Wednesday, September 17, 2014

Public International Law

Lecture #1
- What is Public International Law
• Prior to the 20th century, public law was generally only between states
- Vatican is ‘sui generis’ aka special
• No corporations included in this
• 20th Century saw that expand into international organizations
• After ICJ decision, inter governmental organizations have personality and status
- Non governmental organizations don’t have that status. No formal, legal
personalities

• The status of individuals in international law

• After WW2, the UN charter places
• Fundamental tension between sovereignty and human rights
• Gradual expansion of the range of subject/personalities that falls under
international law

• The more powerful you are, the more likely you are to be immune from prosecution
- International Law is distinguished from
• Municipal=Domestic law
• Public IL is distinguished from Private IL (con ict of law/lex mercatoria)
• IL almost always refers to Public IL
- Primarily Comprised of:
• Customary Rules
- State practices recognized by international community as patterns of conduct
establishing binding agreements

• International Agreements
- Create rules binding upon signatories

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• Growing body of Codi ed Law formalizing custom and agreements
• Premised on equality of states and characterized as ‘primitive’ (relying on self-help:
retorsion and reprisals)
- But is it “Law” at All?
• No, it is not (John Austin, who was Bentham’s student)
• Legal systems require sovereign law-making and law-enforcing bodies
• Command theory of Law—State law based on command, obedience and
enforcement characterized by:
- Law-Maker (legislature/sovereign)
• No clear binding authorities in IL (UN comes closest to this)
- Law determination (binding courts and tribunals)
• No supreme court and don’t have the binding authority of law
- Law enforcement (administration, police, army)
• No international army or police
• In genuine legal systems, failure to obey rules leads to enforcement and sanctions
- IL fails Austin’s test—lacks such determinate bodies
- Is impotent/ineffectual; it’s simply a product of power politics—“positive morality”
• It’s like a card game; you can cheat, but people usually follow the rules cause
it’s the good/nice thing to do

• Nothing serious will happen if you break the rules

- Municipal relations characterized by hierarchical relations (top down/vertical)
- International legal relations characterized by equality of units—horizontal
- Hobbesian vision of international community
• Realism is the idea that “might makes right”
• We need to give up all our power and rights to the sovereign and in return they
will protect us
- But is it “Law” at All?

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• Yes
• Question confuses legality with effectiveness and enforcement
- Just cause we don’t follow the law, doesn’t mean it doesn’t exist
- It does make a profound statement about whether or not the law is effective
• Legal system does not require sovereign law-making and law-enforcing body
- Sovereign is the key point
- Doesn’t need a focal point where everything is concentrated on
- There are numerous law enforcing and law making bodies, even though there
isn’t just a sole sovereign one

• Even the concept of law is contested

- What law is, isn’t really that straight forward
• Absence of sovereign to enforce compliance with the rules does not condemn IL
- It might mean that in many circumstances, it might become less effectual
- It’s the absence of respect for rules, not the absence of a sovereign that’s the
problem

• Horizontal system based on consensus, consent, and reciprocity

• States treat IL as law and act accordingly
- Periodization
• 1. Treaty of Westphalia (1648)-WWI (classical period)
- Westphalia
• Treaty between germanic states after 30 years of horrendous warfare, massive
slaughter of people and near destruction of Germany fuelled by the dissolution
of the feudal system

• Time of multiple allegiances

• Princes get together and decided they wouldn’t care about other prince’s
affairs and would only concentrate on their own affairs

• The concept of sovereignty is the core of the treaty, though not speci cally
mentioned

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• First time something like the modern sovereign state appears
- Unlimited right of state to use force
• Using force and going to force as a way to advance your means
• Respect the sovereignty of your equals until you wanted to make war
• Sovereign is above everyone else; no one can stop them from doing anything
- States sovereign entities of IL
- Global European colonial expansion
• 2. WWI-WWII
- League of Nations (with Mandates system)
• Establishment of the rst truly international organization
• A place where states could come and work out their differences
- First step to avoiding massive wars like WWI
- Established a list of mandates
• The lands that were liberated from the empires were given the right to self
determinate, but if they weren’t ready they were put under the “control” of
British and French

• Dividing up of the Middle East was a big thing

- Divided up the land arbitrarily
- Wilson’s 14 points and Lenin—right of peoples to self-determination
• The 14 points were what the post war world should look like
• Recognize the invalidity of european colonial claims and let them self-
determinate
- Division of world into communist and non-communist
• Russian revolution set for the polarization between the commies and non
commies
- Attempts to limit use of force
• Unrestricted use of force was no longer acceptable

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• If you want to go to war, you have to make your intentions clear and then have
a 3 month “cooling off” period

• 3. WWII to the end of the Cold War

- United Nations—new drive for international community—prohibition on use of
force

• America was at the forefront of the establishment of the UN

• Making war was is no longer legal
- Cold War—limiting the effectiveness of the international community
- Rapid expansion of the subjects of IL—many new states and non-state subjects
- Rise of discourse of human rights
- Decolonization—principle of self-determination phase 1
- Growing integration of global markets
• 4. Post-Cold War
- Demise of polarized globe
- Globalization (shrinking world)
- New ethnic-nationalisms (fragmenting world)—principle of self-determination
phase 2 (delayed effects of colonialism—demise of Soviet bloc)
- Challenges from 2nd and 3rd World over Western dominance of IL
• TWAIL—Third World Approaches to International Law
- Challenging the eurocentrism of international law
- Brought an incredible sense of possibility
• The dreams of the UN are now practical and realizable
• A global society based on common shared values could be realized
• 5. Post 9/11?
- Retreat from principal distinguishing feature of the post WWII paradigm
• Return to unilateral use of force
• Acquisition of territory by force

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- Weakening of resolve around this issue
• Inviolability of Jus Cogens (a)
- The principles of international law that are inviolable
- They’re no longer inviolable

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 Wednesday, September 24, 2014

Lecture #2
- History of the Discipline
• Many basic concepts traceable to Mesopotamia (2100 BC), Hebrew laws, Hindu
and Chinese civilization BC, Egypt, etc.
- How to govern relations between strangers
- What about killing?
- Inter Arma Silent Leges—when at war, law is silent
• ‘Dark Ages’ saw the ourishing of Dar al-Islam (House of Islam/Peace)
- Hostile to non-Muslims (Dar al-Harb—House of War)
- Developed humane rules of warfare
- Premised on the unity of Muslim peoples
- Friendlier to people of the book (Jews and Christians)
- Western Origins of Modern International Law
• Traceable to Greek and Roman antiquity
- Aristotle, Stoics (kosmopolis)—Cicero and Roman Empire
• Romans divide law between:
- Jus Civile (governing relations between citizens)
- Jus Gentium (governing relations between citizens and foreigners
• Law natural reasons establishes for all men
• Jus Naturale—Natural Law—Subsumes both
- Universal and Immutable
• There are laws that should be deducible from human interactions
- A higher law than the law created by political authorities
- Discoverable by reason
- Rooted in ‘universal’ reason it tends to ‘a monistic’ vision of law
• There is simply 1 system of law

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• Everything else is a fabrication, or pretender to the throne of law
- Monism vs Dualism
• Monism is where international law automatically comes into effect
automatically

• Dualism is where international law has to be approved by parliament rst

- International Law in the Middle Ages
• 800-1400
- Consolidation of HRE (unity of Christian Europe) Petrine mandate—Universalist
conception of law and humanity—unity of all law, divinely inspired
- Crusades and related theories of ‘Just War’—law governing relations between
Christians and in dels
- Pinnacle of temporal and spiritual unity in papacy of Innocent IV (1243-1254)
- Thomas Aquinas (1225-1274) natural law tradition revived
• One of the rst to get access to Aristotle’s work
- Struggle between emperor and pope
- Gradual demise of papacy’s role in temporal matters
- Juridical codi cation of feudalism
- Pre-eminence of local lords
- Overlapping jurisdiction and allegiances
• 1400-1648
- Dawn of the Renaissance
- ‘Discovery’ of Americas and Aboriginal Peoples
- 1492
• La reconquista in Spain
- Spain is reclaimed for Christianity
• The Spanish Inquisition
- Vitoria (c. 1486?-1546); de las Casas (1474-1566); Suarez (1548-1617)

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• Works on how to interact with the Americans
- Emergence of mercantile capitalism, and decline of feudalism in Europe
- Reformation, Protestantism, religious wars (16th-17th centuries)
- 30 Years War—Peace of Westfalia 1648
• Emergence on new classes
• Concentration of wealth
• European thinkers trying to make sense of these changes
- Jean Bodin (1520-1596): theory of sovereignty
• Takes concepts from ancient Rome and recomposes it into a theory of
sovereignty

• To get out of the warfare, we have to secure the neighbourhoods, and only one
authority controls it
- Hugo Grotius (1583-1645)
• Theory of the obligations of states to one another
• Enshrines Bodin’s idea into a broader idea of state obligations
- Thomas Hobbes (1588-1679)—Leviathan (1651)
• Writing against the backdrop of the civil wars in England
• Says that Bodin’s idea is right
• We need to give all our rights to Leviathan, and he’ll protect us in return
- From Naturalism to Positivism
• Grotius’ De Jure Belli ac Pacis (1625)—On the Law of War and Peace
- Brought together natural law, Roman law, and state practice
- Condemned war as self-defeating
- Accepted sovereign states as basic unit of IL—govs should be left discretion to
do what is opportune
- But Normative imperatives of law still determinable by reason
• Late 16th-17th Century writers began to challenge natural law

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- Gentili (1552-1608), Zouche (1590-1690) and Bynkershoek (1673-1743) argued
that states only had to obey IL if they consented to it
- Westphalia
• 18th Century—Positivism is Dominant
• Vattel (1714-1767), Hegel (1770-1831):
- States, like individuals, have independent wills
• Law is:
- Created by states-states are the source of all law
- IL created by sovereign states acting together through treaties and customary
practice: emerges from consent and consensus, not a determinate sovereign will
- Facilitates (but not irreducible to) a realist view allowing states to ignore/
repudiate their international obligations/duties

