Docstoc

Public International Law Summary

Document Sample
Public International Law Summary Powered By Docstoc
					                                                                                                                 1
Public International Law Summary

Romania v. Cheng
-ship owned by company incorporated in Taiwan (not recognized by Canada). 3 men from Romania stow away,
Canada levies a big fine on companies that allow illegal immigrants to come into Canada. They dump 2, hide 1
-Romania entered treaty operative in Canada that Romania could only ask for extradition for crimes committed
within the territory of the requesting state. The crime was committed on the high seas
-China said to charge them needed Philippine crew to be sent there, crew filed for refugee status in Canada

Chapter 1 - Introduction to IL pp1-10
-today states are primary subject but individual persons do have some status & rights, states have consented by
entering into human rights treaties allowing an individual status before a tribunal or body BUT it’s only because
states have agreed by becoming party to the treaty that these rights exist
-individuals have had obligations under IL for a long time, it is the rights that are new
-it’s difficult for an individual to get a foreign state into the courtroom
-Problem: people with more than one nationality ex. Arar. Country of nationality cannot espouse the claim
against the other country of nationality, no way Canada could compel Syria to get before the ICJ or anything

1)Dynamic development of codification of customary rules - impact of the expansion of the number of states in
the international community – many pressing for certain changes. Ex. Disintegration of Soviet Union, Former
Yugoslavia, de-colonization set the scene
a)issue of self-determination of peoples put on the agenda by new states that had entered the system
b)as long as there is not discrimination expropriation does not violate IL, issue at is over compensation
c)Common heritage of mankind – deep sea bed of the high seas – outer space – Antarctica
2)advances in technology requiring Int’l community to rethink things like aerospace travel, cyber crime etc.
3)UN as a global institution, UN’s specialized agencies (IL Labour Organization, WHO, UNESCO etc.)
-International Law Commission, composed of 34 jurists representing principle legal systems of world, set up by
UN in 1947, mandated to codify IL. Drafted principles with respect to war crimes & crimes against humanity.
Produced genocide convention adopted by UN in 1948. Drafts are sent to the UN & may be adopted.
4)Impact of NGOs lobbying for changes, new treaties etc., invited by UN to attend as observers, bring legal
expertise not only to lobby but to actually give legal assistance

-in the event of a violation where there is no remedy possible (no jurisdiction of ICJ) a state could go to the UN
security Council and ask them to tell the offending state to fulfill their obligations in good faith

Chapter 3 – Creation and Ascertainment of International Law p 91- 129
A)Sources of Law

-Article 38 Statute of the International Court of Justice – sources of international law include
(1)a)international conventions (treaty) b)international custom c)general principles of law recognized by
civilized nations d)judicial decisions & teachings of highly qualified publicists as a subsidiary means of
determining IL [(d) is law determining, NOT law creating - Art. 59 decisions of ICJ binding only on parties to
that decision, no rule of precedent BUT ICJ can look at it’s own decisions & others to interpret a,b and c]
(2)This provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties
agree there to [court can go outside rules of IL & decide on basis of justice & equity BUT NO state has ever
actually allowed the court to do that]

-Canada arrested Spanish ship suspected of over fishing in Grand Banks. Spain party to Law of Sea Convention
but Canada was not, treaty reinforced that a costal state couldn’t arrest ship of another state. Parliament adopted
                                                                                                                    2
legislation that if there was a reasonable suspicion of over fishing then they could arrest ship. Canada said ICJ
had no jurisdiction, ICJ agreed so the merits of the case were never looked at

-protocol – states must become a party to protocol for it to become binding otherwise only original treaty is
binding on that particular state, you can’t become party to the protocol unless you are party to the main treaty
-soft law – instruments not legally binding but which affect conduct of states and may lead to development of
new international law, not directly enforceable in domestic courts or int’l tribunals ex. Helsinki Accords

-potential for conflict between sources of law. Ex. English Channel Arbitration – because Convention on
Continental Shelf only 10 years old, conclusive indication parties intended to regard it as obsolete required, no
new rule of custom had come into general application at time dispute arose. Both parties were subject to treaty.
-treaty can change custom or be changed by custom, states can act in a way that renders certain portions of the
treaty defunct (English Channel)
-where there is a conflict between sources, we are looking for the common denominator
-Military Activities In & Against Nicaragua – rejected view that existence of principles in treaties precluded that
similar rules exist in customary IL, norms remain separate even if they have identical content

B)Treaties
-for states who have not signed their option is to accede and that binds them
-treaties don’t create rules of IL but can lead to formation of customary rules or be evidence of such rules
-general principle of law pacta sunt servanda – agreements must be kept

1969 Vienna Convention on the Law of Treaties
1)parties must be subject of IL 2)they must intend to create binding obligations under IL [assumed when states
enter a treaty] 3)their agreement must be governed by IL [VC applies to treaties between states], can be oral

-Anglo Iranian Oil Company Case – contract regulated relations between the Iranian Gov’t and the company, it
did not regulate relations between the 2 governments

Australia v. France; New Zealand v. France [nuclear test cases] (1974)
-France not party to Nuclear Test ban treaty, conducted nuclear tests in the south Pacific BUT France made a
unilateral declaration they were not going to conduct atmospheric nuclear tests any more
-court said France has obligated itself by it’s unilateral undertaking to not do the testing
-a declaration with the intent to be bound although not in the context of international negotiations is binding

-Rainbow Warrior – ship owned by Green Peace harassing French ships deploying test instruments. New
Zealand & France sent naval officers to plant bombs under Rainbow Warrior. They were going to be prosecuted
when France intervened & said they were obeying superior orders – you can’t hide behind superior orders

Canadian Treaty Practice
-Canada uses int’l agreements btn heads of states, intergovernmental agreements and exchanges of notes
-“Aut dedere, aut judicare” – Extradite or prosecute
-GA drafted a text which the legal committee (6th committee) in 1999 adopted - Convention on the Suppression
of Terrorist Bombings which said extradite or prosecute, Fulfillment of obligations in good faith
-Achille Lauro - Italian Cruise ship, Palestinian hijackers came on board & took over, got off ship in Egypt –
Egypt says they have no obligation because they had no treaty, hijackers eventually prosecuted in Italy because
the ship was an Italian vessel – following this incident the UN developed a treaty on the hijacking of ships
-Genocide Convention does not provide for principle of extradite or prosecute – but some publicists have
suggested that with respect to certain heinous crimes, principle of extradite or prosecute applies is customary IL
                                                                                                                    3
Treaty Making [governed by the Vienna convention]
A) representative of state must have full powers, must be authorized (Art 7. VCT) Countries have different rules
as to who that person should be. If not, agreement has no legal effect unless confirmed by state (Art. 8 VCT)
B) must agree upon mode of adoption [voting, consensus etc.] (Art. 9 VCT)
C)Must settle means of identifying definitive text (Art. 10 VCT)
D) Set down steps to express consent to treaty [signing, ratification etc.] (Art. 11-16 VCT)

-Art.4 VCT non-retroactivity – treaties only retroactive if parties agree to retroactively obligate themselves
-Art. 6 – Every state posses capacity to conclude treaties
-Art,26 – Pacta Sunta Servanda – every treaty is binding on parties to it & must be performed in good faith
-Art 27 – can’t invoke problems w domestic law as justification for failure to comply w treaty obligations
-Art. 29 – unless contrary intention expressed, a treaty is binding with respect to a country to the entire territory.
Federal state is responsible to other treaty members even if province interferes with implementation of the treaty
-Art. 12 VCT - it is possible for signature to be enough for treaty to come into force but treaty must signify that
is the case. Most common position in multilateral treaties is that signing is merely the first step
-Art.18 – signatories have an obligation not to defeat the object and purpose of the treaty prior to its
implementation into force by a particular party until it has made its intention clear that it is not going to become
party to the treaty [this applies even when you have signed but not yet ratified]

-draft negotiating text can come from ILC or from a single state or a group of states that put forward to UN a
text & proposal that there should be formal negotiations leading potentially to adoption of a international treaty
-Recent UN Convention of Suppression of Financing of Terrorism – it came by France producing on it’s own a
text on the topic, provided the text to the legal committee of the general assembly
-text for ICC was initially started by ILC in 1947. No state wanted ICC but no state was willing to say no
-Rome Conference - Package had to be adopted by July 17th at midnight, Canada’s fear was momentum would
have been lost if they were forced to get together again. U.S. Proposed an amendment at 10PM that it should be
mandatory that an accused’s national state consents to the person being prosecuted or be a party to the treaty
-vote was taken on non-action on US amendment so it was never voted on and died a sudden death

Implementation
-ICC – Canada has a federal statute that implements the obligations made under the treaty for the ICC
-if it’s treaty of provincial concern or hybrid matter must get provinces to produce implementing legislation
-often a big gap from the formal signature to the actual implementation of the treaty. Ex. Int’l covenant on civil
and political rights adopted by the UN conference in 1966 but Canada did not ratify until 1976
-Canada will not ratify a convention until requisite legislation in place because if a state fails to perform its
treaty obligation in good faith, it is no justification to say there was a problem because of the constitution
-some countries have legislation that prohibits the extradition of their own nationals to be prosecuted in another
country – so with respect to the ICC those countries will have to amend their legislation even though the ICC
was designed to not use the word “extradition”
-some countries provide for immunities for their heads of state and governmental officials, these states will find
it necessary to amend domestic law – this is a road block particularly if this is in the constitution
-a state could only have a national as a judge if they were party to the treaty so that is why many countries
ratified the treaty without putting in place the implementing legislation
-ICC came into force pretty quickly on July 2002 (it was only signed in 1998), good considering controversy
-US & Israel signed on last day for signing ICC. Last international move made by Clinton administration
suggested to just make things difficult for Bush. Bush administration took over, a flurry in 2002 of US entering
into bilateral treaties with foreign countries whereby foreign countries were agreeing not to transfer any
American citizens to new court in Hague. Is this a violation of treaty obligations for those who had ratified
statute? A violation of US’s obligation under Art. 18 VCT to not defeat object & purpose of treaty? In May
2002 US wrote a letter to Secretary General of UN saying US viewed treaty as fundamentally flawed & they
had no intention of becoming a party to it
                                                                                                                    4
International Criminal Court
-court was in works since 1937, draft at league of nations & adopted but no country apart from India ratified it.
-it took so long to produce ICC because it’s not easy to get countries to agree on substance
*statue adopted 120 states in favour, 21 abstaining, 7 against – comes into force 60 days after 60 states ratify

1998 Rome Statute of the International Criminal Court
-UN security council in 1993 & 1994 adopted resolutions setting up ad hoc tribunal dealing with war crimes in
former Yugoslavia, 1994 adopted resolution setting up ad hoc tribunal dealing with genocide in Rwanda.
-UN SC resolutions are binding on all member states, General assembly resolutions are recommendations
-power to exercise jurisdiction over persons for most serious crimes of international concern, principle of
complementarity [meaning court will take jurisdiction where states are unwilling or unable to do so] (A –1)
Complimentarity important to getting agreement, not primacy like Yugoslav and Rwanda Tribunals
-court shall have int’l legal personality, may exercise its powers on the territory of any State Party, and, by
special agreement, on the territory of any other states (A-4)
-jurisdiction w respect to a)genocide b)crimes against humanity c)war crimes d)crime of aggression(when
defined) (A-5)
-defining genocide (A-6), defining crimes against humanity (A-7), defining war crimes (A-8)
-amendments to elements of crimes an be adopted by 2/3 majority (A-9)
-jurisdiction only for crimes committed after entry of force of statute & after entry of force for that particular
state (A-11)
-court may exercise jurisdiction if (a)state on the territory of which conduct in question occurred or, if the crime
was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft (b)the state of
which the person accused of the crime is a national (A-12)
-court can exercise jurisdiction where the crimes (a)have been referred to the Prosecutor by a state party [A-14]
(b)by the Security Council (c)the prosecutor has initiated the investigation [A-15] (A-13)
-Security Council can request 12 month deferral of investigation or prosecution (A-16)
-case inadmissible where state w jurisdiction is willing & able to investigate, has investigated & decided not to
prosecute, has already tried person for conduct, or case not of sufficient gravity for further action by ICC (A-17)
-court will consider in determining unwillingness: whether decision was made for purpose of shielding person
from criminal responsibility, unjustified delay, proceedings not conducted independently/impartially (A-17)
-preliminary rules regarding admissibility (A-18)
-challenges to jurisdiction of court & admissibility can be made by (a)an accused (b)state which has jurisdiction
over a case on grounds it is investigating or prosecuting (c)state from whom acceptance of jurisdiction is
required under (A-12)
-no person shall be tried for crimes for which they have already been convicted or acquitted, whether in this
court or another, unless the proceedings in the other court were for purpose of shielding from criminal
responsibility or were not independent or impartial (A-20)
-court shall apply this statute, treaties & rules of IL & failing those, general principles from national legal
systems (A-21)
-definition of crime construed strictly, ambiguity to be interpreted in favour of accused (A-22)
-in event of change of law, apply law more favourable to accused (A-24)
-individual criminal responsibility for committing crimes & ordering, soliciting or inducing such crimes (A-25)
-no jurisdiction over person under 18 (A-26)
-official capacity is irrelevant (A-27). Superior orders no excuse unless the person was under a legal obligation
to obey orders of the government or the superior in question or person didn’t know it was unlawful (A-33)
-military commander responsible for crimes of forces under his command & control if he knew/should have
known & if he failed to take all necessary & reasonable measures to prevent or repress their commission (A-28)
-no statute of limitations (A-29) - mental element required (A-30)
-exclude criminal responsibility on grounds of mental disease, intoxication, self-defence or defence of another
person (31)
                                                                                                                     5
International Criminal Court Continued
-160 countries went to Rome for the conference even though there are 191 in the UN
-view of majority of states was that the statute should not should basically be codifying customary IL
-139 countries have signed the statute and 98 ratifications
-Preamble of Rome statute says it’s dealing with most serious crimes of concern to international community as a
whole, putting an end to impunity and requiring accountability for the most serious crimes
-ICC is not judicial organ of UN, ICJ (World Court) is & deals only with state to states disputes & not criminal
matters. ICC set up to be separate from politicized UN, needed credibility so ICC is a free-standing
-ICC has 4 bodies: 1)assembly of state parties that meet once a year 2)Registry 3)Office of the prosecutor
4)Judges - they are all completely separate and isolated from one another
-A-12 –only 1 state need be party to Rome Statute - US wanted as precondition to jurisdiction for a case that did
not come from SC that both countries should be party to the treaty, fear of politically motivated prosecutor

-ratification = formal confirmation by signatory states.
-once int’l agreement comes into forces it is registered w UN Secretariat (art.102 UN Charter, Art. 80 VCT)
-when a treaty enters into forces depends on intentions of parties, but failing explicit arrangements it will take
effect as soon as consent to be bound has been given by all parties (Art. 24 VCT)
-Reservation – unilateral statement made by a state where it purports to exclude or modify the legal effect of
certain provisions of the treaty in their application to that state
-state cannot become party subject to a reservation unless all other contracting states accepted the reservation
-recent practice of indicating in treaty which provisions can and cannot be subject to reservations

Reservations to the Convention on Genocide Case
-whether can make a reservation depends on reservation’s compatibility with object/goal of treaty (Art.19)
-if a party to the convention objects to a reservation which it considers to be incompatible with the object and
purpose of the convention it can consider the reserving state as not a party to the convention
-a country is only bound in the treaty to the other states who have accepted its reservation, and only states which
accept the reservation will be bound to that country. Reservations are used to encourage larger participation

Legal Effects of Treaties
-a treaty is binding and must be performed in good faith
-where there are successive treaties that latter prevails unless otherwise indicated
France v. Switzerland – Free Zones Case
-treaty not binding on a third party except to the extent that they have accepted it
-must be decided on case by case basis where the states which have stipulated in favour of a third state meant to
create for that state an actual right which the latter has accepted as such
Interpretation of Peace Treaties Case
-breach of a treaty obligation cannot be remedied by court revising treaty
-where one party fails to appoint a representative where obligated to do so, the UN is not authorized to appoint
the representative upon the request of the other party to the dispute

Operation of Treaties/Interpretation
-interpretation of treaty by 1 party is not binding on other party (American & British Claims Arbitration)
-amendments are restricted to the parties that consent to them (Art. 40(4)), parties who consent to amendments
are still subject to the old agreement with regards to parties that have not consented (41)
-Article 39 VCT – a treaty may be amended by agreement between the parties
-a state that becomes a party to the treaty after its amendment will be considered a party to the amended treaty,
except in relation to a party that has not accepted the amendment (40(5))
-jus cogens: an open set of peremptory norms of international law that cannot be set aside by treaty or
acquiescence, but only by the formation of a subsequent peremptory norm of contrary effect
                                                                                                                6
        Termination and Suspension
-although Canada became a self-governing nation, Ashburton treaty was still in force & effect, binding on all
parties until new treaty overriding/revoking Ashburton treaty comes into force. (Ex Parte O’Dell & Griffen)

Fisheries Jurisdiction Case (Jurisdiction) UK v. Iceland
-Rebus Sic Stantibus: contracts may become inapplicable through a fundamental change of circumstances
-Art. 62 VCT – change in circumstances must have been fundamental
-1961 treaty: any dispute over fisheries jurisdiction should be referred to ICJ, changed circumstances would have
to be with regards to jurisdiction of ICJ BUT only change Iceland is alleging is change in fishing techniques

