Index
Abbreviations used in the index
Note: for abbreviations used in the Pulp Mills case
See under the list of abbreviations and acronyms at 152 ILR 93-4
1975 Statute (Statute of the River Uruguay)
ACCC (Australian Competition and Consumer Commission)
ACHPR (African Charter on Human and Peoples’ Rights (1981) (Banjul Charter))
ACHR (American Convention on Human Rights (1969))
ALRC (Australian Law Reform Commission)
CARU (Administrative Commission of the River Uruguay)
ECJ (European Court of Justice)
EIA (environmental impact assessment)
Espoo (Convention on Environmental Impact Assessment in a Transboundary Context of the UN Economic Commission for Europe) (1991)
Financing of Terrorism Convention (1999) (International Convention for the Suppression of the Financing of Terrorism (1999))
FSIA (Australian Foreign State Immunities Act 1985)/(US Foreign Sovereign Immunities Act 1976)
FTCA (Federal Tort Claims Act)
GC (Geneva Convention)
GL(CP)A (Gazetted Land (Consequential Provisions) Act 2006) (Zimbabwe)
ICJ (International Court of Justice)/(Statute of the International Court of Justice)
IFC (International Finance Corporation)
ILC (International Law Commission Draft Articles)
IPPC-BAT (European Commission Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry (2001))
MHWUN (Medical and Health Workers Union of Nigeria)
NGO (non-governmental organization)
PCIJ (Permanent Court of International Justice)/(Statute of the Permanent Court of International Justice)
POPs (persistent organic pollutants/POPs Convention (2001))
RC (Convention Relating to the Status of Refugees (1951))
ROC (Rules of Court)
SADC (Southern African Development Community)
SIA (State Immunity Act)
STL (Special Tribunal for Lebanon)
TC (Torture Convention (1984))
TJRA (Truth, Justice and Reconciliation Act 2008) (Kenya)
TJRC (Truth, Justice and Reconciliation Commission) (Kenya)
TUA (Trade Unions Act)
UNC (UN Charter (1945))
UNSCR (UN Security Council resolution)
VCCR (Vienna Convention on Consular Relations (1963))
VCDR (Vienna Convention on Diplomatic Relations (1961))
VCLT (Vienna Convention on the Law of Treaties (1969))
acquiescence, requirements/definition/classification as, intention to be bound 139
act of State doctrine, “facts of State” 575
act of State, examples of acts considered for classification as, armed conflict, determination of existence of 575
admissibility of evidence (arbitral and international tribunals and municipal courts), video recording 95–6
Afghanistan, Coalition operations in, as non-international armed conflict 574–5
arbitrary arrest or detention, freedom from (municipal law/general), restrictions/derogation, grounds, detention on reasonable suspicion of actual or potential criminal offence 444–5
armed conflict
existence, responsibility for determining
“facts of State” and 575
jurisprudence
Krajisnik 575
Tadić 575
possible examples
Afghanistan (2001-11) 574–5
Iraq (2009) 574–5
Australia
commercial transactions exception to State immunity (FSIA 11) 370, 382, 415–30
“all the parties are foreign States” exclusion (FSIA 11(1)(a)(i))/exclusion of special entity 371–2, 383
contract, arrangement or understanding restrictive of trade (Trade Practices Act 45), applicability to 378–80, 415–18
criminal proceedings, definition 368
FSIA 1985
absolute theory/exceptions, relationship 369, 381–2
ALRC Report and 381–2
“foreign State” 393–8
consistency with common law/replacement of 392–3
FSIA 1985 by section
3(1) (definitions)
“foreign State” 381–2
“proceeding” 368, 381–2
“separate entity” 372–3, 381–2, 386
3(2) (“separate entity”) 372, 373–7, 398–400
3(3) (“foreign State”)
“does not include…separate entity of a foreign State” 382
text 368, 369
3(3)(c) (department or organ of foreign State as “State”) 386
10 (submission to the jurisdiction) 370
11 (commercial transactions exception) 370, 415–30
text 366n.8, 378, 382
UK State Immunity Act (SIA 3) compared 415–18
See under commercial transactions exception to State immunity (FSIA 11) above
11(2)(a)(i) (“all the parties are foreign States” exclusion) 371–2, 383
12 (contracts of employment) 370, 383
13 (personal injury and damage to property) 370, 383
14(1) (interest in, or possession or use of, property in Australia) 370, 383, 411–12
14(2) (property by way of gift or succession) 370, 383
14(3)(a) (bankruptcy, insolvency or winding up) 370, 383
14(3)(b) (administration of trust or estate of deceased person or person of unsound mind) 370, 383
15 (copyright, patents, trademarks) 370, 383
16(1)(a) (foreign State membership of bodies corporate) 370, 371–2, 384, 411–12
17(1) (agreement to arbitrate) 370, 384
17(2) (agreement to arbitrate: recognition/enforcement of arbitration award) 371
17(3) (arbitrations: “all the parties are foreign States” exclusion) 371–2
18 (actions in rem) 371, 384
19 (bills of exchange) 371, 384
20 (taxes) 371, 384
21 (proceeding relating to proceedings in ss 10-20) 371, 384
22 (separate entities) 382, 384
text 371, 384
35 (enforcement: applicability to separate entities), text 385
law of
Acts Interpretation Act 1901 by section
15AB(1)(a) (use of extrinsic material to confirm ordinary meaning in context/object and purpose) 393
15AB(1)(b)(i) (use of extrinsic material to determine meaning in case of ambiguity) 393
15AB(1)(b)(ii) (use of extrinsic material to avoid manifest absurdity or unreasonable meaning) 393
Evidence Act 1995, 140 (civil proceedings: standard of proof) 414
legislation, interpretation, aids
dictionary 390
explanatory memorandum 395–6
ministerial statement 395–6
legislation, interpretation, guidelines
every word to be given meaning 373–4, 390
ordinary and natural meaning 390–3
text/clear language 389
separate entity
definitions
agency or instrumentality of foreign State requirement (FSIA 3(1)(a)) 372–3
department or organ of foreign State, exclusion (FSIA 3(1)(b)) 372–3
FSIA 3(1) 372–3
FSIA 3(2) 372, 373–7
natural or corporate person as agency of more than one foreign State (FSIA 3(2)) 373–7, 382, 398–400
enforcement proceedings (FSIA 35) 385
State immunity, entitlement 367–78, 380–430
State agency/State entity, classification as (in particular for purposes of State responsibility and State immunity):
“agency or instrumentality”, distinguishability 373–6, 390–1
burden/standard of proof 412–15
criteria
absence of control, relevance 376–7, 386, 389, 398–400
majority ownership 412–15
nature of functions 374–6, 386
ownership, relevance 376, 386, 389, 398–400
critical date for determining, cause of action 415
Garuda 377, 400–3, 412
MAS (Malaysian Airline Systems Berhard) 377, 403–11, 412–15
national airline:
See Garuda (national airline immunity) (outline of proceedings)
See under separate entity above
State immunity, theory/doctrine, absolute theory/exceptions, relationship 369, 381–2
terrorism, legislation relating to 582
Trade Practices Act 1974 by section
45 (contracts, arrangements or understandings that restrict dealings or affect competition) 368, 378–80
76 (pecuniary penalties) 368
Austria, law of, Criminal Procedure Code (ZPO) by section, 152(1)
Awas Tingni Community, land ownership system, intergenerational responsibility and 252–3
Baoanan (diplomatic immunity)
background
plaintiff”s allegations 599–601
procedural background 598–9, 601–2
burden/standard of proof 602
residual immunity (VCDR 39(2)), general principles 603–4
diplomatic immunity from jurisdiction (VCDR 31(1)) 602–3
residual immunity (VCDR 39(2))
acts performed in exercise of functions, limitation to 604–15
entitlement of Baja 604–15
employment of domestic staff 607–14
non-employment claims for human trafficking, forced labour, rape and sexual slavery 608, 614–15
entitlement of Mrs Baja 615–16
Biodiversity Convention (1992)
precautionary/preventive (sic utere tuo) principle 241
Pulp Mills (River Uruguay) 173–4
burden/standard of proof
environmental obligations 299–300
equal burden 144, 347–9
jurisprudence
Application of the Genocide Convention 144, 299–300
Maritime Delimitation in the Black Sea 144
Military and Paramilitary Activities (Nicaragua v. USA) 144
Pedra Branca/Pulau Batu Puteh 144
onus probandi actori incumbit 347–9
applicability to assertions of both parties 144
reversal 144, 347–9
Canada
Criminal Code 1970-85-87-94-97-01, terrorism, definition/elements 581–2
terrorism, definition/elements, acts by insurgents against armed forces of a State for political purposes 581–2
terrorism, legislation relating to 581–2
clean hands doctrine, right to seek relief in municipal courts while in breach of the law 666, 667
Commercial Farmers Union case (Zimbabwe)
applicants’ allegations/founding affidavit 650–1
requested order 651–2
compensation (Acquisition of Farm Equipment or Material Act 2004) 666–7
constitutionality of GL(CP)A 3(2) 660–1, 667
automaticity of loss of rights to lands 656, 667
continued occupation of acquired land as criminal offence (GL(CP)A 3(2)) 650, 663, 667
costs 668
Court's analysis and decision 653–68
conclusions 667–8
discrimination (Constitution 23) 653–60
exclusion of right to challenge acquisition of land (Constitution 16B(3)(a)) 656–7, 667
exclusion of right to seek relief while remaining in occupation of acquired land (clean hands doctrine) 666, 667
factual and procedural background 650
justiciability of land reform programme 661
preliminary objections 652–3
joinder to merits 653
rule of law obligation (Constitution 18(1)(a)), compliance with 661
eviction of person unlawfully occupying land (GL(CP)A 3(5)) 663–4, 668
“lawful authority”/ “offer letter” (GL(CP)A 2(1)(a)) 662–3, 667
obligations towards former owners 664–6
self-help by holders of offer letters, exclusion 665–7, 668
communal interest/ownership (native/aboriginal/indigenous property rights), intergenerational 252–3, 254–5
