1

LAWS5005

Public International Law Week 1

INTRODUCTION TO INTERNATIONAL LAW

International law is a binding regime of principles and rules that regulates the relations among

states, and individuals and other non-state entities.

The entities with the capacity in international law are states, international or intergovernmental

organisations, trans-national corporations, individuals, non-government organisations (NGOs)

Treaties are the major source of international law

Intl law is expanding in its reach

United Nations Charter Article 2(1):

Based upon the principle of the sovereign equality of all its members (all states have equal rights

and duties)

This mean that no state:

- May compel another to submit to judicial settlement of a dispute between them

- Is bound by a new international rule unless that state has consented to it

What is international law?

“The Law of Nations or International Law…is the name for the body of customary and

conventional rules which are considered legally binding by civilised States in their intercourse

with each other” (Oppenheim, 1905)

“International law comprises a system of rules and principles that govern the international

relations between sovereign states and other institutional subjects of international law” (Dixon,

2007)

How, where and why international law developed

3000 BC

Medieval Europe

15th and 16th centuries

- Rise of the nation state: some powerful states emerged (Spain, Portugal, England, France,

Netherlands, Sweden) in which internal authority became more centralised; especially in

northern Europe where Protestant revolution most influential, these states refused to

accept political authority of entities beyond themselves

16th and 17th centuries

2

- Modern IL emerged from turmoil of Europe’s religious wars of 16th and 17th centuries

Peace of Westphalia 1648

- Recognised a legal system of independent states not subject to a superior authority

- Treaties established rights of numerous small states to participate directly in international

system with only symbolic concessions to pre-modern order represented chiefly by Holy

Roman Empire

- Confirmed modern state system of independent sovereign states

19th century

- European states consolidated after Napoleonic Wars and Congress of Vienna 1815

- European balance of power also reinforced notion that IL was for European, Christian and

“civilised” states

- This was spread by European colonisation and thence to former colonies on independence

esp. in the Americas

- Unprecedented growth in negotiation of treaties, evolution of customary law and

publication of scholarly works on IL

- IL adopted a laissez faire approach to state behaviour

- States began to develop rules to regulate behaviour between each other; rules about

maritime conduct, trade and warfare

- Scope of IL broadened beyond war and peace to international cooperation in a range of

commercial and technical areas

Communications

Intellectual property

Customs

20th century

- Permanent Court of Arbitration 1899/1907

- 1919 Treaty of Versailles; League of Nations

ToV established peace after WWI

LoN a huge step forward for intl community; not open to all states but was open to

all winners of WWI and later the losers of WWII

One chapter of ToV established the Intl Labour Organisation (ILO) to improve rights

of workers around the world

Another chapter est. Permanent Court of International Justice 1921

LoN lacked power due to absence of US membership – US opposed to premise of

‘collective security’

- 1945 United Nations

A forum to which every state belongs; in which member states can draw up treaties

to deal with particular matters

UN Charter highly significant

- ICJ and other intl courts and tribunals

3

Produce judgments and advisory opinions that contribute to the body of intl law

- Many more multilateral treaties

More customary intl law (states behaving in a certain way over time which develops

into a form of obligation)

- Expansion of IL to cover individuals, IOs

Theories – is IL really “law”?

Natural law

- St Thomas Aquinas: rules of natural law are discoverable through human intelligence or

reasoning, and that reason enables man to order life according to the divine will or

objectively correct moral principles

- IL is more a “positive morality” than law because it fails the enforcement test (John Austin)

Positive law

- Laws are based on objective, ascertainable, scientific facts

- Law as a creation of power; a command of a sovereign enforced by a sanction

- Whereas natural law is said to exist above states, positivism says IL exists between (not

above) states and depends on their consent, not necessarily subject to considerations of

ethics or morality

- Less concern with what states ought to do and more with what they actually do

- IL has primary rules but no secondary rules i.e. there are obligations but no mechanism for

change or enforcement. He also notes that there is no single and/or definitive source of IL

law (HLA Hart)

Natural law gave way to the positive approach in the 19th century

Consent theory

- By consenting to it, states show that they accept intl law as law

- Problems:

It is generally accepted that any new state is automatically bound by existing

customary intl law – how does the consent theory explain this?

