Lockerbie Case - Libya applied to the ICJ for interim measures of protection. During the hearing, the SC adopted enforcement measures and the Court took the view that it was bound to dismiss Libya's claim because the Council resolution decisively characterized Libya's conduct as a threat to international peace, even though this was clearly a legal dispute and within ICJ's jurisdiction. (ICJ accepted Security Council's supremacy).
Trend away from Lockerbie: ICJ now does not bow unconditionally, and only where they need to
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory - ICJ held that the mere presence of an item on the Council's agenda did not prevent the General Assembly (who was requesting the Advisory Opinion) from dealing with an issue that was otherwise within its responsibility.
Bosnia Herzegovina v Yugoslavia - Judge Lauterpacht said that Court will not renounce jurisdiction if the Council is only considering a dispute. Will only do this when the Council has actually made a concrete determination of the very question before the Court.
Law of the Sea Convention - In 1982, it crystallised the concept of the Exclusive Economic Zone, so that EEZ exists both in treaty and customary law.
North Sea Continental Shelf - Realising there was oil in the Gulf of Mexico, the USA issued a proclamation claiming a 20 mile continental shelf that was the natural promulgation of their coast underwater within its jurisdction. This did not affect any rights to the waters above it (High Seas regime). However, at that time countries could only extend their rights up to three miles out to sea (Three Mile Territorial rule) - therefore was this ruling accompanied by opinio juris?
The US could not have thought this was in line with international law at the time. As such, opinio juris distinguishes between State practice that can give rise to custom, and those that can't - more powerful or wealthy States find it easier to generate/enfoce practice to create a norm (i.e. the US had plenty of oil drillers etc ready to step in to mine their deposit).
International law accepts power and internalises it - in this case, the norm was accepted by other States, therefore once a norm or obligation is established, it exercises influence not only over the creator State, but all others. In this way (continuing the line of thought that more powerful States will have more chances to produce custom) not all States are equal in creating customary international law. However, its creation is a process or dialogue not only within the creator State itself, but between others.
Here the treaty provision must be capable of general application and must be intended to be the basis of future state practice, as well as being supported by the necessary opinio juris and by acts of practice by non-parties to the treaty.
Gulf of Maine - Custom is ideally suited to the development of general principles and is always available to fill the void should the detailed legal regime of a treaty fail to gain universal acceptance.
The Lotus case - French merchant ship sank a Turkish ship, then put into a Turkish port where the French captain was put on trial for manslaughter. Only France had jurisdiction over the ship, but Turkey won. Now, under Article 11(1) of the High Seas Convention, only the flag state, or the state of which the alleged offender was a national of has jurisdiction over sailors regarding incidents occuring on the High Seas.
Anglo-Norwegian Fisheries case - Defining internal/external waters: Norway won this as there was no binding international customary law to counter their suggestion of what waters were theirs.
Nicaragua v United States - The US was supplying funds to arm the militia in Nicaragua; the case was brought by Nicaragua in hoping to turn the Democrats' votes the other way, and thus stop them supplying money. ICJ ruled in Nicaragua's favour, the Democrats' did change their votes and the money was stopped. However, the US never complied with the judgement.
Applicability of the Obligation to Arbitrate - "The fundamental principle of international law is that international law prevails over domestic law".
Greco-Bulgarian Communities - "It is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty".
Polish Nationals in Danzig - "A State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force". Even if it is against the Constitution, you still cannot rely.
Exchange of Greek and Turkish Populations - Arising from the nature of treaty obligations and from customary law, there is a general duty to bring internal law into conformity with obligations under international law. But a failure to bring about such conformity is not in itself a direct breach of international
law; a breach only arises when the state concerned fails to observe its obligations on a specific occasion -- Fitzmaurice. However, in certain circumstances legislation could of itself constitute a breach of a treaty provision.
Certain German Interests in Polish Upper Silesia - "Municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures" They are 'merely facts'.