constitution (State), interpretation, “is not absolute” 471, 477, 491–4, 499–500
consular immunity from jurisdiction (VCCR 43)
“acts performed in the exercise of consular functions” (VCCR 43(1)), domestic assistance including official entertainment 633
jurisprudence, Park 633
criminal proceedings, definition 368
diplomatic agent, classification as/ranking, Head of State 545–6
diplomatic agent, inviolability of person/immunity from arrest (VCDR 29)
jurisprudence, Tachiona 637
service of process 637–8
diplomatic functions/“diplomatic activity” (VCDR 3(1)) 606–15
employment of domestic staff 561–7, 607–14, 633–5
payment by State, relevance 634–5
“private servant” (VCDR 1(h)), relevance 635
visa status, relevance 633–4
human trafficking, forced labour, rape and sexual slavery (Baoanan) 608, 614–15
jurisprudence
Brzak 613–14, 631–3, 635
D’Cruz 613–14
De Luca 613–14
Guinand 614
Osman 613–14
Swarna 606–7, 612–13
Tachiona 631–2
personnel management 632–3
diplomatic immunity from jurisdiction (VCDR 31)
action relating to professional or commercial activity outside official function (VCDR 31(1)(c)):
employment of domestic staff 561–7, 634
See also diplomatic functions/“diplomatic activity” (VCDR 3(1)
criminal jurisdiction (VCDR 31(1)), functional immunity and, hiring of domestic servant as official act and subsequent treatment of servant distinguished 635
jurisprudence
767 Third Ave. Associates 628
Baoanan v. Baja 562–3
Guinand 605, 614
Park v. Shin 629
Sabbithi 607n.9
Swarna 563–5, 607n.9, 609n.10, 611n.12, 612–13, 615n.13
Tabion v. Mufti 562, 564–5, 605, 609n.10, 634
diplomatic privileges and immunities
functional basis
acts “not…benefit[ting] individuals but…ensur[ing] the efficient performance of the functions of diplomatic mission” (VCDR Preamble) 564, 602–3, 628–9
personal immunity distinguished 602–3
diplomatic privileges and immunities, duration (VCDR 39)
termination of mission (VCDR 39(2)) (including residual immunity) 562–4, 565–6, 603–16, 627–35
acts “not…benefit[ting] individuals but…ensur[ing] the efficient performance of the functions of diplomatic mission” (VCDR Preamble) 564, 602–3, 628–9
acts performed in exercise of functions, limitation to 560, 604–15, 627–32
See also diplomatic functions/“diplomatic activity” (VCDR 3(1))
diplomatic official functions (VCDR 31(1)(c)) distinguished 607n.9, 631–2, 634
reasons for limitation
See also diplomatic functions/“diplomatic activity” (VCDR 3(1))
entitlement of spouse 615n.13, 628
jurisprudence
Brzak 604, 627, 631–3, 635
Knab 604
Swarna 603–4, 606–7, 615n.13
travaux préparatoires 626, 629–30
due diligence:
See under environmental impact assessment (EIA), need for, due diligence and, due diligence obligation
See also obligation of result vs obligation of conduct/best efforts to ensure compliance with
environmental impact assessment (EIA), need for
customary international law 156
due diligence and 156, 157, 158–9, 162, 351–4
precautionary principle and 231
Pulp Mills (River Uruguay) 131–2, 155–61
treaties and other international instruments relevant to
Espoo (1991) 157, 158
UNEP Goals and Principles of EIA (1987) 157, 158
environmental impact assessment (EIA), scope/requirements
absence of clear customary international law or treaty specification 157
adequacy of methodology for determining suitability of location 159–60
alternatives, need to consider 157–60, 351–3
completion prior to implementation of project 157
consultation of affected populations 160–1, 353–4
continuous monitoring 157, 175, 199–200
national responsibility for determining 157
environmental protection obligations:
burden/standard of proof 299–300
common good of mankind concept 270–1
intergenerational rights and responsibilities:
See intergenerational rights and responsibilities
international environmental law principles, applicability (ICJ 38(1)(c)) 209–10, 227–42
NGOs, role 267–70
procedural and substantive obligations, distinguishability 271
as shared responsibility 149–51
treaties relevant to:
See under precautionary principle, treaties and international instruments relevant to
See also good neighbourliness principle (sic utere tuo)/avoidance of harm to others, Pulp Mills (Statute of the River Uruguay (1975)) (merits)
environmental protection/socio-economic interests, need to balance (integration principle), River Uruguay Statute (1975) 34, 147–8, 210, 262–7, 337–8
See under Pulp Mills (Statute of the River Uruguay (1975)) (merits), environmental protection/socio-economic interests, need to balance (integration principle)
Espoo:
See under environmental impact assessment (EIA), need for, treaties and other international instruments relevant to
evidence (ICJ), evaluation by Court, scientific uncertainty and 181–9, 354–61
See also scientific evidence, evaluation
executive certificate/statement, conclusiveness in relation to foreign relations matters
diplomatic immunity from jurisdiction (VCDR 31) 605
existence of armed conflict 574–5
Head of State, status as 546, 551, 553–4
recognition of State/government 553–6
State immunity entitlement 548–50, 553–4
treaty interpretation 626
expert evidence:
See also scientific evidence, evaluation
expert evidence/witness
Court's responsibility for evaluating evidence and 145–6, 166, 286–90, 361–3
Guyana/Suriname Arbitration 187–8
ICJ use of (ICJ 50/ROC 67 and 68) 144–6, 166, 184–5, 286–90
Court's right to set up enquiry/request opinion (ICJ 50) 197–9, 260–2, 361–3
expert witnesses as counsel, avoidance 145, 184, 300–1
internal experts (experts fantômes) 187
expert evidence/witness, jurisprudence
Application for Revision and Interpretation of the Judgment of 24 February 1982 (Tunisia v. Libya) 184
Chorzów Factory 197, 261–2, 362
Continental Shelf Case (Tunisia v. Libya) (Application for Revision and Interpretation) 198
Corfu Channel 185, 197, 261–2, 288–9, 362
Diversion of Waters from the Meuse 261
Free Zones of Gex and Upper Savoy 198
Frontier Dispute 198
Gabčíkovo–Nagymaros Project 261
Gulf of Maine 185, 197, 362
Guyana/Suriname Arbitration 187–8
Iron Rhine (Ijzeren Rijn) 187–8
Kasikili/Sedudu Island 289
Laguna del Desierto 289
Military and Paramilitary Activities 198, 288–9
Oscar Chinn 198
Temple of Preah Vihear 198, 288–9
WTO jurisprudence 188–9
federal States
constituent States/entities:
constituent States as separate entities 532–6
recognition/enforcement of laws of 541
service of process on 536–7
See also judicial review/justiciability (acts of foreign State)/recognition and enforcement of foreign law, jurisprudence
foreign law, recognition/enforcement:
characterization of law for purposes of, applicable law 539
enforceability of laws of constituent States of federation 541
penal law, forfeiture of proceeds of crime 537–9
public law
“assertion of the authority of central or local government” test 539–40
“other than penal or revenue law” 537, 539–40
See also judicial review/justiciability (acts of foreign State)/recognition and enforcement of foreign law, jurisprudence
foreign relations including recognition and State immunity issues, responsibility for, jurisprudence
Alamieyeseigha 531, 554–5
The Arantzazu Mendi 548–9, 553–4
Bancoult 549
CCSU 549
Duff Development 553
Kuwait Airways (Nos 4 and 5) 549, 554–5
freedom of assembly/association (ACHPR 10), trade union rights 469, 479–80, 485–8, 491, 500–2
freedom of conscience (municipal law/general), burden/standard of proof 448
freedom of expression (municipal law/general), burden/standard of proof 448
FSIA 1976/82 (United States) by section
28 USC 1605(a)(2) (commercial activity exception to State immunity), “commercial activity carried on in the United States” 644–5
28 USC 1605(a)(5) (tortious activity exception):
applicable law for determining “tortious” nature of act 641
failure to mentor employees 643–4
imputability of acts outside scope of employment 641–2
injury occurring in forum State/territorial jurisdiction 641
See also Swarna (diplomatic immunity)
28 USC 1605(a)(5)(A) (tortious acts: act or omission in case of discretionary function), FTCA case law, relevance 642–3
fundamental principles of law, role in legal order 277–80
Garuda (national airline immunity) (outline of proceedings)
ACCC proceedings 365, 380–1
“commercial transaction” 378–80
leave to appeal 381
opinions of
Lander and Greenwood 367–80
Rares 380–430
parties’ arguments 387–9, 402–3, 408–11, 418–19
primary proceedings/summary of judgment of Jacobson J
“commercial transaction” 415–18
overview 365–6, 381
“separate entity” 386
status of Garuda 400–2
status of MAS 403–8
“separate entity” 372–7, 386–415
status of Garuda 377, 400–3, 412
status of MAS 377, 403–11, 412–15
summary of relevant legislation 367–78, 381–5
Garuda (procedural background):
summary of relevant legislatio
See under Australia, FSIA 1985 by section, Trade Practices Act 1974 by section
See under Australia, FSIA 1985 by section, Australia, separate entity, Australia, State agency/State entity, classification as (in particular for purposes of State responsibility and State immunity), Australia, Trade Practices Act 1974 by section
general principles of law [recognized by civilized nations] (ICJ 38(1)(c)/PCIJ 38(1)(c))
as autonomous “source” 213–14, 285–6
Court's obligation to analyse application 226–7
customary international law and 214
fundamental principles of law and 277–82
general principles and rules of international law, relationship 209–10, 214–16, 217–18, 282–5
jurisprudence
Application for Review of UNAT Judgement No 158 216
Chorzów Factory 214–15
Construction of a Wall 215–16
Corfu Channel 215
East Timor 215–16
Effect of UNAT Awards of Compensation 216
Frontier Dispute 215–16
Gabčíkovo–Nagymaros Project 215–16
Mavrommatis Palestine Concessions 214–15
Military and Paramilitary Activities 215
