International Law

STEPHEN TULLY
BComm, LLB (UNSW), LLM (KCL), PhD (LSE)
Barrister

BRIDGET LEWIS
BA LLB (UQ), MHR (Nott)
Lecturer, Faculty of Law, Queensland University of Technology

OTTAVIO QUIRICO
LLB (Pavia), LLM, PhD (Toulouse)
Senior Lecturer, School of Law, University of New England

LexisNexis Butterworths
Australia
2015
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National Library of Australia Cataloguing-in-Publication entry

 Creator: Tully, Stephen.
Title: International Law.
ISBN: 9780409338935 (pbk).
9780409338942 (ebk).
Series: LexisNexis study guide.
Notes: Includes index.
Subjects: International law — study and teaching.
Other Authors/Contributors: Lewis, Bridget. Quirico, Ottavio.
Dewey Number: 341.0711.

© 2015 Reed International Books Australia Pty Limited trading as

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 Preface

International law is an engaging but demanding area of study, often requiring

its practitioners to interpret and apply complex concepts to potentially
challenging situations. It is, nonetheless, a fascinating subject for those who
study it.

The purpose of this book is to assist students to establish an elementary

foundational understanding of international law. The book provides an
accessible introductory text using simple, clear and concise language that
states the essential definitions and concepts, identifies the contentious topics
and addresses the key materials. The book can be used as both a quick
revision tool and a reference to facilitate effective examination preparation.

The LexisNexis Study Guide: International Law has a broad, contemporary

and international appeal. It reflects the succinct style and straightforward
approach of other LexisNexis Study Guides. For example, this book analyses
the leading or recent cases in summary form. The Guide also contains
occasional extracts from important material. But one distinctive feature of
this volume is the inclusion of cases and issues of particular relevance to
Australia.

Our objective has been to briefly outline and explain the fundamentals
concerning the theory and practice of this subject. All of the core branches of
international law are covered, although our treatment of some issues is
necessarily selective. The intersection between public and private
international law is also referenced.

Stephen generally edited the text, wrote chapters 1, 3, 9 and 12, wishes to
thank Bridget and Jocelyn for their very constructive feedback and dedicates
his work to his sister, Dale. Bridget wrote chapters 2, 4, 6 and 10 and
reviewed four more. She wishes to thank Stephen for his detailed feedback on
early drafts and dedicates her work to her family. Ottavio wrote chapters 5, 7,
8 and 11.

We thank our colleagues for their support. We especially wish to give our
warmest thanks to all at LexisNexis for their constant encouragement,
patience and hard work in preparing this Guide, in particular to Jocelyn
Holmes for her tremendous efforts in reviewing and improving the text. We
also thank Rochelle Ransom, Eleanor O’Connor, Marietta Gunn and Sam
Skinner for their assistance.

The law is stated as at May 2015.

Stephen, Bridget and Ottavio

May 2015
 Table of Cases
References are to paragraph numbers. Case extracts are in bold.

A
Aaland Islands Question (On Jurisdiction) (1920) League of Nations Official
Journal, Spec Supp 3 …. 4.7
Air Services Agreement case (France v US) (1978) 18 RIAA 416 …. 10.23
Air Transport Association of America v Secretary of State for Energy and
Climate Change (Court Justice of the European Union, Case C-366/10,
21 December 2011) …. 5.62
Akayesu (ICTR-96–4, 2 September 1998) …. 7.5, 7.25
Alabama Claims Arbitration (United States of America v Great Britain)
(1872) 1 Int Arb 495 …. 3.14
American Banana Co v United Fruit Co 213 US 347 (1909) …. 8.46

Amoco Cadiz (7th Cir, 1992) 954 F2d 1279 …. 5.19

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 …. 3.24
Anglo-Czechoslovak & Prague Credit Bank v Janssen [1943] VLR 185 ….
4.15
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR
225; [1997] HCA 4 …. 3.31
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium)
 [2002] ICJ Rep 3 (Arrest Warrant case) …. 4.28, 4.30, 7.61
Australia and New Zealand v France [1974] ICJ Rep 253 …. 2.56, 12.22

Avena and Other Mexican Nationals (Mexico v United States of America)

[2004] ICJ Rep 12 …. 3.13

B
Barcelona Traction, Light and Power Company, Ltd (Belgium v Spain)
(New Application: 1962) [1970] ICJ Rep 3 …. 2.51, 3.16, 10.38, 11.9
Beagle Channel Arbitration (Chile and Argentina), Award and Decision of
18 February 1977 (1977) 52 ILR 93 …. 12.14
Bonython v Commonwealth [1951] AC 201 …. 8.5
Bradley v Commonwealth (1973) 128 CLR 557; [1973] HCA 34 (the
Rhodesian Information Centre case) …. 3.45
Brazilian Loans (Brazil v France) [1929] PCIJ Ser A No 21 …. 3.17
Breard v Greene 523 US 371 (US SC, 1998) …. 3.21
Brown v Classification Review Board (1998) 83 FCR 225 …. 3.33

Buvot v Barbuit (1737) 25 ER 777 …. 3.37

C
Caire Claim (France v United Mexican States) (1929) 5 RIAA 516 …. 10.10
Camouco Case, The (Panama v France) (2000) ITLOS Case No 5 …. 9.53
Canada–US Settlement of Gut Dams Claims [1968] 8 ILM 118 …. 5.19
Caroline case (Great Britain v United States) (1840–41/1842–43) 29–30
 British and Foreign State Papers 1126 …. 11.11
Certain German Interests in Polish Upper Silesia (Germany v Poland)
(Merits) [1926] PCIJ Ser A No 7 …. 3.15
Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary
Objections) [1992] ICJ Rep 240 …. 12.25
Chorzow Factory (Indemnity) [1928] PCIJ Ser A No 17 …. 2.56, 10.30

Chow Hung Ching v R (1949) 77 CLR 449; [1948] HCA 37 …. 3.42

Chung Chi Cheung v R [1939] AC 160 …. 3.38
Colombia v Peru [1950] ICJ Rep 266 (Asylum case) …. 2.53
Commission of the European Communities v Ireland (ECJ, C-459–06, 30
May 2006) …. 5.63
Committee of US Citizens Living in Nicaragua v Reagan 859 F 2d 929 (DC
Cir, 1988) …. 3.39
Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21
(Tasmanian Dam case) …. 3.23, 5.52

Continental Shelf Case (Tunisia v Libya) [1982] ICJ Rep 18 …. 9.20, 9.38
Continental Shelf Case (Libya v Malta) [1985] ICJ Rep 13 …. 9.20, 9.38,
9.40
Corfu Channel, The (United Kingdom of Great Britain and Northern
Ireland v Albania) (Merits) [1949] ICJ Rep 4 …. 4.17, 5.19, 9.14, 9.15,
9.45, 9.47

D
Denmark v Norway [1993] ICJ Rep 34 …. 9.34
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11 ….
4.6
Dietrich v R (1992) 177 CLR 292; [1992] HCA 57 …. 3.29
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada
v USA) [1984] ICJ Rep 246 …. 9.36

Dispute Concerning Access to Information under Article 9 of the OSPAR

Convention (Ireland v UK), OSPAR Arbitral Tribunal, Final Award, 2
June 2003 …. 5.63
Diversion of Water from the River Meuse (Netherlands v Belgium) [1937]
PCIJ Ser A/B No 70 …. 2.56

E
East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 …. 4.14,
12.24
European Community – Bananas III, WT/DS27/R/ECU (22 May 1997) ….
8.40
Effect of Awards of Compensation Made by the UN Administrative
Tribunal (Advisory Opinion) [1954] ICJ Rep 47 …. 2.56
Eichmann 36 ILR 5 (Supreme Court of Israel, 29 May 1962) …. 7.63
Eritrea v Yemen (Phase 2: Maritime Delimitation) (1999) 119 ILR 417 ….
9.37, 9.43
Ethiopia/Liberia v South Africa (Preliminary Objections) [1962] ICJ Rep
 329 …. 12.7
Exchange of Greek and Turkish Populations Case (Advisory Opinion)
[1925] PCIJ Ser B No 10 …. 3.10

F
Federal Republic of Germany v Denmark; Federal Republic of Germany v
The Netherlands [1969] ICJ Rep 3 (North Sea Continental Shelf Cases)
…. 2.41, 2.44, 2.45, 2.69, 9.34, 9.37, 9.38, 9.39, 9.40
Fisheries case (United Kingdom v Norway) [1951] ICJ Rep 116 …. 2.54,
9.5, 9.6
Fisheries Jurisdiction case (United Kingdom v Iceland) [1974] ICJ Rep 3 ….
2.44, 9.23
Foster v Neilson 2 Pet 253 (US SC, 1829) …. 3.21
France v Norway [1957] ICJ Rep 9 …. 12.25
France v Spain (1957) 12 RIAA 281 (Lac Lanoux) …. 5.10
France v United States (1978) 18 RIAA 416 …. 10.2

Furundzija (ICTY, IT-95–17/1, 10 December 1998) 1 …. 7.62

G
Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 ….
5.13, 10.28

H
Habib v Commonwealth (2010) 183 FCR 62; [2010] FCAFC 12 …. 3.46
Hartford Fire Insurance Co v California 509 US 764 (1993) …. 8.46
Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 …. 3.46

Horta v Commonwealth (1994) 181 CLR 183; [1994] HCA 32 …. 3.12,

3.23
Horvath v Australia, Human Rights Committee Communication No
1885/2009 …. 6.49

I
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
(Advisory Opinion) [1950] ICJ Rep 65 …. 12.4
Ireland v United Kingdom (ITLOS, Request for Provisional Measures,
Order of 3 December 2001) (MOX Plant case) …. 5.16, 5.63
Ireland v United Kingdom (UNCLOS Arbitral Tribunal, Orders of 24 June
2003 and 6 June 2008) (MOX Plant case) …. 5.63
Island of Palmas Arbitration (1928) 2 RIAA 829 …. 4.22

J
Japan–Alcoholic Beverages II WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R (1 November 1996) …. 8.30
Jelisic (ICTY, IT-95–10, 5 July 2011) …. 7.25
J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990]
2 AC 418 …. 3.25
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)
 [2012] ICJ Rep 99 …. 4.29

K
Kayishema and Ruzindana (ICTR, 95–1, 21 May 1999) …. 7.25
Kunarac (ICTY-96–23, 12 June 2002) …. 7.18, 7.22

L
LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep
466 …. 3.13
Laguna del Desierto Case (Argentina v Chile) (1994) 113 ILR 1 …. 2.56
Land and Maritime Boundary (Cameroon v Nigeria) [2002] ICJ Rep 303 ….
9.37, 9.41
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 …. 7.7,
11.13, 11.30, 12.32
Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ Ser
A/B No 53 …. 2.39
Legality of the use of Force (Serbia and Montenegro v Belgium) (Public
sitting Monday 10 May 1999, verbatim record, CR 99/15) …. 11.35
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)
[1996] ICJ Rep 226 (Nuclear Weapons) …. 5.2, 5.12, 5.14, 5.20, 7.4,
11.16, 11.17, 12.30
Lopez Ostra v Spain (ECHR, Case No 16798/90, 9 December 1994) ….
5.67
M
Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 …. 3.43

Maclaine Watson and Co Ltd v International Tin Council (International Tin

Council cases) (1988) 80 ILR 110 …. 10.36
Maritime Boundary in the Area between Greenland and Jan Mayen
(Denmark v Norway) [1993] ICJ Rep 34 …. 9.34
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v Bahrain) [2001] ICJ Rep 40 …. 2.16, 9.6, 9.7, 9.32, 9.41, 9.42
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112
…. 2.16
Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ
Rep 120 …. 9.37
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Application,
28 August 2014) …. 4.6
Martić (ICTY-95–11–A, 8 October 2008) …. 7.18

Mavrommatis Palestine Concessions (Judgment No 2) (Greece v United

Kingdom) [1924] PCIJ Ser A No 2 …. 12.4
Medellin v Texas 128 S Ct 1346 (US SC, 2008) …. 3.21
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States) [1986] ICJ Rep 14 (Nicaragua Merits decision) …. 2.46,
4.16, 7.4, 8.3, 9.11, 10.13, 11.3, 11.6, 11.8, 11.9, 11.13, 11.16, 11.19,
12.25, 12.29
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;
[1995] HCA 20 …. 3.28, 3.35

Minister for Immigration and Multicultural Affairs; Ex p Lam (2003) 214

CLR 1; [2003] HCA 6 …. 3.36
Ministry of the Merchant Marine and of the Interior v Patmos Shipping
Corp and Others (Appeal Court, Messina, 30 March 1989 [1990] 5
Rivista Giuridica Dell’Ambiente 527 …. 5.61

Minogue v Williams [2000] FCA 125 …. 3.29

MV Saiga (No 2) Case (St Vincent and the Grenadines v Guinea) (1999) 38
ILM 1323 …. 9.21, 9.27, 9.28

N
New South Wales v Commonwealth [1975] HCA 58 (Seas and Submerged
Lands Act case) …. 9.31
New Zealand v Japan; Australia v Japan (Provisional Measures) [1999] 38
ILM 1624 (Southern Bluefin Tuna) …. 5.16, 12.44

Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997]
HCA 38 …. 3.24
Norwegian Loans (France v Norway) [1957] ICJ Rep 9 …. 12.25
Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 …. 10.38
Nuclear Tests (Australia and New Zealand v France) [1974] ICJ Rep 253)
…. 2.56, 12.22
Nuclear Tests (Australia v France; New Zealand v France) (Interim
 Measures) [1973] ICJ Rep 99 …. 5.10, 5.16
Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA 1192 …. 3.9,
3.41

O
Oil Platforms case (Islamic Republic of Iran v United States of America)
[2003] ICJ Rep 161 …. 11.16

P
Paquete Habana, The 175 US 677 (US SC, 1900) …. 3.39
Phillips v Eyre (1870) LR 6 QB 1 …. 8.7
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
…. 3.30
Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3 …. 3.12
Polyukhovich v Commonwealth (1991) 172 CLR 501; [1991] HCA 32 ….
3.44

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
[1998] HCA 28 …. 3.30
Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14
…. 5.10

Q
Questions of Interpretation and Application of the 1971 Montreal
 Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v United Kingdom) [1992] ICJ Rep 3 (Lockerbie) …. 7.68

R
R v Anderson (1868) 11 Cox’s Criminal Cases 198 …. 9.10
R v Asfaw [2008] UKHL 31 …. 3.25
R v Bow Street Metropolitan Stipendiary Magistrate; Ex p Pinochet Ugarte
(No 3) [2000] 1 AC 147 …. 3.37, 3.38, 4.32, 7.63
R v Jones (Margaret) [2007] 1 AC 136 …. 3.38, 7.64
R v Keyn (1876) 2 Ex D 63 …. 3.38
R v Secretary of State for Transport (No 2); Ex p Factortame Ltd [1991] 1
AC 603 …. 3.26
Reparation for Injuries Suffered in the Service of the United Nations
(Advisory Opinion) [1949] ICJ Rep 174 …. 4.34
Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261; [1998]
HCA 10 …. 3.23

Rights of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6
…. 2.52
Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 ….
3.24
Russian Federation v Australia (2002) ITLOS Case No 11 …. 9.53

S
Salini Costruttori SpA and Italstrade SpA v Morocco, ARB/00/4 (23 July
2001) (ICSID case) …. 8.16, 8.56

Sanchez-Llamas v Oregon 126 S Ct 2669 (US SC, 2006) …. 3.21

Sei Fuji v California 38 Cal 2d 718 (Cal SC, 1952) …. 3.21
Sosa v Alvarez-Machain 124 S Ct 2739 (US SC, 2004) …. 3.40
South West Africa (Preliminary Objections) [1962] ICJ Rep 319 …. 12.4,
12.7
Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan
(Provisional Measures) [1999] 38 ILM 1624 …. 5.16, 12.44
SS Lotus (France v Turkey) [1927] PCIJ Ser A No 10 (Lotus case) …. 2.48,
4.23, 7.58, 9.27
St Vincent and the Grenadines v Guinea (1999) 38 ILM 1323 …. 9.21, 9.27,
9.28
Status of Eastern Carelia (Advisory Opinion) [1923] PCIJ Ser B No 5 ….
12.3

T
Tadić (ICTY IT-94–1–AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995) …. 7.5
Texaco Overseas Petroleum Company and California Asiatic Oil Company v
The Government of the Libyan Arab Republic (1977) 53 ILR 389 ….
4.36
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 …. 3.45
T H Youmans Claim (US v Mexico) (1926) 4 RIAA 110 …. 10.10
Timberlane Lumber Co v Bank of America 549 F2d 597 (1976) …. 8.46

Trail Smelter (USA v Canada) Award of 16 April 1938 & 11 March 1941
(1950) III RIAA 1905 …. 5.9
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 ….
3.37

Tuitupou v Minister for Immigration and Multicultural Affairs (2000) FCA

197; 60 ALD 361 …. 3.12

U
United Railways of the Havana and Regla Warehouses Ltd, Re [1960] 2 All
ER 332 …. 8.5
United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Judgment) [1980] ICJ Rep 3 …. 10.16
United States of America v Great Britain (1872) 1 Int Arb 495 …. 3.14
United States of America v Mexico (1926) 4 RIAA 110 …. 10.10

United States of America – Measures Affecting the Cross-Border Supply of

Gambling and Betting Services, WT/DS285/AB/R (7 April 2005) ….
8.40

V
Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 (Industrial
Relations Act case) …. 3.23, 3.25
Viva Vino Import Corporation v Farnese Vini Srl (2000) WL 1224903 (ED
Pa 2000) …. 8.53

‘Volga’ Case, The (Russian Federation v Australia) (2002) ITLOS Case No

11 …. 9.53

W
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 …. 4.7, 12.30

Whaling in the Antarctic (Australia v Japan; New Zealand Intervening)

(Judgment) [2014] ICJ Rep (1 March 2014) …. 12.27
Wildenhus’ Case (1887) 120 US 1 …. 9.10

Y
Yeager v Islamic Republic of Iran (1987–IV) 17 Iran-USCTR 92 …. 10.9
 Table of Selected Instruments
References are to paragraphs

Commonwealth
Acts Interpretation Act 1901

s 15AB …. 3.32
Australian Constitution
s 51(xxix) …. 3.23, 5.52
s 75(i) …. 3.22
Competition and Consumer Act 2010 …. 8.46
Environment Protection and Biodiversity Conservation Act 1999
s 225 …. 9.49
Fisheries Act 1979 …. 9.23

Fisheries Management Act 1991

s 7 …. 9.23
s 8 …. 9.23
International Arbitration Act 1974 …. 12.16
National Parks and Wildlife Conservation Act 1975 …. 5.52
Seas and Submerged Lands Act 1973 …. 9.31
World Heritage Properties Conservation Act 1983 …. 5.52
Tasmania
Gordon River Hydro-Electric Power Development Act 1982 …. 5.52

International
Additional Protocol I to the Geneva Conventions 1977 …. 7.3
Art 3 …. 7.5, 7.39
Art 35(3) …. 5.58

Art 85 …. 7.39
Additional Protocol II to the Geneva Conventions 1977
Art 3 …. 7.3, 7.21
Additional Protocol III to the Geneva Conventions 2005 …. 7.3
Agreement Between the United Nations and the United States Regarding
the Headquarters of the United Nations 1947 …. 2.7
Agreement Establishing the World Trade Organization 1994 …. 8.23, 8.33,
8.34
Arts II …. 8.21, 8.24

Art III …. 8.21

Art IV …. 8.27, 8.28
Art IX …. 8.26
Art XVI …. 8.24
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies 1984
 Art 11 …. 5.46
Agreement on Textiles and Clothing 1994 …. 8.23

American Convention on Human Rights 1978 …. 6.50

Antarctic Treaty 1961 …. 5.44
Basel Convention on the Control of Transboundary Movements of
Hazardous Waste and their Disposal 1992 …. 5.56

Berne Convention for the Protection of Literary and Artistic Work 1887 ….
8.43
Business Charter for Sustainable Development 1991 …. 5.25
Cartagena Protocol on Biosafety 2003 …. 5.51
Charter of Economic Rights and Duties of States 1974 …. 8.3
Charter of the International Military Tribunal for the Far East 1946
(IMTFE) …. 7.14
Art 5 …. 7.45
Art 5(a) …. 7.28

Art 5(b) …. 7.21

Art 5(3) …. 7.18
Art 6 …. 7.49
Art 16 …. 7.32
Art 17 …. 7.52
Charter of the International Military Tribunal at Nuremberg (IMT
 Charter), London Agreement for the Establishment of an International
Military Tribunal 1945 …. 7.14

Art 6 …. 7.45
Art 6(a) …. 7.28
Art 6(b) …. 7.21
Art 6(c) …. 7.18

Art 7 …. 7.49
Art 9 …. 7.32, 7.45
Arts 27–28 …. 7.32
Art 29 …. 7.52
Charter of the United Nations 1945 (UN Charter) …. 1.23, 3.21, 8.3
Preamble …. 11.2, 11.28
Ch V …. 11.48
Ch VI …. 11.41, 11.48
Ch VII …. 2.64, 11.41, 11.48

Art 1 …. 11.5, 11.41

Art 2 …. 11.5
Art 2(1) …. 1.3, 4.16
Art 2(3) …. 12.2
Art 2(4) …. 11.4, 11.23, 11.41, 12.2
Art 3 …. 11.5
Art 5(2) …. 11.7
Art 5(3) …. 11.7

Art 12 …. 12.13
Art 18 …. 2.65
Art 21 …. 10.20, 11.14
Art 22 …. 10.21

Art 23 …. 10.24
Art 23(1) …. 10.24
Art 23(2)(a) …. 10.24
Art 23(2)(b) …. 10.24
Art 24 …. 10.26
Art 24(2)(a) …. 10.27
Art 24(2)(b) …. 10.27
Art 25 …. 2.64, 3.45, 10.28
Art 25(1)(a) …. 10.28

Art 25(1)(b) …. 10.28

Art 25(2)(a) …. 10.28
Art 25(2)(b) …. 10.28
Art 26 …. 10.23
Art 27(3) …. 11.43
Art 29 …. 10.29, 11.48
Art 30 …. 10.29
Art 31 …. 10.30

Art 32 …. 10.30
Arts 33–38 …. 11.42
Art 33 …. 12.2
Art 34 …. 10.30, 12.13

Art 35 …. 10.30
Art 35(1) …. 12.13
Art 36 …. 12.13
Art 36(2) …. 10.32
Art 36(3) …. 12.13
Art 37 …. 10.33, 12.13
Art 37(2) …. 10.33
Art 38 …. 12.13
Art 39 …. 11.43

Art 40 …. 11.43
Art 41 …. 1.17, 11.43, 11.44, 11.46
Art 42 …. 1.17, 11.46
Art 43 …. 11.45
Art 45 …. 11.45
Arts 48–49 …. 11.45
 Art 49(1) …. 10.21
Art 49(2) …. 10.21

Art 49(3) …. 10.23

Art 50(1)(a) …. 10.23
Art 50(1)(b) …. 10.23
Art 50(1)(d) …. 10.23

Art 51 …. 10.23, 11.12, 11.13, 11.18, 11.23

Art 52 …. 10.21
Art 52(3)(b) …. 10.23
Arts 53–54 …. 11.45
Art 53 …. 10.23
Art 92 …. 2.2, 12.17
Art 93 …. 12.17
Art 94(1) …. 12.28
Art 96 …. 12.28

Art 102 …. 2.15

Convention on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters (Aarhus
Convention) 2005 …. 5.25
Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment 1984 (CAT) …. 2.50, 4.28, 6.25, 6.49, 7.37,
7.66
 Art 1 …. 6.39, 7.37
Art 2 …. 6.39

Art 2(2) …. 6.39

Art 3 …. 6.39
Art 4 …. 6.39, 7.37
Art 5 …. 4.28

Art 17 …. 6.45
Art 21 …. 6.47
Art 22 …. 6.45
Convention to Combat Desertification in those Countries Experiencing
Drought and/or Desertification, Particularly in Africa 1996 …. 5.29
Convention on Conditions for Registration of Ships 1987 …. 9.27
Convention for the Conservation of Antarctic Marine and Living resources
1982 …. 5.44
Convention for the Conservation of Antarctic Seals 1978 …. 5.44

Convention for the Conservation of Migratory Species of Wild Animals

1983 …. 5.48
Convention for the Conservation of Southern Bluefin Tuna 1994
Art 16 …. 12.44
Convention on Biological Diversity 1993 …. 5.5, 5.50, 5.51, 5.53
Convention on the Continental Shelf 1964
Art 6 …. 9.33
Convention on Contracts for the International Sale of Goods 1988
Art 1 …. 8.38

Convention on the Elimination of All Forms of Racial Discrimination

Against Women 1981 (CEDAW) …. 6.25, 6.49
Art 7 …. 6.36
Art 8 …. 6.36

Art 10 …. 6.36
Art 11 …. 6.36
Art 12 …. 6.36
Art 13 …. 6.36
Art 15 …. 6.36
Art 16 …. 6.36
Art 17 …. 6.45
Convention on Environmental Impact Assessment in a Transboundary
Context (Espoo Convention) 1997

Art 2(3) …. 5.22

Convention Establishing the Multilateral Investment Guarantee Agency
1988 …. 8.18
Convention on International Access to Justice 1988 …. 12.5
Convention on International Trade in Endangered Species of Wild Flora
and Fauna 1975 …. 5.48
Convention on Jurisdictional Immunities of States and Their Property 2004
 …. 4.29
Convention on the Law of the Non-Navigational Uses of International
Watercourses 2014
Art 2(a) …. 5.31
Art 5 …. 5.31
Art 7 …. 5.31

Arts 20–23 …. 5.31

Art 22 …. 5.48
Art 23 …. 5.48
Convention on the Law of the Sea 1994 (UNCLOS) …. 5.33, 5.34, 5.63,
7.66, 9.1, 9.3, 12.42
Annex VII …. 5.63
Annex VIII …. 9.53, 12.44
Pt VI …. 9.21
Pt XI …. 9.30

Pt XII …. 5.33
Art 1 …. 9.4
Art 2(1) …. 9.4
Art 2(2) …. 9.12
Art 5 …. 9.5
Art 6 …. 9.5
Art 7 …. 9.6
Art 7(4) …. 9.7
Art 8 …. 9.4, 9.9

Art 10 …. 5.63, 9.4, 9.6

Art 13 …. 9.4
Art 15 …. 9.35
Art 17 …. 9.14

Art 18 …. 9.4, 9.14

Art 19 …. 9.4, 9.14
Art 19(2) …. 9.14
Art 20 …. 9.16
Art 21 …. 9.13
Art 22 …. 9.16
Art 23 …. 9.16
Art 24(1) …. 9.15
Art 24(2) …. 9.15

Art 25(3) …. 9.15

Art 27 …. 9.13
Art 27(2) …. 9.13
Art 27(5) …. 9.13
Art 28 …. 9.13
Art 28(1) …. 9.13
Art 33 …. 9.4, 9.19
Art 36 …. 9.45

Art 37 …. 9.45
Art 38 …. 9.46
Art 39 …. 9.46
Art 42 …. 9.47

Art 46 …. 9.4
Art 47 …. 9.4
Art 49(1) …. 9.17
Art 51(1) …. 9.17
Art 52(1) …. 9.18
Art 52(2) …. 9.18
Art 53 …. 9.18
Art 55 …. 9.4, 9.20
Art 56(1) …. 9.21

Art 56(3) …. 9.21

Art 57 …. 9.4
Art 58(1) …. 9.22
Art 58(3) …. 9.22
Art 59 …. 9.22
Arts 61–68 …. 5.49
Art 61 …. 9.23
Art 62 …. 9.23

Art 65 …. 9.49
Art 73 …. 9.21
Art 73(1) …. 9.53
Art 74 …. 9.35

Art 76 …. 9.25
Art 76(1) …. 9.4
Art 77 …. 9.24
Art 83 …. 9.35, 9.44
Art 86 …. 9.4
Art 87 …. 9.26
Art 88 …. 9.26
Art 89 …. 9.26
Art 91(1) …. 9.27

Art 92 …. 9.27
Art 92(2) …. 9.28
Art 93 …. 9.28
Art 94 …. 9.27
Art 97 …. 9.28
Art 100 …. 7.65, 9.28
Art 101 …. 7.40, 9.4
Art 106 …. 7.40

Art 109 …. 9.28

Art 110 …. 9.28
Art 111 …. 9.28
Arts 116–120 …. 5.49

Art 117 …. 9.48

Art 118 …. 9.48
Art 121 …. 9.4
Art 121(1) …. 9.4
Art 125(1) …. 9.26
Art 136 …. 5.34, 9.29
Art 140 …. 9.29
Arts 192–196 …. 5.34
Art 192 …. 9.50

Art 193 …. 9.50

Art 194 …. 9.50
Art 197 …. 9.50
Arts 207–208 …. 5.34
Art 207 …. 9.51
Art 209 …. 5.34
 Art 210 …. 5.34
Art 211 …. 5.34

Art 212 …. 5.34

Art 221 …. 9.51
Art 279 …. 9.53
Art 280 …. 9.53

Art 281(1) …. 12.44

Art 282 …. 9.53
Art 284 …. 9.53
Art 286 …. 9.53
Art 287 …. 5.63, 9.53
Art 287(1) …. 12.43
Art 290 …. 9.53
Art 292 …. 5.63, 9.53
Art 297 …. 9.53

Art 298 …. 9.53

Art 309 …. 9.3
Convention on Long-Range Transboundary Air Pollution 1983 …. 5.36
Convention on Persistent Organic Pollutants 2004 …. 5.56
Convention for the Prevention of Pollution of the Sea by Oil 1958 …. 5.35
Convention for the Prevention of Pollution from Ships 1983 …. 5.35
Convention on the Prevention and Punishment of the Crime of Genocide
1951 …. 3.9, 7.14

Art 2 …. 7.24, 7.36

Art 4 …. 7.49
Art 5 …. 7.36
Art 6 …. 7.44

Art 9 …. 7.26
Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemical and Pesticides in International Trade 2004 …. 5.56
Convention on Privileges and Immunities of the United Nations 1946 ….
4.34
Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques 1978 …. 5.58
Convention for the Protection of the Marine Environment in the North-
East Atlantic 1998 (OSPAR) …. 5.63

Art 9(2) …. 5.63

Convention for the Protection of Underwater Cultural Heritage 2009
Art 303 …. 9.52
Convention on the Regulation of Antarctic Mineral Resource Activities
1988 …. 5.44
Convention on the Regulation of Whaling 1948 …. 5.49
Art VIII(1) …. 12.27
Convention on the Rights of the Child 1990 (CRC) …. 6.25
Art 3(1) …. 6.37

Art 3(2) …. 6.37

Art 5 …. 6.37
Art 12 …. 6.37, 6.47
Art 19 …. 6.37

Arts 28–29 …. 6.37

Art 31 …. 6.37
Art 37 …. 2.21, 2.63
Art 37(c) …. 2.21
Art 42 …. 6.45
Convention on the Rights of Persons with Disabilities 2008 (CRPD) ….
6.25, 6.49
Art 1 …. 6.41
Art 3 …. 6.41

Art 4(1)(a) …. 6.41

Art 5 …. 6.41
Art 8 …. 6.41
Art 12 …. 6.41
Art 13 …. 6.41
Art 15 …. 6.41
 Art 16 …. 6.41
Art 19 …. 6.41

Art 20 …. 6.41
Art 21 …. 6.41
Art 34 …. 6.45
Convention on the Settlement of Investment Disputes between States and
Nationals of Other States 1966 …. 8.56
Convention on the Use of Electronic Communications in International
Contracts 2013
Art 6 …. 8.6
Art 10 …. 8.6
Convention on Wetlands of International Importance especially as
Waterfowl Habitat 1975 …. 5.48
Declaration of Human Rights 2012 (ASEAN Nations) …. 6.51
Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities 2001 …. 5.6
Art 3 …. 5.10, 5.16
Art 7 …. 5.21
Draft Articles on Responsibility of States for Internationally Wrongful Acts
2001
Art 4 …. 11.9
Art 8 …. 11.29
 Art 21 …. 11.14
Art 40 …. 11.18

Art 41 …. 11.18, 11.37

Art 48 …. 11.18
Art 49-52 …. 11.15
Art 54 …. 11.18

Draft Code of Crimes against the Peace and Serenity of Mankind 1996 ….
7.19
Art 3 …. 7.32
Art 16 …. 7.28
Art 17 …. 7.24
Art 18 …. 7.18
Art 20 …. 7.21
Draft Principles on the Allocation of Loss in the Case of Transboundary
Harm arising out of Hazardous Activities 2006 …. 5.6

EC Regulation 44/2001 on Jurisdiction and the Recognition and

Enforcement of Judgments in Civil and Commercial Matters (Brussels I)
Arts 5–6 …. 8.53
Energy Charter Treaty 1998 …. 5.55
Art 19 …. 5.55
Arts 10, 13, 14 …. 8.18
European Convention on Human Rights 1953 …. 6.50
Fish Stock Agreement 2001 …. 5.49
General Act for the Pacific Settlement of International Disputes 1945 ….
12.5
General Agreement on Tariffs and Trade 1948 …. 8.18
Arts I, II, III, VI, XIII, XVI …. 8.29
Art XVIII …. 8.31

Art XX …. 5.54, 8.32, 8.35

Art XXIV …. 8.37
General Agreement on Trade in Services 1994 …. 8.23
Arts II, VIII, IX, XII, XIII, XIV, XVI …. 8.40
Art XX …. 8.39
Geneva Conventions on the Protection of War Victims 1865 …. 7.3, 7.21,
7.66
Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field 1950 …. 7.3

Arts 49–51 …. 7.39

Geneva Convention (II) for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea 1950 …. 7.3
Arts 50–52 …. 7.39
Geneva Convention (III) relative to the Treatment of Prisoners of War 1950
…. 7.3
Arts 129–131 …. 7.39
Geneva Convention (IV) relative to the Protection of Civilian Persons in
Time of War 1950 …. 7.3

Art 53 …. 8.60
Arts 146–148 …. 7.39
Hague Convention IV
Art 43 …. 8.58

Hague Convention XIII 1910

Art 6 …. 8.62
Hague Convention on Choice of Court Agreements 2005 …. 8.53, 12.5
Hague Convention for the Pacific Settlement of International Disputes 1899
…. 8.52
Hague Convention for the Pacific Settlement of International Disputes 1907
…. 8.52, 12.5
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters 1969 …. 8.48

Hague Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters 1969 …. 8.48
Hague Regulations of the International Criminal Court Reg 48 …. 7.51
Hague Regulations on Land Warfare 1910 …. 8.58
Art 23(g) …. 8.60
Arts 48–49 …. 8.59
Arts 52 …. 8.60
 Arts 53 …. 8.60
Arts 55 …. 8.60

Hague Conference on Private International Law (HCCH) Convention on

the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters 1971
Art 8 …. 8.55

Art 9 …. 8.55
Art 10 …. 8.53
International Covenant on Civil and Political Rights 1966 (ICCPR) ….
2.68, 2.72, 3.29, 6.25, 6.45, 6.49
Art 1 …. 6.12, 11.40
Art 2 …. 6.27, 6.49
Art 2(1) …. 6.27
Art 2(2) …. 6.27
Art 3 …. 6.27

Art 4 …. 6.28, 6.29

Art 6 …. 6.9, 6.26, 6.28
Art 7 …. 6.9, 6.26, 6.28, 6.49
Art 8 …. 6.26
Art 8(1) …. 6.28
Art 8(2) …. 6.28
Art 9 …. 6.26, 6.49
 Art 10 …. 6.9
Art 11 …. 6.28

Art 12 …. 6.26
Art 14 …. 6.9
Art 15 …. 6.28
Art 16 …. 6.28

Art 17 …. 6.49
Art 18 …. 6.26, 6.28
Art 19 …. 6.26
Art 21 …. 6.26
Art 22(1) …. 6.29
Art 22(2) …. 6.29
Arts 28–30 …. 6.30
Art 28 …. 6.45
Art 40 …. 6.30

Arts 41–43 …. 6.47

International Covenant on Economic, Social and Cultural Rights 1976
(ICESCR) …. 2.72, 6.25, 6.33, 6.45, 6.49
Art 1 …. 6.12, 11.40
Art 2 …. 6.32, 6.33
Art 2(2) …. 6.33
 Art 6 …. 6.31
Art 7 …. 6.31

Art 9 …. 6.31
Art 10 …. 6.47
Art 11 …. 6.31, 6.33
Art 12 …. 2.68, 6.31

Art 13 …. 6.31
International Convention on the Elimination of All Forms of Racial
Discrimination 1969 (ICERD) …. 6.25, 6.49
Art 2 …. 6.35
Art 3 …. 6.35
Art 5 …. 6.35
Art 6 …. 6.35
Art 7 …. 6.35
Art 8 …. 6.45

Arts 11–13 …. 6.47

Art 14 …. 6.45
International Convention on the Protection of the Rights of All Migrant
Workers and Their Families 2003 (CMW) …. 6.25, 6.49
Art 7 …. 6.42
Art 25 …. 6.42
Art 72 …. 6.45
 Art 77 …. 6.45
International Convention for the Protection of All Persons from Enforced
Disappearances 2010 (CED) …. 6.25, 6.49
Art 1 …. 6.43
Art 3 …. 6.43
Art 4 …. 6.43

Art 26 …. 6.44, 6.45

Art 30 …. 6.44
Art 31 …. 6.45
Art 32 …. 6.47
Art 74 …. 6.47
International Convention for the Suppression of Terrorist Bombings 2001
…. 7.66
Art 2 …. 7.38
Art 4 …. 7.38

International Monetary Fund Agreement (IMF) 1945

Art IV(1) …. 8.12
Art IV(3) …. 8.12
Art IV(4) …. 8.12
Art IV(5) …. 8.12
Art V …. 8.12
Art 4(1) …. 8.13
 Art 4(4) …. 8.13
Art 5 …. 8.13

Art 12(f)(ii) …. 8.13

International Tropical Timber Agreement 1985 …. 5.30
Joint Convention on the Safety of Spent Fuel Management and on the
Safety of Radioactive Waste Management 2001 …. 5.56

Kyoto Protocol to the UN Framework Convention on Climate Change 2007

…. 5.39, 5.40
Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia (ECCC)
Art 29 …. 7.79
Model Tax Convention Between Developed and Developing Countries
(1999) …. 8.50
Montevideo Convention on the Rights and Duties of States 1934
Art 1 …. 4.3, 4.12

Montreal Convention for the Suppression of Unlawful Acts against the

Safety of Civil Aviation 1971 (Montreal Convention)
Art 5(1)(a) …. 7.68
Art 5(2) …. 7.68
Art 7 …. 7.68
Montreal Protocol to the Convention for the Protection of the Ozone Layer
1987 …. 5.37, 5.65
Nagoya Protocol to the Convention on Biological Diversity (CBD) 2010
Art 6 …. 5.23

New York Convention on the Recognition and Enforcement of Foreign

Arbitral Awards 1958 …. 12.16
Art 5 …. 8.55
North American Free-Trade Agreement (NAFTA) 1994 …. 8.4, 8.17

Art 1114 …. 5.53

Arts 1102, 1103, 1105, 1106, 1109, 1110, 1114 …. 8.18
Nuremberg Principles 1946 …. 7.14
Paris Convention for the Protection of Industrial Property 1884 …. 8.43
Protocol to the Antarctic Treaty on Environmental Protection 1998 …. 5.44
Protocol on Energy Efficiency and Related Environmental Aspects 1998 ….
5.55
Regulation on the Law Applicable to Non-Contractual Obligations (Rome
II) 2007 …. 8.7, 8.46

Revised General Act for the Pacific Settlement of International Disputes

1950 …. 12.5
Rio Declaration on Environment and Development …. 5.5, 5.13, 5.14, 5.15,
5.18, 5.21, 5.23, 5.24, 5.54, 5.60
Rome Convention on the Law Applicable to Contractual Obligations (Rome
I) 1991 …. 8.5
Art 2 …. 8.7
 Art 3 …. 8.5
Art 4 …. 8.5

Art 6 …. 8.7, 8.46

Art 8 …. 8.7
Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations 1964 …. 8.43

Statute of the International Court of Justice 1945 (ICJ) …. 12.5

Art 1 …. 12.17
Art 2 …. 12.20
Art 3 …. 12.19
Arts 4–8 …. 12.19
Art 9 …. 12.19
Arts 10–12 …. 12.19
Art 13 …. 12.19
Arts 16–18 …. 12.20

Art 21 …. 7.10
Art 24 …. 12.20
Arts 26–29 …. 12.21
Art 31 …. 12.21
Art 34(1) …. 12.23
Art 34(2) …. 12.23
 Art 36 …. 1.13
Art 36(1) …. 12.25

Art 36(2) …. 12.25

Art 36(5) …. 12.25
Art 36(6) …. 12.22
Art 37 …. 12.25

Art 38 …. 7.10
Art 38(1) …. 2.2, 12.18
Art 38(1)(b) …. 2.40
Art 38(1)(d) …. 2.57, 2.62, 12.27
Art 59 …. 2.58, 12.27
Art 65 …. 12.29
Art 66 …. 12.32
Statute of the International Criminal Court 1998 (ICC) …. 7.14, 7.19, 7.53,
12.34

Art 6 …. 7.24
Art 7 …. 7.18
Art 8 …. 7.21
Art 8bis(1) …. 7.30
Art 8bis(2) …. 7.31
Art 12 …. 7.48
 Art 17 …. 7.48, 12.34
Art 25 …. 7.15

Art 26 …. 7.17
Art 27 …. 7.49
Art 30 …. 7.16
Arts 31–33 …. 7.17

Art 78 …. 7.34
Art 80 …. 7.54
Arts 86ff …. 7.55
Art 103 …. 7.53
Art 109 …. 7.53
Statute of the International Criminal Tribunal for the Former Yugoslavia
(ICTY) 2009 …. 7.18, 7.53
Arts 1–8 …. 7.46
Art 3 …. 7.21

Art 5 …. 7.18
Art 7(2) …. 7.49
Art 24 …. 7.33
Art 27 …. 7.53
Art 28 …. 7.53
Art 29 …. 7.55
Statute of the International Criminal Tribunal for Rwanda 1994 (ICTR) ….
7.19, 7.53

Arts 1–8 …. 7.47

Art 2 …. 7.24
Art 3 …. 7.18
Art 4 …. 7.21

Art 6(2) …. 7.49

Art 23 …. 7.33
Art 26 …. 7.53
Art 27 …. 7.53
Art 28 …. 7.55
Statute of the Special Court for Sierra Leone
Art 6(2) …. 7.79
Stockholm Declaration on the Human Environment 1972 …. 5.2, 5.3, 5.5,
5.11, 5.60, 5.67

Treaty on European Union 1993 (TEU) …. 8.4

Treaty for the Peace of Westphalia 1648 …. 1.31
Treaty on the Functioning of the European Union 2009 (TFEU) …. 8.4
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies
1966
Art IX …. 5.45
TRIPS Agreement
Art 2 …. 8.43

Art 3 …. 8.42
Art 4 …. 8.42
Art 9 …. 8.43
Art 11 …. 8.42

Art 13 …. 8.42
Art 35 …. 8.43
Art 73 …. 8.42
Understanding on Rules and Procedures Governing the Settlement of
Disputes of the WTO 1994 …. 8.23, 8.24
Arts 4, 5, 6, 8, 17, 19, 22, 25 …. 8.57
United Nations Commission on International Trade Law (UNCITRAL)
Arbitration Rules (2013) …. 8.56
United Nations Framework Convention on Climate Change 1994
(UNFCCC) …. 5.5, 5.38, 5.39, 5.53
Art 14 …. 5.66
Art 14(1) …. 12.39
Universal Copyright Convention 1955 …. 8.44
Universal Declaration of Human Rights 1948 …. 2.72, 6.19–6.25
UN Transitional Administration in East Timor Regulation 2000/15 on the
Establishment of the East Timor Panels
 s 15 …. 7.79
Vienna Convention on Consular Relations 1976 …. 3.21

Vienna Convention on the Law of Treaties 1974 (VCLT) …. 2.5, 2.7, 2.9,
2.31
Art 1 …. 2.7, 2.8
Art 2 …. 2.4

Art 3 …. 2.7
Art 9 …. 2.12
Arts 11–17 …. 1.13
Art 11 …. 2.13, 2.17
Art 14 …. 2.18
Art 14(2) …. 2.20
Art 15 …. 2.19
Art 18 …. 2.13
Art 19 …. 2.22

Art 20 …. 2.23
Art 20(5) …. 2.25
Art 21 …. 2.21, 2.24
Art 24 …. 2.14
Art 31(1) …. 2.27
Art 31(2) …. 2.27
Art 31(3)(a) …. 2.27
Art 31(3)(b) …. 2.27

Art 31(3)(c) …. 8.10

Art 31(4) …. 2.27
Art 32 …. 2.28
Art 34 …. 1.13, 2.29

Art 35 …. 2.29
Art 36 …. 2.29
Art 38 …. 2.30
Art 46(1) …. 3.14
Art 47 …. 2.32
Art 48 …. 2.32
Arts 49–52 …. 2.32
Art 53 …. 2.33
Art 54 …. 2.34

Art 54(a) …. 2.34

Art 54(b) …. 2.34
Art 59 …. 2.34
Art 60 …. 2.35
Art 61 …. 2.36
Art 62 …. 2.37
 Art 64 …. 2.33
Art 80 …. 2.15

Vienna Convention on the Protection of the Ozone Layer 1988 …. 5.37

Preamble …. 5.16
Vienna Convention on Succession of States in respect of Treaties 1978
Art 16 …. 1.13

Webster-Ashburton Treaty 1842 …. 11.11

World Heritage Convention 1975 …. 5.52

Africa
African Charter on Human and Peoples’ Rights 1986 …. 5.67, 6.51

United Arab Emirates

Arab Charter on Human Rights 2008 …. 6.51

United Kingdom
European Communities Act 1952 …. 3.26

Extradition Act 1989 …. 3.38

United States
Alien Tort Statute 1789 …. 3.40
National Environmental Policy Act 1969 …. 5.21
United States Constitution
Art VI …. 3.20
 Table of Abbreviations

Aarhus Convention – Convention on Access to Information, Public

Participation in Decision-making and Access to Justice in Environmental
Matters (adopted and opened for signature 25 June 1998, 2161 UNTS 447,
entered into force 30 October 2001)
ATC – Agreement on Textiles and Clothing
ATS – The Antarctic Treaty System
ATS – Australian Treaty Series
Australia-China BIT – Agreement between the Government of Australia
and the Government of the People’s Republic of China on the Reciprocal
Encouragement and Protection of Investments (adopted and opened for
signature 11 July 1988, 1514 UNTS 65, entered into force 11 July 1988)
Basel Convention – The Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal
(adopted 22 March 1989, opened for signature 23 March 1989, 1673
UNTS 126, entered into force 5 May 1992)
BIS – Bank for International Settlements
BIT – Bilateral Investment Treaty
Brussels I – EC Regulation 44/2001 of 22 December 2000 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and
Commercial Matters, Official Journal L 12 (16 January 2001)
CAT (or Convention Against Torture) – Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (opened
for signature 10 December 1984, 1465 UNTS 85, entered into force 26
June 1987)
CBD – Convention on Biological Diversity (opened for signature 5 June
1992, 1760 UNTS 79, entered into force 29 December 1993)
CCAMLR – Convention for the Conservation of Antarctic Marine and
Living Resources (adopted 20 May 1980, opened for signature 1 August
1980, 1329 UNTS 48, entered into force 7 April 1982)
CCAS – Convention for the Conservation of Antarctic Seals (adopted and
opened for signature 1 June 1972, 1080 UNTS 176, entered into force 11
March 1978)
CED – International Convention for the Protection of All Persons from
Enforced Disappearance (adopted 20 December 2006, opened for signature
6 February 2007, 2715 UNTS 3, entered into force 23 December 2010)
CEDAW – Convention on the Elimination of All Forms of
Discrimination Against Women (opened for signature 18 December 1979,
1249 UNTS 13, entered into force 3 September 1981)
CFCs – Chlorofluorocarbon gases
CITES – Convention on International Trade in Endangered Species of
Wild Fauna and Flora (adopted and opened for signature 3 March 1973,
993 UNTS 243, entered into force 1 July 1975)
CMW – International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (opened for signature 18
December 1990, 2220 UNTS 3, entered into force 1 July 2003)
COPs – Conference of the (States) Parties
CRAMRA – Convention on the Regulation of Antarctic Mineral Resource
Activities (adopted 2 June 1988, opened for signature 25 November 1988,
27 ILM 859, not yet in force)
CRC – Convention on the Rights of the Child (opened for signature 20
November 1989, 1577 UNTS 3, entered into force 2 September 1990)
CRPD – Convention on the Rights of Persons with Disabilities (opened
for signature 13 December 2006, 2515 UNTS 3, entered into force 3 May
2008)
DAPTHHA – Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities, UN Doc A/56/10 (2001)
DPALTHAHA – Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm Arising out of Hazardous Activities, UN Doc
A/61/10 (2006)
DSU – Understanding on Rules and Procedures Governing the Settlement
of Disputes (of the World Trade Organization) (opened for signature 15
April 1994, 1869 UNTS 401, entered into force 1 January 1995)
ECOSOC – (United Nations) Economic and Social Council
ECT – Energy Charter Treaty (adopted and opened for signature 17
December 1994, 2080 UNTS 95, entered into force 16 April 1998)
EEZ – Exclusive Economic Zone
EIA – Environmental Impact Assessment
EMU – (European) Economic and Monetary Union
ENMOD – United Nations Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques (or
Environmental Modification Convention) (adopted 10 December 1976,
opened for signature 18 May 1977, 1108 UNTS 151, entered into force 5
October 1978)
Espoo Convention – Convention on Environmental Impact Assessment in
a Transboundary Context (adopted and opened for signature 25 February
1991, 1989 UNTS 309, entered into force 10 September 1997)
FAO – Food and Agriculture Organization (of the United Nations)
GATS – General Agreement on Trade in Services (concluded 15 April
1994, 1869 UNTS 183, entered into force 1 January 1995)
GATT – General Agreement on Tariffs and Trade (adopted and opened
for signature 30 October 1947, 55 UNTS 194, entered into force 1 January
1948)
Genocide Convention – Convention on the Prevention and Punishment of
the Crime of Genocide (adopted and opened for signature 9 December
1948, 78 UNTS 277, entered into force 12 January 1951).
GHG – Greenhouse Gas
ICA – International Commodity Agreement
ICC – International Criminal Court
ICC (or Rome) Statute – Statute of the International Criminal Court
(opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1
July 2002)
ICCPR – International Covenant on Civil and Political Rights (opened for
signature 16 December 1966, 999 UNTS 171, entered into force 23 March
1976)
ICERD – International Convention on the Elimination of All Forms of
Racial Discrimination (adopted and opened for signature 21 December
1965, 660 UNTS 195, entered into force 4 January 1969)
ICESCR – International Covenant on Economic, Social and Cultural
Rights (opened for signature 16 December 1966, 993 UNTS 3, entered
into force 3 January 1976)
ICJ – International Court of Justice
ICJ Statute – Statute of the International Court of Justice, annexed to the
Charter of the United Nations [1945] ATS 1
ICN – International Competition Network
ICRC – International Committee of the Red Cross
ICSID – International Centre for Settlement of Investment Disputes
ICTR (or Rwanda Tribunal) – International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed in the Territory
of Rwanda and Rwandan Citizens Responsible for Genocide and Other
Such Violations Committed in the Territory of Neighbouring States,
between 1 January 1994 and 31 December 1994 (established by Security
Council Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955
(8 November 1994))
ICTY (or Yugoslav Tribunal) – International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 (established by Security Council Res 827, UN SCOR, 48th sess,
3217th mtg, UN Doc S/RES/827 (25 May 1993))
IDA – International Development Association (of the International Bank
for Reconstruction and Development (IBRD or World Bank))
IEcL – International Economic Law
IEL – International Environmental Law
IFC – International Finance Corporation (of the World Bank Group)
ILC – International Law Commission
IMF – International Monetary Fund
IMT Charter – Charter of the International Military Tribunal, Annex to
the Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis (the Nuremberg or London Charter)
(adopted and entered into force 8 August 1945, 82 UNTS 279)
IMTFE Charter – Charter of the International Military Tribunal for the
Far East (adopted and entered into force 19 January 1946, TIAS No 1587)
ISA – International Seabed Authority
ITLOS – International Tribunal for the Law of the Sea
ITTO – International Tropical Timber Organization
JARPA II – Second Phase of the Japanese Whale Research Program under
Special Permit in the Antarctic
LRTAP Convention – Convention on Long-Range Transboundary Air
Pollution (adopted and opened for signature 13 November 1979, 1302
UNTS 217, entered into force 16 March 1983)
Marrakesh Agreement – Agreement Establishing the World Trade
Organization (adopted and opened for signature 15 April 1994, 1867
UNTS 3, entered into force 1 January 1995)
MEA – Multilateral Environmental Agreement
MFN – Most Favoured Nation (status)
MIGA – Multilateral Investment Guarantee Agency (of the World Bank
Group)
Montreal Convention – Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation (adopted and opened for signature 23
September 1971, 974 UNTS 177, entered into force 26 January 1973)
NAFTA – North American Free Trade Agreement (adopted and opened
for signature 17 December 1992, (1993) 32 ILM 289 and 605, entered into
force 1 January 1994)
NGO – Non-Governmental Organisation
NIEO – New International Economic Order
Nuremberg Principles – United Nations (UN) General Assembly
Resolution 95(I) (1st Sess, 55th plen mtg, 11 December 1946), Affirmation
of the Principles of International Law recognized by the Charter of the
Nuremberg Tribunal
ODR – Online Dispute Resolution
OECD – Organization for Economic Co-operation and Development
OHCHR – (United Nations) Office of the High Commissioner for
Human Rights
OSPAR Convention – Convention for the Protection of the Marine
Environment of the North-East Atlantic (opened for signature 22
September 1992, 2354 UNTS 67, entered into force 25 March 1998)
Outer Space Treaty – Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies (adopted 19 December 1966, opened for signature
27 January 1967, 610 UNTS 205, entered into force 10 October 1967)
PCIJ – Permanent Court of International Justice
Rome (or ICC) Statute – Statute of the International Criminal Court
(opened for signature 17 July 1998, 2187 UNTS 90, entered into force 1
July 2002)
Rome I – Convention on the Law Applicable to Contractual Obligations
(adopted and opened for signature 19 June 1980, Official Journal L 266 (9
October 1980), entered into force 1 April 1991 and subsequently developed
into European Community Regulation 593/2008, Official Journal L 177 (4
July 2008))
Rome II – European Community Regulation 864/2007 on the Law
Applicable to Non-Contractual Obligations, Official Journal L 199 (31 July
2007), entered into force 20 August 2007 and applicable from 11 January
2009
SCM – Subsidies and Countervailing Measures
SPS – Sanitary and Phytosanitary Measures
TBT – Technical Barriers to Trade
TEU – Treaty on European Union or Maastricht Treaty (adopted and
opened for signature 7 February 1992, Official Journal C 191 (29 July
1992), entered into force 1 November 1993)
TFEU – Treaty on the Functioning of the European Union (or Treaty of
Rome) (adopted and opened for signature 13 December 2007, Official
Journal C 326 (26 October 2012), entered into force 1 December 2009) (by
means of the Lisbon Treaty, Official Journal C 306 (17 December 2007),
entered into force 1 December 2009)
TIAS – Treaties and Other International Acts Series (US)
TNC – Transnational Corporation
TPRM – Trade Policy Review Mechanism (of the World Trade
Organization)
TRIM – Trade-Related Investment Measure
TRIPs – Trade-Related Aspects of Intellectual Property Rights
UDHR – Universal Declaration of Human Rights (United Nations
General Assembly Res 217A (III), UN GAOR 3rd sess, 183rd plen mtg,
UN Doc A/810 at 71 (10 December 1948))
UK – United Kingdom
UN – United Nations
UN Charter – Charter of the United Nations (opened for signature 26 June
1945, 1 UNTS XVI, entered into force 24 October 1945)
UNCED – United Nations Conference on Environment and Development
(or Rio or Earth Summit or Rio Conference) Rio de Janeiro, Brazil, 1992
UNCHE – United Nations Conference on the Human Environment
UNCHR – United Nations Commission on Human Rights
UNCITRAL – United Nations Commission on International Trade Law
UNCLOS – United Nations Convention on the Law of the Sea (opened
for signature 10 December 1982, 1833 UNTS 3, entered into force 16
November 1994)
UNCTAD – United Nations Conference on Trade and Development
UNDRIP – United Nations Declaration on the Rights of Indigenous
Peoples, UN General Assembly Res 61/295, UN GAOR 61st sess, 107th
plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007)
UNECE – United Nations Economic Commission for Europe
UNEP – United Nations Environment Programme
UNFCCC – United Nations Framework Convention on Climate Change
(opened for signature 9 May 1992, 1771 UNTS 107, entered into force 21
March 1994)
UNIDROIT – International Institute for the Unification of Private Law
UNPROFOR – United Nations Protection Force (for Croatia and Bosnia
and Herzegovina, 1992-1995)
UNTS – United Nations Treaty Series
US – United States of America
VCLT – Vienna Convention on the Law of Treaties (opened for signature
23 May 1969, 1155 UNTS 331, entered into force 27 January 1980)
Vienna Convention – Convention for the Protection of the Ozone Layer
(adopted and opened for signature 22 March 1985, 1513 UNTS 323,
entered into force 22 September 1988)
Washington Convention – Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (opened for
signature 18 March 1965, 575 UNTS 159, entered into force 14 October
1966)
Watercourses Convention – United Nations Convention on the Law of the
Non-Navigational Uses of International Watercourses (adopted and opened
for signature 21 May 1997, (1997) 36 ILM 700, entered into force 17
August 2014)
WB – World Bank (or International Bank for Reconstruction and
Development (IBRD))
WTO – World Trade Organization
 Contents

Preface

Table of Cases

Table of Selected Instruments

Table of Abbreviations

CHAPTER 1
The Nature and Theory of International Law

CHAPTER 2
Sources of International Law

CHAPTER 3
The Relationship between International and National Law

CHAPTER 4
International Legal Personality

CHAPTER 5
International Environmental Law

CHAPTER 6
International Human Rights Law

CHAPTER 7
International Humanitarian Law and International Criminal Law
CHAPTER 8
International Economic Law

CHAPTER 9
The Law of the Sea

CHAPTER 10
State Responsibility

CHAPTER 11
Use of Force

CHAPTER 12
International Dispute Settlement

Index
 [page 1]

CHAPTER 1

The Nature and Theory of

International Law
 [page 2]

INTRODUCTION
1.1 This chapter defines international law, considers its binding quality as
‘law’, briefly traces its historical development and identifies the nature
of the international legal system. It reviews various international legal
theories by identifying the leading exponents and classic or key
references. The methodology of international law — that is, the
techniques employed by the discipline — is also considered. The
formation of international law is explored by reference to law-making
processes and principal actors. Issues of compliance (why States obey
international law), enforcement, the rule of law within the
international community, and the interaction between international
and national law are reviewed. The chapter also assesses international
law’s effectiveness.

