International Public Law Framework

Treaties and Customary International Law

1)Treaties – VCLT

  1. Treaty Making
  1. Treaty Obligations
  2. Performance
  3. Scope
  1. Treaty Interpretation
  2. Principles that can be included (highlighted part)
  3. Sources:
  4. Equity
  5. Judicial Decisions
  6. Writers
  7. Hierachy of sources and Jus Cogens
  1. Invalidity, Suspension and Termination of Treaty
  1. Invalidity
  2. Error
  3. Fraud
  4. Coercion
  5. Conflict with peremptory norm in IL
  1. Termination or Suspension
  2. Consent
  3. Reasponse to breach
  4. Response to Impossibility
  5. Auto Term conflict with Peremptory Norms
  1. Consequences of Termination or suspension
  2. See articles 70 to 72

2)Customary International Law

  1. Theorists: Positivist v. Hans Kelsen
  1. Two Basic Elements
  1. Material Facts
  2. Duration
  1. Consistency
  2. Asylum Case
  3. Fisheries Case
  1. Repetition
  2. North Sea Continental Self case
  1. General – number of participating states
  2. Military and Paramilitiary in Nicaraqua case
  1. Failure to act
  1. Subjective Belief – opinion juris
  2. Subjective element
  3. Amount to settled practice
  4. Issue of local or regional customs
  5. Treaty v. Customary International Law
  6. What is evidence of this? (Highlighted page 20)

3)Exceptions to Universality Customary IL

  1. Regional Customary International Law
  2. Asylum Case
  3. Passage over Indian Territory Protugal v. India
  1. Persistent Objectors

4)Other sources

  1. General principles of Law
  2. Comparativism
  3. Categorist School
  1. Unilateral Declarations
  2. Intent to bind itself
  3. Subject matter of the decleration is readily amenable to more usual process of negotiation and conclusion of an agreement between states
  1. Soft laws and other influences on the developments of IL
  1. Concepts of Jus Cogens Norms and Ega Omnes Obligations

International Legal Personality

1)Prerequisites of Statehood in IL – Convention on the Rights and Duties of States

  1. Permanent Population
  2. Defined Territory
  3. Effective Government
  4. Capacity to enter into relations with other states

2)Additional element of statehood: recognition of other states

  1. Recognition of states
  2. Recognition of Governments

3)Membership in the UN – Articles 3 and 4

  1. Peace-loving
  2. Be a state
  3. Accept obligations in UN Charter
  4. Be willing and able to carry those obligations out

4)Changes in States and Governments

  1. Succession and Treaties
  2. Colonial Boundaries – uti posidetis juris
  3. Non-Colonial Boundaries
  4. Explicit adoption (not mere decleration) of treaty (Article 9 + Article 24) or participation (Artcile 17)
  5. In force in old state unless purpose in compatable (Article 15)

5)Rights and Duties of States

  1. Right to Sovereignty
  2. Right to Sovereignty Equality
  3. Duty of non-intervention
  4. Duty to respect IL
  5. Protection of international Human Rights
  6. Self Determination

States and Territory

1)Jurisdiction over Land

  1. State Territory: land base, subsoil below, airspace abov, lakes and rivers (inland waters) and territorial sea
  2. Territorial Sovereignty – Definition page 34
  1. Colonial Doctrines
  1. Doctrines of Discovery
  2. Effective Occupation– requires continuous and peaceful display of state functions accompanied by the requisite intent toestablish permanent and exclusive control.
  3. Nicaragua v. Columbia – list of things, and what carried the day
  1. Denmark v. Norway – legislation+ nature of the land has to be low population and inaccessible character of the uncoloniezed parts
  1. France v. Mexico – when are unibbited at the time of contact possession must be considered accomplished
  1. Caveats
  2. Distinction between discovery and effective occupation – depends on the nature of the land in question
  1. Effective occupation as a basis of sovereignty
  1. Indigenous people
  2. Q=Western Sahara, Advisory Opinion – agreements with local inhabitants comprising of tribes or peoples having a social and political organization consiutes derivate roots of title - not terra nullius
  3. Antarctica – example
  1. Prescription
  2. The 4 things needed for possession by prescription to mature into title
  3. Island of Palmas Case – obtained through peaceful, open and public continues possession
  1. Botswana v. Namibia – no prescription argument because no evidence tribe occupieda titre de souverain. Agricultural use of land does not indicate this type of occupation
  1. Titre de souverain: exercising state authority on behalf of the state in question
  1. Cameron v. Nigeria:no acquiescence in the abandonment of its title in the area in favour of Nigeria
  1. Canadian Artic: One way around it is occupation by the inuit people
  1. Subjugation
  2. Conquest and annexation
  1. Conquest
  2. Two elements + Articles 2(3) and 2(4) of UN Charter got rid of this
  1. Self-Determination
  2. Definition + Article 1(2) and 55 of UN Charter + Vienna Declaration of 1993
  1. Suggestion Self-determination reaction to IL colonization
  1. Legal Consequences for states – Nambia (pg 38): the court affirmed that self determination expands to all territories whose people have not yet attained full measure of self government.
  1. Western Sahara, advisory Opinion – same as above + the application of self determination to a speedy end of colonial situations
  2. See comments on 3 GA resolution in CAN for more than one process of decolonization for non-self governing territories:
  3. Emergence of a sovereign independent state (GA res. 2625
  4. Free association with an independent state or (GA res. 1541)
  5. Integration with an independent state (GA res. 1541)
  1. East Timor Case: The ergo nomes nature of self determination is different from the rule of consent to jurisdiction, The court cannot rule using one to overrule the other.
  2. Israeli Wall in Palestine – can’t do to self-determination