• Positivism (focused on ‘positive’ or ‘state-made’ law) reaches its most ardent

articulation in John Austin (1790-1859)
- The Province of Jurisprudence Determined (1832)
• For law to exist there must be a determinate superior, above all other and
subordinate to none: the sovereign

• Sovereignty becomes the cornerstone of legality

• Therefore IL is impossible
- Theory of Sovereignty
• Bodin—Six Livres de la République (1576)
- The main point of sovereign majesty and absolute power consists of giving the
law to subjects in general without their consent

• Hobbes—Leviathan (1651)
- State of nature is ‘nasty, poor, brutish and short’
- States exist in a genuine state of nature, whose individual actors (states) are in a
war of all against all

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- “In all times, Kings, and Persons of Sovereign authority, because of their
Independency, are in continual jealousies, and in the state and posture of
Gladiators; having their weapons pointing, and their eyes xed upoKingdomsn
one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their
Kingdomes; and continuall Spyes upon their neighbours’ (1648)
- Absolute deference to Leviathan is essential if chaos is to be averted
- Offers vision of international relations—contiguous sovereigns—no possibility of
overlap—commensurate with realism today

• John Locke (Two Treatises on Government) (1689)

• Jean Jacques Rousseau (The Social Contract) (1762)
• Ushers in the notion of popular sovereignty, liberal democracy, and the right of
peoples to self-determination, turning sovereignty theory (partially) on its head

• Still raises the spectre of tyranny of the majority

- International Law in a Globalizing World
• Weaknesses
- No single unitary source
- Limited enforcement
- Is it ‘law’?
- Lack of common interest in world community
- Usually applies to states, not individuals
- While it organizes their affairs, it doesn’t generally apply to MNCs
- Lack of exibility since there is no legislature to change the laws
- Subordinate position of IL with respect to domestic law (monism/dualism)
- Nations often invoke self-defence and self-preservation to justify military activity
• Strengths
- It’s a medium of stability and predictability in a complex world—clari es/stipulates
reciprocal obligations
- Offers the language throughout which international affairs are largely conducted

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- International and Transnational relations become more, not less complex
- Holds out the promise of establishing principles of legitimation of states externally
and internally (i.e. through promulgation of human rights standards)
- Normative assertion: more state cooperation preferable to greater state liberty

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 Wednesday, October 1, 2014

Lecture #3
- Sources of International Law
• No single body (legislative sovereign) able to create laws internationally binding on
all
- Article 38(1) Statute of International Court of Justice (generally accepted authority)
• International conventions
- Treaties
• International customs (CIL)
• General principles of law recognized by civilized nations
• Judicial decisions and teachings of respected publicists
- Criteria Modi ed by Article 38(2)
• Despite 38(1) court can decide a case on basis of equity if parties agree
- Has never been used
- Article 59
• Decisions of Court have no binding force except between parties and in respect of
a particular case
- Doesn’t set a rm precedent
• Treaties, custom, and general principles constitute legally enforceable rights and
duties “hard law” (lex lata)

• Other sources constitue non-binding sources of law, or law in formation (lex

ferenda)
- Questions arising from this range of sources:
• Is this list exhaustive?
- Might there be other sources of law?
• Is there an implicit hierarchy implied in 38(1)?
• What is the interrelationship between sources?
- ICJ Jurisdiction over Contentious Cases

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• In all cases, ICJ jurisdiction rests on consent; however, once jurisdiction is
established, parties are bound to abide by the outcome
- Consent can be written into the treaty, otherwise there must be consent by both
parties or the ICJ has no authority
- Once consent is given, it cannot be taken away
- If there is consent, the decision is binding on all parties
- Treaties and Conventions
• Deliberate acts that create IL—show what states are willing to do
- Creates binding relationships and IL
• Agreements between two or more states or other ‘legal persons’ with rights and
powers equivalent to states in IL (ex. international organizations)

• Can be the result of compromise, bargaining (rights traded for rights), or may be
peace treaties made under the compulsion of force/war

• Finalize agreements between: states and states; states and IOs; IOs and IOs
• May codify, de ne, interpret or abolish existing customary or conventional rules of
international law or create new rules

• Often entered into because customary practice was too restrictive

• A vehicle of transformation of IL (not conservative)
- Four Major Rules of Treaty Interpretation
• Intentions of the parties
• Speci c prevails over general
• Practices of states should not derogate from treaties
• Bilateral treaties are like contracts because they create legal obligations that prevail
over general IL
- Reasons for Binding Effect
• Shared sense of commitment
• If one country does not respect its promises, other countries may not respect theirs
- Rules Governing Treaties

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• Traditionally customary
• Now codi ed in the Vienna Convention on the Law of Treaties 1969 (came into
force [CIF] 1980)
- 114 parties as of April 2014
- Custom
• Longstanding rules and practices, or practices generally accepted by international
communities

• CL is universally applicable. With few exceptions it is binding upon all states

• Consent is tacit
• Customary rules are constantly changing
• Establishing CIL one must show two elements: one behavioural (state practices/
usus) and one psychological (opinio juris)
- State Practice (Usus)
• Practice must be ‘suf ciently’ general
• Engaged in/observed by suf cient number of states—unanimity not required
• What is “suf cient” depends on circumstances of case
• No set threshold for practice, but practices of some states may be more relevant
than others (subject area, power, geography)

• Consider how often states have a chance to act in accordance/against the rule
• Look to responses of states to unilateral action
- Practice:
• Must be uniform and consistent, no particular duration is required
• Can be discerned from multiple sources: newspapers, historical records,
statements of pub authorities, of cial pubs, memoirs, legal manuals, diplomatic
interchanges, opinions of national legal advisors

• Can also include UNGA activity, presentations to ILC, IL decisions, national court
decisions, trees and practices of IOs
- Opinio Juris Sive Necessitatis

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• Practice must be accepted as law by the international community; states must
believe their conduct is legally required

• 2 Approaches:
- Presumptive Approach: issue is application of rule, not its existence
• Inferred from state practice unless evidence establishes contrary
• Party seeking to avoid speci c customary rule bears burden of proof
- Rigorous Approach: existence of rule is contested or new Opinio Juris is alleged
• Requires clear evidence of psychological element
• Required when state(s) fail to evidence intention of parties to reject the rule
• Sources of evidence: of cial pronouncements
- Exceptions to Universal Character of Custom
• (Note: these exceptions do not apply to jus cogens)
• Contracting Out
• Persistent Objector
• Local/Special Custom
• Custom in Transition:
- New practice inconsistent with prior customary rule may gradually undermine the
universal character of the old rule and ultimately replace it
- Permitted re just cogens only if it is replaced by a new jus cogens
- Proof of change is problematic
• General Exemption: A state is allowed by the international community to deviate
from customary practice

• Both treaties/conventions and custom have consensual underpinnings

• Some scholars argue that certain IL norms are non-consensual viz. “general
principles of law” and “jus cogens”—non-consensual in the sense that all are
abound by their dictates

• There is little agreement, however, about the nature of “general principles”

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- General Principles of Law
• General principles of law “recognized by civilized nations”
• Common Sources
- Domestic procedural laws of states (but not their substantive laws)
- Principles of law (as distinct from detailed rules, may thus be borrowed if
common to various legal systems and applied to ll gaps in IL

• 3 Approaches:
- Basic rules of legal logic that the ICJ may use to decide cases (ex. “later in time”
or “lex specialis” rules)
- Include substantive legal norms common to most legal systems in the world (ex
liability for ultra-hazardous activity or basic norms of HR)
- They derive from natural law and are discoverable through reason
• Emphasis is on procedural principles:
- Res Judicata (parties bound by judgement)
- Jurisdictional principles
- Equitable principles—including ROL principles like judicial independence
• Examples of General Principles
- State must consent before being bound to international agreements
- States must be treated equally regardless of their size or strength
- “Pacta Sunt Servanda”
- Awards/judgements of international tribunals to be respected as nal
- One stet will not intererein domestic jurisdiction of another
- Obligation to make reparations for breach
• Problems
- Derogates form consensual basis of IL
- Risk of chauvinism and selectivity
- “Jus Cogens”

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• 2nd type of ‘non-consensual’ norm: peremptory norms permitting no derogation
• Closely related to natural law
• Controversial—What norms qualify as jus cogens? Candidates include prohibition
of force/aggression, torture, slavery, genocide, and apartheid

• Version of jus cogens doctrine accepted in Vienna Convention on the Law of

Treaties Article 53 provides:
- “A treaty is void if, at the time of its conclusion, it con icts with a peremptory norm
of international law…a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as
a norm from which no derogation is permitted and which can be modi ed only by
a subsequent norm of general international law having the same character.”

• Analogous with contract law that contract is void if contrary to public policy
• That there can be non-consensual norms of IL is very contentious
• VCLT permits the view that jus cogens is consensual—refers to them as “accepted
and recognized by the international community of states as a whole”

• Most treatments view it as non-consensual—VCLT prohibits derogation from jus

cogens by means of a treaty and states may not opt out of jus cogens through
persistent objection
- Con ict with “Jus Cogens”
• Controversial because of ill-de ned content
• Void by operation of law
• In all cases the treaty is void ab initio—general obligation arises to return parties to
status quo ante where possible

• Where treaty is rendered voidable, aggrieved state may lose option if, aware of the
facts, it acquiesces in the continuation in force of the treaty

• If rendered voidable, the whole treaty goes, unless ground of invalidity relates only
to speci c provisions which can be severed without injustice or absurdity
- Other Sources
• 38(1)(d) lists material sources, used to furnish evidence of other sources of law
• Court Decisions

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- No stare decisis—no ‘high court’ or sovereign
- Rule of Law, however, requires “a degree of consistency and predictability”
• ICJ, Libya/Malta case, 1985
• Scholarly Writings
- Credentials of authors are important
• “Lex Ferenda” or Soft Law (non-binding sources of law, or law in formation)
- UNGA resolutions and declarations and SC decisions
- Codes of conduct
- ILC/UN organ reports
- Lex ferenda may crystallize into les lata (legally enforceable/binding rights and
duties) through practice

• Equity:
- Concept of justice
- Transcendental notion of justice (universalistic)
- Rooted in natural law
- Dif cult to establish
- Obligations Erga Omnes and International Crimes
• “Erga Omnes”
- Arise re norms of IL whose violation deemed an offence not only against the
state directly affected by the breach, but all member of international community
- Closely related to “jus cogens”
- International crimes are not the same—Consist on a breach on an international
obligation so serious as to constitute a threat to the “fundamental interests of the
international community” (ILC Draft Articles on State Responsibility, Art. 19(2))
- All international crimes therefore violations of erga omnes obligations but
violations of erga omnes obligations not necessarily international crimes

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Lecture #4
- Subjects of International Law
• Who does the law recognize?
• Entities capable of:
- Possessing international rights and duties
- Entering into international legal relations
- Enforcing those rights through international claims
• Who/what are they?
- States, International Organizations, and Individuals
- National liberation/insurgent movements, peoples seeking self-determination,
Holy See, corporations

• IL personhood is a relative thing (unlike municipal law)

- Legal personality in the abstract is not the point; rather, what speci c rights,
duties, and (legal) powers is an actor capable of exercising?

