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LL4050/LL5050/LL6050/LC5050 

PUBLIC INTERNATIONAL LAW
   2013/2014, Semester 2
   Law (Law)
Modular Credits: LL4050 ( 4 ) / LL5050 ( 4 ) / LL6050 ( 4 ) / LC5050 ( 4 )
  Tags: --

Learning Outcomes

TopThis is a basic course in public international law. Its aim is to provide an understanding of the general principles of international law.

Prerequisites

TopThere are no prerequisites

Teaching Modes

TopThere will be a lecture followed by a student exercise. The outline of the lectures will appear in the section : "Syllabus".

Syllabus

TopPUBLIC INTERNATIONAL LAW
 
AN INTRODUCTORY COURSE
 
M Sornarajah, LLB (Ceylon), LLM (Yale), LLM,  PhD, LLD (London).
 
CJ Koh Professor of Law, National University of Singapore.
Visiting Professor, Centre for Human Rights, London School of Economics.
 
 
We shall study public international law in the context of events taking place around us in the modern world. Every class will centre on a particular topic but during and after a lecture on the conventional principles and theoretical controversies around the subject, we shall look into how the area that we have learnt has relevance to the events around us. We shall look at it in the light of the different theoretical approaches to the field. The dominant, positivist approach that is prevalent in English law schools and in English texts concentrates on revealed rules of the law. The dominant American school looks at international law largely through what American scholars, particularly those at Yale Law School, regard as rules, being constantly in a state of flux, designed to achieve the policy objectives of the international society. The study of these rules would require a constant understanding of the community objectives articulated by a variety of actors within the international community, including you and me, but more obviously, states, leaders of states, protest movements, multinational corporations, non-governmental organizations like Amnesty International and the World Wildlife Fund, etc. The third is a movement to which I am supposed to belong. It looks at international law as a hegemonic construct, which is resisted constantly by the poorer and weaker countries of the world. This school looks at international law as an instrument through which the interests of the hegemonic states are articulated and how they are resisted. Again, the law is kept in a state of flux until the conflict is resolved. A fourth is an old notion that international law contains the essential wisdom of humanity and constitutes a law higher than all law made by states. To this law, all man-made laws must conform. This is referred to as the natural law theory, again a deep theory with many variants. This list of theories is not exhaustive. There are several other theories, which we shall not look at, sticking to these principal ones.
 
You may be daunted by the task of having to cope with these different approaches. I studied international law in the UK, US, Germany and Asia. I have been exposed to the four approaches. Every legal academic, like others, is the sum total of his or her experiences.  Since you are studying the subject with me, you will have to appreciate the prejudices that I carry and make up your own mind as to which approach is correct. You must be bold to form and state your views in class. That, I hope, should be fun. Credit will be given for the boldness with which you state your own views in class and in writing.
 
It is not good to study international law as a set of rules when we can see the world in constant chaos. We also see great controversies and great people confronting them.  International law is about such movements and such men and women who deal with them.
 
We shall use as the text for the course,
 
Martin Dixon, Textbook on International Law (7th Edition, Oxford University Press, 2013)
 
Since this is an introductory course, I am not prescribing a case-book. But, the case-book that goes with this text is: Martin Dixon, Robert McCorquodale and Sarah Williams, Cases and Material on International Law (5th Edition, 2013). You may wish to read the cases that are mentioned in class in this case-book.
 
 
 
LECTURE ONE
 
14 January 2014
 
IS INTERNATIONAL LAW REALLY LAW?
 
So, let us begin with the hackneyed question with which all English texts begin the subject: “Is International Law Really Law?” This enables the exploration of the characteristics of international law.
 
  1. English positivism of John Austin (The Province of Jurisprudence Determined (1836), the dominant 19th century English view of the law, saw law as a series of commands of the sovereign enforced through sanctions in the event of a breach. It distinguished between law and morality.
 
  1. International law lacked a sovereign (the UN having few enforcement powers, the Charter, the Security Council powers), a compulsory system of courts (the International Court of Justice does not have compulsory jurisdiction) and violence and wars take place frequently. (Iraq, Libya, Syria, Sudan etc.).
 
 
  1. International law largely constitutes moral prescriptions. Its most significant purpose is the restriction of the use of force.But, it has consistently failed in this endeavour. Recent wars in Iraq and Afghanistan, are based on faulty premises. So too are interventions in Libya. Areas of the world like Syria pose issues which seem insoluble through international law.  The explanation of  the realist theory in international relations. EH Carr, The Twenty Year Crisis (1938  ) Hans Morantheau, Politics among Nations (1948 and subsequent editions). Law cannot restrain hegemonic powers from pursuing national interests. Modern parallels can be found in writings of Eric Posner of HLS.
 
  1. International law in the eyes of the positivist becomes a system of auto-limitation. States voluntarily restrict their sovereignty in order to serve their national interests. On this account, the important sources of international law are treaty and custom. Treaty, because it is a voluntary instrument. Custom, because states voluntarily follow a custom.
 
  1. Some would divide international law into a law of cooperation and a law of conflict. It is easy to find reasons why states obey a law of cooperation. Such a law facilitates necessary international intercourse. Eg. The Universal Postal Union; ICAO, IMO, WHO, WMO. Such interaction takes place in the context of international organizations. Separate regimes result to order activities in these different sectors of international activity. The regime theory of law. Problem of fragmentation.
 