-Amoco International Finance v. Iran–neither change of circumstances nor breach automatically terminates treaty
-treaty may be SUSPENDED by consent of all parties (Art.51 VCT) or by agreement among some parties
provided their action does not prejudice rights & obligations of other parties or purposes of treaty (At.58VCT)
-a treaty that is incompatible with an earlier agreement on the same subject-matter will impliedly terminate or
suspend that agreement in accordance with the apparent intentions of the parties (Art. 59 VCT)

Customary International Law
-A state that has actively participated or acquiesced in creation of customary law is bound by it. Only way for a
state to say they are not bound by customary law is by showing their consistent objection during the time the
law was customary. Custom is accepted as law because of a)consent b)estoppel c)reasonableness
-there can be general customary law, regional customary law or customary law between 1 or 2 states
-UN resolutions do not instantly create IL but are useful in terms of expressing the opinions of states

North Sea Continental Shelf Cases – Federal Republic of Germany v. Denmark & v. Netherlands (ICJ)
-Germany saying GC on Continental shelf did not govern them as Germany had signed but had not ratified.
[Denmark & Netherlands had ratified] A treaty can only obligate state parties to it BUT if GC had codified
customary IL at time it was adopted it would have been a parallel rule of custom at the time of the dispute
-number of ratifications & accessions to GC insufficient to have become a binding rule even for countries not
party to it, no customary rule had crystallized, convention not applicable to Germany as a non-party.
-passage of a short period of time does NOT bar formation of new rule of customary IL BUT within period in
question state practice would have to be both extensive & virtually uniform & should have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is involved
A)acts concerned must amount to a settled/general practice (doesn’t have to include every state)
B)they must be such or be carried out in such a way as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it
-3 possibilities: 1)GC was codification of customary IL 2)states amending domestic practice so that customary
IL was being crystallized in GC 3)following its adoption convention was adopted unilaterally by states into their
domestic law – none of these were in play, treaty was not representative of customary IL when dispute arose

Dissent: number of examples of State practice, custom can’t be mathematically & uniformly decided
Dissent Sorensen: a convention adopted may constitute decisive evidence of generally accepted new rules of IL
– process over 25 years rules of GC on Continental Shelf have attained status of generally accepted rules of IL
Right of Passage Over Indian Territory Case – Portugal v. India
-long continued practice between 2 states accepted by them as regulating their relations can form the basis of
mutual rights and obligations between 2 states, regional customary rules developing through bilateral practice

Military Activities in and Against Nicaragua: for a rule to be established as customary the corresponding
practice need not be in absolutely rigorous conformity with the rule
                                                                                                                     7
Asylum Case – Colombia v. Peru (regional customary rules)
-so much inconsistency in rapid succession of asylum conventions that it is not possible to discern any constant
& uniform usage, accepted as law. Limited ratifications reveal that Montevido Convention is not merely
codification of principles already recognized by Latin-American custom

D)General Principles of Law
-IL recruits many of its rules and institutions from private systems of law/municipal systems and look for
general principles that are common to the institutions (International Status of South West Africa Case)
-court has some freedom to consider principles of equity as part of the IL which it must apply (Diversion of
Water from the Meuse Case (Netherlands v. Belgium). Court whose task is by definition to administer justice is
bound to apply equity (Continental Shelf (Tunisia v. Libya))
-customary IL cannot be expected to specify the equitable criteria to be applied (Gulf of Maine Case: ICJ)

-Art. 59 ICJ Statute - no practice of stare decisis, decisions only binding on parties before court
-GA of UN is empowered to make “recommendations” (art. 10-16) not considered binding per se but can have
value as means for determination of IL because they represent the views of states that have voted but if there are
frequently overwhelming majorities could potentially look to GA res. as subsidiary means for determining
customary IL in the making. If there is a small minority voting against, what does that do? Voting patter matters

Texaco v. Libya
-2 sets of resolutions of UN GA, 1st resolution said if there is nationalization of natural resources there has to be
prompt & adequate compensation. New resolutions that said that there should be appropriate compensation.
What does appropriate mean? Prompt, adequate, full? Controversial
-Looking at resolutions: legal language v. political rhetoric, voting pattern, statements as to why states voted the
way that they did, subject matter & state interests, weigh relevance of conflicting resolutions

Legality of the Threat or Use of Nuclear Weapons Case
-considering significance of UN GA resolution for prohibition of the threat or use of nuclear weapons on the
formation of customary IL
-resolutions under consideration were adopted with substantial numbers of negative votes and abstentions – they
fall short of establishing the existence of an opinion juris on the illegality of the use of such weapons

International Codes of Conduct (voluntary and binding)
-legal effects of “voluntary codes” depend on the intentions and competencies of the declarant States and
organizations as well as on the content, acceptance and actual application of code provisions. Some codes of
conduct, although not amounting to IL, are extremely influential & may become obligatory through other means

Chapter 2 – International Legal Persons p11-22
States and Statehood
-The state as a person of IL should possess a)permanent population b)defined territory c)government
d)capacity to enter into relations with other states – Montevideo Convention on Rights & Duties of States
-BUT border conflicts in many countries, governments which aren’t necessarily stable. Rights & duties of states
found in Art.2 UN charter

-Aaland Island’s Case: Finnish Republic did not become a sovereign state until a stable political organization
created & public authorities could assert themselves without assistance of foreign troops
-until other states accept the existence of the new state, it is prevented from entering into diplomatic relations
-Art. 4 UN Charter: membership in the UN is open to all states, affirmation by SC & GA is necessary
-independence essential factor for statehood, must be able to exercise SD free of authority of another state
                                                                                                                     8
Austro-German Customs Union Case (meaning of the word “independence”
-independence of Austria is the existence of Austria as a separate state & not subject to authority of any other
state or group of states. Independence is thus no more than the normal condition of States according to IL.

-restrictions upon state’s liberty do not affect its independence, so long as they do not place state under legal
authority of another state. Sovereignty & equality are the cornerstone of IL

Island of Palmas Case: Netherlands v. United States: independence must be demonstrated in order to acquire
statehood, but once that status is achieved the state has a legal right to its continuance

Declaration on Principles of IL Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the UN (Doc. Supp.)
-principle that states shall refrain in their international relations from the threat or use of force
-principle that states shall settle their international disputes by peaceful means
-principle concerning duty not to intervene in matters within the domestic jurisdiction of any state
-duty of states to co-operate with one another in accordance with the Charter
-principle of equal rights and self-determination of peoples
-principle of sovereign equality of states
-principle that states shall fulfill in good faith the obligations assumed by them in accordance with the charter
-Military Activities In and Against Nicaragua: court held that the adoption of the declaration by states affords an
indication of their opinion juris as to customary IL on the question of the less grave forms of the use of force

Chapter 9 –pp534-547 – Jurisdiction over The Person
Abduction From a Foreign State
-mala captus bene detentus – it doesn’t matter how bad the capture is as long as the detention is fine. Adolf
Eichman – escape after WWII to Argentina, Israelis take him to Israel. He argues his forcible abduction
negated jurisdiction of Israeli court, court says tough luck, enemy of human kind so there was universal
jurisdiction. Argentina objected to violation of their sovereignty, Israel said sorry. [mala captus bene detentus]

-Stance in Canada, US and UK has been that a fugitive should not succeed in escaping trial because he/she was
illegally brought into jurisdiction of the prosecuting state BUT the most definite way of deterring police from
willful lawlessness is to make it clear that criminals will not be tried who have been illegally secured

United States v. Toscanino (US CA 1974)
-agent of US gov’t abducted Toscanino (Italian) in Uruguay, tortured, US had made no request for extradition
-due process requires a court to divest itself of jurisdiction over a defendant where presence of accused person
has been illegally obtained
-difference between this case & Ker-Frisbie is now UN charter talks about state sovereignty. Here if you can
prove torture we will decide in your favour BUT he did not have physical evidence or witnesses so his challenge
failed. Exception to Ker-Frisbie - if there has been a complaint of torture then jurisdiction should be denied

Ker v. Illinois (1886): US extradition treaty with Peru, US issued warrant but it couldn’t be delivered. SC held
abduction did not violate due process as due process only required party be regularly indicted & brought to trial
Frisbie v. Collins (1952): Due process is satisfied when accused is convicted crime after being fairly apprized of
charges against him after a fair trial in accordance with constitutional safeguards
-Ker-Frisbie rule – mala captus bene detentus – it doesn’t matter how you get the person back into the
jurisdiction as long as they get a fair trial once they are there
Cook v. US (1933): under US/UK Treaty forcible seizure was incapable of giving the district court power to
adjudicate title to the vessel regardless of the vessel’s physical presence within the court’s jurisdiction
                                                                                                                      9
United States v. Alvarez-Machain (Supreme Ct. 1992)
-Mexican resident kidnapped by US, extradition treaty says nothing about obligations of US & Mexico to refrain
from forcible abductions of people from territory of the other, or consequences if such an abduction occurs.
Because extradition treaty did not expressly stipulate extradition was the ONLY way it did not rule out
abduction, to infer such goes beyond established precedent and practice. US was not in violation of the
Extradition treaty and there the respondent’s forcible abduction does not prohibit his trial for criminal offences
[saying it’s allowable to abduct people so long as there is no explicit clause saying “thou shall not abduct”]
Dissent: - violation of Mexico’s territorial integrity, treaty was designed to cover entire subject of extradition.
Provisions would serve little purpose if requesting country could simply kidnap the person

State v. Ebrahim: South African trial court had no jurisdiction over someone who had been lured across border.

United States v. Yunis: Accused lured & arrested in international waters by FBI agent, found guilty of hijacking
an airline in Lebanon and sentenced. [could argue because arrested in international waters]
Jaffe: Jaffe kidnapped in Toronto by 2 bounty hunters employed by the US bail bonding agency. Jaffe was
given early parole. Bounty hunters were subsequently extradited to Canada & convicted of the abduction.

-Canadian Derek Hills takes off towards Detroit, Ontario police officer follows him into US & takes him back
to Canada. US sent Canada diplomatic note asking Canada’s intention, Canada said they would send Hills back
& then ask for his extradition – US saying don’t abduct people off our territory

Chapter 6 – The World Court p344-383
-judicial organ of UN, 1 of 6 principal organs, replaced Permanent Court of Int’l Justice (League of Nations)
-all members of the UN are ipso facto parties to the Statute because they are party to the UN Charter
-court composed of 15 members elected by GA & SC, permanent members of SC all have a national as a judge
-parties to a case may appoint a judge ad hoc if no member of the court has their nationality
-no member of court may participate in decision of any case in which he previously took part (A-17(2) Statute)
-to represent the major legal systems of the world and to be representative, practice has been 5 judges from
western Europe and North America, 2 from Eastern Europe, 3 from Africa, 2 from Latin America, 2 from Asia
-only states may be parties before the court (Art.34(1))
1)deals with state to state disputes 2)requests from UN specialized agencies for references on legal questions
-a state must become party to the statute as (a)members of UN (b)non-members who accept conditions laid
down by the general assembly (c)state accepts jurisdiction of the court and undertakes to comply in good faith
with the decisions of the court and to accept all the obligations of a Member of the UN (Art.35 Statute)

Jurisdiction
-court does not have compulsory jurisdiction over disputes btn parties with standing – parties must consent
-States can accept jurisdiction of court by (a)special agreement [treaty] (b)compromissory clause to submit
disputes arising out of treaty [submit agreed set of facts for court to adjudicate] (c)declaration saying states
will accept jurisdiction of court on basis of reciprocity of other states (Art. 36) No compulsory jurisdiction
-treaties can provide for recourse to WC in case of dispute over application of treaty (ex. Genocide Convention)
-special agreement confers jurisdiction without question & can be used even though alternative bases of
jurisdiction exist – (Art. 40) all that is required is that the subject of the dispute & parties shall be indicated
-court has the power to determine whether or not it has jurisdiction (Art.36(6))
-several states have failed to appear to answer cases brought by unilateral application. Court may give default
judgment provided it is satisfied that it has jurisdiction & the claim is well-founded in fact and in law (Art.53)
-other states may intervene (Art.62&63)
-ex. Could US take Iran before ICJ with respect to a violation of a treaty dealing with diplomatic immunities to
which US & Iran were both parties? Iran would not appear unless ICJ looked at broader issue of involvement
of CIA during Shah’s regime. *World Court has a limited mandate unless parties consent. Iran did not appear,
court on its own looked at the evidence & gave judgment in favour of the US
                                                                                                                   10
 -some states have so many reservations it would be difficult to take them to ICJ (India). Respondent state
can rely on the reservation put forth in the declaration of the applicant state. Can the number of reservations to
an optional clause declaration defeat the purpose of depositing the declaration in the first place?

El Salvador v. Honduras: Nicaragua allowed to intervene because its interest might have been affected by the
court’s decision, without having to establish a jurisdictional link to the parties
Case Concerning East Timor: Court said that it was not necessarily prevented from adjudicating when the
judgment might affect the legal interests of a state which is not party to the case. BUT in this case, Indonesia’s
rights and obligations would constitute the very subject-matter of a judgment made in the absence of Indonesia’s
consent so the court refused to exercise jurisdiction

-Compulsory Jurisdiction under ICJ Statute Art.36(2): 64 states have accepted compulsory jurisdiction – mostly
subject to reservations involving limitations ranging from subject-matter to time frame. Common reservation is
to exclude court’s jurisdiction with regard to matters falling within domestic jurisdiction – ex. US declaration
*reservations under Art. 36(2) can be invoked by the other party to the dispute before the court, the court only
has jurisdiction over matters that are common ground between the opposing states

Anglo-Iranian Oil: jurisdiction conferred upon court only to extent the 2 declarations coincide in conferring it
Norwegian Loans Case: France (claimant) reserved all matters within its domestic jurisdiction. Norway
(defendant) invoked this reservation against France leaving the court without jurisdiction to hear the case

-procedural restrictions not subject to the condition of reciprocity (Military Activities in and Against Nicaragua)
-critical date for establishing commonality of obligations is the moment of the filing of an application to
commence a case. Reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own
declaration, whatever its scope, limitations or conditions (Right of Passage Over Indian Territory Case)

Cameroon v. Nigeria: Nigeria objected to jurisdiction of ICJ because Nigeria did not know Cameroon had
deposited a declaration. Any party to the statute makes standing offer to other States parties which have not yet
deposited a declaration of acceptance. When one of those states accepts that offer by depositing its declaration
of acceptance, no further condition needs to be fulfill. Court had jurisdiction to adjudicate the dispute

Spain v. Canada – Fisheries Jurisdiction Case
-amendment to Canada’s declaration excludes court’s jurisdiction over disputes arising out of or concerning
conservation & management & fisheries is such a dispute. [Canada seized Spanish ship fishing off Grand Banks]
-conditions do not derogate from wider acceptance, the operate to define the parameters of the State’s acceptance
-dispute came within terms of reservation in Canada’s declaration therefore ICJ did not have jurisdiction
-World court was bound by reservations or treaties of the parties – so the ICJ never adjudicated merits
Nicaragua v. US: in making the declaration a State is free to do so unconditionally and without limit of time or
to qualify it with conditions or reservations. ICJ said they did have jurisdiction, US refused to turn up

Decisions of the Court – Contentious Cases
-can request special chambers – ex. Canada/US requested chamber of 5 western judges in Gulf of Maine Case,
-15 judges, cases decided by majority. Judgment is without appeal & is subject to revision only in limited
circumstances (statute 60 & 61). Decides cases according to law as found in sources in statute Art. 38
-provisional measures may be taken by the court in the course of a case when necessary “to preserve the
respective rights of either party (statute 41), but in most cases the provisional measures are not honoured
-Aegean Sea Continental Shelf: court required proof of irreparable prejudice to right in issue to warrant
provisional measures. US Diplomatic Staff in Tehran met standard because request regarding hostages was to
protect lives of its nationals & property. Standard not met in Chorzow Factory because request was for money.
Aegean Sea: a finding of jurisdiction was an essential prerequisite to pronouncing interim measures
                                                                                                                  11
Advisory Opinions
-court can give advisory opinions on legal questions put to it by GA, SC & other organs & specialized agencies
of the UN on legal questions arising within the scope of their [organ’s] activities (Charter 96, Statute 65)
-request by WHO for advisory opinion on Legality of Use of Nuclear Weapons in Armed Conflict turned down.
3 Conditions to jurisdiction on request for advisory opinion 1)agency must be authorized under Charter to
request opinions 2)opinion requested must be on a legal question 3)legal question must arise within scope of
activities of requesting agency. Political aspects of question do not deprive it of character as a legal question.
WHO did not have competence over legality of nuclear weapons so it had no authority to ask such a question

Legality of the Threat or Use of Nuclear Weapons Case
-GA asked whether threat or use of nuclear weapons was permitted in any circumstances under IL – [here court
gave its opinion because scope of GA’s activities gave it authority & mandate]
-court has authority to deliver opinion, only for compelling reasons should court refuse to give advisory opinion
-purpose of advisory opinion is not to settle disputes but to offer legal advice – request does not have to relate to
specific dispute. Don’t look at whether opinion is needed, political history or impact on negotiations
-threat or use of nuclear weapons would generally be contrary to rules of IL, but couldn’t conclude whether it
would be lawful or unlawful in an circumstance of self-defence [no customary or treaty law on point]

-GA asking ICJ for opinion on barrier put up by Israel. Argued this is not a legal question but a political one
-Interpretation of Peace Treaties Case: ICJ’s reply is of an advisory character & has no binding force, so no
state can prevent giving of an advisory opinion on grounds state has not consented to court’s jurisdiction

