,is the
foundation of int’l env( Law,smelter at )rail/ F(C( was emitting fumes that crossed the border
into =ashington State and caused property damage their
-in default of private remedies the two gov’t decided to arbitrate the disputes
-the arbitral tribunal enunciated a principle in finding against Canada,-+!'# no state has the
right to use or permit the use of its territory as such as to cause in%ury by fumes to a neighbouring
state
-Lac Lanoux -+!#,2ydro electric development where 8rance wanted to dam a river shared with
Spain
-when dealing with environmental issues that have shared effects there is a duty of consultation
-.+9'/ 6; Conference on 2uman <nvironment Q Stoc1holm,occurred at the same time as the
emergence of the modern environmental movement,Stoc7holm /eclaration -+!*#,Princi!le
21 reiterated the basic principle of responsibility for transboundary harm,states have a
sovereign right to exploit resources and a corresponding obligation to ensure that such activities
do not cause harm to neighbouring states
-Stoc1holm Conference urged states to wor1 towards rules for liability and responsibility
-what has happened>,nothing
-.++'/ 3io Conference,$io /eclaration,:rinciple ',it reiterates the Stoc1hold principle on
state responsibility
-principle .,reiterates the desire to found a regime for settlement of disputes
-very few recent cases about state responsibility
-one case where Australia V- Nauru,ended in settlement but denied Australian responsibility
=hy is S3 relatively insignificant in International <nvironmental Law> =hy has so little
progress been made on developing the rules of S3>
.( nature of the actors involved in environmental problems,not exclusive to environmental
arena/ states are not the relevant actors in the realm of international law
-it is now private actors that are causing the problems but they do not have standing in
international law
-thus/ the focus has been on the polluter themselves rather then the polluting state,given rise to
the N:olluter :aysO principle
-also/ there has been a focus on private remedies for harms caused to the environment
20 nature of the !roblems,these problems are global problems with difuse impacts and the
focus is on harm to the commons rather then harms to the individual states
-it is difficult to pin down responsibility
"0 Limitations of the $ules of S$,a reasonableness or due dilligence defense is available to
the governments involved,there are some exceptions for ultra-ha$ardous activities but the
general rule is due dilligence
-it is very difficult and expensive to disprove DD
-also/ the complaining state must establish that it has suffered a grave in%ury
B( Political Sensitivity,tension between dev’ped and dev’ping countries and the political
reality of Nvictim :aysO
-;PS difference dominates environmental issues,all of the treaties re&uires a consensus between
; E S and this robs these treaties of their substantive force
-the lion’s share of the responsibility is forced on the dev’ped world and the dev’ping world ta1es
limited responsibility
-dev’ped world caused the existing problems
-any tal1 of state responsibility would scuttle the existing consensus
Nvictim paysO,gov’ts have found that the dominant principle is that victim pays when dealing
with int’l problems
-eg" problems with the downstream states on the 3hine was resolved when the downstream states
paid the polluters to stop their behaviour
-similar situations whereby the .
st
world pays for the
rd
world to stop polluting
-this turns state responsibility on its head
80 #hese Issues are 'eing /ealt 2ith %lsewhere,this is being dealt with in the state
responsibility field and international liability for acts not in violation of international law
90 Su!remacy of %conomics,the emphasis has been on opening of borders and ma1ing states
responsible for not opening borders
-;A8)A/ Chapter ..