  1. In the law of conflict, there is deficiency. International law suffers in comparison with domestic law. There is no enforcement authority as there is no sovereign within the international community. The UN Charter. The enforcement structure is weak. The Security Council. Veto power of the permanent members. The International Court of Justice has only optional jurisdiction.
 
  1. Others seek to move focus away from enforcement. The demonstration of the existence of an international community, particularly in the globalized world of intense interaction. The increasing need for regulation of activity. Where there is a community, there must be law.

      8. In the globalzed world, contractarian and communitarian views seek common values, particularly in addressing issues of trade, development, environment, human rights and poverty.

       9. The role of power. Hegemonic international law. Does the hegemonic power use international law to project its power on the rest of the world? Is international law then an instrument of power? Will there be resistance if power is the basis of international law?

     10. Is international law Eurocentric?  

     11. International Law in a Multipolar World: The impact of the rise of China and India. Problems of the region, particularly, the South China Sea.
 

9.Natural law theory. International law as based on natural law. The German Border Guard Case. The idea that it applies uniformly around the world..



LECTURE TWO

THE SOURCES OF INTERNATIONAL LAW


 

  1. The sources of international law are conveniently set out in Article 38(1) of the Statute of the International Court of Justice as (a) international conventions, whether general or particular (ie. treaties, multilateral or bilateral) (b) international custom (c) general principles of law recognized by civilized nations (d) judicial decisions and teachings of the most highly qualified publicists “ as subsidiary means for the determination of rules of law”.


 

  1. Custom: The early source of all law. Some would say the importance of custom demonstrates that international law is at a primitive stage.


 

  1. As in early legal systems, custom has two components: continuous practice, which is its outward manifestation and an opinio juris or an acceptance that there is an obligation to follow such practice.


 

  1. A custom can be made by states acting bilaterally or multilaterally. But a unilateral act of a state also could create custom if it is followed by a large number of states. Eg. the Truman Proclamation on the Continental Shelf (1946).


 

  1. Custom is related to power. It is obvious that the practice of the more powerful states has the greater chance of being accepted as custom.


 

  1. It is generally accepted that a custom is not binding on a state that is a persistent objector to that custom as it grew. Asylum Case (Harris, 18); Anglo-Norwegian Case (Harris, 327); The North Sea Continental Shelf Case (Harris 21).


 

  1. The acceptance of the persistent objector rule indicates that custom cannot be formed without the consent of states. It fits in both with the traditional positivist position in international law as well as with the position of the communist states that international law cannot be made without the consent of states.


 

  1. The Continental Shelf Case (1969) demonstrates the relationship between a multilateral treaty and custom. When a multilateral treaty (like the Law of the Sea Conventions, 1958) is made, the chances are that it codifies existing customary international law or practice in reliance of it creates custom. In order to make international law faster, some international lawyers promote this technique. See judgment of Sorensen in Continental Shelf (Harris, 26).


 

  1. Instant customary international law. Bin Cheng. Space law. General Assembly resolutions. In many areas of current international law, this thesis would hold and it can be argued that when a General Assembly resolution receives near unanimous support, it becomes or is on its way towards becoming international law.


 

  1. The voluntarist or positivist nature of international law is said to appear from the manner custom has been stated. But, this is belied by the existence of ius cogens principles, which are said to bind all states, whether consenting or not.


 

  1. Treaties: Multilateral treaties create law if they contain principles stated in the form of law. The United Nations Charter is the obvious example. Bilateral treaties create law if they contain principles and these principles have been consistently repeated in a network of treaties which cover the world. Bilateral investment treaties are regarded by some as creating international law in this manner.


 

  1. General Principles of Law: The assumption is that if a proposition is contained in the major legal systems of the world, that proposition could be elevated into a principle of international law. This is heavily contested. For one thing, it goes against the voluntarist or positivist view of international law. It is permissive of judicial law-making and is therefore resented by particularly socialist scholars.


 

  1. The unfortunate and continuing association with the legal systems of “civilized nations” indicates the imperial history of the source that excluded the inconvenient systems other than those of Europe. The use of it has thus far been on the basis of such selectivity.


 

  1. On the basis of general principles, the rules recognized so far demonstrate this selectivity. Eg. estoppel, the binding nature of contracts for resources, the mandate as a sacred trust of civilization, following the English notion of trust.


 

  1. The Subsidiary Sources: Judicial Decisions and the Writings of the Most Highly Qualified Publicists. No binding precedent in international law. The role of writers is diminishing.


 

  1. Other Sources: Regime creation. Eg. WTO; WHO; international investment law; interaction among officers and international cooperation. Transnational law. Is there a substratum that operates invisibly.

LECTURE THREE 


RECEPTION OF  INTERNATIONAL LAW IN MUNICIPAL LAW
 
1. There are two approaches
 
-Monist approach
-looks upon international law as a superior system that automatically becomes part of domestic law.
 
The moment there is an international law that becomes part of international law because of the belief that municpal law is a  recipient of these principles. This is an AUTOMATIC INCORPORATION
 
-Constitution of some of the countries accept this belief
Eg basic law Article 25 – Germany
-monist ideas therefore have been received into the constitution of Germany.
 
German Border Guards Cases.
 
 
 
 
2-Dualist  Approach
 
-works on the premise that international law and municipal law are two distinct systems
And that Municipal law only receives International law throuh a direct mechanism . A transformation  of
an international law principle into domestic law by legislation should take place.
 
Therefore International law is a system that operates between states.
And municipal law operates within states.
 
