Advanced Public International Law - Study Notes

Advanced Public International LawTopic 1: Law of Treaties Introduction to the Law of Treaties 1. What is a ‘treaty?’ Vienna Convention on the Law of Treaties, Article 2 (1)(a): For the purposes of the present Convention: “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; … Four Elements: (i) Concluded between States Intergovernmental Organisations can also enter (customary international law principle). VCLT will not govern these. Article 3 expressly preserves legal force. (ii) In written form Legal Status of Eastern Greenland case (Norway v Denmark) PCIJ Rep (1933) Series A/B No 53 • • • • • Denmark had established colonies in other parts of Greenland. Eastern part of Greenland remained uncolonised – harsh environmental conditions. Norway sent expedition to eastern Greenland and claimed sovereignty with possession in 1931. Proof of conversations between Norwegian Foreign Minister and Danish Minister accredited to Norway at the peace conferences after WW1 to the effect that: Denmark proposed that it would allow Norway to claim Spitzbergen if Norway agreed not to challenge any Danish claim to the whole of Greenland. At a later meeting, Norwegian Minister told the Danish Minister that Norway would not create any difficulty concerning the Danish claim. Denmark claimed that this constituted a binding treaty under international law and thus Norway’s 1931 claim was in breach of their obligation Held: • • Norwegian Minister’s words affirmed a commitment by Norway not to object to Danish claims to sovereignty of the whole of Greenland. Minister for Foreign Affairs can by verbal commitment bind the state he represents when answering a question in the context of diplomatic relations which falls within his province of authority. Norway was thus under an obligation to refrain from challenging Danish - Not necess Nuclear Tests Cases (Australia v France, New Zealand v France) ICJ Rep (1974) 253 • • • • Australia and NZ brought cases against France seeking an order from the court preventing France’s atmospheric nuclear testing in the Pacific France (through authoritative sources) had since made representations that it would cease its atmospheric testing: 1. President of Republic issued communiqué stating that France was in a position to change to underground testing after that summer 2. President of Republic stated at a press conference that France was committed to ending their atmospheric nuclear tests 3. Foreign Minister made statement to General Assembly of UN that France was moving to underground testing of its nuclear weapons France claimed these unilateral declarations constituted a binding obligation on it not to carry out any more atmospheric tests (and further than the court had no issue to decide if they were right) Australia and NZ objected because they wanted the court to declare the atmospheric tests to be against international law Held: • • • • • • When states makes declaration with the intention that it should be bound, that intention makes the statement legally binding and the state will be required by international law to act consistently with its undertaking In the case of unilateral undertakings, nothing in needed such as quid pro quo or affirmation or acceptance by any other state, and the undertaking will be directed to all states Not all unilateral acts will draw an inference of a binding obligation, it is a matter of intention Where statement restricts a state’s freedom of action, the approach of the court should be restrictive Trust and confidence is part of international law and states should be able to rely on declarations made by other states The undertakingnecessary for legally binding an arbitrary just necessary for - Not cannot be said to subject to agreement, power of VCLT to apply. Art 3 VCLT – expressly preserves legal force of oral ‘treaties’. VCLT & CIL – no prescribed requirements for ‘written form’ ICJ – emphasis on intention of parties where no prescribed law; parties free to choose appropriate form to express their intentions. Ct will look at intention to see if oral agreement is binding in same way as treaty - Context surrounding will be important (iii) Governed by International Law VCLT – no express requirement in Art 2 (1) (a) to look at intention of parties as to whether they are governed by international law, however the requirement is said to be embraced by this element. International law governs all treaties whether or not they are within the scope of VCLT. - (iv) Embodied in single or 2 instruments Treaties may be several forms: a) Conventions b) Agreements c) Protocols d) Charter e) Exchange of notesThere are less formal agreements such as exchange of notes (letters). States may send letters to each other and agree on certain things. If the letters intended to be a treaty, it is customary to expressly state that it shall constitute an agreement between Governments. 2. Treaty Negotiation Political Alliances and Groupings: • G-77 - The Group of 77 at the United Nations is a loose coalition of developing nations, designed to promote its members' collective economic interests and create an enhanced joint negotiating capacity in the United Nations. There were 77 founding members of the organization, but the organization has since expanded to 131 member countries. • Non-Aligned Movement - The Non-Aligned Movement (NAM) is a group of states considering themselves not aligned formally with or against any major power bloc. As of 2011, the movement had 118 members and 20 observer countries. • OECD - The Organisation for Economic Co-operation and Development is an international economic organisation of 34 countries founded in 1961 to stimulate economic progress and world trade. It defines itself as a forum of countries committed to democracy and the market economy, providing a platform to compare policy experiences, seeking a prerogative power of the Crown Constitution. Treaty-Making • • Power to enter into treaties: In Australia.Alliance of Small Island States (AOSIS) is an intergovernmental organization of low-lying coastal and small Island countries.the five permanent members of the United Nations Security Council – China. (2) The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting. or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. • . European Union. ASEAN . (b) heads of diplomatic missions. France. for the purpose of adopting the text of a treaty in that conference. the following are considered as representing their State: (a) Heads of State. CANZ – Canada. 3. Have the power to veto any substantive resolution. US.The European Union (EU) is an economic and political union of 27 member states which are located primarily in Europe. Historically an ad hoc process VLCT Article 9 – ‘Adoption of the Text’ – (1) The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in Paragraph 2. identifying good practices.• • • • answers to common problems. 51(xxix). The Association of Southeast Asian Nations is a geopolitical and economic organization of ten countries located in Southeast Asia. or it appears from practice of States concerned that intention was to consider that person as representing the State: (1) A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers. for the purpose of performing all acts relating to the conclusion of a treaty. organization or organ. ss 61. VCLT Article 7 – ‘Full Powers’ – State rep produces full powers. Heads of Government and Ministers for Foreign Affairs. (2) In virtue of their functions and without having to produce full powers. Australia and New Zealand AOSIS . Nordic. Russia. UK. (c) representatives accredited by States to an international conference or to an international organization or one of its organs. and co-ordinating domestic and international policies of its members. for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited. unless by the same majority they shall decide to apply a different rule. P-5 . exchange of instruments constituting a treaty.The consent of a State to be bound by a treaty may be expressed by signature.’ • 5. Entry Into Force: • • • VCLT Article 24(1) .‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification. acceptance. or b) it has expressed its consent to be bound by the treaty. 4. Effect of entry into force: VCLT Article 26 (pacta sunt servanda): – ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Treaties and Third States: • VCLT Article 34 .’ Article 18 continues to apply until a State makes it clear that it does not intend to become a State party to the treaty.’ 6. or by any other means if so agreed.A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.treaties do not create rights or obligations for third States .• VCLT Article 8 – ‘Subsequent confirmation’ . Article 18 of the Vienna Convention of the Law of Treaties: • Pending entry into force … VCLT Article 18 .” More straightforward in the case of bilateral treaties. approval or accession. 7.Otherwise treaty of no legal effect without subsequent confirmation. pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. Expressing Consent to be Bound: • • • Most critical step in treaty formation Activates treaty and produces legal effects for consenting State NO State is bound by treaty unless manifests its consent to be bound VCLT Article 11 . acceptance or approval. ratification. until it shall have made its intention clear not to become a party to the treaty. an obligation may arise for a third State from a provision of a treaty if the parties so intend. Amendment not binding without agreement. whose function is to decide in accordance with international law such disputes as are submitted to it. art 38(1): ‘The Court. (1) Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty. ii. Party States will also be entitled to become party to amended treaty. (b) the negotiation and conclusion of any agreement for the amendment of the treaty. • Art 41 – Amendments to multilateral treaties between certain of the parties only. and if the third State assents • 8. or (b) the modification in question is not prohibited by the treaty and: i. …” Art 40 – Amendments to multilateral treaties – unless treaty otherwise provides. Amendment of a Treaty • • • VCLT Articles 39 – 41 – Art 39: The General Rule– “A treaty may be amended by agreement between the parties. does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations. derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. shall apply: a) international conventions. does not relate to a provision. (2) Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States.• VCLT Article 35 .a right may arise for a third State from a provision of a treaty if the parties to the treaty intend to confer that right. whether general or particular. . establishing rules expressly recognized by the contesting states. Treaties as a Principal Source of International Law ICJ Statute. each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal. and the third State expressly accepts that obligation in writing VCLT Article 36 . Also jus cogens norms “Law‐making treaties” vs “treaty‐contracts” E.b) international custom.g. This doesn’t mean they necessarily disapprove but it doesn’t show that they approve of it either.a law governing a specific subject matter (lex specialis) overrides a law which only governs general matters.g. This Article is not of that type. Sometimes a rule can become a general rule of IL through a widespread participation in the convention. Court uses this process to determine: o 1st. North Sea Continental Shelf cases (ICJ. parts of the Article are still in controversy. Few cases. This is possible but not in all cases. judicial decisions and the teachings of the most highly qualified publicists of the various nations. o 2nd. including by states whose interests are specially affected. Such provision should be of a fundamentally norm-creating character such as could be regarded as forming the basis of general rule of law. • Issue: Can the negotiation of a treaty give rise to Customary International Law? Held: • • Court rejects arguments of Denmark and Netherlands.. 6 of Geneva Conv.’ Formal sources v material sources No hierarchy. c) the general principles of law recognized by civilized nations. d) subject to the provisions of Article 59. look at length of time convention has been in effect. if it includes states whose interests are specially affected. Also. and because of certain . Fitzmaurice’s theoretical objection to treaties as a source of law Law‐making treaties can generate rules of customary international law – E. as evidence of a general practice accepted as law. 1969) North Sea Continental Shelf cases (ICJ. o 3rd. 1969) • Facts: Denmark and Netherlands argue that shared continental shelf should be divided by principle of equidistance in Art. This convention is not of that type because so many states have not ratified it. • Netherlands and Denmark maintain Convention is part of CIL. the primary obligation is to effect delimitation by agreement and secondarily the use of equidistance method. but lex specialis rule . as subsidiary means for the determination of rules of law. Germany argues that this is inappropriate because Germany isn’t a party to Convention. Short period of time not necessarily a bar. but practice should have been extensive and uniform within that time. look to rule itself. Only 5 years since convention has been in force. even though not based on slow accretion of practice.. o 4th look at extent of participation. actually created new process for coastal division. look at extent of active agreement. • Attraction of intentionalism or purposivism:  Consistent with idea of sovereignty and consent. • Complexity of determining "collective" intent. Intention of parties: travaux preparatoires. ILC Special Rapporteur): the “intentions of the parties” school. iii. and the “teleological” or “aims and objects” school. • More consistency over long-term. • Treaties difficult to amend. • Left to each organ of UN to interpret provisions relevant to its activities. acquiescence. even if a domestic court (or the legislative or executive branches) interprets the treaty. and thus avoid skepticism of states. • Contrast to UN Charter. • • Organs of Interpretation and Interpretation by Parties What mechanism to decide on conflicts within the organization  about the scope of powers granted to the various organs? UN Charter  • No provision on its interpretation. Textual: ordinary meaning of terms. • Modes & Principles of Interpretation i. When state offers its interpretation and other party acquiesces. Differences: . the – “textual” or “ordinary meaning of the words” school. three main schools of thought (per Fitzmaurice. • Dispute on what the scope of SC and GA powers is. • Attraction of textualism:  Temporal dimension of new states joining. European Convention on Human Rights) Use different methodologies for different types of treaties. Treaty of Rome  • Created European Economic Communities and European Court of Justice.. What happens in cases of conflict? • Reasons for no provision: o Preserve flexibility. Teleological/purposive o Originalist o Dynamic emergent (e. Unilateral interpretation can lead to principles of estoppel.g. ii. o Minimize politics and power in the judiciary. • Tribunals uncomfortable declaring what state intended.Treaty Interpretation General Principles Under Treaty Law: • Pre‐VCLT. protest. Granted authority to ECJ to interpret treaties and determine these type of questions authoritatively. it's binding. • Unilateral Interpretation Unilateral interpretation of one state is not binding on the other party. including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty. Tribunals have been hesitant to use travaux b/c poorer nations didn't use to have access to them. Where language would lead to absurd result. in order to confirm the meaning resulting from the application of article 31. (3) There shall be taken into account. (4) A special meaning shall be given to a term if it is established that the parties so intended. but in the context of object and purpose. Reservations . c. Vienna Convention on the Law of Treaties Article 31(1): 1. Creation of political community is of a different nature than int’l community as a whole. Take into account subsequent agreements or practices between parties and relevant rules of IL. in addition to the text. b.Recourse may be had to supplementary means of interpretation. or (b) leads to a result which is manifestly absurd or unreasonable. Intentionalism comes in through the back door.” (2) The context for the purpose of the interpretation of a treaty shall comprise. VCLT Article 32 . (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. can look to travaux preparatoires. including the preparatory work of the treaty and the circumstances of its conclusion. and less concern about judicial impartiality. (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.o o Interests are more common. 2. or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure. (c) any relevant rules of international law applicable in the relations between the parties. Primarily textualist. Supplementary means of interpretation (Art 32): a. together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. so less conflict of interests. • • VCLT Article 31(1): “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. When are reservations permitted? Custom (before VCLT) • • • • • • • State could not make reservation unless treaty permitted reservation and all other States who had already consented accepted. Gave other state parties a veto on reservations and on participation of States who wished to make reservation Multilateral treaties – purpose to effect widespread/universal change. accepting. Tension between maintaining integrity of text and securing most widespread adherence Earlier. made by a State. but sometimes to bilateral More common practice with bilateral is that proposal to modify/amend terms is taken as a proposal to amend final text – part of treaty negotiation prior to signature 2. shift toward securing widespread acceptance No treaty relationship would form between two state where one did not accept the reservation of the other . however phrased or named. approving or acceding to a treaty. What is a ‘reservation?’ How is it different from an ‘interpretive declaration?’ • • • • • • • • Device employed by States in course of expressing consent to be bound Modern law of reservations is based on the ICJ’s advisory opinion in Reservations to the Genocide Convention [1951] ICJ Rep 15 Art 2 (1) (d) VCLT .1."reservation" means a unilateral statement. ratifying. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State Where a unilateral declaration made by a State at time of signing is not intended to exclude or modify the legal effect of any provisions of the treaty it is not a reservation. when signing. despite the name formally attached to it by the State issuing the statement. priority given to integrity of text From 1930’s onward. ‘interpretative declarations’ do not mean contingent upon other States accepting interpretation Where ‘interpretative declaration’ is made contingent upon other States accepting. then it is a reservation. Reservations enable State to tailor treaty to its own will Almost exclusively to multilateral. what is effect of reservation as between reserving State and those States that object and those that accept Held: • • • • • • • • Re: Q1. a reservation requires acceptance by all the parties. 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation. A reservation established with regard to another party in accordance with articles 19. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty.Legal effects of reservations and of objections to reservations 1. Compatibility of reservation with object and purpose is criterion to judge as to whether reservation will be allowed  Q1 – State is party if reservation compatible with object and purpose. object and purpose HERE – object and purpose imply intention of GA and States that as many as possible participate Complete exclusion of all terms  restrict scope and application. .Reservations to the Genocide Convention Case 1951 some States made reservations to 1948 Conv no provision for reservations in text • UN GA req ICJ advisory opinion Q1 – reserving State still party if reservation objected to by 1+ parties? • Q2 – if yes. VCLT Article 21 .objecting party can consider reserving party not a party and accepting party can consider reserving party a party NB – only ICJ can determine if reservation compatible with object and purpose (until decided 2(a) &(b) apply) 3. noted increasing State practice Therefore cannot be inferred that absence of reservation provision in treaty means States prohibited from making reservations Must consider character of multilateral ament. a reservation requires the acceptance of the competent organ of that organization. When a treaty is a constituent instrument of an international organization and unless it otherwise provides. and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. detract from authority of moral and humanitarian principles which are Convs basis. Effect of a Reservation • • • A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. otherwise not a party  Q2. g. Expressio unius: if treaty says which provisions it is permissible to make a reservation to. may be made. (b) the treaty provides that only specified reservations. • Treaty can specify whether reservations to certain provisions are or aren't permissible. ratifying. following Judge Lauterpacht on a related issue in Norwegian Loans and Interhandel – the incompatibility of the reservation vitiates the State’s consent to be bound by the treaty o The treaty is in force but for the relevant provision(s) .g. and also Pellet: a reservation incompatible with the object and purpose of the treaty (within Art 19(c) of the Vienna Convention) is null and void. 4. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.5. when signing. human rights bodies (ECHR/HRC). accepting. Effect of an Impermissible Reservation • Three possibilities: o The treaty is not in force for that State . a. approving or acceding to a treaty. • VCLT Article 19 .See. and 4..2.1) o Question : Is it a permissible reservation? • Validity of the reservation.” Such reservations are void and severable . When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State. recall Netherlands objection to Bahrain’s reservation to the ICCPR: “This objection shall not preclude the entry into force of the Covenant between … the Netherlands and … Bahrain. or (c) in cases not falling under sub-paragraphs (a) and (b). • CIL + gen principles will operate as between objecting and reserving parties where treaty provisions excised.. just as is the case under Article 19(a) and (b) (see ILC Draft Guidelines 3. .Redgwell notes that this would accord with much State practice – E. e.suggested by Bowett. then it is impermissible to make reservations to other provisions. which do not include the reservation in question. 3. formulate a reservation unless: (a) the reservation is prohibited by the treaty.3.A State may. Whether the reservation is compatible with the "object and purpose" of the treaty. the reservation is incompatible with the object and purpose of the treaty. g. Issue of severability Human rights treaties b. VCLT Article 64 . • Breach and Termination of Treaties 1. at the time of its conclusion.• • • When the treaty creates in int'l organization. While some rights can be derogated during emergency situations. and they qualify under CIL even without the treaty. any existing treaty which is in conflict with that norm becomes void and terminates. Reservations to Human Rights Treaties • • • Argument that impermissible reservations to HR treaties severable from reserving State’s consent to be bound ie – reservation disregarded. . torture). Vienna Convention of the Law of Treaties. Erga omnes are rights which states owe to all other states. it conflicts with a peremptory norm of general international law. a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.Emergence of a new peremptory norm of general international law (jus cogens). Breach of Treaty VCLT Article 60 . If a new peremptory norm of general international law emerges. State still bound Art 19 (c) + Art 20 = no specific consequences CIL – Reservations to Genocide Convention case – prohibited reservation nullifies consent even where universal and humanitarian object and purpose Jus Cogens 1. (Overlap between nonderogable rights in treaties and jus cogens in CIL. the organ representing that organization decides on permissibility.) c. Articles 53 and 64 • VCLT Article 53 .Treaties conflicting with a peremptory norm of general international law (jus cogens): A treaty is void if. 5. others are non-derogable rights (e.. For the purposes of the present Convention.Termination or suspension of the operation of a treaty as a consequence of its breach. (1) A material breach of bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. (3) A material breach of a treaty. or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State. or (ii) as between all the parties. VCLT – permits States specially affected to invoke breach as termination/suspension treaty relations between them and breacher – Art 60 (2) (b) o If breach radically changes position of every other State re: further performance of obligations non-breacher can suspend (only) treaty in whole/part re: itself – Art 60 (2) (c) o Not automatic termination.(2) A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State. in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. (4) The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. for the purposes of this article. (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. • Although it does not specify seriousness. consists in: (a) a repudiation of the treaty not sanctioned by the present Convention. (5) Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character. procedures in Art 65-67 must be observed before termination/suspension – Art 42 (2) • • . better view seems to be that the breach must be serious Bilateral – ground for termination/suspension in whole or part – Art 60 (1) Multilateral – range of responses available for non-breaching parties o Unanimous agreement to terminate or suspend in whole/part either between themselves and breacher OR between all parties – Art 60 (2) (a) o If 1+ more affected – may not be possible to obtain unanimous agreement. State loses option if knows facts and expressly agrees to/acquiesces in treaty’s continuance – Art 45 o Once invoked. Non-breachers have option to terminate/suspend. • A material breach : Either a repudiation of the treaty not sanctioned by VCLT or a violation of a provision of the treaty essential to the accomplishment of the object purpose – Art 60 (3) ILC • ‘material’ cf ‘fundamental’ • Must be where breach of serious character • Not only breach where State violates provisions central to object/purpose but also breach of ancillary provision essential to effective execution. countermeasures must also be taken consistently with Article 2(4) of the UN Charter.. you need:    o o • o o sufficient justification in the form of a previous act contrary to international law. the Naulilaa case (1928).g. No need for the countermeasures to relate to the same treaty obligation which has been breached. Invalidity of Treaties • Article 46 (internal law): a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its . any countermeasures must be preceded by an unsatisfied demand for reparation. If not a material breach: o o The injured State can take “countermeasures” Also known as “reprisals” ‐ an act which in itself is illegal and has been adopted by one State in retaliation for the commission of an earlier illegal act by another State E.• o State may forfeit right if has prevented breacher from performing obligations by unlawful act. and Gabcikovo‐Nagymaros case (1997) In order to take countermeasures. and any countermeasures must also be accompanied by a sense of proportion between the offence and the reprisal. or under what circumstances may a breach be used as a reason to terminate – Art 60 (4) o o o 2. Since 1945. Unlawful act may be breach of another treaty/CIL o Conduct of non-breacher which contributes to creation of situation ‘not conducive’ to breacher’s performance of obligations may deprive nonbreacher of right even if per se NOT unlawful – Gabcikovo Treaty is not terminated because State breached international law outside treaty – Gabcikovo Only material breach of treaty itself that gives rise Treaty itself can have provisions within itself defining what a material breach is. Article52 (Coercion): if the treaty was procured by the threat or use of force in violation of the UN Charter. • Article 47 (excess of authority): if the State representative exceeded his or her authority in expressing the State’s consent to be bound. The provisions of a void treaty have no legal force. or (b) such a right can be implied from the nature of the treaty VCLT. a State cannot withdraw/terminate unless (a) parties intended to admit of this possibility. Article 50 (Corruption): if State’s consent to be bound procured through the corruption of its representative directly or indirectly by another negotiating State. Article 53 (jus cogens): If the treaty conflicts with a peremptory norm. Article 57: treaty can be suspended in conformity with its provisions. Article 54: “The termination of a treaty or the withdrawal of a party may take place: a) in conformity with the provisions of the treaty.” VCLT. or with the agreement of the parties . and formed an essential basis of its consent to be bound. Article 48 (error): if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded. Termination and Suspension of the Operation of a Treaty • • • • VCLT. (2) If acts have nevertheless been performed in reliance on such a treaty: a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed. …” 3. Article 55: A treaty will not terminate if the number of States parties falls below what was required for it to enter into force VCLT. Article 49 (Fraud): if State induced to enter into treaty by fraudulent conduct of another State.consent unless that violation was ‘manifest’ and concerned a rule of its internal law of ‘fundamental importance’. Article 51 (Coercion): if the conclusion of the treaty was procured by the coercion of its representative through acts or threats directed at him or her. • • • • • • • Consequences of invalidity: Article 69: (1) “A treaty the invalidity of which has been established under the present Convention is void. b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. Article 56: If no provision on withdrawal or termination. or b) at any time by consent of all the parties after consultation with the other contracting States. multilateral treaty can be suspended or terminated in the case of “material breach” 4. Article 59: treaty can be considered terminated by later treaty of same subject‐matter VCLT. See.. serious environmental concerns HELD : socialist orientation material factor in concluding BUT not necessary to carry out objects/purpose • Economic concerns. withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. (2) Impossibility of performance may not be invoked by a party as a ground for terminating. Article 60: bilateral treaty can be terminated in the case of “material breach”. must be invoked as ground. Fundamental Change of Circumstances • • • • Rebus sic stantibus – CIL Permanently terminated if fundamental change Much narrow doctrine than frustration in K . Article 61 – (1) A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. it may be invoked only as a ground for suspending the operation of the treaty. but changes in scientific knowledge are not unforeseen • That the principle will only apply in exceptional circumstances. Gabcikovo‐Nagymaros Project (1997) Gabcikovo (Hungary v Slovakia) Rejected H submission that 1977 treaty with S re: development scheme spanning mutual border was affected by rebus sic stantibus • H argued change – no longer socialist. If the impossibility is temporary. and only where the fundamental change in circumstances is unforeseen • existences of circumstances at time of treaty must constitute an essential basis of consent 5. Supervening Impossibility of Performance • • • • • • Subject matter disappears/destroyed rendering performance is impossible State practice to termination (ILC) Art 61 does not automatically terminate.even though the economic viability of the projects diminished. they were not radically transformed • Treaty took account of environment.• • VCLT. e.g. uneconomic. VCLT procedures must be followed Art 42 (2) VCLT. Dispute Settlement • • VCLT. If. or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. withdrawing from it or suspending its operation. b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary‐General of the United Nation . and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. (3) If. objection has been raised by any other party. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore. terminating it. shall not be less than three months after the receipt of the notification. (2) A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary. (3) If. the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. no solution has been reached within a period of 12 months following the date on which the objection was raised. invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty.(1) A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty. the following procedures shall be followed: a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may. a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Art 65 (Dispute settlement) – (1) A party which.” (2) If. after the expiry of a period which. except in cases of special urgency.• VCLT Article 62 . submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration. may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty. under paragraph 3 of article 65. under the provisions of the present Convention.Fundamental change of circumstances . under the foregoing paragraphs. however. the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. by a written application. 6. must notify the other parties of its claim. and which was not foreseen by the parties. no party has raised any objection. o Monism . IL is subject to constitutional limitations. Constitutions should be organized to facilitate incorporation of IL automatically in domestic law. wherever any question arises which is properly the object of its jurisdiction. and it is held to be a part of the law of the land” (Commentaries. ch 5). If there is a conflict b/w ML and IL. ← • The Relationship Between Public International Law and Domestic Law Conceptual categories of the relationship between int’l law and municipal law. is here adopted in its full extent by the common law. There can be no constitutional limitations on IL. Doctrine of incorporation . Customary international law – the position in England: o The incorporation approach Customary international law – the position in Australia: o The transformation approach o Chow Hung Ching v The King (1948) HCA (Dixon J. o Dualism .IL and ML are not part of the same legal system. Use of Treaties by Australian Courts 1.  The court then has to consider whether the rule is to be treated as having been adopted or received into domestic law. and the different regimes relate to each other in a hierarchy. IL wins. so no hierarchical relationship.The doctrine that rules of international law automatically form part of municipal law. IL is on top.G. and ML derives its validity from IL. – Sir William Blackstone: “The law of nations. but cf Latham CJ: ‘[i]nternational [law is not as such part of the law of Australia … but a universally recognised principle of international law would be applied by our courts’) o Mabo (No 2): ‘customary international law is an influence on the development of the common law’ (Brennan J) o A variation on the transformation approach? Nulyarimma v Thompson [1999] FCA – see judgment of Merkel J –  The rule of customary international law has to be clearly established as such. Way to adopt IL as ML is that when a statute is passed that incorporates the treaty.There exists only one legal system. (Is it ‘inconsistent with the general policies of [the common] law. o “Harmonisation” approach Implementation of International Law in Domestic Law • • 2. IV.international law only forms a part of municipal law if accepted as such by statute or judicial decisions. the statute controls. • • Doctrine of transformation . or would there be a lack of congruence with its principles’?) . s 15AB . The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights … brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. para 42 (Brennan J) – “Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies. in a case of ambiguity. consideration may be given to that material … (2) the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes … (d) any treaty or other international agreement that is referred to in the Act. favour a construction of a Commonwealth statute which accords with the obligation of Australia under an international treaty’ (Brennan. – Acts Interpretation Act 1901 (Cth). Deane and Dawson JJ) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Confirmed the approach in Chu Kheng Lim Development of the common law Mabo v Queensland (No 2) (1992) 175 CLR 1. Local Government and Ethnic Affairs (1992) 176 CLR 1 – ‘The entry into a treaty by Australia does not change domestic law. The expectations of the international community accord in this respect with the contemporary values of the Australian people. have the force of law. Unlike some other countries. The common law does not necessarily conform with international law. Classic statement – Attorney‐General for Canada v Attorney‐General for Ontario (1937) PC: – “… the making of a treaty is an Executive act. if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision.• • If the rule of customary international law ‘is inconsistent with’ domestic law. while the performance of its obligations. especially when international law declares the existence of universal human . an unjust and discriminatory doctrine of that kind can no longer be accepted. requires legislative action. • • • • • • An aid to statutory construction.(1) … in the interpretation of a provision of an Act. but international law is a legitimate and important influence on the development of the common law. if they entail alteration of the existence domestic law.” Chu Kheng Lim v Minister for Immigration.The High Court observed that UK courts presume that Parliament intended to legislate in accordance with its international obligations Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 – ‘[C]ourts should. no effect can be given to the rule of customary international law without legislation.’  Do unincorporated treaties have any relevance in domestic law? 3.” Dietrich v The Queen (1992) 177 CLR 292 . The validity of legislation enacted by the Parliament (other than legislation enacted pursuant to s 51(xxix)) does not depend on its being consistent with a convention to which Australia is a party. the stipulations of a treaty duly ratified do not within the Empire. by virtue of the treaty alone. ” Exercise of administrative discretion Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 – • Teoh. so far as possible.’ Interpretation of the Constitution Kartinyeri v Commonwealth (1998): – ‘where there is ambiguity. to expect that the provisions of a treaty not incorporated by legislation should be applied by decision‐makers. denies them a right to occupy their traditional lands. Rather. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which. have a duty. the Australian Constitution. the interests of the child shall be a primary consideration’ Held: • Mason CJ and Deane J: – ‘[R]atification by Australia of an international convention is not to be dismissed merely as a platitudinous or ineffectual act. because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony. does not operate in a vacuum. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.’ (Kirby J) Al‐Kateb v Godwin [2004] HCA 37: – Kirby J: ‘[N]ational courts. ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. … Where there is ambiguity in the common law or a statute. It speaks to the people of Australia. is not intended to violate fundamental human rights and human dignity. a Malaysian citizen. absent statutory or • • • • NB: the Australian Government (Foreign Minister and Attorney‐General) issued a joint statement in May 1995 to the effect that ‘it is not legitimate. Likewise. including as that law states human rights and fundamental freedoms’ . in Australia on temporary entry permit. to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law. adopted and accepted by the people of Australia for their Government. there is a strong presumption that the Constitution. and especially national constitutional courts such as this. which is a special statute. for the purpose of applying Australian law. particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. That positive statement is an adequate foundation for a legitimate expectation. it is legitimate to have regard to international law.• rights. then married an Australian citizen • Refused permanent residency status in 1990 due to drug‐related convictions • Applied to have decision reconsidered on compassionate grounds • Teoh argued that Australia had ratified (but not implemented) the Convention on the Rights of the Child – ‘in all decisions concerning children. • Cf McHugh J: ‘It is clear that the claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine. it must be regarded as heretical’ . ‘Conflict’ and ‘Disputes’ Distinguished • Dispute – a disagreement on a point of law or fact. Types of Disputes • • • • • • • • • • • Boundary/Territorial Conflict Globalization International Business International Politics International Crisis Management International Law International Criminal Law International Security International War Crimes Tribunals Terrorism Development and Conflict 3. maritime rights disagreement. a conflict of legal views or interests between two parties. A disagreement is not a dispute if its resolution would not have any practical effect on the relations of the parties. . There are many sources of international disputes. including territorial disputes. and long-standing animosity between nations that may stretch for generations. 2. or unilateral declarations by one nation that are not accepted by others.Topic 2: International Dispute Resolution Introduction. International disputes have been the source of military conflict. Legal and Political Disputes • International disputes are major disagreements between two or more nations. civilian deaths. Definition and Types of International Disputes 1. and long-held grievances for past actions that have never been fully resolved. conflicts on human rights. General Assembly Resolution: “Aggression is the use of armed force by a State against the sovereignty. Many international law scholars hope that attentive management of other types of international disputes can help lead to improved international cooperation over time. These conflicts lie around issues such as permitting human trafficking. Borders are often far from the center of power in a country. Gibraltar. International disputes over human rights issues often bear heavy costs and few simple results. determining who owns the land with the resource can help define who has the right to use it. the oppression of women. • .• Border disputes are quite common in the international community. and in some cases may have been disputed even when the map was originally drawn. Resource issues are another major source of international disputes. territorial integrity or political independence of another State. The lines on a map made decades before may not always be relevant to the current situation. religious oppression. and may shift from time to time as a result of farming community spread or even topographical changes. with native people or prior owners crying out for the return of conquered and annexed areas. many well-meaning nations that decry human rights violations are left with few choices to change the situation other than plunging in with military aid. The Age of Imperialism left the world with a great deal of conquered nations and areas not happy with their colonial governors. cut timber. Jus ad bellow: when it is legal to go to war. Many international disputes of the 21st century still date back to the expansive era of nation building. such as large rivers. The rights to drill for oil. and ethnic cleansing or genocide attempts. which carries its own costs and does not always promise a solution. while many of the native people of the area insist on their own rights to govern. • • • Evolution of the Obligation to Settle Disputes Peacefully 1. has been an area of contention between the United Kingdom and Spain since the early 18th century. for instance. Resource debates also become more complex when discussing natural formations. or in any other manner inconsistent with the Charter of the United Nations. Coercive Means of Dispute Settlement • Definition of Aggression . that span multiple domains. The treatment of refugees. and humans in general.” Jus in bello: laws of war. mine ore. and access fresh water sources are important to a country's financial and sometimes literal survival. as set out in the definition. Many resource conflicts relate back to territorial disputes. making these fights quite serious. which may in turn lead to a more open forum to manage human rights issues. is often the source of grave international disputes. or a war in violation of international treaties. • • o • Kellogg -Briand Pact (1928). • • • . Notwithstanding that it might violate IL as an invention in internal affairs. Court said that sending armed bands could be an act of aggression. No one really enforced sanctions/made them strong. or participation in a common plan or conspiracy for the accomplishment of the foregoing”. only permissible when they have been preceded by an unsatisfied demand. because it didn’t act meaningfully in response to aggression. but was a failure. it doesn’t give rise to Article 51 right to self-defense. Used as a method of collection of debts (“gunboat diplomacy”).Defense – Article 51 – In Nicaragua case (1986). Imposes the “necessity” and “proportionate” requirement on the use of force as well. • o o • Reprisals – Under law of reprisal. imminence). the third party states can’t do it without a request from the country that’s been attacked (plus a declaration that they’ve been attacked). Kellogg League of Nations: Could recommend sanctions and the use of force. Problem: Left to each member to decide when and whether a breach had occurred or an act of war had been committed. It didn’t stop the war from happening. initiation or waging of a war of aggression. US and Europe party to this treaty. “condemn recourse to war for the solution of int’l controversies. Gives risk to right in El Salvador to take proportional countermeasures. and renounce it as an instrument of national policy”. Judgment of the Int’l Military Tribunal: “to initiate a war of aggression… is the supreme international crime”. Court said assuming this is an armed attack and self-defense exception applies. Self. preparation. agreements. assurances. Collective countermeasures escalate. Defense argued that war was self-defense (Poland excuse): but was judged by the Caroline test (necessity.• Before UN. in order for state to engage in collective self-defense on the basis of Article 51. Collective use of force only justified under Art 51 when armed attack occurs. but just sending weapons does not constitute an armed attack under Article 51. Failed response to this invasion really doomed the League. Nuremberg trials: o defined crimes as “planning. but no right to do it collectively. war widely accepted. o Only time economic sanctions applied was against the Italian invasion of Ethiopia in 1935. ” Proportionality also claimed in some letters: burden of proof to show that even if there was necessity. 1962: Naval blockade and interdiction by US forces of the delivery of weapons to Cuba. Parallel of the problem of the exception in law of treaties for fundamental change of circumstances. Worry that if you recognize broad exceptions. the basic prohibition on use of force. including the use of armed force.• Different readings of Article 51 in Cold War and beyond . Undermine authority of scheme. at least. since there’s no compulsory jurisdiction and no executive with enforcement responsibilities. The best way to understand the narrow definition of self-defense is that rules must be crystal clear. but argued by Wedgewood. Panama case (1989): US actually swore in the democratically elected Panamanian leadership to invite them to overthrow Noriega. “Necessity of that self defence is instant. It’s a different situation when the invited foreign military is helping put down a coup or restore order. .” Created the requirements of necessity and imminence. That would contravene 2(4). individually and collectively. Regional Authorization of Use of Force .Governments have a right to invite intervention.During Cold War. Two questions: o o Can the US claim preventative self-defense? (Not argued at the time. take all measures. Question: who has the power to recognize gov’t? Is there any int’l criteria for recognizing gov’t legitimacy? In the UN.Cuban Missile Crisis. o Grenada case (1984): Governor-General of Grenada invited the US to protect him from a coup and the “vacuum of authority” it left. all the different uses of force were justified under Article 51.) Did he have the constitutional authority to do so? Doubt as to its legal justification. that they did nothing unreasonable or excessive. the more likely states will use them as a pretext. and leaving no choice of means. as long as there is no civil war going on. and no moment for deliberation. .) Can the OAS authorize such an action? Council of the OAS (Organization of American States) resolution recommending that “the member states . it seems that the SC is the only arbiter of gov’t legitimacy (ie China/Taiwan) o . (This may have been fabricated. the exceptions get used as pretexts. which they may deem necessary. The Caroline Incident (1906) – “Inviolable character of the territory of independent states is the most essential foundation of civilisation. overwhelming. a problem arises.” • • • Intervention by Consent . the vaguer the exceptions. But if the foreign military is used to restrict political independence. mediation. are not endangered States shall accordingly seek early and just settlement of their international disputes by negotiation. or in any other manner inconsistent with the purposes of the United Nations. arbitration. conciliation. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. as an instrument of national policy. paragraph 3 provides: all Members shall settle their international disputes by peaceful means in such a manner that international peace and security. Art 12: Member States ‘agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council. Peaceful Means of Dispute Settlement • Covenant of the League of Nations. judicial settlement. GA Resolutions on the obligation to settle disputes peacefully: UNGA Resolution 2625 (XXV) – Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations (24 October 1970) – o Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State. Art I: States parties ‘condemn recourse to war for the solution of international controversies. In seeking such a settlement the • • • o o o o o . and justice. Kellogg‐Briand Pact (1928). and justice. and renounce it. are not endangered. inquiry. resort to regional agencies or arrangements or other peaceful means of their choice. Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes States have a duty to refrain from acts of reprisal involving the use of force Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self –determination of their right to self‐determination Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security.2.’ But the Kellogg‐Briand Pact failed to prevent World War II (1939–1945) Article 2. Nevertheless. Hague Conferences. ideal forum of international dispute resolution. - • Other Dispute Settlement Treaties Arbitration tribunals. to continue to seek a settlement of the dispute by other peaceful means agreed upon by them. new treaties that dealt solely with peaceful settlement decreased sharply • Dispute Clauses in Treaties on Other Matters Many treaties dealing with other matters contain broadly stated obligations to settle disputes through negotiation. o The parties to a dispute have the duty. 3.parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute. Obligation to Settle Disputes Peacefully A. in the event of failure to reach a solution by any one of the above peaceful means. Prize courts After the UN Charter came into force. etc. ICJ statute mirrors the PCIJ’s and the ICJ is substituted for PCIJ in treaties. • Other contemporary fora The ICJ is not the only forum for dispute resolution and been underutilized. conciliation. Historical development and early precedents Hague Peace Conference and Creation of Permanent Court of Arbitration (1899) . still viewed as the paradigmatic. consultation or other contacts of the parties. … • The General Act of 1928 (The Geneva Act) Chapter 1: provides for conciliation of legal disputes if the parties so agree Chapter 2: requires the submission of the dispute (if the conciliation fails) to arbitration or to the Permanent Court of International Justice Debate as to whether the act survived the demise of the League of Nations. arbitration or judicial settlement Some take the form of compromissory clauses providing for judicial settlement at the ICJ Some treaties provide for settlement through bilateral negotiations. including good offices. and on the basis of respect for law. … - B. call upon the parties to settle their dispute by such means. means of settling disputes which diplomacy has failed to settle. and the International Court of Justice (‘ICJ’)) Article 33 of the Charter states: o The parties to any dispute. … 5. Every State shall settle its international disputes exclusively by peaceful means in such a manner that international peace and security. and at the same time the most equitable. arbitration is recognized by the Signatory Powers as the most effective. are not endangered. Role of the General Assembly. as far as possible. and especially in the interpretation or application of International Conventions. resort to regional arrangements or agencies or other peaceful means of their own choice. first of all.- Convention on the Pacific Settlement of International Disputes (1899) o Art I: “With a view to obviating. enquiry. judicial settlement. or other peaceful means of their own choice. recourse to force in the relations between States. conciliation. mediation. judicial settlement. All States shall act in good faith and in conformity with the purposes and principles enshrined in the Charter of the United Nations with a view to avoiding disputes among themselves likely to affect friendly relations among States. resort to regional agencies or arrangements. UN Charter (Article 33(1). the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences. when it deems necessary. o The Security Council shall.” o o - Manila Declaration on Peaceful Settlement of International Disputes (1982) (UNGA Resolution 37/10 (1982)) 1. thus contributing to the maintenance of international peace and security. the Security Council. inquiry. arbitration. mediation. . shall. the continuance of which is likely to endanger the maintenance of international peace and security. and justice.” Art XVI: “In questions of a legal nature. seek a solution by negotiation.” Art XV: “International arbitration has for its object the settlement of differences between States by judges of their own choice. conciliation. States shall seek in good faith and in a spirit of cooperation an early and equitable settlement of their international disputes by any of the following means: negotiation. arbitration. … 2. 1. and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Role of the UN Security Council o Art 24: In order to ensure prompt and effective action by the United Nations. the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.” o Art 10: – ‘The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter.” o Art 35(1): – “Any Member of the United Nations may bring any dispute. (2) … the Security Council shall act in accordance with the Purposes and Principles of the United Nations …” o Art 34: “The Security Council may investigate any dispute. or any situation which might lead to international friction or give rise to a dispute.” o Art 36: – “(1) The Security (Council may.- - Article 36(3): In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. … – (3) In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. Demands an immediate end to the violence and calls for steps to fulfil the legitimate demands of the population. or any situation of the nature referred to in Article 34.’ UNSCR 1970 (2011) – Peace and security in Africa • “The Security Council. to the attention of the Security Council or of the General Assembly. Decides to remain actively seized of the matter. and. may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. …Expressing grave concern at the situation in the Libyan Arab Jamahiriya …. at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature. … 28.” .’ o Art 12: – ‘(1) While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter. its Members confer on the Security Council primary responsibility for the maintenance of international peace and security. except as provided in Article 12. recommend appropriate procedures or methods of adjustment. ispute Settlement 1. and Algeria in Tehran Hostages crisis) But mediation may be attractive for both parties o o 4.g. Conciliation • Institute of International Law (1961): – “A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties. Falkland Islands 3. eg UN General Assembly • Limitations of negotiation 2. Good Offices • • • Not expressly referred to in UN Charter. Tehran Hostages. States may be reluctant as it is an admission that the issue is of international concern (but NB that in some cases. Art 99: – “The Secretary‐General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. Mediation • • Definition Limitations of mediation o Need consent of parties. such aid as they may have requested. the Pope appointed a Cardinal in Beagle Channel dispute. States will readily agree to mediation) Need to agree on choice of mediator (eg US in Falkland Islands. proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them or affording the Parties.” E. Article 33(1) Often the UN Secretary‐General UN Charter. either on a permanent basis or an ad hoc basis to deal with a dispute. with a view to its settlement.” . Negotiation • Forms of negotiation o o o o Diplomatic channels Commissions (eg Treaty of Bayonne of 1866) Summit Public forum. Afghanistan.. Israel’s termination of its cooperation with the UN fact‐finding mission in Jenin in 2002) 6. as far as circumstances allow.• • • • • • Origin in some bilateral treaties in the 1920s Locarno Treaties (1925) Chaco Commission (Bolivia‐Paraguay. Fact-Finding and Inquiry • 1899 Convention. International Humanitarian Fact‐Finding Commission Need cooperation of the parties. e. the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. if after twelve months following notification by one Party to another that a dispute exists between them.g. Arts 65‐66 Framework Convention on Climate Change. at the request of any of the parties to the dispute. on environmental and human rights issues .g. should.g. the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above. who have not been able to come to an agreement by means of diplomacy. ICAO inquiry into KE007 Some suspicion re fact‐finding (e. the dispute shall be submitted.. 1929) Franco‐Siamese Commission (France‐Siam.” 5. Article 14: – “(1) In the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention. Other Forms of Diplomacy • Involvement of NGOs. VCLT. e. to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation. …– (5) Subject to the operation of paragraph 2 above [ICJ or arbitration].g.. the Signatory Powers recommend that the parties.g. and arising from a difference of opinion on points of fact. to conciliation. Arbitration/Adjudication 7. Art 9: – “In differences of an international nature involving neither honour nor vital interests.. Art 9 o o Dogger Bank incident (1904) Red Crusader incident (1961) • • • Limitations of fact‐finding and inquiry: o o o Under‐utilised. 1947) E. E. institute an International Commission of Inquiry...” USS Maine incident (1898) 1899 Convention. Art 7. It shall function in accordance with the annexed Statute. If any party to a case fails to perform the • • - - . Article 94: Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. History • • • Created by the UN Charter (1945).” • • • Advisory Committee of Jurists (met during 1920) to draft PCIJ Statute PCIJ functioned between 1922 – 1945 Quite successful – dealt with 38 contentious cases and delivered 27 advisory opinions Statute of the ICJ modelled very closely on the PCIJ Statute Charter of the United Nations (Articles 92 – 96): THE ICJ Article 92: The International Court of Justice shall be the principal judicial organ of the United Nations. Cuban Missile Crisis (1962). The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. and the ICJ Statute Essentially the successor body to the PCIJ Covenant of the League of Nations (1919). A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.g. RC Community of Sant’Egidio Business‐orientated diplomacy – Specialist risk consultancies • • International Court of Justice 1.• Secret or ‘Back‐channel’ diplomacy – E. which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. Article 93: All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. Arts 92‐96. ‘Good Friday’ agreement re troubles in Northern Ireland Religious diplomacy – Quakers. Art 14: – “The Council shall formulate and submit to the Members of the League of Nations plans for the establishment of a Permanent Court of International Justice. end of Vietnam war.. Art 4(1): – “The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. …” • • • • • . art 38(1): – “The Court. if it deems necessary.” ICJ Statute. Composition • This issue had blocked previous efforts to create a permanent international court ICJ Statute. Art 13(1): – “The members of the Court shall be elected for nine years and may be re‐elected …” ICJ Statute. Role of the ICJ: Art 92: – “The International Court of Justice shall be the principal judicial organ of the United Nations. of . The persons thus elected are inscribed. which may. …” “National Groups” of the PCA Hague Convention of 1907. Article 96: The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. the other party may have recourse to the Security Council. in a list which shall be notified to all the Contracting Powers by the Bureau. Other organs of the United Nations and specialized agencies. the highest moral reputation. of known competency in questions of international law. whose function is to decide in accordancewith international law such disputes as are submitted to it …” - - - 2. Article 95: Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future. Art 3: – “The Court shall consist of fifteen members. It shall function in accordance with the annexed Statute. which may at any time be so authorized by the General Assembly. in accordance with the following provisions. no two of whom may be nationals of the same State. Art 44: “Each Contracting Power selects four persons at the most. as Members of the Court.obligations incumbent upon it under a judgment rendered by the Court. make recommendations or decide upon measures to be taken to give effect to the judgment. which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. and disposed to accept the duties of Arbitrator. may also request advisory opinions of the Court on legal questions arising within the scope of their activities.” ICJ Statute. Professor Hilary Charlesworth. and Professor Sir Elihu Lauterpacht QC. Access to the ICJ • ICJ Statute. 407. 409 (Sep Op Sir Elihu Lauterpacht): – “… That assumption is. Art 34(2): – “The Court … may request of public international organizations information relevant to cases before it. in my opinion. Art 31(1): – “Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court. and Stephen Gageler QC. • • • . He has. so far as is reasonable.” ICJ Statute. Art 6: – “… each national group is recommended to consult its highest court of justice. Art 31(2): – “If the Court includes upon the Bench a judge of the nationality of one of the parties.” ICJ Statute. …” Judges ad hoc ICJ Statute. there is still something specific that distinguishes his role. each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article. Art 7: – “No group may nominate more than four persons. Art 34(1): – “Only States may be parties in cases before the Court. contrary to principle and cannot be accepted. Sir Franklin Berman QC.• Australia’s “National Group”: Professor Ivan Shearer.” UN Charter. every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and. any other party may choose a person to sit as judge. United Kingdom’s “National Group”: Judge Sir Christopher Greenwood QC. not more than two of whom shall be of their own nationality. Art 31(3): – “If the Court includes upon the Bench no judge of the nationality of the parties. and its national academies …” ICJ Statute.” Application of the Genocide Convention [1993] ICJ Rep 325.” ICJ Statute. I believe. Art 93: – Art 93(1) provides that all members of the UN are parties to the ICJ Statute. and shall receive such information presented by such organizations on their own initiative. …” • • • • • • • • 3. the special obligation to endeavour to ensure that. Art 35(1): – “The Court shall be open to the States parties to the present Statute. …” ICJ Statute. is reflected – though not necessarily accepted – in any separate or dissenting opinion that he may write. its legal faculties and schools of law. Nonetheless. ICJ Statute. ultimately. consistently with the duty of impartiality by which the ad hoc judge is bound. Chief Justice Robert French. art 94: – “1. d) the nature or extent of the reparation to be made for the breach of an international obligation.