DEFINITION
1.2 Classical international law is a State-centric system. International law
is typically defined as those rules, principles and norms governing the
relations between sovereign, territorial States and State-constructs (ie,
international organisations). International law is created by States (see
Chapter 2) and is underpinned by their consent.
 International law is founded upon the concept of sovereign equality.
1.3 The United Nations (UN) system, for example, is based on the
principle of the sovereign equality of all its Members: Charter of the
United Nations (opened for signature 26 June 1945, 1 UNTS XVI,
entered into force 24 October 1945) (UN Charter) Art 2(1).

1.4 The subject of international law is classically the State. Individuals,

corporations, non-governmental organisations and others (non-State
actors) are the objects of international law.

1.5 ‘Public’ international law — the focus of this book — is typically

differentiated from ‘private’ international law (or the conflicts of law).
The latter addresses private matters (eg, contracts, marriage,
international commercial transactions, foreign investment, the
movement of goods or workers) between individuals and corporations
that have a transnational dimension. Claims involving a foreign
element may require considering choice of law principles in order to
determine jurisdictional issues where two or more different legal
systems potentially apply. In other words, private international law
addresses matters of private interest and not public power
considerations (such as the interactions between public institutions
and private persons, or the law making or law enforcing functions of
the State).

[page 3]
1.6 Contemporary international law is influenced by decision-makers
within States, international organisations and non-State actors such as
special interest groups, banks and other leading social institutions: M
Koskenniemi, ‘The Fate of Public International Law: Between
Technique and Politics’ (2007) 70 Modern Law Review 1 at 29–30.
Non-State actors are attaining prominence within international
organisations and in treaty-making conferences. Because
‘international law’ is classically limited to the interaction between
States, the participation of non-State actors can be accommodated
within a proposed ‘transnational law’: P Jessup, Transnational Law,
Yale University Press, New Haven, 1956, pp 15–16.

1.7 International law develops and evolves in response to external impacts.

For example, globalisation involves autonomous transnational actors
with negotiation power, national regulation unable to address global
problems, and changing social and political integration: S Hobe,
‘Globalisation: Challenge to the Nation State and to International
Law’ in M Likosky (ed), Transnational Legal Processes: Globalisation
and Power Disparities, Butterworths, London, 2002, at 378 and 379.
This means that States must acknowledge the roles and
responsibilities of transnational corporations and act cooperatively
rather than unilaterally. Science also influences international legal
developments with respect to, for example, outer space, the deep
seabed and biodiversity. The end of the Cold War finished
confrontational bipolarism, encouraged fluid political change and
 provided cooperative opportunities through a reinvigorated Security
Council: L Henkin, International Law: Politics and Values, Kluwer
Law International, The Hague, 1995, pp 280–3. This suggests that
more community-orientated international law can emerge, such as
international environmental and human rights law.

NATURE OF THE INTERNATIONAL LEGAL SYSTEM

1.8 The international legal system is a decentralised, horizontal order
composed of a plurality of independent States. The national legal
order, by contrast, is hierarchical and vertical. In the international
system, there is no higher authority than the State. Unlike those
features common to national legal systems, there is no legislature and
no police force or military to undertake enforcement. There is also no
compulsory dispute settlement process: see Chapter 12. For these
reasons, the international system is considered ‘underdeveloped’.

1.9 Modern international law originated in Europe during the sixteenth

and seventeenth centuries. It largely addressed only diplomatic
practice between States. The Congress of Vienna (1814–1815) gave
rise to a Eurocentric notion of international law. International law can
be criticised for reflecting European,

[page 4]

Christian values. As international law evolves to reflect the

 contemporary interests of States, however, this criticism will become
less valid.

1.10 International law has matured to become specialised, complex and

far-reaching. The proliferation of dispute settlement mechanisms,
growth of international institutions and diversity of multilateral
treaties means that contemporary international law now addresses a
broad range of issues.

COMPLIANCE
1.11 The issue of compliance considers why States follow international
law. It is in the vested self-interest of States to honour their
international obligations because of:

Self-preservation: An orderly, fair and stable international

system, as opposed to anarchy, is in the interest of all States.
Reciprocity: Benefits, such as trade and diplomatic immunity, are
conferred to mutual advantage. States with reputations for
reneging on their commercial obligations will find it difficult
over the long term to conclude commercial treaties.
Interconnectedness: Inter-State relationships are intertwined.
Effectiveness: Certain international issues, such as eliminating
poverty, responding to natural disasters, and ensuring peace,
security or human welfare, are best addressed through collective
action.
 Necessity: An effective international system (eg, for aviation,
postage) requires cross-border co-operation. International law
performs a useful function by enabling States to carry out daily
intercourse along predictable lines.

Consent
1.12 States voluntarily adopt principles, norms and rules that limit their
freedom of action. This arises from the international law-making
process and is evidenced by the sources of international law. The
theory of consensualism is that the will or consent of States is the
basis for international law: O Schachter, International Law in Theory
and Practice, Martinus Nijhoff Publishers, Dordrecht, 1991, pp 9–11.
States therefore obey international law because they have first
consented to it.

1.13 Consent is a fundamental principle of international law. For example:

States are only bound by treaties to which they have given their
consent: Vienna Convention on the Law of Treaties (opened for
signature 23 May 1969, 1155 UNTS 331, entered into force 27
January 1980) (VCLT) Arts 11–17. See 2.17–2.20.

[page 5]

Treaties do not create rights or obligations for third States

without their consent: VCLT Art 34. See 2.29.
 A State can ‘opt out’ of the application of a customary
international legal rule provided it has persistently objected to
that rule during its development: J Charney, ‘The Persistent
Objector Rule and the Development of Customary International
Law’ (1985) 56(1) British Yearbook of International Law 1. See
2.53.
States are not subject to the jurisdiction of the International
Court of Justice (ICJ) unless they have given their consent:
Statute of the International Court of Justice [1945] ATS 1 (ICJ
Statute) Art 36. See Chapter 12.
Newly-independent States are eager to enter the international
community and obtain its benefits. They might argue that they
are not bound by laws for which they did not have the
opportunity to participate in their formation, and that they
therefore enter the international legal system with a ‘clean slate’.
The ‘clean slate’ doctrine posits that a successor State generally
does not inherit the prior rights or obligations of its predecessor:
see, for example, Vienna Convention on the Succession of States
in respect of Treaties (opened for signature 23 August 1978,
1946 UNTS 3, entered into force 6 November 1996) Art 16.
However, to avoid disrupting the international system, existing
territorial boundary treaties are one exception to the ‘clean slate’
doctrine.

Theories of compliance
1.14 Various theories are suggested on why States obey international law,
such as:

International legal rules have an inherent capacity to pressure

States into conforming to it (a ‘compliance pull’): A Guzman, ‘A
Compliance-Based Theory of International Law’ (2002) 90(6)
California Law Review 2.
International legal rules are formulated to reflect identical or
complementary interests.
States continuously, honestly and regularly observe international
law, even under adverse conditions or where inconvenient (the
‘law habit’): P Jessup, A Modern Law of Nations, The Macmillan
Company, New York, 1948, pp 6–8.
International law has normative influence such that adherence is
the morally correct or legitimate thing to do.
International rules are the products of legitimate (that is,
transparent, fair and inclusive) processes: T Franck, Fairness in
International Law and Institutions, Clarendon Press, Oxford,
1995.
International law reflects and becomes part of a State’s ‘internal
value set’: H Koh, ‘Why do Nations Obey International Law?’
(1996–97) 106 Yale Law Journal 2599.

[page 6]
ENFORCEMENT MECHANISMS
1.15 The threat of imposing coercive measures can compel desired
behaviour and deter legally wrong conduct: H Kelsen, Principles of
International Law, Rinehart and Company Inc, New York, 1952, p 5.
By this standard, international law might be considered deficient
given the absence of any centralised authority. However, there are
several different enforcement mechanisms within the international
system (see 1.16–1.20 below).

1.16 International law is self-enforcing. Voluntary compliance generally

prevents the need for enforcement arising. Only in a minority of
important and spectacular cases (for example, the use of military force
in 1990 to ensure Iraq respected the territorial integrity of Kuwait) do
considerations of power rather than law determine compliance: H
Morgenthau, Politics Among Nations: The Struggle for Power and Peace,
6th ed, McGraw-Hill, New York, 1985, pp 312–13.

1.17 Sanctions for non-compliance are organised through the UN: UN

Charter Arts 41 and 42. An ‘international law of cooperation’ posits
that States participate in activities through international organisations
that further their common interests. The threat of expulsion or denial
of benefits induces voluntary compliance: W Friedmann, The
Changing Structure of International Law, Columbia University Press,
New York, 1964, pp 88, 91.

1.18 Enforcement is effected by adopting measures of self-help. The

 international legal order leaves it to the injured State to assume the
enforcement function. Countermeasures are acts which are contrary to
international law but, provided they do not involve the use of force,
are rendered lawful by way of response to a prior illegal act by another
State, and are intended to induce compliance by the wrongdoing
State. Acts of retorsion are unfriendly but lawful acts, and are adopted
in response to unlawful acts or other prior acts of retorsion. Reprisals
are actions that do not conform to international law. On the use of
force, see Chapter 11.

1.19 International law is enforced through international and national

courts and tribunals where judgments and decisions are backed by
State power. The ICJ is an example on the international plane. The
effectiveness of mechanisms at the national level depends on the
extent to which international law is a part of national law: see
Chapters 2 and 12.

1.20 Non-State actors pressure States to comply with international law by,
for example, providing information to international supervisory
bodies. In the human rights field, see Chapter 6. In the international
trade and investment space, see Chapter 8.

[page 7]

Rule of law in the international community

 A well-functioning legal system operates unnoticed and avoids
1.21 disputes. International law is honoured more in the observance than
the breach. However, extraordinary and more important national
interests may persuade States to violate international law.
Controversial breaches attract publicity: P Jessup, A Modern Law of
Nations, The Macmillan Company, New York, 1948, pp 6–8.
Violations can also occasion undesirable consequences.

1.22 International law can be differently interpreted or contestably applied

to the facts of a case. However, observed deviations from a rule (such
as the prohibition on the use of force or non-intervention in the
domestic affairs of States) confirm rather than weaken the existence of
that rule: ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 at 98.

1.23 The international community values the rule of law over power
imbalances as governing international affairs. It is essential for
peaceful co-existence and cooperation among States. Recognising the
need for universal adherence to and implementation of the rule of law
at both the national and international levels, States have reaffirmed
their commitment to the purposes and principles of the UN Charter
and international law and to an international order based on the rule
of law and international law: World Summit Outcome, GA Res 60/1,
UN GAOR, 60th sess, UN Doc A/RES/60/1 (16 September 2005)
at [134].
1.24 Good international citizenship requires respect for the rule of law.

Example

GOOD CITIZENSHIP AND THE RULE OF LAW

I agree with former US President, Theodore Roosevelt, when he stated that

the first requisite for good citizenship is to be able and willing to pull one’s
own weight. But let me take this suggestion one step further and say that
good citizenship also means anticipating the needs of our rapidly changing
world. It means asserting responsibility for our own times and not simply
waiting to be invited to engage. That’s what Australia is committed to. We will
continue to engage proactively with the international community. And
demonstrate our respect for and commitment to upholding the international
rule of law.

R McClelland (then Attorney-General), Speech to the Australian and New Zealand

Society of International Law, 26 June 2008.

[page 8]

INTERACTION BETWEEN THE INTERNATIONAL AND

NATIONAL LEGAL SYSTEMS
1.25 International law can encroach upon national legal systems and
challenge established concepts including parliamentary supremacy.
However, international law is a legitimate source for consideration by
national courts: M Kirby, ‘The Growing Impact of International Law
on Australian Constitutional Values’ (2008) 27 University of Tasmania
Law Review 1 at 3.

1.26 It might be perceived that national sovereignty is being undermined

 by the expansion of international law. International law may have
little connection with distinctive Australian values or interests: H
Charlesworth, M Chiam, D Hovell and G Williams, No Country is an
Island: Australia and International Law, UNSW Press, Sydney, 2006.

1.27 National governments change, engagement with international

organisations varies, and the events of the day can be beyond the
control of any one national government: D Rothwell and K
Rubenstein, ‘Introduction: Australia and International Law during
the Howard Years’ (2008) 27 Australian Yearbook of International Law
1, p 10. However, political activity by a government within a State
does not necessarily affect the relationship between the international
and national legal systems.

1.28 The nature of the interaction between international law and

Australia’s legal system is inescapable, complex and evolving: R
French, ‘Oil and Water: International Law and Domestic Law in
Australia’, The Brennan Lecture, Bond University, 26 June 2009, p 3.

THEORIES AND METHODS OF INTERNATIONAL

LAW
1.29 International legal theory seeks to explain and analyse the content,
formation and effectiveness of international law. Theorists also assess
the methodology or techniques of international law.

Natural law
1.30 Natural law posits that rules reflect axiomatic truths, can be
determined by human reasoning, and are inherently obligatory
because they reflect a divine will. Francisco de Vitoria, for example,
considered the ‘just war’ concept of St Thomas Acquinas, which
proposed that war can be conducted by a legitimate authority for the
purposes of addressing evil. See J Finnis, Natural Law and Natural
Rights, 2nd ed, Oxford University Press, Oxford, 2011.

Classical theory
1.31 Hugo Grotius, in De Jure Belli ac Pacis Libri Tres (Three Books on the
Law of War and Peace, 1625) proposed that States and individuals
are governed by universal

[page 9]

principles of morality and divine justice. The arena of international

relations is governed by the jus gentium (the law of nations), which
reflects the will or consent of States. This includes the concept of
pacta sunt servanda (commitments are binding). Emmerich de Vattel,
in Le droit des gens (The Law of Nations, 1758) propounded the
practical application of legal principles such as sovereign equality. He
emphasised that international law included custom. The idea of a
territorial and independent State from the Grotian (or eclectic) school
is often considered to be a fundamental concept underpinning modern
 international law and was reflected in the Treaty for the Peace of
Westphalia (1648).

Positivism
1.32 Positivist international legal theory proposes that law is an objective,
ascertainable and rational scientific fact that is not based on religious
dogma, ethics or morality. International law is a unified system of
rules emanating from the will of States. Alberico Gentili, for example,
suggested in De Jure Belli Commentationes Tres (1589) that jus
voluntarium (positive law) was underpinned by consent. Legal sources,
particularly treaties and State practice, are important for this theory.
Positivists focus on the legal validity of rules and the distinction
between the law as it is (lex lata) and the law as it ought to be (lex
ferenda). Legal analysis has to have a textual, systemic or historical
basis. International law as ‘law’ consists of rules, principles and norms.
It is a command from a sovereign to persons in a state of subjection:
H Morgenthau, ‘Positivism, Functionalism and International Law’
(1940) 34 American Journal of International Law 260.

Critical legal theory

1.33 Critical legal theory questions the assumptions made by international
law. International law is not universal or objective. International law
wavers between justifying any behaviour (apologism) and being
incapable of legitimating all practices (utopianism): M Koskenniemi,
From Apology to Utopia: The Structure of International Legal Argument,
 Cambridge University Press, Cambridge, 2012. International law
reflects biased language, which emphasises particular political
structures and power imbalances, as reflected by the following
streams.

Feminist theory
1.34 In this discourse, legal language and international practice is
patriarchal. International law reflects predominantly male concerns
and reinforces systems of male power to the exclusion of women: C
Chinkin, S Wright and H Charlesworth, ‘Feminist Approaches to
International Law: Reflections from Another Century’ in D Buss and
A Manji (eds), International Law: Modern Feminist Approaches,

[page 10]

Hart Publishing, Oxford, 2005. Women are moreover presumed to be

vulnerable victims requiring special treatment or protection. Public-
private distinctions found within international law are challenged, as
is the gender divide within international institutions, workplace
practices and approaches which are not accommodating to women.
Feminist legal theorists promote the inclusion of women into
positions of influence in policy and decision-making, as well as
broader equality and justice.

Lesbian, gay, bisexual, and transgender/transsexual (LGBT)

theory
1.35 This approach seeks to move away from equality concepts towards
recognition for sexual minorities within a cultural setting. LGBT
theory focuses on sexual orientation, gender identity and the
recognition of LGBT rights with respect to, for example, workplace
discrimination, family and health: N Levit, ‘A Different Kind of
Sameness: Beyond Formal Equality and Antisubordination Principles
in Gay Legal Theory and Constitutional Doctrine’ (2000) 61 Ohio
State Law Journal 867.

Third World approaches to international law

1.36 The ‘Third World’ refers to peoples with the shared experience of
underdevelopment, marginalisation, exploitation and economic
subjugation: A Anghie, B Chimni, K Mickelson and O Okafor (eds),
The Third World and International Order: Law, Politics and
Globalization, Martinus Nijhoff, Leiden, 2003. Concerns include:

economic solidarity (eg, Declaration for the Establishment of a

New International Economic Order, GA Res 3201, UNGAOR
29th sess, UN Doc A/RES/3201 (1 May 1974);
anti-colonialism and decolonisation (eg, Declaration on the
Granting of Independence to Colonial Countries and Peoples,
GA Res 1514 (XV), UNGAOR 15th sess, UN Doc
A/RES/1514 (14 December 1960);
anti-racism;
 the use of force by national liberation movements in the exercise
of the inherent right of peoples to self-determination. On the
use of force and self-determination, see Chapter 11.

Interdisciplinary approaches
1.37 Interdisciplinary approaches draw upon other academic disciplines in
an effort to reconceptualise international law. Relevant disciplines
include the following fields:

International relations
1.38 Materials and insights can be derived from international relations
theory: A Slaughter, A Tulumello and S Wood, ‘International Law
and International

[page 11]

Relations Theory: A New Generation of Interdisciplinary

Scholarship’ (1998) 92 American Journal of International Law 367. The
principal schools of thought are outlined in 1.39–1.42 below.

1.39 Realism: The international system is anarchic and there is no authority

above the autonomous State. States seek to maximise power to
preserve their territory and existence and subordinate weaker States.
They cooperate because of self-interest rather than normative
commitment. International law is breached when advantageous to do
 so. International law is also self-enforced, either through reciprocity
to deter violations or measures of self-help (such as countermeasures
or retaliatory sanctions): J Morrow, ‘Laws of War, Common
Conjectures, and Legal Systems in International Politics’ (2002) 31
Journal of Legal Studies 41.

1.40 Liberalism: Liberalism considers the effects of liberal norms in

constraining or moderating State behaviour to achieve lasting peace.
Democratic States having representative governments will accept and
observe international law. In this paradigm, national attitudes to
international law are influenced by the preferences of key domestic
constituencies such as individuals, civil society, organised business and
other pressure groups. International law accordingly emanates from
‘below’ the State rather than from ‘above’ it. Foreign policy is also
linked by transnational networks of cooperation. International law
works because of mutual trust and commitment to the rule of law: A
Slaughter, ‘International Law in a World of Liberal States’ (1995) 6
European Journal of International Law 532.

1.41 Institutionalism: This school emphasises the position and influence of

international organisations on international law.

1.42 Constructivism: This approach suggests that international relations are

influenced by persuasive ideas, collective values, culture and social
identities.
Economics
1.43 Economic theorists consider, for example, rational choice theory,
which analyses how individuals make decisions about their conduct by
comparing the costs and benefits of different courses of action. States
are presumed to behave so as to maximise their preferences (including
wealth) within both well-functioning (competitive) and imperfect
markets. The efficiency of international law is evaluated through
various techniques including price theory (identifying transaction
costs), game theory and public choice theory. Economic theory offers
empiricism to international law and an economic rationale for rules.

[page 12]

Additional theories and methods

International legal process
1.44 Instead of analysing the content of international law, this approach
emphasises how international law practically applies and functions.
International law is formally and informally used as a tool by foreign
policy decision-makers: A Chayes, T Ehrlich and A Lowenfeld,
International Legal Process, Little Brown & Co, New York, 1968.
International law lacks a normative, compulsive force but is a
justification, static constraint and organising device.

Policy-oriented perspectives
1.45 Proponents of this school seek to prescribe and apply policy so as to
 maintain international stability but pursue normative social objectives.
International law is a system in which authorities assert control to
create minimum world public order. It is the product of a decision-
making process undertaken by authorised actors who wield power: R
Higgins, Problems and Process: International Law and How We Use It,
Oxford University Press, Oxford, 1994. Rather than locating the
source of an international legal obligation or rule, adherents identify
claims, counterclaims, choices and decisions: M Reisman, ‘The View
from the New Haven School of International Law’ (1992) 86
American Society of International Law Proceedings 118.

Central case approach

1.46 This technique first constructs a hypothetical situation as a standard
to compare how an actual circumstance deviates from the ideal (or
central) case. This approach is flexible, dynamic and can
accommodate degrees of complexity. For example, patterns of human
rights abuses of varying severity can be explained by shifting social and
political situations: T Cheng, ‘The Central Case Approach to Human
Rights’ (2004) 13 Pacific Rim Law and Policy 257.

Socialism
1.47 A socialist or Soviet conception of international law emphasises State
sovereignty: G Tunkin, Theory of International Law, George Allen &
Unwin Ltd, London, 1974.
EFFECTIVENESS OF INTERNATIONAL LAW
1.48 International law is arguably ineffective because it:

lacks means for ensuring compliance with rules or enforcing

norms against States;
favours powerful over weak States; and

[page 13]

can be violated with impunity. Some States can chose to flout

international law and avoid consequences.

1.49 The effectiveness of international law depends on the political will of

States. International law offers States a convenient moral and legal
rhetoric to justify action. States only comply with international law
when in the national interest to do so: J Goldsmith and E Posner, The
Limits of International Law, Oxford University Press, Oxford, 2005, p
184. Alternatively, law is simply a tool. For example, ‘lawfare’ involves
using law as a method of warfare: C Dunlap, ‘Law and Military
Interventions: Preserving Humanitarian Values in 21st Century
Conflicts’, Carr Centre, Harvard University, 2001.

1.50 States may espouse a realistic, utilitarian and transactional attitude to

international law. In that case, international law is only as effective as
States intend it to be.
Example

INTERNATIONAL LAW AND PRAGMATISM

The Government’s approach to international law mirrors our pragmatic

approach to foreign and trade policy. International law is a means to an end;
not an end in itself. We look to international law to achieve outcomes and
serve both national and global interests.

A Downer (then Minister for Foreign Affairs), ‘International Law: Australian

Perspectives’ (2006) 25 Australian Yearbook of International Law 473–4.

1.51 International law can espouse lofty ideals. Too much might be
expected from it, particularly in extreme circumstances where law
cannot apply. For example, should international law prohibit using
nuclear weapons when the very existence of a State is threatened? Can
law effectively control the methods and means of warfare?

1.52 International law is arguably effective because:

States typically justify their actions by reference to international

law. In the event of breach they do not deny a rule’s validity but
instead pose arguments concerning the interpretation of that
rule and/or its application to the facts;
States treat international law as obligatory. The majority of
international law is generally observed by all States without
compulsion. ‘It is probably the case that almost all nations
observe almost all principles of international law and
 [page 14]

almost all of their obligations almost all of the time’: L Henkin,

How Nations Behave: Law and Foreign Policy, 2nd ed, Columbia
University Press, New York, 1979, p 47.

1.53 International law is dynamic and responds to changing State practice.

It also adapts to the contemporary needs of the international
community.

Example

THE RELEVANCE OF INTERNATIONAL LAW

International law must meet the global challenges of the day — if it fails to
do so, it risks sliding into irrelevance. International law provides an essential
framework for the pursuit of our foreign policy interests … And the value of
international law — to the publics of the world — will always be judged not by
its intrinsic righteousness, however great that may be, but by its
effectiveness in promoting international stability and dealing with
international crises.

A Downer (then Minister for Foreign Affairs), ‘International Law: Australian

Perspectives’ (2007) 26 Australian Yearbook of International Law 333.

INTERNATIONAL LAW AS ‘LAW’

1.54 It has been queried whether international law is ‘law’. Legal positivist
John Austin, in The Province of Jurisprudence Determined (1832)
concluded that international law was law ‘improperly so called’.
Positive law is a command backed by threats or sanctions from a
 sovereign, who Austin defined as an entity who received habitual
obedience from the members of an independent political society but
who in turn did not owe obedience to any other: J Austin, The
Province of Jurisprudence Determined, John Murray, London, 1832.
Positivism is discussed at 1.32. Law moreover loses its obligatory
character if a State has to first agree to submit to it.

1.55 The only essential conditions for a system of ‘law’ are the existence of
a political community and the recognition by its members of settled
rules binding upon them in that capacity (ubi societas ibi ius): J Brierly,
The Law of Nations, 6th ed, Clarendon Press, Oxford, 1963, pp 41–2,
68–76. International law’s authority derives from the fact that the
States making up international society recognise it is binding upon
them as members of that society, irrespective of their individual will:
G Fitzmaurice, ‘The Foundations of the Authority of International
Law and the Problem of Enforcement’ (1956) 19 Modern Law Review
1.

[page 15]

1.56 The authority of international law as ‘law’ is derived from States,

underpinned by State consent and reflected in the sources of
international law. Figure 1.1 identifies the actors, processes and other
elements relevant to creating and ascertaining international law: based
on Diagram 3 by B Cheng in G Schwarzenberger and E Brown, A
 Manual of International Law, 6th ed, Professional Books Ltd, Milton,
1976, p 22.

Figure 1.1 CREATING AND ASCERTAINING RULES OF

INTERNATIONAL LAW

Agents States
Sources Treaty Custom Legal principles
Scope Between the Universal, general or Near universal
parties particular
Components Consent State practice and opinio Recognition
juris
Material Treaty text State practice
Bodies Conference of Courts and Diplomatic Legislative Executive
the parties other dispute practice
settlement
mechanisms
 [page 17]

CHAPTER 2

Sources of International Law

 [page 18]

INTRODUCTION
2.1 As explained in Chapter 1, international law is the law which governs
the behaviour of States. States are not only the subjects of
international law, they are also its creators, as laws are established
either through agreements between States or by their behaviour
towards each other. As such, the foundation of all international law is
States’ consent, and this is a highly influential factor in the way
international law is created and develops. The sources of international
law are therefore different from the sources of domestic law, although
there are some similarities.

2.2 A starting point for the discussion of the sources of international law
is Art 38(1) of the Statute of the International Court of Justice [1945]
ATS 1 (ICJ Statute). The International Court of Justice (ICJ) is the
principal judicial organ of the United Nations (UN): Charter of the
United Nations (opened for signature 26 June 1945, 1 UNTS XVI,
entered into force 24 October 1945) (UN Charter) Art 92. It has the
power to hear disputes between States, which it decides by applying
international law.

Article 38(1) of the ICJ Statute reads as follows:

1. The Court, whose function is to decide in accordance with international law

 such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing

rules expressly recognized by the contesting States;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.

Article 38(1) therefore provides a useful list of the sources of

international law, these being:

international conventions or treaties;

customary international law;
general principles of law; and
judicial decisions and the writings of publicists.

This chapter explores each of these sources, along with the resolutions
of international organs such as the UN General Assembly and
Security Council, as well as a body of international law known as ‘soft
law’. This chapter concludes by outlining the development of
international law.

[page 19]

INTERNATIONAL CONVENTIONS OR TREATIES

2.3 Treaties are a primary source of international law and have been used
 by States for centuries as a means of reaching agreements and
establishing rules which govern their conduct towards each other.
Treaties are known by various names, including conventions,
covenants, pacts, agreements, protocols, accords and charters.
Although the use of treaties goes back many centuries, the Vienna
Convention on the Law of Treaties (opened for signature 23 May
1969, 1155 UNTS 331, entered into force 27 January 1980) (VCLT)
sets out the contemporary rules for the formation, interpretation,
application and termination of treaties.

What is a treaty?
2.4 Article 2 of the VCLT defines a ‘treaty’ as:

… 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.

2.5 It should be noted that the above definition is used to determine

whether the rules contained in the VCLT apply to a particular
instrument. It is possible to have a treaty which falls outside of this
definition. For example, a treaty which is oral rather than written, or
which is between entities other than States, would not fall under the
VCLT definition. In the event a treaty does not meet the VCLT
definition, the customary rules of treaty interpretation would apply.
However, as the VCLT was drafted to codify customary international
law (which will be discussed below at 2.40), there is in substance little
difference between the two sets of rules.
Elements of the VCLT definition
‘an international agreement’
2.6 Because treaties are agreements, they are formed through a process of
negotiation and adopted by consensus. These agreements can be
between two States (bilateral) or several States (multilateral). Some
treaties are intended to be universal, involving the participation of all
States.

‘between States’
2.7 The VCLT only applies to treaties between States: Art 1. It does not
therefore apply to agreements between a State and an international
organisation, corporation or individual. However, customary
international law will still recognise agreements between States and
other subjects of international law (such as the UN or European
Union), or between two or more subjects of international law, and
nothing in the VCLT affects the legality of such agreements: Art 3.
For example, the UN has entered into a

[page 20]

treaty with the United States of America (US) which allows for the
UN’s headquarters to be located in New York City: Agreement
Between the United Nations and the United States Regarding the
Headquarters of the United Nations, (signed 26 June 1947, 11 UNTS
147, entered into force 21 November 1947). For a greater discussion
 of who these other subjects of international law might be, see Chapter
4.

‘in written form’

2.8 Under the VCLT, treaties must be in writing, although they can be
comprised of more than one instrument. As noted above, it would be
possible to have an unwritten treaty governed under customary
international law rather than the VCLT: Art 1. In practice, however,
it is very rare for States to conclude oral treaties. The lengthy process
of treaty negotiation usually involves written exchanges or at least
written records of discussions between States, and States have become
accustomed to concluding treaties in written form.

‘whatever its particular designation’

2.9 The VCLT applies to any treaty which satisfies the definition,
regardless of how it is described. A written agreement between States
will therefore be considered a treaty even if it is not described as such
by the States involved.

Formation of treaties
2.10 The process of creating a treaty involves a number of steps and can
take many years to complete.

Figure 2.1 STEPS IN FORMATION OF A TREATY

Negotiation and drafting
2.11 As the creators of international law, States negotiate the terms of
treaties. This process can be lengthy, as each State works to secure
terms most favourable to its own interests. Sometimes a draft treaty
will be prepared by an international organisation, such as the
International Law Commission (ILC), and presented to States for
adoption. Typically States will still want to negotiate changes to a
draft treaty before being willing to adopt it. Where the treaty involves
numerous States it can take decades to negotiate all the terms of the
treaty and arrive at a final text ready for adoption.

[page 21]

Adoption of text
2.12 Once States have agreed on a final text, it is officially adopted. The
adoption of the text of a treaty must be by unanimous consent of all
States, unless the adoption takes place as an international conference,
where a two thirds majority is required, unless States agree otherwise:
VCLT Art 9.

Opening for signature

2.13 Once the text of a treaty is adopted, the treaty will be opened for
signature. States may then sign the treaty, indicating their willingness
to become legally bound by its terms: VCLT Art 11. However, the
treaty will not be binding on States until it has entered into force.
 Once a State has signed a treaty it is obliged not to act in a way which
is contrary to the object and purpose of the treaty prior to its entry
into force: VCLT Art 18.

Entry into force

2.14 A treaty will enter into force in the manner determined by the
negotiating States as set out in the treaty itself. Usually this will
happen when the treaty has acquired a specified number of signatures:
VCLT Art 24.

Registration of treaties
2.15 Once a treaty has entered into force, it must be given to the
Secretariat of the United Nations for registration: UN Charter Art
102; VCLT Art 80. The UN keeps a register of all treaties entered
into between its members, and all treaties are published in order to
maintain transparency and to ensure that all treaties are available to
the public.

2.16 In Maritime Delimitation and Territorial Questions between Qatar and

Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ
Rep 112 (Qatar and Bahrain), the ICJ confirmed that a treaty that has
not been registered with the Secretariat cannot be invoked by the
parties before any organ of the UN. Non-registration does not have
any effect on the validity of the agreement, however, and the parties
could continue to rely on the treaty before non-UN bodies or between
 themselves.

Ratification, accession, acceptance and approval

2.17 After a treaty has entered into force it is still possible for States to
become parties. There are various processes by which a State can
indicate its consent to be legally bound by a treaty, and the treaty itself
will usually specify the process which is to be used: VCLT Art 11.

2.18 Ratification is a process by which a State which has already signed a

treaty confirms its consent to be legally bound by its terms. It is the
second step of a two-step process

[page 22]

of consent, whereby signature alone will not make a treaty binding on

a State. A treaty may require ratification in order to confirm States’
consent: VCLT Art 14. Alternatively, States may sign a treaty subject
to ratification, where ratification of treaties is a requirement of their
domestic law. The process for ratifying a treaty is determined by
States’ domestic laws, but typically involves a formal instrument of
ratification being deposited with the UN or relevant international
organisation.

2.19 Accession is the process whereby States which did not sign a treaty
prior to its entry into force can become legally bound by the treaty:
 VCLT Art 15. The requirements for accession will be determined by
a State’s domestic laws, but usually involve a declaration from the
relevant organ of the State, which is formally recorded in an
instrument of accession. The instrument of accession is then
deposited with the UN or relevant international organisation.

2.20 Acceptance and Approval are alternative mechanisms by which States

consent to be legally bound by a treaty. They are terms which States
may use in their own domestic processes for confirming their consent
to be legally bound by a treaty and they have the same effect as
ratification: VCLT Art 14(2).

Reservations to treaties
2.21 A reservation is a declaration by a State by which it purports to
exclude or alter the legal effect of certain provisions in the treaty as
they apply to that State. Reservations can be made at the time that a
State signs, ratifies, accepts, approves or accedes to the treaty.
Through the use of reservations States can alter the way that a treaty
will apply to them: VCLT Art 21.

Example
 AUSTRALIA’S RESERVATION TO THE CONVENTION ON THE
RIGHTS OF THE CHILD

Article 37(c) of the Convention on the Rights of the Child (opened for signature 20
November 1989, 1577 UNTS 3, entered into force 2 September 1990) provides that:

States Parties shall ensure that …

(c) Every child deprived of liberty shall be treated with humanity and respect
for the inherent dignity of the human person, and in a manner which takes
into account the needs of persons of his or her age. In particular, every child
deprived of liberty shall be separated from adults unless it is considered in
the child’s best

[page 23]

interest not to do so and shall have the right to maintain contact with his or
her family through correspondence and visits, save in exceptional
circumstances.

When Australia ratified the Convention in 1990 it entered the following reservation:

Australia accepts the general principles of article 37. In relation to the second
sentence of paragraph (c), the obligation to separate children from adults in
prison is accepted only to the extent that such imprisonment is considered
by the responsible authorities to be feasible and consistent with the
obligation that children be able to maintain contact with their families,
having regard to the geography and demography of Australia. Australia,
therefore, ratifies the Convention to the extent that it is unable to comply
with the obligation imposed by article 37(c).

Australia argues that given the size of the country it may not be possible to
accommodate children in separate detention facilities while still enabling them to
maintain contact with their families through visits. The effect of the reservation is to
change the nature of Australia’s obligation under Art 37(c). Australia is only obliged to
keep children separate where it is feasible to do so, and where it would be consistent
with children’s rights to maintain contact with their family.

Limitations on reservations
2.22 A State may not make a reservation which would be incompatible
 with the object and purpose of the treaty. Further, a State may not
make a reservation if the treaty prohibits reservations, either of the
specific kind which the State is purporting to make or generally:
VCLT Art 19.

Objecting and accepting reservations

2.23 Once a State has made a reservation to a treaty, the other States
parties to that treaty may decide whether they accept or object to the
reservation. Some treaties will require the acceptance of all other
States parties before a reservation will be lawful: VCLT Art 20. If a
State party accepts another State’s reservation then the treaty will be
in force as between those States on terms consistent with the
reservation.

2.24 A State may object to another State’s reservation: VCLT Arts 21 and
21. An objecting State may also object to the treaty entering into force
as between itself and the reserving State, in which case the treaty will
have no legal effect between those two States. If a State objects to
another State’s reservation but not to the treaty’s

[page 24]

entry into force, the treaty will enter into force but the provisions to
which the reservation relates will not apply as between those States to
the extent of the reservation: VCLT Art 21.
2.25 A State which has not objected to a reservation within 12 months is
taken to have accepted the reservation: VCLT Art 20(5).

Interpretative declarations vs reservations

2.26 A state may also make a unilateral statement known as an
interpretative declaration. An interpretative declaration is a statement
by which a State indicates its view on how a treaty obligation should
be understood and implemented. A reservation alters the legal effect
of a treaty on the State, whereas an interpretative declaration merely
clarifies the State’s understanding of the meaning of the relevant
provisions. It does not have any legal effect on the State’s obligations.

Interpretation of treaties
2.27 When applying a treaty as a source of international law, there are a
number of principles which guide the interpretation of the treaty’s
text. As a general rule, the text of a treaty should be applied in good
faith: VCLT Art 31(1). To interpret the meaning of particular words
in a treaty the following can be taken into account:

any definitions which are included in the treaty or agreed by the

parties (VCLT Art 31(4));
the ordinary meaning of the words in light of the treaty’s object
and purpose (VCLT Art 31(1));
the context of the words, which includes the preamble and
 annexes to the treaty and any other related instruments or
agreements (VCLT Art 31(2));
any subsequent agreement between the parties as to the
interpretation of the words (VCLT Art 31(3)(a));
the practice of States in applying the treaty, which indicates how
they interpret its terms (VCLT Art 31(3)(b)).

2.28 If these steps leave the meaning ambiguous, or result in an

interpretation which is manifestly absurd or unreasonable, reference
can be made to any statements made by States during the drafting
process (the travaux preparatoires) which indicate their intended
meaning: VCLT Art 32.

Application of treaties to third States

2.29 As a general rule, treaties only apply to States which are parties to
them, and create no obligations or rights for third States: VCLT Art
34. There are some limited

[page 25]

exceptions to this general rule, however. If the parties to a treaty

intend for it to create an obligation for a third State such an
obligation may arise, provided the third State expressly accepts the
obligation in writing: VCLT Art 35. Similarly, a treaty may create
rights for a third State provided the parties to the treaty intended to
 create such rights, and provided the third State consents. If a third
State does not expressly reject the rights they will be taken to have
consented to them: VCLT Art 36.

2.30 As will be discussed below (at 2.40) a State which is not a party to a
treaty may become bound by the terms of that treaty if it comes to
form customary international law: VCLT Art 38.

Invalidity and termination of treaties

2.31 The VCLT provides several ways in which a treaty may be rendered
invalid or terminated, either as a whole or with respect to a particular
State.

Invalidation of a State’s consent

2.32 Where a State’s consent to be bound by a treaty has been given by a
person not authorised to do so, or where such consent has been based
on an error relating to a fact which was essential to its consent, the
treaty may be invalidated for that State: VCLT Arts 47 and 48.
Similarly, where the consent of a State has been obtained by fraud,
corruption or coercion, the treaty will be invalidated with respect to
that State: VCLT Arts 49–52.

Conflict with jus cogens norms

2.33 As will be discussed below (at 2.50), there are certain rules of
customary international law which are considered so important that
no derogation from them is permitted. These are known as
 peremptory norms, or norms of jus cogens. They include the
prohibitions on slavery, torture, piracy and genocide. A treaty
incompatible with one of these peremptory norms will be considered
void: VCLT Art 53. This will apply even where a new peremptory
norm emerges, rendering void any pre-existing incompatible treaties:
VCLT Art 64.

Termination or withdrawal by agreement

2.34 A treaty may specify the requirements for its own termination: VCLT
Art 54(a). For example, a treaty may provide that it will terminate
upon the completion of a particular project or after a specified period
of time. A treaty may also be terminated by the consent of all the
parties (VCLT Art 54(b)) or if all the parties agree to adopt a new
treaty which covers the same subject matter and is incompatible with
the

[page 26]

earlier treaty (VCLT Art 59). An individual State party may

withdraw from a treaty in accordance with the terms of that treaty or
by the consent of the other parties: VCLT Art 54.

Termination following breach

2.35 Where one State party to a treaty has committed a material breach of
the terms of the treaty, the other parties may agree to terminate the
 treaty either as a whole or as between themselves and the defaulting
State: VCLT Art 60.

Termination due to supervening impossibility of

performance
2.36 If circumstances arise which make it impossible to perform the
obligations contained in a treaty, a State party may seek to terminate
the treaty. Such impossibility must be due to the permanent
disappearance or destruction of an object indispensable for the
execution of the treaty: VCLT Art 61.

Termination due to fundamental change of circumstances

2.37 A State party may seek to terminate a treaty if a fundamental change
of circumstances has occurred since the time when they consented to
be bound by the treaty. Termination on this ground will only be
available where:

(a) certain circumstances existed at the time the State gave consent which
constituted an essential basis of that consent; and
(b) there has been a change in those circumstances which radically alters the
nature of the obligations to be performed under the treaty; and

(c) the change in circumstances is not due to a breach by the State seeking to
terminate: VCLT Art 62.

Unilateral declarations
2.38 As discussed above, States will be bound by any treaties they enter
into with other States. However, they may also be bound by unilateral
 statements which they make independently. For a unilateral
declaration to be legally binding, it must be specific in nature and it
must have been made publically with the intention of creating legal
obligations.

2.39 An example of a binding unilateral declaration can be seen in the

Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ
Ser A/B No 53, at 71 (Legal Status of Greenland case). In that case,
Denmark and Norway had been in a dispute regarding sovereignty
over the area of land known as Eastern Greenland. Denmark had
offered to make certain concessions with regard to another disputed
territory and in response Norway’s Foreign Minister declared that ‘the
Norwegian

[page 27]

government would not make any difficulty in the settlement of this

question’. The Permanent Court of International Justice (PCIJ) found
that this statement was binding on Norway, and that it was legally
obliged not to interfere with Denmark’s plans for Eastern Greenland.

CUSTOMARY INTERNATIONAL LAW

2.40 The second major source of international law is customary
international law. Customary international law is law which develops
through the practice of States, and will be legally binding on States
 even where they have not entered into a treaty to that effect. Article
38(1)(b) of the ICJ Statute describes this source of law as
‘international custom, as evidence of a general practice accepted as
law’. This hints at the two elements which are required to create a rule
of customary international law: consistent state practice, accompanied
by a belief on the part of States that they are legally obliged to follow
the rule. The first element, state practice, is objective and is identified
by looking at the way States behave in relation to a particular issue.
The second element is known as opinio juris, and is a subjective belief
by States that the practice is legally binding.

Figure 2.2 ELEMENTS OF CUSTOMARY INTERNATIONAL LAW

2.41 The two elements of customary international law were described by

the ICJ in Federal Republic of Germany v Denmark; Federal Republic of
Germany v The Netherlands [1969] ICJ Rep 3 (North Sea Continental
Shelf cases). There, the ICJ was considering whether a provision in a
treaty to which both the Netherlands and Denmark were parties had
attained the status of customary international law, such that it would
also be binding on Germany, which was not a party to the treaty. The
majority of the court said that, in order to establish a rule of
customary international law, ‘two conditions must be fulfilled. Not
 only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of
a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it’: at 77.

[page 28]

What is state practice?

2.42 For a rule of customary international law to become legally binding
there must be state practice which is consistent with that rule. State
practice is the way that States behave in relation to a particular issue,
and it is comprised of States’ actions and statements. Evidence of state
practice can therefore be found in the acts of States (for example
through the orders given to military personnel), as well as official
documents, legislation and policy instruments, statements made in
Parliament or at international conferences and States’ voting patterns
at UN meetings.

How much state practice is required?

2.43 The ICJ and its predecessor, the PCIJ, have given considerable
attention to the nature of state practice which is sufficient to give rise
to a customary norm. This involves looking at how many States are
behaving consistently with the norm and how long they have been
engaging in such practice.
 Consistency: There is no fixed rule as to how much consistency of
2.44
practice is required, but it is necessary to demonstrate objectively that
the behaviour of States amounts to ‘settled practice’. In Fisheries
Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3 (Fisheries
Jurisdiction case), the ICJ stated that in order to establish a rule of
customary international law, state practice must be ‘common,
consistent and concordant’: at 50 (Joint Separate Opinion of Forster,
Bengzon, Jimenez de Arechaga, Nagendra Singh and Ruda JJ). As
was noted by the ICJ in the North Sea Continental Shelf cases, the
focus is on the practice of those States which have an interest in the
issue. In that case, it was pointed out that land-locked States would
have little interest in the application of rules relating to the
continental shelf and the rights of coastal States, and so their practice
was not considered relevant to the assessment of the customary rule.

2.45 Time: The ICJ has not specified a length of time that States are
required to have practiced a particular custom before it will become
binding. Generally, customary rules will emerge gradually over some
time, but in the North Sea Continental Shelf cases the ICJ confirmed
that a rule of customary international law could emerge even though
state practice had only been relatively recent. However, the court
emphasised that in such cases the practice of States would need to be
extensive and virtually uniform, especially among States whose
interests were specially affected: North Sea Continental Shelf cases, at
73 and 74. So, practice over a long time is not required; it is more
 important that many States adhere to the practice consistently.

[page 29]

2.46 It is not essential that state practice be absolutely universal, and some
deviation from the practice does not preclude the recognition of
customary international law. This was expressed by the ICJ in
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States) [1986] ICJ Rep 14 (Nicaragua Merits
decision), where the court stated that what is required is ‘consistent,
but not absolutely rigorous conformity’: at 186.

Opinio juris
2.47 Opinio juris is the subjective element of customary international law. It
relates not to what States do, but to why they do it. What is required
is a belief by States that they are legally bound to act in a particular
way, or, to put it another way, that in acting consistently with a
particular norm they are following a rule of international law.

The Lotus case

2.48 The PCIJ explained the importance of opinio juris in SS Lotus (France
v Turkey) [1927] PCIJ Ser A No 10 (Lotus case). ‘The frequency, or
even habitual character of the acts is not in itself enough. There are
many international acts … which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience
 or tradition, and not by any sense of legal duty’: at 28. In order to
show that a rule has become binding on States it must be proved that
the States concerned feel they are legally obliged to comply with that
rule.

2.49 Given that States are collective entities comprising many actors, it can
be difficult to identify precisely what their intentions are in acting in a
particular way. Opinio juris is therefore difficult to prove, but it can
often be inferred from the way that States act, and in particular from
the opinions they express in official declarations or other statements.
As such, evidence of opinio juris is often found in the same sources
that are used to prove state practice.

Jus cogens
2.50 A special subset of customary international law is known as
peremptory norms, or norms of ‘jus cogens’. These are rules which are
considered so important that they are binding on all States and may
never be derogated from. They include the prohibitions against
genocide, torture, slavery and piracy. Although many jus cogens norms
are articulated in treaties, such as the Convention Against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment
(opened for signature 10 December 1984, 1465 UNTS 85, entered
into force 26 June 1987) they are binding even when States are not
parties to those treaties. As noted above (at 2.29), any treaty provision
which is contrary to a jus cogens norm will be void.
 [page 30]

Obligations erga omnes

2.51 Another special category of international obligations is erga omnes
obligations. These are obligations which are owed to the international
community as a whole: Case concerning Barcelona Traction Light and
Power Co Ltd (Belgium v Spain) [1970] ICJ Rep 3 at [32].

Regional and local custom

2.52 It is possible for a norm of customary international law to be
established for a localised area or region. It has been accepted that a
customary rule can apply between as few as two States where there has
been continued practice between them and where such practice is
accepted as giving rise to legal rights and obligations: Rights of Passage
over Indian Territory (Portugal v India) [1960] ICJ Rep 6.

2.53 In the case of regional or local custom, the standard required for state
practice and opino juris is generally higher than in relation to a general
rule of customary international law. In Asylum (Colombia v Peru)
[1950] ICJ Rep 266 (Asylum case), the ICJ decided that a regional
custom could exist within Latin America, but that it would be
necessary to show ‘constant and uniform usage’ by all States against
which it was claimed.

Persistent objector principle

2.54 It may be possible for a State to avoid the application of a rule of
customary international law if it can show that it has persistently
objected to that rule. For example, in Fisheries (United Kingdom v
Norway) [1951] ICJ Rep 116 (Fisheries case) Norway successfully
argued that a rule of customary international law did not apply to it
because it had always applied an alternative rule and other States had
acquiesced to such an approach.

Case Summary

FISHERIES (UNITED KINGDOM v NORWAY)

[1951] ICJ REP 116
(FISHERIES case)
INTERNATIONAL COURT OF JUSTICE

FACTS: The case involved a dispute between Norway and the United Kingdom about
the extent of Norway’s exclusive fishing zones. Customary international law provided
certain rules for how such zones should be defined, using the low water mark as the
baseline from which fishing zones were measured. Because of Norway’s unique
coastline, which was characterised by numerous fjords, islands, bays and inlets,

[page 31]

it had adopted an alternative approach of defining its fishing zones by reference to

straight baselines, so as to avoid the complications presented by its unusually shaped
coastline. Norway argued that it had always applied this alternative rule, and had
objected to the application of the traditional rule. Further, it demonstrated that other
States had accepted its alternative approach for many years.

ISSUE: Could Norway rely on its past objections to exempt itself from the application
of the customary rule?

DECISION: The court held that because of Norway’s persistent objection to the
customary rule, and the fact that other States had acquiesced to Norway’s alternative
approach, the customary rule was not binding on Norway.
GENERAL PRINCIPLES OF LAW
2.55 A third source of international law is ‘general principles of law’. Under
Art 38(1)(c) of the ICJ Statute, the ICJ may apply general principles
of law in resolving disputes between States. This source of law was
included in the ICJ Statute to enable the ICJ to resolve disputes when
there was no applicable treaty or customary law. The general
principles of law which the ICJ can apply include rules which are
commonly found within domestic legal systems, including principles
of equity.

2.56 Examples of general principles of law which can be used as a source of

international law are:

the obligation to make reparations following a breach of

international law (Chorzow Factory (Indemnity) [1928] PCIJ Ser
A No 17, at 29);
the rule against unjust enrichment;
the equitable principle that ‘he who seeks equity must do equity’
(Diversion of Water from the River Meuse (Netherlands v Belgium)
[1937] PCIJ Ser A/B No 70, at 76, Separate Opinion of
Hudson J);
the principle of pacta sunt servanda (that legal obligations must
be performed in good faith) (Nuclear Tests (Australia and New
Zealand v France) [1974] ICJ Rep 253);
the principle of res judicata (that judicial decisions are binding on
 the parties) (Effect of Awards of Compensation Made by the UN
Administrative Tribunal Advisory Opinion, [1954] ICJ Rep 47;
Argentina v Chile (1994) 113 ILR 1 (The Laguna del Desierto
case); Process Verbaux of the Proceedings of the Committee, June 16–
July 24, LN Publication 1920).

[page 32]

Case Summary

NUCLEAR TESTS (AUSTRALIA AND NEW ZEALAND v

FRANCE)
[1974] ICJ Rep 253
INTERNATIONAL COURT OF JUSTICE

FACTS: Australia and New Zealand had brought a complaint against France in relation
to a series of atmospheric nuclear tests France was conducting in the South Pacific.
Australia and New Zealand sought a declaration from the ICJ that the tests were
unlawful and an order, which would require France to cease the tests. However,
subsequent to the commencement of proceedings, France made a number of public
statements indicating that it planned to cease the atmospheric nuclear tests.

ISSUE: Was France’s statement that it would cease nuclear testing legally binding, and
if so, what impact did it have on the matter before the ICJ?

DECISION: The court held that States, including Australia and New Zealand, were
entitled to rely on France’s undertaking in good faith. By its own statement, France
had promised to cease the atmospheric nuclear testing. The court held that the
principle of pacta sunt servanda would apply to this statement, and that France would
be bound to comply with its own undertaking. Consequently, the dispute between the
parties disappeared, and the matter was dismissed.

JUDICIAL DECISIONS AND THE WRITINGS OF

EMINENT PUBLICISTS
2.57 Article 38(1)(d) of the ICJ Statute provides that the court may refer to
judicial decisions and the ‘teachings of the most highly qualified
publicists’ as subsidiary sources of law. This means that the ICJ will
use these sources where no primary source of law (treaty, custom or
general principles) is available, or to help interpret any ambiguity in
relation to those sources.

2.58 Under Art 59 of the ICJ Statute, decisions of the court are only
binding on the parties to the case in the particular circumstances.
They do not therefore create any binding principle, and no rule of
stare decisis applies in international law. However, the decisions of the
ICJ are highly persuasive, and the court regularly refers to its previous
decisions and acts consistently with its own jurisprudence.

2.59 The ICJ also has regard to the decisions of other international courts
and tribunals, such as the decisions of international criminal tribunals
and human rights bodies and international arbitral awards.

[page 33]

2.60 As well as international decisions, the ICJ can also have regard to the
decisions of domestic courts where they are useful in identifying or
interpreting the relevant international rules, or where they are
evidence of customary international law.
Evidence of law
2.61 It should be noted here that some instruments will not be considered
sources of international law themselves, but can be evidence of law.
For example, domestic legislation is not a source of international law,
but can be considered evidence of state practice or opinio juris as part
of establishing customary international law.

Similarly, decisions of national courts will not be binding themselves at international law, but
they can be evidence of customary international law, as well as providing a subsidiary source of
law which can be used as an aid to interpretation.

2.62 The writings of academics and jurists in the field of international law
can also be used by the ICJ as a subsidiary source of law and such
writings have proved useful in areas where the law is evolving or
where an issue has not previously been considered by a judicial body.
However, it is important to distinguish between writings which
debate the possible direction of international law in the future and
those which provide evidence of the law as it currently stands. It is
only the latter which is encompassed in Art 38(1)(d) of the ICJ
Statute and the court will generally avoid relying on writings which
are speculative or unsupported by evidence.

RESOLUTIONS, GENERAL COMMENTS AND OTHER

‘SOFT LAW’
2.63 In addition to the sources of law listed in Art 38(1) of the ICJ Statute
there exists a variety of instruments of differing legal status which can
 assist in interpreting and implementing international law. These
include the resolutions of international organs such as the UN
General Assembly and Security Council, as well as a body of
international law known as ‘soft law.’

Security Council resolutions

2.64 Under the UN Charter, resolutions of the Security Council are
binding on all UN members: UN Charter Art 25. The principal
responsibility of the Security Council is to maintain international
peace and security. The Security Council passes resolutions which
enable it to carry out this function, including resolutions which

[page 34]

impose economic or other sanctions, or which implement

peacekeeping measures: UN Charter Ch VII. Member States of the
UN are legally bound to comply with these resolutions in order to give
effect to the Security Council’s decisions.

