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Introduction: trends in international law-making for the environment
International environmental law provides a useful example of a rapidly developing field of international law, and demonstrates some of the difficulties involved in resolving modern global problems within the traditional legal framework.
International environmental law is a relatively recent development. The environment did not feature in the Charter of the United Nations (UN Charter) and none of the constituent bodies of the United Nations (UN) was expressly given an environmental mandate. Since the 1960s, however, we can trace a steady growth in international law concerned with environmental problems. This growth of law at the international level is mirrored by Australia's domestic environmental law experience. Both reflect the growing public awareness of environmental issues and the demand for a legal response.
Various trends in the development of international environmental law may be recognised. Historically, this area of law developed as a reaction to particular instances of harm, resulting in international agreements that deal with a single issue: for example, prevention of one type of pollution or protection of a particular species of wildlife. As truly global problems became apparent – for example, depletion of the ozone layer, and global warming – the response of the international community has been to develop agreements that are broader and more strategic in their approach.
The principle of territorial sovereignty, which holds that nations have the right to use their own territory and resources as they please, presents a particular challenge for international laws seeking to protect the environment. Full support for traditional notions of sovereignty cannot be maintained if global environmental issues are to be effectively dealt with. This tension is clearly reflected in the debates, both national and international, over appropriate responses to issues such as climate change.
International environmental law has responded to this challenge by developing new principles to guide decision-making and resolve disputes, including the precautionary principle, intergenerational equity, common but differentiated responsibility, and the common concern of humankind. New methods of law-making have emerged, in particular the use of ‘soft law’ for the development of environmental law. There is a growing use of ‘guiding principles’ and economic incentives, rather than strict legal ‘rules’, to encourage changes in behaviour.
International environmental law must address the different viewpoints of developing and developed nations.
Jurisdiction refers to the ability of a State to make and enforce its laws. While often related to sovereignty, and intrinsically linked to its territory, jurisdiction can exist without a connection to territory. Jurisdiction can be held to exist in a variety of contexts, depending on the location of events, the nationality of participants or the surrounding circumstances, and will also indicate whether a State may be able to undertake enforcement action to uphold its law. This chapter considers the nature of jurisdiction insofar as it affects persons, corporations, ships and aircraft. The different types of recognised international law jurisdiction are each assessed, including territorial jurisdiction, nationality jurisdiction, universal jurisdiction, the protective principle, and passive personality jurisdiction. Jurisdictional immunities as they apply to States, Heads of States, State officials and diplomats are also considered.
Types of jurisdiction
All types of jurisdiction may be divided into two basic types: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate an activity, and to prescribe certain behaviour. That is to say, prescriptive jurisdiction is the ability to make laws that can validly purport to regulate people and situations, regardless of their location. Enforcement jurisdiction is the ability of a State to validly enforce its law, through the exercise of executive and judicial power. That is, it is the legal validity of a State to arrest, try, convict and gaol an individual for a breach of its laws.
Jurisdiction can be further broken down into categories, based on territory, nationality, the nature of the act in issue, and possibly even the nationality of the victim. Each of the different categories is explored specifically below, but each raises issues of prescriptive and enforcement jurisdiction. In considering any of the circumstances that have given rise to national jurisdiction, there also needs to be consideration of whether the State exercises merely prescriptive or also enforcement jurisdiction.
The Case of the SS ‘Lotus’ (often known as the Lotus Case) is a very famous decision of the Permanent Court of International Justice (PCIJ) that has been the subject of much ongoing debate. In the extract that follows, Judge Moore considers some broad issues relating to jurisdiction and international law.
The 20th century witnessed two great global wars that are commonly referred to as World War I (1914–18) and World War II (1939–45). The combined military and civilian casualties of these two wars exceeded 60 million people, with a resulting devastating impact upon Europe and parts of Africa and Asia. These events were the catalyst for the modern constraints on the use of force. Until the beginning of the 20th century, international law made little effort to regulate the resort to war. Many international legal scholars of that era conceded that war was a normal part of the conduct of international relations and that international law had little role to play in the decisions made by States to go to war. Two major developments changed legal thinking on these matters. First, the 1899 and 1907 Hague Peace Conferences reached agreement on 16 Conventions and accompanying Declarations, which placed limitations on how belligerent States conducted themselves during hostilities, including the weapons they could use. These Conventions and Declarations, often referred to as ‘Hague law’, were a key component in the early development of the modern law of armed conflict. Second, the creation of the League of Nations following the conclusion of World War I placed constraints on the resort to the use of force. The Covenant of the League of Nations, found within the 1919 Treaty of Versailles, sought in art 11 to make ‘any war or threat of war’ a matter of common concern to the members of the League. This development was soon followed by the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy (Kellogg–Briand Pact), which clearly provided for the renunciation of the resort to the use of force. Article 1 provided:
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.