 
The FIRST theory can be seen as flowring from a natural law traditon
And the SECOND can be seen as flowing from  the positivist tradition recognisng the sovereignty of a state as above all
 
English law position:-
In English law it is important to make a distinction between sources when deciding whether as Internatioanl Law principle prevails. This is because of the English’s attitude towards treaty law  is different.  Also at different historical periods, English courts took different stances..
 
 
 
 
2-Treaty and Custom
In English practice – treaties were only made by  the executive through the exercise of the royal prerogative. And it is so in Singapore as well.
 
 
Treaty is made by the executive which cannot make laws in England. So should it become law?
 
 
I Customary International Law
-We start of with Somerset’s case (1772). English law does not recognize slavery.
 
Few years earlier (1764) the same  judge, Lord Mansfield decided
Triquet v Bath
The issue there was whether a manservant of a diplomat was immune from prosecution for injury caused. Lord Mansfield averted to the existence of a practice in Europe that immunity be extended to diplomatic employees . He said this was an international law principle and that therefore it is automatically incorporated into domestic law.
 
R v Keyn 1876
We see the Enlgish court making a change to this doctrine. By the 1830s Austin had formulated his positivist  view that law emanated from sovereignity. This had become the entrenched notion in English law.
 
A ship commanded by a German colliding with an Englsih vessel two miles off British coast in the collision a British citizen died,
-issue was whehter the captain could be tried for manslaughter in the old days no right of sovereignity over the sea existed only over land , and that jurisdiction stopped at thelow watermark of the coast
-The crown argued there was a customary principle of international law that extended sovereignty of a state over the sea, up to three miles. So the contention of the Crown was that international law had changed.
 
The  QBD was divided  (7   to 6). It held that even if there was a customary law, it must be introduced into English law by statute.
 
 
Return to old law ? Trendtex v Central Bank of Nigeria.
 
The Trendtex decision signalled a change from earlier English law on sovereign immunity.
No longer did the law of absolute immunity of a state hold true, the case decided that a state could not only be a defendant but an agency of a state could also figure.
-The Trentex decision achieved this result by making the distinction between commercial and administrative actions
 
 
What is the implication of Trendtex?
-It signified a change from the earlier law on sovereign immunity
 
What is the implication of this change?
-Clearly the courts had made the change, because in R v Mills (1995) the same issue arose.
The facts of the case were that there was a vessel called Poseidon registered in the West Indies, delivering a shipment of cannabis to a fishing boat originating from Cork 100m off the English coast.
The fishing boat purposefully went into the high seas. The British naval vessel, The Avenger, kept the two vessels under surveillance and had “pursued” the Poseidon through a surveillance device for two days.
They argued for an international principle of “hot pursuit” meaning that if you were in pursuit of a ship, even into the high seas – you could arrest it.
-However there was NOTHING to show that English law subscribed to this principle.
Ultimately it was decided that since this principle could be proven as being part of international customary law it applied in England as well
 
What are the implications of the Mills decision?
-That the law of England could be made outside England. This was an anathema to constitutional lawyers. It meant that international principles could be shaped entirely outside England, thus disproving the concept of total parliamentary sovereignty.
 
-Moreover it decided that the doctrine of precedent did NOT prevail in international law. Otherwise Trentex would never have been decided.
 
But a crime cannot be created through customary international law.  R  v Margaret Jones (2006); The Pinochet Case.
 
POSITION IN SINGAPORE
 
-The only case which has considered this issue is that of Eddie Taw (1998)
-The facts of the case were that there was a defendant who was an employee of the Singapore Investment Corp in Hong Kong. While there he, in conspiracy with a citizen of HK, bought shares in Australia and HK companies as a result of a bribe by the native of Hong Kong. His task was to invest funds for the benefit of Singapore but he neglected to do this by proving himself corruptible.
-He was tried under the Corruption Act.
BUT
He argued that this did not apply extra territorially. i.e. legislative power of Singapore parliament did NOT apply to Hong Kong
 
-He claimed that once Singapore became independent it was to have all the powers of Malaysia parliament, but the section relating to extraterritorial powers was left out
-As such extra territorial powers were NOT conferred on Singapore.
 
The AG argued that Singapore being an independent state should have all the powers given to states as a matter of international law, because it is necessary for all states to have such powers to protect themselves from crime
A very simple Natural  law (Monist) argument.
 
BUT that idea was rejected by Justice Karthigesu,  who held that unless there was an enabling legislation – customary law did NOT become part of domestic law.
 
Eddie Toh was overruled in the Court of Appeal, but the CA was silent on this particular issue. So what Singapore’s domestic law is left with is J Karthigesu’s opinion, and a mirroring of the traditional English approach.
 
TREATIES
 
-They are different from customary principle because treaties are only made by the executive.
-AS SUCH unless there is some adoption of that treaty in to the legislation it is an acceptable idea that a treaty does NOT become a principle of domestic law.
 
BUT it is possible to say that a treaty proposition can be understood as a customary principle.
 
As a general proposition could one argue that a treaty does not form a part of domestic law?
After all such law might affect the rights of citizens, therefore giving the Crown the power to ratify a treaty that may potentially abuse the rights of individual citizens as well as ignoring their right of representation.
 
English law however, has always been careful that the crown does not enlarge its power through its prerogative powers to the detriment of citizens.
 
-the only way in which citizens’ rights can be diminished is when parliament passes legislation as representatives of the people.
 
This is a rule that is accepted in Singapore
 
The rule is different in countries like Germany, because the treaty has to be first passed in the German parliament
 
How are treaties passed into domestic law?
 
