Lotus, PCIJ, series A, no. 10 (1927)
Wimbledon, The (1923), PCIJ series A, no. 1
These two cases illustrate the dynamics of interaction between State sovereignty and international legal obligations discussed in Chapter 1.
Brierly, The Basis of Obligation in International Law, Chapter 1
Brierly, So-Called Political Disputes in Basis of Obligation
Bederman, The Spirit of International Law, Chapter 1
H. Lauterpacht, The Grotian Tradition of International Law, BYIL (1945)
SG Neff, Justice Among Nations – A History of International Law (Harvard 2014), Chapters 4 and 5
A. Orakhelashvili, The Relevance of Theory and History: The Essence and Origins of International Law, Chapter 1 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2020) (open access)
M. McDougal and H. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL (1959), 1
P. Allott, The Concept of International Law, 10 EJIL 1999, 31
B.S. Chimni, International Law and World Order (CUP), Chapter 7
A. Orakhelashvili, International Law, Politics and Ideology, Chapter 9 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2020)
A. Orakhelashvili, Hegemony, Multipolarity and the System of International Law, in M. Happold (ed.), International Law in a Multipolar World (Routledge 2011)
What is the relationship between State sovereignty and international law? How does the international legal system handle that relationship?
See what theories are discussed in Chapter 1 regarding the relationship between sovereignty and international law. Familiarise yourself with the Lotus and Wimbledon cases. How did State sovereignty relate to legal obligation in each of those cases? How did the Permanent Court handle underlying controversies?
What is the relevance and utility of critical or non-positivist theories in understanding the essence and workings of international law?
Short timeline of international legal history:
25th–24th centuries BC – first international agreements in Middle East
1280 BC – peace treaty between Egypt and Hittite Kingdom
1648 – Peace of Westphalia
1713 – Peace of Utrecht
1823 – Monroe doctrine
1841 – “Opium War” between UK and China
1856 – Peace of Paris and end of Crimean War
1878 – Congress of Berlin and settlement on the Balkans
1907 – First treaty outlawing use of force, with regard to contract debts
1919 – Versailles Peace Treaty and creation of the League of Nations
1932 – Stimson Doctrine of non-recognition of forcible territorial changes
1936 – League of Nations imposes sanctions on Italy for its invasion of Ethiopia
1945 – adoption of the UN Charter and Statute of the International Court of Justice
1950 – adoption of the European Convention on Human Rights
1960 – UN General Assembly declaration on independence of colonial territories
1962 – UN General Assembly resolution on permanent sovereignty over natural resources
1966 – adoption of UN human rights covenants on civil and political rights and economic and social rights
1990–1992 – end of Cold War and dissolution of the Socialist bloc
1998 – adoption of the International Criminal Court’s Statute
2001 – 9/11 attacks on US; beginning of the War in Afghanistan and proclamation of “war on terror” by US government
2015 – adoption of Paris Agreement on Climate Change
D. Bederman, International Law in Antiquity (2001), Chapter 5
L. Gross, Peace of Westphalia 1648–1948, 42 AJIL (1948), 20
D. Vagts, Balance of Power: History of an Idea, 73 AJIL (1979), 555
C.H. Alexandrowicz, Doctrinal Aspects of the Universality of the Law of Nations, 37 BYIL (1961), 506
A. Orakhelashvili, The Idea of European International Law, 17 EJIL (2006), 315
A. Orakhelashvili, Hegemony, Multipolarity and the System of International Law, in M. Happold (ed.), International Law in a Multipolar World (Routledge 2011)
A. Orakhelashvili, Unlocking the Unreal: An Inter-disciplinary Take on Hedley Bull’s Notions of “International Society” and “International Order”, 14 Chinese JIL (2015), 15
A. Orakhelashvili, Chapter 11: Origins, Record and Narratives: Uses and Abuses of International Legal History, Chapter 11 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2nd ed., 2020)
1815 Final Act of the Vienna Congress
The Covenant of the League of Nations
Panch Shila Principles, UNTS No. 4307, p.70
1955 Bandung Conference Final Communique
1970 Declaration on Principles of International Law
1997 Russia–China declaration on multipolar world
US National Security Strategy 2006
2016 Russia–China Joint Declaration on Promotion and Principles of International Law
What concerns does Eurocentrism raise in international legal discourse?
Read the material included in this section and discuss:
Anglo-Norwegian Fisheries case, ICJ judgment 1951
This case demonstrates the dynamics of custom formation on bilateral or multilateral planes, especially considering the degree to which the relevant States are involved in State practice or are affected by the relevant rule.
North Sea Continental Shelf, ICJ judgment 1969
Nicaragua, ICJ judgment on merits 1986
Chagos Archipelago, ICJ Advisory Opinion, 2019
The ICTY Trial Chamber decisions on:
Kunarac, IT-96-23-T, 22 February 2001, paras 465–514
Furundzija, Case IT-95-17/1-T, judgment of 10 December 1998, paras 134–164
Delalic, Music & Delic, case no. IT-96-2-T, judgment of 16 November 1998, paras 402–417; 420–497
Kuprsekic, IT-95-16-T, judgment of 14 January 2000, paras 511–536; 537–542
These cases demonstrate the relationship between treaty and custom, as well as the dynamics of multilateral contexts of custom formation discussed in Chapter 3.
Eastern Greenland¸ PCIJ Series A/B 53, judgment of 5 April 1933
Nuclear Tests, ICJ judgment 1974
These two cases demonstrate the relevance of good faith and agreement between States in creating the binding force of unilateral declarations made by States.
M. Akehurst, Custom as a Source of International Law, BYIL (1975–1976), 1
K. Heller, Specially Affected States and the Formation of Custom, 112 AJIL (2018), 192
R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BYIL (1965–1966), 271
W. Friedmann, The Uses of “General Principles” in the Development of International Law, 57 AJIL (1963), 279
O. Schachter, Chapter 4 in International Law: Theory and Practice, General Course of Public International Law, Hague Academy Lectures
M. Akehurst, Equity and General Principles of Law, 25 ICLQ (1976), 801
A. Orakhelashvili, Changing Jus Cogens Through State Practice? Chapter 7 in M. Weller (ed.), OUP Handbook on the Use of Force in International Law (OUP 2015), pp.159–166
A. Orakhelashvili, Audience and Authority: The Merit of the Doctrine of Jus Cogens, Netherlands YIL (2015), 115
State practice as an element of customary international law:
Against the background of cases discussed in Chapter 3, assess:
Does the thesis of “specially affected” States have added value in the process of custom generation?
Consult cases and materials in this chapter and discuss:
What is the relationship between multilateral treaties and customary law:
Read cases referred to in this section and discuss:
What factors will lead international courts and tribunals to endorse the outcome that a multilateral treaty in question also reflects customary international law? In which areas of international law is this more likely to happen?
Do the ILC’s draft conclusions on the identification of customary law accurately reflect the requirements of custom formation in international law?
Reflect on whether the ILC’s formulations accurately reflect positions taken by international courts and tribunals by the time the draft articles were adopted. Does the ILC accurately account for all headings of State practice? Have the ILC’s draft conclusions been acted upon in the practice of international courts?
What is the difference between general principles of law, equity, and customary international law?
Read the North Sea case and contributions by Akehurst and Schachter, and discuss:
UK Constitutional Governance and Reform Act 2010
F.A. Mann, The Consequences of an International Wrong in National and International Law, BYIL (1976–1977), 1
Trendtex Trading Corporation v Central Bank of Nigeria, Court of Appeal, [1977] 1 QB 529
R v Jones et al., [2006] UKHL 16
Regina (on the application of General Abdul Waheed Shannan Al Rabbat) v Westminster Magistrates Court, High Court, 31 July 2017
A. Orakhelashvili, High Court and Crime of Aggression, 5 JUFIL (2018), 2
The Freedom and Justice Party & Ors R (On the Application Of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor [2018] EWCA Civ 1719 (19 July 2018)
These materials illustrate the scope of the incorporation doctrine in the UK, especially the limited importance of the House of Lords’ 2006 decision in Jones, as discussed in Chapter 4.
