1.

PRIVATE INTERNATIONAL LAW

-

How to deal with disputes between private/foreign persons

Three issues
o Jurisdiction where should the matter be heard?
o Choice of Law whose law should apply?
o Recognition of foreign Judgments how to enforce?

General Introduction
-

Traditionally, international law was viewed as non existent per se, as there is no single global body
which can exercise sovereign powers. However, this traditional view is no longer in line with
modern processes of harmonisation and globalization and it is recognised there are certain areas of
human activity where a common single body of law is required. As a result, an emerging body of
law can be seen in areas such as
o Environmental law (Pollution, Global warming)
o Health (SARS, AIDS, Bird Flu)
o Security
o Human Rights
o Trade (Contract, Internet)

International law now exists to

o Do justice between parties e.g. foreign marriages
o Comity in respect for other countries, their laws and sovereignty
o To deal with the fact that different countries and legal systems have different ways of dealing
with the same legal issue

Definition
o Is a part of domestic law (i.e. courts use foreign domestic law to determine disputes)
o Private international law (or conflict or laws) is a body of law applied to resolve legal
problems relating to private persons in individual states that have a significant foreign
element.
Private persons: people or companies
Significant foreign element: a person, thing, fact or event that is so closely connected
with a foreign legal system as to give rise to the possibility of a domestic court applying
foreign law or a domestic court not exercising jurisdiction to determine the case in
favour of foreign court
o It is 'concerned with resolving the conflicts which arise because of the interaction between
different legal systems'
Nygh and Davies, Conflict of Laws in Australia, (7th ed) at p 4

Geographical State
o An area which has a unitary system of law which is relevant to the legal problem
o When terms such as Country or State or law area are used in private international law it
is a reference to a defined geographical area which has a unitary system of law.

Three broad areas

1. Jurisdiction
a. Where should the matter, involving a significant foreign element, be heard?
2. Choice of Law
a. Whose law should apply?
3. Recognition of Foreign Judgments
a. Will a foreign judgment be recognised and enforced within Australia?
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Scope within those broad areas

o Family Law
(a)
(b)
(c)
(d)

Marriage
Matrimonial Causes
Legitimacy, Legitimation, Adoption
Custody

o The Law of Obligations

(a)
(b)
(c)
(d)

Contract
Tort
Negotiable Instruments
Trusts

o Property
(a) Movables
(b) Immovables

o Succession
o Bankruptcy
o Evidence and Procedure
-

Sources
o Case law
o Statutes
o International treaties
o Academic writings

International Bodies
o Play an important role in international private law
o Aim to reduce problems arising from the fact that different legal systems have different ways
of dealing with particular situations
o Consequently, there are two possible methods of reducing conflict of law issues
Uniform substantive law
All countries to adopt uniform choice of law rules
If most countries agree on how a conflict of law issue should be resolved, then
there will be a reduction in different results
o These bodies include
The Hague Conference on Private International Law
Intergovernmental organisation
Established to work for the progressive unification of the rules of private
international law
Hague Conference Statute, Art 1
Negotiate and draft multilateral treaties in the various fields
Operates through three main bodies
o Plenary meetings (attended by everyone)
o Permanent bureau or secretariat
o Special commissions
International Institute for the Unification of Private Law at Rome (UNIDROIT)
Intergovernmental organisation
Works towards unifying private law of states and groups of states
Established in 1940 and located in Rome
Three main bodies
o General assembly
o Governing council
o Secretariat
United Nations Commission for International Trade Law (UNCITRAL).
Main aim is unification of laws relating to trade
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Secretariat is in Vienna

A. JURISDICTION
General Introduction
-

the power of a court to deal with a particular case

principles applied by courts to determine whether they will hear matters involving foreign
elements
jurisdiction refers to a courts power to hear the case and geographical/territorial limits, also known
as sovereign jurisdiction
based on valid service of originating process on the defendant

Covers two key considerations

o Whether the court has jurisdiction over the PERSON
The particular defendant
In personam jurisdiction
o Whether the court has SUBJECT MATTER jurisdiction; and
Whether the case is of the type the court is able to hear
E.g. Supreme court has virtually unlimited subject matter jurisdiction, however cost
penalties may apply

There must be some limit to the jurisdiction of courts, or else any court could purport to determine
any dispute arising anywhere in the world
jurisdiction means
o the place where a particular set of laws are declared,
o the power of a court to apply those laws in that place
o Therefore, a geographical area defined by authority of particular courts.
However, while it may appear that courts have jurisdiction to hear disputes which arose in the
same jurisdiction, the crucial connecting factor between a dispute and geographical area is the
valid service of originating process.
Therefore, the courts jurisdiction is essentially over people and not disputes, referred to as in
personam jurisdiction

In Personam Jurisdiction
-

Jurisdiction over the person

Two sources of rules

o Common law
o Statute

Common law
- There must be a connection between the geographical area and the cause of action to give the court
authority to hear and determine the dispute
- However, where two or more jurisdictions are involved, it is not a connecting factor which
determines jurisdictions, but the valid service of originating process on the defendant in the
jurisdiction
- If the service has been validly served, the court has jurisdiction of the proceedings.
- Therefore, a court has jurisdiction over disputes that have little or nothing to do with their
geographical jurisdiction if they have jurisdiction over the defendant
-

In personam jurisdiction based on

o service on defendant within territorial limits of the court; OR
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o
-

defendant voluntarily submitting to courts jurisdiction

a defendant must be physically present within a territory within which a court has territorial
jurisdiction when served
o based on notions of territorial sovereignty and power
Laurie v Carroll
A court will assume jurisdiction over a defendant who voluntarily submits to the courts
jurisdiction.
temporary presence is enough
Perrett v Robinson
Grace v MacArthur
Civil law countries require stronger connection between def and country in question

Example: Compact Discs Imported from Japan: The Queensland Supreme or District Court will
have jurisdiction to hear and determine Alisons contract dispute over the compact discs imported from
Japan if the Japanese supplier (the defendant) is served with the initiating process in Queensland. So if
Ito visits Queensland for business purposes or for a holiday, Alison can simply serve Ito with the
relevant court documents and this will be enough for the Queensland court to assume jurisdiction over
Ito. It does not matter that Itos presence in Queensland might be for a very short period: see Perrett v
Robinson [1985] 1 Qd R 83
Statute
- In Australia
o Governed by Service and Execution of Process Act 1992 (Cth)
o Allows initiating proceedings to from one court to be served in any other state
o No nexus (connection) test is required
Nexus: requires a connection between cause of action and in personam jurisdiction
-

Outside Australia (Service ex juris)

o Governed by relevant rules of court (the long arm statutes)
o Uniform Civil Procedures Act 1999 (Qld)
Initiating proceedings may be served on a defendant outside Australia is there is a
nexus between parties/cause of action and Queensland.
Rule 124
These connections (nexus) are contained in rule 124, for example:
Cause of action arises in Queensland
A proceeding about a property in Qld
Defendant is domiciled in Qld
A contract made in Qld
Contract governed by law of Qld
A contract breached in Qld
A proceeding based on a tort committed in Qld
Defendant submits to jurisdiction of the court
Domestic court will have jurisdiction even if there were no grounds for
statutory service under the rules
o

Domestic courts do not have jurisdiction

General rule: domestic courts do not have jurisdiction to determine title to foreign land
Official or public acts within the domestic jurisdiction attracts foreign state immunity.
Not for commercial or trading activities

Example: Compact Discs Imported from Japan: If Ito stays in Japan and does not come to
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Queensland, Alison may still be able to commence proceedings in Queensland against Ito by serving
Ito with the initiating proceedings in Japan under r 124 of the Uniform Civil Procedure Rules 1999.
For contract matters the rules allow service outside the jurisdiction if:

The contract was made by a party carrying on business in Queensland; or

The contract is governed by Queensland law; or
The proceedings are based on a breach of contract that took place in Queensland; or
The contract was made in Queensland.