The Vienna Convention on International Trade are a group of treaties which are made to facilitate international trade. Obviously there is an incentive to transfer such treaties into domestic law.
Here, legislation virtually reproduces the laws verbatim, and the convention itself is contained in the annex therefore that legislation must be construed in the light of the treaty it seeks to incorporate
 
The House of Lords in Fothergill v Monarch line also held that in interpreting such legislation it is possible to look at preparatory works and discussions, which preceded the treaty. Including:
-Debates that took place
-Statements made by delegates
-Commentary by scholars
 
Teoh – Australian courts
This was a case arising from order of immigration by the Minister for Immigration. Teoh was a Malaysian and went to Australia on PR. His brother had died and he had married his brother’s Australian widow. The woman was a drug addict and was sent to prison.
Australia states that PRs caught for drugs can be deported
BUT Teoh raised an interesting argument – he claimed that if he was deported his wife and  (step) kids would be fatherless, and this was an infringement of his rights to family life as cited in many Human Rights conventions.
The argument was strengthened by the fact that Australia had ratified many of these treaties.
The High Court of Australia upheld this argument holding that when Australia ratifies a treaty there is an expectation of its citizens  that it will obtain the benefit of the contents of that treat, even if it is not yet incorporated into Australian law.
They thus argued that ratification creates a legitimate expectation.
 
 
Also, see Chief Justice Chan Sek Keon in Yong Vui Kong v Public Prosecutor (2010) 3 SLR489 
INDIAN LAW.
 
The Vishaka Case and Elimination of Discrimination against Women.
 
The Indian Supreme Court  - has also held that the carrying out of the death sentence of people who had been kept on death row for a long period would be a cruel and unusual punishment under the International Covenant on Political Rights, and therefore the sentences are reduced to life sentences.
 
In US LAW.
 
Notion of self-executing treaties was accepted. But, now heavily curtailed. Sei Fuji v Calfornia. Conlfict between Breyer v. Thomas and Scalia.
 
 
 
 
TREATIES
 
-They are different from customary principle because treaties are only made by the executive.
-AS SUCH unless there is some adoption of that treaty in to the legislation it is an acceptable idea that a treaty does NOT become a principle of domestic law.
 
BUT it is possible to say that a treaty proposition can be understood as a customary principle.
 
As a general proposition could one argue that a treaty does not form a part of domestic law?
After all such law might affect the rights of citizens, therefore giving the Crown the power to ratify a treaty that may potentially abuse the rights of individual citizens as well as ignoring their right of representation.
 
English law however, has always been careful that the crown does not enlarge its power through its prerogative powers to the detriment of citizens.
 
-the only way in which citizens’ rights can be diminished is when parliament passes legislation as representatives of the people.
 
This is a rule that is accepted in Singapore
 
The rule is different in countries like Germany, because the treaty has to be first passed in the German parliament
 
How are treaties passed into domestic law?
 
The Vienna Convention on International Trade are a group of treaties which are made to facilitate international trade. Obviously there is an incentive to transfer such treaties into domestic law.
Here, legislation virtually reproduces the laws verbatim, and the convention itself is contained in the annex therefore that legislation must be construed in the light of the treaty it seeks to incorporate
 
The House of Lords in Fothergill v Monarch line also held that in interpreting such legislation it is possible to look at preparatory works and discussions, which preceded the treaty. Including:
-Debates that took place
-Statements made by delegates
-Commentary by scholars
 
Teoh – Australian courts
This was a case arising from order of immigration by the Minister for Immigration. Teoh was a Malaysian and went to Australia on PR. His brother had died and he had married his brother’s Australian widow. The woman was a drug addict and was sent to prison.
Australia states that PRs caught for drugs can be deported
BUT Teoh raised an interesting argument – he claimed that if he was deported his wife and  (step) kids would be fatherless, and this was an infringement of his rights to family life as cited in many Human Rights conventions.
The argument was strengthened by the fact that Australia had ratified many of these treaties.
The High Court of Australia upheld this argument holding that when Australia ratifies a treaty there is an expectation of its citizens  that it will obtain the benefit of the contents of that treat, even if it is not yet incorporated into Australian law.
They thus argued that ratification creates a legitimate expectation.
 
-The case is certainly interesting as an exercise of judicial creativity  on the basis of international law. It was  reversed by legislation.
 
INDIAN LAW.
 
The Vishaka Case and Elimination of Discrimination against Women.
 
The Indian Supreme Court  - has also held that the carrying out of the death sentence of people who had been kept on death row for a long period would be a cruel and unusual punishment under the International Covenant on Political Rights, and therefore the sentences are reduced to life sentences.
 
In US LAW.
 
Notion of self-executing treaties was accepted. But, now heavily curtailed. Sei Fuji v Calfornia. Conlfict between Breyer v. Thomas and Scalia.



LECTURE FOUR

PERSONALITY IN INTERNATIONAL LAW.

 
  1. Perseverance of the myth that only states are subjects of international law. Other entities are objects of international law. Untenable in modern times as many entities are direct bearers of rights and duties in international law. There is increasing recognition that the ultimate unit of international law is the individual and the protection of the rights of the individual is an important if not the primary purpose of the law. Harris represents the positivism that is still alive. But, it is convenient to begin with the personality of states.
 
  1. Attributes of the state are defined in the Montevideo Convention as involving(a) population (b)territory (c) government and (d) capacity to enter into relations with other states.
 