• Art 93(2) allows a State which is not a member of the UN to become a party to the ICJ Statute. the other party may have recourse to the Security Council. Optional Clause ICJ Statute. in relation . the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty. Contentious Jurisdiction • On what bases can the Court take jurisdiction over a contentious case? i. if it deems necessary. If any party to a case fails to perform theobligations incumbent upon it under a judgment rendered by the Court. if established. as determined by the UNGA on the recommendation of the UNSC. c) the existence of any fact which. – 2.The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement. make recommendations or decide upon measures to be taken to give effect to the judgment.” – “The judgment is final and without appeal.]” Australia’s declaration “The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement. or for a certain time. 4. …” • UN Charter. [3. Arts 59‐60:– “The decision of the Court has no binding force except between the parties and in respect of that particular case. b) any question of international law. which may. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” A. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States. would constitute a breach of an international obligation. in relation to any other State accepting the same obligation.Art 36(2) . Jurisdiction of the ICJ • Effect of the judgment – ICJ Statute. Art 2(1): “The Court is requested to decide on the basis of the Treaty and rules and principles of general international law. or arising out of. Special Agreement/Compromis ICJ Statute Article 36(1) – “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided p y p for in the Charter of the United Nations or in treaties and conventions in force. or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation. the exclusive economic zone and the continental shelf. This declaration does not apply to: a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement. This declaration is effective immediately. …” Query the validity of this reservation? See [1957] ICJ Rep 34 (Sep Op Sir Hersch Lauterpacht) ii. c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute. including the territorial sea. in 1989. the works on the Nagymaros .” Norwegian Loans [1957] ICJ Rep 9 France’s declaration contained the following reservation: – “… This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic. the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court. until such time as notice may be given to the Secretary‐General of the United Nations withdrawing this declaration.” Compromis in Gabcikovo‐Nagymaros Project [1997] ICJ Rep 7 Compromis. concerning. as well as such other treaties as the Court may find applicable: a) whether the Republic of Hungary was entitled to suspend and subsequently abandon. or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court. b) any dispute concerning or relating to the delimitation of maritime zones.to any other State accepting the same obligation. Project and on the part of the Gabcikovo Project for which the Treaty attributed responsibility to the Republic of Hungary.” . be submitted for decision to the International Court of Justice.g. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the International Court of Justice.” E. Article XXI(2): “Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty. shall be submitted to the International Court of Justice.” iii. as between the parties to the present Statute. to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. including the rights and obligations for the Parties. – Optional Protocol to the Vienna Convention on Diplomatic Relations. on 19 May 1992. Art 17: “All disputes with regard to which the parties are in conflict as to their respective rights shall. b) whether the Czech and Slovak Federal Republic was entitled to proceed.: – Revised General Act for the Peaceful Settlement of Disputes (1949). c) what are the legal effects of the notification. Transferred Jurisdiction of the PCIJ ICJ Statute. Art 2(2): “The Court is also requested to determine the legal consequences. of the termination of the Treaty by the Republic of Hungary. Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed..” iv. to the “provisional solution” and to put into operation from October 1992 this system ….” Compromis. to have resort to an arbitral tribunal. Art I: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. unless the parties agree. Compromissory Clause Article 36(1) E. in November 1991. subject to any reservations which may be made under article 39.g. unless the High Contracting Parties agree to settlement by some other pacific means. not satisfactorily adjusted by diplomacy. in the manner hereinafter provided.” – Iran – United States Treaty of Amity. arising from its Judgment on the questions in paragraph 1 of this Article. Forum Prorogatum Corfu Channel [1948] ICJ Rep 15 UNSCR 22 (1947): “The Security Council.” Albanian letter dated 2 July 1947: – “[Albania] would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the International Court by unilateral application … [Albania] is prepared notwithstanding this irregularity to appear before the Court. Art 37: – “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations.ICJ Statute. or to the Permanent Court of International Justice.” v. be referred to the International Court of Justice.… Recommends that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court. as between the parties to the present Statute. the matter shall. . also in previous Honduras v Nicaragua dispute in 1960 • ICJ held that: – Nicaragua’s declaration was valid. Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed. in force.Nicaragua v US [1984] ICJ Rep 392 • Nicaragua alleged many violations by the US of its obligations under international law. establish a series of bilateral engagements with other states accepting the same obligation of compulsory jurisdiction …” (para 59) “The notion of reciprocity is concerned with the scope and substance of the commitments entered into … and not with the formal conditions of their creation. to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. unless (i) all parties to that treaty .” • US argued the letter was not a “termination”. and the US‐Nicaragua bilateral FCN treaty of 1956. If Nicaragua’s optional clause declaration was valid. • Shultz notification of 6 April 1984 – purported to modify the US’s optional clause declaration with immediate effect • Nicaragua’s optional clause declaration was made in 1929 re the PCIJ • Nicaragua had signed and ratified (internally) the PCIJ Statute • But: Nicaragua had not deposited the instrument of ratification of the PCIJ Statute with the League of Nations • Issues for the ICJ: 1. even the letter was a “termination”. the six month notice period did not apply on the basis of the principle of reciprocity • ICJ held that: – “… [optional clause] declarations. “dont la duree n’est pas encore expiree” • Relevance of treatment of Nicaragua’s declaration by ICJ and UN. including under the UN Charter • Nicaragua based its application (9 April 1984) on: – Nicaragua’s and the US’s optional clause declarations. there was no right to terminate its declaration with immediate effect – it had to give a reasonable period of notice (and three days was not reasonable!) • Merits judgment is at [1986] ICJ Rep 14 • Further US reservation re “multilateral treaties” • The United States’ acceptance of the Court’s jurisdiction did not extend to disputes arising under a multilateral treaty. Was Nicaragua’s optional clause declaration valid. at the time it was made – It was made for a period that had not expired – it was “still in force” (“dont la durée n’est pas encore expirée”).” • “still in force” vs. but not binding. and binding? 2. and binding. duration or extinction” (para 62). When Nicaragua ratified the UN Charter and ICJ Statute. but a “modification” • US argued that. even though they are unilateral acts. as between the parties to the present Statute. this perfected the declaration Issue 2 • What was the effect of the Shultz letter of 6 April 1984? • US declaration said that it would “remain in force for five years and thereafter until the expiration of six months after notice may be given to terminate the declaration. in force. So the US was not able to rely on the principle of reciprocity in terminating its optional clause declaration with immediate effect Even if the US could rely on the principle of reciprocity. what was the effect of the Shultz letter of 6 April 1984 on the US’s optional clause declaration? Issue 1 • ICJ Statute. Must be a legal question. As long as there is a legal question. it must fall within the scope of their actions. to make the advisory opinions binding. Advisory Jurisdiction Articles 65 and 96 Non-contentious and does not involve states. however.what the court thinks the law requires. (See Nuclear Weapons case. Art 96: 1. (See Western Sahara case. There are efforts. but are not technically parties to the proceedings. it can issue an opinion. “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. If a specialized agency is asking. SC. or specialized agency).” - - Who can request an advisory opinion? UN Charter. Art 65: 1.” B. General doctrine: o o o o Court must be asked by a body with authority to ask (GA. 2.   The court has never rejected an advisory opinion on the ground that it was improper (inadmissible).) Court asks if: (1) it has jurisdiction. and accompanied by all documents likely to throw light upon the question. Court rejects the argument that it can’t decide a question that is political in nature. and (2) it is admissible. Not a binding opinion . . o - States may participate – may be directly interested parties.) Basis of ICJ’s jurisdiction – ICJ Statute.prepared notwithstanding this irregularity … to appear before the Court. Even though an advisory opinion isn’t binding. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required. it can help GA or SC resolve political disputes. “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. ” NB outcome in WHO’s request for an advisory opinion in Legality of Threat or Use of Nuclear Weapons Need for consent of States to the dispute? See ICJ Statute. it has no binding force. Ser B. In the present case. would afford - - - - . parties to a dispute. clearly declared that it accepts no intervention by the League of Nations in the dispute with Finland. can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. It follows that no State. and could not validly object. at the time. and lack of competence of the League to deal with a dispute involving non‐member States which refused its intervention was a decisive reason for the Court's declining to give an answer. is the basis of the Court's jurisdiction in contentious cases. paragraph 1. … The Court therefore finds it impossible to give its opinion on a dispute of this kind. … Such consent.” Although: – “In certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. The Court’s reply is only of an advisory character: as such. Spain is a Member of the United Nations and has accepted the provisions of the Charter and Statute. 1923): – “… It is well established in international law that no State can. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. to the General Assembly's exercise of its powers to deal with the decolonization of a non‐self‐governing territory and to seek an opinion on questions relevant to the exercise of those powers. however. be compelled to submit its disputes with other States either to mediation or to arbitration. or to any other kind of pacific settlement. a Member of theLeague of Nations. Russia has. it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction.” Cf Western Sahara [1975] ICJ Rep 12. without its consent. on several occasions. the powers of the Court under the discretion given to it by Article 65. On the contrary.” Status of Eastern Carelia.2. 23‐4: – “In [Legal Status of Eastern Carelia]. It has not objected. may also request advisory opinions of the Court on legal questions arising within the scope of their activities. which may at any time be so authorized by the General Assembly. one of the States concerned was neither a party to the Statute of the Permanent Court nor. Art 68: “In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable. (No 5) 27‐8 (PCIJ. 71: “The consent of States. has never been given by Russia. Other organs of the United Nations and specialized agencies. whether a Member of the United Nations or not. of the Statute.” Cf Interpretation of Peace Treaties [1950] ICJ Rep 65. … If such a situation should arise. Provisional Measures ICJ Statute. – “[T]he power of the Court to indicate provisional measures under Article 41 of its Statute “presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings” …” (para 128). if it considers that circumstances so require. Art 41: 1. para 102: – “[T]he context in - - .. before deciding whether or not to indicate such measures. Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia). to afford a basis on which the jurisdiction of the Court might be founded” (para 85).” Can States appoint judges ad hoc in advisory proceedings? – Yes: see. “The Court shall have the power to indicate. ICJ Statute. although they must seek to preserve the rights of the parties which form the subject matter of the dispute The ICJ must have prima facie jurisdiction over the merits of the dispute (Interhandel [1957] ICJ Rep 105. (Order of 15 October 2008): – “[O]n a request for the indication of provisional measures. 2. and ICJ Rules. the Court need not finally satisfy itself.. 16). that it has jurisdiction on the merits of the case. any provisional measures which ought to be taken to preserve the respective rights of either party. There must be a risk that “irreparable prejudice” will be done to the rights of the parties in dispute (Fisheries Jurisdiction [1972] ICJ Rep 12. and There must be “urgency” (Passage through the Great Belt [1991] ICJ Rep 12. notice of the measures suggested shall forthwith be given to the parties and to the Security Council.- sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.” Considerable flexibility in orders that can be made. – “[T]he power of the Court to indicate provisional measures will be exercised only if there is urgency in the sense that there is a real risk that action prejudicial to the rights of either party might be taken before the Court has given its final decision …” (para 129).g. yet it may not indicate them unless the provisions invoked by the Applicant appear. 117 (Sep Op Lauterpacht)). Pending the final decision.g. e. E. Art 68. Provisional measures have binding force – LaGrand (Germany v United States) [2001] ICJ Rep 466. Art 102(3) Advisory opinions are not binding C. prima facie. 17). the construction given by the judgment will be equally binding upon it.” D. it may submit a request to the Court to be permitted to intervene. by becoming parties to the ICJ Statute. and to avoid prejudice to. Third Parties ICJ Statute. It is not bound by the decision. Art 63: – “1. It does not appoint a judge ad hoc. because of the absence of a jurisdictional link. Intervention exists for the very purpose of permitting a State which. inasmuch as the power in question is based on the necessity. o o o .which Article 41 has to be seen within the Statute is to prevent the Court from being hampered inthe exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. and only acquires the right to be heard. The intervener does not become a party to the case. It follows … that the power to indicate provisional measures entails that such measures should be binding. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case. Every State so notified has the right to intervene in the proceedings. the Registrar shall notify all such States forthwith. but if it uses this right. Whenever the construction of a convention to which States other than those concerned in the case are parties is in question. to safeguard. but it derives that consent which States give. Island and Maritime Frontier Dispute [1990] ICJ Rep 92: – o The ICJ’s power to permit intervention does not come from consent to its jurisdiction. when the circumstances call for it. It shall be for the Court to decide upon this request. Art 62: – “1.” ICJ Statute. 2. 2. cannot become a party to the case. the rights of the parties as determined by the final judgment of the Court.” There is no need for the intervening State to demonstrate a jurisdictional link: Land. and asked for • Portugal commenced ICJ proceedings against Australia in 1991 UK and US assistance in that the ICJ was being asked to rule on the rights and • Australia argued providing evidence • UK and US sought (and obtained) UNSCRs.. In such a case. by implication. as authorising proceedings to be continued in the absence of Albania. which abandoned it in 1975 • East Timor was then annexed by Indonesia. but would form the very subject matter of the decision. international obligations (UN Charter. Libya commenced obligations of a State that was not party to the proceedings (i.- “Indispensable” third parties Monetary Gold removed from Rome [1954] ICJ Rep 19 • Complex facts. the Statute cannot be regarded. three States had potential claims to it: (i) Albania. United States and France.on whether the to the circumstances in review of o No clear answer having regard ICJ can perform judicial which Indonesia entered and remained in East Timor. Art without first entering into the Australia’s behaviour cannot be assessed 103) • question why it is that Indonesia could not lawfully have concluded the Also: 1989 Treaty.UNSCRs trump any other Court.e. but then made a jurisdictional objection to its own claim on the basis that Albania was not present • ICJ held: “In the present case. Review of Security Council Action International Arbitration . and Australia (among very LockerbieStates) recognised Indonesian sovereignty few [1992] ICJ Rep 3 Bombing of Pam Am Flight 103 • Australia and Indonesia entered into the Timor Gap Treaty in 1989 re • the and US suspected Libyan nationals were hydrocarbonand soughtin UK joint exploration and exploitation of the responsible resources their extradition the Timor Gap Libya refused and said it would prosecute in Libya. • Italy commenced proceedings against the United Kingdom. Albania’s legal interests would not only be affected by a decision. proceedings Indonesia) under the Montreal Convention that Timor [1995] ICJ under 102): “[I]n the view of the • ICJ held (Eastobligations arisingRep 90. it could or could not have acquired the power to enter into treaties on behalf of East Timor E. the very o The fact that the SC is actively could have a matter does not subject‐matter of the Court’s decision would necessarily be a preclude the ICJ from having jurisdiction determination whether.” The same issue arose in East Timor (Portugal v Australia) [1995] ICJ Rep 90 East Timor (Portugal v Australia) [1995] ICJ Rep 90 • East Timor is a former colony of Portugal. Was the gold “Albanian monetary gold”? If so. and (iii) the United Kingdom (because of the non‐payment by Albania of the compensation owed to the United Kingdom arising out of the Corfu Channel case). (ii) Italy (because of the nationalisation of Italian assets by Albania). while Portugal allegedly considering done so. Private international arbitration (international commercial arbitration).uvic. and especially in the interpretation or application of International Conventions.. The UN website stipulates that the secretary-general be "equal parts diplomat and advocate. arbitration is recognized by the Signatory Powers as the most effective. e. Art XV: – “International arbitration has for its object the settlement of differences between States by judges of their own choice. also claims against States under contracts and bilateral investment treaties: http://ita.” Hague Convention (1899).. Art XVI: – “In questions of a legal nature. the type of leader needed. means of settling disputes which diplomacy has failed to settle. Mixed arbitrations – See..g. civil servant and CEO. NB also the deadlock-breaking procedure if one State is recalcitrant) No intervention by third parties Special agreement / compromis / terms of reference Effect of the award (but see also ICJ Statute. the UN Charter described the secretary-general broadly as the "chief administrative officer.g. UN Secretary-General - At the time the United Nations was established in 1945. e.g.ca 3.” Forms of international arbitration o o 1. Inter‐State disputes See.Why would States choose to go to international arbitration over the ICJ? o o Confidentiality/secrecy Choice of the arbitrators (NB the detailed appointment procedure which is set out in. e. and at the same time the most equitable." These guidelines also require that the secretary- ." Beyond that. and on the basis of respect for law. various rules of arbitration. Art 59) o o o Role of International Organisations 1.law.• • • Hague Convention (1899). and the person's length of tenure were left open to interpretation.org 2. www.g. e.. that which exists under Annex VII of UNCLOS. how to select the candidate. Disputes between private entities from different countries (usually contractual in nature) o • Advantages of international arbitration .pca‐cpa. Iran‐US Claims Tribunal. o Mediation. o Human Resources. including: o Whether there is a ceasefire in place and the parties have committed themselves to a peace process intended to reach a political settlement. France. This function involves the secretary-general's role as a mediator between parties in conflict. As part of his "good offices" role the secretary-general makes use of his independence and impartiality as the head of a global organization to prevent and stop the spread of conflict. The hiring of under-secretaries for approximately fifty UN posts. the position calls for less of a clerk than did the role of director of the League of Nations." This provision allows a secretary-general to choose between playing an activist role or more of a bureaucratic role What are the main responsibilities of the secretary-general? o Administrative. . involving more than 110. Russia. - Does the secretary-general play a political role? Yes. Secretary-generals usually come from countries considered small. some informal norms are observed in appointments for the post.to medium-sized neutral powers. The secretary-general's office shoulders responsibility for overseeing peacekeeping missions and appoints the under-secretary in charge of that department. and the United Kingdom--ineligible.000 personnel serving in twenty operations as of September 2008. - 2. the UN's predecessor. Despite the broad and vague requirements of the job. o Peacekeeping. China. which handles UN operations. Regional rotation is observed. Despite the open-ended nature of the job description. including the heads of funds such as UNICEF and UNDP. UN Security Council The Security Council responds to crises around the world on a caseby-case basis and it has a range of options at its disposal. The secretary-general oversees the UN Secretariat. with nationals of the five permanent members of the Security Council--the United States. operational control rests with the Secretariat. are career diplomats. including research. even at the risk of challenging member states. and media relations. translation. falls under the purview of the secretary-general.general uphold the values of the UN. Article 99 of the UN Charter says the secretary-general "may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. and serve no more than two five-year terms. It takes many different factors into account when considering the establishment of new peacekeeping operation. Although the General Assembly or Security Council may initiate a peacekeeping mission. The Security Council monitors the work of UN Peacekeeping operations on an ongoing basis. The Security Council can vote to extend. While other organs of the UN make recommendations to Member States. including in particular whether reasonable guarantees can be obtained from the main parties or factions regarding the safety and security of UN personnel.o o o Whether a clear political goal exists and whether it can be reflected in the mandate. to formulate plans for the establishment of a system to regulate armaments. The resolution sets out that mission’s mandate and size. all UN members agree to accept and carry out the decisions of the Security Council. - - - o . Under Article 25 of the Charter. to take military action against an aggressor. Whether a precise mandate for a UN operation can be formulated. amend or end mission mandates as it deems appropriate. to determine the existence of a threat to the peace or act of aggression and to recommend what action should be taken. to recommend methods of adjusting such disputes or the terms of settlement. Functions: o o o o o o to maintain international peace and security in accordance with the principles and purposes of the United Nations. to investigate any dispute or situation which mightlead to international friction. including through periodic reports from the Secretary-General and by holding dedicated Security Council sessions to discuss the work of specific operations. to call on Members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression. the Council alone has the power to take decisions which Member States are obligated to implement. - The Security Council establishes a peacekeeping operation by adopting a Security Council resolution. Whether the safety and security of UN personnel can be reasonably ensured. In ascertaining existence of opinio juris re: CIL against threat/use of force in international relations ICJ took into account several UNGA resolutions. The preliminary version of the UN Charter stipulated that "the existence of regional bodies for dealing with peace and security should not be precluded". 3. 3. provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. the continuance of which is likely to endanger the maintenance of international peace and security. to exercise the trusteeship functions of the United Nations in "strategic areas". “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action. resort to regional agencies or arrangements. to recommend to the General Assembly the appointment of the Secretary-General and.” According to the article 33 of the Chapter VI of the UN Charter. to elect the Judges of the International Court of Justice. or other peaceful means of their own choice. shall. enquiry. seek a solution by negotiation. regional bodies are regarded as agencies of the first resort in dealing with disputed among their own members. o Eg. arbitration. conciliation. resolution of 1928 6th International Conference of American States. declaration of 1975 Conference on Security and Cooperation in Europe - - - UN Charter. Acts of regional organisations are capable of providing evidence of opinio juris in support of both general and local CIL. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. first of a. Other Regional Bodies UN Charter. Nicaragua (Merits) Case @ [188-89] . Art 33(1): – “The parties to any dispute. together with the Assembly.o o o to recommend the admission of new Members. judicial settlement. […] . 2. mediation. Art 52: 1. with some exceptions. and encompassed also the establishment of the International Centre for the Settlement of Investment Disputes (ICSID). In this last phase the . and Great Britain allowed for individual claims to be brought before the tribunal. Art 54 – “The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security. The fourth phase was decisively initiated by the creation of the International Tribunal for the Law of the Sea (ITLOS). Proliferation of International Courts and Tribunals International disputes prior to 1899 were adjudicated almost exclusively between States. A truly ‘international' court would have had to wait until the end of World War I. This Article in no way impairs the application of Articles 34 and 35. This phase is characterized by compulsory jurisdiction and the granting of binding decision making power to judicial institutions. the mixed tribunals established pursuant to the Jay Treaty of 1794 between the U.” UN Charter. where appropriate. The Security Council shall. utilize such regional arrangements or agencies for enforcement action under its authority. as is now also reflected in the provisions of the WTO's Dispute Settlement Understanding (DSU).S. For instance. the European Commission and Courts of Human Rights. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council … . Art 53 – “1. The permanent nature of the PCA makes recourse possible at all times as opposed to setting up new institutions as incidents arise. it is regarded as an important point in the history of modern international dispute settlement. The third phase in the history of international adjudication commenced in the 1940s and 1950s with the establishment of the International Court of Justice (ICJ). Even if the PCA is not considered a permanent tribunal with permanent judges.” - Contemporary Developments 1. the European Court of Justice (ECJ). The move to the second phase came with the decision in 1899 to establish the Permanent Court of Arbitration (PCA). This phase lasted up to the early 1980s. which was done "with the objective of facilitating an immediate recourse to arbitration for international differences" that could not be settled by diplomacy.” UN Charter.4. Although the ITLOS became operational in 1996 the adoption of the 1982 Convention for the Law of the Sea signaled an entry in to a new phase. but rather a characteristic of international law which is inherently a law of a fragmented world. there are other reasons responsible for the creation of alternative judicial forums. Put in context. The International Law . the fact that they are attached to international organizations instead of standing alone is explained more by economic justifications than other considerations. It is not considered a new concept. judges and practitioners. and the success of some courts as an inspiration for the creation of more courts. this proliferation of international courts and tribunals has to be seen as a part of the greater picture of the proliferation of international organizations. Fragmentation of International Law Fragmentation is understood to be a consequence of the expansion and diversification of international law. in addition to the unsuitability of the ICJ for the needs of some countries. the fact that there have been some fundamental changes in international law and relations. There is one fundamental overarching explanation that is usually summarized in catch words such as globalization and interdependence and which effectively means that an increasing number of state functions can no longer be performed in isolation. Hence globalization has its own share in the creation of more international courts and tribunals. These include. it is also important to look for specific reasons that are often invoked for the creation of multiple international courts and tribunals. The most practical method of financing a tribunal is through the budget of an international organization. While the need for new courts could be justified by the creators in each case.creation of the International Tribunal for the Law of the Sea provoked a lot of debate among scholars. - - - 2. thus tapping the purses of member States who may not be interested in contributing to an international judiciary as such. among others. While the above general statements could apply to the whole phenomenon. In most cases. How do we go about it? One appropriate question that could be raised is why States create many more new international tribunals instead of strengthening the "principal judicial organ" of the United Nations? At the same time. For instance. In most cases the proliferation of international organizations directly contributed to the proliferation of international courts and tribunals. This in turn needs to be seen in the context of a growing interdependence between countries and international cooperation that necessitates an institutional mechanism to regulate these new areas of cooperation. the proliferation of administrative tribunals and those tribunals created under the auspices of regional integration agreements are some of such cases. ” The ILC defines three patterns of conflict relevant to the issue of substantive fragmentation. author of Mare Liberum (1609) Freedom of the seas was already an identifiable concept in international law. These are: (a) conflict between different understandings or interpretations of general law.   . institutional hierarchy and the need for international courts and tribunals to pay attention to each other’s jurisprudence. but Grotius developed it to its greatest depth.Commission notes that the subject of fragmentation can be examined from two perspectives: procedural and substantive. Where more than one international court or tribunal is seized of the same dispute. Substantive concerns refer to fragmentation of the law itself into “special regimes which might be lacking in coherence or are in conflict with each other. causing fragmentation of international law. Due to the proliferation of international dispute resolution bodies in the absence of an overarching framework or plan. (b) conflict arising when a special body deviates from the general law not as a result of disagreement as to the general law but on the basis that a special law applies. even though presented with the same material facts. Procedural issues relate to “institutional questions of practical coordination. this notion is associated with Huig de Groot (1583-1645) Grotius was a Dutch lawyer. conflicting decisions can result. Topic 3: Law of the Sea Development of the Modern Law of the Sea • There are two competing notions in relation to the law of the sea: o freedom of the seas  In international law. and (c) conflict arising when specialised fields of law seem to be in conflict with each other. numerous conflicts concerning multiple jurisdiction have arisen. notably Holland.. a Scottish lawyer. such a dominion of the sea is everywhere admitted. was a ‘ middle’ position in which nations maintained a territorial sea of varying width. or capable of appropriation. and has now been codified in the United Nations Conference on the Law of the Sea treaty (UNCLOS). was delighted to comply. James 1 was very displeased with Grotius’ work. This means that very large parts of the world’s seas are now appropriated. This has remained the position until the present. since neither laws of possession or conquest.by the customs of almost all and the more Noble nations that are known to us. and treated the ‘high seas’ outside their respective territorial seas as free.. and requested a book in reply. which provides for a territorial sea of 12 nautical miles (nm) and Exclusive Economic Zones of 200 nm. nor custom prevailed over the natural freedom of the seas. He argued for a 100-mile territorial sea. by individual nations. he decided it was too controversial in the light of his necessary alliances with the other Protestant powers in Europe. and for freedom on the high seas only.”  