Table of Contents
The Normativity of International Law
Kindred 1-12
Louis Henkin et al, “The Nature of International Law”
The Discourse of International Law
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996]
Ratio: There can be no doubt as to the applicability of humanitarian law to threat/use of nuclear weapons; however, court can’t make any conclusions on the legality of the use of such a weapon were a state to be in a situation of last resort and extreme self-defence (cop-out by the ICJ)
Legality of the Threat or Use of Nuclear Weapons; Dissenting: (Weeramantry)
Ratio: Bland disembodied language should not be permitted to conceal the basic contradiction between the nuclear weapon and the fundamentals of international law
International Legal Subjects: States
Kindred, (13-43)
1. States and Statehood
Montevideo Convention on the Rights and Duties of States (1936)
The original criteria for statehood
Austro-German Customs Union Case [1931]
Ratio: Where there is no relation of superiority and subordination, it is impossible to speak of dependence within the meaning of international law
2. Recognition
S. Williams and ALC de Mestral, “Theories of Recognition”
Canadian Practice of Recognition of States [1972]
Approaches to Recognition of Governments [1988]
Charter of the Organization of American States [1948]
Tinoco Arbitration, Great Britain v Costa Rica [1923]
Ratio: * Non-recognition of a gov doesn’t affect the rights/responsibilities of the state, but their execution is hindered; Treaties in force will continue to bind the state, but may be inoperative during the period of an unrecognized gov; Foreigners investing in a country with an unrecognized gov have added risk because their country of origin has no diplomatic channels; in this case C.’s new gov wins because obligations made by T. were against national laws.
Island of Palmas Case, Netherlands v United States [1928]
Ratio: “Sovereignty in the relation between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state;” If a title has already been completed based on continuous peaceful sovereignty a newcomer can’t, based on inchoate title, push them out(This case is the major authority on title to territory).
Charter of the United Nations Articles 1 & 2
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations [1970]
Military Activities In and Against Nicaragua [1986]:
Ratio: Court held that the adoption of the Declaration affords an indication of the legal opinion of signatory states as to customary international law on the question of the less grave forms of the use of force
Types of States
SA Williams and ALC de Mestral, “Federal States”
Max Cohen, “Canada and the International Legal Order: An Inside Perspective
Friedrich Nietzsche, “Thus Spake Zarathustra: A Book for All and None”
Bauman Zygmunt, “Modernity and the Holocaust”
International Legal Subjects: Peoples
Kindred, (70-100)
Charter of the United Nations Articles 1(2), 55, and 73
Declaration on the Granting of Independence to Colonial Countries and Peoples [1960]
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations
Western Sahara Case [1975]
Ratio: It is for the people to determine the destiny of the territory, not the territory the destiny of the people; self-determination takes precedence over historic title
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004]
Ratio: The wall extremely limits the exercise of the Palestinians’ recognized right to self-determination and constitutes a breach of Israel’s obligation to respect that right; the right to self-determination is recognized as a legal right erga omnes (binding on all states – in which all states have a legal interest)
Reference re Secession of Quebec, [1998]
Ratio: A state whose gov represents the whole of the people resident within its territory on a basis of equality and without discrimination and respects the principles of self-determination is entitled to the protection under international law of its territorial integrity; right to external self-determination only present in extreme circumstances: ex. decolonization; this doesn’t rule out de facto secession, which would depend, for legitimacy, on international recognition.
Tinoco Arbitration, Great Britain v. Costa Rica, [1923]
Ratio: principle of State Continuity is the international norm; obligations entered into by previous govs bind subsequent govs; this case is exception since T. bound Costa Rica to obligations that were against its national laws, so they are unenforceable.
Succession to Rights and Obligations
SA Williams, “International Legal Effects of Secession by Quebec”
Vienna Convention on Succession of States in Respect of Treaties, [1978]
Mahatma Gandhi, “Selected Political Writings: Swaraj”
International Legal Subjects: International Organizations
Kindred (43-64)
SA Williams and ALC de Mestral, “Intergovernmental Organizations”
The United Nations
Namibia Case, Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276, [1970]
Ratio: Member states are under an obligation to follow the resolution of the Security Council and all member states are under an obligation to recognize the illegality of SA and to refrain from lending support/recognition/assistance to SA as concerns Namibia: UN Charter 25
Aerial Incident at Lockerbie Case, [1992]
Ratio: decision of the Security Council rendered binding under UN Charter 25 overrides the Montreal Convention treaty.