 
  1. Increasingly, in modern times, a fifth element, that the government should be independent and have been formed on the basis of self-determination is added as a requirement.
 
  1. Recognition by a substantial number of other states may also be a factor. The Manchukuo example (1932-1945).  Stimson doctrine of non-recognition: A state brought about through illegality will not be recognized.
 
  1. But, new states are born, some through possible illegalities. Bangladesh, states following collapse of Yugoslavia ( Bosnia, Croatia, Serbia ); Southern Sudan.
 
  1. Self-Determination: Origins: ethnic-religious states. Conclusion of First World War. The building up of nationalist movements in Africa and Asia. Gandhi and India. The decolonization of Africa and Asia. The Declaration of Granting of Independence to Colonial Territories and Peoples. Res. 1514 (XV) (1960). Status of the Resolution. Ius cogens principle. The Western Sahara Case Its impact on Mabo v Queensland .
 
  1. Is Self-Determination Passe? Formation of Asian and African states not on basis of ethnicity or religion. Crises. Bangladesh, Eritrea, East Timor and South Sudan. Successful formation of states. Asian crises points: Aceh, Mindanao, Southern Thailand, Tibet, Xinjiang, Kashmir, Sri Lanka; Basques, Scots, Quebec. The right to secession.
 
  1. The refusal to extend. Uti possidetis principle. The conservative emphasis on principle. Harris, 112. Resistance to recognition of right to secession.
 
  1. Badinter Commission on the dissolution of Yugoslavia. Confined to dissolution of a federation? Attorney General’s Reference on Quebec Secession (1998). Permits secession when primary rights to equality are consistently denied.
 
OTHER LEGAL ENTITIES
 
  1. International Organizations: Advisory Opinion on the Reparation for Injuries Suffered in the Service of the United Nations. Functional theory. Regime formation and constitutionalization.
 
  1. Transnational Corporations: Considerable base of private power. Its ability directly and indirectly to influence course of international relations. Codes of Conduct. Notion of Soft Law.
 
  1. Individuals: The growth of the human rights law.
 
Recognition and domestic courts.
 
  1. The declaratory and constitutive theories of recognition.
 
  1. The relevance of recognition before domestic courts.

LECTURE FIVE

JURISDICTION.
 

 
  1. The five principles of jurisdiction are stated as : (1) Territoriality. (2) Nationality. (3) Protective Principle. (4) Universality Principle and (5) The Passive Nationality Principle. It is usual to consider each in turn and assess its modern significance.
 
  1. Territoriality continues to be the basic and most accepted principle of jurisdiction. The obvious reason is that extending jurisdiction would provoke conflicts with other states.
 
  1. The common law recognized it as the principle to which it would adhere, specially in relation to crime. All crime is territorial. Eg. bigamy. Obviously, an uncomfortable doctrine in modern world where it is possible to subvert economies of other states without entering them or commit fraud and other crimes.
 
  1. In Singapore as in England, the usual practice is to extend crimes outside jurisdiction through express legislation. Eg. the Sedition Act.
 
  1. The Lotus Case. Basic conflict between French view that a state’s effort at extraterritorial enforcement should be justified by a principle of international law and the Turkish view that a state can exercise extraterritorial jurisdiction as long as there is no doctrine to prevent it doing so. The permissive view was accepted by the Court.
 
  1. But, the increasing need for extraterritorial crimes. The US and the effects doctrine. US v Alcoa (1942). The effects doctrine. Intentional production of effects on American markets.  Long time friction between Europe and the US regarding antitrust extraterritoriality. But, the EC now applies its own competition law extraterritorially. In globalized world, inevitable that states reach out to control events outside their territories, which have an effect inside the state. The US employs wide notions of extraterritoriality as a matter of foreign and trade policy. The Helms-Burton Act. The Omnibus Trade Act. The need to reach out to protect financial interests and prevent harm from outside such as drug trafficking. A large power’s needs may be great but it violates sovereignty of other states and provokes conflict.
 
  1. Nationality principle. Clear that the link of nationality provides jurisdiction. Acts of Singaporean nationals whilst abroad. Taxation of global assets.
 
  1. Passive nationality principle (the fifth base). Cutting Case (1887) Jurisdiction on the basis of victim. The modern significance is the assumption of jurisdiction over offenders against US victims of terrorist attacks. The Achillo Lauro Incident (1983) Hostage Taking Convention. Hijacking Convention. The Libyan situation relating to the attack on the embassy. What is the jurisdiction of the US.
 
  1. Protective Principle. Usual example would be currency counterfeiting committed abroad or national security type offences not involving citizens.
 
  1. Universality Principle. Piracy. Are there more offences. Slavery as a candidate. But, some say that only piracy is a true crime of universal jurisdiction. Guilliaume in the Arrest Warrant Case. Resistance to extend the list.
 
  1. The human rights and humanitarian law. The Nuremburg Principles. Eichmann Case. Genocide and Torture. War crimes and Crimes against Humanity. But, despite these movements, the entrenched view is that outside piracy, universality principle does not apply.
 
  1. The principle of trying war criminals by states is confined to the states which have jurisdiction over them due to their presence within the territory. The rule is dedere aut prosequi. That being so, the argument runs, there is no universal jurisdiction as jurisdiction remains territorial in that the offender is present within territory.
 
  1. The Belgian Saga and its outcome. Prosecution of leaders of states declaring wars (Thatcher, Blair and Bush) and committing human rights violations. (Pinochet, etc.)
 