Judicial Review Power for the Court?
-question of whether court has power to review the legality of the acts and decisions of other UN organs
-status quo at the moment is that UN Charter & majority jurisprudence of ICJ is that the ICJ is not going to rule
on whether the SC was right or wrong in adopting a particular resolution, they haven’t done it

Aerial Incident at Lockerbie Case (Libya v. UK)
-American plane, Libyan government put bomb on board, plane explodes over Scotland. US, UK & Scotland
claiming jurisdiction. ICAO treaty on civil aviation, all 3 states had ratified convention obligating them 1)to
amend their domestic criminal law to enable them to prosecute if crime was committed in their airspace, on a
plane registered in their country, if your nationals was one of the alleged perpetrators or victims
-“Aut dedere, aut judicare” – Extradite or prosecute
-US & UK requested surrender of accused to stand trial, UN adopted resolution urging Libya to respond to
request, Libya brought a claim before ICJ against US & UK arguing there was no extradition treaty in force
between them & that it had jurisdiction to prosecute the accused. Libya requested provisional measures to
prevent further action by the US including measures by the SC. SC imposed sanctions against Libya
-under Lybian domestic law can’t extradite their citizens, didn’t believe they would get a fair trial in UK or US
-ICJ found it did have jurisdiction but skipped over judicial review issue & focused on date at which Libya had
brought its original application to the ICJ for provision measures at which time no binding SC resolution existed
*if a resolution of SC is in conflict with a treaty, SC resolution trumps treaty. Art. 25 UN Charter: members
of the UN agree to carry out the decisions of the SC – controversial, should SC with its limited membership be
able to override a multilateral treaty that has basically global support including contesting parties in the case?
-Dutch parliament passed a piece of legislation making former US military base in Netherlands Scottish for
purpose of the trial, judges were Scottish, applied Scottish criminal law, 1 was acquitted & 1 was convicted
-Lybia agreed to pay compensation to the relatives of the deceased

Dissent Lockerbie
-to read in a power of judicial review on the part of the ICJ would subvert the integrity of the Charter
-Certain Expenses of the UN: each organ of the UN must determine its own jurisdiction
-Nicaragua v. US: ICJ unwilling to say that the Security Council had been wrong in its decision
                                                                                                                 12
-if ICJ had power of judicial review SC would no longer have primary responsibility for int’l peace & security
-only states can be parties before court, and the decisions are only bindings on parties to that particular case

Significance of the ICJ
-concern over the limited number of disputes that have gone before the court
a)governments reluctant to surrender control over their affairs, unpredictability of judicial decisions
b)states don’t seem to have much confidence in judicial settlement and the ICJ
c)parties may believe there should be a change in the law and don’t think they will get it from the court
Address by the President of the ICJ
-ways in which the ICJ has acted as the principal judicial organ of the UN: a)contributes to peaceful settlement
of international disputes b)most authoritative interpreter of legal obligations of States in disputes between them
c)acted as the supreme interpreter of the UN charter and of the legal obligations of states under the Charter
-court is the only truly universal body of general jurisdiction, court lacks resources, it is understaffed

-possible tension between court as “most authoritative interpreter of legal obligations of States in disputes” &
idea that states “may have recourse to court in parallel with other methods of dispute resolution?

US Diplomatic Staff in Iran – both party to treaty & optional protocol which provided that in event of any
dispute as to obligations under the treaty that they couldn’t settle their dispute by diplomatic relations then the
ICJ would have jurisdiction over the dispute.
-when 1 party not showing up before ICJ how are you going to enforce judgment? Ask SC for assistance
-could argue that public condemnation by the court probably added to the political negotiations that followed
between the US and Iran, hostages were eventually released. Concessions Regan administration made to Iran
was that US courts would not entertain any civil suits against government of Iran- controversial at time in the US

Chapter 5 – Interstate Relations
1)Recognition of states and governments 2)State immunities 3)Diplomatic Immunities
-2 possibilities of recognition, recognition of new states and recognition of new governments
-trend today is to recognize new states, but not comment on new governments (ex. Canada)
-No duty to recognize new state or gov’t, question of national self-interest & if you want to have relations with that state
-no single organ with authority to determine claims for admission by new states and governments
-recognition means that all the rights and obligation of international law apply to that state
-recognition: free act by which one or more States acknowledge existence on a definite territory of a human
society politically organized, independent of any other existing State, a)capable of observing obligations of IL,
& they b)manifest therefore their intention to consider it a member of the international community
-recognized government cannot exist in the absence of a recognized state
-unconstitutional changes of government do not upset the continuation of recognition of the state itself
-Tinoko– continuous statehood even when a government comes into power by revolutionary means
-disintegration of former Yugoslavia, disintegration of USSR – after a certain period of time these countries
became part of regional organizations and recognized by other states
-acceptance as a member of UN does not mean collective recognition by all other countries in UN – ex. state of
Israel. Recognition by a regional organization is not synonymous with bilateral recognition btn states
-most take the position that IL is binding on unrecognized states or governments

Approaches to Recognition of Governments
Express Recognition – every unconstitutional change is subject of a recognition statement
Tacit – no statement, position inferred from nature of relations (Canada, flexible, lacks clarity) Recognition may
be legitimately inferred from conclusion of a bilateral treaty & appointment & acceptance of diplomatic &
consular agents. A country may wish to make a statement withholding or according recognition
                                                                                                                    13
-Canada recognizes only new or altered states (Estrada doctrine). Canada continues to recognize a state even
if gov’t comes into power by coup d’etat BUT whether that government is in effective control is not so clear cut
-recognition of a government should be withheld when the use of force has occurred
-no particular form for recognition, diplomatic note, personal message to Head of State, public statement etc.

-in Canada, court will ask federal department of foreign affairs for executive certificate saying whether Canada
recognizes that state and the effective date. Might be circumstances where COURT must look at whether new
government is under sovereign control if foreign ministry won’t say anything about the government

Disintegration of Yugoslavia
-EU issued guidelines for Recognition of New States in Eastern Europe & SU, recognizes states that have
constituted themselves on a democratic basis, have accepted appropriate international obligations and have
committed themselves in good faith to a peaceful process and to negotiations
-requires respect for UN Charter, guaranties of rights to minority groups, respect for frontiers, acceptance of all
disarmament commitments, commitment to settle succession and regional disputes by agreement
-recognition of republics as independent states implies extinguishment of recognition of the former Yugoslavia,
but there is still a seat at the GA with Yugoslavia on it

Tinoco Arbitration – Great Britain v. Costa Rica (continuity of statehood)
-new government passed a law nullifying many of Tinoco regimes’ obligations towards foreigners
-no substantial evidence that Tinoco was not in actual peaceable administration without resistance until a few
months before he resigned therefore Tinoco government was sovereign
-generally non-recognition is appropriate evidence government does not have independence, BUT when
recognition is denied based on illegitimacy of government’s origin the non-recognition loses some weight
-failure of GB to recognize Tinoco government can be used as evidence to disprove GB’s contention that
obligations that government undertook are binding, BUT that does not mean GB cannot changes its position
towards Tinoco gov’t [a government in recognizing or refusing to recognize a nation can change that position]
-new government is still bound by obligations entered into by previous government, they can’t simply opt out of
the previous government’s obligations, there is a process for treaty breaking etc.

National Effects of Recognition - Rights:
1)to sue in courts of the recognizing state 2)to take control of state property located in recognizing state 3)to
have effect accorded to its legislative and executive acts of state; and 4)to claim immunity from suit in the
courts of the recognizing state for itself, its property, and its representatives

-just before Germany invaded Poland curators of museum took Polish cultural property. Polish gov’t went into
exile, Canada didn’t want to enter an official treaty with Polish exiles, agreement made with chief archivist of
Canada to accept property into Canada without any obligation as to its safekeeping
-war ends, Polish government in exile doesn’t get back into power. Polish exiles empty building & take stuff to
Quebec to a monastery & convent hospital. Duplessis was premier.
-Canada recognized new communist regime & withdrew recognition of exiled government. BUT Duplessis said
Quebec was not going to recognize the new communist government & stuff was property of the Catholic church.
Property didn’t go back to Poland until the 1960s
-courts typically ask the government whether it has granted recognition or not by addressing the Secretary of
State for Foreign Affairs with a request for an Executive Certificate. Caveat is that if Canada simply says they
recognize the state and doesn’t comment on its government, court would be at liberty to talk about whether the
government is in effective control and look at the facts of the particular case. Does court have an obligation to
go into issues of effective control before deciding to enforce the laws of the government in question?
                                                                                                                14
Re Chateau-Gai Wines Ltd. and AG for Canada: whether Canada-France Trade Agreement of 1933 was
ever in force should be determined by way of a certificate from the Crown as to Canada’s position
-a statement or certificate on the Crown’s behalf is the best way to determine whether the party is a foreign
sovereign state (Arantzazu Mendi, Duff Development)

Republic of Somalia v. Woodhouse Drake: factors in deciding whether a gov’t exists are:
a)whether it is the constitutional government of the state
b)the degree, nature, and stability of administrative control that it exercises in the state
c)whether the British government has dealings with it, and if so, the nature of those dealings
d)in marginal cases, the extent of international recognition it has achieved

Luther v. Sagor (1921 British CA) Old case but never overruled
-Luther’s factory was confiscated & nationalized by Soviet Government, Sagor purchases factory
-Trial judge asks Britain for executive certificate stating whether Britain recognized Soviet gov’t because if so
Britain will enforce Soviet decrees without questioning them. Soviet Gov’t was not recognized by Britain as the
sovereign state so they were not able by decree to deprive plaintiff company of its property
Appeal – new evidence Britain had recognized Soviet gov’t as the de facto government of Russia, so acts of that
government must be treated by the courts as acts of a recognized sovereign state
-De jure government is one which ought to possess powers of sovereignty though at the time it may be deprived
of them. De facto gov’t is one which is in possession of them although possession may be wrongful/ precarious
*recognition is retroactive and it extends back in time to validate all the public acts of the recognized
government since it came into power – critical date here is nationalization

Haile Selassie v. Cable and Wireless Ltd: Selassie as de jure (legitimate) Emperor for Ethiopia recognized by
Britain claiming payment over Italian Gov’t as the recognized de facto gov’t of Ethiopia. Trial: debts owed to a
sovereign state would go to gov’t the foreign state recognizes as de jure, so the money was to go to Selassie
because that was who Britain at that time recognized as the de facto government –decision reversed on appeal
because by that time the Italian government had been recognized as the sole de jure authority over Ethiopia.
Gdynia v. Boguslawski: HOL - recognition enables & requires courts to regard as valid acts done by new gov’t
after AND before its recognition insofar as those acts related to matters under its control at time acts were done
Civil Air Transport v. Central Air Transport: retroactivity of recognition operates to validate acts of a de facto
gov’t which has subsequently become de jure gov’t, NOT to invalidate acts of previous de jure government

Carl-Zeiss-Stifung v. Rayner & Keefer (After Luther & Sagor): lack of recognition results in need to disregard
new laws made by gov’t & all executive & judicial acts done by persons appointed by that gov’t. Company
located before WWII in East Germany. Directors got out of East Germany & trying to use the IP in England,
company suing to prevent them. Britain did not recognize East Germany as a state & did not recognize its
gov’t. [so if Luther had been applied they would not recognize its laws] BUT (without overruling Luther)
Britain recognizes USSR is in control of East Germany therefore Britain recognizes laws promulgated in East
Germany [controversial decision] Asks what about marriages, are we going to say none of those are in effect?

Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd.
-Turkish forces took control, dispossessed Greek owner sued in England for conspiracy to commit trespass,
British government issued a certificate says they did not recognize the Turkish regime
-courts of this country can recognize the laws or acts of a body which is in effective control of a territory even
though the body (government) has not been recognized, at any rate in regard to the laws which regulate the day
to day affairs of the people (ex. Marriage)
-Denning: Britain might not recognize the regime for political reasons BUT courts must give effect to the rights
of private persons. Courts can look behind the certificate and determine whether in the sense of private
interactions the government is in effective control
                                                                                                                15
-other judges based their finding of a conflict of law rule that they could not set in judgment a trespass of
property abroad where the country in which the trespass took place did not consider it a trespass

Foreign Acts of State (American Act of State Doctrine)
-how far do you give effect to public acts of the foreign state in the recognizing state?

Laane and Balster v. The Estonian State Cargo & Passenger Steamship Line (caveat on Luther)
-concerning proceeds from the sale of an Estonian ship after Estonia became part of the USSR and Canada
recognized that change, USSR nationalized all ships
-SCC found that a state through its courts is not obliged to enforce decrees or judgment of a foreign state if:
1)the decrees are seeking to have extraterritorial impact (absent a treat obligation)
2)if they are dealing with revenue or tax laws (absence a treaty obligation)
3)criminal law or Penal laws, not just meaning criminal laws but also civil suits of a penal nature
4)any laws or foreign judgments which are viewed as going against the public policy of the foreign state in
which the litigation is taking place, against its conceptions of justice etc. [decrees of a confiscatory nature]
-purpose of decrees was monopoly of shipping – laws of this kind are operative only within their own territories
-critical date here is when decree was enacted because ship was outside Soviet domain in Canada
-no treaty obligating Canada to enforce legislation nationalizing the shipping industry
-there was an issue of the penal nature because the compensation for the nationalization was very low
(Caveat to Luther: even if the state recognizes the foreign government or state, there are still exceptions)

Juelle v. Trudeau: Canadian courts prepared to sit in judgment of foreign laws without regard either to the
presence or absence of recognition of the government, or to respect for foreign acts of state

Banco Nacional de Cuba v. Sabbatino (US)
-applying American Act of State doctrine even in face of breaches of IL, they will not examine the validity of a
taking of property within its own territory by a sovereign government recognized by the US
-Cuban government confiscated and then resold a cargo of sugar in Cuba
-Foreign Assistance Act of 1961: reversed Sabbatino and rescued the possibility of an application of IL by the
US courts to foreign state acts of expropriation
-Oppenheimer v. Cattermole: judge should be slow to refuse to give effect to legislation of a foreign state BUT it
is part of public policy of Britain that our courts should give effect to clearly established rules of IL
-Buttes Gas & Oil v. Hammer & Occidental Petroleum: English courts will not adjudicate on transactions of
foreign sovereign states.

State Immunities
-traditional view that a sovereign state and all its parts were immune, could not sue them in a foreign court
without its consent because that would be a violation of its sovereignty. States became traders, theory that
immunities should not be totally abrogated but should be amended
-a recognized state is entitled by IL to immunity from the jurisdiction of the courts of other states
-grown out of customary IL, been codified by states in their domestic legislation
1)Is there sufficient justification for state immunity and if so, 2)How far should that immunity extend?

The Schooner Exchange v. M’Fadden (US Supreme Court)
Cases where every sovereign is understood to wave the exercise of part of its territorial jurisdiction:
1)exemption of the person of the sovereign from arrest or detention within the foreign territory 2)immunity of
foreign ministers 3)allows the troops of a foreign prince to pass through (does not apply to ships of war)
-private individuals are not exempt from the jurisdiction of the country in which they are found
-sovereign immunity is based on issues of equality among states & unless they consent they should not be held
before a foreign tribunal. If a state allows another sovereign into its territory it is basically allowing that
                                                                                                                  16
sovereign to have certain rights including immunity

Scope of Immunity
-extends to government and governmental organs, leaders and ministers, officials and agents with respect to
official acts, public corporations acting as government organs and state owned property
-immunity granted to all phases of judicial process, the merits, before a suit and after a judgment
-distinction between a sovereign act (jure imperii) which attracts immunity and a commercial act (jure
gestionis) which no longer attracts immunity
-Canada State Immunity Act - ensure courts apply IL crystallized in Act even as IL is changed/developed
-before this legislation, the traditional Canadian position was absolute immunity for any recognized country

-Congo v. Venne: Quebec architect sued Republic of Congo for cost of his professional services. SCC denied
private Canadian citizen the right to sue. In restrictive immunity a foreign state cannot exempt them self from
jurisdiction if it was not a public act of state but rather an act of a private commercial nature. Even if there is a
restrictive theory, this was a public act of state for public sovereign purposes. Laskin in dissent said never mind
asking the Congo what the purpose of the pavilions were, Venne would say that it was a commercial contract

Canadian State Immunity Act, p287
-if a state has been recognized by way of certificate=presumption of immunity subject to certain exceptions
1)essence of dispute is of a commercial character (s.5) (commercial activity defined in s.2 a transaction, act or
conduct or any regular course of conduct that by reason of its nature is of a commercial character)
2)dispute stems from tortious conduct occurring here in Canada, death, personal injury, damages to or loss
of property (s.6) [note diplomatic immunities can get in the way of a lawsuit even if there is not state immunity]
3)if the foreign state waives its immunity in a contract or before the court
-s.2 – before immunity may be asserted it has to be shown that the foreign defendant has the status of a state
organ or agency within the meaning of s.2. “agency of a foreign state” means any legal entity that is an organ of
the foreign state but is separate from the foreign state”. “foreign state” includes any gov’t of the foreign state or
of any political subdivision of the foreign state, including any of its departments, & any agency of foreign state
*advised to sue an agency of the foreign state rather than foreign state itself, more likely to enforce judgment
-s.3 – foreign states are immune from civil suits in Canadian courts unless one of the exceptions in the Act
applies. The court is to give effect to the immunity conferred on a foreign state…notwithstanding that the state
has failed to take any steps in the proceedings
s.4 – A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by
s.3(1) by submitting to the jurisdiction of the court where it
       a)explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after
         the proceedings commence
       b)initiates the proceedings in the court; or
       c)intervenes or takes any step in the proceedings before the court
s.10 & 11 – property of a foreign state is generally immune from attachment, judgment and execution – but
immunity can’t be claimed for land, buildings, goods etc. unless they are “property of a foreign state”
s.15 – immunities granted by the Act may be lifted by the Governor in Council for any state that does not accord
Canada reciprocal equivalent immunities
-s.18 – immunity does not apply to criminal proceedings or proceedings in the nature of criminal proceedings