A v Secretary of State, UK House of Lords 2005
Al-Skeini and Others v Secretary of State for Defence,[2007] UKHL 26, judgment of 13 June 2007
ZH (Tanzania), UK Supreme Court judgment 2011
Hilal Al-Jedda v Secretary of State for the Home Department, Court of Appeal (Civil Division), [2012] EWCA Civ 358
These cases demonstrate the scope to which unincorporated treaty provisions can be applied in English law.
Oppenheimer v Cattermole, House of Lords 1975
Kuwait Air Co., House of Lords, [2002] UKHL 19, [2002] 2 AC 883
Rahmatullah v MOD, UK Supreme Court judgment 2017
Belhaj v Straw, UK Supreme Court judgment 2017
These cases demonstrate the pattern of evolution of the act of State doctrine and non-justiciability in English law.
British Arab Commercial Bank Plc v The NTC of the State of Libya, 2011 EWHC 2274
On what conditions does international law apply in the UK’s legal system?
Read relevant materials cited in this section, especially cases of Trendtex, Gul, and Keyu, and discuss:
How do foreign act of State and British (Crown) act of State doctrines differ from each other?
Read cases cited in this chapter, and discuss:
1933 Montevideo Convention on Rights and Duties of States
Taiwan’s Accession to WTO as a separate customs territory, WT/L/433, 23 November 2001
EC Guidelines and Opinions on recognition of new States, 1991–1992
Greece–Macedonia Interim Accord, 1995
Prespa Agreement
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (22 July 2010) ICJ Reports, 2010; and separate opinions of Vice President Tomka and Judge Bennouna
2018 Greece–Macedonia Agreement relating Macedonia’s name
British Arab Commercial Bank Plc v The NTC of the State of Libya, 2011 EWHC 2274
Bouhadi v Breish, High Court judgment 2016
Mohammed v Breish, [2019] EWHC 306 (Comm)
Maduro Board v Guaidó Board [2020] EWCA Civ 1249
These cases demonstrate the problems arising with the English courts’ reliance on the Executive’s position in the matters of recognising foreign States and governments, as highlighted in Chapter 5.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, 1971, 16
ECJ judgment on Anastasiou, 5 July 1994
ECJ judgment on Brita, 25 February 2010
These cases expose the implications of the duty not to recognise illegal territorial changes discussed in Chapter 5.
J. Crawford, Creation of States in International Law (OUP 2006), Chapters 2–5
G. Fitzmaurice, 30 BYIL (1954), 2–5
H. Al-Baharna, The Legal Status of Arabian Gulf States (1968), 61–67
S. Charnowitz, Taiwan’s WTO Membership and Its International Implications, 1 Asian Journal of WTO and International Health Law and Policy (2006), 401
J. Dugard, Recognition and the United Nations (CUP 1987)
C.G. Fenwick, The Recognition of New Governments Instituted by Force, 38 AJIL (1944), 448
S. Talmon, Recognition of Governments: An Analysis of the New British Policy and Practice, 61 BYIL (1992), 231
S. Hille, Mutual Recognition of Serbia and Croatia, 6 EJIL (1995), 598
H. Lauterpacht, Recognition of States in International Law (1943–1944) 53 Yale Law Journal 385
R. Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, 4 EJIL (1993), 36
D. Turns, The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law, 2 Chinese Journal of International Law (2003), 105
H. Aufricht, Principles and Practices of Recognition by International Organizations, American Journal of International Law, Vol. 43, No. 4 (October 1949), 679–704
Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, International and Comparative Law Quarterly, Vol. 48, No. 3 (July 1999), 545–581
Z. Nedjati, Acts of Unrecognised Governments, International and Comparative Law Quarterly, Vol. 30, No. 2 (April 1981), 388–415
What does it take to recognise a State or government? How do you identify whether recognition has or has not been given to the relevant entity?
Read cases of Namibia, Anastasiou, Brita, and other materials cited in this chapter, and discuss:
Recognition of governments
From early 2019 onwards, the results of the election returning President Nicolas Maduro to power have been contested by the opposition, and the president of the National Assembly Juan Guaidó has declared himself as the country’s interim president. He was recognised as such by a number of European States and the US, among others.
On 24 January 2019, the UK Foreign Secretary has stated that “the United Kingdom believes Juan Guaidó is the right person to take Venezuela forward.” In the statement issued on 29 January 2019, “The UK along with Spain, Portugal, Germany, Denmark, the Netherlands, France, Hungary, Austria, Finland, Belgium, Luxemburg, the Czech Republic, Latvia, Lithuania, Estonia, Poland, Sweden and Croatia . . . and in accordance with the provisions of the Venezuelan Constitution, they acknowledge and support Mr. Juan Guaidó, President of the democratically elected National Assembly, as President ad interim of Venezuela, in order for him to call for free, fair and democratic presidential elections.” The above statement makes no allusion to pertinent clauses in Venezuela’s constitution. Ostensibly, at least, the above policy is premised on internal legitimacy as the recognition criterion, as opposed to effectiveness (see Akehurst p. 113 for background). However that requires identifying the basis validating this policy in the Venezuelan Constitution. Moreover, Joint Declaration of the UK and European Countries of 4 February 2019 expressly relies on Article 233 Venezuelan Constitution as basis for its recognition policy with regard to Venezuela’s leadership.Article 233 Venezuelan Constitution provides:
“The President of the Republic shall become permanently unavailable to serve by reason of any of the following events: death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; and recall by popular vote.
When the President of the Republic becomes permanently unavailable to serve during the first four years of this constitutional term of office, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. Pending election and inauguration of the new President, the Executive Vice-President shall take charge of the Presidency of the Republic.”On the basis of Venezuela’s Constitution, there is, thus, no reason to say that President Maduro has been or is “permanently unavailable”. Juan Guaidó and his supporters have not cited any reason that the Constitution would allow him to take the president’s office pending fresh elections or on any other ground.
A separate issue is that of the rigging of the elections, which is not a phenomenon unknown to a number of countries. However, even if it were to be proved that presidential elections in Venezuela were rigged, this would hardly enhance or benefit Juan Guaidó’s constitutional position and claims, owing to the conditions on which the Constitution recognises his current position as the speaker. The outcome is that President Maduro remains Venezuela’s president; if he were to be overthrown through domestic processes or foreign intervention as has been mooted repeatedly by now, the nature and degree of illegalities involved in such regime change would depend on which entities would be involved, either in terms of the domestic Constitution of Venezuela, or international law if regime change were to be externally engineered or assisted.Recognitions of Juan Guaidó as Venezuela’s interim leader are therefore unlawful and premature. The US “call on other governments to recognize interim President Juan Guaidó and take similar steps to protect Venezuela’s patrimony from further theft by Maduro’s corrupt regime” (29 January 2019) further exposes that the US recognition policy operates without regard to the effectiveness of the government that is being recognised, and as a tool of externally engineered change of the target State’s government.
The US government has begun according to Guaidó the prerogatives that ought to be enjoyed only by governments of a sovereign State. On 27 January 2019 it was stated that “The United States accepted interim President Juan Guaidó’s designation of Carlos Alfredo Vecchio as the Chargé d’Affaires of the Government of Venezuela to the United States on January 25. Mr. Vecchio will have authority over diplomatic affairs in the United States on behalf of Venezuela. . . . The United States looks forward to working with Mr. Vecchio and other diplomatic staff as designated by interim President Guaidó.”