Indigenous peoples and self- Determination: UNDRIP Articles in CAN + International Labour Organization Convention articles 14 and 15 speak of such right of determination

  1. Secession Reference – Definition of People in SD

2)Jurisdiction over Water - UNCLOS

  1. Establish Baseline – See CAN
  2. Territorial Sea12 NMiles out is Territorial Sea (Article 3)
  3. International Straits – used for navigation,– narrow passages on ocean, but not if exists through an area of high seas: 1) Continuous and expeditious tansit, 2) no express condition of innocence 3) no right of suspension or prevention (Article 34, 36 and 38 – See CAN)
  4. Example: Northwest Passage
  5. Archipelagic Waters Between islands… (Article 47)
  6. Contiguous Zone – mas 24 NM from baseline, must be claimed, Scope of jurisdiction and fiscal laws like, immigration laws, fiscal laws, sanitary laws (Article 33)
  7. Exclusive Economic Zone: 200 NM from baseline, bust be claimed, not sovereignty, see rights and duties of state – issues of fisheries zones – Part V of the UNCLOS
  8. Continental Shelf - 200 NM from Baseline
  9. High Seas Everything beyond the above – Res communis area – main freedoms and limits see CAN

Interaction Between International and Canadian Law

1)Canadian Domestic Law’s Treatment of Treaties

  1. Dualist Approach v. Monist Approach
  2. Capital Cities Communications v. CRTC: international agreements do not bind Canadian law unless it is in the act or there is a gap to fill. There is a CL presumption that the legislature does not intend to break an international treaty
  3. Francis v. Canada: Certain treaties, treaties of peace can be used to interpret domestic legislation without it being implemented through parliament

2)Canadian Legislative Jurisdiction and Treaty Transformation

  1. Labour Conventions Case  Treaty implamentation is subject to the division of powers

3)Direct significance of Treaties in Canadian law

  1. Significance of a Legislatively Implemented Treaty
  2. National Corn Growers Association v. Canada: at the preliminary stage of determining if the domestic legislation contains an ambiguity a treaty can be used to fill in the gap.
  3. Definition of a gap: latent ambiguity in the text of the statute even if this was “clear in itself”
  1. Puspanathan v. Canada: where the propose of a provision was to implement a convention, international interpretation schemes apply. The treaty’s purpose and context has to be viewed in this analysis.
  1. Significance of Legislatively Unimplemented Treaty
  2. Baker v. Canada: ratification of the Convention on the Rights of the Child, Dube’s usage of the values reflected fro convention to help inform a contextual approach to statutory interpretation and judicial review.
  1. Merk Fross Canada Ltd. v. Canada: Do not have to adopt the treaty definition of “trade secrets”
  2. R. v. Hape – presumption of conformity:
  3. Legislation is presumed to act consistent with treaties it sings on to
  4. Presumption is rebuttable tho, must be done expressly

4)Canadian Domestic Law’s Treatment of Customary International Law

  1. Monist Approach of Customary International law – Doctrine of Adoption/ Presumption of conformity applies to customary IL which automatically applies.