Prevention of abuse of process

-

Superior court has an inherent power to stay its own proceedings to prevent an abuse of process if
the matter is not being heard in the right court or where it is unfairly burdensome or oppressive
upon the plt
Proceedings may be transferred to another court within Australia only, by a party to the
proceeding, the court itself or on the application of an Attorney General
s5 Jurisdiction of Courts (cross vesting) Act (Cth)
Proceedings may be stayed
s20 SEPA

Subject matter jurisdiction

-

Jurisdiction over the subject matter/cause of action

Does a court have jurisdiction to hear the type of case in question?

Not all courts can hear all cases.
The appropriate court will depend on
o Cause of action
E.g. tort, contract
o What remedy plaintiff is seeking
E.g. damages, declaration
o Any relevant legislation

B. FOREIGN JUDGMENTS
-

have no direct force in the domestic jurisdiction

Perry v Zissis
however some may be recognised and enforced by registration under
o Foreign Judgments Act 1991 (Cth); OR
o Common law rules for money judgments

Common law
- Theory of obligation
o Enforcement based on this theory
o Foreign judgments give rise to a legal obligation on the part of the judgment debtor to obey
judgment
-

Elements
o Final and conclusive
o For a fixed sum of money
o Same parties
o Foreign court must have had appropriate jurisdiction over the judgment debtor
o No defences available

It may be enforced by
o Action on the foreign judgment
o Action on the original cause of action

International Judgments
- is registered in accordance with Foreign Judgments Act 1991 (Cth)
- they are usually registered with a Supreme Court
- procedure is by application to the court
- however, this registration is based on reciprocal (shared) arrangements with other countries
- If the other country does not have any such arrangements with Australia then the plaintiff may
need to rely on the common law rules.
Interstate Judgments
s118 Constitution (Cth)
- Registration available by the appropriate court in another state
- Extends to both money and non-money judgments
- The procedure is simple, all the plaintiff is required to is place a sealed copy of the judgment with
registrar of court

C. CHOICE OF
-

LAW

conflict of law problems arise where the legal liability of a person might be determined by the
application of the laws of more than one legal system and where the application of the laws will
lead to a different result in substance
is only where the application of the possible applicable rules of the different legal systems will lead
to a different result that we have a true conflict of laws problem
As different legal systems have different ways of dealing with these problems, it can be seen that
in order to avoid different results and attain uniformity, all states must harmonize choice of law
rules
Choice of law is therefore a body of rules to resolve questions of
o jurisdiction
o whose law applies
By providing clear guidelines and approaches to general circumstances.

NB: Lawyers make strategic decisions in relation to venue and choices of law
o Venues rules of process may provide strategic benefit e.g. allowable evidence

Domestic courts apply foreign laws in order to promote

o Justice
o Unity of results
o Policy of the forum

Example: Compact Discs Imported from Japan: Assume that Ito fails to supply the compact discs
as agreed under the contract in circumstances that would give Ito a good defence under Japanese law
to any claim for damages. Assume that these circumstances do not give rise to any defence under
Queensland law to the claim for damages for non-supply and that Alison commences an action before
a Queensland court against Ito for damages for breach of contract. The Queensland court will have to
decide whether Queensland law or Japanese law governs the contractual relations of the parties. We
have a conflict of laws problem! If Japanese law is applied Ito will pay no damages. If Queensland law
applies Ito most likely will be liable for damages for breach of contract. How do we decide which law
to apply? (It is also possible that neither system applies and the contract is governed by some other
system of law.)
1. Australian Approach: Jurisdiction Selecting Approach (Nexus Test) (choosing between
jurisdictions)
-

Identification of key connecting factors between dispute and one jurisdiction or another
Four step test
o Process of characterization (only becomes relevant once a court determines that laws other
than its own should be applied)
Identify relevant facts
What are the territorial connections to the facts?
What area of law does dispute fall? E.g. torts, contracts, formal validity of marriage
(marriage by proxy where one of the two parties wasnt physically there)

o Choice of Law Special Rule

If both, fall back
Is there an international convention or agreement that gives us the rule in how to
on jurisdiction
apply/choose which substantive law applies?
selecting
Yes: apply it
approach
(COMMON
LAW)

No: go to common law

Is there a special common law rule (jurisdiction selecting approach) that gives us the
rule in how to apply/choose which substantive law applies?
Yes: apply it
No: go to statute

In some cases: is there a special statutory rule that gives us the rule in how to
apply/choose which substantive law applies?
Yes: apply it
No: go to connecting factors

E.g. Choice of law rules these rules indicate which countrys law to apply- has the closest
nexus. Do not solve actual problem.
Formal validity of a foreign marriage is determined by the law of the place of celebration
of the marriage.
Capacity to marry is determined by the law of the domicile of the parties (common law
rule).
Succession to movable property (eg chattels) is determined by the testators domicile
(common law rule).
Succession to immovable property (eg land) is determined by the law of the situs of the
property.
liability for a tort is determined by applying the law of the place of the tort
John Pfeiffer Pty Ltd v Rogerson
Zhangs case.
A contract is governed by the system of law chosen by the parties
o Does the k have a choice of law clause?
o If no choice can be found, the contract is governed by the system of law with which
the transaction has the closest and most real connection (the closest nexus).

If there is no special rule: Locate the connecting factor

Whats the nature of the relationship between the facts, the dispute and the territory
What are the connecting factors and their relationship to jurisdiction?
Weigh up factors to determine DOMINANT nexus
Some circumstances have five factors pointing one way and one dominant factor
pointing another way, choosing which way to follow depends upon case
law/precedent circumstances
The connecting factor is the key factor(s) that connects to, or points to, the system
of law that should be applied to solve the legal problem

Apply the relevant substantive law

Consider the outcome is it absurd?
Should the interest analysis approach be considered to look at policy rationale so as to
find an approach that is just?

