Public International Law - UTS - 2024 PDF

WELCOME AND INTRODUCTION 70108 Public International Law Spring 2024 Professor Jessie Hohmann Subject Coordinator University of Technology Sydney Faculty of Law Acknowledging Country Eora People: Saltwater People of the Sydney area: https://www.eorapeople.com.au/ By D A R C 12345 -...

WELCOME AND INTRODUCTION 70108 Public International Law Spring 2024 Professor Jessie Hohmann Subject Coordinator University of Technology Sydney Faculty of Law Acknowledging Country Eora People: Saltwater People of the Sydney area: https://www.eorapeople.com.au/ By D A R C 12345 - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?c urid=56863033 Overview What is expected of me? How is the subject delivered? How will I be assessed? What next? What is expected of me? Preparation and self-directed study 6 credit point subject = 25 hours per credit point = 150 hours You should expect to spend 114 hours of self-directed study in this subject (with 36 hours in-class time). Reading, making notes, preparing tutorial activities, assignment preparation, thinking. Active engagement in class and in group tasks Come to class prepared Active, informed and reflective participation is expected – and part of your assessment Intellectual curiosity and critical thinking What is expected of me: the readings Required text David Harris & Sandesh Sivakumaran, Cases and Materials on International Law (9th ed, Sweet & Maxwell, 2020). Recommended texts Gleider Hernández, International Law (2nd ed, Oxford University Press, 2022). Sue Gonzalez Hauck, Raffaela Kunz & Max Milas (eds), Public International Law: A Multi-Perspective Approach (Taylor & Francis, 2024). This text is available open access at this link. Emily Crawford, Alison Pert & Ben Saul, Public International Law (Cambridge University Press). Other resources UTS Library Guides on International Law (and on domestic legal sources) are available in the ‘get started’ module. Further recommended or required texts are listed for various weeks on canvas under ‘required readings’. What is expected of me – open, respectful discussion Active discussion in tutorials requires respect. Disagree respectfully. Criticise the idea (not the person), using credible sources to support your opinion. Respect, tolerance, inclusion and anti- racism are UTS principles. They are expected in the classroom by all students and staff. Remember: the nature of international law means we will discuss situations that for some are merely a news story happening far away, but for others are impacting family, friends and loved ones on the ground. How is the Subject Delivered? Lecture 1 x 1 hour lecture per week All lectures are live, 12-1pm on Tuesdays, via zoom. lecture content precedes tutorial content by one week. Tutorial 1 x 2 hour tutorial Active participation, based on preparation, is expected in the tutorial. Who are the tutors and lecturers? Lectures Professors David Leary and Jessie Hohmann Tutorials All teaching staff are listed at this link How will I be assessed – the assignments and exam Assessment task 1: Written critical analysis 20% Due Friday 13th September 12pm (noon) via Canvas (Week 6). Assessment task 2: Group audiovisual presentation 20% Due Weeks 9-11 (depending on group allocation) Full instructions including schedule and group allocations will be available in Week 6. Class participation 10% individual component (assessed across the term). Assessment task 3: Final examination 50% 2-hour exam within a 3-hour window, during the UTS Examination Period. How will I be assessed – content, skills and knowledge What content is assessed? All course content (weeks 1 - 12, including the first lecture (on sources) provided in week 0). You are expected to be familiar with all: lecture content content covered in tutorials required readings additional readings and/or research will be required for assessments 1 & 2. What knowledge and skills are you assessing? Each assessment is designed to test your knowledge and skills of different aspects of the subject learning objectives and course intended learning outcomes (see subject outline) These include Legal knowledge Critical analysis and evaluation Communication Collaboration Remember, this is an upper year core module which will challenge you to think, prepare and perform. What next? Watch the lecture on ‘sources of international law’ at module 0.3. Prepare for your first tutorial by visiting module 0 and module 1 and making time to read and prepare. We’ll see you in tutorials in week 1. Sources of Public International Law Professor David Leary UTS CRICOS 00099F Lecture Overview Introduction to Sources of Public International Law TreatiesDefinition Customary international lawtent objector General principles of law Judicial decisions Writers Other Sources of Law Jus cogens and the hierarchy of sources Image: http://4.bp.blogspot.com/-_wnxAckgwag/VWnc5KL4EEI/AAAAAAAAIAA/W46r22dbdtI/s1600/1.%2Bnyh-06-27-1945-un-charter.jpg Article 38 of the Statute of the International Court of Justice Article 38 of the Statute of the International Court of Justice Article 38 of the Statute of the International Court of Justice What is a treaty? A Treaty is defined as: An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (See Art. 2 Vienna Convention on the Law of Treaties 1969 – VCLT) But note it is also possible to have oral treaties but these are not covered by VCLT ‘treaty’, ‘convention’ and protocol etc Bi-lateral, multi-lateral etc Exchange of notes? Written form-minutes of a meeting? Qatar v Bahrain- ICJ Rep 1994, 112 Image: UN Treaties and their relationship with customary international law Provisions of Treaties can become customary international law, and customary international law can become part of treaties In three different ways (see ILC conclusion 11): Treaty declares pre-existing customary international law (as Nicaragua argued in Military and Paramilitary Activities) Treaty represents crystallization of an emerging rule of custom customary international law (as Netherlands and Denmark argued in North Sea Shelf) Subsequent practice makes treaty rule into custom UTS CRICOS 00099F  Treaties and their relationship with customary international law Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits) ICJ Reports 1986, p.14 “customary international law continues to exist alongside treaty law even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty- law must deprive the customary norm of its applicability as distinct from that of the treaty norm…. there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own.” (paras 176- 177). Article 38 of the Statute of the International Court of Justice Customary International Law A useful explanation has been provided by (Greig 1976) “international custom results from similar and repeated acts by states-repeated with the conscious conviction of the parties that they are acting in conformity with the law. Thus there would be two factors in the formation of custom: 1. a material fact-the repetition of similar acts by states, and 2. a psychological element usually called the opinion juris sive necessitates-the feeling on the part of the States that in acting as they act they are fulfilling a legal obligation” (Greig 1976) Sources of Law-Customary International Law Two elements. Both must be established: 1. State practice- behaviour & practice of states (objective facts) Duration, consistency, repetition and generality? 2. Psychological or subjective belief (opinio juris) States feel bound or obliged to act in a certain way Maxim: opinio juris sive necessitatis In summary, Customary International Law = state practice + opinio juris UTS CRICOS 00099F  Customary International Law North Sea Continental Shelf cases (FR Germany v Denmark, FR Germany v The Netherlands) ICJ Reports 1969, p.3 Dispute in boundary delimitation negotiations between Germany, The Netherlands and Denmark. Did the equidistance/special circumstances rule in Art 6 of the 1958 Geneva Convention on the Continental shelf apply? Germany had not yet ratified the treaty. Could only apply if the rule was also Customary International Law. Held: “…two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but 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 the existence of a rule of Iaw requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty”. (para 77) Image: International Court of Justice  Customary International Law Lotus case (France v Turkey) (1927) PCIJ, Ser.A, no.10 A French vessel The Lotus collided on the high seas with a Turkish vessel the Boz-Kourt. 