Edwards: printing press company in Ottawa, action against former SU for payment for printing magazine. At
that time Canada had the absolute theory and we also had obiter in Congo v. Venne that even if the restrictive
theory was in place it was still a public act.
Re Royal Bank of Canada & Corriveau & Cuba: Trying to enforce default judgment against Cuba for breach
of a lease. Court said IL appears to provide a protection against execution even if a judgment has been obtained
-Accredited diplomats in Canada out ice fishing in Ottawa, bad accident & one person killed. Termed persona
                                                                                                             17
non grata & Russian federation took driver back to Russia, put him on trial & dismissed him from civil service.
But what about compensation? There is no means to launch a civil suit here in Canada

Tests for public v. commercial acts
1)inquire into the purpose of the transaction (public act has a public object)
2)Scrutinize the nature of the action (a commercial deal is a commercial act whoever transacts it)
*no international consensus on the limits of governmental involvement in trade and commerce

ILC Draft Articles on Jurisdictional Immunities of States
-state cannot invoke immunity for a commercial transaction, except for in case of a commercial transaction
between states or if parties to commercial transaction have expressly agreed otherwise (Art.10)
-commercial transaction means for the sale of goods or supply of services, a loan or financial transaction, a
contract of a commercial, industrial or professional nature but not including a contract of employment of
persons. In determining whether it is a “commercial transaction” reference should be made primarily to the
nature of the transaction but its purpose should also be taken into account (Art.2)

Trendtex Trading Corp. Ltd. v. Central Bank of Nigeria *** (no immunity for commercial acts, agency)
-more states engaging in commercial activities so doctrine of absolute immunity no longer considered rule of IL.
Restrictive immunity gives immunity to acts of a gov’tal nature (jure imperii) but no immunity to acts of a
commercial nature (jure gestionis)
-if a gov’t goes into the market place & enters a commercial transaction, that gov’t department should be subject
to all the rules of the market place & therefore within the jurisdiction of British courts
-a foreign department of state does not to lose its immunity simply because it conducts some of its activities by
means of a separate legal entity. Test is to look at the function and control of the organization, whether it was
under governmental control and exercised governmental functions. BUT regardless there is no immunity in
respect of commercial transactions, even for a government department
*issue of immunity of a national central bank now governed expressly by State Immunity Act s.11(4) & (5)

United States of America v. Public Service Alliance of Canada
-US claiming immunity from Canadian naval base employees union certification proceedings
1)What is the nature of the activity? 2)Are the proceedings (union certification) related to that activity?
-issue is whether the effect on commercial realm is sufficiently strong as to form a “nexus” so that it can truly be
said that proceedings “relate” to commercial activity. Effect of union certification proceedings on commercial
activity is merely incidental, and cannot trigger the application of s.5 of the State Immunity Act
-Nature of the Activity: No activity of a foreign state is more inherently sovereign than the operation of a
military base. US must be granted full authority to manage and control employment activity at the base
-Do the certification proceedings relate to the commercial aspect of the employment activity? Yes, constitutes
an unacceptable interference with American sovereignty, US must remain immune from such proceedings
Dissent Cory
-Canadian definition of commercial activity does not bar consideration of purpose, American does
-employment of workers is not a public act, same work on occasion performed by private sub-contractors, hiring
of these workers is a private act which by its nature is a commercial activity, claim of immunity must be rejected

Arar: Could Arar sue Syria or individual agents in Ontario for alleged torture done to him while in their hands?
No, our state immunity act s.6 says that the personal injury has to have occurred in Canada. If a dual-citizen is
injured in the state of their other nationality customary IL prevents Canada from espousing the claim

Bouzari v. Iran (this is a trial decision but her decision was confirmed the ON CA)
-not a Canadian citizen when he was tortured (different from Arar), he was an Iranian citizen who alleges being
tortured in Iran. Bouzari argued because Canada was a party to Convention on Suppression of Torture that
                                                                                                                  18
stipulates that compensation should be given to victims of torture and because prohibition of torture is jus
cogens, Canada was obligated to allow for suit to take place BUT the obligation is actually on the state in whose
territory the torture has taken place to compensate. [action is barred by s.3(1) of the State Immunity Act]
-arguing commercial exception (s.5), tort exception (s.6) or that punitive tort damages are in the nature of a
criminal proceeding (s.18) – exceptions to state immunity
-court says punitive damages are a civil proceeding and not criminal – s.18 does not apply
-cannot characterize nature of the activity here as commercial. Regardless of purpose of ransom, exercise of
police & law enforcement powers are inherently exercises of governmental authority and sovereignty
-s.6 only permits a Canadian court to take jurisdiction if the injury occurs in Canada.
-Convention on Torture does not requires a state to provide a civil remedy for acts of torture by a foreign state
outside the forum, nor does it require Canada to make an exception to state immunity for such acts. Nor is there
a principle of customary IL which provides an exception from state immunity where an act or torture has been
committed outside the forum, even for acts contrary to jus cogens
-s.7 Charter challenge fails because the Charter does not apply to Iran or to acts committed in Iran
- Arar on a stronger footing than Bouzari to sue through Canadian courts because he was a Canadian citizen at
the time. (if state immunity Act was amended to provide possibility of seeking compensation for torture
committed in another country there probably wouldn’t be much international public outcry, particularly as there
is already an exception for commercial acts)

Immunity of State Organs and Property
Mellenger v. New Brunswick Development Corporation (1971)
-a province is a sovereign state in its own right and is entitled to claim sovereign immunity
-here the corporation promotes industrial development of the province in the way that a government department
does, it is part and parcel of the government of New Brunswick. Corporation is the alter ego of the government
and can claim sovereign immunity and cannot be sued here [in those days entitled to absolute immunity, now
you would say they are entitled to the presumption of immunity then go through exceptions]

Ferranti-Packard Ltd. v. Cushman Rentals: New York State Thruway, whose function is to construct and
operate the highway system in New York State, was denied immunity in the Ontario Courts on account of its
independence in establishing its policies and executing its responsibilities

-evidence used to determine the status of a state-owned corporation or other separate legal entity is enabling
legislation, organization of the enterprise, its functions and the degree of political control (Trendtex, Mellenger)
-entity seeking immunity does not have to be constituted as a government agency, it is sufficient if it is
authorized to act on behalf of the government for activities impugned in the case (Walker v. Bank of New York)

Immunity of State Property
Juan Ismael and Co. Inc. v. Government of Indonesia
-if the foreign government is required as a condition of obtaining immunity to prove its title to the property in
question the immunity ceases to be of any practical effect. A foreign government is not bound to prove its title
to the interest claimed in order to obtain immunity, but it must produce evidence to satisfy the court that its claim
is not merely illusory nor founded in a title manifestly defective

Waiver of Immunity
-waiver of immunity to jurisdiction does not necessarily incur loss of immunity from specific judgments (s.11)
or from attachment or execution of property (s.12)


   D. Diplomatic Immunities
                                                                                                                 19
-s.6 VC on Diplomatic Relations authorizes Minister for External Affairs to grant consular privileges to the
office & representatives of a political subdivision of a foreign state where its duties are substantially same as a
consul, provided reciprocal treatment is afforded to agents of Canadian provinces in that state
-diplomatic immunity means immunity from jurisdiction of foreign state, you are still culpable for the crime but
host’s courts do not have jurisdiction to prosecute. Key: diplomat must be formally accredited by host country

-Pinochet in UK, had Chilean passport & diplomatic privileges in Chile. Arrested because Spain makes an
extradition request. Question is whether Britain had recognized his diplomatic status because he was no longer
the president so he wasn’t accredited. Basically found that he had no immunity. Argued when the crimes were
committed he was the head of state, court took the view that he might have been head of state then but that he
wasn’t now. How can ordering executions be considered an official act of state?
-request from Minister a certificate saying whether the person is accredited in Canada and as of when
-family of diplomat have the same immunities as the diplomat himself

Diplomatic Asylum
-the premises of a diplomatic mission are immune and inviolable (art. 22 VC on DR)
-makes no reference to practice of granting asylum to others who enter there – but there is little host states can
do if a foreign mission provides asylum to a political refugee
-US views American embassies abroad as being little parts of the US but the vast majority of states consider
their embassies as located on ex. Belgium soil so we would in most cases invite host country to send police in
-pursuant to s.7 we have the ability to prosecute in Canada any member of the public service in Canada for
crimes committed abroad or Canada can waive the person’s immunity so they can be prosecuted abroad
-VC on Diplomatic Relations viewed as codification of customary IL. General interest of states to protect their
diplomats abroad so pressure can’t be put to bear on the sending state by prosecution of the diplomat

Former head of state of Panama Noriega seeking asylum from the Vatican when the US went into Panama. The
US blasted music and eventually Noriega came out of the mission and then was taken to US for prosecution

Legal Character and Duration of Immunity
Dickinson v. Del Solar (accident when car being used for private purposes) Diplomatic privilege does not
import immunity from legal liability but only an exemption from local jurisdiction. It is the privilege of the
sovereign by whom diplomat is accredited & if sovereign waives immunity there is legal liability for the agent

Ghosh v. D’Rozario: whether a defendant’s diplomatic immunity which comes into existence after an action
has been started necessitates a stay of those proceedings. General principles that confer diplomatic immunity
against initiation of proceedings confer an equal immunity against continuation of pre-existing proceedings

Waiver of Diplomatic Immunity (art. 32 VC) A waiver must be express and does not extend beyond
immunity from suit unless a separate waiver of immunity from execution is also made
-R. v. Madan: representative of the state must waive the immunity, not the person who is entitled to the
privilege

US Diplomatic and Consular Staff in Tehran Case – US v. Iran ICJ
-diplomatic American personnel taken hostage, embassy taken over 1979, president US Jimmy Carter
-ICJ could exercise jurisdiction because both countries were party to VC on Diplomatic Relations & its optional
protocol which provides for the compulsory jurisdiction of the Court in disputes about the convention. After the
revolution Ayatollah’s regime does not withdraw from multilateral treaties even though they could have
-even though Iran wasn’t appearing there was no default judgment, the US still had to make its case
-first phase, no evidence during takeover that the militants were state agents, no direct responsibility or
imputability of Iran, there was still responsibility because Iran was negligent & lacked due diligence to protect
                                                                                                                  20
the US embassy & those inside as they were obligated to do under customary IL & VC of 1961.
-Art. 22 VC – inviolability, receiving state is under a special duty to take all appropriate steps to protect premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity
-guards around embassy minimal, failure of Iran to take ANY appropriate steps let alone ALL appropriate steps
-2nd phase, Because of approval of new Iranian government, militants then became agents of the government for
whose acts the state is internationally responsible. Ayatollah Khomeini declared they would remain hostages
until the US handed over the former Shah for trial
-even in case of armed conflict or breach of diplomatic relations convention requires inviolability of members of
a diplomatic mission & premises, property and archives of the mission must be respected by the receiving state
-if accredited diplomat goes away & comes back without their diplomatic status that is potentially different
-diplomatic immunities expire at a certain point in time, the person is then given a reasonable time to leave. If
they are declared persona non grata and the host country says the diplomat is no longer accredited, VC says they
you can be held responsible for your conduct except for conduct that occurred in the diplomat’s official capacity

Consular and Other Immunities
-consent to diplomatic relations implies consent to consular relations unless otherwise stated
-consuls are concerned with administrative matters and not with political relations between the two states
-consular officer must be treated with due respect & shall not be liable to arrest or detention except in case of a
grave crime (s.2 VC on Consular relations) Grave crime is an offence which carries sentence of 5 years or more
-consular officers have a more limited immunity than diplomats, restricted to acts performed in the course of
their consular functions (art. 43(1) VC Consular Relations)

a)Special Missions – sending state must inform the host state of both the size and the composition of the
mission, only binding on parties to the Convention
b)Privileges of the UN – immunity of property and assets, inviolability of premises and archives, immunity
from criminal jurisdiction for representatives
c)ICJ - immunities when acting in their official capacity d)Visiting Forces – Canadian courts have jurisdiction

Vienna Convention on Diplomatic Relations [can argue that the VC is a codification of Customary IL]
-Art. 2 – diplomatic relations between states and permanent missions takes place by mutual consent
Art. 9 – Receiving state does not have to give any reasons for not accrediting an ambassador, can simply say
they are not going to accept the person. Host country has to have accepted any diplomatic agents that are sent.
-Article 9 – where the host state at any time decides they don’t want the diplomat of the diplomat’s family they
can declare the person persona non grata and say the person is not acceptable anymore as a diplomat and the
sending should either recall the person or terminate the function with the mission
-if Canada says to state A this person is going to be declared persona non grata and the state does nothing, the
host state may just refuse then to recognize the person as having any privileges and immunities
-Art. 22 – inviolability of premises, appropriate steps to protect premises
-Art.24 archives and documents of the embassy are inviolable
-Art.27 – 3 para. Diplomatic bag shall not be opened or detained. [can be a huge container]
-Art.31 – can’t be searched, seized, made to be a witness

-Diko had been finance minister in Nigeria, when military in a coup took over Diko fled to the UK. Nigerian
gov’t hires Israeli mercenaries to kidnap Diko & put him in a diplomatic bag. Airport baggage handlers hear
noises, Britain opened crate in breach of VC both countries were parties to, Diko released & Israelis prosecuted
-if a state reasonably suspects a diplomat is using a bag to violate their responsibilities, convention might prima
facie be breached but it seems justification is sufficient that the other country might not complain

-nothing to prevent sending state from prosecuting the person once they have been declared persona non grata
                                                                                                                  21
-most crimes are committed by family of diplomatic agents but they have the same immunities and privileges

Self-Determination of Peoples – Chapter 2 p52-67 - Guest Lecture
1)Origins of Idea of Self-Determination
-WWI- “war of self-determination”, debate about what to do about peace in Europe, to consult people you are
trying to put into states to see if they want to belong to that state, US President Woodrow Wilson was advocate

2)Relationship between self-determination and social contract theory
-Social contract theory is the assumption that society is founded on the consent of the governed

3)Definition of Self-Determination
-the arrangement by a group of individuals of their life together in their own way, and preserving the character
of the group. It may be invoked by a whole people as a right of independence or by a religious ethnic, cultural
or linguistic group within that state [ex. Quebec] as a right to effective representation in government or to
organization as a separate political or social unit [a distinct society]
-“peoples” in UN practice refers to a collectivity of reasonably homogenous people, ex. cohesive national group

4)Is Self-Determination a LEGAL right?
-right to succeed acknowledged to be possible under IL even though it is the most destabilizing form of SD
-Aaland Islands Case: Self-determination in secessionist form was denied, even though the vast majority of
people of the Aaland Islands would choose union with Sweden over their existing attachment to Finland
-BUT courts (including SCC) have found various form of SD have legal Character [Western Sahara Case]
-some argue that SD is a right of jus cogens, a peremptory norm of IL that entails obligations erga omnes
-IL does in some specific circumstance recognize rights of entities other than nation states, the right of a people

Danzig Railway Officials Case: Permanent Court of International Justice held that if by a treaty state parties
agree to consider rights on individuals, then an international court should recognize & give effect to them at IL
-expression of individual rights at IL has not been matched by effective measures to enforce them

GA Res. 1514 (2)All peoples have the right to self-determination; by virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development

Western Sahara Case p56 [advisory opinion about the legality of Morrocco’s claim to the Western Sahara]
-Judge Dillard Separate opinion recognized SD as a legal right, at least in it’s anti-colonial form
-principle of self-determination is the need to pay regard to the freely expressed will of peoples
-GA Res. 1514 Declaration of Independence for Colonized Peoples: Contemplates for non-self governing
territories (a)emergence as a sovereign independent state (b)free association with an independent state
(c)integration with an independent state. Resolution so widely accepted it has become customary IL
-it is for the people to determine the destiny of the territory and not the territory the destiny of the people

East Timor Case – Portugal v. Australia
-principle of SD has been recognized by UN Charter & jurisprudence of the court, a legal right. An essential
principle of customary IL, obligation owed by a state toward int’l community, SD is an erga omnes character

Katanga Case (Before Quebec Secession): right to SD is clearly of a legal character, even beyond the colonial
situation to peoples in established states BUT Katangese were not sufficiently oppressed to be entitled to
secession. Katanga have been very oppressed but not court wants to tamper with states and don’t want to
dismember those states, if the Katangese have not met the threshold of oppression then no one has
                                                                                                                    22
Legal Instruments for Self-Determination
-Int’l Covenant on Civil and Political Rights & International Covenant on Economic, Social and Cultural Rights
have a common Article 1which states a right of all peoples to SD… freely determine their political status ,
freely pursue their economic, social & cultural development. (2)All peoples may, for their own ends, freely
dispose of their natural wealth & resources…. (3)State Parties… shall promote realization of right to SD

UN Charter 1(2) To develop friendly relations… based on respect for the principle of equal rights & SD…

African Charter on Human and Peoples Rights (Art. 19-22) [regional legal right to SD]
-Art.19 all peoples shall be equal, enjoy same respect & rights, nothing shall justify domination of a people
-Art.20 – all peoples shall have the right to exist, unquestionable right to self-determination, shall pursue their
economic and social policy that they have freely chosen. Colonized or oppressed peoples shall have the right to
free themselves from the bonds of domination by the result of any means recognized by the international
community. All peoples have the rights to assistance of state parties in their struggle against foreign domination
-Art. 21 – right of all people to retain their own identity in cultural, social and economic contexts

-Declaration on Principles of IL Concerning Friendly Relations & Cooperation among states in accordance with
the charter of the UN (1970) recognizes the right to SD, right to representative government & of secession in
certain exceptional cases (cited in Quebec reference). So widely accepted that it has passed into customary IL.