What emerged by default as much as by reasoned argument. fisheries protection.. the seas were free to all.that the sea by the law of nature and nations is not common to mankind but is capable of private dominion or property equally with the land . As for legal principle. Customary use of an area of the sea could not override natural law. published “An Abridgement of All Sea-Lawes” in 1613. who was facing prison for a previous book.  o dominion over the seas  Grotius’ theory of freedom of the seas was particularly badly received in England William Wellwood.    . The basic principle of Grotius’ thesis was: “Every nation is free to travel to every other nation.. Therefore. Selden formulated a theory of customary law as the basis for the appropriation of certain parts of the sea: “. Selden. and to trade with it”.. This natural and universal law was not affected by custom. but when the book came to James 1 for approval. EEZ etc    o o Some states say that all water should be territorialised Whatever the actual content. because of the other areas.how much do they own? to determine its breadth.now days 12 nautical miles to protect national fisheries-protection of their food and trade to have freedom on the high seas. diplomatic conflict and war The resources of the sea-bed and the ocean floor were described by the UN as “the legacy of all human beings” .also ways a big issue for states. it is generally agreed that this customary law was codified in the conventions which emerged from the 1958 and 1960 Law of the Sea (UNCLOS I and II) meetings. AND that UNCLOS III represents the customary law today o • UNCLOS I AND II 1958/60 o Convention on the Territorial Sea and the Contiguous Zone (came into force 10-9-64) Convention on the High Seas ( 30-9-62) Convention on the Continental Shelf ( 10-6-64) Convention on Fishing and Conservation of the Living Resources of the High Seas ( 20-3-66) However. few ratifications (average 40) mean the 1958 Conventions have doubtful international validity they did not fix a maximum limit to which a country’s territorial sea could be extended they did not describe a definite boundary for the continental shelf o o o o o o • • • UNCLOS III began because of concern over the possible exploitation of the resources of the sea-bed and the ocean floor on a competitive basis It was believed by some that this would lead to neo-colonialism.• Customary Law of the Sea o The content of the customary law of the sea is somewhat nebulous perhaps including:  to have a territorial sea.the high seas are getting smaller and smaller today. 149 ratifications Problems with the new UNCLOS o The USA voted against UNCLOS at the final session of negotiations o Regan was a Republican and he wanted no part of part Xi of UNCLOS o The US was unhappy with Part XI. Purpose: to establish an equitable international regime covering a wide range of LOS issues including: territorial sea.• • • • • • • • • • • • Moratorium on exploitation of resources of the sea-bed and the ocean floor (UN Resolution 2574D (XXIV)). fisheries. former USSR) followed suit at the time the UK and USSR were the super powers and they were not keen to share with the other countries and if America could. Venezuela. but Part XI has already been amended o Australia’s position on UNCLOS . The smaller states could not have the advantage of the common sea bed. Ratifications required for entry into force: 60 60th ratification: Guyana. so states like the US don’t sign the whole lot because of an issue with one part o Art 312 – no amendments for 10 years after UNCLOS enters into force (which would be 2004 but then there was the amendment to Part XI in breach of this rule) o Art 155 – review of Part XI not to take place until 15 years after first commercial production from sea bed <> not even close to this. etc. on the deep-sea mining question (States can go and exploit the sea-bed but all profits must be shared) o US said that we were the ones with the technology and we are the ones who will go out and reap the benefits. so could they (very childish) o Art 309 – forbids reservations or exceptions. from June 20. Covers almost everything dealing with the law of the sea in one convention. Now. contiguous zone. 157 countries have signed. This hasn’t become a large issue because there has not been enough advancement of technology yet. entered into force on 16-11-94. continental shelf. however at the time it was considered important Declaration of Principles governing sea-bed and ocean floor (UN Resolution 2749(XXV)): this made the deep sea bed “the common heritage of humankind” the resources of these areas will be shared by all (this is a very 60’s and 70’s approach) Inaugurated in December 1973. 1974. high seas. the big states could mine and reap the benefits of the sea bed and this wasn’t just. on 1611-93. conservation of resources. following UN Resolution 3067 (XXVIII) with the first session being held in Caracas. Jamaica 119 countries signed immediately (a record). exclusive economic zone. Currently. Therefore. Whether it is equitable is open for interpretation Opened for signature on 10 December 1982 at Montego Bay. it is useful on that basis. they will not share the profits o BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard Mineral Resources Act 1980(USA) o Other countries (UK. Art 5: – “Except where otherwise provided in this Convention. the normal baseline for measuring the breadth of the territorial sea is the low‐ water line along the coast as marked on large‐scale charts officially recognized by the coastal State.” .    Australia Australia Australia Australia signed on 10-12-82 ratified on 5 October 1994 signed the Part XI agreement on 28 July 1994 ratified the Part XI Agreement on 5 October 1994 Maritime Zones Zones and the ‘Area’ Territorial sea 3nm 12nm 24nm 200nm EEZ Baseline High seas Continental shelf The Area 1. Baselines • UNCLOS. Anglo‐Norwegian Fisheries Case [1951] ICJ Rep 116 Anglo‐Norwegian Fisheries Case (1951) • Norwegian decree identifying its “fishery zone” (1935) • Norway claimed a territorial sea of four miles. This method must be applied restrictively.• Cf. using “drying rocks” above water level at low tide. in determining particular baselines. 213. “skjaergaard”) • Where was the baseline? o The heavily indented coastline. claiming “well established historical title” and “geographical conditions” relevant to the Norwegian coast (fjords. may only be applied if a number of conditions are met. the reality and the • Cf Qatar v Bahrain (ICJ. and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. and used “straight baselines” to delimit sections of its territorial sea. …” 2. which is an exception to the normal rules for the determination of baselines. or the “skjaergaard”? • How was the baseline to be drawn? o – “Trace parallele” method o – “Courbe tangente” method o – Straight baseline method • UNCLOS. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast. The Court observes that the method of straightbaselines. Internal Waters . Art 7 – Straight baselines 1. or that there is a fringe of islands along the coast in its immediate vicinity. Such conditions are primarily that either the coastline is deeply indented and cut into. 2001) “212. or if there is a fringe of islands along the coast in its immediate vicinity. The fact that a State considers itself a multiple islandState or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. “In localities where the coastline is deeply indented and cut into. […] 3. the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. account may be taken. sunds. Where the method of straight baselines is applicable under paragraph 1. […] 5. of economic interests peculiar to the region concerned. • UNCLOS, Art 8: 1. “Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.” • • • • No right of innocent passage through internal waters Coastal State has the right to regulate access to its ports: UNCLOS, Arts 25(2), 211(3), 255. – (Cf. Saudi Arabia v Aramco ((1963) 27 ILR 117, 212); – In support, see O’Connell: “If a country chooses to close its ports altogether that would seem to be an act of sovereignty, but if it opens them, it must open them … arguably … to all‐comers, on a nondiscriminatory basis”: O’Connell, The International Law of the Sea (1984) vol II, p 848); – See also Nicaragua [1986] ICJ Rep 14, 111. Coastal State has unlimited prescriptive and enforcement jurisdiction in the internal waters But they usually leave jurisdiction over criminal acts taking place on foreign ships in internal waters to the flag State of the ship concerned, unless the act disturbs the “public peace” of the coastal State – R v Anderson (1868) 11 Cox’s Criminal Cases 198 – Wildenhus’s Case, 120 US 1 (1887) – “… But if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of local laws for their punishment, if the local tribunals see fit to assert their authority. … The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction.” Archipelagos and archipelagic States are covered by Part IV of UNCLOS (remember Art 8(1)?) – Art 8(1): “Except as provided in Part IV, waters on the • • • • • • landward side of the baseline of the territorial sea form part of the internal waters of the State.” • • Examples of archipelagic States include Indonesia and the Philippines UNCLOS, Art 47: 1. “An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. …” UNCLOS, Art 48: – “The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.” UNCLOS, Art 50: – “Within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters, in accordance with articles 9, 10 and 11.” Rivers – UNCLOS, Art 9: – “If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low‐water line of its banks.” Bays – UNCLOS, Art 10(2): – A bay is a “well‐marked indentation whose penetration is in such proportion to the width of its mouth as to contain land‐ locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi‐circle whose diameter is a line drawn across the mouth of that indentation.” UNCLOS, Art 10(4): – “[i]f the distance between the low‐water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low‐water marks, and the waters enclosed thereby shall be considered as internal waters.” UNCLOS, Art 10(5): – “Where the distance … exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.” Bays belonging to more than one State: o – Not covered by UNCLOS o – The territorial waters should simply follow the sinuosities of the coast, subject to any special agreement. Historic bays: o – Not covered by UNCLOS o – “[G]eneral international law does not provide for a single ‘regime’ for ‘historic waters’ or ‘historic bays’, but only for a particular regime for each of the concrete, recognised cases of ‘historic waters’ or ‘historic bays’. It is clearly the case that, basically, the notion of historic rights • • • • • • • • or waters and that of the continental shelf are governed by distinct legal regimes in customary international law.” Tunisia/Libya [1982] ICJ Rep 18, 73‐4. • UNCLOS, Art 11: – “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral g part of the harbour system are regarded as forming part of the coast.” 3. Territorial Sea • • For many years, no agreement on the breadth of the territorial sea (3 – 200 nautical miles) UNCLOS, Art 3: – “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” Still quite diverse practice in 2002 If States are opposite or adjacent to each other: o UNCLOS, Art 15: – “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. …” – This does not apply where “it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.” • • o • Right of innocent passage – UNCLOS, Art 17: – “Subject to this Convention, ships of all States, whether coastal or land‐locked, enjoy the right of innocent passage through the territorial sea.” What is “innocent passage”? – UNCLOS, Art 19(1): “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.” • Passage of a foreign ship shall be considered to be prejudicial to the peace. Art 21 – Coastal State may adopt laws and regulations re innocent passage.” o o o o o o o o o • Does it cover warships. fiscal. good order or security of the coastal State if in the territorial sea it engages in any of the following activities: o o o a) any threat or use of force […]. . landing or taking on board of any aircraft. k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State. landing or taking on board of any military device. b) any exercise or practice with weapons of any kind.• “19(2). e.g. f) the launching. d) any act of propaganda aimed at affecting the defence or security of the coastal State. i) any fishing activities. immigration or sanitary laws and regulations of the coastal State.: – the safety of navigation and the regulation of maritime traffic. g) the loading or unloading of [anything] contrary to the customs. c) any act aimed at collecting information to the prejudice of the […] security of the coastal State. l) any other activity not having a direct bearing on passage. h) any act of wilful and serious pollution contrary to this Convention. j) the carrying out of research or survey activities. e) the launching. or merely merchantships? o o o o – US‐USSR Joint Declaration – Wording of UNCLOS – Contrary State practice Corfu Channel case [1949] ICJ Rep 4 – Innocent passage through international straits (and territorial sea) • UNCLOS. Such suspension shall take effect only after having been duly published. transit passage shall not apply if there exists seaward of the island a route through • • . Art 38: – “In straits … all ships and aircraft enjoy the right of transit passage. Art 25(3): – “The coastal State may. c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State. – the protection of cables and pipelines.” Territorial sea – coastal State jurisdiction UNCLOS. or d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. and – the conservation of the living resources of the sea.UNCLOS.” • • • o o • UNCLOS. without discrimination in form or in fact among foreign ships. which shall not be impeded …” – “if the strait is formed by an island of a State bordering the strait and its mainland.” And UNCLOS. Art 28(1): – “The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. including weapons exercises. Art 25(1): – “The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. UNCLOS. save only in the following cases: o o a) if the consequences of the crime extend to the coastal State.etc • If the coastal State suspects non‐innocent passage. b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea. suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security.” NB difference in approach between common law and civil law Straits . Art 27 (Criminal jurisdiction): “(1) The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage.– the protection of navigational aids and facilities and other facilities or installations. Art 33 – Coastal State may exercise control necessary to prevent infringement of its customs. and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.” • UNCLOS. and consists of the seabed and subsoil of the . 22: – “… the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio. Contiguous Zone • • UNCLOS. there is here an inherent right. it is ‘exclusive’ in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it. but no one else may do so without its express consent. and to punish infringements of the above laws committed within the territorial sea May not extend more than 24 nautical miles from the baseline 5. that is its own affair. by virtue of its sovereignty over the land. Art 45: the right of transit passage cannot be suspended on the grounds of security E. or to a distance of 200 nautical miles from the baseline …” – “(3) … the continental margin comprises the submerged prolongation of the land mass of the coastal State. immigration or sanitary laws.the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. the right does not depend on its being exercised.g.. fiscal. Continental Shelf • North Sea Continental Shelf [1969] ICJ Rep 3. Art 77 Extent of the continental shelf: UNCLOS. – In order to exercise it. Art 76(1): – “(1) … the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. no special legal process has to be gone through. In short. … Furthermore. Strait of Tiran in Red Sea 4.” This reflected almost verbatim in UNCLOS. To echo the language of the Geneva Convention. nor have any special legal acts to be performed. High Seas • UNCLOS. Exclusive Economic Zone • UNCLOS..” Freedom of the high seas UNCLOS. subject to Part VI [‘the Continental Shelf’]. • • • . whether living or non‐living. or in the archipelagic waters of an archipelagic State. Art 55: – “… an area beyond and adjacent to the territorial sea.shelf. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.” – (5) the maximum you can extend a continental shelf is 350 nautical miles. or 100 miles seawards of the 2500m isobath.” UNCLOS. Art 87(1): “The high seas are open to all States. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.. conserving and managing the natural resources. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. inter alia: o o o a) freedom of navigation. Coastal States have “sovereign rights for the purpose of exploring and exploiting. Art 86: – “The provisions of this Part [‘the High Seas’] apply to all parts of the sea that are not included in the exclusive economic zone. Art 56: – In the EEZ. whether coastal or land‐locked. c) freedom to lay submarine cables and pipelines. b) freedom of overflight. …” The freedom of the high seas comprises. Art 57: – States can claim an EEZ of up to 200 nautical miles UNCLOS. the slope and the rise. subject to the specific legal regime established in this Part. of the waters superjacent to the seabed and of the seabed and its subsoil . 6.” • • 7. in the territorial sea or in the internal waters of a State. 3. abuse of concept of nationality. States parties must include in their registry of shipping: – information identifying those owning and managing its ships and hence accountable for them (Art 6).. Panama) – Concerns about this practice. for the registration of ships in its territory.. e) freedom of fishing.” • High seas – Nationality of ships .o d) freedom to construct artificial islands and other installations permitted under international law. o o • UNCLOS. – ensure that its nationals participate to a required degree in either the ownership or the manning of its ships (Arts 8 and 9).” • UNCLOS. has the right to sail ships flying its flag on the high seas. and for the right to fly its flag. • Under the UN Convention on Conditions for the Registration of Ships (1986).UNCLOS. exercises. Art 91: 1 “1. There must exist a genuine link between the State and the ship. Art 90: – “Every State. f) freedom of scientific research. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. Art 87 is not an exhaustive list o – E. naval manoeuvres. observing other States’ naval manoeuvres • UNCLOS. and .” • What about nuclear weapons testing? • UNCLOS. subject to Parts VI [‘the Continental Shelf’] and XIII [‘Marine Scientific Research’]. or “flags of convenience” (e. Art 89: – “No State may validly purport to subject any part of the high seas to its sovereignty. subject to Part VI [‘the Continental Shelf’]. Art 88: – “The high seas shall be reserved for peaceful purposes. etc • UN Convention on Conditions for the Registration of Ships (1986) – States parties must have a competent and adequate national maritime administration which has to ensure that ships flying its flag comply with international rules concerning the safety of ships and marine pollution (Art 1). Liberia. whether coastal or land‐locked. subject to the conditions laid down in section 2. Every State shall fix the conditions for the grant of its nationality to ships. weapons testing.” • NB the “genuine link” requirement • There are several notorious “open registry States”. Ships have the nationality of the State whose flag they are entitled to fly.g.g. shall be subject to its exclusive jurisdiction on the high seas. – Also conduct of SVG.– ensure that those responsible for the management of its ships are able to meet operational financial obligations (Art 10). has jurisdiction over such criminal or disciplinary proceedings. chartered to a Swiss company • Master and crew of the Saiga were all Ukrainian • Previously been registered as a Maltese vessel • Six month certificate of provisional registration as a St Vincent and Grenadines registered ship expired on 12 September 1997. and – the then current charter‐party which recorded the flag of the vessel as SVG. Art 110: “1. … [A] warship which encounters on the high seas a foreign ship [other than a ship entitled to immunity …] is not justified in boarding it unless there is reasonable ground for suspecting that: • • • • • . and which concerns the criminal or disciplinary responsibility of the master or any other member of the ship’s crew? UNCLOS. …” UNCLOS. Art 94(1): – “Every State shall effectively exercise its jurisdiction and control in administrative. Art 92(1): – “Ships shall sail under the flag of one State only and. save in the case of a real transfer of ownership or change of registry.” UNCLOS. a permanent certificate was not issued until 28 November 1997 • The Saiga supplied gas oil to Senegalese and Greek fishing vessels in the Guinean EEZ • It was arrested by the Guinean coast guard outside the Guinean EEZ • What was the nationality of the Saiga? • Saint Vincent and the Grenadines argued that it was SVG: – inscription ‘Kingstown’ as the port of registry on the stern of the vessel. A ship may not change its flag during a voyage or while in a port of call. Arts 95‐6: – Warships and other government ships in non‐ commercial service have immunity What if there is a collision on the high seas between two ships of different nationality. or State of which the master or crew are nationals. Nationality of ships ‐ M/V Saiga • Owned by a Cypriot company. Art 97: only the flag State. save in exceptional cases expressly provided for in international treaties or in this Convention. • Was there a “genuine link” for the purposes of Article 91(1)? – ITLOS: the purpose of the requirement was to secure more effective implementation of the duties of the flag State and not to establish • • Jurisdiction on the high seas UNCLOS. This altered the traditional position as set out by the PCIJ in the SS Lotus Case (1927) … but see UNCLOS. technical and social matters over ships flying its flag. – documents on board. managed by a Scottish company. – ship’s seal which contained the words ‘Saiga Kingstown’. territorial sea. and may only be continued on the high seas if the pursuit is not interrupted. Pursuit must be commenced when foreign vessel is in internal waters. If pursuit is commenced in the contiguous zone.UNCLOS. o d) the ship is without nationality. or in any other place outside the jurisdiction of any State. every State may seize a pirate ship or aircraft.” Art 109(1) – “All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. Equidistance and Special Circumstances .” Jurisdiction on the high seas ‐ Right of “hot pursuit” UNCLOS. the ship is. …” Art 108(1) – “All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.” Art 136 – the Area and its resources are the “common heritage of mankind” Art 137 – “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources. or o e) though flying a foreign flag or refusing to show its flag. and arrest the persons and seize the property on board. it can only be for breach of rights for the protection of which the zone was established – 111(2): right applies mutatis mutandis to EEZ and continental shelf – 111(3): right ceases as soon as foreign ship enters territorial sea of another State – 111(4): must first give visual or auditory signal to the vessel to stop (which it can see or hear) – 111(5): right can only be exercised by naval vessel or military aircraft (or other vessels/planes in public service) Jurisdiction over international crimes on the high seas Art 99 – “Every State shall take effective measures to prevent and punish the transport of slaves…” Art 100 – “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas …” (piracy defined in Article 101) Art 105 – “On the high seas.” o o o Delimitation of Maritime Boundaries 1. nor shall any State or natural or juridical person appropriate any part thereof. c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109. in reality.• • • • • • • • • • • a) the ship is engaged in piracy. Art 111: – 111(1): Right to pursue foreign vessel where coastal State considers it has violated laws of coastal State. archipelagic waters. Art 1(1): “the Area” is “the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. …” Deep seabed . or a ship or aircraft taken by piracy and under the control of pirates. or contiguous zone. of the same nationality as the warship. b) the ship is engaged in the slave trade. in order to achieve an equitable solution. to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply. the States concerned shall resort to the procedures provided for in Part XV. 2.• Delimitation of the territorial sea – see UNCLOS. If no agreement can be reached within a reasonable period of time. 2. as referred to in Article 38 of the Statute of the International Court of Justice. however. Art 15: – “Where the coasts of two States are opposite or adjacent to each other.” Delimitation of the continental shelf and EEZ – mixture of UNCLOS and customary international law Art 74 (re the EEZ): 1. “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law. as referred to in Article 38 of the Statute of the International Court of Justice. where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. in order to achieve an equitable solution. “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law. If no agreement can be reached within a reasonable period of time. the States concerned shall resort to the procedures provided for in Part XV.” .” • • • Art 83 (re the continental shelf): 1. failing agreement between them to the contrary. neither of the two States is entitled. ‘The Law of the Sea’. eg. of the continental shelf areas involved.North Sea Continental Shelf (1969) • Dispute between Germany and Denmark. without encroachment on the natural prolongation of the land territory of each other. which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its Coast measured 2. the general configuration of the coasts of the Parties. 3. and taking account of all the relevant circumstances in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the seas. equitable principles. and natural resources. special or relevant circumstances – and is virtually devoid of content. in Malcolm Evans (ed). 2. 647 – “… there has to be room for differences of opinion about the interpretation of articles which. so far as known or readily ascertainable. Equitable Principles and Relevant Circumstances • • Achieving an “equitable solution” UNCLOS. 2006) 623. Art 74(1). Art 6(2) provided that: – “… In the absence of agreement. and Germany and the Netherlands • Continental Shelf Convention (1958). as well as the presence of any special or unusual features.” What is an “equitable solution”? – The formula “avoids mentioning equidistance. the boundary shall be determined by application of the principle of equidistance from the nearest points of the baseline from which the breadth of the territorial sea of each State is measured. in order to achieve an equitable solution. the physical and geological structure. and unless another boundary line is justified by special circumstances.” • And negotiations on the delimitation should take into account the following considerations: 1. and Art 83(1) adopt the idea of an “equitable solution” when delimiting the EEZ / continental shelf: – “The delimitation of the [exclusive economic zone/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law.” • ICJ held that the delimitation was to be effected: – “in accordance with equitable principles. International Law (2nd ed. as referred to in Article 38 of the Statute of the International Court of Justice. in a last minute endeavour at the Third United Nations • • .” (Malcolm Evans. the element of a reasonable degree of proportionality. There are however situations ‐ and the present case is one such – in which the relationship between the length of the relevant coasts and the maritime areas generated by them by application of the equidistance method. endorsed by Article 6 of the 1958 Convention. that both Articles [74(1) and 83(1)] envisage an equitable result.” (Dame Rosalyn Higgins. however. that between coasts that are opposite to each other the median or equidistance line normally provides an equitable boundary in accordance with the requirements of the Convention.” Eritrea/Yemen. ‘Equity and Equidistance Principles’ (1986) Annuare suisse de droit international 27.) – “[T]he doctrine of the equitable result … if allowed its head. if the parties agree thereto. in most geographical circumstances. Award of 17 December 1999. It is of course this prima facie equitable character which constitutes the reason why the equidistance method. is so disproportionate that it has been found necessary to take this circumstance into account in order to ensure an equitable solution. Second Phase: Maritime Boundary. para 131: – “It is a generally accepted view.Conference on the Law of the Sea to get agreement on a very controversial matter. Award of 17 December 1999. Maritime Delimitation: Second Phase. It is clear.”) How do international tribunals apply this rule? Maritime Delimitation in the Area between Greenland and Jan Mayen [1993] ICJ Rep 38.” (Sir Robert Jennings.” • • • . has played an important part in the practice of States. and in particular those of its Articles 74 and 83 which respectively provide for the equitable delimitation of the EEZ and of the continental shelf between States with opposite or adjacent coasts. a median line delimitation between opposite coasts results in general in an equitable solution …. an equitable result.” (Eritrea/Yemen. para 64: – “Prima facie. 66. were consciously designed to decide as little as possible. The application of that method to delimitations between opposite coasts produces. leads straight into pure judicial discretion and a decision based upon nothing more than the court’s subjective appreciation of what appears to be a ‘fair’ compromise of the claims of either side. as is evidenced in both the writings of commentators and in the jurisprudence. Problems and Process – International Law and How we Use it (1993) 227. 31 – Relation to Art 38(2) of the ICJ Statute? (“This provision shall not prejudice the power of the Court to decide a case ex aequo et bono. para 116) • Others are equally skeptical: – “What is disturbing about the ‘equitable principles to produce equitable results’ formula is not that that there are choices being made to achieve a result – but that the result is nowhere articulated other than the self‐serving description of ‘equitable’. • Land and Maritime Boundary between Cameroon and Nigeria [2002] ICJ Rep 303. They may include:   – Configuration of the coast (North Sea Continental Shelf cases). – Economic factors are generally not considered to be relevant.. para 288: – “The Court has on various occasions made it clear what the applicable criteria. principles and rules of delimitation are when a line covering several zones of coincident jurisdiction is to be determined. e. – Geological factors are not considered relevant where the distance between the coasts is less than 400nm. which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea. 50. – Ensuring that areas appertaining to each State are not disproportionate to the ratio between the lengths of their ‘relevant coasts’ adjoining the area. They are expressed in the so‐called equitable principles/relevant circumstances method. Collaboration and Mutual Assistance on Border Matters (2003) delimited land boundary and the territorial sea No agreement on the continental shelf or EEZ   .g.” What factors/relevant circumstances can be taken into account? o o No limit to the factors/circumstances that can be taken into account: North Sea Continental Shelf [1969] ICJ Rep 3. then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an equitable result. involves first drawing an equidistance line. – Security considerations. This method. Scilly Isles in the Anglo‐French Continental Shelf case). •      o Maritime Delimitation in the Black Sea (Romania v Ukraine)  Treaty between USSR and Romania of 1949 delimited a 12‐nm territorial sea around Serpents’ Island Treaty between Romania and Ukraine on the Romanian‐ Ukrainian State Border Régime. – Presence of islands capable of generating claims to a continental shelf or EEZ (small islands may be given less effect. – Prior conduct of the parties. 