Public International Law

Summary

Introduction

The idea of sovereignty over territory is fundamental to international law. No State can exist without land, and thus the ways in which land can be acquired and retained are concerns of great importance for States. Many international disputes involve land, and are intrinsically bound up with land, and relative to the use of land, so as an issue, sovereignty sits at the heart of international relations as well as international law.

All States possess territory, so for a State to exist it will need some land. No State has no land – although there are examples of ‘micro-States’, such as the Holy See, which have extremely small areas. One body that claims statehood, but no longer possesses territory, is the Sovereign Military Hospitaller Order of St John of Jerusalem of Rhodes and of Malta, better known as the Sovereign Order of Malta. The Order was expelled from its last remaining territory on the island of Malta in 1798. Since then it has occupied certain premises in Rome that possess extraterritorial status under international law. Few States recognise the Order, so it is at best a dubious example of a State with no territory.

Title to territory is based on sovereignty, so it is necessary to indicate exactly what sovereignty will encompass. A good starting point is the judgment of Max Huber in the Island of Palmas Case:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is their right to exercise therein, to the exclusion of any other State, the functions of a State.

Essentially, a State ought to be able to effectively control its own territory, and is deemed responsible for acts occurring in its territory. If a State can assert control over territory, without effective protest from other States, over a long enough period of time, it may be able to claim title to the territory. Since all States need to possess territory to function as a State, the mechanisms for determining territorial sovereignty are of great significance to States.

There are a number of basic mechanisms for determining title to territory in international law. To obtain a full understanding of the nature of title to territory, it is necessary to consider each of the mechanisms in turn.

Summary

Introduction

A central feature of the international legal system is that States are the predominant actors within the system and possess international legal personality. As a result, States are able to enter into legal relations with each other by way of treaties, possess certain international legal rights as bestowed under international law, and are capable of enforcing those legal rights in international litigation or of being the subject of a claim if they are derelict in meeting their international legal obligations. This raises two important issues. First, how are ‘States’ characterised and recognised under international law? Second, are States the only international actors that possess international legal personality?

A number of factors have increased the significance of this area of international law. To begin, States, and the notion of ‘statehood’, have undergone significant evolution in recent centuries, and contemporary international law has had to keep abreast of these developments. While international law recognises that there are essential attributes to what comprises a ‘State’ for the purposes of the international legal system, there remain important political processes at play with respect to the recognition of States. During the United Nations (UN) era this question has assumed particular importance due to a number of factors. The first is that since 1945 the international community has witnessed an unparalleled growth in the number of States. This is simply evidenced by the growth in the membership of the UN, which has expanded from the original 51 members in 1945 to 193 members in 2017. This growth in the number of States within the international system can be attributed to a number of factors, of which the process of decolonisation has been one of the most significant. Another contributing factor in the past 30 years has been the break-up of former federated States such as Yugoslavia, and the emergence of new republics in Eastern Europe following the end of the Cold War. Consequently, the law that governs the emergence and recognition of new States, including their membership of international organisations such as the UN or NATO (North Atlantic Treaty Organization), has since 2000 attained particular contemporary significance.

The second factor that has made this area of the law relevant during the UN era has been the emergence of an ever increasing number of international organisations that claim to possess international personality.

Summary

Introduction

The international law of the sea has developed over many hundreds of years. Modern principles can be traced back to the 17th-century debates between scholars such as Grotius and Selden over whether or not nations had the right to control areas of the sea. At that time, nations were concerned over access to fishing grounds and trading routes; today's maritime interests have expanded to include the laying of submarine cables, mining of deep seabed resources, control of people smuggling and other transnational crimes, maintenance of national security, and conservation of high seas biodiversity, to name a few. Although many of the principles of customary international law in this area are well established, the law of the sea is today dominated by the 1982 United Nations Convention on the Law of the Sea (LOSC), a monumental agreement that provides the framework for international cooperation in maritime areas.

Freedom of the seas

The current framework of maritime zones, which define the relative rights and obligations of coastal and other States, has evolved against the background of a long-standing tension between States wishing to exercise control over parts of the high seas and those seeking to maintain free access. As O'Connell states:

The history of the law of the sea has been dominated by a central and persistent theme: the competition between the exercise of governmental authority over the sea and the idea of freedom of the seas. The tension between these has waxed and waned through the centuries, and has reflected the political, strategic and economic circumstances of each particular age.

The progression of this debate is dealt with by Shearer in the following extract.

SHEARER, STARKE'S INTERNATIONAL LAW, 11TH EDN, BUTTERWORTHS, LONDON, 1994

[218] Initially, navigation on the high seas was open to everybody as were also fisheries, but in the fifteenth and sixteenth [219] centuries – the periods of great maritime discovery by European navigators – claims were laid by the powerful maritime states to the exercise of sovereignty, indistinguishable from ownership, over specific portions of the open sea.

