Chapter resources

Chapter 2

Materials

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
CH 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

1648 Treaty of Westphalia

1815 Final Act of the Vienna Congress

1856 Treaty of Paris

1878 Berlin Conference

The Covenant of the League of Nations

Charter of the United Nations

Panch Shila Principles, 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

Discussion questions

1. Where do the roots of international law lie?
2. What were the reasons for which the proponents of European international law developed their Euro-centrist theory?
3. How accurately has the European international law approach reflected the facts and reality on the ground?
4. What were the lessons from the failure of the League of Nations and how were they reflected in the constitution of the UN?
5. What is the influence of the Third World on the formation of basic principles of international law?
6. What challenges do unilateralism and unipolar hegemony aspirations pose to the international legal system?

Updates and comments

Please check back to view updates and other useful information.

Chapter 3

Materials

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 affected by the relevant rule.

North Sea Continental Shelf, ICJ judgment 1969
Nicaragua, ICJ judgment on merits 1986
Delalic, Judgment of 16 November 1998, case no. IT-96-2-T
Furundzija, Judgment of 10 December 1998, case no. IT-95-17/I-T
Kunarac, Judgment of 22 February 2001, case no. IT-96-23-T
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, CJ 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
R Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BYIL (1965–1966), 271
K Heller, Specially Affected States and the Formation of Custom, 112 AJIL (2018), 192
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, 159–166

A Orakhelashvili, Audience and Authority: The Merit of the Doctrine of Jus Cogens, Netherlands YIL (2015), 115

Discussion questions

1. What forms does State practice take in the process of custom-formation?
2. What is the relevance of multilateral fora and contexts in formation of customary international law?
3. Is the process of custom-formation in the area of human rights and humanitarian law special?
4. What is the relevance of specially affected States doctrine with regard to custom-formation? What are preconditions for it to rationalise the existence of a customary norm? Can it be relevant with regard to all customary norms?
5. What makes a State “specially affected” in the process of custom-formation: substance of the putative norm, or involvement in the practice that potentially leads to the crystallisation of that norm?
6. Does a State bear a burden to prove it is specially affected?
7. Does the “specially affected States” doctrine allow dispensing with the requirement of State consent in the process of custom-formation?
8. How does the International Court of Justice treat the relationship between treaty norms and customary norms?
9. Do the ILC’s draft conclusions on the identification of customary law accurately reflect the requirements of custom-formation in international law?
10. Does the Court Appeal judgment in Freedom and Justice Party (2018) correctly apply the requirements of custom-formation?
11. What is normative status of equity under international law?
12. Do equity and “general principles of law” overlap in scope?
13. What is the rationale of the hierarchy of norms arrangement in international law?
14. What is the relationship between jus cogensand State practice?
15. What is the range of effects that jus cogens produces across various areas of international law?

Updates and comments

International Law Commission’s approach to customary law

International Law Commission’s (ILC)  draft conclusions on the identification of customary international law contain a number of provisions drawing on core elements of customary law.

Draft conclusion 6(2) suggests that

“Forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct ‘on the ground’; legislative and administrative acts; and decisions of national courts.”

A reference to “conduct in connection with treaties” is problematic, because compliance with a treaty, which is a separate source of law hardly counts as State practice discretely consolidating customary rules, while that contradicting treaty obligations is simply illegal State practice, which cannot contribute to the consolidation of customary rules either.

Draft conclusion 7(2) suggests that “Where the practice of a particular State varies, the weight to be given to that practice may, depending on the circumstances, be reduced.” Then, in paragraph 5 of the commentary, Anglo-Norwegian Fisheries is cited, even though that case suggests the outcome is opposite to the one stated in conclusion 7(2). The relevance of Norwegian practice was not reduced in that case, instead minor inconsistencies were disregarded, and the remaining practice was taken on its face value and given effect. At page 138 the Court has specified that

“too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice. They may be easily understood in the light of the variety of the facts and conditions prevailing in the long period which has elapsed since 1812, and are not such as to modify the conclusions reached by the Court. In the light of these considerations, and in the absence of convincing evidence to the contrary, the Court is bound to hold that the Norwegian authorities applied their system of delimitation consistently and uninterruptedly from 1869 until the time when the dispute arose.”

Thus, it could be said that, on the outcome, the Norwegian practice did not vary. But most importantly, the Fisheries case does not provide any particular threshold to see whether, and how, a State’s practice could be classed as varying, and thus does not provide evidence to sustain the rule that the ILC’s draft conclusion 7(2) has proposed.

Draft conclusion 12(3) suggests that

“A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).”

Paragraph 8 of the commentary to that draft conclusion suggests that

“Paragraph 3 makes it clear that provisions of resolutions adopted by an international organization or at an intergovernmental conference cannot in and of themselves serve as conclusive evidence of the existence and content of rules of customary international law. This follows from the indication that, for the existence of a rule to be demonstrated, the opinio juris of States, as may be evidenced by a resolution, must be borne out by practice; other evidence is thus required, in particular to show whether the alleged rule is in fact observed in the practice of States. A provision of a resolution cannot be evidence of a rule of customary international law if practice is absent, different or inconsistent.” (emphasis added)

Paragraph 9 of the commentary goes on to suggest that “the identification of a rule of customary international law may also begin with appraising a written text allegedly expressing a widespread legal conviction and then seeking to verify whether there is a general practice corresponding to it.”

However what States do within the framework of international conferences and organisations can also be State practice that leads to the emergence of customary law rules. The ILC’s conclusion above fails to reflect this position (one that was corroborated in the Chagos Advisory Opinion).

Paragraph 3 of the ILC commentary to draft conclusion 3 refers to Jurisdictional Immunities (Germany v. Italy):

“Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over foreign States.”

ICJ’s approach in that case has been flawed (see Akehurst, Ch. 3). For, the assertion of immunity could as well happen on the basis of the territorial State’s domestic law and grant of immunity to the foreign State could also take place on the basis of comity, or the territorial State’s domestic law. Neither assertion nor grant of immunity could inherently amount to manifestation of opinio juris.

Custom-formation

The Chagos Advisory Opinion, delivered by the International Court on 25 February 2019, includes some important observations regarding the formation of customary international law, notably in a multilateral context (for background see Akehurst, pp. 42–45). The Court was facing claims that the General Assembly (GA) resolution 1514 did not create customary law applicable to the situation of Chagos in the 1960s. The US Submission was that, “Decolonization was a complicated political process that was implemented in a wide variety of ways”; and that “To demonstrate State practice supporting the proposition that a particular interpretation of Resolution 1514 reflected international law, it would need to be shown that States were acting virtually uniformly in conformity with that principle at the relevant time” (US Submission, paras 4.66, 4.72; see also UK Submission, para. 8.56).

This has been an approach substantially misconceiving the way State practice acquires relevance in the process of custom-generation. As an initial point, the Court states that “the adoption of resolution 1514 (XV) of 14 December 1960 represents a defining moment in the consolidation of State practice on decolonization” (para. 150 of the Opinion).

This is a direct statement regarding the custom-generating capacity of GA resolutions, treating resolutions themselves and the process of their adoption as State practice. The Court’s approach is opposed to the rather deep-seated preconception that State practice is exclusively limited to individual national government statements or to government-to-government communication. In other words, normative quality of GA resolutions is not only about existing approving or motivating trends of State conduct and practice but also about directly representing State practice. This may appear as non-orthodox to some tastes, but this is how international tribunals have used GA resolutions for decades.

On terms directly opposed to the above US submissions, the Court stated that:

“The wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination’. Its preamble proclaims ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’ and its first paragraph states that ‘[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights [and] is contrary to the Charter of the United Nations’.”

Getting into the detail of State practice involved,

“The Court consider[ed] that, although resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption. The resolution was adopted by 89 votes with 9 abstentions. None of the States participating in the vote contested the existence of the right of peoples to self-determination. Certain States justified their abstention on the basis of the time required for the implementation of such a right.” (Chagos Advisory Opinion, para. 152)

The conclusion follows that,

“Both State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (Chagos Advisory Opinion, para. 160)

There was, thus, no need to place decisive reliance on individual States’ positions. The range of individual States’ positions, and their divergence from the one endorsed in the collectively established customary norm, could then be a possible factor by reference to which the collectively established customary norm could be questioned. The Court’s Opinion is rather clear that such contrary practice has not been identified, not to the required extent anyway, as the cases referred to by States participating in the proceedings that led to the Advisory Opinion had relied mostly on the practice of colonial powers themselves. At a more fundamental level, if custom created through GA resolutions cannot operate unless confirmed in its validity and content through State practice with regard to individual instances to which that general custom ought to apply and regulate, then GA resolutions can never feasibly create custom. In fact the opposite proposition would be absurd, because every customary norm has to be created only once, and here it was created through a GA resolution.