UN General Assembly resolutions

2.65 Some resolutions of the UN General Assembly are legally binding on
members, such as decisions on budgetary matters and membership:
UN Charter Art 18. While most other resolutions are not legally
binding, they can nevertheless be evidence of customary law by
demonstrating state practice and opinio juris, and have been referred to
 by the ICJ to help interpret other principles of law.

Soft law
2.66 Soft law is non-binding, and consists of resolutions, declarations or
other instruments to which States have given their consent. These
instruments generate ‘soft’ obligations for States, rather than ‘hard’,
legally binding duties. While not legally bound, States may feel
political pressure to comply with the terms of a particular instrument,
particularly if they have voted in favour of it in an international forum.

Example

THE RIO DECLARATION ON ENVIRONMENT AND

DEVELOPMENT

The 1992 Rio Declaration on Environment and Development was a non-binding

declaration adopted by States at the 1992 Conference on Environment and
Development, held in Rio de Janeiro. The Declaration articulated the concept of
sustainable development and the steps which States should take to ensure that
economic development proceeds in an environmentally sustainable fashion. It is not
binding, but has become well regarded as a set of principles which States should
follow: Rio Declaration on Environment and Development, 13 June 1992, UN Doc
A/CONF 151/26, (1992) 31 ILM 874.

2.67 While soft law instruments are not binding themselves, they can have
an influence on the formation of ‘hard’ international law: see 2.72.
Further, many soft law instruments build on existing international law
and can thereby have some binding force. For instance, a resolution or
declaration might seek to elaborate on general legal principles and
demonstrate how they ought to apply to a particular issue.
 [page 35]

Example

UNITED NATIONS DECLARATION ON THE RIGHTS OF

INDIGENOUS PEOPLES

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

enunciates the rights of Indigenous peoples and prescribes the steps which States
must take to ensure the enjoyment of these rights. Many States have officially
adopted the UNDRIP, indicating their support for the principles which it contains.
While not legally binding in itself, the UNDRIP builds on existing human rights law,
expanding on currently recognised human rights to demonstrate how they apply in
the particular context of Indigenous peoples: GA Res 61/295, UN GAOR 61st sess, 107th
plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).

General Comments
2.68 General Comments, a particular form of soft law, are developed to aid
in the interpretation and implementation of treaties. They are quite
common for human rights treaties, which are often worded in general
terms. The body responsible for monitoring compliance with a human
rights treaty can issue a General Comment in relation to a particular
provision in order to clarify the nature and scope of States’ obligations
under that provision. While they are not binding in themselves, the
General Comments can provide useful and persuasive guidance as to
how the various legal principles are to be applied.

Example
 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS, GENERAL COMMENT 14 (THE RIGHT TO THE
HIGHEST ATTAINABLE STANDARD OF HEALTH)

The Committee on Economic, Social and Cultural Rights is the body responsible for
supervising the implementation of the International Covenant on Economic, Social
and Cultural Rights (opened for signature 16 December 1966, 993 UNTS 3, entered into
force 3 January 1976) (ICESCR). Article 12 of the ICESCR guarantees to all individuals the
right to the highest attainable standard of health. To clarify what this right entails, the
Committee on Economic, Social and Cultural Rights issued General Comment 14 (11
August 2000, UN Doc E/C 12/2000/4).

[page 36]

The General Comment explains that the right to the highest attainable standard of
health includes obligations relating both to the provision of health care as well as to
the determinants of health, such as environmental and socioeconomic factors. It also
addresses the needs of particular groups such as women, children, persons with
disability and older persons. In this way the General Comment provides States with
more detail about what they are obliged to do to comply with Article 12.

Example
 HUMAN RIGHTS COMMITTEE, GENERAL COMMENT 24
(RESERVATIONS TO THE COVENANT OR OPTIONAL
PROTOCOLS)

The Human Rights Committee is the body which monitors compliance with the
International Covenant on Civil and Political Rights (opened for signature 16 December
1966, 999 UNTS 171, entered into force 23 March 1976) (ICCPR). The Human Rights
Committee recognised that many States had entered reservations to the ICCPR and
sought to outline a set of principles which would assist in determining when such
reservations should be allowed. It acknowledged that the ‘number of reservations,
their content and their scope may undermine the effective implementation of the
ICCPR and tend to weaken respect for the obligations of States Parties’: at 1. General
Comment 24 notes that, while reservations can be a useful tool in allowing flexibility
and encouraging States to take on the majority of obligations, for a human rights
treaty in particular ‘it is desirable in principle that States accept the full range of
obligations, because of the essential rights that every person is entitled to as a
human being’: at 4.

The General Comment therefore explains how the general rule regarding reservations
— that they are not permissible where they conflict with the object and purpose of the
treaty — is to be applied with respect to the ICCPR. It states that for a reservation to
be acceptable it must relate to a specific provision and it must be transparent, so that
the Human Rights Committee is able to judge its compatibility with the overall object
and purpose of the ICCPR.

While General Comment 24 is not a source of law itself, it provides detailed guidance
on how the rules contained in the VCLT regarding reservations should

[page 37]

be applied with respect to human rights treaties like the ICCPR. It therefore plays an
important role in identifying the specific obligations which are binding on States
Parties.

DEVELOPMENT OF INTERNATIONAL LAW

The influence of treaties on custom
2.69 A rule of customary international law can form out of a treaty
 obligation if States come to adhere to the treaty rule even though they
are not parties to it. This was the argument which Denmark and the
Netherlands attempted to make in the North Sea Continental Shelf
cases, when they sought to apply the Geneva Convention on the
Continental Shelf to Germany, even though it was not a party to the
treaty. (They failed because they could not prove sufficient state
practice and opinio juris to establish that the treaty provision had
become binding as customary international law.)

The influence of custom on treaties

2.70 A rule of customary international law can become codified in a treaty
as States decide to write down the customary rule. In this way
customary laws can be refined or developed, as treaties take an
existing customary rule and clarify its scope and content, or add more
detail to a customary rule to ensure its application is clear.

The work of the International Law Commission

2.71 The ILC is the organ of the UN responsible for codifying and
developing international law. It codifies existing customary
international law by drafting treaties which set out the customary
principles in written form. It also contributes to the development of
international law by drafting treaties which include rules and
principles which may not yet be binding as customary international
law but which are emerging. These treaties might in turn become
custom if they attract sufficient state practice and opinio juris so as to
 bind non-parties.

The influence of soft law

2.72 As noted above, soft law is not legally binding, but it can influence the
development of treaties and custom. Soft law can evolve to become
‘hard law’ where it influences state practice so as to create a new
customary norm. Alternatively, an instrument

[page 38]

of soft law can act as a sort of prototype for a future treaty, allowing
States to test-run the application of particular principles and refine
them ahead of formal adoption as a treaty.

Example

UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR) was an instrument adopted by the
UN General Assembly in 1948. It sets out the rights to which all human beings are
entitled. It is not a binding instrument itself, but was extremely influential in the
drafting of subsequent binding human rights treaties, such as the ICCPR and the
ICESCR. Several of the principles set out in the UDHR have also come to be recognised
as customary international law. (GA Res 217A, UN GAOR 3rd sess, 183rd plen mtg, UN
Doc A/810 (10 December 1948).
 [page 39]

CHAPTER 3

The Relationship between

International and National Law
 [page 40]

INTRODUCTION
3.1 This chapter identifies the theoretical approaches which explain the
relationship between international and national law and considers
how that relationship is applied by courts. Unclear and inconsistent
views can occasionally be expressed on this topic. The chapter also
considers the direct and indirect operation that treaties, customary
international law and other international legal sources have in the
municipal sphere. Particular reference is made to the practice of
Australia, although the practices of the United Kingdom (UK) and
the United States of America (US) are also discussed. In this chapter,
‘national’, ‘domestic’ and ‘municipal’ are used synonymously.

THEORETICAL APPROACHES
3.2 There are three approaches which describe the relationship between
international and national law.

The dualist approach

3.3 International and national legal systems are separate and exist
independently of one other. International and national law differ as to
their sources, the subjects they regulate and content. Consistent with
legal positivist theory (see Chapter 1), international law only becomes
 part of national law after a State has consented.

3.4 According to a dualist approach, national courts are not bound to

apply international law until it has been ‘transformed’ into national
law through an authoritative legal act, being either legislation or
judge-made (common) law. ‘Transformation’ by a State act is required
before international law becomes part of national law.

3.5 The strong version of the dualist approach is that international law is
not suitable for direct application by national courts and first requires
legislative enactment. The weak version is that courts can undertake
the transformative act themselves without legislative authorisation.

3.6 In Australia, adherence to dualism has gradually eroded in light of the

ongoing interaction between international and national affairs: A
Mason, ‘The Influence of International and Transnational Law on
Australian Municipal Law’ (1996) 7 Public Law Rev 20 at 23.

The monist approach

3.7 Under a monist approach, international and national law are
interconnected and part of the one and the same universal normative
order. Consistent with natural law theory (see Chapter 1),
international law ultimately regulates individuals and

[page 41]
 can therefore be seen as part of a single legal system along with
domestic law. ‘Incorporation’ means that international law is
automatically part of a State’s national law without any domestic act
such as legislative adoption and may be applied by domestic courts.

3.8 The strong version of the monist approach is that old common law
precedents are superseded by new international legal rules. The weak
version is that international law is automatically incorporated into
national law to the extent that it does not conflict with legislation or
settled common law rules.

The contemporary or harmonisation approach

3.9 This approach views international and national law as supreme within
their respective spheres such that neither dominates the other.
International law forms part of national law. Once an international
legal rule is identified, the question for the national court is to
determine the extent to which it has been domestically implemented.
The question for an international court is whether a State has violated
its international legal obligations, even where national law including
constitutional provisions prohibits compliance with international law.

Case Summary
 NULYARIMMA v THOMPSON
(1999) 96 FCR 153; [1999] FCA 1192
FEDERAL COURT OF AUSTRALIA

FACTS: The applicants claimed that federal ministers had committed genocide.
Australia had ratified the Convention on the Prevention and Punishment of the Crime
of Genocide, (signed 9 December 1948, 78 UNTS 277, entered into force 12 January
1951). Genocide was a crime under customary international law. However, no
legislation had been passed to make genocide a crime under Australian law.

ISSUE: Was the customary international legal norm prohibiting genocide automatically
incorporated into Australian common law so as to make genocide a crime?

DECISION: No (by majority). Genocide was a peremptory norm of customary

international law but was not a crime under Australian law without legislation to that
effect. Justice Wilcox considered that there was no one simple rule of transformation
or incorporation applicable to all customary international legal

[page 42]

rules and that different rules required differential treatment. Justice Whitlam
considered that, even if customary international law was part of Australian common
law, criminal jurisdiction could not be exercised without a legislative foundation.
Justice Merkel (dissenting) held that customary international law formed part of
Australian common law, concluding that a customary international legal rule is
adopted and received under Australian law if not inconsistent with legislation or
finally declared by the courts. According to Merkel J, genocide was therefore a crime
under Australian common law. However, there was no arguable case that genocide
had been committed.

NATIONAL COMPLIANCE WITH INTERNATIONAL

LAW
3.10 A State which has contracted valid international obligations is bound
to make in its legislation such modifications as necessary to ensure
fulfilment of the obligations it has undertaken: Exchange of Greek and
 Turkish Populations Case (Advisory Opinion) [1925] PCIJ Ser B No 10
at 20.

3.11 Every State has a duty to carry out in good faith its obligations arising
from treaties and other international legal sources, and it may not
invoke constitutional or national legal provisions as an excuse for
failing to perform this duty: Draft Declaration on the Rights and
Duties of States (1949) Yearbook of the International Law Commission,
286 at 288, Art 13. This obligation is reflected in the pacta sunt
servanda principle (see 2.56) and is relevant to whether a State has
committed an internationally wrongful act (see 10.4).

3.12 A State may breach international law while complying with national
law. In Polites v Commonwealth (1945) 70 CLR 60 at 69; [1945]
HCA 3, Latham CJ observed that Australia may legislate in breach of
international law and take the risk of international complications.
Legislation that is within Commonwealth power does not become
invalid because it conflicts with a rule of international law, although
effort should be made to construe Commonwealth statutes so as to
avoid breaching international law or international comity (that is,
non-binding practices adopted by States for reasons of courtesy).
Even if a treaty were void or unlawful under international law, or if
Australia’s entry into or performance of it involved breaching
Australia’s international legal obligations, legislation will not be
deprived of its character as a law with respect to external affairs for the
purposes of its constitutional validity: Horta v Commonwealth (1994)
 181 CLR 183 at 195; [1994] HCA 32 per Mason CJ, Brennan,
Deane, Dawson, Toohey, Gaudron and McHugh JJ. There is no basis
under Australian law for declaring

[page 43]

legislation or regulations invalid because they were inconsistent with

Australia’s obligations under an treaty for which there is no
implementing legislation: Tuitupou v Minister for Immigration and
Multicultural Affairs [2000] FCA 197; 60 ALD 361 at 364.

3.13 States having a federal constitutional structure may face particular

difficulties to ensure that state officials act in accordance with that
State’s international obligations: LaGrand (Germany v United States of
America) (Merits) [2001] ICJ Rep 466; Avena and Other Mexican
Nationals (Mexico v United States of America) [2004] ICJ Rep 12.
However, States are internationally responsible for any breach of
international law committed by the government of a territorial unit:
see 10.7.

INTERACTIONS BETWEEN INTERNATIONAL AND

NATIONAL LAW
The influence of national law on the development of
international law
3.14 International law is determinative for an international court or
 tribunal. A State will be held responsible for an internationally
wrongful act even if bound by a conflicting national law: see 10.4. A
State may not invoke national law to avoid its international
obligations: Alabama Claims Arbitration (United States of America v
Great Britain) (1872) 1 Int Arb 495 at 656; Vienna Convention on
the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS
331, entered into force 27 January 1980) Art 46(1).

3.15 Municipal laws are merely facts which express the will and constitute
the activities of States: Certain German Interests in Polish Upper Silesia
(Merits) [1926] PCIJ Ser A No 7 at 19. However, national law can
influence international law by forming part of state practice that may
contribute to articulating a rule of customary international law as a
source of international law: see 2.40–2.42.

3.16 International courts and tribunals can draw upon national law to
establish a general principle of international law (see 2.55),
particularly if international law is underdeveloped or lacking, such that
national law becomes a ‘source’ of international law. For example, the
International Court of Justice (ICJ) derived from national
corporations law the principle of separate corporate legal personality:
Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Second
Phase) [1970] ICJ Rep 3 at 34–5.

3.17 International courts and tribunals may be specifically requested to

consider national law to resolve a dispute between States. For
 example, the Permanent Court of International Justice (PCIJ) was
required by special agreement to interpret

[page 44]

government loans governed by Brazilian law: Brazilian Loans (Brazil

v France) [1929] PCIJ Ser A No 21 at 124–5.

The impact of international law on the development of

national law
3.18 The character of an international obligation is a question of
international law. However, States have considerable discretion under
international law on how to give effect to their international
obligations under national law. The impact of international law
depends on the particular approach adopted by a State. On the
alternative theories for the domestic reception of international law, see
3.2–3.9.

3.19 The means of implementation adopted by States to give domestic

effect to their international obligations is a question of national law
and includes relevant constitutional provisions. International practice
varies between States.

Constitutional provisions
United States of America
3.20 The United States Constitution Art VI para 2 provides that all
treaties made under the authority of the US are the supreme law of
the land, and judges in every state are bound, notwithstanding
anything in the Constitution or state law to the contrary.

3.21 Not all international obligations automatically constitute binding

federal law enforceable in US courts. Only a treaty which operates of
itself without the aid of a legislative provision (known as a ‘self-
executing’ treaty) becomes a domestic rule binding on US courts:
Foster v Neilson 2 Pet 253 at 324 (US SC, 1829). A treaty is ‘self-
executing’ if that is intended by the State parties as manifested by the
language used. The Charter of the United Nations (opened for
signature 26 June 1945, 1 UNTS XVI, entered into force 24 October
1945) (UN Charter), for example, is not self-executing: Sei Fuji v
California 38 Cal 2d 718 at 722 (Cal SC, 1952). The Vienna
Convention on Consular Relations (adopted 24 April 1963, 596
UNTS 261; [1973] ATS 7, entered into force 19 March 1967) is also
not self-executing and therefore not binding upon state courts until
Congress enacts legislation: Medellin v Texas 128 S Ct 1346 (US SC,
2008). For the US Supreme Court to provide a remedy not envisaged
under that convention would be inconsistent with the judicial
function and enlarge US obligations under that treaty: Sanchez-
Llamas v Oregon 126 S Ct 2669 at 2679 (US SC, 2006). Furthermore,
the procedural laws of the forum State govern treaty implementation
such that US law, being later in time than a convention, can ‘trump’
 any rights that individuals might enjoy under that treaty: Breard v
Greene 523 US 371 at 376 (US SC, 1998).

[page 45]

Australia
3.22 The Australian Constitution s 75(i) provides that the High Court of
Australia shall have original jurisdiction in all matters arising under
any treaty.

3.23 The external affairs power: Australia does not have express
constitutional provisions about the domestic legal effect of treaties to
which it is a party. The Australian Constitution s 51(xxix) provides
that the Commonwealth Parliament shall, subject to the
Constitution, have power to make laws for the peace, order and good
government of the Commonwealth with respect to external affairs.
This section has been interpreted as follows:

The executive power of the Commonwealth extends to signing

and ratifying treaties. The legislative power extends to enacting
laws which implement the provisions of treaties entered into by
the executive so as to bind the Commonwealth: Victoria v
Commonwealth (1996) 187 CLR 416 at 476; [1996] HCA 56
(Industrial Relations Act case) per Brennan CJ, Toohey,
Gaudron, McHugh and Gummow JJ. When a treaty is relied on
under s 51(xxix) to support a Commonwealth law, the law must
 prescribe a regime that the treaty has itself defined with
sufficient specificity to direct the general course to be taken by
signatory States: at CLR 486. To be a law with respect to
external affairs, the law must be reasonably capable of being
considered appropriate and adapted to implementing the treaty:
at CLR 487.
In determining whether legislation is a valid exercise of the
external affairs power, Australian courts may be required to
consider the conformity between Commonwealth legislation and
a treaty. The legislation need not adopt all of the terms of a
treaty: Commonwealth v Tasmania (1983) 158 CLR 1; [1983]
HCA 21 (Tasmanian Dam case) per Brennan J at [58].
However, there must be a ‘reasonable proportionality’ between
the treaty’s object or purpose and the means by which the
legislation adopts to pursue that treaty: Richardson v Forestry
Commission (Tasmania) (1988) 164 CLR 261; [1998] HCA 10,
Deane J at [7].
A ‘colourable’ treaty, which raises the question of a ‘sham’ or
‘circuitous device to attract legislative power’, would not be
supported by the external affairs power: Horta v Commonwealth
(1994) 181 CLR 183; [1994] HCA 32 at [12] per Mason CJ,
Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

3.24 Using international law to interpret the Constitution: It has been

suggested that the Australian Constitution can be interpreted by
 reference to international law (most notably by Kirby J in, for
example, Newcrest Mining (WA) Ltd v Commonwealth (1997) 190
CLR 513; [1997] HCA 38). However, this is currently a minority
view.

[page 46]

For example, in AMS v AIF (1999) 199 CLR 160; [1999] HCA 26,
Gleeson CJ, McHugh and Gummow JJ at CLR 180 observed that
Constitutional provisions are not to be construed as being subject to
an implication derived from international law. Nevertheless, a
majority of the High Court of Australia in Roach v Electoral
Commissioner (2007) 233 CLR 162; [2007] HCA 43 considered
comparative state practice and treaties as an aid to interpreting the
Australian Constitution.

Treaties in national law

United Kingdom
3.25 The practice of the UK demonstrates a dualist approach to the role of
treaties in domestic law. A treaty is not part of English law unless and
until it has been transformed into the law by legislation. Individuals
cannot derive rights, be deprived of rights or be subjected to
obligations under a treaty without legislative implementation: JH
Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990]
2 AC 418 at 500. English courts will moreover give effect to
 legislation even if unambiguously inconsistent with a treaty obligation:
R v Asfaw [2008] UKHL 31.

3.26 European Community law takes precedence over English law:

European Communities Act 1952 (UK). Parliament voluntarily
accepted that English sovereignty would be limited: R v Secretary of
State for Transport (No 2); Ex parte Factortame Ltd [1991] 1 AC 603 at
659 per Lord Bridge.

Australia
3.27 Following reforms made during the 1990s, the treaty-making process
in Australia includes tabling treaties before Parliament, conducting a
national interest analysis, consideration by a Joint Standing
Committee on Treaties, participation by a Treaties Council and a
treaty information database.

3.28 Entry by the executive into a treaty is insufficient without legislation

to implement the treaty or to modify domestic law by changing or
creating public and private legal rights and obligations: Industrial
Relations Act case per Brennan CJ, Toohey, Gaudron, McHugh and
Gummow JJ. A treaty which had not been legislatively implemented
into Australian law cannot operate as a direct source of individual
rights and obligations: Minister for Immigration and Ethnic Affairs v
Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20 (Teoh’s case) per
Mason CJ and Deane J.
 Thus, for example, in Dietrich v R (1992) 177 CLR 292; [1992]
3.29 HCA 57, Mason CJ and McHugh at CLR 305 and Toohey J at CLR
359–60 concluded that the International Covenant on Civil and
Political Rights (opened for signature 16 December 1966, 993 UNTS
3, entered into force 23 March 1976) (ICCPR) could

[page 47]

not change Australian law because it had not been domestically

implemented. This was notwithstanding that it had been scheduled to
legislation: Minogue v Williams [2000] FCA 125 at [21].

3.30 National law implementing a treaty: Australia may give effect to its
international obligations through legislative provisions: Plaintiff
S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at
[27] per Gleeson CJ. Decision makers may be expressly directed to
take into account the provisions of named international instruments
or treaties to which Australia is a party, in which case the instrument
or treaty is given operative effect under Australian law: Project Blue
Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998]
HCA 28 at [82]–[85] per McHugh, Gummow, Kirby and Hayne JJ.

3.31 By transposing a treaty provision into Australian law, the legislature

discloses a prima facie intention that it has the same meaning in the
statute as it does in the treaty. In the absence of any contrary
 intention, the statutory provision is construed according to the
method applicable to the construction of the corresponding words in
the treaty: Applicant A v Minister for Immigration and Ethnic Affairs
(1997) 190 CLR 225 at 239–40; [1997] HCA 4 per Dawson J. On
treaty interpretation, see Chapter 2.

3.32 Unincorporated treaties as an aid to legislative interpretation:

Unincorporated (that is, unimplemented) treaties may be an aid to
interpreting national law. As a canon of construction, Australian
courts may seek to ensure that national law is construed in conformity
with international law insofar as the language permits, particularly
where the legislation is ambiguous and was enacted to give effect to a
treaty. However, if the ordinary meaning of legislation is clear, then
there is no need to consider extrinsic material such a treaty in order to
ascertain the legislative intention: Acts Interpretation Act 1901 (Cth)
s 15AB.

3.33 Australian courts will presume that Parliament intended to legislate in

accordance with Australia’s international obligations: Brown v
Classification Review Board (1998) 83 FCR 225 at 236 per French J.
However, where it is clear that the legislation or legislative intent is to
legislate in disconformity with international law, then the legislation
must be applied and given effect.

3.34 Using unincorporated treaties to develop the common law: The provisions
of a treaty to which Australia is a party, particularly one which
 declares fundamental human rights, may be legitimately used to
develop the common law. Australian courts act with due
circumspection: much depends on the nature of the treaty provision,
the extent to which it has been accepted by the international
community, its intended

[page 48]

purpose and its relationship to existing principles of Australian law:

Teoh’s case at CLR 288 per Mason CJ and Deane J.

3.35 Unincorporated treaties and administrative decision-making: There is a

legitimate expectation that administrative officials will inform
themselves about treaty obligations accepted by Australia.

Case Summary
 MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V
TEOH
(1995) 183 CLR 273; [1995] HCA 20
(TEOH’S case)
HIGH COURT OF AUSTRALIA

FACTS: Mr Teoh, a father of three children to an Australian citizen, received a criminal

conviction and a decision was made to deport him. Article 3(1) of the Convention on
the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered
into force 2 September 1990) (CRC), to which Australia is a party, provides that, in any
administrative decision concerning a child, the child’s best interests must be a
primary consideration. The Immigration Department did not invite Mr Teoh to make
submissions on whether a deportation order should be made.

ISSUE: Was there a breach of procedural fairness?

DECISION: Chief Justice Mason and Deane J at [291] considered that ratification of a
treaty is a positive statement that Australia’s executive and its agencies will act in
accordance with it. This is an adequate foundation for a legitimate expectation,
absent statutory or executive indications to the contrary, that administrative decision-
makers will act in conformity with the convention. A person need not be aware of the
convention or entertain the expectation; it is sufficient if there are adequate materials
to support it. However, a legitimate expectation does not compel a decision-maker to
act in a particular way. If a decision-maker proposes to make a decision inconsistent
with a legitimate expectation, procedural fairness requires that the affected persons
be given notice and an adequate opportunity of presenting a case against taking such
a course.

3.36 Subsequent judicial authority has criticised the doctrine of legitimate

expectations: see, for example, Minister for Immigration and
Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA
6. The executive branch has also sought to restrict this doctrine: Joint
Statement by the Minister for Foreign Affairs and Trade and the

[page 49]
 Attorney-General, ‘International Treaties and the High Court
Decision in Teoh’, 10 May 1995.

Customary international law in national law

United Kingdom
3.37 English courts have traditionally applied the dualist doctrine to
customary international law. Thus the law of nations in its full extent
was part of English law: Buvot v Barbuit (1737) 25 ER 777.
Customary international law can accordingly be part of English law: R
v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet
Ugarte (No 3) [2000] 1 AC 147 at 276 per Lord Millet. Changes to
customary international law can effect changes to English common
law: Trendtex Trading Corporation v Central Bank of Nigeria [1977]
QB 529 at 544 per Lord Denning and at 579 per Shaw LJ. However,
customary international law must not be inconsistent with an Act of
Parliament or previous final judicial authority.

3.38 There is also judicial comment which suggests the application of the
doctrine of transformation. Thus customary international law will not
be part of English law without legislation, judicial decision or
established usage: R v Keyn (1876) 2 Ex D 63. Customary
international law therefore has no validity save insofar as its principles
are accepted and adopted by English law: Chung Chi Cheung v The
King [1939] AC 160 at 167–8 per Lord Atkin. For example, although
the crime of aggression under customary international law can be
 ‘assimilated’ into English law, implementing legislation was first
required before aggression became an offence: R v Jones (Margaret)
[2007] 1 AC 136 at [26] per Lord Bingham. Similarly, statutory
authority was necessary before English courts could exercise
extraterritorial jurisdiction over crimes attracting universal jurisdiction
— for example, torture — because the double criminality rule
required the offence of torture to be an extraterritorial one under the
Extradition Act 1989 (UK): R v Bow Street Metropolitan Stipendiary
Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. This
was notwithstanding that torture was a crime under customary
international law of a jus cogens character.

United States of America

3.39 Customary international law is part of US law and must be
ascertained and administered by US courts when particular questions
are presented for determination. Resort must be had to the customs
and usages of civilised nations where there is no treaty or compelling
legislative or executive act or judicial decision: The Paquete Habana
175 US 677 at 700 (US SC, 1900). However, customary international
law cannot change a pre-existing Congressional enactment to the

[page 50]

contrary: Committee of US Citizens Living in Nicaragua v Reagan 859

 F 2d 929 at 939 (DC Cir, 1988). Nor can customary international law
supersede a previous final judicial decision.

3.40 The Alien Tort Statute of 1789 (US) provides for federal jurisdiction
over all civil actions where an alien sues for a tort in violation of the
law of nations or a US treaty. However, the modern law of nations
requires a norm of international character accepted by the civilised
world and defined with a specificity comparable to the features of the
18th century paradigms (such as slavery) which the US has
recognised: Sosa v Alvarez-Machain 124 S Ct 2739 at 2761–2 (US
SC, 2004).

Australia
3.41 Consistent with the incorporation approach, customary international
law is considered to be part of Australian law so long as it is not
contrary to a statute or final judicial authority. Justice Dixon’s ‘source’
view, or an approach which permits adoption through the common
law, holds sway over the legislative adoption approach: Nulyarimma v
Thompson (1999) 96 FCR 153 at [131] per Merkel J; see further at
[132]. In other words, whereas Australia uses the dualist (that is,
transformation) approach for treaties by requiring specific legislation,
it takes on a more monist (incorporation) approach for customary
international law.

3.42 In Chow Hung Ching v R (1949) 77 CLR 449 at 477–8; [1948] HCA
37, Dixon J observed that the idea that international law is
 automatically incorporated into national law is ‘without foundation’.
The question for a court is whether the particular rule of international
law has been received into and so become a source of Australian law.
Chief Justice Latham at 462 observed that international law is not as
such part of Australian law but that a universally recognised principle
of international law would be applied by Australian courts.

3.43 In Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23

(the Mabo case), Brennan J observed at CLR 141–2 that the common
law does not necessarily conform with international law, but
international law is a legitimate and important influence on
developing the common law, especially when international law
declares the existence of universal human rights.

3.44 The problems of proof should be acknowledged. It may be difficult to

establish the existence or precise content of a posited customary
international legal rule, and courts and tribunals may only be willing
to accept those rules which are well-established in state practice: see,
for example, Brennan J in Polyukhovich v

[page 51]

Commonwealth (1991) 172 CLR 501 at 559; [1991] HCA 32. On

establishing a rule of custom, see Chapter 2.

The resolutions of international organisations and national

law
3.45 Security Council resolutions are binding upon member States of the
United Nations (UN) and must be carried out by them: UN Charter
Art 25; see 2.63. However, where the UN Charter and Security
Council resolutions have not been carried into effect within Australia
by legislation, they cannot be relied upon to justify executive acts
which would otherwise be unjustified, even if the acts were done to
comply with those resolutions: Bradley v Commonwealth (1973) 128
CLR 557; [1973] HCA 34 at [26] (the Rhodesian Information Centre
case) per Barwick CJ and Gibbs J. Security Council resolutions may
nevertheless be invoked to support the constitutional validity of
Commonwealth legislation: see further Thomas v Mowbray (2007)
233 CLR 307; [2007] HCA 33 at [270]–[294] per Kirby J.

Judicial review of executive action

3.46 The relationship between international and national law can arise in
the context of judicial review of executive action in the area of foreign
relations. The principle of non-justiciability or the act of state
doctrine may be considered. The principle of non-justiciability posits
that there are some foreign policy issues (eg, which treaty to become a
party to) which are incapable of judicial determination. The act of
state doctrine is a common law rule that the national courts of one
State will, out of deference to sovereignty, abstain from questioning
the validity of a foreign State’s acts occurring within that territory. For
example, an Australian may claim that Australian officials were
complicit in conduct carried out overseas by the agents of other States
which amounted to torture prohibited under Australian legislation
giving effect to the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (opened for
signature 10 December 1984, 1465 UNTS 85, entered into force 26
June 1987): see Habib v Commonwealth (2010) 183 FCR 62; [2010]
FCAFC 12. The modern law on these matters is ‘far from settled,
black-letter law’: Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA
299 at [93].
 [page 53]

CHAPTER 4

International Legal Personality

 [page 54]

INTRODUCTION
4.1 Legal personality describes the capacity to possess rights, obligations,
powers or liabilities within a legal system. In a domestic system, legal
personality is enjoyed by various entities including individuals,
incorporated and unincorporated associations and the State. The
particular form of personality accorded to an entity will vary
depending on the sort of legal capacity it possesses.

4.2 In the international legal system, States are the principal holders of
legal personality. States are the main subjects of international law,
possessing an extensive range of rights and obligations. States are also
the creators of international law and they are able to confer legal
personality on other entities such as international organisations and
individuals.

STATEHOOD
4.3 Given that States enjoy full international legal personality, it is
important to be able to define what a State is. The most common
definition of statehood is found in the Montevideo Convention on
the Rights and Duties of States ((1933) 165 LNTS 1, entered into
force 26 December 1934) (Montevideo Convention). While this
 treaty was only signed by 15 States, it is considered to represent
customary international law. Under Art 1 of the Montevideo
Convention, a State possesses the following characteristics:

1. a permanent population;

2. a defined territory;
3. government;

4. capacity to enter into relations with the other States.

Montevideo Convention definition of statehood

4.4 The elements of the Montevideo Convention are considered to be
more important in determining whether a new State has emerged
than establishing a State’s continued existence. This is particularly
relevant for the requirements of ‘government’ and ‘capacity to enter
into relations with other States’, and temporary lapses in these
elements will not divest a State of its statehood. The position where a
State becomes permanently unable to satisfy one or more of these
elements is more problematic. For example, there is debate within
international legal scholarship about the consequences for States
which are likely to lose territory due to climate change: see Jane
McAdam, ‘“Disappearing States”, Statelessness and the Boundaries of
International Law’, UNSW Law Research Paper No 2010–2 (2010)
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539766>
(accessed 24 April 2015).

[page 55]
Permanent population
4.5 One way of describing a State is as the legal construct which
represents a group of people and provides a framework for them to
govern themselves. A State must therefore have a permanent
population which it represents. The population does not need to be
large, but it must not be temporary.

Defined territory
4.6 A State must also have a territory. As will be discussed below at 4.17,
one of the key features of statehood is the power to exercise
sovereignty over a particular territory. The territory does not have to
be undisputed. There have been many disputes between neighbouring
States as to the delimitation of their territory but this does not deny
them of their statehood (for example, see Maritime Delimitation in the
Indian Ocean (Somalia v Kenya) (Application, 28 August 2014)).
However, the territory does need to be sufficiently consistent:
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11, at
15.

Government
4.7 A State must have a government, although there are no stipulations as
to what form the government must take: Western Sahara Advisory
Opinion [1975] ICJ Rep 12, at 43–4. However, the government must
exercise effective control over the State’s territory. Further, the
government must be independent, that is, it must not be subject to
 the direction or control of any other State: Aaland Islands Question (on
Jurisdiction), Report of the International Committee of Jurists, League
of Nations Official Journal, Spec Supp No 3, 1920.

Case Summary

AALAND ISLANDS QUESTION (ON JURISDICTION)

(1920) LEAGUE OF NATIONS OFFICIAL JOURNAL, SPEC SUPP 3, AT
3.
INTERNATIONAL COMMITTEE OF JURISTS

FACTS: Finland declared independence from Russia in December 1917, but the
declaration led to civil war. The government was chased from the capital city and was
unable to maintain order. Both sides of the conflict received support from foreign
forces, specifically Soviet and German troops.

ISSUE: At what point could the Finnish Republic be said to have formed as an
independent State?

[page 56]

DECISION: The independent sovereign State of Finland did not come into existence
‘until a stable political organisation had been created, and until the public authorities
had been strong enough to assert themselves throughout the territories of the State
without the assistance of foreign troops’. The International Commission of Jurists
concluded that this occurred when the civil war ended in May 1918 and foreign troops
began to leave the territory.

Capacity to enter into foreign relations

4.8 In order to be a State, an entity must have capacity to enter into
relations with other States. This can refer to the entity’s financial,
political, technical or other capacity to engage in international
relations. It may also refer to whether the entity is recognised as a
 State by other States.

Recognition of States
4.9 Recognition occurs when States affirm or accept that another entity is
a State either de jure (in law) or de facto (in fact). It can take various
forms including formal declarations of recognition or implied
recognition through entering into treaties or other relations that are
reserved for States.

4.10 Recognition by other States is sometimes stated to be an additional

element of the definition of statehood. This approach is known as the
‘constitutive theory’ of recognition. An alternative approach is the
‘declarative theory’, under which recognition merely confirms that an
entity meets the legal requirements of statehood.

Declarative theory
4.11 The declarative theory is the more widely accepted view of
recognition. According to this approach, recognition is a political act
but is not an essential requirement for legal statehood. The fact that
an entity meets the legal definition of a State is not changed by
recognition; recognition merely declares this fact to be true.

Constitutive theory
4.12 Under the constitutive theory, an entity requires recognition by other
States in order to become a State. This theory recognises the political
reality that States create the law and decide which entities enjoy legal
 personality. The theory also has an evidentiary element: if no other
States recognise an entity, it is extremely unlikely that the entity is
able to satisfy the elements in the Montevideo Convention definition.

[page 57]

Preconditions to recognition
4.13 There may be certain preconditions attached to recognition. For
example, States may not recognise another entity as a State when that
entity has engaged in violations of human rights law or other
international law. For example, see European Community
Declaration on the Guidelines on the Recognition of New States in
Eastern Europe and the Soviet Union (1991) (1993) 4 EJHR 72. In
cases of serious violations there may be an obligation on States not to
grant recognition.

4.14 Issues relating to self-determination may also influence whether

States will grant recognition. All peoples have a right to self-
determination: see 6.12. This is an erga omnes right which all States
are obliged to uphold: Case Concerning East Timor (Portugal v
Australia) [1994] ICJ Rep 90: see 2.51 and 12.24. Where a people
forms an independent nation as a valid exercise of self-determination
then States may be under an obligation to grant the new nation
recognition.
Recognition of governments
4.15 States can choose to formally recognise new governments coming to
power in other States. In practice, however, many States adopt an
approach of only recognising States and not governments. This
removes the need to recognise frequent changes of government or to
adopt a position where the right to form legitimate government may
be in dispute. Further, as with recognition of States, there may be a
duty (including by virtue of a Security Council resolution) not to
recognise a government which assumes power in circumstances which
comprise a serious breach of international law. At the national level,
domestic courts may be guided by the views of the executive branch:
see, for example, Anglo-Czechoslovak & Prague Credit Bank v Janssen
[1943] VLR 185.

SOVEREIGNTY
4.16 The legal capacity and authority which States enjoy is referred to as
sovereignty. All States enjoy sovereign equality: Charter of the United
Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered
into force 24 October 1945) (UN Charter) Art 2(1); UN General
Assembly Resolution 2625 (1970) Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations,
UN GAOR 25th sess, Agenda Item 85, UN Doc A/RES/25/2625
(1970). Respect for sovereignty is a fundamental principle of
customary international law and States are prohibited from interfering
 in the internal affairs of other States: Military and Paramilitary

[page 58]

Activities in and against Nicaragua (Nicaragua v United States) [1986]

ICJ Rep 14 (Nicaragua Merits decision).

Territorial sovereignty
4.17 A key aspect of sovereignty is that it is exercised over a State’s
territory. A State has jurisdiction over its own territory (see
4.22–4.23) and is obliged to respect the territorial sovereignty of other
States: The Corfu Channel (United Kingdom of Great Britain and
Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4.

Scope of territory
4.18 A State’s territory includes the land and internal waters within its
territorial boundaries. It also includes the State’s territorial sea and the
land beneath it (see Chapter 9 on the definition of territorial waters).
Territory also includes the air space above these areas, but does not
extend to outer space.

JURISDICTION
4.19 State sovereignty entails jurisdiction to make and enforce domestic
laws over certain people, places and events. International law provides
 a number of rules which govern the exercise of a State’s jurisdiction.
These rules apply to ensure a balance between States’ rights to exercise
jurisdiction and their obligations to respect the sovereignty of other
States.

Categories of jurisdiction
4.20 There are two broad categories of jurisdiction: prescriptive and
enforcement. Prescriptive jurisdiction is the power to make laws
relating to a particular issue. Enforcement jurisdiction is the power to
enforce the law.

4.21 There are four principles which allow a State to establish jurisdiction:

1. territoriality;

2. nationality;
3. protective;

4. universality.

Territoriality
4.22 Under the territoriality principle, a State has prescriptive and
enforcement jurisdiction over any persons, things or events within its
territory. This jurisdiction flows directly from territorial sovereignty:
Island of Palmas Arbitration (1928) 2 RIAA 829.

4.23 Territorial jurisdiction is sometimes divided into subjective and

objective territoriality. Subjective territoriality exists where events take
place within the State’s
 [page 59]

territory, even though they might have effects elsewhere. Objective

territoriality is less well-settled, and applies to events which take place
in the territory of another State but which have an impact on the
territory of the State claiming jurisdiction: SS Lotus (France v Turkey)
[1927] PCIJ Ser A No 10 (Lotus case).

Nationality
4.24 States also have jurisdiction to apply their criminal laws to their
citizens. This applies even when the actions which comprise the
criminal offence take place within the territory of another State. This
form of jurisdiction is sometimes called the ‘active nationality
principle’.

4.25 States might also assert jurisdiction based on the ‘passive nationality
principle’ (sometimes called ‘passive personality’). Under this
principle, a State will have jurisdiction to apply its criminal laws where
the victim of an offence is a national of that State, even though the
events took place in the territory of another State and the offender
was a national of another State. This basis of jurisdiction is more
controversial, as can be seen from the dissenting judgment of Judge
Moore in the Lotus case, who said (at 92–3):

What, we may ask, is this system? In substance it means that the citizen of one
country, when he visits another country, takes with him for his ‘protection’ the law
 of his own country and subjects those with whom he comes into contact to the
operation of that law…It is evident that this claim is at variance not only with the
principle of the exclusive jurisdiction of a State over its own territory, but also with
the equally well-settled principle that a person visiting a foreign country, far from
radiating for his protection the jurisdiction of his own country, falls under the
dominion of the local law …

Protective
4.26 The protective principle allows a State to exercise jurisdiction in order
to protect its own security interests against injury or threat of injury.
This form of jurisdiction is generally considered to be restricted to a
narrow class of threats, including physical attacks on organs of the
State, forgery of official documents, counterfeiting of currency or
espionage.

Universality
4.27 The universality principle allows States to exercise jurisdiction over
crimes wherever they occur, on the basis that the conduct is so serious
that it represents a threat to the entire international community.
Crimes which are considered to

[page 60]

attract universal jurisdiction include piracy (see 9.28), war crimes,

crimes against humanity, torture and genocide.

4.28 Usually universal jurisdiction is established through treaties. For

 example, the Convention Against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (opened for signature 10
December 1984, 1465 UNTS 85, entered into force 26 June 1987)
(Convention Against Torture or CAT) requires States to establish
jurisdiction over offenders within their territory who have committed
prohibited acts, even if the acts were committed elsewhere: Art 5. The
existence of universal jurisdiction at customary international law is not
yet settled: Arrest Warrant of 11 April 2000 (Democratic Republic of
Congo v Belgium) [2002] ICJ Rep 3 (Arrest Warrant case) (Joint
Separate Opinion of Higgins, Kooijmans and Buergenthal JJ).

IMMUNITY
4.29 A corollary of the sovereign equality that States enjoy is that no State
is permitted to exercise its domestic jurisdiction against another State.
This is known as sovereign immunity. Immunity also extends to State
property: Jurisdictional Immunities of the State (Germany v Italy: Greece
Intervening) [2012] ICJ Rep 99; Convention on Jurisdictional
Immunities of States and Their Property, (signed 2 December 2004
(not yet entered into force)).

Immunity for heads of States, heads of government and

foreign ministers
4.30 Sovereign immunity extends to protect certain individuals based on
their official role within the State or the fact that they are carrying out
official State business: Arrest Warrant case. There are two types of
 immunity: ratione personae and ratione materiae. For both types of
immunity a State may waive the individual’s protection and allow
them to be prosecuted.

Immunity ratione personae

4.31 Immunity ratione personae is based on the position which a particular
individual holds within a government and is designed to enable them
to perform State duties without threat of foreign legal action. It
extends to both official and private conduct but only lasts as long as
the individual is in office.

Immunity ratione materiae

4.32 Immunity ratione materiae is based on the official nature of the
conduct which a person carries out. It applies only for acts conducted
in an official capacity, not private acts, and extends even beyond the
person’s term in office.

[page 61]

Table 4.1 Application of immunity

In office Not in office

Official conduct Ratione personae & ratione Ratione materiae
materiae
Private conduct Ratione personae No immunity

Case Summary
 R V BOW STREET METROPOLITAN STIPENDIARY
MAGISTRATE; EX PARTE PINOCHET UGARTE (NO 3)
[2000] 1 AC 147
HOUSE OF LORDS

FACTS: General Augusto Pinochet was the leader of Chile from 1973–1990, where he
ruled as head of a military junta. He was accused of widespread violations of human
rights, including torture and murder. A Spanish magistrate had issued a warrant for
Pinochet’s arrest on charges relating to the torture and murder of Spanish citizens. He
was arrested in London when he travelled there for medical treatment in 1998.
General Pinochet argued that, as the former Head of State of Chile, he was immune
from prosecution. The matter went to the House of Lords.

ISSUE: Were General Pinochet’s acts official in nature, so as to grant him immunity
ratione materiae?

DECISION: As General Pinochet was no longer in office, he would only be entitled to

immunity for acts which were official in nature. The Court found that once the
Convention Against Torture had entered into force for the UK in 1988 acts of torture
and other inhuman and degrading treatment and punishment attracted universal
jurisdiction and could no longer be considered ‘official’ conduct. They could not
therefore be protected by immunity ratione materiae. General Pinochet could be
prosecuted for any unlawful acts committed after 1988.

LEGAL PERSONALITY OF NON-STATE ACTORS

4.33 While States are the primary entities possessing international legal
personality, it is possible for non-State actors to enjoy some form of
personality. This is particularly

[page 62]

the case for international organisations which have been created by

States. Individuals also enjoy limited personality in international law.
International organisations
4.34 Where an international organisation has been created by States it may
enjoy international legal personality. The extent of its capacity will
depend on the instruments by which it is established and the way that
it is engaged with by States, but may include such personality as is
explicitly granted to it in its constituent instruments or is necessary for
it to perform its duties: Reparation for Injuries Suffered in the Service of
the United Nations (Advisory Opinion) [1949] ICJ Rep 174. See also
the Convention on the Privileges and Immunities of the United
Nations, (opened for signature 13 February 1946, 1 UNTS 15,
entered into force 17 September 1946).

Individuals
4.35 Individuals enjoy limited personality within international law.
Individuals are granted human rights under numerous treaties, and in
some cases are empowered to bring claims to international tribunals in
the event that those rights have been violated: see the discussion in
Chapter 6, especially 6.47–6.49. Individuals can also be held
personally responsible for violations of international law, especially
international criminal law and international humanitarian law: see
Chapter 7. Where an individual is unable to bring a claim directly, the
State of nationality may be able to bring a claim on their behalf
through the exercise of diplomatic protection: see 10.38.

Transnational corporations
4.36 Corporations only have limited international legal personality: Texaco
Overseas Petroleum Company and California Asiatic Oil Company v The
Government of the Libyan Arab Republic (1977) 53 ILR 389 at 457–8.

Non-governmental organisations
4.37 The limited international legal personality of non-governmental
organisations includes some participatory opportunities at
international conferences and before some international tribunals.
 [page 63]

CHAPTER 5

International Environmental Law

 [page 64]

INTRODUCTION
5.1 International environmental law (IEL) regulates the protection of
nature. Like any other legal system, IEL can be conceived as a formal
system based on primary and secondary substantive rules (primary
obligation (1) – breach – secondary obligation (sanction (2)),
complemented by procedural rules (secondary obligations on: sources
(1) – adjudication (2) – enforcement (3)): Ottavio Quirico, A Purely
Formal Theory of Law – The Deontic Network, EUI MWP 2009/11,
<http://hdl.handle.net/1814/11482>.

5.2 According to the Stockholm Declaration of the United Nations (UN)

Conference on the Human Environment (UNCHE, A/CONF
48/14/Rev 1 (1972)) the environment encompasses ‘the natural
resources of the earth, including the air, water, land, flora and fauna’:
Principle 2; see also Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226 (Nuclear Weapons) at 241,
[29].

5.3 Protecting the environment basically entails limiting its degradation,

and thus pollution. For instance, Principle 7 of the Stockholm
Declaration defines marine ‘pollution’ as the introduction of
‘substances that are liable to create hazards to human health, to harm
 living resources and marine life, to damage amenities or to interfere
with other legitimate uses of the sea’. Since pollution may be trans-
boundary, international regulation is crucial to prevent and limit it.

IEL SOURCES
5.4 International environmental law developed in a fragmented way in the
twentieth century. In 1941, adjudicating upon the Trail Smelter
dispute between the United States of America (US) and Canada, an
Arbitral Tribunal established the basic ‘no-harm’ rule that a State is
obliged to prevent trans-boundary pollution. Building upon this
premise and the concept of sustainable development, more principles,
which rank in between soft and hard law, were established in the
second half of the twentieth century.

5.5 A timeline of the essential milestones in the development of IEL is as

follows:

1947 Trail Smelter Arbitration

– ‘No-harm’ rule → obligation to prevent trans-boundary
pollution.
1972 UNCHE
– Report recommending a UN permanent institutional
arrangement for environmental protection
– Action Plan (109 Recommendations)
– Stockholm Declaration (26 Principles)
 → Environmental protection and socio-economic
development.

[page 65]

1972 UN General Assembly Resolution 2997 (XXVII)

→ UN Environment Programme (UNEP).

1987 Report ‘Our Common Future’ (UN World Commission

on Environment and Development, Brundtland Report)
→ Sustainable development = poverty reduction +
environmental protection.
1992 Conference on Environment and Development
(UNCED), Rio de Janeiro, Brazil
– Rio Declaration (27 Principles)
– Action Plan (Agenda 21)
– Statement on the protection of forests

→ Environmental protection, socio-economic

development + new principles (common but
differentiated responsibility).
UNFCCC and Convention on Biological Diversity (CBD)
opened for signature
→ Model for subsequent multilateral environmental
agreements (MEAs) on environmental goods of
 ‘common concern of mankind’.
2000 Millennium Declaration (UN GA Resolution 55/22).
2002 Johannesburg Declaration on Sustainable Development.
2012 UN Rio+20 Conference on Sustainable Development
– Report (‘The Future We Want’).

5.6 A general framework for primary and secondary international rules on

environmental protection is currently outlined in the International
Law Commission (ILC) Draft Articles on the Prevention of
Transboundary Harm from Hazardous Activities (DAPTHHA, UN
Doc A/56/10, (2001)) and Draft Principles on the Allocation of Loss
in the Case of Transboundary Harm Arising out of Hazardous
Activities (DPALTHAHA, UN Doc A/61/10, (2006)).

5.7 Around 200 international conventions regulate particular IEL areas.

GENERAL IEL PRINCIPLES

5.8 Under international law, States are basically obliged to respect and
protect the natural environment: eg, Nuclear Tests Examination
Request (New Zealand) [1995] ICJ Rep 288 at [64]. This proposition
gives rise to several substantive and procedural principles.

Substantive principles
5.9 No-harm rule: The ‘no-harm’ rule was first outlined in the Trail
Smelter case.
 [page 66]

Case Summary

TRAIL SMELTER (USA v CANADA)

Award of 16 April 1938 and 11 March 1941 (1950) III RIAA 1905

FACTS: Since 1896, smoke from a smelter of lead and zinc operated by the
Consolidated Mining and Smelting Company (COMINCO) in Trail, British Columbia,
Canada, had caused damage to crops, livestock, timber, and structures, across the
border in Washington State, US. Civil proceedings in the US and Canada were unlikely
to be successful, particularly in light of the absence of long-harm precedents.
Pressured by a grassroots movement of farmers (Citizens’ Protective Association), the
US State Department worked with Canada to have the matter referred to the
International Joint Commission, established in 1909 under the Boundary Waters
Treaty. The Commission awarded compensation, but did not prohibit harm resulting
from continuing emissions.

In 1935, the governments of the US and Canada agreed to submit the case to an
Arbitral Tribunal.

ISSUE: Do States have an obligation not to cause trans-boundary environmental

harm?

DECISION: The Arbitral Tribunal delivered two decisions. In the first decision of 16 April
1938, the Tribunal concluded that harm had occurred between 1932 and 1937 and
awarded the US an indemnity of $78,000 as the ‘complete and final indemnity and
compensation for all damage’. In the second decision of 11 March 1941, the Tribunal
held that ‘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’. Consequently, a mitigation regime was imposed on Canada to
reduce the effects of the smelter’s operation to an acceptable level.

The Tribunal thus determined for the first time that States bear international
responsibility for trans-national pollution.

5.10 Subsequent case law has confirmed the no-harm principle: eg, Nuclear
Tests (Australia v France; New Zealand v France) (Interim Measures)
[1973] ICJ Rep 99 at [30], 135 [31].
 In Lac Lanoux (France v Spain) (1957) 12 RIAA 281 (Lac Lanoux),
adjudicating upon a controversy on the diversion of a lake an Arbitral
Tribunal held that States

[page 67]

must cooperate with one another in mitigating trans-boundary

environmental pollution: see also Pulp Mills on the River Uruguay
(Argentina v Uruguay) [2010] ICJ Rep 14 (Pulp Mills) and
DAPTHHA Arts 3 ff.

5.11 The ‘no-harm’ rule was eventually embedded in Principle 21 of the

Stockholm Declaration:

States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, 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.

5.12 The no-harm principle has acquired customary status in international

law: Nuclear Weapons at 241–2 [30]. However, if environmental harm
is diffuse, as in the case of greenhouse gas (GHG) emissions, it is
difficult to apportion responsibility: OASIACHR, Letter to Sheila-
Watt Cloutier and Others, Petition (Inuit) No P-1413-05 (2006).

5.13 Sustainable development: According to the concept of ‘sustainable

development’, economic progress must be compatible with
 environmental protection. Therefore, State sovereignty over natural
resources is limited by the necessity of using them rationally:
Gabčíkovo-Nagymaros Project [1997] ICJ Rep 7 at 78 [140].

This tenet is embedded in Principles 3–5 and 8 of the Rio

Declaration on Environment and Development (Rio Declaration):
UN Doc A/CONF 151/26 (1992). Principle 3 provides:

The right to development must be fulfilled so as to equitably meet developmental

and environmental needs of present and future generations.

5.14 Sustainable development entails:

Intra- and inter-generational equity (Nuclear Weapons at 241

[29]).
Common but differentiated responsibility (Rio Declaration
Principle 7).
Cooperative interstate transfer of technology and scientific
knowledge (Rio Declaration Principle 9).
Consensual integration of environmental protection into
economic decisions (Rio Declaration Principle 12).

The 2011 OECD Guidelines for Multinational Enterprises

(Chapter VI) extend these principles to private corporations.

[page 68]
5.15 Precautionary principle: According to the precautionary principle, lack
of full scientific certainty about severe environmental harm cannot
prevent protective action.

Rio Declaration Principle 15 provides:

In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.

5.16 The precautionary principle helps to define the boundaries of

responsibility for environmental harm: see DAPTHHA Art 3. Yet,
the extent of the notion is controversial. In Southern Bluefin Tuna
Cases (New Zealand v Japan; Australia v Japan (Provisional Measures)
[1999] 38 ILM 1624 (Southern Bluefin Tuna), ITLOS required
cessation of a Japan’s experimental fishing programme for southern
bluefin tuna based on ‘prudence and caution’: at [77]; see also Nuclear
Tests (Australia v France) at 105 [29], (New Zealand v France) at 141
[30] and MOX Plant (Ireland v United Kingdom) (ITLOS, Request
for Provisional Measures, Order of 3 December 2001) (MOX Plant
case) 1 at [84].

The concept has been embedded in several MEAs and other

environmental instruments, for instance, in the Preamble to the
Vienna Convention for the Protection of the Ozone Layer (adopted
and opened for signature 22 March 1985, 1513 UNTS 323, entered
into force 22 September 1988) and in Principle 6.5 of the Food and
 Agriculture Organization of the United Nations (FAO) Code of
Conduct for Responsible Fisheries (1995).

5.17 Although it is possible to assume that the precautionary principle has

customary status in international law, courts have not expressed their
views on this issue: see EC-Hormones (Report of the Appellate Body,
16 January 1998) 1 at 47 [123].

5.18 Polluter pays: The ‘polluter pays’ principle complements the ‘no-harm’
rule. It provides that an entity causing pollution is responsible for
environmental damage and must give compensation.

This rule was first mentioned in the OECD Council

Recommendation on the Guiding Principles concerning International
Economic Aspects of Environmental Policies (1972), and is now
embedded in the Rio Declaration, whose Principle 16 provides:

National authorities should endeavour to promote the internalisation of

environmental costs and the use of economic instruments, taking into

[page 69]

account the approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting
international trade and investment.

