LLAW6109 LLAW3044 course outline - law.hku.hk 1 of 23 university of hong kong llaw6109 / llaw3044 /...

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UNIVERSITY OF HONG KONG LLAW6109 / LLAW3044 / JDOC6109

2015-2015 PUBLIC INTERNATIONAL LAW

PROVISIONAL COURSE OUTLINE AND READING LIST I. COURSE DESCRIPTION Public international law traditionally governs inter-states relationships and has evolved to govern all sort of entities such as individuals, international organizations etc. The scope and importance of public international has expanded dramatically in the last century due to increased awareness and studies towards globalization, escalation of conflicts and environments and human rights violations. The course explores the history, ideas and concepts that shape public international law and practice, and on the relationship between public international law and other ideas and phenomena. It aims to provide students with a critical introduction to public international law as well as a series of in-depth investigations into specific themes from a variety of perspectives (such as war and peace, territorial disputes, state immunities etc). It is conducted with a view to equip students with the skills and ability to advise on the basics of public international law rules and to analyze and resolve many of the legal problems arising around the world nowadays. This course is suitable for students with or without prior public international law knowledge and/or experience. II. ADMINISTRATIVE MATTERS This course will be taught by Mr Ernest CY Ng, Barrister-at-law at Parkside Chambers, Hong Kong ([email protected]). Appointments with the lecturer can be arranged by e-mail. The course will be taught on every Tuesday (except public holidays and reading week) 6:30 p.m. to 9:20 p.m. for LL.M. and J.D. students and Wednesday (except public holidays and reading week) 6:30 p.m. to 9:20 p.m. for LL.B. students (except public holidays and reading week). SEMINAR DATE (LLB/LLMJD) TOPIC TO BE COVERED

PART I Week 1 02 / 08.09.2015 Introduction Week 2 09 / 15.09.2015 Obligations Week 3 16 / 22.09.2015 Subjects Week 4 23 / 29.09.2015 Territories

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Week 5 30.09 / 06.10.2015 War Week 6 07 / 20.10.2015 Responsibility

Mid-Term Assessment PART II

Week 7 28 / 27.10.2015 Human Rights Week 8 04 / 03.10.2015 Jurisdiction and Immunities Week 9 11 / 10.11.2015 Settlement of Int’l Disputes Week 10 18 / 17.11.2015 Domestic Courts Week 11 25 / 24.11.2015 Further Selected Topics III. ASSESSMENT Students will be assessed by way of a mid-term assessment and a final assessment exercise: -

- Mid-term assessment: A 24-hour or 48 hour take home assessment (~2,000 words) in which students are expected to answer 1-2 problem type and/or essay type questions on the content covered in Seminars I to VI.

- Final assessment: A research paper assessment (~5,000 words) (excluding footnotes) for which the topics will be provided. It will cover all the content in Seminars I to XII.

IV. READING LIST No one text book is required for this course, but recommended general work for frequent use are: -

- Crawford, Brownlie’s Principles of Public International Law (8th ed., 2012) (“Brownlie”) OR Shaw, International Law (7th ed., 2014) (“Shaw”)

- Harris & Sivakumaran, Cases and Materials on International Law (8th

ed., 2015) (“Harris”) As for general further readings, students are encouraged to consult: -

- Crawford and Koskenniemmi (eds), Cambridge Companion to International Law (2011)

- E. Lauterpacht (ed), H. Lauterpacht’ s International Law: Collected Papers: Part I (1970)

- Lauterpacht, The Function of Law in the International Community

(1933)

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- Oppenheim, Oppenheim’s International Law (9th ed., 1992-1996)

- Higgins, Themes and Theories: Selected Essays, Speeches, and Writings

in International Law (2009)

- Koskenniemi, The Politics of International Law (2011) Under each topic heading in Annex I, students will find a list of basic and further readings for that week’s class. The list of basic readings refers to those that will be discussed in depth in the relevant Seminar (with the pieces marked [*] being the minimum pre-class reading requirement). They do not give a full understanding of each topic, students are highly encouraged to consult the list of further readings in particular if one wishes to write their final examination on the relevant topic(s). Basic readings other than chapters (or materials reproduced) in Harris, Shaw or Brownlie shall be provided by way of distributed materials (marked with [#]). As a basic guide, one should spend at least 50% of the preparation time on the basic readings other than the book chapters in Harris, Shaw and Brownlie. Seminars will thus proceed on the basis that the readings with asterisks have been thoroughly read and considered. At the end of the reading list for each seminar you will find a list of questions for discussions. Everyone is expected to come prepared to answer any of those questions.