441. and the Ukraine’s was 705 km – The size of the maritime area of each State (although it confirmed that the purpose of delimitation is not to apportion equal shares of the area. nor indeed proportional shares. and the ratio between the relevant maritime area of each State by reference to the delimitation line. presence of Serpents’ Island. security considerations – none relevant in this case Phase 3: – “the continental shelf and exclusive economic zone allocations are not to be assigned in proportion to • • . enclosed nature of Black Sea. conduct of the parties (concessions. •  Applying the ICJ’s methodology • Phase 1: – The provisional equidistance line was constructed from the most appropriate points on the coasts. First. and the the calculation of the relevant area does not purport to be precise and is approximate) •  The ICJ’s methodology Maritime Delimitation in the Black Sea. ICJ considered: • – The lengths of the respective coastlines of the two States: Romania’s was 248km. the ICJ would draw an equidistance line. fishing. Second. naval patrols). the ICJ would consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result. cutting off effect. with particular attention being paid to protuberant coastal points situated nearest area to be delimited Phase 2: – Lengths of coasts. paras 115‐122: • • 1. 3. 2. the ICJ would verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) did not lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths. Third. Art 279: – “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2.” – no need for alteration here (Length: Romania : Ukraine = 1:2.1) Dispute Settlement 1. on the equitableness of the delimitation line it has constructed. ex post facto. to this end. paragraph 1. Area: Romania : Ukraine: 1.” UNCLOS. Art 281(1): – “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice. Rather the Court will check.” No reservations can be made to Part XV (which contains the dispute settlement regime) UNCLOS. UNCLOS.” • • .8. Art 309: – “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention. of the Charter of the United Nations and. paragraph 3. Introduction to the Regime Established by Part XV • • • • Dispute settlement under UNCLOS Compulsory dispute settlement regime one of the major important achievements of UNCLOS UNCLOS. shall seek a solution by the means indicated in Article 33.2. the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. Art 280: – States may agree to settle a dispute by peaceful means of their own choice. of the Charter.length of respective coastlines. • Japan argued (second argument): – In any event. not a means of escaping those obligations. inquiry. Here there was a dispute under the SBT Convention. They require opting out. …” – “18 (cont). Under Art 281. [D]oes article 16 “exclude” the UNCLOS set of obligations? It does not say that it does. … – 18. arbitration. – The SBT Convention was intended to be a means of implementing UNCLOS obligations in respect of highly migratory species. Any dispute of this character not so resolved shall. the Tribunal found that Article 16 of the SBT Convention excluded any further procedure. as well as under UNCLOS. with the consent in each case of all parties to the dispute. • Tribunal held: – Agreed with Australia/NZ – there is frequently a “parallelism of treaty obligations. be referred for settlement to the International Court of Justice or to arbitration. including UNCLOS dispute settlement: “the absence of an express exclusion of any procedure in Article 16 is not decisive. those Parties shall consult among themselves with a view to having the dispute resolved by negotiation. but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. – 2.Southern Bluefin Tuna case • Convention for the Conservation of Southern Bluefin Tuna. • Australia/NZ argued: The SBT Convention did – not "cover" the relevant obligations of the Parties under UNCLOS. conciliation.” • Japan argued (first argument): – The dispute between it and Australia and New Zealand fell solely within the SBT Convention. discharged and eclipsed any provisions of UNCLOS. mediation. … As the Virginia Commentary (para 281. and o b) the agreement between the parties “does not exclude any further procedure”. but as for the second condition. the procedures provided for in Part XV of UNCLOS apply only: o a) where no settlement has been reached by recourse to such means.5) puts it. The Southern Bluefin Tuna Convention was a lex specialis that subsumed. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention. The requirement is that the Parties have agreed to exclude any further procedure for the settlement of the dispute concerning UNCLOS.” – Cf Sir Kenneth Keith’s separate opinion: – “13. in their agreement to resort to a particular procedure. The word any in the final phrase of article 281(1) is also significant since it requires the exclusion to be of any other procedure available between the Parties such as those under the compulsory jurisdiction of the International Court or other treaties for the peaceful settlement of disputes. may also specify that this procedure shall be an exclusive one and that no other procedure (including those . and not within the scope of UNCLOS. • The Tribunal agreed with Japan: – The first condition in Art 281 was satisfied. such that disputes can arise under more than one treaty. judicial settlement or other peaceful means of their own choice. Art 16: – “1. … But does it impliedly exclude the UNCLOS procedures? … – 17. the phrase “envisages the possibility that the Parties. The French and Spanish texts have the same wording and structure. the conditions of Art 281 have not been met. A State Party. with a view to settling the dispute. …” • . by means of a written declaration. it may be submitted only to arbitration in accordance with Annex VII. o c) an arbitral tribunal constituted in accordance with Annex VII. If the parties to a dispute have accepted the same procedure for the settlement of the dispute. or consult. ratifying or acceding to this Convention or at any time thereafter. the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. unless the parties otherwise agree. 4. unless the parties otherwise agree. “When signing. o d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. o b) the International Court of Justice. Art 284: – parties can agree to refer the dispute to conciliation. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI. it may be submitted only to that procedure. which is a party to a dispute not covered by a declaration in force. pending the final decision. 5. a State shall be free to choose. The International Tribunal for the Law of the Sea (‘ITLOS’) and Annex VII Tribunals • • • Art 283: – parties to a dispute have an obligation to exchange views. one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: o a) the International Tribunal for the Law of the Sea established in accordance with Annex VI. 3. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute.” Art 290(5): – “Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section … the International Tribunal for the Law of the Sea … may prescribe.” 3. Art 287: 1. section 5.2. modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Provisional Measures • Art 290(1): – “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI. section 5. shall be deemed to have accepted arbitration in accordance with Annex VII. 2. The coastal State must have good reason to believe that the ship has violated the laws and regulations of that State (Art 111(1)). the archipelagic waters. without prejudice to the merits of any case before the appropriate domestic forum against the vessel. its owner or its crew. or the EEZ/continental shelf if the violation of the coastal State’s applicable laws is suspected (Art 111(1) and (2)). the territorial sea or the contiguous zone of the pursuing State. e. unless the parties otherwise agree. o 3. Prompt Release • • Art 73(2): – “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. hot pursuit may only be undertaken if there has been a violation of the rights for the protection of which the relevant zone was established (e.” Art 292(1): – “Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security. the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or.. Judgment of the ITLOS of 23 December 2002 • • Right of hot pursuit (Art 111) (revision) o 1. o 6. o 2. Judgment of the ITLOS of 4 December 1997 – Volga. re the contiguous zone: to prevent infringements of its customs.4. …” See. The ship giving the order to stop does not need to be likewise within the territorial sea or the contiguous zone or EEZ/continental shelf (Art 111(1) and (2)). The hot pursuit may only be continued outside the territorial sea or the contiguous zone (or EEZ/continental shelf) if the pursuit has not been interrupted (Art 111(1) and (2)). to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea.g. If the foreign ship is in the contiguous zone/EEZ/continental shelf. o 4.” Art 292(3): – “The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State (Art 111(3)). fiscal.: o o • – M/V Saiga. . immigration or sanitary laws and regulations within its territory or territorial sea: Art 33) (Art 111(1) and (2)).g. failing such agreement within 10 days from the time of detention. o 5. The hot pursuit must be commenced when the foreign ship or one of its boats is within the internal waters. o o o 7. Hot pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship (Art 111(4)); and 8. Hot pursuit may be exercised only by warships or military aircraft or clearly marked government vessels (Art 111(5)). • See, e.g., M/V Saiga (No 2), Judgment of the ITLOS of 1 July 1999 Contemporary Issues 1. Piracy in the Gulf of Aden • • • • • • • • • • • • • • Civil war in Somalia 1990 Due to lack of effective government, pirates have had free reign in attacking shipping off the Somali coast Attacks have been made in the territorial sea and beyond, up to 750 nm from the coast Targets include cruise liners, tankers, ships carrying international aid, fishing and recreational vessels From 2005‐2007, attacks/attempted attacks off Somali coast exceeded incidents for the Malacca Straits and the South China Sea combined From 1992‐2000, Somalia had no representation at the UN Transitional Federal Government (‘TFG’) in power since 2000, but lacks control over most of Somalia’s territory Pirates operate from command centres on the Somali coast Pirates use “mother ships” from which they launch their smaller vessels to attack ships in the EEZ and the high seas After the attack, the ships retreat into the Somali territorial sea In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181 hostages were taken g (with 760 still in captivity) In 2005, there were 35 attacks; in 2010, there were 219 attacks By 5 February 2011, there had already been 35 attacks in 2011 Capture of M/V Rozen (World Food Programme vessel) in February 2007; vessel and crew of 12 held hostage for 40 days • • • M/V Victoria (WFP) also attacked in May 2007, one crew member was killed Le Ponant (April 2008) attacked – French military responded (with Somalia’s consent) Worldwide ship hijackings (Jan – Sept 2009): o o o – 34 hijackings – 559 hostages – 294 total attacks • Gulf of Aden (Jan – April 2009): o o o – 10 hijackings – 38 attempts – 26 interventions, 10 arrests • • • • • • • • As at 5 February 2011 (off Somali coast): o – 7 hijackings o – 35 attempts o – 758 crew being held hostage Average ransom: USD 5.8 million Average length of hijacking 60‐70 days (but see “Win Far 161”, held for 10 months) Legal Framework for Combating Piracy – UNCLOS Art 100 (duty to cooperate): – “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” UNCLOS, Art 101 (definition): – “Piracy consists of any of the following acts: o (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:  (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; … o (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; o (c) any act of inciting or of intentionally facilitating … (a) or (b).” UNCLOS, Art 103 (pirate ship): – “A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. …” UNCLOS, Art 105 (jurisdiction): – “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. – The courts of the • • • • • • • • • • • • • • • • • • • State which carried out the seizure may decide upon the penalties to be imposed….” UNCLOS, Art 110 (right of approach): – “[A] warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity … is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy …” Definition of piracy under UNCLOS (Art 101): o – An act of violence; o – On the high seas; o – For private ends; o – By a private vessel against another vessel; o – And includes inciting and intentionally facilitating piracy (including ‘cruising with intent’). o NB that there are limitations with this Definition Where should pirates be prosecuted? – Under UNCLOS and customary international law, all States have universal jurisdiction to capture and prosecute pirates – but there is no obligation to do so – So States might not have adequate national laws – States might be reluctant to prosecute if there are no “links” – States might have impediments under their constitution or national law from being involved in efforts to combat piracy Legal Framework – SUA Convention - Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988) o – Art 3: it is an offence to ‘seize or exercise control over a ship by force or threat thereof’ o – Art 4: not an offence where the offence took place within one State’s territorial sea, and the vessel was not scheduled to navigate beyond that territorial sea o – Art 5: States parties have an obligation to legislate and criminalise acts committed against Article 3 of SUA:  a) against or on board their flag vessels;  b) within their territory, including their territorial sea; and  c) by one of their nationals. SUA Convention, Arts 8 and 10: – If a vessel detains a vessel or suspect under the SUA Convention, any port State which is a State party must accept delivery of the suspect and extradite or prosecute if there are reasonable grounds for suspecting they have committed an offence Summary of UNCLOS and SUA UNCLOS: – no obligation on States to create national offences – need “two vessels”, and piracy must be “for private ends” – no provision for States capturing pirates to transfer them to other States – automatic right to board on the high seas SUA: – obligation on States to create national offences – obligation to accept delivery of pirates, and to extradite or prosecute – no automatic right to board on the high seas – haphazard implementation by different States as reflected in UNCLOS. in accordance with international law.NB also … • International Convention Against the Taking of Hostages (1979) • International Convention for the Suppression of the Financing of Terrorism (1999) • Djibouti Code of Conduct on Repressing Piracy off Somalia (2009). NATO o For prosecution of pirates: – Prisoner transfer agreements have been agreed (EU/UK/US/Denmark – Kenya. EU/UK – Seychelles. France (but Kenya no longer accepting transfers of pirates) • Challenges ahead o Different naval forces have different mandates o States who capture pirates reluctant to detain them o Practical difficulties with prosecutions (cf UNSCR 1918 (2010)) o Legal difficulties – e. and a Maritime Security Patrol Area (“MPSA”) in the Gulf of Aden • And several UNSC Resolutions … • UNSCRs • UNSCR 1816: – authorised interdiction operations in Somalia’s territorial sea (cf UNCLOS – EEZ and high seas only). for the purpose of suppressing acts of piracy and armed robbery at sea. application of ECHR? Refugee Convention? . France – Puntlan o Trials have taken place in Kenya. US.. Netherlands. which promotes further cooperation between States bordering the Indian Ocean • IMO created an Internationally Recognised Transit Corridor (“IRTC”).g. China – TFG. pursuant to the request of the TFG” • UNSCR 1897: – renewed authorisations in UNSCR 1846 and UNSCR 1851 • Current response o 24 naval vessels patrolling the area o – Coalition Taskforce 150/151 ‘Enduring Freedom’. EU. for the repression of acts of piracy • UNSCR 1846: o – Extended UNSCR 1816 for 12 months o – Called on States and regional organisations with the capacity to do so ‘to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia’ o – Noted provisions of SUA Convention • UNSCR 1851: – “States and regional organisations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia … may undertake all necessary measures that are appropriate in Somalia. and use “all necessary means to repress acts of piracy and armed robbery at sea” • Limitations: o – Only for six months o – It did not make the international law of piracy directly applicable in Somali territorial waters o – No solution re jurisdiction to try pirates • UNSCR 1838: o – exhorted States whose naval vessels operate on the high seas off the coast of Somalia to use on the high seas the necessary means. take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit.000 minke whales Election promise of Rudd Government (Federal Election in 2007) Rudd Government continued to pursue diplomacy. but it withdrew its objection by the end of 1987 Japan launched a “scientific whaling” programme for minke whales ICRW. and CBD JARPA I commenced in 1987‐88.” Japan is not the only country with active whaling programmes Iceland and Norway continue to engage in commercial whaling Another exception is “aboriginal subsistence whaling”. and appointment of Jack Lang as Special Adviser on Piracy. Each Contracting Government may at any time revoke any such special permit which it has granted. Whaling in the Southern Ocean • • • • • • • • See Australia’s Application Instituting Proceedings against Japan before the ICJ (31 May 2010) There is a long‐running contest between whaling states and anti‐whaling states whether there should be (i) limited whaling. see also Jack Lang’s Report (S/2011/30) 2. St Vincent and the Grenadines. Art VIII(1): – “Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. or (ii) no whaling This has been a source of contention for the International Whaling Commission (‘IWC’) IWC’s moratorium on commercial whaling International Convention on the Regulation of Whaling (1946) did not originally contain such a ban. From 1987‐2005. but when this failed. but the moratorium was adopted in 1982 Japan initially objected to the amendment (so was not bound by it).o o o o o Workload of States carrying out prosecutions (see Kenya’s decision on 1 April 2010) So “catch and release” policy re‐implemented? International Criminal Tribunal for pirates? Best hope: restoration of effective government in Somalia? See Letter from S‐G to President of UNSC dated 24 January 2011. ICJ proceedings launched in May 2010 Australia argues that “JARPA II” is breach of Japan’s obligations under ICRW. over 6. taking. Russian Federation. which is permitted (Denmark. and the killing. and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. United States) Australia has long criticised Japan for increasing annual takes that amount to over 1.800 minke whales were taken • • • • • • • • . CITES. ” to adopt measures that avoid or minimise adverse impacts on biological diversity. “as far as possible and as appropriate. “as far as possible and as appropriate. trade in Appendix I species “must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.” to cooperate in the conservation and sustainable use of biological diversity beyond national jurisdiction.” o – Under Art III(5). o – Art 10(b) requires States. .• • • • • • JARPA II (2005 – ) more than doubles the take of minke whales. which was abandoned early. 5. (ii) lack of relevance for conservation of stocks. o – Art 5 requires States. and 10(b) o – Art 3 requires States to ensure that activities under their jurisdiction and control do not cause harm to other states or to areas beyond national jurisdiction. o – (ii) failure to observe prohibition on whaling for humpback and fin whales in Southern Ocean Whale Sanctuary o – Japan’s catch cannot be justified as “scientific whaling” under Art VIII(1) due to: (i) scale of programme. with less than 100 whales). Appendix I species can only be introduced into a State subject to a number of strict conditions certified by relevant state authorities Convention on Biological Diversity: o – Violation of Arts 3. and also includes humpback whales and fin whales See Australia’s Application Instituting Proceedings Obligations allegedly breached by Japan: International Convention on the Regulation of Whaling: o – (i) failure to observe in good faith the moratorium on commercial whaling. (iii) risks presented to targeted species and stocks o – This is essentially an “abuse of rights” argument Convention on International Trade in Endangered Species: o – The taking of humpback whales under JARPA II violates Arts II and III(5) of CITES o – Under Art II(1). to around 850 per year (cf the 2010‐2011 season. EEZ etc • Some states say that all water should be territorialised • • Whatever the actual content.PART 1: HISTORY OF LAW OF THE SEA AND UNCLOS 1. Historical Background to the Law of the Sea There are two competing notions in relation to the law of the sea:   freedom of the seas dominion over the seas 2.now days 12 nautical miles • to protect national fisheries-protection of their food and trade • to have freedom on the high seas. because of the other areas.also ways a big issue for states.perhaps including: • to have a territorial sea.how much do they own? • to determine its breadth. it is generally agreed that this customary law was codified in the conventions which emerged from the 1958 and 1960 Law of the Sea (UNCLOS I and II) meetings. few ratifications (average 40) mean the 1958 Conventions have doubtful international validity they did not fix a maximum limit to which a country’s territorial sea could be extended they did not describe a definite boundary for the continental shelf UNCLOS III – BEGINS! • UNCLOS III begin because of concern over the possible exploitation of the resources of the sea-bed and the ocean floor on a competitive basis .the high seas are getting smaller and smaller today. AND that UNCLOS III represents the customary law today UNCLOS I AND II 1958/60 • • • • • • • Convention on the Territorial Sea and the Contiguous Zone (came into force 10-9-64) Convention on the High Seas ( 30-9-62) Convention on the Continental Shelf ( 10-6-64) Convention on Fishing and Conservation of the Living Resources of the High Seas ( 20-3-66) However. World Decides to create UNCLOS I then II then III! Customary Law of the Sea • The content of the customary law of the sea is somewhat nebulous . Venezuela. fisheries.• • • • • • • • • • • • • it was believed by some that this would lead to neo-colonialism. Ratifications required for entry into force: 60 60th ratification: Guyana. 2-9-82. diplomatic conflict and war the resources of the sea-bed and the ocean floor were described by the UN as “the legacy of all human beings” Moratorium on exploitation of resources of the sea-bed and the ocean floor (UN Resolution 2574D (XXIV)). former USSR) followed suit at the time the UK and USSR were the super powers and they were not keen to share with the other countries and if America could. – . the big states could mine and reap the benefits of the sea bed and this wasn’t just.the Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed. entered into force on 16-11-94. conservation of resources. continental shelf. Germany. from June 20. 1974. so could they (very childish) Then.THE AMERICANS WHINGE! • • • • • • • The USA voted against UNCLOS at the final session of negotiations Regan was a Republican and he wanted no part of part Xi of UNCLOS The US was unhappy with Part XI. and the US was formed . high seas. Covers almost everything dealing with the law of the sea in one convention. exclusive economic zone. contiguous zone. following UN Resolution 3067 (XXVIII) with the first session being held in Caracas. on 1611-93. Therefore. an interim regime between France. Now. 157 countries have signed. Whether it is equitable is open for interpretation Opened for signature on 10 December 1982 at Montego Bay. The smaller states could not have the advantage of the common sea bed. Currently. etc. UK. Jamaica 119 countries signed immediately (a record). This hasn’t become a large issue because there has not been enough advancement of technology yet. Washington. on the deep-sea mining question (States can go and exploit the sea-bed but all profits must be shared) US said that we were the ones with the technology and we are the ones who will go out and reap the benefits. 149 ratifications Problems with the new UNCLOS. Purpose: to establish an equitable international regime covering a wide range of LOS issues including: territorial sea. however at the time it was considered important Declaration of Principles governing sea-bed and ocean floor (UN Resolution 2749(XXV)): this made the deep sea bed “the common heritage of humankind” the resources of these areas will be shared by all (this is a very 60’s and 70’s approach) Inaugurated in December 1973. it is useful on that basis. they will not share the profits BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard Mineral Resources Act 1980(USA) Other countries (UK. with the amount of ratifications UNCLOS three became a workable treaty on the law of the sea • Art 309 – forbids reservations or exceptions.• • A polymetallic nodule is a parts of the seabed are covered with big blobs. these are called polymetallic nodules filled with certain metals of all sorts of kinds. but Part XI has already been amended Australia’s position on UNCLOS • • • • Australia Australia Australia Australia signed on 10-12-82 ratified on 5 October 1994 signed the Part XI agreement on 28 July 1994 ratified the Part XI Agreement on 5 October 1994 Part 2: ZONES . The question becomes how do we get it? As yet there is no way to mine the deep sea bed However. so states like the US don’t sign the whole lot because of an issue with one part • Art 312 – no amendments for 10 years after UNCLOS enters into force (which would be 2004 but then there was the amendment to Part XI in breach of this rule) • Art 155 – review of Part XI not to take place until 15 years after first commercial production from sea bed <> not even close to this. however. beyond its land territory and internal waters .next door to the territorial sea..to an adjacent belt of sea. described as the territorial sea” . it is not territory • Continental shelf • Deep seabed (the Area) • Archipelagic waters – difficulties in having a lot of different islands • High seas the water above the area Territorial sea Article 2(1): “The sovereignty of a coastal State extends.12-24 NM away from land again it is not territory • Exclusive Economic Zone (EEZ) 24-200 is called the EEZ and this gives you certain rights over the water.a list of all the zones recognised by UNCLOS III • Territorial Sea • Contiguous Zone.Zones and the ‘Area’ Territorial sea 3nm 12nm 24nm 200nm EEZ Baseline High seas Continental shelf The Area Zones MARITIME ZONES.. the rest of it is Australian territory. • Important today because of terrorism.. a State may exercise control over customs. fiscal matters. this is important over who enters etc • The fiscal matters includes tax and is normally aimed at drug smugglers • This contiguous zone is also important for controlling the spread of bird flu Australia’s contiguous zone • • The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to refer to a new contiguous zone (ss3(1). NSW etc. Australia's complication is that it has Qld. under UNCLOS. immigration. however. there is a right to innocent passage allowed through the territorial sea under Article 17 UNCLOS. Australia’s territorial sea is only 12 NM. Such passage is defined in Article 19 and must not be prejudicial to the peace.. in an international sense this means nothing. 13A-C) The definition inserted into the Act is that of Article 33 of UNCLOS Exclusive Economic Zone or EEZ . good order or security of the coastal State as represented by any of the activities listed in Article 19(2) The Corfu Channel case (United Kingdom v Albania) • • Contiguous zone Article 33(2): “The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. this jurisdiction is shared.Article 3: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. and sanitary laws. in all of Australia no matter what state. to rights of innocent passage (see Articles 17-19).” Notes: • In this zone. each constituent part sets to control the first three NM beyond the baseline.” Australia’s territorial sea • • • • The Seas and Submerged Lands Act 1973(Cth) was amended in 1990 to enlarge Australia’s territorial sea to 12 nautical miles from the baseline This took effect on 20 November 1990 This is subject. Over the low water mark is Australia. .” Article 76(5): “The....comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea.... or to a distance of 200 nautical miles from the baselines.outer limits of the continental shelf. 10B) The definition inserted into the Act is that in Article 57 of UNCLOS All rights over the EEZ are vested in the Crown in right of the Commonwealth (s10A) This claim does not affect the AFZ dealt with in the Fisheries Management Act 1991 (Cth)..Article 57 “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines...” Article 56 – Rights in EEZ states that in this zone a State has the right to: o explore and exploit natural resources (living or non-living) o conserve and manage these resources o establish structures (pipe lines national parks) o conduct marine scientific research o protect the marine environment o This area you have sovereign rights over. The rights would be akin to those offered for the EEZ Australia’s continental shelf • • The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to reflect the UNCLOS definition of the continental shelf This claim exceeds our continental shelf claim made under the previous (1958) Convention . Continental shelf Article 76(1): “... The AFZ is now defined consistently with the EEZ (ie it is 200 nm in width)... they are not in the terms of owning the land but you can still exercise these rights Australia’s EEZ • • • • The Seas and Submerged Lands Act 1973 (Cth) was amended in 1994 to declare Australia’s EEZ (ss3(1)..shall not exceed 350 nautical miles from the baselines. or shall not exceed 100 nautical miles from the 2500 metre isobath..to the outer edge or the continental margin.” • A state may have claim for some rights to the area up to there continental shelf. overflight. and extending to 350nm where possible. scientific research (subject to the rest of UNCLOS) plus the freedom to lay submarine cables and pipelines and to construct artificial islands and other installations No state can validly claim sovereignty over any part of the high seas – Art 89 • Under the high seas • Under the high seas is the AREA. There is a time limit of 10 years for finalising continental shelf claims (Art 76 (8) and Annex II) High seas • • • Traditionally. all areas beyond territorial waters were high seas UNCLOS has altered that principle by extending territorial claims and sovereign rights over the sea However. the high seas remain free – under Art 87 all states have freedom of navigation. . and in the same way that many would like Antarctica to be. fishing. • This is a common heritage area. but still has not been finalised as yet. which is the deep sea bed as referred to in Part XI of UNCLOS. in the same way as the moon and outer space are (by Treaty).