5.19 Responsibility under the polluter pays principle must be attributed not
only to States, but also to private legal persons. In fact, pollution is
 often produced by private entities and States are indirectly responsible
for not taking pre-emptive measures. This discloses the possibility of
applying strict liability as a threshold for responsibility, based upon
the due diligence standard: Corfu Channel (United Kingdom of Great
Britain and Northern Ireland v Albania) [1949] ICJ Rep 4 at 18;
Canada–US Settlement of Gut Dam Claims [1968] 8 ILM 118; Amoco
Cadiz (7th Cir, 1992) 954 F2d 1279; IIL Resolution on
Responsibility and Liability under International Law for
Environmental Damage (1997) Arts 3 and 5.

5.20 Protecting the environment in time of war: Within the context of

international humanitarian law (IHL), it is controversial whether the
wanton destruction of the environment, unjustified by military
necessity, is an established general principle of international law: UN
General Assembly Resolution 47/37, 25 November 1992; Nuclear
Weapons at 242 [31]–[32].

Procedural principles
5.21 Environmental impact assessment: Procedurally, States are obliged to
carry out environmental impact assessments (EIAs), before adopting
effective environmental legislation: Rio Declaration Principles 11 and
17; DAPTHHA Art 7.

This obligation was initially recognised domestically by the US

National Environmental Policy Act 1969 and is developing as a
customary international law rule.
 Principle 17 of the Rio Declaration provides:

Environmental impact assessment, as a national instrument, 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.

5.22 Environmental impact assessments have a pre-emptive function. They

aim to ensure the weighing of negative and positive impacts of
proposed regulation on the environment at early stages of the rule-
making process, minimising pollution.

Article 2(3) of the Convention on Environmental Impact

Assessment in a Transboundary Context ((Espoo Convention)
adopted and opened for signature 25 February 1991, 1989 UNTS
309, entered into force 10 September 1997) compels States to abide
by this principle transnationally, establishing a connection with the
‘no-harm’ rule.

[page 70]

5.23 Access to information, judicial remedies and participation in decision-

making: States must provide people and non-State actors with access
to information, judicial remedies and participation in decision-making
processes in environmental matters: Rio Declaration, Preamble and
Principle 10. Particular attention must be paid to indigenous peoples:
eg, Rio Declaration Principle 22; Nagoya Protocol to the CBD
(adopted 29 October 2010, opened for signature 2 February 2011,
 entered into force 12 October 2014) Art 6.

5.24 The right of access to information is fundamental at both the

international and domestic levels. Principle 10 of the Rio Declaration
provides:

Environmental issues are best handled with participation of all concerned citizens,
at the relevant level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public authorities,
including information on hazardous materials and activities in their communities,
and the opportunity to participate in decision-making processes.

States shall facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.

5.25 The principle of public participation has been spelled out by the UN
Economic Commission for Europe (UNECE) in the Convention on
Access to Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters ((Aarhus Convention)
adopted and opened for signature 25 June 1998, 2161 UNTS 447,
entered into force 30 October 2001). In 2005, the second Meeting of
the Parties to the Aahrus Convention adopted the Almaty
Guidelines, which aim to enhance public participation at the
international level.

This principle facilitates private environmental standard-setting, in

addition to public regulation, through instruments such as the
 Business Charter for Sustainable Development, adopted by the
International Chamber of Commerce in 1991.

PARTICULAR IEL REGIMES

5.26 Multilateral environmental agreements (MEAs) are mostly based on a
conventionannex or convention-protocol framework, facilitating
adaptation to rapid technological progress.

5.27 Institutionally, environmental treaty regimes usually include an

administrative secretariat, specialised bodies, and periodic conferences
of the States Parties (COPs), which simplify adoption of subsidiary
rules.

[page 71]

5.28 Obligations arising out of MEAs bind not only States, but also
private persons, as a result of the implementation of international
obligations into national legal systems.

Soils and forests

5.29 Soils: Only a few international rules protect soils. The most relevant
instrument is the UN Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa (adopted 17 June 1994, opened for signature 14
October 1994, 1954 UNTS 3, entered into force 26 December 1996),
 which urges countries to prevent land degradation in arid, semi-arid,
and dry sub-humid areas. The Convention operates along the lines of
sustainable development, aiming at eradicating poverty in developing
countries.

5.30 Forests: Although the annual rate of forest loss worldwide is worrying,
there is no comprehensive international regulation protecting tropical,
temperate, and boreal forests.

Backbone regulation relating to the protection of forests includes:

International Tropical Timber Agreement (first adopted 18

November 1983, opened for signature 26 January 1994, 1393
UNTS 671, entered into force 1 April 1985)
→ Sustainable management of tropical timber producing
forests
→ International Tropical Timber Organization (ITTO).
Forest Principles (1992)
→ Model regulation for management, conservation, and
rehabilitation of forests.
UN General Assembly Resolution 62/98, including a Non-
Legally Binding Instrument on All Types of Forests (2008)
→ State responsibility and cooperation for the sustainable
management of all types of forests.

Water
5.31 Watercourses: International watercourses have often been a reason for
disputes between neighbouring States, as in Lake Lanoux and Pulp
Mills.

The UN Convention on the Law of the Non-Navigational Uses of

International Watercourses ((Watercourses Convention) adopted and
opened for signature 21 May 1997, entered into force 17 August
2014) is the main regulatory instrument in the field. It embeds the
principle of equitable and reasonable utilisation of international
watercourses (Art 5), including both surface water and

[page 72]

groundwater (Art 2(a)), within the context of the obligation not to

cause trans-boundary environmental harm (Art 7). Based upon the
ecosystem approach, the Watercourses Convention prescribes
measures for preventing, reducing and controlling pollution of
international watercourses, and preserving the marine environment:
Arts 20–23.

5.32 A more specific framework for groundwater protection is provided by

the ILC’s Draft Articles on Transboundary Aquifers, embedded in
UN General Assembly Resolution 63/124. The Draft Articles adapt
the principles of the Watercourses Convention to groundwater and
provide a model for conventional regulation.
5.33 Marine environment: A general framework for the protection of the
marine environment is established under Part XII of the UN
Convention on the Law of the Sea ((UNCLOS) adopted and opened
for signature 10 December 1982, 1833 UNTS 3, entered into force 16
November 1994).

UNCLOS covers the following matters:

Global and regional cooperation.

Technical assistance and monitoring.
Environmental assessment.
Prevention, reduction and control of marine environmental
pollution from sources such as land, dumping and vessels.
Responsibility and liability.

5.34 Under UNCLOS, although they have the sovereign right to exploit
their natural resources, States must abide by a general obligation to
protect and preserve the marine environment: Arts 192–196. More
specifically, States must prevent and control pollution from land-
based sources, the seabed, artificial islands, dumping and the
atmosphere: Arts 207–208, 210 and 212. This concerns areas within
and beyond State jurisdiction: Art 209. With respect to the latter, the
concept of ‘common heritage of mankind’ prevents appropriation and
facilitates environmental protection: Art 136. In particular, coastal
States and the flag State regulate pollution control from vessels that
are in their territorial waters, included in their registry, or flying their
 flags, consistently with international rules and standards: Art 211. For
more on the law of the sea, see Chapter 9.

5.35 Further conventions regulate specific sources of pollution, including:

The Convention for the Prevention of Pollution of the Sea by

Oil (adopted and opened for signature 12 May 1954, 327
UNTS 3, entered into force 26 July 1958).

[page 73]

The Convention for the Prevention of Pollution from Ships

(adopted and opened for signature 2 November 1973, 1340
UNTS 184, entered into force 2 October 1983).

Air
5.36 In the 1960s, the phenomenon of ‘acid rain’ raised public awareness as
to the long-distance effects of air pollution. The Convention on
Long-Range Transboundary Air Pollution ((LRTAP Convention)
adopted and opened for signature 13 November 1979, 1302 UNTS
217, entered into force 16 March 1983) responded to this problem,
aiming to gradually reduce air pollution.

The LRTAP Convention has progressively been integrated by

eight protocols, governing pollutants, such as sulphur and heavy
 metals, and effects of air pollution, such as acidification and
tropospheric ozone formation.

5.37 In the early 1970s, the discovery that chlorofluorocarbon gases

(‘CFCs’) combine with solar radiation and deplete ozone molecules
prompted the adoption of the Vienna Convention for the Protection
of the Ozone Layer, which currently enjoys almost universal
membership.

The Vienna Convention provides for:

Interstate cooperation by means of systemic observations,

research and information exchange on the effects of human
activities on the ozone layer.
Adoption of measures against activities likely to negatively affect
ozone molecules.

The Vienna Convention is complemented by the Montreal

Protocol on Substances that Deplete the Ozone Layer (adopted and
opened for signature 16 September 1987, 1522 UNTS 3, entered into
force 1 January 1989), which focuses on the reduction and phasing-
out of production and consumption of specific ozone-depleting
substances, according to the principle of common but differentiated
responsibility

5.38 The release of anthropogenic GHGs in the atmosphere is a critical

cause of rising temperatures and climate change. Acknowledged by
 the international community in the 1980s, this phenomenon
prompted the adoption of the United Nations Framework
Convention on Climate Change (UNFCCC) on 9 May 1992 (opened
for signature 4 June 1992, 1771 UNTS 107). The UNFCCC
subsequently entered into force on 21 March 1994 and key aspects
are:

Stabilisation of atmospheric temperature increase below 2

degrees centigrade.
Common but differentiated responsibility.

[page 74]

5.39 The UNFCCC is complemented by the Kyoto Protocol, which was

adopted by the Third Session of the Conference of the Parties
(COP3) to the UNFCCC on 11 December 1997 (opened for
signature 16 March 1998, 2303 UNTS 1) and entered into force on
16 February 2005. The Kyoto Protocol provides for:

Binding state GHG reduction targets (2008–2020).

Cost-effective implementation via ‘flexible mechanisms’
→ Joint implementation of reduction commitments
→ International emission trading
→ Clean development mechanisms.
5.40 Australia became a party to the Kyoto Protocol in December 2007
and signed up to the second commitment phase in 2012, with
relatively generous reduction targets in light of its heavy reliance on
coal.

5.41 A new universal climate change agreement is to be negotiated at

COP21 in Paris in December 2015 and is expected to enter into force
in 2020.

Polar Regions
5.42 Since they are covered by ice caps, the Polar Regions have specific
environmental features, which are crucial for the natural balance of
the planet.

5.43 The Arctic Region is not protected by a comprehensive

environmental regime, but only by specific environmental treaties,
such as the multilateral Agreement on the Conservation of Polar
Bears (adopted and opened for signature 15 November 1973, entered
into force 26 May 1976) between Canada, Denmark, Norway, Russia
and the US.

5.44 The Antarctic continent is covered by a specific treaty system – The

Antarctic Treaty System (ATS) – in which Australia plays a leading
role. The ATS encompasses a set of conventions regulating the
peaceful utilisation of Antarctica, freedom of scientific investigation,
territorial claims and protection of the Antarctic environment:
 Antarctic Treaty (adopted and opened for signature 1 December
1959, 402 UNTS 71, entered into force 23 June 1961).
Convention for the Conservation of Antarctic Seals ((CCAS)
adopted and opened for signature 1 June 1972, 1080 UNTS
176, entered into force 11 March 1978).
Convention for the Conservation of Antarctic Marine and
Living Resources ((CCAMLR) adopted 20 May 1980, opened
for signature 1 August 1980, 1329 UNTS 48, entered into force
7 April 1982).

[page 75]

Convention on the Regulation of Antarctic Mineral Resource

Activities ((CRAMRA) adopted 2 June 1988, opened for
signature 25 November 1988, 27 ILM 859, not in force).
Protocol to the Antarctic Treaty on Environmental Protection
(adopted and opened for signature 4 October 1991, opened for
signature 30 ILM 1455, entered into force 14 January 1998).

Outer space
5.45 Article IX of the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies ((Outer Space Treaty) adopted 19
December 1966, opened for signature 27 January 1967, 610 UNTS
 205, entered into force 10 October 1967) aims to prevent the
contamination of the outer space and further effects on the earth’s
environment. Article IX specifies that, in pursuing studies and
exploration of the outer space, States avoid not only its ‘harmful
contamination’, but also ‘adverse changes in the environment of the
earth’.

5.46 Under Art 11 of the Agreement Governing the Activities of States on

the Moon and Other Celestial Bodies (adopted 5 December 1979,
opened for signature 18 December 1979, 1363 UNTS 3, entered into
force 11 July 1984), the Moon’s environment is also protected as
‘common heritage of mankind’.

5.47 Along the same lines, UN General Assembly Resolution 47/68 of 14

December 1992 aims to ensure the environmentally non-harmful use
of nuclear power in outer space.

Flora and fauna

5.48 Core treaties protecting flora and fauna have been adopted since the
1970s:

Convention on Wetlands of International Importance especially

as Waterfowl Habitat (adopted and opened for signature 2
February 1971, 996 UNTS 245, entered into force 21 December
1975).
Convention on International Trade in Endangered Species of
 Wild Fauna and Flora ((CITES) adopted and opened for
signature 3 March 1973, 993 UNTS 243, entered into force 1
July 1975).
Convention on the Conservation of Migratory Species of Wild
Animals (adopted and opened for signature 23 June 1979, 1651
UNTS 333, entered into force 1 November 1983).
Watercourses Convention (1997)
– Protection of living resources: Arts 22 and 23.

[page 76]

5.49 Marine living resources are protected according to the following

scheme:

UNCLOS
→ Cooperative framework for proper conservation and
management of living resources in the EEZs (Arts 61–68)
and the high seas (Arts 116–120).
Protection of particular species:
– Convention for the Regulation of Whaling (adopted and
open for signature 2 December 1946, 161 UNTS 72,
entered into force 10 November 1948)
– Fish Stock Agreement (adopted 4 August 1995, opened for
signature 4 December 1955, 2167 UNTS 3, entered into
 force 1 December 2001).

5.50 The most relevant instrument in the field is the CBD (adopted 22
May 1992, opened for signature 5 June 1992, 1760 UNTS 79, entered
into force 29 December 1993), which aims at the preservation of
biological diversity, the sustainable use of its components and the fair
and equitable sharing of the benefits arising out of the utilisation of
genetic resources.

5.51 On 29 January 2000, CBD COP5 adopted the Cartagena Protocol on

Biosafety (opened for signature 15 May 2000, 2226 UNTS 208,
entered into force 11 September 2003), preventing biodiversity risks
posed by the trans-boundary transfer, handling and use of living
modified organisms, based on an advanced informed agreement
procedure.

Natural heritage
5.52 The World Heritage Convention (adopted and opened for signature
16 November 1972, 1037 UNTS 151, entered into force 15
December 1975) provides for protection of cultural and natural
heritage sites registered in the World Heritage List, including natural
features, sites and geological and physiographical formations of
outstanding universal value.

Case Summary
 COMMONWEALTH v TASMANIA
(1983) 158 CLR 1; 46 ALR 625; [1983] HCA 21
HIGH COURT OF AUSTRALIA

FACTS: Since 1974, Australia has been a party to the World Heritage Convention. In 1975
and 1983, the Commonwealth respectively passed the National Parks and Wildlife
Conservation Act and the World Heritage Properties Conservation Act, thus overriding
the Tasmanian Gordon River Hydro-Electric Power Development Act 1982.

[page 77]

As a result, the construction of a dam in the protected Tasmanian Wilderness World

Heritage Area was prohibited. Since the Tasmanian Government challenged the
validity of the Commonwealth measures, the case was brought to the High Court of
Australia.

ISSUE: Despite the absence of a specific head of power, can the Commonwealth
legislate in environmental matters?

DECISION: By a four to three majority, the High Court of Australia held, inter alia, that s
51(xxix) of the Commonwealth Constitution (External Affairs) confers upon the
Commonwealth Parliament the capacity to pass legislation implementing the World
Heritage Convention, including legislation covering environmental matters,
notwithstanding the absence of a specific constitutional head of power on the
protection of nature. Indeed, the general character of s 51(xxix) allows the
Commonwealth to override the autonomy of federated States and regulate a wide
range of issues, including the environment, if this is necessary to fulfil international
commitments. See further Chapter 3 at 3.23 ff.

Finance, trade and energy

5.53 According to the principle of sustainable development, which is
progressively embedded in bilateral and multilateral investment
agreements (eg, North American Free Trade Agreement (NAFTA)
adopted and opened for signature 17 December 1992, 32 ILM 289,
entered into force 1 January 1994) Art 1114: see Chapter 8), the
 World Bank and the International Monetary Fund (IMF) seek to
implement environmental concerns in competitive international
investment. Within this framework, the Global Environmental
Facility is the largest multilateral source of funds for environmental
protection and serves as a financial mechanism for MEAs such as the
UNFCCC and the CBD.

5.54 In the context of the World Trade Organization (WTO), Art XX(b)
of the General Agreement on Tariffs and Trade ((GATT) adopted
and opened for signature 30 October 1947, 55 UNTS 194, entered
into force 1 January 1948) allows non-arbitrary and non-
discriminatory environmental derogations from trade freedom to
protect ‘human, animal or plant life or health’ and ‘exhaustible natural
resources’; which might be interpreted as a tool for environmental
protection: Shrimp-Turtle (Appellate Body, 12 October 1998) 1, 67
[168]; Rio Declaration Principle 12 (see further Chapter 8).

[page 78]

5.55 The Energy Charter Treaty ((ECT) adopted and opened for signature
17 December 1994, 2080 UNTS 95, entered into force 16 April
1998) is the main international regulatory instrument in the field of
energy, which is crucial to environmental preservation.

Building upon the Energy Charter (1991), the ECT not only
 regulates international energy trade and investment, but also commits
States parties to minimise internal and external negative
environmental impacts of energy production and consumption. This
objective is fostered via the implementation of the main IEL
principles, including EIAs, public participation and the polluter pays
principle: Art 19.

The ECT is complemented by the Protocol on Energy Efficiency

and Related Environmental Aspects (adopted and opened for
signature 17 December 1994, 2081 UNTS 3, entered into force 16
April 1998).

Hazardous waste and substances

5.56 Hazardous waste and substances are the result of modern production
processes and pose a serious threat to the environment.

The Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal (1989) addresses
the problem of dumping of hazardous waste from developed countries
in developing countries owing to the tightening of environmental
regulation in the place of origin:

Basel Convention (adopted 22 March 1989, opened for

signature 23 March 1989, 1673 UNTS 126, entered into force 5
May 1992)
→ Prior informed consent procedure
 → 1994 COP amendments (not yet entered into force)
→ prohibition of export of hazardous waste.

Basel Protocol on Liability and Compensation for Damage

Resulting from Transboundary Movements of Hazardous
Wastes and Their Disposal (adopted 10 December 1999,
opened for signature 6 March 2000, not yet entered into force).

Other major regulation includes:

Joint Convention on the Safety of Spent Fuel Management and

on the Safety of Radioactive Waste Management (adopted 5
September 1997, opened for signature 29 September 1997, 2153
UNTS 303, entered into force 18 June 2001).

[page 79]

Convention on the Prior Informed Consent Procedure for

Certain Hazardous Chemicals and Pesticides in International
Trade (adopted 10 September 1998, opened for signature 11
September 1998, 2244 UNTS 337, entered into force 24
February 2004).
2001 Convention on Persistent Organic Pollutants (adopted 22
May 2001, opened for signature 23 May 2001, 2256 UNTS 119,
entered into force 17 May 2004).
Armed conflicts
5.57 The UN Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques ((ENMOD)
adopted 10 December 1976, opened for signature 18 May 1977, 1108
UNTS 151, entered into force 5 October 1978) protects the
environment within the context of IHL.

5.58 Rules protecting the environment are also embedded in different IHL
conventions. For instance, Art 35(3) of Additional Protocol I to the
Geneva Conventions (see Chapter 7) prohibits methods or means of
warfare that are intended or may be expected to cause ‘widespread,
long-term and severe damage to the natural environment’.

COMPLIANCE PROCEDURES
General mechanisms
5.59 Private legal persons can be sued before domestic jurisdictions for
breaches of environmental obligations, based on private international
law rules, in particular: (a) the place where damage occurs; (b) the
place where harmful activity takes place; and (c) the domicile of the
defendant.

5.60 According to Principle 6 DPALTHAHA, States must provide

administrative and judicial domestic bodies with necessary jurisdiction
over trans-boundary damage caused by hazardous activities located
within their territory or under their control. Prompt, adequate and
 effective remedies must also be available. The Stockholm and Rio
Declarations further dispose that States cooperate in defining liability
and compensation schemes for the adverse effects of environmental
damage: respectively Principles 7 and 13.

5.61 Determining compensation for environmental damage is a complex

task, as shown by the Patmos case.

[page 80]

Case Summary

MINISTRY OF THE MERCHANT MARINE AND OF THE

INTERIOR v PATMOS SHIPPING CORP AND OTHERS
(APPEAL COURT, MESSINA, 30 MARCH 1989)
[1990] 5 RIVISTA GIURIDICA DELL’AMBIENTE 527

FACTS: In this case, Italy claimed compensation from the International Oil Pollution
Compensation Fund for oil spills from the Greek Patmos tanker off the coast of
Calabria. This claim was rejected because of a lack of evidence supporting the
quantification of damage, which prompted the Italian Government to bring an action
in its national courts.

ISSUE: What is the scope of the notion of ‘pollution damage’?

DECISION: Whereas the court of first instance of Messina found no proof of financial
loss, the Appeal Court took a broad stand on the concept of ‘pollution damage’,
including immaterial values and the reduced possibility of exploiting the environment.
As a consequence, the owner of the tanker was held liable for damaging the Italian
marine environment, assuming that a lack of data quantifying environmental damage
does not prevent the award of compensation.

The case was finally settled out of court.

 States can react to breaches of environmental obligations via
5.62
invocation of responsibility, and therefore cessation, reparation and
countermeasures. This is, for instance, the case where unilateral trade
measures are taken against imported products or services breaching
environmental standards: Shrimp-Turtle; Air Transport Association of
America v Secretary of State for Energy and Climate Change (CJEU,
Case C-366/10, 21 December 2011); see further Chapter 8 and
Ottavio Quirico, ‘Primary Sovereign Rights or Secondary
Environmental Duties? Critical International Law Issues Raised by
the Extraterritorial Application of the EU Emission Trading System
in the Aviation Sector’, in Christine Bakker and Francesco Francioni
(eds), The EU, the US and Global Climate Governance, Ashgate, 2014,
at 143.

5.63 Alternatively, States can resort to either mediation and conciliation or

judicial means for dispute settlement. This often spawns a plurality of
actions, jeopardising adjudication, as in the MOX Plant case between
Ireland and the United Kingdom (UK).

[page 81]

Case Summary

MOX PLANT (IRELAND V UK); DISPUTE CONCERNING

ACCESS TO INFORMATION UNDER ARTICLE 9 OF THE
OSPAR CONVENTION (IRELAND V UK); COMMISSION OF
THE EUROPEAN COMMUNITIES v IRELAND
THE EUROPEAN COMMUNITIES v IRELAND
(ITLOS, Request for Provisional Measures, Order of 3 December
2001; OSPAR Arbitral Tribunal, Final Award of 2 June 2003; ECJ, C-
459-06, Judgment of 30 May 2006; UNCLOS Arbitral Tribunal,
Suspension of Proceedings on Jurisdiction and Merits, and
Request for Further Provisional Measures, Order No 3 of 24 June
2003, and Termination of Proceedings, Order No 6 of 6 June
2008)
(MOX PLANT case)

FACTS: This dispute concerned radioactive waste pollution in the Irish Sea caused by
the building and operation of a UK nuclear fuel reprocessing facility (MOX Plant) at
Sellafield. Ireland contested this project and requested access to information held by
the UK about the plant, in order to protect the marine environment of the Irish Sea.

Both Ireland and the UK are parties to UNCLOS and the Convention for the Protection
of the Marine Environment of the North-East Atlantic (OSPAR Convention, adopted 22
September 1992, 2354 UNTS 67, entered into force 25 March 1998). Therefore, in 2001
Ireland commenced dispute settlement proceedings before an Arbitral Tribunal
established under Annex VII UNCLOS, claiming that the UK breached relevant
obligations to protect the marine environment. Furthermore, Ireland brought an
action before an Arbitral Tribunal constituted under Art 21 OSPAR Convention, on the
ground that the UK had failed to provide access to relevant information regarding the
commissioning of the plant. On 25 October 2001, pending the constitution of the
Arbitral Tribunal under Annex VII UNCLOS, Ireland initiated proceedings against the UK
before the International Tribunal for the Law of the Sea (ITLOS) under Art 287 UNCLOS,
requesting the adoption of provisional measures.

On 30 October 2003, the European Commission, which in 1997 had given the UK
positive advice on various aspects of commissioning the MOX Plant (EC Official Journal
C 68, 5 March 1997, 4), brought an action against Ireland in the European Court of
Justice (ECJ). The Commission claimed that by submitting the MOX Plant dispute to a
non-EC Tribunal under a mixed EU-States agreement (UNCLOS) Ireland violated the
exclusive jurisdiction of the ECJ and the duty of cooperation under Arts 10 and 292
TEC, and 192 and 193 Euratom (Action Brought on 30 October 2003 by the Commission
of the European Communities against Ireland (ECJ, Case C-459/03, OJ 10/1/2004)).

[page 82]

ISSUE: Actioning substantive and procedural environmental rights before multiple

jurisdictions (fragmentation of jurisdictional action).

DECISIONS: ITLOS prescribed provisional measures in December 2001, ordering the

 parties to cooperate and devise regulation preventing pollution from the MOX Plant
(MOX Plant (Ireland v UK), Request for Provisional Measures, Order of 3 December
2001).

The OSPAR Arbitral Tribunal dismissed Ireland’s claims, based on a restrictive

interpretation of the right of access to information, excluding economic analysis
relevant to environmental decision-making. The Tribunal thus held that UK reports on
the MOX Plant which Ireland had requested to disclose could not be considered
information on the state of or likely to affect a maritime area under Art 9(2) OSPAR
Convention (Dispute Concerning Access to Information under Article 9 of the OSPAR
Convention (Ireland v UK), Final Award, 2 June 2003).

In light of the European Commission’s proceedings against Ireland, the UNCLOS

Arbitral Tribunal decided to suspend proceedings on jurisdiction and merits. The
Tribunal also affirmed the original provisional measures decided by ITLOS, but
rejected Ireland’s additional requests: MOX Plant Case (Ireland v UK), Suspension of
Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures,
Order No 3, 24 June 2003.

On 30 May 2006, the ECJ held that Ireland had breached the obligation to cooperate
under mixed EU-States agreements, such as UNCLOS, for not informing and consulting
appropriate EC institutions before instituting proceeding against the UK: Commission v
Ireland (ECJ, C-459-06, 30 May 2006).

Subsequent to the judgment of the ECJ, in 2007 Ireland withdrew its claim against the
UK before the UNCLOS Arbitral Tribunal, and in 2008 proceedings were officially
terminated: MOX Plant (Ireland v UK), Termination of Proceedings, Order No 6, 6 June
2008.

5.64 When environmental accidents involve clear facts, such as the

Chernobyl nuclear leak and Sandoz chemical spill, injured States
prefer to seek negotiation rather than judicial settlement.

Treaty-based mechanisms
5.65 Non-compliance with international environmental obligations is often
due to structural deficits, not to wilful inconsistent behaviour.
Therefore, since the 1987
 [page 83]

Montreal Protocol to the Convention for the Protection of the Ozone

Layer, MEAs tend to address non-compliance via ‘active treaty
management’, based on prevention and cooperative enforcement.

5.66 Treaty management entails assessment of non-compliance by means

of fact-finding by specific treaty bodies and State reporting. This is
followed by advice and assistance to the non-complying party, as well
as possible sanctions: see the Kyoto Protocol Reference Manual on
Accounting of Emissions and Assigned Amount, 2008.

In addition, and arguably subsequent to compliance assistance,

MEAs also provide for dispute settlement proceedings: eg, UNFCCC
Art 14.

ENVIRONMENT AND HUMAN RIGHTS

5.67 Principle 1 of the Stockholm Declaration provides a possible basis for
a human rights-oriented interpretation of environmental protection:

Man has the fundamental right to freedom, equality and adequate conditions of
life, in an environment of a quality that permits a life of dignity and well-being, and
he bears a solemn responsibility to protect and improve the environment for present
and future generations.

This stand is possible based on two different approaches. First,

existing first and second generation human rights can be interpreted
as a means to provide environmental protection: see López Ostra v
Spain (ECHR, Case No 16798/90, 9 December 1994). Secondly, the
right to a sustainable environment can be envisaged as a developing
third generation human right: eg, Art 24 of the 1981 Banjul Charter
(see further Chapter 6 and Ottavio Quirico and Mouloud Boumghar
(eds), Climate Change and Human Rights: an International and
Comparative Law Perspective, Routledge, 2015).
 [page 85]

CHAPTER 6

International Human Rights Law

 [page 86]

INTRODUCTION
6.1 A significant area of international law is human rights law. This body
of law guarantees the fundamental rights of all people and imposes
obligations on States to uphold those rights. Within the United
Nations (UN) regime, human rights law is comprised of a number of
treaties and supported by a system of committees and other agencies
which supervise and enforce its implementation. In addition to the
UN human rights framework there are also a number of regional
human rights frameworks. Many of the rights contained in
international human rights law are also recognised in customary law.

WHAT ARE HUMAN RIGHTS?

6.2 Human rights are the fundamental rights that all people are entitled
to by virtue of their being human. They are those things which every
person needs in order to live a life of dignity and liberty. They include
the rights to:

life, liberty and security of the person;

freedom from slavery and torture;
freedom of expression, conscience and religion;
an adequate standard of living;
 freedom of movement;
participation in democratic government;
employment and fair working conditions;
an education;
freedom of movement, assembly and association.

Some fundamental concepts

6.3 Modern human rights law has its foundation in the notion that
respect for inherent human dignity necessitates that certain rights be
protected. It draws on philosophical theories of rights going back as
far as St Thomas Aquinas and was developed by people like Thomas
Hobbes, John Locke and other scholars of the Enlightenment period,
who believed that individuals possessed certain inherent rights which
must be respected by the State.

6.4 Given that human rights flow from humans’ inherent dignity, a
number of fundamental concepts can be identified which underpin
human rights law.

Universality
6.5 Because human rights are derived from the fact of being human, it
follows that human rights are universal. That is, all people possess
human rights, regardless of

[page 87]
 their nationality, race, age, religion, gender or sexual orientation or
any other factor. Consequently, human rights law incorporates
principles of non-discrimination and equality so that rights cannot be
denied to certain individuals or groups on the basis of their
nationality, race, religion or other attribute.

Inalienability
6.6 Another consequence of the fact that human rights are inherent to
being human is that they are inalienable. That is, human rights
cannot be given or taken away. As noted below at 6.9, it is possible for
the exercise of human rights to be limited or restricted in certain
circumstances, but the rights themselves continue to exist.

Interdependence
6.7 All human rights are considered to be mutually supportive and
interdependent. This means that the fulfilment of one right helps to
promote the enjoyment of all other rights. Similarly, the breach of one
right often incorporates or leads to other breaches of human rights.

Example
 INTERDEPENDENCE OF RIGHTS: STANDARD OF LIVING,
EDUCATION AND THE RIGHT TO VOTE

All people have the right to an education. However, children who live in poverty may
be required to work to feed their family or to walk long distances to collect water. This
is likely to interfere with their ability to attend school. Human rights law guarantees
the right to an adequate standard of living, which includes the rights to adequate food
and water. If this right is being fulfilled then children will be able to attend school
regularly, as their basic needs for food and water will be satisfied.

Governments are obliged to ensure that all their citizens are able to enjoy these
rights, but corruption or discrimination within the government might mean that some
people’s needs are not being met. Human rights law guarantees the right of all people
to vote in democratic elections. If people are able to exercise this right fully then they
can effect change within the government and achieve better outcomes. However,
people who are struggling to meet their daily needs in terms of food and water may
have little ability to participate meaningfully in democratic processes, and people
who have been denied the right to an education are disadvantaged when it comes to
participating in political activity.

[page 88]

The right to vote, the right to an adequate standard of living and the right to
education are therefore interdependent. A breach of one right can lead to breaches of
the other rights, while protection of each right helps to support the full enjoyment of
the others.

Rights and corresponding duties

6.8 A fundamental concept of human rights is that rights are
accompanied by corresponding duties. For example, the right to
freedom of expression implies an obligation not to impose censorship,
while the right to an education implies an obligation to provide
schools and teachers. Under human rights law, States are usually the
principal duty-bearers, and they are obliged to ensure that the human
 rights of their citizens are protected and fulfilled. Individuals also bear
duties to respect the human rights of others.

Limitations on rights
6.9 The duty to respect the rights of others is related to the idea that
human rights are not absolute, but may be limited in certain
circumstances. In general terms, people have a right to exercise their
human rights up until the point where they begin to interfere with
other people’s ability to enjoy their rights. States can also pass laws
which would restrict human rights where such restrictions are
necessary to achieve a legitimate purpose, such as public health or
safety.

Example
 LIMITATIONS OF HUMAN RIGHTS AND CRIMINAL LAW

Human rights law protects the right of all people to life, liberty and freedom of
movement: International Covenant on Civil and Political Rights (opened for signature
16 December 1966, 999 UNTS 171, entered into force 23 March 1976) (ICCPR) Arts 6, 9
and 12. However, States commonly impose penalties for breaches of their criminal
laws which appear to conflict with these rights, such as imprisonment or even the
death penalty. The interference with human rights is justified on the grounds that it is
necessary to protect the public from criminal acts. However, people who are
imprisoned are still entitled to other rights including the right to a fair trial (ICCPR Art
14), freedom from torture and other cruel, inhuman or degrading treatment (ICCPR Art
7) and the right to be treated humanely while imprisoned (ICCPR Art 10).

[page 89]

With particular respect to the death penalty, Art 6 of the ICCPR (the right to life)
acknowledges that some States may not yet have abolished the death penalty but
specifies that it may only be imposed by a court and cannot be imposed upon anyone
under the age of 18. States which have ratified the Second Optional Protocol to the
ICCPR (opened for signature 15 December 1989, 1642 UNTS 414, entered into force 11
July 1991) undertake to abolish the death penalty entirely within their jurisdictions.

6.10 Some human rights may never be limited or restricted. These are
rights which are classified as jus cogens rights (see 2.50) and they
include the right to be free from slavery and torture. Also,
international human rights treaties specify a number of conditions for
limiting certain rights and provide that some rights are non-
derogable: see 6.28–6.29.

Individual and collective rights

6.11 Most human rights are formulated as belonging to each person
individually. However, there are some human rights which are
collective rights, that is, the rights are held by a group of people, not
 the individuals who comprise that group.

6.12 An example of a collective right is the right to self-determination.

Self-determination is defined as the right of all peoples to ‘freely
determine their political status and freely pursue their economic,
social and cultural development’: ICCPR Art 1 and International
Covenant on Economic, Social and Cultural Rights (opened for
signature 16 December 1966, 993 UNTS 3, entered into force 3
January, 1976) (ICESCR) Art 1. While there is no definition of a
‘people’ in either treaty, it is generally understood that it is a group
which shares a common identity and can be defined by reference to
objective characteristics like shared language, cultural traditions or
ethnicity.

6.13 Another example of a collective right is the right to development.

While not found in any of the human rights treaties, it is found in the
Declaration on the Right to Development (GA Res 41/128, UN
GAOR 41st sess, 97th plen mtg, UN Doc A/RES/41/128 (4
December 1986)) which provides that all peoples are entitled
economic, social, cultural and political development: Art 1.

6.14 The United Nations Declaration on the Rights of Indigenous Peoples

(GA Res 61/295, UN GAOR 61st sess, 107th plen mtg, UN Doc
A/61/L.67 (13 September 2007) (UNDRIP)) outlines a number of
collective rights which are enjoyed by indigenous peoples, including
the rights to practice their cultural traditions and customs (Art 11),
 spiritual and religious traditions (Art 12) and languages (Art 13).

[page 90]

While some of the other rights in the UNDRIP are described as

individual rights, they are rights which are enjoyed collectively by
indigenous communities in order to protect their cultural, social,
religious, historical and linguistic traditions.

Positive and negative rights

6.15 Human rights are sometimes sorted into positive and negative rights.
Positive rights are entitlements to something – for example, the right
to education or the right to an adequate standard of living. These
rights require some positive action, usually by the government, to
ensure that every individual can enjoy them.

6.16 Negative rights are liberties or freedoms, for example, freedom of

religion, expression or opinion, or freedom from torture. They require
that duty-bearers (again, usually States) refrain from doing anything
which would interfere with a person’s ability to enjoy these freedoms.

6.17 Human rights are also sometimes categorised into three generations
of rights: first, second and third. First generation rights typically
include civil and political rights, while second generation rights are
economic, social and cultural rights. The third generation of rights is
 usually said to include collective or group rights such as the right to
self-determination (above 6.12) and the right to development (above
6.13). Given the interdependence of human rights (above 6.7) this
categorisation is not particularly useful concept as it suggests a
hierarchy of rights which is not reflected in practice.

Alternative theories of human rights

6.18 The idea that human rights are universal and interdependent has been
challenged by some who argue that human rights are culturally
relative. That is, rights should not all be applied uniformly in all
countries, but should take into account cultural, economic and other
differences. For some, these arguments are based on the fact that not
all cultures have traditionally valued the same human rights which are
emphasised in the Western liberal tradition. Others take a more
pragmatic position, pointing out that poorer countries may be unable
to comply with their human rights obligations. Some human rights
treaties acknowledge the difficulties faced by developing States in
fulfilling their obligations. Nonetheless, the issues of cultural
relativism and the question of how developing States should prioritise
action on human rights remain challenging.

THE UN HUMAN RIGHTS FRAMEWORK

6.19 The protection of human rights is a key objective of the UN and the
development of legal protections for human rights was seen as an
essential part of ensuring that the atrocities of World War II would
 not occur again. In 1946 the UN

[page 91]

Commission on Human Rights (UNCHR) was given the task of

defining basic rights and freedoms which would be protected under
international law. Under the chairmanship of Eleanor Roosevelt, the
UNCHR set about drafting a document which would form the
cornerstone of international human rights law. This was the Universal
Declaration of Human Rights (GA Res 217A, UN GAOR 3rd sess,
183rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR)).

The Universal Declaration of Human Rights

6.20 The UDHR is based on the fundamental principle that respect for the
inherent dignity of every person is the foundation of peace and justice.
It recognises that all human beings are born free and equal and that
everyone is entitled to rights without discrimination: Arts 1 and 2. In
this way the UDHR confirms the fundamental principles of
universality, equality and non-discrimination.

6.21 The UDHR lists a range of rights to which all people are entitled.
These include the rights to life, liberty and security of the person (Art
3); freedom from slavery (Art 4) and torture (Art 5); freedom of
religion (Art 18), movement (Art 13), expression (Art 19) and
assembly (Art 20); rights to education (Art 26), work (Art 23) and an
 adequate standard of living (Art 25), to name a few.

6.22 As well as these rights, the UDHR also recognises that all persons
have duties to the community so that all people can achieve the full
enjoyment of their rights: Art 29. While States are able to limit the
exercise of the rights contained in the UDHR, such limitations must
be imposed by law and must be solely for the purpose of securing
respect for other rights and freedoms or meeting the requirements of
‘morality, public order and the general welfare in a democratic
society’: Art 29.

6.23 As it is a UN General Assembly resolution, the UDHR is soft law

and is not directly binding on States: see 2.64, 2.65 and 2.71.
However, many of its provisions have been recognised as customary
international law: Diplomatic and Consular Staff in Tehran [1980] ICJ
Rep 3; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory [2004] ICJ Rep 1. Further, much of the content
of the UDHR has been reiterated in other human rights treaties, so
that its principles are now widely applicable in international law.

United Nations human rights agencies

6.24 The UNCHR which drafted the UDHR (above 6.19) was replaced in
2006 by the Human Rights Council (GA Res 60/251, UNGAOR
60th sess, 72nd plen mtg, Agenda Items 46 and 120, UN Doc
A/Res/60/251 (15 March 2006)). The Human Rights Council is an
intergovernmental body with 47 member States, elected by the
 [page 92]

UN General Assembly. Its objective is to strengthen the protection

and promotion of human rights around the world. There are also a
number of committees established under specific human rights
treaties: see below at 6.45–6.49. These various human rights agencies
are organised under the Office of the High Commissioner of Human
Rights (OHCHR).

United Nations human rights treaties

6.25 Following the adoption of the UDHR, the UNCHR continued
working towards the creation of legally binding human rights
instruments. The major treaties are set out in the table below.
Table 6.1: Major UN human rights treaties

Treaty Abbreviation Opened for Entered into Reference

signature force
International Covenant ICCPR 16 December 23 March 1976 999 UNTS 171
on Civil and Political 1966
Rights
International Covenant ICESCR 16 December 3 January 1976 993 UNTS 3
on Economic, Social 1966
and Cultural Rights
International ICERD 21 December 4 January 1969 660 UNTS 195
Convention on the 1965
Elimination of All Forms
of Racial Discrimination
Convention on the CEDAW 18 December 3 September 1249 UNTS 13
Elimination of All Forms 1979 1981
of Discrimination
Against Women
Convention on the CRC 20 November 2 September 1577 UNTS 3
Rights of the Child 1989 1990
 Convention Against CAT 10 December 26 June 1987 1465 UNTS 85
Torture and Other 1984
Cruel, Inhuman or
Degrading Treatment or
Punishment
Convention on the CRPD 13 December 3 May 2008 2515 UNTS 3
Rights of Persons with 2006
Disabilities
International CMW 18 December 1 July 2003 2220 UNTS 3
Convention on the 1990
Protection of the Rights
of All Migrant Workers
and Members of Their
Families
International CED 6 February 2007 23 December 2715 UNTS 3
Convention for the 2010
Protection of All
Persons from Enforced
Disappearances

[page 93]

The International Covenant on Civil and Political Rights

6.26 The ICCPR guarantees a range of rights which are classified as civil
and political rights. These include rights to life (Art 6), liberty and
security of the person (Art 9), freedom from torture and slavery (Arts
7 and 8), freedom of expression, thought and religion (Arts 18 and
19), freedom of movement and assembly (Arts 12 and 21), and the
right to a fair trial (Art 14). Most of the rights in the ICCPR would
be classified as negative rights: see 6.16.

6.27 A State party to the ICCPR is obliged to:

1. respect and ensure the rights of all individuals within its territory
 or subject to its jurisdiction, without discrimination (Art 2(1)
and Art 3);

2. adopt such laws as may be necessary to give effect to the rights

contained in the ICCPR (Art 2(2));
3. ensure that any person whose rights or freedoms are violated has
access to an effective remedy (Art 2).

6.28 Under Art 4, States may derogate from their obligations under the
ICCPR in times of national emergency provided that:

1. the emergency must ‘threaten the life of the nation’;

2. the emergency must be officially proclaimed;
3. the State may only derogate from its obligations to the extent
required by the situation.

The State may not derogate from its obligations under Arts 6 (the
right to life), 7 (freedom from torture and cruel, inhuman or
degrading treatment), 8(1) and (2) (protection from slavery and
servitude), 11 (no imprisonment for inability to fulfil a contractual
obligation), 15 (no criminal penalty for an act which was not an
offence at the time it was committed), 16 (right to legal personality),
or 18 (freedom of thought, conscience and religion). These non-
derogable rights include those which would be classified as jus cogens
rights (above 6.10) and other rights the suspension of which cannot
be justified even in times of emergency.
6.29 As well as this general clause in Art 4, the ICCPR allows for specific
rights to be limited under certain conditions.

Example

LIMITATIONS ON FREEDOM OF ASSOCIATION

The ICCPR guarantees that everyone has the right to freedom of association with
others, including the right to join trade unions: Art 22(1).

[page 94]

Article 22(2) allows for this right to be limited provided that the restrictions are:

1. prescribed by law;
2. necessary in the interests of national security, public safety, public health or
the protection of the rights and freedoms of others.

A restriction on freedom of association which does not comply with these conditions
will be in breach of the ICCPR.

6.30 As well as guaranteeing a range of substantive rights, the ICCPR also

established a dedicated committee to oversee State compliance,
known as the Human Rights Committee (the Committee) (not to be
confused with the UN Commission on Human Rights (UNCHR)
above at 6.19 or the Human Rights Council above at 6.24). The
Committee consists of 18 independent experts nominated and elected
by States parties: Arts 28–30. States are required to submit a report to
the Committee within one year of their becoming parties and then
whenever the Committee requests (usually every four years): Art 40.
The Committee also publishes commentary on specific rights, known
 as General Comments, which provide more detail about the content
of rights and what States are required to do to uphold their
obligations. The role of the Human Rights Committee in enforcing
the ICCPR will be discussed in more detail below at 6.45–6.49.

The International Covenant on Economic, Social and

Cultural Rights
6.31 The ICESCR guarantees a range of rights, including rights relating to
employment (Arts 6 and 7), social security (Art 9), education (Art
13), health (Art 12), food and water (Art 11). Most of the rights
contained in the ICESCR would be classified as positive rights: see
above at 6.15.

6.32 The ICESCR allows for a more progressive approach to States’

obligations than the ICCPR. This is in recognition of the fact that, as
positive rights, the guarantees contained in the ICESCR tend to
require a greater investment of resources and may not be immediately
achievable. Article 2 sets out the of States’ obligations under the
ICESCR and contains a number of key features:

1. States undertake to take steps both ‘individually and through

international assistance and cooperation’. This acknowledges the
fact that States might require help in achieving their obligations.
2. A State is obliged to take steps ‘to the maximum of its available
resources’. This indicates that the expectations for each State will
vary according to their capacity, but that all States should be
 making their best efforts.

[page 95]

3. States are to act ‘with a view to achieving progressively the full

realisation of the rights recognised in the Covenant’. This
recognises that it may take States some time to fulfil all their
obligations, but States are nonetheless required to be making
progress.

6.33 The ICESCR provides that States parties will submit reports to the
Economic and Social Council (ECOSOC) on the measures they have
adopted to fulfil their obligations under the Covenant. ECOSOC is
one of the principal organs of the UN and has a broad responsibility
for coordinating the UN’s responses on economic, social and
environmental issues. In 1985 ECOSOC created the Committee on
Economic, Social and Cultural Rights and gave it responsibility for
supervising compliance with the ICESCR (Economic and Social
Council Resolution 1985/17, 22nd plen mtg, (28 May 1985)). The
structure of the Committee on Economic, Social and Cultural Rights
is similar to the Human Rights Committee, and it also produces
General Comments on specific rights. Its enforcement functions are
discussed in more detail below at 6.45–6.49.

Example
 THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS AND THE RIGHT TO AN ADEQUATE STANDARD OF
LIVING

Article 11 of the ICESCR guarantees the right to an adequate standard of living

including adequate food, clothing and housing, and continuous improvement of living
conditions. The Committee on Economic, Social and Cultural Rights has issued a
number of General Comments which interpret the meaning of Art 11. In particular
General Comment 15 (UN Doc E/C.12/2002/11 (2002)) explains that the wording of Art11
is not exhaustive, and that water should be considered an essential element of
ensuring an adequate standard of living: at 3.

General Comment 15 explains what the right to water entails, outlining that States
must ensure that adequate supplies of water are available, that it be accessible (both
physically and economically) and that it be of a quality which is suitable for personal
and domestic use: at 12.

Given the extent of poverty in the world, it may take some States many years to
achieve full enjoyment of the right to an adequate standard of living for all their
citizens. This is acknowledged in the general obligation in Art 2 of the ICESCR to

[page 96]

take steps towards the progressive realisation of economic, social and cultural rights.
However, General Comment 15 makes clear that there are some elements of States’
obligations which apply immediately. With respect to the right to water, the
Committee explains that States have an immediate obligation to ensure that access to
water is not restricted in a discriminatory fashion: ICESCR Art 2(2); General Comment
15 at 17. Further, while States are entitled to work progressively towards the full
enjoyment of the right to water, there is an immediate obligation to begin taking
steps.

International Convention on the Elimination of All Forms of

Racial Discrimination
6.34 The International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) reinforces the fundamental principle
of human rights law that all people are entitled to the full complement
 of rights, regardless of race, ethnicity, nationality or any other factor.

6.35 Under the ICERD, States undertake to:

condemn racial discrimination and take steps to eliminate it in

all forms (Art 2), particularly racial segregation and apartheid
(Art 3);
guarantee equality before the law and in the enjoyment of all
human rights (Art 5);
ensure that any person whose rights are violated by an act of
racial discrimination is entitled to an effective remedy (Art 6);
implement measures designed to combat prejudice, such as the
provision of education and information (Art 7).

Convention on the Elimination of All Forms of

Discrimination Against Women
6.36 States parties to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) agree to condemn
discrimination against women and to take steps to ensure that all
women can enjoy the full range of human rights on an equal basis
with men. Under the CEDAW, States are obliged to:

ensure that women have equal opportunities to participate in the

political and public life of the country (Arts 7 and 8);
take steps to eliminate discrimination in education (Art 10),
 employment (Art 11), healthcare (Art 12) and other areas of
economic and social life (Art 13);
accord to women equality before the law (Art 15) and in matters
relating to marriage and family relations (Art 16).

[page 97]

Convention on the Rights of the Child

6.37 The Convention on the Rights of the Child (CRC) is founded on the
principle that, in all decisions which affect children, States must
ensure that the best interests of the child are a primary consideration:
Art 3(1). States are obliged to guarantee such protection and care as is
necessary for the child’s well-being (Arts 3(2) and 19) while
respecting the rights and responsibilities of parents, guardians and
extended family (Art 5) and the ability of children to express opinions
on matters which affect them, where they are old enough to do so
(Art 12).

6.38 In addition to these general principles, the CRC also stresses the
rights of children to education (Arts 28–29) and to engage in play and
recreational activities (Art 31), as well as to the full range of other
human rights.

Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment
 The Convention Against Torture and Other Cruel, Inhuman, or
6.39 Degrading Treatment or Punishment (CAT) prohibits any act which
causes severe pain or suffering (physical or mental) in order to obtain
information or otherwise punish, intimidate or coerce a person, where
that act is carried out or instigated by a public official: Art 1.

6.40 States parties to the CAT are obliged to prevent torture within their
jurisdiction (Art 2) and to criminalise torture (Art 4). Article 2(2)
makes it clear that no exceptional circumstances will ever justify
torture, confirming the jus cogens nature of the prohibition on torture
as outlined in 2.50. States are also obliged not to return a person to a
place where there are substantial grounds for believing he or she
would be in danger of being subjected to torture: Art 3.

Convention on the Rights of Persons with Disabilities

6.41 The purpose of the Convention on the Rights of Persons with
Disabilities (CRPD) is to ensure that persons with disabilities enjoy
the full range of rights and freedoms and that their inherent dignity is
respected: Art 1. It emphasises that the fundamental principles of
human rights, including non-discrimination, autonomy and respect
for inherent dignity, must be upheld by States in all dealings with
persons with disabilities: Arts 3, 5. States’ obligations include:

Abolishing discrimination against persons with disabilities (Art

4(1)(a)).
Raising awareness in society and fostering respect for the rights
 and dignity of persons with disabilities (Art 8).
Ensuring persons with disabilities are able to live independently
and participate fully in all aspects of life (Arts 9 and 19).

[page 98]

Ensuring persons with disabilities enjoy equal recognition before

the law (Art 12) and equal access to justice (Art 13).
Protecting the rights of persons with disabilities to be free from
acts of exploitation, violence or abuse (Art 16) or cruel, inhuman
or degrading treatment (Art 15) and to enjoy personal mobility
(Art 20) and freedom of expression (Art 21), among other
rights.

International Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families
6.42 The International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (CMW)
guarantees to all migrant workers and their families the full range of
human rights which are guaranteed to all people. In particular, it
provides that States may not discriminate against them on the basis of
their status or State of origin: Art 7. With respect to conditions of
work and remuneration, the CMW specifies that migrant workers are
entitled to treatment which is no less favourable than that which is
enjoyed by nationals: Art 25.
International Convention for the Protection of All Persons
from Enforced Disappearances
6.43 The purpose of the International Convention for the Protection of All
Persons from Enforced Disappearances (CED) is expressed in Art 1,
which states that: ‘No one shall be subjected to enforced
disappearance’. States parties to the CED are obliged to investigate
acts of forced disappearance (Art 3) and to ensure such acts constitute
criminal offences under their law (Art 4).

6.44 A Committee on Enforced Disappearances was created (Art 26)

which has functions in line with those below at 6.45–6.49. In addition
to these powers, the Committee is also empowered to receive urgent
requests from relatives or representatives of a disappeared person that
the person be sought and found: Art 30.

UN human rights treaty bodies

6.45 The obligations contained in the human rights treaties are enforced
by specific committees created in each treaty, sometimes referred to as
‘treaty bodies’. As noted above at 6.30 and 6.33, the ICCPR and
ICESCR establish committees which are responsible for supervising
States’ compliance with their obligations under each Covenant.
Similar bodies are also created under the other major human rights
treaties. The committees have two key functions: to receive periodic
reports from States (6.46) and to hear complaints of breaches
(6.47–6.49 below), although for some committees this power has not
yet entered into force.
 [page 99]

Table 6.2: UN human rights treaty bodies

Committee Created in Source of power to hear In

individual complaints force?
Human Rights Committee ICCPR Art 28 First Optional Protocol to the Yes
ICCPR
Committee on Economic, ECOSOC Res Optional Protocol to the Yes
Social and Cultural Rights 1985/17 ICESCR
Committee Against Torture CAT Art 17 CAT Art 22 Yes
Committee on the Elimination CEDAW Art 17 Optional Protocol to CEDAW Yes
of Discrimination Against
Women
Committee on the Rights of CRPD Art 34 Optional Protocol to the Yes
Persons with Disabilities CRPD
Committee on the Elimination ICERD Art 8 ICERD Art 14 Yes
of Racial Discrimination
Committee on Enforced CED Art 26 CED Art 31 Yes
Disappearances
Committee on the Rights of CRC Art 42 Optional Protocol to the CRC No
the Child on a Communications
Procedure
Committee on Migrant CMW Art 72 CMW Art 77 No
Workers

Periodic reporting
6.46 States are required to submit periodic reports to the relevant treaty
body to demonstrate the steps they are taking to fulfil their
obligations under each treaty. Most committees adopt a similar
approach to the Human Rights Committee (above at 6.30) and the
Committee on Economic, Social and Cultural Rights (above at 6.33)
whereby States are required to submit a report within the first year
after becoming a party to the treaty and then usually every four years.
 The committees consider the reports and make recommendations to
each State as to how they can improve their compliance. In addition
to reporting to specific treaty bodies, States also report to the Human
Rights Council under the Universal Periodic Review process, under
which the Council reviews the overall human rights record of all UN
member States.

Complaints
6.47 The second key enforcement mechanism within the UN human rights
framework is the ability for treaty bodies to hear complaints about
alleged violations. Most treaties include a provision for one State to
bring a complaint against another State if it is alleged that State is in
breach of its obligations: ICCPR Arts 41–43; ICERD Arts 11–13;
CAT Art 21; CMW Art 74; CED Art 32; Optional Protocol to

[page 100]

ICESCR Art 10; Optional Protocol to CRC Art 12 (not yet in force).
However, these mechanisms have never been used.

6.48 Human rights treaty bodies are also able, in certain circumstances, to
hear complaints from individuals who allege that their rights have
been violated. Currently seven human rights bodies have the ability to
hear individual complaints, while for the two other committees these
powers have not yet entered into force (see Table 6.2 above).
6.49 In order for an individual complaint to be admissible:

1. The complaint must be against a State which is a party to the

treaty in question.
2. The State must have accepted the Committee’s competence to
hear such complaints, either through becoming a party to an
Optional Protocol (for the ICCPR, CEDAW, CRPD,
ICESCR and CRC) or making a declaration of acceptance (for
ICERD, CAT, CED and CMW).
3. The complainant must have exhausted their available local
remedies.

Case Summary

HORVATH V AUSTRALIA COMMUNICATION NO. 1885/2009

HUMAN RIGHTS COMMITTEE

FACTS: The complaint related to an allegation of police misconduct in the form of

physical violence and the subsequent investigation by the police force in Victoria,
Australia. A number of police officers had visited the complainant’s home at night
following an earlier incident that day. One officer kicked in the door and assaulted the
complainant, resulting in a broken nose, a chipped tooth and other facial injuries. The
police officers handcuffed her and took her the police station, where she was held for
several hours before being taken to hospital.

The complainant brought an action for damages against the officers and the State of
Victoria. The judge at first instance found both the individual officers and the State of
Victoria liable. On appeal, the liability of the State of Victoria was overturned on the
basis that the officers had acted independently and not in their capacity as police
officers.

[page 101]

The complainant then filed a complaint with the Ethical Standards Department of
 Victoria Police but it was dismissed for lack of evidence. The complainant was not
permitted to give evidence in that inquiry.