Namibia 215–16
Nuclear Tests 216
Oscar Chinn 214–15
Reservations to the Genocide Convention 215
Right of Passage 215
Latin American attitudes to 225–6
resolutions of international organizations and 214, 217–18
travaux préparatoires 210–13
Advisory Committee of Jurists/PCIJ 210–13
San Francisco changes (1945) 213
writings of publicists (ICJ 38(d)) and
ICJ period 221–6
PCIJ period 218–21
good neighbourliness principle (sic utere tuo)/avoidance of harm to others 228–31, 243–4
as customary international law 33, 127–8, 243
“harm”, CARU Digest 153
international river/watercourse, non-navigational uses (including UN Convention (1997)) 230, 244
jurisprudence
Corfu Channel 127–8
Gabčíkovo–Nagymaros 33, 47, 152
Legality of Nuclear Weapons 33, 47, 127–8, 152
Rio Declaration on Environment and Development (1992) 228, 230
Stockholm Declaration on the Human Environment (1972) (Principle 21) 228, 230, 243
UN World Charter for Nature (1982) 228–9, 230
See also precautionary principle, Pulp Mills (Statute of the River Uruguay (1975)) (merits)
Gul
absence of trial evidence, effect 575–6
acts by insurgents against armed forces of a State for political purposes, exemption from classification as terrorism
acts directed at civilians, limitation of terrorism to 583–6
asylum cases (UK) 588–91
customary international law 578–9, 586–7
international humanitarian law distinction between attacks on civilians and military forces, relevance 584–6
State practice 573–4, 579–83
UK domestic law 587–91
appeal against sentence 595
combatant immunity
insurgents 576–7
UK armed forces 577–8
Court's conclusions 586, 591
existence of armed conflict
appellant's contentions 574
executive certificate, conclusiveness 574–5
factual and procedural background 569–73
charges 571
questions from jury after retirement 571–3
jury misconduct, allegations of 591–5
Head of State, status as, executive certificate/statement, conclusiveness 546, 551, 553–4
Head of State, diplomatic privileges and immunities, entitlement
as diplomatic agent 545–6
exemption from immigration controls 544–8
Head of State immunity from jurisdiction, entitlement
customary international law 547–8
executive certificate/statement, conclusiveness 546, 551
Ruler of State of Malaysian Federation 544–56
human/fundamental rights and freedoms (municipal law/general)
derogation/restrictions
balance with rights and freedoms of others 443
“prescribed by law” 445
public interest/purpose 443
statutory limitation and 442–3
ICJ judgment, compliance obligation (including enforcement/implementation) (UNC 94)
good faith presumption of 179, 346–7
jurisprudence
Chorzów Factory 179
Military and Paramilitary Activities 179
Navigational Rights 179
Nuclear Tests 179
ICJ procedural issues, pleadings, availability to the public (ROC 53(2)) 97
ICJ Rules of Court (as variously amended)
38(4) 19
53(2):
See under ICJ procedural issues, pleadings, availability to the public (ROC 53(2))
56 97
56(2) 97
56(4) 97
61(4) 98
62(2) 184
64(b) 184
65 184
67 184–5
73(2) 19, 59, 95
post-1972 Rules distinguished (“shall specify the reason therefore”) 82–3
74(3) 19, 20, 59, 60
75(2) 90
75(3) 36, 48, 70
ICJ status and functions (ICJ 36(1) and 38)
development of international law 285
dispute settlement, duty to encourage parties to find peaceful resolution 71
preventive risk assessment/precautionary principle 190–2
ILO Conventions, operation and enforcement, implementing legislation/incorporation, need for 480–2, 485–8, 494–5, 512, 567
indigenous people, land rights, intergenerational responsibility and 252–3, 254–5
intergenerational rights and responsibilities
development of concept 248–55
as general principle of environmental law 209–10, 363–4
Goa Guidelines (1988) 250–1
indigenous peoples’ communal approach to property rights and 252–3, 254–5
jurisprudence
Bámaca Velásquez 254–5
Community Mayagna (Sumo) Awas Tingni 252–3
Gabčíkovo–Nagymaros Project 250
Indigenous Community Sawhoyamaxa 254–5
Indigenous Community Yakye Axa 254–5
Legality of Nuclear Weapons 363
UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997) 249–50, 257
UNGA resolution 35/8 (1980) 249–50
interim measures (ECJ), jurisprudence, Commission v. Atlantic Container Line AB 41
international armed conflict (GC Protocol I (1977)), applicability, armed conflict in exercise of right of self-determination (Art. 1(4)), reservation (UK) 576–7
international organizations, competence and functions
Legality of Nuclear Weapons 125
speciality principle 125
international rivers and watercourses:
non-navigational uses, good neighbourliness principle (sic utere tuo)/avoidance of harm to others 230, 244
See under Pulp Mills headings
International Seabed Area (UNCLOS XI) (“Area”), developing States’ needs and interests, UNCLOS 152
Iraq, post-occupation (28 June 2004), as non-international armed conflict 574–5
Italy, law of, Criminal Procedure Code 1930 by article, 152
Johannesburg Declaration on Sustainable Development (2002) 257
judge ad hoc (ICJ 31(2) and (3)), appointment, Pulp Mills 20, 96
judicial review/justiciability (acts of foreign State)/recognition and enforcement of foreign law, jurisprudence
Barakat Galleries 538–40
Manterfield 540
Mbasogo 540
Ortiz 539–40
President of Equatorial Guinea v. RBS 539–40
Spycatcher case 539–40
judicial review/justiciability (foreign relations or prerogative power), land reform programme 661
jus cogens/peremptory norm, fundamental principles, role in legal order 277–80
Kenya
burden/standard of proof, failure to challenge facts, effect 441
Constitution (1963 with amendments prior to adoption of 2010 Constitution) by section
60(1) (establishment of High Court as superior court of record) 436
70 (equal protection of the law), text 443
72 (liberty of person), text (extracts) 444
72(1) (liberty of person) 453, 456, 457–8, 459–60
72(1)(e) (detention on reasonable suspicion of actual or potential criminal offence) 444–5
72(3) (prompt hearing) 444–5, 452–3, 454–6, 457–60, 461–2
72(3)(b) (prompt trial: person detained on reasonable suspicion of commission or potential commission of crime) 437, 451–2
72(5) (detention without charge) 453
72(6) (compensation for unlawful arrest or detention) 437
74 (torture or inhuman treatment or degrading punishment), text 445
74(1) (torture or inhuman treatment or degrading punishment) 436, 445–7, 452–3, 454–6, 457–60, 461–2
77(1) (fair hearing within a reasonable time by independent court) 447, 452, 459–60
78 (freedom of conscience)
burden/standard of proof 448
text 447
79 (freedom of expression) 448
text 447–8
80 (freedom of assembly and association)
burden/standard of proof 448–9
text 448
81(1) (freedom of movement), burden/standard of proof 449
82 (freedom from discrimination) 449
text 449
84 (enforcement of constitutional rights):
precise indication of rights allegedly contravened, need for 439–40
See also Wakaba (enforcement of protective provisions of Constitution of Kenya (Art. 84))
84(1) (right to redress/damages) 450–1
84(3) (referral to High Court of case raising questions under s 84) 455
freedom of expressio
See under Constitution (1963 with amendments prior to adoption of 2010 Constitution) by section, 79 (freedom of expression) above
human/fundamental rights and freedoms (municipal law/general)
derogation/restrictions
balance with rights and freedoms of others 443
“prescribed by law” 445
public interest/purpose 443
statutory limitation and 436–7, 442–3
legislation, interpretation, in conformity with international obligations, Torture Convention (1984) 446
prompt hearing:
See under Constitution (1963 with amendments prior to adoption of 2010 Constitution) by section, 72(3) and 77(1) above
statutory limitation, human rights proceedings 436–7, 442–3
torture or cruel, inhuman or degrading treatment or punishment (municipal law/general)
definition 445–6
derogation, exclusion except under authority of law 445
Truth, Justice and Reconciliation Act 2008 (TJRA), retroactive effect, exclusion 436, 449
Truth, Justice and Reconciliation Commission (TJRC)
jurisdiction, enforcement of Constitution (Constitution 84), exclusion 449–50
jurisdiction, “transgressions…which cannot be properly addressed by our judicial institutions” 450
Lebanon, Special Tribunal for (STL), interlocutory decision of 16 February 2011 on applicable law (Appeals Tribunal), terrorism as international crime in time of peace 578–9
legislation, interpretation
aids
dictionary 390
explanatory memorandum 395–6
“extrinsic materials” (Australian Acts Interpretation Act 1901) 393
in conformity with international obligations, Torture Convention (1984) 446
effectiveness, every provision/word to have meaning/effect 373–4, 390
intention of legislature, clearly expressed 662
manifest absurdity, avoidance 393
ordinary and natural meaning 390–3
“to the extent” 487–8
Lotus principle (“what is not prohibited is allowed”), acts of insurgents, classification as terrorism 586–7
Malay State Rulers
rotation as Supreme Head of Federation 544–5
State immunity from jurisdiction 544–56
Malaysia, constituent States:
See Malay State Rulers
Millennium Development Goals (2008) 257–8
national airline as agency or instrumentality of a foreign State:
See Garuda (national airline immunity) (outline of proceedings)
negotiation as means of dispute settlement
duty to negotiate in good faith
jurisprudence
North Sea Continental Shelf 140, 272–3
Railway Traffic between Lithuania and Poland 140
“meaningful” requirement 140, 200–4, 331–2
pactum ad contrahendum/pactum de negotiando distinguished 140
NGOs, environmental protection and 267–70
Nigeria
African Charter Act 1990 by section, 10 (free association) 469, 479–80, 485–8, 491, 500–2
Constitution 1979 by section
4(1)(a) (derogation) 477
