International Law Problem Exam - International Law

Treaties 5

Requirements for a valid treaty 5

Formation and application of treaties 5

Concluding a treaty: signature and ratification 5

Reservations to treaties 6

Rules for treaty interpretation and application 7

Reasons for invalidity of treaties 7

Consent was not valid 7

There is an error in the treaty 8

The treaty came about through fraud, corruption or coercion 8

It conflicts with a norm of jus cogens 8

Consequences of invalidity 8

Right to withdraw from treaties 8

Grounds for terminating a treaty 9

Material breach of terms 9

Supervening impossibility of performance 9

Fundamental change in circumstances 9

Grounds under the treaty itself 9

NOT grounds for terminating 9

Consequences of termination 10

Consequences of the suspension of the operation of a treaty (VCLT Art 72) 10

Customary law 10

Creation of custom 10

State practice 10

Opinio juris 11

Crystallisation of treaty 11

Objection to a rule of custom 11

Rules for conflict between norms 11

Jus cogens 12

Relationship between municipal and international law 12

National law operating in the sphere of international law 12

International law operating in the sphere of national law 12

Requirements for implementation of IL 12

Unincorporated IL not binding in Australia 12

Indirect application of IL in Australian law 13

Personality, statehood and recognition 13

States 13

Equality of states 13

Criteria for statehood (Montevideo convention), legality and recognition 13

Were the criteria achieved lawfully? 14

Recognition by other states 14

NGOs, transnational corporations, individuals: see theory notes 15

Public international organisations 15

To what extent does [X organisation] have legal personality? 15

Territory and sovereignty 15

Sovereignty of states 15

Does the territory in question belong to the entity/state claiming it? 15

The entity claiming must be a state 15

Traditional methods [all still applicable except conquest] 15

Modern approach to sovereignty [consider in addition to occupation/prescription etc] 16

Competing claims to territory 17

State jurisdiction to pass and enforce its municipal law 17

Enforcement jurisdiction 18

Territorial jurisdiction 18

Nationality jurisdiction 18

Protective principle/effects doctrine 19

Passive personality jurisdiction 19

Universal jurisdiction 19

State immunities from municipal jurisdiction 20

Immunity of the state itself 20

Test for whether a state itself is immune 20

Immunity of individuals acting in state capacity 20

Test for whether an individual is immune 20

Diplomatic immunity 22

Does [X] enjoy diplomatic immunity? 22

Is [event/thing/act] covered by diplomatic immunity? 22

What are the obligations of the receiving state and the diplomat? 22

State responsibility 23

Has an international obligation been breached? 23

Was there damage to another international subject caused by the act? 23

Can the act be attributed to the state? 23

Organs of the state 23

Persons or entities exercising governmental authority 24

Non-state actors/individuals under the direction/control of a state 24

Non-state actors/individuals exercising governmental authority in the absence of official authorities 24

Acts of an insurrectional movement that forms a new government/state 24

Adoption of private conduct 25

Private individuals (without adoption by the state) 25

Other situations 25

Are there circumstances that preclude the wrongfulness of the act/omission? 25

Consent 25

Self-defence 25

Lawful countermeasures 26

Force majeure 26

Distress (relating to danger to individuals) 27

Necessity (relating to danger to state itself) 27

Fault (aside: only address if relevant) 27

What consequences will flow from the wrongful act? 27

Cessation 28

Reparation (including restitution, compensation and satisfaction) 28

The Use of Force 28

Use of force prohibited under the Charter 28

Effectiveness? 28

Was there/will there be a threat or use of force by [X] within the meaning of Art 2(4)? 28

Threat of force 28

Use of force 29

Did [X] use/threaten force lawfully within one of the exceptions to the prohibition? 29