  1. International Criminal Court.
 
  1. Obtaining jurisdiction by kidnapping. Eichmann.  The English view in Bennett and the South African views.
 
  1. Sovereign Immunity: The absolute view and the restrictive theory. The movements towards the restrictive theory in English law first through case law and then through legislation, the State Immunity Act. The same Act was enacted in Singapore. Difficulties in applying the test for the distinction. Sovereign wealth funds.
 
  1. Head of state immunity. Pinochet.
 
  1.  The Al-Adsani Case. Kiobel v Royal Dutch Petroleum Co. (2013) 133 S.Ct 1659-US Supreme Court.

  2.  

     LECTURE SIX

    STATE RESPONSIBILITY.

    STATE RESPONSIBILITY.
     

    1. In a weak system like international law, the rules on responsibility cannot be strong.  Progress of the system will depend on the rules getting stronger. perhaps like in domestic systems, the distinction between contract, tort and crime will come to be made.  But, that day is yet far off.
     
    1. The best that has been accomplished so far has been to codify the secondary rules of state responsibility in the form of a draft code. The draft code is the work of the International Law Commission.
     
    1. The Commission had attempted the codification of the primary rules. The primary rules were very much weighted towards the rules on the protection of aliens, which as Harris points out, was thought of as the whole of state responsibility. Harris’ Chapter itself shows the influence of this view. There is a substantial section on state responsibility for  mistreatment of aliens.
     
    1. This was a very controversial subject. It split the world on the basis of the North-South divide.  It had much to do with colonialism and the post-colonial conflicts. Hence, drafting a code was fraught with difficulty. It was easier to draft the secondary rules. But, the developing states resist the acceptance of the Draft Code.
     
    1. First, we look  at the Draft Code.
     
    1. It begins by stating the rules of attribution of acts to the state, after defining state responsibility as arising to perform an obligation due under a rule of international law or treaty.
     
    1. States , like companies, cannot act but have agents and officials who act on its behalf. Their conduct engages the responsibility of the state under certain circumstances. First, there is the identification of the class of agents. State entities, even a constable could engage a state in liability
     
    1. Then come the circumstances in which omissions could result in liability. Where there is a duty to act and there is no performance of that duty, responsibility arises. Eg. Diplomatic Hostages in Teheran Case.
     
    1. The defences to liability are stated next. These include  self defence, force majeure, necessity and countermeasures. The last two are controversial. The way necessity in Article 25 is stated is too confined. Argentine economic crisis. The act of the state must have been the only means available to escape the situation of necessity. The test is too stringent.
     
     

    1. Reparation through damages. Chorzow Factory Case.
     
    1. The notion of ius cogens. Responsibility arising from obligations owed to the whole of the international community. The South West Africa (Namibia) Case. The Court backpedals in the Barcelona Traction Case by announcing obligations erga omnes (obligations owed to all states) arising from violation of ius cogens principles. Genocide, racial discrimination, slavery, torture now identified as prohibited by ius cogens principles.
     
    1. Long provisions on countermeasures. Remedy of the powerful as weak states cannot take countermeasures. Hence, weak states object.
     
    TREATMENT OF ALIENS.
     

    1. Notion of mediate injuries. Citizen’s injury is an injury to his home state which can espouse his claim.
     
    1.  International minimum standard as the cornerstone of the system. The US stands guard over its citizens as they trade and invest overseas. Requirement that these citizens be treated in accordance with an external standard. Latin Americans always argued for a national standard of treatment. Compare the Michael Fay  incident in Singapore.
     
    1. Law is stated in the Neer Claim (1926). The treatment should “amount to an outrage, to bad faith, to wildful neglect of duty, or to an insufficiency of gvernenmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency”.
     
    1. But, Latin Americans resisted this. They argued that an alien is entitled only to national treatment according to national laws administered by national tribunals or courts.
     
    1. The schism is deeply felt in the law on foreign investment, specifically expropriation of property of aliens. In modern times, expropriation would be of the property of large multinational corporations.
     
    1. Third World resistance to Western law of full compensation. Permanent sovereignty over natural resources.
     
    1. The requirements for a lawful expropriation. No discrimination, due process, public purpose and full compensation.
     
    1. Now investment treaties and an explosion of case law.

    LECTURE SEVEN.

    USE OF FORCE.
     
     
    1. Struggle to prohibit the use of force and promote peaceful settlement of disputes.
     
    2.The distinction between ius ad bellum and ius in bello.
     
    3.Just war doctrine of Grotius. Requirement of a prior illegality for use of force. Abuse as state’s subjective belief in the justness of its cause was sufficient. But, since reasons had to be given, there were justifications which came to be so common as to create categories.
     
    4.Among these categories were (i) humanitarian intervention (to protect persecuted minorities) (2) reprisals for injuries (3) rescue of nationals abroad and (4) self-defence. But, these were justification for the use of an existing right to war.
     
    5.The League of Nations in 1919 made the first effort to prohibit the use of force in the context of a global institution with a structure that required settlement of disputes through peaceful means. The creation of the Permanent Court of International Justice. But, no strong prohibition of use of force.
     
    6.Wars broke out. Italian invasion of Ehtiopia and the German intrusions in Europe. By 1939, Europe was at war. EH Carr, The Twenty Year Crisis suggested the futility of restraining power of states to pursue national interests through the use of force. The realist opposition to outlawing the use of force.
     