The UK Submission (para. 8.31) suggested to the Court that even if “The so-called right to territorial integrity for non-self-governing territories in the period leading up to independence … had been a customary rule, the United Kingdom would have been a persistent objector to any such rule”. Paragraph 8.61 of the UK Submission went on to explain that

“The United Kingdom has consistently voted against or abstained on the General Assembly’s annual resolution on the implementation of resolution 1514 (XV). It has never voted in favour. It has given a standard explanation of its vote in the Fourth Committee that it found some elements of the draft unacceptable (including the language of paragraph 6 of resolution 1514 (XV)) and remains committed to modernising its relationship with its remaining Overseas Territories, taking fully into account the view of the people of those Territories.”

However, the doctrine of persistent objection is not workable against a norm of jus cogens (see, for instance, J Green, The Persistent Objector Rule in International Law, OUP 2016, 206–207), which the principle of self-determination undoubtedly is.

Chapter 4

Materials

UK Constitutional Governance and Reform Act 2010

Mann, FA, 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

Discussion questions

1. What is the discrete relevance of dualist and monist theories? How far do they rationalise the actual status of international law in domestic law?
2. What is the status of national law on international plane?
3. Across various national legal systems, how is the effect of international law regulated on national plane?
4. What judicial obstacles have been put up to the direct effect of international law in English law?
5. To what extent do treaties apply directly in English law?
6. What is the current validity and relevance of the doctrine of self-executing treaties (a) in US law; (b) in English law?
7. What is the substantive and normative difference between the British Act of State and the Foreign Act of State in English law?
8. Is Crown act of State a coherent concept, and does it have the same underlying rationale as British act of State and foreign act of State?
9. Is the approach taken by English courts in Jones and Al-Rabbat consistent with the doctrine of criminalisation under English law?
10. What relevance ought to be accorded to the Executive certificate in English courts?
11. To what extent are English courts justified in following the Executive’s position in litigation involving the matters of international law?

Updates and comments

Ukraine and The Law Debenture Trust Corporation PLC, High Court Judgment of 14 September 2019, para. 180, contains observations pertinent to the domestic applicability of general international law, especially jus cogens:

“In our judgment, there is an especially strong public policy in this country that no country should be able to take advantage of its own violation of norms of ius cogens. This was adverted to by Lord Neuberger in Belhaj at [168], set out above, albeit in the context of the particular claims in issue in that case. However, it is significant that Lord Neuberger did not confine his reasoning to the particular norms relevant in that case, but stated the position more widely by reference to the category of ius cogens itself. In our view, this is because domestic public policy here is informed by public policy inherent in international law when it identifies norms as peremptory norms with the character of ius cogens. Identification of norms as having that character indicates the strong international public policy which exists to ensure that they are respected and given effect. Domestic public policy recognises and gives similar effect to that strong public policy. There is no norm more fundamental to the system of international law and the principle of the rule of law than that set out in Article 2(4) of the UN Charter.”

Chapter 5

Materials

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
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
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, as discussed in Chapter 5.

J Crawford, Creation of States in International Law, OUP 2006, Chapters 2–5
G Fitzmaurice, The Law and Procedure of the International Court of Justice, 30 BYIL (1953), 2–5

H Albaharna, The Legal Status of Arabian Gulf States, Manchester University Press 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

CG 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, 53 Yale Law Journal (1943–1944), 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, 43(4) American Journal of International Law (1949), 679–704
Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48(3) International and Comparative Law Quarterly (1999), 545–581
Z Nedjati, Acts of Unrecognised Governments, 30(2) International and Comparative Law Quarterly (1981), 388–415

Discussion questions

 

1. What is the relevance of factual and legal criteria of State-creation?
2. What is the relevance of the doctrine of effectiveness for State-creation?
3. Does international law regulate secession?
4. What is the relevance of recognition for State creation and State identity?
5. What is the current relevance of the approach taken in Tinoco?
6. Does the principle of effectiveness overtake the requirement as to a government’s constitutional legitimacy?
7. What is China’s attitude towards Taiwan’s foreign relations?
8. When is recognition illegal?
9. What is the relationship between the doctrine of recognition and the non-intervention principle?
10. Could there be such thing as conditional recognition?
11. How has the doctrine of recognition of governments evolved in the UK?
12. Is the use of “one voice” approach by English courts justified when dealing with matters of recognition of foreign States or governments?
13. Where does the proper boundary between de jure and de facto recognition lie?
14. What are the consequential implications of the duty not to recognise illegal territorial changes?
15. What is the proper scope of the Namibia exception?

Updates and comments

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 Guaido, 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 stated that “the United Kingdom believes Juan Guaido is the right person to take Venezuela forward.”

The statement issued on 29 January 2019 said,

“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 the 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. 106 for background). However that requires identifying the basis validating this policy in the Venezuelan Constitution. Moreover, the Joint Declaration of the UK and European Countries of 4 February 2019 expressly relies on Article 233 of the Venezuelan Constitution as the 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 Guaido 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 Guaido’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 the regime change were to be externally engineered or assisted.

Recognitions of Juan Guaido as Venezuela’s interim leader are therefore unlawful and premature. The US “call on other governments to recognize interim President Juan Guaido 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 Guaido 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 Guaido’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 Guaido.”

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 took the following action:

“Secretary of State Michael R. Pompeo certified the authority of Venezuela’s interim President Juan Guaido 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.

Chapter 6

Materials

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, 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.

AD McNair, The Law Relating to the Civil War in Spain, Law Quarterly Review (1937),471
H Lauterpacht, Recognition in International Law, Cambridge University Press 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

Discussion questions

1. What is the relevance of the doctrine of delegation for the legal personality and powers of international organisations?
2. Does the practice of international organisations always comply with restrictions that the scope of their authority and functions or the range of their membership imposes on them?
3. Is “supranationality” a coherent and viable notion?
4. What is the distinct utility of the recognition of belligerency?
5. Does the claim of legal personality of individuals serve any meaningful purpose?

Updates and comments

Please check back to view updates and other useful information.

Chapter 7

Materials

Minquiers and Ecrehos, ICJ judgment 1954
Qatar v Bahrain, ICJ judgment on merits 2001
Cameroon v Nigeria, ICJ judgment on merits 2002
Indonesia v Malaysia, ICJ judgment 2002

H Waldock, Disputed Sovereignty in the Falklands Islands, 25 BYIL (1948), 311
N Schrijver & V Prislan, Cases Concerning Sovereignty over Islands before the International Court of Justice and the Dokdo/Takeshima Issue, 46 ODIL (2015), 281

The Helsinki Rules on the use of international rivers and waterways

Discussion questions

1. How do we distinguish arrangements that alter territorial title from those that do not alter it?
2. How do regulatory principles determining the ownership of territory differ from the modes of acquisition of territory?
3. What is the relevance of inchoate titles?
4. What weight is accorded to effectivités in determining territorial title?
5. What is the relationship between treaty titles and effective exercise of State authority?
6. What is the relevance of critical date?
7. Are the Helsinki Rules apt to regulate the disputes between boundary States as to sovereignty over boundary rivers, lakes and other related waterways?

Updates and comments

Please check back to view updates and other useful information.

Chapter 8

Materials

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

ICJ Judgment on Qatar v Bahrain, 2001
Philippines v China arbitral award on merits, 2016
Indonesia v Malaysia, ICJ judgment 2002
Nicaragua v Colombia, ICJ judgment, 2012

VD Degan, Internal Waters, Netherlands YIL (1986), 3
AN 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

UK maritime limits

ECJ judgment Commission v UK 1991

WL 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 September 23, 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.