• • • The full claim will be made to the Commission on the Limits of the Continental Shelf in 2004 This Commission considers a claim over the area and decides on its validity The claim is for at least 200 nm. We have been able to lay claim to all the zones around our Antarctic ‘territory’.about 1. • UNCLOS supports arrangements with other countries Maritime Delimitation Issues . and East Timor will get a better deal eventually • Also a separate treaty with Indonesia and Australia (there is overlapping island zones with Indonesia. • Important element of UNCLOS is the ability to go out and co-operate and coordinate with your neighbours the extent of your territory • Separate treaty with PNG and New Zealand. Zones and neighbours • We are too far from NZ. The areas in pink have very important economic and strategic value. but our zones overlap to some extent with Indonesia and PNG. • We have been able to settle any problems so far by separate treaty .The Torres Strait Treaty and the Australia-Indonesia Delimitation Treaty (plus the Timor Sea Treaty of 2002 with East Timor).Zones around Australia • • • They give to Australia greatly increased jurisdiction .5 times our land area. this may not always give the most equitable solution due to geographical peculiarities.PART XI. Part 3. and the fishing rights of the parties. there are sometimes special circumstances to be taken into account in relations to equidistance. Geomorphology and geology. • As is discussed in the History section. this was the point of greatest contention when UNCLOS III was opened for ratification • The agreement has tried to accommodate the developing nations Zones and the ‘Area’: Express limitations to changing UNCLOS • Article 309 of UNCLOS forbids reservations or exceptions (have to sign up to the whole convention) • Article 312 prevents amendments until 10 years after UNCLOS enters into force ie until after 16/11/2004 • . Prior conduct of the parties. including navigation rights. Other factors. What is involved in ‘special circumstances’? Included are: • • • • • Geography. The main concept to be considered here is that of equidistance. which they felt unduly favoured developing nations. including proximity. including the relative wealth of the parties.The deep sea bed Introduction: • Part XI deals with the regime for the exploration and exploitation of the deep sea bed outside any State’s 200 nm zone. existence of mineral deposits under the seabed. • Developed nations were unhappy with the original Part XI.which lies under the high seas. Interests of third parties. • This is called ‘The Area’ . including the existence of trenches or troughs on the seabed which may suggest ‘natural’ boundaries. Thus. These Articles are regarded as merely declaratory of customary international law. However. including third States’ claims over the area in question. or activities in the area under dispute. natural prolongation and proportionality. and is regarded as the Common Heritage of Humankind. Limits should be drawn at points which are equidistant from each party’s baselines. security. including the de facto acceptance of an ‘existing’ boundary.• • • UNCLOS deals with this topic in Articles 15. Economic interests of third parties. strategic and related interests. 74 and 83. Part 4: FISHING!! Fisheries are a major issue.• Article 155 states that review of Part XI cannot take place until 15 years after first commercial production from the seabed Changes to Part XI • Despite the previously mentioned Articles. there was renegotiation of Part XI under the auspices of the secretary-general of the UN from 1990. • However. which supersedes a previous one if they have expressly agreed to the later treaty • Part XI Agreement . • This resulted in the “Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea”. Fishing with the EEZ 2. Fishing on the High Seas 3. this part will deal with: 1.adopted on 28 July 1994 pursuant to UN Resolution 48/263 • Ended up with an agreement that amends the provisions of Part XI of UNCLOS • However this goes against the limitations discussed above • This is all now governed by The Area is the International Seabed Authority (ISA) – Substance of the Agreement• • • • • • • • These are the substantive alterations for Part XI deal with: costs to State parties of the administrative machinery involved (section 1) abolition of The Enterprise which was to have been the operational arm of the ISA (section 2) reorganisation of the deliberative and executive parts of the ISA (section 3) replacement of the original Article 155 relating to the Review Committee – changes to Part XI can now be considered at any time by the ISA (section 4) abolition of the compulsory transfer of sea-bed mining technology to The Enterprise (section 5) alignment of the ISA’s operations with the free trade principles under the WTO. the issue has become is this truly binding? • Article 30(4) of the Vienna Convention on the Law of Treaties provides that States can only be bound by a later treaty. including relaxed sub-contracting provisions (sections 6-8) establishment of a Finance Committee to allow a greater say to developed nations over funding decisions (section 9). Whaling . conserving and managing the natural resources of the EEZ. This would seem to be incompatible with Article 61.art. Part V deals inter alia with fishing in the EEZ. other types of tuna. 61(2)).straddling stocks (those which.Highly migratory species ‘cooperation between or among states is called for in relation to the conservation of these species in both the EEZ and the high seas.’ Article 62(4). taking into account the ‘best scientific evidence available to it’ (art. Sailfish and Swordfish) .The relevant parts of UNCLOS are Pts V and VII. Article 62(2) – access to other fisheries ‘allows the coastal state to permit other states access to its fishery if it is unable to exploit its total resources itself. but the proviso is that this is to be done ‘without prejudice to article 61' .’ See further on for more on straddling fish stocks Article 64. s 2 deals with fishing on the high seas. Marlin. while Pt VII. This includes the fishes Article 61 -the conservation of the living resources of the EEZ ‘The coastal state must determine the allowable catch of fish in its EEZ. Coastal states should cooperate regionally and/or globally to avoid overexploitation of fish.’ Article 61(3) ‘Species should be maintained at a level which will yield the maximum sustainable catch. swim past the EEZ) ‘States are to cooperate on the conservation of such species in the high seas. ‘The law applicable to the entry of foreign vessels to an EEZ is the national law of the coastal state’ Article 63. 62(1). Fishing with the EEZ The Exclusive Economic Zone and Fisheries • The 200 nm limit to the EEZ is set in Article 57 of UNCLOS. Article 56(1)(a) confers on the coastal state sovereign rights for the purpose of exploring and exploiting.’ • Some of these species (eg Southern Bluefin Tuna. but this is to be qualified by ‘the economic needs of coastal fishing communities and the special requirements of developing states’ • The coastal state is also required to promote the objective of optimum utilization of the living resources in the EEZ. s 2. both for coastal and land-locked States… (e) freedom of fishing.’ Article 70. inter alia.’ Protection of your EEZ – Art 73 states a State can take measures such as ‘boarding. at the harvestable stage. Lets go fishing on the High Seas! High Seas Fisheries • the freedom to fish is preserved in UNCLOS Article 87(1)(e) ‘The high seas are open to all States. Cooperation and enrichment from the sea to the effect that it is not depleted 2. its harvesting should be the subject of agreement. taking into account the relevant economic and geographical circumstances of all the States’ Article 77(4)-species are regarded as part of the resources of the continental shelf.’ . on an equitable basis.Article 69. whether coastal or land-locked. arrest and judicial proceedings.Geographically disadvantaged states ‘Geographically disadvantaged States shall have the right to participate. that is to say. either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil. of course.Anadromous species (those which spawn landward and proceed seaward) and catadromous species (those which spawn seaward and proceed landward). Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. • Any use of force would have to. organisms which. as may be necessary to ensure compliance with state regulations within EEZ. in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region. inspection. be in accordance with lawful uses of force under the UN Charter The most important in all of these is that they are meant for people to cooperate over their fisheries the main goals are 1. If the species in question proceeds through more than one EEZ. It comprises. ‘Are only to be fished in the EEZ. Cooperation of all states over the natural resources of the sea 2. ‘The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species. subject to the conditions laid down in section 2. 3 • However. 4 Caroline E Foster. 591.• • • • • The requirements are again to cooperate in order to conserve the living resources of the area. 3 Caroline E Foster. many of which operate in the Australian Fishing Zone (AFZ). above n17. • These concerns were clearly within the CCSBT Convention2 although UNCLOS still had jurisdiction in principle. the tribunal considered it artificial to separate out the UNCLOS elements from the CCSBT elements. Jacqueline Peel. above n19. The Southern Blue Fin Tuna Case Facts: • The tribunal considered whether the dispute arose under the United Nations Convention on the Law of the Sea (UNCLOS) or the regional Convention for the Conservation of Southern Bluefin Tuna (CCSBT). not two separate disputes.4 Found: • Under Article 16(2) parties are required to find a peaceful resolution after failing to reach agreement on having a dispute resolved externally. 5 Jacqueline Peel. 59. but this does not solve the international issues relating to irresponsible flag states.1 • The Tribunal characterised it as one dispute under two Conventions. • It found that the dispute arose under UNCLOS. ‘A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration’ (2002) 3 Melbourne Journal of International Law 53. 2 Caroline E Foster. . • The central feature of the dispute concerned the parties inability to agree on the revised total allowable catch of tuna & Japan’s involvement in unilateral experimental fishing programmes. 57. 59. while being based in the CCSBT.5 • At the time of the judgment. Vessels on the high seas are subject to the jurisdiction of their flag state If the flag-state has a well-developed system of laws and can enforce these effectively. See the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas which forms part of the International Code of Conduct for Responsible Fishing an organ of the UN. 581. Jacqueline Peel. above n18. 591. the tribunal found that every possible avenue had not been exhausted under the CCSBT and UNCLOS Straddling Fish Stocks and Highly Migratory Fish Stocks • 1 UNCLOS requires that straddling stocks be the subject of conservation efforts in the high seas only. Australia has recently enacted this agreement in the Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth). ‘The “Real Dispute” in the Southern Bluefin Tuna Case: a Scientific Dispute?’ (2001) 16 The International Journal of Marine and Coastal Law 571. above n19. the compulsory settlement procedures of UNCLOS (in Part XV) are to be applied. recommend. The UN decided that further measures were needed in order to overcome this problem.capital long-distance fishing fleets of the world. • 3. if necessary. They may be well managed in the EEZ of the coastal state and then decimated once outside it. Whales are delicious • • • • The main body is the Scientific Committee of the IWC – The Scientific Committee comprises up to 200 of the world's leading whale biologists. The Committee meets in the two weeks immediately before the main Commission meeting and it may also hold special meetings during the year to consider particular subjects.• • • • • while highly migratory species are to be dealt with in both the EEZ and the high seas Fish stocks which will go outside their own EEZ are open to over-exploitation. The subject matter considered by the Committee:   encourage. although that freedom is specifically preserved in article 4 of the Agreement. Where scientific evidence is lacking or uncertain article 6 requires the application of the ‘precautionary principle’. or.if there is already a regional or subregional arrangement. This may appear to be a further erosion of the freedom of the high seas. The Scientific Committee's report provides an annual review of the major issues affecting cetacean conservation. Article 8 sets out the requirements for cooperation between and among states . particularly by the high. collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon. current non-members fishing the relevant waters should join. Outcome was the: Agreement for the Implementation of the Provisions of the United Nations Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks • • • • • The Agreement is concerned with the effective implementation of Articles 6364 and 116-119 of UNCLOS. Hence the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened. Many are nominated by member governments. organise studies and investigations relating to whales and whaling. If there is a dispute. . Article 5 of the agreement requires the best scientific evidence principle to be applied to the conservation of straddling stocks and highly migratory species. This is believed to be stronger than just requiring ‘cooperation’-see article 7. States must find ‘compatible rules’ for conservation. • The IWC is ignored by States when their political preferences are not soothed. appraise and disseminate information concerning methods of maintaining and increasing the populations of whale stocks. • However. • The IWC focuses on a horizontal theory of international law. rendering the IWC powerless to enforce it against Japan pursuant to the opt-out provision of the Convention. • Japan has lodged objections to the moratorium. put forward a resolution that urged Japan to withdraw its proposal for increasing its whale cull or This was passed by a majority of 30 to 27 votes with one abstention by the Solomon Islands. study. • In trying to regulate whaling the IWC has not been successful. where States are supposed to comply in good faith to the ICW because of their own selfinterests. with New Zealand backing. • As a result. • The original function of the IWC was to manage the conservation of whales to overcome the need to return to large-scale commercial whaling. Can the IWC still effectively deal with Whaling Issues? • The IWC is not effective as a conservation organisation in terms of their treaty The International Convention for the Regulation of Whaling (ICRW). • However. • There is not even an obligation to take part in an international organization that deals with whaling. Problems with enforcement • The resolutions passed at the Commission each year are non-binding on States. Roles: It monitors whale counts and advises states on the best way to conserve whales (there is a detailed discussion of their roles and inadequacies below) Current Issues with Whaling Japan’s plan to increase whale cull • Japan’s plans to expand it’s scientific whaling programme • Australia. the ICRW is continually violated by members and this goes unchallenged. 6 . • The Articles of the Convention focus on the sustainable harvest of whales. There are no dispute settlement procedures or enforcement programmes within the IWC. • Voting also upheld a continuation of the whaling moratorium and a voting down of the introduction of regional management schemes that would threaten the moratorium.6 • The Convention’s only form of enforcement is self-policing. there are no obligations placed on States and the Commission has no power to challenge State’s actions. However. Japan stated that it would go ahead with the programme at the end of this year despite the resolution and general consensus against the hunting of whales. many States believe the treaty’s purpose is to achieve a total ban on commercial hunting and reject this focus. Trade sanctions 4. legal action in domestic courts 2. so illegal whaling occurs without its specific knowledge. • The IWC has no way of monitoring the activities of whaling ships. parties can submit the dispute to a court or tribunal with jurisdiction under Art 286 Art 287 defines the courts and tribunals  ITLOS – Annex VI to UNCLOS is its statute  ICJ  Arbitral tribunal constituted in accordance with Annex VII of UNCLOS Topic 4: International Environmental Law Introduction and Definitions • What is international environmental law? Is there such a distinct body of law? o Brownlie: “Legal Aspects of the Protection of the Environment” o Birnie and Boyle: “International Law and the Environment” o Sands: “Principles of International Environmental Law” o – Cf Redgwell: “International Environmental Law”. the reporting mechanism for the numbers of whales captured is up to each State to collect individually. legal action in international courts 3. Triggs: “International Environmental Law” Traditional legal order of the environment has been laissez‐faire – limitations on the actions of states are not to be presumed lightly Any limitations that do exist have emerged on an ad hoc basis So need a body of law more specifically aimed at protecting the environment • • • . reform the ICW and ICRW ITLOS – The International Tribunal for the Law of the Sea Part XV UNCLOS • • • requires state parties to settle any dispute arising under the convention in a peaceful manner in accordance with Art 2(3) and Art 33(1) of the UN Charter where no settlement reached. The legal solutions available for opposing Japan include: 1. • Also.Problems with monitoring numbers of whales • There exists no mechanism to monitor activities in the vast expanses of oceans. the natural and the man‐made. o – “surroundings. o – Prevention of deforestation and desertification.” (Council Regulation (EEC) No 172/84 of 28 June 1984 on Action by the Community Relating to the Environment) o “changes in the physical environment or biota.• • • • • • “International environmental law” should be understood as including both the generally applicable rules of international law.” (Stockholm Declaration. the aggregate of social or cultural conditions that influence the life of an individual or a community”: Webster’s New World Dictionary (1988). PP1) o “the environment is where we all live” (Brundtland Report (1987)) o “Human beings are at the centre of concerns for sustainable development. edaphic and biotic factors that act upon an organism or an ecological community and ultimately determine its form or survival. Art 1(1) “adverse effects on the environment”). o – Preservation of Antarctica and areas of outstanding natural heritage. o – flexible rule‐making procedure that allows for easy and regular amendment in the light of technological advances in scientific and other knowledge. region or circumstances”: Concise Oxford Dictionary (1972) o “Both aspects of man's environment. resulting from climate change. climate. o – Conservation of endangered and migratory species. Principle 1) o “the combination of elements whose complex interrelationships make up the settings. surrounding objects. settling disputes. the atmosphere. and o Safeguarding human health and the quality of life.” (Rio Declaration. Areas covered by international environmental regulation: o – Conservation and sustainable use of natural resources and biodiversity.’ (UNFCCC. “international economic law” What is “the environment”? o – “something that environs”? o – “the whole complex of climatic. and also the new and developing specific rules See also “law of the sea”. o – compensation for environmental damage. The environment as a problem of international concern The role of international law in environmental protection: o – mechanisms and procedures for setting rules and standards. international watercourses. which have significant deleterious effects on the composition. o – individuals benefit from environmental rights. resilience and productivity of natural and managed ecosystems. and . o Protection of oceans. and supervising implementation and compliance. They are entitled to a healthy and productive life in harmony with nature. are essential to his well‐being and to the enjoyment of basic human rights the right to life itself. “human rights law”. or on the operation of natural and managed ecosystems or on the operation of social‐economic systems or human health and welfare. and ozone layer from the effects of pollution. the surroundings and the conditions of life of the individual and of society as they are and as they are felt. Development of International Environmental Law 1. the United Kingdom of Great Britain and Northern Ireland. and is characterised by reactive responses to resource use and exploitation The second period began with the creation of the UN until the convening of the Stockholm Conference on the Human Environment in 1972. and seals Treaty practice was ad hoc. international organizations Recently these issues are the subject of international adjudication First period – 19th century until 1945 Many bilateral treaties for the conservation of wildlife. and this period is characterised by a sectoral and fragmented approach The third period runs from 1972 to UNCED in 1992. Reactive Responses to Resource Use and Exploitation • • The first period began in the 19th century and lasted until 1945.o – harmonisation of national laws. 1909) – Led to Convention between the United States. which saw the adoption of a holistic approach to environmental protection and economic development The fourth period runs from UNCED to the present day. birds. and this can be characterised as a period of integration Tendencies and trends Development of principles and rules has been reactive rather than anticipatory Scientific developments have played a significant role Complex interplay between governments. including for the protection of fisheries. NGOs. sporadic and limited in scope Convention for the Regulation of Whaling adopted in 1931 Convention for the Protection of Birds useful to Agriculture in 1902 US – Canada Treaty to Protect Migratory Species of Birds 1916 US – Canada Water Boundaries Treaty 1909 Pacific Fur Seals Arbitration (US – Great Britain. and Russia for the Preservation and Protection of Fur Seals (1911) • • • • • • • • • • • • • • • . and the range of environmental concerns addressed by international regulatory activity broadened to include a focus on the causes of pollution resulting from certain ultrahazardous activities. when the case is of serious consequence and the injury is established by clear and convincing evidence.’ (3 RIAA 1938. UN Specialised Agencies o o o o o o o o Food and Agriculture Organization of the United Nations (FAO) International Civil Aviation Organization (ICAO) International Fund for Agricultural Development (IFAD) International Labour Organization (ILO) International Maritime Organization (IMO) International Monetary Fund (IMF) International Telecommunication Union (ITU) United Nations Educational. 1941) – ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein. 1965 (1941)) Second period – from the creation of the UN to Stockholm (1945 – 1972) International organisations at the regional and global level began to address environmental issues. Scientific and Cultural Organization (UNESCO) United Nations Industrial Development Organization (UNIDO) Universal Postal Union (UPU) World Bank Group World Health Organization (WHO) World Intellectual Property Organization (WIPO) World Meteorological Organization (WMO) World Tourism Organization (UNWTO) • • • o o o o o o o • UNCCUR 1947 .• Trail Smelter Arbitration (US – Canada. Declaration the most important instrument: o – Principle 1: – Man has the fundamental right to freedom. and (ii) the increased awareness of the need for environmental protection 2. policies promoting or perpetuating apartheid. – A Declaration containing 26 Principles. the . or coordinating responsibility among existing organizations The “elephant in the room” during this period – the tension between (i) the imperative of economic development.” – “The Court draws the conclusion that the laying of the minefield which caused the explosions … could not have been accomplished without the knowledge of the Albanian Government. Principle 21 – “States have. racial segregation. discrimination. and – An Action Plan containing 109 recommendations.• • • • • • • • • • International Convention for the Prevention of Pollution of the Sea by Oil 1954 Conservation of the Living Resources of the Sea 1958 Antarctic Treaty 1959 Partial Test Ban Treaty 1963 Ramsar Treaty 1971 Corfu Channel [1949] ICJ Rep 4. and he bears a solemn responsibility to protect and improve the environment for present and future generations. colonial and other forms of oppression and foreign domination stand condemned and must be eliminated. in accordance with the Charter of the United Nations and the principles of international law. 22‐23 – Albania was under an obligation “not to allow knowingly its territory to be used for acts contrary to the rights of other States. In this respect. sovereign right to exploit their own resources pursuant to their own environmental policies. . equality and adequate conditions of life. and the responsibility to ensure that activities o .” Lots of new international rules on environmental protection But no international organisation with policy lead for environmental issues. in an environment of a quality that permits a life of dignity and well‐being. Stockholm Conference on the Human Environment 1972 – Sectoral and Fragmented Approach • • Stockholm Conference (1972) Non‐binding instruments: o o o • – A resolution on institutional and financial arrangements. ” Principle 24 – “International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries.” o Principle 22: – “States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction. and greater efforts by existing institutions to address environmental issues Creation of UNEP. MARPOL 1973/78.” o o • • • Third period (1972 – 1992) Marked by a proliferation of international environmental organisations. and also other organisations adopted environmental protection treaties (London Dumping Convention 1972. the plant was a large world in which human activities and their effects were neatly compartmentalised within nations. Convention on Long‐Range Transboundary Air Pollution 1979. and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries. big and small. trade) and within broad • • • . Bern Convention on Protection of Habitats 1979. within sectors (energy agriculture. UNEP and UNDP created the Global Environmental Facility Brundtland Report 1987 . CITES 1973) Other regional treaties (Bonn Convention on Migratory Birds 1979.“Until recently. – Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control. Convention for Regulation of Mining of Antarctic Mineral Resources 1988) World Bank.within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. in such a way that due account is taken of the sovereignty and interests of all States. it will be essential in all cases to consider the systems of values prevailing in each country. on an equal footing.” Principle 23: – “Without prejudice to such criteria as may be agreed upon by the international community. World Heritage Convention 1972. reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres. prevent. or to standards which will have to be determined nationally. – UNCED Forest Principles (an authoritative statement of principles for a global consensus on the management. an energy crisis. • Rio Declaration o Principle 2: – “States have. and – UN Convention on Biological Diversity. a development crisis. These are not separate crises: an environmental crisis. the . economic.” • Aimed to formulate realistic proposals for dealing with environment and development issues 3. o • Two conventions: o o – UN Framework Convention on Climate Change. This applies in particular to the global ‘crises’ that have seized public concern. and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Rio Summit 1992 – Holistic Approach to Environmental Protection and Economic Development • • Rio Summit 1992 (“UNCED”) Three non‐binding instruments adopted: o o – Rio Declaration on Environment and Development. They are all one. These compartments have begun to dissolve. sovereign right to exploit their own resources pursuant to their own environmental and developmental policies.” o .” Principle 3 – “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.areas of concern (environmental. conservation and sustainable development of all types of forest). social). in accordance with the Charter of the United Nations and the principles of international law. particularly over the last decade. and – Agenda 21. ” o o o o • • • Fourth period Rio Summit in 1992 saw the adoption of three non‐binding instruments and two conventions (UNFCCC and CBD) No slow down in the legislative activity since then: o o – Kyoto Protocol to UNFCCC (1997). bear the cost of pollution.o Principle 4 – “In order to achieve sustainable development.” Principle 11 – “States shall enact effective environmental legislation. and Access to Justice in Environmental Matters (1998). – Aarhus Convention on Access to Information.” Principle 7: – “States shall cooperate in a spirit of global partnership to conserve. protect and restore the health and integrity of the Earth's ecosystem. the precautionary approach shall be widely applied by States according to their capabilities. lack of full scientific certainty shall not be used as a reason for postponing cost‐effective measures to prevent environmental degradation. environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. in principle. management objectives and priorities should reflect the environmental and development context to which they apply. with due regard to the public interest and without distorting international trade and investment. taking into account the approach that the polluter should. States have common but differentiated responsibilities. Where there are threats of serious or irreversible damage. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries. and . In view of the different contributions to global environmental degradation. Public Participation in Decision‐Making. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on theglobal environment and of the technologies and financial resources they command. Environmental standards. in particular developing countries.” Principle 15 – “In order to protect the environment.” Principle 16 – “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments. 2005)   o UNCLOS:  – Southern Bluefin Tuna (ITLOS. 1998). 1999‐2000). – Whaling in the Southern Ocean (ongoing) GATT/WTO:   – US – Tuna/Dolphin (GATT. o ICJ:      o – Legality of the Threat or Use of Nuclear Weapons (ICJ. – Pulp Mills on the River Uruguay (ICJ. – Aerial Herbicides Spraying (ICJ. – EC – Biotech Products (WTO. by indigenous communities (“aboriginal subsistence”).o • – Cartagena Biosafety Protocol to CBD (2000). and by Japan (“scientific whaling”)) – Maintenance of prohibition on trade in African elephant ivory under CITES – Amendments to Montreal Protocol on the Ozone Layer to bring forward the phasing out of harmful substances – ILC work on liability for injurious consequences arising out of acts not prohibited by international law o o o • Rise in international litigation concerning environmental issues. ongoing). 2010). 1991/1994) – US – Import Prohibitions on Certain Shrimp and Shrimp Products (WTO. . 1996). – Gabcikovo‐Nagymaros Project (ICJ. Activity of international organisations since Rio: o – Maintenance by IWC of moratorium on commercial whaling (Cf continued whaling by Norway/Iceland (“under objection”). – EC – Measures concerning Meat and Meat Products (Hormones) case (WTO. UNCLOS Annex VII Tribunal. 1998). 1997). g. effective. but which are not yet in force? o – Draft Articles proposed by the International Law Commission? The shortcomings of Art 38(1) have been exposed by the need for faster. ‘Soft Law • • As international environmental law is a merely a part of general international law. general principles of law o – Possible creative role of “general principles” for the ICJ? Other possible sources of international law: o – Work of the ILC. resolutions. but are also about finding techniques of implementation which are practical. o – regulating the transboundary movement of hazardous wastes and chemicals. Traditional sources o – Treaties. or by ad hoc UN conferences? o – Treaty provisions which have been agreed by the majority of member States of the UN. o – controlling the emission of gases that damage the ozone layer or cause climate change. 2002) This period has seen an increasing complexity in international law. and standards. declarations of principles. Treaties 3. and increasing regulation at the international level of environmental issues International environmental rules are no longer simply about normative rules. e. guidelines. the sources in Article 38(1) of the ICJ Statute apply But note the limitations of Article 38(1) – is this really an exhaustive list? What about: o – GA Resolutions? o – Declarations of Principles adopted by the UN. 10th anniversary of UNCED marked by the World Summit on Sustainable Development (Johannesburg. customary international law. 2001‐2008). and equitable Sources of International Environmental Law 1. UNCLOS Annex VII Tribunal. “Soft law” norms are good vehicles for focusing • • • . which is charged with the object of promoting the progressive development and codification of international law o – GA Resolutions (which are not binding per se) o – “Soft law”: increasing use has been made of half‐way stages in the law‐making process in the form of codes of practice.: o – preventing marine pollution by oil and toxic discharges and dumping. recommendations. more flexible response in many international environmental issues. • • • – MOX Plant (ITLOS. and o – preserving endangered species and biological diversity. Customary International Law 2. Transboundary Pollution and Environmental Harm • Obligation to prevent transboundary harm from hazardous activities o Trail Smelter (US‐Canada. 2. 1949).” o “Common heritage of mankind” – Agreement Governing the Activities of States on the Moon (1979).consensus on rules and principles. Global Environmental Responsibility • Common heritage of mankind o – Foundations laid by Stockholm Declaration. 41. 3. and also for mobilising a consistent.” o Gabcikovo‐Nagymaros Project [1997] ICJ Rep 7. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. Art 11. land. must be safeguarded for the benefit of present and future generations through careful planning or management. PP: “… change in the Earth’s climate and its adverse effects are a common concern of humankind”. PP: “… the conservation of biological diversity is a common concern of humankind”. and o – CBD (1992). Key Concepts and Principles in International Environmental Law 1. and o – UNCLOS (1982). o Corfu Channel (ICJ. general response on the part of States. 1941). Sustainable Development . water. 241‐2: – “The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space. o Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226. including generations unborn. the quality of life and the very health of human beings. as appropriate” o – Also the World Charter for Nature (GA Res 37/7 (1982))“… man must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations. “Common concern of humankind” o – UNFCCC (1992). including the air. Principle 2: “The natural resources of the earth. Art 136‐7. flora and fauna and especially representative samples of natural ecosystems. see also UNFCCC. territorial sovereignty. Art 3(4)). …” o – “It offers an important principle for the resolution of tensions between two established rights. Owing to new scientific insights and to a growing awareness of the risks for mankind ‐ for present and future generations ‐ of pursuit of such interventions at an unconsidered and unabated pace. State responsibility. constantly interfered with nature.” [1997] ICJ Rep 7.” [1997] ICJ Rep 7. o . Art 6(b)). Principle 8). I consider it to be more than a mere concept. for economic and other reasons. 88. Art 3(4). ” o Sep Op VP Weeramantry: – “The Court has referred to it as a concept in paragraph 140 of its Judgment. abuse of rights. new norms and standards have been developed. o – Integration of environmental protection and economic development (Rio Decl. Our Common Future (1987): – sustainable development is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. set forth in a great number of instruments during the last two decades. 88. In the past. the issues involved in this case would have been difficult to resolve. The components of the principle come from well‐established areas of international law ‐ human rights. and such new standards given proper weight. good neighbourliness ‐ to mention a few.” o – “The concept has a significant role to play in the resolution of environmentally related disputes. Principle 3. see also UNFCCC. Substantive elements: o – Sustainable use of natural resources (Rio Decl. and that neither of these rights can be neglected. 78: – “Throughout the ages. environmental law. o – “The law necessarily contains within itself the principle of reconciliation [between the right to development and environmental protection]. However. Such new norms have to be taken into consideration.” [1997] ICJ Rep 7. o – Right to development (Rio Decl. this was often done without consideration of the effects upon the environment.” o Gabcikovo‐Nagymaros Project [1997] ICJ Rep 7. mankind has. but also by reason of its wide and general acceptance by the global community. Without the benefits of its insights. but as a principle with normative value which is crucial to the determination of this case. Principle 4. It reaffirms in the arena of international law that there must be both development and environmental protection. not only when States contemplate new activities but also when continuing with activities begun in the past. o Sep Op VP Weeramantry: – “The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity. equity. That principle is the principle of sustainable development. 88. economic and industrial law.• Brundtland Report: WCED. CBD. 90. Art 4(4)). Art 3(1). Australia and New Zealand requested provisional measures that:  Japan restrict its catch to the quota that had been agreed under the Convention for the Conservation of Southern Bluefin Tuna. with due regard to the public interest and without distorting international trade and investment. taking into account the approach that the polluter should. CBD.  Canada: it is an emerging principle of international law. bear the cost of pollution. PP). Art 4(5). CBD. Principle 3. – Obligations on developed States to provide technical assistance to developing countries (UNFCCC.o o o o o o o o o – Inter‐generational equity (Brundtland Report. Principle 16: “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments. Principle 7. – Obligations on developed States to provide financial assistance to developing countries (UNFCCC. Agenda 21) – “Common but differentiated responsibility” (Rio Decl. and . Art 16(1)). Art 20(2).  Japan cease its experimental fishing programme. Rio Decl. UNFCCC. Art 3(1).” o – In Southern Bluefin Tuna (Provisional Measures) (1999). CBD. including on preferential terms. UNFCCC. o – Also argued in EC – Hormones (WTO. Precautionary Principle • Precautionary approach o – Rio Decl. “Polluter pays” principle – Rio Decl. Principle 15 o – Not relied on by ICJ in Gabcikovo‐Nagymaros Project (cf Sep Op VP Weeramantry). CBD. rather. Art 3(2).  WTO: “Whether it has been widely accepted … as a principle of general or customary international law appears less than clear.” 4. Art 20(4)). – Recognition of the special needs and circumstances of developing countries (UNFCCC. – Recognition that “the extent to which developing countries will effectively implement their obligations under this convention will depend on the effective implementation by developed countries of their commitments re financial resources and transfer of technology” (UNFCCC. which may in the future crystallize into one of the ‘general principles of law recognized by civilized nations’. it may be characterized as an "approach" ‐‐ the content of which may vary from context to context. – Intra‐generational equity (Brundtland Report. PP). in principle. see also CBD. Art 4(3). 1998):  EC: it is a general customary rule of international law or at least a general principle of law. CBD. PP).  US: it is not a principle of customary international law. Art 4(7). – Obligations on developed States to provide assistance to developing countries to meet the costs of mitigation (UNFCCC. ” Sustainable development: what is its value? o Lowe – sustainable development is not a rule of international law: o – First. – 80. . but disagreed about scientific evidence re recovery of stocks ITLOS Order in Southern Bluefin Tuna (cont): – “77. Principle 10: – “Environmental issues are best handled with participation of all concerned citizens. what is the “rule” being claimed? Is it of a “fundamentally norm‐creating character” o – Fourth. including redress and remedy. and the opportunity to participate in decision‐ making processes. shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. is there State practice and opinio juris? o . … although the Tribunal cannot conclusively assess the scientific evidence presented by the parties. and in any event. y . … in the view of the Tribunal. the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna …– 79.  • Pulp Mills on the River Uruguay (ICJ Judgment of 20 April 2010). each individual shall have appropriate access to information concerning the environment that is held by public authorities. at the relevant level. including information on hazardous materials and activities in their communities.o o “the parties act consistently with the precautionary principle in fishing for Southern Bluefin Tuna”. States shall facilitate and encourage public awareness and participation by making information widely available. as a national instrument. … there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there is no agreement among the parties as to whether the conservation measures taken so far have led to the improvement in the stock of southern bluefin tuna. No dispute between the parties that stocks of Southern Bluefin Tuna were at historically low levels. is there a conflict between the right to development and environmental protection? o – Third. At the national level. it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock”. although this did not entail a reversal of the burden of proof (para 164) o Rio Decl. can “sustainable development” really be said to be a rule of customary international law? If so. Effective access to judicial and administrative proceedings.” o Rio Decl.the ICJ held that the precautionary approach might be relevant in the interpretation and application of provisions of the bilateral treaty in question. Principle 17: – “Environmental impact assessment. shall be provided. is it “necessary” to have a rule to reconcile the tension between competing rights? o – Second. CBD. Art 33 Disadvantages of traditional bilateral model of dispute settlement o – adverse effect on relations between the parties..practices and processes that control.g.g.” o E.. UNCLOS. o – problems and difficulties of proof which legal proceedings may entail.o o But – sustainable development is not devoid of any normative significance Sustainable development is a “meta‐principle” which acts upon other legal rules and principles State Responsibility and the Protection of the Environment • • • State responsibility and international environmental law The traditional model – interstate claims based on State responsibility. adversarial and confrontational in nature. Rules that have been developed in international environmental law are focussed on prevention. length. and the conservation and sustainable use of resources – rather than reparation for international wrongs o E.g. reduce and control pollution of the marine environment from any source …” o E. reduce or prevent anthropogenic emissions of greenhouse gases …” o E. o – it is inherently bilateral. UNFCCC. 1970) • • • . Art 192: – “States have the obligation to protect and preserve the marine environment. only “injured States” have the right to bring claims – South West Africa (ICJ. 1966) o – Cf Barcelona Traction (ICJ.g. in the context of climate change – who is an “injured State”? o – Traditionally. Art 6(a): – “Each Contracting Party shall … develop national strategies.. resolved by one of the means of dispute settlement referred to in UN Charter. individually or jointly as appropriate. Art 194(1): – “States shall take. o – complexity.. UNCLOS. Art 4(1)(c): – “All Parties … shall … cooperate in the development … of technologies . reduction and control of environmental harm. plans or programmes for the conservation and sustainable use of biological diversity …” Preventive or regulatory regimes require a more sophisticated approach to the enforcement and implementation of international law A regime which only accords rights to “injured States” after the event will be inadequate o E. all measures consistent with this Convention that are necessary to prevent. and o – it assumes the existence of “injured States”.g. and expense of many international proceedings. o – the traditional model is concerned largely with affording reparation as a response to violations of international law. and o – unsettled law.. …” ILC Commentary to Article 48(1)(b) o James Crawford. as also from the principles and rules concerning the basic rights of the human person. in contemporary international law. all States can be held to have a legal interest in their protection. and those arising vis‐à‐vis another State in the field of diplomatic protection. specially affects that State. The International Law Commission’s Articles on State Responsibility (2002) 278: – “All States are by definition members of the international community as a whole. 32. including protection from slavery and racial discrimination. Any State other than an injured State is entitled to invoke the responsibility of another State … if: o a) The obligation breached is owed to a group of States including that State. and of genocide. for example. is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. in the same context. or o b) The obligation breached is owed to the international community as a whole.” ILC Articles on State Responsibility. and is established for the protection of a collective interest of the group. Some of the corresponding rights of protection have entered into the body of general international law …. and regular meetings of the parties A word on standing … o Barcelona Traction [1970] ICJ Rep 3. and the obligations in question are by definition collective obligations protecting interests of the international community as such. or o b) a group of States including that State. Art 42: “A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: o a) that State individually. for example a coastal State specially affected by marine pollution in • • • • . MOPs. they are obligations erga omnes.” o ILC Articles on State Responsibility ILC Articles on State Responsibility. paras 33‐4: – “… [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole. COPs. from the outlawing of acts of aggression. and the breach of the obligation:  i. By their very nature the former are the concern of all States. – Such obligations derive. or the international community as a whole. Art 48: “1. Of course such obligations may at the same time protect the individual interests of States … individual States may be specially affected by the breach of such an obligation. who is a “responsible State”?  – How to prove causation? Multilateral nature of international environmental obligations leads to States agreeing to complex institutional machinery.• • Also. others are conferred by international instruments of a universal or quasi‐universal character. or  ii. In view of the importance of the rights involved. subsidiary bodies under UNFCCC. Art 4(1)(a). not necessarily to incriminate States for non‐compliance They are multilateral. o b) Is it possible that obligations under environmental treaties are obligations “erga omnes”. rather than punitive for any noncompliance..  – E. Art 4(2)(b)  – UNFCCC. o d) Even if it possible to identify a State with standing. consultative. rather than bilateral.g. rather than adversarial. • • • • • • • • . Art 12 o Fact‐finding and research function of the institutional machinery. facilitative of compliance.breach of an obligation aimed at protection of the marine environment. what would be the purpose of that State’s claim? What would be the purpose of the claim? o – Remedies under international law:  Restitution?  Compensation?  Satisfaction? Do you want to “punish” the offending State? How to ensure that the State complies with its obligations? Methods of ensuring compliance with environmental agreements o Creation of institutional machinery  – COP / MOP (UNFCCC. Arts 9‐10) o Regular reporting by States parties to the regime  – UNFCCC. Art 7)  – Secretariat (UNFCCC.” Mechanisms for Compliance and Enforcement • Difficulties with traditional model of dispute settlement: o a) Difficulty in identifying an “injured State” with standing (All States? No States? Specially affected States?). (b)  – UNFCCC.  – Obligations to support research efforts (Art 5) o Possibility of inspections to verify compliance Non‐compliance procedures Designed to provide a “softer” system to address non‐compliance than traditional dispute settlement procedures Designed to assist the defaulting State in returning to compliance. Art 8)  – Subsidiary bodies (UNFCCC. which has caused the damage (industrialised States? All States?). giving all States standing? o c) Difficulty in identifying a “responsible State”. especially those that are particularly vulnerable (Art 3(2)) – States parties to take precautionary measures (Art 3(3)) – States parties should promote sustainable development (Art 3(4)) – States parties should cooperate to promote an open international economic system (Art 3(5)) All parties. o – To develop and transfer technologies to p g reduce GHG emissions in all relevant sectors (Art 4(1)(c)). economic and environmental policies (Art 4(1)(f)) … GHGs were defined as being: carbon dioxide (CO2). periodically update and publish national inventories of anthropogenic GHG emissions and removals by ‘sinks’ (Art 4(1)(a)). and the principle of common but differentiated responsibilities (Art 3(1)) – developed States should take the leading role in combating climate change (Art 3(1)) – Specific needs and special circumstances of developing countries to be given full consideration.1 – see especially p y consequences of action by the Enforcement Branch Practice of the Kyoto Protocol NCP: o – Complaints about non‐compliance by Greece. o – To have national and regional programmes on measures to mitigate climate change (Art 4(1)(b)). Croatia. nitrous oxide (N2O). taking into account their common but differentiated responsibilities. perfluorocarbons (PFCs).Contemporary Issues • • • • • • • • • • • • Kyoto Protocol NCP See Procedures and Mechanisms relating to Compliance under the Kyoto Protocol: Decision 27/CMP. Developed countries (listed in Annex I) have other obligations: o – To adopt national policies and implement measures to limit GHG emissions and to protect and enhance sinks and reservoirs to modify trends in anthropogenic emissions. and Canada o – Sanctions have been implemented The Climate Change Regime UN Framework Convention on Climate Change opened for signature at Rio Summit in June 1992 Objective – “to achieve … stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Art 2) Principles: – The Convention recognised the principles of intergenerational equity. o – To take climate change considerations into account in the formulation of social. hydrofluorocarbons (HFCs). have certain qualitative duties. such as: o – To develop. methane (CH4). o – To promote sustainable management Art 4(1)(d). “recognising that the return by the end of the decade [the 1990s] to earlier levels of anthropogenic • • . sulphur hexafluoride (SF6). o – To cooperate and prepare for adapting to the impacts of climate change (Art 4(1)(e)). and removals by sinks of GHGs.” Difficulties re entry into force (double requirement) – did not happen until February 2005 Annex B targets – principle of “differentiation” was applied Some States permitted to increase GHG emissions: Australia (108%). Further provisions: o – Flexibility given to Annex I parties which are economies in transition (Art 4(6)).” (Art 4(2)(a)). the Russian Federation. o But: no specific emission reduction or limitation targets agreed Parties listed in Annex II (being developed OECD member States) had specific obligations: o to provide financial resources to assist developing States with their reporting requirements (Art 4(3)). “Individually or jointly” o The aim is for the Annex I parties to return. Iceland (110%) and Norway (101%) Some States had to keep GHG emissions at 100% of 1990 levels: New Zealand.g. o – Full consideration for position of vulnerable countries (Art 4(8)). shall … take decisions for criteria regarding joint implementation” (Art 4(2)(d)) o COP‐1 (1995) – set out to strengthen the obligations on Annex I parties in Art 4(2) Kyoto Protocol agreed at COP‐3 (1997). o – To engage in information sharing.• • • • • • • • • • emissions of carbon dioxide and other GHGs … would contribute to such modification. at its first session. as well as on their projected anthropogenic GHG emissions by sources. and the Ukraine Others had to reduce GHG emissions: e. o to assist in the transfer of environmentally sound technologies to other parties to enable them to implement the Convention (Art 4(5)). all EU States (92%) . ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of [GHGs] … do not exceed their assigned amounts [in Annex B] … with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012. “with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other GHGs” (Art 4(2)(b)). o – Extent to which developing countries implement their obligations will depend on the effective implementation by developed countries of their obligations (Art 4(7)). o to assist developing countries which are particularly vulnerable to meet the costs of adapting to climate change (Art 4(4)). o – Full consideration for position of least developed countries re funding and technology transfer (Art 4(9)). their GHG emissions to 1990 levels by the year 2000 (Art 4(2)(b)) What is “joint implementation”? o “The Conference of the Parties. “individually or jointly”.. individually or jointly. this contained quantified emission limitation and reduction obligations (Art 3): – “The Parties listed in Annex I shall. ” o CDM projects generate certified emission reduction units (“CERs”) o Emissions trading (Art 17): – “The Parties included in Annex B may participate in emissions trading for the purposes of fulfilling their commitments under Article 3. and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3. .” o “Clean Development Mechanism” projects between Annex I States and developing countries (Art 12): – “The purpose of the [CDM] shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention. o – only places obligations on those States for the first Kyoto “commitment period” of 2008 – 2012. worth billions Compliance with the Kyoto Protocol “Non‐compliance procedure” (discussed earlier) – whose aim is “to facilitate. that is additional to any that would otherwise occur. o – Facilitative Branch – offers advice and assistance to parties in order to promote compliance o – Enforcement Branch – decides on sanctions in the case of non‐ compliance with Kyoto obligations (such sanctions may include a declaration of non‐compliance. and applying penalties to future ‘assigned amounts’ for future commitment periods) Unfinished business … The Kyoto Protocol: o – only places obligations on Annex I States.  b) Any such project provides a reduction in emissions by sources. Any such trading shall be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments under that Article. promote and enforce compliance with the commitments under the Protocol”. World Bank and NovaGerar EcoEnergia Ltd landfill gas capture project in Brazil  – Over 150 JI projects – there are “Track 1”. and “Track 2” JI projects  – There is a very active market in carbon emissions. any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy.• • • • • Flexibility Mechanisms o “Joint Implementation” emissions reduction projects between Annex I States (Art 6): – “For the purpose of meeting its commitments under Article 3. suspension of that State party’s eligibility to participate in the flexibility mechanisms.. or an enhancement of removals by sinks. provided that:  a) Any such project has the approval of the Parties involved.” o Further details of the three flexibility mechanisms agreed at COP‐7 in 2001 (the “Marrakesh Accords”) o Many such projects are ongoing:  – Well over 2000 CDM projects. or acquire from.g. any Party included in Annex I may transfer to. e. ” Future Action … o Copenhagen Accord.• • – does not include some key industry sectors – such as international aviation (responsible for 3. New Zealand and Canada have each increased GHG emissions by 25%. para 12: – “We call for an assessment of the implementation of this Accord to be completed by 2015. We emphasise our strong political will to urgently combat climate change in accordance with the principle of common but differentiated responsibilities and respective capabilities” o – To achieve the ultimate objective … we shall. but overall compliance might be possible Copenhagen Accord (Dec 2009) o Para 1: – “We underline that climate change is one of the greatest challenges of our time.” o Para 3: – “Adaptation to the adverse effects of climate change and the potential impacts of response measures is a challenge g faced by all countries … We agree that developed countries shall provide adequate. and as documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius. …” o Para 2: – “We agree that deep cuts in global emissions are required according to science. on the basis of equity and in the context of sustainable development. to enable the mobilization of financial resources from developed countries. and maritime transport o – Some States are not going to meet their targets: Australia.” o Para 6: – “We recognize the crucial role of reducing emission from deforestation and forest degradation and the need to enhance removals of greenhouse gas emission by forests and agree on the need to provide positive incentives to such actions through the immediate establishment of a mechanism including REDD‐plus.5% of emissions contributing to global warming). enhance our long‐term cooperative action to combat climate change. technology and capacity‐building to support the implementation of adaptation action in developing countries.” o Cancun Agreements (December 2010): – “Urges Annex I Parties to raise the level of ambition of the emission reductions to be achieved by them individually or jointly …” o – What next? o . predictable and sustainable financial resources. recognizing the scientific view that the increase in global temperature should be below 2 degrees Celsius. OSCE) o – Regional organisations – human rights and democracy (Council of Europe.” United Nations (1945) Types of international organizations There is no “typical” international organization o – Universal and general (e. WIPO. ECOWAS) o – Universal and specialised (WTO. OSCE) Functions of international organizations Providing a forum for identifying and deliberating on matters of common interest. World Bank) o – Universal – limited membership (OECD. MERCOSUR. rather than political (International Telegraphic Union (1865). large and small. a general international organisation.Topic 5: The Law of International Organisations Introduction and Historical Development 1. Universal Postal Union (1874)).. EC. International conferences and unions • • • • • Early international conferences – ad hoc (e. African Union) o – Regional organisations – economic integration (ASEAN. OAS. based upon the principle of sovereign equality of all peace‐loving States. WMO. Congress of Vienna (1815)) First international organisations – technical. for the maintenance of international peace and security. What is an international organisation? International organisations are all different • • • • • • • • • • • . Providing a forum for developing rules on matters of common interest. Acting as vehicles for taking action on international or transnational problems. Common Market for Eastern and Southern Africa. WEU.g.g.. and Providing a forum for the settlement of disputes. G‐8) o – Regional organisations– security cooperation (NATO. the UN) o – Regional organisations – political cooperation (ASEAN. and supervising State compliance with agreed rules and policies as well as for gathering information regarding the practices of States. at the earliest practicable date. League of Nations (1919) Allied Powers in WW2 – as early as 1941. EU. Warsaw Pact. called themselves the “United Nations” Moscow Declaration (1943) – identified “the necessity of establishing. monitoring. Providing mechanisms for promoting. ANZUS. and settling international disputes through negotiation and arbitration. the term ‘international organisation’ refers to an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality. The League lacked its own armed force and so depended on the Great Powers to enforce its resolutions. they were often reluctant to do so. or provide an army. keep to economic sanctions which the League ordered. OSCE. the privileges and immunities of international organisations. Guatemala. Brazil. o iii. Pakistan. South Africa. the international responsibility of the organisation and its member States. Paraguay. and it was the precursor to the United Nations. Colombia. OPEC o – But not the “Cairns Group” ‐ Argentina.. and protection of minorities in Europe. for the League to use. Indonesia. “Air Afrique”). just treatment of native inhabitants. The League was the first permanent international security organization whose principal mission was to maintain world peace. the interpretation of constituent instruments. arms trade. Is there an “international law of international organisations”? Body of general principles covering: o i. Chile.in addition to States. and o – international public corporations (such as. International organisations may include as members. such as: o – NGOs (such as Greenpeace). 2.” “… any instrument governed by international law …” o – E. global health. the legal personality of international organisations. the Philippines. trafficking in persons and drugs. included preventing war through collective security. and o v. other entities. e. Canada. when needed. • The diplomatic philosophy behind the League represented a fundamental shift in thought from the preceding hundred years. Malaysia. the powers of international organisations. as stated in its Covenant. prisoners of war. League of Nations • The League of Nations (LON) was an intergovernmental organization founded as a result of the Paris Peace Conference that ended World War I. Peru. The League's primary goals. .• • • • • • • ILC currently working on “Responsibility of International Organisations” Article 2 of draft Articles: o – “For the purposes of the present draft articles.g. Nordic Council (but later a treaty was concluded). Other issues in this and related treaties included labour conditions. Costa Rica. Australia. o iv. Thailand and Uruguay. However. o – Not intended to exclude entities other than Statesfrom membership of int’l orgs The three criteria distinguish truly “international organisations” from other types of international associations. Bolivia. New Zealand. disarmament. o ii.g. ” – L Oppenheim. 1912) vol 1.” Cf Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240. social progress. Look at the constitutive instrument of the international organisation: e. and achievement of world peace. economic development..g. It contains multiple subsidiary organizations to carry out its missions. the Treaty on European Union. The UN was founded in 1945 after World War II to replace the League of Nations. 3. International Law (1st ed. and to provide a platform for dialogue. The United Nations replaced it after the end of the war and inherited a number of agencies and organizations founded by the League. The onset of World War II showed that the League had failed its primary purpose. the three governments had not created an entity with separate legal personality from the three governments themselves . international security. Art 47: – “The Union shall have legal personality. under which the three governments were designated as the Administering Authority for the territory of Nauru. United Nations • The United Nations (UN) is an international organization whose stated aims are facilitating cooperation in international law. New Zealand and the United Kingdom had entered into a “Trusteeship Agreement for the Territory of Nauru” in 1947.• After a number of notable successes and some early failures in the 1920s. 258: – although Australia. Legal Personality • • • • • International legal personality Does an international organisation have international legal personality? See the Reparations case [1949] ICJ Rep 174 “States solely and exclusively are the subjects of international law. to stop wars between countries. human rights. which was to avoid any future world war. the League ultimately proved incapable of preventing aggression by the Axis powers in the 1930s. the presentation. and to accept and carry out the decisions of the Security Council. and by providing for the conclusion of agreements between the Organisation and its members. It must be acknowledged that its Members. 178 • ICJ observed: – “[The UN Charter] has equipped [the UN] with organs. and is in fact exercising and enjoying. . with the attendant duties and responsibilities. powers rights. It has defined the position of the Members in relation to the Organisation by requiring them to give it every assistance in any action undertaken by it (Article 2. have clothed it with the competence required to enable those functions to be effectively • Acquisition of international personality • Two schools of thought (Akande. by authorising the General Assembly to make recommendations to the Members. … [T]o achieve these ends the attribution of international personality is indispensable. It is at present the supreme type of international organisation. a large measure of international personality and the capacity to operate upon an international plane. para. and duties conferred on that organisation by the Member States in the constitutive instrument.Reparations for Injuries Suffered in the Service of the United Nations [1949] • Count Folke Bernadotte. a Swedish diplomat. in entrusting certain functions to it.” [1949] ICJ Rep 174. and it could not carry out the intentions of its founders if it was devoid of international personality. by giving the Organisation legal capacity and privileges and immunities in the territory of each of its Members. Art 104: – “The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.) • “In the opinion of the Court. and has given it special tasks. • UN Charter. • – Objective approach: an international organization can only have international personality if certain objective criteria are fulfilled.” ([1949] ICJ Rep 174. and the settlement of claims o – This capacity certainly belonged to States – but did the UN have this capacity? • ICJ considered: – “the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. assassinated in the course of his service as a UN mediator in the Arab‐Israeli conflict in 1948 • GA requested advisory opinion on whether the UN had the capacity to bring an international claim against Israel for the purpose of seeking reparation for injuries done to the Organisation and its agents. This development culminated in the establishment in June 1945 of an international organisation whose purposes and principles are specified in the Charter of the United Nations. the Organisation was intended to exercise and enjoy. 