‘Collective security’ exception: action by the Security Council 29

Self-defence 30

Fragmentation 32

International human rights law 32

Has there been a breach of [X]’s human rights? 32

What is the consequence of the breach? 33

International trade law 34

Most favoured/national treatment rules 34

Rules [choose which applies] 34

Are the products ‘like products’? 35

Technical regulations must not create unnecessary barriers to trade 35

Intellectual property rules under TRIPS 35

Dispute settlement process in the World Trade Organization 35

Request for consultations 35

Dispute panel 36

Appellate Body 36

Formally adopted by Dispute Settlement Body (member states) 36

International criminal law 36

Core international crimes 36

Genocide 36

Crimes against humanity 36

War crimes 37

Aggression 37

Problems with enforcement 37

Law of the sea 37

Sea zones and rights 37

Territorial sea: 12 nautical miles from coast 37

Contiguous zone: 12-24 nautical miles from coast 38

Sea bed: continental shelf or exclusive economic zone of up to 200 nautical miles 38

High seas: all other areas 39

International dispute resolution 39

States are required to settle disputes peacefully 39

Non-judicial settlement of disputes (not limited to states) 40

International Court of Justice 40

Jurisdiction of the ICJ 40

Third states in contentious litigation 41

Advisory Opinions 41

Enforcement of ICJ judgments 42

A treaty is an international agreement (generally written) between two or more states to be bound by certain rules. They are governed by international law.

• may be in a single instrument or two or more related instruments: Vienna Convention on the Law of Treaties (VCLT) Art 2(1)(a).

The VCLT which regulates written treaties is recognised and applied as articulating custom in most respects.

The parties must have an intention to create rights and duties enforceable under IL. Intention is judged objectively from the nature and content of the agreement and surrounding circumstances.

Qatar v Bahrain: the ICJ found that an exchange of letters containing clear written rules contained an objective intention to create enforceable rights and obligations to create a treaty.

Examples of treaties

• Written instrument

• Binding oral agreement

• Exchange of letters: Qatar v Bahrain

The ICJ has held that unilateral and oral statements made by government officials can create obligations for states (see, eg, Nuclear Test cases/Legal Status of Eastern Greenland). However, it is most likely that a unilateral statement is not a treaty, but that it creates treaty-like obligations.

• Legal Status of Eastern Greenland case: a declaration by the Norwegian foreign minister not to interfere in a Danish claim to Eastern Greenland was held to be binding, although Denmark offered to raise no objection to a Norwegian claim to other territory in return.

• Nuclear Test Cases: the ICJ held that the French president’s statement that the current series of atmospheric nuclear tests would be the last was a binding obligation not to conduct any more tests. It was binding because it was made publicly and with intention to be bound, despite not having been made within negotiations. So intention to be bound is the critical factor in deciding whether an oral, unilateral statement will be binding.

• A statement not addressed to any particular recipient is unlikely to create binding obligations (Frontier Dispute case).

• A unilateral statement in terms that are not sufficiently specific is less likely to create binding obligations (Armed Activities on the Territory of the Congo)

Drafting: The text of a treaty must be adopted by a two-thirds majority of all states participating (VCLT Art 9). Once adopted, the text is authenticated as the Final Act incorporating the text (VCLT Art 10).

Concluding a treaty involves a two step-process of signature and ratification.

Signature

Every state has the capacity to conclude treaties (VCLT Art 6).

Representative must have power to conclude

Representatives signing must have ‘full powers’ to conclude a treaty on behalf of the state or must be considered as having full powers by virtue of their representation of the state (VCLT Art 7).

• If concluded by an unauthorised person, the state may nonetheless confirm the treaty (VCLT Art 8)

Effect of signature

Upon signature, the signing state is usually not fully bound (however, some treaties may be binding upon signature or by other method: see VCLT Arts 11-16). Instead, signing signals an intention to be bound at some future point. Signatories have only one obligation at this point, which is an obligation not to undermine the object and purpose of the treaty (VCLT Art 18).

Ratification

On ratification, the parties are legally bound by all provisions. Ratification in Australia is done by the Executive, and the treaty provisions do not enter domestic law until the parliament passes legislation.

A reservation is a unilateral statement of a state, made when signing, ratifying, acceding to or otherwise accepting a treaty, which purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (VCLT Art 2).

• Reservations must be in writing and communicated to the contracting states (VCLT Art 23).

• Reservations may be withdrawn at any time with notice to the other parties unless the treaty otherwise provides (VCLT...