Reparations Case, [1949]
Ratio: The UN is a subject of international law capable of possessing international rights/duties, and is capable of maintaining its rights by bringing international claims against states
International Legal Subjects: Non-Governmental Organizations
Kindred (65-67)
Prosecution v Simic
Ratio: The right to non-disclosure of information relating to the ICRC’s activities in the possession of its employees in judicial proceedings is necessary for the effective discharge by the ICRC of its mandate; the signors of the Geneva Conventions have an obligation to respect this; the ICRC has disclosed in exceptional circumstances: ex. Rwanda.
International Legal Subjects: Transnational Corporations
Kindred (67-69)
Texaco v Libya
Ratio: Expropriation of property is an uncontested/universally accepted principle of permanent sovereignty over a state; however, exercise of that right is subject to some conditions (compensation)
Sources: Treaties – ICJ Statute 38(a)
Kindred (107-110, 113-132, 137-147)
Military Activities In and Against Nicaragua (Nicaragua v US), [1986]
Ratio: One state is justified in terminating the operation of a treaty on the ground of the violation by the other party of an essential provision of the treaty (Vienna Convention art 60, para 3(b)); But if the two rules also exist as rules of customary international law, failure of the one state to apply the one rule doesn’t justify the other State declining to apply the other rule
Vienna Convention on the Law of Treaties (criteria for treaty)
Anglo Iranian Oil Company Case, [1952]
K between gov of Iran and A-I Oil company held to create no obligations between UK/Iranian governments; not a treaty, it is a K between the two signing parties only; Vienna Convention only applies to written treaties between states
Nuclear Tests Cases: Australia v France, New Zealand v France, [1974]
Ratio: Declarations made by way of unilateral acts concerning legal/factual situations may have the effect of creating legal obligations; intent is gleaned from interpretation of the act
Conclusion of a Treaty
Reservations to the Convention on Genocide Case, [1951] ICJ
Ratio: A party that maintains a reservation that is objected to by one or more other parties but not others can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention (promoting flexibility in treaty formation to entice more states to sign on)
Legal Effects of Treaties
Free Zones Case, France v Switzerland, [1932]
Ratio: Nothing preventing a third State from agreeing to the object and effect of a treaty and thereby creating rights in its favour if it is willed by the signatory states and the third party; however, can’t force 3rd party to adhere to treaty of which it is not a signatory: VC 34
Operation of Treaties
Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), [1997]
Ratio: unless means of termination are included in the treaty, a party cannot unilaterally terminate a treaty without consent of parties or in accordance with one of the ‘Force Majeure’ provisions in the VC
Borrows and Rotman, “Aboriginal Legal Issues” (295-310)
Sources: Custom – ICJ Statute 38(b)
Kindred (148-167)
The Steamship Lotus, France v Turkey, [1927]
Ratio: Vessels on the high seas are subject to no authority except that of the State whose flag they fly; however, this doesn’t affect the exercise of territorial jurisdiction in a state over acts which have occurred on board a foreign ship on the high seas; there is no customary international law establishing exclusive jurisdiction of the State whose flag was flown
North Sea Continental Shelf Case, Germany v Denmark and v Netherlands, [1969]
Ratio: Some treaties codify customary law, others try to create it; for a principle to become customary international law, it must (1) be a settled state practice AND (2) opinio juris (carried out by a majority of states who consider it a legal obligation)
Right of Passage over Indian Territory Case, Portugal v India, [1960]
Ratio: Local custom can establish rules of customary international law between states when the practice is recognized as long-standing and regarded as a right/obligation
Asylum Case: Columbia v. Peru
Ratio: absent consistent compliance and opinio juris, customary principle of international law will not be found; a clear indication of crystallization is codification; refusal of this by one party is indication of no custom
Breugelmans and Poortinga, “Emotion without a Word: Shame and Guilt Among Rara’muri Indians and Rural Javanese”
Sources: General Principles and Soft Law – ICJ Statute 38(c)
Kindred 111-112, 167-182, 689-696
Prosecutor v Erdemovic, [1997] (decision of McDonald/Vohrah; dissent of Cassese)