2. Law Selecting Approach (Interest Analysis) (choosing between laws)

-

purpose is to
o focus on policy considerations underlying the laws of both states to determine whether the
interests of one state to the other should take priority in order to produce the most just
outcome

considers content of the laws and policy behind the content - not dominant nexus
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each states interests in having its law applied

which law will provide the fairest or best result
court must reach a fair and just result by
o The State with the dominant interest (not nexus) should be applied.where application of law
avoids unjust outcome
Babcock v Jackson
Accident in Ontario, Canada. Driver and passenger from NY.
(If this case were decided using Aust method, Ontario law would apply. If dominant
interest test applied, NY law would apply
o By examining policy of local forum.

Restatement of the Law Second Conflict of Law

o Choose the law of the state of the most significant relationship
o Give consideration to following factors:
needs of interstate and international systems
the relevant policies of the forum
relevant policies of other interested states; the relative interests of those states in
determining the particular issue
the protection of justified expectations
basic policies underlying the particular field of law
certainty, predictability and uniformity of result;
ease in the determining and applying the law.
a. Limitations

In some circumstances a court will NOT apply foreign law even if choice of law rules point to it:
o revenue, penal or governmental interest laws
Revenue laws
Govt of India v Taylor
Penal laws: considered local in nature
Huntington v Attrill [1893] AC 150
US v Inkley
Governmental interest laws: eg. confidentiality of national security
The Spy Catcher case (A-G v Heinemann Publishers Aust)
o public policy reasons
Foreign laws that are contrary to public policy will NOT be enforced
A safety valve BUT necessarily subjective and sometimes vague
Oppenheimer v Cattermole
State court cannot rely on public policy to avoid applying law of another State
Section 118 Constitution (full faith & credit )
Breavington v Godleman (1988) 169 CLR 41 at 150
o foreign procedural rules
NOT applied by domestic courts
Will apply domestic procedural rules
What is a procedural rule and what is a substantive rule?
John Pfeiffer case [2000] HCA [97] [102] substance = matters that affect the
existence, extent or enforceability of rights;
Procedure = matters that regulate mode or conduct of court proceedings.
o foreign law that is not proved
Foreign law must be proved before the domestic court
Proved by evidence from experts
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If not proved, foreign law assumed to be same as domestic law and domestic law
applied
Expropriation
Australian courts will not give effect to purported expropriation (taking away) of assets
even if those assets belong to a national of a foreign government

D. HARMONIZATION OF

PRIVATE INTERNATIONAL LAW

Traditional view
o There is no private international law,
o they took the view that PIL was an extension of domestic law where disputes were resolved
using the law chosen from jurisdiction that had dominant nexus,
o As a consequence there was no need for PIL.

More modern view

o emerging sources of PIL norms
Norms denote a range of instruments including: agreed rules, principles, customs or
other patterns of agreed behaviour.
o Emergence of true international private commercial law has outpaced emergence in other
areas of law

Why has a body of harmonized international private commercial law developed?

o Globalization!
Social convergence
economic integration
political harmonization

They are all interrelated and dynamic, social convergence and economic integration increase
together and political harmonization in the process through which they do this.
Politicians and governments engage in harmonization of rules and regulations between countries at
national level, development of international rules to facilitate economic integration, e.g. enable to
countries to engage in greater trade and increased volume of trade.
In particular the rapid acceleration in global economic integration has meant huge increases in the
volume of trans-border contracting for goods, services and investment flows.

Traditional conflicts of law approach to resolving international private contract disputes do not
facilitate international business.
Highly complicated, introduces risks and companies choose not to engage in international
business. Reasons to promote alternative international law develop existing one
o transaction cost adding to expense (of doing business)
o business risks (where legal rules governing contract are uncertain)
o Trade chill effect - trade is discouraged because too complex and difficult
There is a need to by-pass traditional conflicts of law problems and this can only occur if national
law is replaced by another source of law.
There has been a long standing need and recognition for non-national rules:
o historically traced back to Jeremy Bentham (16th century philosopher, believed in
development of international law) and his early suggestions consistent with Utopian
philosophy.
o Pre WW11 initiatives such as the Hague Conference were the first steps towards
international PIL, creation of multi-lateral system.

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i.

Role of UN

The UN has played a critical role in driving the development of international private law.
Initially the General Assembly was given limited powers of study and recommendation of PIL
issues which led to Article 13 paragraph 1;
1.
The General Assembly shall initiate studies and make recommendations for the purpose of
a) . encouraging the progressive development of international law and its codification

This means that one of the charter mandates of the UN is to engage in a process of PIL and
codification.
The GA established the committee on the Progressive development of international law and its
codification.
The committee was directed to consider methods by which the objectives of Art 13 could be
achieved.
The committee established the ILC (international law commission), a body created to pursue Art
13 objectives, it organizes PIL initiatives.
It has the power to coordinate activities among UN and non-UN related agencies, including other
multilateral institutions dealing with the codification of international law (Statute articles 1, 25)

Multi-lateral Institutions
-

Multilateral institutions are inter-governmental organizations that comprised of a membership of

nation states.
Only international organisation with nation states as members
Nation states can delegate limited powers to multi-lateral organisations.
This membership structure gives multilateral organizations a unique structure and status
Agreements made within multilateral organizations take on the status of treaties (under certain
circumstances)
In addition, multilateral status also requires cooperation and adherence with/to UN aims and
objectives (where UN is considered to be peak multilateral body)
This means that even though a multilateral organization may, in theory, be independent- it has a
legal link to the UN through the law (norm) of international obligation and commitment (where
its aims and objectives cannot be inconsistent with those of the UN and vice versa).

The key multilateral institutions related to private law codification initiatives are:
-

The International Law Commission (ILC) (which has not produced very much private international
law)
Hague Conference on PIL

UNIDROIT - is a multilateral institution- therefore falls within scope of UN Charter

It was recognized that Vienna Convention was too narrow (i.e., goods only) and broader
coverage was required.
Negotiating a full-blown convention or treaty is cumbersome, slow and difficult
Therefore, statement of principles was chosen as foundation point.

UNIDROIT Principles of International Commercial Contracts

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is not a model law because deemed not to be appropriate subject matter- more akin to common
law restatement than legislation
Covers all international commercial contracts; i.e., can be used as substantive law substitute
regarding goods, services, investment, technology transfer etc.
Voluntarily chosen choice of law used by private contracting parties

UNCITRAL: assumed responsibility for Hague Rules on international sea transport (1924) and
Hague-Visby Rules (1968).
UN Convention on Carriage of Goods by Sea 1978 (the Hamburg Rules) were an amendment
of Hague-Visby rules
Most developed countries still use H-V rules, many developing countries have ratified
Hamburg rules

Two major sources of international private law:

o UNCITRAL (international public)
A model law to assist States in reforming and modernizing their laws on arbitral
procedure.
o ICC (International Chamber of Commerce)
Private organization based in Paris

There are different types or forms of harmonized and/or private international commercial law that
can be created by the multilateral institutions.
Although created by public institutions; these forms of norms/law all relate to the regulation of
private international commercial relations.
o Treaties
are called by several names: treaties, international agreements, protocols, covenants,
conventions, exchanges of letters, exchanges of notes
All of these international agreements under international law are equally treaties.
Different names are used because of US law. Under US constitutional law, a treaty
requires assent of two-thirds of the Senate.
Most international agreements are executive agreements made at the request of the
President and presented to Congress for majority approval (50%).
When a country ratifies a treaty, it is obligated to enact treaty commitments in national
law (where appropriate).