Serbian Loads - 1929, where crucial issues turned upon the interpretation of internal law, a study of relevant pieces of municipal legislation had to be done.
Buvot v Barbuit - "The law of nations in its full extent was part of the law of England".
Sandline v Papua New Guinea - "It is part of the public policy of England that its courts should give effect to clearly established rules of international law".
R v Keyn - The Franconia, a German ship, collided with a British ship due to the latter captain's negligence, leading to a British death. The captain was held for manslaughter. However, the sea was not within British territory under statute, but it was under the Three Mile Terrotorial Seas rule in international law. Held that not British waters (as there was no legislation) and the Captain was let go. This was for two factors:
1. The need for evidence of assent by the British Government.
2. The constitutional consideration that the courts could not apply what would practically amount to a new law without usurping the province of the legislature.
It was thought by many to be marking a change to the transformation approach but judges did not seem to be considering the issue between incorporation and transformation. Cockburn CJ's elements of 'transformation' are compatible with incorporation if looked at in that he was concerned with the proof of the rules of international law:- if the evidence is inconclusive and the issue affects the liberty of persons, then assent by the legislature of the forum is needed to
supplement the evidence. He does not apply it generally.
West Rand Central Gold Mining Co. v R - Obiter by Lord Alverstone in that the doctrine of incorporation still applies. But he requires 'assent' in relation to rules based on the 'opinions of text-writers', as opposed to a subject matter on which there is a 'particular and recognized rule of international law'. This is therefore similar to KEYN as to the necessity for conclusive evidence regarding the existence and scope of any particular rule of customary law.
Mortensen v Peters - A Danish captain was convicted by a Scottish court for contravening a fishing by-law in Moray Firth (covered by by-law but out of the Three Mile Terrotorial Seas limit recognised by international law). High Court of Scotland interpreted the Fishery Act in a way contrary to international law, when in fact the enforcement agencies have not applied the Act in this way. Therefore, in the realm of international relations, the English courts seek the guidance of the appropriate department of government on the determination of a variety of issues. This is formally a matter of evidence, but the certificate of the Secretary of State is conclusive of the matter, unless the certificate deliberately leaves the court free to construe (something called an executive certificate). Held that statutes had predominance over customary law, and a British court would have to heed the terms of an Act of Parliament even if it involved the breach of a rule of international law.
Commercial and Estates Co. of Egypt v Board of Trade - Per Atkin LJ, "international law as such can confer no rights cognizable in the municipal courts. It is only in so far as the rules of International Law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".
Chung Chi Cheung v The King - Per Lord Atkin, "international law has no validity except in so far as its principles are accepted and adopted by our own domestic law. The Courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals." But this can be compatible with Incorporation also as it links back to the problem of evidence in KEYN and WEST RAND.
Trendtex Trading Corporation v Central Bank of Nigeria - All 3 judges of the CoA accepted the Incorporation doctrine as the correct one.
Sidhu v British Airways - Per Lord Hope that it was "well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country".
Ellerman Lines v Murray - If the relevant section of the Act had a 'natural meaning' it was improper to resort to the text of the Convention as an aid to interpretation.
Saloman - 2 conditions for resort to the convention:
1. That the terms of the legislation are not clear but are reasonably capable of more than one meaning.
2. That there be cogent extrinsic evidence to the effect that the enactment was intended to fulfill obligations under a particular convention.