    7.The Kellog-Briand Pact (1926). Treaty for the Renunciation of War.
     
    8.A new effort at the conclusion of the Second World War. The Charter prohibition of the use of force in Article 2 (4) subject to the “inherent right” of self defence “if an armed attack” occurs.
     
    9.The Cold War. Balance of power. A divided Germany with European satellites of the Soviet Union. In the American sphere, the emergence of Cuba, as a communist state. The struggle for expansion of influence in Africa and Asia.
     
    10.The Non-Aligned Movement as a third force. But, the continuation of the competition for influence between the Big Powers. Peaceful Coexistence Panca Sila. The Bandung Conference.
     
    11.Spheres of influence of Big Powers. No state to break out of the sphere of influence. Soviet invasion of Czechoslovakia. Soviet invasion of Afghanistan. American invasion of the Dominican Republic. American invasion of Grenada.
     
    12.Soviet theory of wars of national liberation.
     
    13.Notion of rescue of nationals (Grenada); Notion of protecting spheres of influence (Cuban missile crisis and Czech crisis).
     
    14.After Charter, revival in Big Power practice of customary law justifications for the use of force. Feeling of the need to justify.
     
     
    15.The structure of the Charter is clear. No force (Article 2.4) Except in Self Denfence (Article 51). Breach of Peace under Chapter VII .
     
     
     
    16.But, revival of customary principles and contrary practices.
     
    1. Intervention at invitation. (Czechoslovakia, Hungary, Grenada, Vietnam).
     
    1. Humanitarian intervention. (Kosovo; but Bangladesh, Cambodia, Uganda)
     
    1. Promotion of democracy (Haiti, Dominican Republic) Wars of national liberation.
     
    1. Dismantling of the force of Article 24 and reviving the just war doctrine?
     
    Self-defence.
    1. Notion of anticipatory self-defence. Six Days War.  Oil Platforms Case.
     
    1. Armed bands. Cumulative events. Is there a right of self-defence? Nicaragua Case.
     
    1. Wide notion of Preemption. Ensure an absence of a politican vacuum so that the intervening state is kept safe- The Armed Activities in the Congo Case.  
     
    1. Bush Doctrine of Preemption.
     
    Humanitarian Intervention and the Responsibility to Protect.

    FOR DISCUSSION IN THE NEXT CLASS.

    Dharmaputra is a river having its origin in the snow- capped mountain ranges of the Thimalayas part of which are in the state of Rhina and the other in Lindia. Dharmaputra is a principal tributary of the great Lindian river, the Thine, which runs virtually through the length of Lindia, irrigating its agricultural fields and providing water for other purposes. The source areas of the Dharmaputra are peopled by an ethnic race, known after the river as Dharmans. The race had its origins in Lindia. Many Dharmans continue to live on the border areas between Rhina and Lindia.  but these areas had been captured by some three centuries earlier by Rhina and are ruled as a part of Rhina. The Dharmans have greatly resented the rule by Rhina. In 1990, their much-venerated religious leader had fled to Lindia. In 2001, there was a major riot following a fiery speech against rule by Rhina in which many Dharmans were killed. Thereafter, there have been sporadic instances of rioting against the rule by Rhina and a demand that the Dharmans in Rhina be united with their fellow people in Lindia.
     
    In 2012, Rhina, purporting to conserve the water resources of the Dharmaputra for agricultural needs built a dam across the river and diverted it inland. This severely restricted  the flow of water into Lindia. Farmers suffered as a result of a severe drought and change of weather patterns that year. People had to relocate due to desertification that resulted from the Thine drying up. Lindia warned that if the dam was not opened within six months and a level of water assured to the lower riparian state, it would take measures to deal with the problem as it saw fit. After the six month period, Lindia covertly ensured that a group of Dharmans, who were citizens of Rhina and whom it had trained, blew up the dam.
     
    Consider the legality of the actions of Lindia
     
     For discussion in class on 25 March 2014


    Lindia is a large country in the Indian Ocean. It is a democracy with a federal system of government. The southern tip of Lindia is peopled by an ethnic group who speak  the Tatin language, an ancient language with a distinct and unique literature. The Tatins, as the ethnic group is known, had migrated many years back to the island of Manga, which was just 12 miles off the coast of Lindia and had settled on the Northern part of the island. The majority of Manga consisted of the Pura race, which had a military culture that went back into history. Both Manga and Lindia were ruled by the Finglish, who had set up an empire in Asia. The two states became free only 30 years ago.
     
    After independence, the Pura race in Manga began to discriminate against the Tatins. They made their language the only state language, made it compulsory for all persons in Manga to study the Pura language and made their religion the state religion of Manga. The Tatins, as a consequence, were unable to obtain higher education as their knowledge of Pura was not good enough for entry into universities in Manga. They also lost out on employment which was confined to people who could speak Pura fluently. After a while, the initial peaceful protest of the Tatin youth became violent and ripened into a civil war. The Mangan army which consisted exclusively of Purans sought to suppress the rebellion ruthlessly, killing many Tatin civilians in the process.
     
    The course of these events caused concern among the Tatins of Lindia. Seeing their fellow Tatins suffer across the sea, young Lindian Tatins crossed over to Manga to fight on the side of their fellow Tatins of Manga. The Lindian Tatins also established and maintained a safe sea-corridor which could be used by Tatin rebels who were wounded and needed treatment to cross over to Lindia. Such treatment was provided in the Tatin part of Lindia. Weapons and other military items were kept in storage in shore areas of Lindia and there was credible evidence that a ship-building yard was producing armed vessels for use by the Tatin rebels. The activity was concentrated around Tangalore, a coastal town in Lindia.
     