12(1) (treaties: implementing legislation/incorporation, need for) 481–2, 486–8, 494–5
text 481
37 (freedom of association) 476–80
Constitution 1999 by section
12(1) (treaties: implementing legislation/incorporation, need for) 481–2, 485–8
text 465n.7
“to the extent that” 487–8
40 (freedom of assembly and association), text 465n.4, 476, 485
Constitution, interpretation, “is not absolute” 471, 477, 491–4, 499–500
Electoral Act 2001 by section
79 (membership of political party), text 479
79(2)(c) (registration as member of political party: members of armed forces) 478–80
ILO Conventions, implementing legislation/incorporation, need for 480–2
legislation, interpretation, ordinary and natural meaning, “to the extent” 487–8
military era ( 1984-8), judicial decisions during, ongoing validity 477–80
precedent, judicial decisions under previous regime/“age” 477–80, 501–2
public affairs, right to take part in
jurisprudence, INEC 478–80
political membership, armed forces 478–80
trade union, right to form and join, jurisprudence, Osawe 475–8, 480, 493–5, 499–502, 510–12
trade unions:
See also Nigeria (Registration of Trade Union case)
Trade Unions Act 1990 (as amended), constitutionality of ss 3 and 5 476–80
Trade Unions Act 1990 (as amended) by section
2(1) (collective agreement for settlement of a trade dispute: deposit of copies), text 486
3(1) (registration procedure)
responsibility for registration 473–6, 493–5, 509–12
text 474
3(2) (registration of union in place where one already exists) 475–6, 497–502
text 464n.3, 474, 497
5(2) (publication of application for registration in Official Gazette/call for objections) 475–6, 510–12
5(4) (“sufficiently representative” requirement)
text (corrected) 497
text (with error) 474
12(1) (non-discrimination on grounds of community, tribe, place of origin, religion or political opinion), text 485
treaties, implementing legislation/incorporation
dedicated legislation vs elements from non-dedicated legislation including the African Charter Act 1990 469, 479–80, 485–8, 491, 500–2
ILO conventions 480–2, 485–8, 494–5, 512, 567
Nigeria (Registration of Trade Union case)
Appeal Court decision 468
High Court proceedings
decision (extract) 491, 507–8
grant of application 468, 490
joinder of Medical and Health Workers Union/affidavit 468, 490, 502–6, 507
preliminary objections 467
reliefs sought 465–6, 488–9, 506
grounds 466, 489
verifying affidavit 466–7
judgments
Aderemi 506–12
Mukhtar 465–88
Musdapher 495
Ogbuagu 495–506
Onu 488–95
Supreme Court proceedings, issues for determination
first appeal 469, 490–1, 508–9
challenge to affidavit evidence 470–3, 482–5, 489
registration of trade unions 473–6, 491–4, 497–502, 509–12
MHWUN response/issues for determination 470, 491, 509
second appeal (ILO Conventions 87 and 98, need for implementing legislation/incorporation) 469–70, 480–2, 485–8, 491, 494–5, 512, 567
non-international armed conflict (GC Protocol II (1977))
classification as
Afghanistan post-2001 574–5
Iraq, post-occupation (28 June 2004) 574–5
combatant status
armed forces of the State 577–8
insurgents 576–7, 582–3
Manual on the Law of Non-International Armed Conflict (2006) (San Remo) 582–3
obligation of result vs obligation of conduct/best efforts to ensure compliance with
due diligence obligation 150–1, 153, 162
environmental impact assessment (EIA), need for:
See under environmental impact assessment (EIA), need for, due diligence and
OSPAR Convention (1992), precautionary principle (OSPAR 2(2)(a)) 241
pacta sunt servanda/good faith observance of treaties (VCLT 26)
as general principle of international law 271–3
jurisprudence
Border and Transborder Armed Actions (Nicaragua v. USA) 139–40
Nuclear Tests 139–40, 272
obligation not to frustrate object and purpose 200–1, 341–4
provisional measures, compliance obligation and 48, 69
Pahang
Ruler, State immunity from jurisdiction 544–56
Sultan as “Sovereign” (Constitution Arts. 2 and 3) 544–5
piracy
definition/requirements
“any illegal act of violence or detention, or any act of depredation” 521
at common law 521
attempted piracy 521–4
conspiracy to commit 523
municipal law 520–1
participation in operation of ship knowing it to be a pirate ship 521–4
Piracy: Jus Gentium 521
pirate ship 521, 523
UNCLOS 524
jurisdiction, universal 524
jurisprudence
Intertuna II 520, 521
Talenduic 519, 520, 521
Piracy (Osman):
burden/standard of proof 519, 523, 524
Court's analysis and findings
count one (piracy under Penal Code 65(4)(a)) 521
count two (attempted piracy/participation in operation of ship knowing it to be a pirate ship) 521–4
definitions 520–1
factual background 515–20
See also piracy
Pocket Kings v. Safenames (enforcement of Kentucky forfeiture order)
factual and procedural background 526–9
declaratory relief 541–2
failure of Kentucky to appear 529
recognition/enforceability of foreign penal or public law 537–41
See also foreign law, recognition/enforcement
service of notice, correctness 536–7
status of Kentucky for purposes of SIA 529–36
common law distinguished 531–2, 535–6
separate entity, whether 532–6
SIA provisions 529–30
pollution (general):
IPPC-BAT “best available techniques” 162–3
See also environmental protection obligations, good neighbourliness principle (sic utere tuo)/avoidance of harm to others, Pulp Mills (Statute of the River Uruguay (1975)) (merits)
precautionary principle 231–40, 244–8
EIAs and 231
ICJ role 190–2
jurisprudence
Gabčíkovo–Nagymaros Project 232
Nuclear Tests (first) 231–2
Nuclear Tests (second) 231
preventive principle linkage 241–2
provisional measures and 50–1, 53
risk assessment 233–4
scientific uncertainty 234–40
treaties and international instruments relevant to
Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (1991) 241
Cartagena Protocol on Biosafety (2000) 241
Climate Change Convention (1992) 241–2
Kyoto Protocol (1997) 241–2
Montreal Protocol on Substances that Deplete the Ozone Layer (1997) 241
OSPAR Convention (1992) 241
POPs Convention (2001) 241
Protection of the Marine Environment of the Baltic Sea Area Convention (1992) 241
Vienna Convention for the Protection of the Ozone Layer (1985) 241
See also good neighbourliness principle (sic utere tuo)/avoidance of harm to others
precedent/stare decisis doctrine (municipal courts)
“age” 477–80, 501–2
judicial decisions under previous regime 477–80
property, right to (ACHR 21), indigenous communal property, intergenerational responsibility and 252–3, 254–5
provisional measures (ICJ 41):
binding force/compliance obligation
obligation to avoid prejudicing judgment 37
reaffirmation, desirability 36–7
compliance obligation, pacta sunt servanda/good faith observance of treaties (VCLT 26) and 48, 69
Court's inherent/Statutory power 74–6, 81–3
measures in respect of extrajudicial coercive measures not connected with dispute 74–6, 85–6
Court's right to indicate measures other than those requested 54
early decision, desirability 55
exhortation to refrain from action which would render settlement of dispute more difficult 48, 69, 70–1
exhortation to settle dispute 55
fresh request on basis of new facts (ROC 75(3)) 36, 48, 70
jurisprudence (including PCIJ cases)
Aegean Sea Continental Shelf 82
Anglo-Iranian Oil Company (Interim Protection) 54
Application of the Genocide Convention 54, 68, 82, 84
Armed Activities on the Territory of the Congo 29, 62, 68, 73
Certain Criminal Proceedings in France (Congo v. France) (Provisional Measure) 30, 51, 64
Chorzów Factory 44
Electricity Company of Sofia and Bulgaria 72, 91
Fisheries Jurisdiction 54
Frontier Dispute 54, 72–3, 81, 90
Guinea-Bissau/Senegal 82
LaGrand 36–7, 39, 90
Land and Maritime Boundary (Cameroon/Nigeria) (Provisional Measures) 68, 73, 81–2, 90
Military and Paramilitary Activities 54
Nuclear Tests 43, 54
Passage through the Great Belt 30, 34, 38, 43, 44, 51–2, 55, 64
Polish Agrarian Reform 81, 82
Pulp Mills (Provisional Measures I) 62, 69, 83
US Diplomatic and Consular Staff in Tehran 42, 43, 54, 68
measures requested/ordered
cessation of interruption of transit/blockade 59, 64–6, 86–90
good faith cooperation 18, 34–5, 48
refraint from action which might prejudice rights/aggravate or extend dispute 19, 59, 66–9, 72–6
suspension of construction work 18
precautionary principle and 50–1, 53
prima facie jurisdiction/admissibility on the merits 29–30
burden/standard of proof 37–42
Court's obligation to review prima facie case/give reasons 37–47
fumus boni juris/presumption of sufficient legal basis principle 40–1, 83
jurisdiction on provisional measures and merits distinguished 60–2
“proceed at own risk” principle (Passage through the Great Belt) 34, 48, 54
requirements/purpose
connection with dispute before Court 63, 71, 77–80
extrajudicial coercive measures not connected with dispute 74–6, 85–6, 88–9
imminent risk 33, 52, 66, 69, 85
impossibility of remedy by way of compensation or reparation 32–4
non-anticipation of decision on merits 35, 69, 85–6
preservation of rights in dispute, “pending the final decision” 30–2, 81–3
prevention of aggravation or extension of dispute 90–1
prevention of irreparable damage or prejudice 64
“irreparable damage” 84–5, 88–120
serious/imminent risk as test 84, 86–90
specification of rights to be protected (pre-1972 ROC)/shall specify the reason therefore (post-1973 ROC) 82–3
urgency 30, 51–2, 64–6, 72
See also Pulp Mills, provisional measures (ICJ 41)
provisional measures (municipal court/general), fumus boni juris/presumption of sufficient legal base principle 40–1
public affairs, right to take part in (municipal law/general), political membership, armed forces 478–80
Pulp Mills, note: “Statute” in the Pulp Mills case refers to the 1975 Statute of the River Uruguay. “Treaty” refers to the 1961 Uruguay Boundary Treaty.
