Law Notes Public International Law Notes
Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...
The following is a more accessible plain text extract of the PDF sample above, taken from our Public International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Restraints on State Jurisdiction
Immunity– reciprocal nature of dipl. exchange
Act of State – quest. of int. boundaries, state succession or resp. are treated by national courts as int. transactions b/w states non-justiciable in nat. law
Non Justiciability– subject matter of the claim is governed by IL – court has no competence to assert jurisdiction (e.g. validity of constitution or legislative acts of foreign state, save where violate IL)
Not mutually exclusive – can exist simultaneously
StateImmunity: General
Rationale
Sovereign equality of states under IL = par in parem non habet imperium
Implied waiver of absolute privilige by territorial sovereign in favour of another state rationalised by trade
Practical – national court shouldn’t consider merits of dispute involving foreign state in light of policy issues
International comity – desire to foster int. co-op & avoid unnecessary state disputes
Objections
More in keeping with dignity of the sovereign to submit to rule of law than claim to be above it + his independence’s better ensured by accepting decisions of courts’ acknowledged impartiality than by arbitrary rejection of their jurisdiction (Denning)
Need to ensure fairness to individuals affected by states
Sources
Customary IL
Treaties
not widely ratified – mainly crystallised customary IL
Domestic Legislation
mainly common law countries
where no domestic legislation, states recognise & apply IL rules to that effect
Types
Immunity from judicial jurisdiction
Immunity based on identity of the litigant (ratio personae)
Non justiciability based on substance of dispute (ratio materiae)
Immunity from enforcement/execution
E.g. assets may be immune to execution
State Immunity in IL
Initial: absolute immunity no mitigation of circumstances dealing w/states v. risky
Greater involvement in commercial dealings + counterproductive for countries to adhere to it b/c lost share of trade etc
Doctrine of Restrictive Immunity – state has immunity from jurisdiction of foreign courts re certain acts only
Actus jure imperii– acts of sovereign nature = state immune
Actus jure gestionis– commercial acts = state not immune
State to be treated as ordinary litigant when it behaves like one
Adopted by UK, US, not Latin Am. or new Commonwealth provides growth + encourages trade
Fitzmaurize – a sovereign state doesn’t cease to be sovereign just b/c it performs acts which private citizen may perform
Lauterpacht – in engaging in econ. activities, state still acts as public person for general purposes of community as a whole
Application of Distinction
Problematic: each state may have own view few grounds on which distinction could be made are:
Purpose of the act
Not favoured by nat.’l courts
UK– purpose is immaterial = enough that transaction is of commercial type
US – unsatisfactory b/c all acts of sovereign could be said 2b for public purpose, since state itself has no ‘private’ needs – always acts for benefit of the country
Incorporated into ILC Draft Articles on Jurisdictional Immunities (subsidiary role in IL) + Art 2 UN Convention (purpose relevant if it’s been relevant in the past practice of state concerned) = attempt to broker a compromise between accepting & objecting states, not greatly welcome but subsidiary role firmly established.
Nature of the act
whether act is of its nature essentially commercial transaction (e.g. contract for supply of goods)
Trendtex Trading Corp v Central Bank of Nigeria – intrinsic nature of agreement entered into by CB is commercial = no immunity, even if performedstate functions.
UK: nature alone not sufficient test
Subject matter
Classification of types of acts acc to subject matter (US Victory Transport Case) e.g. admin acts (expulsion of aliens), legislative acts (expropriation of foreign owned property) – sovereign acts, irrespective of purpose/ manner in which concluded = draw up conclusive list
merit: court would decide in acc w/list = relieved from burden of deciding merits of internal policies of states + initial difficulty of drawing a list up met by mutual agreement b/w states
defect: arbitrary discriminatory choices + ignorance of ad hoc circumstances
Contextual two-stage approach
2 stages:
whether it’s a private law act (could be performed by private citizen) or act done under govt. authority
look at whole case, incl. initial transaction b/w parties + particular act giving rise to dispute (nature of breach) – for matter to be private, initial act + act giving rise to claim must be private
I Congresso del Partido – 2 ships carrying sugar to Chile, diverted on order of Cuban govt. after new Chilean govt. came into power; action in rem by Chilean workers against I Congresso (Cuban ship); Cuba argued state immunity; held: initial act (contract for supply of sugar) was a private act + diversion of ship, whilst could be done by individual w/ownership, was done under sovereign authority + discharging cargo was a private act = no immunity.
Despite shortfalls, applied by US, Canada avoids mechanical application....
Immunity for Violations of IL/jus cogens
IL/UK courts are not willing to deny immunity b/c offence is contrary to IL, even if it breaches jus cogens
Al-Adsani v Govt. of Kuwait (pre-Pinochet) – C, UK & Kuwaiti nat.’l, accused by Sheik’s relative for circulating sex videos; C alleged he was tortured at Sh.’s instructions, treated in London for burns, received threats; brought civ. proceedings against Sh. (obtained default judgment) & Kuwait’s govt. (immune under 1978 Act, even though torture was IL crime) for damages (PI & mental suffering).
Jones v Saudi Arabia(confirmed Al-Adsani) – SA immune, regardless of allegations of torture by its officials; HL: neither UK nor IL require denial of immunity ‘just b/c’ offence contrary to rule of jus cogens/subject to universal jurisdiction.
Doesn’t constitute a defence to a charge of violation of jus...
Buy the full version of these notes or essay plans and more in our Public International Law Notes.
Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...
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