ISSUE: Did the conduct of the officers violate the complainant’s human rights under
the ICCPR, including Art 7 (freedom from cruel, inhuman or degrading treatment), Art 9
(freedom from arbitrary arrest and detention) and Art 17 (the right to privacy)?
Further, did the State party (Australia) violate Art 2 (obligation to provide an effective
remedy in the event of a breach)?

DECISION: The Human Rights Committee upheld the complaint, finding that the State
had breached its obligations under Art 2 with respect to other breaches of Arts 7, 9
and 17. It found that the level of force used against the complainant had been
unnecessary and excessive, that the police had breached her right to privacy by
entering her home without a warrant and her detention was not justified.

The Committee further found that the legal remedies available to the complainant
had been ineffective and constituted a breach of Art 2.

(Human Rights Committee, Views: Communication No 1885/2009, 110th sess, UN Doc

CCPR/C/110/D/1885/2009 (27 March 2014) (Horvath v Australia)

REGIONAL HUMAN RIGHTS FRAMEWORKS

6.50 In addition to the UN human rights framework there are also a
number of regional human rights frameworks. Within Europe, the
European Convention on Human Rights (opened for signature 4
November 1950, 213 UNTS 221, entered into force 3 September
1953) guarantees similar rights to those contained in the ICCPR and
is enforced by the European Court of Human Rights.

6.51 A similar framework exists within the Organization of American

States, where the Inter-American Commission of Human Rights and
the Inter-American Court of Human Rights supervise and enforce
the American Convention on Human Rights (opened for signature 22
November 1969, 1144 UNTS 123, entered into force 18 July 1978).
 Human rights treaties also exist in Africa (African Charter on Human
and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58,
entered into force 21 October 1986) and the Arab League (Arab
Charter on Human Rights, opened for signature 22 May 2004,
entered into force 15 March 2008). In Asia, the Association of South
East Asian Nations (ASEAN) has adopted a Declaration of Human
Rights (ASEAN Human Rights Declaration, adopted 18 November
2012) which, while not a binding treaty, sets out important human
rights objectives for States in the region.

[page 102]

NATIONAL IMPLEMENTATION OF HUMAN RIGHTS

6.52 Like all international law, the extent to which human rights treaties
apply at the domestic level depends on each State’s approach to
implementation: see 1.47–1.50. For some States, human rights
treaties are directly incorporated into their national legal system. For
most, however, human rights treaties are implemented through
national legislation, for example by establishing bodies which will
investigate complaints of human rights breaches or by assessing the
human rights implications of proposed legislation. Many countries
also provide human rights guarantees in their constitutions,
sometimes in the form of a Bill of Rights. In these countries, any law
which violates fundamental rights and freedoms would be
unconstitutional and would usually be overturned.
 [page 103]

CHAPTER 7

International Humanitarian Law

and International Criminal Law
 [page 104]

INTRODUCTION
7.1 International humanitarian law (IHL) is a regulatory sub-system
within the context of the international law of war.

International criminal law (ICL) applies to the international law of

both peace and war, and is largely rooted in IHL.

Not only do IHL and ICL interact, but they also share a similar
structure, essentially based on secondary substantive norms (breaches
of primary obligations (1) → secondary obligations (sanctions (2)):
Ottavio Quirico, A Purely Formal Theory of Law — The Deontic
Network, EUI MWP 2009/11, particularly pp 5-6 and 13-17,
<http://cadmus.eui.eu/handle/1814/11482>.

INTERNATIONAL HUMANITARIAN LAW

7.2 IHL is a set of rules that governs the conduct of armed conflicts (jus
in bello), in particular, by limiting the use of force. It is a sub-set of the
international law of armed conflicts, which also regulates engagement
in hostilities and neutrality (jus ad bellum: Chapter 11).

7.3 The modern origins of IHL are found in the second half of the
nineteenth century, more specifically, in the Geneva Convention on
the Protection of War Victims (adopted and opened for signature 22
August 1864, eneterd into force 22 June 1865), which laid down,
inter alia, the foundations of the Red Cross.

This original core subsequently developed into a more extensive

body of rules. In particular, on 29 July 1899 and 18 October 1907 two
Peace Conferences held at the Hague led to adopting a set of
Conventions focusing mostly on warfare methods ((Hague
Conventions) opened for signature 29 July 1899 and 18 October
1907, entered into force 29 July 1899 and 26 January 1910). After
World War II, the Geneva Conventions and their Additional
Protocols were adopted, focusing mostly on the protection of victims
of armed conflicts.

The Geneva Conventions and Additional Protocols are as follows:

Convention (I) for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field (adopted and
opened for signature 12 August 1949, 75 UNTS 31, entered
into force 21 October 1950) – Bans unjustified violence towards
members of the enemy armed forces hors de combat, that is, those
no longer taking part in hostilities.
Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (adopted and opened
 [page 105]

for signature 12 August 1949, 75 UNTS 85, entered into force

21 October 1950) — Extends obligations under Geneva
Convention I to sea warfare.

Convention (III) relative to the Treatment of Prisoners of War

(adopted and opened for signature 12 August 1949, 75 UNTS
135, entered into force 21 October 1950) — Protects members
of armed forces who have fallen into the hands of the enemy.
Convention (IV) relative to the Protection of Civilian Persons in
Time of War (adopted and opened for signature 12 August
1949, 75 UNTS 287, entered into force 21 October 1950) —
Protects the basic rights of civilian persons in the hands of the
adverse party.
Protocol (I) Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
International Armed Conflicts (adopted and opened for
signature 8 June 1977, 1125 UNTS 3, entered into force 7
December 1978) — Develops rules on warfare and extends them
to asymmetric conflicts and colonial wars.
Protocol (II) Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-
International Armed Conflicts (adopted and opened for 8 June
1977, 1125 UNTS 609, entered into force 7 December 1978) —
 Codifies rules applicable to non-international armed conflicts,
building on Article 3 Common to the Geneva Conventions.
Protocol (III) Additional to the Geneva Conventions of 12
August 1949, and relating to the Adoption of an Additional
Distinctive Emblem (adopted and opened for signature 8
December 2005, 45 ILM 558, entered into force 14 January
2007) — Establishes the red crystal, a distinctive emblem
enhancing protection for medical personnel and members of the
Red Cross and Red Crescent Movement.

7.4 Conventional IHL norms integrate and codify general law, that is,
customary international law and general principles of law: see Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) [1986] ICJ Rep 14 at 114, [218]; Legality of
the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226 at 256, [75];
International Committee of the Red Cross (ICRC), Customary
International Humanitarian Law, ICRC and Cambridge University
Press, 2009.

7.5 IHL applies to both international and non-international armed

conflicts, regardless of whether or not a foreign State is involved.
However, in the latter case, IHL rules are less detailed, mainly
including Common Art 3 to the Geneva Conventions and Additional
Protocol I, in addition to customary
 [page 106]

law: International Criminal Tribunal for the former Yugoslavia

(ICTY), Tadić (ICTY IT-94-1-AR72, Decision on the Defence Motion
for Interlocutory Appeal on Jurisdiction, 2 October 1995) at [96]–[127].
Furthermore, IHL does not apply to internal disturbances and
tensions, such as riots or isolated and sporadic use of force, which do
not amount to organised and protracted armed violence: International
Criminal Tribunal for Rwanda (ICTR), Akayesu (ICTR-96-4, 2
September 1998) [620]; Tadić at [70].

7.6 In summary, the basic rules of IHL, as promoted by the ICRC, are as
follows:

The parties to an armed conflict must distinguish civilians from

combatants. Only military objectives can be attacked, not
civilians and their property.
Respect is due for people who no longer take part in hostilities,
their life and physical and mental integrity.
Weapons or methods of warfare that are likely to cause
unnecessary losses or excessive suffering are forbidden.
A party to a conflict must collect and care for wounded and sick
people that are in its power.
It is obligatory to spare medical personnel and medical
establishments, transports and equipment.
 Captured combatants and civilians who are under the authority
of the adverse party are entitled to respect for their lives, dignity,
personal rights, convictions and basic judicial guarantees.

See ICRC, Essential Rules of International Humanitarian Law

(2002) <www.icrc.org>.

7.7 Because of its structure, which is based on the prohibition of serious

breaches of fundamental obligations in conflict situations, IHL
overlaps with human rights law (see Chapter 6) and has criminal
implications: Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136
at 178, [106].

Responsibility for the enforcement of IHL rests primarily with

national authorities (see 7.39).

INTERNATIONAL CRIMINAL LAW

7.8 Serious breaches of fundamental international and/or domestic
obligations, mostly having a universal scope, give rise to criminal
responsibility. International criminal law governs the substance of
these crimes and/or the ensuing procedural mechanisms.

[page 107]
 International criminal law operates at the supranational and
7.9 transnational levels, with respect to both substantive and procedural
law. These regulatory layers interact: more specifically, supranational
criminal law complements transnational criminal law.

Sources
7.10 The classical sources of international law listed under Art 38 of the
Statute of the International Court of Justice (ICJ Statute) also apply
to international criminal law. However, in accordance with the
principle of legality (nullum crimen, nulla poena sine praevia lege
poenali) treaties are the main sources of transnational and
supranational criminal law, followed by custom and general principles
of law. This hierarchy is codified in Art 21 of the Statute of the
International Criminal Court ((Rome or ICC Statute) adopted and
opened for signature 17 July 1998, 2187 UNTS 90, entered into force
1 July 2002), which is lex specialis with respect to Art 38 of the ICJ
Statute. Article 21 (Applicable Law) of the ICC Statute provides:

1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and
its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable
treaties and the principles and rules of international
law, including the established principles of the
international law of armed conflict;
 Failing that, general principles of law derived by the
(c)
Court from national laws of legal systems of the world
including, as appropriate, the national laws of States
that would normally exercise jurisdiction over the
crime, provided that those principles are not
inconsistent with this Statute and with international
law and internationally recognized norms and
standards.
2. The Court may apply principles and rules of law as
interpreted in its previous decisions.
3. The application and interpretation of law pursuant to this
article must be consistent with internationally recognized
human rights, and be without any adverse distinction
founded on grounds such as gender […] age, race, colour,
language, religion or belief, political or other opinion,
national, ethnic or social origin, wealth, birth or other
status.

Supranational crimes
7.11 Supranational criminal law directly regulates international crimes,
including penalties.

[page 108]
 Core supranational crimes are crimes against humanity, war crimes,
7.12 genocide and aggression. These violations are usually part of systemic
action and involve several offenders and victims; they are therefore
criminalised at the supranational level because of their extreme
gravity.

7.13 In light of their systemic nature, core supranational crimes overlap

with State responsibility, which nevertheless has no criminal
characterisation in international law. This standpoint contrasts with
the approach taken to the matter before World War II, when several
projects were proposed coordinating individual and State criminal
responsibility under international law: Lord Phillimore, ‘An
International Criminal Court and the Resolution of the Committee of
Jurists’ (1922-23) 3 British Yearbook of International Law 79.

7.14 The main steps and instruments outlining core supranational crimes
are:

Charter of the International Military Tribunal at Nuremberg,

London Agreement for the Establishment of an International
Military Tribunal ((IMT Charter) adopted and entered into
force 8 August 1945, 82 UNTS 279).
Charter of the International Military Tribunal for the Far East,
((IMTFE Charter) adopted and entered into force 19 January
1946, TIAS No 1587).
Convention on the Prevention and Punishment of the Crime of
 Genocide ((Genocide Convention) adopted and opened for
signature 9 December 1948, 78 UNTS 277, entered into force
12 January 1951).
United Nations (UN) General Assembly Resolution 95(I) (1st
Sess, 55th plen mtg, 11 December 1946), Affirmation of the
Principles of International Law recognized by the Charter of the
Nuremberg Tribunal (Nuremberg Principles).
UN General Assembly Resolution 3314 (XXIX) on the
Definition of Aggression (29th sess, 2319th plen mtg, 14
December 1974).
ICTY Statute, Security Council Resolution 827 (1993), UN
SCOR 48th sess, 3217th mtg.
ICTR Statute, Security Council Resolution 955 (1994), UN
SCOR 49th sess, 3453rd mtg.
Draft Code of Crimes against the Peace and Security of
Mankind (first draft 1951) (1996) II Yearbook of the International
Law Commission (pt ii) 15–56 (Draft Code of Crimes).
Statute of the International Criminal Court (ICC Statute) (first
draft 1951, 1998).

7.15 The ICC Statute is the achievement of a long history. It partly

codifies customary international law and partly fosters its progressive
development.
 [page 109]

The Statute outlines a general theory for genocide, crimes against

humanity, war crimes and aggression committed by natural persons,
individually or jointly under complicity: Art 25.

Elements of supranational crimes

7.16 As to mens rea, attribution of criminal responsibility takes place based
on intent, whereas negligence only applies residually: ICC Statute Art
30 (see Ottavio Quirico, ‘La théorie de la négligence dans le Statut de
la Cour pénale internationale’ (2009) 113(2) RGDIP 333).

7.17 With regard to actus reus, justifications and excuses include mental
disease, intoxication, minority, mistake of fact, mistake of law, self-
defence, duress, necessity, superior orders and prescriptions of law:
ICC Statute Arts 26 and 31–33.

Crimes against humanity

7.18 Crimes against humanity are grave human rights violations
(inhumane acts), such as murder, torture, extermination, enslavement,
and persecution (actus reus).

These acts must be committed as part of a generalised or systemic

attack, not as isolated or sporadic acts (Kunarac (ICTY-96-23, 12
June 2002) at [100]), although such a requirement is not explicitly
embedded in the ICTY Statute. The ICTR Statute further specifies
 that the attack must be based on national, political, ethnic, racial, or
religious grounds. According to the ICC and ICTY Statutes, the
attack must be directed against civilian population: Martić (ICTY-95-
11-A, 8 October 2008) at [313].

With regard to mens rea, knowledge of the attack is required,

although offenders do not need to share its purpose: ICC Statute Art
7; Draft Code of Crimes Art 18; ICTY Statute Art 5; ICTR Statute
Art 3; Nuremberg Principle 6(c); IMTFE Charter Art 5(3); IMT
Charter Art 6(c); Kunarac (ICTY-96-23, 12 June 2002) at [103].

7.19 The ICC and ICTR Statutes, the Draft Code of Crimes and the
Nuremberg Principles also provide for the perpetration of crimes
against humanity outside war contexts.

War crimes
7.20 War crimes are serious violations of humanitarian law, and thus
mainly relate to the prohibition of certain warfare methods and
attacks on protected persons or property. Examples of war crimes
include wilful killing, torture, employing poisoned weapons, attacking
civilians and pillaging property.

7.21 The different instruments regulating war crimes internationally are

basically consistent with each other, although the matter has
progressively evolved.
 [page 110]

Article 8 of the ICC Statute, ICTR Statute Art 4, ICTY Statute Art
3, Draft Code of Crimes Art 20, Nuremberg Principle 6(b), IMT
Charter Art 6(b) and IMTFE Charter Art 5(b) rely upon the Hague
Conventions and the Geneva Conventions. For instance, Art 3 of the
ICTY Statute simply refers to ‘violations of laws and customs of war’.
Article 4 of the ICTR Statute mentions ‘violations of Art 3 Common
to the Geneva Conventions and of Additional Protocol II’.

The Draft Code of Crimes requires the commission of war crimes

as part of a systemic attack, but this element is not mentioned in other
instruments and is only a non-compulsory component under the ICC
Statute.

7.22 Although they are primarily concerned with international armed

conflicts, war crimes are progressively considered part of non-
international armed conflicts: Kunarac (ICTY, IT-96-23, 22 February
2001) at [401] ff.

Genocide
7.23 Genocide includes acts such as killing members of a group or
inflicting grievous bodily harm upon them, committed with the
‘intent to destroy, in whole or in part, a national, ethnic, racial, or
religious group’. Hence, genocide overlaps with crimes against
humanity and war crimes as to actus reus, but differs from them as to
 mens rea, because of the persecutory intent (dolus specialis).

7.24 This definition is based on Art 2 of the 1948 Genocide Convention

and has been consistently embedded in subsequent international
criminal law instruments: ICC Statute Art 6, ICTR Statute Art 2;
ICTY Statute Art 4; Draft Code of Crimes Art 17.

7.25 Specific genocidal intent may be inferred from the context of the
perpetration of acts systemically directed against a group of people:
Akayesu, (ICTR, 95-1-T, 2 September 1998) at [523]; Kayishema and
Ruzindana (ICTR, 95-1, 21 May 1999) at [93]; Jelisić (ICTY, IT-95-
10, 5 July 2001) at [48].

7.26 Since individual responsibility usually entails a collective genocidal

policy, the Genocide Convention also involves State responsibility:
Art 9.

Aggression
7.27 Because of its relevance to both individual and State responsibility,
aggression is a complex supranational crime.

7.28 Article 6(a) of the IMT Charter, IMTFE Charter Art 5(a),
Nuremberg Principle 6(a) and Draft Code of Crimes Art 16
criminalise individuals for the ‘planning, preparation, initiation or
waging of a war of aggression’.
 [page 111]

7.29 A specific definition of aggression has been outlined in Art 1 of UN

Resolution 3314 (XXIX) as the ‘use of armed force by a State against
the sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the Charter
of the United Nations’: see Chapter 11. The search for a definition of
aggression compelled the suspension of work on international crimes
between the 1950s and 1980s.

7.30 Relying on the Nuremberg Principles, Art 8bis(1) of the ICC Statute
criminalises the ‘planning, preparation, initiation or execution, by a
person in a position effectively to exercise control over or to direct the
political or military action of a State, of an act of aggression which, by
its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations’.

7.31 Based on UN Resolution 3314 (XXIX), Art 8bis(2) of the ICC

Statute further defines aggression as ‘the use of armed force by a State
against the sovereignty, territorial integrity or political independence
of another State, or in any other manner inconsistent with the
Charter of the United Nations.’ A list of specific acts, such as invasion
and bombardment follows, possibly overlapping with war crimes, at
the intersection between jus ad bellum and jus in bello.

Penalties
7.32 Articles 27–28 of the IMT Charter provided for the penalties of death
or any other just punishment, as well as the expropriation of stolen
property. Similar penalties were established under Art 16 of the
IMTFE Charter. Article 9 of the IMT Charter also embedded the
possible declaration of the criminal character of organisations. This
broad approach is confirmed by Nuremberg Principle 1 and Art 3 of
the Draft Code of Crimes.

7.33 Article 24 of the ICTY Statute and Art 23 of the ICTR Statute
provide for the penalties of imprisonment, based on the regulation
and practice respectively applying in the former Yugoslavia and
Rwanda, and the expropriation of property and proceeds criminally
acquired.

7.34 More comprehensively, Art 78 of the ICC Statute sets out the
penalties of life imprisonment, imprisonment up to 30 years, fines,
and forfeiture of proceeds, property and assets criminally acquired.

Transnational crimes
7.35 International law can play a ‘transnational’ role in defining domestic
crimes. In particular, by means of treaties States can set out
compulsory directives for criminalising specific conduct in national
legal orders. Harmonisation can also be

[page 112]
 achieved via prior supranational criminalisation of prohibited conduct.
The domestic definition of crimes and penalties is thus harmonised,
but ultimately left to States.

Genocide
7.36 Articles 2 and 5 of the Genocide Convention criminalise genocidal
conduct supranationally and compel States to effectively criminalise
and punish it domestically.

Torture
7.37 The crime of torture, which is both a supranational crime against
humanity and a war crime, is also an offence under the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment ((Convention against Torture) adopted and opened
for signature 10 December 1984, 1465 UNTS 85, entered into force
26 June 1987). Article 1 defines torture as the unlawful infliction of
severe mental or physical pain or suffering for the purposes of
obtaining information, punishment, intimidation, or coercion. These
acts must be committed by a public official or a person acting in an
official capacity, or, at least, under their instigation or with their
consent or acquiescence. Article 4 of the Convention against Torture
consequently compels adequate domestic criminalisation.

Terrorism
7.38 The main international conventions on terrorism define specific
offences and consequently compel States to criminalise them
domestically. These conventions address conduct such as taking
hostages, hijacking aircraft, terrorist financing, and acts against
internationally protected persons or the safety of maritime navigation.

For instance, Arts 2 and 4 of the International Convention for the

Suppression of Terrorist Bombings (adopted 15 December 1997,
opened for signature 12 January 1998, 2149 UNTS 256, entered into
force 23 May 2001) provide:

Article 2

Any person commits an offence within the meaning of this Convention if that
person unlawfully and intentionally delivers, places, discharges or detonates an
explosive or other lethal device in, into or against a place of public use, a State or
government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or
system, where such destruction results in or is likely to result in major
economic loss.

[page 113]

Article 4

Each State Party shall adopt such measures as may be necessary:

(a) To establish as criminal offences under its domestic law the offences set forth
 in article 2 of this Convention;

(b) To make those offences punishable by appropriate penalties which take into
account the grave nature of those offences.

Serious Breaches of IHL

7.39 Improving protection provided for in the Hague Conventions, the
Geneva Conventions outline serious breaches of IHL, such as wilful
killing and extensive destruction and appropriation of property, and
consequently compel appropriate domestic criminalisation: Geneva
Conventions, Common Art 3; Geneva Convention I Arts 49–51;
Geneva Convention II Arts 50–52; Geneva Convention III Arts 129–
131; Geneva Convention IV Arts 146–148; Additional Protocol I Art
85.

Piracy
7.40 Piracy is violence or depredation committed against a ship or aircraft,
or persons or property on board such ship or aircraft, on the high seas
or outside State jurisdiction.

The fact that piracy tends to elude national jurisdictions prompted

its supranational customary criminalisation, which has finally been
codified in Art 101 of the UN Convention on the Law of the Sea
((UNCLOS) adopted and opened for signature 10 December 1982,
1833 UNTS 3, entered into force 16 November 1994). The definition
of penalties has nevertheless been left to domestic jurisdictions:
UNCLOS Art 106.
Other offences
7.41 Transnational criminal law techniques have been adopted in several
areas, including slavery, trafficking in persons, drug-related offences,
money laundering, corruption and cybercrimes.

Supranational criminal procedures

7.42 International crimes can be prosecuted at the supranational level.
Three procedural phases can be distinguished: (1) adjudication; (2)
prosecution; and (3) enforcement.

Adjudication
7.43 Supranational criminal courts have been established or envisaged for a
few international crimes committed by natural persons or criminal
organisations.

[page 114]

7.44 Article 6 of the Genocide Convention provides for the possibility of

establishing an international criminal court to prosecute the crime of
genocide, which is supranationally and transnationally defined.

7.45 The IMT of Nuremberg and the IMTFE had exclusive jurisdiction
over crimes against peace, war crimes, and crimes against humanity
committed by the major officers of the Axis countries in connection
with World War II, respectively in Europe and in the Far East: IMT
 Charter Art 6; IMTFE Charter Art 5. The IMT also had jurisdiction
over criminal organisations: IMT Charter Art 9.

7.46 The ICTY has primary concurrent jurisdiction over natural persons
responsible for serious violations of international humanitarian law
(war crimes, genocide and crimes against humanity) committed in the
territory of the former Yugoslavia since 1991: ICTY Statute Arts 1–8.

7.47 The ICTR has primary concurrent jurisdiction over serious violations
of international humanitarian law (genocide, crimes against humanity
and war crimes) committed by natural persons in the territory of
Rwanda and over Rwandan citizens responsible for such violations
committed in the territory of neighbouring States between 1 January
1994 and 31 December 1994: ICTR Statute Arts 1–8.

7.48 The ICC has permanent jurisdiction over crimes (genocide, crimes
against humanity, war crimes and aggression) committed by natural
persons in the territory of the States parties or by their citizens: ICC
Statute Art 12. The jurisdiction of the ICC complements that of the
States parties, and is thus only exercised if the latter are unwilling or
unable to prosecute genuinely (principle of complementarity): ICC
Statute Art 17.

7.49 Accused persons are not entitled to immunity before supranational

courts and tribunals: Genocide Convention Art 4; IMT Charter Art
7; IMTF Charter Art 6; ICTY Statute Art 7(2); ICRT Statute Art
6(2); ICC Statute Art 27. Indeed, supranational jurisdictions override
 State sovereignty.

Prosecution and enforcement

7.50 Proceedings before international criminal courts basically include a
preliminary situation analysis, investigation, confirmation hearing,
trial, appeal and revision.

7.51 International criminal proceedings are mainly based on the adversarial

system, featuring confrontation between the prosecutor and the
defence, but they also include some elements of the inquisitorial
system, in particular, a more pro-active role of the judges: see ICC,
Regulation 48, Regulations of the Court, Adopted by the Judges of
the Court, 26 May 2004, 5th plen sess, The Hague, ICC Doc ICC-
BD/01-01-04.

[page 115]

7.52 Convictions delivered by the IMT and IMTFE were enforced

respectively according to the orders of the Control Council for
Germany and those of the Supreme Commander for the Allied
Powers: IMT Charter Art 29 and IMTFE Charter Art 17.

7.53 Sentences delivered by the ICTY, ICTR and ICC are served in a
State according to domestic rules, upon designation based on a list of
countries that have agreed to accept convicted persons: ICTY Statute
 Art 27; ICTR Statute Art 26; ICC Statute Arts 103 and 109. The
supervision of execution nevertheless remains with international
tribunals: ICTY Statute Art 28; ICTR Statute Art 27; ICC Statute
Art 106.

7.54 Under Art 80 of its Statute, the ICC may order the transfer of money
and other property collected through fines or forfeiture to a trust fund,
for the purpose of victims’ compensation.

7.55 The cooperation of States with international criminal jurisdictions has

a vertical nature and is essential, in particular, for evidence-gathering,
transfer of individuals for prosecution and enforcement of convictions:
ICTY Statute Art 29; ICTR Statute Art 28; ICC Statute Arts 86 ff.

Transnational criminal procedures

7.56 Transnational criminal procedures are in place for supranational
crimes and (transnational) domestic crimes. Prosecutions concern
individuals and, possibly, other entities, depending on the competent
jurisdiction.

Adjudication
7.57 Customary grounds to adjudicate upon domestic and international
crimes are the principles of territoriality, active and passive
personality, protection, and universal jurisdiction.

These grounds may be derogated from by means of particular

 agreements.

7.58 The principle of territoriality establishes the competence of the State

where criminal conduct commences, is consummated or produces its
effects (objective territorial jurisdiction), or causes significant
economic or non-economic consequences.

This principle not only applies to the ‘territory’, including land,

territorial waters, the contiguous zone, and superjacent atmospheric
space, but also to vessels flying a State’s flag and aircraft registered in a
State: SS Lotus (1927) PCIJ Series A, No 10, 4 at 31.

[page 116]

7.59 The principles of active and passive personality (nationality) confer

jurisdiction on States respectively based on the nationality of the
accused or that of the victim of a crime.

7.60 In light of the protective principle, a State has jurisdiction over a

person who threatens or harms its security interests.

7.61 Universal jurisdiction: Universal jurisdiction entails adjudication upon

crimes by all States of the international community, although
sometimes conditionally upon the presence of the accused in their
territory: Arrest Warrant of 11 April 2000 (Congo v Belgium) [2002]
ICJ Rep 3, Joint Separate Opinion of Higgins, Kooijmans and
 Buergenthal JJ, at [19] ff.

7.62 Grave breaches of the Geneva Conventions, including torture, are

customarily subject to universal jurisdiction: Furundžija (ICTY, IT-
95-17/1, 10 December 1998) 1 at 60, [42]–[44], [156].

7.63 Universal jurisdiction can be maintained for genocide and crimes

against humanity, based upon the erga omnes nature of these
violations: Eichmann 36 ILR 5 at 298–304 (Supreme Court of Israel,
29 May 1962); R v Bow Street Metropolitan Stipendiary Magistrate; Ex
parte Pinochet Ugarte (No 3) [2000] 1 AC 147 at 288 (House of Lords,
13 January 1999).

7.64 The view has also been put forward that universal jurisdiction applies
to aggression: R v Jones [2007] 1 AC 136.

7.65 The crime of piracy is customarily subject to universal jurisdiction.

This has latterly been codified in UNCLOS Art 100 and facilitates
adjudication upon acts that are usually committed outside the territory
of a State.

7.66 Aut dedere aut judicare: A few supranational and transnational crimes
are subject to the principle aut dedere aut judicare, that is, the
obligation for a State to either initiate prosecutions or extradite the
accused. Around 48 conventions provide for this obligation, including
the Geneva Conventions, the Convention against Torture, the
Convention for the Suppression of Terrorist Bombings and
 UNCLOS.

7.67 According to some scholars, the principle aut dedere aut judicare
generally applies to crimes against humanity, mainly because of their
universal nature: Michael P Scharf, ‘Aut dedere aut judicare’, in
Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International
Law, Oxford University Press, 2012, at [21].

7.68 Jurisdictional conflicts: The most relevant jurisdictional conflict arose in

Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the

[page 117]

Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom)

[1992] ICJ Rep 3 (Lockerbie), a case entailing the application of
several adjudication principles to acts of terrorist bombing.

Case Summary
QUESTIONS OF INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING FROM THE
AERIAL INCIDENT AT LOCKERBIE (LIBYAN ARAB
JAMAHIRIYA v UNITED KINGDOM) [1992] ICJ REP 3
(LOCKERBIE case)
INTERNATIONAL COURT OF JUSTICE

FACTS: In this case, Libya claimed criminal jurisdiction over two Libyan nationals,
Abdelbaset Ali Mohmed Al Megrahi and Ali Amin Khalifa Fhimah, accused by the Lord
Advocate of Scotland and a United States (US) Grand Jury of having placed a bomb on
a Pan Am Flight 103 from Frankfurt to New York. The aircraft exploded over Scotland,
killing 259 passengers and crew and 11 persons in Lockerbie. Victims had several
nationalities, including 32 US citizens and 66 United Kingdom (UK) citizens. The plane
was registered in the US.

Many countries could have claimed competence over the case, for instance, France
and Argentina, based on the nationality principle, or Malta and Germany, where the
bomb was transferred before the attack, in light of the principle of territoriality.
However, a visible conflict of jurisdiction only arose between the UK and US, on the
one hand, and Libya, on the other.

The UK and US governments required the extradition of the accused Libyans for the
purpose of prosecution. Both States had jurisdiction based on the passive nationality
principle (customary international law), the principle of territoriality (Art 5(1)(a)(b) of
the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety
of Civil Aviation ((Montreal Convention) adopted and opened for signature 23
September 1971, 974 UNTS 177, entered into force 26 January 1973) and customary
international law), and the protective principle (customary international law). By
means of Resolutions 731/1992, 748/1992 and 833/1993, the UN Security Council
concluded that the terrorist acts were State-sponsored, condemned Libya for
engaging in terrorist activities, and urged ‘a full and effective response’ by Libya to
the requests for extradition.

[page 118]

Following the requests for extradition by the UK and the US, Libya started
prosecutions against the suspected terrorists. Libya had competence based on active
personality and claimed jurisdiction in light of Art 5(2) of the 1971 Montreal
Convention, requiring a State to establish its own competence over alleged offenders
present in its territory, in compliance with the aut dedere aut judicare principle
embedded in Art 7 of the Convention. Hence, Libya brought an action in the ICJ to
obtain the delay or prohibition of the implementation of the UN Security Council’s
 sanctions until a final decision on Libya’s argument under the 1971 Montreal
Convention had been made.

ISSUE: Who has the right to prosecute in the case of a conflict of jurisdictions?

DECISION: By means of an order of 14 April 1992, the ICJ decided that UN Security
Council Resolutions 731/1992, 748/1992 and 833/1993 obliged Libya to comply with the
requests for extradition submitted by the UK and US. Therefore, the court refused to
grant provisional measures enforcing the right of Libya to prosecute under the 1971
Montreal Convention.

After the ICJ rejected an exception addressing the court’s lack of competence to
adjudicate in 1998, Libya finally agreed to extradite the accused persons for trial by a
Scottish Tribunal sitting in the Netherlands. The tribunal delivered its judgment in
2001, only convicting Al Megrahi to life imprisonment, and the sentence was partly
served in Scotland.

The Lockerbie case was consensually removed from the ICJ in 2003.

7.69 Adjudicating crimes committed in time of war or by military personnel:

State courts in Germany, Poland, and Israel, among other countries,
prosecuted international crimes committed during World War II as
defined under the Control Council Law No 10 (1945).

7.70 Besides criminal courts, criminal jurisdiction can be exercised by

domestic military courts: see UK, Royal Warrant of 18 June 1945.

7.71 Courts martial have often been established by occupying powers. For
instance, in the aftermath of World War II, the four Allied powers
occupying Germany and Austria (that is, the US, Great Britain,
France, and the Soviet Union) held military trials in their respective
zones of occupation for wartime international criminal offences
defined under Control Council Law No 10. One example is the
‘lower’
 [page 119]

trials of 12 high-ranking German officials conducted by US military

tribunals in Nuremberg between 1947 and 1948.

7.72 Immunity: The exercise of foreign domestic jurisdiction is excluded for

State agents, who enjoy personal and functional immunities based on
the principle of equal State sovereignty. However, functional
immunity for international crimes is being progressively eroded: see
Chapter 4.

Prosecution and enforcement

7.73 Prosecution and enforcement of international crimes adjudicated
upon by domestic courts take place according to domestic rules. In
this respect, transnational rules govern interstate cooperation
(international cooperation in criminal matters).

7.74 Interstate cooperation has a horizontal nature and concerns, in

particular, the regulation of evidence-gathering, transfer of criminal
proceedings, extradition and transit of individuals for the purposes of
prosecution or enforcement of criminal sentences.

7.75 The main rules on mutual assistance are embedded in customary law
and bilateral and multilateral treaties, which complement domestic
law. For instance, Art 88 of Additional Protocol I to the Geneva
Conventions provides that States afford reciprocal assistance in
 proceedings concerning war crimes, consistently with other bilateral
and multilateral treaties, in particular, with regard to extradition.

7.76 So far, Australia has concluded extradition agreements with around

60 countries.

Hybrid tribunals
7.77 Hybrid tribunals have features of both international and domestic
tribunals. They include domestic and international prosecutors and
judges and apply a mix of domestic and international criminal law,
with regard to both substance and procedure.

7.78 The Serious Crimes Panels in the District Court of Dili, East Timor
(2000–2005), the Mixed Panels in the Courts of Kosovo (2001), and
the War Crimes Chamber of the Court of Bosnia-Herzegovina
(2005) can be considered ‘internationalised domestic courts’.

The Special Court for Sierra Leone (SCSL, 2002), the

Extraordinary Chambers in the Courts of Cambodia (2006), and the
Special Tribunal for Lebanon (ECCC, 2009) can be regarded as
‘domesticated international courts’.

[page 120]

7.79 Statutes tend to exclude immunity before hybrid tribunals: UN

Transitional Administration in East Timor (UNTAET) Regulation
2000/15 on the Establishment of the East Timor Panels, Section 15;
Statute of the Special Court for Sierra Leone Art 6(2); Law on the
Establishment of the ECCC Art 29.
 [page 121]

CHAPTER 8

International Economic Law

 [page 122]

INTRODUCTION
8.1 International economic law (IEcL) governs transnational economic
relations between States, international organisations, non-
governmental organisations (NGOs), transnational corporations
(TNCs), and natural persons.

IEcL aims to create a level playing field for economic transactions

and can be divided into five main regulatory areas, that is, monetary
law, investment law, trade law, competition law, and taxation law.
Monetary and investment obligations together constitute financial
law, whereas trade and investment duties concur to define commercial
law: Jahn H Dalhuisen, Transnational and Comparative Commercial,
Financial and Trade Law, Hart, 3rd ed, 2007.

Systemically, this chapter is underpinned by a formal approach to

IEcL, based on primary and secondary substantive and procedural
rules: Ottavio Quirico, A Purely Formal Theory of Law – The Deontic
Network, EUI MWP 2009/11, particularly pp 1–8
<http://cadmus.eui.eu/handle/1814/11482>.

SOURCES AND SCOPE OF INTERNATIONAL

ECONOMIC LAW
 The sources of international economic law are custom, treaties,
8.2
general principles of law, and private practices: see Chapter 2.

8.3 In light of the new international economic order (NIEO), States

customarily have permanent sovereignty over their natural resources, a
right to non-intervention in domestic affairs, and are free to engage,
or not, in economic relations with other countries: Charter of the
United Nations ((UN Charter) adopted and opened for signature 26
June 1945, 1 UNTS XVI, entered into force 24 October 1945);
United Nations (UN) Charter of Economic Rights and Duties of
States, General Assembly Resolution 3281 (XXIX) UN GAOR, 29th
sess (12 December 1974); Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, at 138, [276].
These basic rules are integrated by general principles of law, such as
good faith, freedom of contract, and prohibition of unjust enrichment.

8.4 Within this context, bilateral and multilateral treaties emerge as the
primary sources of international economic relations. They harmonise
substantive law, regulate conflicts of laws, and govern dispute
settlement.

Some treaties cover both financial and trade relationships: eg,

North American Free Trade Agreement ((NAFTA) adopted and
opened for signature 17 December

[page 123]
 1992, 32 ILM 289, entered into force 1 January 1994). Other treaties
regulate obligations relevant to the whole spectrum of economic
relations: eg, Treaty on European Union ((TEU) adopted and opened
for signature 7 February 1992 by means of the Maastricht Treaty, OJ
C 191 (29 July 1992), entered into force 1 November 1993); Treaty
on the Functioning of the EU ((TFEU), adopted and opened for
signature 13 December 2007 by means of the Lisbon Treaty, OJ C
306 (17 December 2007), entered into force 1 December 2009).

8.5 The Convention on the Law Applicable to Contractual Obligations

((Rome I) adopted and opened for signature 19 June 1980, OJ L 266
(9 October 1980), entered into force 1 April 1991 and subsequently
developed into EC Regulation 593/2008, OJ L 177 (4 July 2008)) is
of particular significance among treaties. It establishes that applicable
law is determined by the free choice of the parties (Art 3), or by the
most connected law, notably based on the place of conclusion or
performance of the contract, or the location of goods and parties to it
(lex loci (contractus, actus or solutionis), lex domicilii, and lex situs): Art
4; Bonython v Commonwealth [1951] AC 201; Re United Railways of
the Havana and Regla Warehouses Ltd [1960] 2 All ER 332.

8.6 Further, the UN Convention on the Use of Electronic

Communications in International Contracts (adopted 23 November
2005, opened for signature 16 January 2006, UN Doc A/60/515,
entered into force 1 March 2013) clarifies issues such as the
determination of a party’s location (Art 6: basically, the place of
 business), and the time of conclusion of a contract (Art 10: basically,
the time when a communication can be electronically retrieved by the
addressee) in an electronic environment.

8.7 In the matter of extra-contractual obligations, the place where

conduct takes place (lex loci actus (commissi delicti)): Phillips v Eyre
(1870) LR 6 QB1), preferably including the occurrence of damage
(2007 EC Regulation 864/2007 on the Law Applicable to Non-
Contractual Obligations, OJ L 199 (31 July 2007), entered into force
20 August 2007 and applicable from 11 January 2009 (Rome II),
particularly Arts 4, 6, 8, and 10) is the prevailing criterion to
determine applicable law, at least in the absence of an alternative
agreement: Rome II Regulation Art 2.

8.8 In some cases, multilateral treaties create additional regulatory bodies,

either active across the different areas of international economic law,
such as the UN Conference on Trade and Development (UNCTAD),
or specialised in specific areas, such as the International Monetary
Fund (IMF) and the World Trade Organization (WTO).

[page 124]

8.9 State-based principles are complemented by transnational standards

established by private actors engaging in trans-border transactions,
together constituting lex mercatoria (merchant law). Significantly, the
 Hague Draft Principles on Choice of Law in International
Commercial Contracts (2012) confirm the basic criterion of the
freedom of choice as to applicable law. The International Institute for
the Unification of Private Law (UNIDROIT) Principles on
International Commercial Contracts (2010) establish a uniform
regulatory framework for the formation, validity, content and
performance of transnational contracts. The 1996 UN Commission
on International Trade Law (UNCITRAL) Model Law on
Electronic Commerce aims to outline harmonised rules for the
formation and validity of contracts concluded by electronic means.

8.10 Additional regulation applies to economic transactions by means of

integration with other regulatory systems, in particular, international
environmental law and human rights, along the lines of Art 31(3)(c)
of the Vienna Convention on the Law of Treaties ((VCLT) adopted
22 May 1969, opened for signature 23 May 1969, 1155 UNTS 331,
entered into force 27 January 1980).

INTERNATIONAL FINANCIAL LAW

International monetary law
8.11 Currency is money used in a particular country at a particular time.
International monetary law governs the relationship between different
currencies. Regulation is rooted in the agreements that followed the
1944 Bretton Wood Conference establishing the IMF and the World
Bank (WB).
8.12 Originally, the IMF Agreement (adopted and opened for signature 22
July 1944, 2 UNTS 39, entered into force 27 December 1945)
compelled Member States to express the par value of their currency
based on gold or the US dollar: Art IV(1). Each Member State was
required to maintain the value of its currency within one per cent
above and below the par value (Art IV(3)), which was not supposed to
change, save to correct a fundamental disequilibrium: Art IV(5). If the
price of a member’s currency appeared likely to move outside the
prescribed limits, a State was requested to purchase or sell its
currency, by using fully convertible reserves: Art IV(4). When a
Member State lacked the necessary reserves to stabilise its currency
under Art IV(4), it could temporarily draw on the IMF, subject to
interest and the obligation to repay: Art V.

8.13 Following the United States of America’s (US) announcement on 15

August 1971 as to the termination of the obligation to maintain
currency within the prescribed

[page 125]

par, the IMF Agreement has been reformed, so as to allow major

currencies to float, leaving individual States or groups of States free to
make their own arrangements. However, States must strive to
promote exchange rate stability by fostering orderly underlying
economic and financial conditions and a monetary system that does
 not produce erratic disruptions, avoiding manipulation of exchange
rates in order to ensure an effective balance of payments: IMF
Agreement Art 4(1). Par values can be introduced, if necessary, based
on an 85 per cent majority of the voting power: IMF Agreement Art
4(4). States can still draw on the IMF to ensure financial stability
(IMF Agreement Art 5) and special conditions may be established for
developing countries: IMF Agreement Art 12(f)(ii).

8.14 Long-term loans can be obtained by States from the WB (formally,

the International Bank for Reconstruction and Development), which
is part of the WB Group, a set of institutions making leveraged loans,
also including the International Finance Corporation (IFC), the
International Development Association (IDA), the International
Centre for Settlement of Investment Disputes (ICSID), and the
Multilateral Investment Guarantee Agency (MIGA). Financial
services essential to the stability of the monetary system are also
provided by the Bank for International Settlements (BIS), which acts
as a clearing agent for transactions among central banks, holds foreign
exchange reserves on deposit, and assists with bridge loans for
coordinated rescue operations.

8.15 Launched by the Maastricht Treaty and inspired by the US, the
European Economic and Monetary Union (EMU) is the most
integrated regional monetary system. The EMU provides a single
currency, a single interest rate, one monetary policy, and a central
bank presiding over a system of national central banks. Examples of
 less integrated monetary unions and zones are the Caribbean Single
Market and Economy and the West African Economic and Monetary
Union.

International investment law

8.16 The notion of ‘foreign investment’ encompasses capital and
technology transfer, involving lasting commitment and assumption of
risk in the host State: Salini Costruttori SpA and Italstrade SpA v
Morocco, ARB/00/4 (23 July 2001) (ICSID case); John Mo,
International Commercial Law, LexisNexis, 5th ed, 2013, pp 562–3.
Foreign investment is thus the business-related flow of money and
technology towards another country capable of producing future
profits. International investment law governs the creation of a level
playing field for foreign investment and its protection from
interference by the host State.

[page 126]

8.17 Customarily, a State is free to reject or accept foreign investment.

Within this framework, the main sources of international investment
law are bilateral investment treaties (BITs) and multilateral
investment treaties, such as the Agreement between the Government
of Australia and the Government of the People’s Republic of China
on the Reciprocal Encouragement and Protection of Investments
((Australia-China BIT) adopted and opened for signature 11 July
 1988, 1514 UNTS 65, entered into force 11 July 1988). Often,
investment regimes are included in free trade agreements, such as Part
III of the Energy Charter Treaty ((ECT) adopted and opened for
signature 17 December 1994, 2080 UNTS 95, entered into force 16
April 1998) and Chapter 11 of the NAFTA.

8.18 Investment agreements define State–State and investor–State rights

and duties governing foreign investment promotion and protection.
These are ensured by guaranteeing the free transfer of investment
funds (eg, ECT Art 14 and NAFTA Art 1109), under stable and
transparent conditions (fair and equitable treatment, eg, ECT Art
10(1) and NAFTA Art 1105), which are no less favourable than the
most advantageous conditions accorded to domestic investors
(national treatment standard, eg, ECT Art 10(2) and NAFTA Art
1102), and to investors from any other third State (most favoured
nation (MFN) standard, eg, ECT Art 10(3) and NAFTA Art 1103).
Within such a context, expropriation is prohibited, and in any case
subject to adequate compensation: eg, ECT Art 13 and NAFTA Art
1110.

Umbrella clauses can further ensure respect for other internationally

agreed investment rules: eg, ECT Art 10(1), last sentence: ‘[e]ach
Contracting Party shall observe any obligations it has entered into
with an Investor or an Investment of an Investor of any other
Contracting Party’.
 Investment protection is also progressively subject to non-
discriminatory limitations based on public purposes such as
environmental protection, health, labour, and respect for the integrity
of the law of the host State: eg, ECT Arts 13(1) and 19, NAFTA
Arts 1110 and 1114. In this respect, the Convention Establishing the
MIGA (adopted 11 October 1985, 1508 UNTS 99, entered into
force 12 April 1988) outlines an international framework for political
risk insurance.

Some treaties prohibit host States from imposing performance

requirements upon foreign investors as to export, local contents, trade
balancing, transfer of technology, local processing, and capitalisation:
eg, NAFTA Art 1106 and

[page 127]

Agreement on Trade-related Investment Measures ((TRIMs)

adopted and opened for signature 15 April 1994, 1868 UNTS 186,
entered into force 1 January 1995) annexed to the General Agreement
on Tariffs and Trade ((GATT) adopted and opened for signature 30
October 1947, 55 UNTS 194, entered into force 1 January 1948).

8.19 Substantive obligations under international agreements are

complemented by soft regulation embedded in instruments such as
the WB’s Guidelines on the Treatment of Foreign Direct Investment
 (1992) and the Organization for Economic Co-operation and
Development (OECD) Guidelines for Multinational Enterprises
(2011).

INTERNATIONAL TRADE LAW

8.20 Trade involves the exchange of goods and services. International trade
law regulates transnational buying and selling transactions in tangible
and intangible goods, including money, and services, including
financial services. Its foundations were laid down in 1947–1948 by the
UN Conference on Trade and Employment, which led to adopting
the Havana Charter, and are now embedded in the WTO and other
agreements.

The WTO system

8.21 The WTO (www.wto.org) was established in 1994 at the end of the
Uruguay round (1986–93) of GATT negotiations via the Agreement
Establishing the World Trade Organization ((Marrakesh Agreement)
adopted and opened for signature 15 April 1994, 1867 UNTS 3,
entered into force 1 January 1995). It provides an institutional
umbrella for a set of annexed treaties aiming to create a level playing
field for cross-border trade, as well as for the negotiation of possible
additional trade agreements, which usually takes place via regular
negotiation rounds: Marrakesh Agreement Arts II(1) and III.

8.22 According to the preamble of its constitutive Agreement, the WTO

 aims to achieve overarching economic policy goals, particularly
adequate standards of living, employment, equality of income,
increased production, optimal resources allocation, as well as
sustainable economic development, by creating internationally
competitive trade conditions.

[page 128]

8.23 The main agreements covered by the WTO institutional system (as
established by the Marrakesh Agreement) are:

Annex 1(a) Multilateral agreements on trade in goods:

General Agreement on Tariffs and Trade
◊ Agreement on Agriculture
◊ Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS)
◊ Agreement on Textiles and Clothing (ATC)

◊ Agreement on Technical Barriers to Trade (TBT)

◊ Agreement on Trade-Related Investment Measures
◊ Agreement on Implementation of Article VI of the
GATT: Antidumping
◊ Agreement on Implementation of Article VII of the
GATT: Customs Valuation
◊ Agreement on Pre-shipment Inspection
 ◊ Agreement on Rules of Origin
◊ Agreement on Import Licensing Procedures

◊ Agreement on Subsidies and Countervailing Measures

(SCM)
◊ Agreement on Safeguards.
Annex 1(b) General Agreement on Trade in Services (GATS).
Annex 1(c) Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPs).
Annex 2 Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU).
Annex 3 Trade Policy Review Mechanism ((TPRM) compelling
States Parties to the agreements covered by the WTO umbrella
periodically to report to the Trade Policy Review Body).
Annex 4 Plurilateral trade agreements (governing free trade in
particular areas):
4(a) Agreement on Trade in Civil Aircraft
4(b) Agreement on Government Procurement
4(c) International Dairy Agreement
4(d) International Bovine Meat Agreement.

8.24 All parties to the Marrakesh Agreement are necessarily parties to the
annexed, and subordinated (Marrakesh Agreement Art XVI(3)),
multilateral agreements, DSU and TPRM: Marrakesh Agreement
Art II(2). This single undertaking approach does not apply to
 plurilateral trade agreements. Furthermore, under the Marrakesh
Agreement, Art XVI(4), States commit to implement treaty
obligations domestically by means of national legislation.

[page 129]

8.25 The WTO institutional system aims to facilitate implementation,

including progressive application, interpretation, and amendment, of
the agreements covered by the WTO umbrella.

8.26 The main regulatory bodies are the Ministerial Conference and the
General Council, which make decisions by consensus or alternative
voting thresholds: Marrakesh Agreement Art IX(1). These organs
head several sub-councils, committees, and working parties, basically
in accordance with the different agreements included in the WTO
system.

8.27 The Ministerial Conference is the highest decision-making body,

including ministers from all WTO Members, and meets at least once
every two years. It makes strategic decisions under any of the
multilateral trade agreements: Marrakesh Agreement Art IV(1).

8.28 The General Council is composed of senior representatives from all

WTO Member States and includes the Council for Trade in Goods,
the Council for Trade-Related Aspects of Intellectual Property
Rights, the Council for Trade in Services, and the Trade Negotiations
 Committee. It oversees the functioning of the agreements
encompassed by the WTO system: Marrakesh Agreement Art IV(2)–
(6).

Trade in goods

WTO regulation
8.29 Among multilateral agreements, the GATT is crucial to trade in
goods. It basically seeks to establish a level playing field for the
international circulation of commodities, based on the principle of
non-discrimination. Accordingly, the MFN clause provides that, with
respect to customs duties and charges of any kind imposed on or in
connection with the import or export of ‘like’ products, a State party
may not be treated by another State party less advantageously than
any other States parties: GATT Art I. Tariffs are not prohibited, but
States are bound to respect specific rates (GATT Art II) and to apply
them equally: GATT Art XIII. In order to achieve transparency,
quantitative restrictions on import and export are proscribed, save
particular situations, such as critical agricultural shortages: GATT Art
XI.

For purposes of fairness, an exporting State cannot introduce a

product into the market of another country at less than the normal
value of ‘like’ products (prohibition of ‘dumping’): GATT Art VI.
Subsidies and offsetting countervailing duties are subject to limits:
GATT Arts XVI and VI(3).
 Once a foreign product enters a market, GATT Members must not
subject it to internal taxes or other internal charges of any kind in
excess of those applied,

[page 130]

directly or indirectly, to like domestic products (national treatment

principle): GATT Art III.

8.30 In relation to the basic principle of non-discrimination, the WTO

Appellate Body clarified that the scope of application of the GATT is
precisely defined by the notion of ‘directly competitive or
substitutable’ products, which is broader than that of ‘like’ products.

Case Summary
JAPAN – ALCOHOLIC BEVERAGES II
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 NOVEMBER
1996)

FACTS: In 1995, Canada, the EC and the US complained that the Japanese Liquor Tax
Law (Shuzeiho) No 6 of 1953 charged shochu, a domestic liquor, less than imported
products, particularly vodka and other spirits such as whiskey, brandy and rum, and
was discriminatory under GATT Art III.

ISSUE: How are the concepts of ‘likeness’ and ‘directly competitive or substitutable
products’ to be defined, and what is the consequent scope of application of the GATT?

DECISION: In light of the notion of similar ‘end-uses’, the WTO Appellate Body held
that the notions of ‘likeness’ and ‘directly competitive or substitutable products’ are
crucial to determine whether a level playing field is in place and must be determined
on a case-by-case basis:

… there can be no one precise and absolute definition of what is ‘like’. The
concept of ‘likeness’ is a relative one that evokes the image of an accordion.
The accordion of ‘likeness’ stretches and squeezes in different places as
different provisions of the WTO Agreement are applied. The width of the
accordion in any one of those places must be determined by the particular
provision in which the term ‘like’ is encountered as well as by the context
and the circumstances that prevail in any given case to which that provision
may apply. We believe that, in Article III:2, first sentence of the GATT 1994, the
accordion of ‘likeness’ is meant to be narrowly squeezed …

As with ‘like products’ under the first sentence, the determination of the
appropriate range of ‘directly competitive or substitutable products’ under
the second sentence must be made on a case-by-case basis.

[page 131]

(WTO Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1 November 1996)

pp 21 and 25)

Confirming the conclusion of the Panel, the Appellate Body held that shochu is a ‘like’
product compared to vodka and a ‘directly competitive and substitutable’ product
compared to spirits such as whisky, brandy, and rum. The Appellate Body therefore
held that Japan dissimilarly taxed these goods so as to afford protection to domestic
production, in breach of GATT Art III (WTO Docs WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R (1 November 1996) p 32).
8.31 Equal trade conditions suffer exceptions. In particular, these are
allowed to remedy economic emergencies, safeguard payment
imbalances, and support developing countries (GATT Art XVIII),
subject to non-discrimination: eg, EC – Conditions for the Granting of
Tariff Preferences in Developing Countries, WT/DS246/AB/R (7 April
2004).

8.32 General and security exceptions to equal trade conditions are

established under GATT Arts XX and XXI. General exceptions
include public interests, particularly the protection of public morals;
human, animal or plant life or health; conservation of exhaustible
natural resources; and compliance with law and regulations, provided
they are not ‘applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries’ or ‘a
disguised restriction on international trade’: eg, Australia — Measures
Affecting Importation of Salmon, WT/DS18/AB/R (6 November
1998). Further exceptions can be established within customs unions
and free trade areas: GATT Art XXIV.

8.33 Whether the conservation of exhaustible natural resources extends to

the environment as such should be positively answered in light of the
references to ‘sustainable development’ and ‘environmental protection’
embedded in the preamble of the Marrakesh Agreement: US – Import
Prohibition of Certain Shrimp and Shrimp Products, WT DS58/AB/R
(12 October 1998) at [129]. This interpretation allows Member
States to restrict trade in commodities imported from countries that
 do not adopt comparable process and production methods (PPMs),
possibly including greenhouse gas reduction-measures: Ottavio
Quirico, ‘EU Border Tax Adjustments and Climate Change:
Reaching Consensus within the International Legal Context’ (2010)
19 European Energy and Environmental Law Review 230.

8.34 The GATT is supplemented by sector-specific treaties appended to

the Marrakesh Agreement under Annex 1A, which are lex specialis
(special law) (General

[page 132]

Interpretative Note to Annex 1A) and deal with, inter alia,

agriculture, textiles, subsidies and safeguards.

8.35 Of particular relevance are the TBT Agreement and the SPS
Agreement, whereby the latter is lex specialis with respect to the
former: TBT Agreement Art 1(5). These instruments aim to clarify
exceptions to free trade under GATT Art XX, in order to exclude
technical barriers to trade similar to quantitative restrictions created
via standards such as testing and certification procedures, or
conformity assessments.

Non-WTO regulation
8.36 In addition to the WTO, other bodies and instruments regulate
 international trade in goods.

8.37 For instance, the Coffee Agreement (adopted and opened for
signature 28 September 1962, 6791 UNTS 169, entered into force 1
July 1963) is an international commodity agreement (ICA) that
creates a cooperative framework so as to establish an expanded and
transparent international market for coffee. Another example is the
1988 Protocol on Acceleration of Free Trade in Goods (adopted,
opened for signature and entered into force 18 August 1988, ATS
1988 No 18) to the Australia-New Zealand Closer Economic
Relations Trade Agreement (adopted and opened for signature 28
March 1983, 1329 UNTS 175, entered into force 1 January 1983).
Concerning WTO Members, these instruments must be consistent
with the GATT, in accordance with its Art XXIV(5).