Assets of Venezuela were also seized in the United States by the US government, in a way comparable to the disposal of Libyan assets in the UK as was dealt with in the British Arab Commercial Bank case before the High Court back in 2011. Under the rubric of Protecting Venezuela’s Assets for Benefit of Venezuelan People, the US government, namely “Secretary of State Michael R. Pompeo certified the authority of Venezuela’s interim President Juan Guaidó to receive and control certain property in accounts of the Government of Venezuela or Central Bank of Venezuela held by the Federal Reserve Bank of New York or any other U.S. insured banks, in accordance with Section 25B of the Federal Reserve Act. This certification will help Venezuela’s legitimate government safeguard those assets for the benefit of the Venezuelan people.”
The difference of all that from the above UK case is that President Maduro is still the effectively and constitutionally operating president of the Venezuelan State, and on legal as well as practical terms, the US owes to Venezuela the duty to compensate for seizing its assets.
The UK Supreme Court’s ruling on Venezuela’s funds deposited in the UK
On 20 December 2021, the UK Supreme Court ruled on the issue of Venezuela’s funds held in the UK (for discussion of the High Court and the Court of Appeal decisions see Akehurst, 9th ed., Chapter 5).
The Court has decided to follow the position taken by the Foreign, Commonwealth and Development Office that Juan Guaido is recognised by the UK as the interim leader of Venezuela. Lord Lloyd Jones placed reliance on the “one voice” principle, according to which the judiciary will not question the executive’s position on recognising or not recognising foreign States and governments (paras 77-79). He further disagreed with the Court of Appeal that the FCDO’s certificate left open the possibility that HMG continues to recognise Mr Maduro as President de facto (para. 89).
The Supreme Court’s decision will no doubt appeal to those who find the so-called “dualist” logic about the relationship between national law and international law attractive (on the merit of which position see Akehurst, 9th ed., Chapter 4). The Supreme Court does not seem to accept that it is not obliged to endorse the Executive’s decisions which may contradict international law.
As is well known, Nicholas Maduro remains the President of Venezuela both in fact and under the Venezuelan Constitution (see above). Juan Guaido does not yield any effective authority in the country, much as he is supported by influential foreign forces. Guaido cannot be viewed to be Venezuela’s President whether this issue is looked at from the prism of the doctrine of effectiveness, or from the prism of constitutional legitimacy. Political considerations notwithstanding, Maduro’s Government is fully entitled to access Venezuela’s funds held in the UK. A refusal to let them do that engages the UK’s responsibility for the seizure for another State’s sovereign assets and for the intervention into Venezuela’s domestic affairs and political processes. In this vein, both recognition of Guaido as head of State and refusal to return to Venezuela its financial assets amount to internationally wrongful acts. As explained in ILC’s Article 4 on State responsibility, a State incurs international legal responsibility for internationally wrongful activities of all its organs, including its courts. The fact that UK law may have obliged UK courts to do what they did does not alter this outcome (see Akehurst, 9th ed., Chapter 4).
The Supreme Court essentially validates the executive’s attempt to influence domestic political process in a foreign country. As has been explained earlier, the UK courts’ jurisprudence on the matters of international law has long since displayed a trend that UK courts perform a political role by taking sides in political controversies abroad, in relation to which the UK government may have taken a position expressly or implicitly. The Supreme Court’s decision further consolidates that trend.
Another rather awkward element in the Court’s reasoning is that the Court referred to Venezuela’s Constitution (Articles 226 and 236) to claim that Guaido is head of the State and national Executive and directs the activities of the government in Venezuela (para. 109). This flies against the fact that Guaido didn’t become the President of Venezuela according to the constitution of that country in the first place. The awkwardness of the Court’s reasoning is obvious if we consider the fact that the Court places reliance on Venezuela’s Constitution to determine that Guaido is a head of State, but does not determine whether Guaido has in fact become Venezuela’s President according to the same Constitution.
Kosovo and recognition of States
The CJEU has issued the judgment on this matter: a comment is available here.
ICJ Advisory Opinion on Reparation for Injuries, 1949
ICJ Advisory Opinion on Legality of the Use by a State of Nuclear Weapons in Armed Conflict(WHO Request), 8 July 1996
ECJ judgment on Costa v ENEL, 15 July 1964
ECJ judgment on Kadi v Commission, 3 September 2008
These cases expose the diverse ways in which the EU judiciary can perceive the “autonomy” of the EU legal order and implications of these perceptions.
A.D. McNair, The Law Relating to the Civil War in Spain, Law Quarterly Review (1937), 471
H. Lauterpacht, Recognition in International Law (CUP 1947), 175–238
Practice discussed in these two contributions exposes the motives behind the recognition of belligerency as discussed in Chapter 6.
A. Orakhelashvili, The Position of an Individual in International Law, 31 California Western International Law Journal (2001), 240
Minquiers and Ecrehos, ICJ judgment 1954
Qatar v Bahrain, ICJ judgment on merits 2001, paras 36–165
Cameroon v Nigeria, ICJ judgment on merits 2002, paras 30–225
Indonesia v Malaysia, ICJ judgment 2002
H. Waldock, Disputed Sovereignty in the Falklands Islands, 25 BYIL (1948), 311
N. Schrijver and V. Prislan, Cases Concerning Sovereignty over Islands Before the International Court of Justice and the Dokdo/Takeshima Issue, 46 ODIL (2015), 281
J.M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, 38 ODIL (2007), 157
A.B. Quillen, The Kuril Islands or the Northern Territories: Who Owns Them – Island Territorial Dispute Continues to Hinder Relations Between Russia and Japan, 18 North Carolina JIL (1993), 633
The Helsinki Rules on the use of international rivers and waterways
Discuss the extent to which effective exercise of State authority (effectivités) is required to acquire or retain title over territory.
What do effectivités consist of? What is their generic essence that distinguishes them from irrelevant factors? What factors could adversely affect or overtake the relevance of effectivités in the relevant case? When are treaties relevant or irrelevant for determining who has title over the contested piece of territory? Does international law treat acquisition of territorial sovereignty and its maintenance in the same way?
UNCLOS 1982
B. Buzan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL (1981), 324
Qatar v Bahrain, ICJ judgment on merits 2001, paras 166ff
Cameroon v Nigeria, ICJ judgment on merits 2002, paras 226ff
Philippines v China, arbitral award on merits 2016
Nicaragua v Colombia, ICJ judgment 2012
V.D. Degan, Internal Waters, Netherlands YIL (1986), 3
A.N. Honniball, The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States? 31 International Journal of Marine and Coastal Law (2016), 499
F. Francioni, Peacetime Use of Force, Military Activities, and the New Law of the Sea, 18 Cornell ILJ (1985), 226
National claims to maritime areas
UK Territorial Waters Order 1964
UK Territorial Waters Act 1987
UK, The Territorial Sea (Baselines) Order 2014
ECJ judgment Commission v UK 1991
W.L. Walker, Territorial Waters – The Cannon Shot Rule, 22 BYIL (1945), 210
G. Marston, Low-tide Elevations and Straight Baselines, 46 BYIL (1972–1973), 405
Corfu Channel, ICJ judgment on merits 1949
E. Franckx, Innocent Passage of Warships, Marine Policy (1990)
Joint Statement with Attached Uniform Interpretation of the Rules of Innocent Passage signed by US Secretary Baker and USSR Foreign Minister Shevardnadze on 23 September 1989, US Department of State, Limits of the Seas No 112
These materials highlight the challenges arising with the exercise of the right to innocent passage, as discussed in Chapter 8.
The Saiga judgment of ITLOS, 1999, paras 153–159
Ki Beom Lee, The Korea Coast Guard’s Use of Force Against Chinese Fishing Vessels: A Note, 49 ODIL (2018), 226
Arctic Sunrise, PCA Award on Merits, 14 August 2015, paras 221ff.
IMO Guidance for Ships Transiting Archipelagic Waters, 8 January 1999
K. Baumbert and B. Melchior, The Practice of Archipelagic States: A Study of Studies, 46 ODIL (2015), 60
North Sea Continental Shelf, ICJ judgment 1969
Libya v Malta, ICJ judgment 1985
Jan Mayen, ICJ judgment 1993, with Separate Opinion of Judge Shahabuddeen
These cases illustrate the use and essence of equitable methods of maritime delimitation along the lines discussed in Chapter 8.