-side agreement on the environment,does not focus on S3 instead discusses domestic
obligations and not international obligations
9( <ra of InstitutionP;orm Fuilding
-many treaties and institutions have been developed but are still in their infancy
-price of consensus is wea1 substance -general/ vague/ incapable of real measurement#,
impossible to prove causation/ damage/ responsibility
!( Sustainable Development,this is the era of sustainable development where the environmental
crisis is something that can be managed through existing institutions and this is what sustainable
development is all about
Self Determination
2istory of the :rinciples
-idea of SD is not a modern phenomenon/ has been present throughout recorded history people
have always used similar language to assert their independence from political control
-London congress of Socialist International of .+
th
C is replete wP language of SD
-6S 3ev’ry =ar was about SD/ 8rench 3ev’n,8raternite was lin1ed to consent and SD
-==I saw the greatest use of the term
-post ==II 6; Charter was intended to end all wars and prominent in this document was Self
Determination
Article . of 6; Charter,-'# purposes of the 6; is develop friendly relations among nations
based on the principle of respect for human rights and national determination of !eo!les and to
ta1e other appropriate measures to strengthen peace
Article **/ 9-elaborate provisionsPindications of international legal obligations of states to
maintain the principle of SD
-three years later the 6niversal Declaration of 2uman 3ights was adopted but it does not mention
self-determination or that most of the global population was living under a colonial regime,this
is because the drafters were colonial powers
-.+B*-B@,became impossible to ignore anti-colonial currents especially with the entrance of
India/ colonial Africa and L(A(
-.+@.,3esolution .*.B,5eneral Assembly 3esolution,sub%ection of peoples to colonial rule
is contrary to principles of human rights
-all people have the right to Sd and by virtue of this right they freely pursue their social and
economic development
-underdevelopment should not be an impediment to reali$ation of Self Determination
-armed action to suppress colonial action is not permitted
-became clear that in this period .+B*-.+@.,colonialism lost its persuasive force
)wo Covenants" International Covenant of 2uman 3ights E Covenant on Social/ Cultural
Development
-both covenants have as their first article a statement on SD,it says that all peoples have the
right to Sd and by virtue of that right they have the right to freely pursue their social and
economic development,all peoples may for their own ends freely dispose of their national
wealth and resources without pre%udiceS
-these treaties give 3esolution .*.B binding force at international law
-.++,Vienna )eclaration and (rogra$ of Action,issued after Cienna world conference on
human rights,states clearly that all peoples have the right to self determination,this replicates a
.+9* resolution of the 6;5A NDeclaration on 8riendly 3elationsO which was an authoritative
interpretation of the 6; Charter,right of SD is available to all peoples but this right ought not
lead to the division of any state if that state is conducting itself in compliance with the values of
e&uality of peoples and respecting the human rights of all peoples
-general exception in the case of coloni$ed peoples who always have the right to impair the
integrity of their colonial oppressors
=hat does SD 3eally Hean>,:rofesor Levin Nthe right of a people of a nation freely without
outside pressure to determine their state affiliation including the right to form an independent
state and to detemrine the forms of their economic/ political and social life(O
--pg *+# Judge Dillard opinion in 1estern Sahara Case,Nit is for the people to determine the
destiny of the territory and not for territory to determine the destiny of the peopleO
2ow do States Attain SD>
-political means,ensure representation/ protection of minority language/ culture/ limited degrees
of autonomy/ right of forcibly divided states to unite/ right to secede/ right to dissolve a state
peaceably and form a new state/ right to choose attachment to other countries
-most established face is the right not to be coloni$ed
-two cases have affirmed the right of SD" Fuebec Secession 'ef = >atangese (eo!les
Asscoaition v- ,aire
-both cases say the same thing/ court were faced with a seccessionist claim and used the Marbury
v- Madison strategy,the particular minority group has no right to secede but there may be
circumstances where a peoples has the right to secede if"
.( =here a people is a former colony
'( where there is oppresion under a military government
( if they can show that they have been fundamentally excluded from the political
infrastructure
-if these circumstances have not been met/ the peoples have a right to negotiate in good faith
)he right belongs to N:eoplesO