5)Relevance of International Law in Interpreting the Canadian Charter

  1. Minimum Content: the charter should generally be presumed to provide protection at least as great as that afforded by similar provision in international human rights documents Canada has ratified (Slaight Communications Inc. v. Davidson). But in obiter in Suresh v. Canada the court stated that s, 7 of the charter may not prohibit deportations in exceptional circumstances so while informing, but not controlling interpretation.
  1. Maximum Consistency: where ever possible the court has sought to ensure consistenciy between interpretation of the Charter and Canada’s international obligations and relevant principles of IL.
  2. Define Content of the Charter:
  3. Suresh: IL rejects deportation to torture even where national security interests are at astake, this is a norm that informs fundamental principles of justice in s. 7
  1. Kazemi Estate v. Islamic Republic of Iran: the court was “prepared to accept jus cogen norms can generally be equated with principles of fundamental justice and are helpful to look to in the context of issues pertaining to IL.
  1. Justifying Limitations of Rights
  2. R. v. Keegstra: This has to do with the significance of human rights law and Canada’s commitment in the area in assessing the Parliament’s objective under s. 1.
  1. Delimiting Application of the Charter
  2. R. v. Hape: however, cannot enforce the Charter on another country.

International Wrongs and Settlement of Disputes

1)State Responsibility

When primary international legal obligations are breached secondary rules of responsibility are triggered.

  1. Step 1: existence of an international legal obligation in force
  2. Step 2: there was an act or omission which violates such obligation and the act or omission is imputable to the state responsible and
  3. Step 3: that loss or damage has resulted from the unlawful act
  4. All in Articles 1,2,12, 13  ILC
  1. Attribution of conduct to State: a state is only responsible for acts of its servants or persons that are imputable or attributable to it. (Draft Article on the Responsibility of States for Internationally Wrongful Acts – Article 2)
  2. Have to be a state organ (Article 4),
  3. Empowered by stat’s law: entity also considered act of state (Article 5)
  4. Conduct of organ placed at disposal of another state (Article 6)
  5. Even if the entity or person exceeds authority still state responsible (Article 7)
  6. Bosnia and Herzegovina v. Serbia and Montenegro – Genocide): the conduct has to go beyond mere appearances (effective control test wins over overall control)
  7. Example Cass:Veasquez Rodriguez Case: any violation carried out by an act of public authority or by person who use their position of authority is imputable to the state
  1. Conduct of Other Entities
  1. Person Acting Under State Instructions, Direction or Control
  1. Conduct directed or controlled by state (person or group acting on instruction)(Article 8) but there has to be a specific factual relationship between state and person.
  2. Nicaragua v. USA: have to have effective control of forces
  3. Prosecutor v. Dusko Tadic: Not necessary that the state issue specific instruction to the group or its leader + Overall control which another case says is overbroad.
  1. State can adopt (and acknowledge) certain act, language has to be clear and unequivocal (Article 11 of Convention on Genocide in CAN) + Iran Case “Spies and mercenaries”
  1. What Precludes Wrongfulness?  Each has a test see CAN
  2. Consent
  3. Self-defence
  4. Counter Measure: see page 62
  5. Force Majeure
  6. Distress
  7. Necessity

1)Establishing a Breach of international Obligation

  1. There is a breach when an act of a state is not in conformity with what is required of it by an international obligation (Article 12)  Doesn’t ID source, could be all IL.
  2. State has to be bound (Article 13)
  3. France v. Mexico: objective Rule for Breaching international obligations
  4. Caveat: the mental element may vary by circumstance but if cant discern only act is important

2)Remedies

  1. Cessation
  2. Example: Arrest Warrant of April 11, 2000
  3. Reparation
  4. Restitution
  5. Compensation
  6. British Ship “I’m Alone” v. US Example
  7. Satisfaction

3)Invoking State Responsibility

  1. Standing
  2. Only by states see Artciles 42, 46 and 48 of ILC Articles
  3. Example Blguim v. Senegal  party because in the convention any state can invoke
  1. Espousal Claims
  2. Greece v. UK: once the state has taken up a case on behalf of one of its subjects before an international tribunal the state is the sole claimant. Person given Diplomatic Protection
  3. ILC Draft Articles on Diplimatic Protection Article 14 (exhaust locat remedies) + Greece v. UK – Test: have to assume the truth of the facts on which the claimant state bases its claim,
  4. Exception – Article 4 of Hague convention – not a person who is also a national of the other

4)Procedures for Settling International Disputes

  1. Diplomatic Procedures
  2. Negotiation
  3. Good Offices + Mediation
  4. Arbitration
  1. Litigation
  2. ICJ
  3. Must Exhaust Diplomatic Negotiations
  4. Jurisdiction: Contentious or Advisory
  5. See Article 36 of Statute of ICJ + Article 93 of UN Charter

Use of Force

Starting Point: Articles 2(3) and 2(4) says states should refrain from use of force in IR. This includes Several things from the Declaratory Principles  In CAN (one is War of Aggression)

Nicaragua v. USA: Principle of the use of force in UN Charter correspond to customary IL. It is either the use of force or the threat to use force (See case for what actions were considered use of force)

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: cannot threaten to use unlawful force and possession of nukes is not an unlawful threat.