8.38 UNCITRAL, established by means of UN General Assembly

Resolution 2205 (XXI) of 17 December 1966, aims to unify
international trade law. Among other instruments, UNCITRAL
drafted the UN Convention on Contracts for the International Sale of
Goods (adopted and opened for signature 11 April 1980, 1489 UNTS
3, entered into force 1 January 1988), which provides a harmonised
substantive framework for contracts of sale of goods between parties
that apply the law of a Member State based on private international
law, or whose place of business is in different States Parties: Art 1.
The Convention governs the formation of contracts, rights and duties
of sellers and buyers, breaches and remedies.
Trade in services

WTO regulation
8.39 The GATS aims to establish a competitive playing field for
specifically chosen trans-border services (GATS Art XX), including
financial services, such as banking (GATS Annex IV), and cyber-
services (GATS Annex on Telecommunications), regardless of
whether or not the provider is physically present in the foreign
territory. The GATS

[page 133]

addresses a number of basic issues in parallel to, but sometimes

differently from, the GATT.

8.40 The cornerstone is GATS Art II (MFN Treatment), which compels

each Member State to accord to services and service suppliers of any
other Member a treatment no less favourable than that accorded to
‘like’ services and service suppliers of another State party. Article XVI
establishes for services and service suppliers from foreign Member
States a treatment no less favourable than that accorded to its own
‘like’ (preferably, directly competitive or substitutable (EC – Bananas
III, WT/DS27/R/ECU (22 May 1997) at [7.332], [7.359], [7.379],
WT/DS27/AB/R (9 September 1993) at [223]–[228]) services and
service suppliers.
 Along the lines of the GATT, GATS Art XII governs exceptions
to competitive services based on payment imbalances; Arts XIV and
XIVbis provide general and security exceptions, which should extend
to cyber services (US – Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, WT/DS285/AB/R (7 April 2005));
and Arts V and Vbis regulate exceptions within free trade areas.

Specific provisions govern subsidies and countervailing duties

(GATS Art XV), government procurement (Art XIII), safeguards
(Art X), the elimination of restrictive business practices (Art IX), and
control of monopoly suppliers (Art VIII).

Non-WTO regulation
8.41 In addition to the WTO, since the 1980s several bilateral and regional
agreements regulate trade in services. For instance, establishing a level
playing field for trade in services is the aim of the Protocol on Trade
in Services to the Australia-New Zealand Closer Economic Relations
Trade Agreement (adopted and opened for signature 18 August 1988,
[1988] ATS 1988 20, entered into force 1 January 1989) and the
Montevideo Protocol on Trade in Services (adopted and opened for
signature 15 December 1997, entered into force 17 December 2005)
to the Treaty Establishing a Common Market between the Argentine
Republic, the Federal Republic of Brazil, the Republic of Paraguay
and the Eastern Republic of Uruguay (Mercado Común del Sur:
MERCOSUR, adopted and opened for signature 26 March 1991,
 2140 UNTS 257, entered into force 29 November 1991). The
OECD Code of Liberalisation of Current Invisible Operations of the
Organization for Economic Co-operation and Development (OECD
Code, 2013) has a similar aim. As to WTO Members, instruments
establishing preferential treatment must be consistent with the
GATS, in accordance with its Art 5.

[page 134]

Trade in intellectual property

WTO regulation
8.42 Intellectual property includes intangible products of creative human
activity, for instance, writings, films, designs, wines, and Internet
databases, which can be protected via instruments such as copyrights,
patents, trademarks, and geographical indications. The TRIPs
Agreement aims to establish a level playing field for trans-border
transactions concerning intellectual property. The cornerstone is laid
out in TRIPs Agreement Arts 3 and 4. Article 3 (National
Treatment) obliges Member States to accord to the nationals of other
Member States a treatment no less favourable than that accorded to
its own nationals, subject to exceptions provided for in specific
international treaties. Article 4 (MFN Treatment) provides that any
advantage granted by a Member State to the nationals of another
State Party as to intellectual property must be extended to the
 nationals of all other Member States.

Exceptions to competitive trade conditions are regulated in several

provisions of the Agreement, such as Arts 11 and 13, and security
exceptions are included in Art 73.

The TRIPs Agreement also governs minimum standards

concerning the availability, scope and use of intellectual property
rights (Part II), and domestic enforcement procedures (Part III).

Non-WTO regulation
8.43 In addition to the WTO, trade in intellectual property is mainly
regulated via the World Intellectual Property Organization (WIPO),
a UN specialised agency that provides an umbrella for two types of
agreements.

A first set of agreements, for instance, the Treaty on Intellectual

Property in respect of Integrated Circuits (adopted and opened for
signature 26 May 1989, 28 ILM 1447, not yet entered into force), are
inspired by the Paris Convention for the Protection of Industrial
Property (adopted and opened for signature 20 March 1883, 10
Martens Nouveau Recueil 2d 133, entered into force 1884), by the
Berne Convention for the Protection of Literary and Artistic Work
(adopted and opened for signature 9 September 1886, 1161 UNTS 3,
entered into force 5 December 1887), and by the Rome Convention
for the Protection of Performers, Producers of Phonograms and
 Broadcasting Organizations (adopted and opened for signature 26
October 1961, 6 UNTS 44, entered into force 18 May 1964). These
instruments aim to harmonise State provisions on intellectual property
rights and complement the TRIPs Agreement: TRIPs Agreement
Arts 2, 9 and 35.

[page 135]

A second set of agreements, such as the Patent Cooperation Treaty

(adopted and opened for signature 19 June 1970, 1160 UNTS 231,
entered into force 24 January 1978) regulate international procedures
to apply for the recognition of intellectual property rights.

8.44 The Universal Copyright Convention (adopted and opened for

signature 6 September 1952, 943 UNTS 178, entered into force 16
September 1955) of the UN Educational, Scientific and Cultural
Organization also aims to provide a harmonised regulatory framework
for copyright among State parties.

INTERNATIONAL COMPETITION LAW

8.45 Transnational economic transactions are subject to State anti-
competition rules. International competition (antitrust) law aims to
resolve possible regulatory inconsistencies and create a level playing
field by determining, limiting, and harmonising applicable laws in the
matter of anticompetitive practices, such as vertical restraints and
 abuses by dominant firms.

8.46 Anticompetitive behaviour is usually prohibited by the law (eg,

Competition and Consumer Act 2010 (Cth)) of the place where a
restrictive act, for instance, the establishment of a cartel, takes place
(American Banana Co v United Fruit Co 213 US 347 (1909)), or by the
law of the place where the effects of a restrictive act occur: Hartford
Fire Insurance Co et al v California et al 509 US 764 (1993);
Timberlane Lumber Co v Bank of America 549 F2d 597 (1976); EC
Regulation 864/2007 (Rome II) Art 6.

8.47 Harmonising substantive rules restricting anticompetitive behaviour

are mostly adopted as soft law (see Chapter 2). This is the case, for
instance, of the UN Equitable Principles and Rules for the Control of
Restrictive Business Practices (2000), the Antitrust Code for the
Secretary General of the GATT (1993), and Chapter X of the
OECD Guidelines for Multinational Enterprises.

8.48 Procedurally, enforcement of domestic legislation is facilitated by

international agreements on exchange of information, investigation
and consultation in the case of conflicting jurisdictional claims. This is
achieved by means of bilateral and multilateral instruments: eg,
Agreement between the Government of the US and the Government
of the Federal Republic of Germany Relating to Mutual Cooperation
Regarding Restrictive Business Practices (adopted, opened for
signature and entered into force 23 June 1976); Hague Convention on
 the Service Abroad of Judicial and Extrajudicial Documents in Civil
or Commercial Matters (adopted and opened for signature 15
November 1965, 658 UNTS 163, entered

[page 136]

into force 10 November 1969); Hague Convention on the Taking of

Evidence Abroad in Civil or Commercial Matters (adopted and
opened for signature 15 November 1965, 847 UNTS 241, entered
into force 10 February 1969).

Cooperation between national competition authorities is also

facilitated by the International Competition Network (ICN):
<www.internationalcompetitionnetwork.org>.

INTERNATIONAL TAXATION LAW

8.49 International taxation law regulates governmental levies on income
and capital or on trans-border trade. Taxes on income and capital are
either source-based (in rem) or (either natural or legal) person-based
(in personam). Taxes on transnational trade can be grounded in an
origin or destination basis. This generates the possibility of double
taxation.

8.50 International taxation law aims at coordinating the tax rules of

different countries, so as to protect governmental revenues and
 minimise their negative effects on economic competition. Double
taxation on income and capital is excluded by conferring rights on
taxpayers against States, via a uniform definition of income and
residence, and prioritisation of either income or residence as a basis
for taxation: see, in particular, the OECD Model Convention with
respect to Taxes on Income and on Capital (2014) and the UN Model
Tax Convention between Developed and Developing Countries
(1999). Double taxation on other transnational trade is excluded based
on the place where the customer is located or where a commodity or
service is supplied: eg, EU Council Directive 2006/112/EC of 28
November 2006 on the Common System of Value Added Tax.

8.51 Furthermore, international taxation law aims to ensure the avoidance

of tax evasion and inter-State cooperation: eg, OECD Multilateral
Convention on Mutual Administrative Assistance in Tax Matters
(adopted and opened for signature 25 January 1988, entered into force
1 April 1995).

DISPUTE SETTLEMENT
General mechanisms
8.52 Interstate economic disputes are resolved via classical consensual
procedures, particularly consultation, mediation, conciliation,
arbitration, and litigation: eg, 1899 and 1907 Hague Conventions for
the Pacific Settlement of International Disputes (respectively adopted,
opened for signature, and entered into force 29 July
 [page 137]

1899–4 September 1990 and 18 October 1907–26 January 1910) (see

Chapter 12). Alternatively, unilateral procedures are available, based
on invocation of responsibility and countermeasures, including
economic measures (‘trade wars’, not excluded under Principle 4(c) of
UN General Assembly Resolution 2625 (XXV) of 24 October 1970:
Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the UN
Charter – see Chapter 10.

8.53 Specific bilateral or multilateral treaties may determine the competent

jurisdiction for contractual disputes: Hague Conference (Conférence
de La Haye: HCCH) on Private International Law Convention on
the Choice of Court Agreements (adopted and opened for signature
30 June 2005, 1144 UNTS 249, not yet entered into force).
Otherwise, the competent forum is determined by domestic law in
light of private international law principles, particularly based on the
choice of the parties, the place where a disputed act is committed or
produces its effects (lex loci actus (commissi delicti)), or the most
connected place, specifically in light of the location of goods and
parties, and the place of adjudication (lex situs, lex domicilii, lex patriae,
and lex fori): HCCH Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters
(adopted and opened for signature 1 February 1971, entered into
 force 20 August 1979) Art 10; EC Regulation 44/2001 on
Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Brussels I) Art 5–6; Viva Vino Import
Corporation v Farnese Vini Srl (2000) WL 1224903 (ED Pa 2000).

8.54 If domestic remedies prove ineffective, diplomatic protection and

alternative dispute resolution means, namely consultation, mediation,
and arbitration (eg, UNCITRAL Model Law on International
Commercial Arbitration (1985)) can be explored, including online
dispute resolution (ODR, eg, Cybersettle and WIPO Electronic Case
Facility). In particular, it is common for bilateral and multilateral
treaties to provide that investment obligations are adjudicated via
investor–State arbitration.

8.55 Foreign judgments can usually be enforced domestically on a

reciprocal basis, when they are consistent with local law and public
interest: eg, HCCH Convention on the Choice of Court Agreements
Arts 8 and 9; New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (adopted and opened for
signature 10 June 1958, 330 UNTS 38, entered into force 7 June
1959) Art 5.

[page 138]

Specialised bodies
 Specialised adjudicatory bodies have developed in the different areas
8.56 of international economic law, for instance, the International Court of
Arbitration of the International Chamber of Commerce (1923) and
the London Court of International Arbitration (1883). In the field of
investment, the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (adopted and
opened for signature 18 March 1965, 575 UNTS 159, entered into
force 14 October 1966) established the general arbitral jurisdiction of
the ICSID. Furthermore, arbitration tribunals may be created ad hoc,
particularly under the UNCITRAL Arbitration Rules (2013).

WTO mechanisms
8.57 Breaches of obligations under the WTO umbrella are subject to the
procedure provided for in the DSU. When a dispute cannot be
otherwise settled (DSU Arts 4, 5 and 25), it can be submitted upon
request to a WTO Panel and further to the WTO Appellate Body,
established by the General Council sitting as the Dispute Settlement
Body (DSB): DSU Arts 6–8 and 17. The WTO Panel and WTO
Appellate Body assess the conformity of a State measure with treaty
obligations and recommend possible remedies: DSU Art 19(1). In the
case of non-compliance, a party invoking dispute settlement
procedures may request the DSB to authorise suspending concessions
or other obligations vis-à-vis the responsible State under agreements
covered by the WTO: DSU Art 22(2) and (8).
INTERNATIONAL ECONOMIC LAW IN TIME OF WAR
8.58 In the case of an occupation in time of war (see Chapter 11),
sovereignty is suspended and the occupying power should temporarily
exercise it to ensure public order, by respecting the law of the
occupied State: Art 43 of The Hague Convention IV (respecting the
Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land) ((Hague
Regulations on Land Warfare) adopted and opened for signature 18
October 1907, 205 Consol TS 277, entered into force 26 January
1910). The cost of occupation should not exceed the capacity of the
economy of an occupied country: International Military Tribunal,
Nuremberg, Trial of the Major War Criminals (14 November 1945–1
October 1946) vol XXII, p 482.

8.59 Restrictions to economic transactions can be imposed and waived by

the occupying power and taxes can be collected for military purposes,
as far as possible in accordance with existing law: Hague Regulations
on Land Warfare Arts 48–49 and 51.

[page 139]

8.60 Enemy public and private property cannot be destroyed: Art 23(g) of
the Hague Regulations on Land Warfare; Art 53 of the Geneva
Convention (IV) relative to the Protection of Civilian Persons in
Time of War (adopted 12 August 1949, 75 UNTS 287, entered into
 force 21 October 1950). Public property is basically administered by
the occupying power: Hague Regulations on Land Warfare Arts 53
and 55. Requisition of private property must be proportionate to the
resources of the occupied territory and the needs of the occupying
power, subject to adequate compensation: Hague Regulations on
Land Warfare Art 52.

8.61 By its very nature, war usually entails the prohibition of trade between
hostile countries, including all persons located in enemy and enemy-
occupied territories.

8.62 Neutral States are subject to some restrictions; for instance, they
cannot grant loans or furnish war material to belligerents, which is a
customary extension of Art 6 of The Hague Convention (XIII)
concerning the Rights and Duties of Neutral Powers in Naval War
(adopted and opened for signature 18 October 1907, 205 Consol TS
395, entered into force 26 January 1910). However, neutral States
remain free to restrict, or not, private transactions in military supplies,
provided this is done on a non-discriminatory basis.
 [page 141]

CHAPTER 9

The Law of the Sea

 [page 142]

INTRODUCTION
9.1 Several legal regimes govern the rights, freedoms and obligations of
States over maritime areas. This chapter provides an overview of the
key rules and essential cases. All treaty articles to which detailed
reference should be made are to the United Nations Convention on
the Law of the Sea (opened for signature 10 December 1982 1833
UNTS 3, entered into force 16 November 1994) (UNCLOS) unless
otherwise stated.

UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA
9.2 UNCLOS addresses the rights and obligations of all States (including
coastal and landlocked States), ocean zones and boundaries,
safeguards for marine environmental protection, mineral resource
exploitation in deep seabed areas and dispute settlement.

9.3 UNCLOS replaced four 1958 Conventions. It is a package with no

reservations permitted: Art 309. Although subsequent state practice
will confirm or accept many UNCLOS provisions becoming binding
as customary international law (custom), some caution is necessary
because opposition to a rule may be masked by consensus. Each rule
 must be individually assessed for its customary status.

Key definitions under UNCLOS

9.4 UNCLOS contains key definitions and concepts (see Table 9.1).
Table 9.1: Key definitions and concepts under UNCLOS

Term UNCLOS Article Definition

Archipelagic 46 Closely-interrelated island group, interconnecting
State waters and natural features forming an intrinsic
entity or historically regarded as such
Archipelagic 47 All waters inside straight baselines drawn between
waters the outermost points of the outermost islands,
provided these points are sufficiently close to one
another
Area 1 The seabed, ocean floor and subsoil beyond the
limits of national jurisdiction (ie, the deep seabed)
Bay 10 Well-marked indentation containing landlocked
waters and more than a coastal curvature
Contiguous zone 33 Area up to a further 12 nautical miles* from the
outer limits of the territorial sea (ie, no more than
24 nautical miles from a coastal State’s baseline)
Continental 76(1) Seabed and subsoil of submarine areas throughout
shelf the natural prolongation of land territory to the
continental margin’s outer edge, or

[page 143]

Term UNCLOS Article Definition

up to 200 nautical miles from a coastal State’s
baseline, whichever is greater. A shelf cannot
exceed 350 nautical miles from the baseline or 100
nautical miles beyond the 2500 metre isobath (a
vertical line indicating 2500 metres depth). This
definition reflects custom: Case concerning the
Canada-France Maritime Boundary (the St Pierre
and Miquelon case) (1992) 31 ILM 1149
Exclusive 55, 57 Area beyond and adjacent to the territorial sea up
economic zone to 200 nautical miles from the baselines from
(EEZ) which the territorial sea’s breadth is measured
High seas 86 All parts of the sea not included in the EEZ or
 territorial, internal or archipelagic waters
Innocent 18, 19 The right to pass through territorial waters in an
passage expeditious and continuous manner, provided not
prejudicial to the peace, good order or security of
coastal States
Internal waters 8 All water and waterways on the landward side of
the baseline of the territorial sea
Island 121(1) Naturally-formed land area surrounded by and
above water at high tide. An island is entitled to a
territorial sea, contiguous zone, EEZ and
continental shelf as per a land territory: Art 121 and
customary international law (Report and
Recommendations to the Governments of Iceland
and Norway of the Conciliation Commission on the
Continental Shelf Area between Iceland and Jan
Mayen, reproduced in (1981) 20 ILM 797, 803–4)
Low tide 13 Naturally-formed land area surrounded by and
elevation above water at low tide but submerged at high tide
piracy 101 Acts of violence, detention or depredation
committed for private ends directed against
another ship or aircraft on the high seas or place
outside State jurisdiction
Rocks 121 In contrast to islands, unable to sustain human
habitation or economic life of their own. Rocks
have no EEZ or continental shelf but may have a
territorial sea
Territorial sea 2(1) Belt of sea adjacent to a coastal State’s land
territory up to a limit of 12 nautical miles from the
baseline determined under UNCLOS: Art 3 For
Australia, and as agreed under the Offshore
Constitutional Settlement, coastal waters describes
a belt of water between the limits of the Australian
States and the Northern Territory and a line three
nautical miles seaward of the territorial sea
baseline
* A nautical mile is 1852 metres.

Baselines
9.5 Baselines to measure the territorial sea’s breadth are ordinarily the
low-water line along a coast (Art 5) or reef (Art 6) drawn by reference
to official charts. The low-water mark reflects State practice: Fisheries
 (United Kingdom v Norway) (Merits) [1951] ICJ Rep 116
(UK/Norway).

[page 144]

9.6 Straight baselines joining appropriate points may be used for deeply
indented coastlines or island fringes: Art 7; UK/Norway. They can be
drawn across the mouths of historic bays: Art 10. Straight baselines
have been adopted in state practice to reflect custom. However, the
method is an exception to normal delimitation rules and is applied
restrictively to prevent abuse: Case concerning Maritime Delimitation
and Territorial Questions between Qatar and Bahrain [2001] ICJ Rep
40 (Qatar/Bahrain) at [212]. Straight baselines cannot depart to any
appreciable extent from a coastline’s general direction, and the sea
areas on the landward side must be appropriate for treatment as
internal waters: UK/Norway at 132–3.

9.7 The low-water line of a low tide elevation may be used as a baseline if
situated wholly or partly within the territorial sea. Straight baselines
are generally not drawn between low tide elevations unless lighthouses
or installations permanently above sea level have been built: Art 7(4).
The UNCLOS provisions on low tide elevations represent custom:
Qatar/Bahrain at [201]–[208].

MARITIME ZONES
9.8 The rights and obligations of States for several distinct maritime
zones are represented as seen in Figure 9.1.

Internal waters
9.9 Internal waters are waters landward of the baseline (Art 8) including
bays and rivers.

9.10 Coastal States exercise unlimited civil and criminal jurisdiction over
internal waters. Jurisdiction over crimes committed on board foreign
vessels is left to flag States (the State of nationality of the vessels: see
9.27) unless the act disturbs the coastal State’s public peace: R v
Anderson (1868) 11 Cox’s Criminal Cases 198 (Court of Criminal
Appeal). For reasons of comity coastal States should not exercise
criminal jurisdiction unless the crime disturbs their peace or
tranquillity: Wildenhus’ Case (1887) 120 US 1.

9.11 Foreign vessels have no right of innocent passage to the ports,

waterways or rivers of coastal States. Coastal States regulate the terms
of port access: Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14 at 111.

The territorial sea

9.12 A coastal State’s sovereignty over territorial waters extends to the
airspace, seabed and subsoil: Art 2(2). This rule reflects custom.
Australia declared a territorial
 [page 145]

Figure 9.1 MARITIME ZONES

Key: CS continental shelf; EEZ exclusive economic zone; TS territorial sea; CZ contiguous
zone; CW coastal waters; BL baseline.

[page 146]
 sea: Commonwealth of Australia Gazette No S29 (9 February 1983)
p 2. It was increased from three to 12 nautical miles: Commonwealth
of Australia Gazette No S297 (13 November 1990).

9.13 Coastal States can apply publicised laws concerning navigation safety,
protecting cables, conserving living sea resources, fisheries, marine
scientific research and fiscal (taxation), customs, immigration and
sanitary (pollution) matters: Art 21. Coastal States exercise civil and
criminal jurisdiction over merchant ships and government ships
operated for commercial purposes in certain circumstances (eg, the
crime’s consequences extend to the coastal State, or the crime disturbs
its peace or the good order of the territorial sea): Arts 27, 28. Coastal
States have no jurisdiction for crimes committed prior to entry into
territorial waters but do for crimes committed on board during transit
passage: Art 27(2) and (5). There is no right to stop or divert foreign
ships to exercise civil jurisdiction: Art 28(1). However, the customary
position may differ: The David (1933) 6 RIAA 382. Jurisdiction
cannot be exercised over warships or government ships operated for
non-commercial purposes: Arts 29–32. The flag State exercises
jurisdiction in these and other circumstances: see 9.27.

9.14 The ships of all States (coastal and landlocked) have a right of
innocent passage through territorial seas: Art 17. Innocent passage is
the continuous and expeditious traversing of the territorial sea without
entering internal waters or calling at ports, and cannot be prejudicial
to the peace, good order or security of coastal States: Arts 18, 19.
 Prejudicial activities include exercising weapons, collecting defence
information, fishing and serious pollution: Art 19(2). Conducting
minesweeping is not exercising the right of innocent passage: The
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v
Albania) [1949] ICJ Rep 4 (UK/Albania).

9.15 Coastal States cannot impose requirements which practically deny or

impair the right of innocent passage: Art 24(1). Known navigation
dangers must be publicised: Art 24(2); UK/Albania. Necessary steps
can be taken to prevent passage that is not innocent: Art 25. Vessels
may be required to leave: Art 30. Under custom reasonable force is a
last resort: ‘Seizure of the USS Pueblo’ (1968) 62 American Journal of
International Law 756. Innocent passage can be temporarily
suspended where essential to protect security: Art 25(3).

9.16 Coastal States can designate sea lanes: Art 22. Submarines must
navigate on the surface showing their flag: Art 20. Nuclear-powered
ships or those carrying dangerous substances must observe special
precautionary measures established by international agreement: Art
23.

[page 147]

Archipelagic waters
9.17 Archipelagic States have sovereignty over archipelagic waters: Art
 49(1). However, submarine cables, traditional fishing rights and the
legitimate activities of immediately adjacent neighbouring States must
be respected: Art 51(1).

9.18 Foreign ships and aircraft have rights of innocent passage (Art 52(1))
and archipelagic sea lanes passage which is continuous, expeditious
and unobstructed through designated routes (Art 53). The former
may be suspended by archipelagic States where essential to protect
security: Art 52(2).

Contiguous zone
9.19 Coastal States can take action in the contiguous zone (that is, up to 12
nautical miles from the limit of the territorial sea) which is necessary
to enforce customs, fiscal, immigration and sanitary laws for
infringements commenced or about to occur within their territory or
territorial sea: Art 33. This position reflects custom.

Exclusive economic zone (EEZ)

9.20 The EEZ is a legal regime in an area beyond and adjacent to
territorial seas: Art 55. The EEZ overlies the contiguous zone. The
EEZ concept is recognised under custom: Continental Shelf Case
(Tunisia v Libya) [1982] ICJ Rep 18 (Tunisia/Libya) at 74;
Continental Shelf Case (Libya v Malta) [1985] ICJ Rep 13
(Libya/Malta) at 29, 33. However, not all of the UNCLOS provisions
are yet customary norms. Australia proclaimed a 200 nautical mile
 EEZ after UNCLOS’ entry into force: Proclamation of 26 July 1994,
Commonwealth Gazette No S290 (entered into force 1 August
1994).

9.21 Within the EEZ coastal States have sovereign rights to manage and
exploit the natural resources of waters superjacent to the seabed and
subsoil, and conduct economic activities including producing energy:
Art 56(1). To ensure national legal compliance, coastal States can
board, inspect, arrest and commence judicial proceedings: Art 73.
Customs laws must be applied consistently with UNCLOS:
International Tribunal for the Law of the Sea (ITLOS), MV Saiga
(No 2) Case (St Vincent and the Grenadines v Guinea) (1999) 38 ILM
1323 (MV Saiga) at [130]–[136]. The continental shelf regime
(UNCLOS Pt VI) takes priority over a coastal State’s rights and
obligations in the EEZ: Art 56(3).

9.22 Foreign States have the freedoms of navigation and overflight and can
lay submarine cables and pipelines in the EEZ: Art 58(1). They must
comply with a coastal State’s laws: Art 58(3). Conflicts between the
rights and jurisdiction of coastal and other States are resolved
according to equity given the circumstances,

[page 148]

taking into account the importance of the interests to the parties as

 well as the international community: Art 59.

9.23 There is widespread acceptance in state practice for preferential

fishery rights for coastal States, particularly those in situations of
special dependence: Fisheries Jurisdiction (United Kingdom v Iceland)
[1974] ICJ Rep 3. However, coastal States must conserve and manage
living resources to produce the maximum sustainable yield and
prevent over-exploitation in light of the best available scientific
evidence: Art 61. They must promote optimum utilisation which
includes, where unable to harvest an entire allowable catch, giving
access to the surplus to other States, and taking into account the
rights of landlocked, geographically-disadvantaged and developing
States: Art 62. For the purposes of domestic law and consistent with
its proclaimed rights within the EEZ, Australia declared a 200
nautical mile Australian Fishing Zone: Fisheries Management Act
1991 (Cth) ss 7, 8; Proclamation constituting waters of 200 nautical
miles around Australia and its External Territories — Proclaimed
Waters for the purposes of the Fisheries Act (20 September 1979).

The continental shelf

9.24 Coastal States can explore and exploit natural resources, including
non-living resources of the seabed and subsoil, and all sedentary
species within their claimed area of the continental shelf: Art 77.

9.25 States must submit information about the limits of their claims
beyond 200 nautical miles from the territorial sea baseline to the
 United Nations (UN) Commission on the Limits of the Continental
Shelf: Art 76. Australia lodged its submission in 2004. In 2008 the
UN Commission on the Limits of the Continental Shelf adopted
recommendations confirming the location of the outer limit of
Australia’s continental shelf in nine marine regions.

The high seas

9.26 Freedom of the high seas is traceable to Grotius: see Chapter 1. The
high seas are open to all States. Landlocked States have a right of
access to and from the sea: Art 125(1). Freedom of the high seas
includes freedom of navigation, overflight, to lay submarine cables and
pipelines, construct artificial islands, and conduct fishing and
scientific research. Each freedom is exercised having regard to other
States’ interests: Art 87. The high seas are reserved for peaceful
purposes: Art 88. Claims of sovereignty are invalid: Art 89.

9.27 Ships are subject to the jurisdiction of the States whose flag they fly:
SS Lotus Case (France v Turkey) (1927) PCIJ Ser A No 10. Ships can
sail only under one flag: Art 92.

[page 149]

Flag States have exclusive jurisdiction to fix the conditions for

granting nationality to ships, and custom requires a genuine link
between them: Art 91(1); MV Saiga at [65], [79]–[88]. Nationality is
 a factual question determined on the evidence: MV Saiga at [66]–[74].
Flag States address administrative, technical and social matters,
establish a ships’ register and take measures to ensure safety at sea: Art
94. ‘Flags of convenience’ States fail to enforce health and safety
standards. This led to the UN Convention on Conditions for
Registration of Ships (1987) 26 ILM 1236 (not yet in force).

9.28 The exceptions to exclusive flag State jurisdiction include:

ships in official UN service: Art 93;

ships without a flag or more than one flag are subject to any
States’ jurisdiction: Art 92(2);
the flag State and State of nationality of an offender have
jurisdiction after collisions or other incidents involving penal
responsibilities: Art 97;
all States can arrest ships undertaking unauthorised
broadcasting: Art 109;
warships and government ships have rights of ‘visit’ and
‘approach’ over ships engaged in piracy or slave trading: Art 110.
Piracy attracts universal jurisdiction under custom. Pirate ships
and aircraft may be arrested: Art 105. States must cooperate to
repress piracy on the high seas: Art 100;
coastal States have under custom a right of ‘hot pursuit’ over
vessels which violated national law within internal waters or
territorial seas prior to entering the high seas: Art 111. Australia
 asserted this right, for example, during 2003 when pursuing a
Uruguayan vessel for 20 days after it illegally fished for
Patagonian toothfish in Australian waters. Cumulative
conditions must be met to pursue vessels after they leave
territorial waters in order to legitimately exercise this right, and
excessive force is prohibited: MV Saiga at [146]–[159].

The deep seabed

9.29 The seabed, ocean floor and subsoil (the Area) and resources beyond
the limits of national jurisdiction are the common heritage of
mankind: Art 136. Activities in the Area are carried out to benefit
mankind: Art 140.

9.30 Part XI of UNCLOS specifies a regime for minerals on the deep

seabed. The International Seabed Authority (ISA) authorises seabed
exploration and mining and distributes royalties. Developed States
disliked this regime. Following negotiations, the Agreement relating
to the Implementation of Part XI of UNCLOS (1994) 33 ILM 1309
(entered into force 28 July 1996) provides that some UNCLOS
provisions (eg, limits on seabed production, mandatory technology
transfer) are

[page 150]

inapplicable. States and the ISA must ensure that sponsored activities
 do not harm the marine environment and comply with the
precautionary principle: ITLOS Seabed Disputes Chamber, Advisory
Opinion on the Responsibilities and Obligations of States Sponsoring
Persons and Entities With Respect to Activities in the Area, Case No 17
(1 February 2011).

Australia’s maritime zones under the Commonwealth

Constitution
9.31 The Seas and Submerged Lands Act 1973 (Cth) vests proprietary
rights and legislative power over the territorial sea, seabed, airspace
and continental shelf in the Commonwealth. This legislation is
constitutionally valid: New South Wales v Commonwealth [1975] HCA
58 at [53] (Seas and Submerged Lands Act case). Under the Offshore
Constitutional Settlement, Australia’s states and territories have
primary responsibility over coastal waters within three nautical miles
whereas areas beyond are regulated by the Commonwealth.
Australia’s maritime jurisdiction map series is available through
Geoscience Australia: <www.ga.gov.au>.

MARITIME ISSUES
Delimitation of the continental shelf and EEZ between
adjacent or opposite States
9.32 Terminology exists which applies to delimitation. An ‘equidistant line’
is one for which every point on the line is equidistant from the nearest
points on the baselines being used: Qatar/Bahrain at [177]: see Figure
 9.2. A ‘median line’ typically refers to equidistant lines between
opposite (and occasionally adjacent) coasts, although it can refer to
any boundary line between States, whether or not it also marks an
equidistant line.

9.33 Article 6 of the UN Convention on the Continental Shelf (opened for

signature 29 April 1958, (1962) 499 UNTS 311, [1963] ATS 12,
entered into force 10 June 1964) specified that the continental shelf
boundary was determined by applying the equidistance principle,
unless another line was justified by special circumstances.

9.34 This rule did not reflect custom. Equity did not necessarily imply
equality. Delimitation is instead effected in accordance with equitable
principles taking into account all relevant circumstances, thereby
furthering the natural prolongation of land territory into and under
the sea without encroaching on that of another State: Federal Republic
of Germany v Denmark; Federal Republic of Germany v The Netherlands
[1969] ICJ Rep 3 (North Sea Continental Shelf cases) at [85], [91],
[101]. This is a rule of custom: Maritime Boundary in the Area between
Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 34 at
38.

[page 151]

Figure 9.2 MARITIME BOUNDARIES BETWEEN OPPOSITE AND

ADJACENT STATES USING EQUIDISTANT LINES
 [page 152]

9.35 Adjacent or opposite coastal States cannot extend their territorial seas
beyond a median line every point of which is equidistant from their
baselines, unless necessary to vary that line because of historic title or
 special circumstance: Art 15. Delimitation of the EEZ (Art 74) and
continental shelf (Art 83) is effected by agreement based on
international law to achieve an equitable solution. For example,
Australia has concluded maritime boundary delimitations with
neighbouring States (eg, New Zealand), establishing certain EEZ and
continental shelf boundaries: Treaty between the Government of
Australia and the Government of New Zealand Establishing Certain
Exclusive Economic Zone Boundaries and Continental Shelf
Boundaries (opened for signature 25 July 2004, [2006] ATS 4,
entered into force 25 January 2006).

9.36 Delimitation requires good faith negotiations with a genuine

intention by States to achieve a positive result. Otherwise delimitation
is effected by recourse to a third party having the necessary
competence: Case concerning Delimitation of the Maritime Boundary in
the Gulf of Maine Area (Canada v USA) [1984] ICJ Rep 246
(Canada/USA) at [126].

9.37 International law permits resort to various principles and methods to

effect delimitation provided that, by applying equitable principles, a
reasonable result is obtained: North Sea Continental Shelf cases at [90].
Delimitation of a single maritime boundary proceeds as follows
(Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009]
ICJ Rep 120 at [116]–[122]; Eritrea v Yemen (Phase 2: Maritime
Delimitation) (1999) 119 ILR 417 (Eritrea/Yemen) at [39]; Land and
Maritime Boundary (Cameroon v Nigeria) [2002] ICJ Rep 303
(Cameroon/Nigeria) at [288]):
1. A provisional line is first drawn using geometrically
objective lines appropriate for the regional geography. An
equidistant line is adopted between adjacent coasts, in the
absence of compelling reasons to do otherwise, and a
median line for opposite coasts.
2. Factors calling for adjustment or a shifting of the
provisional equidistant line so as to achieve an equitable
result are then considered.
3. Ensure that the provisional line as adjusted does not lead to
an inequitable result because of disproportionality. For
example, the proportionality of continental shelf areas
relative to the general direction of coastlines is relevant
when delimiting the continental shelf: North Sea Continental
Shelf cases at [91], [101]. The purpose of delimitation is not
to apportion equal

[page 153]

or proportional shares. Disproportionality checks whether

the boundary arrived at by other means needs adjustment
because of a significant disproportionality between the
States’ respective maritime areas and their coast lengths.
Manifest disproportionality is to be avoided.
Factors relevant to delimitation
9.38 Courts and international tribunals typically adopt a median line as the
starting point for deliberations. They cannot refashion nature to effect
distributive justice: North Sea Continental Shelf cases at [91]. The
economic position (including relative poverty) between two States
cannot influence delimitation: Libya/Malta at [107]; Tunisia/Libya at
77.

9.39 Various geographical (eg, concave coastlines), historical and other

factors can be relevant for identifying an equitable solution. There is
no legal limit on the considerations which States may take into
account when applying equitable procedures: North Sea Continental
Shelf cases at [93].

9.40 A continental shelf’s natural prolongation has been a relevant

circumstance (North Sea Continental Shelf cases at 24) but has also
been discounted: Libya/Malta at 35. Seabed features (eg, troughs,
trenches) do not play a significant role unless they disrupt a shelf’s
essential unity: Anglo-French Continental Shelf Arbitration (1978) 54
ILR 6 at [104]–[108]. Distance from the coast is an important
element for demarcating both the continental shelf and EEZ:
Libya/Malta.

9.41 Coastal States are presumed to have sovereignty over islands within
their territorial sea or where proximate to them. However, islands will
not be given a disproportionate effect: Qatar/Bahrain at [218];
 Libya/Malta at 48. Remote or barren islands with little or no
population may be disregarded: Eritrea/Yemen at [147]. Islands are
also relevant to continental shelf delimitation: Qatar/Bahrain at [195];
Cameroon/Nigeria at [299].

9.42 Delimitation impacts on fishing activities can be considered to avoid

catastrophic repercussions for the livelihood and economic well-being
of populations: Canada/USA at 342. Pearling banks did not justify
shifting an equidistant line: Qatar/Bahrain at [236]. Petroleum
concessions are only relevant if they evidence acquiescence or the tacit
consent of States to agreed delimitation lines: Cameroon/Nigeria at
[288], [304]. Additional factors include the permanent presence of ice
blocking navigation, as well as fisheries, navigational routes, security
issues and strategic considerations.

[page 154]

Maritime boundaries and developing mineral resources

9.43 States must cooperate over shared mineral deposits straddling a single
maritime boundary: Eritrea/Yemen at [86]. There is no such duty for
the purposes of equitable sharing or restrained resource exploitation if
there is no agreed boundary delimitation, although another State’s
rights should not be generally prejudiced.

9.44 Pending agreement on a continental shelf delimitation, States are

 expected to conclude provisional arrangements of a practical nature
which do not prejudice a final delimitation: Art 83.

Example

THE TIMOR GAP DISPUTE BETWEEN AUSTRALIA AND

TIMOR-LESTE

For the seabed fronting then Indonesian East Timor, Indonesia sought to apply a
median line whereas Australia emphasised the significance of the Timor trough.
Shared exploitation of the disputed area was agreed: Treaty on the Zone of
Cooperation (the Timor Gap Treaty) (opened for signature 11 December 1989, [1991]
ATS 9, entered into force 9 February 1991). Following Indonesia’s withdrawal, a joint
petroleum development area was established between Australia and Timor-Leste:
Timor Sea Treaty (opened for signature 20 May 2002, [2003] ATS 13, entered into force
2 April 2003); see Figure 9.3. The Greater Sunrise mineral deposits straddle a line
agreed for joint development purposes without prejudicing their juridical positions:
Memorandum of Understanding concerning an international unitisation agreement for
the Greater Sunrise field (6 March 2003); Agreement relating to the unitisation of the
Sunrise and Troubadour fields (opened for signature 6 March 2003, [2007] ATS 11,
entered into force 23 February 2007). Timor-Leste is seeking to declare the Timor Sea
Treaty invalid: Permanent Court of Arbitration, Arbitration under the Timor Sea Treaty
(Timor-Leste v Australia) (instituted 23 April 2013).

[page 155]

Figure 9.3 MAP OF JOINT PETROLEUM DEVELOPMENT AREA

BETWEEN AUSTRALIA AND TIMOR-LESTE
Key: A Australia; B East Timor; C Indonesian Timor; D Ashmore Island; E Timor Sea; F Timor
trough; G Greater Sunrise deposit; H Timor Gap; I Joint Petroleum Development Area under
the Timor Sea Treaty (zone of cooperation); J Agreed 1972 seabed boundary; K Agreed EEZ
boundary.

International straits and the right of transit passage

9.45 Straits are used for international navigation between one part of the
high seas or an EEZ and another: Art 37. The decisive criteria for an
international strait are its geographical situation as connecting two
parts of the high seas and its use for international navigation:
UK/Albania at 28. The transit regime under UNCLOS will not apply
if there is another strait used for international navigation through the
high seas or EEZ which is of similar convenience: Art 36.

9.46 All ships and aircraft have a right of transit passage which is
continuous and expeditious: Art 38. Specific duties are assumed: Art
39. Although custom recognises a right of transit passage, the status
of the UNCLOS provisions is uncertain as to their detail.
 States bordering straits can adopt laws about navigational safety and
9.47
fishing, as well as customs, sanitary, fiscal and immigration matters:
Art 42. The right of transit passage cannot be prohibited during
peacetime: UK/Albania at 28.

[page 156]

Environmental conservation
Conserving the living resources of the high seas
9.48 States must cooperate to conserve the living resources of the high seas:
Arts 117, 118. Treaties can be concluded. For example, coastal and
high seas fishing States cooperate to manage fish stocks, including
adopting a precautionary approach: UN Agreement for the
Implementation of the Provisions of UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks (opened for signature 4 December 1995,
(1995) 2167 UNTS 88, entered into force 11 December 2001).

9.49 Coastal States and international organisations can regulate the taking
of marine mammals including cetaceans more strictly: Art 65.
Australia created the Australian Whale Sanctuary: Environment
Protection and Biodiversity Conservation Act 1999 (Cth) s 225.

Protecting and preserving the marine environment

9.50 States must protect and preserve the marine environment: Art 192.
 They have the right to exploit their natural resources under their own
environmental policies: Art 193. States must prevent, reduce and
control marine environmental pollution from all sources and ensure
that activities under their control do not cause pollution to the
environment of other States: Art 194. They must also formulate rules,
standards, practices and procedures: Art 197. See Chapter 5.

9.51 Pollution from land-based sources includes rivers, pipelines and the
atmosphere: Art 207. Pollution prevention measures are applied to
ships flying the national flag and as a condition of entry into ports and
internal waters: Art 207. States may enforce proportionate measures
after a ‘maritime casualty’, which includes a collision, stranding,
navigation incident or other occurrence which results in or threatens
material damage to vessels or cargo: Art 221.

9.52 States must protect archaeological and historical objects: Art 303; UN
Convention on the Protection of Underwater Cultural Heritage
(opened for signature 2 November 2001, (2002) 41 ILM 37, entered
in force 2 January 2009).

DISPUTE SETTLEMENT
9.53 Disputes are to be settled peacefully: Art 279. UNCLOS disputes
may be settled by any peaceful means: Art 280. Obligations under
general, regional or bilateral agreements can take precedence: Art 282.
States party to UNCLOS may resort to conciliation (Art 284) or
 compulsorily submit to a court or tribunal having

[page 157]

jurisdiction (Art 286). Some disputes are excluded: Arts 297, 298.
Under Art 287, States may declare resort to:

ITLOS (UNCLOS Annex VI; <www.itlos.org>). Provisional

measures can be ordered: Art 290. ITLOS commonly deals with
claims to promptly release arrested vessels and crew upon the
posting of a reasonable bond or security for which it has
compulsory jurisdiction: Arts 73(1), 292; The ‘Camouco’ Case
(Panama v France) (2000) ITLOS Case No 5 at [67]; The ‘Volga’
Case (Russian Federation v Australia) (2002) ITLOS Case No
11;
the International Court of Justice (ICJ);
arbitral tribunals under UNCLOS Annexes VII or VIII (see
Chapter 12).

Australia has chosen ITLOS and the ICJ but does not accept any dispute
settlement procedures for disputes about sea boundary delimitations and
historic bays or titles.
 [page 159]

CHAPTER 10

State Responsibility
 [page 160]

INTRODUCTION
10.1 The rules of state responsibility are used to determine when a State
will be held responsible for a breach of international law. These rules
can be described as secondary rules, where the substantive duties and
entitlements of States are described as primary rules. The rules of state
responsibility address the circumstances in which a breach of
international law will be attributable to a State, as well as the factors
which might excuse a State from liability. They also set out the
consequences of finding that a State is responsible for a breach of
international law.

10.2 The law of state responsibility is found in customary international law

rather than in a multilateral treaty. In 2001 the International Law
Commission (ILC) published a set of articles on state responsibility,
intended to represent a codification of existing customary rules: Draft
Articles and Commentary on the Responsibility of States for
Internationally Wrongful Acts [2001] 2(2) Yearbook of the
International Law Commission (Articles on State Responsibility).
Unless otherwise stated, references in this chapter to articles or
commentary are to the Articles on State Responsibility and associated
commentary by the ILC. While not binding in and of themselves,
many of the articles are considered to be an authoritative statement of
 customary principles. The United Nations (UN) General Assembly
has commended the articles to States for their consideration (GA Res
56/83, UNGAOR 56th sess, 85th plen mtg, UN Doc A/RES/56/84
(28 January 2002)) and they have been applied by a number of courts
and tribunals.

RESPONSIBILITY FOR INTERNATIONALLY

WRONGFUL ACTS
10.3 The fundamental principle of state responsibility is that ‘every
internationally wrongful act of a State entails the international
responsibility of that State’: Art 1. This general principle incorporates
the two key issues for determining state responsibility: whether there
is an internationally wrongful act and whether that act can be
considered to be an act of the State in question: see Art 2.

Internationally wrongful act

10.4 An act will be internationally wrongful if it does not comply with the
obligations in place under international law: Art 12. A State is only
bound by the law which applied at the time the act in question
occurred: Art 13. It is not relevant that the act may have been lawful
under domestic law: Art 3.

Attribution
10.5 There are a number of ways in which an action can be attributed to a
State. Some of these forms of attribution are related to the role which
 an individual or entity

[page 161]

holds within the State while others relate to the degree of control
which the State had over the actor in question.

Organs of a State
10.6 The conduct of any organ of a State will be attributable to that State:
Art 4. An organ includes any person or entity which is given that
status by the State’s domestic law (Art 4(2)) but it is not limited to
those persons or entities: Commentary on Art 4 at [11]. Rather, the
term ‘organ’ refers to any individual or entity which makes up the
organisation of the State: Art 4(1); Commentary on Art 4 at [1].

10.7 The term ‘organ’ includes those which perform a legislative, executive,
judicial or any other function: Art 4(1). It includes organs at all levels
of government, and no distinction is made between higher or lower-
level officials: Commentary on Art 4 at [6]. In nations with a federal
system of government, the organs of a territorial unit of government,
such as a territory, state or province, will also be considered organs of
the nation-State for the purposes of attribution: Art 4(2).

10.8 The conduct of an organ of a State will be attributed to that State

where the organ is acting in its capacity as an organ of the State, even
 if it acts outside the specific authority which has been given to it: Art
7. If the organ is acting in a private capacity then its actions will not
be attributable to the State: Commentary on Art 8.

Persons or entities exercising governmental authority

10.9 Article 5 of the Articles on State Responsibility provides that the
conduct of a person or entity which is not an organ of the State will
still be attributable to a State where that person or entity is
empowered by the law of the State to exercise elements of
governmental authority. For example, private security companies
which operate prisons or detention centres will be exercising
governmental authority with respect to the implementation of
criminal sentences or detention. See further Yeager v Islamic Republic
of Iran (1987–IV) 17 Iran-USCTR 92 at 104.

10.10 The actions of persons or entities empowered with governmental

authority will be attributable to the State provided they are acting in
that capacity at the relevant time: Art 5. As with organs of a State
under Art 4, the conduct of persons or entities exercising
governmental authority will be considered to be conduct of the State
even where they act beyond the authority that has been given to them:
Art 7; see, for example, Caire Claim (France v United Mexican States)
(1929) 5 RIAA 516 at 531; TH Youmans Claim (US v Mexico) (1926)
4 RIAA 110.
 [page 162]

Organs placed at the disposal of one State by another State

10.11 Under Art 6, the conduct of an organ which is placed at the disposal
of a State by another State will be attributed to the former State
where that organ is exercising the governmental authority of that
State.

Conduct directed or controlled by a State

10.12 If a person or group of persons is acting on the instructions of or
under the direction or control of a State then their conduct will be
attributable to that State: Art 8.

10.13 While it is reasonably straightforward to establish that an agent is

acting on the instructions or under the direction of a State, it has
proved somewhat more contentious to determine the degree of
control which a State is required to exercise over persons in order to
be responsible for their conduct. The question of whether a State has
exercised sufficient control over the actions of a person or persons is to
be determined in each case looking at the particular conduct in
question.

Case Summary
 MILITARY AND PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA (NICARAGUA V UNITED STATES)
(MERITS)
[1986] ICJ REP 14
(NICARAGUA MERITS case)
INTERNATIONAL COURT OF JUSTICE

FACTS: The United States of America (US) had provided support to rebels in Nicaragua
(known as contras) in carrying out a number of attacks against the territory of
Nicaragua, including supplying them with financing and equipment. The attacks
involved conduct which was contrary to international human rights and humanitarian
law.

ISSUE: Were the actions of the contras attributable to the US?

DECISION: The International Court of Justice (ICJ) held that, while the US’ actions were
a breach of international law in that they interfered with the territorial sovereignty of
Nicaragua, it had not exercised ‘effective control’ over the actions of the contras and it
could not therefore be held responsible for specific breaches of international human
rights and humanitarian law which they had perpetrated.

By seeking to establish whether the US had exercised ‘effective control’, the court was
evaluating whether it had ‘directed or enforced the perpetration of the acts

[page 163]

contrary to human rights and humanitarian law alleged by the applicant State’:
Nicaragua Merits at [115]. The court held that the provision of financial and other
support did not reach the requisite standard of effective control.

For a critical discussion of the test for direction and control, see Antonio Cassese, ‘The
Nicaragua and Tadic tests revisited in light of the ICJ judgment on Genocide in Bosnia’
(2007) 18(4) European Journal of International Law 649. The ‘effective control’ test was
affirmed by the Court in the Case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia
and Montenegro) [2007] ICJ Rep 43.

Conduct of persons acting in the absence of official

authorities
10.14 A State can be responsible for the conduct of persons who exercise
governmental authority in circumstances where official authorities are
absent but where the exercise of governmental authority is required:
Art 9.

Conduct of insurrectional movements

10.15 The conduct of insurrectional movements can be attributed to a State
if the movement later becomes the new government of that State: Art
10(1). Where the insurrectional movement succeeds in establishing a
new State, its conduct shall be attributed to the new State: Art 10(2).

Conduct acknowledged and adopted by a State as its own

10.16 Even where conduct is not otherwise attributable to a State, it will be
considered to be the conduct of that State where it subsequently
acknowledges the conduct and adopts it as its own: Art 11.

Case Summary
 CASE CONCERNING UNITED STATES DIPLOMATIC AND
CONSULAR STAFF IN TEHRAN (UNITED STATES OF
AMERICA V IRAN) (JUDGMENT)
[1980] ICJ REP 3
(TEHRAN HOSTAGES case)
INTERNATIONAL COURT OF JUSTICE

FACTS: The US Embassy in Iran had been seized by a militant group known as the
Muslim Student Followers of the Imam’s Policy and the staff of the embassy was

[page 164]

detained. The group was not affiliated with the Iranian government and had not been
instructed or supported to carry out the attack.

In the days following the attack several members of the Iranian government
expressed support for the group’s actions. Ayatollah Khomeini made public remarks
indicating not only that he supported the attack, but that he regarded it as being an
action on behalf of the State of Iran.

ISSUE: Could the actions of the militant group be attributed to the State of Iran?

DECISION: The ICJ held that Iran’s subsequent acknowledgement and acceptance of
the actions were sufficient to attribute the conduct to Iran, which was therefore
responsible for the internationally wrongful acts which had occurred.

Responsibility of a State in connection with the act of

another State
10.17 There are a number of ways in which a State can be held responsible
for an internationally wrongful act carried out by another State. These
include circumstances where one State:

aids or assists another State in carrying out an internationally

wrongful act: Art 16;
 directs or controls another State in carrying out an
internationally wrongful act: Art 17;
coerces another State to perform an internationally wrongful act:
Art 18.

CIRCUMSTANCES PRECLUDING WRONGFULNESS

10.18 The Articles on State Responsibility set out a number of ways in
which the wrongfulness of a State’s act may be excused. However,
these mechanisms will never excuse a breach of a peremptory norm
(see 2.33): Art 26.

Consent
10.19 Where one State validly consents to another State’s act, the latter
State will be excused of any wrongfulness associated with that act with
respect to the former State: Art 20.

Self-defence
10.20 A State will be excused of any wrongfulness associated with an act
which is carried out as a valid act of self-defence under the Charter of
the United Nations (opened for signature 26 June 1945, 1 UNTS
XVI, entered into force 24 October 1945) (UN Charter): Art 21.

[page 165]
Countermeasures
10.21 The wrongfulness of a State’s act will be excused where the act
constitutes a valid countermeasure: Art 22. Countermeasures consist
of the non-performance by one State of its international obligations in
order to induce another State to comply with its own obligations: Art
49(1) and (2).

10.22 A State proposing to take countermeasures must first call on the other
State to comply with its obligations and then notify that State of the
decision to take countermeasures and offer to negotiate: Art 52.

10.23 Countermeasures must:

not constitute a threat or use of force: Art 50(1)(a);

not derogate from fundamental human rights (Art 50(1)(b)) or
peremptory norms (Arts 26, 50(1)(d));
be proportionate: Art 51; Air Services Agreement case (France v
US) (1978) 18 RIAA 416;
as far as possible, be taken in a way which allows for the
resumption of the performance of obligations in the future: Art
49(3);
be terminated once the responsible State has complied with its
obligations: Art 53;
cease if the dispute is taken to a court or tribunal: Art 52(3)(b).

Force majeure
10.24 An action by a State will be excused if it is due to force majeure: Art
23. Force majeure is an irresistible force or unforeseen event which is
beyond the control of the State and which makes it impossible for the
State to perform its obligations: Art 23(1).

10.25 The Articles on State Responsibility specifically exclude reliance on

force majeure where:

the State’s own conduct has caused the situation: Art 23(2)(a));
or
the State has voluntarily assumed the risk of that situation
occurring: Art 23(2)(b)).

Distress
10.26 Where an organ or agent of a State is acting in response to a situation
of distress, the State concerned will be excused of any wrongfulness
associated with those acts: Art 24. A situation of distress exists, for
example, where the actor’s life or the lives of others are in danger.

[page 166]

10.27 A State cannot rely on distress if:

the State has created the situation of distress: Art 24(2)(a); or

the act is likely to cause comparable or greater peril: Art 24(2)
(b).
Necessity
10.28 Under Article 25, a State may rely on necessity to excuse an otherwise
wrongful act provided:

the act is the only way to safeguard an essential interest of the

State: Art 25(1)(a); and
the act does not seriously impair an essential interest of another
State: Art 25(1)(b); and
the State has not contributed to the situation of necessity: Art
25(2)(b); and
the particular obligation concerned does not exclude the
possibility of invoking necessity: Art 25(2)(a). See further Case
concerning Gabcikovo-Nagymaros (Hungary v Slovakia) [1997]
ICJ Rep 7 at 40, 46.

CONSEQUENCES OF A FINDING OF STATE

RESPONSIBILITY
10.29 A number of consequences flow from a finding that a State is
responsible for an internationally wrongful act. First, the Articles on
State Responsibility make clear that a State remains under an
obligation to perform its duties under international law: Art 29.
Where a State is engaging in conduct which breaches international
law it is required to cease that conduct and give assurances of non-
repetition of such conduct: Art 30.
Reparations
10.30 The other major consequence of a finding of responsibility is that the
responsible state will be obliged to make reparations for any injury
which flows from its international wrongful act: Art 31. ‘Injury’ is
defined to include any physical or moral damage. See, for example,
Chorzow Factory (Indemnity) [1928] PCIJ Ser A No 17 at 47. The
domestic law of the responsible State is not relevant to the obligation
to make reparation: Art 32. There are three principal forms of
reparation: restitution, compensation and satisfaction: Art 34.

Restitution
10.31 A responsible State will be required to take action to re-establish the
situation which existed before the wrongful act was committed: Art
35. However, restitution will only be required to the extent that it is
not:

materially impossible;

[page 167]

disproportionately burdensome relative to the benefits to be

gained from making restitution.

Compensation
10.32 To the extent that the injury caused by an internationally wrongful act
 cannot be made right by way of restitution, a State will be required to
pay compensation. Compensation will cover any financially assessable
loss arising from the internationally wrongful act: Art 36(2)

Satisfaction
10.33 Where it is not possible to fully repair the injury caused by an
internationally wrongful act through either restitution or
compensation, a State will be liable to give satisfaction: Art 37. This
can come in the form of a formal apology, expression of regret,
acknowledgment of wrongdoing or ‘another appropriate modality’:
Art 37(2).

10.34 It is possible for monetary payments to be ordered as a form of

satisfaction. These payments are not the same as compensation, as
they are designed to approximate the non-material injury suffered by a
State, rather than to compensate for assessable losses: Commentary
on Art 46 at [4].