ERNEST CY NG PARKSIDE CHAMBERS

FALL 2015

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ANNEX I

SEMINAR I INTRODUCTION

A. INTRODUCTION

B. THEORIES OF PUBLIC INTERNATIONAL LAW This Seminar aims to give an introduction to the coverage and the subject matter of the course. First part of the Seminar will be a general introduction to the various topics to be covered during the semester, assessment methods, research guide and other administrative matters sufficient for the students to make a preliminary decision as to whether to take the course or not. Section part of the Seminar will mark the formal commencement of the course by introducing students with the history of public international law, various key theories thereof and also the analytical skills required for solving problems therefrom. Basic Readings

- Brownlie, Ch. 1* or Shaw, Chs. 1-2* - Harris, Ch. 1* - E. Lauterpacht (ed), H. Lauterpacht’ s International Law: Collected Papers:

Part I (1970), Ch. 1# Further Readings Secondary Materials: Books and Articles

- Bederman, International Law in Antiquity (2007) - Carty, Philosophy of International Law (2007) - Crawford and Koskenniemmi (eds), Cambridge Companion to International

Law (2011) - Koskenniemi, From Apology to Utopia (2005) - Marks, International Law on the Left (2008) - Nussbaum, A Concise History of the Law of Nations (1954) - Orakhelashvili (ed.), Research Handbook on the Theory and History of

International Law (2011)

- Alvarez, ‘Why Nations Behave’, (1997-98) 19 Michigan Journal of International Law 303

- Besson & Tasioulas (ed.), The Philosophy of International Law (2010), Ch 1. - Gontarek, ‘International Legal Theory: Positivist, Naturalist, and Much More’

(1995) 1 International Legal Theory 5. - Higgins, Themes and Theories (2009) Chs. 1.5-1.6. - Hueck, ‘The Discipline of the History of International Law: New Trends and

Methods on the History of International Law’ (2001) 3 Journal of the History of International Law 194-217

- Lesaffer, ‘International Law and its History: the Story of an Unrequited Love’ Craven et al (eds) Time, History and International Law (2007) 27-41

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Hague Collected Courses - Caldera, ‘The Juridical Basis of a New International Order’ (1986) 196 Hague

Recueil des cours 391-400 - Crawford ‘Chance, Order, Change: The Course of International Law. General

Course on Public International Law’ (2013) 365 Hague Recueil des cours 9-390

- Lachs, ‘The Development and General Trend of International Law in Our Time’ (1980) 169 Hague Recueil des cours 9

- Thirlway, ‘Concepts, Principles Rules and Analogies’ (2002) 294 Hague Recueil des cours 273-405

- Xue, ‘Chinese Contemporary Perspectives on International Law: History, Culture and International Law’ (2011) Hague Recueil des cours 41-234

- Zemanek, ‘The Legal Foundations of the International Legal System” (1997) 266 Hague Recueil des cours 9-336

Questions for Discussion

- What is ‘public international law’? Is it a system of law at all?

- How does the system (if at all) of ‘public international law’ differs from domestic law in terms of formation, conception and reasoning?

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SEMINAR II

OBLIGATIONS

This Seminar aims to develop on Seminar I and introduce the basis of obligations in public international law and the fundamental question of the sources of obligations. Students will be introduced to the classic formulation of sources of international law with Article 38 of the Statute of the International Court of Justice as the starting point. The Seminar will give special attention to the formulation of customary international law and treaty law, the two most important sources of obligations to-date. The question of judicial decisions as a source of obligations shall receive attention in Seminar IX towards the end of the Semester. The Seminar will also touch on concepts such as unilateral acts, equity, obligations erga omnes, jus cogens and soft law. Basic Readings Primary Materials