Other sources of international private law do not have the status of treaties. These can include:
o
o
o
o
o

Conventions
Agreements
Draft Conventions
works in progress or not adopted as treaties- but useful
not completed or not ratified
Model Laws
to be used as model for national legislation
Principles
Less than model laws
Used by private parties for contract formation

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ii.

Vienna Convention CISG (Convention on International Sale of

Goods)

UNCITRAL (UN Commission on International Trade Law)

-

UN Convention on Contracts for the International Sale of Goods (the Vienna Convention) (1980).
harmonization of international sale of goods law
Based on UK sale of goods act with adjustments to align with civil law and US (Uniform
Commercial Code requirements)
The Vienna Convention obligations have been ratified by over 74 countries
Its provisions are enacted in domestic law
It standardizes key rules relating to contract formation and the interpretation:
Seller obligations
Buyer obligations
in relation to international sales agreements.
*** Covers sale of GOODS only; not services or investment

Rules of arbitration
- provide for:
o Appointment of decision-maker/arbitrator
o Rules of process: which are loose and flexible but provide necessary elements to keep
arbitration proceedings contained
o Rules of evidence: which are loose and flexible
-

At time of negotiation of contract, most firms experienced in international trade will include:
o Choice of law clause
o Choice of dispute resolution clause
o Place of dispute resolution clause
o It is possible to contract out of national legal systems- thereby avoiding choice of law
complexities
o For example:
Choice of law clause substantive law:
Reference to Vienna Convention for sale of goods provisions and Unidroit
Principles for contract formation
Dispute Resolution including process and evidence
Reference to UNCITRAL or ICC rules (depending on appointment of arbitrator
preference
Both rules include built in rules of procedure and evidence
o Venue: Parties must nominate city in which arbitration is to be held: ie., Brisbane, Paris,
London- usually where there is a commercial arbitration centre (but not mandatory)

Contractual Implications:
- There are several sources of non-national international commercial law
- Private parties can choose to contract out of national law and choose among these alternative
sources of international commercial law
- Seen as being more fair source of substantive law
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Non-national choice of decision-maker, rules of procedure and evidence are also available i.e.,
matter need not be resolved in traditional court
Decision-maker, process and evidence are neutral source and free from national bias
No conflicts of law issues if these alternative sources are chosen

2. PUBLIC INTERNATIONAL LAW

A
Introduction
- Generally relates to relations between states (countries)
- Founded upon sovereign equality of states (all states are equal in international law)
Art2(1) UN Charter
- In order to uphold sovereign equality, there is no central world government which has sovereignty
to exercise common, global powers over the worlds nations.
- As there is no central world government, PIL is therefore essentially based on the concept of
consent and cooperations between states. It can then be seen that the variety of international
norms existing emanate from the free will and consent of states who are prepared to be
internationally bound by law.
- Furthermore, public international law is fundamentally different to domestic law as PIL is a
horizontal system between parties who are sovereign and equal. Domestic law is based on a
vertical system where the parliament is considered supreme law maker and we are subordinated
to its legislation
Definition
- Body of rules that govern relations between entities which possesses international legal
personality.
o Body of rules
generally covers
rules about the conduct of diplomatic relations
international trading agreements
environmental protection
important issues about an individuals human rights
rules about armed conflict and the use of force
These rules are created principally through political agreements and state practice
o Entities
States/countries are the basic entity of public international law
o International legal personality
Capacity of an entity to have rights and duties under international law and to act upon
them
Under the traditional view only states had capacity to have and act upon rights and
duties, laws were only developed for use of states, however there are exceptions

Piracy occurs on the high seas and concerns individuals

States/governments have four basic characteristics

It is a territorial unit
Containing a stable population
With its own government
Capable of entering into international relations with other entities which have
international legal personality
UN also possesses international legal personality
14

However cannot appear before the ICJ, does not have full international legal
personality as not a state
Need to refer to creating statute to determine amount of international legal
personality

Subjects and objects

Subjects have full rights and duties which apply directly to the subject
(government) and have full international legal personality
o E.g. signatory to treaty and subject contravenes treaty, the subject is in
breach
Bodies who possess international legal personalities are recognised as subjects of
international law, and not objects
o Can enter treaties and litigate in court
Objects (individuals) have less than full rights and duties which apply indirectly
to them through the instrumentally by the state and do not have full procedural
capacity
o E.g. individuals are given human rights through the state which is signatory
to a treaty
o Only states can take a matter to the international court of justice, only states
can be parties to a matter before the court.
Art 34 ICJ Statute
Exception - individuals can make complaints to international
bodies, but cannot litigate

Statehood what is a state?

Elements
o Permanent population
Does not need to be large
But must be permanent
o Defined territory
If states borders are in dispute, does not mean that it lacks a
defined territory
Is sufficient if a states territory possesses a sufficient consistency
even though boundaries have not been accurately or conclusively
delimited
o Government
No requirement that the government be established according to
any particular constitutional pattern, government does not need to
be democratic, could be bureaucracy, dictatorship etc
Requirement of a government is satisfied when
The administering authority exercises effective control over a
territory
Is independent, is not subject to the control of an external
power or state
o Even if reliant on financial aid
More important at the time a state becomes a state, when it comes
into existence
o Capacity to enter relations with other states
A state has capacity if it possesses
Political, technical, financial and other material resources
necessary to establish and maintain diplomatic contact with
other states
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Declaratory theory of recognition more accurate

Once met four requirements, there is no other additional
criteria to be met in order to be recognised as a state by other
state. Recognition by other states is not a requirement, it is a
mere declaration
Constitutive theory of recognition not supported by state practice
Need four requirements and recognition by other states that
you are a state to become a state
Art 1 Montevideo Convention on Rights and Duties of States
Four the four elements, not all the sub points
Only a few countries are signatories, it is considered as reflecting
what constitutes statehood

From this concept of statehood flows state sovereignty

o As was stated above, private international law is based upon sovereign
equality and states have a duty not to interfere with another states
sovereignty or internal affairs
o Principle of non intervention
States have a duty not to intervene in the exclusive jurisdiction of
other states
State sovereignty implies that each state should not interfere with
another states sovereignty or internal affairs

From state sovereignty flows state immunity

o Body of rules which determines the extent to which a state is entitled to
claim exemption from another states jurisdiction
o Traditionally, no state could ever be subject to the jurisdiction of another
state absolute immunity
o However, as states became more involved in commercial interests states
moved away from doctrine of absolute immunity. State immunity extended
to states only when their activities were for a governmental or public
purpose, no immunity for activities of a commercial nature or other
essentially private purpose qualified immunity doctrine
s9, 11 Foreign states immunity Act 1985 (Cth)
o Sovereign immunity extends to diplomats who are representatives of states
Art 31 Vienna Convention on Diplomatic Relations 1961
Diplomatic Privileges and Immunities Act 1967 (Cth)
o Heads of State also have immunity during and after term of office
Does not extend to conduct of a private nature