Ki Beom Lee, The Korea Coast Guard's Use of Force Against Chinese Fishing Vessels: A Note, 49 ODIL (2018), 226

IMO Guidance for Ships Transiting Archipelagic Waters, 8 January 1999
K Baumbert & 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 1984
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, as 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

SP 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

Discussion questions

1. Does UNCLOS govern the totality of inter-State legal relations related to maritime spaces?
2. What is the legal nature of historic rights in the law of the sea?
3. Who are “coastal States”?
4. What are the meaning and implications of the principle “land dominates the sea”?
5. Is the distinction between islands and other land formations coherent across the jurisprudence of international tribunals? How does the law require this distinction to be drawn?
6. How does the jurisdiction of coastal and flag States in internal waters differ from their jurisdiction in other maritime areas?
7. Is the use of force in territorial waters against foreign ship governed by the same principles as use of force in general?
8. Does the US-USSR Understanding of 1989 modify the ordinarily applicable regime of innocent passage?
9. To what extent does the EU membership limit the State’s right to determine where its straight baselines lie?
10. Could straight baselines be abused? Do the relevant UNCLOS provisions provide effective safeguards against such abuse?
11. What is the difference between the initial State entitlement to the relevant maritime area and the determination of boundary between coastal States in the same maritime area?
12. How different are transboundary lakes from other maritime areas for the purposes of determining maritime boundaries between coastal States?
13. Is the current approach to the nationality of vessels on high seas satisfactory?
14. What is the practical utility of the concept of enclosed or semi-enclosed seas?

Updates and comments

Territorial sea limit

By The Territorial Sea Act 1987 (Guernsey) Order 2019, the UK has extended the territorial sea around the Bailiwick of Guernsey to 12 nautical miles.

Freedom of navigation

In the Norstar case (merits) decided on 10 April 2019, the International Tribunal of the Law of the Sea has concluded that “bunkering on the high seas is part of the freedom of navigation to be exercised under the conditions laid down by the Convention and other rules of international law” (paragraph 219).
The Tribunal subscribed to effective interpretation of Article 87 of The United Nations Convention on the Law of the Sea (UNCLOS), suggesting that

“even acts which do not involve physical interference or enforcement on the high seas may constitute a breach of the freedom of navigation. In this regard, the Tribunal notes that Italy recognizes the possibility that acts falling short of enforcement action on the high seas could be relevant in terms of a breach of article 87 of the Convention, if such acts produce some ‘chilling effect’. … Regardless of such [chilling] effect, any act which subjects activities of a foreign ship on the high seas to the jurisdiction of States other than the flag State constitutes a breach of the freedom of navigation, save in exceptional cases expressly provided for in the Convention or in other international treaties.” (paragraphs 223–224)

Chapter 9

Materials

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.

Discussion questions

1. What is the law regarding the entitlement of the territorial State with regard to unauthorised overflight over its territory by foreign civilian and military aircraft?
2. Would the definition of air space and specification of the exact boundary between airspace and outer space be desirable and useful? Whose interests militate towards or against certainty regarding this particular matter?
3. What is the potential of the “common heritage of mankind” doctrine in international space law?

Updates and comments

Please check back to view updates and other useful information.

Chapter 10

Materials

RY Jennings, Extra-territorial Jurisdiction and United States Antitrust Laws, 33 BYIL (1957), 146
FA 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, State Jurisdiction in International Law: Complexities of a Basic Concept, Chapter 1 in A Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law, Elgar 2015

Lotus, PCIJ, series A, no. 10 (1927)
Pinochet, UK House of Lords 1999
The Joint Separate Opinion to the ICJ’s judgment on Arrest Warrant, 2002

CK 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.

2003 UK–US Extradition Treaty

Discussion questions

1. What are the basic presumptions applicable to the exercise of State jurisdiction?
2. What is the difference between territoriality and extra-territoriality? In which contexts is this difference manifested?
3. Over which crimes is international criminal jurisdiction applicable?
4. Does the approach taken by UK and US courts to universal civil jurisdiction comply with international law?

Updates and comments

Extra-territorial jurisdiction (effects principle)

In response to the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) relating to Iran’s nuclear assets, the European Union has re-activated its 1996 blocking statute whereby it had adopted means of response to US sanctions related to Cuba.

As a background, Council Regulation (EC) No. 2271/96, Article 1 provides that

“This Regulation provides protection against and counteracts the effects of the extra-territorial application of the laws specified in the Annex of this Regulation, including regulations and other legislative instruments, and of actions based thereon or resulting therefrom, where such application affects the interests of persons, referred to in Article 11, engaging in international trade and/or the movement of capital and related commercial activities between the Community and third countries.”

A key provision is Article 5(1), which specifies that:

“No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.”

Two instruments the EU has adopted in 2018 are:

The EU Commission Delegated Regulation (EU) 2018/1100 of 6 June 2018 amending the Annex to Council Regulation (EC) No. 2271/96 protecting against the effects of extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom; and

The EU Commission Implementing Regulation (EU) 2018/1101 of 3 August 2018 laying down the criteria for the application of the second paragraph of Article 5 of Council Regulation (EC) No. 2271/96 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.

As the EU’s Guidance Note explains,

“The Blocking Statute aims at countering the unlawful effects of third-country extra-territorial sanctions on the natural and legal persons specified in its Article 11 (hereinafter referred to as ‘EU operators’). Its main purpose is thus to protect EU operators engaging in lawful international trade and/or movement of capital as well as related commerce activities with third countries in accordance with EU law. … The basic principle of the Blocking Statute is that EU operators shall not comply with the listed extra-territorial legislation, or any decision, ruling or award based thereon, given that the EU does not recognise its applicability to/effects towards EU operators.”

It should be emphasised that the US assertion of extra-territorial jurisdiction against Iran is not unlawful merely on jurisdictional grounds. However, the EU is entitled not to recognise even lawful assertions of US jurisdiction. In other words, jurisdictional conflicts do not have to be premised on the illegality of one of the conflicting jurisdictions.

For more background on practice relating to the effect-based extraterritorial jurisdiction see here.

Universal jurisdiction

The UK Government’s Note on the investigation and prosecution of crimes of universal jurisdiction, paragraph 6, specifies that

“Offending by [foreign nationals] is embraced by the concept of universal jurisdiction (i.e. jurisdiction to try a crime irrespective of where it was committed and the nationality of the accused). Such jurisdiction has been adopted in the case of certain heinous crimes to accord with customary international law and to comply with the UK’s international obligations as set out in various treaties.”

However universal jurisdiction derives not just from treaties and this is pertinent among others because the Note also deals with crimes against humanity.

Chapter 11

Materials

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.

ICJ Judgment on Arrest Warrant, 2002, and the Joint Separate Opinion
ICJ Judgment on Jurisdictional Immunities (Germany v Italy), 2012
ILC Work on Immunity of State officials from foreign criminal jurisdiction (as of 2017)
I Sinclair, European Convention on State Immunity, 22 ICLQ (1973), 254
DW 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, in M Andenas & E Bjorge (ed.), A Farewell to Fragmentation: Reassertion and Convergence in International Law, Cambridge University Press 2015, 407

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

SR 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
Reyes v Al-Malki, UK Supreme Court Judgment 2017

Discussion questions

1. What is the content of the restrictive doctrine of State immunity and how does it differ from the doctrine of absolute State immunity?
2. What versions of State immunity rule has State practice proposed over the past few decades? Are those versions mutually consistent? Can they apply simultaneously to the same conduct of a State?
3. To what extent does the UK State Immunity Act 1978 reflect the international legal position on State immunity?
4. Do the existing conventions on State immunity provide a reliable guide as to the international legal position on State immunity?
5. Do the House of Lords decision in Jones v Saudi Arabia and the ICJ’s decision on Jurisdictional Immunities cover the same ground? Do they propose a State immunity rule of similar content and scope?
6. Does the distinction between criminal and civil proceedings make sense in determining when State immunity should apply?
7. Does the Jurisdictional Immunities Judgment correctly assess the state of customary law on State immunity? Does it cover the practice of sufficient number of States?
8. What is the continuing relevance and sustainability of the approach to State immunity taken in Jones and Jurisdictional Immunities?
9. What is the scope of State officials’ immunity ratiome materiae?
10. Is the approach taken by an English court in the Mofaz case in accordance with the International Court’s approach on the immunity ratione personae?
11. How does the scope of diplomatic immunity differ from that of the immunity of State officials?
12. Is the scope of immunity from execution different from that of immunity from adjudication?