- Statute of the International Court of Justice (1945) 33 UNTS 993, Article 38# (provided together with the Charter of the United Nations)

- Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331*1 - North Sea Continental Shelf [1969] ICJ Rep 32

Secondary Materials

- Brownlie, Chs. 2, 16* or Shaw, Chs. 3, 16* - Harris, Chs. 2, 10* - Schachter, ‘Towards a Theory of International Obligations’ in Schwebel (ed.),

The Effectiveness of International Decisions (1971) 9-31 reprinted in Koskenniemi (ed) Sources of International Law (2000) 3-27#

Further Readings Primary Materials

- Case Concerning the Military and Paramilitary Activities in and Against Nicaragua [1986] ICJ Rep 14

- Nuclear Tests [1974] ICJ Rep 253 Secondary Materials: Books and Articles

- Aust, Modern Treaty Law and Practice (2013) - Bianchi et al (eds.) Interpretation in International Law (2015) - Brierly, The Basis of Obligations in International Law and Other Papers

(1958) - Corten & Klein (eds.), The Vienna Conventions on the Law of Treaties: A

Commentary (2011) - D’Amato, The Concept of Custom in International Law (1971) - Gardiner, Treaty Interpretation (2008)

1 Relevant extract reproduced in Harris, §2-012 et seq. 2 Relevant extract reproduced in Harris, §10-004 et seq.

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- E. Lauterpacht (ed), H. Lauterpacht’ s International Law: Collected Papers: Part I (1970), Ch. 2

- Linderfalk, On the Interpretation of Treaties (2007) - McNair, The Law of Treaties (1961) - Nolte (ed.), Treaties and Subsequent Practice (2013) - Orakhelashvili, Peremptory Norms in International Law (2006) - Orakhelashvili, The Interpretation of acts and rules in International Law

(2008) - Thirlway, Sources of International Law (2014) - Tomuschat & Thouvenin, The Fundamental Rules of the International Legal

Order (2006) - Van Hoof, Rethinking the Sources of International Law (1983) - Zimmerman et al. (ed.,), The Statute of the International Court of Justice: A

Commentary (2012) Article 38

- Binder, ‘Stability and Change in Times of Fragmentation’ (2012) 25 Leiden Journal of International Law 909-934.

- Mortenson, ‘The Travaux of Travaux’ (2013) 107 American Journal of International Law 780-822.

- Taki, ‘Opinio Juris and the Formation of Customary International Law’ (2008) 51 German Yearbook of International Law 447-466

- Verdier & Voeten, ‘Precedent Compliance, and Change in Customary International Law’ (2014) 108 American Journal of International Law 389-434

Hague Collected Courses

- Villiger, ‘The 1969 Vienna Convention on the Law of Treaties’ (2011) 344 Hague Recueil des cours 9-192.


- What is/are the basis/bases of obligations in international law? Is ‘consensus’ the answer?

- Why do states comply with international law? (or do they really?)

- What are the differences between ‘basis of obligations’ and ‘sources of obligations’?

- Is customary international law in reality a mere fiction?

- What is the relationship (or interrelationship) between different sources of

law? Is there a hierarchy and if so, why?

- What are the differences between the concepts of obligations erga omnes and jus cogens and why are these differences significant?

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SEMINAR III SUBJECTS

A. SUBJECTS OF PUBLIC INTERNATIONAL LAW

B. STATEHOOD AND THE DOCTINE OF RECOGNITION

The purpose of this class is to examine the entities that are subject to the rule of public international law, with particular emphasis to be paid to the main actors in public international law: States. A closely related topic of the right to self-determination shall be examined in Seminar VII. Basic Reading Primary Materials

- Montevideo Convention on Rights and Duties of States (1934) 165 LNTS 19, Article 1*3

- Reparations for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174*4

- Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] QB 54*5

- Carl Zeiss Stifung v Rayner & Keeler Ltd [1967] 1 AC 853*6

Secondary Materials - Brownlie, Chs. 4-7* or Shaw, Ch. 5* - Harris, Ch. 4*

Further Reading

- Nijman, The Concept of International Legal Personality (2004) - Parlett, The Individual in the International Legal System (2011) - Lindblom, Non-Governmental Organizations in International Law (2005) - Crawford, The Creation of States in International Law (2nd ed., 2006) - Bekker, The Legal Position of Intergovernmental Organizations (1994)

- Giuseppe Marchegiano, ‘The Juristic Character of the International

Commission of the Cape Spartel Lighthouse’ (1931) 25 American Journal of International Law 339


- Are the categories of international legal persons closed? If so, what are the consequences of an ‘open ended’ definition of international legal persons, both legally and politically?