-most people use the term to refer to groups that have common aims
Self Determination and 5lobali$ation
-Is it non-sensical to tal1 about a people’s right to SD in an age of globali$ation>
Limitations on the :se of )orce
-limitations imposed upon states on their ability to use non-peaceful methods for the settlement of
disputes
-pre-.+B*/ some attempts to prohibit the use of armed conflict to settle int’l disputes through the
league of ;ations but these were only successful with smaller scale conflicts
%eneral reaty for the 'enunciation of 1ar -.+'!#
-no enforcement mechanisms/ produced by League of ;ations which was dismantled when 6;
was created/ unable to stop the invasion of Abyssinia by Italy pre ==II
-this treaty has been superceded by the 6; Charter/ etc( but remains in force
Article .,parties renounce war as an instrument of foreign policy
Article ',settlement of disputes shall only be sought through pacific means
9N Charter
Article '-#,all disputes should be settled by peaceful means so as not to endanger international
peace/ security or %ustice
Article '-B#,deals with prohibition of the use or threat of use of force against the territorial
integrity or indepedence of any state in any manner inconsistent with the purposes of the 6;
'-9#,deals with non intervention,nothing authori$es the 6; to deal with matters that are
within the domestic %urisdiction of sovereign states within their own territory,=hat is domestic>
<g" Apartheid in S(A(/ S(A( claimed it was within the domestic %urisdiction of South Africa no
right of 6; to intervene
-where there is a widespread and systematic violation of human rights and freedoms/ the concept
of domestic %urisdiction is superceded
-:rinciple of non-intervention is stated to be not pre%udicial to the application of Chapter 9 of the
6; Charter which details the role of the Security Council of the 6; when it legitimately ta1es a
measure because it has determined that State I’s actions or conditions are a threat to International
peace and security
Article 9,sets up the institutional mechanisms of the 6; and allows for the creation of new
institutions if necessary
-Article B.,SC can decide what measures are necessary to implement their resolutions
Charter of the "AS -.+B!#
Article .!,non intervention in the affairs of states through armed force or other acts of
interference
Article .+,no use of coercive measures to force states to do things or obtain advantages
Article 'K,territorial integrity of states is inviolable and cannot be sub%ect to military
occupation/ territorial ac&uisitions gained by force or coercion are not recogni$ed
Article '.,no use of force except self-defence in accordance with existing treaties
Definition of Aggression,SC members fre&uently use veto power and as a result the 6;5A
adopted this resolution by consensus,it is supposed to help the SC establish a non-binding
guideline to determine when there has been an act of aggression so they can ma1e a response in
the form of economic sanctions or military intervention
-this definition is Nfraught with ambiguityO,although/ it can be a useful tool because the 6;
Charter has not ruled out the use of force in self defence/ defence of citi$ens and other
humanitarian procedures,the prohibition on the use of force can be rebutted
-Article .,Aggression is the use of armed force by a State against the sovereignty/ territorial
integrity or independence of another or in any manner inconsistent with the Charter of the 6;
-Article ',a first use of force may be a !ri$a facie act of aggression -but this may be rebutted in
circumstances of premptive attac1s/ protecting citi$ens#
-Article list of acts of aggression,invasion/ bloc1ades/ bombardment/ use of territory to allow
entrance of armed troops into another state/ attac1s on armed forces/ sending mercenaries
-Article *,no consideration either political/ economic/ military can %ustify aggression/
aggression is a crime against international peace and is accompanied by state responsibility/
terriotrial ac&uisitions by aggression are not recogni$ed
Article @,nothing in this affects the %ustifiable use of force under the 6; charter
Article 9,nothing in this document prevents peoples from exercising their right to self-
determination especially against colonial or racist regimes
Justifications
Several cases where intervention may be legitimate
3- collective intervention by the 6; pursuant to Chapter CII of the 6; Charter or
sanctioned by the 5A under 9niting for (eace 'esolution
8- protecting the rights of nationals eg" -Israel’s raid on Antebbe airport in 6ganda/ bombing
of Ira&’s nuclear reactor#
( 3ight of Self Defence,-refer to .9K declaration and article *.#,individual or collective
,if a state invades another state the invaded state can resist and as1 for help from
rd
states,
these
rd
states although not in danger themselves/ may respond -collective self defence#
-wP ;icaragua/ 6(S( argued that it was defending <l Salvador,must show a real right of self-