5)Meaning of “Peoples”
-those who don’t believe in secession tend to restrict the meaning of peoples
-James Crawford: no mathematical formula to get meaning of peoples, meaning of peoples is context dependent
-there must be an identifiable shared tie, something that binds them together (ex. Ethnicity, religion, history)
-controversial is that peoples can refer to either the entire population of the country at issue, or it can also refer
to an identifiable and relatively coherent section of that population

Reference re Secession of Quebec
-liberal interpretation of the meaning of peoples, it can mean peoples within an already established
-is there a right to SD under IL that would give the government of Quebec the right to effect the secession of
Quebec from Canada unilaterally? Existence of a right to SD is now considered a general principle of IL
-GA Res. 50/6 Declaration on Friendly Relations: UN member states will continue to reaffirm the right of SD of
all peoples. This shall not be construed as authorizing or encouraging any action that would dismember or
impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting
themselves in compliance with the principle of equal rights & SD of peoples
[secession is an conditional right and in order for that right to be imposed the people must be oppressed and
Quebec has not shown that their relationship in Canada has risen to the state of oppression]
-right to SD of a people in IL is normally fulfilled through internal SD, within the existing state. A right to
external SD arises in only the most extreme of case & only under carefully defined circumstances
1)right of colonial peoples to exercise their right to SD by breaking away from imperial power
2)right to external SD where a people is subject to alien domination or exploitation outside colonial context
3)when a people is blocked from the meaningful exercise of its right to SD internally it is entitled to exercise it
by secession [wouldn’t apply to Quebec because they are not denied access to gov’t]
-aside from these 3 ways, peoples are expected to achieve SD within the framework of their existing state

Recognition of a Factual/Political Reality: Effectivity Principle
-IL may adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its
creation BUT international recognition alone does not constitute statehood and does not relate back to the date of
secession to serve retroactively as a source of legal right to secede in the first place
-may be difficult for a state that has disregarded legitimate obligations to achieve international recognition
                                                                                                                  23
-there is now a right to internal SD in the sense of choosing your government, and there is a conditional right
to external SD in the sense of breaking away from a state that already contains the people

7) Secession
-framed in conditional terms because it bumps into another conflicting jus cogens norm that favours the
maintenance of the territorial integrity of states.
-if a government is thoroughly representative of all its peoples, then there can be no exercise of SD in a manner
that leads to dismemberment, but if the government is not very representative this is a right to secede
-it seems counter-intuitive that an oppressed people having to prove how severely they have been oppressed,
basically telling people to go to the Supreme Court of the Country that is slaughtering their people
-advocates for a commission to afford entities that claim secession triadic entities to investigate claim
-a judgment that a people are entitled to secede is a huge moral and political victory for oppressed peoples

Comment: The Degrees of Self-Determination in the United Nations Era - Kirgis
-degrees of SD but the overwhelming element is choice, right to secede, to dissolve your state, right to
autonomy, rights of minorities, right of divided states to reunite, right to be free from colonial subjugation
-if a government is at the high end of the scale of democracy, the only self-determination claims that will be
given international credence are those with minimal destabilizing effects. If a government is extremely
unrepresentative, much more destabilizing self-determination claims may be recognized
*the right to self-determination is a variable right depending on 1)the degree of destabilization in any given
claim 2)the degree to which the responding government represents the people belonging to the territory

Guest Lecture – Mgbeoji - Statehood in Africa - Colonial Basis of State Instability in Africa
-The failure of the African state cannot be divorced from its foundations (thesis)
-in very few circumstances were the state in Africa formed on the basis of internal dynamics, but rather by the
imperatives of European power politics.
-Western monopolization of debates result in marginalization of alternative visions of society
-similarity uniting contemporary developing countries – they all had to deal with European imposition
*prior to the Westphalian notion of states there were such entities in Africa and Latin America, these places had
formed social societies that governed and delivered services to the people

Changes – Weakening of African society
A)Discovery of gun power, superior fire power
B)Depreciation of human beings through the slave trade, the most able-bodied people
-Art. 22 League of Nations – white man’s burden
-scramble for Africa with was a legal cover for looting of the African continent
-no attention paid to pre-colonial interstate/community relations
*random dividing up of Africa is a large contributor to African instability
-in African history traditional boundaries were much more fluid, people could move from one point to another
without being hindered, didn’t have same conceptions of fixed population
-tribes were forced to choose between citizenship of one particular country which sometimes rendered them a
minority whereas previously they had enjoyed rights.
-all the Montevideo Convention requires is a territory, population and an effective regime – no requirement of
any normative dimension to the essence of statehood

Uti Possidetis: notion that the European formation of African states must be preserved
-European states & indigenous elites opted for maintaining existing lines for speedy decolonization, provides a
clear outcome & is simpler. Creates hazard in name of simplicity, leads to injustices & instability by leaving
significant populations both unsatisfied with their status in new states & uncertain of political participation there
-left with groups who do not have a state of their own but are not fully accepted in the state in which they reside
-Why should an institution that has failed to meet the needs of the people should be reinstated?
                                                                                                                 24
-predicts that once the units are free of strictures of the post-colonial state, a movement for consensual
political unification will emerge through which more economically viable units are formed
-the decolonization of colonial boundaries is inevitable through 1)ethnic self-determination creating smaller
states 2)regional integration towards larger political communities and economic unions

-relationship between IL and institutions with state failure, warlordism and political instability in Africa
-politics and manipulation of Cold War frustrated the emergence of legitimate governance in Africa
-post conflict elections often leads to pacification of warlords with plum jobs or elective offices
-warlords who commit crimes against humanity must be brought to justice
-if UN SC fails those who live at the margins must one way of the other fend for their own security

Chapter 10 – State Responsibility
-every internationally wrongful act of a state entails its responsibility
1)is there a treaty on point? 2)if treaty is ambiguous can look at subsidiary materials 3)Preliminary Objections

Preliminary objections an accused state can use:
A)this national of yours failed to exhaust local remedies
B)Nationality. (1)only the state of nationality of the victim (corporate of individual) that can espouse the claim.
(2)it’s continuous nationality from the date of injury alleged to date of claim. (3)Is the nationality genuine?

1)General Principles
-UN ILC priority given to the elaboration of the general rules governing international responsibility of states
-parts of the draft are already viewed as a codification of existing principles while other parts are more
controversial with little support in state practice and are actually developing IL
ILC Draft Articles p603, 604
-have to make it clear in exam that these articles are not a treaty but are strong evidence of a rule of IL
-Art. 1-4 taken as existing general rules on state responsibility
-Art.1 covers both actions & omissions, every internationally wrongful act entails international responsibility
-Art.2 - rejects any claim by a state that it enjoys immunity from responsibility on the international plane, every
state may be held to have committed an internationally wrongful act
-Art.3 – refers to internationally wrongful acts as including acts or omissions, internationally wrongful act where
conduct in breach of an international obligation is attributable to the state
-Art.4 – says that if a state has violated its international obligations by engaging in wrongful conduct so that its
violated either treaty or customs, that state can’t use as a defence permission from a domestic statute
-Art. 27 – having entered a treaty a federal state cannot exempt itself from responsibility by saying a province
did it, responsibility on federal states for obligations caused either directly or through lack of due diligence

Barcelona Traction Case: recognized the existence of obligations erga omnes in the violation of which every
state can be said to have an interest

2)Basis of Responsibility: Responsibility grounded in risk or fault? Is a subjective fault or negligence required?
-if one can show they are an agent acting on the behest of the state, even if the state agent is overzealous in what
they do, there will be responsibility even for exceeding the mandate that the agent has been given (Youmans)
                                                                                                                   25
Corfu Channel Case (Merits) UK v. Albania
-English text uses “knowingly” which implies due diligence standard BUT French text doesn’t use “knowingly”,
just says you have an obligation to not allow your territory to be used in a way that will harm other states
-obligation of every state to not knowingly allow their territory to be used to harm property of another country
[due diligence]
-it cannot be concluded from the mere fact of the control exercised by a state over its territory and waters that
that state necessarily knew, or ought to have know, of any unlawful act perpetrated therein [not strict liability]
-minelaying could not have been accomplished without the knowledge of Albania therefore Albania is
internationally responsible. Albania refused to pay compensation, so Britain froze Albanian assets in Britain

Dissent - Albanian knowledge of landmines was not proven, cannot find international responsibility of a state on
the argument that the Act took place on its territory. Cannot transfer theory of risk from municipal law into IL

Trail Smelter case: Canadian mining corporation emanating pollution, allegedly caused damage in Washington.
Canada admitted liability, responsibility not to allow industrial activity where it was known or should have been
known damage would accrue to persons or property. Question was how much Canada was going to pay.

Rainbow Warrior Case (stands for direct imputability for acts of agents)
-greenpeace ship destroyed by 2 bomb blasts in New Zealand, France acknowledged agents acting at the behest
of the French External Security. Was France directly responsible to NZ because bombers were state agents?
-matter referred to UN Secretary General for arbitration, payment of compensation to New Zealand of $7 million

The Jessie, Thomas Bayard, and Pescawha (liability of agents)
-British schooners boarded by US officers, no international agreement allowing US to Board British vessels, US
gov’t denied liability because 1)boarding officer acted in bona fide belief he had authority to do so [tribunal says
there was no obligation to accept bona fides as a defence to violation of an int’l rule] 2)claims exaggerated
-a legal liability on the US government was created by the acts of its officers. Allegations the US is putting
forward are issues to be considered when considering the monetary consequences of the liability
-any government is responsible to other governments for errors in judgment of its officials.

Caire Claim: state responsibility is objective responsibility, the state is responsible for the commanded acts of
officials or organs of a state, despite the absence of fault or negligence on its part
Diplomatic and Consular Staff in Tehran Case: Iran had breached its international obligations in not reacting
to protect the embassy and diplomatic personnel of the US after an assault by private persons
Declaration on Friendly Relations: a state is under a general obligation to prevent the use of its territory by
persons or groups planning to commit hostile acts against a foreign state

Cosmos 954 Claim - Canada v. USSR [debris from SU satellite deposited on Canadian territory]
-1972 Convention on International Liability for Damage Caused by Space Objects reparation in respect of the
damage as will restore the claimant to the condition which would have existed if the damage had not occurred
-absolute liability for space activities involving use of nuclear energy is a general principle of international law
-settlement for $3 million with no acknowledgement of legal liability [even though absolute liability in treaty]
-to argue absolute liability you need a treaty to point to, here they had a convention
-obligation to mitigate damage, USSR did offer to send in a team to help in the clean up but Canada said no.

-fact that no acknowledgement of legal liability in Cosmos and absence of claims following Chernobyl places
doubt on whether a principle of absolute liability for ultra-hazardous acts has emerged in general IL. Although
no treaty at time of Chernobyl, could argue a duty to take special care when dealing with dangerous substances
-ILC working on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by IL
Jaffe: Internationally wrongful act entailed the responsibility of the US toward Canada.
                                                                                                                      26
ILC Draft Articles p617 [important where you are trying to attribute direct responsibility to a state]
-Art. 5 – attribution of the state of the conduct of its organs provided that organ was acting in that capacity in the
case in question, makes it seem as though whether an organ is part of the state should be decided to a state’s own
law [but then states could shield themselves by legislating that a particular organ is not part of the state]
-Art.8 – attribution of the state of the conduct of persons acting in fact on behalf of the state. If person is a
private citizen first position is clearly that a state is not responsible for acts of private parties, no imputability
because those individuals are not in a special relationship with the state, however there will be attribution if it’s
established that such a group was in fact acting on behalf of the state [same language as Tehran case]
-Art. 10 - when you have an organ of the state composed of agents of the state who act in their official capacity
in allegedly violating an international rule, responsibility will still be secured even if the agent exceeds their
competence, or contravene instructions they were given, presumption of imputability. Case law suggests that it
is only where that agent has clearly acted in a private capacity will the state escape imputability

-IL does not define “state functions.” Suggested that whether an organ should be considered a part of the state
depends on the contents of its powers, way in which these were conferred, their purpose & degree of
accountability of the organ or entity to gov’t. If municipal law of a state does not treat an organ as part of the
state it does not necessarily follow that organ’s acts are not attributable to the state, attribution is a matter of IL

TH Youmans Claim – United States v. Mexico - General Claims Commission
-mayor sent troops to where the mob was, troops join mob & end up killing Youman. Claim of US based on
failure of the Mexican gov’t to exercise due diligence to protect Youman from mob, participation of soldiers
asserted as ground of liability. No direct imputability for mob because they were private citizens.
-BUT action of troops imposed a direct responsibility on gov’t of Mexico, failure to protect Youmans, they were
given orders and even though they exceeded their orders there was still state responsibility. Acts of soldiers
cannot be regarded as committed in their personal capacity when at the time they were on duty
-the government of Mexico must pay the government of the US $20,000
-stipulation by tribunal that they weren’t saying because someone is in uniform there will ALWAYS be
imputability, if acts are not within what the person is being asked to carry out state will not be held responsible

-ex. Sailors going on shore for the night without uniform, sometimes find those private acts and it is only if the
sending state knew that they were going to really run amuck that you can bridle the state with responsibility
-to trigger international responsibility the actions must have been taken under cover of their official character

-Yeager v. Iran – Iran-US Claims Tribunal found that bribes taken by a state airline employee were not
imputable to the state BUT theft carried out by revolutionary guards performing customs duties were imputable

Draft Articles p623-Art. 11 – conduct of person not acting on behalf of the state shall not be considered as an
act of the State under IL unless there is lack of due diligence or there is some form of state approval

Military and Paramilitary Activities in and Against Nicaragua – Nicaragua v. US (Merits)
-US participation in financing, organizing, training the Contras etc. and planning of its operation is insufficient
in itself for the purpose of attributing [imputing] to the US acts committed by the Contras, would require
evidence US directed or enforced perpetration of the acts alleged. Would have to be proved US had effective
control [degree of control required] of the military operations during which alleged violations were committed.
Loizidou v. Turkey: adopted criteria in Nicaragua to conclude that Turkey’s exercise of effective overall control
of the Turkish Republic of Northern Cyprus entailed its international responsibility for the latter’s acts

US Diplomatic and Consular Staff in Tehran: ICJ held that responsibility for the seizure of the American
embassy and hostages was not directly imputable to the state of Iran in the absence of evidence that the actions
of the militants in occupying the premises were taken on the orders of government officials.
                                                                                                                  27
Acts of Insurgents
ILC Draft Articles p625
-Art. 14 – Conduct of an insurrectional movement shall not be considered as an act of that state under IL [but an
element of due diligence on the state to use publicity to try to avoid hostage taking etc., publicize risky areas]
-Art.15 – Act of an insurrectional movement which becomes new gov’t of a state shall be considered as an act of
that state [new gov’t will be responsible for what it did before it became gov’t of a state, some controversy]

Asian Agricultural Products Ltd. v. Sri Lanka
-Sri Lankan army destroyed a plant on basis of reports it was being used by local rebels
1)a state on whose territory an insurrection occurs is not responsible for loss or damage sustained by foreign
investors unless it can be shown that the government of that state failed to provide the standard protection
required by treaty or under customary IL
2)failure to provide standard of protection required entails state’s international responsibility for losses suffered,
regardless of whether damages occurred during an insurgents’ offensive act or resulting from governmental
counter-insurgency activities
-Sri Lankan government should have taken some steps to make inquiries with respect to any suspect element and
to prevent the killing and property destruction, through said inaction and omission Sri Lanka violated its due
diligence obligation which requires undertaking all possible measures that could be reasonably expected to
prevent the eventual occurrence of killings and property destructions
[the fact that an insurgent movement is active does not automatically relieve the state of any international
responsibility for insurgents’ acts. The general duty of due diligence remains applicable]

Short v. Iran & Rankin v. Iran: In the absence of an established policy directly attributable to the Islamic
government, state responsibility could not be engaged

Acts of International Organizations
Draft Articles - Art. 13 – conduct of organs of an international organization considered as an act of State under
IL by reason only of the fact that such conduct has taken place in the territory of that state or in any other
territory under it’s jurisdiction

-Secretary General noted that applicability of int’l humanitarian law to UN forces when they are engaged as
combatants in situations of armed conflict entails in international responsibility of the Organization & its
liability in compensation for violations of international humanitarian law committed by members of UN forces

Circumstances Precluding Wrongfulness
-a certain number of defences or circumstances precluding wrongfulness can be invoked by a state to justify
acts that would otherwise constitute internationally wrongful acts

Draft Articles p629 Defences Precluding Wrongfulness
-Art 29 – consent validly given by a state, but does not apply to a peremptory norm of IL
-Art. 30 – countermeasures in respect of an internationally wrongful act
-Art. 31 – act due to an irresistible force or to an unforeseen external event beyond its control
-Art. 32 – distress, saving his life or that of persons entrusted to his care
-Art. 33 – state of necessity
-Art. 34 Self-defence
*effect of defences is to prevent not merely international responsibility of the state, but to deem its action lawful

Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia)
-treaty to build dam, Hungary abandoned the project
-state of necessity is recognized in customary IL as a ground for precluding the wrongfulness of an act not in
                                                                                                                     28
conformity with an international obligation
-Draft Art. 33 State of Necessity conditions are relevant:
    -must have been occasioned by an essential interest of the state
    -that interest must have been threatened by a grave and imminent peril
    -the act must have been the only means of safeguarding that interest
    -that act must not have seriously impaired an essential interest of the state towards which obligation existed
    -the state must not have contributed to the occurrence of the state of necessity
-ecological impact could not alone establish objective existence of a peril [component of state of necessity],
mere apprehension of peril could not suffice, it must be immediate peril, here the dangers were not imminent
-at an earlier point Hungary had asked for the works to be speeded up – therefore even if there was a state of
necessity Hungary would not have been able to rely on that state of necessity to justify its failure to comply with
its treaty obligations as it had helped to bring the state of necessity about

Defining the Injured State
ILC Draft Articles p 633
-Art. 40 – “injured state” means any state a right of which is infringed by the act of another state if that act
constitutes an internationally wrongful act of state. Rights infringed could be from treaty or from judgment or
customary IL. If the internationally wrongful act constitutes an int’l crime, all other states are “injured states”

Direct Injury – rights protecting state interests are violated by another state
Indirect Injury – injury to one of its nationals
General Injury – all states bound by a given norm will be considered injured by its violation, erga omnes

Barcelona Traction Case: aggression, human rights and the prohibition of genocide are 3 examples of norms
erga omnes, the breach of which will injure every other state
Responsibility for Injury to Aliens
Neer Claim – US v. Mexico (standard of treatment)
-general thesis is that a state doesn’t have to admit aliens into their territory
-US citizen killed while working in Mexico, argued Mexico did not exercise due diligence in investigating crime
-for treatment of an alien to constitute an int’l delinquency, it should amount to an outrage, bad faith, to a willful
neglect of duty, or to an insufficiency of gov’tal action so far short of int’l standards that every reasonable &
impartial man would recognize its insufficiency [Mexico fell short of internationally recognized standard]
-local state maintained that no violation of IL had been committed as long as there was no discrimination against
the alien in terms of the state’s treatment of its own nationals [but International tribunals have taken view that a
state must at a minimum not discriminate against aliens but its conduct must be judged by int’l standards]

-alien must exhaust local remedies first, but then any unredressed injury to an alien constitutes an injury to his
state, giving rise to international responsibility. Aliens may be entitled to better remedies than nationals since
the home state may intervene diplomatically on behalf of their nationals to obtain redress

Protection of the Person
Rankin v. Iran
-Rankin employed by US company in Iran evacuated after Islamic revolution, Tribunal denying responsibility
-claimant alleging expulsion has the burden of proving the wrongfulness of the expelling state’s action, that it
was arbitrary, discriminatory or in breach of the expelling state’s treaty obligations
-a state would violate customary IL by expelling an alien who had a continued right to residence in Iran or by
depriving an alien of a reasonable opportunity to protect his property interests prior to his expulsion
                                                                                                                  29
Yeager v. Iran – given 30 minutes to pack and leave, considered a breach of reasonable standards, expulsion
was carried out with unnecessary haste and in violation of minimum procedural standards under customary IL

Detention and Physical Injury
Quintanilla Claim – US v. Mexico 1926
-man killed in Texas had lassoed a girl off her horse, sheriff took him, his body later found at the side of a road
-issue of imputability - once he was in sheriff’s custody there was an obligation to make sure he was protected
-Texas should be liable under IL because he was taken into custody by a state official, state must account for him
-government can be held liable if it has treated him cruelly, harshly or unlawfully or ignores what happened to
him so the government is liable for the act of the state official, Mexico was awarded damages

-original position that where the state makes the claim the state gets the damages, but now most states have a
mechanism for giving the damages over to the victims

Maladministration of Justice
BE Chattin Claim – US v. Mexico 1927
-American working in Mexico arrested, alleged arrest, trial & sentence were illegal & treatment in jail was
inhuman, alleging procedure did not fulfill standards of int’l justice, gov’t influence in court, undue delay, huge
bail that didn’t fit the circumstances, lack of legal counsel and an interpreter etc., proceedings lasted 5 minutes
-proceedings show a lack of seriousness on the part of the court, criminal procedure fell far below international
standards and were insufficient, it amounts to outrage, bad faith and willful neglect of duty and an insufficiency
of governmental action recognizable by any unbiased man

-denial of justice may consist of either denial of access to the courts or injustice at their hand
-there is a strong presumption of correctness of courts, but this presumption can be rebutted by clear evidence
that the presumption does not apply
-where person’s rights are violated before they are arrested there would be the issue of state responsibility and
imputability. Second layer of responsibility for denying the person their proper day in court OR it could be that
there is no initial state responsibility but when the person came into court there was no serious prosecution but
that the proceedings undermine international rights of an accused to a fair trial and to legal representation

Declaration on Rights of Individuals who are not citizens of the country in which they live GA Res. 144
-details basic human rights to be accorded to individuals when they enter a state, a national standard of treatment
cannot supersede the rights that a hosting country must allow the alien they have allowed into their territory
-Art. 5(1)- right of life and security of person, no arbitrary arrest or detention [to be read in connection with
other UN treaties such as Convention on Torture which do not rule out the death penalty], right to be equal
before the courts, right to maintain their own language and culture
-Art. 5(2) – subject to restrictions prescribed by law, right to leave the country, freedom of expression and
peaceful assembly, right to own property

LeGrand Brothers
-ICJ said US under VC on Consular Relations has an obligation to inform the state of nationality once a person
has been taken into custody and to allow them access to a consular official
-German-born citizens living in US, found guilty of capital murder & by the time the litigation was taking place
between Germany and the US the 2 brothers had already been executed

Protection of Property – Expropriation of Property [includes tangible and intangible assets]
-protection of aliens against expropriation now directly linked to issues of state sovereignty, right of peoples to
self-determination and the property rights of individuals and corporations
                                                                                                                   30
-it appears that a right of a state to expropriate foreign property for a public purpose related to its internal
needs is recognized by customary IL, but expropriation measures that are arbitrary or discriminatory or that are
motivated by considerations of a political nature unrelated to the internal well-being of the taking state are
illegal and invalid and call for restitution or compensation
     1) is the expropriation legitimate?
     2) if so, how is the compensation to be determined? Is it to be determined by customary law or solely by
         the expropriating state? Domestic Rules v. IL
-traditional view that expropriation was unlawful no matter what regardless of the purposes for which the
expropriation was conducted. More modern approach is recognition that expropriation is not unlawful if it
fulfills certain requirements. But, if the compensation is not in accordance with IL there will be responsibility
not per se for the expropriation but responsibility for not awarding appropriate compensation

Canada – US Free Trade Agreement p647
Art. 1605 – neither party shall nationalize or appropriate an investment of the other party except
a)for a public purpose b)in accordance with due process of law c)on a non-discriminatory basis d)upon
payment of prompt, adequate and effective compensation at fair market value
North American Free Trade Agreement -reference to compensation paid without delay and fully realizable
and valuation criteria such as the value of the property as an ongoing concern being applied
Restatement (Third) of the Foreign Relations Law of the United States – list preconditions, provides that
“just” compensation in the absence of exceptional circumstance be the value of the property taken and be paid at
the time of taking or shortly thereafter with interest and in a form economically usable by the foreign national
Resolution on Permanent Sovereignty over Natural Resources GA Res. 1803, 1962
1)right of peoples and nations to permanent sovereignty over their natural wealth and resources
4)nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security
or the national interest which are recognized as overriding purely individual or private interests. Owner shall be
paid appropriate compensation
-authority by indication of states voting pattern, passed by 87 votes to 2 with 12 abstentions
4)if requirements for expropriation are met, owner shall be paid appropriate compensation in accordance with
national law & IL. If national law is not in accordance with IL there will be a breach of duty to provide
compensation, but we don’t have an idea of how IL at that time interpreted the word “appropriate”
-issue of meaning of appropriate, theory that one should start with the presumption of full compensation and
from there on a sliding scale depending on the circumstances of the case
Charter of Economic Rights and Duties of States GA Res. 3281, 1974
-Art. 2 – Every state shall freely exercise full permanent sovereignty, over all its wealth, natural resources and
economic activities
-Art. 2 (c) each state has the right to regulate and exercise authority over foreign investment, to nationalize,
expropriate or transfer ownership of foreign property in which case appropriate compensation should be paid by
the state adopting such measures taking into account state laws, regulations & circumstances state considers
pertinent (referring to a national standard of compensation). If there is a controversy it will be resolved by
domestic law unless it is mutually agreed that they should go to some other peaceful means of settlement

-Canadian position is to not deny the right of a state to nationalize foreign property but it does maintain that this
right is conditional upon the payment of compensation
                                                                                                               31
Texaco v. Libya (status of resolutions in determining what state practice is)
-Libyan government nationalized rights and property of 2 plaintiff oil companies, Libya found responsible to pay
-Art. 10 UN Charter GA issues only recommendations which appear to have no binding force and carry no
obligations for member states so in order to be binding they must be accepted by UN members, they do not
create custom but confirm one
-Res. 1803 was assented to by many states representing all geographical areas and economic systems, reflects
the state of customary law [look at the voting pattern of adopting the resolutions]
-in contrast Res. 3171 concerning nationalizations, disregarding the role of international law was not consented
to by the most important western countries but caused a number of developing countries to abstain
-Charter of Economic Rights talks about obligation to fulfill international obligations in good faith. Even though
2(c) does not specifically refer to IL it was implicit that IL should be taken into consideration by a state when
nationalizing otherwise state responsibility would ensue. Separate vote was called for on 2(c) BUT 2(c) didn’t
get as many votes in favour as the Charter itself did
-Lybia didn’t appear, ended up paying in oil to preserve its long term international economic viability

Tippetts, Abbett v. Consulting Engineers of Iran: Mere assumption of control is not per se unlawful.
Expropriation will only be found in cases where owner was clearly deprived of basic rights of ownership in a
clearly non-ephemeral way. Intent of government is of less weight than actual effect of measures imposed

Amoco International Finance Corp. v. Iran: term “public purpose” is broadly interpreted & states are granted
extensive discretion. Pursuit of profit is not sufficient to prove a decision was not taken for a public purpose

Libyan American Oil Co. v. Libya: 1981, rejected requirement of public purpose to use instead the prohibition
of discrimination. Arbitrator said GA resolutions have as much force as Res. 1803. Libya required to pay

Standard of Compensation and Method of Valuation
World Bank Guidelines on the Treatment of Foreign Direct Investment p657
-compensation deemed appropriate if it is adequate, effective & prompt. Deemed adequate if it is based on FMV
of the taken asset immediately before the taking occurred or decision to take the asset became publicly known

Shahin v. Iran
-customary IL favours an “appropriate” standard of compensation of “prompt, adequate and effective” standard
-appropriate compensation is determined in a flexible manner taking into account specific circumstances
-compensation for lost profits requires a prior characterization of the taking as unlawful but here they are not
asking for lost profit damages so that characterization is not required

Separate Opinion: ill-defined & essentially meaningless standard of appropriate compensation is unjustifiable &
out of step with the times, deprivation of property for less than FMV is counterproductive & backward looking

-a state may enter a treaty that conventionally sets the compensation standard in case of expropriation
-Amoco international Finance v. Iran: if the taking is lawful the value of the undertaking at the time of
dispossession is the measure & limit of compensation. If the taking is unlawful this value may be only PART
of reparation to be paid BUT even with unlawful expropriation the damage actually sustained is the measure of
reparation & there is no indication punitive damages should be considered [should there be a slap on the hand as
there is in domestic systems? Obiter dicta has indicated possibility of punitive damages in an appropriate case]
-another legal foundation for compensation could be the principle of unjust enrichment, estoppel (enticed
foreign investor to act to his detriment), pacta sunt servanda (obligation to observe contract)
-Lena Goldfields Arbitrations: compensation given to prevent the unjust enrichment of the expropriating state
                                                                                                                  32
Breach of Contract
Texaco v. Libya
-nationalization in the face of a stabilization clause, does nationalization authorize a state to disregard its
international commitments assumed by it within the framework of its sovereignty?
-when there is a stabilization clause the state has place itself within the international legal order in order to
guarantee vis-à-vis its foreign contracting party a certain legal and economic status over a certain period of time
-nationalization cannot prevail over an internationalized contract containing stabilization clauses
-recognition by IL of right to nationalize does not empower a state to disregard its commitments because same
law also recognizes power of a state to commit itself internationally [by agreeing to stabilization clauses]

Aminoil Arbitration: nationalism not expressly prohibited by stabilization clauses but clauses impliedly require
that nationalization shall not have a confiscatory character, reinforce necessity for proper indemnification

Reasons for legally abrogating economic development contracts p666:
a)rebus sic stantibus (vital change of circumstances)
b)passage of legislation for protection of bona fide public interest (health, safety etc.)
c)express clause in contract or as punishment for criminal offence against host state

Enforcement of Claims
-before a state can espouse a claim they must find continuous nationality from time of injury to time of
presentation of the claim by the espousing state. If you do have more than one nationality basic position is that
a state cannot act on your behalf vis-à-vis the other state of nationality
-It is a well established principle in customary and treaty law that in respect of certain conduct prescribed by
international law that states may prosecute their own nationals for conduct committed abroad

Espousal and Nationality of Claims
Mavrommatis Palestin Concessions Case
-a state can take up case between its private citizen & another state, dispute then enters domain of IL & becomes
dispute between 2 states, state becomes sole claimant, state is in reality asserting its own rights based on theory
that an injury to a national is an injury to the state itself
Reparations Case: when state espouses a claim it is dealt with by means of negotiation and cannot be submitted
to a tribunal except with the consent of the states concerned
Panevezys v. Saldutiskis Railway Case: Right is limited to intervention on behalf of a state’s own nationals.
Where injury done to national of another state, no claim falls within the scope of the diplomatic protection which
a state is entitled to afford nor can it give rise to a claim which that state is entitled to espouse

Exhaustion of Local Remedies
-exhaustion of local remedies is a preliminary objection to the jurisdiction of the tribunal, will be dealt with
before you get to the merits of the dispute. Obligation on person alleging violation of their rights to try to
exhaust local remedies in the respondent state if they are feasibly available, a realistic option of seeking remedy
-if the violation is attributable directly to the state there is no obligation on the injured state to exhaust local
remedies, but when dealing with espousal of individual claims there is this exhaustion of local remedies rule
-if your property has been expropriated pursuant to legislation in a foreign country & legislation says that you
have no remedy there is nothing local that you can do because the local courts will be bound by that legislation
                                                                                                                     33
Ambatielos Arbitration – Greece v. UK
-state against which an international action is brought for injuries suffered by private individuals has the right to
resist such an action if the persons alleged to have been injured have not first exhausted all the remedies
available to them under the municipal law of that state, must use the whole system of legal protection
-defendant state must prove existence in its system of IL or remedies which have not been used, but existence of
remedies which are obviously ineffective is held not to be sufficient to justify the application of the rule
-national failed to exhaust his opportunities in the court of first instance by not calling a specific witness so he
cannot rid himself of the rule of exhaustion of local remedies

-local remedies need not be exhausted when the violation was caused by an act of a state for which that state
denies responsibility (Corfu Channel Case)
-a state may waive the requirement of exhaustion of local remedies
-Clavo Clause: where a state requires aliens to waive in advance foreign diplomatic intervention and to submit
all their disputes to the local law and courts exclusively

North American Dredging Company Claim
-contract stipulated all employees would be considered as Mexicans in all matters and are deprived of any rights
as aliens and under no conditions shall intervention of foreign diplomatic agents be permitted (Clavo Clause)
-this provision could not deprive the claimant of his American citizenship, it did not take from him the right to
apply for protection from his own government if Mexican tribunals and authorities resulted in a denial of justice.
In such a case his claim would not be that the contract had been violated but that he had been denied justice.
-claimant never sought any redress by application to local authorities & remedies, espousal is not cognizable
-he did not waive his rights to protection in any other matter not connected to the contract

Canadian Espousal of Claims (requires genuine link)
-only espouse claims in respect of loss of human life, property rights, interests or debts where Canadian citizens
at the time of loss, confiscation, expropriation or nationalization. Claim must have belonged to Canadian
citizens at all times since they arose & claimants must be Canadian citizens at time these claims were presented
-must have exhausted local remedies
-where the claimant does not fulfill these conditions the government may consider using its “good offices” and
direct an inquiry to foreign authorities but it will not formally espouse such a claim (limited use)
-may espouse the claim of a company incorporated in Canada that was so incorporated at the date on which the
claim arose, but are generally only espoused where there is substantial Canadian interest in the company
-when property of a large number of Canadians has been affected it is customary to first obtain an agreement in
principle with the state concerned to negotiate a general settlement of Canadian claims
-Canadian government may support uncertain claims without becoming a party to dispute by the exercise of its
good offices. (ex. A Canadian who was not a Canadian citizen at the time of the events giving rise to the claim)
-BUT where simultaneously valid claims, uncertain claims may prejudice efforts made for valid claims