• States remain primary subjects of IL

- Have all the rights/obligations of IL
- All others can attain degree of IL personality, but fewer rights and duties than
states
- Contexts in Which International Legal Personality is Important
• Capacity to make claims under IL
• Capacity to enter into valid treaties
• Capacity to claim privileges and immunities
• For non-state actors, issue is how do states relate to the entity
- Statehood—Montevideo Convention (1933)
• Article 1:
- Population

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• Permanent, stable population within a certain area
• Doesn’t have to be a minimum population (Nauru, Liechtenstein)
- Doesn’t matter about size, all states are equals
• Need not be nationals of state
- Territory
• Delimited and controlled
• No minimum size required
• Need not be unitary or contiguous
• Some territory must be effectively controlled by political leadership
- Could be military or political
- Effective government
• Control of Population and Territory
• Absence of independent control may not be fatal (decolonization)
• No particular type of government required
• Sometimes humanitarian issues arise (Rhodesia—violation of SD)
• Presumption of continuance maintains statehood if this criterion disappears
(Somalia)
- Capacity to enter into international relations
• Independence
• State must be:
- Sole legally constituted authority over territory and population
- Independent and exercise political/legal will free from control of another state
- Independence not compromised by political/economic pressure, nor
compliance with IL

• Compromised if:
- Foreign control is overbearing—effectively exercising in uence on wide
variety of governmental issues, with ability to substitute decisions

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- Sub-National Units
• Legal personality of sub-national units often depends upon internal constitution
order, which delineates authority to enter into international relations
- Sections 91 and 92 of the constitution dividing up power between provincial and
federal governments

• Where conduct of foreign relations lies within authority of the sub-nation unit, IL
treats sub-unit as agent of national state
- Provinces have no status in international relations; they represent Canada
- Reparations Case (ICJ 1949)
• Is Israel, this newly created state in the international community, responsible for
reparations to the UN for it’s assassination of their diplomat

• Does the UN have international standing?

• Reasoned:
- UN purports to concern itself with broad goals and purposes
- Charter equips UN with organs designed to carry out mandate
- Charter sets out detailed state-IGO relations, obligations of members re UN
- UN can enter into treaties with its members
- Therefore members intended to give UN some degree of international legal
personality

• Found
- UN could not carry out its intended functions without international legal
personality
- UN has capacity to bring claims for injury to itself or to its agents
- Personality of the UN extends to non-members
- Criteria for International Legal Personality of IOs
• Permanent association of states with lawful objects, equipped with organs capable
of ful lling those objects

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• Distinction (re: legal powers and purposes) between organisation and member
states

• Existence of legal powers exercisable on international plane and not solely within
national legal stems of one or more states (ex. treaty-making, immunities, ability to
bring or be subject to international claims, etc.)

• Criteria to be applied with primary regard to treaty creating organisation and

applying functional analysis to same
- NGOs
• While major players on international scene, they do not possess even the limited
personality of IGOs

• Unlike IGOs, they are not established by states

• ECOSOC may grant consultative status at UN (Charter 71)
• Amicus Curiae—friends of the court—provision of expert testimony
- Corporations
• Constituted by domestic law
• Generally do not possess international legal personality
• Corporate codes of conduct are not considered binding norms
• Note grey areas: Grown Corporations (IL may treat as agent of state) and
corporations permitted to directly enforce (trade) treaty obligations against staes

• States can sue one another for damages accruing to a national

- Individuals
• Conventionally, individuals did not possess international legal personality—existed
vicariously through their (national ) state

• Past century saw weakening of this position:

- Civil and political rights against the state—limited by inadequate enforcement
- Obligations for war crimes, crimes against humanity and crimes against peace—
enforcement possible in domestic courts, ad hoc tribunals, or ICC (CIF in 2002)
- Peoples Seeking Self-Determination

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• Principle of SD originally articulated by Lenin/USSR; then Wilson/US
• Evolved throughout the 20th century (particularly during decolonization process)
• Often resisted by states
• Scholars and states (practice) agree that in some circumstances there is right to
SD enjoyed by entities known as “peoples”

• Binding norm of IL, based on CIL

• ICJ recognized principle of SD in Western Sahara and Namibia cases, which dealt
with colonial territories. ICJ left unclear the extent/content/timing of the right

• Legal personality of people seeking SD is limited/circumscribed and transitory

- Sources
• UN Charter Art. 1(2); Art. 2(4)(7) and Art. 55 (inalienable rights of people vs. in
alienable rights of states)

• Declaration on the Granting of Independence to Colonial Territories and Peoples

(1960) (internal and external SD, plus preservation of national unity and territorial
integrity)

• ECOSOC
• Declaration on Principles of IL Concerning Friendly Relations, Art. 5 (1)(2)(4)
(sovereign and independent states, integration of new status, core, territorial
integrity, nite status of SD)
- De nition of “Peoples”
• How is “peoples” de ned?
• Could it be a de nition of a new subject of IL?
• Can this only be understood in the context of colonialism?
• Criteria:
- Objective
• A cohesive national group with a reasonable degree of homogeneity
- Subjective
• Group manifests political will to be recognized as such

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• Evidence
- Referenda, elections, uprisings/popular movements
- “Free and democratic expression of will of members amounting to clear desire to
be recognized” (ICJ)

• Position of “Peoples” Vis-à-vis State:

- Colony-Right of SD denied-Ipso facto SD
- Peoples-relation to state characterized by denial of participation in governance-
denial of internal SD on discriminatory basis-SD arises
- Reference re: Quebec Secession (SCC, 1988)
• Colonial people
• Alien subjugation/domination/exploitation
• People denied meaningful exercise of right to internal SD
• SCC and international conventions emphasize exceptional nature of such situation-
usually defer to overriding norm of territorial integrity—uni possidetis.
- Substantive Content of SD
• Statehood not necessary—rather, the right to choose—look to the will of the people
for content/status: Western Sahara (ICJ, 1975)

• Termination or denial may suf ce (ex. Kosovo)

• Ultimately, the SCC said that Quebec does have a right to self determinate

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Lecture #5
- International Protection of Human Rights
• States are the principal protectors of HR—First line of defence
- Hannah Arendt—“The right to have rights”
- International Instruments and institutions rely in large measure on states to
actualize rights possibilities in their jurisdiction

• Rights Discourse born in Europe

- Natural Law tradition
- Magna Carta
- Liberal focus on rights (civil liberties and property)
• Locke and Rousseau
- American and French revolutions
- 19th Century Innovations
• 1817 and onward—numerous bilateral treaties aimed at abolition of slave trade
- Including establishment of anti-slavery courts—1st International Criminal
Tribunals
- But state sovereignty absolutely supreme; positivism
- Hostis Humani Generis (like piracy)
• 1859 Henry Dunant, Battle of Solferino
- Witnessed one of the greatest battle scenes of the 1800s
- Saw wounded soldiers being killed, prisoners being killed etc.
• 1864 Establishment of ICRC
- International Committee of the Red Cross
• 1864 Geneva Convention for the Amelioration of the Condition of Wounded in
Armies in the Field

• 1899 and 1907 Hague Convention

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- Early 20th Century Innovations
• ILO (International Labour Organization)
- Immediate response to the Bolshevik Revolution
- Founded in 1919 to ‘pursue a vision based on the premise that universal, lasting
peace can be established only if it is based upon decent treatment of working
people’
- Supported right of association
- Became the rst specialized agency of the UN in 1946
- Responsible for drawing up and overseeing international labour standards
• Woodrow Wilson and V. I. Lenin—Right of Peoples to Self-Determination
- Establishment of Mandates system ‘For peoples not yet able to stand by
themselves in the stenos conditions of the modern world’
- Minority rights
• Gave rise to violence, ethnic cleansing and displacement of peoples from their
home countries

• Huge ow of refugees in Europe

• Post WWII International Human Rights became central to the international order
- Suggestion for 1st time state sovereignty not absolutely supreme
• Nuremberg, Tokyo—Individual criminal responsibility
• Demise of dominance of positivism/re-invocation of natural law
- Sets up a fundamental tension between Charter 2(7) and protection of HR
• One way to resolve this tension is principle of ‘exhaustion of local/domestic
remedies’
- HR in Customary International Law
• Laws of war
• Jus Cogens: Slavery; torture; genocide; certain war crimes; freedom from the
apartheid; terrorism (?)