Concept of consent
- Why are states bound by international law?
o Because states have consented and agreed to be bound by it
- General Rule: an international entity cannot be bound by international law against its will
- The Permanent Court of International Justice stated in The Lotus Case
o International law governs relations between independent States. The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to regulate
the relations between these co-existing independent communities or with a view to the
achievement of common aims.
- Therefore, international laws result from cooperation and consent between states and are not
commands which emanate from an authoritative body
16

Exception: Jus Cogens

o Rule or norm that is so universal and fundamental that it applies to all states irrespective if
whether they consent to it.
Art 53 Vienna Convention on the Law of Treaties
a treaty is void if it conflicts with a fundamental principle
o E.g.
Prohibition against aggression
Prohibition against genocide (killing of people of a certain type)
Prohibition against racial discrimination
Prohibition against torture
o These principles are so fundamental that they apply to all states irrespective of consent
Namibia Advisory Opinion 1971 ICJ Rep 276
Sources
- There are four recognised sources of public international law. They are listed in Article 38(1) of the
Statute of the International Court of Justice.
o International treaties
A treaty is an international agreement voluntarily concluded between States or other
international persons.
It is generally in written form and it must be intended to give rise to legal rights and
obligations under international law
May be bilateral (between two countries) or multilateral (between more than two
countries)
Any entity with international legal personality has the capacity to make or conclude a
treaty.
Treaties are only binding on signatories, those who are parties to it
Under section 61 of the Australian Constitution, the power to be bound by a treaty is a
royal prerogative exercised by the Governor-General.
If there is no treaty then turn to customary law
-

International customary law;

Customary international law can be an important source of public international law as
There may be no treaty law on point because a relevant treaty does not exist.
Even if there is a treaty, the relevant States for various reasons may not be bound
by its provisions.
Elements: customary international law derives from
State practice
o Must be uniform, consistent practice on part of states
o State practice includes
Speeches by state officials or diplomats
Parliamentary questions by a foreign minister
Diplomatic correspondence
Official press releases
Government policy statements
Statements by governmental officials on international bodies
Voting records in the General Assembly if clear majority
o What form can the practice take?
Mere statements and verbal practice can constitute state practice
Nicaragua Case (1986) ICJ Rep 14
o How long must a practice be undertaken before it becomes a CIL?
A period of short time is not a bar to the formulation of a new CIL
North Sea Continental Shelf Case (1969) ICJ Rep 3
17

Is insufficient to show that states occasionally behave in a particular

way as Art 38(1) requires practice must be general
SS Lotus (France v Italy) PCIJ Reo (1927) Series A No 10
o How widespread must it be?
Practice should be extensive and generally uniform to have that
requirement of general practice
virtually suggests can have occasional departure
North Sea Continental Shelf Case (1969) ICJ Rep 3
o Protest and acquiescence
A state will be taken to haven acquiesced in the absence of any protest
Protest against a CIL that has already emerged does not release the
State from obligation to conform to it
However, a State may be free from the obligations of a new CIL if the
State maintains a persistent objection unless it is jus cogens
Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116

Opinio Juris
o State practice is coupled with a belief that the practice is obligatory rather
than habitual.
o Psychological element, the sense of legal obligation
o
However, the nature of customary law is problematic in itself as it can be difficult to
identify.
All States are bound by customary international law unless they have persistently
objected to it. A treaty obligation may override customary international law, unless the
latter is jus cogens.

General principles of law recognised by civilised nations;

Introduced to deal with a lacuna (gap) in the law
Principles must exist in main legal systems
Significance of this source is diminishing

Judicial decisions and writings of highly qualified publicists

Both are subsidiary sources
Judicial decisions more important than latter source
Judicial decisions include decisions of international domestic courts
There is no concept of stare decisis in international law
Art 59 of the Statute of the ICJ

Enforcement
-

Public international law operates in partnership with international politics and is only as effective
as its creators allow it to be.
There is no international police force or international court with compulsory jurisdiction over
states.
Instead, the international community has used coercion (that is, the use of armed force) to enforce
compliance with international law in isolated instances in the past.
However, generally international law is primarily enforced through diplomatic channels,
international public pressure, and judicial and arbitral settlements.
The enforcement of international law is both its main strength and its main weakness.
18

There are several bodies that are involved in the creation and enforcement of PIL
o General Assembly
As there is no world legislature to create and enforce legislation as domestic
legislatures do, and creating international law is subsequently an ad hoc process
(unplanned/informal).
One such ad hoc process is State practice, such as declarations issued by international
organisations such as the UN General Assembly, however they are persuasive and NOT
BINDING
The GA is the international equivalent of a domestic legislation; however the GA does
not possess any direct law making powers.
However, as the majority of the worlds nations are members of the UN any
declarations are a good indication of State practice in a particular area.
The GA also facilitates the creation of PIL by convening conferences where treaties are
negotiated between two or more UN members.
o

Security Council
Another organ of the UN
Plays an important role in enforcing international law
Decisions are BINDING on all UN members
Art 25 UN Charter
Consists of 15 member states from the UN with five permanent members US, UK,
France, China and Russia
SC primary responsibility is the maintenance of international peace and security
SC may decide on enforcement measures such as
Economic sanctions (art 41 UN Charter)
Collective military action where necessary to restore peace and security (Art 42
UN Charter)
Decisions must be by nine members, including five permanent members

International Court of Justice

ICJ is the UNs principal judicial organ
Art 92 UN Charter
Its seat is at the Peace Palace in The Hague (The Netherlands).
The ICJ has a dual role
Settle in accordance with international law the legal disputes submitted by states
Give advisory opinions on legal questions referred by other international organs
and agencies
Differs from domestic courts as it is only able to hear a dispute if the states concerned
have accepted its jurisdiction by treaty, agreement for a specific dispute, or by a general
declaration under the ICJs statute
Art 36 ICJ Statute
In hearing disputes, the ICJ may apply general principles which are found in most
legal systems which underlie (motivate/trigger) those rules so as to avoid the ICJ
declaring there is no law on point in the issue (non liquet)