G. Vega-Barbosa, The Admissibility of Outer Continental Shelf Delimitation Claims Before the ICJ Absent a Recommendation by the CLCS, 39(2) ODIL (2018), 103
B. Kunoy, Assertions of Entitlement to the Outer Continental Shelf in the Arctic Ocean, 66 ICLQ (2017), 367
S.P. Milan, The Legal Status of the Persian Gulf as a Semi-Enclosed Sea, 25 AVR (1987), 92
Mining Code of the International Sea-Bed Authority
Laws, regulations and administrative measures adopted by sponsoring States and other members of the International Seabed Authority with respect to the activities in the Area, Report by UN Secretary-General, 2017
UK Deep Sea Mining (Temporary Provisions) Act 1981
UK Deep Sea Mining Act 2014
Is the use of force against a foreign ship, in territorial waters or the high seas, governed by the same principles as use of force in general? Should it be?
Read Saiga and Arctic Sunrise cases, and the UNCLOS provisions dealt with in those cases. What factors are treated as a matter of priority in those cases? What is the difference between military activities and law enforcement?
Is the current approach to the nationality of vessels on high seas satisfactory?
Identify relevant passages in Saiga and Arctic Sunrise. What factors do those cases prioritise to determine the nationality of ships? How does nationality of a ship relate to nationality of crew? Do the two cases draw a fair balance in terms of rights and interests of the coastal State and the State of a ship’s nationality? What could be alternative approaches?
The ICJ’s judgment on maritime delimitation in Somalia v Kenya
In this judgment, the Court has reiterated the approach asserted across its previous jurisprudence (discussed in Akehurst, 9th ed., Chapter 8), that there is a rather high threshold for proving that a bilateral or unwritten agreement has been reached between two States about the delimitation of maritime boundaries between them, or that one State has accepted or acquiesced into the claim put forward by another State (Judgment, paras 51ff.). Kenya did not maintain its claims consistently and hence no response to those claims was required from Somalia. The acquiescence claim also failed because the Court noted that Somalia considered that the boundary dispute remained unresolved in the pertinent years, and that also allowance was to be made to the fact that over several years Somalia did not have a functioning and operational government, a factor which affected Somalia’s position to react to Kenya’s claims (paras 78–79). (On States and governments see Akehurst, 9th ed., Chapter 5.)
The Court refused to infer the existence of a de facto boundary in the context of the parties’ oil concessions practice. This practice was based on the parties’ caution rather than their sense of legal obligation (para. 87). Later in the judgment, the Court refused to let this factor influence the delimitation on the basis of equidistance (para. 161).
The Court identified relevant coasts by using radial projections which overlap within 200 nautical miles (para. 137), and excluded the relevant area south of the agreed Kenya–Tanzania boundary (para. 138).
The Court’s approach to delimitation corresponds to its earlier jurisprudence (discussed in detail in Akehurst, 9th ed., Chapter 8). Having drawn the provisional equidistance line, the Court recognised in paragraph 169 that “The provisional equidistance line between Somalia and Kenya progressively narrows the coastal projection of Kenya, substantially reducing its maritime entitlements within 200 nautical miles”. Hence, the equidistance line was adjusted northwards.
1944 Chicago Convention on International Civil Aviation
1963 Outer Space Treaty
UN General Assembly resolution 1962 (XVIII): Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space
1979 Moon Agreement
Status of International Agreements Relating to Activities in Outer Space
US–Russia Agreement on International Space Station
Kibris Hava Yollari v Secretary of State for Transport, [2010] EWCA Civ 1093, 12 October 2010
This case demonstrates the dependence of air communication rights on the legality of territorial control.
R Deplano, The Artemis accords: evolution or revolution in international space law? 70 ICLQ (2021), 799
Read the following blogpost by Jackson and Tzanakopoulos, and answer the following questions:
R.Y. Jennings, Extra-territorial Jurisdiction and United States Antitrust Laws, 33 BYIL (1957), 146
F.A. Mann, The Doctrine of Jurisdiction in International Law, 111 RdC (I-1964), 1
M. Akehurst, The Doctrine of Jurisdiction in International Law, BYIL 1972–1973
A. Orakhelashvili, Peremptory Norms in International Law (2006), Chapter 9
A. Orakhelashvili, State Jurisdiction in International Law: Complexities of a Basic Concept, Chapter 1 in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (2015) (open access)
Lotus, PCIJ, series A, no. 10 (1927)
Pinochet, UK House of Lords 1999
Arrest Warrant judgment and Joint Separate Opinion to the ICJ’s judgment on Arrest Warrant, 2002
“Enrica Lexie” Incident, PCA Case No. 2015-28, Award of 21 May 2020
C.K. Hall, The Duty of States Parties to the Convention Against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad, 18 EJIL (2008), 921
UN Committee against Torture, Observations of the Report of Canada, CAT/C/CO/34/CAN, paras 4(g) and 5(f)
UN Committee Against Torture, Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session (6–31 May 2013), para 17
These materials demonstrate that Article 14 CAT 1984 is not and has never been qualified by any restriction as to its territorial scope.
To what extent does universal jurisdiction operate in international law?
Trendtex Trading Corporation v Central Bank of Nigeria, Court of Appeal, [1977] 1 QB 529
I Congreso, House of Lords, 1983
These cases demonstrate the scope of the restrictive doctrine of State immunity.
Arrest Warrant judgment and Joint Separate Opinion to the ICJ’s judgment on Arrest Warrant, 2002
ICJ judgment on Jurisdictional Immunities (Germany v Italy), 2012
“Enrica Lexie” Incident, PCA Case No. 2015-28, Award of 21 May 2020
Immunities and Criminal Proceedings (Equatorial Guinea v France), judgment of 11 December 2020
ILC Work on Immunity of State officials from foreign criminal jurisdiction
I. Sinclair, European Convention on State Immunity, 22 ICLQ (1973), 254
D.W. Greig, Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission’s Draft Articles, 38 ICLQ (1989), 243
A. Orakhelashvili, review of the Jurisdictional Immunities judgment, 106 AJIL (2012), 609
A. Orakhelashvili, State Practice, Treaty Practice and State Immunity in International and English Law, M. Andenas and E. Bjorge (eds.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015), 407
A. Orakhelashvili, Jurisdictional Immunity of States and General International Law – Explaining the Jus Gestionis v. Jus Imperii Divide, in T. Ruys, N. Angelet and L. Ferro (eds.), Cambridge Handbook on Immunities and International Law (CUP 2019), 105–124
UK State Immunity Act 1978
For a commentary see A. Orakhelashvili, Chapter 8: The UK State Immunity Act 1978: History, Scope and Relation to International Law, in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2015)
1972 European Convention on State Immunity, together with Explanatory Report, its ratification status, and declarations made by States-parties
2004 UN Convention on Jurisdictional Immunities of States, and its ratification status, with declarations and reservations made by States-parties
For a commentary see A. Orakhelashvili, Chapter 9: Treaties on State Immunity: the 1972 and 2004 Conventions, in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2015)
Practice of Italian courts overviewed: Simoncioni, Decision No 238, Italian Constitutional Court 2013, Deutsche Bahn case 2019, Flatow case 2016
S.R. Subramanian, Abuse of Diplomatic Privileges and the Balance Between Immunities and the Duty to Respect the Local Laws and Regulations Under the Vienna Conventions: The Recent Indian Experience, 3 The Chinese Journal of Global Governance (2017), 182
Xinxiang Shi, Official Acts and Beyond: Towards an Accurate Interpretation of Diplomatic Immunity Ratione Materiae Under the Vienna Convention on Diplomatic Relations, Chinese Journal of International Law (2019), 669
Reyes v Al-Malki, UK Supreme Court judgment 2017
Some latest practice on State immunity
On 20 January 2021, the Supreme Court of Germany (Bundesgerichtshof) decided that no immunity is available in criminal proceedings where a State official is prosecuted abroad for the commission of one of the core international crimes, in this case torture. This decision contains a rather streamlined analysis of the law relating to the facts of the case and adds to the existing jurisprudence about the unavailability of State immunity for international crimes.