• May give rise to obligations ergs omnes (by treaty or by custom)

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- HR in Treaty (and Soft-Law)
• UN Charter, Art. 1: promotion and encouragement of HR and Fundamental
Freedoms regardless of race, sex, language or religion
- Contrast with 2(7)
- Universal Bill of Rights
• UDHR (1948)
- Universal Declaration of Human Rights
- Declaration=Soft Law
• ICCPR (1966)—168 parties
- International Covenant on Civil and Political Rights
• ICESCR (1966)—162 parties
- International Covenant on Economic, Social and Cultural Rights
- ICCPR
• Physical integrity: life and freedom from arbitrary execution, torture and slavery
• Liberty and security of person: freedom from arbitrary arrest and detention and
habeas corpus

• Procedural fairness at law: due process, fair and impartial trials, presumption of
innocence, and recognition as person before law

• Individual liberty: freedoms of movement, thought, conscience and religion, speech,

association and assembly, family rights, right to a nationality, and right to privacy

• Political participation, including right to join a political party and right to vote
• Non-discrimination and equality before the law
- ICESCR
• Work, under just and favourable conditions, including right to form join trade unions
• Social security including social insurance
• Family life, including paid parental leave and protection of children

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• Adequate standard of living, including adequate food, clothing and housing, and
continuous improvement of living conditions

• Health, speci cally the highest attainable standard of physical and mental health
• Education, including free universal elementary, available secondary, and equally
accessible higher education directed to full development of human personality and
dignity enabling all to participate effectively in society

• Participation in cultural life

- Principal IGOs in Promotion and Protection of HR
• UNSC (UN Security Council)
• UNGA (UN General Assembly) (initiate studies, make recommendations)
- Numerous special subcommittees
• Social, humanitarian and cultural
• Legal
• Political
• Apartheid
• Committee on Rights of Palestinian People
• Israeli practices in the occupied territories
• ECOSOC
• UNHCHR (est. 1993) (UN High Commission on Human Rights)
• UNHCR (UN High Commission on Refugees)
• Commission on Human Rights (1947-2006)
- Replaces by Human Rights Council
- International Criminal Law
• Enforcement of Crimes at IL
- An emerging class of offences against the international legal order itself
- Perpetrators subject to universal jurisdiction in any state
- But what is their status thereafter? Hostis Humani Generis? Homo sacer?

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• Crimes recognized in CIL
- Crimes against peace (Aggression)
• Conspiring to create warfare with no just cause
- War crimes
- Crimes against humanity (serious and systematic crimes against populations
- Apartheid
- Slavery
- Piracy
- Torture
- International terrorism
- Genocide
- Drug traf cking (?)
- Crimes Against Humanity
• “Murder, extermination, enslavement, deportation and other inhumane acts
committed against any civilian population before or during the war, or persecutions
on political, racial or religious grounds in execution of or in connection with any
crime within the jurisdiction of the tribunal, whether or not in violation of the
domestic law of the country where perpetrated” (Nuremberg)

• Now includes sex crimes (Rome Statute, ICTY, ICTR)—part of systematic

campaign

• If a treaty does not say otherwise customary international law provides for universal
jurisdiction fo enforcement of crimes at international law
- (Rome) Statute of the International Criminal Court (1998, CIF April 2002)
• Possible at end of the Cold War
• Driven by experiences in Rwanda and former Yugoslavia
• Is a permanent court trying individuals (not country) accused of genocide, war
crimes and crimes against humanity—aggression?
- Aggression: speci ed, but no de nition agreed upon

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• Temporally limited jurisdiction: court can only try crimes committed after Rome
Statute comes into force (why?)

• Jurisdiction where states are unable/unwilling to exercise jurisdiction, but only if

parties to the Rome Statute, or at request of SC

• Article 15 gives prosecutor proprio motu powers to initiate investigations not

requested by SC or member states

• 139 signatories and 122 rati cations so far

• 17 countries have signed but not rati ed
• CIF at 60 rati cations
• Canada rati ed July 7, 2000
• Resisted by US, China, Israel, India and others—some signatories but no rati ed
• Elements help to cement the CIL status of crimes

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Lecture #6
- International Law on War and Warfare
• Law of War has 2 (3) components:
- Jus ad Bellum
• When one can use force in international relations
• “The law going to war”
- Jus in Bello
• International humanitarian law (what you can legally do in armed con ict)
- (Jus post Bellum)
• Law governing what happens after war
- vs. Inter Arma Silent Leges—Thucidides (Melian Dialogue)
• What at war, law falls silent
- Western history of legality of war originally governed by notion of just war.
- Just War Tradition
• Combined elements of jus ad bellum, jus in bello and just post bellum
• Closely linked to Catholic jurisprudence (esp. Crusades and New World)
• Historically: Cicero, Augustine, Aquinas, Vitoria, Grotius, Locke, Pufendorf
• Today: Michael Walzer, Jeane Elshtain, James Turner Johnson
- Six Criteria that must be met
• 1. Just Cause/Right Reason (justa cause)—most frequently invoked
- Self-defence from external attack
- Defence of others from such attacks
- Protection of innocents from brutal, aggressive regimes
- Punishment for grievous wrongdoing hitherto uncorrected
• 2. Right Intention

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- Place limits on the pursuit of hostilities
• Once accomplished, hostilities should cease—1991 Gulf War
- Wars only to be fought only for the just cause
- Ulterior motives (ex. revenge or material acquisition) disqualify cause
• 3. Proper Authority and Public Declaration
- War can be pursued only if decision made by appropriate authorities, proper
process, and though public declaration
- Appropriate authority usually speci ed in country’s constitution
- Unjust states failing requirements of minimal justice lack legitimacy to go to war
• 4. Last Resort
- Resort to war only if all plausible, peaceful alternatives to resolving con ict
exhausted

• 5. Probability of Success
• 6. Proportionality
- Declining Importance of “Just War” Driven by:
• Secularization of states
• Absolute sovereignty of states
• Decline of natural law—rise of positive law
• Emergence of European ‘power politics’ (classical period/balance of power)
• Return to interest in JWT in international ethics re: Vietnam (Walzer)
• Just war criteria re: question of humanitarian intervention/R2P
- Responsibility to Protect
- War vs. Use of Force
• Wars are disputes between states: peaceful (diplomatic, etc.) relations must be
severed

• Often expedient to call armed con ict something other than “war”
• 20th century saw gradual shit toward general prohibition on Use of Force

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• LON Covenant tried to limit resort to force (3 month cooling off period)
• Soviet Russia and Wilson deny right of acquisition of territory by conquest (no
annexation) as corollary of right of peoples to self-determination

• Kellogg-Briand Pact (1929)—Pact of Paris—condemned use of war as an

instrument of national policy

• Montevideo Convention (1933)

• UN Charter (Art. 2(4)) declares “use of force against the territorial integrity or
political independence of any state, or in any other means inconsistent with the
Purposes of the United Nations” illegal

• Nuremberg Charter identi es “crimes against peace” as ‘planning, preparation,

initiation, or waging of wars of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the foregoing.’

• Friendly Relations Declaration (1970) offers speci c examples of conduct

‘inconsistent with the purpose of the UN’

• Aggression identi ed as one of four categories of crimes in Rome Statute

- UN Charter Prohibition on Use of Force
• Charter speci es 4 exceptions to general prohibition against war
- Actions undertaken or authorized by the UN (Chapter VII)
• Only part of the Charter where the Security Council can speak authoritatively in
a legally binding way

• Only thing that can violate art. 2 (7)

- Self-defence
- Fighting a ‘non-international’ or civil war
- (No longer applicable) use of armed force against ‘any state which during the
Second World War [was] an enemy of any signatory to the present Charter

• Nuremberg witnessed the reach of this prohibition to include individual criminal

culpability

• Justice Jackson:

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- “To initiate a war of aggression…is not only an international crime; it is the
supreme international crime differing only from other war crimes in that it contains
within itself the accumulated evil of the whole. …Crimes against international are
committed by men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international law be enforced.”
- Actions Undertaken or Authorized by the UN
• Art. 39: SC to take ‘appropriate action’ (including use of armed force) in response to
‘any threat to the peace, breach of peace, or act of aggression’

• Art. 40: To prevent ‘aggravation on the situation’ SC can ‘call upon the parties
concerned to comply with such provision measures at it deems necessary or
desirable…’
- 3 types of possible action: non-military; military; ad hoc
• Non military
- Art. 41: SC call upon members to effect ‘complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio and other
means of communication, and the severance of diplomatic relations’

• Armed Force
- Art. 42: If measures provided in Art. 41 are inadequate, SC may ‘take such action
by air sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea or land forces of members of the UN

• Ad Hoc Arrangements
- SC may authorize member states to deploy forces in support of a beleaguered
state
- GA may authorize member states to deploy peacekeeping forces in support of a
beleaguered state
- Self-Defence
• Art. 51
- If an armed attacked occurs, nothing in the Charter prevents a state from using
force to defend itself and nothing prevents states from going to the aid of an ally
until the SC has dealt with the matter

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- Allows states to use force in self-defence
- Does not de ne self-defence
• Art. 52(1)
- Regional Defence Arrangements Collective Self-Defence
• States may collectively defend themselves
- Customary International Law Limits on Self-Defence
• Generally accepted de nition comes through CIL from Caroline Case. States
claiming self-defence must show 3 things:
- 1. Must be ‘a necessity of self defence’: action taken must be response to some
provocation

• Note:
• Art. 51 suggests SD may only be exercised after an armed attack
• Right to exercise SD in anticipation of attack claimed by some states
- 2. Provocation must have been ‘instant, overwhelming, leaving no choice of
means, and no moment for deliberation’

• State claiming SD must respond ‘promptly’ to armed attack or immediate threat

- 3. Action taken must be ‘proportionate’ to the seriousness of the attack and
justi ed by the seriousness of the danger
- Civil Wars
• Not international con icts, therefore an exception to UN Charter prohibition against
use of armed force

• Rules governing external states re: civil wars

- Foreign states generally forbidden from initially aiding insurgents in a civil war
- But may intervene on behalf of established government
- If established government gets outside assistance, 3rd parties may intervene on
behalf of insurgents
- Still covered by jus in bello, especially Common Article 3, GCs and Additional
Protocol II

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- Humanitarian Intervention (HI) and R2P (Responsibility to Protect)
• Under JWT (Just War Theory) protection of innocents brutal, aggressive regimes is
a just cause

• But positive IL forbids use of force except for SD or with SC permission

• UN system has failed to respond effectively to avert catastrophe (Cambodia,
Yugoslavia, Rwanda)

• Q: Is Positive IL too restrictive?