Ratio: there is no general principle of international law establishing Duress as a defence to all crimes (Statute of the ICC applies Duress as a general defence exonerating criminal responsibility: ICC 31(d))
Erdemovic Case
Texaco v Libya, [1977]
Ratio: Right of expropriation is a right of all states as long as it obeys the general principles of international law (accepted by a majority of states): (1.) In pursuance of a public purpose (broadly interpreted: see Amoco International Finance Corp v Iran) Doing it for money shouldn’t be, but often is, used as the main reason (has never really been challenged; (2.) Non-discriminatory (hasn’t been used very often either); (3.) Gives rise to appropriate compensation
Bindreiter, “Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine”
National Application of International Law – Custom
Kindred 183-195
Foreign Legations Case, 1943
Ratio: Canada has an adoptionist approach to customary international law, as long as it does not directly conflict with existing national laws
Saint John v Fraser-Brace Overseas Corp, [1958]
Ratio: adoptionist approach to CIL
Bouzari v Iran, [2004]
Ratio: customary international law does not apply where Canada has domestic legislation directly contradicting it
* Department of Northern and Indian Affairs, “Statement by Canada’s New Government”
* “Regarding the United Nations Declaration on the Rights of Indigenous Peoples” (2-2936)
National Application of International Law – Treaties
Kindred 195-221
Federal Position, from Canada, Department of External Affairs (1968) (p. 195)
Ratio: Treaties in Canada are incorporated according to the transformationist approach as opposed to the Adoptionist Approach taken with Customary International Law
Canada v Ontario, [1937] Labour Convention Case
Ratio: If treaty obligations signed by the federal government fall under provincial jurisdiction, it cannot force the provinces to change laws to comply with its treaty obligations; Constitution ss. 91/92 apply.
Re Arrow River and Tributaries Slide and Boom Co. Ltd., [1931] Ont.C.A. and SCC, p. 214
Main idea is that each judge bends the Act or the Treaty so as to prevent an open conflict
R v Crown Zellerbach Canada Ltd., [1988]
Ratio: if possible, courts should make effort to interpret Canadian law in line with its international obligations (so opposite of Arrow River Case)
* Borrows and Rotman, “Aboriginal Legal Issues: Cases, Materials and Commentary”
Law of the Sea
UN Convention on the Law of the Sea 1982 – entered into force in 1994
R v. Perry
Ratio: you can face prosecution for exploiting resources outside your state’s EEZ
Deep Seabed
Nationality
Kindred 493-539
1. Acquisition of Nationality
Jus soli: nationality acquired by birth in territory of a state; Jus sanguinis: nationality acquired by birth outside the state to nationals of the state; Naturalization: (direct) general procedure by legislative, executive, judicial depending on state, (derivative) minor becomes naturalized because of naturalization of parents
Citizenship Act (Canada, 1985)
Jus soli approach, except for diplomatic types; Jus sanguinis for both parents (some countries only let the father pass on nationality)
2. Recognition of Nationality at International Law
Nottebohm Case – Liechtenstein v. Guatemala
Ratio: To prove dominant/effective nationality to espouse a person’s claim must show: (1) basis of social fact of attachment – family, place of residence, etc. – (2) Genuine connection – interests/sentiments – (3) Reciprocal rights and duties
Flegenheimer Claim: Italian-United States Conciliation Commission
Ratio: courts will generally rule in favour person to avoid statelessness at all costs
3. The Right of Diplomatic Protection
International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR, 2004 (p. 505)
Ratio: state can defend dual citizen from other state if it is the dominant nationality; state can give diplomatic protection to stateless person that is resident
4. Dual and Multiple Nationality
1930 Hague Convention on Conflict of Nationality Laws
Canevaro Case – Italy v. Peru
Ratio: Dominant nationality is what matters in international claims
Iran-US Case No. A/18
Ratio: A state can only espouse the claim of a citizen if it is that citizen’s “dominant and effective nationality”
5. Allegiance
Joyce v Director of Public Prosecutions (1946)
Ratio: holding yourself out as a citizen comes not only with right, but duties of allegiance that if breached can result in liability
6. Loss of Nationality and Statelessness
Stoeck v. Public Trustee, p. 514
Ratio: conflicts of nationality laws resulting in statelessness
Eritrea Claims (2004) p. 521
Ratio: Expulsion of dual-nationals considered ‘enemies’ in times of war is state’s right under Geneva Convention; however, there must be reasonable grounds for belief; cannot simply revoke citizenship of all dual-nationals.