While ultimately these developments in international law proved unable to prevent the outbreak of World War II, they did provide the foundation for key provisions of the Charter of the United Nations (UN Charter), of which art 2(4) is one of the most significant.
What would the world be like without international law? We cannot really answer this question but we do know that the world relies on this body of law to deal with important and difficult issues. International law helps develop our aspirations for the international community and facilitates problem solving around such issues as terrorism, the increasing spread of diseases, and the need to reduce carbon emissions and mitigate against the effects of climate change. It contributes to creating order in the world and also to the deployment of political ambitions, which in turn can sometimes create additional problems for the international community, such as States claiming new territory or resources that are disputed. Importantly, it also enables a world without a central government to generate solutions for emerging and complex issues and problems, such as cyber-security and warfare.
Not all international issues and problems are, however, easily identifiable as being within the purview of international law. An example of a complex international issue is the rise of globally significant cyber-attacks that do not appear to be State-sponsored or have State institutions as their main targets. However, given the significance of such attacks to the international community, many have assumed that international law and its institutions would have a central role in dealing with them. International law and its institutions, however, have limited powers and State institutions usually have to coordinate enforcement activities against foreign hackers. Domestic problems or issues, on the other hand, sometimes raise significant international law issues despite appearing as relevant only to the State concerned. For example, increasing taxes in Australia on domestically consumed movies, rather than on the income of nationally registered companies, acts as an import tariff on corporations that do not have Australian operations. Whether Australia can impose taxes on domestic consumption of goods and services has to be assessed in terms of implications for its international trade obligations. International law can, therefore, address and deal with very specific local issues and problems.
International law is commonly defined as the rules governing the legal relationship between States. International law provides a framework for understanding what rights and duties States have in relation to each other, and other international actors such as the United Nations (UN).
One of the challenges of the international legal system is that of enforcement. While the municipal legal system has developed mechanisms for law enforcement, including the police forces, the courts and prison systems, there is no equivalent in international law. That international law does not possess the same enforcement mechanisms as exist in municipal law is highlighted as a major point of distinction between the two legal systems. It is often said that in the absence of an ‘international policeman’ it is not possible to effectively enforce international law.
Enforcement mechanisms that have been developed since the creation of the United Nations (UN) in 1945 have transformed the international legal system from the one that pre-dated the outbreak of World War II. Principal among these has been the establishment of the International Court of Justice (ICJ) as the judicial organ of the UN – it has the capacity to resolve international legal disputes and deliver judgments that are binding upon those parties to the case, and that may ultimately be subject to Security Council recommendations if a party ‘fails to perform the obligations incumbent upon it’. In addition, the Security Council has significant powers under Chapter VII of the UN Charter to seek to ‘maintain and restore international peace and security’ and as part of that mandate the Council regularly adopts resolutions that are binding upon member States of the organisation and enforceable by way of various mechanisms, including economic sanctions. However, the capacity of the Security Council to sometimes act decisively in these matters has historically been hampered by the use of the veto by one of the Permanent Members (China, France, Russian Federation, United Kingdom, United States of America). This was particularly an issue during the Cold War, and while the veto is now not used as frequently it can have an impact on how the Security Council can respond to an international crisis involving violations of international law, as occurred with the Council's response to the events in Syria from 2011 onwards.
In addition to the UN Charter, since 1945 multilateral treaties have developed increasingly sophisticated mechanisms for enforcement.
States as international legal actors enjoy international legal personality, which includes the right to seek redress for an international wrong and also to be held accountable for an internationally wrongful act. Clearly a State can only commit an internationally wrongful act in international law through individuals or entities acting on its behalf, or through being responsible for such conduct. Two elements are therefore essential for invoking State responsibility:
(a)The existence of an international legal obligation between States. This obligation may originate from treaty, customary international law, general principles of law, or any other recognised source of international law.
(b)That the conduct of a State, including persons and entities for which the State is responsible, has resulted in an internationally wrongful act that has caused loss or damage to another State.
The consequences that follow a finding of State responsibility for an internationally wrongful act are significant and fundamental to international law. As observed by the Permanent Court of International Justice (PCIJ) in the Chorzów Factory Case: ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.