• Enter debate on HI R2P
- International Commission on Intervention and State Sovereignty
• Sovereignty not absolute
• Sovereigns who violate their obligations to protect their citizenry forfeit sovereign
status (ex. cases of mass atrocity, genocide, ethnic cleansing)

• R2P actually comprised of 3 injunctions

- R2Prevent
- R2Protect
- R2Rebuild
• Reiterated verbatim the 6 criteria of JWT
• If international community unable to respond, unilateral intervention possible
• R2P—emerging norm, not law, driven by a political doctrine (JWT) not legal
• Adopted as a guiding norm of UN but SC authority required

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Lecture #7
- Jus in Bello
• AKA Humanitarian Law; Law of Armed Con ict (LOAC)
• Regulates the conduct of hostilities; delineates lawful and unlawful objects
• Historical examples across myriad cultures
• Governed by 3 core principles:
- Distinction: Imperative to distinguish between military and civilian persons an
property
- Military Necessity: Only military objects are lawful
- Proportionality: Incidental damage to civilian persons and property can only be
justi ed if proportionate to the military advantage sought
- Four Geneva Conventions (1949) and 3 Additional Protocols
• 1. Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field (1864, last revised 1949)

• 2. Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea (1906)

• 3. Treatment of Prisoners of War (1929, last revision 1949)

• 4. Protection of Civilian Persons in Time of War (1949, based on parts of 1907
Hague Convention)

• Protocol 1 (1977): re Protection of Victims of International Armed Con icts (more

than 165 rati cations)

• Protocol 2 (1977): re Protection of Victims of Non-International Armed Con icts

(more than 160 rati cations)

• Protocol 3 (2005): re Adoption of an Additional Distinctive Emblem (ex. protective

signs displayed by medical and religious personnel during con ict; Red Crodd, Red
Crescent and Red Crystal symbols)
- As Conceived Today, LOAC:
• Outlaws various objectives, methods, and means of ghting

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• Seeks to protect the innocent and wounded—humanitarian rules
• Seeks to punish violators—enforcement
- Criminal culpability of individuals at the international level
- Unlawful Objectives, Methods, and Means
• Unlawful Objectives
- Military objectives are lawful targets of armed attack
• Civilians, civilian property civilian property are not
- Unfortunately no sharp diving line between these two categories
• Injuries to the latter may be justi ed on grounds of unavoidability or military
necessity (collateral damage)
- Targets which may not be attacked or destroyed, but may be captured or seized
include:

• Civilians
• Non-active military personnel—wounded troops
• Diplomats and messengers authorized to negotiate with an enemy
• Parachutists other than airborne troops
• Civil defence personnel
• Hospitals, hospital ships, and medical units
• Merchant ships and vessels
• Civilian food, supplies, and crops
• Cultural property
• Religious places
• Highly dangerous installations (ex. nuclear power plant)
• Unlawful Methods
- “No quarter” orders
- Starvation of civilian populations

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- Treachery, including use of civilian shields
- Rape and sexual assault (war crime, crime against humanity, genocide)
- Per dious (deceitful) acts, including feigning:
• Intention to negotiate under a ag of truce or surrender
• Being wounded or sick
• Having a noncombatant status
• Protected status by use of sings, emblems, or uniforms of UN or neutral states
• Unlawful Means
- Weapons causing unnecessary suffering/super uous injury are illegal
- Weapons are lawful if injury and suffering they may produce are not
disproportionate to the military advantage arising from their use

• No targeting of civilian installations by conventional weapons, but nuclear

weapons may be okay
- In icting suffering for its own sake or for mere indulgence in cruelty is illegal
- Indiscriminate weapons
• Weapons that cannot be directed with any degree of certainty at military
objectives
- WWII debates over strategic bombing vs nuclear weapons
- Indiscriminate weapons outlawed by treaty:
• Poisons
• Biological/chemical weapons
• Environmental modi cation weapons
• Offensive mines and booby traps
• Nuclear weapons may be illegal if too large or targeted indiscriminately
• Super uous weapons—weapons designed to increase injury and suffering of
individuals
- Super uous weapons outlawed by treaty include

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- Explosive projectiles less than 400 grams
- Hollow-nosed (‘dumdum’/mushroom) bullets
• Incendiary weapons only illegal only when used against
- Civilians or civilian property
- Military targets proximate to concentration of civilians or civilian property
- Humanitarian Rules Protecting the Innocent and Wounded (ICRC)
• Civilians and non-combatants to be treated humanely
• Those who surrender or are captured cannot be killed or injured
• Wounded and sick are to be cared for
• Medical personnel, establishments, transports, and material must be respected
• Civilians and captured combatants to be protected against violence and reprisals,
and have the right to correspond with their families and to receive relief

• Everyone is entitled to fundamental judicial guarantees

• Individual not to be held responsible for acts they have not committed
• No one to be subject to physical or mental torture, corporal punishment or cruel or
degrading treatment

• Belligerents may not use weapons or methods that cause unnecessary losses or
excessive suffering

• Belligerents must direct attacks solely against military targets

- Enforcement Crimes at International Law
• Crimes recognized in CIL
- Crimes against peace (aggression)
- War crimes
- Crimes against humanity (serious and systematic crimes against populations)
- Torture
- International terrorism
- Genocide

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- War Crimes—Violations of “Jus in bello”
• Can be committed by governments and individuals
• Any state can try a war criminal, but “victor’s justice” usually prevails
• “Following orders” (superior orders) not a defence of major crimes, but may be
considered in sentencing

• Spies and mercenaries considered “unprivileged belligerents” (UBs)

- Not protected by the law of warfare
- May be executed after fair trial
- States using UBs not guilty of violating jus in bello and under no obligation to
reimburse injured state

• They would have to if jus in bello is violated

• Crimes against peace and crimes against humanity
- De ned in Charter of the International Military Tribunal at Nuremberg, later
incorporated into the Geneva Conventions of 1949
- Crimes Against Peace
• “The planning preparation, initiation or waging of a war of aggression or a war in
violation of international treaties”
- Crimes Against Humanity
• “Murder, extermination, enslavement, deportation and other inhumane acts
committed against any civilian population before or during the war, or persecutions
on political, racial, or religious groups in execution of or in connection with any
crime within the jurisdiction of the tribunal, whether or not in violation of the
domestic law of the country where perpetrated”

• If a treaty does not say otherwise, customary international law provides for
universal jurisdiction for enforcement of crimes at international law

• Ad-hoc tribunals may be appointed, but they possess temporally limited jurisdiction
over geographically de ned crimes
- (Rome) Statute of the ICC (1998, CIF April 2002)
• Not just for times of war

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• Is a permanent court trying individuals (not countries) accused of genocide, war
crimes and crimes against humanity—doesn’t cover aggression yet

• Temporally limited jurisdiction: court can only try crimes committed after Rome
Statute comes into force

• Jurisdiction where states are unable/unwilling to exercise jurisdiction, but only if

parties to the Rome Statute, or at request of SC

• Article 15 gives prosecutor proprio motu powers to initiate investigations not

requested by SC or member states

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Lecture #8
- Recognition of States and Governments
• Recognition largely political with legal consequences
- Many types of recognition:
• States
• Governments
• Territorial claims
• Belligerency
• Insurgency
• National liberation movement
• Recognition of foreign legislative and administrative acts
• Concerns status of entity in question
- On international scene
- Within municipal legal system of recognizing state
• Usually accorded by executive
• Matter of policy at recognizing state’s discretion
- Cannot demand recognition as a right
- Important distinction between recognition of state and recognition of government
• Recognition of gov implies the regime is in effective control of a state (effectiveness
doctrine/test)

• Recognition of state means acceptance of statehood/not just government

• Recognition of state needn’t imply acceptance of government/regime
• Doctrine of effectiveness rooted in France’s recognition of post-revolutionary US
- Two theoretical Approaches to Recognition
• Constitutive theory
- Emphasized act of recognition; state/gov doesn’t exist in IL until recognized

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• Declaratory (Evidentiary) Theory
- Recognition has no legal effect
• Existence of a state or government a question of viability
• Recognition merely acknowledges viability
• State Practice (usus) favours declaratory theory
- States obliged to recognize entities meeting criteria of statehood
• Constitutive theory largely out of favour
- But recognition still of evidentiary importance in borderline cases
• Today’s prevailing view: recognition is declaratory and does not create a state
- Ultimately, recognition is still important as states/govs in international order reliant to
some extent on recognition of the validity of claims

• Failure to achieve recognition may leave new/rogue states/govs marginalized

- Afghanistan
• Recognition sometimes used as indicator of approval of govs (US), but should not
be equated with approval, may just as well recognition of responsibility (assumed
approval particularly problematic in instances where human rights abuses abound)

• Estrada doctrine, Mexico 1930: decision not to issue declarations of recognition of

governments

• Many states now moving to this practice

- See change of government as a legally internal matter
• Adoption of this practice may represent substitution of implied recognition for
express recognition
- Ex: practical withholding of diplomatic relations (DR); establishment of DR
probably only unequivocal act from which recognition can be inferred
- Recognition still signi cant as gesture of goodwill
• Viability of new states very important in cases of secession
- Premature recognition may be violation of IL and rights of mother country
• Ex: France saying they’d recognize Quebec as a state

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• Rhodesia is an interesting case
- UN Security Council called on international law community to withhold
recognition
- Mandatory decision under Chapter VII Charter; binding upon members under
Article 25 Charter

• Perceived lack of independence may give rise to hesitation/refusal of recognition

• Non-recognition no excuse from rules of IL
• Recognition does not imply obligation to establish diplomatic relations
- “De jure” and “de facto” Recognition
• Both describe entity in question, not the act of recognition
• De facto government: implies the gov has effective control and is likely to be
permanent

• De jure government: Effective control and rmly established

• De facto state:
- Manifests most attributes of sovereignty
- Generally indicates recognition with reservations
• De jure state:
- Displays all characteristics of sovereignty—Montevideo
• When recognition is not express, may lead to confusion/uncertainty as to intentions
of recognizing state

• If state or gov established in violation of IL only de jure recognition can supersede

illegality
- Creation of UN and other international organizations has had signi cant impact on
practice of recognition of states and government