Remedies
-state responsibility can be expressed in the form of sanctions when the state violated the rights of other states
                                                                                                                    34
ILC Draft Articles p677 on Remedies
-Art. 41 – Obligation of Cessation of wrongful conduct
-Art.42 – Reparation in form of restitution in kind, compensation, satisfaction (apologies etc.) & assurances &
guarantees of non repetition (see Art. 43-46) [tribunals state that in right case punitive damages can be awarded]
-Art. 43 – Restitution in kind, the re-establishment of the situation that existed before the wrongful act was
committed, provided it would not involve a burden out of proportion to the benefit which the injured state would
gain from obtaining restitution in kind in instead of compensation
-Art. 44 – entitlement to obtain compensation for damages caused by the act, if and to the extent that the damage
is not made good by restitution in kind
-Art. 45 – satisfaction (non-material), apology, nominal damages, disciplinary action against those responsible

Chorzow Factory (Indemnity Case) (held that Poland owed reparation to Germany)
-principle of law that any breach of engagement involves an obligation to make reparation
-this was unlawful dispossession so payment only of fair compensation is not sufficient. Reparation must, as far
as possible, wipe out all consequences of the illegal act & reestablish situation which would have existed if that
act had not been committed. Injured state may demand restitution in kind if materially possible in circumstances
-restitution can also be combined with other forms of reparation if restitution by itself cannot wipe out the
consequences of the internationally wrongful act

-I’m Alone Case: recommended payment by US for an amount not linked to the value of the Canadian sunken
ship and recommended that the US apologize to the Canadian government (satisfaction)

Countermeasures: form of self help by which injured state may lawfully apply pressure on wrongdoing state to
obtain cessation of wrongful act & reparation. Acts that would normally be unlawful but are considered licit as
a response to a prior internationally wrongful act of another state. Need not mirror initial violation to which
they are a response

ILC Draft Articles on State Responsibility p683
-Art. 48 Conditions relating to resort to countermeasures: obligation to negotiate, abide by dispute settlement
procedure in force between the two states, suspend countermeasures when the wrongful act has creased and the
dispute settlement procedure is being implemented in good faith.
-Art. 49 Countermeasures must not be out of proportion of the gravity of the international wrongful act
-Art. 50 Prohibited countermeasures include threat or use of force, extreme economic or political coercion,
conduct that derogates from basic human rights, that violates diplomatic or consular premises and agents, in
contravention of a peremptory norm of IL

-once the alien is present in the territory of a foreign country legally that person is entitled to certain rights BUT
does owe a duty of allegiance to the foreign country in which he is resident and must obey the local laws
-ICJ statute sources general principles of law pertinent here in terms of adding up the currency looking at
domestic systems to help bring to bare the amount sought for the injured party
-ICC is 1st int’l criminal court or tribunal that has jurisdiction to compensate victims of war crimes & crimes
against humanity, allowing victims not only to appear as witnesses but also to participate through legal counsel.
-Difference is the ad hoc tribunals had budgets which came out of the UN whereas the ICC is freestanding &
therefore state parties have to pay the bill, supplemented by any other money they get
-Rome Statute of ICC – prosecuting individuals and not states, go after the people at the top, individualizing
alleged guilt but that does not prevent the civil liability of one state towards another
-tribunals have provisions in their statute for life imprisonment as the maximum penalty, but if you’re a soldier
who carried out orders & are prosecuted by a national court you could potentially be executed
                                                                                                                           35
-Chap. 16 UN Charter, use of force prescribed by Charter & other UN resolutions (ex.Declaration concerning
principles on friendly relations), prescription on use of force is going to be based on whether a state is acting on
self-defence or on reprisal, anticipatory self-defence, defence of one’s citizens, humanitarian intervention

Chapter 8 - Nationality of Individuals
Re Lynch: nationality is a continuing relationship btn sovereign & citizen involving rights & duties on both

Kahane v. Parisi and the Austrian State: it was held that although Jewish persons in Romania were denied the
privileges of citizenship they were still nationals of that state

-nationality may be acquired by birth or naturalization
-jus solis – nationality based on birth in the territory
-jus sanguinis – birth outside the territory to parents who are nationals of the state, law of the blood
-naturalization refers to the acquisition of nationality after birth
-preliminary objection is no continuous nationality from time of the injury until time of presentation of claim

Canada Citizenship Act p463
s.3(1) a person is a citizen if
   (a)the person was born in Canada after February 14, 1977 [only applies if the parent was a citizen or lawfully admitted
to Canada for permanent residence, doesn’t apply to foreign diplomats, UN employees]
   (b)the person was born outside Canada after February 14, 1977 and at the time of his birth one of his
      parents, other than a parent who adopted him, was a citizen

s.5 Naturalization
(1)the minister shall grant citizenship to any person who
(a)makes application for citizenship (b)is 18 years of age or over (c)has been lawfully admitted to Canada for permanent
residence and has within the 4 years immediately preceding accumulated at least 3 years of residence in Canada (d)has
adequate knowledge of one of the official languages (e)and of Canada and the responsibilities and privileges of citizenship
(f)is not under deportation

s.7 Where a person who was born outside Canada after the coming into force of this Act is a citizen because at the time of
his birth one of his parents was a citizen by virtue of paragraph 3(1)(b) or 3(1)(e), that person ceases to be a citizen upon
attaining the age of 28 years unless he
    (a)makes an application to retain his citizenship and
    (b)registers as a citizen and either resides in Canada for a period of at least one year immediately
       preceding the date of his application or establishes a substantial connection with Canada

s.9 (1) a citizen may on application renounce his citizenship if he is/will become a citizen of a country other than Canada
and if he does not reside in Canada

s.10 – denationalization may be used as penalty for serious crimes such as treason, espionage or war crimes

-marriage is not a ground for acquiring Canadian citizenship, it is residence that matters but marriage makes it
easier for a foreigner to take up residence in Canada
                                                                                                                  36
Nottebohm Case – Liechtenstein v. Guatemala [factors for establishing nationality]
-Nottebohm acquired nationality of Liechtenstein, question is whether that acquisition of nationality is one
which must be recognized by other states, Liechtenstein bringing the action on behalf of Nottebohm
-it is for every sovereign state to settle its own rules relating to the acquisition of nationality, but the question
here is whether that acquisition has international effect and can be invoked against another state
-principle is to give preference to the real and effective nationality based on stronger factual ties. Factors to be
considered are the habitual residence of the individual concerned, center of his interests, family ties,
participation in public life, attachment shown by him for a given country and inculcated in his children
-Nottebohm a German settled in Guatemala for 34 years, had business there until removed as a result of the war
measures in 1943. Connections with Liechtenstein were tenuous, no settled abode, no prolonged residence, no
economic activities, no intention to transfer his interests there. Naturalization in Liechtenstein was to enable
Nottebohm to substitute his status as a national of a belligerent state to that of a neutral state
-Guatemala is under no obligation to recognize a nationality granted in such circumstances, Liechtenstein cannot
assert its protection over Nottebohm vis a vis Guatemala
-a state can espouse a claim of any national they choose, but other states do not have to recognize that nationality
where there is no genuine connection with the espousing case

-If you’ve got a person who has dual citizenship Canada will informally take on a claim of a person who is a
dual national or even a person who is a permanent resident, exercise of good offices.
-be sure if you go to a country of nationality you will not be obligated to perform military service (Italy)
-Luitjens - if you are a war criminal and came into Canada under false pretences your citizenship is revoked
-Korean plane shot down that contained people of numerous nationalities, Canada tried to use good offices to
get some compensation for families of the victims, but they were unsuccessful. Depends on good will of state

Flegenheimer Claim – Italian-US Conciliation Commission
-lost US nationality when he acquired German nationality, lost German nationality & rendered stateless. US
espoused his claim
-Nottebhom did not intend to establish a general IL requiring there exist an effective link btn the person & state
in order that the state may exercise its right of diplomatic protection on behalf of the person
-where a person has only 1 nationality theory of effective nationality does not apply without the risk of
confusion, would expose many people to non-recognition at the international level of the nationality with which
they are undeniably vested by virtue of the laws of their national state

Dual Nationality
1930 Hague Convention on Conflict of Nationality Laws p472 **
-Art. 1 – it is for each state to determine under its own law who are its nationals. This law shall be recognized
by other states in so far as it is consistent with international conventions, international custom and the principles
of law generally recognized with regard to nationality
-Art. 3 – a person having two or more nationalities may be regarded as its national by each of the states whose
nationality he possesses
-Art.4 – a state may not afford diplomatic protection to one of its nationals against a state whose
nationality such person also possesses
-Art. 5 – within a 3rd state a person having more than one nationality shall be treated as if he only had one, either
the nationality of the country in which he is habitually and principally resident, or the nationality of the country
with which the circumstances he appears to be closely connected
-Art. 6 – a person possessing two nationalities acquired without any voluntary act on his part may renounce one
of them with the authorization of the state whose nationality he desires to surrender
                                                                                                                          37
Canevaro Case – Italy v. Peru
-whatever Canevaro’s status may be in Italy [nationality of father] with respect to his nationality the government
of Peru [place of birth] has a right to consider him as a Peruvian citizen & deny his status as an Italian claimant

Iran-US Case, Iran-US Claims Tribunal
-the better rule today is the rule of dominant and effective nationality, consistent with development of IL to
accord legal protections to individuals, even against the state of which they are nationals
-Tribunal has jurisdiction over claims against Iran by dual Iran-US nationals when the dominant and effective
nationality of the claimant during the relevant period was that of the US

Merge Case: principle of sovereign equality of states which excludes diplomatic protection in the case of dual
nationality must yield to principle of effective nationality whenever such nationality is that of the claiming state

Allegiance
-nationals have a duty of allegiance to their state while at home or abroad, state may prosecute for treasonous
activities against the state committed abroad. Duties of an alien to a foreign country when they are in it

Canadian Criminal Code
46(1) Everyone commits treason who (a)kills or tries to kill or do bodily harm to the queen (b)levies war against Canada
(c)assists any enemy at war with Canada
(2)(a)uses force to overthrow the government (b)give to another state military or scientific character that will prejudice the
safety or defence of Canada (c)conspires with any person to commit high treason (d)forms an intention to do anything
that is high treason
(3)Canadian citizen or person who owes allegiance to Queen does any of these things inside or outside Canada

Joyce v. Director of Public Prosecutions 1946 (Duties of an alien abroad to country of passport)
-Joyce born US, fraudulently obtained British passport, moved to Berlin & became a propaganda broadcaster,
hired because he portrayed himself as British citizen, captured by allied forces & taken to Britain for prosecution
-he had lived in England for 18 years, tried in Britain for treason and found guilty
-generally aliens only owe allegiance when resident or if abroad when they have maintained a connection with
the state of residence. By his own volition Joyce had maintained his ties with Britain, made no difference he lied
to get the passport, he was entitled to British protection abroad & he extended his duty of allegiance to Britain
-Joyce was hanged but the passport was never found, if he had gone without a British passport the British courts
probably wouldn’t have taken jurisdiction
-no evidence he had taken any overt steps to sever allegiance he owed Britain. HOL found his broadcasts were
not overt severance of the link, the offence itself cannot be viewed as an overt step to sever the link of allegiance

Statelessness
Stoeck v. Public Trustee
-born in Prussia, discharged his Prussian nationality but did not obtain nationality of another state, he has lost his
German citizenship and he is a stateless person
-German municipal law recognizes the condition of a stateless person, it is also recognized by Britain
-whether a person is a national of a country must be determined by the municipal law of that country

Problems of the Stateless Individual
-Art. 15 Un. Dec. of HR – everyone has right to a nationality, no one should be arbitrarily denied of nationality
-no restriction on states at present time to adopt rules that may result in statelessness
-statelessness may result also if nationality is taken away as a penalty or otherwise
-UN Convention of the Reduction of Statelessness of 1961: persons who would otherwise be stateless should
acquire the nationality of the state of birth
-a child of two nationalities may be allowed to renounce one upon coming to majority
                                                                                                                     38
Proof of Nationality
-a passport does not create nationality, no one has a legal right to one
-Canada issues passports so citizens can possess evidence of their identity and national status when entering
another country: ordinary, special and diplomatic passports. Passports are rarely withheld except when the
applicant is indebted to the Government for repatriation expenses or is charged with serious criminal offence
-endorsements placed in passports where bearers have urgent reasons for travel & interim passport facilities

Corporations
-nationality of corporations complicated (1)may have a variety of contacts with different countries
(2)corporations are juridical persons by virtue of national legislation

Barcelona Traction, Light and Power Co. Case – Belgium v. Spain
-Co. incorporated under Canadian law, operated in Spain, when declared bankrupt high percentage of its shares
were owned by 2 Belgian corporations, Belgium claimed compensation from Spain on account of its nationals
-to bring a claim for breach of an obligation to provide diplomatic protection a state must first establish its right
to do so. A)that defendant state has broken an obligation towards national state in respect of its nationals
B)only the party to whom an international obligation is due can bring a claim in respect of its breach
-where legal issues arise concerning shareholders you have to refer to municipal law
-situation here of no analogy to a person in possession of 2 separate bases of protection or of Nottebohm
-shareholders only have a right of action where 1)company ceased to exist [not present here, company merely in
financial difficulty] 2) company’s national state lacking the capacity to take action on its behalf. Questions of
company’s national state lacking capacity to take action requires determination of state of nationality
-for diplomatic protection of corporate entities absolute test of genuine connection not generally accepted
-company’s Canadian nationality generally recognized, incorporated & remained there for 50 years
-where it is a question of an unlawful act committed against a company representing foreign capital, the general
rule of IL authorizes the national state of a company alone to make a claim
-Theory that state of the shareholders has a right of diplomatic protection when the state whose responsibility is
invoked is the national state of the company, but this is not applicable in this case because Spain is not the
national state of the company
-there was nothing to prevent Canada from continuing to grant its diplomatic protection to Barcelona Traction if
is had considered it should do so, rejects Belgium’s claim
-case was settled on this preliminary objection, Belgium had no standing to bring the claim, the only state that
had the right to bring the claim was Canada. Why didn’t Canada espouse the claim? Country of nationality has
no obligation to espouse the claim. Maybe they didn’t espouse the claim because the majority of the
shareholders were Belgian or maybe because Canada was merely being used as a tax haven

Elettronica Sicula S.p.A. (ELSI Case) – US v. Italy
-deals with Treaty of Friendship between Italy and the US to protect foreign investments, expressly included a
right to exercise diplomatic protection of its nationals who are shareholders in a foreign corporation
-Italian company was a wholly owned subsidiary of 2 American companies, Italy requisitioned assets of the
company, US alleges that was a violation of Italy’s international obligations to the US
-requisitioning did not give rise to any liability for Italy as it was not guilty of any internationally illegal conduct
*the language of the FCN treaties of the US effective to extend diplomatic protection to American shareholders
who control foreign local subsidiaries
-Separate Opinion: rights of individual shareholders were not augmented by the treaty.

-some international agreements recognize a place of establishment or a beneficial ownership test as establishing
a right to benefit under the agreement
-fact of incorporation in a given country may make that corporation a national of that country for some IL
purposes but domestic law may require varying degrees of local beneficial ownership before it will be permitted
to carry on certain specific activities
                                                                                                                              39
Limitation on the Use of Force – Chapter 16
    A. Prohibition on the Use of Force
-league of nations covenant left it up to each member state to determine whether or not a breach had taken place

General Treaty for the Renunciation of War, 1928
-signed by 15 states, in this case means ratified
-Art. 1 – condemns recourse to war, renounce it as an instrument of national policy in international controversies
-Art. 2 – settlement of disputes shall never be sought except by pacific means

UN Charter Articles 2(3),(4),(7) -viewed as a codified rule of customary IL binding on all states
-Principle of non-intervention by states embodied in Art. 2(1)
-Art. 2(3) – All members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice are not endangered
-Art.2(4) – All members shall refrain in their int’l relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN
-Art. 2(7) – Nothing contained in the Charter shall authorize the UN to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require the member to submit such matters to settlement
under the present Charter; but this principle shall not prejudice the application of enforcement measures under
Chapter VII [extends to states in their relations with one another]

Declaration on Principles of IL Concerning Friendly Relations & Co-operation among states in
Accordance with the Charter of the UN - viewed as being an elaboration on Charter, although it is not a treaty
is important because it was adopted by consensus, but it is still only a UN resolution 2625

Charter of the Organization of American States
-Art. 18 – no right to intervene in internal or external affairs of another state. Prohibits armed force & other interference
-Art. 19 – no state may use or encourage the use of coercive measures of an economic or political character in order to
force the sovereign will of another state and obtain from it advantages of any kind
-Art. 20 – territory of a state is inviolable, no territorial acquisitions or special advantages obtained either by force or by
means of coercion shall be recognized
-Art. 21 – bind themselves in their IR not to have recourse to the use of force, except in the case of self-defense
-spells out more affirmatively that the UN charter the principle of non-intervention by member states

Case Concerning Legality of Use of Force
-Federal Republic of Yugoslavia instituted proceedings before ICJ against US, UK, France, etc. accused them
with NATO of bombing Yugoslav territory in violation of UN obligations not to use force against another state
-FRY requested ICJ to order respondent states to cease immediately acts of use of force and to refrain from any
act or threat against the FRY. ICJ rejected the request, lacked prima facie jurisdiction b/c FRY had only
deposited its declaration of acceptance in April and the bombings had been initiated in March
-Genocide Convention to which both Canada and Yugoslavia are parties did not provide prima facie jurisdiction
for the measures sought, threat or use of force cannot constitute an act of genocide
-action will now proceed to the merits
-court said that whether or not there was acceptance of ICJ jurisdiction states remain responsible for acts in
violation of IL that are attributable to them and the parties should take care not to aggravate or extend the dispute
-it was stated that the SC has special responsibilities under Chapter VII of the UN Charter when a dispute gives
rise to a threat to the peace, breach of the peace or act of aggression
                                                                                                                 40
Military Activities In and Against Nicaragua
-principle of non-intervention despite examples of violation is customary IL, notwithstanding lack of specific
reference in UN Charter. It was never intended that the Charter should embody written confirmation of every
essential principle of IL in force