The content of the international law rules on State responsibility gradually evolved throughout the 20th century. In 1969 the International Law Commission (ILC) began working on the topic of State responsibility, during which time ‘Draft Articles’ were prepared in the expectation that a Convention would eventually be negotiated. The ILC's work proceeded through a number of drafts, a name change, and significant debate within both the ILC and the international legal community on the legal rules that were proposed. Eventually on 9 August 2001 the ILC adopted the Articles on Responsibility of States for Internationally Wrongful Acts. While often referred to as the ‘Draft Articles’, reflecting the lengthy process of ILC deliberation over various drafts across nearly three decades, following the noting of the ILC's work by the UN General Assembly in December 2001 the term ‘Draft Articles’ is no longer widely used. Nevertheless, the Articles on Responsibility of States for Internationally Wrongful Acts (ILC Articles), while having the appearance of a treaty, are unlikely to ever become fully endorsed as part of a convention on State responsibility primarily due to a lack of impetus for such a development among States.
Since the second edition of this book was published in 2014 there have been continual developments in international law through State practice, new treaties and an expanding international jurisprudence developed by a growing array of international courts and tribunals. For example, in 2016 an international tribunal handed down a much anticipated Award in the South China Sea Case between the Philippines and China, which provided clarity to certain aspects of the law of the sea, and to some dimensions of the law relating to international dispute resolution. Likewise, in 2018 a Conciliation Commission will deliver a report arising from a dispute between Australia and Timor-Leste over a maritime boundary in the Timor Sea. In 2015 the international community was finally able to achieve consensus on a successor to the Kyoto Protocol to the United Nations Framework Convention on Climate Change in the form of the 2015 Paris Agreement. Throughout 2017 the United Nations Security Council was also responding to the threats posed to international peace and security by North Korea's nuclear program and new Resolutions were adopted to ensure the maintenance of international peace and security. These developments have resulted in a continual thickening of international law, with the consequence that some gaps in the law have been covered, understanding of the law has been enhanced, and adjudication and enforcement of international law have added to a better appreciation and understanding of its capacity.
This third edition takes stock of some of these and other important recent developments in international law. Challenges such as climate change, crimes against humanity, human rights abuses, nuclear proliferation, resource management, self-determination of peoples, and transnational crimes such as people smuggling are considered. These challenges have caused States, international organisations and the international community more generally to reconsider some of the foundational concepts and principles of international law, and whether new approaches to these and other emerging challenges to the international order are required.
This work seeks to assess these issues from a traditional international lawyer's perspective, but also one that considers appropriate Australian State practice. While international law is a truly global discipline, we believe there is much to be gained from examining, where appropriate, Australian viewpoints and practice in international law and that tradition has been continued in this edition.
The rapid development of international law in the post–World War II period from 1945 onwards also coincided with greater reliance upon treaties as a source of international law. Treaties had always been recognised as a source of international law, and their status was confirmed in art 38 of the Statute of the International Court of Justice (ICJ Statute). However, it was the development of the United Nations (UN), with its emphasis upon international law and focus upon treaty-making as a means of not only peaceful resolution of disputes but also multilateral agreement between States on matters of common concern, that was the catalyst for a greater reliance upon treaties in the conduct of international relations.
This chapter begins by briefly examining the growth of treaty-making, before considering what a treaty is, including the nature of ‘instruments of less than treaty status’. It then covers treaty negotiation, creation and entry into force; reservations, objections and declarations to treaties; and legal obligations arising once a treaty has entered into force. The chapter then turns to treaty interpretation, and then examines how treaties are voided or ended through invalidity, suspension or termination. Finally, the chapter concludes with a discussion of amendment and modification of treaties.
Growth of treaty-making
The UN has actively promoted reliance upon treaties as a means of developing international law, with the International Law Commission (ILC) tasked in its early years with the responsibility of drafting a number of treaties, which were then presented for negotiation and consideration at a multilateral conference of UN member States. Through this process, international law rapidly developed in the postwar period of the late 1940s to 1960s in areas such as international humanitarian law, the law of the sea, and human rights. While these developments were occurring at the multilateral level under the sponsorship of either the UN or other developing international organisations, there was also a growth in bilateral treaty–making as States began developing their postwar economies and rebuilding their international relations across many different fields of interest. This phenomenon in international treaty-making was also gradually duplicated at the regional level as groups of States with shared interests came together to reach settlement upon matters of common interest.
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.
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.
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
 Initially, navigation on the high seas was open to everybody as were also fisheries, but in the fifteenth and sixteenth  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.
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:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Article 38(1) clearly states where international law is to be found for the purposes of proceedings before the International Court of Justice (ICJ) and although only a handful of cases come before the ICJ each year, the jurisprudence of the Court holds great weight with the international legal community.