10.35 Satisfaction must not:

be out of proportion to the injury suffered;

be humiliating to the responsible State.

RESPONSIBILITY OF INTERNATIONAL
ORGANISATIONS
10.36 International organisations may also be held internationally
 responsible: see ILC, Draft Articles on the Responsibility of
International Organisations, UN Doc A/64/10 (2009); Maclaine
Watson and Co Ltd v International Tin Council (International Tin
Council cases) (1988) 80 ILR 110. For discussion of the legal
personality of international organisations, see 4.34.

TREATMENT OF FOREIGN NATIONALS

10.37 There are principles which apply to determine when a State will be
responsible for mistreatment of another State’s citizen. Usually
treatment of a foreign national will be judged according to
international minimum standards. For example, although States can
nationalise alien property, the compulsory taking of that property
must generally be non-discriminatory, for a public purpose, and be
accompanied by appropriate compensation.

[page 168]

Diplomatic protection
10.38 Where a State has treated a foreign citizen in a way which breaches
international law, that individual’s State of nationality may be entitled
to bring an action on his or her behalf through the doctrine of
diplomatic protection. A State has a right to assert diplomatic
protection over its nationals, whether they be individuals or
corporations, where local remedies have been exhausted: Nottebohm
Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4 at 23; Case
concerning Barcelona Traction Light and Power Co Ltd (Belgium v
Spain) [1970] ICJ Rep 3 at 42.
 [page 169]

CHAPTER 11

Use of Force
 [page 170]

INTRODUCTION
11.1 The use of force is basically prohibited in international law (1) and
only exceptionally permitted under specific circumstances, notably, in
self-defence (2): see Ottavio Quirico, A Purely Formal Theory of Law –
The Deontic Network, EUI MWP 2009/11, particularly pp 17–22,
<http://cadmus.eui.eu/handle/1814/11482>.

If allowed, resort to force is decentralised under general

international law, but centralised within the framework of the United
Nations (UN).

Although primarily focused on physical force, this regulatory

framework should also apply to the use of force in cyberspace: Marco
Roscini, Cyber Operations and the Use of Force in International Law,
Oxford University Press, 2014.

INTERNATIONAL PROHIBITION ON THE USE OF

FORCE
11.2 In a broad sense, the concept of ‘force’ encompasses military force and
other conduct, such as economic or political constraints.

In a narrower sense, ‘force’ refers to ‘armed coercion’. This is the

 meaning commonly adopted in international law. In fact, the
Preamble to the Charter of the United Nations ((UN Charter)
adopted 26 June 1945, 1 UNTS XVI, entered into force 24 October
1945) provides that the UN aims to ‘save succeeding generations from
the scourge of war’, so that ‘armed force shall not be used, save in the
common interest’.

11.3 The International Court of Justice (ICJ) clarified the concept of ‘force’
in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America) [1986] ICJ Rep 14 (Nicaragua
case).

Case Summary
 MILITARY AND PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA (NICARAGUA v UNITED STATES OF
AMERICA)
[1986] ICJ Rep 14
(NICARAGUA case)
INTERNATIONAL COURT OF JUSTICE

FACTS: In Nicaragua, the ICJ adjudicated upon the claim that the United States of
America (US) acted against Nicaragua by several means, including the use of force,
after the right-wing Nicaraguan Somoza Government had been overthrown by the
revolutionary left-wing Sandinista movement in 1979.

[page 171]

Nicaragua argued that the US used armed force by laying mines in Nicaraguan
territorial waters and attacking ports, oil installations and a naval base in its territory.
Nicaragua also claimed that the US, by means of equipment, financing and training,
provided logistical support to the right-wing rebel group contras
(contrarrevolucionarios) in its fight against the newly established Sandinista
government. Allegedly, the use of force was contrary to customary international law.

ISSUE: What is the meaning and scope of the concept of ‘force’?

DECISION: The ICJ pointed out that the word ‘force’ must be interpreted as ‘armed
force’ and held that conduct such as laying mines in territorial waters and attacking
Nicaraguan installations is in breach of the prohibition on the use of force. Equipping,
financing and training the contras was also considered to be in breach of the
prohibition on the use of force, since, according to the court, ‘assistance to rebels in
the form of the provision of weapons or logistical or other support … may be regarded
as a threat or use of force’ (Nicaragua at 103–4, [195], 118, [228]).

11.4 Even a threat to resort to the use of force is absolutely prohibited in

international law. This prohibition is explicitly embedded in Art 2(4)
of the UN Charter:

All Members shall refrain in their international relations from the threat or use of
 force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.

Similar wording is embedded in the Declaration on Principles of

International Law Concerning Friendly Relations and Co-Operation
among States in Accordance with the Charter of the United Nations,
adopted by the UN General Assembly on 24 October 1970:
Resolution 2625 (XXV). The Declaration also condemns aggressive
war as ‘a crime against the peace’.

11.5 The UN Charter and Resolution 2625 (XXV) are complemented by

UN General Assembly Resolution 3314 (XXIX) of 14 December
1974 on the Definition of Aggression. This Resolution outlines a
general framework for the illegal use of force in international law. It
defines aggression as ‘the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another
State, or in any manner inconsistent with the Charter of the United
Nations’: Art 1. Only particularly grave acts qualify as ‘aggression’
under Art 2, and a non-exhaustive list is provided for in Art 3.

[page 172]

11.6 Consistently with this approach, in Nicaragua the ICJ determined

that, albeit in breach of the prohibition on the use of force and the
principle of non-intervention in domestic affairs under Resolution
2625 (XXV), logistical support to the contras was not sufficiently
 grave to infringe the prohibition of aggression under Resolution 3314
(XXIX): Nicaragua at 101, 103–4, [191] and [195], 118–19, [228].

11.7 According to Resolution 3314 (XXIX), aggression is also a crime

against international peace: Art 5(2). An advantage obtained as a
result of agression has no legal effect and any territorial acquisition by
the aggressor is not legally recognised: Art 5(3).

11.8 The prohibition on the use of force has customary status under
general international law.

In Nicaragua, the ICJ upheld the existence of ‘obligations under

customary international law not to use force against another State’:
Nicaragua at 100–1, [292]. The court also determined that UN rules
on the prohibition of force codify customary international law, since
‘principles as to the use of force incorporated in the United Nations
Charter correspond, in essentials, to those found in customary
international law’: Nicaragua at 99, [188].

11.9 On several occasions, the prohibition on the use of force has been
attributed the rank of jus cogens, or erga omnes law (see Chapter 2 and
Ottavio Quirico, ‘Ius Cogens: a Puzzle’, in Marcel Szabó (ed), State
Responsibility and the Law of Treaties, Eleven International Publishing,
2010, at 101).

In Nicaragua, the ICJ upheld the peremptory status of the

prohibition on aggression: at 100–1, [190]. This interpretation was
 maintained by the International Law Commission (ILC) in its
commentary to Art 40 of the Draft Articles on the Responsibility of
States for Internationally Wrongful Acts (Draft Articles on State
Responsibility, 2001): see ILC, Report to the General Assembly, UN
Doc A/56/10 283 and Chapter 10.

In Barcelona Traction, Light and Power Company, Ltd (Belgium v

Spain) (New Application: 1962) [1970] ICJ Rep 3 (Barcelona Traction
case), the ICJ qualified the prohibition of aggression as an erga omnes
obligation, owed by a State to the international community as a
whole: Barcelona Traction at 32, [34].

SELF-DEFENCE
11.10 Although absolutely prohibited under primary international law rules,
the use of force is exceptionally permitted under secondary
international law norms.

[page 173]

The main justification is self-defence: under general international

law, in the case of an armed attack by a State (A), the attacked State
(B) can lawfully react.

11.11 The right to self-defence has been recognised under customary

international law since the Caroline case (Great Britain v United States)
(1840–41/1842–43) 29-30 British and Foreign State Papers 1126 and
193.

In 1837, forced to flee to the US after leading a failed rebellion in

Upper Canada (now Ontario), which was ruled by Britain, a group of
Canadian rebels seeking to establish a Canadian Republic under the
leadership of William Lyon Mackenzie took refuge on Navy Island,
on the American side of the Niagara River. The rebels declared
themselves the ‘Republic of Canada’ and committed repeated attacks
against British forces. Defying US governmental measures seeking to
enforce neutrality, American sympathisers supplied Canadian rebels
with money, provisions, and arms, also using the vessel SS Caroline, a
small steamer connecting the mainland and Navy Island.

On 29 December 1837, British forces seized the Caroline and cast it

over the Niagara Falls. Out of the 33 members of the crew, 12 were
reportedly missing, one was killed on the dock by a musket ball and
several others were wounded.

The United Kingdom (UK) claimed that the attack on the Caroline
was an act of self-defence committed by persons in Her Majesty’s
service. The case was finally settled by US and British representatives
in the course of the negotiations that led to the Webster-Ashburton
Treaty (1842). During the negotiations, it was pointed out that resort
to self-defence may only be justified if the ‘necessity of self-defence is
instant, overwhelming, and leaving no choice of means, and no
 moment for deliberation’: Diplomatic Correspondence between Mr
Webster, for the United States, and Lord Ashburton, for the United
Kingdom (28 April 1841).

11.12 In 1945, the customary principle of self-defence was codified in Art

51 of the UN Charter, which refers to an ‘inherent right of individual
or collective self-defence’:

Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of this
right of self-defence shall be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the Security Council under
the present Charter to take at

[page 174]

any time such action as it deems necessary in order to maintain or restore

international peace and security.

11.13 In Nicaragua, the ICJ clearly stated that the expression ‘inherent right
to self-defence’ embedded in Art 51 of the UN Charter can only be
read as a ‘reference to customary international law’: Nicaragua at 94,
[176].

Complementarity between general international law and the UN

Charter was subsequently maintained by the ICJ in Legal Consequences
 of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136 (Wall case), where the court
held that ‘Article 51 of the [UN] Charter recognises the existence of
an inherent right of self-defence in the case of armed attack by one
State against another State’: Wall at 194, [139].

11.14 Article 21 (Self-Defence) of the ILC’s Draft Articles on State

Responsibility (2001) codifies general international law and confirms
that customary rules and particular UN rules on self-defence
complement each other:

The wrongfulness of an act of a State is precluded if the act constitutes a lawful

measure of self-defence taken in conformity with the Charter of the United
Nations.

This rule is embedded in Ch V of the ILC’s Draft Articles on State

Responsibility (‘Circumstances Precluding Wrongfulness’). Therefore,
it can be argued that resort to armed force in self-defence is a
countermeasure, whereby the secondary legality of the use of force is
based upon the primary illegality of aggression.

Necessity and proportionality

11.15 Since all countermeasures are subject to the principles set out in Arts
49–52 of the ILC’s Draft Articles on State Responsibility, self-
defence must fulfil the requisites of necessity and proportionality.

‘Necessity’ implies that no conduct other than the use of force (last
resort) is a viable response to an illegal armed attack.
 ‘Proportionality’ refers to the intensity of armed force in self-
defence, which must be commensurate with that of the attack.

11.16 The criteria of necessity and proportionality were clarified by the ICJ
in Oil Platforms (Islamic Republic of Iran v United States of America)
[2003] ICJ Rep 161 (Oil Platforms case).

[page 175]

Case Summary
 OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN v UNITED
STATES OF AMERICA)
[2003] ICJ Rep 161
(OIL PLATFORMS case)
INTERNATIONAL COURT OF JUSTICE

FACTS: In this case, the ICJ dealt with a number of attacks on merchant shipping that
took place in the Persian Gulf during the Iran-Iraq War. The US and other States
provided a naval escort for ships flying their flags. Following a tanker being hit by a
missile in October 1987 and a warship being hit by a mine in international waters in
April 1988, the US claimed self-defence and attacked Iranian oil platforms.

ISSUE: What are the limits of necessity and proportionality?

DECISION: The ICJ held that the US might have justified resort to force based on the
right to self-defence, especially under Art 20(1)(d) of the US–Iran Treaty on Amity,
Economic Relations and Consular Rights (adopted and opened for signature 15 August
1955, entered into force 16 June 1957), permitting a party to take measures ‘necessary
to protect its essential security interests’. However, the court upheld the principles of
necessity and proportionality, based on Nicaragua and Legality of the Threat or Use of
Nuclear Weapons [1996] ICJ Rep 226 (Nuclear Weapons). In light of this, on the one
hand, the court considered the attack on oil platforms necessary, but not
proportionate to the events of October 1987, as part of a broader military operation,
involving, inter alia, the destruction of two Iranian frigates and other vessels and
aircraft. On the other hand, the attack was considered unnecessary with respect to the
incident of April 1988, particularly because the US did not complain about military
operations on oil platforms (Oil Platforms at 198–9, [76]–[78]).

11.17 In Nuclear Weapons, the ICJ held that the criteria of necessity and
proportionality apply under both general customary law and particular
UN law: Nuclear Weapons at 245, [41]. Based on this premise, the
court did not exclude the legality of the threat or use of nuclear
weapons in ‘an extreme circumstance of self-defence’: Nuclear Weapons
at 245, [97].
 [page 176]

Collective self-defence
11.18 Collective self-defence entails resort to armed force in countermeasure
not only by the attacked State, but also by third States.

Assuming that the prohibition on the use of force is a peremptory

norm, in light of Arts 40, 41, 48 and 54 of the ILC’s Draft Articles
on State Responsibility (2001), the possibility of collective self-
defence cannot be excluded under general international law. In
particular, according to Art 41 States must cooperate in order to bring
breaches of peremptory rules to an end. Therefore, injured and non-
injured States can, or should, invoke responsibility under Arts 41 and
48, and resort to force in countermeasure according to Arts 21 and 54.
Within the UN Charter, this pattern is underpinned by Art 51.

11.19 The existence of the right to collective self-defence under general and
particular international law was clearly upheld by the ICJ in
Nicaragua.

Case Summary
 MILITARY AND PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA (NICARAGUA v UNITED STATES OF
AMERICA)
[1986] ICJ Rep 14
(NICARAGUA case)
INTERNATIONAL COURT OF JUSTICE

FACTS: In this case, the US justified resort to force against Nicaragua as a measure of
collective self-defence in support of El Salvador, Honduras and Costa Rica.

ISSUE: Is there a collective right to self-defence in international law?

DECISION: The ICJ determined that collective self-defence was not supported by
sufficient evidence. However, the court upheld the principle of collective self-defence,
provided there is an armed attack on a ‘victim’ State, requesting assistance, even if
the assisting State is not under threat:

There can be no doubt that the issues of the use of force and collective self-
defence raised in the present proceedings are issues which are regulated
both by customary international law and by treaties, in particular the United
Nations Charter … the Court must express a view on the content of the right
of self-defence, and more particularly the right of collective self-defence …
with regard to the existence of this right, it notes that in the language of
Article 51 of the

[page 177]

United Nations Charter, the inherent right (or ‘droit naturel’) which any State
possesses in the event of an armed attack, covers both collective and
individual self-defence … Where collective self-defence is invoked, it is to be
expected that the State for whose benefit this right is used will have declared
itself to be the victim of an armed attack … there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State
which regards itself as the victim of an armed attack.

(Nicaragua at 27, [34], 102, [193], 104, [195], 199, [105])

Jus ad bellum and jus in bello

 The rules on the prohibition of aggression and the use of force in self-
11.20 defence outline the foundations of jus ad bellum, which regulates
engagement in war.

11.21 Jus ad bellum is complemented by jus in bello, including international

humanitarian law, which governs the use of force in armed conflicts:
Hans-Peter Gassel and Daniel Thürer, ‘International Humanitarian
Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public
International Law, North-Holland, 2012, at [1]–[6].

Anticipatory self-defence
11.22 Determining when a State is acting in self-defence, and thus when
the use of force is justified, is a matter of timing and raises the issue of
anticipatory self-defence.

11.23 Under general international law, the possibility of reacting in self-

defence against a ‘threat’, rather than an actual ‘armed attack’ is
admitted according to the Caroline doctrine. Article 2(4) of the UN
Charter, which prohibits the ‘threat or use of force’, is consistent with
this approach. Instead, Art 51 of the UN Charter, referring to an
‘armed attack’ and its ‘occurrence’, departs from customary
international law.

In light of these premises, it is controversial whether the limits of

self-defence include action taken in anticipation so as to forestall a
 danger before it materialises, thus encompassing potential threats, in
addition to effectively threatened force.

11.24 During the 1962 Cuban Missile Crisis, the US resolved to take any
action necessary to prevent missile deployment in response to the
positioning of Soviet offensive missiles in Cuba.

[page 178]

11.25 In the 1967 Six-Day War, Israel invaded neighbouring Arab

territories, claiming to anticipate a supposed imminent attack by Arab
States.

11.26 The most controversial case of pre-emptive self-defence is ‘Operation

Iraqi Freedom’.

In 2003, a combined force including troops from the US, UK,

Australia and Poland invaded Iraq and toppled the regime of Saddam
Hussein in 21 days of combat operations.

The incursion was justified by the assumption that Iraq was in

possession of weapons of mass destruction. For more than a decade,
Iraq obstructed the work of UN weapons inspectors, in breach of the
obligations imposed by UN Security Council Resolution 687/1991,
which had been adopted after the liberation of Kuwait from Iraqi
 occupation. This prompted the use of force by the US and allied
powers.

Despite the absence of an ad hoc UN authorisation, the members

of the coalition justified the use of force based on an implied
permission by the UN Security Council under Resolution 678/1990,
which had been adopted to end the invasion of Kuwait by Iraq. This
Resolution demanded that ‘Iraq comply fully with Resolution
678/1990 and all subsequent relevant resolutions’ and allowed UN
Member States to ‘use all necessary means … to restore international
peace and security’: ‘Memorandum of Advice to the Commonwealth
Government on the Use of Force against Iraq’ (2003) 4 Melbourne
Journal of International Law 178–82.

After the 2003 occupation, only degraded remnants of abandoned

chemical weapons were found. The US-led Iraq Survey Group
concluded that in 1991 Iraq had ended its nuclear, chemical and
biological programmes and had no active plans at the time of the
invasion: Iraq Survey Group Final Report, Weapons of Mass
Destruction (2004).

COUNTER-TERRORISM
11.27 Current State practice seems to acknowledge the legality of the use of
(pre-emptive) armed force against terrorism (see Chapter 7),
especially after the 9/11 attacks on the US.
11.28 UN Security Council Resolutions 1368 and 1373/2001 define a
general framework for international counter-terrorism and recognise
the ‘inherent right of individual or collective self-defence in
accordance with the [UN] Charter’, as well as ‘the need to combat by
all means, in accordance with the Charter

[page 179]

of the United Nations, threats to international peace and security

caused by terrorist acts’: Preamble. The Resolutions consequently
authorise States to ‘take the necessary steps to prevent the commission
of terrorist acts’: Resolution 1368/2001 at [4]; Resolution 1373/2001
at [2(b)]. Hence, a terrorist attack is considered a ‘threat’ or ‘use’ of
force, triggering resort to force in self-defence: John Howard and
John Dauth, ‘Defence Cooperation — Terrorism’ (2002) 22
Australian YBIL 354–5.

11.29 With regard to attribution of responsibility, terrorism is not

traditional interstate war and is not necessarily attributable to a State.
Indeed, Al-Qaeda, a private organisation, was considered mainly
responsible for the 9/11 attacks. Therefore, in order to trigger the
right of a State to act in self-defence, a (potential) terrorist attack
committed by a private legal person must be attributable to another
State, according to the criteria specified in Art 8 of the ILC’s 2001
Draft Articles on State Responsibility (Conduct Directed or
 Controlled by a State). A State is thus responsible if a non-State legal
person acts on State ‘instructions, direction or control’, as interpreted,
in particular, in light of the ‘effective control’ test set by the ICJ in
Nicaragua, at 64–5, [115]. Along these lines, based on UN Security
Council Resolutions 1368 and 1373/2001, in October 2001 a US-led
coalition undertook military operations against the Taliban regime,
suspected of protecting Al-Qaeda terrorists in Afghanistan.

11.30 The problem of attribution of responsibility also arose in the Wall case
before the ICJ.

Case Summary
 LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A
WALL IN THE OCCUPIED PALESTINIAN TERRITOTY
(ADVISORY OPINION)
[2004] ICJ Rep 136
(WALL case)
INTERNATIONAL COURT OF JUSTICE

FACTS: In 2003, the ICJ was requested by the UN General Assembly to provide an
advisory opinion on the legality of the construction of a wall by Israel in occupied
Palestinian territories. The wall aimed to prevent future terrorist attacks against
Israeli targets.

ISSUE: Is the use of force justified in self-defence against non-State legal persons?

[page 180]

DECISION: The court determined that the construction of the wall could not be
justified as an act of self-defence against terrorist attacks committed by non-State
legal persons:

Article 51 of the Charter thus recognises the existence of an inherent right of

self-defence in the case of armed attack by one State against another State.
However, Israel does not claim that the [terrorist] attacks against it are
imputable to a foreign State.

(Wall at 194, [139])

PROTECTION OF NATIONALS ABROAD

11.31 State practice seems to support the right of States to use armed force
in order to rescue its own nationals, when their life or security is
endangered abroad.

In the 1976 Entebbe incident, Israel dispatched military forces to

Uganda and rescued 100 citizens taken hostage after the diversion of
 an Air France plane by armed terrorists, who in all likelihood acted
with the support of Ugandan authorities.

Relying on the same right, in 1980 the US resorted to military force

in an attempt to liberate its diplomatic personnel taken hostage in
Tehran.

It is unclear whether this practice is an exercise of the right to self-

defence, or a mere derogation from the prohibition on the use of
force.

HUMAN RIGHTS PROTECTION

11.32 Human rights breaches justify the use of force in international law, in
particular, within the context of humanitarian intervention and self-
determination.

Humanitarian intervention
11.33 According to the doctrine of humanitarian intervention, a State is
authorised to use necessary and proportionate force to end human
rights crises. The notion is nonetheless controversial and State
practice is evolving in the matter: UK Foreign Office, ‘Policy
Document No 148’ (1986) 57 British YBIL 614; UN Security
Council, Report on Its 3988th Meeting, UN Doc S/PV 3988 (24
March 1999); Robin Crook, Secretary of State for Foreign and
Commonwealth Affairs, ‘Humanitarian Intervention’ (19 July 2002)
 (2000) British YBIL 646.

11.34 Given that human rights may be regarded as erga omnes obligations,
possibly peremptory, their breach affects all other States of the
international community,

[page 181]

which should consequently be allowed to bring the violation to an

end. Basically, massive human rights breaches, such as genocide,
affect the international community as a whole and justify secondary
derogations from the prohibition on the use of force: Vaughan Lowe
and Antonios Tzanakopoulos, ‘Humanitarian Intervention’, in
Wolfrum, Max Planck Encyclopedia of Public International Law, at [3],
[26]–[35].

In this case, the use of force is not necessarily directed against

another State, and thus humanitarian intervention also permits
resorting to force outside classical bilateral or multilateral interstate
relationships.

11.35 The most relevant case of humanitarian intervention is the military

action carried out in the Former Republic of Yugoslavia by NATO
Member States, as a reaction to the inhuman treatment of Albanian
people in the autonomous province of Kosovo.
 In order to free Kosovo from the Serbian army, which was
considered responsible for the commission of grave human rights
breaches against the Kosovar population, from 26 March to 10 June
1999 NATO Member States conducted aerial bombing operations in
Belgrade and other parts of the territory of Serbia. Bombing was also
conducted over residential areas, raising doubts as to the
proportionality of the intervention. The use of force in Kosovo was
condemned as illegal by Russia, China, India and other non-aligned
States.

In Legality of Use of Force (1999-2004), Serbia and Montenegro,

having succeeded the Former Republic of Yugoslavia, challenged the
legality of the aerial bombing by bringing an action in the ICJ against
10 NATO Member States. The cases were dismissed by the ICJ on
jurisdictional grounds. In the course of oral arguments in the case of
Serbia and Montenegro v Belgium, responding to a request for
provisional measures by Serbia and Montenegro, Belgium argued:

NATO, and the Kingdom of Belgium in particular, felt obliged to intervene to

forestall an ongoing humanitarian catastrophe, acknowledged in Security Council
Resolutions, to safeguard … essential values which also rank as jus cogens … the
right to life, physical integrity, the prohibition of torture … this is an armed
humanitarian intervention …

(Oral hearings of public sitting Monday 10 May 1999, verbatim

record, CR 99/15)

Responsibility to protect
11.36 In the aftermath of the Kosovo war, it was suggested that the doctrine
of humanitarian intervention be extended so as to make humanitarian

[page 182]

intervention compulsory, according to the concept of ‘responsibility to

protect’: International Commission on Intervention and State
Sovereignty, The Responsibility to Protect (2001).

‘Responsibility to protect’ means that third States not only have a

right, but also a duty to intervene in order to bring grave humanitarian
crises to an end: Ingo Winkelmann, ‘Responsibility to Protect’, in
Wolfrum, Max Planck Encyclopedia of Public International Law, at [1]–
[2].

11.37 The current state of practice, however, does not seem to acknowledge
a ‘duty to protect’, since States have not yet fully endorsed the notion
of ‘responsibility to protect’ outside the UN context: UN General
Assembly, World Summit Outcome, Doc A/60/L1 (2005) [139]; UN
Secretary General, Implementing the Responsibility to Protect, Doc
A/63/677 (2009); but see Art 41 of the ILC’s Draft Articles on State
Responsibility (2001).

11.38 When acts of terrorism constitute massive breaches of human rights,

the doctrine of humanitarian intervention, or responsibility to protect,
may be invoked in order to justify the use of force by a State as an
 alternative to self-defence.

Protecting the right to self-determination

11.39 Not only are States obliged to refrain from forcible action that
deprives peoples of the right to self-determination (Resolution 2625
(XXV) Principle 1), but Art 7 of Resolution 3314 (XXIX) also
exceptionally authorises the use of force to protect this claim.

11.40 Resort to armed force is thus justified as a reaction to the breach of

the basic collective human right to self-determination, which is
embedded in Art 1 of both the International Covenant on Civil and
Political Rights ((ICCPR) adopted 16 December 1966, opened for
signature 19 December 1966, 999 UNTS 171, entered into force 23
March 1976) and the International Covenant on Economic, Social
and Cultural Rights ((ICESCR) adopted 16 December 1966, opened
for signature 19 December 1966, 993 UNTS 3, entered into force 3
January 1976).

USE OF FORCE WITHIN THE UN SYSTEM

11.41 Along the lines of the fundamental purpose of maintaining peace set
out in Art 1 of the UN Charter, within the UN system specific
procedures govern resort to armed force as a response to the violation
of the prohibition on the threat or use of force codified in Art 2(4).
These procedures are regulated in Chs VI and VII of the UN Charter.
 [page 183]

11.42 A UN Member State can only temporarily act in self-defence under

Art 51 of the UN Charter and has an obligation to report its conduct
to the Security Council. Furthermore, disputes endangering the
maintenance of peace should preferably be settled through non-
violent means: UN Charter Arts 33–38.

11.43 If peaceful means prove insufficient and a dispute is likely to threaten

or breach peace or amount to an act of aggression (UN Charter Art
39), the Security Council can take provisional measures aiming to
prevent aggravation of the situation (Art 40) and action not involving
the use of armed force (Art 41). Eventually, the Security Council may
take measures involving the use of armed force by air, sea or land: UN
Charter Art 42. Measures outlined in Arts 39, 40 and 41 are sanctions
adopted via an affirmative vote of nine members of the Security
Council, including the concurring votes of the permanent members,
which thus have a power of veto: UN Charter Art 27(3).

11.44 If the Security Council is paralysed by the veto mechanism, the use of
force under Art 41 of the UN Charter may exceptionally be decided
by the General Assembly. This power was acknowledged in 1950 by
the Assembly via Resolution 377/A (Uniting for Peace – Acheson) in
the context of the 1950–53 Korean War.

11.45 For the purpose of enforcement, States should make the necessary
 facilities and military forces available to the Security Council: UN
Charter Arts 43 and 45. However, the Council usually mandates
States to take cooperative action: UN Charter Arts 48–49 and 53–54.

11.46 In practice, Security Council Resolution 221/1969 authorised the use

of armed force under Art 42 of the UN Charter for the first time
against the apartheid regime of Southern Rhodesia. The Council
authorised the UK to resort to force and prevent the arrival at Bera of
vessels carrying oil to Rhodesia, enforcing economic sanctions
previously decided under Art 41 of the UN Charter.

By permitting UN Member States to ‘use all necessary means’ for

compelling Iraq to withdraw unconditionally from unlawfully
occupied Kuwait, Security Council Resolution 687/1990 authorised
the use of armed force under Art 42 of the UN Charter.

In 2011, by means of Resolutions 1970 and 1973, the Security

Council authorised UN Member States to resort to force against
Libya for humanitarian purposes.

11.47 Peacekeeping: Unlike resort to force by mandated States,

‘peacekeeping’ involves minimal use of armed force by special UN
contingents, based on the consent

[page 184]
 of all parties concerned by security threats: Michael Bothe,
‘Peacekeeping Forces’, in Wolfrum, Max Planck Encyclopedia of Public
International Law, at [1]. Peacekeeping includes conflict prevention
and management, as well as post-conflict reconstruction.

11.48 Peacekeeping forces are established by the Security Council under Ch

V, Art 29, and Chs VI or VII of the UN Charter.

The first peacekeeping operation took place during the 1956 Suez
crisis, when a UN Emergency Force was deployed as a buffer between
Israel and Egypt. The notion of ‘peacekeeping’ subsequently
consolidated between the 1970s and 1990s. A landmark decision is
Security Council Resolution 743/1992, which established the UN
Protection Force (UNPROFOR), aiming to ensure peaceful
conditions in protected areas throughout Croatia, Bosnia and
Macedonia during inter-ethnic conflicts in the Former Yugoslavia. In
this case, mandated coalition forces operated besides peacekeeping
contingents.
 [page 185]

CHAPTER 12

International Dispute Settlement

 [page 186]

INTRODUCTION
12.1 This chapter reviews the range of mechanisms by which disputes
between States are peacefully resolved. Particular attention is devoted
to the International Court of Justice (ICJ). Chapter 12 also briefly
identifies mechanisms by which non-State actors such as individuals
and corporations can resolve claims against States. For the operation
of the Dispute Settlement Understanding of the World Trade
Organization, see Chapter 8.

OVERVIEW OF INTERNATIONAL OBLIGATIONS

12.2 All United Nations (UN) members shall settle their international
disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered: Charter of the United
Nations (opened for signature 26 June 1945, 1 UNTS XVI, entered
into force 24 October 1945) (UN Charter) Art 2(3). Furthermore, all
members shall refrain from the threat or use of force against the
territorial integrity or political independence of any State, or in any
manner inconsistent with UN purposes: Art 2(4). UN members are
bound to seek a solution by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies
or arrangements, or other peaceful means of their own choice: Art 33.
12.3 One consequence of the principle of the sovereign equality of States is
that no State can, without its consent, be compelled to submit its
disputes with other States either to mediation, arbitration or any other
kind of pacific settlement: Status of Eastern Carelia (Advisory Opinion)
[1923] PCIJ Ser B No 5 at 27.

12.4 A ‘dispute’ is a disagreement on a point of law or fact or a conflict of

legal views or interests between parties: Mavrommatis Palestine
Concessions (Judgment No 2) [1924] PCIJ Ser A No 2 at 11. To
establish the existence of a dispute, it must be shown that the claim of
one party is positively opposed by the other: South West Africa
(Preliminary Objections) [1962] ICJ Rep 319 at 328. Whether there is
an international dispute is a matter for objective determination; mere
denial does not prove its non-existence: Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ
Rep 65 at 74.

12.5 The following instruments describe in detail different forms of

international dispute settlement:

Hague Convention for the Pacific Settlement of International

Disputes (opened for signature 29 July 1899, 1 Bevans 230;
[1901] ATS 130, entered into force 4 September 1900);

[page 187]
Hague Convention for the Pacific Settlement of International
Disputes (opened for signature 18 October 1907, 1 Bevans 577;
[1997] ATS 6, entered into force 26 January 1910);
General Act for the Pacific Settlement of International Disputes
(opened for signature 26 September 1928, 93 LNTS 343,
entered into force 16 August 1929);
Statute of the International Court of Justice (opened for
signature 26 June 1945, 1 UNTS XVI, entered into force 24
October 1945) (ICJ Statute);
Revised General Act for the Pacific Settlement of International
Disputes (opened for signature 28 April 1949, 71 UNTS 101,
entered into force 20 September 1950);
Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, GA Res
2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, UN Doc
A/RES/2625 (24 October 1970);
Convention on International Access to Justice (opened for
signature 25 October 1980, 1510 UNTS 359, entered into force
1 May 1988);
Manila Declaration on the Peaceful Settlement of Disputes
between States, GA Res 37/10, UN GAOR, 37th sess, 68th
plen mtg, UN Doc A/RES/37/10 (15 November 1982);
Hague Convention on Choice of Courts Agreements (opened
 for signature 30 June 2005, 44 ILM 1294, not yet in force).

Non-judicial dispute settlement

12.6 International disputes are typically resolved through direct negotiation
between the disputants or with the assistance of neutral third parties
through processes including enquiry, mediation, conciliation or good
offices.

Negotiation
12.7 Negotiation directly between the disputants is the most common
method. It is flexible, direct and can produce a settlement in
accordance with legal and/or political criteria. Negotiation can also
occur collectively through international organisations. Negotiations
are unsuccessful where, based on the attitude and views of the
disputants, there is a deadlock on the disputed issues and no
modification of their contentions can be achieved: South West Africa
Cases (Ethiopia/Liberia v South Africa) (Preliminary Objections) [1962]
ICJ Rep 319 at 346.

Mediation
12.8 Mediation is the process of negotiation but with the participation of a
neutral third party who facilitates settlement terms.

[page 188]
Consultation
12.9 A consultation is a meeting between interested parties where views are
exchanged for the purposes of discussion or deliberation. The process
may be either ad hoc and informal or incorporated within a treaty
framework.

Conciliation
12.10 Conciliation occurs where an individual or third party body identifies
the facts (typically after hearing the parties) and proposes settlement
terms. A conciliator has more influence over the parties than a
mediator, including issuing a binding opinion based on law where
empowered to do so.

Enquiry
12.11 Enquiry involves using an impartial third party such as a Commission
of Inquiry to investigate and report on factual issues. The UN has
reaffirmed the importance of fact-finding and urged States to more
effectively use existing methods: Question of Methods of Fact-
Finding, GA Res 2329 (XXII), UN GAOR, 22nd sess, 1637th plen
mtg, UN Doc A/RES/2329 (18 December 1967); Declaration on
Fact-Finding by the United Nations in the Field of the Maintenance
of International Peace and Security, GA Res 46/59, UN GAOR,
46th sess, 67th plen mtg, UN Doc A/RES/46/59 (9 December 1991).

Good offices
 The UN Secretary-General frequently offers his or her good offices to
12.12 secure a peaceful resolution of the dispute: see An Agenda for Peace:

Preventive Diplomacy, Peacemaking and Peace-keeping: Report of the

Secretary-General, UN SCOR, 47th sess, UN Doc A/47/277–S/24111
(17 June 1992). The UN Secretary-General may be requested to issue
a binding arbitral ruling to resolve a dispute between States: see, for
example, Differences between New Zealand and France arising from the
Rainbow Warrior Affair (1986) 19 RIAA 199.

THE ROLE OF THE UN SECURITY COUNCIL

12.13 The UN Security Council may investigate any dispute or situation:
UN Charter Art 34. Any UN member may bring any dispute or
situation to the attention of the Security Council or the UN General
Assembly: Art 35(1). If international peace and security is likely to be
endangered, the Security Council can decide whether to take action
under Art 36 (that is, recommend appropriate procedures or methods
of adjustment) or Art 37 (recommend settlement terms). The Security
Council can also make recommendations to the parties with a view to
a pacific settlement: Art 38. As a general rule legal disputes should be
referred to the ICJ: Art 36(3). The UN General Assembly cannot
make recommendations about disputes which

[page 189]
 are currently before the Security Council: Art 12. Where peaceful
resolution of a dispute is unlikely the Security Council can authorise
the use of force in certain circumstances: see Chapter 11.

ARBITRATION
12.14 Arbitration, like judicial dispute settlement, is a formal procedure
where a third party produces a binding determination according to
law. Examples include the Beagle Channel Arbitration (Chile and
Argentina), Award and Decision of 18 February 1977 (1977) 52 ILR
93. Arbitration offers greater control and flexibility for the disputants,
for example:

a specific dispute or specific kinds of disputes can be addressed;

the arbitral body may be established ad hoc or be permanent;
and
the parties choose the arbitrators, the legal issues to be
determined and the law and procedures to be applied.

The disputants can include States and non-State actors such as

corporations. For example, foreign investors may bring claims against
States in arbitration proceedings under bilateral or regional
investment treaties. Prominent examples include the North American
Free Trade Agreement (NAFTA, <www.nafta-sec-alena.org>).

12.15 Arbitration is undertaken by established institutions such as the

London Court of International Arbitration (<www.lcia.org>) and the
 Permanent Court of Arbitration (<www.pca-cpa.org>).

12.16 Arbitral awards can be enforced under the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards (the New
York Convention) (opened for signature 10 June 1958, 330 UNTS
38, entered into force 7 June 1959). The New York Convention is
implemented in Australia through the International Arbitration Act
1974 (Cth).

JUDICIAL DISPUTE SETTLEMENT

12.17 The ICJ (<www.icj-cij.org>) is the principal judicial organ of the UN:
UN Charter Art 92; ICJ Statute Art 1. All UN members are
automatically party to the ICJ’s Statute and non-members can become
parties: UN Charter Art 93. The ICJ is the successor to the
Permanent Court of International Justice (PCIJ): Statute of the
Permanent Court of International Justice (opened for signature 13
December 1920, (1923) 6 LNTS 379, entered into force 20 August
1921).

12.18 The ICJ applies the sources of international law stated in Art 38(1) of
its Statute: see 2.2. The ICJ can be requested to decide a matter ex
aequo et bono (in justice and fairness): ICJ Statute Art 38(2).

[page 190]
 The ICJ consists of 15 judges (ICJ Statue Art 3) elected for nine years
12.19
(Art 13) by the UN General Assembly and the Security Council (Arts
4–8, 10–12). The judges represent the ‘main forms of civilization and
of the principal legal systems of the world’: Art 9.

12.20 Judges are elected regardless of their nationality from among persons
of high moral character and either possess the qualifications required
in their home States for appointment to the highest judicial offices, or
are ‘jurisconsults’ (legal experts) of recognised competence in
international law: ICJ Statute Art 2. Judges must be and act
independently: Arts 16–18, 24.

12.21 Any party to a contentious case who does not have a national sitting
on the ICJ may select an additional person to sit as a judge ad hoc for
that case only: ICJ Statute Art 31. A smaller chamber of three to five
judges may hear ad hoc or environmental matters: Arts 26–29.

Jurisdiction
12.22 The ICJ exercises contentious and advisory jurisdiction. The ICJ
determines for itself whether it has jurisdiction: ICJ Statute Art 36(6).

Case Summary
 NUCLEAR TESTS (AUSTRALIA v FRANCE) (JUDGMENT)
[1974] ICJ Rep 253
INTERNATIONAL COURT OF JUSTICE

FACTS: France conducted atmospheric nuclear testing in the South Pacific. Australia
instituted proceedings with a view to terminating the nuclear tests. Through various
public statements France announced its intention to cease conducting atmospheric
tests following the completion of its 1974 program.

ISSUE: Did the ICJ have jurisdiction?

DECISION: No. Australia’s objective had been accomplished because France had
undertaken an obligation to hold no further atmospheric nuclear tests within the
South Pacific. Because the dispute had disappeared, Australia’s claim no longer had
any object and there was nothing on which the ICJ could give judgment.

Contentious Cases
12.23 Contentious cases are adversarial proceedings seeking to settle a
dispute. Only States may be parties: ICJ Statute Art 34(1). Public
international organisations may

[page 191]

provide information: Art 34(2). Non-governmental organisations,

corporations, individuals and other non-State entities cannot formally
participate.

12.24 The jurisdiction of the ICJ derives from State consent.

Case Summary
 EAST TIMOR (PORTUGAL v AUSTRALIA) (JUDGMENT)
[1995] ICJ Rep 90
INTERNATIONAL COURT OF JUSTICE

FACTS: Portugal initiated proceedings against Australia concerning a treaty concluded

between Australia and Indonesia for exploiting the natural resources of the
continental shelf of the ‘Timor Gap’. Portugal argued that, by concluding and applying
this treaty — which created a Zone of Cooperation in an area between the Indonesian
Province of East Timor and Northern Australia — Australia had violated the rights of
the East Timorese people to self-determination and violated Portugal’s rights as the
administering power of East Timor.

ISSUE: Did the ICJ have jurisdiction?

DECISION: No. The principle of the self-determination of peoples has an erga omnes
character which the East Timorese people enjoy. However, the subject matter of the
ICJ’s decision would necessarily determine whether Indonesia could acquire authority
to conclude treaties on East Timor’s behalf relating to continental shelf resources.
Indonesia had not consented to ICJ jurisdiction. Because the ICJ cannot decide
disputes between States without their consent, it could not adjudge Australia’s
conduct or determine Indonesia’s rights without Indonesia’s consent.

Case Summary
 CERTAIN PHOSPHATE LANDS IN NAURU (NAURU v
AUSTRALIA) (PRELIMINARY OBJECTIONS)
[1992] ICJ Rep 240
INTERNATIONAL COURT OF JUSTICE

FACTS: Nauru initiated proceedings against Australia concerning the rehabilitation of

phosphate lands depleted by Australia before 1967. Nauru was then administered

[page 192]

under the UN’s trusteeship system by Australia, New Zealand and the United Kingdom
(UK). Australia argued that a judgment concerning a breach by Australia of its
obligations under the trusteeship agreement would necessarily involve a finding
concerning the discharge by the other two States of their obligations.

ISSUE: Did the ICJ lack jurisdiction because New Zealand and the UK were not parties
and had not consented to proceedings?

DECISION: No. The interests of New Zealand and the UK did not constitute the subject
matter of the judgment to be rendered on the merits. Although a finding by the ICJ
regarding the existence or content of Australia’s responsibility might have
implications for their legal situation, no finding in respect of that situation was
needed as a basis for the ICJ’s decision on Nauru’s claims against Australia.

12.25 The ICJ’s jurisdiction can be established by various means:

1. Parties may refer cases to the ICJ by special agreement

(‘compromis’) (ICJ Statute Art 36(1));
2. The ICJ exercises jurisdiction over ‘all matters specifically
provided for … in treaties and conventions in force’ (that is,
a compromissory clause contained in a bilateral or
multilateral treaty expressly provides for dispute resolution
by the ICJ) (ICJ Statute Art 36(1));
 States may unilaterally declare under the ‘Optional clause’ to
3. accept the ICJ’s jurisdiction as compulsory for specified
future disputes (ICJ Statute Art 36(2)). These disputes may
concern treaty interpretation, any international legal
question, the existence of any fact which, if established,
would constitute a breach of an international obligation, and
the nature or extent of reparation to be made for breaching
an international obligation.
The declarations, although unilateral, take effect as a
series of bilateral agreements with other States: Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v
United States) (Jurisdiction) [1984] ICJ Rep 392 at [59]–
[60]. Declarations may be made subject to reservations
which exclude certain types of disputes from the ICJ’s
jurisdiction. A reservation excluding all disputes within
domestic jurisdiction as determined by the declaring State (a
‘self-judging’ reservation) appears to be invalid because it
can be exercised inconsistently with accepting the ICJ’s
jurisdiction as compulsory. The application of reciprocity
means that the scope of the ICJ’s jurisdiction is the lowest
common denominator of the disputant’s declarations:
Norwegian Loans (France v Norway) [1957] ICJ Rep 9 at
[23]–[24].

[page 193]
 In 2002 Australia renewed its declaration recognising the
ICJ’s jurisdiction as compulsory. However, the declaration
excluded disputes:
where other peaceful settlement methods had been agreed;
concerning maritime zone delimitation or the exploitation
of disputed areas; or
where the other party accepted jurisdiction
only for the purpose of the dispute; or
12 months prior to filing the application.
4. Jurisdiction given to the PCIJ under a compromissory clause
in a treaty is transferred to the ICJ (ICJ Statute Arts 36(5),
37);
5. States may expressly or by implication consent to the ICJ
exercising jurisdiction over a dispute where another State
has made a unilateral application to the ICJ (the doctrine of
forum prorogatum) by, for example, accepting jurisdiction or
pleading the merits of the case.

12.26 Procedural Aspects: The ICJ’s procedure is set out in its Statute
(particularly Arts 40 and 43), its Rules of Court, practice directions
and other texts. See Figure 12.1.

12.27 The common law notion of precedent or stare decisis does not apply to
ICJ decisions. The ICJ’s judgment binds only the parties to a
particular case: ICJ Statute Art 59. However, Art 38(1)(d) enables the
 ICJ to consider its own previous decisions and it generally strives for
consistency. Judgments are highly persuasive for the content and
application of international law.

Case Summary

WHALING IN THE ANTARCTIC (AUSTRALIA v JAPAN; NEW

ZEALAND INTERVENING) (JUDGMENT)
[2014] ICJ Rep (31 March 2014)
INTERNATIONAL COURT OF JUSTICE

FACTS: Australia instituted proceedings against Japan concerning the Second Phase of
the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II).
Australia argued that JARPA II was not a program for the purposes of scientific
research within the meaning of Article VIII(1) of the International Convention for the
Regulation of Whaling (opened for signature 2 December 1946, 161 UNTS 72, entered
into force 10 November 1948) and therefore violated the ban on commercial whaling.

[page 194]

ISSUE: Did Japan breach its substantive and procedural obligations under this
Convention?

DECISION: Yes. JARPA II involved activities that could be characterised as scientific

research. Using lethal sampling per se was not unreasonable. However, the program’s
design and implementation were not reasonable in relation to achieving stated
objectives. The permits granted by Japan for killing, taking and treating whales under
JARPA II were not for the purposes of scientific research. Japan must revoke and
refrain from granting further permits.

12.28 UN members undertake to comply with judgments of the ICJ to

which they are a party: UN Charter Art 94(1). Should a party fail to
perform its obligations, the Security Council may make
recommendations or decide upon measures it deems necessary to give
 effect to the judgment: Art 94(2).

Advisory Opinions
12.29 The UN General Assembly and Security Council may request an
advisory opinion from the ICJ on any legal question: ICJ Statute Art
65; UN Charter Art 96. UN bodies and agencies may also do so
within the scope of their activities. Advisory opinions provide
guidance to UN bodies to effectively discharge their mandate
provided they have the authority to make a request.

12.30 The question for the ICJ must be framed in terms of law, raise
international legal problems and by its very nature be susceptible of a
reply based on law: Western Sahara (Advisory Opinion) [1975] ICJ Rep
12 at 18–19. Whatever the political aspects of a matter, the ICJ
cannot refuse to admit the legal character of a question which invites
it to discharge an essentially judicial task, namely, to assess the legality
of the possible conduct of States with regard to the obligations
imposed upon them by international law: Legality of the Threat or Use
of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 234 at [13].

12.31 The ICJ is not obliged to provide an opinion. It will first consider
whether it has jurisdiction to answer the question put to it and then
whether there are any grounds upon which it may decline to exercise
its jurisdiction. An opinion cannot circumvent the principle that a
State is not obliged to allow its disputes to be submitted to judicial
dispute resolution without its consent.
12.32 States and international organisations are invited to provide oral and
written statements: ICJ Statute Art 66. An Advisory Opinion can be
issued notwithstanding Australia’s views.
 [page 195]

Figure 12.1 THE PROCESS FOR A CONTENTIOUS CASE

[page 196]
Example

ADVISORY OPINION ON LEGAL CONSEQUENCES OF THE

CONSTRUCTION OF A WALL IN THE OCCUPIED
PALESTINIAN TERRITORY
[2004] ICJ Rep 136
WRITTEN STATEMENT OF AUSTRALIA, 29 JANUARY 2004 AT [8]:

Australia considers that compelling reasons exist for the Court, in the exercise of its
discretion, to decline to give the opinion requested. First, the lack of consent by Israel
renders the giving of an advisory opinion incompatible with the Court’s judicial
character, particularly in light of the fact that the request is undoubtedly directed at
the rights and responsibilities of Israel. Secondly, the request should be declined as
any opinion rendered by the Court would be devoid of object or purpose, particularly
in light of actions and decisions of the General Assembly and Security Council. Thirdly,
the giving of an advisory opinion could have a harmful effect upon current initiatives
aimed at achieving a settlement of the Israeli-Palestinian conflict.

12.33 Opinions being ‘advisory’ are not legally binding. However, they can
be declared to be such by treaty, may authoritatively interpret the
constituent instruments of UN bodies or declare the state of
international law applicable to all States.

INTERNATIONAL CRIMINAL PROSECUTIONS

12.34 The International Criminal Court (ICC, <www.icc.org>) exercises
criminal jurisdiction over individuals for genocide, crimes against
humanity and war crimes as set out in the Statute of the International
Criminal Court (opened for signature 17 July 1998, 2187 UNTS 90,
entered into force 1 July 2002) (the Rome Statute). When activated,
the ICC will also exercise jurisdiction over the crime of aggression,
 the definition having been agreed by States parties at the Review
Conference of the Rome Statute held at Kampala during 2010. The
ICC has jurisdiction (Arts 12, 13):

where the accused is a national of a State party;

if the crime took place on the territory of a State party;
where a situation is referred to the ICC by the Security Council;
or
where a State not party to the Statute ‘accepts’ the ICC’s
jurisdiction.

Jurisdiction is only exercised when national courts are unwilling or

unable to investigate or prosecute crimes falling within the Rome
Statute (the principle of complementarity): Art 17.

[page 197]

12.35 Noteworthy criminal courts and tribunals include:

The International Tribunal for the Prosecution of Persons

Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 (the Yugoslav Tribunal or ICTY)
(established by SC Res 827, UN SCOR, 48th sess, 3217th plen
mtg, UN Doc S/RES/827 (25 May 1993)).
The International Criminal Tribunal for the Prosecution of
 Persons Responsible for Genocide and Other Serious Violations
of International Humanitarian Law Committed in the Territory
of Rwanda and Rwandan Citizens Responsible for Genocide
and Other Such Violations Committed in the Territory of
Neighbouring States, Between 1 January 1994 and 31 December
1994 (the Rwanda Tribunal or ICTR) (established by SC Res
955, UN SCOR, 49th sess, 3453rd plen mtg, UN Doc
S/RES/955 (8 November 1994)).
The International Residual Mechanism for Criminal Tribunals
(established by SC Res 1966, UN SCOR, 66th sess, 6463rd
plen mtg, UN Doc S/RES/1966 (22 December 2010)).
The Special Court for Sierra Leone <www.sc-sl.org>.
The Supreme Iraqi Criminal Tribunal.
The Extraordinary Chambers in the Court of Cambodia
<www.eccc.gov.kh>.

HUMAN RIGHTS CLAIMS

12.36 Individuals may bring claims against States alleging that their human
rights have been violated provided the claim falls within the
jurisdiction of the relevant institution. The available judicial
mechanisms include the European Court of Human Rights (see
6.50), the African Court of Human and People’s Rights (see 6.51)
and the Inter-American Court on Human Rights (see 6.51).
 Communications can be submitted to the UN Human Rights
12.37 Council by individuals, groups or non-governmental organisations
claiming to be victims of gross and reliably-attested human rights
violations by a State or have direct, reliable knowledge of such
violations: Institution-Building of the United Nations Human Rights
Council, Human Rights Council Res 5/1, 5th sess, UN Doc
A/HRC/RES/5/1 (18 June 2007).

12.38 Communications by individuals alleging violations of a specific

human rights treaty may be submitted to the Human Rights
Committee of the UN system responsible for its oversight: see 6.30,
6.33, 6.45–6.49. Information about human rights bodies including
special procedures is also available at <www.ohchr.org>.

[page 198]

INTERNATIONAL ENVIRONMENTAL DISPUTES

12.39 International environmental agreements typically specify the means by
which inter-State disputes are to be resolved: see, for example, UN
Framework Convention on Climate Change (opened for signature 9
May 1992, 1771 UNTS 107, entered into force 21 March 1994) Art
14(1). On international environmental law, see Chapter 5.

ADDITIONAL PEACEFUL DISPUTE RESOLUTION

MECHANISMS
12.40 Significant regional courts include:

The European Court of Justice, established under the Treaty

Establishing the European Economic Community (opened for
signature 25 March 1957, 298 UNTS 11, entered into force 1
January 1958).
The Central American Court of Justice, operating under the
Central American Integration System.
The Court of Justice for the Andean Community, created by the
Protocol of Modification of the Treaty Establishing the Court
of Justice of the Andean Community.

12.41 Other influential institutions include:

The Iran-US Mixed Claims Tribunal <http://www.iusct.net>.

The International Centre for the Settlement of Investment
Disputes, established by the Convention on the Settlement of
Investment Disputes between States and Nationals of Other
States (the Washington Convention) (opened for signature 18
March 1965, 575 UNTS 159, entered into force 14 October
1966). Private investors may resolve disputes with States under
World Bank auspices <https://icsid.worldbank.org>.

MARITIME DISPUTES
12.42 The International Tribunal for the Law of the Sea (ITLOS,
<www.itlos.org>) is a judicial body established under the United
 Nations Convention on the Law of the Sea (opened for signature 10
December 1982, 1833 UNTS 3, entered into force 16 November
1994) (UNCLOS) to adjudicate disputes arising from the
interpretation and application of UNCLOS (see Chapter 9), as well
as matters specifically provided for in any other agreement which
confers jurisdiction on ITLOS.

12.43 Article 287(1) of UNCLOS provides that States can declare one or
more of the following means to settle their disputes:
1. ITLOS;
2. the ICJ;

[page 199]

3. an arbitral tribunal constituted under Annex VII of

UNCLOS;
4. a special arbitral tribunal constituted under Annex VIII of
UNCLOS.

12.44 The ITLOS also has a Seabed Disputes Chamber which is accessible
to non-State entities.

Case Summary
SOUTHERN BLUEFIN TUNA (AUSTRALIA & NEW ZEALAND v
JAPAN)
(2000) 119 ILR 508
UNCLOS ARBITRATION TRIBUNAL

FACTS: Australia and New Zealand claimed that Japan’s fishing activities failed to
conserve the Southern Bluefin tuna stock. Article 16 of the Convention for the
Conservation of Southern Bluefin Tuna (opened for signature 10 May 1993, 1819 UNTS
360, entered into force 20 May 1994) (the 1993 Convention) provides for dispute
settlement by arbitration, subject to the agreement of each State. Given Japan’s
refusal to consent to arbitration, Australia and New Zealand invoked the compulsory
arbitration provisions of Annex VII of UNCLOS. Article 281(1) of UNCLOS provides that if
States parties to a dispute concerning the interpretation and application of UNCLOS
have agreed to pursue peaceful means of their own choosing, then UNCLOS only
applies where no settlement is reached.

ISSUE: Did the UNCLOS arbitral tribunal have jurisdiction?