8 passengers and crew were killed. When the ship docked in Turkey, Turkish authorities arrested the French officer of the watch. Key issue was whether Turkey had jurisdiction to prosecute him for manslaughter? France argued that because there had been so few examples of criminal prosecutions of other states ‘flagged vessels’ this demonstrated the existence of a principle of customary international law that only the ‘flag state’ had exclusive jurisdiction. Image: https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/ Customary International Law Lotus case (France v Turkey) (1927) PCIJ, Ser.A, no.10 Court held that needed to show a subjective element stating [absence of other states exercising jurisdiction would] “merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognised themselves as being obliged to do so; for only is such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom…” Image: https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/  Customary International Law Is there a minimum or maximum time required for the crystalisation of a principle of customary international law? North Sea Continental Shelf cases (FR Germany v Denmark, FR Germany v The Netherlands) ICJ Reports 1969, p.3 “As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Image: International Court of Justice Current members of the International Law Commission Source: UN ILC Customary International Law: State Practice (objective element) ILC Conclusions, Part 3: A General Practice UTS CRICOS 00099F Customary International Law: State Practice (objective element) ILC Conclusions, Part 3: A General Practice UTS CRICOS 00099F  Customary International Law –the persistent objector The ‘persistent objector rule’- a State that persistently objects to a rule of customary international law from its inception is not bound to it Anglo-Norwegian Fisheries case (United Kingdom v Norway) (Merits), ICJ Reports 1951 “The general toleration of foreign States with regard to the Norwegian Practice is an unchallenged fact. For a period of more than 60 years the [UK] Government itself in no way contested it….” Customary international law: Opinio Juris ILC Conclusions, Part 6: Persistent Objector UTS CRICOS 00099F Can there ever be a “regional” customary international law? Asylum case (Colombia v Peru) ICJ Reports 1950, p.266 After an unsuccessful rebellion in Peru in 1948 a warrant was issued for the arrest of Haya de la Torre. He was granted asylum in the Colombian Embassy in Peru. Was there a “regional” (Latin-American) rule of customary international law that meant Colombia could grant asylum? “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question…” Image: Google Images Article 38 of the Statute of the International Court of Justice General Principles of Law recognised by ‘civilized’[sic] nations? Separate opinion of Judge Ammoun in North Sea Continental Shelf: (FR Germany v Denmark, FR Germany v The Netherlands) ICJ Reports 1969, p.3, at pp 133-134 “It is important in the first place to observe that the form of words of Article 38, paragraph 1 (c), of the Statute … is inapplicable in the form in which it is set down, since the term ‘civilized nations’ is incompatible with the relevant provisions of the United Nations Charter [i.e. sovereign equality], and the consequence thereof is an ill-advised limitation of the notion of the general principles of law. The discrimination between civilized nations and uncivilized nations … is the legacy of the period, now passed away, of colonialism, and of the time long-past when a limited number of Powers established the rules, of custom or of treaty-law, of a European law applied in relation to the whole community of nations…the general principles of law mentioned by Article 38, paragraph 1(c ), of the Statute, are nothing other than the norms common to the different legislations of the world…” UTS CRICOS 00099F What are the general principles of law recognized by ‘civilized’ [sic] nations? Some examples include: -Estoppel -Precautionary Principle (Harris & Sivakumaran 2020) Article 38 of the Statute of the International Court of Justice  Judicial Decisions -Article 59 of ICJ Statute- -Unlike the common law there is no doctrine of stare decisis (doctrine of precedent) in international law Images: ICJ;ICC; ITLOS Writings of most highly qualified publicists Professor James R Crawford's picture Hugo Grotius James Crawford Hersch Lauterpacht Images: Wikipedia; The Guardian; University of Cambridge; Article 38 of the Statute of the International Court of Justice Other sources of Law UTS CRICOS 00099F Other sources of Law not mentioned in Art 38 of ICJ Statute Unilateral Acts of States Nuclear Tests Case (Australia v France) ICJ Reports 1974, p.253 “It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations…When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking” (para 43). Image: The Independent Other sources of law United Nations General Assembly Resolutions Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996, p.226 ICJ advised: ‘… General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinion juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinion juris required for the establishment of a new rule.’ (at ) Contrast this with the legally binding nature of resolutions of the UN Security Council, especially when UNSC acts under Chapter 7 UTS CRICOS 00099F  Other Sources of Law Soft law -Non binding statements of intention -Aspirational -May guide or contribute to the future development of international environmental law -e.g. Stockholm Declaration & Rio Declaration etc Hierarchy of Sources and Jus Cogens Jus cogens (sometimes spelt as ius cogens) Literally: ‘compelling law’ i.e. a peremptory (absolute, irrefutable) norm to which no derogation is permitted Examples of jus cogens Prohibition on use of force in violation of article 2(4) of the UN Charter- (see Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits) ICJ Reports 1986, p.14) Prohibition against Genocide Prohibition against slavery Prohibition against apartheid Prohibition against torture War crimes and crimes against humanity (some still debate this) The right to self determination (still debatable) Recognised in art 53 of Vienna Convention on Law of Treaties 1969 (i.e. treaty may be void if conflicts with jus cogens) UTS CRICOS 00099F Hierarchy of Sources and Jus Cogens Jus Cogens Treaty General Taken from Dr Gabrielle Simm (UTS, 2017): Custom Principles Acts of Soft Law IOs Judicial Scholars Equity Decisions UTS CRICOS 00099F  First live Lecture via zoom: Tuesday 6 August, 12PM International legal personality and recognition UTS CRICOS 00099F Legal Personality and Recognition Prof. Jessie Hohmann J Hohmann. UTS CRICOS 00099F  Today’s Materials: Legal Personality Concept of Personality Criteria of Statehood Creation of states Principle of Self-Determination Other subjects of international law Recognition of States and Governments J Hohmann. UTS CRICOS 00099F  The Subjects of PIL States = primary subjects of PIL Subjects of PIL = international legal personality = exercise sovereignty Yet also range of other entities that act in international domain eg: International organisations Individuals The Red Cross NGOs, transnational corporations etc J Hohmann. UTS CRICOS 00099F  Criteria for Statehood: Duchy of Sealand See also: https://www.sealandgov.org/ J Hohmann. UTS CRICOS 00099F  Criteria for Statehood: Montevideo Convention on the Rights and Duties of States 1933, art 1: 4 main criteria: ‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.’ J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (a) Permanent Population population size Although size of population is irrelevant: ‘The life of the State is not limited to the provision of casinos and places of entertainment. Rather a State community must play a more decisive role in serving the other vital human needs of people from their birth to their death [including] education and professional training, assistance in all the eventualities of life … The so-called “Duchy of Sealand” fails to satisfy any of these requirements.’ In re DUCHY OF SEALAND ADMINISTRATIVE COURT OF COLOGNE, Case No. 9 K 2565/77 (3 May 1978). Reasonable Stability of Population A territory with a sparse population, mostly consisting of nomadic tribes (Western Sahara Ad Op) J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (b) Territory What is the minimum size of a territory in international law? Must all of a state’s territory be populated? Does a territory need to have defined borders? J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (c) Government What form of government must a state have? –‘effective’ see eg Aaland Islands Case –Exceptions? J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (c) Government What is the effect of civil war? J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (d) Capacity to enter into relations with other states Essential requirement connected to concept of independence Must be legally independent from other states and have no limitations on its capacity to enter into agreements * Does not take economic or political pressures on a state into account J Hohmann. UTS CRICOS 00099F  Criteria for Statehood Key Questions: Is there a relationship of subordination and superiority? (Austro-German Custom Union Case) Any external sovereignty? Ie subordination to a different state? – Norfolk Island – Hong Kong This is a separate consideration to a state’s subordination to PIL J Hohmann. UTS CRICOS 00099F  Criteria for Statehood (d) Capacity to enter into relations with other states Situations not affecting formal independence: – Delegation of certain functions (ie military) not seen to affect independence – Voluntary Surrender: – ‘the right of entering into international engagements is an attribute of sovereignty’ SS Wimbledon Case (PCIL 1923) J Hohmann. UTS CRICOS 00099F  Other Criteria for Statehood? Membership in International Orgs – Art 4 UN Charter requires ‘peace loving state’ that accepts and carries out obligations under the charter. States that act ‘lawfully’ Apartheid South Africa: Were Bantustans a State under PIL? Southern Rhodesia: [see H&S p 106-7] Self-determination J Hohmann. UTS CRICOS 00099F  Creation of States in PIL Some different ways that a state can be created include: Decolonisation / Independence of non-state territory – eg India/Pakistan (1947), USA (1776), Kenya (1963) [all from UK] Secession – eg Southern Sudan (2011), Kosovo from Serbia (2008) Partition of existing state – eg Slovakia & Czech Republic from Czechoslovakia (1993) Unification – eg East and West Germany (1990) Continuity of IL Obligations – Upon succession, reconfiguration, partition: what happens to pre- existing obligations? Continuity of obligation See USSR → Russia UNSC membership; liability for state debt; etc J Hohmann. UTS CRICOS 00099F  Rights and Duties of States Crawford: ‘statehood is not simply a factual situation. It is a legally circumscribed claim of right, specifically to the competence to govern a certain territory’ (2006: 61). Rights and Duties of States include: Sovereign equality (UN Charter, art 2(1)) Right to peaceful co-existence with other States (UN Charter) Obligation to comply with duties of States under treaty/customary IL Enjoyment of rights and duties under the principle of state responsibility J Hohmann. UTS CRICOS 00099F  Self-Determination What is the principle of self-determination? Who has the right to self-determination under international law? J Hohmann. UTS CRICOS 00099F The Mandate Territories J Hohmann. UTS CRICOS 00099F  Self-Determination – pre UN Charter League of Nations Mandate System: The Covenant of the League of Nations, Article 22 To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well- being and development of such peoples form a sacred trust of civilisation … embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, … this tutelage should be exercised by them as Mandatories …. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. (…) Class A Mandates, Class B Mandates, Class C Mandates: … J Hohmann. UTS CRICOS 00099F  Self-Determination – After UN Charter Self-determination: ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ (UN Charter, art 1(2), purposes) ‘The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights (UNGA Declaration on the Granting of Independence to Colonial Territories and Peoples 1960) (GA Res 1514) ‘All people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’ (Common Art 1 ICCPR 1966 & ICESCR 1966) Western Sahara (ICJ Advisory Opinion, 1975) J Hohmann. UTS CRICOS 00099F Western Sahara (Advisory Opinion) Western Sahara/Mauritania Border J Hohmann. UTS CRICOS 00099F  Western Sahara (Ad Op) Questions for the Court: 1. Was Western Sahara at time of colonisation by Spain terra nullius? no 2. If no, what were the legal ties between Western Sahara territory & Morocco & Mauritania at the time? No ties of territorial sovereignty, therefore ‘no legal ties of such a nature’ that would affect the application of GA Res 1514(XV) re the decolonisation of Western Sahara’ Self Determination is customary IL (para 56) J Hohmann. UTS CRICOS 00099F Western Sahara (Advisory Opinion) J Hohmann. UTS CRICOS 00099F  Other Failures to Decolonize: Chagos Ad. Op. (2019) The Court considers that peoples of non self-governing territories are entitled to exercise right to SD in relation to their territory as a whole, the detachment of part of the territory, unless based on the freely expressed and genuine will of the people of the territory, is contrary to the right to SD (para 160). ‘The Court concludes that, as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968.’ (para 174) Paras 144 – 162 discussing the principle of self-determination in IL, and its customary status. *also a useful refresher on the emergence and elements of custom Law of Self-Determination further reaffirmed in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territories, Including East Jerusalem Advisory Opinion of 19 July 2024 The BIOT- Courtesy WIkiCommons J Hohmann. UTS CRICOS 00099F  Self-Determination for whom? Shaw: ‘The best approach is to accept the development of self- determination as an additional criteria of statehood, denial of which would obviate statehood’ Yet, self-determination for whom? ‘everything turns upon the elusive concept of a “people” (H&S 8th ed p 109) Ethnic and linguistic minorities? Indigenous peoples? – See UNDRIP esp art 3, 4, 5 Consider: – Tibet? – Crimea? Is there an internal and external aspect of self-determination? And note: principle of uti possidetis juris J Hohmann. UTS CRICOS 00099F  Other International Legal Subjects Consider the position of: – Individuals –Multinational corporations –Regional organisations (African Union, EU) –Insurgents or national liberation movements To what extent do they have rights and duties? What is the extent of their personality? J Hohmann. UTS CRICOS 00099F  Other International Legal Subjects International Organisations: – What is an IO? – Does it have international legal personality? – Reparations for Injuries Ad Op (1949) – did the UN as an organization have the ability to bring an international claim? J Hohmann. UTS CRICOS 00099F  Recognition in International Law Considered important act that can affect a state’s ability to exercise its rights and responsibilities as a state nb there is a difference between recognition of states and recognition of governments. J Hohmann. UTS CRICOS 00099F  Two Theories of Recognition (of States) The Constitutive Theory Recognition has a ‘constitutive’ effect so that a state becomes an international legal person and a subject of IL only through recognition.’ The Declaratory Theory States exist independent of recognition: ‘the primary function of recognition is to acknowledge as a fact something which has hitherto been uncertain, namely the independence of the body claiming to be a state, and to declare the declaring state’s readiness to accept the normal consequences of that fact – namely the usual courtesies, rights and obligations of international relations between states.’ (Brierly, in H&S p 137). J Hohmann. UTS CRICOS 00099F  Does State Practice reflect declaratory or constitutive theory? Declaratory Constitutive States make claims under IL US: Israel (see discussion in H&S against unrecognised states: p 137) Britain: Israel 1949 (see H&S p 138); Taiwan 1957. US: North Korea J Hohmann 2023. UTS CRICOS 00099F  What do the sources say (Declaratory or Constitutive)? Writings of the most Qualified Declaratory: Publicists Montevideo Convention Arts 3, 6, See H&S p 138 7. Tinoco arbitration Badinter Commission Opinion No 1. – recognition is ‘purely declaratory’ – Recognition is a ‘discretionary act’ J Hohmann. UTS CRICOS 00099F  Modes of Recognition Explicit or implicit (Montevideo art 7). Diplomatic Relations Making a bilateral treaty with the entity Supporting membership at the UN Arranging an international conference However: role of intention. J Hohmann. UTS CRICOS 00099F  The Political Nature of Recognition ‘States have discovered that the granting or withholding of recognition can be used to further a national policy. States have refused it as a mark of disapproval, as nearly all of them did to Manchukuo and they have granted it in order to establish the very independence of which recognition is supposed to be a mere acknowledgement. So, … we can point to the situation in 1948 when the US recognised Israel within a few hours of its proclamation of independence.’ Brierly – Law of Nations (H&S p 137) – (for context on US recognition of Israel see H&S p 137 fn 180.) Shaw – recognition is a purely political act. J Hohmann. UTS CRICOS 00099F  The legal side of Recognition? Badinter Commission Opinion No 10. recognition is a discretionary act that other states may perform when and in the manner they choose, ‘subject only to compliance with the imperatives of general international law, and particularly those prohibiting the use of force in dealings with other states or guaranteeing the rights of ethnic, religious or linguistic minorities.’ Southern Rhodesia eg (unlawfulness of minority rule). J Hohmann. UTS CRICOS 00099F  Does the practice of state recognition add additional criteria to statehood? See European Community (EC)’s Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (Dec 1991), Respect for the provisions of UN Charter Guarantees of ethnic and national groups’ and minorities’ rights Respect for inviolability of frontiers (only changed by peaceful means and common agreement) Acceptance of all relevant commitments re disarmament, nuclear non-proliferation, security, regional stability Commitment to settle by agreement (if necessary, arbitration) all questions concerning state succession and regional disputes Are these additional criteria of statehood? – See H&S p 140. Note regional scope (Europe). J Hohmann UTS CRICOS 00099F  Recognition of Governments Recognition of governments is distinct from recognition of states When does recognition of Gov’t become relevant? – Normally after ‘nonconventional’ change [revolution; coup eg] J Hohmann. UTS CRICOS 00099F  Tinoco Arbitration non recognition by governments ‘cannot outweigh the evidence [of] … the de facto character of Tinoco’s gov’t according to the standard set by international law’ J Hohmann. UTS CRICOS 00099F  The relationship between international law and domestic law Professor David Leary (These slides include slides originally prepared by Dr Sara Dehm and are reproduced with kind permission) UTS CRICOS 00099F Lecture Overview 1. Introduction to the relationship between International and Municipal Law 2. International law in municipal law 3. Australian law and international law 4. Treaties and Australian law 5. International law and its influence on the common law – customary international law 6. Some examples of treaty law and interpretation of legislation. International Law in Municipal Law Key Terminology: Municipal Law / International Law Monism / Dualism ‘This controversy turns on whether international law and internal law are two separate legal orders, existing independently of one another - and, if so, on what basis it can be said that either is superior to or supreme over the other; or whether they are both part of the same order, one or other of them being supreme over the other within that order. The first view is the dualist view, the second the monist’ G Fitzmaurice, ‘General Principles of International Law’ (1957), extracted in Rothwell et al (eds), International Law (3rd ed, 2018) 176. Incorporation / Transformation- see Trendex Trading Corporation v Central Bank of Nigeria 1 QB 529, at para 553 per Lord Denning MR for an explanation. (But note Trendex not good law in Australia) UTS CRICOS 00099F  Australia and International Law Emergence of Australia’s international legal personality 1901 1923 1931 1942 1946 1986 1999 ??? Federation Imperial Statue of Statute of Nationality & Australia Act Republic Conference Westminster Westminster Citizenship (Cth) Referendum (UK) (Cth) Act (Cth) UTS CRICOS 00099F Treaties and Australian Law The Treaty-Making + Domestic Transformation Process (JSCOT) UTS CRICOS 00099F Treaties and Australian Law Basic Principles Treaties do not form part of Australian law unless incorporated through Commonwealth legislation (ie requires an act of the legislature = strong transformation approach) ▪ See Dietrich v The Queen (1992) 177 CLR 292 Different ways to incorporate international treaty obligations? ▪ All or part of Treaty’s content may be included in an Act; ▪ The text of the Treaty may be added as a Schedule to existing legislation; or ▪ Legislation can be enacted which states that a Treaty has force of law. (see extract from article by Bill Campbell KC in reading for more examples) ▪ If only a portion of the Treaty is given legislative effect, the remainder is not enforceable under municipal law ▪ Tasmania Dams Case (1983) 158 CLR 1 UTS CRICOS 00099F  Treaties and Australian Law The Treaty-Making + Domestic Transformation Process UTS CRICOS 00099F See also DFAT: https://www.dfat.gov.au/international-relations/treaties/treaty-making-process International law and its influence on the Australian common law – customary international law Unsettled relationship-conflicting authorities In other common law countries (e.g. UK, Canada), courts have favoured incorporation approach for Customary International Law Key foundational Australian cases seem to favour a transformation approach: Polites v Commonwealth (1945) 70 CLR 60 Chow Hung Ching v The King (1948) 77 CLR 449 Nulyarimma v Thompson (1999) 96 FCR 153 UTS CRICOS 00099F International law and its influence on the Australian common law – customary international law Nulyarimma v. Thompson FCA 1192 Key Legal Question: Is genocide a crime under Australian law? Accepted that it was a jus cogens prohibition & crime under customary international law Yet no implementing legislation (at the time) in Australia UTS CRICOS 00099F International law and its influence on the Australian common law – customary international law Nulyarimma v. Thompson FCA 1192 FCA held: Majority (Wilcox & Whitlam JJ): Crime of genocide can only be introduced into Australian law by legislation In absence of such legislation, genocide is not a crime under Australian law In addition, Whitlam J Even if the crime of genocide could be recognised by the courts, such recognition may be inconsistent with existing legislation UTS CRICOS 00099F International law and its influence on the Australian common law – customary international law Nulyarimma v. Thompson FCA 1192 FCA held: Merkel J (dissenting): Crime of genocide is part of Australian common law Same approach to question of incorporation should be used for both customary crimes and norms of customary international law YET: On facts, not genocide Even if facts made out, relief would not have been granted due to parliamentary privileges and implied freedom of political communication UTS CRICOS 00099F International law and its influence on the Australian common law – customary international law Nulyarimma v. Thompson FCA 1192 Nulyarimma majority reasoning was followed in other ‘genocide’ cases: Thorpe v Kennett VSC 442 Sumner v UK SASC 456 NB: Cth Parliament has since passed International Criminal Court Act 2002 (Cth) and International Criminal Court (Consequential Amendments) Act 2002 (Cth) that gives effect to Rome Statute obligations and criminalises genocide under Australian law UTS CRICOS 00099F International law and its influence on the Australian common law – customary international law Influencing development of the common law Mabo (No 2): ‘The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law’ (per Brennan J) Note: ‘cautious approach’ of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 272. Informing Presumptions of Statutory Interpretation i.e. Parliament intends to give effect to Australia’s obligations under International law (including both treaty & Customary International Law) ‘If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction will prevail’ (Teoh, per Mason CJ and Deane J) Confirmed in subsequent cases incl Al-Kateb v Godwin (2004) 219 CLR 562, despite McHugh J’s critique UTS CRICOS 00099F Some examples of International law, treaties and interpreting legislation Plaintiff M70/2011 v Minister of Immigration and Citizenship HCA 32 UTS CRICOS 00099F Some examples of International law, treaties and interpreting legislation Project Blue Sky Inc v ABC HCA 28 UTS CRICOS 00099F Next Lecture: Jurisdiction & Immunities (Part 1) 1. Introduction: Prescriptive and enforcement jurisdiction 2. Civil jurisdiction 3. Criminal jurisdiction 1. Nationality principle 2. Territorial principle 3. Passive personality principle 4. Protective principle 5. Universality jurisdiction State Jurisdiction Professor David Leary UTS CRICOS 00099F  Lecture Overview State Jurisdiction Zoom Etiquette: Introduction: Prescriptive and enforcement jurisdiction Please be on “Mute” during lecture Civil Jurisdiction Raise hands (virtually) at nominated times to ask a question Criminal Jurisdiction 1. Nationality principle 2. Territorial principle 3. Passive personality principle 4. Protective Principle 5. Universal jurisdiction UTS CRICOS 00099F Jurisdiction “Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive and judicial.” James Crawford, Brownlie’s Principles of Public International Law (2012), p 440. Jurisdiction ▪ Prescriptive jurisdiction- legislative-power to make