Certain treaties regarding as binding all states, even those not party to them

Reciprocal entitlement theory

- If one state does wrong to another, the other state can withdraw benefit/impose a penalty

in their dealings with each other

- Form of enforceability

No single, satisfactory general theory

Summary:

4

IL lacks the mechanisms of domestic law:

- No legislature – no democratic election of a law-making body

- No compulsory court jurisdiction

- New laws aren’t binding without state consent

- No police force

- Horizontal rather than hierarchical (principle of equality between states)

States generally comply because it is mutually advantageous to do so which creates

international stability (i.e. reciprocal relationship between states)

- “International law is sanctioned by habit, interest, conscience and force” (Wright, 1925)

No system of punishment like in domestic legal systems; however, there are ways in which

different states enforce their rights - e.g. ‘countermeasures’

Public perception of IL is generally shaped by the few (but very dramatic) occasions when it is

flagrantly broken/disrupted

Even when IL is broken States generally try to argue they were complying with IL - e.g. the US

justifying the invasion of Iraq by using justification of old Security Council resolution

- this supports the notion that intl law is in fact binding

INTRODUCTION TO THE UNITED NATIONS

UN formed in 1945 w/ only 50 countries

UN Charter a treaty that is binding on all members

Purposes and principal features of the United Nations system

Art 1 UN Charter:

1. To maintain intl peace and security

2. To develop friendly relations among nations

3. To cooperate in solving intl problems and in promoting respect for human rights

4. To be a centre for harmonising the actions of nations in the attainment of these common

ends

Principal organs:

- General Assembly

Main deliberative organ

Member States are equally represented, with one vote each

Members have to be voted in by GA and SC

Pronouncements on matters relating to international peace and security, human

rights, admitting new members, UN budget, peacekeeping budget – decided by

2/3rds majority

5

Other matters decided by simple majority

Resolutions not binding

- Security Council

Primary responsibility is to maintain international peace and security (Art 24)

Presidency held in turn by members in alphabetical order of their names; each

president holds office for one month

Adopts resolutions; legally binding

Art 25 UN Charter: all substantive decisions of SC are binding on members

Permanent members (UK, US, China, France, Russia) have veto powers

However an abstention won’t block a SC resolution if the requisite majority

support exists

10 permanent members; each non-permanent member has a two-year term

Voting arrangements: Art 27

Other organs of the UN can make recommendations to govts, but SC alone has the

power to make decisions which member states are obligated under the Charter to

carry out

Art 103: in the event of a conflict b/w the obligations of the members of the UN

under the Charter and other obligations, obligations under UN Charter prevail

- Economic and Social Council

- Trusteeship Council

Est. to provide intl supervision for 11 Trust Territories administered by 7 member

states, and to ensure that adequate steps were taken to prepare the Territories for

self-govt or independence

- Secretariat

Carries out substantive and administrative work of the UN as directed by the GA, the

SC and other organs

Headed by Secretary-General

- International Court of Justice

Principle judicial organ of UN; est. in 1945 by Charter

Seat of the Court is in the Hague

Role is to settle legal disputes submitted to it by States and to give advisory opinions

on legal questions referred to it by authorised UN organs and specialised agencies

Only hears disputes where states have actually consented

Composed of 15 judges (P5 always provide judges)

Intl Criminal tribunal for the Former Yugoslavia (ICTY) and Intl Criminal Tribunal for

Rwanda (ICTR) created as subsidiary bodies of SC with judicial functions

International Law Commission

- Not part of the UN but creation was provided for in UN Charter

6

- Object of “the promotion of the progressive development of intl law and its codification”

- 34 independent experts serving in individual capacity but nominated for election by their

state

7

SOURCES OF INTERNATIONAL LAW

Art 38(1) ICJ Statute:

The Court…shall apply:

(a) International conventions, whether general or particular, establishing rules expressly

recognised by the contesting states [i.e. treaties]