The Supreme Court held that, while immunity ratione personae is available to heads of State, heads of government, and foreign ministers in line with the ICJ’s 2002 decision on Arrest Warrant, State officials who are lower in rank than the above-named persons do not enjoy functional immunity for international crimes (para. 39).
The Supreme Court also held that the existence of some isolated voices among international law writers that State officials enjoy immunity under international law even when they are accused of core international crimes was not sufficient to let the Court alter its conclusions (para. 59). It is also important that the Court decided that it was not necessary for it to address the issue as to whether a State’s ratification of the 1984 UN Convention on Torture removes the otherwise existing immunity available to State officials, as some writers had contended the Convention does. The Court refused to enter into discussion regarding this issue because the immunity in question was not available under customary international law anyway (para. 60).
See further here (section V), for a discussion of the Torture Convention in the context of State immunity.
On a related note, the Supreme Court of Brazil issued a decision in September 2021 in which it ruled on State immunity for acts amounting to international crimes, and refused to let the ICJ’s 2012 decision on Jurisdictional Immunities (Germany v Italy) affect the outcome of the case. This continues the approach which Italian and Korean courts have adopted, in 2013 and 2021, respectively.
State immunity and territorial torts
The High Court Judgment on Al-Masarir: a comment is available here.
State immunity and Jus Cogens
ILC’s work on jus cogens: a comment is available here.
Diplomatic Immunity
In Basfar v Wong, the UK Supreme Court has held that the employment of a domestic worker does not amount to commercial activity in the sense of the 1961 Vienna Convention on Diplomatic relations. However, exploiting domestic workers in the condition of modern slavery was not the same as an ordinary employment relationship, because the voluntariness requirement characteristic to employment relations would not be met. The respondent has made commercial profit by withholding salaries from the applicant. On those facts, the respondent would not benefit from the immunity otherwise available to it under the Convention.
ILC Final Commentary on the Law of Treaties, 1966
1969 Vienna Convention on the Law of Treaties
ICJ judgment on Qatar v Bahrain, 1994, paras 21ff
This case acutely exposes the parameters of the definition of a treaty under Article 2 VCLT 1969
A Zimmerman & N Jauer, Legal shades of grey? Indirect legal effects of 'Memoranda of Understanding', 59 AVR (2021), 278
UK–France Continental Shelf Arbitral Award, 1977
Loizidou v Turkey, ECHR judgment on preliminary objections 1995
UN Human Rights General Comment No 24, 1994
The position of Chairpersons Human Rights treaties on reservations to human rights treaties
These materials acutely illustrate the regime of validity and opposability of reservations made by States to treaties.
IMCO advisory opinion, ICJ 1960
Philippines v China, arbitral award on merits, 2016
Whaling in the Antarctic (Australia v Japan), ICJ judgment 2014
These cases illustrate the challenges arising when the Vienna Convention requirements on treaty interpretation are applied to contested terms contained in a treaty.
Reyes v Al-Malki, UK Supreme Court judgment 2017
This case purports to show the limits on the evolutive interpretation of treaties.
Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
Racke v Hauptzollamt Mainz, ECJ judgment, 16 June 1998
What is the relevance of subsequent practice under international law?
ILC Articles on State responsibility with commentaries, 2001
ILC draft articles on Prevention of Transboundary Damage from Hazardous Activities
Convention on International Liability for Damage Caused by Space Objects
Corfu Channel, ICJ judgment on merits 1949
Tehran Hostages, ICJ judgment on merits 1980
Military and Paramilitary Activities in and Against Nicaragua, Merits, ICJ Reports 1986, 14, paras 92–122
Application of the Genocide Convention (Bosnia v Serbia), ICJ judgment of 26 February 2007, paras 202–230, 377–471
These cases are of key importance in assessing the extent of State responsibility in relation to acts carried out by other entities, as discussed in Chapter 13.
Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece), judgment of 5 December 2011
These cases illustrate the limited scope to which defences can be invoked in the law of State responsibility.
Assess judicial practice on reparation.
Read two arbitral awards on reparation, Duzgit Integrity and Arctic Sunrise. Are awards of reparation in those cases adequate to remedy the harm caused? Do these two awards meet the priority stated in Chorzhow by PCIJ that reparation must wipe out consequences of an internationally wrongful act?
What difference does the remedy of guarantees of non-repetition make?
Read these two decisions: 2001 LaGrand judgment on merits, paras 117ff, and 2019 Jadhav judgment on merits, paras 133ff. What is the range of remedies awarded in those cases? How do guarantees of non-repetition protect the rights of States of nationality? Do guarantees of non-repetition make more sense when they are awarded together with other remedies?
Reparation awarded in DRC v Uganda
On 9 February 2022, the International Court of Justice rendered its judgment on reparation to be awarded to the Democratic Republic of the Congo (DRC) in DRC v Uganda case, at the merits stage of which case the Court has found that Uganda has violated applicable rules of international law when undertaking military operations on the territory of DRC. The Court obliged Uganda to pay the total amount of 325 million US dollars to the DRC for the relevant violations, to be paid in five annual instalments of 65 million dollars starting on 1 September 2022. The Court has also determined that the annual post-judgment interest of 6 per cent will accrue on any overdue amount as from the day which follows the day on which the instalment was due.
The Court has rejected Uganda’s claim that it should rule that formal findings of the DRC’s international responsibility in the 2005 Judgment constitute an appropriate form of satisfaction for injuries suffered by the DRC. Reparation awarded by the Court extends to loss of life, personal injury, sexual violence, and damage to property.
1978 and 1983 Conventions on State succession
M. Craven, The Problem of State Succession and the Identity of States Under International Law, 9 EJIL (1999), 142
M. Craven, The Genocide Case, the Law of Treaties and State Succession, 68 BYIL (1998), 127
J. Chan, State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights, 45 ICLQ (1996), 928
1795 – partition of Poland between Prussia, Austria, and Russia
1918 – end of First World War and dissolution of Austrian, Ottoman, and Russian Empires
1938 – annexation of Austria by German Reich
1945 – allied occupation of Germany
1949 – creation of Western and Eastern German States
1975 – reunification of Vietnam
1990 – unification of Yemen and Germany
1991 – dissolution of USSR
1992 – dissolution of SFRY
1997 – restoration of Hong Kong to China
2005 – independence of South Sudan
Could State succession apply across the board to all cases of change of sovereignty over a territory?
Nottebohm (Second Phase), ICJ judgment 1955
2019 Jadhav judgment on merits
ILC draft articles on diplomatic protection, 2006
1997 European Convention on Nationality
Hilal Al-Jedda v Secretary of State for the Home Department, Court of Appeal (Civil Division), [2012] EWCA Civ 358
NAFTA Chapter 11
G. Fitzmaurice, The Meaning of the Term “Denial of Justice”, 13 BYIL (1932), 92
F. Francioni, Access to Justice, Denial of Justice and International Investment Law, 20 EJIL (2009), 729
C. Schreuer, Full Protection and Security, 2 JIDS (2010), 1
What happens when two States disagree as to whose national the relevant individual person is?
Read the cases and treaties referred to in Chapter 15. Is one State obliged to recognise another State’s grant of nationality to:
What sources of international law become relevant in this process?
The right of a child to acquire nationality
Article 24(3) ICCPR requires that “Every child has the right to acquire a nationality”. In DZ v Netherlands the UN Human Rights Committee has addressed the situation that the child in question was born in the Netherlands, yet the Dutch legislation prevented his access to Dutch nationality and prevented him from being recognized as stateless. The Committee saw that the Dutch Judiciary “acknowledged that the lack of a status determination procedure in the State party meant that individuals entitled to protection, including children, were falling through a gap in legislation” (para. 8.5). The State had thereby “acknowledged that the author is currently unable to effectively enjoy his right as a minor to acquire a nationality”. The violation of Article 24(3) was therefore identified.