defence and that the victim state has as1ed for assistance
B( A state acts in the affairs of its protectorate which it is obligated to assist by treaty
*( =here the state being intervened in has committed a gross breach of I(L( and the
intervening state does so for humanitarian motives,)2IS IS C<3R
C4;)34C<3SIAL
@( =here the lawful government of the state as1s for assistance through a real and genuine
invitation
3ight of Self Defence" 9N Charter
-Article *.,nothing precludes self defence measures if an armed attac7 occurs until the SC has
ta1en measures and once self denfence measures are ta1en by a state they must be reported
immediately to the SC
!re-em!tive or antic!atory self defence,-p ..'*#,he Caroline -67 v( 6S# -.!9#,dispute
between the 67 acting on behalf of Canada and the 6(S( concerning the pushing of a ship -N)he
CarolineO#over ;iagara falls/ some Americans died
-there was a rebellion going on in Canada and some Americans were assisting the Canadian
rebels and this ship was assisting the rebels
-both sides agreed on the criteria for this 1ind of self defence action
.# necessity of self defence,instant/ overwhelming/ leaving no
choice of means or instant for deliberation
'# if you do act preemptively/ you cannot be unreasonable or
excessive -reasonableness and proportionality test#
-how is this reconciled with the phrase in article *. Nif an armed attac1 occursO
-there is a customary international law rule allowing for a state to use a preemptive stri1e
-definition of aggression lists aggressive acts
-preemptive self defence has not died out
International Military ribunal 2Nure$berg 1ar Cri$es rials6 -.+B9#,the defendants before
the tribunal were being prosecuted for crimes against peace/ war crimes and crimes against
humanity
-initiation of aggression is an international crime and individual responsibility follows
Crimes against peace
-the reason asserted by 5ermany for invading Scandinavia was fear of a preemptive stri1e by the
allies,Caroline case was relied on by the court who held that there was nothing to show that the
allies were actually planning such an attac1
Military Activities In and Against Nicaragua Case -;icaragua v( 6S# ?.+!@A
3A)I4" Collective or individual self defece is an exception to the prohibition on the use of force
because it is a matter of customary international law(
Israeli Attac: on Iraqi Nuclear 'esearch Centre,Security Council Debate -.+!.#,Israel and its
bac1ers argued that it was necessary because of the imminent danger to Israel because the reactor
was about to go NhotO and be capable of nuclear weapon production
-Ira& contended that the reactor was going to be used to produce nuclear energy
-Ira& and Israel are in a state of war -no peace accords#/ given the geographical proximity/ the
state of war and statements by 2ussain and others that it was necessary for Israel to ma1e this
surgical stri1e
Security Council $esolution,condemned Israel/ with even the 6(S( voting to condemn Israel
-Jeanne 7ir1patric1 said that the reason they condemned Israel was that Israel did not resort to
peaceful means first
-Ira& was a party to the non proliferation treaty treaty and had allowed 6; inspectors to examine
the facilities and found that Ira& was behaving,Israel was not a signatory
Self Defence of ;ationals
-if states citi$ens were in a foreign country and the political situation with the foreign state
deteriorated and the citi$ens were in %eopardy/ a state may intervene to save their nationals
-the intervention for this purpose must be proportional and reasonable %ust as other SD measures
)he <ntebbe 3aid,the Israelis attac1ed the 6gandan airport on the %ustification that their
citi$ens were endangered
-terrorists had boarded the plane Q Athens
-two days after the hi%ac1ing/ the terrorists released B9 passengers who were not Jewish or Israeli
citi$ens,these witnesses recounted that the hostages were being guarded by 6gandan forces who
were assisting the hi%ac1ers
-6(S( bac1ed Israel
<i/ac:ing Convention,both Israel and 6ganda were signatories and thus/ 6ganda had an
obligation to resistPnot cooperate with the hi%ac1ers/ etc(
6S has used this %ustification on a number of occasions,6S intervention in 5renada/ :anama
but in these situations they also presented -in 5renada# collective self defence/ preemptive self
defence
-in 5renada/ 6S citi$ens living there were not in any real danger
2umanitarian Intervention
-ma%ority of .+
th
century publicists admitted the existence of a right to intervene to protect human
rights,eg" intervention to support the 5ree1 revolution/ 8rench intervention in Syria to stop the
massacre of the Haronites
-Article '-9# prohibits intervention/ so the intervention to protect human rights is now disputed
-however/ post :ersian 5ulf =ar it has been reali$ed that if 2umanitarian intervention is
approved by 6;SC then it may be underta1en/ especially if non-intervention may have the effect
of destabili$ing international relations