VCLT Art 2 treaty definition:

an intentional agreement

between states (or between a state and an intl organisation, or between

IOs)

in writing

governed by intl law

whatever its particular designation

(treaty/agreement/covenant/convention/protocol/charter)

Once in force for the parties, a treaty is legally binding on the parties and any breach

will be a violation of intl law

Binds only those states that are parties to the treaty

cf: customary intl law, which binds all states

Treaties are a source of obligation and not a source of rules of general application

May be reflective of or come to embody customary intl law

The content of a treaty obligation depends on the interpretation of the treaty; a

process governed by intl law

(b) International custom, as evidence of a general practice accepted as law [i.e. customary

international law]

Oppenheim, 1905:

Customary rules grew up by common, tacit consent of states

States dealing with each other needed some rules of intl conduct

Single usages became habitual, then obligatory

Gradually turned into custom over time as a feeling of legal requirement

grew up

“constant and uniform usage, accepted as law” (Colombia v Peru (Asylum Case))

Colombia v Peru (Asylum case) (1950)

Facts:

8

- Argument was whether there was a CIL rule permitting a state granting

asylum (Colombia) the sole right to characterise the asylee’s offence as

political

Issue:

- Whether there was a customary intl legal rule of diplomatic asylum

- Was it the right of Colombia to determine the nature of the offence and

grant diplomatic asylum

Held:

- Peru failed to est. that there was a customary rule of diplomatic asylum

- Colombia in breach of a treaty re diplomatic asylum

Reasoning:

- No customary rule because insufficient evidence of States abiding by this

practice out of a subjective belief that they had to because of a feeling of

legal obligation

- Other Latin American states’ practice not consistent with Colombia’s

practice

- Peru not bound by state practice anyway as it had also refrained from being

part of the relevant treaty

International custom = state practice plus opinio juris

State practice:

Material, objective element – repeated acts by state

Treaties, decisions of intl and national courts, national

legislation, diplomatic correspondence, opinions of national

legal advisers, and the practice of intl organisations (ILC’s

non-exhaustive list, 1950)

Policy statements, press releases, official manuals on legal

questions, executive decisions and practices, orders to naval

forces, comments by govts on ILC drafts (Brownlie)

ILC’s “Identification of customary law” – Draft conclusion 7

Forms of practice

1. Practice may take a wide range of forms. It includes both physical and

verbal actions.

2. Manifestations of practice include, among others, the conduct of States

“on the ground”, diplomatic acts and correspondence, legislative acts,

judgments of national courts, official publications in the field of intl law,

statements on behalf of states concerning codification efforts, practice

9

in connection with treaties and acts in connection with resolutions of

organs of IOs and conferences

3. Inaction may also serve as practice

4. The acts (including inaction) of IOs may also serve as practice

There is no precise length of time during which a practice must

exist; it simply must be followed long enough to show that the other

requirements of a custom are met (North Sea Continental Shelf

cases)

A practice does not have to be followed by all states for it to be the

basis of a general custom, and the practice of states with a

particular interest in the subject matter is the most relevant (North

Sea cases)

Opinio juris sive necessitas = accepted as law

Subjective, psychological element – a state’s belief that it is obliged

by law to act in a particular way, as distinct from comity or friendly

relations

Requirements (North Sea cases):

1. The acts concerned must amount to a settled practice

2. The acts must 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

Intl customary law consists of a wide range of subject matter, e.g.

Duty not to intervene in internal affairs of another state

Immunity of heads of state and certain senior ministers from the jurisdiction

of foreign courts

The prohibition of torture

Various rules re interpretation of treaties, e.g.