International Criminal Court

Commenced on 1 July 2002
Rome Statute of the International Criminal Court
Has jurisdiction over the most serious of crimes over persons, NOT states
Genocide
19

o Acts committed with an intent to destroy in whole or in part a national,

religious, racial or ethnic group
Art 6 Rome Statute
o Acts include
Killing members of that group
Causing serious bodily harm
Deliberately inflicting conditions calculated to bring about the
destruction of the group
Preventing births
Forcibly removing children of the group
Crimes against humanity
o Certain crimes knowingly committed as part of a widespread or systematic
attack directed against any civilian population
Art 7 Rome Statute
o Includes
Murder
Extermination
Enslavement
Deportation or forcible transfer of population
Imprisonment in violation of international law
Torture
Rape
Sexual slavery
Enforced prostitution
Forced pregnancy
Enforced sterilization
Other similar forces of sexual violence
Enforced disappearance
Apartheid (political system that separates different people and allows
particular privileges to a certain group)
Other inhuman acts of similar character
War crimes
o Grave breaches of the Geneva convention
Art 8 Rome Statute
o Must be committed as part of a plan, policy or as part of a large-scale
commission of such crimes
o Includes
Wilful killing
Torture
Inhumane treatment
Biological experiment
Wilfully causing great suffering
Extensive destruction
Appropriation of property not justified by military necessity
Improper treatment of prisoners of war
Unlawful deportation
Taking of hostages
Attacking civilians
Non-military objectives
Killing combatants after surrender
20

Misusing flags, truce or other military emblems

Torture involving medical or dental interventions
Killing treacherously
Pillage
Using banned weapons or ammunition
Deliberate starvation
etc

The ICC may apportion individual liability to perpetrators of these crimes

UN created the ICC
To provide justice for all victims of breaches of international law
To make persons involved individually liable
To help end conflicts
To remedy deficiencies of ad hoc tribunals
The ICC can only act when national courts are unwilling or unable to prosecute the
person concerned
Penalities include
No death penalty
Life imprisonment for grave crimes
Maximum of 30 years
Fines and forfeiture
Reparations for victims from a trust fund established by State parties

B
Exercising state sovereignty/jurisdiction
-

Territoriality principle
o A state is free to prescribe and enforce rules for all conduct that actually takes place within its
territory or effecting things or persons located within its territory
o Even if concerns a foreign national
o

Subjective Territoriality Principle

Conduct originates in the state, that it commenced in the state, even if
effects/consequences occur in another state
Example
A person in state A shoots a gun and kills a person in State B
State A permitted to exercise jurisdiction over person A despite the effects of the
act occurred in state B

Objective Territoriality Principle

State can exercise jurisdiction sovereignty over conduct if a subsequent element in the
conduct or effects of that conduct occurs in their state
Example
A person in state A shoots a gun and kills a person in State B
State A permitted to exercise jurisdiction over person A despite the effects of the
act occurred in state B
State B is also entitled to exercise jurisdiction over the gunman as the effects of
the conduct occurred in state B
Therefore it will be a matter of who possesses custody of the accused as to who is
able to prosecute
SS Lotus (France v Italy) PCIJ Ser A (1927) No 9
French (Lotus) ship collided on high seas with Italian ship due to negligence of
French driver
21

Nationality principle
o States are free to exercise jurisdiction over those who possess their nationality
o

Active Nationality
State may arrest and prosecute a national for offences against its laws, even if all
elements of the offence including the effects occur outside states territory
E.g. Crimes (Child Sex Tourism) Act 1994 (Cth)
Pedophilia committed outside Australia by Australian nationals

Passive Nationality
Where victim to a crime is a national and where elements of the offence including the
effects occur outside states territory
Not a very strong basis
Six dissenting judges in the Lotus case rejected passive nationality principle
Attorney General of the Government of Israel v Eichmann 36 ILR (1961) 5

Protective principle/Security Principle

o States can exercise jurisdiction over certain acts committed abroad by foreign nationals that
are against that states security interests
o E.g.
Espionage taking place outside Australia by foreign nationals which was directed
towards Australian government. Aus gov could then enact legislation governing such
scenario
Attacks on offices or organs of Australia overseas (e.g. embassy)
Counterfeiting of Australian currency occurring overseas
o Only when states security interests are threatened can the protective principle be invoked
c/f objective territoriality principle allows protection of private individual interests
o
o

8 Italians died
The Lotus docked in Italian port, Italian authorities arrested them and charged
them with manslaughter
France challenged Italys claim to jurisdiction
France said there was no basis to Italys jurisdiction as the act occurred on the
high seas
Court held Italy did have basis for jurisdiction under international law

Generally invoked in addition to another principle

Only going to be able to be used when the conduct is recognised as criminal by the
community of states

Universality principle
o State exercises jurisdiction over all crimes committed by foreigners overseas, to try and
punish crimes so serious they are a threat to international order as a whole
E.g. war crimes, crimes against humanity, genocide, hijacking and terrorism
o

Attorney General of the Government of Israel v Eichmann 36 ILR (1961) 5

Eichmann was extradited to Israel from Argentina and convicted for crimes against
humanity, war crimes, and crimes against the Jewish people
Eichmann argued Israel didnt have legislative jurisdiction to cover those events as he
committed those crimes in Germany
Court held Israel did have legislative jurisdiction due to universality principle and
passive nationality principle
22

C
State Responsibility
-

Arises when a state injures another state or the property or person of another states national
The act or omission (breach) must be
o A breach of an international obligation of that state
o Attributable to responsible state
E.g. if Australia was to bring an action against USA for the mistreatment of David Hicks, would
need to establish bond of nationality with Australia
Most common cases of SR are mistreatment of foreign nationals
Mavrommatis Palestine Concessions Case (Greece v UK) PCIJ ep (1924) Series A, No 212
It is an elementary principle of international law that a state is entitled to protect its
subjects when injured by acts of another state which contravene international law who
are unable to claim satisfaction through other channels. By taking up the case of one of
its subjects and by restoring to diplomatic action on his behalf, a state is in reality
asserting its own rights its right to ensure, in the person of its subjects, respect for the
rules of international law. The question therefore, whether the dispute originates in
injury to a private interest, which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a state has taken up the case on behalf
of one of its subjects before an international tribunal, in the eyes of the latter the state is
the sole claimant.
o Actions for SR can only be brought if all domestic remedies are exhausted
Exhaustion of local remedies rule
Onus rests on state defending action for SR to prove local remedies have not been
exhausted
Draft Articles on the Responsibility of State for Internationally Wrongful Acts
o Article 1 - defines state responsibility
23

Every internationally wrongful act of a state entails the international responsibility of

that state

Article 4- defines obligations/attribution

Conduct of any state organ is considered an act of the state under international law
Organ includes any person or entity which has the status in accordance with the internal
law of the state

Article 5 defines who is attributable re delegated governmental function

If a person does not fall under ambit of Art 4, but is empowered by the law of the state
to exercise elements of the governmental authority is considered an act of the state
provided the person/entity is acting in that capacity in the particular instance
Therefore cant contract out of state responsibility

Article 7 ultra vires acts (acting without orders/beyond legal capacity)

The conduct of a organ/person/entity is considered an act of the state if the person acts
in that capacity, exceeds its authority or contravenes instruction
Test for determining whether person has acted within capacity
o They had themselves out as performing official functions
o Use powers, methods or means placed at their disposal by virtue of their
official capacity

Art 8 private persons

States are not liable for private persons
Except where
o Acting on states instruction
o Acting under states direction or control
o Lack of due diligence by state will also make state responsible