Kuwait Airways v Iraqi Airways - In August 1990, Iraqi forces invaded and occupied Kuwait. Among the objects seized were ten commercial aircraft belonging to Kuwait Airways Corporation ("KAC") which were removed to Iraq immediately. In September 1990, the Revolutionary Command Council of Iraq adopted a resolution, RCC Resolution 369 ("the RCC resolution"), which dissolved KAC and transferred all its assets worldwide to Iraqi Airways Company ("IAC"). The UN Security Council condemned Iraq's invasion of Kuwait and passed various resolutions, including resolution 678 which authorised military action against Iraq. The ten aircraft were incorporated by IAC into its fleet. Four of the aircraft that had been moved to Mosul for safety purposes were destroyed during the allied bombing and the other six aircraft were evacuated to Iran. In March 1991, Iraq accepted the UN Security Council's conditions for a ceasefire which included accepting liability under international law for loss and damage caused to Kuwait and its nationals and corporations as well as returning all Kuwaiti property immediately. Iraq also repealed the RCC resolution. KAC later negotiated with the government of Iran and the six aircraft were returned to Kuwait for US$20million.
KAC commenced an action against both IAC and the Republic of Iraq in 1991, claiming damages for over US$800million. In 1995, the House of Lords held in relation to challenges to the jurisdiction of English courts that Iraq had not submitted to the jurisdiction and could no longer be impleaded. As for IAC, it could not claim state immunity after the RCC resolution came into force. KAC then continued proceedings against IAC alone. Mance J tried the issues relating to liability. He found that IAC had wrongfully interfered with KAC's aircraft. With regard to the RCC resolution, he held that English courts could refuse to recognise it as a matter of public policy as it violated international law. The issues concerning damages were tried by Aikens J. He found that KAC had not established that it had suffered any recoverable losses in relation to the aircraft. Both parties appealed. The Court of Appeal upheld Mance J's findings on liability. Regarding damages, the court allowed KAC's claims in respect of the six aircraft in Iran. Both sides then appealed to the House of Lords.
The House of Lords upheld the Court of Appeal's decision both in dismissing IAC's appeal against the decision of Mance J on liability. This is the first case in which English courts have refused to recognise a foreign law which is in breach of international law. As such, the decision goes beyond Oppenheimer v Cattermole [1976] AC 249, which was limited to human rights.
In appropriate circumstances it was legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law and it did not flow inevitably from the non-justiciability principle that the judiciary must ignore a breach of international law committed by one state against another 'where the breach is plain and, indeed, acknowledged' (to be judged by contemporary standards). "Very narrow limits must be placed on any exception to the act of state rule", but there was no need for restraint on grounds of public policy 'where it is plain beyond dispute that a clearly established norm of international law has been violated'.
Eritrea/Yemen - There is a 'strong presumption that islands within the 12 mile coastal belt will belong to the coastal state', that can be rebutted only by evidence of superior title.
El Salvador v Honduras - Effective display of state functions, or economic
inequality generated by old boundaries was not sufficient to displace uti possidetis principle.
Clipperton Island Arbitration - Dispute was over small uninhabited coral reef. French title was held to be established, though the 'acts' allowed were limited to minimal acts of the French Navy and subsequent proclamations of sovereignty in various public journals. These acts, when coupled with an intention to exercise sovereignty, sufficed.
Chamizal Arbitration - US possession of disputed territory had been 'constantly challenged and question by the Republic of Mexico through its accredited diplomatic agents', therefore US cannot have the title.
Tinoco - On the recognition of the government of Costa Rica, it was said that without recognition, (but recognition only of governments) it would be very hard to say that the government exists, because it is the evidence - although formally, this criterion is not necessary. Non-recognition is strong evidence that the entity had not yet attained the alleged status in international law, but the ultimate test is a factual one based on internationally accepted criteria.
Texaco v Libya - If a concession agreement for the extraction of oil might be an internationalized contract subject to rules of international law.
Adams v Adams - UK court refused to recognise divorce granted in Southern Rhodesia because UK did not recognise that country as a sovereign state.
Hesperides Hotels v Aegean Turkish Holidays - Denning said that the court can take note of certain acts of a foreign sovereign, if it was effective within a territory, even though the sovereign was not formally recognised by UK. Acts that the court can take into account are mostly those relating to private individuals.