Art 28 VCLT: a treaty does not bind a state re any act or fact before

the treaty came into force for that state

Art 27 VCLT: can’t use domestic law to interpret a treaty

Onus lies on the state arguing for the existence of a custom

Asylum case - Colombia

cf Nuclear Weapons advisory opinion (1996)

Could not find sufficient state practice + opinio juris that the use of

nuclear weapons would always be lawful or unlawful

Custom can be universal, local or regional

10

Asylum case

Right of Passage casoe (Portugal v India) 1960

“constant and uniform practice…accepted as law by the parties as

to free passage between Portuguese enclaves”

Costa Rica v Nicaragua 2009 (fishing rights)

‘Persistent objector’ = a state may exempt itself from the application of a new

customary rule by persistent objection during the norm’s formation (unless jus

cogens)

E.g. Anglo-Norwegian Fisheries case

UK failed to protest at Norwegian use of straight baselines

Norway consistently objected to any limit on the length of such

baselines

Evidence of objection must be clear, and there is a rebuttable presumption

of acceptance

Must oppose rule from the earliest possible time, and opposition must be

consistent

Persistent objector rule reinforces the principle of state consent in the

creation of custom

‘Subsequent objector’?

Deviate from a customary rule and violate IL

But if lots of states deviate, the rule changes

(c) General principles of law recognised by civilised nations

IL may adopt certain principles from municipal law (if used by enough legal systems

around the world)

e.g. rules of procedure, good faith, res judicata [an issue decided by a court

may not be reopened], ex injuria jus non oritur [no benefit can be received

from an illegal act], unjust enrichment, estoppel, English law principle of

interpretation expressio unius est exclusio alterius [to refer expressly to one is

to exclude others]

Chorzow Factory case 1927 [the right to receive compensation – now applies

where a state has wronged another]

Intl tribunals choose, edit and adapt these elements from other developed systems;

the result is a body of intl law the content of which has been influenced by domestic

law but which is still its own creation

Equity (principles of fairness) as part of the intl system

Diversion of Water from the Meuse case (Netherlands v Belgium) (1937),

opinion of Judge Hudson

11

see also Art 38(2) ICJ statute – if the parties agree, they can ask the court to

decide a case not on the basis of law, but on the basis of ex aequo et bono

(equity and fairness)

(d) Judicial decisions [municipal and international] and the teachings of the most highly

qualified publicists [academic writings]…as subsidiary means for the determination of rules

of law

Judicial decisions can be decisions of ICJ, other intl courts and tribunals, domestic

courts, arbitral tribunals

Art 59 ICJ Statute: decisions of the ICJ have no binding force except between

the parties and in respect of that particular case

No strict doctrine of precedent, but the ICJ strives to follow its own jurisprudence

and maintain judicial consistency; employs the technique of distinguishing previous

decisions

Note ICJ statute Art 59, but there are many examples of ICJ developing new rules of

IL:

Reparation case 1949: UN has international legal personality

Reservations case 1950: rules on reservations to multilateral treaties

Nuclear Tests case 1974: effect of a unilateral act (can be binding on other

states)

Anglo-Norwegian Fisheries case 1951: drawing of straight baselines

Nottebohm case 1955: principle of real and effective nationality

“Teachings of the most highly qualified publicists”

No hierarchy between (a) and (c), but (d) is intended as ‘subsidiary means’

Cases:

Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) 2012 (ICJ)

Principle:

- “…State practice of particular significance is to be found in the judgment of national

courts faced with the question whether a foreign state is immune, the legislation of

those states which have enacted statues dealing with immunity, the claims to immunity

advanced by States before foreign courts and the statements made by States…”

- “Opinio juris in this context is reflected in particular in the assertion by States claiming

immunity that international law according them a right to such immunity from the

jurisdiction of other states; in the acknowledgement, by States granting immunity, that

intl law imposes upon them an obligation to do so; and conversely, in the assertion by

states in other cases of a right to exercise jurisdiction over foreign States”

12

SS Lotus Case

Facts:

- Collision between French and Turkish ships; both captains arrested for manslaughter

- France argued Turkey had no right to exercise criminal jurisdiction over a French national

Held:

- State practice + opinio juris had to be shown to the extent that it would demonstrate that

a state could not charge a foreign national in relation to an offence that occurred on the

high seas and outside their jurisdiction

*North Sea Continental Shelf cases

Principle(s):

A rule in a treaty can also be or become part of a custom:

1. It may be declaratory of [a pre-existing] custom at the time that provision is

adopted

2. It may crystallise custom as states agree on provision during treaty drafting process

3. It may come to be accepted and followed by states as custom in their practice after

treaty’s adoption

For a treaty provision to be or become CIL:

1. Treaty provision must be of a fundamentally norm-creating character

2. Must be widespread and representative participation in the treaty

3. Passage of short period of time not necessarily a bar

4. But in that time state practice should have been extensive and virtually uniform

5. Must be general recognition of a rule/legal obligation

Facts:

Dispute over equidistance principle of drawing maritime boundaries/claims over

continental shelf

Denmark and the Netherlands sought to invoke against Germany a customary rule

identical to art(2) Geneva Convention on the Continental Shelf (i.e. principle of

equidistance)

Germany was not a party to the Convention (had signed but not yet ratified it)

Issue:

Whether a treaty rule was binding as custom upon a non-party to the treaty

Held:

Treaty and CIL can coexist; rule of CIL (born out of state practice + opinio juris) may

develop after treaty is concluded

While there may have been evidence of state practice in the form of a number of states

being party to the treaty, it still appears that the equidistance principle not a custom

because of insufficient evidence of opinio juris - that states drew boundaries according

13

to this principle because they felt legally compelled to draw them in this way by reason

of a rule of customary law obliging them to do so

Furthermore, the fact that treaty was subject to reservations undermine its propensity

to be ‘fundamentally norm-creating’

Dissenting opinion from Judge Tanaka:

Significance of ratifications/practice varies – e.g. large maritime state v small land-

locked state

Ascertaining opinio juris from external existence of custom

Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)

Issue:

- Costa Rican subsistence fishing right: time + lack of protest by Nicaragua = customary

right

Military and Paramilitary Activities (Nicaragua v USA) (1986)

Principle(s):

Customary rule can co-exist with treaty rule

No need for ‘absolute rigorous conformity’ of state practice

But there is a need for conduct generally consistent with the rule

Facts:

Nicaragua claimed that US had used armed forced and intervened in its affairs contrary

to intl law prohibiting the use of force

US argued that the use of force prohibition is a treaty provision, to which states must

consent. The US had consented with reservations – with the effect that the US was

excluded from disputes arising from a multilateral treaty (which the UN Charter is)

Issue:

Whether customary rules applied in relations between two states when rules covering

the same ground also existed in treaties to which those states were parties

Held:

Court affirmed Nicaragua’s argument that treaty does not displace customary law

Some issues

How does new CIL evolve?

- De lege ferenda – the law as it should be, not the law as it is now

- If multiple states decide a rule it is not satisfactory, their practice which is contrary to the

rule will initially be a violation of IL, but if it is acquiesced to by other states, it becomes a

new rule of CIL

14

Inconsistency between treaty and custom, or two rules from the same source?

- Apply sensible rules of interpretation that apply to ML as well as IL

- If there were two conflicting rules of CIL, common sense approach also applies – and the

more recent rule will displace the earlier

- But in theory, there is no hierarchy of rules of IL

The role of UNGA (United Nations General Assembly) resolutions:

- There have been major resolutions relating to the prohibition on the use of force

- Resolutions can have binding effect – e.g. Namibia advisory opinion (1971)

UNGA’s resolution effectively terminated the apartheid mandate in Namibia

- But generally not legally binding (unlike UNSC resolutions)

- (Voting; speeches) accepted as evidence of state practice and opinio juris either of existing

CIL or contributing to its formation – e.g. in Nicaragua case 1986, Nuclear Weapons opinion

1996

Nicaragua case: US’ use of force/wrongful intervention in Nicaragua court looked

to resolutions passed in 1970s and 80s elaborating what constitutes an unlawful use

of force (e.g. supporting rebel forces); relied on those resolutions as est. state

practice and opinio juris

Nuclear Weapons opinion: the court also looked to UNGA resolutions for evidence

of state practice and opinio juris

- Some argue they can create “instant customary law”

e.g. rules re outer space developed in the mid-20th century

Most agree there is no such thing as instant CIL

- Considerations apply to UNGA and any other IO of universal membership

- See also ILA Report 2000, pp. 54-66 – view on UNGA resolutions

What is “soft law”?