3 Reproduced in Harris, §4-002 et seq. 4 Relevant extract reproduced in Harris, §4-048 et seq. 5 Relevant extract reproduced in Harris, §4-089 et seq. 6 Relevant extract reproduced in Harris, §4-105 et seq.

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- Is the notion of international legal personality an objective conception?

- What is the legal position of non-governmental organizations in international law?

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SEMINAR IV

TERRITORIES

A. LAND TERRITORY AND AIRSPACE B. SEA TERRITORY AND THE LAW OF THE SEAS

This class is to examine the current system of law in respect of title to land territories, airspace and outer space. Special attention will be devoted to the issue in respect of territorial seas under the topic of laws of the seas and recent controversial disputes. Students’ attention is drawn to the on-going territorial disputes in the South China Seas for which the Republic of Philippines instituted proceedings against the People’s Republic of China on 22 January 2013 before the Permanent Court of Arbitration which is still pending. Basic Reading Primary Materials

- Island of Palmas (1928) 2 RIAA 829 (Full text)#* - Western Sahara [1975] ICJ Rep 12*7 - SS Lotus (1927) PCIJ Ser A No. 10*8 - Chicago Convention on International Civil Aviation (1944) 15 UNTS 295*9 - Convention on the Law of the Sea (1982) 1833 UNTS 3*10

Secondary Materials

- Brownlie, Chs. 8-13* or Shaw, Chs. 10-11* - Harris, Chs. 5, 7.*

Further Reading

- Castellino & Allen, Title to Territory in International Law (2003) - Jennings, Acquisition of Territory in International Law (1963) - Shaw (ed), The International Law of Territory (2012) - Shaw, Title to territory in Africa (1986) - Byers, International Law and the Arctic (2014)


- What is the respective legal and political importance of land, sea and air territory?

- What is the role of ‘intertemporal law’ in respect of this area of law?

- What is the consequences and legal status of territory unlawfully acquired?

7 Relevant extract reproduced in Harris, §5-026 et seq. 8 Relevant extract reproduced in Harris, §6-007 et seq. 9 Relevant articles have been reproduced in Harris, §5-075 et seq. 10 Relevant articles have been reproduced in Harris, §7-005 et seq.

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- Consider the content of this Seminar in particular with reference to the on-going dispute between China and Philippines in respect of the South China Sea. Does the claim of Philippines bear sufficient merits? NB: This question will be revisited when we come to Seminar IX.

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SEMINAR V WAR

A. THE LAW ON (NON) USE OF FORCE

B. LAWS OF WAR AND INTERNATIONAL HUMANITARIAN LAW

The purpose of this class is to explore the classic exposition of the law of war both in the classics and the contemporary international legal area. Key concepts including aggression, self-defence and ‘armed attack’ under the Charter of the United Nations shall be examined with reference to recent incidents of invasions and conflicts. The 2nd part of the Seminar focuses on the law governing the conduct of hostilities and protection of civilians after the onset of an armed conflict. The question of individual criminal responsibility shall be dealt with in the next Seminar. Basic Readings Primary Materials

- Charter of the United Nations (1945) 1 UNTS XVI, Arts 2, 51, Ch. 7*11 - Case Concerning the Military and Paramilitary Activities in and Against

Nicaragua [1986] ICJ Rep 14 (already discussed in Seminar II)*12 - Caroline (1841) 29 BFSP 1137-8; 30 BFSP 195-6*13 - Oil Platforms [2003] ICJ Rep 161*14 - Armed Activities on the Territory of the Congo [2005] ICJ Rep 168*15 - Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion)

[1996] ICJ Rep 226 (full text)#* - Prosecutor v Dusko Tadić (ICTY) (Jurisdiction) (Appeals Chambers) (1997)