Updates and comments

Lotus and high seas navigation (see Akehurst, pp. 217–218)

In the Norstar case (merits), decided on 10 April 2019, the International Tribunal for the Law of the Sea (ITLOS) has observed that

“prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas. The Tribunal, therefore, cannot accept Italy’s arguments that article 87 is not concerned with territoriality or extraterritoriality but rather with interference with navigation and that extraterritoriality is not the test to assess a breach of article 87. On the contrary, if a State applies its criminal and customs laws to the high seas and criminalizes activities carried out by foreign ships thereon, it would constitute a breach of article 87 of the Convention, unless justified by the Convention or other international treaties. This would be so, even if the State refrained from enforcing those laws on the high seas.” (paragraph 225)

The Tribunal further comments on the locus of the exercise of jurisdiction and enforcement activities:

“The Tribunal acknowledges that the locus of enforcement matters in assessing the applicability or breach of article 87. It does not follow, however, that the locus of enforcement is the sole criterion in this regard. Contrary to Italy’s argument, even when enforcement is carried out in internal waters, article 87 may still be applicable and be breached if a State extends its criminal and customs laws extraterritorially to activities of foreign ships on the high seas and criminalizes them. This is precisely what Italy did in the present case. The Tribunal, therefore, finds that article 87, paragraph 1, of the Convention is applicable in the present case and that Italy, by extending its criminal and customs laws to the high seas, by issuing the Decree of Seizure, and by requesting the Spanish authorities to execute it – which they subsequently did – breached the freedom of navigation which Panama, as the flag State of the M/V ‘Norstar’, enjoyed under that provision.” (paragraph 226)

It thus did not matter that Italy enforced its decree in its own internal waters.

Consular rights

In the Jadhav case, the International Court discussed the nature of consular officer’s rights to visit nationals of their own State in the receiving State’s prison and arrange their legal representation. In the first place, the Court specified that these rights under Article 36 1963 Vienna Convention on Consular Rights are not conditional of the conduct of the State of the relevant individual’s nationality. Therefore,

“the alleged failure by India to co-operate in the investigation process in Pakistan does not relieve Pakistan of its obligation to grant consular access under Article 36, paragraph 1, of the Convention, and does not justify Pakistan’s denial of access to Mr. Jadhav by consular officers of India.” (paragraph 117)

Nor were consular officers’ right to arrange for Mr Jadhav’s legal representation, impaired by the fact that

“Mr. Jadhav was allowed to choose a lawyer for himself, but that he opted to be represented by a defending officer qualified for legal representation, even if it is established, does not dispense with the consular officers’ right to arrange for his legal representation.”

As a bottom-line, “consular officers can arrange legal representation based on conversation and correspondence with the detained person” (paragraph 118).

Immunity of State officials ratione personae

The UK Government’s Note on the investigation and prosecution of crimes of universal jurisdiction, paragraph 43, suggests that

“In international law very senior figures with responsibility for foreign relations of a State – e.g. Heads of State, Heads of Government and Ministers of Foreign Affairs, and potentially other very senior members of governments (e.g. Defence Ministers, Foreign Trade Ministers) – enjoy full personal immunity from criminal jurisdiction and all forms of arrest and detention.”

It should be emphasised that the use of this rather indeterminate, loose and vague approach is liable to exempt in practice, if not in principle, the wide range of foreign officials from prosecution. To begin with, defence ministers do not fit within the criteria that the International Court of Justice (ICJ) has provided in Arrest Warrant.

Then, a rather loose criterion of “very senior figures” differs from the approach of the ICJ, which refers not to the seniority of an official but their involvement in crucial aspects of State representation. Mofaz, to which the Note refers, does not fit with the ICJ’s approach either, which gave no indication that its approach to the ratione personae immunity of high-level State officials was meant to be open-ended. To compare, in the UK, the Chancellor of the Exchequer and Home Secretary are regarded to be among Great Officers of the State. If that approach is used by analogy to foreign State officials, then the number of foreign State officials eligible to immunity in the UK increases by about 400. That does stretch the rationale for the rule as presented by the ICJ far beyond its original purport.

Immunity of State officials ratione materiae

Paragraph 56 of the Note suggests that,

“Where one or more of these immunities applies the individuals are protected from prosecution for the duration of the immunity; this includes immunity from crimes under universal jurisdiction, except in relation to torture … . Ultimately, however, whether any individual is entitled to immunity is always a matter for the Courts.”

This draws a rather presumptive distinction between torture and other universal jurisdiction crimes. Torture is obviously regulated, among others, by a discrete treaty, namely the Convention Against Torture (CAT) 1984. Paragraph 53 of the Note refers to CAT too. However, CAT is irrelevant for determining the scope of available immunities (see for background Akehurst, p. 240), to the effect that CAT 1984 does not deal with immunities, nor is the lack of immunity for serious international crimes owed to CAT.

Chapter 12

Materials

ILC Final Commentary on the Law of Treaties, 1966
1969 Vienna Convention on the Law of Treaties

ICJ Judgment on Qatar v Bahrain, 1994
This case acutely exposes the parameters of the definition of a treaty under Article 2 VCLT 1969.

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, ICJ judgment of 25 September 1997
Racke v Hauptzollamt Mainz, ECJ judgment, 16 June 1998

Discussion questions

1. How does the Vienna Convention definition of a treaty work in practice?
2. Is the US–DPRK statement of 2018 a treaty? Which provisions of it are binding?
3. What path of development has the law of treaty reservations taken to get to its present condition? How do various stages in that process of development differ from each other?
4. How does the 1969 Vienna Convention distinguish between the effects of compatible and incompatible reservations?
5. What is the legal relevance of ILC Guide on reservations to treaties? Does it suggest the outcomes compatible with the 1969 Vienna Convention?
6. How consistently are the treaty interpretation methods applied with regard to definition of islands under UNCLOS in Philippines v China Arbitral Award?
7. What requirements should be met in order for “subsequent practice” to influence the process of treaty interpretation?
8. How often do international courts and tribunals rely on preparatory work to interpret treaties?
9. Is the doctrine of fundamental change of circumstances used in the same or different manners across the jurisprudence of international tribunals?

Updates and comments

Treaty interpretation and customary law in the Jadhav case

The Court discussed Pakistan’s argument that Article 36 1963 Vienna Convention on Consular relations did not apply to individuals suspected of espionage activities, and

“that matters of espionage and national security were considered capable of constituting a ‘justifiable limitation’ to a sending State’s ‘freedom to communicate’ with its arrested nationals in the receiving State. Pakistan maintains that the drafters of the Vienna Convention understood that there would be matters pertaining to consular relations that would not be regulated by the Convention.” (paragraph 69)

Pakistan was essentially asking the Court to engraft upon the treaty an exception, which is not featuring in the treaty’s text.

The Court approached this matter on the basis of treaty interpretation rules under the 1969 Vienna Convention on the Law of Treaties. The Court concluded that

“when interpreted in accordance with the ordinary meaning to be given to the terms of the Vienna Convention in their context and in the light of its object and purpose, Article 36 of the Convention does not exclude from its scope certain categories of persons, such as those suspected of espionage.” (paragraph 75)

Pakistan further argued that

“State practice establishes that at the time of the adoption of the Vienna Convention in 1963, there was no rule of customary international law which made consular access obligatory in the case of individuals accused of espionage. Pakistan argues that there was a rule of customary international law in 1963 that prima facie cases of espionage constituted an exception to the right of consular access.” (paragraph 87)

The Court has dealt with this objection on the basis of the lex specialis principle, stating that

“Article 36 of the Convention expressly regulates the question of consular access to, and communication with, nationals of the sending State and makes no exception with regard to cases of espionage. The Court recalls that India and Pakistan have been parties to the Vienna Convention since 1977 and 1969 respectively … and that neither Party attached any reservation or declaration to the provisions of the Convention. The Court therefore considers that Article 36 of the Convention, and not customary international law, governs the matter at hand in the relations between the Parties.” (paragraph 89)

The concept of a treaty

ICJ’s 2018 Judgment in Bolivia v. Chile consolidates the approach that the identification of a treaty and its binding force should depend on its content and nature of commitments States-parties have assumed, not on its formal designation (see for background Akehurst, pp. 251–254). Paragraph 106 of the Judgment suggests that,

“the ‘Acta Protocolizada’ [of a meeting between the Minister for Foreign Affairs of Bolivia and the Minister Plenipotentiary of Chile in La Paz] does not enumerate any commitments and does not even summarize points of agreement and disagreement. Moreover, the penultimate clause of these minutes records that the Foreign Minister of Bolivia stated that ‘the present declarations do not contain provisions that create rights, or obligations for the States whose representatives make them’.”