Pulp Mills, applicable principles
general principles of law (ICJ 38(1)(c)/PCIJ 38(1)(c))
as autonomous “source” 213–14
Court's obligation to analyse application 226–7
general principles of international law, relationship 209–10, 214–16, 217–18
travaux préparatoires 210–13
views of publicists 218–26
good neighbourliness principle (sic utere tuo)/avoidance of harm to others 127–8, 152, 228–31, 243–4
applicable rules 154–5
“significant damage to the other party” (Statute 7(1)), examples 128
intergenerational rights and responsibilities 209–10, 248–55, 363–4
international environmental law principles 209–10, 227–43
precautionary/preventive risk assessment principle 190–2, 231–40, 244–8
linkage 241–2
provisional measures and 50–1, 53
risk assessment 233–4
scientific uncertainty 234–40
sustainable development principle (Statute 27) 31, 34, 49, 88–120, 148, 255–60, 337–8
parties’ arguments 258–60
See also sustainable development principle
Pulp Mills, procedural aspects, background and ICJ role
abbreviations and acronyms 93–4
applicable law/principles:
See Pulp Mills, applicable principles
burden/standard of proof 143–4, 299–300, 347–9
Court's analysis and findings 144
parties’ arguments (Argentina) 143
parties’ arguments (Uruguay) 143
reversal/equality of burden 144, 347–9
declaration/dissenting/separate opinions
Al-Khasawneh and Simma 181–93
Cançado Trindade 206–86
Greenwood 290–301
Keith 193–204
Skotnikov 204–6
Torres Bernárdez 302–36
Vinuesa 336–64
Yusuf 286–90
expert evidence/expert witness 144–6
Court's analysis and findings 145–6
Court's responsibility for evaluating evidence and 145–6, 166, 286–90, 361–3
Court's right to set up enquiry/request opinion (ICJ 50) 197–9, 260–2, 361–3
expert witnesses as counsel, avoidance 145, 184, 300–1
parties’ arguments (Argentina) 145
parties’ arguments (Uruguay) 145
factual background
CMB (ENCE) project 105–8
Orion (Botnia) mill 108–11
jurisdiction (“any dispute concerning the interpretation or application of [the 1961 Treaty or the Statute]” (Statute 60(1))) 30, 62, 111–18
applicability of customary international law 117–18
applicability of multilateral environmental conventions 113–17
claims excluded ratione materiae
bad odours 113
noise and visual pollution 113–14
jurisdiction in respect of provisional measures distinguished 60–2
parties’ arguments 112–15
text 14, 55
“which cannot be settled by direct negotiation”/alleged failure 16, 55, 111
parties’ submissions and arguments (merits) (Argentina)
Application 16–17, 98–9, 118–19
jurisdiction 112–14
memorial 99–100
oral submissions 101–2
parties’ submissions and arguments (merits) (Uruguay)
counter-memorial 100–1
jurisdiction 112, 114–15
oral submissions 102
procedural provisions (Statute 7-12) 119–20
procedural history 95–102
admissibility of video recording 95–6
Application (Argentina) 14, 15, 55, 56, 95
judge ad hoc 20, 96
pleadings, availability to the public (ROC 53(2)) 97
production of new documents (ROC 56(2)) 97
requests for provisional measures 56–7, 95–6
procedural and substantive obligations, interrelationship:
See Pulp Mills (Statute of the River Uruguay (1975)) (merits)
See under procedural obligations (Statute 7-12) (including alleged breach), links with substantive obligations
remedies for breach of State responsibility
assurances and guarantees of non-repetition (ILC 30(b)), relevance of Court order for 179, 344–7
parties’ requests/arguments (Argentina) 176–7
parties’ requests/arguments (Uruguay) 177
restitution (ILC 35), appropriateness 176–9
satisfaction (ILC 37), cessation “if it is ongoing” (ILC 30(a)) 176
scientific evidence, evaluation 181–9, 190–2, 194–200, 354–61
scope of dispute 49–50
treaty interpretation, contemporaneity vs intertemporal law/“living tree” 156, 304–5, 309–10
Pulp Mills, provisional measures (ICJ 41)
Court's inherent/statutory power, measures in respect of extrajudicial coercive measures not connected with dispute 74–6, 81–3, 85–6
Court's right to indicate measures other than those requested 54
early decision, desirability 55
exhortation to refrain from action which would render settlement of dispute more difficult 69, 70–1
exhortation to settle dispute 55
first request (Argentina) (Order of 13 July 2006)
Court's analysis and findings, authorization and construction of mills 32–4
declaration/separate/dissenting opinions
Abraham 37–42
Bennouna 42–7
Ranjeva 36
Vinuesa 47–55
dispositif 36
judge ad hoc 20
parties’ claims and submissions (Argentina) 14–18, 31
oral observations 21–4, 27–8
parties’ claims and submissions (Uruguay) 31
oral observations 24–7, 28–9
procedural history 19–21
presentation of new documents 20
reasons/justification for request 15–16, 17–18
summary of proceedings 56–7
fresh request on basis of new facts (ROC 75(3)) 36, 48, 70
ICJ's role, duty to encourage parties to find peaceful resolution 71
measures requested/ordered
cessation of interruption of transit/blockade 59, 64–6, 86–90
good faith cooperation in ensuring optimum and rational utilization of river 18, 34–5, 48, 69
impossibility of remedy by way of compensation or reparation 32–4
preservation of rights in dispute 30–2
prolongation of suspension of building work on CMB mill 18
refraint from action which might prejudice rights/aggravate or extend dispute 19, 59, 66–9, 90–1
refraint from non-compliant unilateral action on construction of mills 19
suspension of authorizations for CMB and Orion mills 18
suspension of building work on Orion Mill 18
pacta sunt servanda/good faith observance of treaties (VCLT 26) and 48, 69
precautionary principle and 50–1, 53
prima facie jurisdiction requirement 29–30, 62
burden/standard of proof 37–42
Court's obligation to review prima facie case/give reasons 37–47
fumus boni juris/presumption of sufficient legal basis principle 40–1, 83
jurisdiction on provisional measures and merits distinguished 60–2
procedural obligations (Statute 7-12) and 31, 50–1
“proceed at own risk” principle (Passage through the Great Belt) 34, 48, 54
requirements/purpose
connection with dispute before Court 63, 71, 77–80
extrajudicial coercive measures not connected with dispute 74–6, 85–6, 88–9
imminent risk 33, 52, 66, 69, 85
non-anticipation of decision on merits 35, 37, 69, 85–6
preservation of rights in dispute “pending the final decision” 30–2, 81–3
prevention of irreparable damage or prejudice 64–6
“irreparable damage” 84–5, 88–120
serious/imminent risk as test 84, 86–90
urgency 30, 51–2, 64–6, 72
second request (Uruguay) (Order of 23 January 2007)
Court's analysis and findings 62–70
declarations/dissenting opinion
Buergenthal 72–6
Koroma 70–1
Torres Bernárdez 76–91
dispositif 70
Mercosur Arbitral Tribunal proceedings relating to previous blockades, relevance 61, 62, 63, 77–8
parties’ claims and submissions (Argentina) 60–1, 68
parties’ claims and submissions (Uruguay) 57–9, 61–2, 64–8
Pulp Mills (Statute of the River Uruguay (1975)) (merits)
alleged breach (Application):
See under procedural obligations (Statute 7-12) (including alleged breach) below
applicable law/principles:
See Pulp Mills, applicable principles
authentic text
procedural obligations (Statute 7-12), request for provisional measures relating to 50–1
as sole authority 115–16, 123
translation into non-authentic texts, discrepancies 115–16
“comunicar”/“notificar” vs “notify” 123
CARU Digest
“harmful effects” 153
purposes
legitimate use of water considering long-term needs 154–5
prevention of new forms of pollution and reduction of excess 154–5
promotion of scientific research 154–5
protection and preservation of the water and its ecological balance 154–5
regulatory actions of parties, complementarity (Statute 41) 153–4, 155
summary of provisions 153–4
CARU, functions (Statute 56) 124–6, 275
“by prescribing appropriate rules…in accordance with applicable international agreements” (Statute 41) 116–17, 304
other functions assigned to it by the Statute or by agreement of the parties (Statute 56(l)) 303
parties’ role distinguished 152, 292–3, 304
summary 125–6, 147–8
CARU, status
“as joint mechanism…entrusted with the proper implementation of the 1975 Statute” 34–5, 124, 147, 149–50
Commission decisions, adoption by common accord (Statute 55) 125, 293, 303
legal personality/autonomy (Statute 50) 124–5, 273–7, 303–4
membership (Statute 49) 303
parties’ obligation to provide necessary resources and information and facilities 124–5
parties’ right to use alternative mechanism 124, 125–6
secretariat
privileges and immunities 125
role 125
speciality principle 125
subsidiary bodies (Statute 52) 125
unilateral action by parties, exclusion 125, 293
communication obligation (Statute 7(1)) 126–30, 294
CARU's determination on preliminary basis 126
characterization of work as party's responsibility 305–8
CMB (ENCE) and Orion (Botnia) mills 126, 129–30
extraction and use of water for Orion (Botnia) mill 126–7, 129
as first stage/opportunity to initiate cooperation to prevent damage 126, 128, 309–12
Fray Bentos port terminal 126, 129
information derived from non-governmental sources, sufficiency to meet obligation 130
information sufficient for CARU to make preliminary determination 128–30
conclusion and entry into force 14, 55
customary international law as codified in VCLT, applicability 117–18
Statute as treaty preceding entry into force of VCLT 118
dispositif 180–1
environmental impact assessment (EIA), need for 155–61
Court's analysis and findings 156–7, 158–60
customary international law 156
due diligence and 156, 157, 158–9, 351–4
parties’ arguments (Argentina) 155–6, 157–8
parties’ arguments (Uruguay) 155–6, 158
Statute 7 and 131–2