• EC has established guidelines re recognition and establishment of diplomatic

relatons:
- 1. Must respect provisions of UN Charter, Final Act of Helsinki, and Charter of
Paris, especially re rule of law, democracy, human rights

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- 2. Guarantees rights of minorities in keeping with framework of CSCE
- 3. Respect of inviolability of all frontiers—Only changeable by peaceful means
and common agreement
- 4. Acceptance of European security imperatives
- 5. Agreement to reach agreement or arbitrate questions of state succession and
regional disputes

• These guidelines represent move toward a constitutive theory

• Criteria suggest recognition is inappropriate for states that do not recognize human
rights
- State Jurisdiction over Territory
• Territory (Oppenheim):
- A de ned portion of surface of the earth subject to the sovereignty of a state
- State without territory is impossible, but it may be very small
- Important because state territory is the space within which state exercises
supreme authority
- Land Territory is essential requirement (sine qua non) of statehood and most
potent display of state sovereignty
- Principal Modes of Acquisition of Territory: Roots of Title
• Conquest
• Occupation
• Acquisitive Prescription
• Cession
• Accretion, Avulsion and Erosion
- Each mode of acquisition must be accompanied by intent to assert or exercise
sovereignty (animus possidendi)
- Conquest (valid until 1928)
• Assertion of effective sovereign control over territory through military conquest
• Required actual possession (factum) and intention to take over (animus)

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• “Non est justa causa belli ampli catio imperii” (Vitoria)
- You cannot engage in exercises to justly take over territory just in order to
enhance your power

• Rendered obsolete by Kellogg-Briand Pact and reinforced by declaration on the

Rights and Duties of States (1949) and Friendly Relations Declaration (1970)

• Cannot even acquire in self defence

• Israeli occupation of territory after 1967 was illegal
- “Force cannot give good title”
• Likewise, denunciation of Iraqi attack on Kuwait
- Occupation
• Means of establishing title over “terrae nullius”
• Occupation follows ‘discovery’
- Discovery insuf cient to establish title
• Discovery must be accompanied by ‘animus’ (intent) to exercise sovereignty
• Tribal peoples do not live in “terrae nullius”—Western Sahara (1975)
• Effective, continuous and peaceful display of exclusive territorial sovereignty
• Not necessary to prove activity at all times for presumption suf cient to show some
state activity, but existence of competing claims gives rise to stricter proof
requirements: Island of Palmas (1928)
- Acquisitive Prescription:
• Displacement of sovereign through competing displays of sovereignty which
ultimately overtake the former sovereign’s territory

• Where occupation can only work re terrae nullius, AP can take place over any
territory by continuous display of de facto sovereignty

• Requires evidence of a (relatively i.e. Island of Palmas) great deal of state activity
- Cession
• Transfer of sovereignty over territory by agreement
• Requires change in law (treaty) and change in fact (transfer of possession)

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• Usually in a peace treaty after war
• Distinguish from “renunciation” (unilateral renunciation of territory) and
“abandonment” (unilateral withdrawal leaving terrae nullius)

• Emergence of principle of self-determination has made cession less likely

- Accretion, Avulsion and Erosion
• Natural process which results in extension/reduction of land thereby extend/reduce
extent of sovereignty

• Accretion (gradual), Avulsion (sudden), Erosion (linear/ nal)

- Principal of Legal Regimes Re: Relation of States to “Territory”
• Full Sovereignty
- Territory over which a state exercises all of the jurisdictional competencies
permitted by IL

• “Res Communis”
- No state is sovereign but all states can exploit the area for individual bene t (ex.
high seas, outer space)
- Some states enjoy greater entitlements or jurisdiction (ex. coastal)
- Common Heritage of Humankind (CHH)
• Not subject to state sovereignty or exploitation for individual bene t
• Exploitation allowed only for bene t of community (ex. deep seabed and subsoil,
moon, celestial bodies)

• “Terra/Res Nullius”
- Land capable of, but not presently subject to, state sovereignty
• Subsoil:
- Principle of Appurtenance: territorial sovereignty extends to subsoil
- Lakes and Rivers:
• Sovereignty extends to all lakes, canals and rivers bounded by land territory
• For bodies of water between adjacent riparian states, international boundary is set
by treaty or by application of medial line (customary rule)

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• Rights in waterways exclusively held by riparian states
- Free to establish regimes to the extent of their sovereignty
- Riparian states on internationalized watercourses (ex. Danube, Rhine) have
resisted encroachment on their exclusive riparian rights, choosing instead to
permit access/use through treaties
- Airspace
• Whatever rule applies to the land applies to the airspace above
- Territorial sovereignty extends to airspace
- With advent of military/civilian aviation other states may only use airspace with
agreement/authorization of the state, regardless of the type of use
- No agreement on upward limitation, but 100-110 km above sea level has been
suggested
- Chicago Convention of International Civil Aviation (1944)
• Unscheduled civil ights may enter without permission (provided they acquiesce to
requests to land)

• Prior authorization is required for scheduled civil ights to enter

• State maintains privilege to revoke permission for national security or emergency
reasons
- 1980 Protocol to Chicago Convention:
• No use of force against civilian aircraft
- Interception, escort, etc. required
• Codi cation of customary prohibition on use of force to deny civilian entry
• Prohibition clearly acknowledged by 1983
- Downing of Flight KL007 denounced by international community
• Established International Civil Aviation Organisation
• Almost universal
• Af rms customary rule of absolute sovereignty over airspace, but sets out
permissive regime for use of foreign aviators engaged in civil and innocent use

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- Jurisdictional Airspace Rights
• Extend beyond land, but do not constitute extension of territorial sovereignty. State
practice shows coastal states may extend limited functional jurisdiction into high
seas for security reasons

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Lecture #9
- Jurisdiction Over Persons
• Jurisdiction: Extent to which international law permits a state to exercise domestic
jurisdiction over persons (natural or legal) or things in its territory and sometimes
abroad” (Aust, 2014)
- State has sovereign authority within its borders
- Its power to legislate domestically unquestioned
- May exercise its jurisdiction over the subject matter of anything within its territory
- Bases for Criminal Jurisdiction
• There are 6 basis for jurisdiction, not all are universally accepted
- Territorial Principle
- Nationality Principle
- Passive Personality Principle
- Protective Principle
- Universality Principle
- By Agreement
• Because of the several bases, there may be concurrent jurisdiction
- Possibility of double or triple indemnity
- Territorial Principle
• State where crime committed has jurisdiction. This is the primary working rule.
Territory includes land mass
- Subjective (or initiatory principle): act deemed to have been committed in the
place where it commenced
- Objective (or terminatory) principle: State where act is consummated or where
last constituent element of offence occurs has jurisdiction (Lotus Case)
- Nationality Principle

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• Nationality of offender as a basis for jurisdiction used extensively in civil law
countries. Common law countries have been reticent to employ this principle
- Canada applies it only for treason, war crimes, crimes against humanity, various
international terrorist offences, and child abuse
- Passive Personality Principle
• (Seldom used) claim to jurisdiction over foreign nationals on alien soil for crimes
committed against the claimant country’s nationals—not many countries pursue this
rule
- ICJ opposed this in Lotus Case
- Protective Principle
• A state may exercise its jurisdiction over acts committed abroad that are prejudicial
to its security territorial integrity and political independence
- Ex. espionage
• Problem of states broadly interpreting security
- Universality Principle
• A state claim jurisdiction over all crimes anywhere (considered contrary to IL)
- Less objectionable when applied to act generally considered to be universally
criminal (war crimes, torture, terrorism, hijacking, piracy)
- By Agreement
• Jurisdiction of one state within territory of another may always be granted by
agreement
- Ex. US criminal law applies on US military bases in Canada
- State and Diplomatic Immunities
• Principle of immunity cornerstone of international relations
• Based on Notion of equality of states (par in parem non habet imperium)
- Two Kinds
• Sovereign/State
- Immunity of the state from domestic courts of other countries

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• Diplomatic immunity
- Attaching both to agents of foreign states representing their home states abroad
and to agents of IOs

• Sovereign and Diplomatic immunity

- The two principles exceptions to exercise of territorial jurisdiction
- State Immunity
• Universally recognized principle of international law
- States immune from jurisdiction of other states’ courts
• Two approaches
- Sovereign immunity used to be absolute, but increased state involvement in
commercial activity meant state run enterprises had unfair advantage
- Old doctrine
• States had absolute immunity
- Restrictive approach (new doctrine)
• States have restrictive immunity
- Are liable for commercial activities
- Liable for grave breaches of HR
• Two issues arrive from restrictive approach
- Paradox: Introduces to cope with government intervention in commercial
affairs, yet such intervention is deliberate act of state policy
- Extremely dif cult to draw line between public and commercial activities
(commercial v public) object

• Today most countries have adopted a restrictive immunity approach re state

trading enterprises

• 1972 European Convention on State Immunity: speci es when immunity may/

may not be claimed before courts of contracting states

• 1985 Canada clari es its position, moving from absolute to restrictive immunity
- Rationales for State Immunity

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• Formal explanation: It expresses the perfect quality and absolute independence of
states
- “Par in parem non habet imperium”—one cannot exercise authority over an equal
• Functional rationale: It is necessary for effective international relations/comity
- Protect our diplomats and we’ll protect yours
- Keeps lines of communication open
- Types of State Immunity
• Ratione Personae:
- Immunity attacked to the person of a state representative only while in of ce
- Applies to head of state, foreign minister, (probably) government ministers
• Ratione Materiae
- Immunity attacked to of cial acts of state representative
- “Of cial acts” are truly governmental in nature (jus imperii) and not commercial/
private in nature (jus gestionis)
- International crimes cannot constitute of cial acts
- Applies to acts of state/gov/of cials/agents—also constituent units of states
- Also to acts of any governmental organ, depending on whether the entity carries
out essentially government functions and to what extent the entity is subject to
state control
- Corollaries to State Immunity:
• Foreign states have privilege of appearing as a plaintiff in foreign courts, usually
against private persons
- Runs the risk of counterclaims to which it is not immune
• It is a reciprocal doctrine, rooted in comity (courtesy), but now legally binding as
customary IL

• A state may waive immunity, giving rise to enforcement jurisdiction

- Diplomatic Immunity

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• Ability to represent one’s home state depends on freedom to engage in activity
unhampered by municipal laws

• Rise of permanent (as distinct from temporary) diplomatic missions dates only 17th-
century)

• Original effort at codi cation of general rules of customary law Congress of Vienna
1815

• Still predominantly customary law when codi ed in Vienna Convention on

Diplomatic Relations (1961)
- Having consented to diplomatic representation, receiving state is obliged to:
• Enable sending state to establish its representation (at least not hinder)
• Maintain adequate security to protect diplomatic envoy
• Avoid encouraging hard to diplomatic personnel or property
- May be construed as state act: US Diplomatic & Consular Staff in Tehran
Case(1979-1980) ICJ

• Premises/elements of mission are inviolable, even in event of war or severance of

relations—British/Lybia Case 1984—British authorities refuse to enter premises of
Lybian Embassy until 2 days after expulsion of diplomats—diplomatic status of
premises didn’t expire until then

• Persons and residences of diplomatic personnel are inviolable—cannot be

arrested, detained, searched, etc.