Similarly, at paragraph 117,

“The Court further observes that the exchange of Notes of 1 and 20 June 1950 does not follow the practice usually adopted when an international agreement is concluded through an exchange of related instruments. According to that practice, a State proposes in a note to another State that an agreement be concluded following a certain text and the latter State answers with a note that reproduces an identical text and indicates its acceptance of that text. Other forms of exchange of instruments may also be used to conclude an international agreement. However, the Notes exchanged between Bolivia and Chile in June 1950 do not contain the same wording nor do they reflect an identical position, in particular with regard to the crucial issue of negotiations concerning Bolivia’s sovereign access to the Pacific Ocean. The exchange of Notes cannot therefore be considered an international agreement.”

Validity of treaties

In response to the Judgment of the Court of Justice of 21 December 2016, Council of the European Union v. Polisario Front, C-104/16 P, on 25 October 2018, the European Union and Morocco have amended the EU-Morocco Association Agreement to the effect that “Products originating in Western Sahara subject to controls by customs authorities of the Kingdom of Morocco shall benefit from the same trade preferences as those granted by the European Union to products covered by the Association Agreement”.

Serious issues as to the validity of this agreement arise, particularly in terms of the EU’s possible complicity in Morocco’s exploitation of Western Sahara’s resources without the authority conferred to them by the Sahrawi population. The breach of the peremptory principle of self-determination and the duty of all States not to recognise outcomes of violations of jus cogens are both involved in this situation (see further this useful comment.) Even more notably, the EU’s own policy proposals, which led to the EU’s approval of the EU-Morocco Agreement on 29 January 2019, display a degree of neglect for the application of the principle of self-determination in this case. The policy proposals go on to state that “Since goods from Western Sahara imported into the Union benefited on a de facto basis from the same preferences as goods originating in Morocco, it is not generally possible to distinguish Moroccan from Western Saharan imports”. It was the operation on that “de facto basis” that the European Court of Justice (ECJ) considered to be contrary to international law. Policy proposals also show some contempt towards the identity of Western Sahara’s population, by stating that “the expression ‘people concerned’ can be interpreted in different, even conflicting, ways. It can refer to the groups of people living in the region, which is the Moroccan interpretation and makes no distinction between inhabitants based on ethnicity or community”.

Termination of treaties

The ECJ Judgment in Wightman has specified that the UK Government is entitled to withdraw its 2017 notification regarding the exit from the European Union. The Court noted at paragraph 66 that the State should be able to form and carry out its will both with regard to withdrawal from the EU Treaty and the reversal thereof.

Paragraphs 70–71 of the Judgment specify that

“That [above] conclusion is corroborated by the provisions of the Vienna Convention on the Law of Treaties, which was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe. In the event that a treaty authorises withdrawal under its provisions, Article 68 of that convention specifies inter alia, in clear and unconditional terms, that a notification of withdrawal, as provided for in Article 65 or 67 thereof, may be revoked at any time before it takes effect.”

Another pertinent development relates to US statements as to their withdrawal from the 1987 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF Treaty)

Article XV(2) of the Intermediate Range Nuclear Forces (INF) Treaty provides that

“Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to withdraw to the other Party six months prior to withdrawal from this Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.”

On 4 December 2018, the US Government has stated that

“For more than four years, Russia denied the existence of the [relevant] missile and provided no information about it, despite the U.S. provision to Russia of the location of the tests and the names of the companies involved in the development and production of the missile. Russia only admitted that the missile existed after we publicly announced the missile system’s Russian designator but claimed that the missile was incapable of ranges beyond 500 kilometers and, therefore, INF Treaty-compliant.”

The US Government expressed the following position:

“The United States is declaring that Russia’s ongoing violation of the INF Treaty constitutes a material breach of the Treaty. As a consequence of Russia’s material breach, the United States will suspend its obligations under the Treaty effective in 60 days from December 4 unless Russia returns to full and verifiable compliance. Russia must return to full and verifiable compliance; Russia’s failure to do so will result in the demise of the INF Treaty. We should be clear that Russia has not shown any indications that it seeks to return to compliance.”

Secretary of State Pompeo stated the US would withdraw from the Treaty under its Article XV. On 2 February 2019 the Russian Government suggested that the US actions with regard to the Treaty were directed towards its breakdown.

The matter of “material breaches” under Article 60 of the Vienna Convention on the Law of Treaties (VCLT) has been examined by the ICJ in the Gabcikovo-Nagymaros case, where the Court has prioritised the preservation of the treaty. A “material breach” under Article 60 of the VCLT was not found to be factually there in that case (para. 108). The US position does, however, involve clear allegations as to particular facts involved in the Russian conduct.

Article 60(3) of the VCLT defines “material breach” widely enough to include breaches that do not necessarily lead to the total breakdown of the relevant treaty or disappearance of its object, i.e. ones that could still be rectified by the violating State or be responded to by countermeasures. Owing to the fact that the vast majority of treaties are about the contractual balance of rights and obligations between States on a bilateral plane, a State-party aggrieved through another party’s breach has to have a choice as to whether to terminate a treaty that is not yet inevitably dead or defunct, or to strive for the re-establishment of the originally intended contractual balance between the parties. The rationale behind this approach is to discourage and penalise initial violations of a treaty and place the initial violator in a disadvantaged position. Consequently, if the US allegations regarding the Russian missile development are factually accurate, then the US Government has been within their rights to propose the six-month period within which the alleged violations should be rectified, or treaty be terminated in the alternative.

What is not clear is why the US needed to invoke Article XV of the INF Treaty, which has been designed for different cases than those involving a “material breach” under Article 60 of the VCLT. Using Article XV is more appropriate along the lines of Articles 54 or 57 of the VCLT, which enable the termination or suspension of a treaty in accordance with its own provisions. Correspondingly, the “extraordinary events” Article XV alludes to are supposed to be events not necessarily associated with the conduct of another party to this Treaty.

Chapter 13

Materials

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, 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.

Discussion questions

1. What is the distinction between responsibility and liability?
2. What are rules about attribution and which contexts do they address?
3. In which areas does the distinction between primary and secondary rules arise? How consistent have international tribunals been in maintaining this distinction?
4. Do ILC’s 2001 Articles cover all situations in which State responsibility may arise?
5. What is the ambit and function of the complicity rule in the law of State responsibility?
6. How has the issue of reparation been handled in the jurisprudence of international tribunals?
7. What factors determine the responsibility of international organisations?

Updates and comments

Abuse of rights

In the Norstar case (merits), decided on 10 April 2019, the International Tribunal for the Law of the Sea (ITLOS) concluded that Article 300 of The United Nations Convention on the Law of the Sea (UNCLOS), dealing with abuse of rights, cannot be invoked on its own and without conjunction with violations of another provision of the Convention.

In the Jadhav case, paragraph 54, the International Court has stated that

“In its Judgment on the preliminary objections in the case concerning Immunities and Criminal Proceedings (Equatorial Guinea v. France), the Court ruled that ‘abuse of rights cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’.” (Preliminary Objections, Judgment, ICJ Reports 2018 (I),, paragraph 151, p. 337)

Later in the Judgment, the Court returns to the matter of the abuse of rights and states the approach prioritising the requirement under particular treaty obligations over that doctrine. With regard to 1963 Vienna Convention on Consular Relations, the Court states that

“the Vienna Convention ‘lays down certain standards to be observed by all States parties, with a view to the ‘unimpeded conduct of consular relations’’, and that Article 36 on consular assistance to and communication with nationals undergoing criminal proceedings sets forth rights both for the State and the individual which are interdependent. … there is no basis under the Vienna Convention for a State to condition the fulfilment of its obligations under Article 36 on the other State’s compliance with other international law obligations. Otherwise, the whole system of consular assistance would be severely undermined.” (paragraph 123)

Remedies

In the Jadhav case, the International Court concluded

“the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention.”

In the circumstances of the case, “a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.” (operative paragraphs 7 and 8)

Chapter 14

Materials

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

Discussion questions

1. Is there general international law on State succession?
2. What structural factors do State succession issues run into?
3. Is succession to human rights treaties automatic?
4. What is the Impact of the Sino-British Joint Declaration on Hong-Kong on the continuing applicability of the ICCPR to Hong-Kong?
5. Has the International Court of Justice coherently dealt with the issue of succession by Federal Republic of Yugoslavia (FRY) to the former Socialist Federal Republic of Yugoslavia (SFRY)?
6. Do Articles 11 and 12 1978 Vienna Convention on State succession accurately reflect the legal position on succession in relation to territorial rights?