laws ▪ Enforcement jurisdiction-State’s power to enforce its laws against anyone who contravenes them. Includes both executive and judicial powers of enforcement. Leviathan, Thomas Hobbes UTS CRICOS 00099F Civil jurisdiction “There are different views as to the law concerning civil jurisdiction. On one view, exorbitant assertions of civil jurisdiction could lead to international responsibility….On another view, there is little by way of limitation on a state’s exercise of civil jurisdiction in what are effectively private law matters; different states assert jurisdiction on different grounds, but deference to foreign law through conflicts rules mitigates any exorbitant elements” James Crawford, Brownlie’s Principles of Public International Law (2012), p455. For example, Alien Tort Claims Act (28 U.S.C. § 1350) vests original jurisdiction in US Federal District Courts in “all causes where an alien sues for a tort only in violation of the law of nations or of a treaty of the United States.” Effectively provides for an action in tort arising from a violation of international law, (eg human rights, environmental law) no matter where the harm occurred, or who inflicted the harm, as long as the plaintiff serves the summons/statement of claim in U.S. territory. UTS CRICOS 00099F  Civil jurisdiction “It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case.” Sarei & anor v Rio Tinto Plc; Rio Tinto Ltd (2010) United States Court of Appeals for the Ninth Circuit per Kleinfeld J (in dissent) Image: Forbes UTS CRICOS 00099F Civil jurisdiction Arguably these matters best left to Private International Law to resolve. “Private international law is the body of principles, rules, and at time, policies and approaches that indicate how a foreign element in a legal problem or dispute should be dealt with” Mortensen, Garnett and Keyes, Private International Law in Australia (2015), p 3 UTS Law elective 76112 Australian Private International Law (2026). UTS CRICOS 00099F Criminal jurisdiction A state can exercise jurisdiction on the basis of 5 possible principles: Territorial Principle Nationality Principle Passive Personality Principle Protective Principle Universality Principle Image: Kathmandupost UTS CRICOS 00099F Territorial Principle “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” Island of Palmas Case (Netherlands v US) (1928) 2 R.I.A.A. 829 Image: Wikipedia Territorial Principle Based on notion of undoubted right of a State to legislate with regard to its territory or matter within its territory. Right is absolute – a reflection of sovereignty Territory not only includes land mass, seas and airspace, but also shipping and aircraft registered in that State. Simple issue when action takes place completely within the State’s territory. Images: Qantas and Geoscience Australia Territorial Principle “The first and foremost restriction imposed by international law upon a state is that-failing the exercise of a permissive rule to the contrary-it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or a convention” The Lotus case (France v Turkey) (1927) P.C.I.J. Reports, Series A. No.10 Image: Flashback.com  Nationality Principle “No one disputes the right of a State to subject its citizens abroad to the operations of its own penal laws, if it sees fit to do so” per Judge Moore The Lotus case (France v Turkey) (1927) P.C.I.J. Reports, Series A. No.10 Based on State’s right to make and enforce laws with respect to conduct by, or affecting, its nationals. ▪ Concept adopted by many States is that if you enjoy the advantage and protection of citizenship, you should also be bound by that State’s laws. ▪ For example Criminal Code Act 1995 (Cth), Schedule-Division 119 Foreign Incursions and Recruitment-s 119.1 Incursions into foreign countries with the intention of engaging in hostile activities Image: Marketwatch  Nationality Principle How do we determine nationality in international law? “real and effective nationality” ”nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law of as the result of an act of authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.” Nottebohm Case (Liechtenstein v Guatemala) ICJ Reports 1955, p4. Image: Google maps  Nationality Principle We do not apply the Nottebohm case test of “real and effective nationality” for corporate entities. The test for corporate entities is different. ”The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office.” Barcelona Traction, Light and Power case (Belgium v Spain) ICJ Reports 1970 p 3 Image: wikipedia  Passive Personality Principle Allows for a State to prosecute a foreign national if his/her actions abroad affect a national of the prosecuting States. Sometimes seen as an extension to the concepts that underpin the Nationality Principle Nationality Principle= National has committed the harm/crime Passive Personality Principles=National has suffered the harm But different because the Passive Personality Principle only needs a National of the State claiming jurisdiction to be harmed-not the State itself Controversial-but accepted by some states such as the USA US v Yunis (No 2) (1988) 82 I.L.R. 344  Protective Principle The ‘protection’ of ‘vital’ national interests which may have been injured by the action – security, national integrity and political independence. Looks at State’s exercise of its jurisdiction to ‘punish’ actions committed overseas which constitute a threat to the interests of that State. Used to justify prosecution of terrorists and those who plan / train terrorism / terrorists abroad. Widely used in espionage /spying type cases – popularity of approach increases after the 1960’s. Image: Youtube  Protective Principle Joyce v DPP AC 347 Joyce (aka Lord Haw Haw) was an American national who helped broadcast German propaganda into Britain, during WWII. Joyce fraudulently obtained a British passport some years earlier. Charged with 3 counts of High Treason before U.K Courts American nationality complicated prosecution-Joyce argued lack of jurisdiction – cannot betray a country you do not a national of. Countered by the Crown who argued that as a holder of a British passport (even though fraudulently obtained) Joyce enjoyed the protections that it offered and should be subject to the laws of the U.K. Held that because he held a British passport he owed an allegiance to the Image: Daily Express Crown and that his actions where against the interests of Britain (applying the Protective Principle). Hanged 3 January 1946.  Universality Principle Accepts that there are certain actions that ‘transcend’ the jurisdiction of any single State. Looks at ‘international crimes’ that are recognised as affecting the entire world order. There is no nexus between the State exercising jurisdiction and the action itself i.e. o Not committed in territory o Not committed against State o Not committed by, or against, State nationals. Nature of the action / crime is the important factor which triggers the jurisdiction. Aimed at jus cogens type offences such as piracy, slavery, genocide, torture, war crimes and crimes against humanity Image: Kathmandupost  Universality Principle Attorney-General of the Government of Israel v Adolf Eichmann (1961) 36 I.L.R.5. District Court of Jerusalem Nazi Officer responsible for Germany’s ‘Final Solution’- programme of Genocide. Escaped to Argentina after WWII. In 1960 was discovered and kidnapped by Mossad and taken to Israel where he was placed on trial. Hanged in May 1962. At Trial and on Appeal, Eichmann raised several defences including: o Israel did not exist at the time of the alleged offences. o Actions not taken against Israeli nationals. o Actions did not take place in Israeli territory. o Legal basis for prosecution was retroactive. Main Israeli argument was that crimes fell within Universal Jurisdiction but court also accepted the protective principle founded jurisdiction on the basis of the “linking point doctrine” Image: US Holocaust museum  Universality Principle “These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself…the jurisdiction to try such crimes under international law is universal…” “The state of Israel’s “right to punish the accused derives…from two cumulative sources. a universal source (pertaining to the whole of mankind) which vests the right to prosecute and punish crimes of this order in every State…and a specific or national source, which gives the victim nation the right to try any who assault its existence…The second foundation of criminal jurisdiction conforms, according to accepted terminology to the protective principle… The “linking point” between Israel and the accused… is striking in the case of “crime against the Jewish people,” a crime that postulates an intenion to exterminate the Jewish people…The connection