Human rights
UN Human Rights Treaties database
Al-Skeini v UK, ECHR Grand Chamber judgment 2011
ICESCR General Comment No. 3
Report of the Special Rapporteur on extreme poverty and human rights, Philip Alston, A/HRC/29/31, 27 May 2015
Extreme Poverty and Human Rights, Report of the Special Rapporteur on extreme poverty and human rights, A/72/502, 4 October 2017
Report of the Special Rapporteur on extreme poverty and human rights on his mission to the United States of America, A/HRC/38/33/Add.1, 4 May 2018
These materials demonstrate the interdependence between political and civil and socio-economic human rights, as well as outcomes required on the ground by treaty obligations discussed in Chapter 16.
Minority and group rights
1992 European Charter for Regional or Minority Languages, and its ratification status
1992 Framework Convention for the Protection of National Minorities, and reservations and declarations to it
Self-determination
Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by General Assembly resolution 1514 (XV) of 14 December 1960
Non-Self-Governing Territories within the UN system
Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12
ICJ Advisory Opinion on Wall in Occupied Palestinian Territory, 2004
Chagos Archipelago, ICJ Advisory Opinion, 2019
ECJ Case C-104/16 P, Polisario2006
2018 Western Sahara Campaign, ECJ judgment
UN General Assembly declaration on permanent sovereignty over natural resources
R. McCorquodale, Negotiating Sovereignty: The Practice of the United Kingdom in Regard to Self-Determination, 66 BYIL (1996), 283
M. Weller, Settling Self-determination Conflicts: Recent Developments, 20 EJIL (2009), 111
1918 – dissolution of German, Austrian, Ottoman, and Russian Empires
1919 – creation of the League of Nations and its mandates system
1945 – endorsement of the right to self-determination in the UN Charter, creation of trusteeships and non-self-governing territories status
1960 – UN General Assembly proclaims that non-self-governing territories have right to self-determination
1962 – UN General Assembly proclaims the right of peoples to have permanent sovereignty over their natural resources
1966 – UN human rights covenants endorse the right of all peoples to self-determination
1995 – ICJ confirms the right to self-determination of East Timor, in a non-colonial context
2004 – ICJ confirms the right to self-determination of Palestine, in a non-colonial context
Discuss the relevance of self-determination with regard to Palestine, Kosovo, and Chagos archipelago.
Are the three cases similar? What do relevant sources of international law and relevant decisions of international courts suggest about each of those cases? Do all those cases involve a self-determination unit? Why, or why not?
What is the relationship between self-determination and territorial sovereignty?
Read relevant UN General Assembly resolutions on self-determination and court decisions referred to in Chapter 16 (also consult Chapter 5 and Chapter 8); do those materials endorse the thesis that a self-determination unit has a valid claim to all its territory? Do you agree with the outcome? What would be implications if it was otherwise?
Climate change and its impact on the right to privacy
See the entry on Chapter 17.
Self-determination and permanent sovereignty over natural resources in Polisario v Council (CJEU)
In the above judgment the Court has annulled the deals between the EU and Morocco with regard to Western Sahara (on discussion of the background on these matters see Akehurst, 9th ed., Chapters 5 and 16). Basing itself on the relevance of the principle of self-determination and the relevance of Polisario as the representative of the self-determination unit (the Sahrawi people), the Court of Justice of the European Union has specified that “the Council wrongly considered that the current situation in that territory did not make it possible to secure the consent of that people and, in particular, through the applicant” (para. 364).
The implication of the Court’s judgment is that the EU fishermen cannot lawfully operate in Western Sahara’s waters on the basis of Morocco’s permits. For a similar approach with regard to trade relations, see another of the Court’s judgments.
Self-determination and the independence referendum in Scotland
The recent case decided by the Supreme Court saw the UK Government’s acknowledgment that “the United Kingdom recognises and respects the right of self-determination in international law”; yet the Government did not agree that “the right to self-determination in international law obliges the United Kingdom to make provision, either through the terms of the Scotland Act or otherwise, for a further advisory referendum on Scottish independence in the terms of the proposed Bill” (para. 88). The Court has rejected the thesis that self-determination requirements apply to Scotland (para. 90). That is a correct conclusion. At the same time, the logic in the Government’s (above) and the Court’s assessment of this issue is somewhat confusing. The Court states with regard to the Scotland Act on devolution that “Nothing in the allocation of powers, however widely or narrowly interpreted, infringes any principle of self-determination”. For if, as is the case, Scotland is not a self-determination unit, the analysis of Scotland-related UK legislation in terms of the latter’s compatibility with the principle of self-determination as part of international law is moot.
1972 Stockholm Declaration (p.8)
1992 Rio Declaration
Convention on the Climate Change, Kyoto Protocol, and 2015 Paris Agreement
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, ITLOS Advisory Opinion of 1 February 2011
Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
ICJ judgment on Pulp Mills (Argentina v Uruguay), 2010
Whaling in the Antarctic (Australia v Japan), ICJ judgment 2014
ICJ judgment on Costa Rica v Nicaragua, 2015
US-Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998
GATT Panel Report, Tuna-Dolphin II, DS29/R(1994)
Is there one single duty to prevent environmental harm applicable to all situations where such harm is likely to occur?
Climate change and its impact on the right to privacy
In its report in the case of Daniel Billy v Australia, the UN Human Rights Committee has concluded that Australia’s failure to adequately protect indigenous people against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home. The Committee has pointed out that the relevant people “depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing” (para. 8.10). When addressing the scope of Article 17 ICCPR (privacy), the Committee held that it “should not be understood as being limited to the act of refraining from arbitrary interference, but rather also obligates States parties to adopt positive measures that are needed to ensure the effective exercise of the rights under article 17 in the presence of interference by the State authorities and physical or legal persons”. The respondent State had undertaken a number of relevant steps but “the State party has not explained the delay in seawall construction with respect to the islands where the authors live. It has not contested the factual allegations set forth by the authors concerning the concrete climate change impacts on their home, private life and family. The Committee notes that the State party has not provided alternative explanations concerning the reduction of marine resources used for food, and the loss of crops and fruit trees on the land on which the authors live and grow crops, elements that constitute components of the authors’ private life, family and home. The Committee notes the authors’ specific descriptions of the ways in which their lives have been adversely affected by flooding and inundation of their villages and ancestral burial lands; destruction or withering of their traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species and associated coral bleaching and ocean acidification. The Committee also notes the authors’ allegations that they experience anxiety and distress owing to erosion that is approaching some homes in their communities, and that the upkeep and visiting of ancestral graveyards relates to the heart of their culture, which requires feeling communion with deceased relatives. The Committee further notes the authors’ statement that their most important cultural ceremonies are only meaningful if performed on native community lands” (para 8.12). On this basis, the Committee has concluded that the respondent State has violated Article 17 ICCPR.
Oscar Chinn, PCIJ series A/B, no. 63 (1934), 81
Nicaragua, ICJ judgment on merits 1986
Oil Platforms, ICJ judgment on preliminary objections 1996
These cases demonstrate how general international law regulates rights and obligations of States with regard to trade.
General Agreement on Tariffs and Trade
C. Brown (ed.), The Law, Economics and Politics of Retaliation in WTO Dispute Settlement (CUP 2010)
IMF Articles of Agreement
Article IV of the Fund’s Articles of Agreement: An Overview of the Legal Framework, prepared by the Legal Department, in consultation with the Policy Development and Review Department, approved by Sean Hagan, 28 June 2006
Review of the 1977 Decision on Surveillance over Exchange Rate Policies Preliminary Considerations,Background Information, and Summing Up of the Board Meeting, 19 July 2006
Bilateral Surveillance over Members’ Policies Executive Board Decision, 15 June 2007
Report of the Special Rapporteur on extreme poverty and human rights, A/HRC/38/33, 8 May 2018
These materials demonstrate the challenges arising with the IMF’s interpretation of its own competence in dealing with the compliance by member States with the IMF Articles of Agreement, as discussed in Chapter 18.