1. Written instruments that spell out rules of conduct that are not intended to be legally binding

(e.g. UNGA resolutions), OR

- A misnomer – not law, but can elaborate on the meaning of a rule of IL

2. Binding but vaguely worded or inchoate instruments (e.g. World Heritage Convention 1972)

Note: they are not subject to the law of treaties and do not generate the opinio juris required for

them to be state practice contributing to custom

International Law Commission (ILC) work

Codification and progressive development of IL (UN Charter Art 13)

Suggests how ILC law should develop

No formal legal binding effect, but their work is highly influential because of:

15

1. The standing of those who comprise the ILC (independently elected and acting in an

individual capacity)

2. Their method of work (they survey state practice in great detail)

3. Their articles are drafted as if they are to become treaties, and the intl community then

decides what to do with them; those draft articles are still of great influence even if they

are not given formal status

Jus cogens

Peremptory norms proscribing conduct that is fundamentally unacceptable to the intl community

- “Peremptory norms of IL from which no derogation is permitted”; “a body of supreme or

‘constitutional’ principles” – Cassese

- Concept born out of developing nations’ desire not to be bound by treaties that

contradicted fundamental rules of IL

- These norms trump any ‘sources’ of IL (treaties, CIL etc.)

Concept is of long standing – e.g. Oppenheim 1905 noted that “immoral” or “illegal” obligations

could not be the object of a treaty:

- Immoral (e.g. to attack a third state without provocation) – such treaties were not binding

- Illegal (e.g. to commit piracy) – [“obligations … at variance with universally recognised

principles of IL”] – treaty would be “null and void”

But term itself originated in treaty law, during negotiations for the 1969 VCLT: ‘a treaty provision

that violates a jus cogens norm is void’

No definition/agreed list, but includes e.g. prohibitions of aggression (use or threat of force),

slavery, genocide, apartheid, torture, piracy and the right to self-determination (only positive

peremptory norm)

- Persistent objectors cannot oppose peremptory norms

- If a CIL competes with a peremptory norm, it cannot apply

What is the effect of a jus cogens norm being violated?

- Under the rules of state responsibility, other states under a duty not to recognise the

violation

Unilateral acts

Unilateral acts can bind a state – a certain individual can bind a state simply by an individual act:

- Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ Rep Ser A/B No. 53

Status of a declaration given by the Minister of Foreign Affairs

16

Foreign Minister of Norway, in the context of post WWII negotiations over territory,

said to the Danish representative that Norway would not try to claim Eastern

Greenland, but later they did

ICJ stated that Norway was bound by this promise

- Nuclear Test cases (Aust/NZ v France) [1974] ICJ Reps 253

Aus and NZ complained about France’s testing of nuclear weapons near their

territory

Declaration by French President that there would be no more atmospheric nuclear

test - was there an intention to give a legal undertaking when the statement was

being made?

Court understood this as binding France, but the case was moot

- Armed Activities (New Application: 2002) (DRC v Rwanda) [2006]

Counsel for Rwanda; statement of intention to withdraw reservations

- Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v

Senegal), ICJ

Belgium had heard rumours that Senegal was going to release Chad’s dictator; went

to court to get urgent order that Senegal must keep him in custody

Counsel for Senegal said they would not release him; Court considered this

statement binding on the state

- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-

Leste v. Australia) (March 2014)

- ILC Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating

Legal Obligations (2006)

17

Week 2

THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC

LAW

Effect of municipal law (ML) on IL

- State practice (Art 38(1)(b) ICJ Statute) and general principles (Art 38(1)(c))

Monism and dualism

Monism = only 1 legal system to which both PIL and ML are a party

- IL applies automatically in domestic legal order; prevails over inconsistent ML (e.g. intl

human rights law says no person may be imprisoned without trial and ML says otherwise)

- In practice, monism means that state should ensure national rights and obligations conform

to IL and if they do not, IL should prevail

- Many European jurisdictions (e.g. the Netherlands) approach treaty law and customary IL

from a monist perspective – treaties are given direct effect; are supreme over domestic law