DECISION: No. The 1993 Convention came into force after UNCLOS and was a specific
rather than general agreement. Although the dispute arose under these two
conventions, Art 16 of the 1993 Convention excluded any procedure within the
contemplation of UNCLOS.
 Index
References are to paragraphs
fig and tab denotes figures and tables

A
Aarhus Convention …. 5.25
Acid rain …. 5.36
Active nationality principle …. 4.24
Active personality …. 7.59
Actus reus …. 7.17–7.18, 7.23
Adjudication …. 7.43
domestic adjudication …. 7.57
specialised bodies …. 8.56–8.57
WTO mechanisms …. 8.57

supranational adjudication …. 7.43

transnational adjudication …. 7.57–7.72
customary grounds …. 7.57
Adversarial system …. 7.51
Agencies
UN human rights agencies …. 6.24
Aggression …. 11.4–11.7
 prohibition on, peremptory status of …. 11.9
a supranational crime …. 7.27–7.29

universal jurisdiction application …. 7.64

Agreement
termination/withdrawal of treaty …. 2.34
Agreement on Trade-related Investment Measures (TRIMs) …. 8.18

Air (IEL regime) …. 5.36–5.41

air pollution …. 5.36
Al-Qaeda …. 12.29
Antarctic continent …. 5.44
Antarctic Treaty System (ATS) …. 5.44
Anthropogenic GHGs …. 5.38
Anticipatory self-defence …. 11.22–11.26
Apartheid …. 6.35
Arbitration …. 12.14–12.16

arbitral awards …. 12.16

Archipelagic waters …. 9.17–9.18
Arctic Region …. 5.43
Armed conflict (IEL regime) …. 5.57–5.58, 11.21, 11.26
counter-terrorism measures …. 11.27–11.30
IHL rules governing …. 7.2
Armed force …. 11.2, 11.5, 11.14–11.15, 11.18, 11.27, 11.31, 11.39–11.41
against the apartheid regime …. 11.46

for peacekeeping …. 11.43

by States …. 7.29
see also peace/peacekeeping
Australian Constitution

international law interpretation …. 3.24

international law treaty provisions …. 3.22–3.24
external affairs power …. 3.23
Australia-New Zealand Closer Economic Relations Trade Agreement ….
8.37
Aut dedere aut judicare …. 7.66–7.67

B
Bank for International Settlements (BIS) …. 8.14
Basel Convention/Protocol …. 5.56

Bilateral treaties …. 8.4, 8.53

bilateral investment treaties (BITs) …. 8.17

C
Capital (transfer of) …. 8.16
Central case approach
to international law …. 1.46
Change of circumstances
termination/withdrawal of treaty …. 2.37

Children
CRC protection …. 6.37
Chlorofluorocarbon gases (‘CFCs’) …. 5.37
Citizenship

rule of law and (example) …. 1.24

Classical theory …. 1.31
Climate change …. 5.38
agreement for …. 5.41
Coastal States …. 9.10–9.13, 9.15–9.16
preferential fishing rights …. 9.23
sovereign rights …. 9.21
Coffee Agreement …. 8.37
Collective rights …. 6.11–6.14

Collective self-defence …. 11.18–11.19

Committee on Economic, Social and Cultural Rights
example …. 2.68, 6.33
‘common heritage of mankind’ …. 5.34, 5.46, 9.29
Common law
international law, conforming with …. 3.43
 unincorporated treaties and …. 3.34
Commonwealth Constitution

Australia’s maritime zones under …. 9.31

Commonwealth Parliament
executive power …. 3.23
Community

international community
rule of law in …. 1.21–1.24
Competition and Consumer Act 2010 (Cth) …. 8.46
Complaints
UN treaty bodies and …. 6.47–6.49
Compliance …. 1.11–1.14
consent …. 1.12–1.13
IEL compliance procedures
case summaries …. 5.61, 5.63

general mechanisms …. 5.59–5.64

treaty-based mechanisms …. 5.65–5.66
international law, national law compliance with …. 3.10–3.13
State compliance (international law)
prompted by State self-interest …. 1.11, 1.39
State international law breach–national law compliance …. 3.12
 theories regarding …. 1.14
voluntary compliance inducement …. 1.17

Conciliation …. 12.10
Conferences of the (States) Parties (COPs) …. 5.27
Conflict
armed conflict …. 5.57–5.58

jurisdictional conflict
case summary …. 7.68
jus cogens norms, treaty conflict with …. 2.33
Consensualism …. 1.12–1.13
Consensus …. 8.52–8.53
Consent
wrongfulness, circumstance precluding …. 10.19
Conservation, environmental
high seas, conserving living resources …. 9.48–9.49

marine environment, protecting and preserving …. 9.50–9.52

Constitutive theory …. 4.12
Constructivism …. 1.42
Consultation …. 12.9
Contemporary approach …. 3.9
Contiguous zone
 coastal States action in …. 9.19
Continental shelf, the …. 9.24–9.25

delimitation of …. 9.34 fig 9.2

EEZ between adjacent/opposite States …. 9.32–9.42
relevant factors …. 9.38–9.42
shelf boundaries …. 9.33

Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (CAT) …. 6.39–6.40
jus cogens …. 2.50
Convention on Long-Range Transboundary Air Pollution (LRTAP
Convention) …. 5.36
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) …. 6.36
Convention on the Rights of Persons with Disabilities (CRPD) …. 6.41
Convention on the Rights of the Child (CRC) …. 6.37–6.38

example—Australia’s reservation to …. 2.21

Counter-terrorism …. 11.27
case summary …. 11.19
use of force and …. 11.27–11.30
Countermeasures
wrongfulness, circumstance precluding …. 10.21–10.23
Courts martial …. 7.71
Criminal law
international criminal law …. 7.8–7.79

limitations …. 6.9
Critical legal theory …. 1.33–1.36
feminist theory …. 1.34
international law, Third World approaches to …. 1.36

lesbian, gay, bisexual, and transgender/transsexual (LGBT) theory …. 1.35

Cuban Missile Crisis (1962) …. 11.24
Culture
cultural relativism …. 6.18
Currency …. 8.11–8.13
maintenance within the prescribed par …. 8.13
Customary international law
elements …. 2.40 fig 2.2
objective element—state practice …. 2.41–2.46

subjective element—opinio juris …. 2.47–2.49

erga omnes obligations …. 2.51
IEcL source …. 8.2
international law source …. 2.40–2.54
rule articulation as …. 2.40–2.42
Montevideo Convention representation …. 4.3–4.15
 mutual assistance …. 7.75
norms

custom, regional and local …. 2.52–2.53

peremptory (jus cogens) norms subset …. 2.50
principles
persistent objector principle …. 2.54

sovereignty, respect for …. 4.16

rule articulation as international law source …. 3.15
rules emergence
North Sea Continental Shelf cases …. 2.45
self-defence, right to
Caroline doctrine …. 11.11
source of transnational and supranational criminal law …. 7.10
state responsibility law …. 10.2
treaty

influence of custom on …. 2.70

influence of treaties on custom …. 2.69
Cyberspace …. 11.1

D
Death penalty …. 6.9
Declarations
 treaty reservations versus interpretive declarations …. 2.26
unilateral declarations …. 2.38–2.39

Declarative theory …. 4.11

Deep seabed, the …. 9.29–9.30
Delimitation …. 4.6, 9.6, 9.32–9.42, 9.43–9.44, 9.53
of continental shelf and EEZ …. 9.32–9.42

factors relevant to …. 9.38–9.42

Development, right to …. 6.13, 6.17
Dignity …. 6.3–6.4, 6.41
Diplomatic protection …. 8.54, 10.38
Discrimination …. 6.34–6.35
against women …. 6.36
Dispute/dispute settlement
‘dispute’ …. 12.4
general mechanisms …. 8.52–8.55

international dispute settlement …. 12.1–12.44

international forms …. 12.5
inter-State disputes, international courts/tribunal resolution …. 3.17
judicial dispute settlement …. 12.17–12.33
maritime disputes …. 9.53, 12.42–12.44
case summary …. 12.44
 non-judicial dispute settlement …. 12.6–12.12
peaceful dispute resolution mechanisms …. 12.40–12.41

specialised bodies …. 8.56–8.57

WTO mechanisms …. 8.57
States, available options
case summary …. 5.63

Timor Gap dispute …. 9.44

Trail Smelter dispute …. 5.4, 5.5
case summary …. 5.9
Distress
wrongfulness, circumstance precluding …. 10.26–10.27
Divine justice …. 1.31
Domestic military courts …. 7.70
Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities (DAPTHHA) …. 5.6, 5.16

environmental impact assessments (EIAs) …. 5.21–5.22

Dualism …. 3.3–3.6, 3.25, 3.37, 3.41
see also transformation doctrine
Duty
corresponding duties, rights of …. 6.8
duty to protect …. 11.37
 right-duty relations …. 8.10
States’ duties (of good faith) …. 3.11

E
Economic and Social Council (ECOSOC) …. 6.33
Economics
exclusive economic zone (EEZ) …. 9.20–9.23

as interdisciplinary approach to international law …. 1.43

Emergency situations …. 6.28
Energy (IEL regime) …. 5.53–5.55
Energy Charter Treaty (ECT) …. 5.55, 8.18
Enforcement
mechanisms for international law …. 1.15–1.24
international community, rule of law in the …. 1.21–1.24
English law

European Community law …. 3.26

European Community law precedence …. 3.26
treaty—post-transformation inclusion …. 3.25
Enlightenment period …. 6.3
Enquiry …. 12.11
Entebbe incident …. 12.31
Entitlements …. 6.15
Environment
environmental conservation (maritime issue) …. 9.48–9.52

human rights and …. 5.67

international environmental disputes …. 12.39
international environmental law …. 5.1–5.67
marine environment

protecting and preserving …. 9.50–9.52

Stockholm Declaration protection definition …. 5.2–5.3, 5.11, 5.67
time of war, protecting environment in …. 5.20
Environmental harm …. 5.15–5.16
damage compensation case study …. 5.61
Environmental impact assessments (EIAs) …. 5.21–5.22
Environmental protection …. 8.33
Equality …. 6.5
sovereign equality …. 1.3, 4.16–4.18, 9.34, 12.3

Equity …. 2.56, 9.34

Erga omnes
human rights breaches
international community involvement …. 11.34
obligations for customary international law …. 2.51
right of all peoples …. 4.14
 use of force, ranking of prohibition on …. 11.9
European Economic and Monetary Union (EMU) …. 8.15

Evidence of law …. 2.61–2.62

Exclusive economic zone (EEZ) …. 9.20–9.23
EEZ between adjacent/opposite States and continental shelf delimitation
…. 9.32–9.42

straits navigation of …. 9.45

see also international straits
External affairs power …. 3.23
Extra-contractual obligations …. 8.7
Extradition agreements …. 7.76

F
Fairness …. 8.29
Fauna and flora (IEL regime) …. 5.2, 5.48–5.51
Feminist theory …. 1.34

Finance (IEL regime) …. 5.53–5.55

First generation rights …. 6.17
Flora and fauna (IEL regime) …. 5.2, 5.48–5.51
Force, use of …. 11.1–11.48
armed conflicts
counter-terrorism measures …. 11.27–11.30
 jus in bello governance …. 11.21
‘Operation Iraqi Freedom’ …. 11.26

counter-terrorism …. 11.27–11.30
decentralisation/centralisation …. 11.1
‘force’ …. 11.2
general international law, customary status under …. 11.8

human rights protection …. 11.32–11.40

international prohibition on …. 11.2–11.9
case summary …. 11.3
jus cogens/erga omnes ranking …. 11.9
justification for …. 11.10
human rights breaches …. 11.32–11.40
nationals abroad, protection of …. 11.31
self-defence …. 11.10–11.26
self-determination and …. 1.36

threat of use
necessity and proportionality criteria application …. 11.17
prohibition …. 11.4
UN Charter, refrain from threat/use of force …. 12.2
within the UN system …. 11.41–11.48
Force majeure
 wrongfulness, circumstance precluding …. 10.24–10.25
Foreign investment …. 8.16–8.17, 8.18

regulation …. 8.18
Foreign ministers
immunity …. 4.30–4.32
Foreign nationals

diplomatic protection …. 10.38

treatment of …. 10.37–10.38
Foreign relations
State capacity to enter into …. 4.8
Forests and soils …. 5.29–5.30
Freedoms …. 6.16, 6.41
freedom of association
example …. 6.29

G
General Agreement on Tariffs and Trade (GATT) …. 5.54
equal trade conditions …. 8.31–8.32
exceptions …. 8.32
sector-specific treaty supplementation …. 8.34
trade in goods and …. 8.29–8.32
General Assembly (UN) …. 6.24
 binding resolutions …. 2.65
UDHR instrument adoption …. 2.72

General Comments
international law source …. 2.68
examples …. 2.68
General Council (WTO) …. 8.26, 8.28

General principles of law …. 2.55–2.56

Australia and New Zealand v France case summary …. 2.56
IEcL source …. 8.2
source of transnational and supranational criminal law …. 7.10
Geneva Conventions/Additional Protocols …. 7.3, 7.39, 7.62, 7.66
Geneva Convention on the Protection of War Victims …. 7.3
Genocide …. 7.23, 7.36
Genocide Convention …. 7.14, 7.23, 7.26, 7.36, 7.44, 7.49
Global Environmental Facility …. 5.53

Good faith …. 2.56

Good offices …. 12.12
Government
heads of government
immunity …. 4.30–4.32
jurisdiction
 case summary …. 4.7
persons/entities exercising authority …. 10.9–10.10

State recognition of …. 4.15

State territory, control of …. 4.7

H
‘hard law’ …. 2.67, 2.72, 5.4

Harmonisation …. 8.4, 8.44, 8.47

case summary …. 3.9
Hartian rules …. 5.1, 5.19
IHL rules set …. 7.2
international criminal law rules system …. 7.9
Hazardous waste and substances (IEL regime) …. 5.56
High seas, the …. 9.26–9.28
Human rights

alternative theories of …. 6.18

breach as justification for use of force …. 11.32–11.40
humanitarian intervention invocation …. 11.38
crises and humanitarian intervention …. 11.33
definition …. 6.2–6.18
environment and …. 5.67
erga omnes obligations …. 11.34
 frameworks
regional human rights frameworks …. 6.50–6.51

United Nations human rights framework …. 6.19–6.49

fundamental concepts
corresponding duties, rights of …. 6.8
inalienability …. 6.6

individual and collective rights …. 6.11–6.14

interdependence …. 6.7, 6.17
positive and negative rights …. 6.15–6.17
rights, limitations on …. 6.9–6.10
universality …. 6.5
human rights claims …. 12.36–12.38
national implementation …. 6.52
UN agencies …. 6.24
UN treaties and treaty bodies …. 6.25–6.49

complaints …. 6.47–6.49
Human Rights Committee …. 6.30, 6.46
case summary …. 6.49
example …. 2.68
Human Rights Council …. 6.24
Human rights protection …. 11.32–11.40
 humanitarian intervention …. 11.33–11.38
self-determination rights, protecting …. 11.39–11.40

Humanitarian intervention …. 11.33–11.38

breach by terrorism, invocation in response …. 11.38
responsibility to protect …. 11.36–11.38
compulsory intervention …. 11.36

State use of force in crises …. 11.33

freeing Kosovo …. 11.35
Humanity, crimes against …. 7.18–7.19
Hybrid tribunals …. 7.77–7.79

I
Immunity …. 4.29–4.32, 7.72, 7.79
application …. 4.32 tab 4.1
ratione materiae …. 4.32

case summary …. 4.32

ratione personae …. 4.31
Inalienability …. 6.6
Indigenous peoples …. 6.14
Individual rights …. 6.11–6.14
Individuals
limited legal personality …. 4.35
Inquisitorial system …. 7.51
Institutionalism …. 1.41

Interdependence
example …. 6.7, 6.17
Interdisciplinary approaches (to international law) …. 1.37–1.43
economics …. 1.43

international relations …. 1.38–1.42

Internal waters …. 9.9–9.11
International agreements
domestic legislation enforcement …. 8.48
substantive obligations …. 8.19
International Centre for Settlement of Investment Disputes (ICSID) ….
8.14
International community
human rights breaches, effect of …. 11.34

international law mechanisms rule of law …. 1.21–1.24

International competition law
anticompetitive behaviour …. 8.46
antitrust law …. 8.45
International Convention for the Protection of All Persons from Enforced
Disappearances (CED) …. 6.43–6.44
International Convention on the Elimination of All Forms of Racial
 Discrimination (ICERD) …. 6.34–6.35
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (CMW) …. 6.42
International conventions
international law source …. 2.3–2.39
International Court of Justice (ICJ)

advisory opinions …. 12.29–12.33

example …. 12.32
contentious cases …. 12.23–12.28
process …. 12.32 fig 12.1
decisions, stare decisis non-application
case summary …. 12.27
UN compliance with …. 12.28
dispute settlement …. 9.53
judicial …. 12.17–12.33

Kosovo and legality of use of force …. 11.35

‘force’ concept case summary …. 11.3
general international law, customary status under …. 11.8
ICJ Statute …. 2.2
on customary international law …. 2.40–2.41
general principles of law application …. 2.55
 judicial decisions …. 2.57–2.62
international law

enforcement …. 1.19
UN Charter, complementarity …. 11.13
judges …. 12.19–12.20
ad hoc …. 12.21

jurisdiction …. 12.22–12.33
case summaries …. 12.24
establishment …. 12.25
exercising discretion …. 12.31
self-determination of …. 12.22
procedural aspects …. 12.26
regarding state practice …. 2.43–2.46
Fisheries Jurisdiction case …. 2.44
right to collective self-defence under law

case summary …. 11.19

necessity and proportionality criteria clarification …. 11.16
International courts and tribunals
national law source and resolution …. 3.16–3.17
International Covenant on Civil and Political Rights (ICCPR) …. 6.9, 6.12,
6.26–6.30
 example …. 6.29
Human Rights Committee …. 6.30

States’ compliance under …. 6.45

International Covenant on Economic, Social and Cultural Rights
(ICESCR) …. 6.12, 6.31–6.33
example …. 6.33

progressive approach to States’ obligations …. 6.32

States’ compliance under …. 6.45
International Criminal Court (ICC) …. 12.34
crime jurisdiction …. 7.48
ICC Statute …. 7.15
money transfer—compensation …. 7.54
sentences delivered …. 7.53
International criminal law …. 7.8–7.79
sources …. 7.10

supranational crimes …. 7.11–7.34

as system of primary and secondary rules …. 7.9
transnational crimes …. 7.35–7.41
International criminal prosecutions …. 12.34–12.35
criminal courts and tribunals …. 12.35
International Criminal Tribunal for Rwanda (ICTR)
 crime jurisdiction …. 7.47
sentences delivered …. 7.53

International Criminal Tribunal for the former Yugoslavia (ICTY)

crime jurisdiction …. 7.46
sentences delivered …. 7.53
International Development Association (IDA) …. 8.14

International dispute settlement

arbitration …. 12.14–12.16
human rights claims …. 12.36–12.38
international criminal prosecutions …. 12.34–12.35
international environmental disputes …. 12.39
international obligations …. 12.2–12.12
non-judicial dispute settlement …. 12.6–12.12
State honouring of …. 1.11
judicial dispute settlement …. 12.17–12.33

UN Security Council role …. 12.13

International economic law (IEcL) …. 8.1–8.62
scope and sources …. 8.2–8.10
in time of war …. 8.58–8.62
International environmental disputes …. 12.39
peaceful dispute resolution mechanisms …. 12.40–12.41
International environmental law (IEL) …. 5.1–5.67
compliance procedures …. 5.59–5.66

developmental milestones …. 5.5

environment and human rights …. 5.67
general principles …. 5.8–5.25
procedural principles …. 5.21–5.25

substantive principles …. 5.9–5.20

regimes
air …. 5.36–5.41
armed conflict …. 5.57–5.58
finance, trade and energy …. 5.53–5.55
flora and fauna …. 5.48–5.51
hazardous waste and substances …. 5.56
natural heritage …. 5.52
outer space …. 5.45–5.47

polar regions …. 5.42–5.44

soils and forests …. 5.29–5.30
water …. 5.31–5.35
regulatory conventions …. 5.7
sources …. 5.4–5.7
as system of primary and secondary rules …. 5.1
International Finance Corporation (IFC) …. 8.14
International financial law

international investment law …. 8.16–8.19

international monetary law …. 8.11–8.15
International human rights law
frameworks

regional human rights frameworks …. 6.50–6.51

United Nations human rights framework …. 6.19–6.49
human rights, definition …. 6.2–6.18
human rights, national implementation …. 6.52
IHL, structural overlap with …. 7.6
International humanitarian law (IHL) …. 7.2–7.7
application …. 7.5
armed conflict, rules governing …. 7.2
basic rules …. 7.6

conventional norms …. 7.4

human rights law, structural overlap with …. 7.7
modern origins …. 7.3
piracy …. 7.40
serious IHL breaches …. 7.39
as system of primary and secondary rules …. 7.2
 time of war, protecting environment in …. 5.20
International Institute for the Unification of Private Law (UNIDROIT)
Principles on International Commercial Contracts (2010) …. 8.9
International investment law …. 8.16–8.19
‘foreign investment’ …. 8.16
International law

breach
reparations following breach …. 2.56
by States see state responsibility
common law conformance …. 3.43
‘force,’ meaning of …. 11.2
International Law Commission (ILC)
Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities (DAPTHHA) …. 5.6
draft treaties …. 2.11

international law
codification/development …. 2.71
collective self-defence non-exclusion …. 11.18
international organisations’ responsibility …. 10.36
peremptory status of prohibition on aggression …. 11.9
self-defence
necessity and proportionality criteria clarification …. 11.15
 rules complementarity …. 11.14
state responsibility articles …. 10.2

State’s wrongfulness excused …. 10.18–10.28

International Military Tribunal for the Far East (IMTFE)
convictions delivered …. 7.52
crime jurisdiction …. 7.45

International Monetary Fund (IMF) …. 5.53, 8.8, 8.11

IMF agreement …. 8.12
International monetary law …. 8.11–8.15
International organisations
international law, influence on …. 1.6
institutionalism …. 1.41
legal personality …. 4.34
non-State actors participation …. 1.6
responsibility of …. 10.36

International relations
constructivist view …. 1.42
as interdisciplinary approach to international law …. 1.38–1.42
schools of thought …. 1.39, 1.40, 1.41, 1.42
International Seabed Authority (ISA) …. 9.30
International straits
 right of transit passage and …. 9.45–9.47
International taxation law

aims …. 8.50–8.51
source-based or person-based taxes …. 8.49
International trade law
UNITRAL unification …. 8.38

WTO system …. 8.21–8.28

International treaties
as international law source …. 2.3–2.39
International Tribunal for the Law of the Sea (ITLOS)
dispute settlement …. 9.21, 9.30, 9.53
maritime disputes …. 12.42
Seabed Disputes Chamber
case summary …. 12.44
Internationally wrongful acts

state responsibility for …. 3.11, 10.3–10.17

act attribution …. 10.5–10.17
even if conflicting national law-bound …. 3.14, 10.4
Interpretive declarations
reservations versus …. 2.26
Inter-State cooperation …. 8.51
Investment agreements …. 8.18
Investment protection

non-discriminatory limitations …. 8.18

J
Joint Standing Committee on Treaties …. 3.27
Judicial decisions

subsidiary international law source …. 2.57–2.62

evidence of law …. 2.61–2.62
Judicial dispute settlement …. 12.17–12.33
jurisdiction …. 12.22–12.33
Jurisdiction …. 4.19–4.28
advisory opinions …. 12.29–12.33, 12.32 fig 12.1
example …. 12.32
case summary …. 12.22

categories …. 4.20–4.28
nationality …. 4.24–4.25
prescriptive and enforcement jurisdiction …. 4.20
protective jurisdiction …. 4.26
territorality …. 4.22–4.23
universality …. 4.27–4.28
contentious cases …. 12.23–12.28, 12.32 fig 12.32
 case summaries …. 12.24, 12.27
establishment

principles …. 4.21–4.28
by treaty …. 4.28
government of State
case summary …. 4.7

High Court of Australia

all matters arising under any treaty …. 3.22
judicial dispute settlement …. 12.22–12.33
jurisdictional conflict …. 7.68
universal jurisdiction …. 7.61
Jus ad bellum …. 11.20–11.21
Jus cogens norms/rights …. 6.10, 6.28, 6.40
for customary international law …. 2.50
treaty conflict with …. 2.33

use of force, ranking of prohibition on …. 11.9

Jus in bello …. 11.21
‘just war,’ the …. 1.30
Justice …. 6.20

K
Kelsenian rules …. 5.1, 5.4–5.5, 5.9–5.12, 11.4
 IHL rules set …. 7.2
international criminal law rules system …. 7.9

Kosovo …. 11.35
Kyoto Protocol …. 5.39–5.40, 5.66

L
Law

English law …. 3.25–3.26

evidence of law …. 2.61–2.62
general principles of law
international law source …. 2.55–2.56
‘hard law’ …. 2.67, 2.72, 5.4
international competition law …. 8.45–8.48
international environmental law (IEL) …. 5.1–5.67
international human rights law …. 6.1–6.52

international investment law …. 8.16–8.19

international law
customary international law …. 2.40–2.54
as ‘law’ …. 1.54–1.56
nature and theory …. 1.2–1.56
international monetary law …. 8.11–8.15
international taxation law …. 8.49–8.51
 international trade law …. 8.20–8.44
law violations

non-recognition precondition …. 4.13

lex lata–lex ferenda distinction …. 1.32
merchant law …. 8.9
municipal laws …. 3.15

national law …. 3.2–3.46

natural law …. 1.30, 3.7
‘soft law’ …. 2.63–2.68, 2.72, 5.4, 6.23, 8.47
Law of the sea …. 9.1–9.53
Legal personality, international …. 4.1–4.37
‘constitutive theory’ State recognition …. 4.12
immunity …. 4.29–4.32
of international organisations …. 4.34
jurisdiction …. 4.19–4.28

non-State actors …. 4.33–4.37

sovereignty …. 4.16–4.18
statehood …. 4.3–4.15
States as main holder of …. 4.2–4.32
Legal systems
international legal system
 horizontal order …. 1.8
national–international interaction …. 1.25–1.28

national legal system

national–international interaction …. 1.25–1.28
vertical order …. 1.8
State-centric system—international law …. 1.2, 1.4

Legality principle …. 7.10

Legislation
Commonwealth statutes, constitutional validity …. 3.12
legislation–treaty conformity …. 3.23
in disconformity …. 3.33
domestic legislation …. 8.48
given effect notwithstanding treaty obligation inconsistency (UK) …. 3.25
legislative treaty implementation …. 3.28, 3.30, 6.52
prima facie intention …. 3.31

Lesbian, gay, bisexual, and transgender/transsexual (LGBT) theory …. 1.35

Lex mercatoria (merchant law) …. 8.9
Lex specialis (special law) …. 8.34–8.35
Liberalism …. 1.40
Liberties …. 6.16

M
Maastricht Treaty …. 8.4, 8.15
Marine environment …. 5.33, 9.50–9.52

protecting and conserving …. 9.50–9.52

Maritime boundaries …. 9.34
example …. 9.44
mineral resource development and …. 9.43–9.44

Maritime issues …. 9.32–9.52

Maritime zones …. 9.8–9.31
archipelagic waters …. 9.17–9.18
Australia’s maritime zones under Commonwealth Constitution …. 9.31
contiguous zone …. 9.19
the continental shelf …. 9.24–9.25
the deep seabed …. 9.29–9.30
exclusive economic zone (EEZ) …. 9.20–9.23
the high seas …. 9.26–9.28

internal waters …. 9.9–9.11

the territorial sea …. 9.12–9.16
Marrakesh Agreement …. 8.21–8.23, 8.26–8.27
Mediation …. 12.8
Mens rea …. 7.16, 7.23
MERCOSUR …. 8.41
Migrant workers …. 6.42
Ministerial Conference …. 8.26–8.27

Minority groups …. 1.35

Mixed tribunals …. 7.78
Monist approach …. 3.7–3.8
Montevideo Convention (definition)

new State emergence, determination of …. 4.4

statehood definition …. 4.4–4.8
case summary—Aaland Islands Question (jurisdiction) …. 4.7
defined territory …. 4.6
foreign relations, capacity to enter into …. 4.8
government …. 4.7
permanent population …. 4.5
Montreal Protocol on Substances that Deplete the Ozone Layer …. 5.37,
5.65

Morality …. 1.31
Multilateral agreements
GATT see General Agreement on Tariffs and Trade
Multilateral environmental agreements (MEAs) …. 5.26, 5.28, 5.66
Multilateral Investment Guarantee Agency (MIGA) …. 8.14
Multilateral treaties …. 8.4, 8.8, 8.53
N
National law

development
international law impact on …. 3.18–3.19
international courts/tribunals source and resolution …. 3.16–3.17
national law–international law relationship

developmental influences on international law …. 3.14–3.17

executive action …. 3.46
individual supremacy …. 3.9
interactions between …. 3.14–3.46
national compliance …. 3.10–3.13
theoretical approaches …. 3.2–3.9
treaties in
Australia …. 3.27–3.36
legislative treaty implementation …. 3.30

United Kingdom …. 3.25–3.26

unincorporated treaties and interpretation …. 3.32
Nationality …. 10.38
‘active nationality principle’ …. 4.24
flag States and ships …. 9.27–9.28
‘passive nationality principle’ …. 4.25
Nationals
protection of …. 11.31

treatment of …. 10.37–10.38
Natural heritage (IEL regime)
case summary …. 5.52
Natural law …. 1.30, 3.7

Necessity …. 11.15–11.17
Necessity criteria …. 11.15–11.17
case summary …. 11.16
wrongfulness, circumstance precluding …. 10.28
Negative rights …. 6.15–6.17, 6.26
Negligence …. 7.16
Negotiation …. 12.6–12.7
Neutral States …. 8.62
New international economic order (NIEO) …. 8.3

No-harm rules/principle …. 5.4–5.5, 5.9, 5.9–5.12

case law confirmation …. 5.10
customary status …. 5.12
Non-derogable rights …. 6.28
Non-discrimination …. 6.5
case summary …. 8.30
Non-governmental organisations
limited legal personality …. 4.37

Non-judicial dispute settlement …. 12.6–12.12

conciliation …. 12.10
consultation …. 12.9
enquiry …. 12.11

good offices …. 12.12

mediation …. 12.8
negotiation …. 12.7
Non-State actors
access to information, judicial remedies and participation in decision-
making processes …. 5.23
disputes and arbitration …. 12.14–12.16
information access provision …. 5.23–5.24
international law

compliance pressure (States) …. 1.20

influence on …. 1.6
ITLOS Seabed Disputes Chamber availability …. 12.44
legal personality …. 4.33–4.37
individuals …. 4.35
international organisations …. 4.34
 non-governmental organisations …. 4.37
transnational corporations …. 4.36

‘transnational law’ accommodation of …. 1.6

North American Free Trade Agreement (NAFTA) …. 5.53, 8.4, 8.18
Nuremberg Principles …. 7.28, 7.30, 7.45

O
Objective territorality …. 4.23
Operation Iraqi Freedom …. 11.26
Opinio juris
customary international law subjective element …. 2.47–2.49
in Lotus case …. 2.48–2.49
Organisations
international organisations …. 1.6, 1.41, 4.34, 10.36
non-governmental organisations

limited legal personality …. 4.37

Organization for Economic Co-operation and Development (OECD)
Guidelines for Multinational Enterprises (2011) …. 8.19
Outer space (IEL regime) …. 5.45–5.47
Outer Space Treaty …. 5.45
Ozone depletion …. 5.37

P
Pacta sunt servanda …. 2.55, 2.56, 3.11
Paris Convention for the Protection of Industrial Property …. 8.43

Passive nationality principle …. 4.25

Passive personality …. 7.59
Patent Cooperation Treaty …. 8.43
Peace/peacekeeping …. 6.20, 11.43, 11.47–11.48

first operation—Suez …. 11.48

Peace Conferences …. 7.3
Periodic reporting
of UN treaty bodies …. 6.46
Permanent Court of International Justice (PCIJ)
regarding opinio juris …. 2.48
regarding state practice …. 2.43
Permanent population …. 4.5
Persistent objector principle

customary international law non-application

Fisheries case summary …. 2.54
Person-based taxes …. 8.49
Piracy …. 7.40, 9.28
universal jurisdiction, subject to …. 7.65
Polar regions (IEL regime) …. 5.42–5.44
Policy
policy-oriented perspectives of international law …. 1.45

Politics
recognition as a political act …. 4.11
Pollution …. 5.2–5.5
air pollution …. 5.36

from land-based sources …. 9.51

polluter pays principle …. 5.18
responsibility and strict liability under …. 5.19
sources …. 5.35
conventions regulating …. 5.35
UNCLOS obligations …. 5.34
Positive rights …. 6.15–6.17, 6.31–6.32
Positivism …. 1.32, 1.54, 3.3
Pragmatism …. 1.50–1.53

Precautionary principle …. 5.15–5.17, 9.30

customary status …. 5.17
Prejudice …. 6.35
Primary (Kelsenian) rules …. 5.4–5.5, 5.9–5.12, 11.4
IHL rules set …. 7.2
ILE as …. 5.1
 international criminal law rules system …. 7.9
use of force prohibition …. 11.4

Private practice, IEcL source …. 8.2

Procedural IEL principles …. 5.21–5.25
Prohibition
on use of force …. 11.2–11.9

Proportionality …. 11.15–11.17
case summary …. 11.16
Protection
of archaeological and historical objects …. 9.52
diplomatic protection …. 8.54, 10.38
of forests and soils …. 5.29–5.30
groundwater protection …. 5.32
investment protection …. 8.18
marine environment, protecting and preserving …. 5.33, 9.50–9.52

of nationals abroad …. 11.31

protection of nature regulation see international environmental law
protective jurisdiction/principle …. 4.26
responsibility to protect …. 11.36–11.38
right and duty …. 11.36
of rights
 by force …. 11.39–11.40
human rights …. 11.32–11.40

International Convention for the Protection of All Persons from

Enforced Disappearance …. 6.43–6.44
International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families …. 6.42

self-determination …. 11.39–11.40
Protective principle …. 4.26, 7.60
Protocol on Acceleration of Free Trade in Goods …. 8.37
Public participation principle …. 5.25

R
Racial discrimination …. 6.34–6.35
Racial segregation …. 6.35
Ratione materiae
case summary …. 4.32

Ratione personae …. 4.31

Realism …. 1.39
Recognition
as a political act …. 4.11
preconditions to
non-recognition, law violations …. 4.13
 self-determination issues …. 4.14
State recognition

of new State governments …. 4.15

for statehood …. 4.12
Regional and local custom …. 2.52–2.53
Reports/reporting

ICCPR and ICESCR reporting …. 6.33, 6.46

States to ECOSOC …. 6.33
UN treaty bodies, periodic reporting …. 6.46
Res judicata …. 2.56
Reservations
interpretive declarations versus …. 2.26
to treaty …. 2.21–2.25
Convention on the Rights of the Child, Australia’s reservation to
example …. 2.21

Resolutions
as international law source …. 2.63–2.65
Security Council resolutions …. 2.64
UN General Assembly resolutions …. 2.65
Resources
coastal States’ exploration/exploitation of …. 9.24
 exhaustible natural resources …. 8.33
high seas, living resources of …. 9.48–9.49

maritime issues regarding

marine environment, protecting and preserving …. 9.50–9.52
mineral resource development and maritime boundaries …. 9.43–9.44
Responsibility

of international organisations …. 10.36

state responsibility …. 10.1–10.38
Rights
all ships right of innocent passage …. 9.14–9.15
of corresponding duties …. 6.8
generations of …. 6.17
human rights …. 5.67
international human rights law …. 6.1–6.52
inalienable rights …. 6.6

individual and collective rights …. 6.11–6.14

LGBT rights …. 1.35
limitations on …. 6.9–6.10
example …. 6.9
by ICCPR …. 6.29
negative rights …. 6.15–6.17, 6.26
 non-derogable rights …. 6.28
positive rights …. 6.15–6.17, 6.31–6.32

preferential fishing rights …. 9.23

requiring legislative implementation (UK) …. 3.25
right of ‘hot pursuit’ …. 9.28
right of transit passage …. 9.45–9.47

self-determination rights …. 6.12, 6.17, 11.39–11.40

erga omnes right of all peoples …. 4.14, 6.12
Rio Declaration on Environment and Development (Rio Declaration) ….
5.13, 5.15
access to information …. 5.23–5.24
environmental impact assessments (EIAs) …. 5.21–5.22
pre-emptive function …. 5.22
polluter pays principle …. 5.18
Risk …. 8.16

Rome Convention on the Law Applicable to Contractual Obligations ….

8.5
Rule of law
good citizenship and respect for rule of law …. 1.24
in international community …. 1.21–1.24
example …. 1.24
universal adherence …. 1.23
Rules
international law rules …. 1.14, 1.56 fig 1.1

superseding common law precedents …. 3.8

no-harm rules …. 5.4–5.5, 5.9–5.12
primary (Kelsenian) rules …. 5.1, 11.4
secondary (Hartian) rules …. 5.1

state responsibility rules

secondary rules …. 10.1
substantive rules …. 8.47

S
Sea, law of the …. 9.1–9.53
dispute settlement …. 9.53
maritime issues …. 9.32–9.52
maritime zones …. 9.8–9.31

United Nations Convention on the Law of the Sea (UNCLOS) ….

5.33–5.34, 9.2–9.7
Seas
coastal States sea lanes designation …. 9.16
the deep seabed …. 9.29–9.30
the high seas …. 9.26–9.28
international straits
 right of transit passage …. 9.45–9.47
measuring sea’s breadth

low-water line …. 9.5, 9.7

the territorial sea …. 9.12–9.16
all ships right of innocent passage …. 9.14–9.15, 9.18
Seas and Submerged Lands Act 1973 (Cth) …. 9.31

Second generation rights …. 6.17

Secondary (Hartian) rules …. 5.19
IHL rules set …. 7.2
IEL as …. 5.1
international criminal law rules system …. 7.9
Security Council
sanctional resolutions …. 2.64
Self-defence …. 11.10, 11.22
anticipatory self-defence …. 11.22–11.26

case summaries …. 11.16, 11.19

collective self-defence …. 11.18–11.19
right under law case summary …. 11.19
State and third State countermeasures …. 11.18
jus ad bellum and jus in bello …. 11.20–11.21
necessity and proportionality …. 11.15–11.17
 pre-emptive self-defence
‘Operation Iraqi Freedom’ …. 11.26

resort to force in …. 11.1

use of force
justification …. 11.10, 11.32–11.40
use of force and …. 11.10–11.26

wrongfulness, circumstance precluding …. 10.20

Self-determination …. 6.12, 6.17
ICJ self-determination of jurisdiction
case summary …. 12.22
protecting rights …. 11.39–11.40
recognition, issues pertaining to …. 4.14
use of force and …. 1.36
Six-Day War (1967) …. 11.25
Slave trading …. 3.40, 6.10, 7.41, 9.28

Socialism
international law, approach to …. 1.47
‘soft law’ …. 5.4, 8.47
examples of non-binding nature
Rio Declaration on Environment and Development …. 2.66
United Nations Declaration on the Rights of Indigenous Peoples
 (UNDRIP) …. 2.67
General Comments form

examples …. 2.68
international law source …. 2.63–2.68
treaties/custom development, influence on
UDHR example …. 2.72

Soils and forests …. 5.29–5.30

Solar radiation …. 5.37
Source-based taxes …. 8.49
Sovereignty
English sovereignty …. 3.26
exploit resources, sovereign right to …. 5.34
international law, sovereign equality of …. 1.3, 4.16–4.18
national sovereignty …. 1.26
sovereign immunity …. 4.29–4.32

State sovereignty …. 4.16–4.18, 8.3, 12.3

socialism …. 1.47
suspension during war …. 8.58
territorial sovereignty …. 4.17
SPS Agreement …. 8.35
State practice
 customary international law objective element …. 2.41–2.46
definition …. 2.42

required amount …. 2.43–2.46

consistency …. 2.44
time …. 2.45
universality— Nicaragua Merits decision …. 2.46

State responsibility …. 10.1–10.38

conduct
acknowledged/adopted by State as own …. 10.16
case summary …. 10.16
of insurrectional movements …. 10.15
persons acting in absence of official authorities …. 10.14
of State organs …. 10.6–10.8
State-controlled/directed …. 10.12–10.13
in connection with act of another State …. 10.17

consequences of a finding of …. 10.29–10.35

compensation …. 10.32
reparations …. 10.30
restitution …. 10.31
satisfaction …. 10.33–10.35
core supranational crimes overlap …. 7.13
 steps/instruments …. 7.14
foreign nationals, treatment of …. 10.37–10.38

international law breaches

governmental …. 3.13, 10.7
for internationally wrongful acts …. 3.11, 10.3–10.17
even if conflicting national law-bound …. 3.14, 10.4

wrongfulness, circumstances precluding …. 10.18–10.28

invocation of responsibility
collective self-defence …. 11.18
environmental obligations breach …. 5.62
law of see customary international law
rules …. 10.1
terrorism, responsibility not necessarily attributed to States ….
12.29–12.30
case summary …. 12.30

Statehood
definitions
Montevideo Convention definition …. 4.4–4.8
States, recognition of …. 4.9–4.15
States
adjacent/opposite States, EEZ between …. 9.32–9.42
archipelagic States …. 9.17
behaviour

behavioural constraints/modification—liberalisms …. 1.40

preference maximisation …. 1.43
coastal States …. 9.10–9.13, 9.15–9.16, 9.19, 9.21
consensualism …. 1.12–1.13

disputes between/settlement …. 3.17

arbitration …. 12.14–12.16
case summary …. 5.63
means choices …. 12.43
domestic application, treaty …. 6.52
duties of good faith …. 3.11
environmental impact assessments (EIAs) …. 5.21–5.22
with federal constitutional structure …. 3.13
flag States and ships …. 9.27–9.28

foreign investment
accepting/rejecting …. 8.17
host State risk assumption …. 8.16
foreign relations, capacity to enter into …. 4.8
foreign States …. 9.22
human rights
 CAT and …. 6.39
CEDAW and …. 6.36

claims …. 12.36–12.38
ICCPR and …. 6.27–6.28
ICERD and …. 6.35
restrictions/limitations …. 6.9, 6.22

States as duty-bearers of …. 6.8

immunity …. 4.29–4.32
for heads of States …. 4.30–4.32
information access provision …. 5.23–5.24
interaction between see international law
international criminal jurisdictions, cooperation with …. 7.55
international law ‘transformation’ …. 3.4–3.5, 3.9
international obligations
acting in accordance with …. 3.13

fulfilment, legislative modifications ensuring …. 3.10

honouring due to self-interests …. 1.11, 1.39
‘law habit’ …. 1.14
obligatory versus agreed upon …. 1.54
retorsion acts …. 1.18
source location versus claim identification …. 1.45
 violation in light of constitutional prohibition …. 3.9
interstate cooperation …. 7.73–7.74

jurisdiction …. 4.19–4.28
criminal law application—nationality …. 4.24–4.25
protective jurisdiction (security interests) …. 4.26
universal jurisdiction …. 4.27–4.28

landlocked States …. 9.26

legal personality, as main holder of …. 4.2–4.32
long-term loans from WB …. 8.14
maritime zones
rights and obligations …. 9.9–9.31
neutral States …. 8.62
non-organs, conduct of …. 10.9–10.10
non-State actors …. 1.6, 4.33–4.37
organs

conduct of …. 10.6–10.8
placed at disposal of one State by another …. 10.11
permanent population of …. 4.5
recognition …. 4.9–4.15
constitutive theory …. 4.12
‘constitutive theory’/‘declarative theory’ of …. 4.10–4.12
 de jure (in law) or de facto (in fact) …. 4.9
declarative theory …. 4.11

governments …. 4.15
preconditions to …. 4.13–4.14
representation of
permanent population …. 4.5

self-defence
counter-terrorism measures …. 11.27–11.30
State and third State self-defence countermeasures …. 11.18
against ‘threat’ …. 11.23
sovereignty …. 1.47, 4.16–4.18, 8.3
over defined territory …. 4.6
State will
municipal law expression of …. 3.15
positivism …. 1.32, 1.54, 3.3

State-centric system—international law …. 1.2, 1.4

statehood …. 4.3–4.15
territory
delimitation …. 4.6, 9.6, 9.32–9.42, 9.43–9.44, 9.53
effective and independent governance …. 4.7
international law breaches …. 3.13
 territorial sovereignty and scope …. 4.17–4.18
treaty

consent invalidation …. 2.32

declarations …. 2.21
ratification, accession, acceptance and approval …. 2.17–2.20
reservations to …. 2.22–2.26

States as parties to …. 2.17

third State application …. 1.13, 2.29–2.30
Stockholm Declaration of the United Nations (UN) Conference on the
Human Environment …. 5.2–5.3
‘no-harm’ rule, embedding of …. 5.11, 5.67
Subjective territorality …. 4.23
Substantive IEL principles …. 5.9–5.20
no-harm rules …. 5.4–5.5, 5.9, 5.9–5.12, 5.12
case summary …. 5.9

Suez crisis (1956) …. 11.48

Supervening impossibility of performance
termination/withdrawal of treaty …. 2.36
Supranational crimes …. 7.11–7.34
core supranational crimes …. 7.12
state responsibility overlap …. 7.13
 elements …. 7.16–7.17
penalties …. 7.32–7.34

procedures …. 7.42–7.55
adjudication …. 7.43
domestic prosecution …. 7.73–7.76
prosecution and enforcement …. 7.50–7.55

Sustainable development concept …. 5.13–5.14, 5.53, 8.33

T
Tariffs …. 5.54
Tax evasion …. 8.51
TBT Agreement …. 8.35
Technology (transfer of) …. 8.16
Territorality principle …. 4.22–4.23, 7.58
subjective and objective territorality subdivisions …. 4.23

Territory
maritime boundaries and mineral resource development …. 9.43–9.44
States
defined territory of …. 4.6
independent governance …. 4.7
international law breaches …. 3.13
territorial sovereignty and scope …. 4.17–4.18
 the territorial sea …. 9.12–9.16
all ships right of innocent passage …. 9.14–9.15, 9.18

Terrorism …. 7.38, 12.27–12.30

Third generation rights …. 6.17
Third parties …. 12.6, 12.8, 12.11
Third States

State and third State self-defence countermeasures …. 11.18

treaty application …. 2.29–2.30
consensual rights/obligations …. 1.13
Third World
international law, approaches to …. 1.36
Torture …. 2.50, 6.40, 7.37
Trade (IEcL regime) …. 5.53–5.55, 8.20–8.44
equal trade conditions …. 8.31
non-WTO regulation …. 8.36–8.38, 8.41, 8.43–8.44

prohibition between hostile countries …. 8.61

trade in goods …. 8.29–8.38
trade in intellectual property …. 8.42–8.44
trade in services …. 8.39–8.41
WTO regulation …. 8.29–8.35, 8.39–8.40, 8.42–8.43
Trade wars …. 8.52
Transfer (capital and technology) …. 8.16
Transformation doctrine …. 3.4–3.5, 3.9, 3.25, 3.38

see also dualism

Transnational corporations
limited legal personality …. 4.36
Transnational crimes …. 7.35–7.41

genocide …. 7.36
procedures …. 7.56–7.76
adjudication …. 7.57–7.72
domestic prosecution …. 7.73–7.76
prosecution and enforcement …. 7.73–7.76
serious IHL breaches …. 7.39
terrorism …. 7.38
torture …. 7.37
Transnational economic (right duty) relations …. 8.14

sources …. 8.10
Treaties Council (Australia) …. 3.27
Treaty
Antarctic Treaty System (ATS) …. 5.44
bilateral and multilateral treaties …. 8.4
bilateral investment treaties (BITs) …. 8.17
breach of …. 2.35
change of circumstances and …. 2.37

custom
influence of custom on treaties …. 2.70
influence of treaties on …. 2.69
formation steps …. 2.10 fig 2.1

entry into force …. 2.14

negotiation and drafting …. 2.11
ratification, accession, acceptance and approval …. 2.17–2.20
signature, opening for …. 2.13
text, adoption of …. 2.12
treaty registration …. 2.15–2.16
IEcL source …. 8.2
international law treaty provisions
Australian Constitution …. 3.22–3.24

‘self-executing’ treaties …. 3.21

United States Constitution …. 3.20–3.21
international treaties
as law source …. 2.3–2.39
interpretation …. 2.27–2.28
invalidity of
 jus cogens norms, conflict with …. 2.33
State’s consent invalidation …. 2.32

legislative implementation …. 3.28, 3.30, 6.52

Montevideo Convention see Montevideo Convention
mutual assistance …. 7.75
in national law

Australia …. 3.27–3.36
United Kingdom …. 3.25–3.26
obligations
case summary …. 3.35
Outer Space Treaty …. 5.45
performance of …. 2.36
post-reform Australian treaty-making process …. 3.27
protecting flora and fauna …. 5.48
reservations to

example …. 2.21
limitations imposed …. 2.22
objecting to, and accepting …. 2.23–2.25
source of transnational and supranational criminal law …. 7.10
States
‘clean slate’ doctrine …. 1.13
 State consensus and …. 1.12–1.13
third State application …. 2.29–2.30

termination/withdrawal of
by agreement …. 2.34
due to fundamental change of circumstances …. 2.37
due to supervening impossibility of performance …. 2.36

following breach …. 2.35

treaty information database …. 3.27
treaty-based IEL mechanisms …. 5.65–5.66
UN human rights treaties …. 6.25 tab 6.1
examples …. 6.29, 6.33
treaty bodies …. 6.45–6.49
UN human rights treaties and treaty bodies …. 6.25–6.49
unincorporated treaties
administrative decision-making …. 3.35

common law development …. 3.34

interpretation aid …. 3.32
universal jurisdiction, treaty establishment of …. 4.28
VCLT definition …. 2.4–2.5
elements …. 2.6–2.9
Treaty bodies (UN) …. 6.45 tab 6.2, 6.45–6.49
 case summary …. 6.49
complaints …. 6.47–6.49

periodic reporting …. 6.46

Treaty on European Union (TEU) …. 8.4
Treaty on Intellectual Property in respect of Integrated Circuits …. 8.43
TRIPs Agreement …. 8.42

U
Umbrella clauses …. 8.18, 8.21
UN Charter
peaceful dispute settlement …. 12.2
self-defence codification …. 11.12
use of force prohibition …. 11.4–11.5
Caroline doctrine …. 11.23
UN Commission on Human Rights (UNCHR) …. 6.19

UN Commission on International Trade Law (UNCITRAL) Model Law on

Electronic Commerce …. 8.9, 8.54
unifying international trade law …. 8.38
UN Conference on Trade and Development (UNCTAD) …. 8.8
UN Economic Commission for Europe (UNECE)
public participation …. 5.25
UN Protection Force (UNPROFOR) …. 11.48
Unilateral declarations …. 2.38–2.39
United Nations Convention on the Law of the Sea (UNCLOS) …. 5.29,
7.40, 8.6, 9.2–9.7
addressing State rights and obligations …. 9.2
baselines …. 9.5–9.7
‘equidistant lines’ …. 9.32

measuring sea’s breadth …. 9.5

straight baselines …. 9.6
Conventions replacement …. 9.3
coverage …. 5.33
exploit resources, sovereign right to …. 5.34
key definitions under …. 9.4, 9.4 tab 9.1
marine living resources protection …. 5.49
pollution obligations …. 5.34
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) …. 2.67
United Nations Framework Convention on Climate Change (UNFCCC)
…. 5.38
United Nations (UN)
apologism versus utopianism …. 1.33
approaches
central case approach …. 1.46
 comparative standard(s) use …. 1.46
interdisciplinary approaches …. 1.37–1.43

socialism approach …. 1.47

Third World approaches …. 1.36
assumptions, critical theory questioning of …. 1.33–1.36
breach

State breach–national law compliance …. 3.12

centralisation of force use under …. 11.1
centralised authority, lack of …. 1.15
compliance …. 1.11–1.14
theories of …. 1.14
consensualism basis …. 1.12–1.13
Constitution, interpretation of …. 3.24
constitutional provisions
Australia …. 3.22–3.24

United States of America …. 3.20–3.21

decentralisation of force use under …. 11.1
definition …. 1.2–1.7
development
ILC codification/development …. 2.71
influences of national law …. 3.14–3.17
 as law source …. 2.69–2.72
different/contestable interpretation …. 1.22

domestic reception of …. 3.2–3.9, 3.18

effectiveness of
examples …. 1.51–1.56
ineffectiveness …. 1.48

State-dependant …. 1.49–1.50
empiricism offering (economic theory) …. 1.43
enforcement mechanisms …. 1.15–1.24
retorsion acts …. 1.18
self-enforcement …. 1.16
Eurocentric origins …. 1.9
external influences on …. 1.6–1.7
fact-finding, importance of …. 12.11
General Assembly …. 6.24

binding resolutions …. 2.65

UDHR instrument adoption …. 2.72
human rights framework …. 6.19–6.49
enforcement mechanisms …. 6.33, 6.46, 6.46–6.47
UN human rights agencies …. 6.24
UN human rights treaties …. 6.25 tab 6.1, 6.25–6.44
 UN human rights treaty bodies …. 6.45 tab 6.2, 6.45–6.49
Universal Declaration of Human Rights (UDHR) …. 2.72, 6.19,
6.20–6.23
international criminal law see international criminal law
international economic law (IEcL) see international economic law
international environmental law (IEL) see international environmental law

international human rights law see international human rights law

international humanitarian law see international humanitarian law
international legal system
composition …. 1.8
legal process …. 1.44
national system, interaction …. 1.25–1.28
nature …. 1.8–1.10
‘law’
authority of …. 1.56

binding quality …. 1.55

sovereign-to-subjective person command …. 1.32
the law of the sea see sea, law of the
legal personality, international …. 4.1–4.37
legislative enactment …. 3.5
national law–international law relationship
 executive action …. 3.46
‘incorporation’ …. 3.7–3.8

individual supremacy …. 3.9

interactions between …. 3.14–3.46
national compliance …. 3.10–3.13
theoretical approaches …. 3.2–3.9

‘transformation’ to national …. 3.4–3.5, 3.9

non-compliance sanctions …. 1.17
a patriarchal discourse …. 1.34
policy-oriented perspectives …. 1.45
practical application/function …. 1.44
pragmatism and …. 1.50–1.53
‘public’–‘private’ distinction …. 1.5, 1.34
relevance …. 1.53
rules

creating and ascertaining …. 1.56 fig 1.1

economic rationale (economic theory) …. 1.43
State obeyance …. 1.14
State will—positivism …. 1.32, 1.54, 3.3
Security Council
international dispute settlement, role in …. 12.13
 resolutions …. 2.64, 3.45
use of force, permission for …. 11.41–11.48, 12.26, 12.28

sources
customary international law …. 2.40–2.54
general principles of law …. 2.55–2.56
international conventions/treaties …. 2.3–2.39

international law development …. 2.69–2.72

judicial decisions/eminent publicists’ writings …. 2.57–2.62
national law as ‘source’ …. 2.54, 3.16
resolutions, general comments and ‘soft law’ …. 2.63–2.68
subsidiary sources …. 2.57–2.62
state responsibility …. 10.1–10.38
theories and methods …. 1.29–1.47
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) …. 6.14

non-binding declarations …. 2.67

use of force …. 11.1–11.48
use of force within system …. 11.41–11.48
see also International Court of Justice
United States Constitution
international law treaty provisions …. 3.20–3.21
Universal Copyright Convention …. 8.44
Universal Declaration of Human Rights (UDHR) …. 2.72, 6.19, 6.20–6.23

rights
full enjoyment …. 6.22
range of …. 6.21
soft law example …. 2.72

Universal jurisdiction …. 7.61, 7.63–7.65

Universality principle …. 4.27–4.28, 6.5
treaty establishment …. 4.28
Unjust enrichment …. 2.56

V
Veto mechanism …. 11.43–11.44
Vienna Convention for the Protection of the Ozone Layer (Vienna
Convention) …. 5.37
Vienna Convention on the Law of Treaties (VCLT) …. 5.37, 8.10

treaty
interpretation and application …. 2.27–2.30
invalidity and termination …. 2.31–2.37
‘treaty’ definition …. 2.4–2.5
‘an international agreement’ …. 2.6
‘between States’ …. 2.7
 ‘whatever its particular designation’ …. 2.9
‘in written form’ …. 2.8

W
War
adjudicating crimes …. 7.69
engagement in …. 11.20

Geneva Convention on the Protection of War Victims …. 7.3

IEcL in time of war …. 8.58–8.62
property destruction …. 8.60
protecting environment in time of …. 5.20
Six-Day War (1967) …. 11.25
terrorism …. 12.27–12.30
responsibility attribution …. 12.29–12.30
trade wars …. 8.52

use of force justification …. 11.26

war crimes …. 7.20–7.22
Water (IEL regime) …. 5.31–5.35
groundwater protection …. 5.32
watercourses …. 5.31
Watercourses Convention …. 5.31
Waters
 archipelagic waters …. 9.17–9.18
deeply indented coastlines or island fringes …. 9.6

internal waters …. 9.9–9.11

low-water line …. 9.5
as baseline …. 9.7
Women

discrimination against …. 6.36

World Bank (WB) …. 5.53, 8.11
guidelines …. 8.19
State long-term loans from …. 8.14
World Heritage Convention
case summary …. 5.52
World Intellectual Property Organization (WIPO) …. 8.43
World Trade Organization (WTO) …. 5.54, 8.8
overarching economic policy goals …. 8.22

system …. 8.21–8.28
WTO regulation of trade in goods …. 8.29–8.35
WTO regulation of trade in intellectual property …. 8.42–8.43
WTO regulation of trade in service …. 8.39–8.40
WTO system
aims …. 8.25
 competitive trade (right duty) relations within WTO …. 8.28
regulatory bodies …. 8.26

Writings
international law field, academic/jurist writings …. 2.57–2.62
Wrongful acts
internationally wrongful acts

state responsibility for …. 3.11, 3.14, 10.3–10.17, 10.4

Wrongfulness …. 11.14
circumstances precluding …. 10.18–10.28
consent …. 10.19
countermeasures …. 10.21–10.23
distress …. 10.26–10.27
force majeure …. 10.24–10.25
necessity …. 10.28
self-defence …. 10.20