environmental impact assessment (EIA), scope/requirements
absence of clear customary international law or treaty specification 157
alternatives, need to consider (siting of Orion (Botnia) mill) 157–60, 351–3
IFC Final Cumulative Impact Study (2006) (CIS) 158–9
applicability of
Espoo (1991) 157, 158
UNEP Goals and Principles (1987) 157, 158
completion prior to implementation of project 157
consultation of affected populations 160–1, 353–4
continuous nature 157
methodology for determining suitability of location (Fray Bentos) 159–60
national responsibility for determining 157
environmental protection obligations 47–8
as principle of international law 33
as shared responsibility 149–51, 349–50
environmental protection/socio-economic interests, need to balance (integration principle) 34, 147–8, 210, 262–7, 337–8
CARU responsibilities relating to 147–8
joint machinery “necessary for the optimum and rational utilization of the River Uruguay” (Statute 1):
as comprehensive and progressive regime 34–5, 120
importance 34–5, 48, 124
as object and purpose of Statute (implementation of Treaty 7) 14–15, 49, 120–1, 139, 147, 340, 349–50
See under CARU, status above, obligation to contribute to the optimum and rational utilization of the river (Statute 1) below
loss of right to invoke responsibility (ILC 45), clear and unequivocal waiver, need for 138–9
“motivated by the fraternal spirit” (Preamble) 49
negotiation obligation (Statute 12)
Court's analysis and findings 142–3
duty to negotiate in good faith 140, 200–4
failure to reach agreement within 180 days, obligations following 141–3
“no construction obligation” 142–3, 204–6, 295–9, 330–6, 338–44
pactum ad contrahendum/pactum de negotiando distinguished 140
parties’ arguments (Argentina) 141–2
parties’ arguments (Uruguay) 141
notification to other party in case of risk of significant damage (Statute 7(2) and 7(3)) 130–3
absence of objection (Statute 9) 131, 139, 295–9
content of notification (Statute 7(3)) 130, 294
180-day period for negotiation following (Statute 12) 131
environmental protection/socio-economic interests, need to balance 34, 147–8
See also environmental protection/socio-economic interests, need to balance (integration principle)
notified party's response
notification of potential for damage and suggested changes (Statute 11) 131
time limits (Statute 8) 131
reason for obligation 131
timing 132, 294
obligation not to impair river regime or quality of its waters (Statute 35) 148–9
Court's analysis and findings 148–9
parties’ arguments (Argentina) 148
parties’ arguments (Uruguay) 148
obligation to contribute to the optimum and rational utilization of the river (Statute 1) 146–8, 336–7, 349–50
aid to interpretation and substantive obligation distinguished 147
Court's analysis and findings 147–8
parties’ arguments (Argentina) 146
parties’ arguments (Uruguay) 146
obligation to co-operate to ensure achievement of object and purpose 179–80, 301
obligation to co-ordinate measures to avoid changes in the ecological balance (Statute 36) 149–51, 350–1
Court's analysis and findings 149–51
joint machinery/CARU and 149–50, 350–1
as obligation of result/due diligence 150–1
parties’ arguments (Argentina) 149
parties’ arguments (Uruguay) 149
obligation to prevent pollution and preserve the aquatic environment (Statute 41) 151–75, 351–61
air pollution 174–5, 361
“best available techniques” requirement (POPs 5(d)) 161–4
IPPC-BAT 162–3
biodiversity obligation 173–4
Court's analysis and findings 174
parties’ arguments (Argentina) 173
parties’ arguments (Uruguay) 173–4
continuous monitoring obligation 175, 199–200
Court's analysis and findings
“best available techniques” requirement 162–4
effect of Orion (Botnia) mill 168–71, 173, 175
introductory 152–5
Court's evaluation of compliance with regulatory limits for pollutants discharge 163–4
as due diligence obligation 153, 156, 162
evidence, sufficiency 163
impact of discharges on the quality of the waters
algal bloom 170–1, 355, 357
AOX (Adsorbable Organic Halogens) 164, 355, 356
Court's analysis and findings 166–71
data relating to 164–6
dioxins and furans 172–3, 360
dissolved oxygen 166–7
nonylphenols 171–2, 359
phenolic substances 171, 355, 358
phosphorus 167–71, 355, 356
parties’ arguments (Argentina) 151, 161–2
parties’ arguments (Uruguay) 151, 162
“pollution” (“harmful effects”) (Statute 40) 153
responsibilities/obligations of CARU and the parties distinguished 152
“rules and measures…in accordance with…and in keeping” 153
“rules and measures…in accordance with the guidelines and recommendations of international technical bodies” 153, 162, 174
water quality standard (total phosphorus and phosphates levels)
CARU/Argentina (absence) 168
Uruguay 168
pacta sunt servanda/good faith observance of treaties (VCLT 26) 48, 69, 139–40, 271–3, 341–4
obligation not to frustrate obligation and purpose 200–1
“pollution” (Statute 40) 153
“harmful effects” (CARU Digest) 153
procedural obligations (Statute 7-12) (including alleged breach) 118–43, 291–9
Court's analysis and findings 120–1, 127–30, 132
informing, notifying and negotiating obligations as means of achieving Statute objective 123, 139
interrelationship 121–33
joint machinery:
See under joint machinery “necessary for the optimum and rational utilization of the River Uruguay” (Statute 1) above
links with substantive obligations 119–21, 192–3, 271, 336–8
complementarity 120
non-compliance with either procedural or substantive obligations, effect 121
parties’ claims and submissions (Argentina) 118–19, 123, 124, 126–7, 131–2
parties’ claims and submissions (Uruguay) 119–20, 123–4, 126–7, 131
provisional measures and 31, 50–1
summary of provisions 291–3
procedural obligations (Statute 7-12), possibility of agreed derogation 133–40, 314–30
High-Level Technical Group (GTAN) agreement of 5 May 2005/press release (31 May 2005) 136–40, 323–7
acquiescence in construction of cellulose plants, whether 139
Court's analysis and findings 137–40
effect on procedural obligations other than under Statute 12 138–9
parties’ arguments (Argentina) 137
parties’ arguments (Uruguay) 136–7
as Statute 12 negotiating mechanism 138
text 136
“understanding” (CARU extraordinary meeting of 2 March 2004) 133–6, 315–23
Court's analysis and findings 135–6
extract from minutes (Court's preferred English translation) 133–4
extract from minutes (Spanish) 133
non-compliance, effect 135–6
partial nature of coverage 135
parties’ arguments (Argentina) 134–5
parties’ arguments (Uruguay) 134
“referral clauses” (Statute 1 and 41) 113–17, 162
referral to ICJ in case of failure to reach agreement within 180 days (Statute 12)
as integral part of procedural obligations (Statute 7-12) 138–9
referral under Statute 60, distinguishability 137–8, 190–2, 339
See under Pulp Mills, procedural aspects, background and ICJ role, jurisdiction (“any dispute concerning the interpretation or application of [the 1961 Treaty or the Statute]” (Statute 60(1)))
“rights and obligations arising from treaties and other international agreements” (Statute 1) 49
substantive obligations (including alleged breaches):
Application 14, 15, 55, 56
summary 146
See under obligation headings above
summary of provisions 34–5, 103–5
suspension in conformity with treaty or by consent of parties (VCLT 57) 139
text of Statute
Art. 1 115
Art. 7 121
Spanish text 122
Art. 8 122
Art. 9 122
Art. 10 122
Art. 11 122, 138
Art. 12 122
Art. 27 128
Art. 35 148
Art. 36 149
Art. 40 153
Art. 41 116, 151
Art. 60 14, 56, 141
undertaking to comply with (Uruguay) 35, 48, 54–5
Uruguay Boundary Treaty (1961) and
signature and entry into force 14
summary of provisions 103
restitution/restitutio in integrum (including ILC 35 and 36), jurisprudence
Application of the Genocide Convention 177–8
Avena 178
Construction of a Wall 177–8
Gabčíkovo–Nagymaros 150, 177–8
restitution/restitutio in integrum (including ILC 35/Chorzów Factory principle)
appropriateness/applicability 176–9
customary international law/general principle of international law 177–8
Rio Declaration on Environment and Development (1992)
good neighbourliness principle (sic utere tuo)/avoidance of harm to others 228, 230
sustainable development principle 255, 256, 257–8
risk assessment:
See under precautionary principle, risk assessment
SADC Tribunal
decisions, binding effect on municipal courts 658–9
relationship with Zimbabwe judicial system 658–9
satisfaction for injury caused by internationally wrongful act (ILC 37), cessation obligation (ILC 30(a)), “if it is continuing” 176
scientific evidence, evaluation 181–9, 194–200, 354–61
expert assistance, need for 183–9, 355–6, 361–3
scientific uncertainty and 181–9, 354–61
separate entity:
See under Australia, separate entity
See State agency/State entity
service of process on foreign State or State agency [out of the jurisdiction] (including State immunity issues)
applicable law, forum State 536
on constituent State of federation 536–7
refusal to accept 536
Seychelles:
Penal Code by article
23 (conspiracy: common intention) 523
65(3) (attempted piracy) 523
65(4) (piracy), text 520
65(4)(a) (“any illegal act of violence or detention, or any act of depredation”) 521
65(4)(b) (voluntary participation in operation of ship knowing it to be a pirate ship) 521–4
65(5) (pirate ship or aircraft) 523–4
text 521
377 (attempted offence) 521–2, 523
See also Piracy (Osman)
sources/evidence of [customary] international law (ICJ 38), teachings of publicists (ICJ 38(1)(d)), views on general principles of law (ICJ 38(1)(c)/PCIJ 38(3)) 218–26
South Africa
terrorism, legislation relating to, Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004 582