-concern if humanitarian intervention is unilaterally done/ it may be for non-humanitarian/ self-
interested reasons
-this type of intervention may only be %ustified if ta1en in a collective form/ approved by the SC
,Javier :ere$ de Cuellar 6; S-5
Security Council 3esolution @!! -.++.#
-affirmed the duty not to intervene but condemns the repression of the 7urds/ demands an end to
repression/ insists that 6; humanitarian forces be allowed to provide aid/ appeals to all states to
contribute aid/ demands Ira&i cooperation
-SC acting under Chapter CII/ must find that there is a threat to international peace and security
-SC refers to Art( '-9# which disallows intervention but not to be read inconsistently with Chapter
CII
Nmassive flow of refugeesO which affected the stability of the area,7urdish refugees were
fleeing to )ur1ey
-SC also condemned the action of militants in 2aiti in .++. and demanded the restoration of
:resident Aristide to office
-6S used restoration of democracy as a ground for intervention in :anama to remove ;oriega
-note B -..B'#,Hust decide who are candidates for SD at customary international law,
restrictive list of candidates needed to restrict fragmentation of states -when 4rgani$ation of
African 6nity was set up/ they made a statement that the 4A6 states would respect current
borders#
Invitation
-when states are invited to intervene this is not aggression but the re&uesting government must be
the lawful government and in control of the territory/ the invitation must be genuine and voluntary
without undue influence/ the invitation must be made by someone with the authority to ma1e it
-Can a state intervene to suppress a civil rebellion>,as long as the government issuing the
invitation is not suppressing a self determination movement/ it is legitimate
Collective Heasures :ursuant to the 6; Charter
Article '*,the Security Council is charged with the responsibility of maintaining peace and
order and acts on behalf of the member states( Security Council can submit annual
recommendations to the 5A(
Article '@,Hember states are bound to accept and carry out the orders of the SC and act in
coordination with the SC
Article +,SC can determine the existence of a threat to peace and ma1e recommendations or
decide what measures to ta1e to maintain peace and security
Article BK,Fefore ma1ing a recommendation/ the SC can as1 to parties to accept provisional
measures as it deems necessary without pre%udice to complying parties but it can ta1e into
account the failure to comply
Article B.,SC can decide what measures short of force are to applied and this can include"
interuption of economic relations and rail/ sea/ air/ postal/ telegraphic/ radio and other means of
commuication and severance of diplomatic relations
Article B',If measures under article B. would e inade&uate/ SC can authori$e other means such
as bloc1ade/ demonstrations or other operations
Article B,States are responsible to ma1e their armed forces and infrastructure available for use
to the SC and may negotiate agreements for the numbers/ types and degrees of readiness of their
forces
Article BB,If SC wants a non SC member to participate/ they can also invite that memebr to
participate in decisions affecting their force
Article B*,Air force contingents must be provided in accordance with special agreements
Article B@,:lans for application of armed force shall be made by the SC with the assistance of
the Hilitary Staff Committee
Article B9,<stablishes the Hilitary Staff Committee to coordinate military action which shall
consist of the chiefs of staff of the big * and any other member invited by the SC
:niting for Peace $esolution ;:0& 1<81
)he 3esolution" =as passed by the 5eneral Assembly( )he 3esolution recogni$ed the primary
role of the Security Council with regard to maintaining international peace and security/ but also
recogni$ed that the 5eneral Assembly was competent to consider this issue( )he 3esolution
declared that when the Security Council was unable to act due to the veto of one of the permanent
members that the 5eneral Assembly would meet to consider recommendations to members for
collective measures/ including the use of armed force if necessary(
7ey elements"
• 8ailure of the Security Council to discharge its responsibilities does not relieve member states
of their obligations/ or the 6; from its responsibilities under the Charter to maintain peace(
• 5eneral Assembly can ma1e recommendations to members states for collective actions(
)hese may include the use of armed force when necessary to maintain or restore international
peace(
• Hember states are as1ed to survey their resources in order to determine the nature of the
resources they could ma1e available if called on( Also/ states are as1ed to maintain armed
forces that could be promptly be put to service by the 6;
Subse&uent 6ses" 8irst during the 7orean war( )his resolution was utili$ed again in .+*@ -6;<8-
<gypt#/ .+*! -Lebanon E Jordan#/ .+@K -6;4C-Congo#/ .+@9 -Hiddle <ast#/ .+9.