Updates and comments

Please check back to view updates and other useful information.

Chapter 15

Materials

Nottebohm (Second Phase), ICJ judgment 1955
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

Discussion questions

1. What is the difference between individual rights and human rights?
2. To what extent does general international law regulate the matters of nationality?
3. What considerations influence States when recognising or contesting an individual’s nationality connection with another State?
4. Is the discussion of “fair and equitable treatment” in the Vivendi II Award (section 7.4) sustainable across the board? What are the risks with the broad interpretation the “fair and equitable treatment” standard in bilateral investment treaties? Is the autonomous standard of “fair and equitable treatment” feasible? Can it be applied uniformly?
5. To what extend does the content of the “fair and equitable treatment” standard overlap with other standards of investment protection (such as those relating to “full protection and security” and indirect expropriation)?
6. To what extend does the “full protection and security” standard reflect customary international law?

Updates and comments

Individual rights and consular assistance

In the Jadhav case, the International Court dealt with the individual rights of detainees to be informed of their right to consular assistance under Article 36 1963 Vienna Convention on Consular Relations, which is an individual right (Akehurst, p. 328). The Court clarified the calculus of State and individual rights and obligations under that provision, stating, in particular, that

“Interpreting Article 36, paragraph 1 (b), in accordance with the ordinary meaning of the terms used, the Court notes that there is an inherent connection between the obligation of the receiving State to inform a detained person of his rights under Article 36, paragraph 1 (b), and his ability to request that the consular post of the sending State be informed of his detention. Unless the receiving State has fulfilled its obligation to inform a detained person of his rights under Article 36, paragraph 1 (b), he may not be aware of his rights and consequently may not be in a position to make a request that the competent authorities of the receiving State inform the sending State’s consular post of his arrest.” (paragraph 108)

Pakistan did not carry out its own obligations as above, and therefore the fact that an individual may not have requested consular assistance does not take the relevant rights and obligations away (see also paragraphs 109–110).

Chapter 16

Materials

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 inter-dependence between political, civil and socio-economic human rights, as well as outcomes required on the ground by treaty obligations, as discussed in Chapter 16.

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

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

ECJ Case C‑104/16 P, Polisario  2006
2018 Western Sahara Campaign, ECJ judgment

ICJ Advisory Opinion on Wall in Occupied Palestinian Territory, 2004

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

Discussion questions

1. How do various generations of human rights differ from each other?
2. What is the content of the “progressive realisation” duty under ICESCR 1966?
3. What factors determine the extra-territorial application of human rights treaties?
4. What is the meaning and scope of the “equivalent protection” doctrine under ECHR?
5. What is a “group”, and in which areas of international law being a “group” has legal implications?
6. What is the difference between entitlement to self-determination and agreed case-specific solutions with regard to self-determination or secession claims?
7. Does international law recognise the notion of “internal self-determination”?
8. What are the implications of the principle of self-determination when the relevant self-determination unit is prevented to exercise its rights arising out of this principle?

Updates and comments

The right to self-determination

Paragraph 155 of the Chagos Advisory Opinion endorses the position that the right of peoples to self-determination is their immediately operating right extending to their entire territory (see, for background, Akehurst, pp. 86–89 and 373–381). In other words, even if in other cases this right has not been observed the way the Court would expect it to be observed (see examples in the UK submission, para. 8.58, US Submission, paras 4.67ff.), it still has to be observed on its face value with regard to Chagos and Chagossians. For, the right to self-determination as an immediately operating right requires its application to underlying facts independently of what has been done in other cases, and is meant to protect every self-determination unit individually.

There would be no discrete normative principle of self-determination if its content had to be identified by reference to what was done in particular cases of State practice; because the only content that could be inferred from such practice would be that anything that is done in particular cases through agreement, bargain or pressure is a valid instance of the exercise of the right to self-determination and, in effect, anything goes. And second, the very intendment of the relevant multilateral declarations has been to provide a guide for specific cases, not that a general principle can be constituted by those cases.

The UK submission, paragraphs 4.29ff., contained the claim that “Territorial integrity of the ‘totality’ of the previous non-self-governing territory prior to independence is not part of the right to self-determination and is not customary international law”, and that “Territorial integrity and self-determination are not neat corollaries”.

In response to that,

“The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power. It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.” (Chagos Advisory Opinion, para. 160)

In other words, the status of the people is inherently attached to the status of the territory. (See further updates to Chapter 3.)

Chapter 17

Materials

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, 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)

Discussion questions

1. What is the “environment”?
2. How does general international law regulate the matters related to environmental damage?
3. How do various treaty regimes differ in focusing on the protection of environment and avoidance of environmental harm?
4. What is the legal status of precautionary principle and “sustainable development”?
5. In which situations should the Environmental Impact Assessment (EIA) be undertaken?
6. What balance does the GATT/WTO jurisprudence draw between trade and environmental concerns and considerations? Is that balance drawn in the similar manned in jurisprudence of other international tribunals? What factors are responsible for outcomes reached by relevant courts and tribunals?

Updates and comments

Please check back to view updates and other useful information.

Chapter 18

Materials

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.

Discussion questions

1. To what extent does general international law regulate trade between States?
2. What are the ways of resolving inconsistencies between various international agreements that form part of the WTO legal framework?
3. How does the requirement of equal treatment and non-discrimination operate across the body of international trade law?
4. What is the relevance of international legal requirements in the process (a) of lending by International Financial Institutions to recipient States; and (b) of supervision by IMF of its members’ compliance with obligations under IMF Articles of Agreement?
5. What is the legal nature and practical impact of sanctions that IMF can apply to its members?
6. What is “currency manipulation” and how easy is it to accuse a State of engaging in it?
7. What is the origin and current shape of conditionality in the IMF legal framework? Does the current use of conditionality place strains on the limits of the IMF mandate?

Updates and comments

Article XXI General Agreement on Tariffs and Trade

In its report issued on 5 April 2019, the World Trade Organization (WTO) Panel has examined Russia's invocation of Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) 1994. The scope of self-judging clauses such as Article XXI GATT has rarely been addressed on its head in international jurisprudence.

The Panel concluded that

“as the existence of an emergency in international relations is an objective state of affairs, the determination of whether the action was ‘taken in time of’ an ‘emergency in international relations’ under subparagraph (iii) of Article XXI(b) is that of an objective fact, subject to objective determination.” (paragraph 7.77)

Furthermore,

“the adjectival clause ‘which it considers’ in the chapeau of Article XXI(b) does not qualify the determination of the circumstances in subparagraph (iii). Rather, for action to fall within the scope of Article XXI(b), it must objectively be found to meet the requirements in one of the enumerated subparagraphs of that provision.” (paragraph 7.82)

This approach demonstrates the limited relevance of States-parties’ GATT obligations under Article XXI. The self-judging nature of this clause refers to the selection of trade restricting measures, not to the determination of situations with regard to which a GATT contracting party invokes its entitlement to take such measures.

At paragraph 7.126, the Panel found that:

1. “As of 2014, there has existed a situation in Russia's relations with Ukraine that constitutes an emergency in international relations within the meaning of subparagraph (iii) of Article XXI(b) of the GATT 1994; and
2. each of the measures at issue was taken in time of this emergency in international relations within the meaning of subparagraph (iii) of Article XXI(b) of the GATT 1994.”

Chapter 19

Materials

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 & R Cryer, The Tokyo International Military Tribunal, OUP 2007

Discussion questions

1. What are obligations of States under general international law to prosecute core international crimes?
2. How does the jurisdiction of various international criminal tribunals differ from each other?
3. How does the complementarity arrangement work in the ICC framework and how does it make ICC jurisdiction different from that of other international criminal tribunals?
4. What provisions of the ICC Statute could be used (or abused) to deliver selective justice?
5. How are immunities of State officials regulated in the frameworks of international criminal tribunals?