105 ILR 427 (full text)#*

Secondary Materials - Brownlie, Ch. 33* (on Pt A only) or Shaw, Chs. 20-21* (on Pts A-B) - Harris, Ch. 11* (on Pt A only)

Further Readings

- Clapham & P (eds.), The Oxford Handbook of International Law in Armed Conflict (2014)

- Fleck (ed.), The Handbook of International Humanitarian Law (3rd ed., 2013) - Henckaerts & Doswald-Beck (eds.), Customary International Humanitarian

Law (2005) - Gray, International Law and Use of Force (3rd ed., 2008) - Kalshoven & Zegveld, Constraints on the Waging of War: An Introduction to

International Humanitarian Law (4th ed. 2011) (on Pt B)

11 Reproduced in Harris, §§11-007, 11-048; 11-168 et seq. 12 Relevant extract reproduced in Harris, §11-012 et seq. 13 Relevant extract reproduced in Harris, §11-044 et seq. 14 Relevant extract reproduced in Harris, §11-055 et seq. 15 Relevant extract reproduced in Harris, §11-068 et seq.

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- Kreß, C., ‘The International Court of Justice and the Law of Armed Conflicts’, in Tams & Sloan (eds.), The Development of International Law by the International Court of Justice (2013) 263-298.

- Neff (ed.), Hugo Grotius on the Law of War and Peace (2012) Questions for Discussion

- Is war just? Can a war be just at all?

- What is meant by use of force and unlawful use of force? When can states resort to legitimate use of force under international law?

- Can military intervention into another state’s affairs ever be justified? What is

the legitimacy, legal or philosophical/moral, of the so-called doctrine of ‘humanitarian intervention’ or ‘responsibility to protect’?

- Does the collective measures institution under Chapter VII of the Charter of

the United Nations suffer from any problems? How should one solve such problems?

- When does international humanitarian law apply? How does it affect the usual

application of other principles of public international law and international human rights law?

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SEMINAR VI RESPONSIBILITY

A. STATE RESPONSIBILITY

B. INDIVIDUAL RESPONSIBILITY

The purpose of this class is to examine the secondary rules of obligations in public international law, being the consequences of breaches of the primary rules imposing various obligations on actors. Due to the constraint of time, this Seminar will only focus on two major aspects of the law of responsibility being the responsibility of states when they are in breach of their obligations and the criminal responsibility of individuals for violation of rules of international criminal law. Basic Readings Primary Materials

- International Law Commission's Articles on State Responsibility UNGA Res 56/83 (12th December 2001) *16

- Case Concerning the Military and Paramilitary Activities in and Against Nicaragua [1986] ICJ Rep 14 (already discussed in Seminars II & V)*17

- Gabčíkovo-Nagymaros Project [1997] ICJ Rep 7 (full text)#* - Prosecutor v Dusko Tadić (ICTY) (Jurisdiction) (Appeals Chambers) (1997)

105 ILR 427 (already discussed in Seminar V) (full text)#* Secondary Materials

- Brownlie, Chs. 25-26* or Shaw, Chs. 8, 14* - Harris, Ch. 8 (on Pt A only)*

Further Readings Primary Materials

- Trial of the Major War Criminals (The IMT, Nuremberg, Germany) reprinted in excerpt McDonald & Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law: Volume II Part 2 (2000) 629-750

- Application of the Convention on the Prevention and Punishment of the Crime of Genocide [2007] ICJ Rep 43 Secondary Materials: Books and Articles

- Cassese et al (eds), Cassese’s International Criminal Law (3rd ed., 2013), Chs. 1-3

- Crawford, Pellet & Olleson (eds.) The Law of International Responsibility (2010)

- Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002)

- Mettraux, The Law of Command Responsibility (2009)

16 The draft and the commentary to its relevant articles have been reproduced in Harris, §8-003 et

seq. 17 Relevant extract has been reproduced in Harris, §11-012 et seq.

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- Schabas, An Introduction to the International Criminal Court (2nd ed., 2004) - Schabas, The UN International Criminal Tribunals (2006)


- How is responsibility fixated or attributed to states? How do the rules on

attribution interact with the law on state immunity?