between the State of Israel and the Jewish people needs no explanation” Attorney-General of the Government of Israel v Eichmann (1961) 36 I.L.R. 5, at para 30. Image: Holocaust museum  Universality Principle R v Bow Street Metropolitan Magistrate Ex P Pincohet 1 A.C. 147 Spain demanded that former President of Chile (General Pinochet) be extradited for the torture of Spanish citizens in Chile. Pinochet was in Britain at the time for medical treatment. Spain argued, inter alia, that under the Universality Principle they had jurisdiction to try Pinochet. House of Lords held that the international arrest warrant issued by Spain was valid But only in relation to offences that occurred after U.K. had enacted s134 Criminal Justice Act 1988 - creating an offence of torture “wherever committed worldwide” under U.K. law). This was because of requirements of double criminality for extradition House of Lords also ruled that Pinochet had no right to immunity from prosecution as a former Head of State, and could be put on trial (we will look at this aspect in more detail next week). Image: New York Times  Universality Principle “The jus cogens nature of the international crime of torture justifies States in taking universal jurisdiction over torture wherever committed. International law provides that offences of jus cogens may be punished by any state because the offenders are “common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution” R v Bow Magistrates Ex P Pinochet 1 A.C. 147 per Lord Browne-Wilkinson Image: Flickr  Universality Principle Democratic Republic of the Congo v Belgium (‘The Arrest Warrant Case’) ICJ Rep 2002, p3 Belgium issued an international arrest warrant against Congo’s Foreign Minister Ndombasi for crimes considered to be grave breaches of International Humanitarian Law (Geneva Conventions & Protocols) Belgium claimed that it could exercise Universal Jurisdiction. Congo argued that it was a violation of the principle that a State cannot exercise authority on the territory of another State and that it was also a violation of the principle of sovereign equality between States. Image: China economic net  Universality Principle Court upheld immunity from jurisdiction and we will look at that aspect of the case next week But in the course of the judgments comments were made by judges on the issue of Universal Jurisdiction “That there is no established practice in which States exercise universal jurisdiction, properly so called, is undeniable. As we have seen, virtually all national legislation envisages links of some sort to the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of jurisdiction. This does not necessarily indicate, however, that such an exercise would be unlawful…. State practice is neutral as to the exercise of universal jurisdiction". Per Joint separate opinion of Judges Higgins, Hooijmans and Buergenthal  Universality Principle “If, as we believe to be the case, a State may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that the rejection of impunity does not jeopardize stable relations between States. No exercise of criminal jurisdiction may occur which fails to respect the inviolability or infringes the immunities of the person concerned. …A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned. Further, such charges may only be laid by a prosecutor or juge d'instruction who acts in full independence, without links to or control by the government of that State. …..It is equally necessary that universal criminal jurisdiction be exercised only over those crimes regarded as the most heinous by the international community. Piracy is the classical example. This jurisdiction was, of course exercised on the high seas and not as an enforcement jurisdiction within the territory of a non-agreeing State. But this historical fact does not mean that universal jurisdiction only exists with regard to crimes committed on the high seas or in other places outside national territorial jurisdiction. Of decisive importance is that this jurisdiction was regarded as lawful because the international community regarded piracy as damaging to the interests of all. War crimes and crimes against humanity are no less harmful to the interests of all because they do not usually occur on the high seas. War crimes (already since 1949 perhaps a treaty-based provision for universal jurisdiction) may be added to the list.” Per Joint separate opinion of Judges Higgins, Hooijmans and Buergenthal Universality Principle “The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle. International criminal law has itself undergone considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the possibility, or indeed the obligation, for a State other than that on whose territory these offence was committed to confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory. International criminal courts have been created. But at no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be Sound. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary, for the benefit of the powerful, purportedly acting as agent for an ill-defined "international community". Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backwards” Per Separate Opinion of President Guillaume Universality Principle “States primarily exercise their criminal jurisdiction on the own territory. In classic international law, they normally have jurisdiction in respect of an offence committed abroad only if the offender, or at least the victim, is of their nationality, or if the crime threatens their internal or external security. Additionally, the may exercise jurisdiction in cases of piracy and in the situations of subsidiary universal jurisdiction provided for by various conventions if the offender is present on their territory. But apart from these cases, international law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia” Per Separate Opinion of President Guillaume Universality Principle Thus in summary The Arrest Warrant Case seems to back track from Pinochet and impose restrictions on the exercise of Universal Jurisdiction: (1) It is unclear if Universal Jurisdiction is a wide ranging basis of jurisdiction which can be exercised without any link to the State asserting it. (2) Whether or not the defendant can be tried in absentia is unclear/controversial. Arguably at a minimum safeguards such as an independent prosecutor need to be in place before jurisdiction can be lawfully exercised. (3) Universal jurisdiction only applies to the most heinous of crimes including piracy, war crimes, crimes against humanity and (although the court does not mention), genocide. (4) Seems to be the case that accused’s national government must be invited to prosecute first before a state can seek to assert universal jurisdiction. NB: Comments by the court on Universal Jurisdiction were not the main issue in the case. This case is more important on questions of immunity from jurisdiction which we look at next week.  Associated Concepts Multiple Sources – a State may have several grounds to support a claim for jurisdiction. Concurrent Jurisdiction – also possible to have a number of States with competing claims all wishing to exercise jurisdiction. Lockerbie case Scotland - territorial USA – nationality / protective / passive personality Libya – nationality Malta - territorial ***Finally resulted in Scottish High Court of Justiciary applying Scottish Law, in the Netherlands (a neutral country) Images: Daily Mail UK Next Lecture: Immunity from Jurisdiction 1.Introduction 2. State immunity Rationale, the ‘restrictive’ doctrine and ‘act of State’ doctrine Who is entitled to claim sovereign immunity? Heads of State, heads of government and foreign ministers Waiver of immunity 3.Diplomatic immunity General rules Inviolability of missions Inviolability of diplomatic agents Immunity from jurisdiction for official acts Personal immunity from local jurisdiction 4.Consular immunity UTS CRICOS 00099F Immunity from Jurisdiction Professor David Leary UTS CRICOS 00099F  Lecture Overview 1.Introduction 2. State immunity Zoom Etiquette: (a) Rationale, the ‘restrictive’ doctrine and ‘act of State’ doctrine Please be on “Mute” (b) Who is entitled to claim sovereign immunity? during lecture (c) Heads of State, heads of government and foreign ministers Raise hands (virtually) at nominated times to ask (d) Waiver of immunity a question 2. Diplomatic immunity (a) General rules (b) Inviolability of missions (c) Inviolability of diplomatic agents (d) Immunity from jurisdiction for official acts (e) Personal immunity from local jurisdiction 3. Consular immunity UTS CRICOS 00099F  State Immunity Concept of Immunity is underpinned by the principles of State Sovereignty, reciprocity and State equality (par in parem non