-Fangladesh#/ .+!K -Afghanistan#/ .+!. -;amibia#/ .+!K/ .+!' -:alestine#(
Certain e=!enses of the :& Case
- Some ob%ecting states claimed that the peace1eeping forces raised under the resolution were
unconstitutional(
- )he ICJ decided that the Security Council’s responsibilities are primary and not exclusive( )he
5eneral Assembly under Articles .B and .! may ma1e decisions respecting international peace(
- Distinction between enforcement action -only SC can authori$e#/ and other measures to preserve
peace and security -which 5A can do too#(
Security Council Powers :nder Cha!ter (II
)he SC has broad powers under Chapter CII of the 6; Charter(
)he first time the SC exercised its entire powers under the Chapter was during the Ira&-7uwait
crisis( It made several resolutions"
3esolution @@K-Article BK :rovisional Heasures
• Condemning Ira&’s invasion and demanding the it withdraw immediately( )his should be
followed by Ira&-7uwait negotiations regarding their differences(
3esolution @@.-Article B. Sanctions not involving armed force
• Decided to ta1e measures as a result with Ira&’s failure to comply with @@K( )hese measures
include import sanctions/ no economic dealing with either Ira& or 7uwait/ no member state to
supply any commodities to these ' countries aside from humanitarian aid(
• Called on all states/ including non-members to act in accordance with the previsions of the
resolution notwithstanding any contracts they may have with Ira&(
• States should ta1e appropriate measures to protect assets of the legitimate gov’t of 7uwait/
and not recogni$e the regime set by 2ussein(
3esolution @@'
• )he annexation of 7uwait has no legal validity and is void and should not be recogni$ed by
any states( Demands that Ira& stop its actions to annex 7uwait(
3esolution @@B
• Demands that Ira& permit the departure of the national of third countries and that Ira& ta1e no
action to %eopardi$e the safetyPsecurity of these nationals(
3esolution @@*
• 3e&uests all member states to coordinate their actions in order to ensure that resolution @@. is
carries out
3esolution @9K
• states are not to allow any aircrafts to ta1e flights from their territory into Ira& other than food
in humanitarian circumstances
• Hembers states are to detain any ships of Ira&i registry which enter their ports(
3esolution @9B
• Ira& stop ta1ing hostages and mistreating third-state nationals(
• Called on the Secretary 5eneral to use his Ngood officesO to reach a peaceful resolution(
3esolution @9!