Art 30 - Consequences
Obligation to cease the act or make appropriate assurances that it will not recur
Art 31 Consequences
Obligation to make reparation
Art 35 - Restitution
Restitution (compensation) main form of reparation

o
o
-

Defences
o Consent
o Self defense
o Counter measures
o Force majeure (impossibility of performance)
o Necessity

Dual Nationality
o A state cannot afford to take on rights of a dual national if a person is a national of both states
Art 4 Hague Conference on Nationality
o However, a dual national may not be diplomatically protected against the state that person
has a stronger bond
Canevaro Case (Itlay v Peru) RIAA 397 (1912)
o When a person has dual nationality, the state which has strongest bond with injured person
can take up that persons claim, e.g.
Born
Habitually lives
24

Socio-economic lives
Family lives
Where person votes
States can protect corporations as well as individuals
Test: corp must be incorporated in that state and have headquarters in that state
Barcelona Traction Co Case

D
Relevance of International Law to Australian law
-

What formal steps if any are required to enable international law to operate as part of domestic
law for a state?
There are two main theories, has been gradual change from dualist theory to the monist theory as
the prevailing theory
o Dualist School
International law and domestic law are two separate legal systems
Therefore international law does not operate directly in the domestic legal sphere
Consequently, international law must be transformed into the domestic legal system
Difficulties
Fails to recognise there will be a conflict between international and domestic law
rules in transformation, implies that transformation will be word for word
To that extent this theory is incorrect
o

Monist School
International law and domestic law form one seamless system with domestic law
deriving its authority by way of delegation form international law
There is therefore no need for any act of transformation or implementation as both
systems are in fact part of the same legal order
Any international law that conflicts with domestic law is void
Difficulties
Suggests there is no need to ever transform international law into domestic law
In practice it is in fact necessary for an international treaty to pass into domestic
legislation to become part of the domestic law of a state
To this extent, the monist theory is incorrect

Consequently, these difficulties have given rise to the emergence of a third theory
o Harmonisation Theory
Assumes that international law forms part of domestic law
However, also acknowledges that if there is conflict between the two systems, then it is
the domestic court that needs to resolve that conflict by applying rules of the domestic
jurisdiction
Seeks to overcome the difficulties inherent in the dualist and monist theories, but is not
as prevalent (widespread)

Two other theories

o Transformation Theory Australian approach
States that international law is completely separate from domestic law and must
therefore be transformed into domestic law
ensures the separation of powers between the executive, legislative and the judiciary
it is well established that treaties Australia is signatory to are not part of Australian law
but must be implemented by domestic legislation
Related to dualist theory
25

Provides there must be an act of transformation

Incorporation Theory
States international law is already incorporated into domestic law
International law may still be overridden by domestic legislation
Related to monist theory
There is no requirement for incorporation/transformation

As Australia is a sovereign state, it is able to enter into treaties with other states under international
law
However the power to do this is not explicit within the Australian constitution
Despite this, s61 is held to be the domestic source of power to conclude treaties
Once a treaty has been concluded, s51 allows it to be incorporated in Australian law via legislation
Therefore it is clear the transformation theory applies
Minister for Ethnic Affairs and Immigration v Teoh (1995) 183 CLR 273
Applicant was a Malaysian citizen for temporary entry permit
Teoh subsequently married Australian citizen and had three children
Teoh applied for residency in Australia
However, Teoh was convicted for criminal charges for importing and possessing heroin
and imprisoned at the same time his application was being considered
Application for residency was denied primarily on basis of failure of good character
requirements
Teoh referred to art 3 of the UN CROC which provided that in actions concerning
children the best interests of the child shall be the primary consideration
He claimed that in denying his application for residency art 3 had not been complied
with
Majority of HC held there hadnt been procedural fairness in not giving the applicant an
opportunity to be heard and by not giving the rights of the child primary consideration
HC indicated that treaties can still have some effect even if not implemented in
legislation
Ratification of a treaty is a positive statement by the executive government which gives
rise to a legitimate expectation that the provisions of the treaty will be taken into
account and complied with
However ratification can never operate as a direct source of individual rights and
obligations

A bill was proposed to overturn the decision however it has never been passed and the
case is still currently law but has been widely criticized
The governments position remains that ratified treaties have limited effect until
implementation even though ratification is binding under international law

Customary law as a source of law in Australia

-

a rule of customary law will be adapted or received into Australian domestic law if not inconsistent
with rules that are
o contained in a statute
o declared as common law
normally necessary to implement international customary law by legislation before it becomes law
however customary law may be part of Australian law already
Nulyarimma v Thomson
Buzzacott v Hill
both claimants stating federal ministers had committed acts of genocide
26

genocide is not a crime under Australian law

therefore applicants claimed customary international law against genocide (as jus
cogens) was automatically a part of Australian law
however if customary law was a part of Australian law then criminal liability would
arise
Held
Genocide was not an offence under Australian law without transformation
There was no genocide on the facts
There can be no crime under Australian law unless it is expressly created by
legislation
Therefore not possible to have CIL creeping into the system and establishing a
crime of genocide
Dissenting judge Merkel J held
CIL cannot be adopted into domestic law if inconsistent with a statue
A rule of CIL is to be adopted into domestic law via legislation unless it conflicts
with domestic law
A CIL once adopted has the force of law in the sense of being treated as having
modified or altered the common law

Process of incorporation for treaties in Australia

-

government signs and ratifies a treaty

treaties are table for 15-20 sitting days (30-150 calendar days) and accompanied by a National
Interest Analysis (NIA)
the treaty and NIA are considered by the Parliamentary Joint Standing Committee on Treaties
(JSCOT) for a recommendation to parliament
treaty is put into legislation and presented to parliament in the usual way
treaty must be partially enacted or enacted in full into section in the legislation
if it is only attached as a schedule its terms do not give rise to justiciable rights per se (able to be
tried in a court of law)
treaty obligations can influence the development of the common law in a variety of ways
o interpreting statutes
fundamental policy that domestic law should be read to be consistent with international
legal obligations
prima facie presumption that the legislature does not intend to derogate (leave) from
international law when they pass legislation
Project Blue Sky v Australian Broadcasting Authority
Applicant a v the Minister for Immigration and Ethnic Affairs
o developing the common law
Minister for Immigration and Ethnic Affairs v Teoh
apart from influencing the construction of a statute or subordinate legislation , an
international convention may play a part in the development by the courts of the
common law. The provisions of an international convention to which Australia is party,
especially on which declares fundamental human rights may be used by the courts as a
legitimate guide in developing the common law.
But the courts should act in this fashion with due circumspection when the parliament
itself has not seen fit to incorporate these provisions into our domestic law.
Judicial development of the common law must not be seen as a backdoor means of
importing an unincorporated convention into Australian law. A cautious approach to
the development of the common law by reference to an international convention would
be consistent with the approach which the courts have hitherto adopted to the
development of the common law
27

Much will depend upon the nature of the relevant provision, the extent to which it has
been accepted by the international community, the purpose which it is intended to serve
and its relationship with existing principles of our domestic law
administrative decision making
Minister for Immigration and Ethnic Affairs v Teoh

o
o

in determining whether a piece of legislation is a proper exercise of the external affairs power
under s51 (xxx) of the constitution
Polites v Commonwealth
HC held the conscription of foreign nationals was valid under Australian law even
though there was customary law forbidding such conscription
Thus, customary law was not a part of Australian law
Hortes v Commonwealth
HC said even if the Treaty were void or unlawful under international law or if
Australias entry into or performance of the treaty involved a breach of Australias
obligations under international law, the Act (giving effect to the treaty) would not
thereby be deprived of its character as law with respect to External affairs for the
purpose of s.51(xxix).