- Is it at all possible to speak of ‘criminal responsibility’ of state? Consider this question in particular with regard to the crime of aggression.

- When it comes to the question of breach, does it matter if it is an ordinary rule

of international law or jus cogens or obligation erga omnes? If so, what is the significance?

- Is the imposition of individual criminal responsibility simply an arbitrary

exercise by the victor in a given conflict (ie victors’ justice)? Consider this question in the context of the trials in Nuremburg, the International ad hoc Tribunals and also the current International Criminal Court, which has suffered from criticisms of geographical bias.

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SEMINAR VII HUMAN RIGHTS

A. INTERNATIONAL PROTECTION OF HUMAN RIGHTS

B. SELF-DETERMINATION

The purpose of this class is to give a brief introduction to the highly specailised (?) area of international human rights and to stimulate the critical thinking as to the rationale of human rights and, whether or not it is a compartmentalized areas of law. Students will also be introduced to the key debate of indivisibility of human right and the critique thereof with a view to consider whether or not there is an a priori sequential relationship between civil and political rights and economic, social and cultural rights. The second half of the Seminar will address the complex issue of right to self-determination which draws on materials examined in Seminars III, IV, V and first half of this Seminar and consider the legitimacy of secession in this context. Basic Readings Primary Materials

- Charter of the United Nations (1945) 59 Stat. 1031, T.S. 993, 3 Bevans 1153, Article 1*

- Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations UNGA Res. 2625, UN Doc. A/5217 at 121 (1970).#*

- International Covenant on Economic, Social and Cultural Rights (1966) 993 UNTS 3, especially Article 1*18

- International Covenant on Civil and Political Rights (1966), 999 U.N.T.S. 171, especially Article 1*19

- Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo [2010] ICJ Rep 403 (full text)#

- Reference re Secession of Quebec [1998] 2 SCR 217 (full text)#

Secondary Materials - Brownlie, Ch. 29* or Shaw, Ch. 6* - Harris, Ch. 8* - Lauterpacht, ‘The Law of Nations, the Law of Nature and the Rights of Man’

(1943) 29 Transactions of the Grotius Society, 1-33# Further Readings Primary Materials

- UNHRC, General Comment No. 31 (26th June 2004) - UN Committee on ESCR, General Comment No. 2 (14th December 1990)

Secondary Materials: Books and Articles

18 Relevant extract reproduced in Harris, §9-169 et seq. 19 Relevant extract reproduced in Harris, §9-051 et seq.

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- Addo, The Legal Nature of International Human Rights (2010) Ch. 1 - Bayefsky (ed), Self-Determination in International Law: Quebec and Lessons

Learned (2000) - Dembour, Who Believes in Human Rights? (2006) Ch. 8 - Hunt, Inventing Human Rights (2007) Ch 1. - Lillich, International Human Rights: Problems of Law, Policy and Practice (3rd

ed., 1995) - Marks & Clapham, International Human Rights Lexicon (2005) - Sen, Development as Freedom (1999)

- Tomuschat, ‘Secession and Self-Determination’ in Kohen (ed.) Seccession

(2006) 23-45. - Mégret ‘Nature of Obligations’ in Moeckli, Shah & Sivakumaran International

Human Rights Law (2010) 125 – 149

- Waldron, ‘The Theoretical Foundations of Liberalism’ in Waldron (ed.) Liberal Rights: Collected Papers 1981-1991 (1993) Ch. 2

- Weller, ‘Why the Legal Rules on Self-determination do not resolve Self-determination disputes’ in Weller et al (eds.), Settling Self-Determination Disputes (2008) 17-46. Hague Collected Courses

- Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’ (2011) Hague Recueil des cours 9-222.


- What are the origins of the idea of human rights?

- How did human rights become part of international law?

- Is the indivisibility of human rights ‘a self-evident truth?’ Are there any principled differences between the categories of economic, social and cultural rights and civil and political rights?

- Do you agree that ‘human rights obligations are in some ways radically

distinct from other types of obligations existing under general international law.’ How so?

- Can the current system of international law resolve disputes of self-

determination? If so, how effective is it?