• Authori$es the use of Nall necessary meansO to implement 3esolution @@K if not complied
with by Jan .*( All states are to provide appropriate support to these actions(
3esolution @!9
• <stablished detailed terms of submission by Ira&/ including return of all 7uwaiti people and
property/ respect for the int’l border with 7uwait/ destruction of all chemical/ biological and
nuclear weapons/ payment of compensation for damage caused out of a fund constituted from
Ira&’s oil exports/ and acceptance of a 6; 4bservation Hission to monitor the $one(
• Ira& -notwithstanding statements it made during the crisis# still must repay all of its foreign
debt(
• 3esolution @@. still applies to prevent states from selling Ira& arms and certain technological
e&uipment(
#errorism
• If a state sponsors terrorist acts or aids terrorist groups in any way to further its or their goals-
it would be in violation of Article '-B# of the charter/ of the .+9K Declaration on :rinciples of
int’l Law/ and be an act of aggression under article -g# of the .+9B Definition of Aggression(
• 6; 5eneral Assembly has sponsored ! multilateral conventions and ' protocols against
terrorism( )hese see1 to prevent hi%ac1ing aircrafts/ hostage ta1ing/ offences against nuclear
material/ offences against maritime vessels/ terrorist bombings(
• Security Council in 3esolution 9. condemned the destruction of the flights over Loc1erbie
and Chad( It deplored the fact that Libya had not responded to re&uests to cooperate fully in
punishing the terrorists( It was stated that in complying with this resolution Libya would be
contributing to the elimination of int’l terrorism( =hen Libya didn’t comply/ the SC adopted
3esolution 9B! under the provisions of Chapter CII"
- imposed universal and mandatory commercial and diplomatic sanctions on Libya/ effective
April .*/ to secure compliance with the surrender order(
Peace7ee!ing $ole of the :&
• :ractice of sending 6; peace1eeping forces into crisis situations while well established was
not envisaged in the Charter itself( )hese forces are peace1eepers and not peacema1ers and
their placement re&uires the consent of the state in whose territory they are stationed(
• =ith the end of the Cold =ar/ the increased cooperation among ma%or powers has seen
peacema1ing come to the fore( )he new regime re&uired more robust actions by 6; forces
who often had to act as peacema1ers as well(
Secretary 5eneral’s 3eport on the =or1 of the 6;
 3eaffirms how varied the role of the 6; peace1eeping missions has become( In particular
non-traditional 6; missions are the ones involving Ira&" the demarcation of the boundary
between Ira& and 7uwait/ the elimination of Ira&’s mass destruction capability/ management
of a compensation fundS((Frea1ing new ground in Int’l experience(
An Agenda for :eace - 6; Secretary 5eneral .++'#
• )he 6; must be capable of reali$ing the ob%ectives of its Charter to achieve Nsocial progress
and better standards of life in larger freedomO(
• In the past the 6; was powerless to deal with many crisis because of the vetoes cast in the
SC( 2owever now that these vetoes are rare the 6; must
.( See1 to identify situations that could produce conflict and try to resolve through diplomacy
'( )o wor1 to preserve peace where fighting has been halted and assist in implementing
agreements(
( Assist in rebuilding institutions and infrastructures of nations torn by civil war(
B( Address the main cause of conflict" economic despair
SD pg *-@9
-All peoples have the right to SD
-*@# exerpt from 1estern Sahara case,colonial people have the right to see1 SD
-East i$or Case,principle of SD is recogni$ed by the Charter and %urisprudence of the court
and some would suggest it has risen to the level of /us cogens
-applicable to colonial peoples/ neo colonial people being oppressed -aparthide#
-Secession 'eference,only way a homogenous group with a common language and culture
existing in a sovereign state must evidence fundamental discrimination/ functional sub%ugation/
attac1s on its existence/ human rights violations in order to have the right to SD
-one action that would amount to aggression is sending mercenaries/ armed bands/ etc(
-9N )eclaration on (rinci!les of +riendly 'elations,every state as the duty to refrain from
organi$ing armed bands for the purpose of invading another state
-every state has a duty not to allow/ permit/ assist armed bands in other states to overthrow an
established government
-but/ when dealing with groups struggling for SD,there is a conflict because the concept of SD
can be used to meddle in the affairs of other states,nothing in the foregoing paragraphs should
be construed as permitting the destruction or impairment of territorial integrity of sovereign
independent states who are abiding by principles of self determination
Article 9 of Definition of Aggression,if the group claiming SD does not fall into the category of
receiving the right to SD/ they cannot receive aid from external sources
-does not define NstruggleO-peaceful>/ military>#/ NsupportO -financial>/ military>/ moral>#