New states or new Constitutions often provide for how IL is to be incorporated

Dualism = PIL has no direct impact on ML and must be implemented through executive order /

legislation / judicial decision

- Il and national legal systems distinct and independent

IL = collective will of sovereign/states; ML = will of sovereign/state

IL law is b/w states, national law is within states

- IL cannot invalidate ML and vice versa

- IL not automatically part of ML; to apply domestically, IL must be adopted or transformed

into ML

Effect is that govt may be acting lawfully within its own territory even though in

breach of intl obligations (e.g. violating HR obligations)

- Australia = a dualist State following the transformation doctrine re treaties and probably

also re customary international law

A third way?

- Separate systems of law

- Similar to dualist theory in effect by less theoretical

- IL and ML deal with different subject matter (cf monism and dualism which say IL and ML

deal with the same subject matter)

- IL and ML do not operate in the same sphere

- IL and ML are separate systems of law, so never contradict each other

18

- Any conflict (e.g. IL says no person may be imprisoned without trial and national law says

otherwise) is resolved like any conflict of laws by the rules of the particular court

Doctrines of incorporation and transformation

More relevant in practice is which approach is followed in ML – incorporation or transformation

The doctrines of incorporation and transformation determine whether – and if so, how –

national courts will apply IL in any given case

- Incorporation: rules of IL automatically a part of ML w/o need for express adoption by local

courts or legislature

‘hard’ variant = courts to apply PIL unless inconsistent with statute or common law

‘soft’ variant = courts to apply PIL unless inconsistent with statute only (i.e. prevails

over common law)

- Transformation: IL must be transformed into ML by being expressly adopted by the local

courts; IL not ipso facto part of ML and requires deliberate act by the state

‘hard’ variant = only legislation may transform

‘soft’ variant = either legislation or judgments can transform

Some correlation b/w theories of monism and dualism and doctrines of incorporation and

transformation, but not always

- e.g. UK case is a dualist state but follows an incorporation approach to CIL

And practice not always consistent

- R v Jones (UK): intl crime of aggression not automatically a crime in UK law even though

incorporation theory accepted in principle

Often a distinction b/w custom and treaty rules

- UK and Aus follow transformation approach to treaties

The contents of the treaties have to be implemented in ML by legislation

- UK (generally) follows incorporation approach to customary rules

- Aus (probably) follows transformation approach to customary rules (e.g. Nulyarimma v

Thompson) but ‘soft’ transformation approach not clearly endorsed

Trendtex Trading Corp v Central Bank of Nigeria [1977] – UK position

Principle:

- Incorporation approach accepted; i.e. custom can form part of domestic law

Facts:

- P = Trendtex, Swiss company selling cement to English company with which D had

contracted; D = Central Bank of Nigeria

19

- P claimed against D for payments due in respect of the Bank’s breaches and repudiation

of letters of credit

Issue:

- Whether Nigeria has immunity before UK courts

- Whether doctrine of precedent applied to CL rules which incorporated PIL rules, so that if

there were a change in PIL, it could only be recognised by courts as part of CL w/in the

limits of stare decisis.

Majority held:

- Lord Denning strayed from his previous decision and ‘transformation approach’ in Thakar

to the ‘incorporation approach’

- Under the incorporation approach, domestic law changes as the rules of international law

change

- Shaw LJ and Denning: exception to the doctrine of stare decisis = Court could apply new

rule of PIL even if it were to the contrary of the old rule used in an earlier decision. Stare

decisis did not apply.

Chow Hung Ching v R (Aus)

Principle:

- Rejects incorporation approach

Facts:

- 2 Chinese who assaulted/detained a local in PNG. Appeal against the convictions on the

grounds that Supreme Court of PNG didn’t have jurisdiction to try the charges because

the offences were committed by members of an armed force of a friendly foreign power

admitted to PNG w/ consent of Cth and under govt. of Cth.