Guyana v. Suriname: international wrongful act does not justify the threat of the use of force.

Definition of Aggression

1)Friendly Declarations:

2)Definition of Aggression, GA Resolution 3314: use of armed force by a state against another state’s sovereignty, territorial integrity or political independence (Article 1). First use of force is considered prima facie aggression (Article 2). The Resolution has a list of acts that constitute aggression in Article 3.

Exceptions to the Prohibition of Force

1)Collective Military Action Authorized by the Security Council

  1. Article 42 of the UN Charter Authorizes this where the SC can take any means necessary to restore or maintain international peace. Which is the formulation of the SC to authorize members to act (Resolution 678 – Annexation of Kuwait)
  2. In the AG’s Advice on the Iraq War – US argued that member states can decide whether Iraq violated a resolution and can take action as a result due to Res. 1441 stretching “serious consequences” and the use of force for the “material breach”.
  1. Argument SC has a responsibility to Authorize use of force in Humanitarian Intervention
  1. Unilateral Right to intervene for humanitarian reasons? No, because:
  2. Despite the use of force by NATO members in the Use of Forces (Yugoslavia v. Belguim) case where NATO justified it by saying it acted to protect fundamental values enshrined in the jus cogens, there is no right of unilateral humanitarian intervention in IL today as stated in the Nicaragua case. Even in Kosovo the SC did not condemn the action of those that acted yet states do not agree on wording when to interfere.
  1. Can the SC intervene anyway?
  2. Sure. Responsibility to the protect (see CAN for lay out and authority)
  3. Without SC?
  4. Difficult: Chapter VII of the UN Charter clearly states that it is the realm of the SC to address the full range of security threats with which states are concerned. However the “A more secure world” report (in CAN for full title) articulates a shift occurringroom concerns over sovereignty to a responsibility to protect. But only seen as a very last resort, still tenuous and fraught will politics.
  5. See Resolutions and three polar structure from 2009

2)Self-Defence

  1. General Principle
  2. Article 51 allows SD to be used without SC authorization, talks of an inherent right

Example: Oil Platforms Case

  1. Contentious Exceptions
  2. Self- Defence Against Non-State Actors
  3. With the rise conflict with non-state actors following 911, such justifications have become ever present. However, Article 51 says nothing of non-state actors. In Justifying this the US claimed al-Qaida was supported by the Taliban and therefore Afghanistan (covering their basis for use of force argument for normal self defence argument).
  1. Pre-emptive Self-Defence v. Anticipatory Self Defence
  2. See Definition for each
  3. Pre-emptive self-defence (Bush Doctrine) debunked see A more Secure word on page 78.
  4. Anticipatory Self-Defence –still contentious, not customary IL per se.

NOTE: Canada’s justification for Syrian intervention is similar to the Bush Doctrine in calling ISIS a threat to Canada.

International Criminal Law

1)History of the ICC

  1. Note the definition of Crimes against Humanity
  2. Nullum Crimen sine lege
  3. The various attempts to bring the ICC to life

2)Genocide

  1. Prosecutor v. Radislav Krstic
  2. Step 1: Targeted group must be at least a substantial part of the group to have an impact of the entire group indicates which indicates an intent to destroy.
  3. List of considerations (not exhaustive – guidelines in case):
  4. Number of people killed
  5. Importance of the people killed
  6. Is the specific part of the group killed emblematic of the over all group or is essential to the group’s survival
  7. Step 2: Genocidal Intent
  8. Where the circumstances permit the inference that the killing of a specific group was done with genocidal intent (despite the transferring of women and children which did not undermine the finding of the intent here)

3)International Criminal Court

  1. Draft Code  Article 18  Crime Against Humanity
  1. Rome Statute of the ICC
  2. Jurisdiction: genocide, crimes against humanity, war crimes and the crime of aggression
  3. Proceedings Initiated by prosecutor, state party, by the SC
  4. State Acceptance Requires  Several Forms
  5. Obligation by member states
  6. Consent by states appearing
  7. National legal systems are unwilling or unable to genuinely investigate or prosecute individuals suspected of having committed relevant crimes
  1. Not Principles reflected in Provision of Rome Statute
  2. Non-retroactivity
  3. Exclusion of jurisdiction for children under 18 at the time of alleged commission of crime
  4. Irrelevance of a Person’s official capacity
  5. No statute of limitations to crimes within jurisdiction
  6. Individual criminal responsibility for aiding and abetting, ordering or inducing commission of crimes
  7. Command responsibility
  1. The Court
  2. Three main bodies
  3. 18 judges
  4. Seat in the Hague in Netherlands, finances by parties to statute

4)Terrorism