Updates and comments

The International Criminal Court and prosecutorial discretion

In the case related to Situation in Afghanistan, the International Criminal Court (ICC) has decided not to open an investigation into crimes committed in Afghanistan. The key factor responsible for the Court’s decision was that, under Article 53(1)(c) ICC Statute, there were nonetheless substantial reasons to believe that an investigation would not serve the interests of justice (paragraph 87). The Court formulated the essence of this notion thus:

“In the absence of a definition or other guidance in the statutory texts, the meaning of the interests of justice as a factor potentially precluding the exercise of the prosecutorial discretion must be found in the overarching objectives underlying the Statute: the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities. All of these elements concur in suggesting that, at the very minimum, an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame. … An investigation can hardly be said to be in the interests of justice if the relevant circumstances are such as to make such investigation not feasible and inevitably doomed to failure.” (paragraphs 89–90)

The Court emphasised budgetary and financial difficulties such investigation in Afghanistan would entail (paragraph 95). But most crucially, the Court specified that

“subsequent changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted. Indeed, the Prosecution acknowledges the difficulties in securing albeit minimal cooperation from the relevant authorities as one of the reasons explaining the unusual duration of the preliminary examination.” (paragraph 94)

While the Court’s assessment of cooperation prospects from Afghanistan or US is not without merit, its approach contradicts the letter of its own Statute. Notably, the relevant part of Article 53(1) ICC Statute provides that

“The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: …

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.”

Therefore, the assessment of the “interests of justice” aspect under Article 53 is for prosecutors to make, not for the Court. Article 53(1) does not empower the Court to review prosecutors’ decisions. Therefore, all policy considerations outlined notwithstanding, the Court’s decision not to allow investigation in this matter is ultra vires.

ICC and head of State immunity

As discussed in Akehurst, pp. 446–449, the ICC Statute does not endorse the position that heads of State (whether party to the Statute or not) can enjoy immunity from the Court’s jurisdiction.

In the decision regarding Al-Bashir, delivered on 6 May 2019, the Court has confirmed this approach. The Court emphasises that even if there may be immunity available to heads of State before foreign national courts under customary international law (on which issue see Akehurst Chs. 11 and 19), there is no corresponding entitlement they could assert before international courts. The Court emphasised the correspondence of legal position as endorsed under Article 27(2) ICC Statute and the International Court of Justice’s (ICJ) 2002 decision in Arrest Warrant (paragraph 102, ICC Decision). The Court outlines the position within the framework of other international criminal tribunals and then concludes that

“The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.” (paragraph 114)

The Court’s decision also emphasises the convergence between treaty regimes and jus cogens (on which see Akehurst Ch. 3). At paragraph 123 of the Decision, the Court specifies that:

“the obligation of States Parties to cooperate with the Court when exercising its jurisdiction over crimes listed in article 5 of the Statute (the crime of genocide, crimes against humanity, war crimes and the crime of aggression) relates to breaches of fundamental norms of international law that have, such as the prohibition of genocide, the character and force of jus cogens. The obligation to cooperate with the Court reinforces the obligation erga omnes to prevent, investigate and punish crimes that shock the conscience of humanity, including in particular those under the jurisdiction of the Court and it is this erga omnes character that makes the obligation of States Parties to cooperate with the Court so fundamental. These considerations are reflected in the possibility, pursuant to article 87(7) of the Statute, of referring non-compliance with these obligations to the Assembly of States Parties and, in case the situation to which the cooperation request relates was referred to the Court by the UN Security Council, to the UN Security Council.348 The resulting importance of the duty to cooperate lends further weight to the argument that the duty to cooperate under articles 86 et seq. of the Statute must be interpreted in light of article 27(2) of the Statute.”

National prosecution of international crimes

Dealing with crimes with regard to which the UK is under the international legal duty to prosecute, the UK Government’s Note on the investigation and prosecution of crimes of universal jurisdiction, paragraph 18, suggests that “Any decision to prosecute offences of universal jurisdiction in England and Wales is governed by the same principles that apply to any other prosecution”.

Some observations are required. The evidentiary aspect of prosecutorial discretion is obvious and raises no particular problem. However it is unlikely that the public interest aspect (dealt with in Annex B, para. 17) could justify the decision not to prosecute, because that would place the UK in breach of its international obligations. Domestically, the chief matter would be whether judicial review of decisions not to prosecute such crimes could factor in the international legal obligations of the UK. However, any negative answer given to that question would inherently amount to the UK’s admission of breaching its international obligations.

The core international crimes are definitionally serious and involve major harm, and, furthermore, they are definitionally unsuitable for out-of-court handling, owing to the fact that the UK is under the duty to prosecute them. The “impact on the [domestic] community” aspect hardly needs to be gone into, because typically such crimes would be committed abroad.

Chapter 20

Materials

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, 54(3) Netherlands International Law Review (2007), 441–490
DW Bowett, Reprisals Involving Recourse to Armed Force, 66 AJIL (1972), 1
TM 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 & 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 & 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 & S 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 (Congo 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
RJ 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)

Discussion questions

1. What is the scope of the prohibition of the use of force under UN Charter and under customary international law?
2. What is the practical implication of NATO’s 2001 invocation of Article 5 of the North Atlantic Treaty?
3. Is the claim that foreign armed activities on the territory of Syria undertaken without Syria’s consent are not directed against Syria plausible?
4. Does the doctrine of “unable and unwilling” fit within the framework of modern jus ad bellum?
5. What are the stakes regarding claims pertaining to the applicability of self-defence against attacks perpetrated by non-State actors? Who is likely to endorse or object to such claims and for what reasons?
6. What is the difference between anticipatory self-defence and pre-emptive self-defence?
7. How do we ascertain whether a government has indeed invited foreign armed forces to act on its territory and the parameters of such invitation?
8. What concerns have arisen in practice as to the authenticity of invitations to intervene?
9. What motivates States to invoke the doctrine of “humanitarian intervention”?

Updates and comments

Proportionality and self-defence

On 21 June 2019, US President Donald Trump has called off the airstrike against Iran in the response of the Iranian shoot-down of a US drone. The reason US President has cited was the likelihood of 150 people getting killed, which would not be proportionate to the attack on a drone. The US and Iran differ on whether the drone was within or outside Iran’s territory when it was shot down. Assuming, for the sake of argument, that the drone was hit when outside Iran’s territorial sovereignty, the question has to be clarified whether the US response, had it been carried out, would have been a valid and lawful response to an armed attack perpetrated by Iran.
The issue of proportionality needs to be dealt with only after the issue of armed attack has been gone into. For, without meeting the “armed attack” requirement, that planned US airstrike would have been an armed reprisal, not a measure of self-defence, and hence inherently unlawful.
Still, the US President’s statement is an important contribution to State practice, being the first open and straightforward acknowledgement of the relevance of proportionality by a head of State, on terms similar to those endorsed in the ICJ jurisprudence (Akehurst, pp. 462–463). This jurisprudence presents proportionality as an objective criterion to guide governments’ decision, rather than one based on their own assessment of what is proportionate and what is not.

Self-defence and non-State actors

The Turkish Government wrote on 15 November 2018 to the UN Secretary-General and to the President of the UN Security Council that

“For over three decades, some parts of the Iraqi territory have been a safe haven for terrorist organizations, including PKK, DEASH and Al Qaeda. Since then, terrorists have used Iraqi land to recruit and train militants, generate financial resources and launch systematic cross-border attacks on Turkey. … [and] It is against this background that Turkey exercises its inherent right of self-defence, as outlined in Article 51 of the Charter of the United Nations.”

The Iraqi Government had earlier referred to “the numerous violations of Iraqi territory that have been committed by the Turkish Republic”, contrary to international law.

If anything, this controversy illustrates how difficult and impractical the consolidation of the customary rule supportive of the use of armed force in response to the attacks carried out by non-State actors would be. State practice that commentators supportive of the requisite extension of the right to self-defence ordinarily cite almost always takes place at the point of actual armed attacks or invasions of the territory of the foreign State, and is met by protest and objection by the latter State. If this practice evidences anything, it evidences its own inability to produce or amend a customary rule, against the background of the division within the international community on this matter.

Chapter 21

Materials

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
IP Trainin, Questions of Guerrilla Warfare in the Law of War, 40 AJIL (1946), 534
GIAD Draper, Humanitarian Law and Internal Armed Conflicts, 13 GaJIL (1983), 254
GIAD 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.