Issue:

- The extent of immunity in the case of visiting armed forces

Latham CJ:

- [17] legislation provides that authorities of vising forces should have jurisdiction over

their members in relation to discipline/internal administration but nevertheless local

jurisdiction should be preserved of local courts

- Concluded that accused were not members of armed force of China, ergo, objections to

the jurisdiction of the court should not be sustained

- [13] Int. law is not a part of the law of Aus; but a universally recognised principle of int.

law would be applied by our courts

Dixon J:

- Principle of immunity from local jurisdiction asserted in favour of members of a foreign

military force; bring their own military law = said to form part of the law of nations

- In Australia, ‘the law of nations (in regard to questions of jurisdiction) is adopted by the CL

and is held to be a law of the land.’

20

- The theory of Blackstone (automatic incorporation) is ‘regarded as without foundation’

and the ‘true view’ is that of Brierly ‘that international law is not part, but is one of the

sources’ of Australian law.

- Immunity of foreign armed forces held to be part of common law

Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014]

Facts:

- Bikie consorting case – two of the Ps pleaded that the state law contravened the ICCPR

rights of freedom of association

Results:

- Four justices dismissed claim

- French CJ: Aus is a dualist state; ICCPR has no effect as it has not been implemented

Influence of international law on Australian law

Treaties clearly not part of ML unless implemented by domestic legislation: Teoh (1995)

- NB: implementation = making IL obligation part of ML; ratification = binds the state to

comply w/ treaty

But legislation must be interpreted as far as possible so as to conform with IL: Polites (1945)

IL can influence the development of the common law: Mabo (1992)

Customary international law

- Does not automatically form part of domestic law, but may have an indirect effect e.g. by

influencing the development of the common law, and through statutory interpretation

Statutory interpretation

- In the absence of express words to the contrary, legislation should be interpreted subject to

Australia’s international legal obligations

- Courts will not impute to the legislature an intention to abrogate or curtail fundamental

rights or freedoms unless intention clearly manifested by unmistakable and unambiguous

language

- Principle of statutory interpretation that: “every statute is to be so interpreted and applied,

so far as its language admits, as not to be inconsistent with the comity of nations or with the

established rules of international law” - Latham CJ in Polites

- This is in part because : “There is a presumption that the legislature does not intend to

violate by a statute any established rule of international law” – McTiernan J in Polites

- Where a rule of IL arises through a treaty to which Aus is a party, rather than a rule of CIL,

position not clear

21

Chu Keng Lim v Minister for Immigration:

“courts should, in a case of ambiguity, favour a construction of a

Commonwealth statute which accords with the obligations of Australia

under an international treaty” [i.e. same as a rule of CIL] - Brennan, Deane

and Dawson JJ

Teoh:

BUT subsequently clarified as being limited, probably, to cases where “the

legislation is enacted after, or in contemplation of [Australia becoming party

to] the relevant [treaty]” - Mason CJ and Deane J

Constitutional interpretation

- Debate as to whether same approach to statutory interpretation applies to the Constitution

Coleman v Power

Facts:

- P a public speaker; argued his right of free speech had been infringed when he had been

charged with using offensive language

Results/reasoning:

- Kirby J:

“the principle of statutory construction that where words of a statute are

susceptible to an interpretation that is consistent with international law, that

construction should prevail over one that is not” [240]

- Gleeson CJ:

Acknowledged the principle that courts should, in a case of ambiguity, favour a

construction of a Commonwealth statute which accords with the obligations of

Australia under an international treaty, but implicitly agreed with those

formulations that confined it to:

Legislation enacted after the treaty was entered into, or

Legislation enacted in contemplation of Australia becoming a party to the

treaty, or more narrowly

Legislation intending to give effect to the treaty

- Gleeson CJ rejected the suggestion that the 1966 ICCPR (in force for Australia 1980) could

influence the interpretation of a 1931 statute – particularly a State statute

- Kirby J replied that:

“The suggestion that the meaning of the Act in question here is forever governed

by the ‘intention’ of the legislators who sat in the Queensland Parliament in 1931

is not one that I would accept.” [245]

i.e. statute should be read and interpreted as of today, not 1931: “This Court

must keep pace with such changes in doctrine, not rest on its legal laurels” [249]