sovereignty
limitations on
Statute of the River Uruguay (1975) 305
treaty interpretation, presumption against, jurisprudence
Lac Lanoux 330–1
Wimbledon 305
State agency/State entity, “agency or instrumentality”, distinguishability 373–6, 390–1
State agency/State entity, classification as (in particular for purposes of State responsibility and State immunity)
constituent State of federation 529–36
critical date for determining, cause of action 415
national airline:
See Garuda (national airline immunity) (outline of proceedings)
separate legal entity test
absence of control, relevance 376–7, 386, 389, 398–400
burden/standard of proof 412–15
nature of functions 374–6, 386
ownership 386, 398–400
examples of irrelevance 376, 389
majority ownership 412–15
State immunity, development of doctrine
jurisprudence (including in particular cases discussed or cited at length)
I Congreso del Partido 369, 396–7
The Cristina 369
Philippine Admiral 369
as reviewed in Garuda 396–7
State immunity, entitlement of constituent State of federation
capacity to enter into international relations, relevance 531
“constituent territory”/“State”, mutual exclusiveness 531–2, 547
division of responsibilities between federal and constituent State governments and 531–2
executive certificate, conclusiveness 546, 551
jurisprudence
Alamieyeseigha 531, 554–5
BCCI v. Price Waterhouse 532–3
Mellenger 531–2, 534, 555–6
Pocket Kings v. Safenames 547
Kentucky 529–36
New Brunswick 555–6
State immunity, entitlement of individual/official acting in official capacity, jurisprudence, Holland v. Lampen-Wolfe 548
State immunity, procedural aspects, non-appearance, effect 529
State immunity, theory/doctrine, absolute theory/exceptions, relationship 369, 381–2
State responsibility, invocation (ILC 42-8)
loss of right to invoke responsibility (ILC 45)
Certain Phosphate Lands 138–9
valid waiver of right (ILC 45(a)) 138–9
State responsibility for legal consequences of internationally wrongful act/obligations (ILC 28-33) 176–9
assurances and guarantees of non-repetition (ILC 30(b)), relevance of Court order for 179, 344–7
statutory limitation, human rights proceedings (municipal courts) 436–7, 442–3
Stockholm Declaration on the Human Environment (1972)
common good of mankind (Principle 18) 270–1
good neighbourliness principle (sic utere tuo)/avoidance of harm to others (Principle 21) 228, 230, 243
sustainable development principle:
development of principle 255–8
jurisprudence
Gabčíkovo–Nagymaros 120, 250
Pulp Mills (Provisional Measures I) 120
River Uruguay (Statute 27) 31, 34, 49, 88–120, 148, 337–8
treaties and other international instruments reflecting
Johannesburg Declaration on Sustainable Development (2002) 257
Millennium Development Goals (2008) 257–8
Rio Declaration on Environment and Development (1992) 255, 256, 257–8
Vienna Declaration and Action Programme (1993) 255–6, 257–8
See also environmental protection/socio-economic interests, need to balance, intergenerational rights and responsibilities
Swarna (diplomatic immunity)
entry of default judgment, appeal against
appealability 636–8
residual immunity (VCDR 39(2)) entitlement and 637–8
grounds
prejudice to adversary 639–40
wilfulness of default 639
factual background 620–3
burden/standard of proof (treaty interpretation) 626
procedural history 619–20, 623–6
residual immunity (VCDR 39(2)) 627–35
employment of domestic staff 633–5
entitlement of Al-Shaitan (spouse) 628
official acts (VCDR 39(2)) and diplomatic official functions (VCDR 31(1)(c)) distinguished 631–2, 634
sovereign immunity 640–6
commercial activity exception (28 USC 1605(a)(2)) 644–6
tortious activity exception (28 USC 1605(a)) 641–4
in case of discretionary function (28 USC 1605(1)(5)(a)) 642–3
terrorism
legislation
Canada 581–2
South Africa 582
terrorism (customary international law), offences in time of peace, whether limited to 578–9
terrorism, definition/elements
as act contrary to purposes and principles of UN (RC 1F(c)) 588–9
acts by insurgents against armed forces of a State for political purposes, exemption
asylum cases (UK) 588–91
Lotus principle (“what is not prohibited is allowed”) 586–7
State practice 579–83
Australia 582
Canada 581–2
South Africa 582
UK (including SIA) 573–4, 587–91
acts directed at civilians, whether limited to 583–6
international humanitarian law distinction between attacks on civilians and military forces, relevance 584–6
Arab Convention for the Suppression of Terrorism (1998) 580
combatant status 576–7
Manual on the Law of Non-International Armed Conflict (2006) (San Remo) 582–3
in domestic law:
See under United Kingdom, terrorism, legislation relating to
European Council Common Position (27 December 2001) (2001/931/CFSP) 589
Financing of Terrorism Convention (1999) 583, 585–6
jurisprudence
Applicable Law: Terrorism, Homicide, Conspiracy, Perpetration, Cumulative Charging (STL decision of 16 February 2011) 578–9
Construction of a Wall 583–4
DD (Afghanistan) 590–1
Evans 583
Khawaja 582
KJ (Sri Lanka) 588–9
R v. F 587–8
SS 589–90
offences in time of peace, whether limited to
“armed conflict”, classification as, as “fact of State” 575
customary international law 578–9
UNGA resolution 65/34 (measures to eliminate international terrorism) 583
terrorism, treaties and other international instruments relating to
Arab Convention for the Suppression of Terrorism (1998), definition 580
Financing of Terrorism Convention (1999), definition/elements of terrorism 583, 585–6
OAU Convention on the Prevention and Combating of Terrorism (1999) 581
UNGA resolution 65/34 (measures to eliminate international terrorism) 583
torture or cruel, inhuman or degrading treatment or punishment (municipal law/general):
See Wakaba (enforcement of protective provisions of Constitution of Kenya (Art. 84))
torture, definition/classification as, definitions, “severe pain or suffering…intentionally inflicted…for such purposes as obtaining…information or a confession” (TC 1) 445–7
trade union (right to form and join) (municipal law/general):
See Nigeria (Registration of Trade Union case)
transboundary pollution:
See environmental protection obligations, good neighbourliness principle (sic utere tuo)/avoidance of harm to others, Pulp Mills (Statute of the River Uruguay (1975)) (merits)
travaux préparatoires as supplementary means of interpretation (VCLT 32)
in respect of
ICJ 38(1)(c) 210–13
VCDR 39(2) 626, 629–30
treaties, implementing legislation/incorporation
dedicated legislation vs elements from non-dedicated legislation 487–8
examples, ILO conventions 480–2, 485–8, 494–5, 512, 567
jurisprudence, Abacha v. Fawehinmi 481–2, 495
treaties, termination and suspension (VCLT 54-64), suspension in conformity with treaty or by consent of parties (VCLT 57) 139
treaty interpretation
burden/standard of proof 626
executive certificate/statement, conclusiveness 626
treaty interpretation by/responsibility for:
executive, “great weight” due to 605, 615n.13, 626, 630–1
See also executive certificate/statement, conclusiveness in relation to foreign relations matters
treaty interpretation, parties’ intention at time of conclusion (contemporaneity) vs intertemporal law (evolutionary/“living tree” principle), jurisprudence, Navigational Rights 156
treaty interpretation (VCLT 31(1)) ([natural and] ordinary meaning), as normal rule of treaty interpretation 339–40
treaty interpretation (VCLT 31(1)) (object and purpose/spirit and purpose) (teleological approach), examples, Argentina–Uruguay Statute of the River Uruguay (1975) 120–1, 139, 340
See also Pulp Mills (Statute of the River Uruguay (1975)) (merits)
See under joint machinery “necessary for the optimum and rational utilization of the River Uruguay” (Statute 1)
treaty interpretation (VCLT 31(2)) (context)
jurisprudence, Polish Postal Service in Danzig 339–40
text, clear language 339–40
treaty interpretation (VCLT 31(3)) (points to be taken into account together with context)
“any relevant rules of international law applicable in the relations between the parties” (VCLT 31(3)(c)), international environmental law principles 242–3, 309–10
intertemporal law/developments subsequent to conclusion of treaty as “relevant rule” (VCLT 31(3)(c)) (“living tree” principle)
environmental impact assessment (EIA) 156
environmental law developments 304–5
treaty interpretation (VCLT 33) (multilingual treaties/treaties authenticated in two or more languages)
authentic texts as sole authority 115–16, 123
non-authentic language, translation into, discrepancies 115–16, 123
unilateral declaration/undertaking (including validity and legal effects), examples, Uruguay's undertaking to comply with Statute of River Uruguay (1975) 35, 48, 54–5
United Kingdom
act of State doctrine (acts of foreign State within its own territory: non-justiciability), “facts of State” 575
act of State, examples of acts considered for classification as, armed conflict, determination of existence of 575
armed conflict
existence, responsibility for determining
executive certificate/statement, conclusiveness 574–5
“facts of State” and 575
diplomatic agent, classification as, Head of State 545–6
diplomatic functions/“diplomatic activity” (VCDR 3(1)), employment of domestic staff 561–7
Diplomatic Privileges Act 1964 by article, 2(1) (implementation of VCDR) 560
Diplomatic Privileges Act 1964 by article (Schedule 1)
31 (immunity from jurisdiction) 561
39(2) (termination of privileges) 560
diplomatic privileges and immunities, duration, termination of mission (VCDR 39(2)) (including residual immunity) 565–6
executive certificate/statement, conclusiveness in relation to foreign relations matters