Discussion questions

1. What elements does jus in bello consist of and in which situations are they relevant? Does jus in bello apply in the same way to all wars and armed conflicts?
2. What is the difference between war and armed conflict?
3. Can international humanitarian law alone regulate the position of combatants or protected persons in armed conflicts?
4. Does humanitarian law offer individuals lower protection compared to that offered to them under international human rights law?
5. What is the difference of the distinction drawn between international and non-international armed conflicts drawn by the ICJ and ICTY, respectively? What would be the implications if the ICTY’s “overall control” test was to apply as an international law standard?
6. Is the ICRC’s reference to “spill-over” conflicts accurate?
7. What are belligerent rights, and what are conditions of the legality of their exercise?
8. Is “military necessity” a concept of international law?
9. What safeguards does the law of belligerent occupation provide to protect the population’s rights to their property and natural resources?
10. What is the relevance of permanent sovereignty over natural resources in the context of belligerent occupation?
11. Does international humanitarian law allow reprisals against civilians?

Updates and comments

Please check back to view updates and other useful information.

Chapter 22

Materials

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

Discussion questions

1. What are the statutory conditions on the Security Council’s exercise of its authority under the UN Charter?
2. What is the systemic relevance of the great power unanimity principle in the UN legal framework?
3. How are the UN Security Council resolutions interpreted?
4. How do we identify whether the Security Council has authorised enforcement action under Chapter VII?
5. Has the military operation to overthrow Qaddafi complied with the goal “to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (SCR 1973, para 4)?
6. What is the distinction between peace-keeping and peace-enforcement? Which provisions of the UN Charter are relevant in drawing this distinction?
7. What is the relevance and scope of Article 103 UN Charter?
8. What statutory basis is available under the UN Charter for the establishment of peace-keeping forces?
9. Can enforcement be part of the mandate of UN peace-keeping forces?

Updates and comments

Please check back to view updates and other useful information.

Chapter 23

Materials

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, Clarendon Press 1995, Chapter 6
B Ramcharan, Preventive Diplomacy at the UN, Indiana University Press 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
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 order 2017
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
SA Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, Martinus Nijhoff Publishers 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)

Discussion questions

1. What is the distinction between jurisdiction of international tribunals and admissibility of claims?
2. What is the legal nature and effect of declarations under the Optional Clause?
3. Which reservations made to Optional Clause declarations are contrary to the ICJ Statute and what legal consequences arise therefrom?
4. Is the International Court’s application of the “prima facie jurisdiction” requirement consistent across the cases?
5. What is the proper scope of the “absent third party” doctrine?
6. What is the difference between effective nationality and pre-dominant nationality?
7. How different is the NAFTA Chapter 11 framework on the exhaustion of local remedies from other treaty frameworks dealing with this matter?
8. What is the relationship between judicial jurisdiction and applicable law?
9. To what extent does international law restrain States in using countermeasures with regard to matter that is subjected to a dispute settlement procedure (especially in the field of investment arbitration and WTO law)? (See also Articles 22–23 WTO’s Dispute Settlement Understanding.)
10. To what extent can the International Court of justice revisit or re-open its previous decisions?

Updates and comments

International Tribunal for the Law of the Sea and provisional measures

By order issued on 25 May 2019, the International Tribunal for the Law of the Sea (ITLOS) has determined that the Russian detention of three Ukrainian naval vessels did not amount to military activity under Article 298 of The United Nations Convention on the Law of te Sea (UNCLOS). Therefore, the matter was not outside the Tribunal’s jurisdiction and the latter was not prevented from indicating provisional measures against Russia.

“In the view of the Tribunal, the distinction between military and law enforcement activities cannot be based solely on whether naval vessels or law enforcement vessels are employed in the activities in question. … it is not uncommon today for States to employ the two types of vessels collaboratively for diverse maritime tasks. Nor can the distinction between military and law enforcement activities be based solely on the characterization of the activities in question by the parties to a dispute. … such characterization may be subjective and at variance with the actual conduct. In the view of the Tribunal, the distinction between military and law enforcement activities must be based primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case.” (paragraph 64–66)

The Tribunal prioritises the nature of underlying activities over the identity of those who perform it:

“it appears from the information and evidence presented by the Parties to the Tribunal that the underlying dispute leading to the arrest concerned the passage of the Ukrainian naval vessels through the Kerch Strait. In the view of the Tribunal, it is difficult to state in general that the passage of naval ships per se amounts to a military activity. Under the Convention, passage regimes, such as innocent or transit passage, apply to all ships.” (paragraph 68)

Therefore, “what occurred appears to be the use of force in the context of a law enforcement operation rather than a military operation” (paragraph 74).

Provisional measures

The ICJ Order on provisional measures indicated in Iran v. US of 3 October 2018 has elaborated upon the criteria on which provisional measures are indicated (see for background Akehurst, pp. 248–250). At paragraph 91 of the Order the Court states that

“a prejudice can be considered as irreparable when the persons concerned are exposed to danger to health and life. In its opinion, the measures adopted by the United States have the potential to endanger civil aviation safety in Iran and the lives of its users to the extent that they prevent Iranian airlines from acquiring spare parts and other necessary equipment, as well as from accessing associated services (including warranty, maintenance, repair services and safety-related inspections) necessary for civil aircraft.”

As a background, some of the rights under the 1955 Treaty between Iran and US that Iran was seeking to protect and preserve could be deviated from through the US reliance on emergency and national security interest clauses under Article XX of that treaty. Addressing this matter, at paragraph 68 the Court goes on to say that

“the Court need not carry out at this stage of the proceedings a full assessment of the respective rights of the Parties under the 1955 Treaty. However, the Court considers that, in so far as the measures complained of by Iran could relate ‘to fissionable materials, the radio-active by-products thereof, or the sources thereof’ or could be ‘necessary to protect … essential security interests’ of the United States, the application of Article XX, paragraph 1, subparagraphs (b) or (d), might affect at least some of the rights invoked by Iran under the Treaty of Amity.”

This accounted for the outcome that the Court indicated provisional measures with regard to some but not all rights that Iran was seeking to protect through these proceedings. However, any and all rights involved in any provisional measures litigation are supposed to be dealt with and protected as prima facie rights, and their conclusive determination ought to be reserved for the merits stage. This applies both to rights straightforwardly stated as well as ones subjected to the operation to the relevant margin of appreciation clauses.

Advisory opinions

The International Court of Justice has examined a number of preliminary objections against delivering the Advisory Opinion in the Chagos case. Most of the objections dealt with in paragraphs 54 to 91 of the Opinion are rather similar to ones that have been discussed and dismissed in the previous cases, namely objections that the factual situation was not clear, political issues or a bilateral dispute (here between Mauritius and the UK) were involved or the General Assembly would not be assisted with this Opinion (see Akehurst, p. 551 for background).

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 the 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 and 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 that 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 be merely a coincidental circumstance.

Applicable law

The International Court of Justice has concluded in Certain Iranian Assets, in contrast to the 2003 Oil Platforms Judgment, the 1955 US–Iran Treaty does not extend the Court’s jurisdiction over the rules or principles of general international law on whose applicability the operation of the treaty itself is not contingent.

To compare, in Oil Platforms the treaty would have been null and void for its endorsement of the unlawful use of force, i.e. to the extent greater than the customary law on self-defence would have allowed (see comment here), while in Certain Iranian Assets the same treaty could very well apply to facts within its content without the assistance of the rules of international law claimed to be relevant by Iran, namely ones on State immunity.

As the Court explained in paragraph 58,

“the purpose of Article IV [1955 Treaty] is to guarantee certain rights and minimum protections for the benefit of natural persons and legal entities engaged in activities of a commercial nature. It cannot therefore be interpreted as incorporating, by reference, the customary rules on sovereign immunities.”

With regard to another provision of the 1955 Treaty, the Court agreed with Iran that

“Article XI, paragraph 4, which solely excludes from all ‘immunity’ publicly owned enterprises engaging in commercial or industrial activities, does not affect the immunities enjoyed under customary international law by State entities which engage in activities jure imperii.”

However, as the Court’s judgment has clarified in paragraph 65,

“It is one thing for Article XI, paragraph 4, to leave intact, by not barring them, the immunities enjoyed under customary law by State entities when they engage in activities jure imperii. It is quite another for it to have the effect, as Iran claims it does, of transforming compliance with such immunities into a treaty obligation, a view not supported by the text or context of the provision.”

General works of analytical importance

• PE Corbett, Law and Society in the Relations among States (1952)
• PE Corbett, Law in Diplomacy (1959)
• J Merrills, Anatomy of International Law (1976)
• D Bederman, The Spirit of International Law (University of Georgia Press, 2002)
• R Higgins, Problems and Process: International Law and How We Use It (OUP 1995)
• A Cassese, International Law (OUP 2nd ed., 2005)