Summary

Introduction

Law-making is not a straightforward process in international law. There is no centralised structure or global government responsible for identifying certain policy directions and legislating accordingly. With the exception of decisions of the United Nations (UN) Security Council and the European Commission, States have not agreed to being bound by resolutions or decisions of international organisations. International organisations and groupings of States like the UN General Assembly are no more capable of creating formal and binding legal norms than diplomatic conferences that discuss and draft agreements for signature and ratification by States. The most crucial difference between international law and domestic law is that, by and large, international law is created by the very subjects it binds – that is, States – without a formalised structure of government or legislature. This chapter focuses on the various law-making processes and structures available for creating international law. It first considers the traditional sources of international law as set out in art 38(1) of the Statute of the International Court of Justice (ICJ Statute) generally and the concept of hierarchy of norms and relative norms before considering each of the art 38(1) sources in turn. The chapter concludes by considering alternative sources of international law not covered by art 38(1): ‘soft law’ including that created by non-State actors, and the role of the UN in creating international law.

The traditional sources of international law

The cornerstone of any discussion relating to the sources of public international law is art 38(1) of the ICJ Statute. It provides:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

Summary

Introduction

In the 19th century international law did not concern itself with protecting the gamut of political, civil, economic, social and group interests and rights considered important in the 20th and early 21st centuries. States were required to protect individuals in a limited number of areas such as piracy, slavery, treatment of sick and wounded soldiers, and prisoners of war. The dominance of the concept of sovereignty precluded any State or institution from using international law to intervene in the domestic affairs and jurisdiction of a State. In 1905, when Lassa Oppenheim published his first edition of International Law, considered to be one of the most significant English-language treatises on the subject, he stated that the rights of human beings were not a part of international law.

The end of World War I started an important shift towards the idea that groups of individuals had to be protected, although the language of human rights was not used widely. The League of Nations in 1919 focused on groups and minorities in particular. Article 22 of the 1919 Covenant of the League of Nations established rudimentary provisions for the self-determination of people who, because of war, had stopped being governed by their own State. It included an obligation on the part of the Mandatory Powers acting on behalf of the League to guarantee the freedom of conscience and religion. The Treaty of Versailles, signed at the end of World War I, established the foundations of the International Labour Organization (ILO) to support the rights of individuals to associate and promote better standards of working conditions.

Contemporary human rights discourse, however, is predominantly founded upon developments that began with the end of World War II. A declaration on 1 January 1942, referred to as the Declaration by United Nations, committed 26 States, including Australia, to preserving ‘human rights and justice in their own lands as well as in other lands’. This Declaration was later followed by the Charter of the United Nations (UN Charter), which in art 1(3) identified the promotion and encouragement of respect for human rights as one of the central purposes for establishing the United Nations (UN). An important postwar development in the human rights discourse was the adoption by the UN General Assembly in 1948 of the Universal Declaration of Human Rights (UDHR).

Now in its third edition, International Law: Cases and Materials with Australian Perspectives remains an authoritative textbook on international law for Australian students. With a strong focus on Australian practice and interpretation, the text examines how international law is developed, implemented and interpreted within the international community and considers new and developing approaches within this field. This edition has been comprehensively updated to address recent developments in international law. The selection of cases and materials provides a thorough coverage of core areas and addresses a range of contemporary challenges, including climate change, human rights, nuclear proliferation and the South China Sea. A new chapter on international trade law reflects the growing importance of this body of law in Australian practice. Guiding commentary provides a rigorous analysis of key principles. Written by a team of experts with substantial experience in this field, International Law is an essential resource for students.

Summary

Obligation to settle disputes peacefully

The peaceful settlement of international disputes is a fundamental principle of international law, and a direct corollary of the prohibition on the threat or use of force. Both principles feature prominently in the 1945 Charter of the United Nations (UN Charter). They have been repeated on many occasions, including the UN General Assembly's 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations and the 1982 Manila Declaration on the Peaceful Settlement of Disputes between States.

Prior to the 20th century there were many circumstances in which it was considered legitimate for States to use armed force to settle their international disputes. Gradually, however, as the power and efficiency of weaponry increased, public opinion began to shift and formal attempts began to limit the legitimacy of warfare as a tool for dispute resolution. Even prior to World War I, in 1899 and 1907, conventions were concluded at The Hague restricting the right to wage war and seeking to establish peaceful dispute resolution mechanisms. The Permanent Court of Arbitration was established through these treaties, providing a neutral forum in which States could settle their differences. The creation in 1919 of the League of Nations as a forum for international discussion and cooperation, and the Permanent Court of International Justice (PCIJ) as the first permanent judicial body to hear disputes between States, laid the foundation for a system of measures designed to ensure peaceful settlement of international disputes. However, the League of Nations was unable to prevent World War II, and following the war, the victorious States set about redesigning the system to overcome its major weaknesses. With the preservation of world peace as its foundation, the United Nations (UN) was formed.