• Immunity belongs to the state and not the individual

• Foreign state can wave immunity for its employees
• Locally employed personnel will not normally receive immunity
• Diplomatic envoys and families (if not nationals) exempt from local, civil, and
criminal jurisdiction for private and public acts

• Debate over whether diplomats should simply enjoy functional immunity (i.e. re acts
related to their jobs) or full immunity

• Communications of the mission/sending state are violable (diplomatic bag) Dikko

Affair 1984

• Exceptions in cases of civil and admin jurisdiction for subordinate diplomatic staff

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- Receiving Diplomatic Envoys
• Proposed diplomatic staff must be acceptable to receiving country
• Once diplomat’s credentials end, immunity expires after diplomat has had
reasonable time to leave

• Any agent/representative of a foreign state can be declared “persona non grata”,

requiring the representative to leave

• Diplomatic staff declared persona non grata allowed grace period during which
immunity continues

• Serious crimes committed against diplomatic envoys and missions addressed in

Convention on the Prevention and Punishment of Crimes Against International
Protect Persons, Including Diplomatic Agents-UNGA 1973
- Consular Immunity
• Consular staff not same as diplomatic staff
• Not concerned with political affairs, instead oriented to representation of
commercial and administrative issues
- Ex. issuing visas
• Consular relations much older than diplomatic
- Consuls originally elected by merchants resident in a foreign country from
amongst themselves

• Modern system dates from 16th C

• Consuls usually have little contact with host government unless no diplomatic
mission
- Usually communicate through representative diplomatic envoy
• Consular relations largely governed by bipartite agreements till 1963
• Vienna Convention on Consular Relations adopted then
- Modelled on 1961 diplomatic convention
• Outside of special agreements, consuls immune from arrest, detention, and
criminal process only re acts/omission in performance of their of cial functions

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• Member of consul’s families do not enjoy the same sweeping immunity afforded to
their diplomatic counterparts

• Immunity in any instance can be negated by waiver by home government or

superior diplomatic/consular staff

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Lecture #10
- Pinochet Decision UK House of Lords 1999
• Request for extradition for a range of crimes
- Murder, hostage taking, genocide, torture
• Lords face two questions
- Are there extradition crimes?
• For extradition, double criminality must apply
- Crime in both countries
• Murder and hostage taking not applicable
- (Head of state can murder for IL, and hostage taking isn’t applicable
• Allegation of genocide inapplicable
• Torture applied, but when?
- When did torture become illegal in Spain and Britain, even if conducted in a
3rd state?

• Became a crime attracting universal jurisdiction as of 1988 when Britain

legislated universal jurisdiction re torture in the Criminal Justice Act,
meeting Britain’s requirement under the Torture Convention to make all
torture whenever committed justiciable in the UK or “aut dedere au punire”

• So there is a very limited array of extradition crimes

- Does Senator Pinochet enjoy immunity with respect to the actions he alleged to
have committed?

• Rationae personae? No. Pinochet has left of ce

• Rationae materiae? No. Torture cannot be an of cial act, therefore once
leaving of ce Pinochet can be tried for torture committed once clear authority
had been passed from Parliament to the courts to a universal jurisdiction to the
jus cogens prohibition on torture giving rise to an obligation era omnes to either
extradite or punish
- Nationality of Claims

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• Nationality: the status of belonging to a state for certain purposes of IL
• Claims re damages will fail unless it can be probed injured individual is a national of
the claimant state—“nationality of claims” rule—customary IL

• PCIJ established: “In taking up the case of one of its nationals…a State is in reality
asserting its own right” Panevezyz-Saldutiskis Railway case (1937)

• IL generally leaves each state to de ne who are its nationals

- Principle may be limited by treaty
- Means of Acquiring Nationality
• By birth
- “ius soli”—nationality to all children born on a country’s soil
- “ius sanguinis”—nationality to all children of parents of a given country
• By marriage
• By adoption or legitimation
• By naturalization
• As result of transfer of territory from one state to another
- Means of Losing Nationality
• Renunciation of one nationality by a child bon with dual nationality
• Assumption that acquisition of new nationality entailed renunciation of old
• By deprivation—exclusion on basis of various criteria (race, ethnicity)
• As a result of transfer from one state to another
- Statelessness
• Stateless people have:
- No right of entry
- No voting rights
- Frequently excluded of areas of the workforce
- May live under threat of deportation

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- Lack of passports makes travel dif cult
- Art. 15 UDHR states everybody is entitled to a nationality
- Multiple Nationalities
• When states make claims against third states, which national state presses claim?
- Usually both/all can
- Claim of one national state against another usually inadmissible
- Normal to acquire nationality at birth via ius soli
- Nottebohm (1955) suggests claims must be based upon nationality to which
there is a genuine link
- Iran-U.S. Tribunal decided “dominant and effective nationality” of claimant is
decisive re admissibility of claim
- Companies are regarded as nationals of state under whose laws they are
incorporated/territory they have their registered of ce (Barcelona Traction)
- State Responsibility
• Arises when one state commits internationally unlawful act against another state
• Breach of international obligation gives rise to requirement for reparation
• Includes:
- Breach of ready, violation of territory, damage to other state’s property
• All breaches of international obligation are internationally wrongful acts
• Must distinguish between international crimes and international delicts
• ILC nally settled on Articles of state responsibility (2001-after almost 50 years)
- Articles divided in three parts
• Origins of international responsibility (IR)
• Content, forms and degrees of IR
• Settlement of disputes and implementation of IR
- Nature of State Responsibility hinges on:
• Existence of international legal obligation between two states

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• Occurrence of an act or omission which violates that obligation and is imputable to
state responsible

• Loss or damage has resulted from unlawful act or omission

• IL determines what constitutes internationally unlawful act irrespective of municipal
law

• Any violation by a state of any obligation gives rise to SR, therefore duty for
reparation
- State Crime?
• Draft Article 19 (delete form 2001 agreement):
- Any internationally wrongful act breaching international obligations essential for
protection of fundamental interests of international community is recognize as
international crime
- Ex. aggression; colonial domination; slavery; genocide; apartheid’ massive
pollution of atmosphere or seas

• Driven by:
- Development of jus cogens
- Rise of individual criminal responsibility under IL
- UN Charter and provision for enforcement action
- While concept of state criminality too controversial, SR for actions committed by
its agents is not
- On Questions of Fault
• Is liability strict or dependent on fault or intention? Two theories:
- Risk/objective theory: state liability strict
- Fault/subjective theory: must be element of intentionality or negligence
• Doctrine and practice support primacy of objective theory
- Imputability
• Legal ction: assimilates actions or omissions of of cials to state itself
• Renders state liable for damage to property or person of alien

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• Threat of absolute/strict liability encourages states to exercise greater control over
organs and representatives

• Also promotes compliance with objective standards of conduct in IR

• State may incur responsibility for activity of of cials in injuring national of another
state—activity needn’t be authorized by the authorities of the state

• Doctrine depends on link between state and persons committing unlawful act or
omission

• States not responsible under IL for ats performed by its nationals provided due
diligence shown
- Ultra Vires acts
• Unlawful acts may be imputed to state even if beyond legal capacity of of cial
involved if of cials appear to have acted as competent of cials or have used
powers or methods appropriate to their capacity

• Article 10—any organ with governmental authority and acting thus is considered an
act of state even if exceeded its competence or contravened instructions—seems
to introduce absolute liability

• Although private individuals not regarded as state of cials, state may be

responsible for failing to exercise control necessary to prevent such acts
- Individuals
• Conduct of person or group considered act of state if:
- Person or group was acting on behalf of state
- Was exercising elements of governmental authority in the absence of of cial
authorities in circumstances justifying exercise of such authority

• Iran Case: ICJ said initial attack not imputable to Iran, but subsequent approval
translated attack into state act—militants became agents of Iranian state and
state bore responsibility
- Mob Violence, Insurrections and Civil Wars
• If government acted in good faith and without negligence general principle of non
liability for acts of rioters or rebels

• State under duty to show due diligence

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• If insurrections movement successful, will be held responsible for activities prior to
assumption of authority or secession

• Acts of supporters cannot be attributed to government following success of

insurrection
- Injured State
• Only injured state may invoke responsibility of “author” state and obtain
compensation

• Article 5(2): In some circumstances of multilateral treaties all parties to relevant rule
may be regarded as injured enabling them to claim compensation or take
countermeasures

• Article 5(3): If internationally wrongful act constitutes international crime, then

injured sate means all other states
- Very controversial and got dropped
- Reparation
• Seeks to wipe out consequences of illegal act as though act had not been
committed

• 3 forms
- Restitution in kind
• Many cases now involve expropriation, therefore monetary restitution
becoming common

• Punitive damages unusual (I’m Alone, Rainbow Warrior)

• Satisfaction: non-monetary compensation, including of cial apologies,
punishment of of cials or formal acknowledgement of unlawful character of act
- Countermeasures
• May not:
- Include force
- Extreme economic or political coercion designed to endanger territorial integrity
or independence of state
- Endanger inviolability or independence of state

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- Derogate from basic human rights
- Contravene peremptory (jus cogens) norms
• Principle of proportionality paramount
- State Succession
• Branch of IL dealing with legal consequence of change of sovereignty over territory
- Concerns rights and duties of states coming into existence or ceasing to exist
• Creates numerous problems
- Treaty obligations?
- Disposition of public debt and property?
- Membership in international organizations
- Nationality of citizens
• Two crucial questions:
- Does state concerned claim to be new state, or continuation of previous state?
- Have claims been accepted by other states?
• Issues of burning importance re decolonization and end of Cold War
- Uti possidetis: rule to protect territorial integrity under existing former
administrative boundaries
- Doctrine of State Continuity
• Changes in gov (whether by domestically legal/illegal/unconstitutional violent
means) do not affect continued legal personality of state re international legal rights
and obligations

• If change in gov is brought about through international illegality:

- International legal personality of the state is presumed
- But sofa as possible, obligations incurred by the gov are transferred to state
responsible for the international illegal change in gov.