- What are the differences between internal and external self-determination? How practical is it to speak of external self-determination in terms of political realities?

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SEMINAR VII JURISDICTION AND IMMUNITIES

The purpose of this class is to look at the question of exercise and non-exercise of state’s domestic jurisdiction being one of the most sensitive areas in the subject of public international law. First part of the Seminar will look at the classic principles in respect of ‘jurisdiction’ with in-depth analysis as to the evolving case law from the SS Lotus case to the Arrest Warrant case. The second part of the Seminar will consist of an introduction to the diplomatic law and the rules governing immunities of states before a domestic court. This topic intertwines with the Seminar XI where by the Hong Kong example of domestic application of state immunities shall be examined in greater details. Basic Reading Primary Materials

- SS Lotus (1927) PCIJ Ser A No. 10*20 - Attorney General of the Government of Israel v Eichmann (1961) 36 ILR

5*21 - Arrest Warrant [2002] ICJ Rep 3*22 - Jurisdictional Immunities of the State [2012] ICJ Rep 99*23 - Vienna Convention on Diplomatic Relations (1961) 500 UNTS 95*24 - R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet

Ugarte (No 3) [2000] 1 AC 147 (full text)#*

Secondary Materials - Brownlie, Chs. 21-22* or Shaw, Chs. 12-13* - Harris, Ch. 6 *

Further Reading

Secondary Materials: Books and Articles

- Ryngaert, Jurisdiction in International Law (2008) - Yang, State Immunity in International Law (2015) - Fox QC, The Law of State Immunity (3rd ed., 2015)

- Akehurst, ‘Jurisdiction in International Law’ (1975) 46 British Yearbook of

International Law 46 145–257 - Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and

Resources’ (1982) 53 British Yearbook of International Law 1–26

Hague Collected Courses - Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Hague

Recueil des cours 1–162.

20 Relevant extract reproduced in Harris, §6-007 et seq. 21 Relevant extract reproduced in Harris, §6-023 et seq. 22 Relevant extract reproduced in Harris, §6-040 et seq. 23 Relevant extract reproduced in Harris, §6-116 et seq. 24 Relevant extract reproduced in Harris, §6-135 et seq.

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- Mann,. ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’ (1984) 186 Hague Recueil des cours 9–116.

- Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’ (1994) Hague Recueil des cours 9-130.


- What are the theoretical and legal justifications for extending jurisdiction out of a state’s territory, in particular in respect of universal jurisdiction?

- Is the Jurisdictional Immunities distinguishable from the Pinochet case? How?

- What is the distinction between immunity ratione personae and immunity ratione material? Does the distinction result in different legal consequences and, if so, how are they treated differently?

- What is the link between immunities and state responsibility? How should a

state choose between claiming immunity for criminal conduct of state official (thereby assuming state responsibility) or disavowing immunity (thereby exposing the official to prosecution)?

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SEMINAR IX (PEACEFUL) SETTLEMENT OF INTERNATIONAL DISPUTES

This Seminar examines (in a somewhat condensed way) the procedural aspect of public international law being the way in which disputes are being dealt with (other than by way of use of force). Students will firstly be introduced to the general system of settlement of disputes in public international law (judicial and/or non-judicial) with particular emphasis the International Court of Justice. Then particular attention will be given to the key areas such as (i) denial of justice (ii) jurisdiction and admissibility (iii) justiciability or arbitrability (d) applicable law (e) provisional measures and (f) remedies. Basic Readings Primary Materials

- Statute of the International Court of Justice (1945) 33 UNTS 993*

Secondary Materials - Brownlie, Chs. 31-32* or Shaw, Chs. 18-19* - Harris, Ch. 12*

Further Readings

Secondary Materials: Books and Articles - Lauterpacht, The Function of Law in the International Community (1933) - Merrills, International Dispute Settlement (5th ed., 2011) - Paulsson, Denial of Justice in International Law (2005) - Paulwelyn, Conflicts of Norms in Public International Law – How the WTO

relates to other Rules of International Law (2003) - Rosenne, The Law and Practice of the International Court 1920-2005 (2006)

- Crawford, ‘The Legal Effect of Automatic Reservation to the Jurisdiction of

the International Court’ (1979) 50 British Yearbook of International Law 43 - Kingsbury, ‘International Courts’ in Crawford & Koskenniemi (eds),

Cambridge Companion to International Law (2012) - Oxman, ‘Complementary Agreement and Compulsory Jurisdiction’ (2001) 95

American Journal of International Law 277 Questions for Discussion

- What are the consequences of the proliferation of international courts and tribunal? It is a healthy development?