Gur Corporation v Trust Bank of Africa - Can the Government of Ciskei sue as a
claimant in its own name in an English court? By first instance it was refused as government was not a sovereign authority. However, CoA found that the government was acting under the delegated authority of a sovereign legislature, the recognised government of South Africa (legal fiction).
Al Jeddah [2008] - A, a dual British/Iraqi, was held in custody by British troops at detention facilities in Iraq; he appealed against this decision on the grounds that his detention infringed his rights under the ECHR. He had been detained on the grounds that he was suspected of being a terrorist. The relevant issues were:
- was his detention, by reason of the relevant UN Security Council resolutions, attributable to the UN and therefore outside of the scope of the convention
- whether the UK had become subject to an ‘obligation’ within the meaning of the UN Charter, and if so, whether and to what extent such obligation displaced or qualified A’s rights
- whether English common law or Iraqi law applied to A
Appeal dismissed:
- A’s detention was not attributable to the UN; the multinational force in Iraq had not been established at the UN’s behest and was not a subsidiary organ of the UN. Furthermore, it could be not be said that the US and UK forces were under the effective command/control of the UN, or that the UK forces were under such when they detained A (Rodger dissented)
- A had asserted that Art. 103 of the UN Charter was not engaged, as the relevant UN Security Council resolutions, read in the light of it, at most authorised the UK to take action to detain him, but did not ‘oblige’ it to do so.
i. UK as an occupying power = necessary to take steps to protect its own, and the public’s safety. If it was therefore judged necessary to detain a person in nature that they could be a threat, then there was an obligation to do so.
ii. Academic opinion = Art. 103 was applicable where conduct was authorised by the Security Council as where it was required.
iii. ‘Obligations’ in Art. 103 should not be given a narrow meaning = the importance of maintaining peace and security in the world is of extreme importance. Whilst the UK was not specifically bound to detain A in particular, it was bound to exercise its power of detention where that was necessary for imperative reasons of security. There was a clash between a power/duty to detain which was exercisable on the express authority of the SC, and on the other hand, a fundamental human right which the UK had undertaken to secure to those within its jurisdiction. Where it was necessary for security, this power could be exercised, but there had to be an insurance that the detainee’s rights (Art. 5) were not infringed to any greater extent than was inherent
- Iraqi law was the applicable law; there were insufficient grounds for displacing it.
As such, HRA and Art. 5 of ECHR convention may be trumped by SC resolutions.
Cutting case - An American citizen published in a Texan newspaper a defamatory statement of a Mexican. He was arrested whilst in Mexico, and convicted of the offence using the passive personality principle.
US v Yunis - Court accepted that though the passive personality principle is one of the most controversial, it is legitimately recognised by the international community.
Joyce v DPP - J was born in America, but fraudulently obtained a British passport by declaring he was born in Ireland. He left Britain and started working for the German radio broadcasting pro-Nazi propagandist. He then claimed to have acquired German nationality. Did the British court have jurisdiction to try him after the war for treason? It was held that he could, as J had held himself to be a British subject, and had therefore availed himself of the protection (albeit fraudulently) of a British passport. Therefore, he can be deemed to owe allegiance to the Crown, and was therefore in breach of that duty.
Eichmann case - E was prosecuted and convicted under Israeli court for war crimes, crimes against Jewish people and crimes against humanity. Israel abducted him from another state.
US v Toscanino - The rule that jurisdiction was unaffected by an illegal apprehension should not be applied where the presence of the defendant has been secured by force or fraud (this approach is not followed).
US ex rel. Lujan v Gengler - Rule in TOSCANINO is limited to cases of 'torture, brutality and similar outrageous conduct'.
US v Alvarez-Machain - Where the terms of an extradition treaty in force between the states concerned prohibited abduction, then jurisdiction cannot be exercised. Otherwise it is permissible.
R v Horseferry Road Magistrates Court ex p. Bennett - Where an extradition treaty existed with the relevant country under which the accused could have been returned, 'our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our police, prosecuting or other executive authorities have been a knowing party'.