    The Mangan army sent a raiding party to Tangalore. It bombed a building which was thought to be the place where the wounded rebels were being treated. It also destroyed a ship-building factory but it later turned out that the factory was building fishing vessels. The party also destroyed a building which had a large cache of military weapons, the story of which was unlawful in Lindian law.
     
    Lindia has now brought a case before the ICJ arguing that Manga has responsibility in international law for damages caused and for other violations of international law.
     
    Argue the case for the two states.



      LECTURE EIGHT
     
    HUMAN RIGHTS
     
     
     
    1.Human rights is a triumph of natural law over positivism. Its recognition of inherent rights in the individual is based on the assertion that state power must not be used to abuse such rights and hence is a restriction on sovereignty.
     
    2.Though the idea did exist from early times, the modern human rights movement is traced from the end of the Second World War. Incidents that led to the war were internal and their prevention gave an impetus to the movement.
     
    1.The 1948 Declaration on Human Rights. Eleanor Roosevelt.  Non-binding prescriptions.
     
    3.Three generation of rights or three ideological divisions. First are those that the US and Europeans have been concerned with. These are political and civil rights. They are contained in the International Covenant on Civil and Political Rights ICCPR (1966).
     
    4.The second are rights associated with socialism. These emphasized conomic and social rights. They are contained in the International Covenant on Economic and Social Rights. ICESR (1966).
     
    5.The third are rights that concern developing countries, which are solidarity rights. The right to development is the most important amongst them. It is premised on the notion that without eradication of poverty, other rights are meaningless. The right to development forms centerpiece but Western scholars regard such solidarity rights as not human rights. The right to self determination is another such right.
     
    6.Cultural relativity debate. Now in abatement. It is generally recognized that there are core rights that are universal.
     
    7.The argument that economic development should be prioritized over individual human rights.
     
    8.Compliance mechanism; The right of petition to the Human Rights Committee. European Court of Human Rights. Court of Human Rights of Latin America.
     
    9.The non-derogability of certain human rights. The right to life (6,ICCPR); right against torture (7,ICCPR); right against slavery (8 ICCPR); no imprisonment for contract debts (11, ICCPR); nullum crimen sine lege (15, ICCPR); right of recognition as a person (16, ICCPR); freedom of thought, conscience and religion (18, ICCPR).
     
    10.Right to life: capital punishment. Construction of other rights: right to food; right to clean air; right to water; other life sustaining essentials.
     
    1i.Right against torture. (the time bomb situation). Are there exceptions. Notions of proportionality . Is it meaningful or should the prohibition be absolute.
     
    12.Extraterritoriality of such rights. Article 2 of ICCPR. “all individuals within its jurisdiction and subject to its control”. UK forces in Iraq and US forces in Guantanomo Bay. Wall Opinion.
     
    1.Ties with notions of state responsibility for violations of ius cogens principles.

    12. Problem of Self-Determination and Secession.
     
    13.Notions of head of state responsibility. (Pinochet; Al Asdani).

    14. Immunities of heads of state.

    LECTURE NINE

    1. SELF DETERMINATION AND SECESSION.
    SELF DETERMINATION AND SECESSION.
     
    1. Self determination originated as doctrine after the First World War in order to settle boundaries of European states on the basis of ethnicity.
    2. The issue then was whether the principle could be used to end colonialism in Africa and Asia.
    3. The process of decolonization began in 1947 with the United Nations with the progressive creation of states in Africa and Asia.
    4. The issue was whether self-determination was ended with decolonization.
    5. The principle of uti possidetis that the boundaries of a state should be those which existed at the time of its creation.
    6. But, internal insconsistencies as colonial administrations had put together people of different ethnicities and religion for their own convenience.
    7. Two authoritative Western pronouncements. The Quebec Reference in Canada and the Badinter Commission Report on Yugoslavia.
    8. Both stated that equality was the basic right to be guaranteed in the context of multiethnic socieities.
    9. Where such equality was violated egregiously by state policy, the right to secede arose in the minority which had indicia of statehood to secede and create a new state. But, there are stages that need to be adopted. One must examine whether there are alternative constitutional arrangements. Failing them, secession may be the answer.
    10. The Kosovo situation. Ethnic cleansing. Serbian atrocities. Milosovic. Kosovo’s unilateral declaration of secession. Its acceptance by other states.
    11. Consequences of Kosovo. The idea of Humanity’s Law. The notion that a combination of laws become relevant:
    12. (i) human rights law that identifies the extent of the violation of equality and nature of the discrimination;
    13. (ii) humanitarian law that seeks to determine situations like effect on civilians and destruction of civilian property as well as mistreatment of combatants;
    14. (iii) the growing notions of accountability that brings violators, including heads of state to trial. The Pinochet example. The trial of Milosovic.
    15. The creation of a new state. The Kosovo precedent. The effect of the unilateral declaration of secession. The Advisory Opinion on Kosovo (Please look at the ICJ website for the Opinion). The repsonse to the declartion by other states.
    16. The Crimea situation and the use by Russia of the Kosovo Precedent.
    17. Growth of accountability. Pinochet Case. Batang Kali incident before British Courts. http://www.bbc.com/news/uk-26640527
    18. The confluence of these ideas in the form of a law protecting human security. The notion of cosmopolitanism. 
     
     
     
     

     
            

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