Although UN member States are obliged to settle their disputes peacefully (UN Charter, art 2(3)), there is no specific requirement as to how a particular dispute must be settled. The UN Charter refers to a variety of mechanisms (art 33, below) and establishes the International Court of Justice (ICJ) as a forum for judicial settlement of international disputes. However, no particular method is mandated, and all depend upon the consent of the parties. In practice, a range of dispute resolution mechanisms are employed, from informal negotiations or diplomacy through to formal judicial proceedings.

Summary

Introduction

International law establishes its own distinctive framework dealing with both the sources of international law and how that law deals with the relations between States. Accordingly, treaties regulate certain relations between States at either a multilateral or bilateral level and the obligations created under these treaties create certain levels of State responsibility by the treaty parties to act in good faith. While the international law frameworks regulating the relations between States are relatively well developed, the role of international law at a municipal level is equally important. This can be illustrated in various ways.

Human rights conventions recognise certain rights for citizens of a State. In some instances these rights may also reflect constitutionally entrenched rights of citizens. Often, however, these rights are both distinctive and universal in nature and may not be reflected in municipal legal systems. The issue that then arises is how to translate the international human rights obligation contained in the convention into municipal law. Likewise, under environmental conventions State parties may have obligations to preserve and protect certain designated wilderness areas. To properly give effect to these obligations it may become necessary to designate a protected area or park under municipal law. One consequence of this may be that future development of the area will be constrained as a result of municipal law seeking to give effect to the terms of an international convention. Further, the United Nations (UN) and its various organs may create obligations for member States through Security Council resolutions that impact at both the international and the national levels, thereby raising issues as to how these obligations are to be given effect domestically so as to ensure that the State remains in compliance with its international obligations.

The challenge then for both international law and municipal legal systems is how the international law obligation becomes recognised at the municipal level so that both rights and obligations are created not only for the State and its institutions, but also for citizens and business entities. Occasionally the constitution of a State may indicate precisely what status international law has within that municipal legal system.

Summary

Introduction

International trade law is a subset of public international law, and consists of the rules governing trade between nations. Historically this area of law was primarily concerned with trade in goods, but now includes trade in services (effectively the cross-border supply and consumption of services) and trade in intellectual property. International trade law has relevance to other fields of international economic law, including investment law. However, the focus of this chapter is on trade law as conducted under the auspices of the World Trade Organization (WTO), an organisation that commenced on 1 January 1995. The WTO administers many agreements, and not all are covered by this chapter. Of particular note, the Agreement on Agriculture and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are not covered: further reading on these Agreements is listed at the end of the chapter. To understand the laws that the WTO administers, it is necessary to understand both the economic theories of international trade, and the history of international trade law. This chapter introduces these concepts, and then explains the current structure of the WTO, including the dispute settlement processes. It then covers the core disciplines of the General Agreement on Tariffs and Trade 1994 (GATT) and the main exceptions to these disciplines, before turning to the safeguards, dumping and subsidies regimes. The chapter then introduces the two agreements that cover regulatory standards at the WTO, and finally provides an overview of the General Agreement on Trade in Services.

Economic theories of trade

For much of the 16th to 18th centuries, international trade operated in accordance with the theory of mercantilism – goods were exchanged for gold, and nations tried to amass as much gold for themselves as possible. Nations aimed to obtain raw goods (often from colonies), transform them and sell the final products to other nations for a profit. Thus the focus was primarily on exporting goods rather than importing goods. In the late 18th and early 19th centuries new theories of trade emerged – first with Adam Smith's theory of absolute advantage, followed by David Ricardo's theory of comparative advantage. Both theories rest on the idea of specialisation of production of goods, using labour as an input unit for production.

The occupation of Iraq in 2003 involved a wide-ranging set of interventions in the domestic legal, political and economic structures of the state, interventions that provoked a debate about whether the law of occupation should recognize a category of ‘transformative’ occupation.