- Can the problem of so-called ‘proliferation’ of international courts and tribunals be resolved by more systematic policies of deference to the most appropriate national or international forum for the given dispute – i.e. by the systematic adoption of a principle of subsidiarity?

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- Before an international tribunal, does sovereign immunity qualify a substantive right or it is merely a procedural bar to the exercise of jurisdiction by the tribunals?

- In Jurisdictional Immunities of the State case, the ICJ acknowledged that

"the immunity from jurisdiction of Germany in accordance with international law may preclude judicial redress for the Italian nationals concerned." (para. 104). Could the court have used denial of justice to justify a lifting of Germany's immunity (See the dissent by Judge Cançado Trindade)?

- Is the current system of international dispute settlement system effective at all?

Consider this question in particular with reference to the on-going dispute between China and Philippines in respect of the South China Sea.

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SEMINAR X DOMESTIC COURTS

A. APPLICATION OF INTERNATIONAL LAW IN DOMESTIC COURTS

B. THE HONG KONG CASE STUDY: FG LITIGATION

The purpose of this class is to examine the way in which rules of public international law are applied in domestic court, with the primary focus to be put on common law countries such as the United Kingdom. The 2nd part of the Seminar will examine a recent incidence of such being the case of FG Hemisphere involving the application of rule of state immunities in Hong Kong. The 2nd part is currently tentatively to be conducted by way of a panel discussion by practitioners involved in the FG Hemisphere case. Basic Reading Primary Materials

- R v Jones (Margaret) [2007] 1 AC 136*25 - FG Hemisphere Associates LLC v Democratic Republic of Congo [2009] 1

HKLRD 410 (CFI); [2010] 2 HKLRD 66 (CA); (2011) 14 HKCFAR 95 (CFA No. 1) and (2011) 14 HKCFAR 395 (CFA No. 2)#

Secondary Materials

- Brownlie, Ch. 3* or Shaw, Ch. 4* - Harris, Ch. 3* - Carty, ‘Why are Hong Kong Judges Keeping a Distance from International

Law, and with what consequences?’ (2011) Hong Kong Law Journal 401# Further Readings

Secondary Materials: Books and Articles - Bingham, Widening Horizons (2010) - Fatima, Using International Law in Domestic Court (2005) - Kelsen, Principles of International Law (2nd ed., 1967) - Nollkaemper, National Courts and the International Rule of Law (2011) - Sloss et al. (eds.), International Law in the U.S. Supreme Court (2011) - von Bernstorff, The Public International Law Theory of Hans Kelsen (2010)

- O’Keefe, ‘Domestic Court as Agents of Development of the International Law

of Jurisdiction’ (2013) 26 Leiden Journal of International Law 514-588 Hague Collected Courses

- Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957) 92 Hague Recueil des cours 126

Questions for Discussion - To be raised in the panel discussion.

25 Reproduced in Harris, §3-021 et seq. 26 Extract reproduced in Harris, §3-001 et seq.

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SEMINAR XI SELECTED TOPICS

This seminar will deal with a number of short topics which the Students are expected to gain some knowledge of but due to the constraint on the length of this course, the content of which had not been able to be incorporated into separate seminars. They may be chosen from two of the followings:

- International Administrative Law - International Humanitarian/Criminal Law (further topics) - International Criminal Procedure - International Environmental Law & Energy Law - International Institutions Law - International Refugee Law - International Trade Law and Economic Law - Nationality Law - Peace-building and Transitional Justice - Terrorism - Relationship between Public International Law and Private International Law

Should it transpires that the content in Seminars I to X have not been sufficiently considered, this class may also be used to supplement those Seminars where necessary. Basic Reading

- To be confirmed Further Reading

- To be confirmed


- To be confirmed

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