existence of armed conflict 574–5
Head of State, status as 546, 551, 553–4
recognition of State/government 553–6
State immunity entitlement 546, 548–50, 553–4
foreign law, recognition/enforcement, characterization of law for purposes of, applicable law 539
Head of State
as diplomatic agent (SIA 20(5)) 545–6
status as, executive certificate/statement, conclusiveness 546, 551, 553–4
Head of State, diplomatic privileges and immunities, entitlement, exemption from immigration controls 544–8
Head of State immunity from jurisdiction, entitlement, Malay State Ruler 544–56
Immigration Act 1971 by section
8(3) (exemption of persons entitled to diplomatic immunity from jurisdiction) 544–8
text 545
international armed conflict (GC Protocol I (1977)), armed conflict in exercise of right of self-determination (Art. 1(4)), reservation (UK) 576–7
non-international armed conflict
combatant status, armed forces of the State 577–8
insurgents 576–7
Refugees Convention (1951), non-application on grounds of “actions contrary to the purposes and principles of the UN” (RC 1F(c)), terrorism and 588–9
service of process on foreign State or State agency [out of the jurisdiction] (including State immunity issues)
applicable law 536
refusal to accept 536
State agency/State entity, classification as (in particular for purposes of State responsibility and State immunity), constituent State of federation 532–6
State Immunity Act 1978 (SIA)
common law and 547–8, 550–4
customary international law and 547–8, 550–4
interpretation in conformity with 535–6
enactment of contemporary customary international law 552
text (extracts) 529–30
State Immunity Act 1978 (SIA) by section
Part I (proceedings in the UK by or against other States) 536
12(1) (service through FCO and MFA) 536–7
14(1)(a) (sovereign or Head of State in public capacity) 532–6
14(2)(b) (separate entity in circumstances in which State would have been immune) 534–5
14(5) (applicability of s 12 to constituent territories) 530–2, 546–7
14(6) (constituent territories of federal State as separate entity) 530–1
16 (excluded matters) 547–8
16(2) (visiting armed forces) 548
Part III (miscellaneous and supplementary)
20(1) (applicability of Diplomatic Privileges Act 1964) 551–2
20(5) (applicability to sovereign or Head of State granted privileges and immunities in Part I of Act) 547
21 (certificate of Secretary of State: conclusiveness) 548–50
21(a) (“State”, “constituent territory”, head or government of State: conclusiveness of Secretary of State certificate) 546, 551, 553–4
State immunity, entitlement of constituent State of federation
capacity to enter into international relations, relevance 531
common law and statutory law distinguished 531–2, 535–6
“constituent territory”/“State”, mutual exclusiveness 531–2, 547
division of responsibilities between federal and constituent State governments and 531–2
terrorism, definition/elements
act contrary to the purposes and principles of the UN (RC 1F(c)) 588–9
acts by insurgents against armed forces of a State for political purposes 573–4
combatant status 576–7
terrorism, legislation relating to
Terrorism Act 2000 (as amended by Terrorism Act 2006 and Counter-Terrorism Act 2008):
customary international law and 578–87
R v. F 587–8
RC 1F proceedings, applicability to 588–91
text (s 1) 573
See also Gul
Terrorism Act 2000 (as amended by Terrorism Act 2006 and Counter-Terrorism Act 2008) by section
1(1) (“terrorism”) 573–4
United States of America (USA)
Code (USC), 22 USC 254(d) (diplomatic immunity (VCDR 31)) 602–3
diplomatic agent, inviolability of person/immunity from arrest (VCDR 29), service of process 637–8
diplomatic functions/“diplomatic activity” (VCDR 3(1)) 606–15
employment of domestic staff 561–5, 608–14, 633–5
visa status, relevance 633–4
human trafficking, forced labour, rape and sexual slavery (Baoanan) 608, 614–15
diplomatic privileges and immunities, duration (VCDR 39), termination of mission (VCDR 39(2)) (including residual immunity) 562–4, 603–16
acts performed in exercise of functions, limitation to 562–5, 627–32
acts performed in exercise of functions (VCDR 39(2)) and official functions (VCDR 31(1)(c)) distinguished 607n.9, 631–2, 634
entitlement of spouse 615n.13, 628
See also Baoanan (diplomatic immunity), Swarna (diplomatic immunity)
executive certificate/statement, conclusiveness in respect of, diplomatic immunity from jurisdiction (VCDR 31) 605
FSIA:
See FSIA 1976/82 (United States) by section
treaty interpretation
burden/standard of proof 626
executive certificate/statement, conclusiveness 626
treaty interpretation by/responsibility for, executive, “great weight” due to 605, 615n.13, 626, 630–1
Vienna Convention on the Law of Treaties (1969) (VCLT)
applicability, as customary international law/treaties concluded before entry into force between parties (VCLT 4) 117–18
customary international law and, jurisprudence
Kasikili/Sedudu Island 117
Territorial Dispute (Libya/Chad) 117
Vienna Declaration and Action Programme (1993) 255–6, 257–8
Wakaba (enforcement of protective provisions of Constitution of Kenya (Art. 84))
burden/standard of proof
defendant's failure to challenge facts, effect 435–6, 441
statements of information and belief 441–2
Court's findings including damages
Amina 453
Gathuku 458
Kamau 457–8
Karanja 459
Kariuki 453
Kihara 461–2
Kituu 458
Maina 455–6
Manje 457
Murage 456
Mwara 459–60
Mwati 461
Njenga 452
Njoroge, Joe 455
Njoroge, Wilson Nduati 458–9
Oduor 454
Osundwa 460
Oyugi 454–5
Saikwa 452–3
Wakaba 451–2
Wangombe 461
declaratory relief and [exemplary] damages, request for 434, 450–1
declaration of breach of fundamental rights 462
declaration of entitlement to damages 462
interest on 463
defendant's submissions
factual challenge 437
late filing of 437
opposition to originating summons (Wakaba) 435
freedom of assembly and association (Constitution 80) 448–9
freedom of conscience/expression (Constitution 78 and 79) 447–8
burden/standard of proof 448
freedom from discrimination (Constitution 82) 449
freedom of movement (Constitution 81) 449
issues for determination 439
liberty of person (Constitution 72) 444, 453, 454–5, 456, 457–9
detention on reasonable suspicion of actual or potential criminal offence 444–5
plaintiffs’ allegations 434–5, 436
precise indication of rights allegedly contravened, need for 439–40
as preliminary issue 440–1
prompt hearing (Constitution 72(3) and 77(1)) 444–5, 447, 452–3, 454–6, 457–60, 461
timeliness of suit/statutory limitation 436–7, 442–3
TJRC as proper forum 436, 438, 449–50
torture or inhuman treatment or degrading punishment (Constitution 74) 445–7, 452–3, 454–6, 457–60, 461
Wimbledon, treaty interpretation, restrictive/presumption against restrictions on sovereignty 305
Wokuri v. Kassam (diplomatic immunity)
applicable VCDR provisions 560–1
authorities 561–5
See under diplomatic immunity from jurisdiction (VCDR 31), jurisprudence
conclusions on the law, VCDR 31(1)(c)/VCDR 39(2) 565–6
Court's decision 566–7
factual and procedural background 559–60
parties’ arguments
defendant 561
plaintiff 561
Zimbabwe:
clean hands doctrine, right to seek relief in municipal courts while in breach of the law 666, 667
Constitution 1980 (with subsequent amendments) by section
16A (compulsory acquisition of agricultural land for resettlement: justifying factors), text 654
16B (agricultural land acquired for resettlement) (Amendment 17)
challenge to acquisitions under in SADC 650
implicit racial discrimination and 659
loss of rights relating to land, automaticity 656, 667
“non obstante”/overriding effect 656, 660
text 655–6
transfer of title to State, implications 656
16B(2)(a) (acquisition of land: exclusion of compensation), Campbell 657–8
16B(3) (exclusion of Constitution 18(1) and (9) protection) 656–7
16B(3)(a) (exclusion of right to challenge acquisition of land under Constitution 16B(2)(a) and 16B(2)(b)) 656–7, 667
Campbell 656–7
16B(6) (legislation making it a criminal offence to possess or occupy land acquired by State under s 16B) 659
18(1)(a) (obligation to observe rule of law) 661
obligations towards former land owners 664–6
23 (protection from discrimination) 654–60
24(1) (redress for breach of Declaration of Rights) 650
76(7) (independence of Attorney-General) 660
expropriation/nationalization, compensation, Acquisition of Farm Equipment or Material Act 2004 provisions 666–7
Gazetted (Consequential Provisions) Act 2006 by section
2 (interpretation)
“lawful authority”/“offer letter” (s 2(1)(a)) 662–3, 667
text 662
3(2) (failure to evacuate gazetted land as criminal offence) 650, 663, 667
constitutionality 660–1, 667
3(5) (eviction of person in unlawful occupation of land) 663–4, 668
judicial review/justiciability, land reform programme 661
Land Settlement Act 2001 by section
8 (ministerial authority to issue land settlement leases) 662–3, 667
9 (referral of lease applications to Land Settlement Board) 662–3
law of:
Acquisition of Farm Equipment or Material Act 2004, right to compensation 666–7
Supreme Court Act by section, 26 (finality of decisions of Supreme Court) 658–9
See under Constitution, Gazetted (Consequential Provisions) Act 2006 and Land Settlement Act 2001 above
legislation, interpretation, intention of legislature 662
racial discrimination (Constitution 16B) 659
rule of law:
See under Constitution 1980 (with subsequent amendments) by section, 18(1)(a) (obligation to observe rule of law) above
SADC Tribunal, relationship with Zimbabwe judicial system 658–9
See also Commercial Farmers Union case (Zimbabwe)
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