While the occupation itself has often been decried as an imperial venture, its administration involved a diffusion of power among international institutions as well as ratification by the Security Council through Resolution 1483. This article pursues the intuition that the transformation of norms and practices elsewhere in the international order underwrote the idea that it was the law of occupation that was problematic, at the same time facilitating the transmutation and preservation of practices that might be identified as imperial. Two developments are key: The first is the pervasive normalization of intervention in the domestic policy and legal orders of states; the second is the dissemination of norms about domestic regulation within the international order, those that touch on economic governance in particular. The orders of the occupying were infused in both form and substance with ideas of ‘normal governance’ traceable to myriad projects, policies and practices of other international institutions: development agencies, financial institutions, trade organizations. Iraq then might be a revealing case with which to consider the character and locations of contemporary imperialism, as well as the role of international law and international institutions in its unfolding.

Between 1935 and 1937, the International Missionary Council conducted the Bantu Educational Kinema Experiment. The objective was to produce silent educational films and screen them to ‘native’ people via mobile cinemas in the British territories in East and Central Africa. Embracing the principle of ‘indirect rule’, and its role in training colonial subjects in economic self-sufficiency and political self-rule, as then advocated by leading colonial figures and the League of Nations, the films strived to capture ‘the native point of view’ through an ‘ethnographic sensitivity’ towards local cultures, concerns and needs. Hoping to educate the natives from ‘within’, they used local actors, familiar locations and pedagogical instructions that were believed to meet the target audience's cognitive capacity. Though in many respects unsuccessful, the experiment cemented the use of cinema in the late colonial project and, more importantly, embodied the clear move at the time towards a more dynamic and disaggregated, yet perhaps never fully post-imperial, international order. I argue in this article that the Bantu Experiment is thus a telling instance through which to examine both the mobility and multiplicity of late imperial locations and the system of modern international administration that emerged during the interwar period. I suggest that this mobility and multiplicity continue to characterize the workings of today's international order, indicating the key role that ‘indirect rule’, as a silent principle of international law, still plays in its functioning today.

Before 1492, European feudal practices racialized subjects in order to dispossess, enslave and colonize them. Enslavement of different peoples was a centuries old custom authorized by the law of nations and fundamental to the economies of empire. Manumission, though exceptional, helped to sustain slavery because it created an expectation of freedom, despite the fact that the freed received punitive consequences. In the sixteenth century, as European empires searched for cheaper and more abundant sources of labour with which to exploit their colonies, the Atlantic slave trade grew exponentially as slaves became equated with racialized subjects.

This article presents the case of Haiti as an example of continued imperial practices sustained by racial capitalism and the law of nations. In 1789, half a million slaves overthrew their French masters from the colony of Saint Domingue. After decades of defeating recolonization efforts and the loss of almost half their population and resources, Haitian leaders believed their declared independence of 1804 was insufficient, so in 1825 they reluctantly accepted recognition by France while being forced to pay an onerous indemnity debt. Though Haiti was manumitted through the promise of a debt payment, at the same time the new state was re-enslaved as France's commercial colony. The indemnity debt had consequences for Haiti well into the current century, as today Haiti is one of the poorest and most dependent nations in the world.

A wave of interdisciplinary scholarship in the last two decades has managed to place empires at the center of the history of international law. This article surveys key insights resulting from this move and assesses remaining challenges. In explaining how the study of law in particular imperial locations can illuminate global legal transformations, the article identifies cross-cutting themes of articles in this special volume.

The thematic horizon within which this article takes place is the colonial expansion of the Western powers in China between the nineteenth and the twentieth centuries. Focusing on the foundation of the British, French and American concessions in Tianjin, it aims to reconstruct the Western strategies of colonial governance and the role played by law in the process of production of a new social space. Opened as a treaty port in 1860, Tianjin is the only Chinese city where up to nine foreign concessions coexisted, becoming a complex, hybrid space (in)between East and West, defined by social practices, symbolic representations, and legal categories, which does not coincide simply with the area defined by the entity as a state, nation, or city.

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

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Abbreviations

6 - Sovereignty over territory

Summary

5 - International legal personality

Summary

10 - Law of the sea

Summary

2 - Sources of international law

Summary

Table of treaties and other international instruments

Index

9 - Human rights

Summary

International Law

15 - The peaceful settlement of international disputes

Summary

Frontmatter

4 - International and municipal law

Summary

12 - International trade law

Summary

Occupied Iraq: Imperial Convergences?

The Moving Location of Empire: Indirect Rule, International Law, and the Bantu Educational Kinema Experiment

Empire, Racial Capitalism and International Law: The Case of Manumitted Haiti and the Recognition Debt

Made in Empire: Finding the History of International Law in Imperial Locations: Introduction

International Dispute Settlement – from Practice to Legal Discipline

The Birth of an Imperial Location: Comparative Perspectives on Western Colonialism in China

British War Crimes Trials in Europe and Asia, 1945–1949: A Comparative Study

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International Law

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