• Ex Germany held responsible for Austria’s debts incurred in 1938-1945

- Types of Succession

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• Separation
- Total dismemberment/disappearance of predecessor state—Yugoslavia
• A -> B, D, C, E
• Secession
- Part of predecessor state secedes, preserving predecessor and giving birth to
new state—Sweden from Norway

• A -> A, B
• Decolonization
- Termination of foreign governance over territory giving rie to (re)emergence of
(new) state—Commonwealth
- A (A) -> A, B
• Merger of Separate States
- Two predecessor state give rise to one new state—Utd. Arab Rep (Syria, Egypt)
• A, B -> C
• Absorption
- One state is totally absorbed by another pre-existing state—GDR by FRG
• A, B -> A
• Annexation/Cession of Territory
- No state is created or destroyed
• A, B -> A, B
- Succession to Treaty Rights and Obligations
• Unsettled in law
• 18th and 19th C rise of “clean state” doctrine
• Gradual shift pre-WWII—Practice favoured approach whereby bene ts and
burdens of (UK imperial) treaties were passed to new states (former British
colonies

• Rules have been unsettled since decolonization period

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• This is context for return of customary “clean slate doctrine”
- Clean Slate Doctrine
• If a new state comes into being as result of succession, it is generally not bound by
treaties binding its predecessor

• Nor does it automatically acquire rights under such treaties

• Corollary is that parties are not bound to accept the new state
• But, new state may acquire rights and obligations through its conduct or the
conduct of 3rd parties evidencing an intention to be bound by treaties

• Some Newly Independent States (NIS) have asserted right to af rm or disavow

treaty rights and obligations at their discretion

• Effect is to force treaty relations—highly resisted by major powers

- Vienna Convention on Succession of States in Respect of Treaties (1978)
• CIF 1996, only 17 rati cations (including FSU and Yugoslavia
• Attempts to codify rules—doesn’t re ect customary law
• Former colonies are presumed to be bound (34)
• NIS are presumed not to be bound, but have a choice to accede (16, 17)
• Exceptions to Clean State Doctrine
- Treaties which evidence customary law
- Technically, states remain bound by customary law, irrespective of treaties
- Succession does not affect:
• Treaties creating rights and obligations relating to use or enjoyment of territory
(rights of transit, navigation, port facilities, demilitarized zones, shing rights),
particularly those for the bene t of 3rd parties

• Ambit of this exception is unsettles—state practice is not uniform

- Boundary Treaties
• Treaties that establish international boundaries survive changes and are binding on
successors
- Multilateral Treaties

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• So-called “law making treaties” are sometimes said to be open to unilateral
accession by successor states

• Probably depends on the accession terms of the treaty and consent of parties
• State practice shows, generally, terms allow for accession or 3rd parties’ consent
- Succession and Public Property
• Title to public property goes with the territory, but local property outside the
successor territory may remain vested in successor
- Succession and Public Debt
• Not clear rule; state practice is not uniform
- Some Trends
• If predecessor is wholly subsumed by existing state, latter is liable for all
predecessor’s debts

• In the case of secession, local debts pass with successor state

• General obligation to negotiate on equitable basis

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Lecture #11
- Law of Treaties
• Vienna Convention on the Law of Treaties (1969)—CIF 1988
- Largely re ects CIL, thus majority of provisions binding on most parties
• Essential Elements: 2(1)(a)
- Agreement between states (other subjects have special treaties)
- Intention to create legally binding obligations
- For purposes of VCLT agreement must be written—oral ok if customary
- Agreement covered by IL—not ML
- States can unilaterally bind themselves in absence of treaty
- Principal Stages in Treaty Making
• Adoption of text by parties (9)
• Authentication of original text (signature) (10)
• Consent of states to binding effect (rati cation, accession): (11-16)
• Twilight period, in which parties cannot defeat object or purpose of treaty (18)
• Coming into force, usually at predetermined date or number of rati cations (24)
• Registration with the UN Secretariat (80) (plus UN Charter 102)
- Reservations
• Legally exclude or modify legal effect of certain provisions in treaty re application to
reserving state: 2(1)(d)

• State acceding to treaty may formulate a reservation unless:

- Reservation not permitted by treaty 19(a)-(b)
- Reservation incompatible with object and purpose of treaty 19(c)
• Some reservations require no acceptance, or acceptance by all other parties,
depending on nature and terms of treaty 20(1-3)

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• Otherwise, acceptance of a reservation constitutes reserving state party to the
treaty
- Effect of reservation becomes reciprocal 20(4)(a), 21(1)
• Objection may prevent entire treaty, or simply provisions to which reservation
relates, from coming into force between objecting and reserving states, depending
on expressed intention of objecting state and intent of treaty: 20(4)(b), 21(3)

• Effect of reservations, acceptance or objections to reservations must be determined

bilaterally

• Create a milieu where states can comfortable enter into treaties

• Involve as many states as possible
- Reservations to the Convention on Genocide Case (ICJ 1951)—Compatibility Test
• Balance universality with consent
• If a reservation is compatible with object and purpose, reserving state is party to a
Convention even if some parties reject the reservation

• If B considers reservation incompatible to object and purpose, then B may consider

reserving state not to be a party

• If C accepts compatibility of reservation, reserving state is considered a party

• If signatory who has not yet rati ed objects to reservation, it an give notice of
opinion and after rati cation will have same legal effect as above
- Provisional objection will crystallize
• Objection to a reservation by a state entitled to accede or sign but has not yet done
so is without legal effect

• VCLT attempts to preserve relationship between reserving and objecting state

(19-21)
- Legal Effects of Treaties
• Pacta Sunt Servanda
- Binding treaties must be performed in good faith (26)
- Jus cogens?

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- States cannot be excuses of non-performance because of domestic legal
impediments (27)
- If implementation is not achieved, state will have to make reparations (46)
- Non-Retroactivity
• Unless clearly established otherwise, rights and obligations not retroactive (28)
- Territorial Application
• Unless clearly established otherwise, treaties apply equally to entire territory of
state party (29)
- Implied Abrogation
• In cases of incompatibility between old and new treaty rights and obligations, new
treaty prevails between states parties to a new treaty
- Effect on 3rd Parties
• Treaties create neither rights not obligations for nonparty states without their
consent (34)

• If party wants to accept rights and obligations, it must be written (35)

• If treaty confers right on 3rd party and 3rd party acts upon it, consent can be
established
- Treaty Interpretation
• Treaty provisions to be interpreted according to their “ordinary meaning” 31(1)
• This does not necessarily mean literal meaning
• Quali cations
- “In good faith” 31(1)
- “In their context” 31(2-3)
• Context includes:
- Preamble and annexes
- Agreements between all parties in connection with conclusion of treaty
- Instruments made by parties in connection with, and accepted by parties, in
conclusion of treaty

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• “In light of object and purpose” (preamble, prior agreements, subsequent practice)
• Unless “special meaning…intended” 31(4)
• Supplementary means of interpretation” in a case of ambiguity (prep work) 32
- General Principles Applied to Treaty Interpretation
• Contemporaneity—give terms legal/factual meaning they would have had at the
time of conclusion of treaty

• Unless subsequent events force change in meaning of treaty terms

• Use liberal purposive interpretation for treaties establishing IGOs
• ICJ—strict construction of treaties derogating from state sovereignty (unclear
practice)

• Interpret multilingual treaties to reconcile different language versions

- If impossible, use original language text 33(4)
- Invalidation of Treaties
• Grounds available to invalidate treaties highly circumscribed
• Treaties presumed to be valid until shown (by party seeking to invalidate) to be
invalid

• Violation of Internal Law

- Manifest violation of internal law with regards to competence to conclude treaties
• Violation must be apparent and of fundamental importance (46)
- Contrast with (27) (domestic legal impediments)
- Voidable at option of aggrieved party
• Excess of Authority
- Excess of representative’s authority in expressing state consent to be bound (47)
- Restrictions on authority must be brought to other party’s attention
- Other party is entitled to rely on authority
- Voidable at option aggrieved party
• Error of Fact

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- Treaty may be voidable if error of fact which essential basis for consent (48)
- Not voidable if change of fact is responsibility of party seeking to void treaty
- Party must reasonably ascertain the truth
- What is “essential” is unsettled (perhaps object and purpose)
- Voidable at option of aggrieved party
• Fraud
- Fraud by another negotiating state inducing consent (49)
- Voidable at option of aggrieved party
• Bribery
- Bribery/corruption of state representative to give consent (50)
- Voidable at option of aggrieved party
• Change of Circumstances
- Rebus sic stantibus
• Fundamental changes of circumstances, which means the state can no longer
ful ll its obligations to the treaty
- Ex. Succession
- Force Majeure (Act of God, act of nature such as ooding, earth quake)
- Treaty Implementation
• Incorporate/adopt text of the treaty into domestic statue as a whole
• Take substance, not wording of a treaty and put into domestic statute
• Implementing statute which is subject to the treaty
• Implementing by admin action (ex. peace treaties, defence pacts)
- Treaty Making Powers rests on:
• Principles of IL
• Constitutions of federal states
• Canadian Constitution, provinces can’t enter into treaties

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