-any propaganda or subversive activity undertaken by private individuals is not usually regarded as intervention
unless there is government complicity. Subversion is the most common and dangerous form of intervention.
Includes organization, training and preparation of groups who then infiltrate into another state for purposes of
subversion and terrorism, include any material aid, provocation or support given by a state to minority groups
operating in another state against established regime

Definition of Aggression – UN Res. 3314 + Comments by the Canadian Delegation *remember it’s a resolution
-adopted by consensus because no one raised a formal objection, degree of compromise
-definition drafted does not limit the primary responsibility of the SC for the maintenance of international peace
and security or whether an act of aggression has been committed but is a useful guide to the SC
-Art.1 – aggression is use of armed force by a state against sovereignty, territorial integrity or political
independence of another state, or in any other manner inconsistent with UN Charter as set out in this definition
-accept this definition, concept of statehood is not an essential element of definition of aggression
-Art. 2 – first use of armed force by a state in contravention of the charter is prima facie evidence of an act of
aggression but SC can decide otherwise. Security might look at all the circumstances & find that it is not
aggression, gives the gist that art. 51 does not rule out peremptory self-defence, it is a rebuttable presumption,
state can say they used force first but there was a dire & imminent threat & they acted in proportion to risk of
harm. Leave open the possibility of pre-emptive strike. [read in conjunction with Art. 51 UN Charter]
-rebuttable presumption but armed force not an exclusive determinant. Leaves open inquiry into circumstances
-aggressive intent is one of the other criteria
-Art. 3 – following acts qualify as aggression: invasion or attack by armed forces, allowing territory to be used
to perpetrate an act of aggression against another state [caution because state knowledge & control will vary],
sending by or on behalf of the state armed bands or mercenaries who carry out acts of armed force against
another state [includes not just regular armed forces but also financing of bands] [non-exhaustive list]
-need to read Art. 2 & 3 in conjunction
-Canadian understanding that nothing in this article 3(d) shall be construed as prejudicing or diminishing the
authority of a costal state to exercise its rights in maritime zones within the limits of its national jurisdiction
-Art.4 – these enumerated acts in article 3 are not exhaustive
-Art. 5 – no consideration of political, economics or military serve as justification for aggression, crime against
peace, no territorial acquisitions will be considered lawful
-reaffirms the continuing validity of the Nuremburg Charter and the Declaration of Friendly Relations
-Art.6 nothing in this definition enlarges the scope of the UN Charter – included this because article 7
-Art.7 – nothing in the Res. Prejudices the right to self-determination and to struggle to seek and receive support
in accordance with the Charter and this Declaration, particularly peoples under colonial domination. [who are
the candidates for self determination, says particularly those under colonial and racial domination or other forms
of alien domination? What are the other possibilities? See SD lecture]
-views that even in neo-colonial alien domination situation if you have a group of people who are functionally
subjugated an argument could be made that they have a right to SD. Right of these people to struggle, does that
mean violence or other ways? Right to support, does that mean money or technical assistance?
-point of controversy, settlement of such political conflicts need not be accomplished by violent means

-Canadian opinion that customary IL was there before the UN charter, may not make a state internationally
responsible if it was in fact anticipatory self-defence
-Art. 5 Rome Statute of ICC talks about aggression once parties have agreed to a definition. Some parties argue
UN resolution provides such a definition, but it is generally accepted that definition in Res. is not the one that
                                                                                                                  41
will find its way into Statute of the ICC and is not the binding definition of aggression. The disconnected
slabs of the resolution would not present a definition upon which a person could effectively be prosecuted
-some countries wanted to put into ICC statute that before a person could be prosecuted for aggression SC
would have to determine that a state of aggression was going on, some countries wanted it to be stated that if the
SC said there was aggression the ICC would be bound with respect to that finding but the view of most
countries was that the SC acts selectively and should not be left to determine whether or not there is aggression

Military Activities in and Against Nicaragua
-ICJ: Art. 3(g) of Definition of Aggression reflects customary IL [prohibition on sending bands or mercenaries]
-there is now general agreement on the nature of the acts that can be treated as constituting armed attacks
-includes action by regular armed forces, sending of armed bands, groups, irregulars or mercenaries whose
conduct is so grave as to amount to an actual armed attack conducted by regular forces

    B. Justifications for the Use of Force
Excuses for Intervention
1)Collective intervention by enforcement action under the authority of the SC of the UN pursuant to Chapter
VII, or possibly sanctioned by GA under the Uniting for Peace Resolution
2)Where a state seeks to protect the rights and personal safety of its nationals who are in the state in which it
proposes to intervene (controversial). Essentials are necessity of intervention on account of the imminent
danger, no other recourse open for protection and proportionality in the action taken
3)individual or collective self-defence, where intervention is found to be necessary to repel the danger of armed
attack (Art. 51 UN Charter)
4)one state acting in the affairs of a protectorate state which it is obligated to assist usually under treaty
5)where the state intervened in has committed a gross breach of IL against the intervening state (also
humanitarian intervention)
6)where lawful gov’t of state intervened in has invited the intervention, but invitation must be genuine and real

Art. 51 UN Charter: inherent right of collective or individual self-defence if armed attack occurs against UN
member until SC has taken measures necessary to maintain int’l peace & security. Measures taken must be
immediately reported to SC & shall not affect authority & responsibility of SC to take any action it deems
necessary to restore int’l peace & security
-this article doesn’t deal with the issue of nationality, nothing in Charter about defending citizens
-issue of whether Art. 51 allows for preemptory self-defence? Controversial. If there is an actual armed attack
art. 51 kicks in without any controversy and the state has the right to take self-defence steps
-doesn’t say it has to be on your territory, intention of UN charter not to rule out pre-emptive self-defence, in
some circumstances Caroline pre-emptive self defence may be only option. View that art. 51 wasn’t intended to
rule out customary right to self defence, Art. 2 def. of aggression 1st act rebuttable presumption of aggression
-view that under customary law an attack against a citizen is an attack against the state, state can act to protect
them even though it looks prima facie that they are infringing on the territorial sovereignty of the offending state

-collective self defence which is a part of art. 51. Asks whether if state A is attacked by state B, can state C help
state A based on collective self-defence? Whether state or states assisting the alleged victim of the aggression
have to demonstrate that in some way that they are directly affected? Victim state is entitled to ask for
assistance and it might not be from a neighbouring state. It is not supported by state practice that the assisting
states have to be directly connected or potential victims of the act of aggression

-1981 Libyan gov’t drew a line of death across Mediterranean sea, a line that clearly didn’t fall within customary
or treaty law of the sea. US sent navy jet fighters across line to show they were not acquiescing to Libya’s
claim. US fighters shot down 2 Libyan planes. Was this an inherent right of individual self-defence, pre-
emptive self defence? US had not been attacked but the strategic importance of the Mediterranean was at stake
                                                                                                                  42
-can take preventive measures so long as they are in proportion to the threat
-Chapter VII – Art 41 SC may decide what measure NOT involving the use of force are to be applied, on this
basis tribunals for former Yugoslavia were set up, a constitutional court pursuant to UN Charter
-when NATO started bombing Serbia, decision by prosecutorial office as to whether NATO should be indicted
for war crimes, prosecution used their discretion & did not launch a prosecution, caused controversy
-Art 39 – deciding there is a breach of peace and act of aggression, if it is blatant Art. 51 kicks in
Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and security.

The Caroline – UK v. US 1837 (anticipatory self defence, defence of citizens in danger abroad)
-preventive action in a foreign territory is justified only in case of an instant & overwhelming necessity for self-
defence, leaving no choice of means & no moment of deliberation, act of self-defence must be limited to the
necessity and kept within it, must show the necessity was inevitable
-Britain seized the Caroline (ship), set it on fire and sent it over Niagara Falls. Britain agreed with assessment of
the law but argued they fell within necessity, US gov’t does not believe such a necessity existed
*first apparent recognition internationally of pre-emptive self-defence. To be legitimate self-defence must not
only be born out of necessity but must also be proportionate to the harm to be countered

Nuremburg War Crimes Trials (22 war criminals)
-was it a good defence to argue that when they went into the Baltic states they were actually acting defensively
to prevent the British from getting there first? Evidence presented was there was no serious consideration by
German high command when Germany went into Norway that British navy was going to go in and prevent them
from doing that. Therefore these were crimes against peace, crimes against humanity, aggressive acts of war
-preventive action in a foreign territory is justified only in case of an instant and overwhelming necessity for
self-defence, leaving no choice of means and no moment of deliberation
-attack on Norway not to forestall an imminent Allied landing but to prevent an allied occupation at future date
-Germany argued they alone could decide whether preventive action was necessary, but court says whether
action is aggressive or defensive must be subject to investigation and adjudication if IL is ever to be enforced

Military Activities in and Against Nicaragua Case
-US claimed that by providing upon request proportionate and appropriate assistance to third states it was acting
in reliance on the inherent right to collective self-defence in Art.51 of the Charter
-courts says that states represented in the GA regard the exception to the prohibition on force constituted by the
right of individual or collective self-defence as already a matter of customary IL

Israeli Attack on Iraqi Nuclear Research Centre – Security Council Debate
-Israeli military aircraft flew over Iraq and bombed the nuclear installation , Iraq asserted it was an act of
aggression and Israel claimed it was an act of self-preservation that could not be achieved by diplomatic means
-well documented that Iraq’s position was that they were still in a state of war with Israel
-international atomic agency passed a resolution condemming what Israel had done, SC adopted a resolution
strongly condemming what Israel had done & calling on Israel to refrain from doing those things again in future
-in 1981 Israel was not a party to non-proliferation treaty. Hands were tried at that time by seeming cooperation
of Iraq with inspectors and the fact that Israel was not party to the treaty concerning nuclear issues
-failure of Israel to exhaust all potential peaceful means, but what were those means apart from going to the SC?

Security Council Resolution 487 (1981)
1)condemns military attack by Israel in violation of the Charter and norms of international conduct
6)considers Israel entitled to redress for destruction, responsibility for which is acknowledged by Israel
                                                                                                                    43
-US view Israelis only violated UN Charter b/c they had not exhausted peaceful means for resolution of
dispute
-Canada’s view: use of armed force confined to situations where necessary to repel actual aggression.
Otherwise states would have an obligation to resort to pacific means of settlement unless SC decides otherwise.
Some states have view that it is permitted to engage in anticipatory self-defence if a)armed aggression is
imminent according to clear evidence b)this armed aggression might put in jeopardy existence of victim-state

Military Activities in and Against Nicaragua: wording & intent of Art. 51 do not eliminate right to self-
defence under customary IL or confine its scope to expression of Art. 51. Pre-requisites to legitimate exercise
of right to self-defence (individual or collective) 1)victim state must make formal & public statement that it has
been attacked [or that they are going to be attacked & have no alternatives besides self-defence?] 2)assisting
states must receive a formal and public request for and from the victim [has to be a specific invitation made to
specific countries] [but note that right to collective self-defence is essentially the right of the assisting state and
not the victim] Can argue that this was obiter dicta because right to self-defence was not at issue in this case
Legality of the Threat or Use of Nuclear Weapons Case: the dual condition of necessity and proportionality,
established in customary IL applies equally to Art. 51 of the UN charter, whatever the means of force employed

Self-Defence of Nationals
Entebbe Raid
-airplane hijacked by PLO, landed in Uganda, hostages rescued by Israeli Military, whether Uganda tried to
protect hostages or cooperated with hijackers, only passengers kept were Israeli or Jewish people, members of
Ugandan armed forces were helping to guard passengers so the Israeli perspective was that this was a surgical
strike, they weren’t coming to invade Uganda and all they wanted was to protect its nationals in mortal danger,
right recognized by all legal authorities in IL, only its limits are disputed, means necessary to fulfill purpose.
-United Republic of Cameroon: states have an obligation to settle their disputes by peaceful means

-US: Generally a state is entitled to not have its territory violated BUT there is a well-established right to use
limited force for the protection of one’s own nationals from an imminent threat of injury or death in a situation
where State in whose territory they are located is either unwilling or unable to protect them.

Brierly, Law of Nations – when not attended by suspicion of being a pretext for political pressure cases of this
form of intervention have generally been regarded as justified by sheer necessity of instant action to save lives of
innocent nationals whom local gov’t is unable or unwilling to protect. Every effort must be made to get UN to
act but if the UN is not in a position to move in time difficult to deny legitimacy of action in defence of nationals
O’Connell – 2(4) UN Charter should not be interpreted to prohibit force which is limited in intention and effect
to the protection of a state’s own integrity and its national’s vital interests, when the machinery envisaged by the
UN charter is ineffective in the situation

-President of Uganda had claimed he was going to erect a statute of Hitler in the main square - probably had an
impact on the decision taken. No resolutions were adopted by the UN SC because any condemnation of Israel
was going to be vetoed by the US so we simply have the debate

-in terms of responsibility of Uganda, Israel would presumably have said there was a responsibility of Uganda
to protect foreigners on their territory unless unable to do so. Israel would also have argued that there was a
multilateral treaty obligation that had been ratified by both Israel and Uganda, 1970 Hijacking Convention.
-thrust of the Convention is 1)to define the defence 2)provide obligations of state parties
-state parties where a hijacked plane lands are obligated to try to arrest the hijackers, to secure the plane, to
ensure the safety of the passengers and the crew and to facilitate their onward passage
-obligation having arrested the hijackers to either extradite them to a state that legitimately claims jurisdiction
over the offence. No bilateral extradition treaty between Israel and Uganda, but the Hague convention provides
that states may use the multilateral treaty as a vehicle for extradition but they don’t have to
                                                                                                                  44

-rescue attempt of US in Tehran – attempt to rescue with aircraft shot down so mission was aborted
-Grenada Rescue attempt – coup d’etat, state of political unrest. 1000 Americans living there. US & Caribbean
troops intervened & overwhelmed new gov’t. Were these US citizens really in danger? Most say US went in
because worried newly installed gov’t was likely to make Grenada into another Cuba (Soviet military purposes)

Humanitarian Intervention
-a general right to intervene forcibly for non-citizens for humanitarian reasons is controversial
-argument that art. 51 coupled with provisions in art. 2 do not estoppe justification of humanitarian intervention
so long as it is not for political persons but for the sole purpose of humanitarian intervention
-fear over abuse of humanitarian intervention, gov’ts using as an excuse to meddle in affairs of a weaker state
-restraint upon UN humanitarian intervention unless taken by the SC under Chapter VII.
-SC assisting Kurds in Iraq in Res. 688, 1991. Indicates potential future role UN might have in situations where
there are serious question of human rights violations, need for humanitarian assistance and lack of democracy
-for UN to take action SC has to adopt a resolution calling on member states to assist
-art. 25 Charter compel state action on its resolutions that call for participation and cooperative action
-art. 2(7) prohibition of intervention in domestic affairs of a state - does not rule out enforcement action by UN
-US intervention in Panama - is restoration of democracy as a ground for humanitarian intervention?

Security Council Resolution 688 (1991) (Kurds in Iraq)
5. request Secretary General to use all the resources it his disposal including those of the relevant UN agencies to
address urgently the critical needs of the refugees and displace Iraqi population
-instigating humanitarian intervention, estimated btn 400-1000 Kurdish refugees dying every day at Turkish
border. Fear that if there was an intervention on behalf of Iraqi Kurds same would happen in other countries
with significant Turkish populations [Iran, Syria] so SC was dragging its heels
-BUT resolution does not mention humanitarian intervention, it does recall 2(7) of Charter but then SC states
repression of the Iraqi Kurdish population which led to a massive flow of refugees towards & across int’l
frontiers threatened peace & security in region, no reference to chapter 7 Charter or to Article 39
1)condemnation of the repression, consequences of which threaten peace and security
2)demanding Iraq remove the threat by removing the oppression
3)insists Iraq allow access by int’l humanitarian organizations to render assistance and provide facilities for them
4)&5)asking SC to pursue these humanitarian measures and use all the resources at his disposal
6)appeals to all member states and humanitarian organizations to contribute to these humanitarian relief efforts
-resolution did not directly say humanitarian intervention but that was basically legitimization of the intervention

Invitation
-invitation issued by one government to another to participate in its domestic or external affairs is not classified
as intervention or aggression, provided requesting government is the lawful government & the invitation is
genuine and voluntary and is emanated from a person with the authority to make it
-Governor-General of Grenada invited US to assist
-Kuwait gov’t in exile appealed for help to international community in 1990. UN SC authorized assistance but
without such action at UN an argument for collective self-defence based on invitation could be made.
-seems as though assistance upon invitation to quell a revolution is legitimate so long as the government that
has issued the invitation is not suppressing a self-determination movement

-Melosovic war crimes tribunal, he argued the tribunal had no jurisdiction. He decided if anyone was going to
speak on his behalf he would do it himself
-Mr. Ramsey Clark saying he is going to represent Saddam but we don’t know if Saddam has actually agreed.
Generally in tribunals if you have a lawyer representing you, the only time you get to say anything is to give
testimony on your own behalf. Looks like Hussein will represent himself with the advice of advisors without
having them as official counsel. Hussein claiming it is not a court of law but rather a court of occupying forces

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:37
posted:12/14/2011
language:English
pages:44