B. Corporations
Barcelona Traction, Light and Power Co. Case – Belgium v. Spain (p. 525)
Ratio: only the national state of the company where the ‘Siège Social’ is located can espouse the claim of the corporation against another state for wrongdoing; shareholders have no standing
Electronica Sicula S.p.A (ElSI Case), US v. Italy (p. 536)
Ratio: applies the rules in Barcelona Traction; fact that shareholders were all in the US has no import; the Siège Social was Italy, the company was Italian
International Centre for the Settlement of Investment Disputes (ICSID)
Settles disputes between host states and foreign private investors
State Jurisdiction over Persons
Distinction between a state’s ability to prescribe a rule of law (prescriptive jurisdition) and a state’s ability to enforce that rule (enforcement jurisdiction)
A. Subject-Matter Jurisdiction
1. Scope of Jurisdiction
The Steamship Lotus – France v. Turkey
Ratio: For crimes not occurring completely in one state or the other, each is able to exercise jurisdiction over the incident as a whole (concurrent jurisdiction); * UNCLOS: now, only person’s state or the state of the ship a person is on can exercise jurisdiction for events happening at sea
2. Basis of Criminal Jurisdiction
3. Scope of Territorial Jurisdiction
Libman v. R.
Ratio: For Canadian criminal law to apply extraterritorially, it is sufficient that there was a real and substantial like between the offence and the Canada; planning/perpetrating the fraud from Canada is enough to establish that link
4. Scope of Universal Jurisdiction
Aut dedere aut judicare (extradite or prosecute)
R. v. Bow Street Magistrate, ex parte Pinochet
Ratio: a crime will be subject to universal jurisdiction where it: (1) violates jus cogens; (2) so egregious that it can be considered a crim against mankind (hostes humani generis); in this case, Pinochet’s contravention of the UN Convention on Torture meets those grounds: Aut dedere aut judicare (extradite or prosecute)
Yerodia Case (Congo v. Belgium)
Ratio: Belgium has prescriptive jurisdiction here, but no enforcement jurisdiction; foreign ministers must be able to travel freely/have diplomatic immunity based on Sovereign Equality; however, “immunity isn’t impunity”; once he isn’t foreign minister anymore, Belgium can get him
Eichmann Case (1961)
Ratio: first use of crimes against humanity; dubious jurisdictional grounds used to justify the trials
5. Suppression of Transnational Crimes of International Concern (Terrorism)
International Convention for the Suppression of Terrorist Bombings, U.N. Doc 1998
B. Jurisdiction over the Persons
A state has no difficulty enforcing jurisdiction if the person is inside its boundaries – has plenary authority subject to international human rights rules; what about jurisdiction over persons outside its boundaries? = Canada/US approach: mala captus bene detentus (wrongly captured, properly detained); abduction of the person back to Canada/US to prosecute (ex. Eichmann/Israel, Machain/US)
United States v. Alvarez Machain (USSC, 1992)
Ratio: mala captus bene detentus; where country hosting the criminal refuses to prosecute/extradite, other means may be used; must balance the illegal arrest against the merits/seriousness of the criminal charge
Prosecutor v. Dragan Nikolic (ICTY, 2003)
Ratio: Must balance the injury of letting serious international criminals go free against the harms to sovereignty of target state
International Criminal Law
Kindred 727-775
A. Development of International Criminal Law
1. International Responsibility After World War II
Nuremburg War Crimes Trials
Ratio: introduces Crimes Against Humanity, although only when they have nexus with war.
2. International Humanitarian Law (laws of war)
Jus ad bellum: when you can go to war; Jus in bello: how you can fight the war, whether it’s just or not; Distinction Principle: have to distinguish between civilians/combattants, between civilian targets and military targets: often depends on context; Principle of Proportionality: means employed to achieve military objective must be proportional to incidental civilian casualties/dmg to civilian objects