Australias Human Rights Treaty Obligations

-

States have capacity to bring actions on behalf of Australian citizens

Mavrommatis Palestine Confessions Case
In modern times the trend now is that various human rights treaties give individuals standing so
they may bring claims themselves in the Human Rights Committee (HRC)
o Convention Against Torture and Other Cruel, Inhuman or Degrading Forms of Treatment or
Punishment (Article 22)
o International Convention for the Elimination of all Forms of Racial Discrimination (Article
14)
o Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)
HRC sits in private and there is no public determination of the issue
A v Australia
o A was a Cambodian who arrived in Australia by boat and applied for refugee status on arrival
o Was held in detention for over four years
o A argued treatment of him by Australian government breached articles of ICCPR, art 2(1), 9,
14
o Australian gov tried to argue inadmissibility, however were only successful in relation to art
2, the others were considered by the HRC
o Court had to ask
Whether the prolonged detention of the author, pending determination of his
entitlement to refugee status, was arbitrary within the meaning of A.9(1)?
Whether the alleged impossibility to challenge the lawfulness of the authors detention
and his alleged lack of access to legal advice was in violation of A.9(4)?
Whether the proceedings concerning his application for refugee status fell within the
scope of application of A.14(1) and whether, in the affirmative, there has been a
violation of A.14(1)?
o In the Committees opinion, court review of the lawfulness of detention under A.9(4), which
must include the possibility of ordering release, is not limited to mere compliance of the
detention with domestic law. While domestic legal systems may institute differing methods
for ensuring court review of administrative detention, what is decisive for the purposes of
A.9(4), is that such review is, in its effects, real and not merely formal. By stipulating that the
court must have the power to order release, if the detention is not lawful, A.9(4), requires
28

that the court be empowered to order release, if the detention is incompatible with the
requirements in A.9(1), or in other provisions of the Covenant. This conclusion is supported
by A.9(5), which obviously governs the granting of compensation for detention that is
unlawful either under the terms of domestic law or within the meaning of the Covenant.
As the State partys submissions in the instant case show that court review available to A
was, in fact, limited the Committee concludes that the authors right, under A.9(4), to have
his detention reviewed by a court, was violated.
-

Hopu and Besset v France

o Complainants were ethnic Polynesian inhabitants of Tahiti
o Brought an action against France for breach of articles in ICCPR
o Complainants were descendants of landowners of culturally significant land
o claimed their rights to access and sue that land was denied as there was construction work for
a hotel
o Held
Construction of the hotel complex on the authors ancestral burial grounds did interfere
with their right to family and privacy
However, France did NOT show that the interferences were reasonable in the
circumstances
Therefore the HRC found that there had been a violation of A.17(1) and 23(1) of the
ICCPR

Self Determination (self government, self rule)

-

traditionally the concept of self determination was controversial as it was unclear whether the
concept was a rule of international law or whether it represented a guideline for policy
development
Definition
o The right if a people to determine their own form of government without interference from
the outside
o The political future of a colonial territory should be determined in accordance with the
wishes of inhabitants within the limits of uti possidetis
o However does not equate with independence
Has two basic aspects
o The internal (making a government) (really goes after external element)
o The external (making a state)
Was originally granted to people under a colonial rule as a matter of principle as
opposed to a matter of law
Namibia case
South Africa had a mandate to administer Namibia which was
overruled
However South Africa continued to rule Namibia and attempted to
introduce apartheid
ICJ declared continued presence of SA in Namibia was illegal
29

Underlying courts decision was that SA was denying Namibias right

to self determination as a matter of principle
The principal is now viewed as a right under customary international law
Advisory Opinion on the Western Sahara
Clear authority for there being a right to self determination
ICJ was being asked to give advisory opinion on
Was Western Sahara at the time of colonization by Spain terra
nullius?
o ICJ held WS was not terra nullius
Were there legal ties between this territory of the Western
Sahara and Morocco and/or Mauritania?
o Were no legal ties
Furthermore, the right to external self determination has an erga omnes character
(Obligation is owed to all and can be enforced by each and any state)
East Timor Case
All peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
General Assembly Resolution 1514 para 2

GA Resolution 1514 lists 3 alternatives

o Integration with the former governing State or another State;
o Free association with the former governing State or another State; or
o Full independence as a new State.
- Questions that remain
o What people actually have this right of self-determination?
o What does self mean?
o How do you know that a group is a proper entity that is entitled to self-determination?
still unsettled as to what people have right to self determination however in a non
colonial context, minority groups cannot exercise right of self determination and create
a new state if it impacts on international borders
What is the scope of the application of the principle of self-determination?
Self Determination for Indigenous People
-

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.
o A.3 of the Draft Declaration on the Rights of Indigenous Peoples

Globalisation
-

The increasing integration of economies around the world particularly through trade and financial
flows
Factors contributing to globalisation include:
o The expansion of free trade;
o Technological and communication advances;
o Transportation advances;
o Greater movement of people between countries;
o Development of global problems;
o Formation of supranational organisations.
To some, globalisation is a positive force which:
o Reduces trade barriers;
o Opens up new markets;
o Provides increased wealth and higher standards of living;
30

o Generates greater information exchange;

o Promotes greater understanding of cultures;
o Promotes respect for human rights and the spread of democracy.
To others, globalisation is a negative force which:
o Undermines workers rights and causes loss of jobs in industrialised countries;
o Causes degradation of the environment;
o Causes further impoverishment of the worlds poor;
o Lowers standards of health care and education;
o Destabilises economies;
o Causes privatisation of public institutions; and
o Homogenisation of cultures.
Potential Consequences of Globalisation include:
o The importance of the nation state and territorial boundaries may recede;
o Cultural differences may disintegrate with homogenisation of cultures.

Regardless of whether one thinks that globalisation is a positive or negative force, it is a

phenomenon which will have a significant impact on:
o Economies;
o Cultures;
o Legal systems.

How has globalisation impacted our legal system?

o Globalisation has seen rapid growth in public international law in the past decade
o Treaties are a mechanism to deal with global problems
o Human rights, anti-discrimination, childrens rights, commercial laws etc

Example of the interaction between international law and politics:

o Principle of self-determination

Globalisation
o Causes
o Positive and Negative Consequences
o Impact on Legal Systems
Read: Philip Olsen Article on self determination
BBC newspaper extract on globalisation
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