habet imperium – an equal does not have power over an equal). Concept of Immunity has developed with time and there has been a move from the traditional Absolute Immunity approach (where the State enjoyed complete immunity from domestic legal action) to a so called Restrictive Immunity approach (where the State only enjoys immunity under certain circumstances). Two key cases are important to understanding the difference The Schooner Exchange v McFaddon- (US Supreme Court) 1812 11 US 116 (7Cranch)-Absolute Immunity I Congreso Del Partido 1 A.C. 244- Restrictive Immunity Image: Look and Learn  State Immunity-Absolute Immunity The Schooner Exchange v McFaddon (US Supreme Court) 1812 11 US 116 (7Cranch) French navy vessel docked in Philadelphia Claimed it was in fact an American schooner called The Exchange. Issue: Did the court have jurisdiction to consider whether the vessel should be seized and returned to party who claimed they were rightful owner? Court held lacked jurisdiction because French navy vessel enjoyed immunity Image: Pintrest  State Immunity-Absolute Immunity “.. Perfect equality and absolute independence of sovereigns… have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation…a public armed ship…constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him [sic] in national objects…interference cannot take place without affecting his power and his dignity. The implied licence, therefore, under which such vessel enters the friendly port, may reasonably be construed….as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the right of hospitality..” Per Marshall CJ Image: Constitutional law reporter  State Immunity- Restrictive immunity I Congreso Del Partido 1 A.C. 244 Cubazucar (a cuban state owned enterprise) contracted to sell two ship loads of sugar to a Chilean company shipped on two vessels (Playa Larga and the Marble Islands) owned by another Cuban state enterprise Mambisa. Following the military coup by General Pinochet in Chile the Playa Larga only unloaded part of the sugar cargo in Chile and left port. The Marble Islands was diverted to North Vietnam Chilean purchasers of the cuban sugar then had a third Cuban vessel the I Congresso arrested in the UK claiming damages for breach of contract and in Tort The Cuban government entered a defence of state immunity and argued that the I Congresso could not be seized. Image: Fine art america  State Immunity- Restrictive immunity “… I have no doubt that the “restrictive” doctrine should be applied to the present case…[T]he limitation… under the so called “restrictive theory”, arises from the willingness of states to enter into commercial, or other private law, transaction with individuals. It appears to have two main foundations: (a) It is necessary in the interest of justice to individuals having such transaction with states to allow them to bring such transactions before the courts. (b) To require a state to answer a claim based upon such transactions does not involve a challenge to or inquiry into any of sovereignty or government act of that state….neither a threat to the dignity of the state, nor any interference with its sovereign functions……commercial transaction…a commercial or private law, character…” Per Lord Wilberforce Image: Art UK State Immunity- Restrictive immunity “… Clearly a breach of a contract of that character e was within the area of private law…simply (i) whether it could be said that the relevant contract was concluded for governmental purposes, and (ii) whether it was relevant that governmental motives were advanced for breaching the contract… Under the “restrictive” theory the court has first to characterise the activity into which the defendant state has entered. Having done this, and (assumedly) found it to be of a commercial or private law, character, it may take the view that contractual breaches, or torts, prima facie fall within the same sphere of activity. It should then be for the defendant state to make a case…that the act complained of is outside that sphere, and within that of sovereign action” Per Lord Wilberforce Image: Art UK  State Immunity- Restrictive Trendex Trading Corp v Central Bank of Nigeria Q.B. 529 “…The doctrine grants immunity to a foreign government or its department of state or any body which can be regarded as an “alter ego or organ” of the government…. I confess that I can think of no satisfactory test except that of looking to the functions and control of the organisation. I do not think that it should depend on the foreign law alone. I would look to all the evidence to see whether the organisation was under government control and exercised governmental functions” per Denning M.R. Image: Mcwirther foundation  State Immunity Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening) ICJ Rep 2012, p.99 “under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict…The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.” [at para 91 & 94]. Image: WW2day State Immunity- Foreign State Immunities Act 1985 (Cth) The general rule now is that activities must fall within the doctrine of governmental action (acta jure imperii) and not be of a commercial nature (acta jure gestionis) to attract immunity This approach to State Immunity is reflected in Australian Domestic Law by the Foreign State Immunities Act 1985 (Cth) State Immunity- Foreign State Immunities Act 1985 (Cth) e State Immunity- Foreign State Immunities Act 1985 (Cth) Section 12-Contracts of Employment Section 13 Personal Injury and damage to property Section 14-Ownership, use and possession to property Section 15-Copyright, patents and trademarks etc Section 16-Membership of bodies corporate Section 17-Arbitration Section 18-Actions in rem Section 19-Bills of exchange Section 20-Taxes United Nations Convention on Jurisdictional Immunities of States and the property (2004) (not yet in force) Heads of State, heads of government and foreign ministers Immunity ratione personae= “a wide personal immunity extending to the totality of the person’s act, whether official or private” Immunity ratione materiae= “applies not to the officials and representatives of a State but to the acts performed in their official or representative capacity ” Gleider Hernandez, International Law (2019), 232-233 Image: Wikipedia  Immunity of Head of State/ former Head of State R v Bow Street Metropolitan Magistrate Ex P Pinochet 1 A.C. 147 In summary court held a former head of state has limited functional immunity (ratione materiae)- torture is not a state function therefore no immunity Image: New York Times Immunity of Head of State/ former Head of State “This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae. What then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). …. The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. …the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private….In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state…As ex-head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity… Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office.” per Lord Browne-Wilkinson “The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state. It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ratione materiae. The case needs to be analysed more closely…..Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function…How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises? Thirdly, an essential feature of the international crime of torture is that it must be committed “by or with the acquiesence of a public official or other person acting in an official capacity.” As a result all defendants in torture cases will be state officials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable. I find it impossible to accept that this was the intention…. Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity ratione materiae, this produces bizarre results. Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the State of Chile is prepared to waive its right to its officials' immunity. Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention — to provide a system under which there is no safe haven for torturers — will have been frustrated. ….all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention. …he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law”, Per Lord Brown-Wilkinson  Immunity of Head of State/ former Head of State Al-Adsani v United Kingdom (2001) 34 E.H.R.R 273 European Court of Human Rights Torture-thrown in to swimming pool full of dead bodies Emir of Kuwait Civil proceedings-damages for personal injury from torture Torture and lack of fair trial Held immunity still applies in relation to civil proceedings Criminal liability different to civil liability States still enjoy immunity from civil liability arising from torture But note there were strong dissenting opinions from other judges “WHAT A PITY” Judge Ferrari Bravo Image: European Court of Human Rights  Immunity of Head of State/ former Head of State In the Case of The Prosecutor v Omar Hassan Ahmad Al-Bashir (International Criminal Court-2019) Jordan failed to act on arrest warrant No Head of State Immunity under the Rome Statute creating the International Criminal Court Jordan had a duty to arrest and deliver him to the court Image: The Guardian  Immunity of Foreign Minister Democratic Republic of Congo v Belgium (The Arrest Warrant Case) I.C.J. Rep 2002, p3 Belgium issued international arrest warrant against Congo’s Foreign Minister Ndombasi for crimes considered to be grave breaches of International Humanitarian Law (Geneva Conventions & Protocols) Belgium claimed that it could exercise Universal Jurisdiction. Congo argued that it was a violation of principle that a State cannot exercise authority on territory of another State and that it was also a violation of the principle of sovereign equality between States. LAST WEEK WE LOOKED AT THIS CASE IN TERMS OF UNIVERSAL JURISDICTION BUT IT IS ALSO IMPORTANT ON QUESTION OF IMMUNITIES Image: China economic net  Immunity of Foreign Minister “In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. …the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government's diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings. Ambassadors and other diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the State In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with representatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his or her State's relations with all other States, occupies a position such that, like the Head of State or the Head of Government he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister for Foreign Affairs that chargés d'affaires are accredited…The Court accordingly concludes that the functions of a Minister for Foreign Affairs (are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties. …In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an "official" capacity, and those claimed to have been performed in a "private capacity", or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of those official functions are equally serious, regardless of whether the Minister for Foreign Affairs was, at the time of arrest, present in the territory of the arresting State on an "official“ visit or a "private" visit, regardless of whether the arrest relates to acts allegedly performed before the person became the Minister for Foreign Affairs or to acts performed while in office, and regardless of whether the arrest relates to alleged acts performed in an "official" capacity or a "private" capacity. Furthermore, even the mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally when required to do so for the purposes of the performance of his or her official functions.” (at paras 53-55) Immunity of Foreign Minister “The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility…. Accordingly, the immunities enjoyed under International law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries‘ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incurmbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.” (at paras 60-61)  Diplomatic and consular immunity Diplomats are immune from all administrative, civil, criminal jurisdiction of the receiving State, to which they are accredited. Generally, a Diplomats family will also enjoy the same immunities (provided they are not a citizen of the host State) Diplomats are unable to do their jobs/role without fear or favour. Concept is based on so-called ‘functional necessity’ theory. The criteria for diplomatic status are set out in the Vienna Convention on Diplomatic Relations 1961 (‘Vienna Convention’). The Vienna Convention has been made part of Australian domestic law pursuant to the Diplomatic Privileges and Immunities Act 1967 (Cth)  Diplomatic & Consular Immunity “diplomatic agent” (Art 1) Under the Vienna Convention, diplomats are considered inviolable and not subject to arrest or detention (Art.29). They are absolutely immune from criminal prosecution (Art.31) and are immune from civil suite except in relation private activities outside their official functions (Art.31). Important to note that the Immunity belongs to the State not the diplomat → immunity can be waved by the sending State Image: Reddit  Diplomatic & Consular Immunity Under the Vienna Convention, the Diplomatic Mission and its premises are considered to inviolable (Art.22). The agents of the receiving State may not enter them, except with the consent of the head of mission. Mistaken belief is that this inviolability is because Diplomatic Mission premises is considered to be the sovereign territory of that particular State. Correct interpretation is based on ‘functional necessity’ theory = to be able to fulfil its function, a Diplomatic Mission must be free from all interference from other States. Honoured through notions of reciprocity and Sovereign State equality. Under the Vienna Convention Art.27, the host State will permit and protect all free communications on behalf of the Mission – provided that it is for an official purpose. Diplomatic bags are not to be opened or detained Host states can declare any member of the the diplomatic staff of the mission “persona non grata” (Art. 9) Image: Wikipedia  Diplomatic & Consular Immunity U.S. Diplomatic and Consular Staff in Tehran Case (US v Iran) (1980) ICJ p 3 Images: Wikipedia Diplomatic & Consular Immunity Armed Activities Case (Democratic Republic of Congo v Uganda) I.C.J. Rep 2005 p 168 Image: Biography.com  Diplomatic & Consular Immunity Consular Immunity not as broad / absolute as Diplomatic Immunity – reason is that Diplomats are direct representatives of sending States dealing with high political issues, whereas Consular staff protect the interests of their fellow nationals in the receiving State (passports, legal assistance, administrative assistance, etc) Consular staff and the lesser privileges and immunities that they enjoy are set out in the Vienna Convention on Consular Relations 1963 – implemented in Australia through the Consular Privileges and Immunities Act 1972. Image: James Cubbit Architects  Next Lecture: Law of Treaties Next two lectures-The Law of Treaties 1. Custom and the Vienna Convention on the Law of Treaties 2. Definition of a treaty 3. Making of treaties 4.Reservations and declarations 5.Entry into force 6.Treaty interpretation 7.Third States 8.Validity of treaties 9.Termination of, suspension of and withdrawal from treaties 10. General provisions on the invalidity, termination and suspension of treaties UTS CRICOS 00099F Law of Treaties-Part 1 Professor David Leary UTS CRICOS 00099F Lecture Overview 1.The Vienna Convention on the Law of Treaties and Customary International Law 2. Definition of a treaty 3. Making of treaties 4. Entry into force 5. Reservations and declarations UTS CRICOS 00099F The Vienna Convention on the Law of Treaties and Customary International Law UTS CRICOS 00099F The peace of Westphalia (1648) Congress of Vienna (1815) Congress of Berlin (1884) Treaty of Versailles (1919) Images: Google Images  Image: http://4.bp.blogspot.com/-_wnxAckgwag/VWnc5KL4EEI/AAAAAAAAIAA/W46r22dbdtI/s1600/1.%2Bnyh-06-27-1945-un-charter.jpg https://treaties.un.org/  Treaties on treaties Vienna Convention on the Law of Treaties 1969 (VCLT) VCLT is considered the ‘Treaty on Treaties’ and as such, provides the principles of law relating to the drafting, application and interpretation of other treaties. It is largely recognised as the pre-eminent statement on the law of treaties, even by those States who are not parties to the Convention. Codification of Customary International Law The VCLT came into force in 1980 and took approx 20 years to draft. Customary International law governs treaties that fall outside of the VCLT and treaties involving non-state parties to the VCLT (See VCLT Preamble) 26 March 1968 - Opening of the Conference on the Law of Treaties, Hofburg Palace, Vienna, Austria: Professor Roberto Ago (Italy), addressing the delegates following his unanimous election as President of the Conference (centre); Mr. C.A. Stavropoulos, Representative of the Secretary-General (left); and Mr. A.P. Movchan, Executive Secretary (right). Image & Text Source: United Nations Definition of a Treaty UTS CRICOS 00099F What is a treaty? A Treaty is defined as: An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (See Art. 2 Vienna Convention on the Law of Treaties 1969 – VCLT). Image: UN ‘Concluded between states’ Article 3 The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law … shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of