Article XXI GATT and “emergency in international relations”
In its recent panel report, the WTO Panel has rejected the argument that US–China relations around Hong Kong amounted to an emergency in international relations that could justify a US resort to Article XXI measures under GATT (see Akehurst, 9th ed., Chapter 18). As “a total collapse of [parties’] relations, including economic relations” was identified in other cases, the Panel in the case at hand is of the view that “the events in Hong Kong, China condemned by the United States and other Members have not had an equivalent effect on the relations between the United States and other Members, on the one hand, and China and Hong Kong, China, on the other hand” (para. 7.357).
Nuremberg Tribunal Judgment
Tokyo Tribunal Judgment
US war crimes trials
ICTY Statute, ICTR Statute, ICC Statute
ICC Office of Public Prosecutor, Policy Paper on the Interests of Justice, September 2007
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993)
Security Council Resolution 827 (1993)
Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915
N. Boister and R. Cryer, The Tokyo International Military Tribunal (OUP 2007)
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar
ICC-01/19-27, 14 November 2019 | Pre-Trial Chamber III | Decision
ICC Decision on opening investigation on Afghanistan, 5 March 2020
Situation in Palestine, ICC-01/18, 5 February 2021, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143
Qaddafi pre-trial decision 2019
Prosecutor v Qaddafi, ICC Appeal Chamber No. ICC-01/11-01/11, 9 March 2020
What does the principle of complementarity require under the ICC Statute?
Could prosecutorial discretion be used for extra-legal reasons?
What provisions in ICC Statute deal with prosecutorial discretion? How are those provisions different from Statute provisions on jurisdiction or admissibility? What are criteria arising under prosecutorial discretion? Who has standing to make determinations on whether a case must be pursued? Could a decision made by a prosecutor be contrary to ICC Statute? If yes, on what ground, and what could be done about it?
What do “interests of justice” include under Article 15 ICC Statute? What would be the implications if “interests of justice” were broad enough to include political considerations involved in conflicts and crises as part of which crimes under ICC’s jurisdiction are committed?
Nicaragua v US, ICJ judgment on merits 1986
Oil Platforms (Iran v US), ICJ judgment on merits 2003
Armed Activities (Congo v Uganda), ICJ judgment on merits 2005
UN Secretary-General’s High-Level Panel Report
O. Schachter, The Right of States to Use Armed Force, 82 Michigan LR (1984), 1620
A. Hamid Ghafur, The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Reappraisal, Vol. 54, No. 3, Netherlands International Law Review (2007), 441–490
D.W. Bowett, Reprisals Involving Recourse to Armed Force, 66 AJIL (1972), 1
T.M. Franck, Who Killed Article 2(4)? Or: The Changing Norms Governing Use of Force by States, 64 AJIL (1970), 809
L. Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL (1971), 544
T. Franck, Terrorism and the Right to Self-defence, 95 AJIL (2001), 839
M. Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EJIL (2003), 227
A. Orakhelashvili, Collective Security (OUP 2011), Chapter 6
J. Quigley, The Afghanistan War and Self-Defence, 37 Valparaiso University Law Review (2002–2003), 541
J. Rehman and S. Ghosh, International Law, US Foreign Policy and Post-9/11 Islamic Fundamentalism: The Legal Status of the “War on Terror”, 77 Nordic JIL (2008), 87
E. Myjer and N. White, The Twin Tower Attack: An Unlimited Right to Self-Defence? 7 JCSL (2002), 5
C. O’Meara, Should International Law Recognize a Right of Humanitarian Intervention? 66 ICLQ (2017), 441
J. Brunee and . Toope, Are Powerful States Willing but Unable to Change International Law? 67 ICLQ (2018), 263
A. Orakhelashvili, Legal Stability and Claims of Change: The International Court’s Treatment of Jus ad Bellum and Jus in Bello, 75 Nordic Journal of International Law (2006), 371
A. Orakhelashvili, Changing Jus Cogens Through State Practice? – the Case of the Prohibition of the Use of Force and Its Exceptions, in M. Weller (ed.), Oxford Handbook on the Use of Force (OUP 2015), 157
A. Orakhelashvili, Threat, Emergency and Survival: The Legality of Emergency Action in International Law, 9 Chinese JIL (2010), 345 at 355–357, 360–371
British forces air strikes in Iraq and Syria
NATO’s invocation of Article 5 1949 North Atlantic Treaty, 12 September 2001
Communication by the Government of Germany to the UN, 10 December 2015, S/2015/948
Communication by the Government of Norway to the UN, 3 June 2016, S/2016/513
Communication by the Government of Belgium to the UN, 9 June 2016, S/2016/523
Armed Activities on the Territory of Congo (DRC v Uganda), paras 92–105
Communication of the Iraqi Government to the UN, 25 June 2014, UN Doc. S/2014/440
Communication of the Iraqi Government to the UN, 22 September 2014, UN Doc. S/2014/691
L. Doswald-Beck, The Legality of the United States Intervention in Grenada, 31 NILR (1984), 355
R.J. Beck, The Grenada Invasion, International Law and the Scoon Invitation: A 30-Year Retrospective, 102 The Commonwealth Journal of International Affairs (2013), 281
C. Henderson, UK Government’s Legal Opinion on Forcible Measures in Response to the Use of Chemical Weapons by the Syrian Government, 64 ICLQ (2014), 179
C. O’Meara, Should International Law Recognise a Right to Humanitarian Intervention? 66 ICLQ (2017), 441
NATO statement on the use of force against FRY, 23 April 1999
Non-Aligned Movement, 2006 statement on humanitarian intervention (para. 249)
Arria Formula discussions on Article 51 UNC, written statements by States, and comment by Adil Haque
What would happen if self-defence were to be available with regard to attacks carried out by non-State actors?
Consider the following factors:
1949 Geneva Conventions
1977 Additional Protocols
1939 Trading with the Enemy Act
General Comment No. 35, UN Human Rights Committee, paras 64–67
R. Baxter, So-Called “Unprivileged Belligerents”: Spies, Guerrillas and Saboteurs, 28, BYIL (1951), 323
R. Baxter, The Duty of the Obedience to Belligerent Occupant, 27 BYIL (1950), 235
I.P. Trainin, Questions of Guerrilla Warfare in the Law of War, 40 AJIL (1946), 534
G.I.A.D. Draper, Humanitarian Law and Internal Armed Conflicts, 13 GaJIL (1983), 254
G.I.A.D. Draper, Status of Combatants and the Question of Guerrilla Warfare, 45 BYIL (1971), 173
K. Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants”, 85 IRRC (2003), 45
A. Orakhelashvili, Overlap and Convergence: The Relationship Between Jus Ad Bellum and Jus in Bello, 12 JCSL (2007), 157
Permanent sovereignty over national resources in the occupied Palestinian and other Arab territories, UN General Assembly Resolution 37/135, 17 December 1982
P. Jessup, A Belligerent Occupant’s Power over Property, 38 AJIL (1944), 457
Kuprsekic, IT-95-16-T, Judgment of 14 January 2000, paras 511–517
Martic, IT-95-11-T, 12 June 2007, paras 464–468
These cases expose the scope of the law of reprisals as discussed in Chapter 21.
What is the relationship between international human rights law and international humanitarian law:
Consider the following issues: What are initial conditions of applicability of both bodies of law? Do any intervening factors modify those initial conditions? Consequently, how do the two bodies of law apply to:
Does IHL regulate the use of natural resources in the occupied territory?