179.” • ICJ considered: – the “capacity to present an international claim” is the capacity to resort to the customary methods recognised by international law for the establishment. pp 281‐2): – Inductive approach: the personality of the international organisation can be implied from the capacities. 5). • • • Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 89‐90: – “International organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.” Legality of the Use by a State of Nuclear Weapons in Armed Conflict (WHO Request) [1996] ICJ Rep 66, 78 – “The Court need hardly point out that international organisations are subjects of international law which do not, unlike States, possess a general competence.” Consequences of international personality o 1. Personality separates out the rights and obligations of the international organisation from that of the members. o 2. Personality entitles the organisation to bring a claim in international law for the purpose of maintaining its own rights. o 3. Personality entails the consequence (or presumption) that an international organisation is responsible for the non‐fulfilment of its obligations. o 4. Customary international law confers certain privileges and immunities on an international organisation – at least within the host State, where that international organisation is headquartered (but usually in a Headquarters Agreement). o 5. Personality grants international organisations the capacity to enter into treaties. C. Powers of International Organisations 1. Express powers arising under the constitutive instrument • Express powers: – E.g., UNFCCC, Art 7(2)(i): the Conference of the Parties “shall [e]stablish such subsidiary bodies as are deemed necessary for the implementation of the Convention”. • – E.g., UN Charter, Art 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.” 2. Implied powers • Reparations [1949] ICJ Rep 174, 182 – “Under international law, an Organisation must be deemed to have those powers which, though not expressly provided for in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” • Cf Diss Op Judge Hackworth: “Powers not expressed cannot – freely be implied. Implied powers flow from a grant of expressed powers, and are limited to those that are ‘necessary’ to the exercise of powers expressly granted. No necessity for the exercise of the power here in question has been shown to exist. There is no impelling reason, if any at all, why the • • Organisation should become the sponsor of claims on behalf of its employees, even though limited to those arising while the employee is in line of duty. These employees are still nationals of their respective countries, and the customary methods of handling such claims are still available in full vigour.” Effect of Awards of Compensation made by the UNAT [1954] ICJ Rep 47, 56‐7: – the UN General Assembly’s capacity to create the Tribunal arose “by necessary intendment” out of the Charter Certain Expenses of the United Nations [1962] ICJ Rep 151 – Concerned expenses relating to peacekeeping operations in the Middle East (“UNEF”) and the Congo (“ONUC”) o – Do expenses for peacekeeping operations constitute “expenses of the Organisation within the meaning of Article 17, paragraph 2, of the Charter”? o UN Charter, Art 17: – “1. The General Assembly shall consider and approve the budget of the Organisation. – 2. The expenses of the Organisation shall be borne by the Members as apportioned by the General Assembly.” o ICJ considered: – “expenses” included items additional to its regular budget – Article 17 must be a “catch‐all” provision o Argument – Art 17 does not include expenses relating to the maintenance of international peace and security – these are the exclusive province of the UNSC – Article 11(1): GA can “consider” the general principles of cooperation in the maintenance of international peace and security, and may make “recommendations” – Article 11(2): GA can “discuss” any question relating to the maintenance of international peace and security … and except as provided in Article 12, has the power to make “recommendations” – Article 11(2) : “… Any such question on which action is necessary shall be referred to the Security Council …” – Article 12: Where the Security Council is exercising its functions with regard to a dispute or situation, the GA shall not make any recommendations o ICJ considered Art 24, under which the UNSC has “primary responsibility for the maintenance of international peace and security” o But this did not completely exclude the UNGA o In order for a peacekeeping operation to be an “expense of the Organisation within the meaning of Article 17(2)”, it had to conform with the purposes of the UN o Purposes of the UN (Art 1):  – the maintenance of international peace and security;  – the development of friendly relations between nations;  – achieving international cooperation in solving international problems of an economic, social, cultural, or humanitarian character; and  – harmonising the actions of nations in achieving these ends. • • • • • • Certain Expenses [1962] ICJ Rep 151, 168 – “The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition. These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organisation with the attainment of these common ends, the Member States retain their freedom of action. But when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation.” [1962] ICJ Rep 151, 168. Tests for implied powers Functional test: – Reparations – whether the power was “conferred upon it by necessary implication as being essential to the performance of its duties” [1949] ICJ Rep 174, 182 (cf Judge Hackworth); – Effect of Awards – whether the power arose “by necessary intendment” of the Charter [1954] ICJ Rep 47, 56‐7; and – Certain Expenses – the action must warrant the assertion “that it was appropriate for the fulfilment of one of the stated purposes of the United Nations”. [1962] ICJ Rep 151, 168. Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79: – “The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organisations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as "implied" powers.” Legality of the Use by a State of Nuclear Weapons [1996] ICJ Rep 66, 79: – “to ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in view of their health and environmental effects – would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organisation in the light of the purposes assigned to it by its member State.” o E. Responsibility of Member States for the Internationally Wrongful Acts of International Organisations as was Pillar II (civil administration). the decisionmaking body of NATO. Germany. concerning democratisation and institution building. under UN auspices. the Federal Republic of Yugoslavia and the Republic of Serbia (then still a constituent part of Yugoslavia) enter into a “Military Technical Agreement” (“MTA”) by which they agreed on the withdrawal of the FRY forces. A very complex chain of command from the UNSC – NATO – KFOR – MNBs. the relationship between the UNSC and the North Atlantic Council. Saramati v France. of an interim civil administration for Kosovo (“UNMIK”) and requested the UN Secretary General to establish it and to appoint a Special Representative to the SG to control its implementation. UNSCR 1244 provided for the establishment of a security presence (“KFOR”) by “Member States and relevant international institutions”. and the United States). In addition to the NATO forces. – A new Pillar I (police and justice administration) was established in May 2001 and was led directly by the UN. – Pillar III. is described as one of “Consultation/Interaction”. In a later agreement. with “substantial NATO participation” but under “unified command and control”. 2 May 2007) Behrami v France and Behrami Case • Applicants: – Mr Behrami and his son Bekim Behrami – two Kosovar Albanians living in Mitrovica. Each MNB was led by a certain country y (including France. Finland.• Recent case: Behrami and Behrami v France. KFOR contingents were grouped into a number of multinational brigades (“MNBs”) each of which was responsible for a specific sector of operations with a lead country. The NATO campaign ended with the FRY agreeing to withdraw its forces from Kosovo. NATO‐led forces in Kosovo (“KFOR”). and Mr Saramati – the Commander of a Kosovo Protection Corps Brigade. Kosovo. “under UN auspices”. Germany and Norway . Italy. • Background: NATO bombing campaign against the Federal Republic of Yugoslavia (now Serbia) in 1999. UNSCR 1244 also decided on the deployment. Saramati v France. and the presence of an international security force following the adoption of an appropriate UN Security Council Resolution (“UNSC Resolution”). Russian forces were deployed as part of KFOR at a later stage after the arrival of the main KFOR contingent. Germany and Norway (European Court of Human Rights. • UNMIK: – Pillar I (as it was at the relevant time) concerned humanitarian assistance and was led by the UN High Commissioner for Refugees before it was phased out in June 2000. was led by the Organisation for Security and Co‐operation in Europe (“OSCE”). and the relationship between the NAC and COMKFOR – the Commanding Officer of KFOR – as one of “operational control”. he was accused of having undertaken activities threatening the international presence in Kosovo • In April 2001: he was arrested by UNMIK police • Judge ordered pre‐trial detention. claiming that France had violated their rights under Article 2 of the European Convention on Human Rights (right to life) • Mr Saramati was the Commander of a Kosovo Protection Corps Brigade. including Gadaf and Bekim Behrami. where the lead nation was Germany) to collect his belongings • He is arrested by UNMIK police officers by order of the Commander of KFOR (“COMKFOR”) • KFOR was satisifed that Mr Saramati posed a threat to the security of KFOR and to those residing in Kosovo • He is detained until January 2002. were playing in the hills in the area surrounding Mitrovica (where the KFOR MNB is led by France) • The group came upon a number of undetonated cluster bomb units (“CBUs”) which had been dropped during the bombardment by NATO in 1999. and he is taken to hospital in Pristina. and need KFOR’s permission to access the sit • KFOR had been aware of the CBUs. but they were not considered a “high priority” • The boys’ father complains to the Kosovo Claims Office (“KCO”) that France had not respected UNSC Resolution 1244. when he was convicted of attempted murder • In October 2002. his conviction is quashed and a re‐trial is ordered . he was indicted in May 2001.…. the capital of Kosovo. in that it had not protected his sons from the unexploded munitions • The Kosovo Claims Office forwards the complaint to the French Troop Contributing Nation Claims Office (“TCNCO”) • The French TCNCO rejects the complaint. stating that UNSC Resolution 1244 had required KFOR to supervise mine clearing operations until UNMIK could take over and that such operations had been the responsibility of UNMIK since July 1999 • Mr Behrami and Bekim Behrami then bring a claim against France before the European Court of Human Rights. and does not recover his eyesight • UNMIK police investigate the incident.Facts of Behrami • A group of boys. Bekim Behrami is also seriously injured. • He has eye surgery and he is released one month later. and he was not released until June 2001 • In July 2001: he was told that he had to report to a police station (in the sector assigned to MNB Southeast. although he is disfigured from the explosion. The boys began playing with the CBUs • It detonates and kills Gadaf Behrami. KFOR was not established as a UN force or organ. which was an international force under unified command and control:  Operational control of the forces was with COMKFOR. o 4.…. Monetary Gold principle precluded the ECHR from determining the case o 3. or other troop contributing nations (“TCNs”) o 5. The acts and omissions of KFOR soldiers could not be attributable to the UN or to NATO.  Strategic control was with the Supreme Allied Commander Europe of NATO (”SACEUR”). o 3.  Political control was exercised by the NAC of NATO. France had voted in the North Atlantic Council in favour of deploying an international force to Kosovo. It was a Norwegian officer who was COMKFOR at the time of his arrest – and this post was subsequently filled by a French officer o 3. The ECHR lacked competence. o 2. KFOR did not have a separate legal personality and could not be a subject of international law or bear international responsibility for the acts or omissions of its personnel – thus leading to France’s responsibility for the violation of the Behrami’s rights under the Convention.Applicant’s arguments in Behrami ← • Behrami argued: o 1. but maintained his claims against both France and Norway): o 1. • Saramati argued (after withdrawing his claim against Germany. France and Norway exercised no authority over KFOR. o KFOR was therefore an application of the peacekeeping operations authorised by the UNSC whose resolutions formed the legal basis for NATO to form and command KFOR Continued… . Applicants had not exhausted local remedies that they had in Serbia and Kosovo o 4. as the applicants were not within the jurisdiction of France and Norway o 2. In the case of Saramati. KFOR was the relevant responsible international organisation in control of the situation – rather than the UN or UNMIK. in contrast to other peacekeeping forces. and ultimately by the UNSC. The French contingent’s effective control of the Mitrovica region of Kosovo gave it the relevant jurisdictional link for the purposes of the European Convention. Decisions on detention lay entirely within the discretion of COMKFOR. decisions lay with the COMKFOR. KFOR did not have a separate legal personality and was not a subject of international law and could not bear international responsibility for the acts or omissions of its personnel. who made those decisions without reference to NATO High Command. o 4. without need to refer to NATO o 5. • France and Norway argued: o 1. France and Norway had voted in the North Atlantic Council in favour of deploying an international force to Kosovo o 2. Qatar. International Institutional Law (1980). an English company • The four member States of the AOI (Egypt.How to resolve the issue? • Does the international organisation in question have international legal personality? • – If it does not have legal personality.….” • Ignaz Seidl‐Hohenveldern. and the UAE) had a disagreement. Corporations in and under International Law (1987) 121: – “Just as a State cannot escape its responsibility under international law by entrusting to another legal person the fulfilment of its international obligations. the partner states of a common inter‐State enterprise are jointly and severally responsible in international law for the acts of the enterprise.” • Tribunal held that: ((1984) 23 ILM 1071. may be held liable under international law for the acts they perform. and the UN has a legal personality separate from that of its member States • – The ECHR considered whether it was competent ratione personae to review the acts of the respondent States carried out on behalf of the UN • The ECHR concluded that it did not have jurisdiction to review the conduct of France and Norway Westland Helicopters v AOI (international arbitration) • In 1978. or if it is unable to meet its debts. Even though international organisations. those who engage in transactions of an economic nature are deemed liable for the obligations which flow therefrom. this would imply that the organisation is liable for any activities in which it has engaged. as a general rule. as international persons. so that the impugned actions and inactions were attributable to the UN. they cannot exclude the secondary liability of the members themselves. the Arab Organisation for Industrialisation entered into a contract for the purchase of helicopters from Westland Helicopters. are the members of the international organisation responsible for meeting those liabilities? Outcome: • The ECHR held as follows: • – The SC retained ultimate command and control of KFOR and UNMIK. rather than NATO. this liability subsists since. section 1395: – “it is impossible to create international legal persons in such a way as to limit the responsibility of the individual members. then the international organisation cannot be the bearer of rights and obligations separate and distinct from those of the member States. • – If the international organisation does possess legal personality. third parties which have contracted with the AOI could . • – But if the international organisation is unable to make reparation for the commission of an internationally wrongful act. In default by the four States of formal exclusion of their liability. which ultimately led to the demise of the AOI • Westland Helicopters then brought a claim against the AOI for breach of contract • Were the four member States bound by the obligations of the AOI? • Doctrinal authorities • Henry Schermers. 1083) – “In the absence of any provision expressly or impliedly excluding the liability of the four States. Saudi Arabia. no basis for concluding that there is any rule of international law. did not necessarily imply that its members may not be concurrently or secondarily liable for nonperformance of the ITC’s contractual obligations o – This might be on the basis that the ITC should be regarded as a ‘mixed’ entity. Nourse LJ dissented.Tin Council litigation • This litigation arose out of the collapse of the International Tin Council in 1985 • The ITC conducted its activities in accordance with successive International Tin Agreements. the combination of the fact that the ITC is a legal entity. Kerr LJ gave the leading judgment. and that it can contract in its own name. which is a corporate body known to civil law systems. due solely to their .) • The main submission for present purposes was that the members of the ITC at the member States were concurrently liable for the debts under both English and international law • It was argued that under international law. including the capacity to enter into contracts in its own name. an obligation to pay an agreed guarantee amount to the ITC. but there was nothing about ensuring the ITC’s ability to meet its debts o – In sum. and he summed up the issue as follows: o – The ITC was a legal entity in international law and that it has farreaching capacities. whereby they can be held liable – let alone jointly and severally – in any national court to the creditors of the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name • Ralph Gibson LJ concurred. although main litigation was in the English courts (the Court of Appeal and the House of Lords: Maclaine Watson v DTI [1988] 3 WLR 1033 (CA). which has a degree of legal personality but for which the constituent members continue to have liability for its debts – like a partnership o – There was nothing in ITA6 to support the suggestion that the States parties to it intended that they should be liable for the contractual obligations of the ITC if these remained unperformed o – There seemed to be quite the opposite intention: there was an obligation on member States to provide the ITC with sufficient funds to pay its staff. members of an international organisation bear joint and several liability for its debts unless the constituent instrument expressly excludes such liability • In the Court of Appeal. (1989) 3 All ER 523 (HL). The fact that the ITC had its own separate international personality meant that the member States of the ITC could not be directly y liable for the debts of the ITC o – However. and agreed with the Westland Helicopters tribunal. which were treaties between the member States • The Sixth International Tin Agreement of 1982 (“ITA6”) brought together 23 producer and consumer States and also the EC • These treaties aimed to regulate the tin market by virtue of export controls and the establishment of buffer stocks of tin financed by member States • Much litigation worldwide. binding upon the member States of the ITC.” (Lord Templeman) • Institut de Droit International resolution (1995): – “[T]here is no general rule of international law whereby States members are. • The House of Lords agreed with Kerr and Ralph Gibson LJJ: – “No plausible evidence was produced of the existence of such a rule of international law before or at the time of ITA6 [the Sixth International Tin Agreement] in 1982 or afterwards. Without prejudice to Articles 57 to 60. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organisation. but for the coercion. Article 57: “A State which aids or assists an international organisation in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: o (a) That State does so with knowledge of the circumstances of the internationally wrongful act. and o (b) The act would be internationally wrongful if committed by that State. if committed by that State.• • • • • • • • • ILC Articles on Responsibility of International Organisations Article 61 (general rule): “1. 2. and o (b) That State does so with knowledge of the circumstances of the act. be an internationally wrongful act of that international organisation. 2.” Example 1: – Can the UN also be complicit in the breach of international law by a State? Example 2: – Who is responsible to pay the debts of the international organisation? Example 3: – Can the individual member States be held responsible for the acts and omissions of NATO? .” Article 59: “A State which coerces an international organisation to commit an act is internationally responsible for that act if: o (a) The act would. and o (b) The act would be internationally wrongful if committed by that State. A State member of an international organization incurs international responsibility if it circumvents one of its international obligations by providing the organisation with competence in relation to that obligation. and the organisation commits an act that.” Article 60: “1. would have constituted a breach of that obligation. or o (b) It has led the injured party to rely on its responsibility. The international responsibility of a State which is entailed in accordance with paragraph 1 is presumed to be subsidiary.” Article 58: “A State which directs and controls an international organisation in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: o (a) That State does so with knowledge of the mcircumstances of the internationally wrongful act. a State member of an international organisation is responsible for an internationally wrongful act of that organisation if: o (a) It has accepted responsibility for that act. ” o – Second. – (2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization. the application of relevant staff administrative regulations. and 4. but subject to: 1. Privileges and Immunities of International Organisations • • States. e. consular officials. Convention on the Privileges and Immunities of the United Nations (1946). 717 F2d 610 (US Ct Apps. Art 105: – “(1) The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. requisition. e.D. 3. exemption from local taxes except for utility charges. general multilateral agreements dealing with immunities of particular international organisations.g. 94 ILR 321 (Dutch Sup Ct) o – FAO v INPDAI.g. the immunity of the premises and property of the organisation from search. the constitutive instrument of the int’l org in question. freedom of communication. and the Convention on the Privileges and Immunities of the Specialised Agencies (1947) o – Third. 87 ILR 1 (Italian Court of Cassation ) • • • • • • .. o – They are unable to reciprocate with privileges and immunities o – The restrictive doctrine of State immunity is also inappropriate in the context of int’l orgs The basis for the immunities accorded to int’l orgs is that they are necessary for the effective exercise of their functions Sources of Privileges and Immunities Treaties (as well as customary international law) o Three types of treaty: o – First. and confiscation and other forms of interference by the host State. bilateral agreements between the international organisation and particular States (such as headquarters agreements and SOFAs) Headquarters agreements typically provide for the application of local laws within the headquarters area. 2. Functional basis of privileges and immunities Domestic court decisions: o – Mendaro v World Bank. and international organisations all benefit from certain “privileges and immunities” The justification for State immunity does not apply in the context of international organizations o – Int’l orgs are not sovereign equals. diplomats. 1983) o – Iran – US Claims Tribunal v AS.. UN Charter. Art VIII.. however. and in general all documents belonging to it or held by it. Art I. Immunity from jurisdiction: E.g. The property and assets of the United Nations. its property and assets wherever located and by whomsoever held. Convention on the P&I of the UN. Immunity from execution: See again Convention on the P&I of the UN. whether by executive. as found in the Convention on the P&I of the UN.g. Art I. o .  (a) the UN may hold funds. regulations or moratoria of any kind. Art II. Sec 5: “Without being restricted by financial controls. Section 3: “The premises of the United Nations shall be inviolable. however. e. property and archives: o – Convention on P&I of the UN. It is. Section 2: – “The United Nations. 116 ILR 643 (Swiss Labour Court) What types of immunity are granted? Usually to four different categories of person: o – the international organisation itself. expropriation and any other form of interference. understood that no waiver of immunity shall extend to any measure of execution.• • • • • • • • • • • – Mukuro v European Bank for Reconstruction and Development [1994] ICR 897 (UK Employment Apps Trib) o – ZM v Permanent Delegation of the League of Arab States to the UN. It is. wherever located and by whomsoever held. Section 2: – “The United Nations … shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. requisition. administrative. judicial or legislative action. shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. o – “high officials” of the organisation.. Section 4: “The archives of the United Nations.” – Pressure to move to a “restrictive” doctrine of immunity (which is problematic) – Alternative argument that immunity should be conditional on their being alternative methods for the settlement of disputes. shall be immune from search. confiscation. o – “officials” (including experts on mission for the organisation). o – representatives of member States of the organisation.” o – Article II. shall be inviolable wherever located. Art II.” Currency and fiscal privileges: o – Convention on the P&I of the UN. Sec 29: o “The United Nations shall make provisions for appropriate modes of settlement of:  (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”.” Inviolability of premises. understood that no waiver of immunity shall extend to any measure of execution. gold or currency of any kind and operate accounts in any currency. telephotos.000 o – Entico asked them to agree to go to arbitration. telegrams. its assets. however.  (b) the UN shall be free to transfer its funds. the European Space Agency) in an employment dispute. Sec 7: – “The United Nations. income and other property shall be: • – (a) exempt from all direct taxes.” 13 • • Freedom of communication: Article II. Germany had violated the Convention right of access to a court. gold or currency from one country to another or within any country and to convert any currency held by it into any other currency. and • – (c) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of its publications. radiograms. inter alia. telephone and other communications …” NB that not all international organisations are the same! Need to check each individual treaty. in Article 6 of the European Convention on Human Rights – ECHR held that there was an “available alternative remedy” Entico v UNESCO [2008] EWHC 531 (Comm) o – Entico claimed to have entered into a contract with UNESCO in October 2005. but UNESCO refused o – Entico commenced proceedings before the High Court to recover the £86. Issues in domestic and regional courts Waite & Kennedy v Germany: – Applicants complained that by granting immunity to an international organisation (here. it is understood. a quashing of the Order in Council conferring P&I on UNESCO in the UK o The High Court rejected Entico’s submissions: • • • • .” Convention on the P&I of the UN. Art II. no more than charges for public utility services . rates and taxes on mails. to produce calendars o – UNESCO would give Entico permission to use the UNESCO name and logo on the calendars o – UNESCO decided that it did not want to go through with the “agreement” o – Entico claimed that it had suffered a loss of around £86. that the United Nations will not claim exemption from taxes which are. • – (b) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the United Nations for its official use ….000 o – Entico argued that the P&I of UNESCO violated its rights under Article 6 of the ECHR o – It sought. in fact. Section 9: – “The United Nations shall enjoy in the territory of each Member for its official communications treatment not less favourable than that accorded by the Government of that Member to any other Government including its diplomatic mission in the matter of priorities. cables. the independence of the judiciary. unequivocal. Sec 14 of the Convention on the P&I of the UN (which deals with reps of Member States) provides that these privileges and immunities are conferred: – “not for the personal benefit of the individuals themselves. lawyers and court officials in Malaysia o He gave an interview to a magazine published in the UK but circulated also in Malaysia. (ii) officials (and experts). P&I are also usually conferred on (i) high officials of the int’l org in question.  – And even if Art 6 was engaged. the Court approved the approach of Lord Millett in Holland v Lampen‐Wolfe [2000] and Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia [2007]  – (Lord Hoffmann had said in obiter that “there is not even a prima facie breach of Art 6 if a State fails to make available a jurisdiction which it does not possess”: Jones [2007] 1 AC 270. and in particular those that are necessary for the establishment of any contacts which may be useful for the preparation. and unconditional’. and claimed damages amounting to USD 12 million each  . a Special Rapporteur of the UN Commission on Human Rights on the Independence of Judges and Lawyers o His mandate consisted of tasks including to inquire into substantial allegations concerning. and it can be waived without prejudice to the purpose for which the immunity is accorded. the drafting. and to identify and record attacks on. but in order to safeguard the independent exercise of their functions in connection with the United Nations. and (iii) representatives of member States Art IV. Other persons who have P&I Aside from int’l orgs. the immunity was a legitimate and proportionate restriction on the rights conferred by Art 6.• • • • • – the immunity conferred on UNESCO was ‘clear.  – So not necessary to decide if Art 6 was engaged: but even if it was.  – And further: there was an available alternative remedy (international arbitration). and commented on certain litigation in Malaysia o Two companies in Malaysia sued him for defamation. Section 22 of the Convention on the Privileges and Immunities of the United Nations [1989] ICJ Rep 177: o – Concerned Special Rapporteurs appointed by the UN Sub‐Commission on the Prevention of Discrimination and the Protection of Minorities o – ICJ held that the privileges and immunities that would apply would be those that were necessary for the exercise of their functions.” Applicability of Article VI. 298). Consequently a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice. and the presentation of their reports to the Sub‐ Commission Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62 o Concerned Mr Cumuraswamy. o The ICJ held that he was entitled to immunity with regard to the words spoken by him during the course of the interview o In deciding whether an expert on mission was entitled to immunity in particular circumstances. the UN Secretary‐General had a “pivotal role” o Malaysia had an obligation under Article 105 of the UN Charter and under the Convention to inform its courts of the position taken by the Secretary‐General.• • • The UN Legal Counsel. International Organisations (Privileges and Immunities) Act 1963 (Cth)). International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991 (Cth) o .. “requested the competent Malaysian authorities to promptly advise the Malaysian courts of the Special Rapporteur's immunity from legal process” o Additional lawsuits were being filed against Mr Cumuraswamy.g. stating that he is “neither a sovereign nor a full‐fledged diplomat but merely an unpaid. and failure to do so rendered the State liable under international law The domestic legal position Usually general framework legislation (International Organisations Act 1968 (UK). part‐time provider of information”. and secondary legislation then used to implement the P&I for each int’l org E. claiming a further USD 64 million o Federal Court of Malaysia dismissed his appeal on the issue of his immunity. and the Sec‐Gen.