Consider the following factors:
Charter of the UN 1945
Yalta voting formula, 1945
Certain Expenses Advisory Opinion, 1962
Namibia Advisory Opinion, 1971
Tadic, ICTY Appeal Chamber interlocutory appeal decision, 1995
Al-Jedda v UK, ECHR Grand Chamber judgment 2011
These cases demonstrate the conditions of the use of delegated powers by principal organs of the UN in the area of peace and security.
Security Council Resolutions 678(1990), 687(1991), 688(1991), 1441(2002) on Iraq
Security Council Resolutions 731(1992) and 748(1992) on Lockerbie bombing/Libya
Security Council Resolution 1973(2011) on Libya
A. Orakhelashvili, Collective Security (OUP 2011), Chapters 2 and 6
1907 Hague Convention on Settlement of International Disputes
Statute of the International Court of Justice
Rules of the International Court of Justice
PCA arbitration and mediation rules
WTO, Dispute Settlement Understanding
T. Franck, Fairness in International Law and Institutions (1995), Chapter 6
B. Ramcharan, Preventive Diplomacy at the UN (2008)
Optional Clause Declarations accepting the International Court’s jurisdiction
ICJ Jurisdiction Handbook, 19 August 2014, A/68/963
Nicaragua v US, ICJ judgment on jurisdiction 1984
Lockerbie, ICJ judgment on preliminary objections 1998
CERD (Georgia v Russia), ICJ judgment 2011
Oil Platforms (Iran v US), ICJ judgment on merits 2003
CERD (Ukraine v Russia), ICJ judgment on jurisdiction 2019
These cases illustrate the matters arising with the International Court’s exercise of its jurisdiction under compromissory clauses under Article 36(1) of its statute.
Interhandel (Switzerland v US), ICJ judgment 1959
Cameroon v Nigeria, judgment on preliminary objections 1998
Fisheries Jurisdiction (Spain v Canada), ICJ judgment on jurisdiction 1998; and separate opinion of President Schwebel
These cases illustrate the matters arising with the International Court’s exercise of its jurisdiction under Optional Clause declarations pursuant to Article 36(2) of its statute.
Nottebohm (Second Phase), ICJ judgment 1955
Barcelona Traction, ICJ judgment 1970
Diallo, ICJ judgment on preliminary objections 2007
Loewen v US, ICSID arbitral award 2003
These cases illustrate the dynamics of the nationality of claims rule in international dispute settlement.
Ukraine v Russia, ICJ provisional measures order 2017
Jadhav, ICJ provisional measures orders 2017-2018
CERD (Qatar v UAE), ICJ provisional measures order 2018
These cases demonstrate the more balanced approach to the criteria for indication of provisional measures in the light of problems attendant to the ICJ’s earlier handling of this matter as discussed in Chapter 23.
Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12
ICJ Advisory Opinion on Wall in Occupied Palestinian Territory, 2004
These cases demonstrate the scope of the ICJ’s power to issue advisory opinions requested by principal organs of the UN.
H. Lauterpacht, The Doctrine of Non-Justiciable Disputes in International Law, 24 Economica (1928), 277
S.A. Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, 1995
A. Orakhelashvili, The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: From Monetary Gold to East Timor and Beyond, 2 JIDS (2011), 373
W. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA, 23 Hastings ICLR (1999–2000), 357
J. Coe, Taking Stock of NAFTA Chapter Eleven in Its Tenth Year – An Interim Sketch of Selected Themes, Issues, and Methods, 36 Vanderbilt JTL (2003), 1
A. Orakhelashvili, Substantive Applicable Law, Consensual Judicial Jurisdiction, and Public Interest in International Litigation, 55 Japanese YBIL (2011)
J. Gao, The Exhaustion of Local Remedies Rule in the Settlement of Maritime Disputes, 19 Chinese JIL (2020), 425
A. Orakhelashvili, Adjudicating Racial Discrimination Claims: Issues of Jurisdiction and Admissibility in Ukraine v Russia, Moscow Journal of International Law (2021/01), 57
What is the current value of the Monetary Gold principle?
What if international courts were to relax the rules determining the extent to which States can exercise diplomatic protection on behalf of their nationals:
Consult Barcelona Traction, Diallo, Nottebohm, Loewen, and figure out the following:
Where does exhaustion of local remedies stand now? Is the rule swallowed by exceptions?
Consider the following elements:
Advisory opinions
The International Court of Justice has examined a number of preliminary objections against delivering the advisory opinion in the Chagos case. One objection meriting particular attention is the objection that the principle of res judicata would be contravened by delivering the opinion because the Arbitration Tribunal had examined some aspects of the Chagos situation in the 2015 Award on the Chagos Marine Protected Area. The Court was told that Advisory Opinion by the Court would reopen the findings of that Arbitral Tribunal, and the opposite argument was that res judicata would not apply because the matters dealt with in the Award and in the Opinion were not the same.
Paragraph 81 of the Opinion contains the Court’s own position on this matter:
“The Court recalls that its opinion “is given not to States, but to the organ which is entitled to request it” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, p. 71). The Court observes that the principle of res judicata does not preclude it from rendering an advisory opinion. When answering a question submitted for an opinion, the Court will consider any relevant judicial or arbitral decision. In any event, the Court further notes that the issues that were determined by the Arbitral Tribunal in the Arbitration regarding the Chagos Marine Protected Area . . . are not the same as those that are before the Court in these proceedings.”
The Court clearly emphasises the subject-matter difference between the 2015 Award and its own Advisory Opinion. But its approach to res judicata seems to be broader than that. By placing emphasis on the Opinion being requested by UN organs not by States, the Court could be seen to suggest that the res judicata principle only prevents States parties to a previous litigation to reopen its outcome, among others because they are bound by that previous decision, and not UN organs which were not parties to it. Thus, the Court’s principal point seems to be that res judicata is a priori inapplicable to its advisory proceedings, which could thus, in some cases, assume a form of non-binding appeal. The fact that the opinion deals with matters different from those dealt with in the 2015 Award could at most be a coincidental circumstance.
The ICJ’s judgment on preliminary objections in Gambia v Myanmar
In the case of Gambia v Myanmar regarding the claims of violations of the 1948 Genocide Convention, Myanmar raised four preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Most relevantly, Myanmar argued that The Gambia lacked standing to bring this case (para. 32). The Court began addressing this issue by reiterating that the nature of treaty obligations under the Genocide Convention is specific, namely these obligations are objective and not reciprocal (para. 106). (On objective treaty obligations see Akehurst, 9th ed., Chapter 3, as well as here and here .) The Court emphasised that “All the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide”; obligations under the Convention “are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case”.
There has long been a body of doctrinal opinion that refused to endorse the position that when erga omnes obligations are at stake in the sense of Barcelona Traction, the standing of all States arises to bring judicial proceedings against the State that violates one of such obligations (see here for discussion of the flaws in that doctrinal opinion). The Court already at the interim proceedings stage has distanced itself from such preconception, and reiterated the same attitude in the judgment at hand. In the key paragraph 108, the Court states the following:
“The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Responsibility for an alleged breach of obligations erga omnes partes under the Genocide Convention may be invoked through the institution of proceedings before the Court, regardless of whether a special interest can be demonstrated. If a special interest were required for that purpose, in many situations no State would be in a position to make a claim. For these reasons, Myanmar’s purported distinction between the entitlement to invoke responsibility under the Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis in law.”
One discrepancy still arises in the Court’s reasoning. The Court’s suggestion that obligations under the Genocide Convention are obligations erga omnes partes is baffling. The Court does cite the 1951 Reservations Advisory Opinion in its judgment (para. 106), but fails to follow that Opinion’s logic rationale that the objective nature of the Genocide Convention obligation was owed to the fact that those obligations bind States independently of their treaty-derived status. In reality, therefore, these are obligations erga omnes, not erga omnes partes (see also here). However this imprecision does not affect the correctness of the Court’s decision that Gambia does have standing it this case.
Comments & Updates
Peremptory Norms (jus cogens)
ILC’s work on jus cogens: a comment is available here.